In Kirkland v. Kirkland, a husband and wife created a revocable trust. No. 02-22-00469-CV, 2023 Tex. App. LEXIS 3598 (Tex. App.—Fort Worth May 25, 2023, no pet. history). Upon the death of one of the spouses, the right to revoke the trust by the surviving spouse was limited. An individual was listed as the first successor trustee, and the surviving spouse was limited to removing and replacing him with someone who was not related to her. The trust also limited what provisions of the trust could be amended by the surviving spouse. Notwithstanding, the surviving spouse executed a document that purported to remove the individual and replace him with the surviving spouse. The individual and the surviving spouse then filed claims against each other, and the individual obtained a temporary injunction precluding the surviving spouse from acting as a trustee, and the surviving spouse appealed that order.

The court of appeals affirmed the injunction order holding that there was evidence of a breach of fiduciary duty by the surviving spouse and that there was evidence if an irreparable harm, both of which are required for a temporary injunction. The court stated:

Here, the record demonstrates that upon Benny’s death, the trust provided for Calvin to serve as trustee. While Calvin was serving as trustee, Jerri executed the Second Amendment to remove Calvin as trustee and appoint herself as trustee. This appointment was a change to Article I of the Restated Amendment and violated 5.C. of the Restated Amendment, allowing only Articles II, III, or IV to be amended by the surviving spouse. Jerri’s appointment of herself as trustee also violated the Restated Amendment’s 3.A., which required that a successor trustee not be related to the surviving spouse. Additionally, Jerri’s appointment of herself as trustee altered the status quo.

Further, once Jerri usurped the role of trustee, she did not uphold the high fiduciary standards required of a trustee. Jerri did not exhibit fidelity to the beneficiaries of the Decedent’s Trust as she admitted that she had not taken a single action since she had purportedly appointed herself as trustee of the trust: she had not arranged to take care of the trust’s taxes; she had not investigated what assets were currently in the trust; she had not checked to see what bills were due on the New Mexico property or done anything to make sure that they were paid; and she had not reached out to the investment advisor to check on the Stifel account that had rapidly declined in value. Indeed, she professed to not knowing that she had removed Calvin as trustee.

Jerri claims that Calvin never proved that she had tried to harm him or that she intended to harm him in the future. The failures listed above are some evidence that Jerri had harmed Calvin, who was a beneficiary of the Decedent’s Trust and the Stifel account. Moreover, as stated above, “[i]n determining imminent harm, ‘the trial court may determine that, when violations are shown up to or near the date of trial, the defendant has engaged in a course of conduct[,] and the court may assume that it will continue, absent clear proof to the contrary.'” Hartwell, 528 S.W.3d at 764. The trial court was within its discretion to conclude that Jerri’s actions in removing Calvin as trustee and appointing herself as trustee—both actions in violation of specific provisions in the trust—and then failing to act as trustee demonstrated that she had engaged in a course of conduct that would continue in the future.

Id. The court also held that there was evidence that the surviving spouse did not have sufficient assets to reimburse the trust for damages associated with her inaction.

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Photo of David Fowler Johnson David Fowler Johnson

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law