In In re Estate of Maun, a brother sued his sister’s estate for her performance as executrix of their mother’s estate since the late 1980s. No. 13-22-00576-CV, 2024 Tex. App. LEXIS 52 (Tex. App.—Corpus Christi January 4, 2024, no pet. history). The trial court entered summary judgment for the defendant based on the statute of limitations, and the plaintiff appealed.

The court of appeals noted that the statute of limitations for a breach of fiduciary duty claim is four years, which can tolled under the theories of the discovery rule and fraudulent-concealment. The discovery rule applies to “cases in which the alleged wrongful act and resulting injury were inherently undiscoverable at the time they occurred but may be objectively verified.” Id. Fraudulent concealment, on the other hand, focuses on the defendant’s improper conduct. “[W]hen a defendant has fraudulently concealed the facts forming the basis of the plaintiff’s claim, limitations does not begin to run until the claimant, using reasonable diligence, discovered or should have discovered the injury.” Id.

The court of appeals affirmed the summary judgment on limitations, and held that the plaintiff should have discovered his claims at least four years before he filed suit:

To start, Mark should have known something was amiss when Debora filed the 1989 inventory but failed to include the three duplexes or the coin collection. Mark testified that he knew these assets were part of his father’s estate at the time of his death, yet he took no action to challenge the accuracy of the inventory. The next indication that Debora was mismanaging the estate came when Mark never received his share of the nine savings bonds that were listed in the inventory. By 1994, when he finally began receiving his share of the royalty income and rental payments, Mark knew that his sister had also failed to list these assets in the inventory or distribute his share of the revenue since their father’s death in 1985. Faced with this series of troubling facts, Mark never demanded an accounting or sought to remove his sister as the personal representative of the estate. Finally, although the exact date is unclear from the record, Mark also knew that the three duplexes were generating income for the estate more than four years before he filed suit and that he had never received any of this income. Again, he took no action in the probate proceeding to protect his interests.

Id. The court also rejected the plaintiff’s argument that because his sister was a fiduciary that he had no duty to act reasonably to discovery his claims:

Nevertheless, Mark relies heavily on his status as a beneficiary and the fiduciary duties his sister owed him as executrix of the estate. During the summary judgment hearing, Mark’s counsel suggested that it would “turn probate law upside down on its head” to place any obligation on Mark to discover Debora’s misconduct. But even “those owed a fiduciary duty are not altogether absolved of the usual obligation to use reasonable diligence to discover an injury.” “[W]hen the fact of misconduct becomes apparent it can no longer be ignored, regardless of the nature of the relationship.” Therefore, the mere existence of a fiduciary relationship did not excuse Mark from his own obligation to exercise reasonable diligence in discovering his injuries. And under the facts of this case, we cannot say that Mark was “unable to inquire into the fiduciary’s actions or unaware of the need to do so.” To the contrary, Mark was aware of numerous red flags that should have led him to utilize his various rights as a beneficiary to judicially examine his sister’s administration of the estate.

Id. The court of appeals also rejected the fraudulent concealment defense due to the same reasons: “Mark could not justifiably rely on his sister’s representations given everything he already knew about her misconduct.” Id. The court affirmed the summary judgment for the defendant based on limitations.

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Photo of David Fowler Johnson David Fowler Johnson

[email protected]
817.420.8223

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]
817.420.8223

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