In Bogle v. Bass, a trial court granted a motion for receivership in a trust dispute under “under the rules and principles of equity” under Texas Civil Practice and Remedies Code Section 64.001(a)(6). No. 03-23-00491-CV, 2024 Tex. App. LEXIS 5033 (Tex. App.—Austin July 18, 2024, no pet. history). The case concerned a dispute as to who were the appropriate successor trustees. That order was not appealed. Later the court entered summary judgment for one side and ended the receivership. Even later the court entered an order reinstituting the receivership while the judgment was on appeal.

The court of appeals affirmed the order reinstituting the receivership order. The court stated: “Receivership has been termed a ‘harsh’ remedy, and normally a court will not appoint a receiver if another adequate remedy at law or equity exists. But when a receiver is appointed pursuant to Section 64.001(a) of the Texas Civil Practice and Remedies Code, the party seeking appointment of a receiver need not show that no other adequate remedy exists.” Id. In this case, no party opposed or timely filed an interlocutory appeal from the probate court’s initial order appointing the receiver, and the probate court ordered that the receiver “shall continue as receiver under the terms of the Court’s Order Appointing Receiver dated April 25, 2023 pending final resolution of the appeal.” Id. The initial order included detailed findings concerning the necessity of the receivership.

The court noted that enforcement of the final judgment has been suspended pending appeal. The court held that because “the parties’ dispute concerns who are the valid successor co-trustees, the probate court reasonably could have found that it was necessary to maintain the receiver on appeal based on the continuing nature of its findings in the initial order appointing a receiver.” Id. The court noted:

During an appeal of the underlying case, “the trial court has jurisdiction to appoint, control, modify, or otherwise deal with a receivership related to the main case” and the “power to modify an order discharging a receiver and to reinstate or authorize the receiver to act if new circumstances arise after the order discharging the receiver and while the main case in on appeal.” And “even after issuing an order discharging a receiver, a trial court has power to continue the receivership if circumstances require.”

Because Bass and Smith appealed and superseded the final judgment that declared Mike and Katie the successor co-trustees, Mike argued to the probate court that the “unintended effect” of the court’s order allowing suspension of the enforcement of the judgment was to prevent Mike and Katie from acting as co-trustees and to leave the trust “without anyone to act on its behalf.” They further asserted that the trust is a “multi-million-dollar Trust,” that “[h]undreds of thousands of dollars in income from the corporation need to be deposited into the Trust and distributed for Nancy’s benefit,” and that “[s]omeone needs to man the ship during the pendency of the appeal.” Bass and Smith also presented evidence about the need for ongoing management of the trust assets during the appeal, such as the payment of property taxes, depositing checks, and paying other past-due amounts concerning trust property.

On this record, we conclude that there was some evidence of a substantive and probative character to support the trial court’s decision to withdraw its order terminating the receivership and to order the receiver to serve until final resolution of the appeal. Thus, we conclude that the probate court did not abuse its discretion when it withdrew its order terminating the receivership and ordered the receiver to serve until final resolution of the appeal.

Id.

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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