David Johnson

David Johnson

Winstead PC

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Employers Generally Do Not Owe Fiduciary Duties To Employees

In Espinosa v. Aaron’s Rents, Inc., a former employee sued his former employer for defamation and other torts related to the defendant reporting the plaintiff to the police for alleged theft. No. 01-14-00843-CV, 2016 Tex....more

1/29/2016 - Duty of Loyalty Fiduciary Duty Former Employee

Fiduciaries And Beneficiaries Should Be Aware Of Criminal Statutes

There are several criminal statutes that implicate fiduciary activities in Texas that are not well-known: misappropriation of fiduciary property and financial exploitation of the elderly. Though these may be similar in some...more

1/28/2016 - Beneficiaries Elder Abuse Exploitation Felonies Fiduciary Duty Misdemeanors Punitive Damages Restitution Trustees

Court Granted Summary Judgment For A Trustee On A Fiduciary Breach Claim Arising From Conflict-Of-Interest and Diversification...

In Adams v. Regions Bank, beneficiaries sued a trustee for multiple claims, including breach of fiduciary duty, arising from the trustee’s seizure of collateral owned by the trust. 2016 U.S. Dist. LEXIS 1027 (S.D. Miss....more

1/22/2016 - Asset Seizure Banks Breach of Duty Conflicts of Interest Statute of Limitations Trustees

Court Affirmed Government Seizure Of Trust Asset

In 3607 Tampico Dr. v. State, the government brought a forfeiture proceeding under Texas Code of Criminal Procedure Article 59.02(a) for a house owned by a trust. No. 11-13-00306-CV, 2015 Tex. App. LEXIS 13056 (Tex....more

1/18/2016 - Controlled Substances Forfeiture Innocent Owner Defense Lis Pendens Private Property Probable Cause Trustees Trusts

Court Affirmed Summary Judgment For Defendant/Attorney Regarding A Breach Of Fiduciary Duty Claim Arising From A Conflict of...

In Macias v. Gomez, a client sued his attorney for breach of fiduciary duty arising from the attorney’s trust later suing the client. No. 13-14-00017-CV, 2015 Tex. App. LEXIS 12967 (Tex. App.—Corpus Christi December 29, 2015,...more

1/11/2016 - Breach of Contract Breach of Duty Conflicts of Interest Fiduciary Duty Summary Judgment Waivers

Court Affirmed Judgment That A Deed By A Trustee Without Specifying The Trustee’s Capacity Transferred Trust Property

In West 17th Res. LLC v. Pawelek, children of a grantor sued the grantees, alleging that the grantor did not convey a trust’s ownership interest in the property because the grantor did not indicate her capacity as a trustee...more

1/8/2016 - Deeds Grantee Grantors Trustees Trusts

Court Disqualified Attorney Where Attorney Would Testify As Witness

In Matthews v. Stolier, litigation arose regarding several transactions, including a power of attorney document. No. 13-6638, 2015 U.S. Dist. LEXIS 171752 (D.C. La. December 23, 2015). Some of the parties retained an attorney...more

1/7/2016 - Conflicts of Interest Disqualification Fiduciary Duty Power of Attorney Rules of Professional Conduct Witnesses

Estate Did Not Own Real Estate Because Court Affirmed Finding Of Inter Vivos Oral Gift Of Real Estate

In the Estate of Wright, the court of appeals affirmed a trial court’s finding of an oral gift of real estate. No. 14-14-00401-CV, 2015 Tex. App. LEXIS 12644 (Tex. App.—Houston [14th Dist.] December 15, 2015, no pet....more

12/23/2015 - Beneficiaries Gifts Inter Vivos Gifts Oral Contracts Real Estate Transfers

Court Affirmed Judgment On Breach Of Fiduciary Duty Claim Because Plaintiff Swore In Bankruptcy Filings That He Did Not Have Any...

In Archer v. Allison, a plaintiff sued his daughter and her husband for breaching fiduciary duties and other related causes of action related to their work in certain businesses. No. 07-14-003130CV, 2015 Tex. App. LEXIS 12361...more

12/8/2015 - Consumer Bankruptcy Fiduciary Duty Judicial Estoppel Property Owners

Court Held That A Beneficiary Could Not Usurp A Trustee’s Right To Direct Litigation And Did Not Have Standing To Sue The Trustee...

In In re XTO Energy Inc., a beneficiary, on behalf of the trust, sued an oil and gas operator for allegedly not paying sufficient funds to the trust and also sued the trustee for refusing to bring that claim. No....more

11/19/2015 - Beneficiaries Estate Claims Oil & Gas Standing Trustees

Exculpatory Clauses In Trust Documents Are “Somewhat” Enforceable In Texas

It is common for settlors to execute trust documents that contain exculpatory clauses. An exculpatory clause is one that forgives the trustee for some action or inaction. For example, a common exculpatory clause may state...more

11/13/2015 - Exculpatory Clauses Fiduciary Duty Public Policy Trustees Trusts

Court Affirmed Finding Of No Fiduciary Duty Because No Joint Venture Existed

In Stutz Rd. Ltd. P’ship v. Weekley Homes, L.P., plaintiffs sued a defendant for breach of fiduciary duty based on duties owed pursuant to an alleged joint venture. No. 05-12-01752-CV, 2015 Tex. App. LEXIS 11440 (Tex....more

11/13/2015 - Fiduciary Duty Joint Venture Summary Judgment

Suit To Modify Trusts Did Not Violate No Contest Clause

Texas courts narrowly construe no-contest clauses. In Di Portanova v. Monroe, grandparents set up eight trusts for a grandchild that had a mental disability. No. 01-20-01019-CV, 2012 Tex. App. LEXIS 9859 (Tex. App.—Houston...more

7/10/2013 - Beneficiaries Disability Estate Planning Executors Mental Illness No Contest Clause Trusts

Court Issues Opinion On Home Equity Lending And Agency Determinations

In The Finance Commission of Texas v. Norwood, the Texas Supreme Court determined that an agency's interpretation of legislation was not outside the review of the courts. No. 10-0121, 2013 Tex. LEXIS 491 (Tex. June 21, 2013)....more

7/10/2013 - Home Equity Home Equity Line of Credit Lenders

C. Court Did Not Abuse Discretion In Denying Attorney's Fees To Successful Beneficiary In Declaratory Judgment Action

In Estate of Richardson, a remainder beneficiary of a trust filed a declaratory judgment action to declare that the trust would terminate five years after its creation. No. 14-12-00516-CV, 2013 Tex. App. LEXIS 2664 (Tex....more

7/9/2013 - Abuse of Discretion Attorney's Fees Beneficiaries Declaratory Judgments Trustees Trusts

Litigating Accounts With Rights of Survivorship in Texas

In this article: - I. Introduction - II. Valid Survivorship Accounts - III. Joint Accounts Between Spouses - IV. Burden Of Proving Enforcable Survivorship Accounts - V. Proving Contents Of...more

6/10/2013 - Arbitration Bank Accounts Beneficiaries Estate Planning Joint Accounts Safe Harbors Surviving Spouse Survivorship

Former Owner Cannot Challenge Foreclosure Procedure In Forcible Detainer Action

In McDaniel v. HSBC Bank USA, NA, McDaniel appealed a trial court's granting a bank possession of real property purchased at a foreclosure sale. No. 05-11-00238-CV, 2013 Tex. App. LEXIS 1079 (Tex. App.—Dallas February 6,...more

5/15/2013 - Deed of Trust Foreclosure

Court Reverses The Appointment Of A Receiver Over Trust Property

Courts generally review receiverships very closely, and a party requesting one should follow all required procedures. In Elliott v. Weatherman, parents created an irrevocable living trust and designated their three adult...more

5/15/2013 - Court-Appointed Receivers Irrevocable Trusts Receivership Trustees

Court Upheld A Waiver Of Property Code Rights And Affirmed A Deficiency Judgment Based On The Foreclosure Price

In New Millennium Homes, Inc. v. Texas Community Bank, NA, a debtor appealed a summary judgment granted to a lender based on a deficiency claim. No. 09-12-00073-CV, 2013 Tex. App. LEXIS 1598 (Tex. App.—Beaumont February 21,...more

5/14/2013 - Deficiency Judgments Fair Market Value Foreclosure Lenders Mortgages Waivers

A Bank Can Solely Look To Its Account Agreement To Determine The Ownership Of Funds In An Account

In Abbott v. Liberty National Bank, Abbott obtained a money judgment against Scotty Norwood and had a writ of garnishment served on Liberty National Bank, who had an account owned by Scotty’s wife, in an attempt to collect on...more

5/14/2013 - Banks Directed Verdicts

Court Dismissed Customer's Libel Claim Based On Credit Report

In Meisel v. U.S. Bank, Meisel was a customer of U.S. Bank who found an original signed payroll check dated several years earlier from his former employer. No. 05-11-01336-CV, 2013 Tex. App. LEXIS 1740 (Tex. App.—Dallas...more

5/13/2013 - Credit Reports Libel

Bank Did Not Alter Right To Foreclose By Agreeing To Work With The Debtor After Bankruptcy Dismissal

In Branch Banking and Trust Company v. TCI Luna Ventures, LLC, BB&T appealed a temporary injunction order prohibiting it from foreclosing on two properties owned by TCI Luna. No. 05-12-00653-CV, 2013 Tex. App. LEXIS 1745...more

5/13/2013 - Debtors Foreclosure Voluntary Dismissals

Court Issues Opinion Holding That Parties Can Enforce Arbitration Clauses In Trust Documents

Parties may want to resolve trust disputes in arbitration. There are perceived cost savings associated with arbitration, and arbitration can be quicker than normal litigation. But one of the main benefits is that the...more

5/13/2013 - Enforcement Mandatory Arbitration Clauses Trusts

Court Holds That Statute Of Limitations Applies To Section 50(a)(6) Constitutional Claims

In Priester v. JPMorgan Chase Bank, N.A., homeowners sued for declaratory relief against their lender claiming that the lien on their home was void under the Texas Constitution. No. 12-40032, 2013 U.S. App. LEXIS 3097 (5th...more

5/10/2013 - Declaratory Relief Statute of Limitations

Beware Of "Pocket" Judgments In Settlement Negotiations

In settlements, we often request that the debtor enter into an agreed judgment, perhaps with a simultaneous forbearance agreement outlining a payment plan. Debtors are often reluctant to sign these and typically ask that the...more

3/15/2013 - Creditors Debtors Payment Plans Settlement

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