In Moore v. Estate of Moore, a decedent’s wife claimed that she had an interest in an oil and gas lease formerly owned by her deceased husband. No. 07-20-00019-CV, 2021 Tex. App. LEXIS 6142 (Tex. App.—Amarillo July 30, 2021, no pet. history). The decedent’s children were the trustees of a trust that was the residuary beneficiary of the decedent’s will. If the decedent still owned the mineral interests at the time of his death, the trust would inherit that interest. After the decedent died, the wife and the trustees settled their dispute and entered into a settlement agreement that provided: “The Parties agree that each shall keep and own such real and personal property as they currently possess without any challenge of any other party.” Id. Later, the trustees sued the wife, alleging she breached her contractual duty to transfer the mineral interest to the trust, was liable under a theory of money had and received, and breached her fiduciary duties. After a jury trial, the trial court entered a judgment for the trustees, and held that the mineral interest belonged to the trust. The wife appealed.

The court of appeals affirmed. The court disagreed with the wife’s argument that the settlement agreement meant that the mineral interest belonged to her:

The record shows Nancy possessed a life estate in William’s working interest in the Goliad/Ledbetter mineral lease. However, no record evidence shows William gave Nancy any interest — actual or possessory — in the Shelton lease. Nor does any evidence conclusively indicate Nancy otherwise obtained title or possession of the Shelton lease in the absence of William’s consent. Rather, the 2012 judgment simply required Nancy, as William’s attorney-in-fact, to transfer William’s interest in the Shelton lease to the trust. The 2014 settlement agreement did not, by transfer or waiver, vest the Shelton lease with Nancy. Designation of an attorney-in-fact through a power of attorney is one means of creating a principal-agent relationship. Nancy’s duties of performance as attorney-in-fact for William were subject to the terms of the governing document. When we interpret Nancy’s rights and duties as granted under the power of attorney, we (1) restrict the meaning of the general words in the document to the context in which they exist, and (2) strictly construe Nancy’s authority “so as to exclude the exercise of any power that is not warranted either by the actual terms used, or as a necessary means of executing the authority with effect.”

We find nothing in the power of attorney executed by William that made any transfer of the Shelton lease to Nancy. Rather, as the language and their context conclusively show, Nancy’s authority to act as attorney-in-fact merely permitted her to perform “acts as fully as [William] might do if done in [his] own capacity…” Moreover, the 2012 arbitration and award was careful to distinguish between Nancy’s responsibilities as “attorney-in-fact” for William and those in her individual capacity. Relevant here, Nancy’s obligation to transfer to the trust all of William’s working interest in the Shelton lease was expressly directed to “Nancy, acting as William H. Moore’s attorney in fact, pursuant to the Durable Power of Attorney.” That Nancy, as William’s agent, failed to fulfill her obligation to transfer the Shelton lease to the trust did nothing to contrive a personal interest in the Shelton property; nor did the settlement agreement signed in May 2014. When William died in January earlier that year, Nancy’s authority as attorney-in-fact ceased. Ergo, William’s working interest in the Shelton Lease had already passed according to his will before the 2014 agreement was signed. The 2014 settlement agreement may have granted Nancy the ability to “keep and own such real and personal property as [she] currently possess[es] without any challenge of any other party,” but no evidence in the record reflects that Nancy, individually, ever possessed any interest in the Shelton lease. We conclude, on this record, no evidence support’s  Nancy’s claimed entitlement to an interest in the Shelton lease. Because Nancy’s first, second, third, and sixth sub-issues depend on her erroneous theory that she possesses an interest in the Shelton lease, we overrule said issues.

Id. (internal citations omitted).

Photo of David Fowler Johnson David Fowler Johnson

dfjohnson@winstead.com
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…

dfjohnson@winstead.com
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