In McEndree v. Volke, a beneficiary sued a trustee, her former step father, for breaching fiduciary duties. No. 11-19-00351-CV, 2021 Tex. App. LEXIS 7856 (Tex. App.—Eastland September 23, 2021, no pet. history). The trust was to hold Social Security Administration benefits. Though the trust was created in 1997, the beneficiary was not aware of it until 2016 because the trustee never told her about it, never made a distribution, and never provided any accounting information. The beneficiary filed a traditional motion for summary judgment based on deemed admissions and on the affidavit. The trial court granted the motion, and the trustee appealed. The court of appeals reversed, holding that the beneficiary did not meet her summary judgment burden of proof. Regarding the affidavit, the court stated:

In his affidavit, Volke stated that he created the Trust “primarily to administer [the Social Security] benefits” and, after the Trust’s formation, he “forwarded every single survivor benefits check to [Appellant] to deposit in the Trust account on [Appellee’s] behalf.” Volke further stated that “[t]here is no doubt” that Appellant: (1) “received all these survivor benefits checks commencing in June 1998 until 2011,” (2) “had actual, subjective awareness that the survivor benefits checks needed to be deposited in the Trust for [Appellee’s] benefit,” and (3) “knew objectively that failure to deposit those survivor benefits checks into the Trust would pose an extreme degree of risk of financial harm to [Appellee].” We conclude that Volke’s, and necessarily Appellee’s, three assertions are conclusory.

Id. The court held that simply stating that the checks were “forwarded” is not sufficient to be entitled to a presumption of receipt due to mailing. Further, “As to the second and third assertions recited in Volke’s affidavit, in the absence of any facts in his affidavit to support the conclusion that Appellant received the checks as claimed, there can be no support for the conclusions that Appellant had any awareness, whether subjective or objective, of his responsibility to deposit such checks in the Trust account.” Id. The court then reviewed the deemed admissions and held that they were not sufficient to carry the burden either. The court reversed and remanded for further proceedings.

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