In Janine v. McAfee, parties fought over who should be the administrator of an estate. No. 01-20-00717-CV, 2021 Tex. App. LEXIS 10101 (Tex. App.—Houston [1st Dist.] December 23, 2021, no pet. history). A man and woman divorced in 1983 and executed a post-divorce settlement agreement that purported to divide their assets. The man died in 1997, and his sister was his executor. The woman died in 2011, and her daughter became the executor of her estate. The daughter filed suit on behalf of the woman’s estate regarding the ownership of certain assets. The sister of the man was elderly, and her daughter became the successor administrator of his estate. Then the man’s granddaughter intervened in the man’s estate and filed a motion to vacate the appointment of executrix’s daughter as successor administrator and filed a no-evidence motion for summary judgment, alleging that she should be appointed the successor administrator. The trial court denied both motions, and an appeal followed.

The court of appeals held that it did not have jurisdiction over either order. Regarding jurisdiction, the court held:

Probate proceedings, however, present “an exception to the ‘one final judgment’ rule[.]” “[I]n such cases, ‘multiple judgments final for purposes of appeal can be rendered on certain discrete issues.'” This exception reflects the necessity of reviewing “‘controlling, intermediate decisions before an error can harm later phases of the proceeding[.]'” The Texas Supreme Court in De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) reaffirmed the test for finality of orders in probate proceedings first adopted in Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995). The Court in De Ayala explained: “If there is an express statute, such as the one for the complete heirship judgment, declaring the phase of the probate proceedings to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.”

Id. Regarding the summary judgment motion, the court held that the denial of the motion did not dispose of an issue:

The probate court ultimately held Alma “[had] raised genuine issues of material fact and that Contestant, Natalie Janine Garnes’s No-Evidence Summary Judgment Motion should be denied.” Thus, because the probate court held genuine issues of material fact exist, the issue concerning Natalie’s qualification to serve as independent administratrix of Carl’s estate has not been finally adjudicated. Indeed, there is no indication in the record that the probate court has ruled on Natalie’s Application to Appoint.

Id.

Regarding the motion to vacate, the court similarly held that the order did not dispose of an issue:

While the probate court’s denial of Natalie’s Motion to Vacate means Alma cannot be removed due to any alleged lack of notice, a question remains over whether Alma should be removed and Natalie appointed in her place based on Natalie’s claim she has a superior right to be appointed as successor dependent administratrix of Carl’s estate under Sections 304.001 and 361.103 of the Texas Estates Code and Alma’s contention Natalie is unsuitable to serve, an issue that was not resolved by the probate court’s ruling on Natalie’s Motion for Summary Judgment.

Id.

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