In Walker v. Walker, a son sued his father and brother regarding the ownership of a beach house. No. 14-16-00357-CV, 2017 Tex. App. LEXIS 2742 (Tex. App.—Houston [14th Dist.] March 30, 2017, no pet. history). The son alleged that the father made an oral gift of the property to the son. The son alleged that the father wrongfully deeded the same property to the brother at a later date. The son and his wife brought suit to quiet title based on a claim of oral parol gift of realty and also asserted claims for damages based on promissory estoppel, unjust enrichment, and breach of fiduciary duty. The trial court granted summary judgment for the defendants, and the plaintiff appealed.

Regarding the breach of fiduciary duty claim, the court of appeals discussed whether the brother owed the son a fiduciary duty:

[The] law also recognizes that certain relationships may give rise to an informal fiduciary duty based on “a moral, social, domestic or purely personal relationship of confidence and trust.” Informal fiduciary duties will not be created lightly. Some relationships involving trust and confidence simply do not rise to the stature of a fiduciary relationship. Subjective trust of one person in another is also not sufficient to create a duty. “[A] confidential relationship is a two-way street: ‘one party must not only trust the other, but the relationship must be mutual and understood by both parties.’” Family relationships may give rise to an informal fiduciary duty between family members where there is sufficient evidence of a relationship of trust and confidence. A mere family relationship, however, by itself is generally not sufficient. We will examine the actualities of the relationship between the parties in determining the existence of a confidential fiduciary relationship. Where there is no evidence to establish the relationship or the facts are undisputed, a court may determine the question as a matter of law.

Id. at * 30-31. The court reviewed the evidence and determined that it did not support any fiduciary duties. There was no evidence that the wife and brother-in-law had any relationship of trust and confidence: “There is no evidence showing that she sought Layne’s advice or guidance on any matter, nor evidence of any other circumstances suggesting a relationship of trust and confidence between them.” Id. The court also held that there was no evidence showing that the son was often guided by the judgment or advice of the brother, or that the son put any particular trust and confidence in the brother with regard to the son’s financial decisions. Nor was there any evidence indicating that the brother recognized that the son was relying on him to the extent that a fiduciary duty arose. Although the son argued generally that there was a history of the brother handling “family transactions,” he did not point to any evidence establishing that he relied upon or put his confidence in the brother with regard to any specific “family transactions.”

The court also held that even though the son and brother inherited real property and owned it as cotenants, that cotenants in real property do not ordinarily owe fiduciary duties to each other. Id. (citing Scott v. Scruggs, 836 S.W.2d 278, 282 (Tex. App.—Texarkana 1992, writ denied) (“Absent a special relationship there is no fiduciary obligation owed by one cotenant to the others.”)). Therefore, the court affirmed the summary judgment dismissing the breach of fiduciary duty claim.

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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