In Robins v. Robins, an ex-wife sued her ex-husband for breaching fiduciary duties regarding the sale of their former marital residence. No. 02-16-00285-CV, 2018 Tex. App. LEXIS 3534 (Tex. App.—Fort Worth May 17, 2018). The trial court entered a judgment finding that the ex-husband breached a fiduciary duty to his former wife and awarded her all the net proceeds from the sale and awarded her attorney’s fees. The ex-husband appealed, and the court of appeals reversed and rendered. The court stated:

Generally, to prove a claim for breach of fiduciary duty, a plaintiff must prove that the defendant had a fiduciary duty to the plaintiff, breached it, and thereby caused damages to the plaintiff. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017). While spouses owe fiduciary duties to one another, ex-spouses generally do not. See Solares v. Solares, 232 S.W.3d 873, 881 (Tex. App.—Dallas 2007, no pet.) (holding that “in a contested divorce where each spouse is independently represented by counsel, the fiduciary relationship terminates”); In re Marriage of Notash, 118 S.W.3d 868, 872 (Tex. App.—Texarkana 2003, no pet.) (noting that any fiduciary duty between spouses terminates upon divorce); Bass v. Bass, 790 S.W.2d 113, 119 (Tex. App.—Fort Worth 1990, no writ) (“Although marriage may bring about a fiduciary relationship, such a relationship clearly does not continue when a husband and wife hire numerous independent professional counsel to represent them respectively in a contested divorce proceeding.”) (citation omitted). Jerry therefore had no formal fiduciary duty to Rhonda as a matter of law. Rhonda contends that “[a] moral and social relationship was created when [she and Jerry] decided post-divorce not to sell the home and [to] maintain it while the children finished high school” and that “[a] fiduciary duty existed for each party to not harm the other’s fifty percent interest in the [P]roperty.” While it is true that an informal fiduciary duty may arise from a moral, social, domestic or purely personal relationship of trust and confidence, Collins v. Kappa Sigma Fraternity, No. 02-14-00294-CV, 2017 WL 218286, at *10-12 (Tex. App.—Fort Worth Jan. 19, 2017, pet. denied), no evidence in the record before us indicates that Rhonda and Jerry had that sort of relationship after their divorce; Jerry therefore also had no informal fiduciary duty to Rhonda. See Higgins v. Higgins, 514 S.W.3d 382, 389-90 (Tex. App.—San Antonio 2017, pet. denied). We sustain Jerry’s first issue.

Id. The court also held that as attorney’s fees are not available for a breach-of-fiduciary-duty claim, the trial court erred in awarding the ex-wife her fees.

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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