Robbins v. Robbins

• Decision Date: 17 May 2018
• Docket Number: NO. 02-16-00285-CV,02-16-00285-CV
• Citation: 550 S.W.3d 846
• Parties: Jerry Shad ROBBINS, Appellant v. Rhonda Garrett ROBBINS, Appellee
• Court: Texas Court of Appeals

550 S.W.3d 846

Jerry Shad ROBBINS, Appellant

v.Rhonda Garrett ROBBINS, Appellee

NO. 02-16-00285-CV

Court of Appeals of Texas, Fort Worth.

DELIVERED: May 17, 2018

Perry J. Cockerell, Adkerson, Hauder, & Bezney P.C., Dallas, TX., for Appellant.

Allison Bedore, Law Office of Allison Bedore, Weatherford, TX, for Appellee.

PANEL: WALKER, MEIER, and PITTMAN, JJ.

MARK T. PITTMAN, JUSTICE

Appellant Jerry Shad Robbins appeals from the trial court's judgment finding that he breached a fiduciary duty to his former wife Rhonda Garrett Robbins, awarding her all the net proceeds from the sale of what remained of the former marital residential property (the Property), and ordering him to pay her attorney's fees of $2,500. We reverse and render judgment that Rhonda take nothing.

I. PROCEDURAL HISTORY

A. Rhonda and Jerry Divorced in 2004.

Rhonda and Jerry divorced in June 2004. The agreed decree did not characterize the Property but contained the following provisions concerning it:

Provisions Dealing with Sale of Residence

IT IS FURTHER ORDERED AND DECREED that the property and all improvements located thereon at all that certain lot, tract or parcel of land lying and being situated in Parker County, Texas and being Lot 7, Block 2 of the Spring Branch Acres Addition Subdivision, and having a street address of 825 Highway 199 East, Springtown, Parker County, Texas shall be sold under the following terms and conditions:

1. The parties shall list the property for sale with Jim Bransom, Dunn and Elam Realtors.

2. The property shall be sold for a price that is mutually agreeable to Petitioner and Respondent. If Petitioner and Respondent are unable to agree on a sales price, on the application of either party, the property shall be sold under terms and conditions determined by a court-appointed receiver.

3. Petitioner shall continue to make all payments of principal, interest, taxes, and insurance on the property until the property is sold and Petitioner shall have the exclusive right to enjoy the use and possession of the premises until closing. All maintenance and repairs necessary to keep the property in its present condition shall be paid by Petitioner.

4. The net sales proceeds (defined as the gross sales price less cost of sale and full payment of any mortgage indebtedness or liens on the property) shall be distributed as follows: each party shall receive fifty percent of the net sales proceeds.

B. In 2016, Rhonda Filed a Motion to Enforce the Divorce Decree and a Breach-of-Fiduciary-Duty Claim.

Almost twelve years after the divorce, in March 2016, Rhonda filed a motion for enforcement, claiming that Jerry failed to comply with the divorce decree's provisions for dealing with the sale of the Property and failed to cooperate with the selling of the Property and seeking that he be held in contempt. She also sought clarification of the decree if any part of it was found not to be "specific enough to be enforced by contempt," brought a breach-of-fiduciary-duty claim against Jerry, and requested attorney's fees, expenses, costs, and interest.

In support of her enforcement-by-contempt claim, Rhonda alleged,

• She and Jerry had mutually agreed not to sell the Property until their children had graduated from high school;

• In 2012, the house sustained fire damage, and the insurance company sent Jerry and Rhonda checks to pay off their mortgage loan and for damages to the Property;

• One check was made payable to both Jerry and Rhonda in the amount of $56,385.36;

• Jerry "willfully withheld the proceeds" from Rhonda and spent the money on illegal drugs;

• Jerry forged Rhonda's name on a $13,444.33 insurance check made payable to both, and she received less than half of the proceeds only after litigation;

• She was awarded $3,000 in attorney's fees in that case, but Jerry never paid them;

• Since Jerry kept the insurance proceeds, she could not pay to repair the Property;

• The City of Springtown ultimately condemned the Property and charged Rhonda for the demolition and house removal expenses, which she paid—$4,150; and

• Jerry was responsible for the loss in the Property's value: $109,060.00 in 2011 to $38,000 in 2016, a $71,060.00 drop.

Rhonda requested that Jerry be ordered "to fully cooperate in the sale of the [P]roperty, including but not limited to signing any and all documents necessary for the sale," and that the Property be sold with all proceeds to be awarded to her.

In her breach-of-fiduciary-duty claim, Rhonda alleged,

14. Respondent had a fiduciary duty to protect Movant's interest and not commit any acts which would damage the community property until it was sold. Respondent plotted and carried out a plan to actually defraud Petitioner. Respondent committed actual fraud by withholding disbursements from the insurance company in regards to the property from Petitioner. His willful actions lead to the property not being properly restored and led to the property decaying, having to be bulldozed, and a significant decrease in the value of the property in the amount of $71,000.00. Respondent squandered the money that was intended to be used to fix the community property on illegal drugs. Respondent has spent and wasted community funds at a time when Respondent knew or should have known that Petitioner would have objected to these expenditures. Movant should therefore receive all the proceeds from the sale of the property located at 825 E. Highway 199, Springtown, Texas.

C. Jerry Filed an Answer, and the Trial Court Granted His Motion to Personally Appear at Trial.

In his pro se answer, Jerry alleged,

I do have receipts for materials and construction related work done by reputable subcontractors, vendors etc. for the residence located at 825 Hwy 199E. Springtown, TX. 76082. Said work was done after the fire that destrayed said residence. Both parties Jerry Shad Robbins and Rhonda key Ball agreed to rebuild said residence and Mr. Robbins was to be in charge of the Subcontractors and related fees associated with the construction. The paper trail will attest to such.

Jerry further stated,

• He possessed real estate contracts that Rhonda had cancelled because she would not agree to sell the Property;

• The receipts and contracts were in storage;

• The City Council had approved rebuilding the house on the Property; and

• The house under construction was torn down while he was in jail.

Jerry filed a motion for a bench warrant,¹ which the trial court granted, and Jerry appeared personally at trial.

II. THE BENCH TRIAL

A. The Trial Court Resolved Introductory Matters Before Hearing Evidence.

Jerry had filed a motion for continuance before trial, and at trial, he indicated that he was not ready to proceed because he did not have the necessary documentary evidence. The trial court "proceed[ed] anyway." At the trial court's direction, Rhonda's lawyer specified Jerry's alleged contemptible conduct: "We are asking that the court hold [Jerry] in contempt for failing to cooperate with the sale of the [P]roperty." The trial court warned that the lawyer would "have to be very specific in that regard." The trial court also pointed out that the breach-of-fiduciary-duty claim was not an enforcement claim but would, if successful, result in a civil judgment. Rhonda's lawyer spelled out the relief requested—reimbursement for Rhonda's "portion of the marital property that was damaged due to [Jerry]'s actions" and attorney's fees. Finally, at Rhonda's lawyer's request, the trial judge took judicial notice of the documents already on file.

B. Rhonda's Testimony Tracked Her Pleadings.

Rhonda testified,

• She and Jerry divorced on June 28, 2004;• The decree specified that they were to sell the Property and split the net proceeds;

• Instead, she and Jerry decided that she and their two daughters would continue to live on the Property until the younger daughter graduated from high school;

• Their younger daughter graduated in 2010;

• Rhonda moved out in 2010, and Jerry moved in;

• Rhonda and Jerry had agreed that "he would move in" and "get the house ready for sale," but "it [n]ever happened";

• The house caught on fire in May 2012;

• The house was still insured in both Jerry's and Rhonda's names because they both still owned the Property;

• She and Jerry had agreed to rebuild the house;

• She and Jerry "had agreed ... to have double signatures at the bank" and "with everything that came in, [they] were both to sign and agree to every single penny that went out";

• The insurance company issued "a couple different checks" to pay for the damage to the house;

• She signed at least one of the insurance checks;

• One of the checks was for $56,385.49;

• Rhonda never saw that check, so she called Wells Fargo, who had issued the check from the restricted escrow account;

• Rhonda learned from Jerry's bank that the check had been deposited into his account;

• Rhonda was not a signer on that account and therefore had no access to the money;

• The insurance company also issued Jerry and Rhonda a check for $13,443.33 "to fix up the [P]roperty";

• It was deposited into Jerry's account without her signature as well;

• On the day Jerry went to the bank to move the money into a construction account, she had his account seized;

• In a civil case regarding the $13,443.33 check, the court found that she was entitled to $5,916.07, court costs, and $3,000 in attorney's fees;

• The remaining funds from that check went to the bank's lawyer;

• Jerry pled guilty to forging her name on the check;

• Rhonda was not aware that the $13,443.33 check was for his personal contents in the house;

• Jerry "had hired someone to start ... fixing the house";

• A little construction had begun on the house;

• A check had been written from Jerry's account to a specific person for demolition work;

• She was not aware of cash payments to that man or of other payments for dumpsters and hauling off lumber and materials;

• She was not aware of the contractors hired to clean the bricks after the fire;

• Jerry and Rhonda agreed after the fire not to sell the Property to

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