In Tex v. Iom, a former employer sued a former employee based on a covenant not to compete and breach of fiduciary duty and sued the new employer for tortious interference. No. 12-14-00254-CV, 2016 Tex. App. LEXIS 7317 (Tex. App.—Tyler July 12, 2016, no pet. history). The defendants filed a no-evidence motion for summary judgment, and regarding breach of fiduciary duty, the motion stated: “Plaintiff presents no evidence of breach of fiduciary duty while employed.” It later stated: “Plaintiff also brings a cause of action for breach of fiduciary duty, yet again does not bring forth any evidence of such a breach during the time of his employment (Exhibit 1). Defendant seeks summary judgment that Defendant did not breach his fiduciary duty while employed at Plaintiff.” The trial court granted the motion, and the plaintiff appealed.

The court of appeals noted that a no-evidence motion for summary judgment must state the elements as to which the movant contends there is no evidence. The court held that “[t]he motion must be specific in challenging the evidentiary support for an element of a claim or defense; conclusory motions or general no evidence challenges to an opponent’s case are not authorized.” Further, the court noted that if the motion is not specific in challenging a particular element, the motion is legally insufficient as a matter of law and may be challenged for the first time on appeal. Reviewing the motion in the case, the court held that it was too conclusory:

Rather, Pierce makes only a general argument that NeuroTex has no evidence to support its breach of fiduciary duty cause of action. Thus, we hold that Pierce’s no evidence motion is legally insufficient with regard to breach of fiduciary duty and the trial court’s order granting Pierce’s no evidence motion for summary judgment on that cause of action was erroneous.

Id. at *50.

Interesting Note: No-evidence summary judgment motions can only be filed when a party’s opponent has the burden of proof on a claim or defense. Normally, a plaintiff has the burden of proof on a breach of fiduciary duty claim, and a defendant can properly file a no-evidence motion on that claim. However, there are circumstances – where the fiduciary enters into a transaction with the principal – where the burden is on the defendant/fiduciary to establish that the transaction is fair. In that circumstance, a defendant should not be able to file a no-evidence motion and should have to file a traditional motion for summary judgment. Further, Texas Rule of Civil Procedure 166a(i) only states that a no-evidence motion has to be specific regarding the elements of a claim that are being challenged. So, a movant should not have to challenge any particular underlying facts. Therefore, the opinion’s unnecessary statement that a “motion must be specific in challenging the evidentiary support for an element,” is doubtful. For example, a no-evidence motion that states “The plaintiff has no evidence to support the element of the existence of a fiduciary relationship of his claim for breach of fiduciary duty” should be sufficient. Of course, an attorney should draft a no-evidence motion to be persuasive, and a persuasive motion will have more detail and argument than the example given.

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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