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.