In Neurodiagnostic Tex, L.L.C. v. Pierce, the court reviewed a summary judgment entered regarding an employer’s breach of fiduciary duty claim. No. 12-14-00254-CV, 2016 Tex. App. LEXIS 11754 (Tex. App.—Tyler October 31, 2016, no pet. history). The court stated the following on the drafting of no-evidence motion:

A no evidence motion for summary judgment must state the elements as to which the movant contends there is no evidence. The 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. If a no evidence motion for summary judgment is not specific in challenging a particular element or is conclusory, the motion is legally insufficient as a matter of law and may be challenged for the first time on appeal.

The defendant stated in its motion: “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 court of appeals concluded that this was not sufficiently precise: “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.”

Interesting Note: Texas Rule of Civil Procedure 166a(i) states: “a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.” Tex. R. Civ. P., 166a(i). “Breach” is an element of a breach of fiduciary duty claim. The defendant in the Pierce case stated that the plaintiff: “does not bring forth any evidence of such a breach during the time of his employment.” The motion should have been sufficient to place the burden of production (burden to produce evidence) on the non-movant to create a genuine issue of material fact on whether there was a breach of a fiduciary duty.