In Denson v. JPMorgan Chase Bank, N.A., Sandra Denson went to her bank to deposit $730 when a $50 bill became temporarily stuck in the cash counting machine, causing the teller to miscount the amount of the deposit as $680. No. 01-19-00107-CV, 2020 Tex. App. LEXIS 9412 (Tex. App.—Houston [1st Dist.] December 3, 2020, no pet. history). Denson then cursed at the teller, calling her “stupid” and a “dumb bitch,” told her that she needed her “ass whipped,” and suggested that the teller needed to be retrained and that the teller was “going to keep that $50 for lunch.” The missing bill was discovered moments later, and Denson’s account was immediately credited with the full deposit amount of $730. In light of this and previous documented incidents during which Denson verbally abused bank employees, the bank decided to end its relationship with Denson and close her accounts. Denson then sued the bank for numerous claims, including breach of fiduciary duty. The trial court awarded summary judgment for the bank, and Denson appealed. The court of appeals affirmed:
[JPMorgan] asserted that it owed no duty to Denson regarding the accounts, which were general deposit accounts, because the relationship was only one of creditor/debtor. It further argued that the DAA authorizes the very actions that Denson claims constitute a breach of fiduciary duty. The burden shifted to Denson to come forward with more than a scintilla of evidence for each challenged element. Denson’s summary judgment response and “reply in opposition” wholly failed to address JPMorgan’s arguments. She did not address the challenged elements or point to any evidence supporting any of the challenged elements.… In her brief on appeal, Denson addresses only one of the challenged elements, stating in a conclusory manner that “the Bank owed Sandra Denson and Robert Denson a fiduciary duty.” As noted above, however, Denson did not make this argument to the trial court below. Denson also bore a burden in the trial court to identify evidence creating a fact issue on each challenged element of her breach of fiduciary duty claim. Having failed to carry the burden, she may not now make the argument for the first time on appeal… Having failed to carry her burden in response to JPMorgan’s no-evidence motion, the trial court did not err in granting summary judgment on her breach of fiduciary duty claim.