Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 397th Judicial District Court Grayson County,
Texas Trial Court Cause No. CV-15-0126
Justices Francis, Brown, and Stoddart
Ethel Maudette Leake ended a ten-year affair with John
Leonard Markl, John and his wife, Debra, sued her for various
causes of action, including breach of fiduciary duty. At the
close of the Markls' evidence in the ensuing jury trial,
the trial court granted Ethel's motion for directed
verdict on the claim. On appeal, the Markls contend the
ruling was error. We affirm.
had been married to Debra for several years when he met Ethel
in 2004 at the restaurant where she worked. The two became
friends. John helped her repair the windshield on her car and
then began doing work on her house. While working on her
house, the two began an affair.
after, Ethel quit her job at the restaurant for a
lower-paying job, and John put her on his company's
payroll so she could "make ends meet." During the
course of their ten-year relationship, they tried to conceive
a child, discussed buying property together, traveled
together, and shared intimate details of their lives. Ethel
made him the beneficiary in her will, and both took out life
insurance policies for the benefit of the other.
2008, John had made significant repairs and upgrades to
Ethel's house and a second house she inherited from her
mother. John testified he spent about $50, 000 making repairs
to both houses. As they planned a "more permanent
relationship, " he said they began referring to
Ethel's house as "our house" and planned to
live there together. According to John, Ethel knew she was
not paying for his work because he had an interest in the
property and said more than a dozen times that if they ended
their relationship, he would get back his investment. He
explained that Ethel kept the property in her name only so
Debra could not "attach herself to it in any way"
once the marriage ended.
John agreed he would leave Debra at some point and marry
Ethel, John was reluctant to end his marriage because Debra
"hadn't done anything wrong" and Ethel
"was just too much drama." In July 2011, John left
Debra and moved in with Ethel after Ethel gave him an
ultimatum but because he was so upset and distraught and felt
guilty, he went back to his wife after three days. John said
he realized at that point, Ethel wanted money and security
and the "satisfaction . . . of getting a married man to
leave his wife for her."
John testified he and Ethel's relationship was based on
"trust, " he also said Ethel threatened to tell
Debra about their relationship "if she didn't get
what she wanted." John said they "fought a
lot" and often talked about ending their relationship,
but they made up because of "this stalemate" dating
back to early in the relationship: "If I wanted out, she
was going to tell my wife everything and I was going to lose
her, and lose my wife, and my wife was going to take me for
everything I had. And if she wanted out, I'd tell her,
okay, fine, but we've got to settle up on the
property." He said their threats to each other
"pretty much put a - - blanket on the fire."
2013, John was renting the house Ethel inherited from her
mother to store some of his belongings. John's nephew
needed help, and John arranged for him to move into the
house. John paid the rent, which he gave to Ethel. In May
2014, Ethel began an affair with John's nephew (whom she
subsequently married). John became suspicious, but Ethel
denied his accusations. John and Ethel's relationship
came to an end in October 2014 when Ethel accused John of
assault. She told police he broke down her door and attacked
her. John said he broke in to prevent her from committing
suicide, which he said she had attempted on many other
occasions. Ethel's sister-in-law arrived during the
incident, and Ethel left with her and called the police. John
went home and told his wife and "briefly explained what
happened." John was ultimately charged with four
felonies. He pleaded guilty to burglary with intent to commit
assault, and the remaining charges were dismissed.
months after the breakup, the Markls sued Ethel for breach of
fiduciary duty, arguing that Ethel's breach deprived them
of the community funds invested in Ethel's property. They
also alleged fraud, conversion, and promissory estoppel.
Ethel denied the allegations, raised affirmative defenses,
and counterclaimed for assault, negligence, and intentional
infliction of emotional distress.
trial, the Markls wanted the return of the investment on the
two houses that John made improvements on. After they
presented their case, Ethel moved for a directed verdict on
their claims. The trial court granted the motion as to the
breach of fiduciary duty claim, saying there was "no
authority that somebody in an extramarital relationship"
in Texas has a valid claim for breach of fiduciary duty. The
jury subsequently found against the Markls on their claims
for fraud, promissory estoppel, and conversion. In addition,
the jury found John assaulted Ethel but awarded zero damages.
The Markls appealed, challenging only the trial court's
ruling to direct a verdict on their breach of fiduciary duty
court may direct a verdict if no evidence of probative force
raises a fact issue on the material questions in the suit.
See Szczepanik v. First S. Trust Co., 883 S.W.2d
648, 649 (Tex. 1994) (per curiam). We review a trial
court's decision to grant a motion for a directed verdict
under the legal sufficiency standard of review. Helping
Hands Home Care, Inc. v. Home Health of Tarrant Cnty.,
Inc., 393 S.W.3d 492, 515 (Tex. App.-Dallas 2013, pet.
denied); see City of Keller v. Wilson, 168 S.W.3d
802, 823 (Tex. 2005). We credit evidence favoring the
non-movant if reasonable jurors could and disregard contrary
evidence unless reasonable jurors could not. City of
Keller, 168 S.W.3d at 827. We consider all the evidence
in a light most favorable to the nonmovant, and we resolve
all reasonable inferences that arise from the evidence
admitted at the trial in the nonmovant's favor. King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.
viable breach of fiduciary duty claim requires the following
proof: (1) a fiduciary relationship between the plaintiff and
the defendant, (2) a breach of the fiduciary duty to the
plaintiff, and (3) injury to the plaintiff (or benefit to the
defendant) as a result of the breach. Flagstar Bank, FSB
v. Walker, 451 S.W.3d 490, 499 (Tex. App.-Dallas 2014,