                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00151-CV


JOHN MCCRACKEN                                                   APPELLANT

                                      V.

MONOSOL RX, LLC                                                   APPELLEE


                                   ----------

           FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 342-250974-11

                                   ----------

                        MEMORANDUM OPINION 1

                                   ----------

       This is a breach of contract case.       In April 2008, Appellant John

McCracken entered into an employment agreement with Appellee MonoSol Rx,

LLC.       This agreement covered McCracken’s eligibility for annual bonus

payments, under what circumstances MonoSol would have cause to terminate




       1
       See Tex. R. App. P. 47.4.
McCracken’s employment, and the payment of severance if MonoSol terminated

McCracken’s employment for any reason other than for cause.

      MonoSol fired McCracken in March 2009.              MonoSol did not pay

McCracken severance or a bonus.        McCracken sued MonoSol for breach of

contract to recover the severance, a bonus payment for 2008, and prorated

bonus payment for 2009.        The trial court granted summary judgment for

MonoSol.

      In this appeal, McCracken asserts in four issues that the trial court erred by

granting summary judgment on his claims for severance and bonus payments, by

overruling his objections to MonoSol’s evidence, and by granting summary

judgment on his claim for statutory attorney’s fees.       Because we hold that

McCracken raised a fact question on each of MonoSol’s summary judgment

grounds, we reverse.

                                 1. Background

      MonoSol produces dissolvable film onto which prescription and over-the-

counter drugs can be incorporated. Keith Kendall is MonoSol’s chief financial

officer, and Mark Schobel is MonoSol’s president and CEO.

      MonoSol hired McCracken as senior vice president for business

development and licensing. The parties signed an employment agreement with a

two-year term. The agreement contained a provision for an annual bonus of forty

percent of McCracken’s salary upon the occurrence of certain specified

conditions.   If MonoSol terminated McCracken’s employment for cause,


                                         2
McCracken would receive only accrued compensation and benefits.                  But if

MonoSol terminated McCracken’s employment without cause, he would receive

severance payments for twelve months. The agreement’s definition of “cause”

included the “failure of [McCracken] to perform his duties, including, without

limitation, [McCracken]’s failure or refusal to follow the legitimate directions of the

Company and/or of any of the persons to whom [McCracken] reports.”

      On February 4, 2009, Kendall gave McCracken a “Cause Notice Period”

letter (cause notice) stating, “There continues to be concern about your ability to

successfully perform the responsibilities required of you.” Accordingly, MonoSol

was giving McCracken “a 30 day ‘Cause Notice Period’ as outlined by

[McCracken’s] employment contract.” The letter contained the following list of

objectives that McCracken needed to accomplish:

      •       Provide strategic direction and a selection process for SFI
      [self-funded initiative] candidates 2 and partnership targets[;]

      •     Create and execute a business development/relationship
      strategy for targeted potential partners[;]

      •     Demonstrate capability to own, direct[,]             and   execute
      establishing and binding strategic relationships[;]

      •      Own, follow up[,] and follow through on partnership activities[;]

      •      Demonstrate a viable group of active potential partnership
      opportunities that will satisfy revenue goals and are consistent with
      the strategic direction of the company[; and]

      2
        Self-funded initiatives are drugs for which MonoSol invests its own money
to fund the product’s development and partners with a pharmaceutical company
for sales and distribution of the drug.


                                          3
      •    Participate fully as a member of the leadership team of the
      company[.]

The letter did not elaborate on what these objectives involved or set out any

objective standards for measuring McCracken’s performance of them. The letter

gave McCracken thirty days to “attain an acceptable level of performance” and

stated that if he did not do so, his employment would be terminated on March 6,

2009. On March 5, Kendall gave McCracken a letter terminating his employment

as of March 6.

      McCracken sued MonoSol for breach of contract, alleging that MonoSol

fired him without cause and then failed to give him severance pay. McCracken

further asserted that even if MonoSol had cause to terminate his employment,

MonoSol breached the agreement by failing to provide him with an adequate

cure notice and period to correct deficiencies. McCracken also claimed that he

accrued but was not paid his 2008 bonus and a prorated bonus for the first

quarter of 2009.

      McCracken asserted that New Jersey law should apply and that under

New Jersey law, a duty of good faith and fair dealing is implied in employment

contracts. He claimed that MonoSol breached this duty when it failed to timely

disclose “established performance targets” for purposes of his bonus, failed to

pay his bonus, failed to give him proper notice and an opportunity to cure any

deficiencies in his work performance, and falsely claimed that his termination was

for cause.



                                        4
      MonoSol filed a response and a fifty-three page combined no-evidence

and traditional motion for summary judgment.          MonoSol asserted that its

business model depends on identifying drugs that will likely sell well and that

have the right attributes for incorporation onto the film, and then persuading

those companies to partner with MonoSol; that it had hired McCracken to

develop methods by which MonoSol could identify the optimal drugs and

pharmaceutical companies to target its marketing and which drugs were “non-

optimal targets”; and that McCracken failed to perform his job duties.

      McCracken filed a response and objections to some of MonoSol’s

summary judgment evidence. The trial court overruled McCracken’s objections

and granted MonoSol’s motion without specifying the grounds for judgment.

McCracken now appeals.

                             2. Standard of Review

      We review a summary judgment de novo. 3 We consider the evidence

presented in the light most favorable to the nonmovant, crediting evidence

favorable to the nonmovant if reasonable jurors could, and disregarding evidence

contrary to the nonmovant unless reasonable jurors could not. 4          We indulge

every reasonable inference and resolve any doubts in the nonmovant’s favor. 5 A

      3
       Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
      4
      Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009).
      5
       20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).


                                        5
defendant who conclusively negates at least one essential element of a cause of

action is entitled to summary judgment on that claim. 6

      When a party moves for summary judgment under both rules 166a(c) and

166a(i), we will first review the trial court’s judgment under the standards of rule

166a(i). 7 When reviewing a no-evidence summary judgment, we examine the

entire record in the light most favorable to the nonmovant, and, as when

reviewing traditional summary judgment, we indulge every reasonable inference

and resolve any doubts against the motion. 8 We credit evidence favorable to the

nonmovant if reasonable jurors could, and we disregard evidence contrary to the

nonmovant unless reasonable jurors could not. 9 If the nonmovant brings forward

more than a scintilla of probative evidence that raises a genuine issue of material

fact, then a no-evidence summary judgment is not proper. 10




      6
       Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see
Tex. R. Civ. P. 166a(b), (c).
      7
       Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
      8
       Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).
      9
      Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).
      10
        Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030
(2004).


                                         6
                                   3. Analysis

3.1. McCracken’s breach of contract claim based on failure to pay severance:
the no-evidence summary judgment grounds.

      We begin with McCracken’s second issue, in which he contends that the

trial court improperly granted summary judgment on his claim to recover

severance payments.        McCracken claimed that MonoSol breached the

employment agreement three different ways when it failed to pay him severance.

First, he alleged that MonoSol did not have cause to fire him. Because the firing

was without cause, MonoSol had to pay him severance under the agreement.

      Second, he argued that even if MonoSol had cause, MonoSol did not

follow the steps that had to be taken under the agreement’s notice-and-cure

provision before MonoSol could fire him for cause. He alleged that it did not

substantively comply because it did not contain a statement of the evidence on

which the determination of cause was based and that it did not comply

procedurally because he did not receive the full notice period required by the

agreement.   Thus, he argued, his firing had to be considered an involuntary

termination, thereby triggering the severance payments.

      Third, McCracken alleged that in addition to MonoSol’s breach of express

provisions of the employment agreement, it also breached an implied duty of

good faith and fair dealing. He claimed that MonoSol breached this implied duty

by failing to give him proper notice of cause for termination and an opportunity to

cure and by falsely claiming that his termination was for cause. Under this issue,



                                        7
then, we consider MonoSol’s summary judgment grounds addressing and the

evidence relevant to whether MonoSol had cause to fire McCracken, whether it

complied with the agreement’s notice provision such that the firing could be

classified as for cause, and whether it acted in bad faith in firing him.

3.1.1. MonoSol’s no-evidence summary judgment grounds relating to cause for

termination.

      MonoSol’s     no-evidence     motion     addressed    each    of   McCracken’s

allegations about its failure to pay him severance.           Regarding the cause

determination, it asserted (1) that there was no evidence that it fired McCracken

without cause; (2) that there was no evidence that it breached the implied

covenant of good faith because there was no evidence that it took any acts not

governed by the agreement that damaged McCracken; (3) that there was no

evidence that McCracken performed all his duties; and (4) that there was no

evidence that the cause determination was made in bad faith.             McCracken’s

response addressed each of these no-evidence grounds.

Whether MonoSol had cause to fire McCracken

      We turn first to the question of whether McCracken produced evidence

raising a fact issue about whether MonoSol had cause to fire him. To raise a fact

issue on this ground, McCracken’s summary judgment response relied on his

own affidavit and several attached exhibits.

      In his affidavit, he stated that he met regularly with Kendall; that in the

meetings, they discussed key projects and top priorities; and that he diligently


                                          8
executed those priorities. He engaged in business development activities such

as making telephone calls and sending emails to promote MonoSol’s products

and product development capabilities, and he also had face-to-face meetings as

listed on an attached spreadsheet. The spreadsheet showed multiple meetings

almost every month of McCracken’s employment at MonoSol.

      The affidavit stated that when Kendall expressed concerns about

McCracken’s performance, McCracken asked him questions to try to understand

Kendall’s specific concerns. Rather than providing those specifics, Kendall told

him, “I can’t fire you because I don’t like you or the way you dress.” When

McCracken again tried to elicit information about his performance problems after

he had been given the cause notice, Kendall told him, “You are an executive, you

figure it out.” And he averred that halfway through the cure period, Kendall told

him that “there would not be ‘good news’ on March 6th (the end of the ‘cure’

period), [and] that [McCracken] would not be able to ‘turn it around.’”

      McCracken averred that all employees were required to do a self-

assessment as part of their performance management process. He attached an

email that the vice president of human resources had sent to company managers

stating that employees would need to complete a self-assessment. The email

stated that this self-assessment would be needed by managers in “work[ing]

through the process of doing evaluations.” McCracken attached his two-page

self-assessment to his response. The assessment listed his actions regarding

key projects and discussed steps taken in contribution to the business as a


                                         9
whole.   McCracken offered to review that self-assessment with Kendall, but

Kendall declined.

      McCracken further asserted in his response and affidavit that he had been

told that new SFI projects were on hold for financial reasons and that before he

received his cause notice, Kendall never rescinded that earlier instruction. This

is some evidence disputing the statements in his notice that he was deficient in

“[d]emonstrating a viable group of active potential partnership opportunities” and

in “[p]rovid[ing] strategic direction and a selection process for SFI candidates and

partnership targets.” If McCracken had been told to put new projects on hold, he

could not in good faith be found to be deficient for failing to pursue new projects.

      Furthermore, McCracken stated in his affidavit that although he had been

told to put new projects on hold, in the fall of 2008, he had nevertheless started

discussing SFI initiatives again in the hopes that MonoSol could afford to restart

the program in 2009, which is evidence that he was working on this duty even

though he had been told it was not a priority. He also stated that the SFI team

was composed of members from several MonoSol functions, yet to his

knowledge no other team members had been disciplined for their involvement on

the team.

      McCracken further stated in his affidavit that “[b]ased on [his] experience

and knowledge of the industry, [he] fully performed [his] duties” under the

employment agreement.         He “diligently sought to expend the business

development opportunities” of MonoSol. He stated that he was “principally in


                                         10
charge of negotiating” a deal with KemPharm, a deal that MonoSol promoted on

its website “as a major deal,” and he was “instrumental in negotiating a smaller

international deal with Hikma.”     He also arranged to speak at an industry

conference to further publicize MonoSol’s product.

      McCracken further asserted that he has more pharmaceutical business

development experience in the industry than Schobel or Kendall. He asserted in

his response and affidavit that the limited number of deals he completed while at

MonoSol was attributable to the nature of the industry, in which deals typically

require six to nine months to mature.

      McCracken further stated that before receiving the cause notice, there

were no prior occasions in which Schobel or Kendall requested strategic direction

review, “as [his] priority was to create business development value.”            But

nevertheless, after receiving the notice, he attempted to cure what he had been

told in the notice was a deficiency in his performance.            He prepared a

presentation (which he attached to his affidavit) to review strategy and discuss

new product opportunities.      He also continued his work at SFI meetings,

presented a list of “viable targets,” participated fully at leadership team meetings,

and continued work on finalizing the KenPharm relationship.

      McCracken also stated in his affidavit that MonoSol had funding problems

while he worked there, to the extent that the company announced a hiring freeze

in the fall of 2008. In support of his statements, he attached the minutes from an

October 2008 leadership team meeting.


                                         11
      The evidence produced by McCracken, viewed in the light most favorable

to him, 11 is some evidence that when MonoSol gave McCracken the cause

notice, he had been performing his job duties, that Kendall did not like him and

wanted to fire him for reasons unrelated to his performance, and that Kendall

was not willing to objectively evaluate McCracken or help him improve his

performance. This evidence raises a fact question about whether McCracken

was fired for cause and thus whether MonoSol breached the express term of the

employment agreement when it did not pay him severance. Accordingly, the trial

court should not have granted no-evidence summary judgment for MonoSol on

McCracken’s severance claim on the ground that McCracken was fired for cause.

New Jersey contract law and whether MonoSol acted in bad faith regarding

McCracken’s attempt to cure

      We next consider McCracken’s evidence relating to whether, if MonoSol

did have cause to fire McCracken, it acted in bad faith with respect to his efforts

to cure his performance deficiencies.        McCracken alleged that MonoSol

breached an implied term of good faith because it did not give him a fair

opportunity to cure any deficiencies in his performance. MonoSol argued in its

motion that there was no evidence that it breached the implied covenant of good

faith because that claim cannot be based on any acts governed by the

agreement, and there was no evidence that MonoSol did anything with respect to


      11
        See Sudan, 199 S.W.3d at 292.


                                        12
McCracken’s employment that was not governed by the agreement.                  We

therefore must first look at what New Jersey law says about the implied covenant

of good faith.

New Jersey law on implied covenants

       In New Jersey, every contract contains an implied term of good faith and

fair dealing. 12 The implied covenant of good faith means that “‘neither party shall

do anything [that] will have the effect of destroying or injuring the right of the

other party to receive the fruits of the contract.’” 13

       While this implied covenant does not override the agreement’s express

terms, a party may perform the contract in a manner that breaches the implied
                                                                                 14
covenant even though it complies with the contract’s express terms.

Accordingly, “‘a party to a contract may breach the implied covenant of good faith

and fair dealing in performing its obligations even when it exercises an express

and unconditional right to terminate.’” 15

       Under New Jersey law, a plaintiff may not recover on both a claim that

some act of the defendant breached the implied covenant and a separate claim


       12
           Wilson v. Amerada Hess Corp., 773 A.2d 1121, 1126 (2001).
       13
       Wood v. New Jersey Mfrs. Ins. Co., 21 A.3d 1131, 1140 (2011) (quoting
Kalogeras v. 239 Broad Ave., L.L.C., 997 A.2d 943 (2010)).
       14
           Wilson, 773 A.2d at 1126.
       15
            Id. (quoting Sons of Thunder, Inc. v. Borden, Inc., 690 A.2d 575, 575
(1997)).


                                             13
that the act breached an express term of the agreement. For that reason, if a

factfinder determines that an act of the defendant has breached an express term,

it should not then be asked if the same act further constitutes a breach of the

implied covenant. 16 A plaintiff may, however, plead alternative claims of both

breach of the express terms of the contract and breach of the implied covenant, 17

as McCracken did in this case.

      MonoSol asserts that under the New Jersey case Wade v. Kessler

Institute, a plaintiff may assert an implied covenant claim based on an

employment contract only when the employer complies with the contract and also

engages in some act outside of or not governed by the contract that deprives the

employee of the expectation arising from the contract. We agree that under

Wade, an implied covenant claim cannot be sustained once the factfinder finds a

breach of the contract’s express terms. But we disagree with MonoSol to the

extent that it may be arguing that under Wade, if it followed the employment

agreement’s express terms regarding McCracken’s termination and took no step

that was not in compliance with the agreement’s literal terms, it cannot be liable

for a breach of the implied covenant.

      MonoSol also argues that under Wade, an implied covenant claim cannot

require interpretation of an express term of the agreement.      Wade does not


      16
       Wade v. Kessler Inst., 798 A.2d 1251, 1262 (2002).
      17
       Id. at 1263.


                                        14
contain language to that effect. And we decline to read Wade as concluding that

if a court must interpret a term in order to determine the defendant’s liability, then

the plaintiff is really asserting a breach of that express term, and therefore the

plaintiff may not raise a claim based on the implied covenant. Contract terms

may need to be interpreted in an implied covenant claim, for example, in order to

ascertain the intent of the parties. 18

        We do agree that if a plaintiff asks the court to interpret an express term of

the contract in order to find that the defendant breached that term, then the

plaintiff’s claim is not for breach of the implied covenant—with the caveat, of

course, that the plaintiff may plead in the alternative, as McCracken did in this

case.

Applying New Jersey law to the facts of this case

        The evidence produced by McCracken was sufficient to raise a question of

fact about whether MonoSol acted in good faith with respect to McCracken’s

        18
         See Wilson, 773 A.2d at 1130. The Wilson court stated that in
considering the claim for breach of the implied covenant, “the parties’ bargain as
expressed in the contract” must be respected and that it is a breach of the
implied covenant for a party to use discretionary authority given to it in a contract
to set prices “if that party exercises its discretionary authority . . . with the
objective of preventing the other party from receiving its reasonably expected
fruits under the contract” because

        [s]uch risks clearly would be beyond the expectations of the parties
        at the formation of a contract when parties reasonably intend their
        business relationship to be mutually beneficial. They do not
        reasonably intend that one party would use the powers bestowed on
        it to destroy unilaterally the other’s expectations without legitimate
        purpose.


                                          15
opportunity to cure. The deficiencies listed in the cause notice did not include

objectively measurable performance metrics.        When McCracken produced

evidence that when he asked for a better explanation about what he needed to

do to cure, Kendall refused to elaborate. McCracken was told that one of his

deficiencies was that he had failed to do work relating to SFIs, but he produced

evidence that he had been told to put those projects on hold. He produced

evidence that Kendall did not like him, that Kendall had made up his mind by

mid-February that McCracken would be terminated at the end of the cure period

regardless of his performance during the rest of the cure period, and that

MonoSol had funding problems resulting in its putting SFI projects on hold,

suggesting that it would be in MonoSol’s interest to find a way to avoid paying

McCracken severance.

      This evidence is some evidence that even if MonoSol had cause to

determine that McCracken had not been adequately performing his job duties, it

acted in bad faith by depriving him of an opportunity to cure, thereby depriving

him of the right to receive the fruits of the employment agreement. 19 We sustain

this part of McCracken’s second issue.

3.1.2. The contents of the cause notice and the length of the cure period: the
no-evidence summary judgment grounds.

      McCracken alleged that MonoSol breached the employment agreement by

not including in the cause notice a description of the evidence on which MonoSol

      19
       See Wood, 21 A.3d at 1140.


                                         16
relied in making its cause determination, as was required by the agreement. He

also alleged that he was not giving a full opportunity to cure.

      MonoSol asserted as a no-evidence ground that there was no evidence

that its cause notice failed to comply with the employment agreement. It also

asserted that there was no evidence that it failed to give McCracken the full cure

period required by the agreement.

      On appeal, McCracken argues that he produced sufficient evidence to

raise a fact issue on these grounds. But if MonoSol had no cause to terminate

McCracken’s employment, then it breached the agreement, regardless of

whether MonoSol’s notice letter and cure period met the technical letter of the

agreement.    Accordingly, because we have held that McCracken produced

sufficient evidence to defeat MonoSol’s right to no-evidence summary judgment

on the question of whether it had cause to fire him and whether it acted in good

faith regarding his efforts to cure any deficiencies, we do not need to address this

part of McCracken’s second issue.

3.1.3. Other no-evidence grounds

      We now address MonoSol’s inclusion in its no-evidence summary

judgment motion of grounds based not on an alleged lack of evidence to support

an element of McCracken’s claims but on grounds that McCracken’s claims were

barred on pure legal grounds.

      A no-evidence motion is a proper vehicle for obtaining judgment on a claim

that would generally involve a question of fact but, due to a lack of evidence, the


                                         17
trial court can determine the issue as a matter of law. 20 But it is an unsettled

question in Texas as to whether a no-evidence summary judgment may be

based, not on a lack of evidence, but instead on a pure question of law, such as

the interpretation of an unambiguous contract or a statute. Because such a case

turns solely on the trial court’s interpretation of the contract or statute at issue,

which is a question of law, no evidence presented by the nonmovant will affect

the trial court’s determination of the movant’s right to summary judgment. 21 The

question of whether a no-evidence summary judgment motion may be based on

pure questions of law is one on which courts of appeals disagree. 22


      20
        See Park v. Mem’l Health Sys. of E. Tex., 397 S.W.3d 283, 293 (Tex.
App.—Tyler 2013, pet. denied) (citing Tex. R. Civ. P. 166a(i) and holding that
“[b]ecause there is no evidence that Memorial’s actions caused Park’s damages,
Memorial is entitled to summary judgment as a matter of law on Park’s tort
causes of action”); Dennis v. Giles Group, Inc., No. 04-07-00280-CV, 2008 WL
183062, at *6 (Tex. App.—San Antonio Jan. 23, 2008, no pet.) (mem. op.) (“In a
no-evidence motion for summary judgment, the movant must identify which
element of the plaintiff’s claim is legally insufficient as a matter of law.”).
      21
        See Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 214 (Tex.
2011) (“Where an ambiguity has not been raised by the parties, the interpretation
of a contract is a question of law.”); F.F.P. Operating Partners, L.P. v. Duenez,
237 S.W.3d 680, 683 (Tex. 2007) (“Statutory construction is a legal question that
we review de novo, ascertaining and giving effect to the Legislature’s intent as
expressed by the plain and common meaning of the statute’s words.”).
      22
       Compare Franks v. Roades, 310 S.W.3d 615, 621–22 (Tex. App.—
Corpus Christi 2010, no pet.); In re Estate of Allen, 301 S.W.3d 923, 929 (Tex.
App.—Tyler 2009, pet. denied); Harrill v. A.J.’s Wrecker Serv., Inc., 27 S.W.3d
191, 194 (Tex. App.—Dallas 2000, pet. dism’d) (all holding that no-evidence
motions may not be based on questions of law), with Means v. ABCABCO, Inc.,
315 S.W.3d 209, 211 (Tex. App.—Austin 2010, no pet.) (holding that no-
evidence motions may be based on questions of law).


                                         18
      The applicable rule of civil procedure provides,

            After adequate time for discovery, 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. The motion must state the
      elements as to which there is no evidence. The court must grant the
      motion unless the respondent produces summary judgment
      evidence raising a genuine issue of material fact. 23

      The rule’s language presupposes that the motion allowed under that part

of the rule is one that is directed at an element of a claim or defense and that the

element is one for which the nomovant would have the burden of producing

evidence at trial in order to prevail. The language of the rule excludes from its

inclusion a ground for which there could never be an issue of fact—that is, one

that would be resolved based purely and solely on a question of law.            For

example, a no-evidence ground based entirely on the interpretation of a statute

could not be defeated by any evidence produced by the nonmovant because

evidence would not be considered by the court in deciding that question of law.

At the same time, the nonmovant has no way under the rule—which mandates

that the nonmovant either produce evidence raising a fact issue or lose—to

defeat the movant’s right to judgment.       Thus, the plain language of the rule

suggests that it is not intended to be used for pure matter of law grounds.

      We agree with the Dallas, Corpus Christi, and Tyler courts of appeals that

a no-evidence motion is not the appropriate vehicle to assert a matter-of-law

      23
        Tex. R. Civ. P. 166a(i) (emphasis added).


                                        19
summary judgment ground. Under the plain language of this rule, this type of

motion must be based on an alleged lack of evidence, and its refutation must be

based on the existence of evidence. Accordingly, the trial court should not have

granted no-evidence summary judgment on the matter-of-law grounds asserted

by MonoSol in its no-evidence motion. We sustain McCracken’s second issue as

to MonoSol’s no-evidence motion.

3.1.4. For-cause determination: the traditional summary judgment grounds.

      To be entitled to traditional summary judgment on McCracken’s claim for

severance, MonoSol had to establish as a matter of law (1) that McCracken did

not perform his duties and thus MonoSol had cause to terminate his employment;

(2) that it gave him the notice required by the employment agreement for

termination for cause; and (3) that McCracken failed to cure that cause within the

thirty-day cure period provided by the agreement. We begin by looking at the

summary judgment evidence that MonoSol relied on below to establish that

McCracken did not perform his duties.

      MonoSol did not specify in this section of its motion what evidence showed

that McCracken did not perform his regular job duties. 24 But in the fact section of


      24
         See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 81 (Tex. 1989)
(stating that a summary judgment motion is insufficient if it makes only a general
reference to a voluminous record that “does not direct the trial court and parties
to the evidence on which the movant relies”); Boeker v. Syptak, 916 S.W.2d 59,
61 (Tex. App.—Houston [1st Dist.] 1996, no writ) (“A party must expressly and
specifically identify the supporting evidence on file which it seeks to have
considered by the trial court”).


                                        20
its motion, it made assertions related to McCracken’s job duties and performance,

and it cited attached evidence to support those factual assertions.      We will

therefore look at the fact section of its motion for the evidence related to

McCracken’s job performance. In that section, MonoSol described seven areas

for which it contended McCracken did not perform his duties: failure to perform

significant partner support, failure to develop and execute a comprehensive

marketing plan, failure in contract negotiation and administration, failure to

participate on the leadership team, failure to develop and execute new

methodologies regarding SFIs, failure to develop a strategy to identify potential

clients, and failure to plan for achieving the 2009 revenue goal.

      We examine each described performance area in turn.              For each

performance area, we first set out the allegations in the motion and then look at

the evidence provided to support those allegations.

      (i) Failure to perform significant partner support. The first allegation of

cause we will address was an allegation that McCracken failed to provide

“partner support.” Neither the motion nor supporting evidence relied upon for

these assertions describe what “partner support” entailed. The evidence that

MonoSol cited in the fact section related to this duty was Kendall’s and

McCracken’s deposition testimony.

      Kendall stated in his deposition that because McCracken failed to provide

partner support, Kendall had to do far more work than he should have had to

provide that support. He also stated that McCracken “had nothing to do with”


                                        21
some action relating to several pharmaceutical partners, but from the context, it

is unclear whether he meant that McCracken had nothing to do with establishing

contacts with these companies or something else.           Kendall’s testimony is

conclusory; he made mere assertions that McCracken had failed to provide

partner support without explaining what actions that duty entailed or how

McCracken failed to perform those actions.

         MonoSol also relied on portions of McCracken’s deposition in which

McCracken was asked about his role in working with four companies that had a

partnership with MonoSol: BioAlliance, Kukje, Dae Woong, and APR/Labtec.

When asked if Kendall “end[ed] up working on BioAlliance,” McCracken

answered, “He may have,” and “it appears here in the notes that we were both

providing comments on the term sheets, so it appears we were both working on

that.”    When asked if he had supported Kendall in his work with Kukje,

McCracken stated, “I recall reviewing the Kukje agreement and giving my

comments. I don’t really recall what role [Kendall] had on Kukje.” Asked about

whether Kendall had to do work to support a deal with Dae Woong, McCracken

stated, “I don’t know.”    Finally, regarding support to APR/Labtec, McCracken

stated that he and Kendall both reviewed an agreement, both had comments on

it, and “[t]here was no exclusivity on who chose to do whatever we wanted to do

on that” and his understanding was “[i]t’s fine if we worked as a team.”

         This evidence does not establish as a matter of law that McCracken failed

to provide “partner support.” It does not establish what McCracken’s duties were


                                         22
in providing partner support or what he failed to do as part of those duties.

Furthermore, the self-assessment that McCracken completed while still at

MonoSol as part of the performance review process listed actions by McCracken

in working on projects with partners.        Thus, McCracken produced evidence

raising a fact issue about the work he did on projects with partner companies.

Accordingly, the trial court could not have granted summary judgment on

McCracken’s claim for severance on the ground that McCracken failed to provide

partner support.

      (ii) Failure to develop and execute a comprehensive marketing plan.

The next basis alleged by MonoSol of McCracken’s failure to perform his job

duties was that McCracken had failed to provide it with a comprehensive

marketing plan. To support this allegation, MonoSol pointed to McCracken’s

deposition testimony, Kendall’s affidavit, Schobel’s affidavit, and some internal

MonoSol documents. MonoSol argued that this evidence established as a matter

of law that McCracken’s duties included creating a comprehensive marketing

plan, that McCracken failed to do so, and that he instead used the same “ad hoc

activities” that MonoSol had pursued before hiring him.

      The excerpt of Kendall’s affidavit referenced the cure notice memorandum

and stated only that Kendall had prepared the notice with knowledge of

McCracken’s inactions. The cause notice did not provide any explanation for

what McCracken’s role in developing a marketing plan was or how he had failed




                                        23
in that duty.    This affidavit excerpt, then, provided no evidence of how

McCracken had failed in this duty.

      In the excerpt of Schobel’s affidavit, he testified that prior to hiring

McCracken, “[s]ome of us attended a few conferences and gave a few speeches

and let friends/Industry Contacts know what we were doing.” This evidence is

some evidence of marketing activities done by MonoSol before hiring McCracken.

It does not provide any reason why activities of the same nature could not

reasonably be continued by McCracken as part of the company’s marketing

strategy. Thus, MonoSol’s assertion that McCracken continued these activities

does not indicate that McCracken was failing in his duty to market the company.

      The MonoSol document cited as support was a chart that appears to have

been attached to minutes from a September 2008 “Leadership Team Meeting.”

The chart was labeled as “the results of our discussion” and stated that it would

be used for further discussion.      The chart indicated that “John” (presumably

McCracken) was assigned the initiative “Generate Revenue,” and as part of that

initiative was listed the task “Product & Marketing strategy.”    This is some

evidence that McCracken had some responsibility for the product and marketing

strategy for MonoSol, but it does not establish what McCracken had to do to

perform that duty.

      In the excerpt of McCracken’s deposition, he agreed that one of his duties

was, “develops and implements strategic and tactical marketing programs to

drive revenue growth and product contributions.” When asked if he had prepared


                                         24
a comprehensive marketing plan, he stated, “We had a marketing plan for the

company that was being executed, yes. Did I actually prepare the marketing

plan? I prepared a proposal on what we should be doing from a marketing point

of view and discussed that with [Schobel] and [Kendall].”

      He further stated that “most of the activity prior to [February 2009] was

really focused on bringing in business, and it was clear from a marketing point of

view where our focus as a company was.” And he stated that he developed

“strategic marketing programs in a sense of seeing where the market was most

excited about our technology” and that “there was an understanding of our

strategy, and there was an understanding that was clear on what our marketing

plans were.” This testimony is some evidence that McCracken had a marketing

strategy, albeit perhaps not a written one, and that the management team was

aware of that strategy.

      To counter MonoSol’s evidence, McCracken relied on his own affidavit,

which referenced the self-assessment he had completed while still at MonoSol.

In his affidavit, he stated that “[t]he extensive listing of activities on [the self-

assessment] show[ed] that [he] was performing [his] job duties, including by

targeting business customers, executing [MonoSol’s] well known business

strategy, and marketing to new potential customers.” He also stated that he had

“made countless telephone calls and sent numerous e-mails to promote

[MonoSol]’s products.” The self-assessment stated that he had supported an

update   of   MonoSol’s     “company     message/profile”    and    had    “[b]roadly


                                         25
communicated [MonoSol] to business development community through personal

contacts and Licensing Executive Society.”

      MonoSol’s evidence does not establish as a matter of law that McCracken

did not perform his duties with respect to marketing. Accordingly, the trial court

could not have properly granted summary judgment as to McCracken’s claim for

severance on the ground that McCracken did not perform his marketing duties.

      (iii) Failure in Contract Negotiation and Administration. MonoSol next

asserted that McCracken had a duty to negotiate and administer contracts, that

he acknowledged this was one of his duties, and that he failed to perform it. As

evidence that this was McCracken’s job and that he acknowledged it as one of

his duties, MonoSol cited to McCracken’s deposition. In that excerpt, he stated,

“I was responsible for establishing relationships with key partners, customers,

and alliances.” That characterization of the job duty is similar but not identical to

“negotiate and administer contracts.”

      MonoSol then asserted in its motion that as part of this duty, McCracken

was supposed to negotiate the most favorable terms possible.             It did not,

however, cite any evidence to support this proposition, except to the extent that

this duty could be reasonably included in “establishing relationships with key

partners, customers, and alliances.”

      As examples of McCracken’s failure in this duty, MonoSol mentioned three

agreements that McCracken worked on during his time at MonoSol. The first two

examples were for contracts for which it contended that Kendall had wanted


                                         26
certain terms to be included, but for which McCracken had “timidly counseled

that MonoSol Rx” should not attempt to negotiate those terms, resulting in

Kendall deciding to handle the negotiations himself. For the third example, it

discussed McCracken’s work on a deal with KemPharm. It alleged that Kendall

wanted a certain term in the proposed contract to be modified and that Kendall

had to “inject himself into the negotiations after McCracken incorrectly drafted

contract[] language that would have created a loophole allowing KemPharm to

opt out of the contract and bypassed MonoSol Rx’s attorney.”

         The evidence it cited, however, did not support MonoSol’s version of the

facts.    For the first example given by MonoSol, the evidence it cited was

McCracken’s deposition testimony. McCracken stated he had worked on the

deal, that Kendall had led the effort to enter into a revenue generating agreement

with the company, and that MonoSol had been working on the deal before

McCracken started working there.        MonoSol also cited Kendall’s deposition

testimony stating that McCracken “didn’t believe we could get a 50/50 deal out of

[that company] for our technology, which is exactly what we did.” For the second

example, MonoSol cited Kendall’s deposition, in which he stated that for this

agreement, as with the previous agreement, McCracken did not believe that

MonoSol could negotiate the terms that Kendall wanted but that MonoSol was

able to get the desired terms.     This evidence shows only that, according to

Kendall, McCracken had doubts about whether MonoSol could get these

potential partners to agree to the terms MonoSol wanted. This does not show as


                                        27
a matter of law that McCracken failed at “establishing relationships with key

partners, customers, and alliances” or failed to negotiate and administer

contracts.

      As for the third example of McCracken’s failure in negotiating and

administering contracts, in which MonoSol asserted that Kendall had to become

involved in negotiations to fix language in the agreement with KemPharm,

MonoSol again cited Kendall’s deposition.     In the excerpt relied on for this

proposition, Kendall claimed that he had asked McCracken “to fix certain

language with our attorney to close one of the loopholes that we thought they

were creating in the term sheet, specifically around what would give them the

ability to exit the agreement” and that Kendall “told him specifically to create

language to close this out and to correct the document they had sent to us.”

Instead of consulting MonoSol’s attorney, McCracken “authored the language

himself. He did not show it to the attorney. It was not complete. It was not

thorough. It did not do what we intended it to do, as he and I discussed; and he

forwarded it on to the other side.”

      MonoSol also acknowledged in its motion, however, that “McCracken

contend[ed] this was a misunderstanding.”      And in fact, in the excerpt of

McCracken’s deposition included by MonoSol, McCracken stated, “I wasn’t

specifically asked to have it reviewed by an attorney,” and “there was a

misunderstanding on whether the wording that I had discussed with Mr. Kendall

was adequate or whether it needed to be reviewed by an attorney.”         Thus,


                                      28
MonoSol’s own evidence demonstrated that, for this example, there was a fact

issue about whether McCracken was failing in his duty with respect to contracts.

      As further evidence of McCracken’s failure to perform, MonoSol claimed

that McCracken did not negotiate any “feasibility/development agreements with

customers that he initiated,” and that the three agreements he did negotiate were

with customers that MonoSol had prior to McCracken’s hiring, and he “negotiated

contracts for the feasibility work but did not negotiate revenue generating

manufacturing contracts.”     It claimed that the agreement that McCracken

negotiated with KemPharm came about only after that company contacted him

rather than the other way around and that the deal may never reach the

manufacturing stage because KemPharm’s product is “tied up in litigation.” It

cited McCracken’s deposition testimony in which he acknowledged that he had

signed some feasibility studies but those studies had not resulted in revenue

generating agreements, as well as Kendall’s deposition in which he stated that

the KemPharm deal was “uncertain” because of litigation.

      None of this testimony established as a matter of law that McCracken

failed in his duty to negotiate and administer contracts or to establish

relationships with partners. Even if the companies he worked with were already

MonoSol customers, he still negotiated contracts with them. And the testimony

suggested that a feasibility study is the first step in getting a revenue generating

agreement. MonoSol points to no evidence that, in connection with this duty,

only negotiation and administration          of revenue generating agreements


                                        29
constituted performance of that duty. The trial court therefore could not have

properly granted summary judgment on the ground that MonoSol established as

a matter of law that McCracken failed to negotiate and administer contracts.

      (iv) Failure to Participate on the Leadership Team.            Another way

MonoSol argued that McCracken had failed to perform his duties was by failing to

participate on MonoSol’s leadership team as a leader “Who Likes Challenges”

and who “Drives Business Development Results.”                It contended that

McCracken’s duties included “be[ing] the leader who drove himself and others to

help achieve the financial objective for 2009,” but “[i]nstead, in the presence of

the rest of the Leadership Team, McCracken objected to the 2009 revenue goal,”

“want[ing] it reduced.” MonoSol alleged that “Kendall and Schobel considered

McCracken’s conduct to be evidence that he was not fully participating as the

Leadership Team member who was supposed to embrace challenges and lead

and drive business development.”

      As evidence of these assertions, MonoSol directed the trial court to

excerpts of McCracken’s deposition and excerpts of Kendall’s deposition.        In

Kendall’s deposition, he stated that McCracken had said that he did not want to

be pinned down on financial goals. Kendall further stated, when asked if he

viewed expressing doubt about financial goals as “a problem,”

            I believe it was a problem that [McCracken] backed away from
      goals he participated in creating and the path and the actions for
      which he participated in creating, and in front of his peers when we
      got that far into the process he said, I really don’t want to be pinned
      down.


                                        30
               Our process had—our process was an open process. People
        were able to express their concerns at any time. The issue wasn’t
        expressing doubt, and at the time John wasn’t simply expressing
        doubt. It was the theme throughout our conversations, John and I,
        where he would say, I don’t want to be pinned down. I don’t want a
        specific target. Wow, that’s going to take a lot of work. Wow, that’s
        going to be hard. And when that came across to his peers, they got
        nervous.

        In McCracken’s deposition, he acknowledged that it was his “goal and

objective to ensure nine million of new business revenue.” But as for bringing in

the $9 million personally, he stated, “Nine was to be new business revenue.

Whether I generated it or it came from other support groups in the company, . . . I

don’t think it particularly mattered. It was to make sure that we got the nine

million in revenue.” And with respect to objecting to the revenue goal, he stated

that he “felt they were stretch goals, and in the beginning I would have liked to

have seen the targets lowered, yes,” but “I don’t recall if I asked [that they be

lowered]. I expressed my concern” to Kendall.

        This evidence did not show as a matter of law what was required by

McCracken’s duty to be a leader “who likes challenges” and who “drives

business development results,” and it did not show as a matter of law that

McCracken was failing to meet that duty. It showed that McCracken expressed

doubt about the financial goals of the company, and it at most raised a fact issue

about whether the way he expressed that concern was a failure to perform a job

duty.




                                         31
      (v) Failure to Develop and Execute New Methodologies or Strategies

for Processes of Selecting SFIs and Selecting Pharmaceutical Companies

to Pursue for Commercialization of SFIs. Another basis given by MonoSol for

finding cause to fire McCracken was his failure to develop and implement new

methods or strategies with respect to SFIs.       MonoSol alleged two different

responsibilities of McCracken related to SFIs:       (1) selecting SFIs and (2)

selecting pharmaceutical companies to pursue for licensing out SFIs. MonoSol

alleged that McCracken had acknowledged in his deposition that it was his duty

to develop new strategies.

      In the section of McCracken’s deposition relied on by MonoSol with

respect to this duty, McCracken acknowledged that one of his duties was “new

business development strategies,” with the clarification that this duty did not

include “new research product development strategies.” He also stated that his

responsibilities included licensing out SFI products and that he had a role in

identifying SFIs. This evidence supported MonoSol’s claims about McCracken’s

role to identify and license out SFIs, but only to the extent that such a duty fell

within the category of “new business development.”

      In this part of its motion, MonoSol did not direct the trial court to any

evidence explaining how the duty to identify SFIs and license them out fell within

“new business development” as opposed to “new research product development

strategies,” which McCracken said was not one of his duties. It also did not




                                        32
explain or point to evidence explaining that he was supposed to develop a new,

written method for identifying SFIs.

         MonoSol alleged in its motion that McCracken “did not perform his duty to

develop for MonoSol Rx with a new game plan or strategy to analyze and

evaluate data . . . to identify drugs . . . for development as SFIs,” choosing

instead to “basically continu[e] what others had done prior to his hire.” Also

under this category, MonoSol contended that McCracken had failed to provide

MonoSol “with a new game plan or strategy to guide [MonoSol] in its pursuit of

pharmaceutical companies that would be willing to pay for the manufacture of

SFIs.”     And MonoSol contended that because McCracken did not develop a

strategy to identify SFI targets, “McCracken’s SFI results that he found and

initiated were zero” and that “[a]t the time of his termination, McCracken had not

produced any contracts for the manufacture of SFIs and was not in the process

of . . . negotiation of a contract for the manufacture of a SFI.” It acknowledged

that McCracken had finished the negotiations in a deal with Hikma, but it did not

consider that as performance of his duty because negotiations of the agreement

began before McCracken was hired.          In summary, MonoSol contended that

McCracken neither identified drugs for SFIs nor successfully found partners for

SFIs, and it discounted the deal that McCracken had worked to close.

         As evidence to support these contentions, MonoSol relied on Schobel’s

deposition, McCracken’s deposition, and a document prepared by McCracken

while at MonoSol. In Schobel’s deposition, he was asked about the problems


                                         33
listed in the cause notice given to McCracken and what evidence the company

intended to use to prove McCracken’s noncompliance.               Regarding the

requirement that McCracken ‘“provide a strategic directional selection process for

SFI candidates and partnership targets,”’ Schobel replied that

            There was not a fulsome—a fulsome strategy ever outlined to
      me with tactical components underneath it. There may have been
      some work around looking at SFIs, yes. I’ll admit that, that John did
      present some. It was a regurgitation of old information, in fact,
      information that John was probably given when he started with his
      employ with us.

      The McCracken document used by MonoSol for this point was one that he

had prepared in October 2008.         The document listed various drugs and

information about the manufacturer and usage for each drug. For each drug,

McCracken noted whether U.S. sales for the drug were increasing, decreasing,

or stable. MonoSol stated that production of this document did not “perform

[McCracken’s] duty, however, as McCracken dispositively admit[ed] [that] the

document did not contain a recommendation of a new SFI or a strategic selection

process for SFIs.”

      In the portion of McCracken’s deposition relied on by MonoSol, he

acknowledged that this particular document did not contain a recommendation

for an SFI. He also stated that the purpose of the document was to show the SFI

candidates and their stage of development for use in discussions evaluating

which opportunities “looked the most exciting for self-funded projects to move

up.” MonoSol also directed the trial court to parts of McCracken’s deposition



                                       34
wherein he was asked about several specific drugs and whether he had licensed

them, and he stated that he had not.

      Regarding the Hikma deal, McCracken acknowledged in his deposition

that the process had been started before he was hired, but he also stated that

the deal was “dead” at that point and that he “resurrected it.” In other words,

McCracken’s testimony was that but for his efforts, the Hikma deal would not

have been completed. And in McCracken’s response, he asserted that he had

been told that SFI spending was put on hold, and until he received his cause

notice, he had not been told that this had changed.

      McCracken supported this assertion with his affidavit, in which he stated

that at a June 2008 meeting, Kendall announced that spending on SFIs would be

put on hold.   He attached portions of Schobel’s deposition in which Schobel

acknowledged that McCracken had been told this and that he had never told

McCracken to disregard that instruction. Parts of Schobel’s deposition attached

to MonoSol’s motion also acknowledged that it had been announced that the SFI

program had been put on hold, and when asked if McCracken had ever been told

“that the green light was given for self-funded initiatives to move forward,”

Schobel answered, “I am not aware of any discussion to that fact, no.” Thus,

although MonoSol stated in McCracken’s cause notice that he needed to cure his

job performance by providing strategic direction on SFI candidate selection, the

evidence raised a question of fact about whether his failure to produce any SFI

candidates to that point was a failure to perform his job duties.


                                         35
      The summary judgment evidence does not establish as a matter of law

that McCracken’s duty was to develop a written strategy to select SFIs and that

he failed to perform his duty. Accordingly, the trial court could not have properly

granted summary judgment as to McCracken’s claim for severance on this

ground.

      (vi) Failure to develop a strategy to identify optimal potential clients

and to execute that strategy.          Another example given by MonoSol of

McCracken’s failure to perform his job duties was that he had failed to develop a

strategy or method for identifying optimal target companies for solicitation of new

business from (1) drugs already approved by the FDA, (2) drugs awaiting FDA

approval, and (3) over-the-counter drugs (collectively non-SFI categories).

      In its motion, MonoSol alleged that the job position specification given to

McCracken by a headhunter during his hiring process included the three non-SFI

categories of drugs as sources of revenue for MonoSol.

      McCracken testified that it was his duty to establish and implement new

business development strategies; to establish “tactical plans that execute the

business development strategies”; to assess future markets; to identify, evaluate,

and pursue new market opportunities; to develop a marketing strategy; and to

establish new scientific and strategic partnerships.

      In McCracken’s deposition, he stated that the goal of the new strategies he

was to develop was to identify other companies that would license MonoSol’s

technology and products. McCracken did not give MonoSol a new game plan for


                                        36
how to select and target optimal drugs in each of the three non-SFI categories.

He did not present any data to narrow down thousands of drugs to those that

were the ideal targets. He did not present MonoSol with any strategy or selection

process for identifying optimal business partners. His response to interrogatories

did not claim that any strategy document existed prior to February 2009.

      McCracken produced a document in late February 2009, but this document

did not set out a methodology for identifying optimal business targets. Instead,

McCracken “resorted to initiating a quantitative volume of general contacts with

pharmaceutical   companies     without    first   having   qualitatively   done   the

comprehensive data collection and analysis to develop strategic plans identifying

the key or optimal targets.” Most of his efforts at contacting companies were by

telephone or email “since McCracken refused to comply with [MonoSol’s] desire

that he maximize fact-to-face contacts with pharmaceutical companies.”

      Kendall told McCracken that for each company he contacted, he needed to

have a strategy. But despite that, McCracken “cannot recall anything in writing.”

Without a method for identifying optimal targets, the “contacts that McCracken

initiated were uniformly unsuccessful in terms of results.” None of his contacts

produced a revenue generating agreement for a drug in one of the three non-SFI

categories, and McCracken admitted as much in his deposition.

      The evidence relied upon by MonoSol for the above assertions consisted

of excerpts of McCracken’s deposition, McCracken’s response to interrogatories,




                                         37
the job description from the headhunter, excerpts from Schobel’s deposition,

excerpts from Kendall’s deposition, and Schobel’s affidavit.

      The job description listed “[h]as . . . an extensive network of industry

contacts” as a “core competenc[y].” It listed as the “key responsibilities” of the

job “establishing tactical plans, execution of business development strategy as it

relates to key partnerships, alliances[,] and customer relationships and

development of commercialization revenue opportunities.”          This evidence

established that McCracken was put on notice that, if hired, his job could include

such responsibilities. This job listing did not, however, establish as a matter of

law what these responsibilities entailed.

      In the referenced excerpts of his deposition, McCracken testified that one

of his job duties was establishing new business development strategies. He also

agreed that his duties included assessing future markets, identifying new market

opportunities, establishing plans to execute business development strategies,

identifying other companies that would want to license MonoSol’s technology,

and establishing new partnerships.          MonoSol thus produced evidence that

McCracken’s duties included these acts.

      As for evidence that McCracken failed in his duties under this category,

Schobel stated in his deposition that he “never saw a single strategy about how

[McCracken] was going to develop business relationships for targeting potential

partners.” In his affidavit, Schobel stated that McCracken did not provide him




                                        38
with a methodology for selecting which drugs and pharmaceutical companies

MonoSol should pursue and which it should not pursue.

      In his deposition, Kendall described how one might go through narrowing

down the long list of FDA-approved drugs to identify which drugs would be

optimal for putting on film.    Kendall testified that regarding what drugs were

“technically feasible to do on film,” “that analysis is missing.”

      In MonoSol’s interrogatories, McCracken was asked to identify documents

that set forth his process for selecting which companies MonoSol should try to

partner with. McCracken’s response to this interrogatory stated, “[McCracken]

reviewed these materials with Mark Schobel and Keith Kendall in February of

2009.” He stated that he had meetings with Kendall and that their discussions at

the meetings “were very focused on business opportunities.” At the meetings,

McCracken and Kendall “discussed current projects, new projects and

prospective business” but “didn't really discuss strategy.” Nevertheless, “[t]he

Business Strategy for MonoSol was quite clear to MonoSol Management.” His

“approach to executing this strategy was also clear during [his] regular meetings”

that he had with Kendall; he described this approach as “1. Increase MonoSol

visibility and awareness in the pharmaceutical marketplace. 2. Market MonoSol

PharmFilm products and capabilities to new business contacts. 3. Generate new

business.”

      In McCracken’s deposition, he stated that he developed an oral strategy to

“capture innovators” “for potential candidates,” but he did not remember if he


                                          39
developed a written strategy. He testified that he discussed this strategy at a

February 2009 meeting. But he did not testify about when he had developed the

strategy, whether it was around that time or before that.

      Regarding the form of contact he had with potential business partners, he

did not testify that he “refused to comply” with “MonoSol’s desire” that he use

mostly face-to-face contacts.    His testimony was that Kendall told him that

Kendall preferred face-to-face meetings when possible and that McCracken told

him that “having an initial contact verbally would be preferable to going in cold

and not—and spending the time and money for having a face-to-face meeting to

see if there’s initially assessment of interest.” He also stated that “[he] did have

face-to-face meetings with companies.”

      Regarding whether Kendall told him that he needed to have a strategy for

each company he made contact with, he stated that “the overall strategy was part

of the assessment.” He also testified, when asked if he had included a strategy

in any written reports to Kendall, that “[t]he strategy for each project, [his]

expectation is it was discussed as opposed to written” and “part of what we

talked about at each of our meetings was the overall strategy of how we were

going to, you know, achieve success.” And he stated that “whenever [Kendall]

asked [McCracken] for something, [he] did it.”

      McCracken agreed that none of his efforts resulted in a revenue

generating agreement for the three non-SFI categories. When asked why not, he

testified that he could not recall the discussions with companies he worked with


                                         40
but “believe[d] there was some issues with cost of goods relative to the pricing

that they could achieve.” MonoSol’s evidence did not establish as a matter of

law what exactly this duty entailed and whether he failed at it—including whether

McCracken had to have a written strategy, whether MonoSol executives were

aware of the strategy that McCracken was using, and whether he had a viable

plan for establishing contact with potential business partners.

      In his response to the summary judgment motion, McCracken cited his

affidavit, in which he stated that he had “execut[ed] [MonoSol’s] well known

business strategy,” that “[t]here had been no prior occasions in which Mr.

Schobel or Mr. Kendall requested strategic direction review as [his] priority was

to create business development value,” that “[t]his priority was reinforced in all

[his] one on one meetings with Mr. Kendall,” and that “[t]he business strategy of

MonoSol was clear and well understood by Management.”             He stated that

projects in the pharmaceutical industry take six to nine months to mature “into

substantial agreements.”

      Regarding his role in developing business strategies, McCracken stated

that while at MonoSol, he regularly met with Kendall. Their discussions at these

meetings “included, without limitation, decisions about business development

priorities, strategies, goals and updates on key initiatives.       During these

meetings, [he] regularly discussed key projects with Mr. Kendall and mutual

agreement was consistently reached on priorities, which [he] diligently executed.”

Thus, McCracken produced evidence that Kendall was aware of and in accord


                                        41
with McCracken’s business development strategies and goals. And as to the

contact he had with target companies, he provided a list of face-to-face meetings

that he had had, which were in addition to telephone calls he made and e-mails

he sent to promote MonoSol’s products and product development capabilities.

        The summary judgment evidence showed that part of McCracken’s job

duties included identifying companies that would want to partner with MonoSol

and license its technology. The evidence raises a fact question about whether

MonoSol was aware of McCracken’s business strategies and goals and whether

it supported his efforts, or at least led him to believe that it was in agreement with

his efforts. And the evidence did not show as a matter of law that McCracken’s

job duties included establishing a new, written strategy for identifying drugs in

each of the three non-SFI drug categories that would be optimal for film. Even

the cause notice did not explicitly require McCracken to put a strategy in writing;

it stated only that to cure, he needed to “[c]reate and execute a business

development/relationship strategy” and to “[d]emonstrate capability to own,

direct[,]    and   execute   establishing   and   binding   strategic   relationships.”

Accordingly, the trial court could not have properly granted summary judgment

on McCracken’s claim for severance on the ground that McCracken failed to

perform this job duty.

        (vii) Failure to develop and execute plan to achieve 2009 revenue

goal.       MonoSol also asserted that McCracken failed to perform his duty of

producing revenue for MonoSol. MonoSol made two related claims regarding


                                            42
McCracken’s responsibility for generating revenue: that McCracken had failed to

develop and execute a plan to achieve MonoSol’s 2009 revenue goal and that

McCracken had failed to actually produce MonoSol’s revenue goal of $9 million

in revenue in 2009.

      MonoSol stated that the job specification given to McCracken by the

headhunter “gave the core competency of ‘Driving Results:       Sets compelling

goals and is tenacious in accomplishing them. Ability to set priorities, allocate

resources, take accountability and achieve results.’”     By September 2008,

“McCracken had been informed in writing that his 2009 revenue goal was to

generate $9 million of new business.” MonoSol contended that this revenue goal

had been given to McCracken in writing on multiple occasions. This goal was

“important to MonoSol Rx’s balance sheet,” and “[i]t was McCracken’s duty

during the remainder of 2008 to develop a methodology or strategy to achieve

the 2009 revenue goal.”

      To accomplish that duty, “McCracken was to prepare a strategy and list the

tasks that needed to be performed in order to achieve the 2009 revenue goal,”

but he failed to do so and had no explanation for his failure when asked about it

in his deposition. By the end of January 2009, “with the year 1/12th complete,

MonoSol Rx still had not received from McCracken a game plan or strategy for

achieving the revenue goal for 2009.”

      As evidence that McCracken was aware of his performance target and that

McCracken failed to perform this duty, MonoSol relied on McCracken’s


                                        43
deposition, excerpts of Kendall’s deposition, Kendall’s affidavit, excerpts from

Schobel’s deposition and from his affidavit, and some documents. One of the

documents relied on by MonoSol was the job specification from the headhunter.

This language of the job listing was evidence that McCracken had been made

aware that MonoSol wanted to hire someone who could set and achieve

“compelling goals,” but it did not establish that McCracken’s job duties included

achieving the specific revenue goals created by MonoSol, what this duty involved,

or even that the job specification became his job description once hired.

      The second document relied on by MonoSol was a chart that was attached

to minutes from a September 2008 business meeting. MonoSol relied on this

chart to establish that by September 2008, McCracken had been informed in

writing that his goal was to generate $9 million of new business.

      The chart listed general company initiatives or goals, which were assigned

to various employees. These general initiatives were broken down into more

specific initiatives.   The general initiative “Generate Revenue,” which was

assigned to McCracken, had six more specific initiatives associated with it. One

of those specific initiatives was “Negotiate and execute deals (legal costs) worth

$9MM in 2009.” The wording of this chart is not clear as to whether McCracken

was supposed to, in 2009, execute deals that would be worth $9 million or

whether he was supposed to execute deals that would result in MonoSol

receiving $9 million in revenue in the 2009 calendar year.




                                        44
      The third document relied upon by MonoSol was a document on MonoSol

letterhead that set out “MonoSol Rx 2009 Goals and Objectives” for McCracken.

This document was not dated. Under the “Financial” category, the document

listed “[e]nsure $9M of new business revenue contribution in 2009, with a

minimum of $1.5M in 2Q, 2009, $0.75M In 3Q, 2009[,] and $2M in 4Q, 2009.”

This language suggested that MonoSol wanted McCracken to execute deals that

would generate revenue in 2009. But it also suggested that the goal was not a

definite performance standard; it listed no minimum revenue goal for the first

quarter of the year, and the minimums for the other three quarters add up to just

under half of the $9 million alleged by MonoSol.

      In the excerpts of Kendall’s affidavit, he stated that at a leadership team

meeting in September 2008, at which McCracken was present, “the Company

laid out the Strategic Planning Process” and that McCracken was assigned the

general initiative “‘Generate Revenue.’” Schobel made a similar statement in his

affidavit. Kendall further stated that “[i]t was McCracken’s duty to develop a . . .

strategy for producing $9 million of new revenue in 2009. McCracken did not

provide or present to me a methodology, plan or strategy for producing $9 million

of new revenue in 2009.”

      In the excerpt of McCracken’s deposition, he was asked about a second

chart, in addition to the one listing general and specific initiatives that was

referenced in Kendall’s affidavit.    This second chart appears to have been

prepared after the September 2008 meeting and before one that was scheduled


                                        45
for October 2008. The top of the chart stated, “to prepare for a better discussion

at the LT meeting on 10/29, we would like you to take the next step in laying out

the initiatives that you have been identified as the owner of.”

      Then, in a row that said “Negotiate & execute deals worth $9MM in 2009

(Mark/Keith/John)”, there was a space for “Expected goals for 2009.” This space

was blank, and in McCracken’s deposition, he had no explanation when asked

why this space had not been filled in. Contrary to MonoSol’s assertion, this

deposition and chart did not show that McCracken did not create a plan, that he

did not perform his duty with respect to revenue goals, or that he did not know

why he failed to do so. It showed only that (1) McCracken, Kendall, and Schobel

all had something to do with negotiating and executing contracts and (2)

McCracken did not have an explanation for why he had not filled in a chart for the

October 29 meeting.

      In Schobel’s deposition, he stated that McCracken did not create or

execute a strategy and that Schobel didn’t “personally” see any progress in

developing those strategies and getting them implemented.         To support the

assertion that $9 million in revenue would be important to the company’s balance

sheet, MonoSol pointed out a section of Kendall’s deposition in which he stated,

“[I]f we didn’t create the $9,000,000 revenue that . . . McCracken was responsible

for through the strategies he was to develop, there was a possibility we could be

in a negative cash balance.”




                                         46
      In summary, MonoSol’s evidence related to McCracken’s failure to perform

this duty consisted of the job specification from the headhunter describing the

person for the job as someone who could set and achieve compelling goals; a

chart related to a meeting that assigned to McCracken the task of “Negotiat[ing]

and execut[ing] deals (legal costs) worth $9MM in 2009”; a document listing

McCracken’s goals and objectives listing “[e]nsure $9M of new business revenue

contribution in 2009, with a minimum of $1.5M in 2Q, 2009, $0.75M In 3Q,

2009[,] and $2M in 4Q, 2009”; Kendall’s affidavit stating that McCracken was

responsible for the initiative of “Generating Revenue” and that “It was

McCracken’s duty to develop a methodology, plan or strategy for producing $9

million of new revenue in 2009,” that the revenue was important for MonoSol’s

bottom line, and that McCracken failed to fulfill this duty; a chart that included an

initiative assigned to McCracken and two others for negotiating and executing $9

million worth of deals and a space for expected goals, which McCracken did not

fill in; Schobel’s deposition stating that McCracken did not create or execute a

strategy and that Schobel did not personally see McCracken making progress on

that goal.

      Looking at the evidence produced by MonoSol, the evidence was unclear,

if not conflicting, about what exactly McCracken had to do regarding revenue

generation in order to perform this duty, whether it was his responsibility alone to

bring in $9 million in revenue, and whether he was adequately performing his job.

The evidence did not establish as a matter of law that McCracken was required


                                         47
to generate $9 million in revenue in 2009 in order to adequately perform his job

duties.

      In his response, McCracken pointed to his affidavit as evidence that he

had performed his job duties as to revenue generation while at MonoSol.

McCracken asserted in his affidavit that “projects in the industry typically take at

least 6 to 9 months to mature into substantial agreements, and can take years to

generate revenues when FDA approval of a new product is required.” He further

stated, “[a]t the time I was fired, I had complied with all of my 2009 quarterly

financial revenue targets.” He also discussed several deals that were executed

while he was at MonoSol that were projected to bring in more than $9 million.

Thus, McCracken produced some evidence that no one could meet the kind of

goal that MonoSol now says that McCracken could have and should have met

because deals in the pharmaceutical industry simply do not get executed and

begin bringing in revenue that quickly.      McCracken’s affidavit, combined with

MonoSol’s evidence, raised questions about the actual specifics of his revenue

goals and whether he was meeting them.            Because McCracken produced

controverting evidence about whether he was meeting his financial goals, and

MonoSol’s evidence did not establish as a matter of law that he was not meeting

his goals, the trial court could not have properly granted summary judgment as to

McCracken’s claim for severance on this alleged failure to perform job duties.

      In addition to the allegations MonoSol made that McCracken failed to

perform his job duties prior to its giving him the cause notice, it further alleged


                                        48
that he continued to fail at his job duties after receiving the cause notice in

February 2009. Having held that MonoSol did not establish as a matter of law

that it had cause to terminate McCracken’s employment at the time that it gave

McCracken the cause notice, we must also hold that it did not establish as a

matter of law that it complied with the provision of the employment agreement for

firing him for cause because before firing McCracken for cause, it had to give him

notice and opportunity to cure. If MonoSol did not have cause to fire him at the

time it gave McCracken notice, it could not fire him for cause. If cause to fire him

developed after that time, he was entitled to notice of it and an opportunity to

cure. Accordingly, MonoSol did not establish its right to judgment as a matter of

law on McCracken’s claim for severance.

      MonoSol also asserted that it had negated as a matter of law that its

determination that it had cause to fire McCracken was made in bad faith and that

it was therefore entitled to summary judgment.        We have already held that

McCracken had produced some evidence to raise a fact issue about whether

MonoSol breached this covenant. And because we have held that McCracken

raised a fact issue about whether MonoSol breached the express terms of the

employment agreement by firing him without cause and not paying him

severance, we need not address MonoSol’s traditional ground on this claim.

3.1.5. Cause notice and cure period: the traditional summary judgment grounds.

      MonoSol asserted as a ground for traditional summary judgment that it had

negated McCracken’s claim that he did not receive the notice required under the


                                        49
agreement and that it did not allow him the full period under the agreement to

cure any deficiencies before it terminated him.       Because we have held that

MonoSol did not establish as a matter of law that it had cause to terminate

McCracken’s employment, we need not reach this part of McCracken’s second

issue. We sustain McCracken’s second issue.

3.2. McCracken’s breach of contract claim based on failure to pay bonuses.

      McCracken argues in his first issue that the trial court improperly rendered

summary judgment dismissing McCracken’s bonus claims.             We first consider

MonoSol’s no-evidence summary judgment grounds on this claim.

3.2.1. Failure to pay bonuses: no-evidence grounds.

      In its motion, MonoSol asserted four no-evidence grounds on McCracken’s

claim for breach of the express terms for bonus payments: (1) as a matter of

law, there is no promise to pay, or, alternatively, there is no evidence of a

promise to pay; (2) regarding the 2008 bonus, there is no evidence that

McCracken performed his duties for that year and hence no evidence that he

achieved his 2008 performance targets to make him eligible for a 2008 bonus; (3)

as to the 2009 bonus, there is no evidence that McCracken met his performance

targets for that year in order to be eligible for a bonus for that year; and (4) with

respect to the 2009 bonus, there is no evidence that McCracken was employed

on the day in 2010 when the bonus for calendar year 2009 was paid.




                                         50
      The first ground is a pure matter of law ground and therefore not a proper

ground for no-evidence summary judgment. 25     We now turn to the other no-

evidence grounds asserted by MonoSol.

      The employment agreement contained the following provision relating to

eligibility for bonuses:

              B. Bonus. In addition to the Base Salary, at the end of each
      (12) month calendar year during the Employment term, [McCracken]
      shall be eligible, if then employed with [MonoSol], for an Annual
      Bonus of forty percent (40%) of [McCracken]’s Base Salary,
      provided [McCracken] and [MonoSol] achieve established
      performance targets. [McCracken] must be employed by [MonoSol]
      on the day any bonus payment is paid under this Agreement in order
      to receive said bonus payment. . . . If [McCracken] and [MonoSol]
      exceed established performance targets, [MonoSol] may[,] in its sole
      discretion, increase the amount of the Annual Bonus. The Annual
      Bonus payment will not be prorated based on months of service in
      the first year of this agreement.

Thus, under this agreement, there were three requirements to be satisfied before

McCracken would be eligible for a bonus:       (1) McCracken had to achieve

established performance targets, (2) McCracken had to be employed by

MonoSol at the end of the calendar year for that year’s bonus, and (3)

McCracken had to still be employed by MonoSol on the date that the bonus

payment would be paid under the agreement. McCracken does not dispute that

his employment ended in March 2009.

      In McCracken’s response, he stated that MonoSol never provided him with

any written performance targets with respect to earning his 2008 bonus. He

      25
        See Harrill, 27 S.W.3d at 194.


                                         51
made this same assertion in his affidavit attached to his response, and he further

stated that he was never told that his general job description would be used for

the purpose of determining his bonus. He also attached an excerpt from the

deposition of MonoSol’s managing member who made the decision not to pay

McCracken his 2008 bonus and who stated that he did not reference any

performance targets in deciding not to pay McCracken the bonus.

      McCracken also asserted that MonoSol breached either the express

provisions to pay the 2008 bonus or the implied covenant of good faith because

the contract language’s implication is that MonoSol was required to pay him a

bonus if the tenure requirements and performance targets were met, but

MonoSol never established performance targets for him and none were

considered in deciding to deny him a bonus. Further, because other employees

received bonuses that year (the day before McCracken was fired), the factfinder

could infer that MonoSol’s company targets were met. McCracken attached to

his response part of Kendall’s deposition in which he stated that he received his

bonus for 2008.

      Regarding the 2008 bonus, McCracken produced some evidence that he

was never given any performance targets for his 2008 bonus eligibility, including

establishing his regular job duties as performance targets.        The summary

judgment evidence shows that he was employed at MonoSol on December 31,

2008 and on the date that the 2008 bonuses were paid, and that other

employees were paid their bonuses, indicating that MonoSol met its performance


                                       52
targets. And even if the evidence had established that McCracken’s job duties

were his 2008 performance targets, we have already held that McCracken raised

a fact issue about whether he was performing those duties. Accordingly, the trial

court could not have granted no-evidence summary judgment on this ground.

      MonoSol argues that McCracken did not challenge its no-evidence ground

with respect to the 2009 bonus—that he was not employed at MonoSol at the

end of the 2009 calendar year or on the date in 2010 when the 2009 bonuses

were paid—and therefore we should affirm the no-evidence summary judgment

on his claim for that bonus. MonoSol is correct that McCracken did not deny that

he was not employed by MonoSol on those dates. But McCracken did argue that

not paying him the 2009 bonus was a breach of the implied covenant of good

faith because the reason he was no longer employed with MonoSol on those

dates was that he was fired in bad faith. In other words, because McCracken

was no longer with MonoSol on those dates, MonoSol’s not paying him the 2009

bonus was not a breach of the express terms of the employment agreement. But

the reason he was not employed at MonoSol on those dates was MonoSol’s

breach of the implied covenant. 26 In reviewing MonoSol’s no-evidence grounds

regarding McCracken’s right to a severance, we have already held that a fact

issue exists on whether McCracken was performing his job duties and whether, if

McCracken was not performing his job duties, MonoSol acted in bad faith by


      26
       See Wood, 21 A.3d at 1140.


                                       53
denying him the opportunity to cure.         Accordingly, we hold that the same

evidence raises a fact issue, sufficient to defeat no-evidence summary judgment,

about whether MonoSol acted in bad faith to deprive McCracken of his eligibility

for the 2009 bonus.

      MonoSol’s final no-evidence ground with respect to the 2009 bonus was

that McCracken had no evidence that he met his performance target of bringing

in $9 million in revenue. We have already held that the evidence, viewed in the

light most favorable to McCracken, raised a fact issue about McCracken’s

responsibilities regarding the $9 million revenue goal and whether he was

performing those responsibilities.    Accordingly, the summary judgment on

McCracken’s claim for the 2009 bonus could not have been properly based on

this ground. We sustain this part of McCracken’s first issue.

3.2.2. Failure to pay bonuses: traditional grounds.

      MonoSol moved for traditional summary judgment on McCracken’s claims

that by failing to pay him bonuses, MonoSol breached the express terms of the

agreement and the implied covenant. In addressing McCracken’s arguments as

to these grounds, we consider first MonoSol’s grounds on the claim for breach of

the express terms and then consider its grounds regarding the implied covenant.

      MonoSol asserted that it had negated McCracken’s claim for bonuses

because it established as a matter of law that he did not meet his performance

targets, and that it therefore negated McCracken’s eligibility for the bonuses. We

have already held that McCracken raised a fact issue about whether he did not


                                        54
meet his performance targets. In considering MonoSol’s no-evidence grounds

on McCracken’s severance claims, we held that McCracken raised a fact issue

about his performance of his job duties. In considering MonoSol’s traditional

ground that it had cause to fire McCracken, we held that it did not establish as a

matter of law that it had cause to fire him. We therefore further hold that, as to

the 2008 bonus, MonoSol did not establish as a matter of law that McCracken did

not meet his performance targets.

      Regarding the 2009 bonus, as noted in our disposition of MonoSol’s no-

evidence ground on this claim, the evidence, viewed in the light most favorable to

McCracken, raised a fact issue about whether McCracken met his performance

target. We also held that MonoSol did not establish as a matter of law that

McCracken was not meeting his performance target regarding the generation of

revenue. MonoSol was therefore not entitled to traditional summary judgment on

the ground that McCracken was not eligible for the bonus because he failed to

meet those targets.

      In addition to arguing that McCracken was not eligible to receive a bonus

in 2008 or 2009 because he did not meet his performance targets, MonoSol also

argued that it was entitled to traditional summary judgment on the 2009 bonus

claim because it had negated McCracken’s satisfaction of the contractual

conditions to receipt of bonuses. It again argued that the employment agreement

required that, in order to receive the 2009 bonus, McCracken had to have been

employed both (1) on December 31, 2009 and (2) on the date in 2010 when the


                                       55
2009 bonus was paid. Because the evidence showed that McCracken was not

employed with MonoSol on either of those two dates, then under the terms of the

agreement, he was not eligible for the 2009 bonus.

      As stated above with respect to MonoSol’s no-evidence grounds, we agree

that MonoSol established that McCracken was not employed either at the end of

2009 or on the date that the 2009 bonuses were paid. We also agree that the

terms of the employment agreement required him to be employed on both of

those dates in order to be paid a bonus for 2009. But we also held that, in

response to MonoSol’s no-evidence motion, McCracken raised a fact about

whether MonoSol acted in bad faith, thereby breaching the implied covenant.

      MonoSol addressed the implied covenant claim in its traditional motion. It

argued that by showing that McCracken did not meet his performance goals, it

negated the deprivation, causality, and bad faith elements of the implied

covenant claim. More specifically, it first argued that by negating McCracken’s

eligibility for a bonus, it negated the element that requires the plaintiff raising an

implied covenant claim to have been deprived of the fruit of the contract. And it

argued that by not performing, it was McCracken who caused the non-payment

of the bonuses, and therefore “causality is absent.”         Furthermore, because

McCracken did not meet his performance targets, MonoSol negated the element

of bad faith. And specifically as to the 2009 bonus, MonoSol asserted that “the

condition ([that McCracken be] employed on date in 2010 when bonuses paid)




                                         56
has been negated which means that the non-payment of a 2009 bonus could not

have been in bad faith.”

      But McCracken raised a fact issue on his performance and whether the

firing was a breach of the implied covenant. MonoSol did not establish a right to

judgment as a matter of law on whether it had cause to fire McCracken and

whether he was meeting his performance targets. MonoSol therefore did not

negate as a matter of law that it did not breach the implied covenant by failing to

pay bonuses. Accordingly, we sustain the remainder of McCracken’s first issue.

3.3. McCracken’s objections to MonoSol’s evidence.

      In his third issue, McCracken argues that the trial court improperly

overruled his objections to some of MonoSol’s summary judgment evidence. He

specifically objects to the trial court’s failure to exclude as hearsay certain

documents attached to Kendall’s and Schobel’s affidavits.          Having sustained

McCracken’s first two issues, we need not address this issue. 27

3.4. McCracken’s claim for statutory attorney’s fees.

      In his fourth issue, McCracken asserts that the trial court improperly held

him ineligible to collect statutory attorney’s fees.      MonoSol’s no-evidence

summary judgment motion does not set out what element for which there is no

evidence with respect to McCracken’s entitlement to attorney’s fees.         In the

section of its motion discussing the elements of McCracken’s claim for attorney’s


      27
        See Tex. R. App. P. 47.1.


                                        57
fees for which it contended there was no evidence, that section states, in its

entirety,

             a.     As a matter of law, [McCracken] may not recover
       attorneys’ fees. [McCracken] has contractually agreed that he will
       not seek or recover attorneys’ fees.

             b.   Alternatively, there is no evidence that, in light of the
       language in the Agreement, [McCracken] may recover attorneys’
       fees.

These are pure matter-of-law grounds based on an interpretation of the

employment agreement and as such were not proper grounds on which a no-

evidence summary judgment could have been granted. We sustain McCracken’s

fourth issue.

                                 4. Conclusion

       Having sustained McCracken’s first, second, and fourth issues, and having

overruled his third issue, we reverse the trial court’s summary judgment and

remand this case for further proceedings.



                                                  /s/ Lee Ann Dauphinot
                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

GABRIEL, J., filed a concurring opinion in which WALKER, J., joins.

DELIVERED: October 2, 2014




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