## Facts

- Total Air Services, LLC operated an HVAC contracting business owned by Brandon and Janette Brooks.
- Heriberto Salas was hired in April 2011 as a crew manager responsible for supervising jobs, obtaining permits and inspections, and installing air-conditioning systems; he also assisted with customer quotes and sometimes delivered them.
- Total Air used bid packages containing a job-costing analysis reflecting confidential component costs; Brooks testified that only he, his wife, and Salas had access to that information.
- Before joining Total Air, Salas applied for a contractor’s license under the name Iceland Refrigeration and later operated that business while still drawing a salary from Total Air.
- Evidence showed payments for HVAC work were deposited into Salas’s personal bank account during his employment, including a $13,600 deposit described as “A/C Service.”
- Evidence also showed Iceland Refrigeration bid on work overlapping with Total Air’s bidding activity, and at least one project permit was issued listing Iceland (or Salas) as contractor after Total Air did not obtain the job.
- Salas did not disclose to Total Air that he was operating a competing HVAC business while employed.
- Total Air sued Salas for breach of fiduciary duty; a jury found liability and awarded $50,000 in lost-profit damages.

## Issues

1. Whether Salas owed Total Air a fiduciary duty based on his position and responsibilities, and whether operating a competing business while employed breached that duty.
2. Whether the jury instruction stating that Salas, “as an employee,” owed a fiduciary duty was legally erroneous and, if so, harmful.
3. Whether the evidence proved lost-profit damages and causation with reasonable certainty, and whether the full $50,000 award could stand.

## Decision

- The court of appeals affirmed the jury’s finding that Salas owed and breached a fiduciary duty to Total Air by operating a competing business while still employed and using the advantage of his position for his own benefit.
- The court held there was legally sufficient evidence that Salas’s conduct caused some lost profits, but parts of the $50,000 award were not supported with reasonable certainty.
- The court affirmed the judgment subject to a remittitur reducing the damages; if the remittitur was not accepted, damages would be retried.

## Legal Principles

- An at-will employee may prepare to compete and later form a competing business absent an enforceable noncompete, but the employee may not actively operate a competing business in a manner that violates duties owed to the employer while still employed.
- Whether an employee owes fiduciary obligations is fact-dependent; a position of trust, managerial responsibility, and access to confidential business information can support a fiduciary-duty finding.
- A fiduciary breaches duty by placing personal interests ahead of the employer, using the advantage of the employment position to obtain personal benefit at the employer’s expense, or placing oneself in a conflict position while owing duties of loyalty.
- Lost-profit damages must be proven by competent evidence with reasonable certainty and may not rest on speculation; when only part of the award is supported, an appellate court may affirm liability while requiring a remittitur or a new trial limited to damages.
- A jury-charge imprecision regarding fiduciary status is not reversible absent harm; contextual instructions tied to recognized fiduciary concepts and supported by the evidence can defeat a charge-error challenge.

## Conclusion

The court upheld liability for breach of fiduciary duty where a trusted managerial employee with access to confidential bid costs operated a competing HVAC business while still employed, but it required a reduction of the lost-profit award through remittitur because the proof supported only a smaller amount of damages with reasonable certainty.


Salas v. Total Air Servs., LLC, 550 S.W.3d 683 (Tex. App.—El Paso 2018)