derivative claim in Texas

2013See Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996) (op. on reh’g) (stating that civil conspiracy is a derivative claim of an underlying tort for which the plaintiff “seeks to hold at least one of the named defendants liable”); Anderton v. Cawley, 378 S.W.3d 38 , 54 49 (Tex. App.—Dallas 2012, no pet.) (concluding that when the trial court erred by granting summary judgment on breach of fiduciary duty, it also erred by granting summary judgment on the derivative claim for aiding and abetting breach of fiduciary duty); see also Mims, 810 S.W.2d at 880-81 (stating that a lessee can be held li

2013See Tilton v. Marshall , 925 S.W.2d 672, 681 (Tex. 1996) (op. on reh’g) (stating that civil conspiracy is a derivative claim of an underlying tort for which the plaintiff “seeks to hold at least one of the named defendants liable”); Anderton v. Cawley , 378 S.W.3d 38, 54 (Tex. App.—Dallas 2012, no pet.) (concluding that when the trial court erred by granting summary judgment on breach of fiduciary duty, it also erred by granting summary judgment on the derivative claim for aiding and abetting breach of fiduciary duty); see also Mims , 810 S.W.2d at 880-81 (stating that a lessee can be held lia

2022While not deciding whether it would recognize the doctrine of derivative immunity, the court in Brown observed that the doctrine only provides immunity to a contractor when it operates solely “upon the direction” of the government entity, such that “a lawsuit against one is a lawsuit against the other,” but not when the contractor retains “discretion in its activities.” Id. at 124 , quoting K.D.F. v. Rex, 878 S.W.2d 589, 597 (Tex.1994).

2022While not deciding whether it would recognize the doctrine of derivative immunity, the court in Brown observed that the doctrine only provides immunity to a contractor when it operates solely “upon the direction” of the government entity, such that “a lawsuit against one is a lawsuit against the other,” but not when the contractor retains “discretion in its activities.” Id. at 124 , quoting K.D.F. v. Rex, 878 S.W.2d 589, 597 (Tex.1994).

2025Nettles, 606 S.W.3d at 733.

2022Nettles, 606 S.W.3d. at 736-37; see also Cheney v. Levy Co., No. 03-19-00243-CV, 2020 WL 6265656 , at *6 (Tex.App.--Austin Oct. 23, 2020, no pet.) (mem. op.) (doctrine of derivative immunity did not apply when government contractors did not conclusively establish a lack of discretion that might justify the extension of the City’s governmental immunity to them). 20 MEDC’s plea to the jurisdiction is based entirely on the allegations in Sai’s petition—it presented no evidence of its own.

2024Accordingly, the trial court abused its discretion in denying Frost Bank’s motion to dismiss this claim. -5- Civil Conspiracy Claim “An action for civil conspiracy has five elements: (1) a combination of two or more persons; (2) the persons seek to accomplish an object or course of action; (3) the persons reach a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts are taken in pursuance of the object or course of action; and (5) damages occur as a proximate result.” First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222 (Tex. 2017).

2022In my opinion, 5 this portion of the briefing expressly addresses the derivative claim for breach of fiduciary duty. 3 See First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222 (Tex. 2017) (explaining that when we review briefs, Rule 38.1 requires us “to treat the statement of an issue ‘as covering every subsidiary question that is fairly included’” (quoting Tex. R.

2013See Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996) (op. on reh’g) (stating that civil conspiracy is a derivative claim of an underlying tort for which the plaintiff “seeks to hold at least one of the named defendants liable”); Anderton v. Cawley, 378 S.W.3d 38 , 54 49 (Tex. App.—Dallas 2012, no pet.) (concluding that when the trial court erred by granting summary judgment on breach of fiduciary duty, it also erred by granting summary judgment on the derivative claim for aiding and abetting breach of fiduciary duty); see also Mims, 810 S.W.2d at 880-81 (stating that a lessee can be held li

2013See Tilton v. Marshall , 925 S.W.2d 672, 681 (Tex. 1996) (op. on reh’g) (stating that civil conspiracy is a derivative claim of an underlying tort for which the plaintiff “seeks to hold at least one of the named defendants liable”); Anderton v. Cawley , 378 S.W.3d 38, 54 (Tex. App.—Dallas 2012, no pet.) (concluding that when the trial court erred by granting summary judgment on breach of fiduciary duty, it also erred by granting summary judgment on the derivative claim for aiding and abetting breach of fiduciary duty); see also Mims , 810 S.W.2d at 880-81 (stating that a lessee can be held lia

2013“There is but one cause of action for an employee’s injuries . . . .” Franks v. Sematech, Inc., 936 S.W.2d 959, 960 (Tex. 1997) (per curiam) (concluding employee could intervene even after limitations had run).

2007See Franks v. Sematech, Inc., 936 S.W.2d 959, 960 (Tex.1997) (examining a carrier’s subrogation claim, stating “[t]here is but one cause of action for an employee’s injuries, and it belongs to the employee.”).

2013See Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996) (op. on reh’g) (stating that civil conspiracy is a derivative claim of an underlying tort for which the plaintiff “seeks to hold at least one of the named defendants liable”); Anderton v. Cawley, 378 S.W.3d 38 , 54 49 (Tex. App.—Dallas 2012, no pet.) (concluding that when the trial court erred by granting summary judgment on breach of fiduciary duty, it also erred by granting summary judgment on the derivative claim for aiding and abetting breach of fiduciary duty); see also Mims, 810 S.W.2d at 880-81 (stating that a lessee can be held li

2013See Tilton v. Marshall , 925 S.W.2d 672, 681 (Tex. 1996) (op. on reh’g) (stating that civil conspiracy is a derivative claim of an underlying tort for which the plaintiff “seeks to hold at least one of the named defendants liable”); Anderton v. Cawley , 378 S.W.3d 38, 54 (Tex. App.—Dallas 2012, no pet.) (concluding that when the trial court erred by granting summary judgment on breach of fiduciary duty, it also erred by granting summary judgment on the derivative claim for aiding and abetting breach of fiduciary duty); see also Mims , 810 S.W.2d at 880-81 (stating that a lessee can be held lia

2009See Whittlesey v. Miller, 572 S.W.2d 665 , 666 n.1 (Tex. 1978).

2009See Whittlesey v. Miller , 572 S.W.2d 665 , 666 n.1 (Tex. 1978).

2023Similarly, because we have determined that Lisa lacked standing to assert this derivative claim, we need not address the Individual Appellants’ argument that the 34 Sufficiency of the Evidence The test for legal sufficiency is “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

2022Similarly, because we have determined that Lisa lacked standing to assert this derivative claim, we need not address the Individual Appellants’ argument that the 33 Sufficiency of the Evidence The test for legal sufficiency is “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

2021Reed Tool Co. v. Copelin, 610 S.W.2d 736, 740 (Tex. 1980) (holding that wife’s derivative claim of negligent impairment of consortium was barred by husband’s workers’ compensation agreement but that her action for intentional impairment of consortium was not); see also Reed Tool, 689 S.W.2d at 407-08 (holding that summary judgment in wife’s action for intentional impairment of consortium was proper because wife could not establish employer’s requisite intent to injure). 3 In their briefs, the parties argue whether Appellee has established the elements of its election-of- remedies defense.

1987Whittlesey, 572 S.W.2d at 667 ; Reed Tool Co. v. Copelin, 610 S.W.2d 736, 738 (Tex.1981).

2020Some circuits have expressly rejected a derivative immunity that deprives the courts of jurisdiction, holding instead that the protection for government contractors merely provides a form of “qualified immunity” that must “be reviewed on the merits rather than for jurisdiction.” Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 647 (6th Cir. 2015); see also Ackerson v. Bean Dredging LLC, 589 F.3d 196 , 207-08 (5th Cir. 2009) (holding that protection for contractors under Yearsley is not “shared” sovereign immunity and “does not deny the court of subject-matter jurisdiction”); U.S. ex rel.

2020Some circuits have expressly rejected a derivative immunity that deprives the courts of jurisdiction, holding instead that the protection for government contractors merely provides a form of “qualified immunity” that must “be reviewed on the merits rather than for jurisdiction.” Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 647 (6th Cir. 2015); see also Ackerson v. Bean Dredging LLC, 589 F.3d 196 , 207-08 (5th Cir. 2009) (holding that protection for contractors under Yearsley is not “shared” sovereign immunity and “does not deny the court of subject-matter jurisdiction”); U.S. ex rel.

2020Some circuits have expressly rejected a derivative immunity that deprives the courts of jurisdiction, holding instead that the protection for government contractors merely provides a form of “qualified immunity” that must “be reviewed on the merits rather than for jurisdiction.” Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 647 (6th Cir. 2015); see also Ackerson v. Bean Dredging LLC, 589 F.3d 196 , 207-08 (5th Cir. 2009) (holding that protection for contractors under Yearsley is not “shared” sovereign immunity and “does not deny the court of subject-matter jurisdiction”); U.S. ex rel.

2020Some circuits have expressly rejected a derivative immunity that deprives the courts of jurisdiction, holding instead that the protection for government contractors merely provides a form of “qualified immunity” that must “be reviewed on the merits rather than for jurisdiction.” Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 647 (6th Cir. 2015); see also Ackerson v. Bean Dredging LLC, 589 F.3d 196 , 207-08 (5th Cir. 2009) (holding that protection for contractors under Yearsley is not “shared” sovereign immunity and “does not deny the court of subject-matter jurisdiction”); U.S. ex rel.

2015Wohlstein v. Aliezer, 321 S.W.3d 765, 775 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

2013See Wohlstein v. Aliezer, 321 S.W.3d 765, 775 (Tex.App.-Houston [14th Dist.] 2010, no pet.); SP Midtown, Ltd. v. Urban Storage, L.P., No. 14-07-00717-CV, 2008 WL 1991747 , at *9 (Tex.App.-Houston [14th Dist.] May 8, 2008, pet. denied) (mem. op.).

2013See Ross v. Bernhard, 396 U.S. 531, 538 , 90 S.Ct. 733 , 24 L.Ed.2d 729 (1970); Hanson v. Odyssey Healthcare, Inc., 3:04-CV-2751-N, 2007 WL 5186795 , at *5 (N.D.Tex.

2013See Ross v. Bernhard, 396 U.S. 531, 538 , 90 S.Ct. 733 , 24 L.Ed.2d 729 (1970); Hanson v. Odyssey Healthcare, Inc., 3:04-CV-2751-N, 2007 WL 5186795 , at *5 (N.D.Tex.

2007Tooley v. Donaldson, Lufkin & Jenrette, 845 A.2d 1031, 1036 (Del.2004).

2007Tooley v. Donaldson, Lufkin & Jenrette , 845 A.2d 1031, 1036 (Del. 2004).

2004See Eagle Pass, 14 S.W.3d at 805 (in rejecting argument that, even if governmental immunity did not apply, Labor Code still did not empower Commission to assess penalties against political subdivisions, holding that the city and Capital Metro were “indisputedly ‘persons’ against which the Commission may assess an administrative penalty”).

2004Id. at 803-04 (citations omitted; emphasis in original).

1994Washam v. Hughes, 638 S.W.2d 646, 648 (Tex.App.—Austin 1982, writ refd n.r.e.).

1993Washam v. Hughes, 638 S.W.2d 646, 648 (Tex.App.—Austin 1982, writ ref d n.r.e.).

1994More importantly, indemnity is not merely a derivative claim as is contribution: “[T]he right to indemnity usually arises when one tortfeasor has breached a duty owed to a eo-tortfeasor.” Id.; Shoemaker v. Fogel, Ltd., 826 S.W.2d 933, 935 (Tex.1992) (characterizing contribution as “derivative of the plaintiffs right to recover from the joint defendant against whom contribution is sought.”).

1993More importantly, indemnity is not merely a derivative claim as is contribution: "[T]he right to indemnity usually arises when one tortfeasor has breached a duty owed to a co-tortfeasor." Id. ; Shoemaker v. Fogel, Ltd. , 826 S.W.2d 933, 935 (Tex. 1992) (characterizing contribution as "derivative of the plaintiff's right to recover from the joint defendant against whom contribution is sought.").

2013And while a defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense, to accomplish this, as pointed out by Bradshaw, the defendant-movant must present summary judgment evidence that conclusively establishes each element of the affirmative defense, which Range has not done.17 See Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494 , 508-09 (Tex. 2010), cert. denied, 131 S. Ct. 1017 (2011); see also Tex. R.

2013And while a defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense, to accomplish this, as pointed out by Bradshaw, the defendant-movant must present summary judgment evidence that conclusively establishes each element of the affirmative defense, which Range has not done. [17] See Frost Nat’l Bank v. Fernandez , 315 S.W.3d 494 , 508-09 (Tex. 2010), cert. denied , 131 S. Ct. 1017 (2011); see also Tex. R.

2024Whitelock, 661 S.W.3d at 607.

2024Whitelock v. Stewart, 661 S.W.3d 583 , 607 (Tex. App.—El Paso 2023, pet. denied) (“When a defendant brings a TCPA motion seeking to dismiss a derivative claim of either ‘civil conspiracy’ or ‘aiding and abetting,’ the court need only analyze the issue of whether the underlying tort upon which those claims rely survives the motion.”); Warner Bros.

2020See Meyers, 548 S.W.3d at 484-85; Dubai Petroleum Co., 12 S.W.3d at 76-77. 14 We applied these holdings to the shareholder context in Sneed, declining to characterize an essential element of the shareholder’s derivative claim as a matter of standing because doing so would render judgments vulnerable to collateral attack as void for lack of subject-matter jurisdiction. 465 S.W.3d at 186-87; see id. at 186 (“The defendants confuse standing with an issue that goes to the merits.”). 15 Instead, we adhered to our “approach to jurisdictional questions designed to strengthen finality and reduce the p

2020See Meyers, 548 S.W.3d at 484-85; Dubai Petroleum Co., 12 S.W.3d at 76-77. 14 We applied these holdings to the shareholder context in Sneed, declining to characterize an essential element of the shareholder’s derivative claim as a matter of standing because doing so would render judgments vulnerable to collateral attack as void for lack of subject-matter jurisdiction. 465 S.W.3d at 186-87; see id. at 186 (“The defendants confuse standing with an issue that goes to the merits.”). 15 Instead, we adhered to our “approach to jurisdictional questions designed to strengthen finality and reduce the p

2026See Franka, 332 S.W.3d at 382 - 83.

2026Members of a nonprofit corporation ordinarily have no individual cause of action for a wrong done to the corporation, Tran v. Hoang, 481 S.W.3d 313, 316 (Tex. App.— Houston [1st Dist.] 2015, pet. denied), and may bring a derivative claim only under limited circumstances, see Grant Me the Wisdom Found. v. Boyar, 716 S.W.3d 916 , 927 (Tex. App.—Houston [14th Dist.] 2025, pet. denied) (noting that Texas Business Organizations Code, which governs derivative standing of shareholders of for-profit and nonprofit corporations, does not give shareholders of nonprofit corporations derivative standing ot

2024See LoneStar Logo, 552 S.W.3d at 350 (“[A] fundamental and definitional attribute of a derivative action, as long known to Texas law (and more generally), is that the claimant possesses a present ownership interest in the entity on whose behalf it purports to sue, such that it has a stake in the outcome of those claims.”) (cleaned up).

2024See In re LoneStar Logo & Signs, LLC, 552 S.W.3d 342, 353 (Tex. App.—Austin 2018, orig. proceeding).