demand claim in Texas

2022Barker, 407 U.S. at 529 (“We hardly need add that if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine, the demand rule aside.”); Rivera v. State, 990 S.W.2d 882, 890 (Tex. App.—Austin 1999, pet. ref’d) (given defendant’s “hasty disappearance from Austin” and use of aliases, the “reason for delay” factor did not weigh against the State).

2021See Barker, 407 U.S. at 528 n.28 (in rejecting the old demand-waiver rule, the Court noted, “[T]here are a number of situations, such as where . . . the defendant is without counsel, in which it is unfair to require a demand.” (quoting Am.

2013Co., 158 Tex. 433 , 312 S.W.2d 493, 501 (1958) (noting that “attorney’s fees are not part of the demand or claim, but are in the nature of a penalty, or punishment for failure to pay a just debt”); Butler, 51 S.W.3d at 797 (citing Williams and awarding prevailing employer fees under section 38.001).

2013Co., 158 Tex. 433 , 312 S.W.2d 493, 501 (1958) (noting that “attorney’s fees are not part of the demand or claim, but are in the nature of a penalty, or punishment for failure to pay a just debt”); Butler, 51 S.W.3d at 797 (citing Williams and awarding prevailing employer fees under section 38.001).

2025Ventures, L.P. v. Sheldon, 526 S.W.3d 428 , 436–37 (Tex. 2017) (quoting In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010)). 50 In re Schmitz, 285 S.W.3d 451, 459 (Tex. 2009) (citing Kamen, 500 U.S. at 101 (explaining that the demand requirement for derivative actions “was adopted to preserve the principle that a corporation should be run by its board of directors, not a disgruntled shareholder or the courts”)). 51 In re J.B.

2015See Kamen, 500 U.S. at 96 (“The purpose of the demand requirement is to affor[d] the directors an opportunity to exercise their reasonable business judgment and waive a legal right vested in the corporation in the belief that its best interests will be promoted by not insisting on such right.”) (quotations omitted).9 But this statutory demand requirement does not apply to shareholder derivative proceedings brought on behalf of closely held corporations.

2015See Hunter, 620 S.W.2d at 551 (“[T]he [Legislature is never presumed to do a useless act.”).

2015See Hunter, 620 S.W.2d at 551 (“[T]he [L]egislature is never presumed to do a useless act.”).

2015Corp., 625 F.2d 49, 53-54 (5th Cir.1980); accord Zauber, 591 S.W.2d at 939 (recognizing that when a demand is not required, a shareholder may maintain a derivative action despite the fact that the board of directors voted not to pursue the corporation’s cause of action).

2015Corp., 625 F.2d 49 , 53–54 (5th Cir. 1980); accord Zauber, 591 S.W.2d at 939 (recognizing that when a demand is not required, a shareholder may maintain a derivative action despite the fact that the board of directors voted not to pursue the corporation’s cause of action).

2008C. ' 141(a) (providing that the directors are granted the authority to manage the business of the corporation; Braddock v. Zimmerman , 906 A.2d 776, 784 (Del. 2006) (stating the demand requirement is a substantive right designed to give the corporation the opportunity to rectify an alleged wrong without litigation and control any litigation that arises); Pogostin v. Rice , 480 A.2d 619, 624 (Del. 1984), overruled on other grounds by Brehm v. Eisner , 746 A.2d 244 (Del. 2000) ( A [T]he derivative action impinges on the managerial freedom of directors. @ ); Aronson , 473 A.2d at 812 ( A [T]he de

2008C. § 141(a) (providing that the directors are granted the authority to manage the business of the corporation; Braddock v. Zimmerman, 906 A.2d 776, 784 (Del.2006) (stating the demand requirement is a substantive right designed to give the corporation the opportunity to rectify an alleged wrong without litigation and control any litigation that arises); Pogostin v. Rice, 480 A.2d 619, 624 (Del.1984), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del.2000) ("[T]he derivative action impinges on the managerial freedom of directors.”); Aronson, 473 A.2d at 812 (‘‘[T]he demand require

2015See Helping Hands Home Care, Inc., 393 S.W.3d at 516 (“[N]either the filing of a suit, nor the allegation of a demand in the pleadings can, alone, constitute a presentment of a claim or a demand that the claim be paid . . . .”).

2014“No particular form of presentment of a claim is required.” Id. “ However, neither the filing of a suit, nor the allegation of a demand in the pleadings can, alone, constitute a presentment of a claim or a demand that the claim be paid, within the meaning of section 38.002.” Id. (citing W.

1988See Mackey v. Mackey, 721 S.W.2d 575, 579 (Tex.App.—Corpus Christi 1986, no writ); see also Western Casualty and Surety Co. v. Preis, 695 S.W.2d 579, 589 (Tex.App.—Corpus Christi 1985, writ ref’d n.r.e.).

1987Western Casualty & Surety v. Preis, 695 S.W.2d at 589 .

2015R EV . 59, 66 (1997) (recognizing that the purpose of the demand requirement “advances the fundamental principle of corporate law that the business and affairs of a corporation, including decisions regarding whether a particular claim should be litigated, are managed by directors, rather than by shareholders,” and that the demand requirement provides directors an opportunity to exercise their business judgment in deciding whether enforcing the corporation’s rights in litigation is in the corporation’s best interests). 21 principle of corporate governance that the decisions of a corporation—inc

2015R EV . 59, 66 (1997) (recognizing that the purpose of the demand requirement “advances the fundamental principle of corporate law that the business and affairs of a corporation, including decisions regarding whether a particular claim should be litigated, are managed by directors, rather than by shareholders,” and that the demand requirement provides directors an opportunity to exercise their business judgment in deciding whether enforcing the corporation’s rights in litigation is in the corporation’s best interests). 21 principle of corporate governance that the decisions of a corporation—inc

2008C. ' 141(a) (providing that the directors are granted the authority to manage the business of the corporation; Braddock v. Zimmerman , 906 A.2d 776, 784 (Del. 2006) (stating the demand requirement is a substantive right designed to give the corporation the opportunity to rectify an alleged wrong without litigation and control any litigation that arises); Pogostin v. Rice , 480 A.2d 619, 624 (Del. 1984), overruled on other grounds by Brehm v. Eisner , 746 A.2d 244 (Del. 2000) ( A [T]he derivative action impinges on the managerial freedom of directors. @ ); Aronson , 473 A.2d at 812 ( A [T]he de

2008C. § 141(a) (providing that the directors are granted the authority to manage the business of the corporation; Braddock v. Zimmerman, 906 A.2d 776, 784 (Del.2006) (stating the demand requirement is a substantive right designed to give the corporation the opportunity to rectify an alleged wrong without litigation and control any litigation that arises); Pogostin v. Rice, 480 A.2d 619, 624 (Del.1984), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del.2000) ("[T]he derivative action impinges on the managerial freedom of directors.”); Aronson, 473 A.2d at 812 (‘‘[T]he demand require

2008C. ' 141(a) (providing that the directors are granted the authority to manage the business of the corporation; Braddock v. Zimmerman , 906 A.2d 776, 784 (Del. 2006) (stating the demand requirement is a substantive right designed to give the corporation the opportunity to rectify an alleged wrong without litigation and control any litigation that arises); Pogostin v. Rice , 480 A.2d 619, 624 (Del. 1984), overruled on other grounds by Brehm v. Eisner , 746 A.2d 244 (Del. 2000) ( A [T]he derivative action impinges on the managerial freedom of directors. @ ); Aronson , 473 A.2d at 812 ( A [T]he de

2008C. § 141(a) (providing that the directors are granted the authority to manage the business of the corporation; Braddock v. Zimmerman, 906 A.2d 776, 784 (Del.2006) (stating the demand requirement is a substantive right designed to give the corporation the opportunity to rectify an alleged wrong without litigation and control any litigation that arises); Pogostin v. Rice, 480 A.2d 619, 624 (Del.1984), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del.2000) ("[T]he derivative action impinges on the managerial freedom of directors.”); Aronson, 473 A.2d at 812 (‘‘[T]he demand require

2006Co. v. Davalos, 84 S.W.3d 314, 318-19 (Tex.App.-Corpus Christi 2002), rev’d on other grounds, 140 S.W.3d 685 (Tex.2004) (holding that the insurer did not fail to timely provide a defense and thus declining to decide whether an insurer’s failure to promptly pay defense costs could entitle an insured to article 21.55 penalties). 14 *65 We agree with our sister courts who have held that a demand for a defense under a liability policy is not a first party claim under such policy.

2006Co. v. Davalos , 84 S.W.3d 314, 318-19 (Tex. App. C Corpus Christi 2002), rev = d on other grounds , 140 S.W.3d 685 (Tex. 2004) (holding that the insurer did not fail to timely provide a defense and thus declining to decide whether an insurer = s failure to promptly pay defense costs could entitle an insured to article 21.55 penalties). [14] We agree with our sister courts who have held that a demand for a defense under a liability policy is not a first party claim under such policy.

1998See Meredith, 753 S.W.2d at 193 ; Balios, 733 S.W.2d at 310 .

1998See Meredith , 753 S.W.2d at 193 ; Balios , 733 S.W.2d at 310 .

2022Hauling 365, citing Texas Rule of Civil Procedure 93, responds that “presentment of a claim is a statutory element that is presumed once the pleadings at issue ‘set up’ the issue of presentment.” Hauling 365 contends that “Martinez was clearly aware that [Hauling 365] sought attorney’s fees from it by the nature of the causes of action claimed and the attorney’s fees sought.” “However, neither the filing of a suit, nor the allegation of a demand in the pleadings can alone constitute presentment of a claim or a demand that the claim be paid.” Id.; Carr v. Austin Forty, 744 S.W.2d 267, 271 (Tex.

2012Goodin, 257 S.W.3d at 349 ; Austin Forty, 744 S.W.2d at 271 .

2015Corp., 625 F.2d 49, 53-54 (5th Cir.1980); accord Zauber, 591 S.W.2d at 939 (recognizing that when a demand is not required, a shareholder may maintain a derivative action despite the fact that the board of directors voted not to pursue the corporation’s cause of action).

2015Corp., 625 F.2d 49 , 53–54 (5th Cir. 1980); accord Zauber, 591 S.W.2d at 939 (recognizing that when a demand is not required, a shareholder may maintain a derivative action despite the fact that the board of directors voted not to pursue the corporation’s cause of action).

2025Ventures, L.P. v. Sheldon, 526 S.W.3d 428 , 436–37 (Tex. 2017) (quoting In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010)). 50 In re Schmitz, 285 S.W.3d 451, 459 (Tex. 2009) (citing Kamen, 500 U.S. at 101 (explaining that the demand requirement for derivative actions “was adopted to preserve the principle that a corporation should be run by its board of directors, not a disgruntled shareholder or the courts”)). 51 In re J.B.

2025Ventures, L.P. v. Sheldon, 526 S.W.3d 428 , 436–37 (Tex. 2017) (quoting In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010)). 50 In re Schmitz, 285 S.W.3d 451, 459 (Tex. 2009) (citing Kamen, 500 U.S. at 101 (explaining that the demand requirement for derivative actions “was adopted to preserve the principle that a corporation should be run by its board of directors, not a disgruntled shareholder or the courts”)). 51 In re J.B.

2025Hunt Transp., Inc., 492 S.W.3d 287 , 298–99 (Tex. 2016) (quoting Coastal Oil & Gas Corp. v. Flores, 908 S.W.2d 517, 518 (Tex. App.— San Antonio 1995, orig. proceeding)). 15 individual causes of action.52 The trial court therefore erred in failing to dismiss the Shareholders’ suit with prejudice. * * * The advisory agreement benefits the Trust’s shareholders collectively.