Texas Supreme Court oral argument preview (12/9/14)

The Texas Supreme Court will hear oral argument in three cases in Austin on Tuesday, December 9, 2014. The first case involves several issues pertaining to a shareholder-derivative suit, including whether a minority shareholder of the parent company has standing to bring the suit. The second case involves a DTPA claim arising from sexual assaults committed by a babysitter. There are issues about whether the DPTA applies and whether there is evidence of producing cause. In the third case, an employee of a nonsubscriber is seeking to recover for an alleged premises defect that he was aware of and was required to remedy. Reproduced below is the Court’s advisory about the scheduled arguments.– Scott Stolley, Thompson & Knight Texas Supreme Court advisoryContact: Osler McCarthy, staff attorney for public information512.463.1441 or click for emailFor Tuesday, December 9, 2014CORRECTION THREE ARGUMENTS SET TUESDAYThe third summary, in 12-0216, makes clear that the certified question arises from a premises-defect claim by an employee against a non-subscriber employer and not, as the lead-in suggested, a workers-compensation claim. Duh, on my part.Arguments begin at 9 a.m. in the Supreme Court Courtroom in Austin. Link for live video webcasts courtesy of TexasBarCLE.com.12-0045Robert Wayne Sneed, et al. v. Lloyd P. Webre Jr.from Harris County and Houston’s First Court of AppealsFor petitioners: Kevin D. Jewell, HoustonFor respondents: Reagan W. Simpson, Houston            The principal issues in this shareholder-derivative suit are (1) whether the business-judgment rule protects against challenges to board decisions involving a closely held corporation; (2) whether the shareholder bringing the challenge must plead and prove fraud by directors or self-dealing to have standing to file the derivative suit; and (3) whether a derivative action must be brought by a shareholder in the subsidiary and wholly owned operating company. In this case Webre, who owns almost a quarter of Texas United, a holding company, sued on Texas United’s behalf and for United Salt, the wholly owned operating subsidiary, over an acquisition he contends was pushed on the company’s board by United Salt’s officers. Webre’s claims include fiduciary-duty breaches by the officers and fraud. The officers and both companies challenge Webre’s standing. The trial court dismissed the derivative claims for lack of standing and the appeals court reversed.BriefsCourt of appeals opinion13-0967S.A.S and L.O.S. v. Beth Bryant, et al.from Harris County and Houston’s First Court of AppealsFor petitioners: Christopher Dove, HoustonFor respondents: Britton B. Harris and Brock C. Akers, Houston            The principal issues in this challenge to an award for deceptive-trade practices, arising from a teenaged babysitter’s sexual assault of two boys in his care, are (1) whether legally sufficient evidence supports the producing-cause element for liability based on flyers soliciting babysitting work for the teen and (2) whether the deceptive trade-practices act’s general exclusion of bodily injury and mental-anguish claims bars all damages for personal injury. The boys’ parents sued Bryant, a preschool teacher at a church school the boys attended, and the church and school, alleging Bryant’s flyer promoting her son for child-care services deceived them because it did not mention his attention-deficit disorder, depression and low self-esteem or that Bryant discovered him several times viewing adult heterosexual pornography. The boys’ parents had used Bryant’s daughter for babysitting in the past without incident. A jury found the flyer deceptive, but the court of appeals reversed, holding that legally sufficient evidence did not support Bryant’s acts as the cause that produced the boys’ injuries.BriefsCourt of appeals opinion14-0216Randy Austin v. Kroger Texas L.P.certified from the Fifth Circuit U.S. Court of AppealsFor appellant: Matthew J. Kita, DallasFor appellee: Donna C. Peavler, Dallas            In this worker-injury case, the Fifth Circuit asks whether under Texas law an employee may recover from a non-subscribing employer for injury caused by a premises defect he was aware of but that his job required him to remedy. As the circuit stated the question in the alternative: “Put differently, does the employee’s awareness of the defect eliminate the employer’s duty to maintain a safe workplace?” Austin fell, breaking a leg and dislocating a hip, while he mopped water that flooded a floor from power washing work.Fifth Circuit opinionBriefsNOTE:This advisory is for planning purposes only. The Court’s staff attorney for public information prepares these summaries, which reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits.