Robert L. Moody, Jr. v. National Western Life Insurance Company and National Western Life Group, Inc. , Ross Rankin Moody ( 2020 )

Opinion issued December 10, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-01106-CV
———————————
ROBERT L. MOODY, JR., Appellant
V.
NATIONAL WESTERN LIFE INSURANCE COMPANY; NATIONAL
WESTERN LIFE GROUP, INC.; ROSS RANKIN MOODY; ELVIN
JEROME PEDERSON; STEPHEN EDWARD GLASGOW; CHARLES D.
MILOS; ERLE DOUGLAS MCLEOD; LOUIS EDWARD PAULS, JR.; AND
FRANCES ANNE MOODY-DAHLBERG, Appellees
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Case No. 17-CV-1196
OPINION
Robert L. Moody, Jr. filed a shareholder’s derivative suit challenging business
practices of National Western Life Insurance Company, a wholly owned subsidiary
of National Western Life Group, Inc. Both the businesses and the individual board
members filed pleas to the jurisdiction, which the trial court granted. The trial court
also awarded the defendants a total of $1,314,053.73 in trial attorney’s fees and
expenses and up to $505,000 in appellate attorney’s fees. In three issues on appeal,
Moody Jr. challenges the rulings on the pleas to the jurisdiction, the award of fees
and expenses, and the dismissal of a counterclaim.
We modify the judgment to condition the award of appellate attorney’s fees
on success in the appellate court, and as modified we affirm the trial court’s
judgment.
Background
I. The companies and the family
National Western Life Insurance Company (“National Western”) was
founded in 1956 by Robert L. Moody, who served as Chairman and Chief Executive
Officer of the company until June 2015. National Western is incorporated in
Colorado and has maintained its principal place of business in Austin, Texas since
1963. In 1968, National Western acquired by merger a company that had in force
numerous policies insuring citizens of Central and South America. National Western
2
assumed these international policies and thereafter accepted by mail applications for
insurance from residents of other countries. National Western took the position that
it did not need to be licensed in other countries because it was licensed in Texas,
received applications and issued policies in Texas, and worked only with
independent international brokers.1
Robert L. Moody, Jr. (“Moody Jr.”) is the eldest son of Robert L. Moody
(“Moody Sr.”). Moody Jr. owns Moody Insurance Group, Inc. (“Moody Insurance”),
an insurance marketing business. By contract, both Moody Insurance and Moody
Jr., individually, are “independent contractor” agents for National Western. They
earn commissions for sales of National Western products based on standard
commission schedules. Moody Jr. purchased shares of National Western between
2008 and January 1, 2012.
1
In both its brochures and policies, National Western included disclamatory language
about its sales to international residents.
National Western Life Insurance Company offers a full line of life
insurance and annuity products through general independent agencies
in 49 states, the District of Columbia, four U.S. territories or
possessions, and Haiti. The Company does not maintain offices in any
other country, but it does accept applications at its Home Office in
Austin, Texas from—and issues policies to—non-U.S. residents.
As the Company makes no representation regarding the advisability,
suitability, or legality of your application for, and purchase of, a
policy from the Company, you should consult with your own
independent advisors if you have questions.
3
Ross Rankin Moody is Moody Jr.’s younger brother, and he has been
President and Chief Operating Officer of National Western since 2000. Other family
members who serve on the board of directors of National Western include: Moody
Jr.’s stepmother, Ann M. Moody; his half-sister, Frances A. Moody-Dahlberg; and
his stepmother’s brother, E. Douglas McLeod.
In the early 2000s, National Western’s issuance of policies to non-U.S.
residents increased steeply. Texas insurance regulators raised concerns about
National Western’s activities in Argentina and Russia. Based on advice of counsel,
National Western responded in writing that it “does not market or solicit products in
foreign countries” and that it works with independent brokers abroad.2
II. The Brazilian enforcement action
In 2005, a Brazilian court entered a default judgment against National Western
for wrongful refusal to pay a life insurance claim.3 As a result of that judgment, the
2
National Western’s counsel also acknowledged that there was a “possibility of
money laundering attempts” in various aspects of its business, and around 2002,
National Western implemented an anti-money-laundering program. In addition,
between 2000 and 2010, National Western developed new products for the
international market, approval for which was obtained from Moody Sr. In January
2000, Moody Insurance executed its executive general agent contract with National
Western.
3
See Naves v. Nat’l W. Life Ins. Co., No. 03-08-00525-CV, 2009 WL 2900755, at *1
(Tex. App.—Austin Sept. 10, 2009, pet. denied) (mem. op.). Naves later attempted
to domesticate the judgment, but Texas courts concluded that the Brazilian court
lacked jurisdiction over National Western. Id.
4
Brazilian regulatory authority (“SUSEP”)4 initiated an infraction proceeding against
National Western, alleging that it had operated as an insurance company without due
authorization. In 2011, SUSEP assessed an ex parte penalty in an amount equal to
about $6 billion U.S.5 When National Western learned of the fine in late October
2011, it obtained an additional legal opinion from a Brazilian law firm confirming
its position that Brazilian law did not prohibit it from issuing policies to Brazilian
residents or bring it within the jurisdiction of Brazilian authorities.
National Western disclosed the situation in 2011 and 2012 Securities and
Exchange Commission filings. On advice of counsel, National Western appeared in
the Brazilian infraction proceeding, and on further appeal the fine was reduced to
approximately $960,000 U.S. National Western paid the fine without admitting
liability and stopped selling insurance policies to Brazilian residents. Brazilian
authorities then opened a criminal investigation regarding the sales of insurance to
its residents.
4
SUSEP is an acronym for the Portuguese term for the Superintendence of Private
Insurance.
5
SUSEP determined that it had jurisdiction over National Western, relying in part on
National Western’s website, which boasted that it had a presence in Brazil for 26
years. In imposing the $6 billion penal fine, SUSEP concluded that the independent,
non-exclusive, commission-only Brazilian brokers constituted a “sales force” of
National Western representatives.
5
Meanwhile, in 2013 National Western hired Price Waterhouse to study the
feasibility of becoming licensed to sell insurance in Brazil. The study concluded it
would not be profitable to operate in that manner because National Western’s
business advantage was the ability to denominate policies in stable U.S. dollars as
opposed to the volatile Brazilian real.
III. Creation of the holding company
In March 2015, National Western Life Group, Inc. (“Group”) was
incorporated in Delaware.6 National Western shares were converted one-for-one to
shares in Group, which holds all of the currently issued stock of National Western.
Group does not issue insurance or conduct any insurance business.
IV. A family matter
In 2016, National Western’s audit committee discontinued some of Moody
Jr.’s financial and in-kind benefits. In a series of text messages, Moody Jr. informed
Ross of his opposition to these actions. The same year, Ross’s daughter, Elizabeth,
was appointed as Trustee of the Moody Foundation, the family charitable entity.
Moody Jr., who had by then been thrice overlooked for appointment as trustee, also
expressed his opposition to this appointment.
6
The restated certificate of incorporation provided for governance by a board of
directors, whose liability was expressly limited: “[N]o director of [Group] shall be
personally liable to [Group] or its stockholders for monetary damages for breach of
fiduciary duty as a director.”
6
V. The inquiry and the demand
In January 2017, Moody Jr.’s attorney sent a letter to Ross and National
Western. The letter noted the SUSEP fine and proceeding, discounted National
Western’s jurisdictional defense, and questioned the company’s decision to continue
issuing insurance policies to non-U.S. residents. The letter also questioned Ross’s
“competency to serve on any board representing Moody family interests.” The letter
identified eight questions, most of which did not relate to National Western’s sales
to foreign residents or the SUSEP infraction proceeding.7 The letter also threatened
7
The eight questions raised were:
1. In November of 2016, although you remained the CEO, you resigned
your position as President of National Western. Were these matters, and
your role in them, fully disclosed to the board before your resignation?
2. With regard to National Western, what was the Audit Committee’s role
in authorizing this conduct?
3. In November 2016, you were named to the board of directors for
American National Insurance Company. Have these events, and your role
in the events, been disclosed to the ANICO board? If not, why? Has this
matter been brought to the attention of the ANICO ethics committee?
4. Both you and your daughter sit on the board of the Moody Foundation
giving your direct family considerable control of this important
Foundation. Have you disclosed this conduct to the rest of the family?
5. Has legal counsel disclosed your conduct to the following entities:
(1) ANICO; (2) The Moody Foundation; (3) The Moody Endowment; or
(4) Galtex Hotel Corporation?
6. Have you directly disclosed this information to John Smith, trustee at
Moody National Bank for the benefit of Robert L. Moody, Sr.?
7. Why have you never disclosed your conduct to Robert L. Moody, Jr. or
other family members?
7
the filing of a derivative suit. Counsel for Group contested the facts of Moody Jr.’s
January 2017 letter and concluded that the matters raised in that letter related to Ross
and the Moody family personally, not to National Western or Group.
In April 2017, Moody Jr. sent a demand letter to National Western and Group
alleging that board members had breached their fiduciary duties. It focused on the
enforcement action in Brazil, and it demanded that the boards of directors take eight
corrective actions including: (1) removing Ross as Chairman and Chief Executive
Officer of Group; (2) filing a civil action for breach of fiduciary duty against the
board members; (3) making additional disclosures to shareholders; (4) ending sales
without licenses in foreign jurisdictions; and (5) reimbursing Moody Jr. for
attorney’s fees and costs.8
VI. The companies’ response
The boards of directors of National Western and Group met jointly on June 6,
2017.9 They considered available information pertaining to:
8. Has an independent investigation been conducted to determine the facts
and assess the potential liability or impact on National Western on other
parties and their trustees, shareholders and directors? If so, will you
provide it to Bobby, Jr.?
8
In the letter, Moody Jr. stated that by “making this demand,” he did “not concede
that the Board is disinterested and independent.” He asserted that his intention was
to permit the Board to take the necessary corrective action.
9
The record of proceedings shows the individual board members who participated
from Group: (1) three class A directors (David S. Boone, Stephen E. Glasgow, and
E.J. Pederson); (2) six class B directors (Ross R. Moody, Ann M. Moody, Frances
8
(1) discontinuation of benefits previously given to Moody Jr.;
(2) legal standards relevant to a shareholder’s demand and the filing
of a derivative claim;
(3) the history of National Western’s international business model;
(4) prior legal opinions regarding the international business model;
(5) legal disclaimers in applications, policies, and brochures;
(6) application of Brazilian law regarding the sale of insurance;
(7) the historical practice of following advice of legal counsel;
(8) the Price Waterhouse feasibility study about becoming licensed
to sell insurance in Brazil;
(9) Brazilian business practices that differ from American practices,
including corruption and bribery;
(10) the growth and profitability of the business over the time period
when it made disclosures about the SUSEP proceeding;
(11) the advantages and disadvantages to National Western and
Group of filing of a lawsuit challenging the conduct of its boards
of directors;
(12) the relatively small size of the fine assessed by Brazilian
authorities compared to 30 years of profit in that market;
(13) Moody Jr.’s role in selling insurance on a commission basis;
(14) Moody Jr.’s continued involvement with the international
business and role as an executive general agent;
A. Moody-Dahlberg, E. Douglas McLeod, Charles D. Milos, Louis E. Pauls, Jr.);
and (3) one advisory director (Russell S. Moody). Directors who attended on behalf
of National Western directors were: Ross R. Moody, Stephen E. Glasgow, E.J.
Pederson, David S. Boone, Brian M. Pribyl, and Rey Perez.
9
(15) the ongoing Brazilian criminal investigation; and
(16) Moody Jr.’s status as potential beneficiary of his father’s
significant interest in Group.
The boards concluded that no further investigation was necessary and that a
suit by Group or National Western against its board of directors was not in the best
interest of the business. The boards voted to reject all of Moody Jr.’s demands; Ross
did not participate in the vote.
VII. Moody Jr. files this lawsuit
Moody Jr. filed a derivative suit based on the boards’ refusal of his demands,
and he sought damages and equitable relief, including attorney’s fees. Moody Jr.
made the following allegations:
• The boards failed to act in good faith and conduct a reasonable and
independent investigation.10
• The directors were not independent and should have appointed an
independent committee.
• The directors should have conducted interviews of board members and
Brazilian agents, examined the evidence considered by SUSEP, and
regarded inquiries from the Texas Department of Insurance about
business in Argentina and Russia as red flags to prompt an
investigation.
• The boards did not review the opinions of Brazilian officials or
documents relevant to the history of doing business in Brazil.
10
The suit is filed by Moody, Jr. derivatively on behalf of National Western and
Group. The defendants are Ross Rankin Moody, Elvin Jerome Pederson, Stephen
Edward Glasgow, Charles D. Milos, Earle Douglas McLeod, Louis Edward Pauls,
and Frances Anne Moody-Dahlberg.
10
• The boards should have produced a written report and failed to obtain
a legal opinion about conducting business in Brazil.11
• The defendant directors “failed to act in good faith or with the honest
belief that their actions taken in approving the unlawful sale of
insurance to international markets, was in the best interests of the
company.”
• The directors breached their fiduciary duties in relation to the sale of
insurance policies in international markets without first having obtained
licenses to sell insurance in each foreign country.12
11
Moody Jr. relied on the conclusion of Brazilian officials that the independent
brokers working in Brazil were actually employees of National Western.
12
Moody Jr.’s live pleading alleges that the director defendants breached their
fiduciary duties by:
(a) Knowingly or recklessly approving the unlawful sale of insurance
in the country of Brazil resulting in a $6 billion fine to the company;
(b) Knowingly or recklessly approving the unlawful sale of insurance
in other foreign jurisdictions including the countries of Taiwan,
Venezuela and others without making a reliable determination of
whether such conduct was, in fact, legal;
(c) Knowingly or recklessly placing policy holders and brokers in the
country of Brazil in the position of violating criminal law by failing
to inform brokers and policyholders that the purchase or sale of the
company’s insurance was illegal;
(d) Failing to obtain a full and comprehensive explanation of the
requirements for doing business in Brazil, the ramifications of
selling insurance in Brazil without a license, and the regulatory
proceedings in Brazil and failing to take appropriate remedial
actions; and
(e) Knowingly and recklessly engaging in a pattern and practice of
continuing and repeated unlawful conduct, with regard to the sale
of insurance in international markets, by failing to comply with
foreign laws and regulations.
11
The director defendants answered with a general denial and affirmative
defenses. National Western and Group pleaded a general denial and affirmative
defenses, and they counterclaimed for (1) expenses under chapter 21 of the Texas
Business Organizations Code and (2) breach of the managing general agent contract,
which they contended barred Moody Jr. from filing the shareholder derivative suit.
Moody Jr. filed a general denial and pleaded affirmative defenses in response
to the counterclaims. He also pleaded a claim for declaratory judgment construing
the managing general agent contract. He specifically asked the trial court to declare
that the managing general agent contract did not prevent him from instituting a
shareholder derivative suit and that he did not breach the contract by filing a
shareholder derivative suit. Moody Jr. sought attorney’s fees for his declaratory
judgment claim.
VIII. Pleas to the jurisdiction
National Western and Group filed a plea to the jurisdiction asserting that
Moody Jr. lacked standing to pursue the derivative action. They asserted three
grounds for dismissal for lack of standing: (1) the agency contract prohibited Moody
Jr. from suing on behalf of the companies; (2) Moody Jr.’s pleading was insufficient
to show that the boards wrongfully refused his demand for action; and (3) Moody Jr.
is not an adequate representative of Group stockholders, which is a standing
requirement under applicable Delaware law.
12
The director defendants also filed a plea to the jurisdiction. They asserted that
(1) Moody Jr. failed to plead facts sufficient to overcome the business judgment rule
and show that the boards wrongfully refused his demand for action; (2) Moody Jr. is
not an adequate representative of Group stockholders; and (3) Moody Jr. did not
plead facts establishing that he had a continuous interest in National Western stock
because the alleged wrong—selling insurance policies to Brazilian residents—began
long before he acquired any National Western stock.
Moody Jr. filed a response to both pleas to the jurisdiction to which he
attached only one exhibit, a photocopy of an article from the August 1987 Texas
Monthly entitled, “The Sleaziest Man in Texas,” about Moody Jr.’s uncle, Shearn
Moody, Jr., who was charged with swindling the Moody Foundation. Moody Jr.
relied on his pleadings and argued that he had pleaded particularized facts showing
the boards breached their duty of care by investigating his demand in a grossly
negligent way and that they had breached their duty of good faith by failing to
appoint an independent and disinterested committee to investigate his demand and
by deciding to refuse his demand.13
13
Specifically, Moody Jr. argued that the boards acted with gross negligence by:
(1) failing to appoint an independent and disinterested committee;
(2) failing to interview potential fact witnesses;
13
The trial court granted both pleas to the jurisdiction. In doing so, it expressly
concluded that additional repleading would be futile.
IX. Attorney’s fees and expenses
National Western and Group filed an application for expenses, including
reasonable and necessary attorney’s fees incurred in their defense and on behalf of
the director defendants. They argued that the record demonstrated that the boards
acted within the bounds of the business judgment rule and that text messages and
(3) failing to refute the facts upon which SUSEP imposed the ex parte $6 billion
fine; and
(4) failing to include written legal opinions and written information about the
ongoing criminal investigation in the materials presented to the board.
Moody Jr. argued that the boards did not act in good faith because the boards, which
included many members of the extended Moody family, were not independent and
disinterested. He also argued that the refusal of his demands was inexplicable and
therefore in bad faith in light of the following facts:
(1) the formation of Group as a holding company;
(2) a comment from Standard & Poor’s about governance deficiencies;
(3) National Western relied on a jurisdictional defense in opposing the fine in
Brazil;
(4) the size of the initial fine;
(5) discontinuation of sales to Brazilians;
(6) the ongoing Brazilian criminal investigation.
Finally, he argued that the directors knowingly authorized unlawful business
practices and that they faced a substantial threat of personal liability because their
actions were illegal and in bad faith and therefore indemnity would not apply.
14
other evidence showed that the Moody Jr. was motivated by personal animus. To
establish the amount of the expenses, they attached affidavits from three attorneys,
who attested to the Arthur Andersen factors and proved up the accompanying
contemporaneous billing statements as business records.14 The application for
expenses was set for an oral hearing.
Moody Jr. responded with a motion to vacate the trial court’s order on the
pleas to the jurisdiction. In that motion, he also replied to the request for expenses
and attorney’s fees. Moody Jr. asserted that National Western had defrauded the
court by finalizing its exit from the international market while defending against the
derivative suit.15 One of Moody Jr.’s demands had been for National Western to
leave the international market, and he argued that the company’s action was an
admission that the prior business model was illegal and unprofitable.
Moody Jr. argued that he was entitled to attorney’s fees. He asserted that
because his suit prompted National Western to leave the international market, it had
conferred a benefit on the company by reducing the risk of criminal and regulatory
penalties. He opposed the defendants’ application for expenses on the grounds that:
14
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 813 (Tex. 1997).
15
As proof, he attached an email indicating that National Western intended to finalize
its exit from the international market on May 11, 2018. He argued that this was one
of the demands in his April 17, 2017 demand letter. The email indicated that the
move was made due to “severe changes in financial markets around the world which
in turn [have] required an increased monitoring structure over the company.”
15
(1) they had not shown that his suit was maintained without reasonable cause or for
an improper purpose; (2) the attorney’s fees affidavits were inadmissible hearsay;
(3) he had not had an opportunity to conduct discovery on attorney’s fees and
expenses; and (4) a bench trial was required.
National Western and Group opposed Moody Jr.’s request for attorney’s fees
because “he achieved nothing through his lawsuit,” “obtained nothing of value to
the company,” and “obtained none of the relief he requested.” Group also reiterated
its arguments that Moody Jr. filed his suit for an improper purpose and without
reasonable cause.
Moody Jr. set his motion to vacate the pleas to the jurisdiction for hearing at
the same date and time as National Western and Group’s hearing on their application
for expenses. The entirety of the one-hour hearing was occupied with argument of
counsel on the motion to vacate. At the end of the hearing, the trial court took the
matters under advisement and invited the parties to file supplemental briefing.
Moody Jr. asserted that a bench trial on expenses was required and suggested
resetting the application for attorney’s fees for another time.16 National Western and
16
Moody Jr.’s counsel stated: “Your Honor, we do think it might be helpful, actually,
to have some discussion about the attorneys’ fees issue and the motion to transfer;
and we believe that with respect to the attorneys’ fees that a bench trial is actually
required. And we would like the opportunity to have that discussion with you. So
perhaps you could address the motion to vacate issue, and then we could reset these
other things for another time.”
16
Group argued that a summary disposition was appropriate.17 The court responded:
“I will review what you have put in writing, and I am not prepared to make a call off
the top of my head on that, not having reviewed the law or your pleadings.”
After the hearing, Moody Jr. filed supplemental briefing on his motion to
vacate the pleas to the jurisdiction and on attorney’s fees. In that document, he stated
that he had objected to the application for expenses on the grounds that the affidavits
are hearsay and a bench trial is required. He also argued that because the statute
authorizing an award of attorney’s fees does not mandate a particular procedure, the
attorney’s fee issue must be determined by summary judgment or trial. He did not
specifically request a ruling on any evidentiary objection or whether a bench trial
was required.
The trial court denied the motion to vacate the pleas to the jurisdiction.
Without expressly finding that Moody Jr. filed suit without reasonable cause or for
an improper purpose, the trial court granted the request for expenses.18
17
Counsel for the companies responded: “Your Honor, just so we are clear, our
position is, as set forth in our pleadings, that it’s wrong on this idea for a bench trial.
It’s a matter of law, and the Court can decide all that on the papers.”
18
The trial court awarded the following:
• $522,055.50 for reasonable and necessary fees and expenses charged by
Beck Redden LLP for investigation and defense of this matter on behalf of
National Western;
17
The corporate and individual defendants jointly moved for entry of final
judgment and set the motion for hearing. They argued that the granting of the pleas
to the jurisdiction mooted National Western and Group’s counterclaim for damages
for breach of the managing general agent contract and Moody Jr.’s declaratory
judgment claim about the same contract. They also argued that Moody Jr.’s
declaratory judgment claim was improper because it was “merely the mirror image”
of the breach of contract claim.
Moody Jr. objected to the proposed final judgment in writing, arguing that:
(1) he had paid the jury fee and was entitled to a jury trial on attorney’s fees; (2) he
was entitled to an opportunity for discovery on attorney’s fees; and (3) the dismissal
of his counterclaims would deny him due process.
• $36,200 for reasonable and necessary fees and expenses charged by S.R.
Lewis, Jr. in investigation and defense of this matter on behalf of National
Western;
• $755,798.23 for National Western’s indemnification of the director
defendants;
• Reasonable and necessary appellate attorneys’ fees of $250,000 in the event
of any appeal to the intermediate court of appeals;
• $65,000 for a petition for review in supreme court;
• $125,000 for appellate fees for Texas Supreme Court merits briefs; and
• $65,000 for oral argument at the Texas Supreme Court.
18
The trial court entered final judgment dismissing the contract claims and
awarding the attorney’s fees as previously ordered. Moody Jr. appealed.
Analysis
On appeal, Moody Jr. raises three issues, complaining of: (1) the trial court’s
ruling on the pleas to the jurisdiction; (2) the trial court’s award of attorney’s fees;
and (3) the trial court’s dismissal of his counterclaim for a declaratory judgment
construing the managing general agent contract.
I. The trial court correctly granted the pleas to the jurisdiction because
Moody Jr. failed to plead with particularity facts showing that the boards
wrongfully refused his demands.
A. Standard of review
Standing is a component of subject-matter jurisdiction that focuses on the
question of who may bring an action. Vernco Constr., Inc. v. Nelson, 460 S.W.3d
145, 149 (Tex. 2015); Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc.,
971 S.W.2d 439, 442 (Tex. 1998). “Courts lack subject-matter jurisdiction to
adjudicate disputes initiated by parties lacking standing.” Vernco Constr., 460
S.W.3d at 149. Whether a court has subject-matter jurisdiction is a question of law.
Id.; Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004);
see Levine v. Smith, 591 A.2d 194, 200 (Del. 1991), overruled on other grounds by
Brehm v. Eisner, 746 A.2d 244 (Del. 2000) (“The demand requirements of Rule 23.1
represent a procedural restatement of these bedrock principles of Delaware law of
19
corporate governance in the context of standing to maintain a derivative
shareholder’s suit.”).
A party may challenge a trial court’s subject-matter jurisdiction by filing a
plea to the jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554
(Tex. 2000). We review a trial court’s ruling on a plea to the jurisdiction de novo.
Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 512 (Tex.
2019) (citing Miranda, 133 S.W.3d at 226); cf. Brehm, 746 A.2d at 254 (courts
review de novo claims of pleading sufficiency under Delaware Court of Chancery
Rule 23.1).
Ordinarily a plea to the jurisdiction challenges the plaintiff’s pleadings,
asserting that the alleged facts do not affirmatively demonstrate the court’s
jurisdiction. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635
(Tex. 2012). We “construe the plaintiff’s pleadings liberally, taking all factual
assertions as true, and look to the plaintiff’s intent.” Heckman v. Williamson Cty.,
369 S.W.3d 137, 150 (Tex. 2012). A plea to the jurisdiction may also challenge the
existence of jurisdictional facts, and when it does, the parties may present evidence.
Mission Consol. Indep. Sch. Dist., 372 S.W.3d at 635. “When a jurisdictional issue
is not intertwined with the merits of the claims, which is the case here, disputed fact
issues are resolved by the court, not the jury.” Vernco Constr., 460 S.W.3d at 149.
20
When a plea to the jurisdiction challenges the existence of jurisdictional facts,
“a trial court’s review of a plea to the jurisdiction mirrors that of a traditional
summary judgment motion.” Mission Consol. Indep. Sch. Dist., 372 S.W.3d at 635.
The movant must present summary-judgment proof demonstrating that the court
lacks jurisdiction. Id. The burden then shifts to the nonmovant to show that there is
a disputed material fact on the jurisdictional issue. Id.; see TEX. R. CIV. P. 166a(c)
(to prevail on a traditional summary judgment motion, the movant must establish
that no genuine issues of material fact exist and that it is entitled to judgment as a
matter of law).
B. Delaware law applies
“In a derivative action brought on behalf of a Delaware corporation, Delaware
law applies to substantive issues, and Texas law governs procedural matters and
remedies.” Lapiner v. Maimon, 429 S.W.3d 816, 823 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied); see TEX. BUS. ORGS. CODE § 21.562(a), 21.562; Neff v.
Brady, 527 S.W.3d 511, 523 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (“[T]he
‘internal affairs doctrine’ provides that, with respect to foreign entities, the laws of
the entity’s jurisdiction of formation govern its internal affairs.”).
The business and affairs of a Delaware corporation are managed by or under
the direction of a board of directors, who owe to the corporation fiduciary duties of
loyalty and care. DEL. CODE tit. 8, § 141(a); Stone v. Ritter, 911 A.2d 362, 370 (Del.
21
2006). The duty of loyalty, which encompasses the duty of good faith, requires that
directors pursue the best interests of the corporation. See id.; In re Walt Disney Co.
Deriv. Litig., 906 A.2d 27, 53 (Del. 2006); In re Caremark Intern. Inc. Derivative
Litig., 698 A.2d 959, 967 (Del. Ch. 1996). Failure to act in good faith may be shown
with evidence that a director acted for “some purpose other than a genuine attempt
to advance corporate welfare,” or knowingly violated an applicable positive law.
Gagliardi v. TriFoods Int’l, Inc., 683 A.2d 1049, 1051 n.2 (Del. Ch. 1996). The duty
of care requires directors to “inform themselves, before making a business decision,
of all material information reasonably available to them.” Benihana of Tokyo, Inc. v.
Benihana, Inc., 891 A.2d 150, 192 (Del. Ch. 2005), aff’d, 906 A.2d 114 (Del. 2006).
Director liability is predicated on concepts of gross negligence, which is “conduct
that constitutes reckless indifference or actions that are without the bounds of
reason.”19 McPadden v. Sidhu, 964 A.2d 1262, 1274 (Del. Ch. 2008); see Stone, 911
A.2d at 370; Walt Disney, 906 A.2d at 53; Malpiede v. Townson, 780 A.2d 1075,
1096 (Del. 2001). “[C]ompliance with a director’s duty of care can never
appropriately be judicially determined by reference to the content of the board
19
The reckless indifference element refers to a reckless indifference to or deliberate
disregard of the stockholders. Rabkin v. Philip A. Hunt Chem. Corp., 547 A.2d 963,
970 (Del. Ch. 1986) (acknowledging that this formulation creates a “higher
threshold for liability than does the definition of gross negligence in general tort
law”).
22
decision that leads to a corporate loss, apart from consideration of the good faith or
rationality of the process employed.” Caremark, 698 A.2d at 967.
A stockholder’s derivative suit is “an action in which the individual
shareholder steps into the shoes of the corporation and usurps the board of directors’
authority to decide whether to pursue the corporation’s claims.” In re Crown Castle
Int’l Corp., 247 S.W.3d 349, 355 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
“The derivative action developed in equity to enable shareholders to sue in the
corporation’s name where those in control of the company refused to assert a claim
belonging to it.” Aronson v. Lewis, 473 A.2d 805, 811 (Del. 1984), overruled on
other grounds by Brehm, 746 A.2d at 244. Because a derivative suit “impinges on
the managerial freedom of directors,” a stockholder’s right to pursue a derivative
suit is “limited to situations where either the stockholder has demanded the directors
pursue a corporate claim and the directors have wrongfully refused to do so, or where
demand is excused because the directors are incapable of making an impartial
decision regarding whether to institute such litigation.” Stone, 911 A.2d at 366–67.
Delaware Court of Chancery Rule 23.1 imposes on the would-be derivative
plaintiff a heightened pleading standard to “allege with particularity the efforts, if
any, made by the plaintiff to obtain the action the plaintiff desires from the directors
or comparable authority and the reasons for the plaintiff’s failure to obtain the action
or for not making the effort.” Del. Ct. Chancery R. 23.1. Conclusory statements and
23
notice pleading are insufficient; the plaintiff must plead “particularized factual
statements that are essential to the claim.” Brehm, 746 A.2d at 254. A stockholder
who makes a presuit demand tacitly concedes the independence of a majority of the
board and the absence of futility. Spiegel v. Buntrock, 571 A.2d 767, 775 (Del. 1990).
The making of the demand places control of the derivative litigation in the hands of
the board of directors. Zapata Corp. v. Maldonado, 430 A.2d 779, 784–86 (Del.
1981). As a result, in a demand refused case like this one, the board’s decision is
subject to the business judgment rule. Spiegel, 571 A.2d at 775.
The business judgment rule is “a presumption that ‘in making a business
decision the directors of a corporation acted on an informed basis, in good faith and
in the honest belief that the action taken was in the best interests of the company
[and its shareholders].’” Emerald Partners v. Berlin, 787 A.2d 85, 90 (Del. 2001)
(quoting Aronson, 473 A.2d at 812). “It is the essence of the business judgment rule
that a court will not apply 20/20 hindsight to second guess a board’s decision, except
in rare cases [where] a transaction may be so egregious on its face that the board
approval cannot meet the test of business judgment.” Brehm, 746 A.2d at 260.
In a demand refused case, a derivative plaintiff must plead facts sufficient to
overcome the presumption of the business judgment rule as well as pleading facts
sufficient to state a claim on the corporation’s behalf. Ironworkers Dist. Council of
Philadelphia & Vicinity Ret. & Pension Plan v. Andreotti, CV 9714-VCG, 2015 WL
24
2270673, at *2 (Del. Ch. May 8, 2015), aff’d sub nom. Ironworkers Dist. Council of
Philadelphia v. Andreotti, 132 A.3d 748 (Del. 2016). Because the derivative plaintiff
who has made a demand has tacitly conceded the independence of the board, the
only issues to be considered to overcome the business judgment rule are the good
faith and reasonableness of the board’s refusal. See Spiegel, 571 A.2d at 777–78;
Zapata Corp., 430 A.2d at 784 (“[A]bsent a wrongful refusal, the stockholder in
such a situation simply lacks legal managerial power.”).
C. The trial court correctly granted the pleas to the jurisdiction
because Moody Jr. did not plead facts sufficient to overcome the
business judgment rule.
In his first issue on appeal, Moody argues that the court reversibly erred by
granting the pleas to the jurisdiction. He states four subsidiary issues attacking the
arguments made by the appellees in their pleas to the jurisdiction. We focus on the
fourth, whether Moody satisfied the pleading requirements necessary to pursue a
derivative action, and because we find that the trial court could have properly granted
the pleas on that basis, we do not need to address his other arguments. See TEX. R.
APP. P. 47.2.
25
1. Moody Jr. conceded the independence of the boards by making a
presuit demand.
Moody argues that he pleaded sufficient facts to show the boards were not
independent.20 In this case, Moody Jr. presented a demand to National Western
before filing suit, and the boards refused that demand. Because Moody Jr. made a
presuit demand, he conceded the independence of the boards and placed control of
the litigation in their hands. See Spiegel, 571 A.2d at 775; Zapata Corp., 430 A.2d
at 784–86. Moreover, “[t]o establish that a board was interested or lacked
independence, a plaintiff must allege facts as to the interest and lack of independence
of the individual members of that board.” Orman v. Cullman, 794 A.2d 5, 22 (Del.
Ch. 2002). Moody Jr. did not allege facts pertaining to the interest or lack of
independence of individual board members. See id. Accordingly, we conclude that
his appellate argument that the boards were not independent lacks merit. See id.
20
In particular, he relies on allegations in his live pleading that: (1) the boards did not
appoint an independent committee to investigate his demand; (2) the directors, who
were accused of wrongdoing, conducted the investigation with corporate counsel;
(3) the directors face a substantial likelihood of personal liability for engaging in
profitable but illegal activities; (4) the boards failed to conduct interviews of
potential fact witnesses and reviewed few documents; (5) the board of National
Western is comprised mostly of Moody family members, who are heavily
influenced by Ross, and the family control was noted as a governance deficiency by
Standard & Poor’s in 2016.
26
2. Moody Jr. did not plead particularized facts showing that the
boards breached their duty of good faith.
The fiduciary duty of loyalty encompasses both the duty to be disinterested
and independent as well as the duty of good faith. Cf. Orman, 794 A.2d at 23. On
appeal, Moody Jr. argues about the boards’ lack of independence. He does not,
however, articulate an argument that the boards breached their duty of good faith by,
for example, acting for some purpose other than a genuine attempt to advance
corporate welfare. See Gagliardi, 683 A.2d at 1051 n.2. Instead, Moody Jr. relies on
the same evidence and analysis to argue that the boards did not act with due care and
that they acted in bad faith.
More important, Moody Jr. did not plead particularized facts showing that the
directors breached their duty of good faith. Moody Jr. makes numerous conclusory
and speculative statements in his pleading suggesting the directors may have been
motivated by some interest other than a genuine attempt to advance the best interest
of the corporations. None of these statements, however, satisfy the heightened
pleading standard that required Moody Jr. to plead particularized facts showing that
the boards acted in bad faith by refusing his demand.21 See Del. Ct. Chancery R.
23.1; Brehm, 746 A.2d at 254.
21
The following statements from Moody Jr.’s pleading are examples of these
conclusory statements:
27
Moreover, “[d]emonstrating that directors have breached their duty of loyalty
by acting in bad faith goes far beyond showing a questionable or debatable decision
on their part.” Ironworkers, 2015 WL 2270673, at *27. “In order to adequately allege
bad faith demand refusal, a complaint must plead particularized facts showing that
‘the directors . . . acted with scienter, i.e., with a motive to harm, or with indifference
to harm that will necessarily result from the challenged decision—here, that decision
being rejection of the Plaintiff’s demand.’” Andersen v. Mattel, Inc., CV 11816-
• National Western “did not take any of the actions which might reasonably be
anticipated in view of the gravity of the charges.”
• “It is a shocking indictment of the conduct of the Boards, which could only be
motivated by their desire to protect themselves in spite of what is in the best
interests of the companies.”
• “[N]o one on the Boards was independent.”
• The boards were “heavily influenced by the Moody family.”
• The boards disregarded the governance deficiency that had been noted by
Standard & Poor’s “in favor of their own interests.”
• The absence of an investigation report “raises a reasonable inference that the
Boards did not want a thorough and independent committee to investigate and
report on its findings, which would show the Boards[’] wrongdoing.”
• “The very Boards that decided to engage in the unlawful business, conducted in
Brazil throughout the 2000’s, has now decided it is not in the company’s best
interest to pursue claims for losses arising from their misconduct.”
• “Consequently, the Boards’ decision to refuse the Plaintiff’s April 17, 2017,
demand, could not be independent and disinterested because they were, at all
times personally involved and vested in these transactions.”
• “Accordingly, the evidence will show that National Western’s refusal of the
Plaintiff’s Demand was improper because the refusal was not based upon a
disinterested, thorough, and impartial analysis of the misconduct alleged by
Plaintiff, Robert L. Moody, Jr.”
28
VCMR, 2017 WL 218913, at *5 (Del. Ch. Jan. 19, 2017). Moody Jr. did not plead
with particularity facts showing that the directors acted with motive to harm or with
reckless indifference when they voted to refuse his demand.
3. Moody Jr. did not plead particularized facts showing that the
boards breached their duty of care.
Moody Jr. argues that the directors breached their fiduciary duty of care by
failing to conduct a sufficient and independent investigation of the matters in his
demand. Specifically, he argues that: (1) the boards did not secure independent
advice about the legality of their practices and relied on advice of counsel about the
legality of sales to residents of Argentina and Russia; (2) the boards did not interview
any witnesses; (3) the boards considered only a package of materials provided to
them at the joint board meeting; (4) the boards disregarded prior inquiries about their
sales to residents of Argentina and Russia that raised red flags about their
international business; and (5) the boards issued no investigation report or written
analysis of their findings.
First, Moody Jr.’s pleading includes many conclusory statements that do not
satisfy the heightened pleading burden under Rule 23.1.22 See Del. Ct. Chancery R.
22
Moody Jr. included the following conclusory statements in his pleading regarding
the alleged breach of the duty of care:
• “[B]ecause of fear of personal exposure and the significant influence
of Ross Moody, the Boards did not independently, disinterestedly, or
with due care in response to the Plaintiff’s demand.”
29
23.1; Brehm, 746 A.2d at 254. Other facts were pleaded based upon “information
and belief.”23 Allegations pleaded on information and belief do not satisfy the
• “The Boards did not become sufficiently informed to make an
independent business decision.”
• “The Boards did not inform themselves of material information
reasonably available to them and conducted such an inadequate
investigation in light of the seriousness of the demand, that the Court
should infer a breach of the Boards’ duty of care.”
• “The Boards were mere passive recipients of a presentation
orchestrated by Ross Moody and counsel.”
23
Some facts pleaded on information and belief include:
• “Upon information and belief, the company knew the facts found by
SUSEP and affirmed by the Board of Appeals, and continued to
operate in Brazil anyway.”
• “Upon information and belief, the company knew or acted with
reckless disregard as to whether its sales in Brazil were unlawful
based upon any objective review of the facts and the law.”
• “Upon information and belief, neither of the Boards, nor anyone on
their behalf interviewed any of the current members of the Boards, the
relevant current and former officers of the company, the current or
former heads of international sales, or any of the advisors who played
a role in the underlying events.”
• “Upon information and belief, the Boards did not interview any of the
Executive General Agents/Broker who manage the Company’s
distribution network of international independent agents or any of the
independent agents.”
• “Upon information and belief, the Boards did not consider the
evidence illustrating National Western’s unlawful conduct in Brazil
that led the company to stop accepting applications in Brazil and other
markets.”
• “Upon information and belief, the Boards did not analyze the
documentary history of the decisions to do business in Brazil.”
• “Upon information and belief, the Boards engaged no reasoned
consideration of the evidence in support of the demand.”
30
heightened pleading requirement to plead with particularity. Cf. Metro Commc’n
Corp. BVI v. Advanced Mobilecomm Techs. Inc., 854 A.2d 121, 150 n.57 (Del. Ch.
2004) (rejecting allegations made on “information and belief” as insufficient to
satisfy the burden to plead claims of fraud with particularity); Nutt v. A.C. & S., Inc.,
466 A.2d 18, 23 (Del. Super. Ct. 1983), aff’d sub nom. Mergenthaler v. Asbestos
Corp. of Am., 480 A.2d 647 (Del. 1984).
Moody Jr. argues that the directors breached their duty of care by relying on
opinions of counsel relating to sales to residents in other countries. The minutes of
the June 6, 2017 joint board meeting, which was attached to the director-defendants’
plea to the jurisdiction, showed that the boards considered the opinions of in-house
counsel and Brazilian counsel, both of which concluded National Western had not
acted unlawfully by selling life insurance to residents of Brazil. The minutes also
noted that the boards had historically relied on and followed advice of counsel.
Moody Jr.’s argument is that it was improper for the boards to rely on advice of
counsel.
To satisfy the pleading requirement of Rule 23.1 in a case alleging breach of
the duty of care in which
an expert has advised the board in its decisionmaking process, the
complaint must allege particularized facts (not conclusions) that, if
proved, would show, for example, that: (a) the directors did not in fact
rely on the expert; (b) their reliance was not in good faith; (c) they did
not reasonably believe that the expert’s advice was within the expert’s
professional competence; (d) the expert was not selected with
31
reasonable care by or on behalf of the corporation, and the faulty
selection process was attributable to the directors; (e) the subject matter
(in this case the cost calculation) that was material and reasonably
available was so obvious that the board’s failure to consider it was
grossly negligent regardless of the expert’s advice or lack of advice; or
(f) that the decision of the Board was so unconscionable as to constitute
waste or fraud.
Brehm, 746 A.2d at 262. Moody Jr.’s live pleading does not meet these pleading
requirements.
Moody also argues—and pleads—that the investigation was insufficient for
lack of interviews, consideration of only certain documents, and failure to prepare a
report of the investigation. These arguments and the factual allegations in the
pleading are about the method the boards used to consider Moody Jr.’s demand.
However, “while a board of directors has a duty to act on an informed basis in
responding to a demand,” “there is obviously no prescribed procedure that a board
must follow.” Levine, 591 A.2d at 200.
In addition, directors are required to “inform themselves, before making a
business decision, of all material information reasonably available to them.”
Benihana, 891 A.2d at 192. Moody Jr. did not plead which specific facts could have
been shown by the interviews he contends should have been conducted, nor did he
make any such argument on appeal. In this case, all the parties agree that National
Western sold insurance policies to residents of Brazil, without a Brazilian license,
by accepting, through independent brokers, applications that were received in Texas
32
and issuing the policies in Texas. Moody Jr. contends that this was a violation of
Brazilian law, based on the administrative penalty assessed by SUSEP and affirmed
as modified by CRNSP. The directors, however, relying on advice of both U.S. and
Brazilian counsel, maintained that National Western’s business model did not
violate Brazilian law because it did not operate in Brazil or sell insurance in Brazil.
Moody Jr. has not shown how further investigation of facts would have informed the
boards’ decision to refuse his demand.
Finally, Moody Jr. pleaded that the boards failed to perform a detailed review
of the ongoing Brazilian criminal investigation. He asserted that the directors
breached their fiduciary duty by failing to conduct a meaningful analysis of the
SUSEP opinion and by failing to investigate and refute the facts on which SUSEP
based the fine. However, the issues in this case were based on facts that no party
disputed. The boards took a legal position based on advice of counsel with which
Moody Jr. disagreed. That is not evidence of breach of the duty of care. See
Caremark, 698 A.2d at 967 (holding that compliance with directors’ duty of care
cannot be determined by considering correctness of board decision).
4. The defendants’ jurisdictional evidence supports a finding that the
directors complied with the business judgment rule.
In addition to considering Moody Jr.’s pleadings, we may also consider the
defendants’ jurisdictional evidence, which showed that the boards of National
Western and Group met jointly, considered evidence regarding business practices in
33
Brazil, legal advice from counsel, the SUSEP and CRNSP decisions, and evidence
of longstanding animosity between Moody Jr. and Ross. The boards also considered
the fact of the ongoing criminal investigation and how acceding to Moody Jr.’s
demands would affect National Western in that investigation. See South v. Baker, 62
A.3d 1, 25 (Del. Ch. 2012) (pursuing a derivative claim based on breach of the duty
of care “during the pendency of the underlying litigation or governmental
investigation may well compromise the corporation’s position on the merits”).
Having considered the available evidence that was material to Moody Jr.’s demands,
the boards voted to refuse his demands, with Ross not participating in the vote. This
jurisdictional evidence supports a finding that the business judgment rule applies in
this case to bar Moody Jr.’s suit. See Emerald Partners, 787 A.2d at 90.
5. Moody Jr. was not entitled to supplement his pleading with facts
that he learned during the litigation.
Finally, in the alternative, Moody Jr. argues that the trial court erred by
denying him the opportunity to amend his pleading. He contends that while the pleas
to the jurisdiction were pending, he learned that National Western had decided to
end sales to non-U.S. residents. From that, he reasons that the directors acted in bad
faith by denying his demands but later acceding to one of them.
In his April 2017 demand letter, Moody Jr. demanded that “National Western
Life Insurance Group or its subsidiaries cease and desist from selling any insurance
in any foreign jurisdiction without a proper license or authorization.” Minutes from
34
the April 2018 meeting of the board of directors of National Western show that, due
to “the various political, social, economic, and increasing regulatory issues
impacting the markets,” senior management recommended that the company “cease
accepting applications for the Company’s international products and instead focus
the Company’s resources on the development of the foreign nationals market.”
The trial court denied Moody Jr.’s request to amend his pleading on the
ground that amendment would be futile. We agree. Nothing in the facts that Moody
Jr. alleges to have newly discovered would change the analysis on whether the
directors satisfied the business judgment rule. See Brehm, 746 A.2d at 260 (“It is the
essence of the business judgment rule that a court will not apply 20/20 hindsight to
second guess a board’s decision . . . .).
***
Having concluded that Moody Jr. failed to meet the heightened pleading
requirement of Rule 23.1 to plead a claim for wrongful refusal of his demand, that
the appellees demonstrated with unrebutted jurisdictional evidence that the boards’
refusal of Moody Jr.’s demand was a valid exercise of sound business judgment, and
that repleading would be futile, we hold that the trial court correctly granted the pleas
to the jurisdiction. We overrule Moody Jr.’s first issue.
II. The trial court did not abuse its discretion by awarding attorney’s fees to
National Western and Group.
35
In his second issue, Moody Jr. challenges the trial court’s award of attorney’s
fees to National Western and Group. Moody Jr. raises several subsidiary issues
relating to the challenge to the attorney’s fees award. Specifically, he argues that the
court erred by: (1) denying an evidentiary hearing on whether the suit was filed
without a reasonable basis or for an improper purpose; (2) taking judicial notice of
the truth of the pleadings; (3) finding, without legally and factually sufficient
evidence, that Moody filed the suit without reasonable cause or for an improper
purpose; (5) finding, without legally and factually sufficient evidence, that Moody’s
filing of the shareholder derivative suit was the sole proximate cause of the
defendants’ fees; and (6) awarding unconditioned appellate fees.
A. Standard of review
“Texas has long adhered to the American Rule with respect to awards of
attorney’s fees, which prohibits the recovery of attorney’s fees from an opposing
party in legal proceedings unless authorized by statute or contract.” Tucker v.
Thomas, 419 S.W.3d 292, 295 (Tex. 2013). “On termination of a derivative
proceeding, the court may order . . . the plaintiff to pay expenses the corporation or
other defendant incurred in investigating and defending the proceeding if the court
finds the proceeding has been instituted or maintained without reasonable cause or
for an improper purpose . . . .” TEX. BUS. ORGS. CODE §21.561(b)(2). We review a
trial court’s award of fees in a derivative action for an abuse of discretion. See J.C.
36
Penney Co., Inc. v. Ozenne, 453 S.W.3d 509, 512–13 (Tex. App.—Dallas 2014, pet.
denied). A trial court abuses its discretion by acting in an arbitrary or unreasonable
manner or without reference to any guiding rules or legal principles. K–Mart Corp.
v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990) (per curiam).
Under an abuse-of-discretion standard, legal and factual insufficiency are not
independent grounds of error; they are relevant factors in assessing whether the trial
court abused its discretion. In re J.J.G., 540 S.W.3d 44, 55 (Tex. App.—Houston
[1st Dist.] 2017, pet. denied); Ozenne, 453 S.W.3d at 513. We consider whether the
trial court had sufficient information upon which to exercise its discretion and
whether it erred in its application of discretion. J.J.G., 540 S.W.3d at 55; Ozenne,
453 S.W.3d at 513. No abuse of discretion occurs when there is some probative
evidence to support the trial court’s decision. J.J.G., 540 S.W.3d at 55; Ozenne, 453
S.W.3d at 513.
When no findings of fact or conclusions of law are requested or filed, we
imply all facts necessary to support the judgment that are supported by the evidence.
BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Worford,
801 S.W.2d at 109; Ozenne, 453 S.W.3d at 513. We will affirm the trial court’s
judgment if it can be upheld on any legal theory finding support in the evidence.
Worford, 801 S.W.2d at 109; Ozenne, 453 S.W.3d at 513.
37
B. Moody Jr. did not preserve error regarding either the summary
determination of attorney’s fees or evidentiary objections.
Moody Jr. argues on appeal that the trial court erred by failing to hold an
evidentiary hearing on the defendants’ application for attorney’s fees. He also
challenges the text messages that were attached to the pleas to the jurisdiction as
being unauthenticated. “Generally, to preserve a complaint for appellate review: (1)
a party must complain to the trial court by a timely request, objection, or motion;
and (2) the trial court must rule or refuse to rule on the request, objection, or motion.”
Mansions in the Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314, 317 (Tex. 2012)
(citing TEX. R. APP. P. 33.1(a)). Moody Jr. did not get a ruling on any request for a
trial or evidentiary objection. Therefore, those complaints are not preserved for
appellate review. See id.
C. Probative evidence supports the trial court’s implied finding that
Moody Jr.’s suit was filed without reasonable cause and was filed for
an improper purpose.
Moody Jr. argues that the evidence does not support a finding that he filed his
lawsuit without reasonable cause or for an improper purpose. Although the trial court
did not issue findings of fact or include a fact finding on improper purpose in the
final judgment, we imply a finding that the suit was brought without reasonable
cause if it is supported by the record. See BMC Software, 83 S.W.3d at 795; Worford,
801 S.W.2d at 109; Ozenne, 453 S.W.3d at 513. In this case, it is.
38
Section 21.561(b)(2) permits a court to order an award of attorney’s fees if it
finds that the suit was either instituted without reasonable cause or for an improper
purpose. TEX. BUS. ORGS. CODE §21.561(b)(2). After responding to Moody Jr.’s
demand letter, National Western and Group permitted Moody Jr.’s counsel to
examine the materials that the boards reviewed at the joint meeting to consider his
demand. When he filed suit, Moody Jr. was aware that the boards had met and
considered material information and determined that initiating a suit would injure
the company and the shareholders.24
Moody Jr. was also aware that National Western was under criminal
investigation and that it had relied on advice of U.S. and Brazilian legal counsel in
maintaining that it did not operate in Brazil and that its activities were lawful. This
should have put him on notice that filing suit accusing the directors of unlawful
action could harm National Western and Group shareholders by contradicting the
company’s position. See South, 62 A.3d at 23–24 (pursuing derivative claim “during
24
The letter sent in response to Moody Jr.’s demand letter stated: “The Directors are
firmly of the belief that no benefit to National Western could come from their
authorizing the company to file a lawsuit challenging [National Western’s] own
conduct and business model as illegal, particularly where, as here, the Boards
believe in good faith that [National Western’s] busines model is legal. Such a
lawsuit would injure [National Western] and damage [Group’s] shareholders by
effectively eliminating [National Western’s] issuance of policies to citizens of other
countries—a highly profitable part of [National Western’s] business.”
39
the pendency of underlying litigation or a governmental investigation may well
compromise the corporation’s position on the merits”).
In addition, reasonable presuit inquiry would have revealed that National
Western had not concealed the Brazilian fine from its stockholders and that it had
already begun disengaging from the practice of selling insurance to non-U.S.
residents, including Brazilians. Both of these matters were documented in the
materials reviewed by the boards before they rejected Moody Jr.’s demand and
provided to Moody Jr. before he filed suit.
In this case, the evidence shows that a reasonable presuit inquiry would have
revealed that there was no basis in fact to allege that rejection of Moody Jr.’s demand
was a result of gross negligence. See Hughes v. Hous. Nw. Med. Ctr., Inc., 680
S.W.2d 838, 843 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.) (holding,
under predecessor statute with identical fee shifting language, that evidence was
sufficient to show that suit was initiated without reasonable cause because “[a]
reasonable inquiry by plaintiffs before suit would have revealed no reasonable cause
to bring a derivative suit”); Bass v. Walker, 99 S.W.3d 877, 885 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied) (holding, under predecessor statute with
identical fee shifting language, that plaintiff initiates suit without reasonable cause
when his claims are not warranted by existing law or good faith argument for
40
extension, modification or reversal of existing law or when his allegations are not
well grounded in fact after reasonable inquiry).
The evidence also supports a finding that the suit was filed for an improper
purpose. First, text messages from Moody Jr. to Ross and Moody-Dahlberg that were
attached to the pleas to the jurisdiction described, in sometimes caustic and vulgar
language, Moody Jr.’s disappointment and anger over being excluded from a
position as trustee of the Moody Foundation. See Pace v. Jordan, 999 S.W.2d 615,
626 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (considering summary
judgment evidence regarding the business judgment rule to determine whether trial
court abused its discretion by denying attorney’s fees under predecessor statute for
derivative suits). The text messages also described Moody Jr.’s preoccupation with
serving in a high position with the Moody Foundation or the Moody Endowment. In
addition, the text messages included his heated response when he learned that certain
recreational benefits associated with business travel had been discontinued. After
that, he threatened to file a derivative suit regarding National Western.
Second, in January 2017, before sending the demand letter, Moody Jr. sent a
letter to letter to Ross and National Western. The letter accused Ross of engaging in
unlawful conduct in connection with sales of insurance to non-U.S. citizens. Moody
41
Jr.’s accusations were not limited to matters involving National Western.25 Moody
asked a number of questions that were not related to National Western, sales of life
insurance to residents of foreign countries, or the SUSEP fine. Instead, he asked
about the audit committee, the Moody Foundation, other Moody family-related
entities, and communications with other family members. Although his accusations
and questions cast a wide net, Moody Jr. concluded by threatening a derivative
lawsuit and “initiation of litigation” by “multiple law firms, both in Texas and
internationally” that had already been retained. In April 2017, Moody initiated the
derivative lawsuit.
The text messages and the January 2017 letter are some probative evidence
that supports to support the trial court’s implied finding that the suit was brought for
an improper purpose. See J.J.G., 540 S.W.3d at 55; Ozenne, 453 S.W.3d at 513.
D. Probative evidence supports a conclusion that fees awarded were
incurred in investigating and defending the proceeding.
Moody Jr. argues that there is no or insufficient evidence of a connection
between the amount of the fees awarded and his derivative suit. In particular, he asks
the court to impose an extra-statutory requirement that there be a nexus between the
improper conduct and the fees awarded. In particular, he questions: “Why did
National Western and the Directors litigate Moody’s lawsuit seeking National
25
“This is not the kind of leadership which the Moody family can tolerate.” (Emphasis
added.)
42
Western’s withdraw[al] from the international market” between September 2017 and
May 2018 when National Western “had already decided to stop issuing policies to
foreign citizens?” He asserts that it was the actions of the defendants that prolonged
the litigation and increased expenses.
We have already explained, however, that a reasonable presuit investigation
would have revealed that National Western had already begun to disengage from
selling insurance to non-U.S. residents because that information had been publicly
disclosed in SEC filings and that it had validly exercised sound business judgment
when it refused Moody’s demand. Moreover, Moody Jr.’s demand letter asked for
more than the cessation of issuance of insurance policies to non-U.S. residents.
Among other things, it requested the removal of Ross from his positions in the
companies and initiation of lawsuit against the board of directors.
The defendants’ attorneys’ affidavits specifically stated that the
contemporaneous invoices reflect the amount of time and fees that were reasonably
necessary to represent the defendants. The detailed contemporaneous billing
invoices showed that the legal work was conducted to investigate and defend Moody
Jr.’s suit. To the extent that Moody Jr. now attempts to object to the affidavits, such
objection is waived by his failure to obtain a ruling from the court. See Mansions in
the Forest, 365 S.W.3d at 317; TEX. R. APP. P. 33.1.
E. The trial court should have conditioned the award of appellate
attorney’s fees on success.
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Moody Jr. argues that the trial court erred by awarding the defendants
appellate attorney’s fees not conditioned on success on appeal. We agree. “An
unconditional award of appellate attorney’s fees is improper.” Austex Tree Serv.,
Inc. v. UniFirst Holdings, Inc., No. 01-18-00050-CV, 2019 WL 2621732, at *9 (Tex.
App.—Houston [1st Dist.] June 27, 2019, no pet.) (mem. op.); Ansell Healthcare
Prods., Inc. v. United Med., 355 S.W.3d 736, 745 (Tex. App.—Houston [1st Dist.]
2011, pet. denied). The appellees have conceded error on this subsidiary issue.
“Since an unconditional award of appellate attorney’s fees does not require reversal,
we may modify a trial court’s judgment to make the award of appellate attorney’s
fees contingent upon the receiving party’s success on appeal.” Austex Tree Serv.,
2019 WL 2621732, at *9; see Ansell, 355 S.W.3d at 745. Accordingly, we hold that
the trial court erred by awarding “the reasonable and necessary appellate fees set
forth in the Court’s November 14, 2018 Order in the event that Plaintiff appeals this
judgment.” We sustain Moody Jr.’s second issue in part, and we modify the
judgment as follows:
2. It is further ORDERED that Plaintiff Robert L. Moody, Jr. pay
to National Western Life Insurance Co. and National Western Life
Group, Inc. the following sums:
(a) Reasonable and necessary appellate attorneys’ fees of
$250,000.00 in the event of an appeal to the intermediate
court of appeals unless Moody Jr. prevails in the court of
appeals and petition for review is not granted by the Texas
Supreme Court or unless Moody Jr. prevails in the Texas
Supreme Court.
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(b) Reasonable and necessary appellate attorneys’ fees of
$65,000.00 in the event of any appeal involving briefing
related to a petition for review at the Texas Supreme Court
unless Moody Jr. prevails in the Texas Supreme Court.
(c) Reasonable and necessary appellate attorneys’ fees of
$125,000.00 in the event of any merits briefing at the
Texas Supreme Court (whether before or after a petition
for review is granted) unless Moody Jr. prevails in the
Texas Supreme Court.
(d) Reasonable and necessary appellate attorneys’ fees of
$65,000.00 in the event of any oral argument and related
procedures at the Texas Supreme Court if a petition for
review is granted unless Moody Jr. prevails in the Texas
Supreme Court.
III. The trial court did not err by dismissing Moody Jr.’s contract claim
because it was not justiciable.
On appeal, Moody Jr. argues that the trial court erred by dismissing his claim
for declaratory judgment regarding the managing general agent contract. On appeal,
he argues that his counterclaim was not moot because it had greater ramifications
than the defendants’ nonsuited claim for breach of contract.
“A declaratory judgment is available only when there is a justiciable
controversy between the parties.” Hous. Chronicle Publ’g Co. v. Thomas, 196
S.W.3d 396, 401 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Brooks v.
Northglen Ass’n, 141 S.W.3d 158, 163–64 (Tex. 2004)). “A declaratory-judgment
action does not give a court jurisdiction ‘to pass upon hypothetical or contingent
situations, or to determine questions not then essential to the decision of an actual
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controversy, although such questions may in the future require adjudication.’” Tesco
Corp. (US) v. Steadfast Ins. Co., No. 01-13-00091-CV, 2015 WL 456466, at *2 (Tex.
App.—Houston [1st Dist.] Feb. 3, 2015, pet. denied) (mem. op.) (quoting Bexar
Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126, 130–31 (Tex. App.—Austin
2007, no pet.)). “Justiciability is a matter of concern in every civil case and remains
a live concern from the first filing through the final judgment.” Heckman, 369
S.W.3d at 147. For an issue to be justiciable, “there must be a real controversy
between the parties that will be actually resolved by the judicial relief sought.” State
Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994).
In the trial court, Moody Jr. argued that dismissal of his declaratory judgment
counterclaim would deny him due process because his request for interpretation of
the managing general agent contract was not related to the shareholder derivative
suit and because “other controversies may arise involving this contract.” He argued
that interpretation of the contract had “ramifications entirely separate from” his right
to bring a shareholder derivative suit. Because the only ramification identified in the
trial court or on appeal is the potential for future controversies to arise involving the
contract, we conclude that Moody Jr.’s declaratory judgment claim was no longer a
live controversy after the court granted the pleas to the jurisdiction. Because
resolution of the declaratory judgment claim would require the trial court to
determine a hypothetical or contingent question, the claim was no longer justiciable.
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See Tesco Corp., 2015 WL 456466, at *2; Bexar Metro. Water Dist., 234 S.W.3d at
130–31.
Accordingly, we hold that the trial court correctly dismissed Moody Jr.’s
declaratory judgment claim. We overrule Moody Jr.’s third issue.
Conclusion
We modify the judgment to condition the award of appellate attorney’s fees
on success in the appellate court, and as modified we affirm the trial court’s
judgment.
Peter Kelly
Justice
Panel consists of Justices Kelly, Goodman, and Countiss.
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