Summary
reversing summary judgment against plaintiff where fact issue was raised regarding the futility of demand
Summary of this case from Hajdik v. WingateOpinion
No. B-9171.
July 2, 1980.
Appeal from the 162nd District Court, Dallas County, Dee Brown Walker, J.
Gardere, Wynne Jaffe, Curtis L. Frisbie, Jr., Kelsoe Ayres, G. H. Kelsoe, Jr., Dallas, for petitioners.
Don C. Alexander and Dean Carlton, Dallas, for respondents.
The application for writ of error is refused, no reversible error. In this derivative action the court of civil appeals reversed and remanded the judgment of the trial court which, upon granting the motion for summary judgment of the corporation, dismissed the suit without prejudice to refiling as an individual as opposed to a derivative action. 591 S.W.2d 932. The summary judgment proof of petitioner Murray Savings Association does not establish as a matter of law that the decision of its board of directors, taken after the suit was filed, to seek to have the case dismissed, constituted the exercise, in good faith and free from improper influence, of the sound business judgment of the board. Accordingly, we do not reach the question of whether such action so taken by the board, if established at trial, would bar the maintenance of this derivative suit even though respondent were to establish good cause for failing, prior to his filing the suit, to make efforts to have the corporation institute the action.