Opinion
No. 01-08-00308-CV
Opinion issued June 4, 2009.
On Appeal from the 270th District Court, Harris County, Texas, Trial Court Cause No. 2006-52653.
Panel consists of Justices JENNINGS, ALCALA, and HIGLEY.
MEMORANDUM OPINION
Appellants, City of Inkster Policeman and Fireman Retirement System, derivately on behalf of Kinder Morgan, Inc. (hereinafter "the City"), appeal from a summary judgment in favor of appellees, Richard D. Kinder, Michael C. Morgan, William V. Morgan, Fayez Sarofim, Edward H. Austin, Jr., William J. Hybl, Ted A. Gardner, Charles W. Battey, H.A. True, III, James M. Stanford, Stewart A. Bliss, Edward Randall, III, Douglas W.G. Whitehead, Goldman Sachs Capital Partners, American International Group, Inc., The Carlyle Group, Riverstone Holdings LLC, C. Park Shaper, Steven J. Kean, Scott E. Parker, R. Tim Bradley, and nominal defendant Kinder Morgan, Inc., a Kansas corporation. In its sole issue, the City asserts the trial court abused its discretion by granting appellees' motion for summary judgment without granting the City a continuance to conduct "targeted discovery on the issue of standing." We conclude the appeal was timely filed and the trial court did not err by granting summary judgment without granting the City's motion for continuance. We affirm the judgment of the trial court.
Background
When the City initiated this lawsuit, it was a stockholder in KMI, a Kansas corporation with its corporate headquarters located in Houston, Texas. KMI, now known as Knight Inc., is a large mid-stream energy transportation and storage company.
On May 28, 2006, a buyout group delivered a letter to KMI's board of directors containing an offer to purchase all of KMI's common stock at $100 per share. The buyout group included certain Goldman Sach-afilliated funds; affiliates of American International Group, Inc.; funds managed by AIG Global Investment Group, Carlyle Partners IV, L.P. and Carlyle/Riverstone Global Energy and Power Fund III, L.P.; Kinder; Michael and William Morgan; and Sarofim. KMI established a special committee to consider the offer, negotiate with the buyout group, and communicate with potential third-party acquirers. The special committee negotiated the merger consideration to $107.50 per share.
On August 24, 2006, the City initiated its derivative suit, asserting that each appellee was "directly violating or aiding and abetting the other defendants' violations of the fiduciary duties owed to KMI by directing the sale" of KMI at $100 per share, a "grossly inadequate consideration" from which the City asserted appellees would unfairly gain. Four days later, the special committee unanimously voted to recommend that KMI accept the offer at a negotiated price of $107.50 per share. The nine members of KMI's board of directors who were not members of the buyout group also voted to approve the offer. KMI shareholders approved the merger on December 19, 2006. The merger closed on May 30, 2007, when Knight Acquisition merged into KMI. All outstanding KMI shares automatically cancelled and were converted into the right to receive $107.50 per share. On June 14, 2007, KMI's name was officially changed to Knight Inc.
On November 20, 2007, appellees filed "Defendant's Joint Motion to Dismiss for Lack of Jurisdiction, or in the Alternative, Motion for Final Summary Judgment." The motion asserted that the City lost standing when it lost its shareholder status on May 30, 2007. In its opposition to the motion, the City requested a continuance to "conduct tailored discovery necessary to properly oppose" the motion. After a hearing, the trial court granted summary judgment without stating the basis for its ruling.
The trial court rendered final judgment in favor of appellees on February 21, 2008. On February 26, 2008, the City received notice of the judgment in a postcard, which referred to the ruling as "partial dismissal." The clerk circulated a revised notice on March 27, 2008, noting that the February 21 ruling was a not a partial dismissal but a final judgment. The City received the revised notice on March 31, 2008. The City then filed its Motion to Extend Post-Judgment Deadlines, asserting that it did not receive actual notice of the final judgment until March 31, 2008. The trial court granted the City's motion.
Motion for Continuance
In its sole issue, the City contends the trial court abused its discretion by granting appellees' motion for summary judgment without granting the City a continuance to conduct "targeted discovery on the issue of standing."
A. Law
We apply Texas procedural law in addressing the issue raised in this appeal. Nexen Inc. v. Gulf Interstate Eng'g Co., 224 S.W.3d 412, 417 (Tex.App. 2006, no pet.). Because this lawsuit concerns a Kansas corporation, the parties agree that Kansas substantive law controls.
1. Procedural Law
The trial court may order a continuance of a summary judgment hearing if it appears "from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition." Tex. R. Civ. P. 166a(g). We review the grant or denial of a motion for continuance for an abuse of discretion. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). "We have considered the following nonexclusive factors when deciding whether a trial court abused its discretion in denying a motion for continuance seeking additional time to conduct discovery: the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought." Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).
2. Substantive Law
Kansas courts often look to Delaware law on substantive corporate law issues. See Arnaud v. Stockgrowers State Bank, 992 P.2d 216, 218 (Kan. 1999). Under Delaware law, "[a] plaintiff who ceases to be a shareholder, whether by reason of a merger or for any other reason, loses standing to continue a derivative suit." Lewis v. Anderson, 477 A.2d 1040, 1049 (Del. 1988). "[A] derivative shareholder must not only be a stockholder at the time of the alleged wrong and at the time of commencement of suit but . . . he must also maintain shareholder status throughout the litigation." Id. at 1046; see also Elloway v. Pate, 238 S.W.3d 882, 900 (Tex.App. 2007, no pet.) (acknowledging same). However, a merger does not terminate a derivative shareholder's standing if the shareholder can demonstrate that the merger is a fraud "being perpetrated merely to deprive shareholders of the standing to bring a derivative action." Kramer v. W. Pac. Indus., Inc., 546 A.2d 348, 354 (Del. 1988); see also Lewis v. Ward, 852 A.2d 896, 905 (Del. 2004) ("[A] complaint seeking to invoke the fraud exception must demonstrate that the merger was fraudulent and done merely to eliminate derivative claims."). This is known as the "fraud exception." See Ward, 852 A.2d at 904-05.
B. Analysis
In this case, the City filed its petition 18 months prior to the trial court's rendering final judgment, so the City had 18 months during which to conduct discovery. The City asserts that it was diligent in attempting to obtain discovery on the issue of standing because "[u]ntil Appellees actually filed the Summary Judgment Motion, [the City] was not in a position to analyze the purported reasons for the merger and craft the narrow discovery necessary to fully explore KMI's Special Committee's reasons for approving the merger." However, the City was in a position to foresee the need for this "targeted discovery" because the City filed this derivative suit in response to the proposed merger, and the City knew it would no longer have standing once the merger took place.
More importantly, the discovery sought by the City was immaterial to the City's response to appellees' summary judgment motion. In its brief, the City asserts that it "should have been allowed to conduct targeted discovery to determine whether the Merger was consummated for fraudulent or other improper purposes (thereby preserving [the City's] standing)." However, the fraud exception applies to preserve standing only when the merger was consummated for the purpose of depriving the shareholder of standing to pursue a pre-existing derivative claim. See Anderson, 477 A.2d at 1046 n. 10 ("Plaintiff has not asserted that the merger was perpetrated to deprive Old Conoco of its claims against the individual defendants. . . ."). The merger itself must be the subject of a claim of fraud. See Ward, 852 A.2d at 902. In this case, the merger could not have been consummated for the purpose of destroying the City's standing to bring its derivative suit because the merger proposition pre-existed the suit and was in fact the subject of the suit. The merger was never the subject of a claim of fraud. Therefore, the discovery sought by the City was immaterial to the motion for summary judgment.
We hold that the trial court did not abuse its discretion by denying the City's request for a continuance to conduct additional discovery. We overrule the sole issue on appeal.
Conclusion
We affirm the judgment of the trial court.