                            Fourth Court of Appeals
                                   San Antonio, Texas
                                CONCURRING OPINION
                                      No. 04-12-00630-CV

 THE HUFF ENERGY FUND, L.P., WRH Energy Partners, L.L.C., William R. “Bill” Huff,
     Rick D’Angelo, Ed Dartley, Bryan Bloom, and Riley-Huff Energy Group, LLC,
                                     Appellants

                                                v.

                             LONGVIEW ENERGY COMPANY,
                                      Appellee

                  From the 365th Judicial District Court, Zavala County, Texas
                            Trial Court No. 11-09-12583-ZCVAJA
                       Honorable Amado J. Abascal III, Judge Presiding

Opinion by: Sandee Bryan Marion, Chief Justice
Concurring Opinion by: Marialyn Barnard, Justice
Dissenting opinion by: Luz Elena D. Chapa, Justice, joined by Rebeca C. Martinez, Justice
Concurring and Dissenting Opinion by: Patricia O. Alvarez, Justice

Sitting en banc: Sandee Bryan Marion, Chief Justice
                 Karen Angelini, Justice
                 Marialyn Barnard, Justice
                 Rebeca C. Martinez, Justice
                 Patricia O. Alvarez, Justice
                 Luz Elena D. Chapa, Justice
                 Jason Pulliam, Justice

Delivered and Filed: November 25, 2015

       I join in the majority’s judgment and agree with its analysis of appellants’ complaints as to

jury question two and the lis pendens issue. However, I differ with the majority’s analytical

approach with regard to the resolution of appellants’ complaints relating to jury question one, and
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therefore concur in the judgment. I write separately only to set out the analysis I believe is

mandated by the jury charge and applicable Delaware law.

                                              ANALYSIS

                                     Delaware Substantive Law

        In Delaware, the corporate opportunity doctrine arose as a means of defining the

parameters of a corporate director’s fiduciary duty of loyalty owed to her corporation in instances

of potential conflict. See Broz v. Cellular Info. Sys., Inc., 673 A.2d 148, 154 (Del. 1996). The

seminal Delaware case on the corporate opportunity doctrine is Guth v. Loft, Inc., 5 A.2d 503 (Del.

1933). In Guth, the Delaware Supreme Court set out its view regarding the doctrine of corporate

opportunity:

        [I]f there is presented to a corporate officer or director a business opportunity which
        the corporation is financially able to undertake, is, from its nature, in the line of the
        corporation’s business and is of practical advantage to it, is one in which the
        corporation has an interest or a reasonable expectancy, and, by embracing the
        opportunity, the self-interest of the officer or director will be brought into conflict
        with that of his corporation, the law will not permit him to seize the opportunity for
        himself.

Id. at 511 (emphasis added). Over time, the corporate opportunity doctrine, as delineated in Guth

and its progeny, has evolved into the rule that a corporate director or officer cannot take a business

opportunity for her own if:

    (1) the corporation is financially able to exploit the opportunity;

    (2) the opportunity is within the corporation’s line of business;

    (3) the corporation has an interest or expectancy in the opportunity; and

    (4) by taking the opportunity for his own, the corporate fiduciary will thereby be placed
        in a position inimicable to her duties to the corporation.

Broz, 673 A.2d at 154–55. The Delaware Supreme Court has also held Guth created a corollary

rule that an officer or director may take a corporate opportunity for herself if:

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    (1) the opportunity is presented to the director or officer in his individual and not his
        corporate capacity;

    (2) the opportunity is not essential to the corporation;

    (3) the corporation holds no interest or expectancy in the opportunity; and

    (4) the director or officer has not wrongfully employed the resources of the corporation
        in pursuing or exploiting the opportunity.

Id. at 155. Taken together, the tests enunciated in Guth define the contours of the corporate

opportunity doctrine. See id. Under Delaware law, no one factor is dispositive and all factors

must be taken into account, as applicable, to assist a reviewing factfinder in balancing the equities

of an individual case. 1 Id. Ultimately, the factfinder is charged with “the determination of

‘[w]hether or not a director has appropriated for himself something that in fairness should belong

to the corporation . . .’.” Id. (quoting Johnston v. Greene, 121 A.2d 919, 923 (1956)).

        With this in mind, I interpret the corporate opportunity doctrine, as set out by Guth and

construed by its progeny, as directing the finder of fact to apply a two-step analysis in determining

whether a director has breached her fiduciary duty of loyalty by usurping a corporate opportunity.

Other courts have also interpreted Guth as setting forth a two-step approach, thereby creating “a

more helpful approach . . . for determining the ultimate question of when liability for a wrongful

appropriation of a corporate opportunity should be imposed.” Miller v. Miller, 222 N.W.2d 71,

81–82 (Minn. 1974); see PJ Acquisition Corp. v. Skoglund, 453 N.W.2d 1, 8 (Minn. 1990)

(reiterating two-step approach from Miller, 222 N.W.2d at 81); see also Phoenix Airline Servs.,

Inc. v. Metro Airlines, Inc., 397 S.E.2d 699, 702 (Ga. 1990) (noting Georgia Supreme Court

adopted Miller’s two-step approach to liability). Although the test set out below differs in language



1
  In Delaware, the factfinder appears always to be a court of chancery, not a jury. See Broz, 673 A.2d at 155 (“the
tests enunciated in Guth and subsequent cases provide guidelines to be considered by a reviewing court in balancing
the equities of an individual case.” (emphasis added).

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from the approach set out in Miller, see 222 N.W.2d at 81, it does so, in my opinion, to better

reflect the law of Delaware regarding the corporate opportunity doctrine, as set out in Broz.

Compare Broz, 673 A.2d at 155 with Miller, 222 N.W.2d at 81.

        The first step requires the factfinder to answer the threshold question of whether the

business opportunity in question is actually a “corporate” opportunity. Under Delaware law, a

business opportunity is a corporate opportunity if the factfinder determines it is by balancing the

following factors: (1) whether the corporation is financially able to exploit the opportunity; (2)

whether the opportunity is within the corporation’s line of business; (3) whether the corporation

has an interest or expectancy in the opportunity; and (4) whether by taking the opportunity for her

own, the corporate fiduciary will thereby be placed in a position inimicable to her duties to the

corporation. See Broz, 673 A.2d at 155. No one factor is dispositive. Id. In the event the factfinder

determines the contested business opportunity is a corporate opportunity, the factfinder must then

proceed to the second step of the analysis to determine whether it was nonetheless fair for the

director to take the opportunity for herself.

        In the second step, a factfinder may determine it is equitable for a director to take a

corporate opportunity if: (1) the opportunity is presented to the director or officer in her individual

and not her corporate capacity; (2) the opportunity is not essential to the corporation; (3) the

corporation holds no interest or expectancy in the opportunity; and (4) the director or officer has

not wrongfully employed the resources of the corporation in pursuing or exploiting the

opportunity. Id. As with the first step, the factfinder is to balance the factors as “[n]o one factor

is dispositive and all factors must be taken into account insofar as they are applicable.” Id.

        Based upon my review of Delaware law, I make two observations before proceeding with

the analysis. First, and contrary to the position taken by appellants, I believe that whether a



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corporate opportunity exists is a question of fact to be determined by trier of fact. As set out above,

to determine whether an opportunity is a corporate opportunity, the fact finder must balance four

factors, keeping in mind that no one factor is dispositive. See id. Accordingly, the question is one

of fact based on the evidence, not a legal question. Second, the jury in this case was not properly

charged under Delaware law — specifically, and as explained below, the jury was presented with

a single question with instructions, as opposed to the proper two-step approach required by

Delaware law, and the jury was not instructed that the factors should be balanced and that no one

factor is dispositive. See id.

                                               Proper Jury Charge

         Given the interpretation of Delaware law set out above, a proper jury charge for the breach

of fiduciary liability issue under Delaware’s corporate opportunity doctrine would require two-

steps, i.e., two jury questions that independently require the balancing of the equitable factors. 2 It



2
  For exemplary purposes only, a proper jury charge under Delaware law on the issue of usurping a corporate
opportunity might resemble the following:

    1.   Was there a “corporate opportunity” rightfully belonging to the corporation?

         You are instructed that a director or officer of a corporation generally may not take a business
         opportunity for herself if it is determined the business opportunity is actually a “corporate
         opportunity” rightfully belonging to the corporation. In determining whether the disputed business
         opportunity is in fact a “corporate opportunity” belonging to the corporation, you may consider the
         following four factors:

                  A.   The corporation is financially able to exploit the opportunity.
                  B.   The opportunity is within the corporation’s line of business.
                  C.   The corporation has an interest or expectancy in the opportunity.
                  D.   By taking the opportunity for her own, the corporate fiduciary will thereby be placed
                       in a position adverse to her duties to the corporation.

         You are further instructed that you should balance the factors and that no single factor is dispositive.

         Answer “Yes” or “No.”

         Answer: _______

         If you answered “Yes” to question 1, answer question 2.


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would be incumbent upon the trier of fact to first find the existence of a corporate opportunity

before it could then move on and determine if the director breached her fiduciary duty to the

corporation because she was not entitled to take the opportunity. I find the balancing of factors in

each step — the Guth rule and Guth corollary — analogous to a Texas jury charge on the best

interests of a child, i.e., the charge would instruct the jury to balance a list of factors, advising that

no one factor is dispositive, to reach its ultimate determination. 3 See, e.g., COMM. ON PATTERN

JURY CHARGES, STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGES: TERMINATION OF PARENT-

CHILD RELATIONSHIP, PJC 218.1A (2014) (recommending jury instruction that presents list of

factors for jury to consider in determining best interest of child and instructing jury that no one

factor is dispositive).

         However, the format of the jury charge in this case is notably different. Rather than a two-

step approach comporting with our interpretation of Delaware law, the jury was presented with a

single question with regard to usurpation of an opportunity. Jury question one asked:



    2.   Did any of those named below fail to comply with their fiduciary duty of loyalty to the corporation
         by wrongfully taking a corporate opportunity?

         You are instructed that a director or officer of a corporation may in fairness take a “corporate
         opportunity” for herself, in the right circumstances. In determining whether a director or officer
         may fairly take a corporate opportunity for herself, you may consider the following four factors:

                  A. The opportunity is presented to the director or officer in her individual and not his
                     corporate capacity.
                  B. The opportunity is not essential to the corporate.
                  C. The corporation holds no interest or expectancy in the opportunity.
                  D. the director or officer has not wrongfully employed the resources of the corporation in
                     pursuing or exploiting the opportunity.

         You are further instructed that you should balance the factors and that no single factor is dispositive.

         Answer “Yes” or “No.”

         Answer: _______
3
 The list of factors used in the best interest instruction arises from Texas case law, specifically Holley v. Adams, 544
S.W.2d 367, 371–72 (Tex. 1976). This is akin to the factors in the proposed usurpation charge arising from Delaware
case law, specifically Guth, as set out in Broz. See Broz, 673 A.2d at 154–55.

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              Did any of those named below fail to comply with his fiduciary duty to
        Longview Energy Company by taking a corporate opportunity?

               Because they are Longview Energy Company directors, Bill Huff and Rick
        D’Angelo owe fiduciary duties to Longview Energy Company with respect to
        corporate opportunities.

               A Longview Energy Company director may not take a corporate
        opportunity for himself if:

                (1) Longview Energy Company had an interest or a reasonable expectancy
                    in the opportunity;
                (2) Longview Energy Company was financially able to pursue the
                    opportunity;
                (3) the opportunity was within Longview Energy Company’s line of
                    business; and
                (4) the director diverted the business opportunity to another and thus
                    brought the director’s interests into conflict or competition with
                    Longview Energy Company’s interest.

               A Longview Energy Company director may take a corporate opportunity
        for himself if:

                (1) the business opportunity is first presented to the director in his
                    individual and not his corporate capacity;
                (2) the opportunity is not essential to the corporation;
                (3) the corporation does not have an interest or expectancy in the business
                    opportunity; and
                (4) the director has not wrongfully employed the resources of the
                    corporation pursuing the opportunity.

        Answer “yes” or “no” for each of those named below.

        (a) Rick D’Angelo

        Answer: _______

        (b) Bill Huff

        Answer: _______

(emphasis added) The jury answered “yes” in each answer blank.

        I believe the format of the charge in this case is incorrect under a proper interpretation of

Delaware law. Here, the charge presented the issue in a single question as opposed to the two-step

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approach required by Delaware law. Moreover, the charge does not account for the principle of

Delaware law that, when applying the Guth rules, “[n]o one factor is dispositive and all factors

must be taken into account insofar as they are applicable” to balance the equities of the case. Broz,

673 A.2d at 155. Rather, the charge was given in the conjunctive, requiring the jury to find in the

affirmative or negative as to each factor in the absence of further instruction. In other words, as a

necessary consequence of the charge’s basic conjunctive construction, an ultimate answer of “yes”

necessarily meant the jury implicitly answered “yes” to each and every element of the “may not

take” instruction, and “no” to at least one element of the “may take” instruction. Otherwise, the

jury could not have answered “yes” to either question. Although there were objections to the jury

charge, none of the objections raised the problems created by the charge’s misapplication of

Delaware law. 4 However, because the sufficiency of the evidence must be measured by the charge

actually given to the jury, I proceed with my review based on the charge as given. See Romero v.

KPH Consol., Inc., 166 S.W.3d 212, 221 (Tex. 2005).

                                      Legal Sufficiency of the Evidence

         In Texas, “[t]he sufficiency of the evidence must be measured by the jury charge when, as

here, there has been no objection to it.” Romero, 166 S.W.3d at 221. In other words, a court

measures sufficiency based on the charge as given. See id. Texas law governs matters of

procedure and remedy in Texas courts even when another jurisdiction’s substantive law applies.

State of Cal. v. Copus, 309 S.W.2d 227, 230 (Tex. 1958); see Moonlight Invs., Ltd. v. John, 192

S.W.3d 890, 894 (Tex. App.—Eastland 2006, pet. denied). Texas standards of review are

procedural and apply even when the substantive law of another jurisdiction is applicable. McAfee,


4
  Appellants objected to the jury charge with regard to the doctrine of corporate opportunity. However, the objections
concerned only the content of the elements presented in the charge, rather than the proper format of applying those
elements to determine liability, and the sufficiency of the evidence to support the submission. Longview did not object
to this portion of the charge.

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Inc. v. Agilysys, Inc., 316 S.W.3d 820, 824 (Tex. App.—Dallas 2010, no pet.); Autonation

Direct.com, Inc. v. Thomas A. Moorehead, Inc., 278 S.W.3d 470, 472 (Tex. App.—Houston [14th

Dist.] 2009, no pet.); Billman v. Mo. Pac. R.R. Co., 825 S.W.2d 525, 526 (Tex. App.—Fort Worth

1992, writ denied). Therefore, it must be determined whether the evidence is legally sufficient to

support a rational juror answering “yes” to the existence of a corporate opportunity and each Guth

rule determination because this was required by the charge actually given.           Further, as a

consequence of the jury charge given, there must be legally sufficient evidence for a rational juror

to answer “no” to at least one element of the Guth corollary.

        Jury question one asked the jury if Huff and D’Angelo breached their fiduciary duties by

taking a corporate opportunity. The charge thereafter instructed jurors that Huff and D’Angelo

could not take a corporate opportunity for themselves if: (1) Longview had an interest or a

reasonable expectancy in the opportunity; (2) Longview was financially able to pursue the

opportunity; (3) the opportunity was within Longview’s line of business; and (4) Huff and

D’Angelo diverted the business opportunity to another and thus brought their interests into conflict

or competition with Longview’s interests.

        At oral argument, appellants contended jury question one “presumes” the existence of a

“corporate opportunity.” I respectfully disagree. As charged, I would hold the jury had to first

find that a corporate opportunity existed before it could determine whether (1) Huff and D’Angelo

diverted an opportunity, (2) in which Longview had an interest or reasonable expectancy, (3) that

was in Longview’s line of business, and (4) that Longview was financially able to pursue. In other

words, I believe jury question one — applying Delaware law — specifically required the jury to

determine whether Huff and D’Angelo breached their fiduciary duties by taking a corporate




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opportunity. Thus, before the jury could find a corporate opportunity was taken, it had to find one

existed.

        Moreover, each instruction following question one required the jury to find that a corporate

opportunity existed before deciding whether Longview had an interest in it, was financially able

to pursue it, it was in Longview’s line of business, or Huff and D’Angelo diverted it. Finally, and

as discussed above, because of the conjunctive nature of the jury charge, it must not only be

determined whether there is legally sufficient evidence of the existence of a corporate opportunity,

but it must be determined whether there is legally sufficient evidence for each of the elements set

out in the instructions for the jury’s collective answer of “yes” to be supported. If there is legally

insufficient evidence of the existence of an opportunity or any one of the elements relating to the

usurpation issue, the jury’s verdict cannot stand.

                              Existence of a Corporate Opportunity

        Under applicable Delaware law, “[g]enerally, the corporate opportunity doctrine is applied

in circumstances where the director and the corporation compete against each other to buy

something, whether it be a patent, license, or an entire business.” Thorpe by Castleman v.

CERBCO, Inc., 676 A.2d 436, 443 (Del. 1996). Although the boundaries of what may be

considered a business opportunity are not firmly defined, the Delaware Supreme Court has referred

to the opportunity as consisting of “specific property.” Broz, 673 A.2d at 156 (referring to actual

or expectant interest in “specific property”) (quoting Johnston, 121 A.2d at 924).               The

characterization of the contested business opportunity as “specific property” in Broz is consistent

with the language from Thorpe, suggesting the boundaries of what should constitute a “business

opportunity” within the meaning of the corporate opportunity doctrine. Compare Broz, 673 A.2d

at 156 with Thorpe, 676 A.2d at 443. Therefore, based on Delaware case law, I would hold the



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scope of business opportunities for which a cause of action will lie under the corporate opportunity

doctrine should be generally restrained to identifiably specific pieces of tangible or intangible

property subject to acquisition, e.g., a patent, license, parcel of real estate, an entire business,

stocks, etc. See Thorpe, 676 A.2d at 443; Broz, 673 A.2d at 156. I do not believe Longview has

presented evidence of such a specific business opportunity.

        On appeal, rather than direct this court to a specific contested piece of tangible or intangible

property, Longview’s brief describes the allegedly usurped “opportunity” as follows:

        [A] proprietary strategy for investing in the Eagle Ford . . . to make an acreage play
        in the expanded oil window as [Mark] Lober redefined it, and Longview had
        identified the only source of acreage within that area.

At oral argument — both before the original panel and then before the en banc court — counsel

for Longview defined the opportunity by its “three characteristics” as a strategy: (1) to acquire

trend acreage in the Eagle Ford shale, (2) from Tamara Ford who had readily available acreage,

(3) where Mark Lober recommended Longview should invest. Additionally, back in 2010, an

internal memorandum from Longview CEO Bob Gershen to his fellow board members dated

January 25, 2010, elaborated on this “strategy”:

        On a hypothetical basis we have outlined a potential Eagle Ford program where we
        acquire 3,000 acres in each of seven prospects (21,000 acres in all). We then
        assumed we could find industry partners on a promoted basis for half of each well
        (on a third for a quarter basis) and drill the first well in each of the seven prospects.
        Exhibit B shows that based on average industry reported results, our project could
        be highly successful financially if it proves up the resource value of our acreage.
        The total capital costs for this hypothetical program (leasehold and drilling) are
        estimated to be $40 million and could generate results like those modeled by the
        end of next year.

Appellants note and the record reflects, however, that this “strategy” is unsupported by the

identification of specific leases, acreage, landowners, prices, or even drilling partners.




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        Having reviewed the record, the alleged business opportunity in question, as framed by

Longview itself, is a compilation of information that Longview sought to use to further its business.

Specifically, Longview had formed what it considered a proprietary strategy to invest in a large

region of Texas using the following information: (1) Lober’s research, and (2) land exclusively

available from Ford. Rather than evidence of a business opportunity under the confines of

Delaware’s corporate opportunity doctrine, I would hold Longview’s allegedly stolen

“opportunity” is more akin to a trade secret. See DEL. CODE ANN. tit. 6, § 2001 (4) (defining “trade

secret” as “information, including a formula, pattern, compilation, program, device, method,

technique or process, that: . . . [d]erives independent economic value, actual or potential, from not

being generally known to, and not being readily ascertainable by proper means by, other persons

who can obtain economic value from its disclosure or use; and . . . [i]s the subject of efforts that

are reasonable under the circumstances to maintain its secrecy.”); see also In re Bass, 113 S.W.3d

735, 739 (Tex. 2003) (defining trade secret as “any formula, pattern, device or compilation of

information which is used in one’s business and presents an opportunity to obtain an advantage

over competitors who do not know or use it.”). Longview’s pleadings support this conclusion

because one of the three characteristics of its strategy/“opportunity,” Lober’s crucial role in

identifying where to actually invest, was pled as a trade secret. Longview’s petition asserted it:

        . . . owned multiple trade secrets, including but not limited to: (a) Lober’s analysis
        of seismic and geological data and wells logs; (b) commissioned maps; and (c)
        economic analyses and projections regarding the Eagle Ford opportunity.

Although the chance to license a trade secret from a third party may in itself be a business

opportunity under Delaware law, see Thorpe, 676 A.2d at 443, it is not the right Longview sought

to protect in this case, i.e., Longview never alleged appellants usurped its opportunity to license a

trade secret from a third party.



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        Moreover, under Delaware’s corporate opportunity doctrine, for a corporation “to have an

actual or expectant interest in any specific property, there must be some tie between that property

and the nature of the corporate business.” Broz, 673 A.2d at 156 (quoting Johnston, 121 A.2d at

924) (emphasis added). In other words, a corporation has an actual or expectant interest in a

business opportunity when there is a nexus, or tie, between the corporation’s current business plan

and the specific property sought to be acquired. See, e.g., Broz, 673 A.2d at 156 (holding that

party had no interest or expectancy in business opportunity to purchase cellular license when party

“was actively engaged in the process of divesting its cellular license holdings.” Id.); Guth, 5 A.2d

at 514 (holding that Loft had interest or expectancy in business opportunity to purchase Pepsi-Cola

because Loft had active desire to secure cola supply for distribution in its stores). Here, Longview

has not directed the court to any specific property it sought to acquire from a third party from

which a factfinder can make a nexus determination under Broz. See Broz, 673 A.2d at 156.

Instead, Longview has only directed the court to evidence of what might amount to intellectual

property it already possessed, i.e., a compilation of information turned into a strategic investment

plan that may amount to a trade secret. I do not believe this evidence amounts to the existence of

property comprising an opportunity that Longview may allege appellants wrongfully usurped.

        Because I believe Longview has failed to present even a scintilla of evidence of a business

opportunity as defined by Delaware law, I would also sustain appellants legal sufficiency challenge

with regard to jury question one. See Regal Fin. Co., Ltd. v. Tex Star Motors, Inc., 355 S.W.3d

595, 603 (Tex. 2010). I contend reasonable and fair minded people could not find Longview had

an interest or reasonable expectancy in an opportunity because Longview did not produce even a

scintilla of evidence that a cognizable business opportunity existed. See City of Keller v. Wilson,

168 S.W.3d 802,827 (Tex. 2005).



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        Based on the foregoing, I agree we must reverse the jury’s finding that Huff and D’Angelo

“fail[ed] to comply with [their] fiduciary duty [of loyalty] to Longview Energy Company by taking

a corporate opportunity.” However, it is my opinion that even if there was more than a scintilla of

evidence of the existence of cognizable business opportunity under Delaware law, there is legally

insufficient evidence Longview had an interest or reasonable expectancy in it.

       Longview’s Interest or Reasonable Expectancy in the “Opportunity” — Rejection

        Even if there was more than a scintilla of evidence to support the existence of a corporate

opportunity, the evidence establishes Longview had no interest or reasonable expectancy in any

such opportunity. As stated above, “to have an actual or expectant interest in any specific property,

there must be some tie between that property and the nature of the corporate business.” Broz, 673

A.2d at 156 (quoting Johnston, 121 A.2d at 924). Appellants contend the evidence conclusively

establishes Longview’s board voted to reject the allegedly usurped opportunity to invest in the

Eagle Ford shale. Therefore, under Delaware law, there can be no nexus between the alleged

opportunity and Longview’s business interests because Longview’s rejection nullified any

potential nexus. I agree.

        Under Delaware law, a corporation can forfeit an interest or reasonable expectancy in a

business opportunity by expressly disclaiming any interest in it. See Kaplan v. Fenton, 278 A.2d

834, 836 (Del. 1971) (holding that corporation disclaimed interest in business opportunity by

unanimously rejecting almost identical opportunity one month prior). In other words, a director is

free to take a business opportunity for himself once his corporation has rejected any business

interest in it. See McGowan v. Ferro, 859 A.2d 1012, 1039 (Del. Ch. 2004), aff’d, 873 A.2d 1099

(Del. 2005); Field v. Allyn, 457 A.2d 1089, 1099 (Del. Ch. 1983), aff’d, 467 A.2d 1274 (Del.




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1983); see also Broz, 673 A.2d at 157 (citing Field for proposition and noting Delaware Supreme

Court “affirmed the Field holding on the basis of the well-reasoned opinion of the court below.”).

        Further, “[w]hile presentation of a purported corporate opportunity to a board of directors,

and the board’s refusal thereof, creates a safe harbor for an interested director[,]” Texlon Corp. v.

Meyerson, 802 A.2d 257, 263 (Del. 2002), express presentation of an opportunity to the board is

not required to avoid liability. Broz, 673 A.2d at 157. Rather, a director may analyze the situation

himself to determine whether the opportunity is one rightfully belonging to the corporation;

however, without presentation to the board, the director is subject to “the specter of a post hoc

judicial determination that the director or officer has improperly usurped a corporate opportunity.”

Id.

        Here, the record reflects Longview rejected investment in, and pursuit of, the very business

opportunity it claims was usurped by appellants. The record shows Longview investigated the

Eagle Ford shale prior to late January 2010, e.g., Longview hired Lober to do geology and

geophysics analysis of the Eagle Ford shale, and it contacted land brokers Ford and Gooden with

regard to available acreage. However, when given the chance to follow-up on that investigation

with an actual investment, Longview decided to pass on the opportunity.

        The apparent culmination of Longview’s investigation into the Eagle Ford shale

opportunity was the plan presented by Longview CEO Gershen to the board of directors on January

25, 2010. In a memo entitled “Path Forward – Recapitalization,” Gershen set out a number of

corporate growth opportunities including, as discussed above, a hypothetical program to invest

$40 million in 21,000 acres of Eagle Ford land.

        On January 27, 2010, Gooden emailed Longview executives Fuller and Pearce regarding

acreage tracts available for lease in the Eagle Ford shale. Attached to this email is a “blob map”



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Concurring Opinion                                                                    04-12-00630-CV


illustrating well over 100,000 acres of land available for lease. Gooden advised Fuller and Pearce

that a decision would need to be made quickly because his map reflected “tracts that are open and

available to lease today but not necessarily will be open tomorrow.”

        On January 28, 2010, Longview’s board of directors met. The minutes reflect Pearce, on

behalf of Longview’s management, led a discussion of resource plays available for investment.

Pearce identified the Eagle Ford shale play and the Bakken shale play in North Dakota as offering

the most favorable economics for investment. However, no vote was taken with regard to these

investment plans. Instead, Longview’s management team was instructed to prepare economic

models for four investment opportunities in advance of a February 1, 2010 board meeting. The

potential investments included: (1) buying back 1.2 million shares of stock at $5 a share, (2) paying

down corporate debt for 12 months at $500,000 per month, (3) investing $6 million in the Eagle

Ford shale, and (4) investing $6 million in eight wells in California where Longview already had

a presence. Each of the potential investments in Texas and California, as noted, were for $6

million.

        On January 29, 2010, Fuller emailed Pearce, Gershen, and two others regarding a telephone

discussion Fuller had with Gooden. Fuller reported that:

        I just called Pat Gooden and told him that as a result of the Board meeting yesterday
        [January 28, 2010], Longview will not be able to provide capital for trend acreage
        in the Eagle Ford. He was disappointed but polite . . . He asked if Longview would
        mind if he submitted acreage to the other Huff portfolio company (and I can’t recall
        their name right now) to see if possibly they might be interested. I told him I
        thought it would be a waste of his time given what we learned yesterday about
        Huff’s lack of appetite for trend acreage, but wished him the best.

        On February 1, 2010, Longview’s board of directors gathered for a special meeting. At the

meeting, a quorum of directors unanimously adopted a resolution charging the management to,

among other things: “(a) promptly prepare for Board review and approval a five to eight well



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California drilling program to be funded by cash flow from operations . . . and (c) aggressively

continue discussions with potential merger candidates [for Longview].” Although this resolution

was proposed by D’Angelo, it is noteworthy that it was unanimously adopted by the remaining six

Longview board members who were not associated with appellants. The record does not reflect

any other votes by Longview’s board with regard to pursing an investment in the Eagle Ford shale.

        As noted above, Delaware law allows a director to take a business opportunity for himself

once his corporation has rejected it. See McGowan, 859 A.2d at 1039, aff’d, 873 A.2d 1099 (Del.

2005); Field, 457 A.2d at 1099, aff’d, 467 A.2d 1274 (Del. 1983). The foregoing sequence of

events supports the conclusive finding that Longview rejected the very investment opportunity it

alleges was usurped by Huff and D’Angelo, i.e., investment in thousands of available Eagle Ford

acreage generally identified as blobs on a map. In fact, Longview rejected the opportunity twice.

Initially, Longview passively rejected the opportunity by failing to approve Pearce’s plan

presented at the January 28, 2010 meeting.        Then, three days later, on February 1, 2010,

Longview’s board definitively rejected investing in the Eagle Ford shale by unanimously voting

to invest its available funds in California instead. According to the record, at least two board

members, Pearce and Gershen, cast their vote in favor of California prospects knowing Gooden

would offer the land to another Huff Energy Fund portfolio company. Moreover, Gershen,

Longview’s CEO and author of the investment plan set out in the January 25, 2010 memo, voted

in favor of the California opportunity as opposed to investing in the Eagle Ford shale. Accordingly,

because Longview rejected the alleged Eagle Ford shale opportunity, I would also hold directors

D’Angelo and Huff could pursue that opportunity individually without breaching their fiduciary

duties to Longview.




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        On appeal, the practical result of this conclusion is that there is legally insufficient evidence

of Longview’s interest or reasonable expectancy in the Eagle Ford shale opportunity as required

by the jury charge. By rejecting the opportunity, Longview effectively disclaimed any tie between

the alleged opportunity and the nature of its business, and is, in effect, estopped from claiming

otherwise under Delaware corporate opportunity law. Stated alternatively, Longview, as an oil

and gas company, voted it was no longer interested in the opportunity to invest in the developing

Eagle Ford shale. Accordingly, I would also sustain appellants’ legal sufficiency challenge

because the evidence conclusively establishes the opposite of a vital fact, i.e., the evidence

conclusively establishes Longview did not have an interest or reasonable expectancy in the

purported business opportunity. See Regal Fin. Co., Ltd., 355 S.W.3d at 603.

        Longview raises two counter points to this conclusion regarding rejection: (1) corporate

rejection requires an informed decision by the board of directors; and (2) Longview’s rejection

must be viewed in the context that it “actively pursued the Eagle Ford opportunity until Huff and

D’Angelo unilaterally backed out of their false funding representations.”

        First, Longview argues “[r]ejection is a viable defense only if the defendant fully discloses

all material facts to the corporation and the corporation’s board gives informed approval for the

[director] to exploit the opportunity on their own.” I disagree. Longview is conflating its

independent rejection of the alleged opportunity with the possibility of rejecting appellants’ non-

existent attempt to invoke the safe-harbor rule.

        In support of its argument, Longview cites to the following selected language from a

footnote in Thorpe: “[d]isclosure to and informed approval by the board. . .” See Thorpe, 676 A.2d

at 442 n.7. However, the full sentence in Thorpe reads “[d]isclosure to and informed approval by

the board may insulate a director from liability where the corporate opportunity doctrine otherwise



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applies.” Id. (emphasis added). The court in Thorpe then cited to Broz as the court set out

Delaware’s law on the safe-harbor exception. Id. Therefore, the authority Longview relies upon

is clearly referring to “rejection” in the context of seeking safe-harbor protection, which would

require a higher level of candor from D’Angelo than he exhibited, i.e., informing his fellow board

members that Huff Energy Fund was not interested in Eagle Ford shale trend acreage when Riley-

Huff Energy had just made that very investment days before. See generally Mills Acquisition Co.

v. Macmillan, Inc., 559 A.2d 1261, 1283 (Del. 1989) (noting duty of candor “dictates that

fiduciaries, corporate or otherwise, may not use superior information or knowledge to mislead

others in the performance of their own fiduciary obligations,” which would likely include voting

on whether to reject pursuit of a presented business opportunity). Here, however, Longview

independently rejected pursuit of the alleged opportunity, and there was no attempt by appellants

to invoke safe-harbor protection. Unless a director is seeking safe harbor, Delaware law does not

require a director to present an opportunity to the board for approval before taking it for himself.

See Broz, 673 A.2d at 157.

        However, even if Longview’s claim about Delaware law and rejection was correct, it would

not negate appellants’ rejection claim. There is no question Longview’s board was aware of the

Eagle Ford shale opportunity that it claims was its proprietary plan; therefore, the equitable

purpose of presenting the opportunity to the board for informed approval or rejection was satisfied

nonetheless.

        Second, in addition to its argument regarding informed rejection, Longview also attempts

to soften its affirmative rejection of the alleged Eagle Ford shale opportunity by pointing out Huff

“promised” to fund Longview’s investment in the Eagle Ford shale but ultimately did not do so,

requiring Longview to pass on the opportunity. Therefore, presumably, Longview cannot be held



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Concurring Opinion                                                                                  04-12-00630-CV


accountable for rejecting the opportunity because Longview relied on Huff’s promised funding,

without which it could not immediately invest in the Eagle Ford shale. However, Huff’s alleged

promise to fund any Longview investment “that Rick Pearce liked,” is not in writing; rather, it is

only supported by testimony in the record that “Bill Huff said that if we would locate an investment

in the Eagle Ford shale that Rick Pearce liked, that he would fund it.” Longview’s CEO Gershen

admitted at trial there was no enforceable agreement requiring Huff to provide Longview with

investment capital, 5 and although alleged by Longview, there is no substantive Delaware law

placing a duty on either directors or shareholders of a corporation to contribute additional capital

for a corporation’s investment. Accordingly, because the alleged promise was unenforceable, I do

not believe Longview’s reliance entitles it to a different result with regard to our rejection analysis.

To do so would, in essence, grant Longview relief it did not seek, i.e., recovery for breach of

contract, and would also ignore the fact Longview still had six million dollars it could have

invested in the Eagle Ford shale, instead choosing to spend the money in California.

                     Longview — Financial Ability to Pursue the “Opportunity”

         I further note that even if a corporate opportunity existed and Longview had not rejected

it, Longview had to present some evidence it was financially able to pursue the alleged Eagle Ford

shale opportunity. Longview was unsuccessful in this regard.

         Delaware law allows reviewing courts “a number of options and standards for determining

financial inability, including but not limited to, a balancing standard, temporary insolvency

standard, or practical insolvency standard. See Yiannatsis v. Stephanis by Sterianou, 653 A.2d




5
  Gershen was correct. Under Delaware law, Huff’s alleged oral promise to invest millions of dollars runs afoul of
the Delaware statute of frauds. See DEL. CODE ANN. tit. 6, § 2714 (“A contract, promise, undertaking or commitment
to loan money or to grant or extend credit . . . in an amount greater than $100,000 . . . made by a person engaged in
the business of lending money or arranging for the lending of money or the extending of credit shall be invalid unless
it or some note or memorandum thereof is in writing.” Id. § 2714(b)).

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275, 279, n. 2 (Del 1995). Admittedly, as a general matter, it appears a challenging fiduciary

“faces a significant burden in establishing that a corporation was financially unable to take

advantage of a corporate opportunity.” Norman v. Elkin, 617 F. Supp. 2d 303, 312 (D. Del. 2009);

see, e.g., Broz, 673 A.2d at 151–55 (finding inability where corporation had just emerged from

contentious Chapter 11 bankruptcy with obligations owed to creditors limiting ability to commit

capital to acquisition of new assets). Despite this burden, there is legally insufficient evidence to

support the jury’s implied finding that Longview had the financial ability to invest in the Eagle

Ford shale opportunity, i.e., there is less than a scintilla of evidence of Longview’s financial ability.

See Regal Fin. Co., Ltd., 355 S.W.3d at 603.

        The evidence shows Longview needed approximately $40 million in capital. Appellants

point out that Longview had $27 million in debt, secured by unspecified liens. They also note that

Longview seemed to rely on Bill Huff’s casual statement in September 2009 that “if Longview

would locate an investment Pearce liked, he would fund it.” In response, Longview points to

evidence it claims establishes it could have raised the required money through stock sale

recapitalization as suggested in January 25, 2010 “Path Forward – Recapitalization” memo sent to

the board of directors. Longview also points to the testimony of Rick Pearce. When asked “[c]ould

Longview have raised the money with enough time to fund this type of [investment],” COO Pearce,

responded “Yes, we had in the past and we could again.” The record reflects that from 2002–07,

Longview raised $167.8 million in capital. Of that sum, $39 million was raised from Huff Energy

Fund between 2006 and 2007. However, the evidence shows this money was raised over a

significant period of time — five years — and the record is replete with evidence that with regard

to the alleged opportunity in the Eagle Ford shale, time was of the essence. Pearce also testified

Longview could have sold its California, Oklahoma, and Alaska assets and taken advantage of a



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Concurring Opinion                                                                         04-12-00630-CV


$5.5 million line of bank credit. This too would have taken significant time, perhaps as much as

three months.

        As to any reliance by Longview on Huff’s alleged promise that he would fund whatever

Pearce “liked,” this does not constitute evidence that Longview was financially able to take

advantage of the alleged “opportunity.” Longview suggests it had an agreement with Bill Huff

whereby he would fund any investment Rick Pearce found for Longview. As discussed above,

under Delaware law, Huff’s alleged promise was not reduced to writing. Indeed, the existence of

the “promise” is only supported by testimony from Pearce. However, Gershen correctly conceded,

there was no enforceable agreement requiring Huff to provide Longview with any investment

capital. See DEL. CODE ANN. tit. 6, § 2714(b). And, as previously noted, there is no substantive

Delaware law placing a duty on either directors or shareholders of a corporation to contribute

additional capital for a corporation’s investment.

        And Huff’s alleged promise would not be enforceable under Texas law, if it were

applicable. A contract is not enforceable if it is so indefinite as to make it impossible for a court

to fix the legal obligations and liabilities of the parties. See T.O. Stanley Boot Co., Inc. v. Bank of

El Paso, 847 S.W.2d 218, 221 (Tex. 1992); In re C.H.C., 396 S.W.3d 33, 48 (Tex. App.—Dallas

2013, no pet.). As the court stated in T.O. Stanley Boot Co.:

                In order to be legally binding, a contract must be sufficiently definite
                in its terms so that a court can understand what the promisor
                undertook. The material terms of the contract must be agreed upon
                before a court can enforce the contract. Where an essential term is
                open for future negotiation, there is no binding contract.

847 S.W.2d at 221. Here, taking Pearce at his word, there is nothing but a vague, indefinite

promise to fund some unknown venture, at some unknown time, in some unknown amount. Thus,




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Concurring Opinion                                                                       04-12-00630-CV


even under Texas law, Longview never had an enforceable promise from Huff upon which it could

legally rely for purposes of funding an investment in the Eagle Ford shale.

        As to Pearce’s other statements regarding raising funds through stock sale recapitalization,

as in the past, or by selling assets in other states, there is no evidence that these fundraising tactics

could have been accomplished in a timely manner so as to allow Longview to undertake the alleged

opportunity of buying thousands of acres in the Eagle Ford shale. As noted above, past fundraising

efforts of the sort necessary to take advantage of acreage in the Eagle Ford shale took time. As

Pearce testified, with regard to investing in the Eagle Ford shale, time was of the essence and

Longview’s “plan” assumed it would have $40 million to invest — money from Huff. Other than

Pearce’s alleged reliance on Huff — an unenforceable, indefinite promise — there is nothing in

the record to show Longview had taken any affirmative steps to raise the necessary funds. In fact,

according to Pearce, Longview “had never looked at an alternative plan of funding.” Thus,

according to Pearce, at the time the board rejected the hypothetical plan to invest, there really was

“nothing to vote on.”

        Accordingly, based on the evidence regarding timing and Pearce’s affirmative statements

that Longview was relying on an alleged, unenforceable promise from Huff — having failed to

even investigate alternate funding — I would hold there is no evidence that would have enabled

reasonable and fair minded people to conclude Longview was financially able to pursue the alleged

opportunity. See City of Keller, 168 S.W.3d at 827.

                                             CONCLUSION

        Thus, for the reasons set out above, I respectfully concur in the majority’s judgment.

Although I would resolve appellants’ complaints relating to jury question one as set forth above, I




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Concurring Opinion                                                               04-12-00630-CV


ultimately agree with the majority’s conclusion that the trial court’s judgment must be reversed

and a take nothing judgment rendered in favor of appellants.


                                                 Marialyn Barnard, Justice




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