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SDM Investments Group, LLC v. HBN Media, Inc.

Court of Appeals of Georgia, Fourth Division

November 1, 2019

HBN MEDIA, INC. et al.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          Doyle, Presiding Judge.

         This case arises from a merger (or majority buyout) of HBN Media, Inc. ("HBN"), by a subsidiary of Serent Capital, L.P. ("Serent"), in which merger SDM Investment Group, LLC, which was a founding shareholding in HBN, was unable to maintain any ownership interest of the new company. SDM sued HBN, the chief operating officer ("CEO") of HBN, individual board members, and employees[1]("collectively "the Defendants") based on the merger, stock buyout, and stock dilution prior to the merger, alleging (1) fraudulent misrepresentation by the CEO and HBN both before and after the merger; (2) breach of contract; (3) breach of fiduciary duty; (4) unjust enrichment; and (5) fraud, requesting inspection of business records. SDM sought an accounting, a declaration of contractual and fiduciary duties, disgorgement of proceeds, damages, attorney fees, costs, and punitive damages. The trial court granted summary judgment to the defendants, [2] and SDM appeals. In several enumerations of error, SDM argues that the trial court erred by granting summary judgment on its claims.[3] For the reasons that follow, we affirm.

To prevail on a motion for summary judgment, the moving party must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law. . . . We review a summary judgment ruling de novo, viewing the evidence in the record, as well as any inferences that might reasonably be drawn from that evidence, in the light most favorable to the nonmoving party.[4]

         Viewed in this light, the record shows that HBN was formed in 2010 by CEO Duane LeGate, and during the company startup period, SDM became a shareholder of HBN in January 2011, investing $22, 000 for 30, 000 shares. The startup period ended March 31, 2011. Throughout 2011, HBN experienced liquidity problems, and LeGate reached out to investors to obtain loans during this time, with promises of additional stock for different loan amounts.

         In June 2014, an investment bank was hired to assist with marketing HBN for sale. In September 2014, Serent Capital sent a letter of intent to the investment bank and HBN, offering to purchase approximately 60 percent equity in HBN. The letter stated that "[t]he current shareholders will receive approximately $32.6 million under the current structure in proceeds. In addition[, ] the current shareholders will maintain equity ownership representing a minimum of 40 [percent] ownership in the Company." This offer later was presented to the Board along with a separate offer from Frontier Capital. The Frontier offer was presented as valuing HBN at $47.5 million and including a purchase of 56.3 percent of the equity and rolling over an equity percentage of all HBN shareholders; while the Serent offer was presented as valuing HBN at $45 million and including a purchase of 62.9 percent of the equity, completely cashing out many shareholders and rolling over only the equity of specific shareholders/employees - LeGate, Swanson, and O'Neal. The Board decided to pursue Serent's offer.

         In Feburary 2015, after negotiations between HBN and Serent, LeGate sent to shareholders a memorandum explaining the terms of the proposed merger, including that all shareholders would be paid for 100 percent of their shares except for himself and two other people. That memorandum does not contain a total stock breakdown. The shareholders voted in favor of the merger with Serent, although SDM voted against the action. Approximately 16 months after the merger, the new entity was purchased by Fidelity National Financial for approximately $225 million.

         SDM filed the instant case in October 2016. The Defendants moved for summary judgment, and SDM responded. In a 30-page order drafted by Defendants' counsel, [5] the trial court granted the motion for summary judgment.

         1. SDM maintains, in numerous enumerations of error, that the trial court erred by granting summary judgment to the Defendants. We disagree because this case should have been pursued as a dissenter's rights action.

Where a merger is consummated, a record shareholder is entitled to dissent from and to obtain payment of the fair market value of his shares. Such dissenting shareholders, however, are precluded from challenging the corporate action creating their entitlement unless the corporate action fails to comply with procedural requirements of this chapter or the articles of incorporation or bylaws of the corporation or the vote required to obtain approval of the corporate action was obtained by fraudulent and deceptive means, regardless of whether the shareholder has exercised dissenter's rights.[6]

         Pretermitting the various erroneous findings in the trial court's order, we affirm the grant of summary judgment because SDM failed to exercise its dissenter's rights under OCGA § 14-2-1302 to the Serent buyout.[7] At the time of the buyout, SDM knew that 1, 381, 000 shares had been issued, and thus, regardless of whether the shares were issued to LeGate or others, SDM should have exercised its dissenter's rights for any alleged stock dilution, which should have been apparent from the total shares issued or the amount of money obtained by SDM for its shares as a percentage of that total number. Additionally, SDM's claims for fraud, misrepresentations, or breaches of fiduciary duties by LeGate, HBN, or other board members based on improper issuance of stock or of actual or perceived differences in the Serent offer and the agreement presented to and voted on by the shareholders (that is, that SDM should have been able to roll over 40 percent of its shares or that it received only 60 percent of the value of its shares) are simply attacks on the price SDM ultimately received for its shares and/or the terms of the buyout, rather than claims for actual fraud or deception that would allow it to circumvent the exclusive remedy of the dissenter's rights statute.[8]

         2. To the extent that SDM alleged claims for breach of various contracts and preemptive rights regarding improper stock issuance, it has failed to allege specific injuries to itself rather than injuries to the Company or the other minority shareholders, and any such injury against all the minority shareholders that is not particular to the individual shareholder should have been brought via a derivative suit.[9] Moreover, "[t]he law is well settled that a former shareholder in a merged corporation has no standing to maintain a shareholder's derivative action."[10] Finally, SDM has failed to allege an injury from the breaches of contracts or violation of its preemptory rights that are separate from the damages arising from the buyout, and thus, SDM also should have pursued these claims via a dissenters rights action.[11]

         Thus, because SDM failed to pursue its dissenter's rights under the statute, the trial court properly granted summary judgment to the Defendants as to the claims of fraud, breach of fiduciary duty, and breach of contract.

         3. The trial court also properly granted summary judgment on SDM's remaining claim for unjust enrichment. SDM contended that the Defendants were unjustly enriched through their wrongful conduct by gaining additional stock and becoming ...

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