Nelson v. Frank E. Best

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IN THE COURT OF CHANCERY OF THE STATE O F DELAWARE &$/ If IN AND FOR NEW CASTLE COUNTY MARTIN 0. NELSON, JR.., DANIEL F. RAIDER and NANCY E. LEE, and MITCHELL PARTNERS, L.P., 1 > > > Petitioners, ) v. > > FRANK. E. BEST INC., BEST UNIVERSAL > LOCK CO., BEST LOCK CORPORATION, > a Delaware corporation, and BEST LOCK > CORPORATION, an Indiana corporation, > > Respondents. ) Civil Action No. 16329 / ; ; -I .,-_ c _z MEMORANDUM OPINION Date Submitted: May 26, 2000 Date Decided: July 5,200O Norman M. Monhait., Elsquire, Carmella P. Keener, Esquire, ROSENTHAL, MONHAIT, GROSS & GODDESS, Wilmington, Delaware, Attorneys for Petitioners. A. Gilchrist Sparks, 111, Esquire, Alan J. Stone, Esquire, and David J. Teklits, Esquire, of MORRIS, NICHOLS, ARSHT & TUNNELL, Wilmington, Delaware; OF COUNSEL: Robert I . Markowski, Esquire, David M. Kroeger, Esquire, and Arthur Gollwitzer III, Esquire, of JENNER & BLOCK, Chicago, Illinois, Attorneys for Respondents. STR.INE, Vice Ch~anceHor Before me are .the parties cross-motions for summary judgment, the resolution of which boils down to a tolling issue in the context elf Delaware s appraisal statute: wher. the last day of the limitations period for making an appraisal demand pursuant to 8 Del. C. 5 262(d)(2) falls on a Sunday, is the effective deadline for making the demand that Sunday or the Monday immediately afterw,ard? One of the plaintiffs in this appraisal action, Mitchell Partners, L.P. submitted a demand to defendant Best Lock Corporation ( Best or the defendant ) on Monday, March 23, 1998, which was twenty-one days after the start of 5 262(d)(2) s twenty-day limitations period. Whereas Mitchell Partners asserts that the final Sunday should not count toward the statutory limitations period and that its demand was therefore timely, Best argues that Mitchell Partners missed the $ 262(d)(2) deadline under a plain reading of the statute. Mitchell Partners argument that the final Sunday should not count toward the 5 262(d)(2) limitations period is premised on what some have called the Sunday Rule, which holds that when the last day on which certain tasks may be performed falls on a Sunday, performance on the following day is timely. . . . I Although 5 262(d)(2) does not explicitly state that the final Sunday must be excluded from the twenty-day limitations period, Mitchell Partners argues that Delaware common law has long recognized the Sunday Rule and that the General Assembly silently incorporated that common law rule when it enacted 5 262(d)(2). Mitchell Partners argues in the alternative that even if this, court were to conclude that Delaware common law did not recognize the Sunday Rule when the General Assembly enacted 5 262(d)(2), the statutory deadline must nevertheless be computed by reference to Court of Chancery Rule 6(a), which applies the Sunday Rule to the calculation of deadlines for actions taken in this court. Even if one may read $ 262(d)(2) as being inconsistent with Rule 6(a), Mitchell Partners concludes, Rule 6(a) must take precedence because a court rule: has the force and effect of a legislative enactmenT2 and because 10 Del. C. 5 361(c) states that Court of Chancery rules supersede all statutory provisions in conflict or inconsistent therewith. For these reasons, Mitchell Partners asserts that its Monday demand was timely. SW Wilgus v. Suit Pona hwtmt~t Co., Del. Ch., 498 A.2d 151, 157 & 1x2 (1985) (Sunday Rule stands for [t]he proposition that when the day for performance under an agreement falls on a Sunday performance on the followmg day IS timely . ) (citing 74 AM. .KJR.:Zd Time 4 17). Col~w v. Ritchq, Del. Super., 150 A.2d 830, 831 (1959) (citi>lg Associated Transport v. Pusq, 118 A.2d 362, 365 (1955)). 2 Somewhat surprisingly, Delaware case law has yet to address this issue. Nor do the commentators on Delaware law appear to have considered the question3 Moreover, policy arguments can be made on either side of the issue, and non-controlling case law can arguably be read as supporting either position. As a consequence, reasonable people may differ as to the proper outcome. But after considering Mitchell Partners arguments and the authorities cited, I conclude that the General Assembly that enacted Q 262(d)(2) did not contemplate the exclusion of the final day of the .twentyday deadline when that day happens to fall on a Sunday. I reach this conclusion for several reasons, the most important of which are the clear language of 5 262(d)(2), which states that the period for sending a demand is to expire upon the passage of twenty days: and the fact that 5 262 does not contain any provision stating that Sundays are to be excluded from that hmitations period. By contrast, in many other instances E.g.. R.F. BALOTTI & J. A FINKELSTEIN, 1 THE DELAWARE LAW OF CORPORATIONS AND BUSINESS ORGANIZATIONS $9 944[B], at 9-92 to 9-96 (3d ed. 2000 Supp.) (hereinafter BALOTTI & FINKELSTEIN ); D. A. DREXLER, L. S. BLACK, JR., & A. G. SPARKS, III, 2 DELAWARE CORPORATION LAW AND PRACTICE) 5 36.04, at 366 to 36-10 (1999); R. WARD. JR., E. P. WELCH, A. J. TUREZYN, 2 FOLK ON THE DE:LAWARE GENERAL CORPORATION LAW 9 262.4.1, at GCL-IX-194 to GCL-IX-198 (4 ed. 1999); D. J. WOLFE, JR. & M. A. PITTENGER, CORPORATE AND COMMERCIAL PRACTICE IN THE: DELAWARE COURT OF CHANCERY 3 8-10(b), at 436-37 (1998); C. R. I . KEATING & J. PERKOWITZ-SOLHEIM, 12B FLETCHER CYCLOPEDIA OF THE LAW OF CORPORATIONS 5 5906.75, at 418-20 (1993 rev. ed.) (hereinafter FLETCHER ); id. 4 7 165.30, at 437-50. the General Assembly has explicitly excluded final Sundays from the calculation of statutory deadlines. Furthermore, I reject Mitchell Partners contention that Delaware common law recognized a Sunday Rule generally applicable to statutes at the time of $ 262(d)(%) s enactment. The parties have not cited, nor have I found, any decision in which a Delaware court has explicitly adopted the Sunday Rule in the context of a statute that requires an act to be performed outside the courthouse. More generally, there does not appear to have been any firmly recognized English or American common law applying the Sunday Rule to statutorily required acts that do not implicate the common law concept of dkr non juvidicus, which simply means not a court day. Indeed, the case rehed ton by Mitchell Partners in support of this proposition, the 1922 case of Simkir~ v. Cole, suggests that Delaware followed instead the common law ru.le that the Sunday Rule does not apply to a statute unless the legislature has explicitly adopted the Sunday exclusion. The General Assembly s own practice of codifying the Sunday Rule on a case-by-case basis confirms this lconNclusion and undercuts the notion that the General SH~~SS Batik Corp. I . Dresser-6zdustrie.s. Inc., 1997 U.S. Dist. LEXIS 6832, at *5 (E.D.111. May 9. 1997) (citing BLACK S LAW DICTlONARY (1990)), aff d, 141 F.3d 689,693 (7 Cir. 1998). See also BLACK S LAW DICTIONARY 466 (7 ed. 1999) (a dies no?1 jwidiczcs is . [ a]ny day exempt f rom tour: proceedings, such as a holiday or a Sunday. ). Simkin 1 . Cole, Del. Super., 122 A. 191 (1922). 4 Assembly s silence in $1 262(d)(2) should be construed as a codifcation of the Sunday Rule in the context of appraisal demands. Given these factors, together with the strict construction of the appraisal statute required by the Delaware Supreme Court, I conclude that the General Assembly intended that Sundays would be included in the calculation of deadlines for appraisal demands. I am similarly unconvinced by Mitchell Partners suggestion that 5 262(d)(2) must be read through the lens of Court of Chancery IRule 6(a), which encompasses the Sunday Rule. Given that 9 262(d)(2) sets forth the rights and responsibilities of parties in a process that occurs outside this court, Rule 6(a) has no bearing on the 5 262(d)(2) deadline. Indeed, Court of Chancery Rule 1 explicitly states that [tlhese Rules shall govern the procedure in the Court of Chanceq of the State of Delaware . . . . The enabling legislation of l0 Del. C. $ 36 1 (a) contains a similar restriction, providing that this court s authority to make rules is limited to matters relating to pr-actice andprocedul-e with respect to . . causes and proceedings in [the Chancery] Court. And because the rules of this court do not apply to the demand submission process, the provisions in 6 Ct. Ch. R. 1 (emphasis added). 10 Del. C. 5 361(a) (emohasis added) 5 subsections (c) and (d) of 0 361 governing conflicts between the Court of Chancery Rules and statutory provisions are similarly inapplicable. Even more important, embracing the interpretation advanced by Mitchell Partners would violate the basic tenets of the separation of powers doctrine. Thus I conc1ud.e 1:hat the 5 262(d)(2) limitations period in -this case expired on Sunday, March 22, 1998 and that Mitchell Partners failed to submit its appraisal demand on time. I therefore deny its motion for summary judgment and grant Best s cross-motion for the same relief. The following discussion sets forth my reasoning in greater detail. I. Factual Background The undisputed facts are relatively few and as follows. The underlying appraisal action arose out of three cash-out mergers (the Mergers ), after which the surviving entities were Frank E. Best Inc. ( FEB ), Best Universal Lock Co. ( BUL ), and Best Lock Corporation ( BLC ) (collectively, l;he Best Companies ). The Mergers were completed pursuant to 8 Del. C. $3 228 and 25 1 and effective as of March 23, 1998. The three Best Companies later merged into Walter E. Best Company, Inc., which is now known as Best Lock Corporation. Best Lock Corporation and the Best Companies are the defendants (collectively, Be& ) in this appraisal action subsequently filed by Mitchell Partners and 6 the other plaintiffs. Mitchell Partners is an investment firm, and Joseph Mitchell, who has a law degree and practiced law for several years before becoming a full--time investor, is the firm s sole general partner. The motions before me, however, concern only certain shares owned by Mitchell Partners in the Best Companies (the Disputed Shares ). The Disputed Shares were held in Mitchell Partners brokerage account at Bear Stearns Securities Corp. and were held of record by the Depository Trust Company ( Cede ) until shortly before the Mergers. Upon learning through the Best Companies public filings that the Mergers were going to take place, Mitchell Partners asked Bear Stearns to transfer the Disputed Shares to Mitchell Partners name to facilitate an appraisal demand at the: time of the Mergers. Mr. Mitchell requested this transfer both in Octobe-r 1997 and February 1998, but it did not take place, and he does not appear to have followed up on his requests very diligently. On March 2, the Best Companies mailed a Joint Information Statement, Notice of Action Taken Without a Meeting, and Notice of Appraisal Rights (collectively, the Notice ).* The Notice stated that [k?]&ten demmdfor tzppvaisalpursuant to Section 262 must be received b.y the applicable Company no later than March 22, 199S, which is the 20 Defs. Ex. D at 29. day q?er the mailing oj-this notice. Mitchell Partners acknowledges having received the No.cice on or before March 5, 1998. But as of March 5, 1998, the transfer of the Disputed Shares from Cede to Mitchell Partners still had not taken place. Thus that same day Mr. Mitchell instructed 13ear Steams to demand appraisal on Mitchell Partners behalf. To facilitate tha.t process, Mitchell sent Bear Stearns dra-ft demand lettersI to be forwarded to Cede for submission to the Best Companies. Cede made the demand on March 9, 1998. On Friday, March 20, 1998, Mitchell Partners received i-ts daily report from Bear Stearns regarding Mitchell Partners accounts with Bear Steams. The report indicated that, as of the day before, Bear Steams was transferring the Disputed Shares to Mitchell Partners name. As a result, Ced.e s demand was invalid, because Cede would not continuously be the holder of record between the March 9 date of Cede s demand and the effective date of the Merger, as is required b:y 8 Del. C. 5 262(a). Although Mr. Mitchell learned on Friday, March 20 of the potential problem caused by the transfer of the Disputed Shares, he concedes that he In . (emphasis added). For ease of reference, I refer to the demand in the singular. Also on March 5, Mitchell sent appraisal demands to the Best Companies with respect to the 200 FEB shares and 137 BUL Ishares held of record in Mitchell Partners own name. 8 did nothing to address it on that date other than call his attorney. As Mitchell explained im an affidavit, [llater that day I tried to reach my attorney, Norman Monhait, to determine if any additional action to demand appraisal was advisable. Upon learning that Monhait was out of the office that day, Mitchell simply left a message. Although Mitchell has explained that he placed the call to Monhait in order to reassure [himlself that [the transfer] w.asn t a problem, . Mitchell did not try to consult any of Monhait s colleagues. Mitchell did not try to deliver a demand that day, whether by mail, by facsimile, or by courier. Nor did he take any action on Saturday, March 21 or Sunday, March 22 with respect to the demand. On the morning of Monday, March 23, 1998, Mitchell finally spoke with Monhait. Following this conversation, Mitchell rushed to fax a demand to the Best Companies concerning the recently transferred Disputed Shares. Mitchell Partners fax records indicate that the transmission went through shortly after nine o clock that morning, and Best does not dispute that it received the faxed demand at that time. Thus the motions before me turn solely on whether the demand Mitchell Partners faxed on Monday, March 23, 1998 was timely under Mitchell Aff. 7 5. Mitchell Dep. at 125. Mitchell Dep. at 138. tj 262(d)(2). II. ,~~ulicable Standards And Provisions This court must grant summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.15 Alt;hough courts recognize that parties do not concede an absence of factual disputes merely because they have filed cross-motions for summary judgment, here the parties acknowledge that no genuine issue of material fact exists concerning the motions at hand. Instead, both assert iheir entitlement to judgment as a matter of law on the undisputed facts. Section 262 of Ti,:le 8 governs appraisal rights and the conlditions under which stockho81ders may press these rights against the corporations in which they hold stock, and thus $ 262 controls the outcome of this dispute. Because the Mergers were approved pursuant to 8 Del. C. $ 228, subsection (d)(2) of {$ 262 sets forth the applicable notice and demand procedures. Mitchell Partners acknowledges that the Notice mailed on Ii Ct. Ch. R. 56; Fleer Corp. v. Topps Clzewing Guns, hc., Del. Supr., 539 A.2d 1060, 1060-62 (1988). I United Vanguard Fund, Inc. v. TakeCure, Inc., Del. Supr., 693 A.2d 1076, 1079 (1997). I SW 8 Del. C. $ 262(d)(2) (. Ij the merger or consolidation was approved pursuant to 5 228 or 4 253 of this title, each constttuent corporation, either before the effective date of the merger or consolidation or within ten clay3 thereafter, shall notify each ofthe holders of any class or series of stock of such constituent corporation who are entitled to appraisal rights of the approval of the merger or consolidation and lhat appraisal rights are available for any or all shares of such class or series of stock of such constituent corporation, and shall include in such notice a copy of this section; . ). 10 March 2 complied with 5 262(d)(2) s requirements and therefore: triggered the running of the twenty-day limitations period. Subsection (d)(2) states part that [a]ny stockholder entitled to appraisal rights may, within 20 &ZJIX ajler the date of mailing of such notice, demand in writing from .the surviving or resulting corporation the appraisal of such holder s :shares. A dissenting shareholder seeking appraisal under Q 262(d)(2) bears the two-fold burden of showing that a demand was timely submitted and that it was actually received by the corporation. I9 The date of a demand is fixed as of the date it is sent,20 and thus a shareholder need only demonstrate having sent (here by facsimile) its demand by the statutory deadline and that the corporation eventually received it. This contrasts with the re quirement under 8 Del. C. $ 262(d)(l) that dissenting stockholders must actually deliver their appraisal demands by the time of the stockholder vote. Furthermore, Delaware law follows the general rule that where an act must be done within a certain period of time, in computing the time [elither under a rule of court or a statute, in the absence of anything 8 Del. C. 4 262(d) (emphasis added). In re Vision Hard-ware Gmip, Inc., Del. Ch., CA. No. 13385, 1995 Del. Ch. LEXIS 39, at *4, Allen, C. (Apr. 4, 1995) (citations omitted), aff d ~vithozlt op. sub nom., Young v. Vision Hu~&are Gra~~p, Inc.. Del. SIpr., 676 A.2d 909 (1996); yee ulso Raub x Village!, Industries, 1~. Del. Supr., 355 A.2d 888, 894 (1976). cert. denied, Mitchell v. Villagerfizdustvies, Inc., 429 U.S. 853 (1976); Schenley Industries, Inc. v. Curtis, Del. Supr., 152 A.2d 300, 302 (1959). Raub, 355 A.2d at 894; Scktmle),, 152 A.2d at 302. 11 showing a contrary intent, . . . the day on which the act is to be done should be included. r In this case, the sole issue before me is the proper construction of # 262(d)(2) s phrase %ithin 20 days and whether Mitchell Partners made a timely demand in compliance with that deadline. I now turn to the decisive question of whether Mitchell Partners has sustained its burden with respect to this showing. III. Lee;al Analvsis A. The Reading Of 4 262(d)(2) Most Consistent With The Statute s Language, Prior Judicial Constructions, &id General Assemblv Practice Is That 6 2&2bl)(2) Does Not Incornorate The Sunday Rule Resolution of these motions obviously requires an interpretation of 5 262(d)(2) s statement that [alny stockholder entitled to appraisal rights may, within 20 days after the date of mailing of such notice, demand in writing from the surviving or resulting corporation the appraisal *of such holder s shares. 2 It is well-established that this court must give effect to a statute s plain meaning in order to implement the General Assembly s intent. i14y job is Srur&rd Scale & Supply C~prp. v. Chppel, Del. Supr., 141 A. 191, 193 (1928) (quohg Sinzkin i . Cole, 122 A. at 192); see nlso Suntow 11. Ulhzan, Del Supr., 166 A.2d 135, 137 (1960). S Del. C. $ 262(d)(2) (emphasis added). 12 somewhat more complicated here, where I am asked to interpret a statute that uses the common word day but where the larger legal context is such that, in certain situations, the word day does not include Sunday when Sunday would be the last permissible day to perform a task. But the traditional rules of statutory construction require that I give effect to the normal melaning of day as including a Sunday -- or Sun4ay - unless there is a firm basis to conclude that the General Assembly intended otherwise. The text of 5 262(d)(2) itself provides no basis for finding such a contrary intent, when the statute states 20 days, rather than 20 days excluding Sunday, 20 business days, or the like.23 And, contrary to Mitchell Partners suggestion, the drafters use of the word day elsewhere in {$ 262 is consistent with a plain reading of the term.24 23 See, e.g., 5 262(d)(2)(n) ( 3re survtving or resulting corporation shall send such a second notice to all such holders on or ~vitlzi~z 1U day.y after such effective date; prov-ided, however, that if such second notice is sent VZO~E UWZ 20 days following the sending of the first notice, such second notice need only be sent to each stockholder who is entitled to appraisal rights and who has demanded appraisal . ) (emphases added); 0 262(d)(2) ( each constituent corporation may fix, m advance, a record date that shall be not nzore than 10 days prior to the date the notice is given ) (emphasis added). See, e.g., 8 Del. C. 3 262(d)(l) ( . the corporation, not lrss than 20 day prior to the meetmg, shall notify each of rts stockholders who was such on the record date for such meeting with respect to shares for which appraisal rights are available that appraisal rights are avatlable for any or all of the shares of the constttuent corporations . ) (emphasis added); irl ( !Whi~ IO dq~ after the effective date of such merger or consolidation, the surviving or resuitmg corporation shall notify each stockholder of each constituent corporation who has complied with thts subsection and has not voted in favor of or consented to the merger or consolidation of the date that the merger or consohdation has become effective . ) (emphasis added). 13 This construction is all the more warranted in light of the General Assembly s statement later in 9 262(d)(2) that [i]f no record date is fixed and the notice is given prior to the effective date, the record date shall be the close of business on the day next preceding the day on which the notice is given. 25 This careful distinction would lead one to expect the drafters to have been more explicit five sentences earlier had the General Assembly in tended that the tin al Sunday would be excluded from the limitations period for appraisal demands. Delaware Supreme Court case law requiring a strict construction of 8 Del. C. 5 262 demand deadlines further constrains me to adhere to the plainest reading of the statute, absent strong evidence of a contrary legislative intent.26 As the Supreme Court has explained, [tlhe statutory formalities concerning appraisal rights furnish an orderly method for withdrawal from a corporation by shareholders who dissent from a 8 Del. C. 9: 262(d)(2) (emphasis added). See Alabumu BJ -Products Corp. v. Cede & Co., Del. Supr., 657 A.2d 254, 258 (1995) ( Under Section 262(b), a written demand for appraisal, executed by or for the shareholder of record, must be timely filed with the corporation in order to perfect appraisal rights. ); Tub& v Pollution Con//*01 Industries, hzc., Del. Ch., 508 A .2d 867, 869-71 (1986) (refusing to excuse 9: 262(d)( 1) demand that was not timely siubmitted), implicitly overruled in part on other grounds, li? re Appraisal ojENSTAK Corp., Del. Supr., 535 A.2d 1351, 1357 n.7 (1987); Weiutein v. Dolce Pucknging Cor;o., Del. Ch., CA. No. 15000, mem. op., 1997 Del. Ch. LEXIS 34, at *9-*ll, Jacobs, V.C. (March 11, 1997) (d iscussing case law holding that the procedural requirements of the appraisal statute musi. be strictly construed ); In re Vision Hurdwure, 1995 Del. Ch. LEXIS 39, at *3-*5 (applying requisite formalny to demand submitted pursuant to 4 262(d)(2)). See also RALOTTI & FINKELSTEIN 5 9.44[R], at 9-95 (demand deadlines are strictly construed); 15 FLETCHER 0 7165.30, at 440-41 (where appraisal statutes do not contain a phrase giving courts discretion to ignore the time requirements, the restrictions are strictly applied ). 14 merger. 27 Thus Delaware courts have emphasized the importa:nce of deadlines such as those set forth in 5 262, because when time is clearly of the essence under the terms of a statute,28 a late filing will not be judicially condoned. Aluhama ByProducts, 657 4.2d at 258 (quoting Loeb v. Schenley Industries, Inc., Del. Ch., 285 A.2d 829, 830 (1971)~; ln ,ve Appraisal ofEIVSTAR Corp., 535 A.2d at 1357). See also In re Visiorz Hurdware, 1995 DIeI. Ch. LEXIS 39, at *.5 (referring to the technical (and therefore more predictable) way in which the appraisal statute is construed ); Weinstein, 1997 Del. Ch. LEXIS 34, at * 11 ( strict adherence to formality is needed to enforce the statutory requirements for making an appraisal demand, because the purpose of the demand is to infonn the corporation of which shareholders are dissenting from the merger and the total number of shares demanding .~ppraisal ) (citing Alabumu BJi-Products, 657 A.2d at 262-63); Raab, 355 A.2d at 892 ( [a] demand for payment under ii 262(b) requires the formality and legal technicality befitting a last step in the final transaction between the corporation and its dissenting stockholder). . Given that $ 262(d)(2) does not require the stockholder to deliver the demand on the twentieth day but only to send it, one could infer that time is not of the essence. Indeed, Mitchell Partners faxed demand may well have arrived at Best before demands that were timely mailed. Nonetheless, our courts have strictly construed the deadlines set forth in (i 262(d), and it is not an onerous requirement to expect a stockholder to send a demand within the statutory period. Regardless of the various slower and faster methods by which demands can be sent, strict compliance enables corporations to promptly learn the identity of all stockholders who have timely sought appraisal. Ro)?nl Industries, iuc. v. Monogram Industries, Inc., Del. Ch.: 366 A.2d 839, 841 (1976) (ciiing ~!oeb & Co. v. Hilton Hotels Coup., Del. Supr., 222 A.2d 789 (1966); see also S&,eyer v. .Ychencrndouh Oil Coup., Del. Ch., 3 16 A.2d 570 (1974)), rev d on other grounds, 372 A.2d 171 (197 1). There appears to be some first-blush tension in the case law between the strict construction given 9: 262 s statutory formalities, Alobuma By-Products, 657 A.2d at 258, and language elsewhere statmg that [clourts have construed [the demand] requirement liberally for the protection of objecting, stockholders. Sapala v. Forest Heulth Service Corp., Del. Ch., C.A. Yo. 14260, mem. op., 1996 Del. Ch. LEXIS 48, at *6, Jacobs, V.C. (May 3, 1996). But our courts have qualified the latter instruction, stating that the statutory requirements are to bc liberally construed for the protection of dissenting stockholders within the limits of orderly corporatt procedures and consistent with the purepose of the requirements. Y uhDi, SO8 A.2d at 869 (emphasis added) (citation omitted). Indeed, the Supreme Court long ago expressed doubt about the accuracy of general expressions to the effect that merger statutes are enacted for the benefit of minority stockholders, as [mlerger statutes are enacted, not in atd of dissenting shareholders alone, but are as well in aid of majority stockholders and also in aid of the public welfare if the notion is not entirely outmoded that healthy business corporations are in some degree conducive to the general good. Suit Dome Oil Corp. v. Schenck, Del. Supr., 41 A.2d 583, 587 (1945). In addition, the rule of liberal construction appears to apply primarily \vhcn there is a dispute as to wlether a timely filing satistied the technical requirements of a 15 In addition to the clear language of $ 262(d)(2) and the strict construction 9 262 is generally given by our courts, the absence of a specific exclusion in the statute is vitally important evidence of the General Assembly s intent not to exclude the final Sunday.3 As a matter o F statutory interpretation, it is critical that the General Assembly has, throughout the Delaware Code, acted in a manner that runs directly counter to Mitchell Partners argument that the General Assembly s silence reflects its conviction that the Sunday Rule automatically applies .absent legislative language specifically abrogating it. Instead, the General Assembly has taken a statute-by-statute approach. Thus Delaware constitutional and statutory law in many other contexts states with considerable specificity when Sundays are to be excluded from the computation of statutory deadlines. Perhaps the most prominent example of demand letter or objection. -E.g., Tubhi, 508 A.2d at 871, 869. 869-70 (finding, in&~ alia, that ( 1) letter adequately set forth a demand under $262(d)(l); (2) the Supreme Court s decrsion in We tzherger- V. U.O.P., Inc., Del. Supr., 457 A.2d 701 (19X3), did not require that everything possible must be done to allow stockholders to obtain an appraisal and that hypetiechnical objections should be rejected cut of hand and that the Court should look at the equities in deciding whether failure to comply with the requirements of $ 262 depraves the stockholder of his appraisal rights ; and (3) untnnely 5 262(d)(l) demand could not be given effect); Bell v. Kirby i:unzbe~ Corp., Del. Supr., 4.I3 A.2d 137, 149 (1980) (liberally construing sufficiency of demand requirement because the letter could, by fair implication, be read as being (a) written demand(s) for payment ) (quoting Carl A4aks h Co. v. Universal City Studios, Inc., Del. Supr., 233 A.2d 03, 64 (1967)): Sapala, 1996 Del. Ch. LEXIS 48, at *5-*9 (applying liberal construction rule to determine that letters constituted 4 262(d)(2) appraisal demand); Rauh, 355 A.2d at X91-93 (prevote objections can be liberally construed, but demand requirements must be strictly construed). See Part III(B) (explaining that there was no clear common rule that applied the Sunday Rule to statutorily required acts outside the judicial context). 16 such exactitude is Article III, 5 18 of the Constitution of the State of Delaware.3 And in numerous statutes addressing a wide variety of subjects, the General Assembly s prevailing practice has been to state unequivocally when it intended the term day to exclude Sundays.32 Although the General Assembly s inclusion of language excluding Sundays in such statute:3 is by no means dispositive,33 the fact that our legislature has so frequently gone out of its way to make clear w-hen the term 3 Del. Const. Art. III, 9 18 (unless certain conditions are satisfied, [i]f any bill shall not be returned by the Governor witl-in ten days, Sz~nrlays excepted, after it shall have been presented to bun or her, the same shall be a law in hke manner as If he or she had signed it . ) (emphasis added). 3 See, e.g., 6 Del. C. $ 2802(2) (defining Business day as uny duy except Sunday or a legal holidq~ ) (emphasis added):, 6 Del. C. 5 2822(3) (same); 6 Del. C. $ 4202(l) (same); 6 Del. C. 4 5 141(c) (providing that fines payable by mail must be received by the court within 10 days from the date the citation was issued (excluding Saturday and Sunday) . ) (emphasis added); 7 Del. C. 9 131 l(c) (providing similarly); 7 UC, $ 6061(c); (providing similarly); 7 Del. C. 9 786(d) (permitting in certain places and under certain circumstances the trapping of raccoons during any time of the year e.vcepting 011 Sundays ) (emphasis added); 9 Del. C. {i 9105(a) ( County offices shall be open each day e.xcept legal holidays, Saturdays and Sundays ) (emphasis added); 1S Del. C. ej 7105 ( The department shall, on the next day after receiving a writ of election, unless the same shall he Sunday and therl on the Monday next jtillowing, post a proclamation reciting the writ. among other information, m certain places); see also 7 Del. C. 3 4131; 9 Del. C. 3 8605; 14 Del. C. 0 8505(a)(3) (1); 15 Del.. 5 1901(a): 17 Del. C. 3 1720; 19 Del. C., 3 1103(b); 29 Del. C. ~3 9006B(a); 30 Del. C. 5 5217. But see 7 Del. C. 5 570 ( Dogs can be trained and field trials conducted, when properly licensed, upon restricted preserves on any date, irlclzrding Sunduys, with certain exceptions) (emphasis added). Finally, Court of Chancery Rule 6(a) itself, analogous rules promulgated by the Delaware ludiclary, and comparable statutorily enacted provisions are generally explicit when excluding Sunclays from the calculation Iof limitations periods. See Supr. Ct. R. 1 l(a); Super. Ct. R. 6(a); Super. Ct. 1~. Crim. Pr. 45(a); Ct. Comm. Pleas R. 6(a); Ct. Comm. Pleas R. Civ. Pr. 6(a); Ct. Comm. Pleas R. Grim. Pr. 45(a); Fam. Ct. R. Civ. Pro. 6(a). See nlso 25 Del. C. 4 5112 (property statute); 30 Del. C. 3 55 l(d) (state taxes). 3x See Delaware State lJr2ivcr~ity v. American Association of University Professors, Del. Ch., CA. No. 1389-K. mcm. op. at 11, Strine, V.C. (May 9, 2000, corr. May 16,200O) ( To infer that the General Assembly s silence in the case of PERA was an implicit act of exclusion solely because DSU was explicitly included in other statutes using the term state agency is to misapply a hombook methodology to the process of lawmakmg in a citizens legislature. ); see also Robb 17 day excludes Sundays bears heavily on the legislative intent behind 5 262(d)(2). Had the General Assembly believed that the Sunday Rule was firmly entrenched in the common law, it is doubtful that it would have taken such care to codify the rule in so many other statutory contexts. And had the General Assembly wished to make clear its universal approval o-f the Sunday Rule, it could have taken the approach of other states and adopted a Sunday Rule of general applicalsility.34 But it has not. Finally, the absence of any statutory prescription concerning the Sunday Rule - whether in 5 262 itself or in the form of a general statute elsewhere in the Code -- is particularly important in the context of $ 262 because of the great attention that statute has been given by those involved in Delaware s corporate lawmaking process. Because the appraisal remedy is entirely a creature of statute, 35 I find counterintuitive Mitchell Partners v. Ramq~ Associates, Inc., Del. Super., 14 A.2d 394, 396 (1940) (the expressio unius est e,xclusio alterius doctrme IS a rule of construction that must be applied with great caution). See 74 AM.KJR.2d Time 4 19 ( In many states there are statutes providing specifically or in effect that if the last day on which an act is to be done falls on Sunday or a holiday, that day is to be excluded in the computation of time, and in some states a like provision is made with respect to Saturday. In most cases these enactments are considered as being intended to establish a uniform rule, applicable tlo the construction of statutes as well as to matters of practice, and they are applicable whether the time to be taken into account is days, months, or years. ) (internal citations omitted). Akrburna ByProdzicts Carp , 657 A.2d at 25% (quoting Alahuma B)i-Products v. Neal, Del. Sup ., 588 A.2d 255,256 (199 I); Kaye v. Pantone Inc., Del. Ch., 395 A.2d 369, 3 75 (1978)); see ~1x0 Lichtman V. Recognizirion .Byuipment. Inc., Del. Ch., 295 A.2d 77 I, 772 (1972) ( The right to appraisal is purely statutory. ). 18 suggestion that the General Assembly tacitly intended an uncodified Sunday Rule to apply to the formalized, statutory process of demanding appraisal. B. .Qelaware Courts Have Not Adopted, Whether Before Or After The Enactment Of 8 Del. C. 8 262(d)(2), A Common Law Sundav Rule Anplicable --_To The Perfonn:a.ce Of Statutorilv Mandated, Out-Of-Court Acts In an effort to counter the absence of any language in 9 262(d)(2) referring to the exclusion of final Sundays and to diminish the importance of the General Assembly s general practice of explicitly incorporating the Sunday Rule where it believed that Rule was advisable, Mitchell Partners ques that Delaware common law has always recognized the Sunday Rule and that the General Assembly silently incorporated that supposed common :.aw rule when it enacted 5 262(d)(2). To establish the existence of a common law Sunday Rule, Mitchell l?artners points to the 1922 Superior Court case of Simkin v. Cole. The plaintiff further directs my attention to the 1948 Chancery Court case of Lewis v. Corrooa & Reynolds Cor ~.,~ not only as evidence of Delaware courts understanding that the Sunday Rule applies specifically to appraisal demands, but also as an example of the purportedly universal recognition in Delaware of the Sunday Rule. Lewis v. Corroon & Rqnolas Corp., Del. Ch., 57 A.2d 632 (1948) 19 Notwithstandmg Mitchell Partners creative reading of the case law, Delaware common law does not appear to have ever explicitly recognized a general Sunday Rule applicable to statutorily prescribed time periods like .the one set forth in 5 262(d)(2). In so concluding, I note the accepted principle of statutory construction that a legislature is presumed to know the common law before a statute is enacted 37 and the fact that Delaware is a common law state . . . . 7 38 I also accept the proposition that [i]t is not to be presumed that a change in the common law was intended beyond that which is clearly indicated by express terms or by necessary implication from the legislative language used. 3 Nonetheless, Simkin and Lewis do not reflect the supposedly clear common law understanding Mitchell Partners suggests. Mitchell Partners relies primarily on the passage in Simkin in which the Superior Court opined as follows: Where no contrary intent appears, the better and more reasonable rule, therefore, seems to be that where a given number o-fdays is allowed to do an act, or it is said an act may be done within a given number of days, and whether it be by rule of court, judicial order or statute, Sundays are counted if one or more occur within the time, unless the last da:y falls on Sunday, in which case the act may be done on the next day.40 X.7 M&II v. Ma& Del. Ch., 336 A.2d 230. 234 (1975) (citation omitted). Zd. (citation omitted). Zrl. (citation omitted). Simki~7 v. Cole, 122 A. a: 192. 20 But this pronouncement is pure dictum as to acts not performed in Icourt. The issue before the court was whether the defendant had met the requirements for filing a motion for a new trial, not whether the defendant 3ad complied with a statutorily prescribed process occurring out of court such as that for making appraisal demands.4 Indeed, perhaps the most wellIsettled proposition of common law is that dictum does not constitute binding precedent.4 Furthermore, altbaugh later cases have cited the Sinzkin rule for various propositions of tolling law, those referring to Simkin s statement of the Sunday Rule are also distinguishable from the present case because they addressed deadlines for filing papers with the court. 3 See also Swiss Bank, 141 F.3d at 693 (concluding that Delaware case law left much room to doubt whether the dictum in Sin&in is a reliable guide to Delaware law ). See, e.g., Humrn v. Aetm Chualty & S~tre~ Co., Del. Supr., 656 A.2d 712, 716 ( 1995) ( This language is obiter dicta and is, therefore, not binding as legal precedent. ); Opinion of tke Jir.~tice.s, Del. Supr., 198 A .2d 687, 690 (1964) (same). E.g., Shepad v. Williams, Del. Super., CA. No. 82C-MR-34, 1986 Del. Super. IBXIS 1326, O Hara, J. (Sept. 9, 1986) (applying Superior Court Rule 6(a) to deny defendant automobile insurer s motion to dismiss actlon for failure to comply with the two-year statute of limitations set forth in 10 Del. C. 5 8 119); Scllneyer, 3 16 A.2d at 572 (applying Court of Chancery Rule 6(a) to find that where the four-month deadline under $ 262(c) expired on a Sunday, the statutory period f 3r fihng a petition did not toll until the following day . . ); Prudential Insurance ~Cotnpony of ii ttxrica V. Rozar, Del. Ch., 162 A.2d 715, 716 (1960) (finding applicable the conclusions rcachcd by Associated T~YULS~W~ and Simkin and accepting plamtiff insurance company s argutnent that, even though last day of one-year contestability period under insurance policy fell either on a Saturday or Sunday. plaintiff was entitled to bring action because the only way the plaintiff-company could initiate a contest of the policy was by Instituting legal proceedings ); hfogu/ 1 . Miller, Del. Super., 162 A. 5 15 ( 1932) (where four-day Rule 35 deadline would have expired on a Sunday and Monday was May 30, or Memorial Day, and where defendant s attorneys claimed to have complied with the rule in filing their reasons on Tuesday, granting plaintiffs motion to dismiss or stnke out defendant s reasons for a new trial because, per Sirnkin v Cole and by Section 1430, RI:v. Code 1915, defendant s reasons should have been filed on 21 But the Simkil? decision is helpful insofar as Judge Harrington auempted in that case to determine exactly where the common law then stood on the Sunday Rule issue. Judge Harrington concluded that whereas Delaware common law did apply the Sunday Rule to court deadlines, it did not clearly recognize the rule when statutes were involved. As the Simkirz court explained murky sl:atus of the law in 1922: There is considerable conmsion in the authorities on this question in both England and America. Ency. Pl. & Pr., vol. 30, p. 1204; Amer. & Eng. Ency. of Law, vol. 28, p. 224. In both countries, it bras frequently been expressly held or intidnatled that where the last day for doing an act falls on Sunday, performance on the succeeding day, while good as to a rule of court, or a judicial order, is not ordinaril r suf$cient where a statute is involved. Hughes v. GrifJith, 106 E.C.L. 323; iMorris v. Barrett, 97 E.C.L. 138 (7 C. B. & S.j; Peacock v. Queen, 93 E.C.L. 262; Milbourn v. Lyster, 5 Sim. 565 (58 Eng. Rmepr. 451); 2 Stri. 87 (93 Eng. Rep. 401); American Tobacco Co. v. Strickling, 88 Md. 500, 41 Atl. 1083, 69 L. R. A. 909; Atkinson v. Merritt, 3 N.Y. Super. Ct. 667; Cooley v. Cook, 125 Mass. 406; Simmons v. Hanne, 50 Fla. 267, 39 South. 7 7, 7 Ann. Cas. 322; Anurzymous, 2 Hill (N.Y.) 375, note. 4 Turning to these and other case law authorities, the law appears to have been as Judge Harrington described it, that is, not particularly clear4 -_-- I_-*- Monday, May 30, even though that day was Memorial Day). Campaye WiMiams v. Singleton, Del. Supr., 160 A.2d 376, 378 (1960) (distinguishing Auociaterl fiznsporf V. Pusq on basis that Associuted Tknzsporf that mvolved a three-year statute of limitations that expired on a Sunday). Sirnkin v. Cole, 122 A~. at I91 (emphasis added). 4 .%e, e.g., Barnes V. Eddy, 12 R.I. 25, 1878 R.1. LEXlS 8, at *26 (RI. Jan. 19, 1878) (explaining that Ihe cases on this issue have never been entirely harmonious ). 22 1x11. ,tending to favor the inclusion of final Sundays when computing statutory deadlines unless the statute in question specified that such Sundays should be excluded.46 The older treatises I have consulted suggest similarly, --- E.g., A;ciswander v. Bricknel-, 156 N.E. 138, 140 (Oh. 1927) (observing that, according to a contemporary treatise, that the great weight of authority supports the rule that where an act is to bc done within a time fixed by statute, and the last day thereof falls on a Sunday, performance of the act on the following Monday is not timely unless expressly authorized by statute ) (citing 7 Ann. Cas. 325); see also id. (citing M&inn v. State, 65 N.W. 46 (Neb. 1895); Hixenbaugh v. Union Cetltral L$ Ins. Co.; 219 Ill. hpp. 534 (Ill. Ct. App. 1920), Monroe Cattle Co. v. Becker-, 147 U.S. 47 (1893)); Styles v. Dickey, 134 N.W. 702, 703 (Ill. 1912) ( In court practice both under rules of court and statutes regulatmg procedure where the last day for performance falls on Sunday, where the time wlthin which the act is to be done is measured by days, generally performance can be made on the Monday following, but this rule does not apply to statutes construed as mandatory as to time provisions. ); Simmons v. Hanne, 39 So. 77, 80 (Fla. 1905) ( The great weight of authorib is that, in computing the time within which an act required by any statute must be done, if the last day falls on a Sunday, it cannot be excluded, and the act done on the Monday following, unless there IS some statute providing that the Sunday should be excluded from the computation, or the intention of the Legislature to exclude it IS manifest. ), overruled in relevuntpart, Dade County Planning Dept. v. Ransing, 158 So.2d 528 (1963); American Tobacco Co. v Stricklillg, 41 A. 1083, 1086-87 (Md. Ct. App. Dec. 20, 1898) ( The general rule, subject t,z but few exceptions, is that statutory time of over 7 days cannot be extended because the last cay falls on Sunday. ) (citing i. Enc. Pl. & Pr. 256; Vailes v. Browr~, 27 P. 945 (Colo. 1891); ( oole~s v. Cook, 125 Mass 406 (Mass. 1878); Ex Parte Dodge, 7 Cow. 147 (N.Y. 1827); Johnson 1. ~\~~<vellr, 54 F. 417 (8 Cir. 1,393)); Cressey v. Purks, 74 Me. 387 (Me. 1883) ( Sunday, remarks Byles, J., in Peacock I. The Qlleen, 93 E.C.L. 264, at common law, is jusi like any other day. Sunday. obser\:cs Lord Elllenborough, in CT-ew& v. Green, 14 East. 537, IS as much a day to occupy space of time as any other day. When the statute prescribes the number of days within which an act is to be done, and nothing is said about Sunday, it is to be included. ). See also A4aresca v. United States, 277 ?. 727, 733-34 (2d Cir. 1921) ( Where an act is required to be done m any certain number of days after or before a fixed time, Sunday is to be included in computing the number of days, when it exceeds seven; if it is less than seven, Sunday must be excluded[.] ) (citing 38 Cyc. 332, 333; LEWIS, L SUTHERLAND ON STATUTORY CONSTRUCTION 3 188, ar 335 (2d Ed.)), cert. denied, 257 U.S. 657 (1922). Compare Von de j. lu?e V. Weller, 44 A. 874, 874, (N.J. Supr. 1899) ( At common law, if an act be stipulated to be, or is required to be, done on Sunday, or on a legal holiday, the party has the next following day in which to perform it. 3 Chit. Gen Prac. p. 104. It seems, however, that where the act to be performed is one which is required by statute, in the orderly course of judicial procedure, the common law rule has not always been followed, either in England or in this country, as may be sze by a reference to the cases on this subject collated in the footnotes to the article on the computation of time in 26 Am. & Eng. Ency. L. 10 et Seq. ). But see, e.g., Poet>: v. A{& 81 A.2d 741, 745 (N.J. 195 1) ( Although there is diversity of opinion elsewhere, it IS well seitled m this state that where, by statute, an act is due arithmetically on a day which turns out to be a Sunday or legal hohday, it may be lawfully performed on the fi,llowmg day, and if that clay be also a Dies non on which the public offices are closed to the transaction of business, according to the holiday acts, supra, a similar rule apples. ) (citations 23 ,although some state more definitively that the common law of the United :States and England did not apply the Sunday Rule to statutes. 7 omItted): S&z@ v. Melierr, 3 Mont. 118, 126 (1878) ( The general rule for the computation of time m cases of this description undoubtedly is that where the last day m which the required act can be performed falls on Sunday, the act may be well done on the following day. Sunday is excluded from the count. ); ic,?. ( Without recurrmg to all the decisions on the subject of computation of time, It may be sufficient to say, that whenever by rule of court or an act of the legislature a given number of c.ays are allowed to do an act, or is it said that an act may be done xvithin a given number of days. the day in which the rule is taken or the decision made is excluded, and if one or more Sundays occur withm the time, they are counted unless the last day falls on Sunday, in which (case the act may be done on the next day. ) (quoting Goswiler s Estate, 3 Pen. & W. 200); SherwoodBros., Inc. v. District ofColurnbia, 113 F.2d 162, 163 (DC. Ct. App. 1940) (common law-rule is to exclude Sunday) (citingLa?nson v. Andrew, 30 hpp. UC. 29 (1913); Street v. Unite,dStates, 133 U.S. 299 (1890); Monroe Cattle Co. v. Becker 147 IJS. 47; Pressed Sfeel Cur Co. v &stern Ry., 12 1 F. 609 (1903)). Conzpa~e ,%iss Bank, 14 1 F.3d at 693 ( [[In the wake or under the influence of the statutory movement, a common law rule allowing such an excuse emerged ) (citing Pickew v. State Farm Mutual ALltornoblle Ins. Co., 144 S.E.2d 68,71 (S.C. 1965); Dean v. Freeze, 209 S.W.2d 876,878 (Ark. 1948); Hveen V. /l hode ITlund Ins. Co.. 42 A.%d 556, 558 (Pa. 1945); Glover v. G/over, 416 S.W.2d 500, SO3 (Tex. Civ. App. 1967); Prudential Carolinas Realty v. Cambridge Development Corp., 8.72 F. Supp. 256, 260 & n.4 (D. S.C. 1994) ((applying South Carolina law), aff d mem., 42 F.3d 7 386 (4th Cir. 1994); Simkin, 122 A. at 1!>2)). See E. T. CRAWFORD, TEHE CONSTRUCTION OF STATUTES 9: 113, at 167-65 (1940) (statmg that as a matter of U.S. common law, Sundays, in the absence of a statute excluding them from the period prescribed, are counted, even though the period ends on Sunday, except perhaps where the period is less. than a week ) (citing, irztei, ulia, Tuylor v. Pulrner, 3 1 Calif. 244; C hictrgo v. Vulcan Iron Works, 93 Ill. 222 (Ill. 1879); Haley v. Young, 134 Mass. 364 (Mass. 1983); Huvrison v. Sager, ;!7 Mich. 476 ((1010. 1866); Nutional Bank ~3 . Williams, 46 MO. 17 (MO. 1,370), undftir contrary position, Hunzickcr v. Pzdliarn, 37 P. 2d 417 (1934)); G. G. SHARP & B. GALPIN, MAXWELL OK THE INTERPRETATION OF STATUTES, at 353 (10 ed. 1953) (stating that under English law [d]ally includes Sundays and that [i]t has been held . [that] where an Act which made no mention of Sunday required that a recognisance should be entered into in two days after a notice of appeal, and the notice was given on Friday, recognisances on that following Monday were too late, though Sunday was the last day, and they could not be entered into then ) (citing Londw C. C. v. S. Metropolitan Gus Co., 1 Ch. 76 (1904): Exparte Sunpkin (1859); L.R. 4 C.P. 235 ; Expnrte Hicks, 1875 L.R. 20 Eq. 143)). What little modem commentary exists is consistent with the above. See N. .1. SINGER, 2 SIJTHEKLAND STATUTORY CONSTRUCTION 3 33.12, at 27 (5t cd. 1993) (stating rnerely that [pleriods of time of more than a week are generally construed to include Sundays in the absence of a statutory provision to the contrary ); N. .I. Marini, Annotation, inclusion or Exclusion of First and Lust Duyfor PLlrposes oJ Stutl&s oflimitations, 20 A.L.R.2d 1249 0 6 (obser\ring that [tlherc appears to be a divergence of authority on the question of whether the last day of a period of limitation should be extended to Ihe following day where such last day falls upon either a Sunday or a holidey ). 24 Nor does the I948 case of lewis v. Corroon & Reynolds Corp. alter my decision. Mitchell Partners finds Lewis particularly important as reflecting not only Vice Chancellor Seitz s conclusion that the Sunday Rule applies to the statutory appraisal demands but also of the longstanding assumption on the part of many in the Delaware legal community that the rule generally applies to statutorily required acts. Admittedly, the Lewis decision is initially exciting to resea.rchers of the Sunday Rule in Delaware, in that Vice Chancellor Seitz appears in that decision to have applied the Sunday Rule when calculating the deadline for an appraisal demand. In Lewis, the Vice Chancellor stated as follows: Since the merger agreement was recorded November 18, 1946, the last day for making a written demand for payment was twenty days after that date, to wit, on December 9, I946 (December 8 being a Sunday). It is not disputed that Mr. Rosenfeld s letter of demand on behalf of the nine stockholders was mailed and received before December 9, 1946. There was compliance, therefore, with the requirement of the appraisal statute as to when the written demand must be made. Thus Vice Chancellor Seitz appears to have taken it as a given that the deadline for an appraisal demand would be extended to the following Monday when the twentieth day of the limitations period fell on a Sunday. Lewis, 57 A.2d at 635-315 (emphasis added). 25 But Lewis exerts little, if any, controlling force over the proper lsonstruction of 3 262(d)(2). As was true of the commentary in the Simkin decision, Vice Chancellor Seitz s calculation of the § 262(d)(2) deadline in Lebvis is also dictum, because the demand in that case was made on December 3, five days before the Sunday mentioned. Thus, as in Simkin, the issue of the Sunday Rule was not before the court in Lewis, and nothing in that decision suggests that Vice Chancellor Seitz answered the question after (considering thoughtful briefing on both sides of the issue. Thus Lewis Icannot function as binding precedent on the Sunday Rule issue. Mitchell F artners argues that, at the very least, Lewis reflects the common understanding that the Sunday Rule applies to the calculation of :jtatutory limitations periods such as that in Q 262(d)(2). Yet this assertion is .Jndermined by seve-ral factors. First and mosr critical, the General Assembly s behavior is far more lsonsistent with an understanding on its part that the common law did not iapply the Sunday Rule to statutes, absent a specific decision by the legislature to codify that approach. And, as I have pointed out, this tmderstanding comports with what seems to have been the somewhat more prevalent view at common law, as acknowledged in Simkin. 26 Second, then-Vice Chancellor and now Justice Walsh s decision in Wilgus v. Salt Pond Invmtnzent CO.~ further undercuts the notion that the :Sunday Rule was an accepted part of the common law. As Justice Walsh observed when remarking on the absence in Delaware of a Sunday Rule statute of general applicability, the Sunday Rule is a creature of statute not common law. ,250 Furthermore, ,when reviewing Delaware case law to detemrine whether our common law applies the Sunday Rule to contract provisions, Judge Posner wrote 10-n behalf of the United States Court of Appeals for the :Seventh Circuit in Svis~: Bank Corp. v. Dresser Industries, 1~~ that he was unable to find a case in which a Delaware court has construed a statute of the state to excuse . ., I nonperformance [on a Sunday] by implication. 52 .4nd although Judge Posner found evidence that a common law Sunday Rule bad emerged in other jurisdictions, he could not locate any Delaware decisions adopting that ru1e.j3 - Wilgus, 498 A.2d 15 1. I 1~1. ~ 498 A.2d at 157 n.2 (citations omitted) (emphasis added). See ~rlso In re ilppraiszl oj hYtS7;;1R, Del. Supr., 604 A.2c. 404,413 (1992); note 35, .sup~z. I SM~I SS Hmk, 141 F.3d at 693. : 1 Id. Ifl. (.*[I]n the wake or under the influence of the statutory movement, a common law rule allowmg such an excuse emerged ) (citations omitted). 27 Finally, any claim that Lewis is a statement of bedrock common law ton this issue is contradicted by Mitchell Partners own actions in this case. Not only did the plaintiff fail to -think of the Sunday Rule when it submitted ts Shareholder Information Foml concerning the Disputed Shares, the plaintiff also failed to cite Lewis until oral argument.54 In this regard, IVIitchell Partners conduct echoes the failure of respected treatises on the Delaware General Corporation Law to appreciate the Sunday Rule s applicability to 8 262; none of these authorities cite Lewis for that lx-oposition.55 Thus I conclude that Delaware common law does not appear to have ever recognized a Sunda.y Rule applicable to statutorily prescribed time periods like the one set forth in 5 262(d)(2). At the very least, I find the law to have been so unclear <as to preclude any conclusion that the General Assembly understood it as recognizing the Sunday Rule and therefore intended 5 262(d)(2) to silently incorporate that tolling method. 28 C. The Sunday&ule Embodied In Court Of Chancery Rule 6(a) Does Not sz)ersede The Plain Language Of 5 262(d)@ Or Otherwise IQ-iction As A Legislatively Enacted Sunday Rule Irrespective of the statutory and case law considerations outlined above, Mitchell Partners contends that I must read 5 262(d)(2) as; modified by -the provisions of Court of Chancery Rule 6(a), which, like its counterparts in the rules of other Delaware courts,Sh incorporates the Sunday IRule for the purposes of this court s procedures. In other words, the plaintiff argues that because IRule 6(a) requires the application of the Sunday Rule to the computation of any period of time prescribed or allowed by these rules, by order of Court, or by aq applicable statute, 57 Rule 6(a) therefore functions as a legislatively enacted Sunday Rule governing the tolling of the ii 262(d)(2) deadline. E.g., Supr. Ct. R. 1 l(a); Sup~:r. Ct. R. 6(a); Super. Ct. R. Crim. Pr. 45(a); Ct. Cornm. Pleas R. 6(a); Ct. Comm. Pleas R. Civ.. Pr. 6(a); Ct. Comrn. Pleas R. Crim. Pr. 45(a); Fam. Ct. R. Civ. Pro. 6(a). ST Ct. Ch. R. 6(a) (emphasis added). Rule 6(a), entitled Computation, provides in full: In computing any period of time prescribed or allowed by these rules, by order of Court, or oy any applicable statute, the day of the act, event or default after which the designated period of time begins to run is not to be included. l he last day of the period so computed shall be included, unless it is a Saturday, a Sunday or other legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the Register inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescrrbed or allowed is less than 11 days, intermediate Saturdays, Sundays and other legal holrdays shall be excluded in the computation. As used in this rule, legal holidays shal be those clays provided by statute or appointed by the Governor of the State. Yet apart from the fact that Mitchell Partners has not cited any Delaware case construing the term applicable statute in the manner the plaintiff advocates5 several additional factors militate against the conclusion that Rule: 6(a) provides a default rule for calculating the $ 262(d)(2) limitations period. First, Mitchell Partners construction conflicts with the clear provisions of Court Iof Chancery Rule 1 and the Rules enabling legislation, both of which sharp1.y circumscribe the scope of this court s rulermaking amhority. This court s ability to make rules is quite limited and is manifestly designed to respect the court s need to govern the processes by which it conducts its business as a unit of Delaware s independent, judicial branch of government. Thus 10 Del. C. 5 361(a) authorizes the Chancellor only to make rules governing practice andprocedure with respect to. ,causes and proceedings in [the Chance/y] Court. 59 In conformity with the modest authority vested in this court to make its own rules, Rule 1 - which is entitled Scope and purpose of Rules - expressly states that [tlhese j8 I am aware of this court s fc otnote dictum in Mlgz~s stating that by Court Rule, acts required to bc done by statute or Court Rule are extended by the Sunday Rule. Wilgus, 498 A.2d at 157 n.2. 1 read this sentence as merely describing Rule 6(a) rather than holding as to the proper scope of the term applicable statute. jq 10 Del. C. 5 361(a) (emphasis added). 30 Rules shall govern the procedure in the Cow-t of Chancery of the State of Delaware . . . . Thus Rule 6(a) is clearly inapplicable to g 262(d)(2) by the very terms of the Rules and their enabling legislation, which explicitly provide that the :Rules apply only to litigation taking place within this court. Because shareholders submit 9 2162(d)(2) demands directly to companies, the demand process can hardly be deemed a procedure in the Court of Chancery under Rule I. Thus demands submitted pursuant to 5 262(d)(2) are not properly covered by Rule 1 or subject to Rule 6(a).62 It is similarly evident that 8 262(d)(2) is not an applicable statute within the meaning of Rule 6(a). Rather, that term must be read in the Ct. Ch. R. 1 (emphasis added). See ulso .%iss Bank, 141 F.3d at 693 (observing that the old common law rule ihat Sunday is dies ~017 jutdims, means only that judicial acts performed on Sunday are void and thus has nothing to do with the validity of contracts or the deadlines for performing them, unless the performance required by the contract is the commencement of legal proceedings on a day on which the relevant court is not open ) (citations omitted). Indeed, the crucial difference between the court s lack of involvement in the process of making z.ppraisal demands and its direct role in the process of riling appraisal petitions under 9 262(f) dispenses with Mitchell Partners argument that the use of day in the latter provision somehow undennines the view that the General Assembly was consistent in its use of the term day in {I 262. Set 8 Del. C. 5 26;!(f) ( Upon the filing of any such petition by a stockholder, service of a copy thereof shall be made upon the surviving or resulting corporation, which shall wit/G? 20 &J:S after such service file in the office of the Register in Chancery in which the petition was filed a duly verified list . ). Whereas 4 262(f) is properly read by reference to Court of Chancery Rule 6(a) for the purposes of calculating the limitations period set forth in that section because the filing and adjudication of petitions takes place in court, this court s rule-making authority does not extend to appraisal demands made by and upon private parties in private places of business. Put differently, Rule 6(a) properly and cotzsti~utiotzally modifies 9 262(f), per 10 Del. C. Q 361(c) and (d), with respect to when a petition may be filed in this court. 31 context of $ 36 1 (a) and Court of Chancery Rule 1. When so construed, applicable statute is blzst read as referring instead to statutory provisions addressing periods of time (e.g., a statute of limitations) involving events lhat occur within this court, such as the filing of a complaint. This more limited reading of Rule 6(a) finds support in the case of Williams v. Singleton. 3 Singleton held that no overlap exists between Superior Court Rule 6(a) - a rule analogous to Court of Chancery Rule 6(a) - and 10 ,Del. C. 8 9578 such that Superior Court Rule 6(a) could be held to modify that statute. In Singleton, the Court considered: the defendant s appeal of the Superior Court s dismissal of his case because he had filed his appeal with the Superior Court too late under the terms of {i 9578(a). That provision stated that [a]n appeal shall be allowed by the Justice at any time within 15 days from the dozy for giving the ju&melzt and IZOL afiev, counting that day ns o?ze, upon the party entitled to the appeal or his agent or attorney praying it. In direct contrast, the first sentence of Superior Court Rule 6(a) stated that [i]n computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable ---- IVillionzs v. Singleton, 160 A.2d 376. Id., 160 A2d at 377 (quoting 10 Del. C. 9 9578) (emphasis added) Istatute, the day of th e act, event, or default ajier which the designatedperiod of time begins to run is not to be included. G5 The Singleton Court resolved the conflict by rejecting the contention that Rule 6(a) s first sentence operated to enlarge the filing period - i.e., that 5 9578(a) could be ~leld an applicable statute within the meaning of Rule 6(a) ~ because so holding would effectively amend a jurisdictional statute by applying t-he rule. 66 The Court reasoned that whereas the Superior Court Rules govern practice and procedure with respect to the commencement of trial, hearing and determination of actions in the Superior Court and supersede any conflicting statute with respect to such matters[,] 7 the Rules were not intended to supersede statutes of the kind here involved, nor could they do ~0. ~~ Instead, the court found, 13 9578(a) is a jurisdictional statute, and the Superior Court was without jurisdiction to entertain [the appeal:] an d Rule 6(a) ha[:d] no bearing upon the matter. It is significant that the Singleton Court reached this conclusion in the context of a deadline for an appeal, which obviously involves a filing with Ill.. 160 A.2d at 377 (quotilzg Super. Ct. R. 6(a)) (emphasis added). Id., 160 A.2d at 378. . 1~1 (quoting 10 Del. C. 0 561(a)) (emphasis in origmal). Ii Id., 160 A.2d at 378. 1~1. Corq~re Slzqard V. W/ianz.s, 1986 Del. Super. LEXIS 1326 (holding plaintiffs complaint f11ed on a Monday to be timely under Superior Court Rule 6(a) where two-year statute of limitations set forth in 10 Del. ( . $ 8119 expired on a Sunday). --s. 33 the court. Notwjthstanding the presumption that court rules appropriately modify general stahks of limitations that are not as explicit as 9 957X(a), the Singleton court concluded that the court could not apply its own rules of procedure to alter the terms of an unambiguous jurisdictional statute such as ii 95,78(a). This jurisdictional consideration has even more force in the context of 5 262(d)(2), where the shareholder at issue has failed to submit a timely appraisal demand. and thereby perfect his appraisal rights, where such perfection is a necessary prerequisite to this court s assumption of jurisdiction. Given that the demand submission process precedes Chancery Court jurisdiction and takes place between the parties and without contemporaneous court involvement, the Singleton decision strongly suggests that there is no legitimate basis for this court to use Court of Chancery Rule 6(a) in assessing whether it is appropriate to exercise jurisdiction over Mitche; 1 Partners appraisal demand, i.e., whether the demand was timely subnVtted.70 Admittedly, Sir~gletw~ contails a perplexing sentence distinguishing Associated Transport on the basis that Associated Twr~s,7ov~ involved a three-year statute of limitations that expired on a Sunday. Singleton, 160 A.2d at 378 (citing Associated Transport, 118 A.2d 362). The Singleton Court merely referred to Associated Tmnsport and stated that [olbviously, that decision does not touch the questlon before us. T~tl. Yet this sentence can be read as simply dlstingulshing the case before it from a sltuatlon in which the General Assembly may be presumed - by virtue of the enablmg powers it gave the co~uts over events occurrmg in the litigation context and by operation of the well-recognized common law Sunday Rule for court filings ~ to have intended Rule 6(a) to hold sway over a typical statute of limitations that does not have explicit language such as that found m 10 Del. C. 5 9578. 34 As a last ditch. effort, Mitchell Partners, points to the Supe-rior Court s statement in Associated Tmzsport, Inc. v. Pusey that Superior Court Rule 6(a) has had the force and effect of legislative enactment since 11948 and that when a statute of limitation does not indicate the inapplicability of the policy of Rule 6(a), then the Rule must be said to apply. But Associated Tramport and the cases on which it relied are inapposite here precisely for the reason that they involved court filings and statutes of limitation implicating the dies myi juvidicus doctrine rather than a statutori ly required, out-of-court act in which the court has no role. Correspondingly, 1 reject Mitchell Partners suggestion that 10 Del. C. $9 36 I(c) and (d) -- which provide, respectively, that the Court of Chancery Rules supersede all. statutory provisions in conflict or inconsistent therewith and that ]Ia]ny inconsistency or conflict between any rule and any statute shall be resolved in favor of such rule of court - bear on the applicability of Rule 6(a) to 5 262(d)(2). Because this court s rules do not apply to the appraisal dlemand process in the first place, there is no conflict for 4 36 1 (c) and (d) to resolve. These provisions instead appear to apply to situations where the CJerEral Assembly has stumbled beyond its Associated TI-ansport, 118 ,9.2d at 365. 35 ;urisdictional boundaries by legislating on matters pertaining solely to ludicial procedure. Finally, the greatest obstacle to Mitchell Partners proposed conflation of # 262(d)(2) and R.ule 6(a) is that it disrespects the separation of powers doctrine recognized under Delaware law. That is, Mitchell Partners view Iof Court of Chancery Rule 6(a) s scope would theoretically permit this court I:O override by court rule? any statutory provision duly enacted by our General .4ssernbly. Not only would this run directly counter to the mandate in ,$ 361(b) that the Co.u-rt of Chancery Rules shall not abridge, enlarge or .uodify any substantive right of any party, it would offend the separation of powers established by the Delaware Constitution, which does no.t contemplate the kind of rulemaking power that Mitchell Partners would confer on the judicia.ry. 3 The judiciary should not repay the General .:, ~-_--- - In w Requesst of the Govetmwfov UIZ Advisory Opinion, Del. Supr., 722 A.2d 307, 318 (1998) I( Separatlon of powers exists in this State as a fundamental [principle ofl our ConstitutIonal .a\. ) (quoting Opinion oftlw Justices, Del. Supr., 380 A.2d 109, 113 (1977)). 3 Id. ( The Delaware Constitution of 1897 provides for exclusive action of each branch within its (own sphere. Laws are to .be enacted by the legislative branch (Article II), enforced by the (executive branch (Article Ill), and construed by the judicial branch (Article IV). ). In this regard, it is wu-th noting that if Rule 6(a) applies, $ 262(d)(2) therefore Incorporates not only the #Sunday Rule, but a Saturday Rule and a Holiday Rule, which taken Logether might extend the demand period by as much as three days. 36 Assembly s legislative recognition of the judicial branch s need to shape its own procedures by using that recognition as a pretext for encroaching on the General Assembly s constitutional authority. D. Counting Sundays Will Not Produce Anv Real-World Inequities Although this case was not argued on equitable grounds, it seems appropriate to acknowledge that the lack of a Sunday Rule makes the demand process slightly more onerous for stockholders. Nonetheless, our society has, for good or ill, long since decided to let commerce flourish at all times. As Judge Posner commented in the 1998 !hvI J s Bank case, the excusing rule, whether common law or statute-based, is an anachronism, given the amount of commercial activity on Sundays; and it is therefore rejected in most of the recent decisions, unless, of course, it is embodied in a statute. In my view, Judge Posner s observation applies with even greater force to statutorily prescribed actions that may .be performed on any day of the week, such as faxing a demand (which can be clone on any day as long as the receiving corporation has not turned its fax machine off), submitting a demand via any number of courier services (which also can be done on any day of the week, albeit at some added expense), or even mailing a demand through the regular mail (which can be 7 1S ~viss Rank, 141 F.3d at 693. 37 done in larger cities such as Philadelphia, for example, twenty-four hours a day, seven days a week! with a postmark available even on Sundays).75 That being sa-id, the General Assembly remains free to apply the Sunday Rule to $ 262(d)(2) and thereby temper society s mad rush into a 247 commercial world. But until the General Assembly does so, stockholders like Mitchell Partners cannot be excused for failing, to meet the deadline for submitting demands according to the time frame currently set forth in $ 262(d)(2).76 IV. Conclusion For the reasons stated herein, Mitchell Partners motion for summary judgment is DENIED, and Best s moi;ion for summary judgment is -_-- Even though this ruling dotes not address 3 262(d)( 1) demands, I perceive no discernibly greater problems in that context In $ 262(d)(l) situations, the stockholder already must take great care to guarantee timely delivery. There are now multiple, reliable methods of delivery by which a stockholder can ensure timehg Sunday delivery nearly as easily as on any other day, although the stockholder may have to pay some extra costs. And it seems rather paradoxical and strained to base a case for laxity on the grounds that an investor (i.e., a capitalist) who delays compliance with the statute may have to pay a market-based premium to take last-minute action. hiIoreover, as Judge Posner pomted out ,n Stviss Bunk, if a party s ability to perfoml on a Sunday is thwarted by the party arguing that per ormance was due that day (e.g., if a corporanon s fax machine was out of paper and therefore would not receive a shareholder s faxed demand), the non-performance should be excused. SnGs Bank, 141 F.3d at 691-92. That is, a corporation pressing its right to receive a demand m accordance with a strictly applied Sunday deadline must be prepared to accept delivery on that day. In another case, it bears mentiomng, the Delaware Supreme Court similarly reJected a plaintiff shareholder s attempt tc force a corporation to pay the consequences of a broker or nominee s failure to correctly perfect a shareholder rights. See Zn ~~eAppmi.sal qf ENS3 AR Corp., 535 A.2d at 1354-55 ( The legal and practical effects of having one s stock registered in s-Lreet name cannot be visited upon the issuer. The attendant risks are those of the stockholder, and where appropriate, the broker. Enstar cannot, and should not, be blamed for the fadure of a nominee or broker to correc~.ly perfect appraisal rights for a beneficial owner. The dispute, if any. is between these brokers and their clients. ). 38 GRANTED. The paxties shall confer and submit a conforming order within seven days of the date of this opinion.77 I note the following with respect to the two other issues raised by the parties First, another ground for denying Mitchell Partners motion for summary judgment and for granting that relief to Best IS Mitchell Partners lack of timeliness m asserting i is claim concerning the proper construction of the 9 262(d)(2) limitations period. Mitchell Partners acknowledges that this court s order of January 14, 1999 required record holders seeking apprais,ll to file Stockholder Information Forms (SIFs) on or before March 1, 1998 and that [alny Record Stockholder desiring to respond to an objection or objections made by a Respondent shall at:ach to the SIF a written statement setting forth such person s posltlon and all documents upon which such person relies to refute the Respondent s objection(s). Nelsorl v. Best, 13el. Ch., C.A. No. 16329, order 11 3, Strine, V.C. (Jan. 14, 1999). The January 14, 1999 order further stated that [alny person who fails to file an SIF postmarked on or before March 1, 1999 shall be foreclosed from asserting a claim for appraisal of shares of Respondents, unless the Court otherwise determines for good cause shown. IQ . 7 4. But the February IS; 1999 SIF for the Disputed Shares named Cede as the holder of record and thus did not refer to Mitchell Partners March 23, 1998 demand. Indeed, the SIF contained an erroneous statement by Mitchell that he did not receive the information [that the shares had been transferred by Bear Stearns] sufficiently in advance of the effective date of the Merger to submit a demand in Mitchell Partners name. Best Br. Ex. L, at App. A. At oral argument, however, counsel for Mitchell Partners likewise conceded having failed to realize before the SIFs were submittec. that $ 262(d)(2) lent itself to the now-proffered reading. This failure is rather surprising, in light of the purportedly widespread understanding among Delaware practitioners that the Sunday Rule applies to statutory deadlines. Yet Mitchell Partners has offered no excuse or justification for failing to miss this courtmandated deadline. Instead the firm merely argues that litigation is an organic process in which the court may exercise its IdIscretion at any time to consider valid legal arguments affecting the clutcome of the dispute. According to the plaintiff, Best has not been preludiced by the plaintiff s Flursuit of its Sunday Rule theory. Best had sufficient notice of Mitchell Partners intention to Flress its right to appraisal, Mitchell Partners claims, because even though Mitchell acknowledged in the February 18, 1999 SIF that he was unable to submit a demand in Mitchell Partners rame, he also asserted in the SIF his belief that all of the [Disputed Shares] qualify for appruisal _ Best Br. Ex. L, at App. A. I conclude, however, that Mitchell Partners has falled to show good cause for failing to assert Its Sunday Rule contentissn in a timely manner. See Itz re Appmisal of ENSTAR Corp., Del. Ch., 513 A.2d 206, 210 (1 386) (where then-Vice Chancellor Hartnett stated that an SIF is analogous to a Chancery Rule 12 defense and, to a lesser extent, an admlssion pursuant to Chancery Rule 36 because an SIF IS designed to foreclose preliminary objections that the procedural prerequisites of the appraisal statute had not been complied with or that the entity seekmg an appraisal was not the owner of the shares and that, like a Rule 12 defense, an SIF can be amended only for cause ); Dolan v. Williams, Del. Supr., 707 A.2d 34, 36 (1998) (describing good cause as excusable neglect, reqmring a demonstration of some reasonable basis for noncompliance or neglect which might have been the act of a reasonably prudent person under the circumstances ) (internal citation and quotations omitted). Absent such a showing, the deadlines established by tb.is court s January 14, 1999 order must be respected if it is to effectuate 39 E DC& 9 262. Thus Mitchell Partners post-hoc Sunday Rule theory fails for lack of timeliness as well as on the merits. Second, because I find that Mitchell Partners demand was not timely submitted, I do not reach Best s alternative argument challenging the sufficiency of the demand. See 262(d)(2) (a demand is sufficient if it reasonably informs the corporation of the identity of the .stockholder and that the stockholder intend.; thereby to demand the appraisal of such holder s shares ). 40

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