Wilmington Medical Associates PA v. Charles A. Esham
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COURT OF CHANCERY
OF THE
STATE OF DELAWARE
KIM E. AYVAZIAN
MASTER IN CHANCERY
COURT OF CHANCERY COURTHOUSE
34 THE CIRCLE
GEORGETOWN, DELAWARE 19947
Date Submitted: February 20, 2014
Date Decided: March 12, 2014
Jeffrey M. Weiner
1332 King Street
Wilmington, DE 19801
Re:
Lois J. Dawson
1525 Delaware Avenue
Wilmington, DE 19806
Wilmington Medical Associates PA v. Charles A Esham,
Civil Action No. 8184-VCG
Dear Counsel:
As the parties may be aware, Vice Chancellor Glasscock is on medical leave
and has referred all non-dispositive motions to me for consideration.
I have
reviewed the Plaintiff’s Motion for an Award of Attorney’s Fees dated February
10, 2014, and the Defendant’s Response to that Motion dated February 20. For the
reasons explained below, that Motion is denied.
This action involves the valuation of the Defendant’s interest in the Plaintiff
Company pursuant to an Employment Agreement, which provides the Company a
contractual right to purchase, and the Defendant a contractual right to sell, his
interest in the Company. The parties are in the process of discovery, and on July
10, 2013, the Plaintiff filed a Motion for Protective Order, requesting that the
Court limit the scope of discovery to those documents implicating the appraisal
provisions of the Employment Agreement.
Specifically, the Employment
Agreement provides that:
(a) The independent accountant then employed by the Company . . .
shall prepare a balance sheet as of the end of the Company’s last
fiscal year immediately preceding the happening of the event
which requires a valuation of the Company’s stock. From the
balance sheet . . . there shall be determined the unadjusted net book
value of the stock to be valued.
(b) Such unadjusted net book value shall then be adjusted as follows:
(i)
All real and personal property owned by the Company shall
be restated on the balance sheet to reflect fair market value
as of the balance sheet date. If the interested parties cannot
agree with respect to such fair market value, the
determination of fair market value shall be made by
appraisers [appointed by the Plaintiff and Defendant] . . . .1
The Plaintiff sought to limit discovery to the fair market value of real and personal
property as of the balance sheet date, while the Defendant wished to obtain
additional discovery in order to challenge the accuracy of the underlying books and
records used by the Company’s independent accountant in preparing the balance
sheet.
On January 30, 2014, Vice Chancellor Glasscock granted the Plaintiff’s
Motion for Protective Order, explaining that, under his reading of the appraisal
provisions in the Employment Agreement:
The information relevant in discovery is any information pertaining to
the fair market value of any real or personal property owned by the
1
Employment Agreement § 3(1).
2
Company together with what [he] already described, the books of the
Company as they existed on the date certain and the work papers of
the accountant. . . . To the extent that the Defendant’s request for
documents relates to any issue other than the books as of the date
certain, the calculation by the accountant, or the valuation of real and
personal property, those requests are denied, and the Plaintiff’s
Motion for Protective Order is granted.2
The Plaintiff now requests attorney’s fees for the successful prosecution of that
Motion. The basis for that request, however, is not presented in the Plaintiff’s
brief. Instead, the Plaintiff simply summarizes the proceedings and states that
$2,664 in fees was incurred in the prosecution of the Motion for Protective Order.
“Although this Court has discretion to award attorneys’ and expert witness
fees, under the ‘American Rule’ courts do not award attorneys’ fees to a prevailing
party absent some special circumstance.”3 Special circumstances in which an
award of attorney’s fees may be appropriate include “cases where fees are
authorized by statute” or “where the court finds that the litigation was brought in
bad faith or that a party’s bad faith conduct increased the costs of litigation.”4
With respect to discovery motions, Court of Chancery Rule 37 provides that the
Court:
. . . shall, after affording an opportunity to be heard, require the party
or deponent whose conduct necessitated the motion or the party or
attorney advising such conduct or both of them to pay to the moving
party the reasonable expenses incurred in obtaining the order,
2
Jan. 30, 2014 Tr. 5:20-6:14.
Arbitrium (Cayman Islands) Handels AG v. Johnston, 705 A.2d 225, 231 (Del. Ch. 1997).
4
Id.
3
3
including the attorney’s fees, unless the Court finds that the
opposition to the motion was substantially justified or that other
circumstances make an award of expenses unjust.5
This Court has understood the Rule to require fees “only . . . when a discovery
request which no reasonable attorney would file is propounded, forcing attorneys
to act to protect their client from harassment or abuse.”6
Here, the Defendant correctly points out that “[t]he Defendant’s request for
discovery was not requesting information in bad faith nor did they do anything that
would be considered inappropriate in the request . . . .”7 Rather, the dispute
regarding the scope of discovery was premised on differing interpretations of the
applicable language in the Employment Agreement, which language Vice
Chancellor Glasscock clarified in his January 30 bench ruling. The Defendant’s
argument that the appraisal procedure at issue permitted challenges to the
Company’s underlying books and records, though ultimately unsuccessful, does
not rise to a level of bad faith conduct which would justify an award of attorney’s
fees.
In other words, because I find that the Defendant’s opposition to the
Plaintiff’s Motion for Protective Order was substantially justified—premised on an
interpretation of contractual language that required Court clarification—the
Plaintiff’s Motion for Attorney’s Fees is denied.
5
Ct. Ch. R. 37(a)(4)(A) (emphasis added).
U.S. Die Casting & Dev. Co. v. Sec. First Corp., 1995 WL 301414, at *4 (Del. Ch. Apr. 28,
1995).
7
Def.’s Reply at ¶ 4.
6
4
To the extent the foregoing requires an Order to take effect, IT IS SO
ORDERED.
Sincerely,
/s/ Kim E. Ayvazian
Kim E. Ayvazian
Master in Chancery
5
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