Kroenke Sports v. Salomon

• Court: Supreme Court of Delaware
• Decided: April 23, 2020
• Docket: 112, 2020
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

KROENKE SPORTS & § ENTERTAINMENT, LLC, § No. 112, 2020 OUTDOOR CHANNEL HOLDINGS, § INC., SKYCAM, LLC, and § Court Below: Court of Chancery CABLECAM, LLC, § of the State of Delaware § Defendants Below, § C.A. No. 2019-0858-JTL Appellants, § § v. § § NICOLAS A. SALOMON, § § Plaintiff Below, Appellee. §

Submitted: April 20, 2020 Decided: April 23, 2020

Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.

ORDER

After consideration of the appellants’ motion for a stay pending appeal, the

appellee’s response, and the appellants’ reply, it appears to the Court that:

(1) The defendants-appellants (the “Companies”) filed this appeal from an

order of the Court of Chancery, dated February 26, 2020 (the “Summary Judgment

Order”), which granted plaintiff-appellee’s (“Salomon”) motion for summary

judgment in an action for advancement of legal expenses under 8 Del. C. § 145 and

an indemnification agreement between Salomon and defendant-appellant Outdoor

Channel Holdings, Inc. The Summary Judgment Order directed the parties to, among other things, submit a proposed order (the “Fitracks Order”)1 governing the

procedure for submission of invoices and the handling of advancement payments

through the final disposition of the underlying matter for which Salomon sought

advancement.

(2) The Companies moved in the Court of Chancery for a stay pending

appeal. The Court of Chancery denied the motion for a stay, stating that “the appeal

was not taken from a final order” and “[n]o one has sought interlocutory appeal, nor

has anyone sought certification of a partial final judgment.” The Companies now

seek a stay from this Court. In addition to arguing that a stay is warranted under the

factors articulated in Kirpat, Inc. v. Delaware Alcoholic Beverage Control

Commission,2 they contend that the Summary Judgment Order was a final,

appealable order. They analogize the procedure for ongoing oversight of Salomon’s

advancement claims to the procedure established in Homestore, Inc. v. Tafeen3 and

argue that because Homestore was not handled as an interlocutory appeal, this appeal

also is not interlocutory.

(3) We conclude that this appeal is interlocutory. As an initial, technical

matter, the order from which the Companies appealed—that is, the Summary

1 See Danenberg v. Fitracks, Inc., 58 A.3d 991, 1003 (Del. Ch. 2012) (establishing process for making periodic advancement demands). 2 741 A.2d 356 (Del. 1998). 3 888 A.2d 204 (Del. 2005). 2 Judgment Order—required the parties to submit a further, implementing order

setting forth the process for submitting invoices and handling advancement

payments until the litigation for which Salomon sought advancement is finally

resolved. Thus, the Summary Judgment Order was not analogous to the Homestore

order, as the Companies suggest. But even if the Companies had appealed from the

Fitracks Order—which was proposed by the parties and adopted by the Court of

Chancery after the appeal was filed—the appeal would be interlocutory because,

under the Fitracks Order, the Court of Chancery retains jurisdiction to resolve

disputes about the amount of fees and expenses for which Salomon demands

advancement going forward.4

(4) The Companies argue that a determination that an appeal from a

Fitracks-type order in an advancement case is interlocutory will mean that

“advancement judgments are never appealable.” To the contrary, in an appropriate

case, a company might seek interlocutory review under Rule 42 of this Court,5 or it

might seek entry of a final judgment under Court of Chancery Rule 54(b).6

4 See, e.g., Transperfect Global, Inc. v. Pincus, 2019 WL 7369433 (Del. Dec. 31, 2019) (holding that appeals from orders establishing procedures for custodian’s ongoing submission of fee petitions and trial court’s oversight of that process were interlocutory). 55 See generally Traditions, L.P. v. Harmon, 2020 WL 1646784 (Del. Apr. 2, 2020) (refusing interlocutory appeal from an order awarding advancement expenses under a Fitracks process). 6 See generally Trascent Management Consulting, LLC v. Bouri, 152 A.3d 108 (Del. 2016) (affirming advancement decisions in appeal from Fitracks-type orders made final under Rule 54(b)).

3 (5) This appeal must be dismissed because it was taken from an

interlocutory order. Absent compliance with Supreme Court Rule 42, this Court has

no jurisdiction to hear this interlocutory appeal.7 The motion for a stay pending

appeal is therefore moot.

NOW, THEREFORE, IT IS ORDERED that this appeal is hereby

DISMISSED. The motion for a stay pending appeal is moot.

BY THE COURT:

/s/ Karen L. Valihura Justice

7 Julian v. State, 440 A.2d 990, 991 (Del. 1982). 4