Opinion
Civil Action No. 18462.
Date Submitted: May 21, 2004.
Date Decided: May 27, 2004.
David J. Teklits, Esquire, Morris, Nichols, Arsht Tunnell, Wilmington, DE.
Steven L. Caponi, Esquire, Blank Rome LLP, Wilmington, DE.
Dear Counsel:
I have Mr. Teklits' letter of May 21. On behalf of the defendant, Mr. Teklits disputes an observation made by the Court at page 5 of its May 19, 2004 letter opinion. There, the Court denied reargument on the "net asset value" contention because "at no time did the company advance the alternative (and its current) argument that adjustments must be made to the plaintiff's net asset valuation, if the Court upheld certain corporate level expense inputs relevant to that valuation." Mr. Teklits disagrees, pointing out that in his post-trial brief and during post-trial argument, "the issue was discussed."
Mr. Teklits also states that "that contention was raised at trial in the testimony of Defendant's expert, Mr. Grabowski."
The attachments to Mr. Teklits' letter do indeed show that "the issue was discussed." However, the defendant never fairly raised or presented the argument that it now asks the Court to consider. The defendant's sole argument in response to the plaintiff's "adjusted net asset valuation" was that such a valuation was legally precluded under Delaware appraisal law. The defendant did not advance the alternative argument that even if the net asset valuation was not precluded, the net asset valuation could not be credited because certain adjustments to that valuation would be required. Although the record does contain some references to such adjustments, the thrust of those references was not supportive of the alternative argument now being advanced. Rather, those arguments were advanced to refute the testimony of Mr. Penny, the plaintiff's expert, relating to his net asset valuation.
For these reasons, the Court adheres to the rulings in its May 19, 2004 letter opinion, and declines to consider the defendant's net asset valuation argument.