Kroenke Sports & Entertainment, LLC v. Salomon ( 2021 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
KROENKE SPORTS & §
ENTERTAINMENT, LLC, § No. 225, 2020
OUTDOOR CHANNEL §
HOLDINGS, INC., SKYCAM, LLC §
and CABLECAM, LLC, § Court Below: Court of Chancery
§
Defendants Below, § C.A. No. 2019-0858
Appellants, §
§
v. §
§
NICOLAS A. SALOMON, §
§
Plaintiff Below, §
Appellee. §
Submitted: January 27, 2021
Decided: February 1, 2021
Before SEITZ, Chief Justice; VAUGHN, and TRAYNOR, Justices.
ORDER
This 1st day of February, 2021, having considered the parties’ briefs and the
record below, and after oral argument, it appears to the Court that:
1. On February 26, 2020, the Court of Chancery entered a summary
judgment order that required the defendants below-appellants, Kroenke Sports &
Entertainment, LLC, Outdoor Channel Holdings, Inc., SkyCam, LLC, and
CableCam, LLC (the “Defendants”) to advance plaintiff below-appellee, Nicolas A.
Salomon, his past and future reasonable attorneys’ fees for defending an arbitration
action (the “Advancement Order”).1 The court also ordered that the Defendants pay
“fees on fees” for forcing Salomon to litigate his advancement rights, and post-
judgment interest.2 Following the court’s entry on March 24, 2020 of what is known
as a “Fitracks”3 Order setting a procedure to handle Salomon’s continuing
advancement requests, Salomon then brought two motions under Court of Chancery
Rule 88—one for advancement and the other for fees on fees, or indemnification.
On June 3, 2020, the court awarded Salomon fees on fees or indemnification (the
“Rule 88 Indemnification Order”). On June 11, 2020, the Court of Chancery
awarded advancements (the “Rule 88 Advancements Order”) (collectively, the
“Rule 88 Orders”).
2. Prior to entry of the March 24 Fitracks Order, the Defendants appealed
the Advancement Order and moved to stay the order pending appeal. The Court of
Chancery denied the motion. The court recognized that the Fitracks procedure
“clearly contemplates further action by the trial court” and “the appeal was not taken
from a final order.”4 Thus, the Advancement Order was not an appealable final
1
Salomon v. Kroenke Sports & Entm’t, LLC, 2020 WL 956745 (Del. Ch. Feb. 26, 2020) (granting
Salomon advancement under 8 Del. C. § 145 and an indemnification agreement between
defendant-appellant Outdoor Channel Holdings, Inc.).
2
Id.
3
Danenberg v. Fitracks, Inc., 58 A.3d 991, 1003 (Del. Ch. 2012) (establishing a protocol for future
advancement requests).
4
App. to Answering Br. at B0049.
2
order. The Defendants responded by moving for partial final judgment, or in the
alternative, certification of an interlocutory appeal. The court denied the motion.
3. On April 23, 2020, this Court denied a stay motion and dismissed the
appeal as interlocutory.5 We observed that the Advancement Order was
“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.”6 We also distinguished the
Advancement Order from the order appealed in Homestore, Inc. v. Tafeen.7
Homestore appealed from a Final Order and Judgment, whereas, the Advancement
Order “required the parties to submit a further, implementing order setting forth the
process for submitting invoices and handling advance payments until the litigation
for which Salomon sought advancement is finally resolved.”8
4. The Defendants moved again in the Court of Chancery for entry of a
partial final judgment, or in the alternative, certification of an interlocutory appeal
under Supreme Court Rule 42. The court denied the motions.
5. On July 9, 2020, the Defendants filed another appeal from the
Advancement Order and the Rule 88 Orders. Salomon argues that the appeal is
5
Kroenke Sports & Entm’t, LLC v. Salomon, 228 A.3d 409, 2020 WL 1951679 (Del. Apr. 23,
2020) (TABLE).
6
Id. at *1.
7
888 A.2d 204 (Del. 2005).
8
Kroenke Sports, 2020 WL 1951679, at *1.
3
interlocutory and must be dismissed because the Defendants have not sought
certification from the Court of Chancery or from this Court, as required under
Supreme Court Rule 42.9 In response, the Defendants admit that they have not
complied with Rule 42’s certification requirements. Instead, the Defendants rely on
Homestore, and argue that the Court of Chancery’s three orders were final orders
from which appeals can be taken.
6. We agree with Salomon that this appeal must be dismissed because the
Court of Chancery’s three orders are interlocutory. At oral argument, the parties
agreed that advancement expenses were ongoing. The Court of Chancery reserved
jurisdiction to decide the inevitable future disputes. A final judgment has yet to be
entered resolving the dispute.
7. The Defendants argue that under Homestore, we have reviewed
advancement orders as final orders even if future advancements have yet to be
resolved. Homestore, however, is different. In Homestore, the Court of Chancery,
as part of its order, “establish[ed] a procedure for Tafeen to obtain the advancement
of his legal fees and expenses going forward.”10 But the court entered a “Final Order
and Judgment” resolving the advancement action. It is also unclear whether the
procedure for resolving Tafeen’s future advancement requests required court
9
Del. Supr. Ct. R. 42(c).
10
Homestore, Inc., 888 A.2d at 209.
4
involvement. In any event, the court here was clear that it was reserving jurisdiction
to address future advancement disputes, rendering the order non-final.
8. “[A]bsent compliance with Rule 42, a judgment or order entered by a
court must be final to be reviewed by this Court.”11 We have already held that the
Advancement Order was interlocutory. The Rule 88 Orders are also interlocutory
because the Court of Chancery has retained jurisdiction to resolve any further
indemnification and advancement disputes and then issue a final order. Absent a
final order and judgment, or our acceptance of an interlocutory appeal under Rule
42, the appeal must be dismissed for lack of jurisdiction.
NOW, THEREFORE, IT IS HEREBY ORDERED that the Defendants’
appeal is dismissed without prejudice.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Chief Justice
11
Werb v. D’Alessandro, 606 A.2d 117, 119 (Del. 1992).
5