Wild Meadows MHC, LLC v. Weidman ( 2020 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
WILD MEADOWS MHC, LLC,
C.A. No. K19M-07-003 NEP
Petitioner, In and for Kent County
V.
DAVID J. WEIDMAN, ESQUIRE,
ARBITRATOR,
Respondent,
and
WILD MEADOWS HOMEOWNERS’
ASSOCIATION,
Intervenor-Respondent.
Submitted: June 18, 2020
Decided: July 10, 2020
MEMORANDUM OPINION AND ORDER
Upon Respondent’s Motion to Dismiss
GRANTED
Upon Intervenor-Respondent’s Motion to Dismiss
GRANTED
Upon Petitioner’s Motion for Judgment on the Pleadings
DENIED
Michael P. Morton, Esquire (argued), Robert J. Valihura, Jr., Esquire, and David C.
Zerbato, Esquire, Morton, Valihura & Zerbato, LLC, Attorneys for Petitioner Wild
Meadows MHC, LLC.
James P. Sharp, Esquire, Moore & Rutt, P.A., Attorney for Respondent David J.
Weidman, Esquire, Arbitrator.
Olga K. Beskrone, Esquire, Community Legal Aid Society, Inc., Attorney for
Intervenor-Respondent Wild Meadows Homeowners’ Association.
Primos, J.
Wild Meadows MHC, LLC v., David J. Weidman, Esquire, Arbitrator, et al.
C.A. No. K19M-07-003 NEP
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Wild Meadows MHC, LLC (hereinafter “Wild Meadows”), has filed a
Petition for a Writ of Prohibition (hereinafter the “Petition”) against Respondent
David J. Weidman, Esquire (hereinafter “Weidman”). In response, both Weidman
and Intervenor-Respondent the Wild Meadows Homeowners’ Association
(hereinafter the “HOA”)' have filed Motions to Dismiss. Wild Meadows itself has
filed a Motion for Judgment on the Pleadings. Upon review of the written
submissions and following oral argument, the Motions to Dismiss of Weidman and
the HOA are GRANTED, and Wild Meadows’s Motion for Judgment on the
Pleadings is DENIED.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Wild Meadows manufactured home community (hereinafter the
“Community”) is located in Dover, Delaware. Each resident in the Community
owns his or her home and rents the lot upon which the home is located from Wild
Meadows, the community owner.
On October 31, 2018, Wild Meadows sent a letter to certain homeowners in
the Community whose year-long leases were set to expire, notifying them that it
would be raising their lot rent above the average annual increase of the Consumer
Price Index, or “CPI-U,”* pursuant to the Rent Justification Act (hereinafter the
“Act”).? Wild Meadows subsequently held a meeting with the affected homeowners
' The Court granted the HOA’s Motion to Intervene on November 22, 2019.
* The CPI-U is “the average annual increase of the Consumer Price Index for All Urban Consumers
in the Philadelphia-Wilmington-Atlantic City area.” Former 25 Del. C. § 7042(a). Pursuant to the
requirements of the Rent Justification Act, the CPI-U “for the most recently available preceding
36-month period” is used. Jd.
3 Former 25 Del. C. § 7040 to 7046. Effective December 10, 2019, the Act was redesignated (i.e.,
renumbered) and amended. This Opinion will cite the former statutes as they existed prior to the
amendments, because the issues in question arose prior to the Act’s redesignation. See Wild
Meadows Homeowners Association v. Wild Meadows MHC, LLC, 2020 WL 2070339, at *1 n. 3
(Del. Super. Apr. 28, 2020) (citing former version of the Act because events in question occurred
prior to the Act’s redesignation). Notably, these changes to the Act did not make any substantive
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of the Community to discuss the rent increase.* However, certain of the homeowners
chose not to accept the rent increase and filed a petition through the HOA with the
Delaware Manufactured Home Relocation Authority (hereinafter the “Authority”)
seeking the appointment of an arbitrator to determine whether the rent increase was
justified under the Act.°
The Authority chose Weidman to be the arbitrator in this case. Prior to the
scheduled arbitration, the HOA filed a motion for summary judgment and a motion
to compel the production of certain documents, including financial documents
relating to Wild Meadows’s operations. On January 18, 2019, Weidman issued a
decision (hereinafter the “First Decision”) denying the HOA’s motion for summary
judgment but granting the motion to compel in part, ordering Wild Meadows to
produce those financial documents that it planned to introduce or rely upon at the
arbitration in addition to certain other non-financial documents related to the
proposed rent increase.
After Weidman issued the First Decision, the Supreme Court issued its
opinion in Sandhill Acres MHC, LC v. Sandhill Acres Homeowners Association, 210
A.3d 725 (Del. 2019). Prior to the issuance of this decision, the HOA had filed a
Motion for Reconsideration, arguing that the financial documents to which it had
been denied access in the First Decision were indeed discoverable. In a June 7, 2019,
decision on the Motion for Reconsideration (hereinafter the “Second Decision’),
changes with regard to the issues in this case. Therefore, the parties are not now subject to a
different set of rules under the Act than they were prior to these changes.
* This meeting is required under the Act. See former 25 Del. C. § 7043(b) (“If the proposed rent
increase exceeds the CPI-U, the Authority shall schedule a final meeting between the parties at a
mutually-convenient time and place to be held within 30 days from the mailing of the notice of the
rent increase, to discuss the reasons for the increase.”).
> See former 25 Del. C. § 7043(c) (“[A]ny affected home owner who has not already accepted the
proposed increase, or the home owners’ association on the behalf of 1 or more affected home
owners who have not already accepted the proposed increase may . . . petition the Authority to
appoint a qualified arbitrator to conduct nonbinding arbitration proceedings.”).
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Weidman looked to Sandhill Acres and agreed with the HOA that the requested
documents were discoverable, thereby amending the First Decision and expanding
the scope of discoverable information.
In the Second Decision, Weidman ordered Wild Meadows to submit a
proposed Confidentiality Agreement and ordered the HOA, in response, to submit
any comments regarding the proposal. Weidman further provided that, if the parties
could not agree on the proposal, he would issue a final Confidentiality Agreement.
On June 26, 2019, following the parties’ inability to reach consensus,
Weidman issued a final draft Confidentiality Agreement. While he did not agree
with the majority of the HOA’s requested edits to Wild Meadows’s original
proposal, he rejected Wild Meadows’s request for an “attorneys’ eyes only”
limitation and instead expanded the class of persons who could review the
documents to include those directors, officers, or Board members of the HOA who
would be attending the arbitration, requiring those individuals to agree to be bound
by the Confidentiality Agreement in order to view the confidential documents.
Weidman ordered the parties to sign and return the Confidentiality Agreement by
July 3, 2019.
Wild Meadows refused to execute the Confidentiality Agreement and on July
3, 2019, filed the Petition, requesting that this Court, inter alia, prohibit Weidman
from “ordering [Wild Meadows] to produce documents or engage in discovery of
matters not to be used or relied upon by Wild Meadows in the arbitration” and from
“ordering [Wild Meadows] to agree to a Confidentiality [Agreement] which [Wild
Meadows] will not accept... .”° As noted supra, Weidman and the HOA have
moved to dismiss the Petition, and Wild Meadows has moved for judgment on the
pleadings.
° Petition at 17, Jf 2-3.
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Wild Meadows argues that it is entitled to a writ of prohibition because
Weidman acted outside the scope of his jurisdiction when he compelled the
discovery of documents and required the parties to sign the Confidentiality
Agreement, as neither of these measures is explicitly named in the Act as falling
within the arbitrator’s powers. Wild Meadows states that absent the writ, it will
suffer “irreparable harm” because Weidman’s Second Decision and the
Confidentiality Agreement will allow Wild Meadows’s competitors to “gain an
enormous tactical and strategic advantage, to the permanent detriment of [Wild
Meadows],” given the sensitivity of the information within the documents required
to be produced in discovery.’ Lastly, Wild Meadows claims that it has no adequate
alternative remedies.
Weidman maintains that he did not exceed his jurisdiction as arbitrator.
According to Weidman, Delaware Supreme Court jurisprudence has established that
an arbitrator has authority not only to compel discovery of financial records
requested by a homeowners association, but also to condition the discovery as he
deems fit. Weidman also asserts that an arbitrator is not a “tribunal,” and because a
writ of prohibition may be issued by the Superior Court only to an inferior tribunal,
Wild Meadows’s requested relief is inappropriate. In addition, Weidman contends
that a writ of prohibition is unavailable because Wild Meadows has an adequate
alternative remedy, i.e., injunctive relief through the Court of Chancery.
The HOA also asserts that Weidman did not exceed his jurisdiction as
arbitrator. Moreover, the HOA argues that Wild Meadows has an adequate remedy
at law, i.e., an appeal to this Court following the conclusion of the arbitration.
7 Id. at 4 33.
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Il. STANDARD OF REVIEW
On a motion to dismiss, the moving party bears the burden of demonstrating
that “under no set of facts which could be proven in support of its [complaint] would
the [plaintiff] be entitled to relief.”® Upon this Court's review of a motion to dismiss,
“(i) all well-pleaded factual allegations are accepted as true; (ii) even vague
allegations are well-pleaded if they give the opposing party notice of the claim; (iii)
the Court must draw all reasonable inferences in favor of the non-moving party; and
[(iv)] dismissal is inappropriate unless the plaintiff would not be entitled to recover
under any reasonably conceivable set of circumstances susceptible of proof.”
Similarly, a motion for judgment on the pleadings may be granted when there
is no issue of material fact and the moving party is entitled to judgment as a matter
of law.'° Indeed, the standard for a motion for judgment on the pleadings is “almost
identical” to that for a motion to dismiss.!!
Here, the parties have acknowledged, either explicitly or implicitly, that there
is no dispute as to the applicable facts in this matter.'!* Therefore, this matter will be
decided based upon the facts reflected in the pleadings and briefs of the parties, with
the exception of certain exhibits discussed infra.’
8 Daisy Constr. Co. v. W.B. Venables & Sons, Inc., 2000 WL 145818, at *1 (Del. Super. Jan. 14,
2000).
? Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002) (internal citations and quotations
omitted).
'0 Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund, II, L.P., 624 A.2d 1199, 1205
(Del. 1993).
1! Silver Lake Office Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at *6 (Del. Super.
Jan. 17, 2014) (internal quotations omitted).
'2 See Wild Meadows Jan. 10, 2020, Br. at 17; HOA May 22, 2020, Br. at 10. Presumably,
Weidman also agrees that the relevant facts are undisputed because those facts concern his
discovery-related decisions during the course of the arbitration as memorialized in certain written
documents — i.e., the First Decision, the Second Decision, and the draft Confidentiality Agreement.
'3 Cf Spine Care Delaware, LLC v. State Farm Mut. Auto. Ins. Co., 2019 WL 5581441 (Del.
Super. Oct. 29, 2019) (deciding matter on record at bar when parties agreed there was no genuine
issue of material fact and matter was ripe for decision on the merits).
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In that regard, the Court need not, and will not, convert the HOA’s Motion to
Dismiss into one for summary judgment in response to the HOA’s submission of
certain exhibits in support of its Motion. Generally, when a court refers to matters
outside the pleadings on a motion to dismiss, the motion must be converted to one
t.'4 However, the issue before the Court is strictly
for summary judgmen
procedural,'> and thus the Court will not reach the merits of the HOA’s substantive
arguments regarding whether Wild Meadows can justify the proposed rent
increase,'® nor will the Court refer to the exhibits that the HOA has offered in support
of its Motion to Dismiss.'’ Therefore, the Motion to Dismiss will not be converted
to one for summary judgment and will be decided based on the pleadings and briefs
of the parties, excluding, as noted supra, the exhibits submitted by the HOA, but
including the exhibits attached to the Petition (i.e., the First Decision, the Second
Decision, and Weidman’s June 26, 2019, email correspondence to the arbitration
parties attaching the final draft Confidentiality Agreement).
Hl. DISCUSSION
A. Weidman, as a quasi-judicial officer, is subject to the issuance of a writ
of prohibition by this Court.
As an initial matter, this Court may issue a writ of prohibition if it concludes
that such an extraordinary remedy is appropriate.'® A writ of prohibition is the legal
equivalent of an injunction whereby the court issues the writ to prevent a lower court
'4 Malpiede v. Townson, 780 A.2d 1075, 1092 (Del. 2001).
'S See Mehiel v. Solo Cup Co., 2005 WL 1252348, at *6 (Del. Ch. May 13, 2005) (“the scope of
the arbitrator's authority to compel discovery is a procedural question”).
'6 HOA Jan. 31, 2020, Br. at 14-16. Indeed, because Weidman himself has not reached a decision
on this substantive issue, it would be improper for this Court to address the HOA’s arguments on
this matter.
7 Id. Exhibits 1-6.
'8 10 Del. C. § 562; see also Family Court v. Dep’t of Labor, 320 A.2d 777, 779 (Del. Ch. 1974)
(“the Superior Court has the power to issue all common law writs including the writ of
prohibition”).
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or other tribunal from exceeding its jurisdiction.!? Delaware courts have explained
that a writ of prohibition may be issued only if the lower entity’s lack of jurisdiction
is manifest on the record”° and the petitioner has no adequate alternative remedy at
law to correct the alleged error.?! In other words, to succeed on a motion for a writ
of prohibition, the movant must demonstrate, by clear and convincing evidence, that
the lower entity abused, i.e., exceeded, its jurisdiction and that alternate legal
remedies are inadequate.” As noted supra, a writ of prohibition is an extraordinary
remedy” and is therefore to be used only in cases of great necessity.”
Weidman asserts that this Court may issue a writ of prohibition only to a
25 and argues that because he is not a tribunal, this Court may not issue
“tribunal,
such a writ to him. In support of this argument, Weidman states that as an arbitrator
he is not a tribunal because he does not qualify as one according to Black’s Law
Dictionary.”° Specifically, Weidman points out that Black’s Law Dictionary defines
a “tribunal” as “a court or other adjudicatory body,” and a “body” as “an aggregate
of individuals or groups.”*”. Wild Meadows counters with its own citation from a
legal dictionary, arguing that a “tribunal” is “anyone who sits in the judgment of
others.”28
"? In re Webb, 65 A.3d 617, 2013 WL 1871699, at *1 (Del. May 2, 2013) (TABLE).
20 Td.
2! In re Dennison, 892 A.2d 1083, 2006 WL 197164, at *1 (Del. Jan. 24, 2006) (TABLE).
2 Milford Sch. Dist. v. Whiteley, 401 A.2d 951, 953 (Del. 1979); In re Mahan, 55 A.3d 839, 2012
WL 5417075, at *1 (Del. Nov. 5, 2012) (TABLE).
3 In re Webb, 2013 WL 1871699, at *1.
*4 Knight v. Haley, 176 A. 461, 465 (Del. 1934).
5 Weidman Jan. 31, 2020, Br. at 11 (citing Matushefske v. Herlihy, 214 A.2d 883, 885 (Del. 1965)
(“a writ of prohibition will issue from a Superior Court to an inferior tribunal only for the purpose
of preventing the inferior tribunal from exceeding the limits of its jurisdiction”)).
6 Td. at 11-12.
27 Id. at 12.
28 Wild Meadows Apr. 14, 2020, Br. at 3 (citing Wolters Kluwer Bouvier Law Dictionary).
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Given the fact that the Court’s decision on this issue will lay the foundation
for the rest of this Opinion,”’ the Court will not resolve this issue based on a choice
between two non-binding definitions. In short, neither Weidman’s argument nor
Wild Meadows’s argument, both of which speak to the legal-dictionary definition of
“tribunal,” is persuasive.
Weidman also cites Jn Matter of Petition of Fatir, 223 A.3d 95, 2019 WL
6271180 (Del. Nov. 22, 2019) (TABLE), to argue that writs of prohibition “only
apply to lower courts and adjudicatory bodies,” and that Weidman, as an arbitrator,
is neither of these entities.°” In Matter of Fatir, the Delaware Supreme Court denied
an inmate’s petition to that Court for a writ of prohibition to the Board of Pardons?!
because the Supreme Court’s original jurisdiction allows the issuance of writs of
prohibition only to inferior courts and to judges of those courts, not to an
administrative board.** However, because the Superior Court’s original jurisdiction
is not explicitly limited in that way,*’ this Court’s jurisdiction to issue writs of
*? Le., if Weidman is subject to a writ of prohibition, then the Court may render a decision on the
deeper issue at bar, and if he is not, then the analysis ends here.
3° Weidman Jan. 31, 2020, Br. at 12. Weidman also cites Pots-Nets Coveside Homeowners Ass'n
v. Tunnell Companies, L.P., 2015 WL 3430089 (Del. Super. May 26, 2015) in support of his
contention that the General Assembly intended to limit the Superior Court’s jurisdiction over
disputes arising under the Act. This decision is not persuasive because it did not address whether
this Court has the authority to issue a writ of prohibition against an individual arbitrator.
3! Fatir, an inmate, sought a writ of prohibition to prevent the Board from requiring that he reapply
for a positive recommendation before applying to the Governor for a commutation of his sentence.
Matter of Fatir, 2019 WL 6271180, at *1.
*? Id. (citing Del. Const. art. IV, § 11(5) (Supreme Court has jurisdiction “[t]o issue writs of
prohibition, quo warranto, certiorari and mandamus to the Superior Court, and the Court of
Chancery, or any of the Judges of the said courts and also to any inferior court or courts established
or to be established by law and to any of the Judges thereof and to issue all orders, rules and
processes proper to give effect to the same.”’)).
33 See Del. Const. art. IV. § 7 (“The Superior Court shall have jurisdiction of all causes of a civil
nature, real, personal and mixed, at common law and all the other jurisdiction and powers vested
by the laws of this State in the formerly existing Superior Court; and also shall have all the
jurisdiction and powers vested by the laws of this State in the formerly existing Court of General
Sessions of the Peace and Jail Delivery; and also shall have all the jurisdiction and powers vested
by the laws of this State in the formerly existing Court of General Sessions; and also shall have all
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prohibition extends beyond state courts and state judicial officers. Therefore, Matter
of Fatir was decided on grounds that are inapplicable to this Court.
Like Weidman, Wild Meadows focuses its argument on the term “tribunal.”
Wild Meadows cites LG Electronics, Inc. v. InterDigital Communications, Inc.,*4
where the parties had entered into a nondisclosure agreement that was to be enforced
before “any court, agency, or tribunal.”*> The issue before the Court arose from a
dispute between the parties as to whether certain information could be disclosed to
an arbitration panel. In rendering its decision, the Supreme Court stated that “the
term ‘tribunal’ has long been understood to encompass arbitral tribunals, including
the one deciding the underlying dispute.”°° This decision is inapposite, however,
because it did not involve a writ of prohibition. Additionally, LG Electronics
specifically held that an arbitration panel is a tribunal, but Weidman acted alone,
i.e., he was not a member of a multi-arbitrator panel.
To the Court’s knowledge, there is no Delaware authority speaking directly to
whether this Court may issue a writ of prohibition to an individual arbitrator.
the jurisdiction and powers vested by the laws of this State in the formerly existing Court of Oyer
and Terminer.”); 10 Del. C. § 562 (no requirement that writs of prohibition from Superior Court
be issued only to inferior courts).
34.114 A.3d 1246 (Del. 2015).
35 Jd. at 1248 (emphasis in original).
36 Td, at 1249. In support of its contention that an individual arbitrator is a tribunal, Wild Meadows
quotes from Exhibit A of the LG Electronics Opinion, wherein the Supreme Court stated during
oral argument that an “[a]rbitration tribunal is a tribunal.” Jd. at 1272. However, because this
statement is not part of a written opinion, it is not as controlling as Wild Meadows suggests.
Moreover, Wild Meadows appears to have taken this statement out of context, because when
making this statement the Supreme Court was merely paraphrasing the reasoning of the Court of
Chancery below, not declaring that it was agreeing with the Court of Chancery’s conclusion that
an arbitration panel is a tribunal. See id. (“You go to the Court of Chancery. Court of Chancery
says, you know what? Arbitration tribunal is a tribunal. It has equitable authority. It was the first
contractually named tribunal court or agency seized with the question, and under McWane we're
not supposed to have two tribunals doing the same thing at once. And this is also analogous to a
well-settled line of law about arbitrators getting to decide evidentiary disputes and I'm just going
to follow this sort of pretty moderate course of action.”’).
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Nonetheless, a review of the original statute that confers power upon this Court to
issue a writ of prohibition establishes that the Court does indeed have the authority
to issue a writ of prohibition to Weidman as an arbitrator.
Pursuant to 10 Del. C. § 562, this Court “may frame and issue all remedial
writs .... All writs shall be granted . . . as the particular case may require.”2’ The
statute does not mention the term “tribunal,” nor does it specify which entities are
subject to a writ of prohibition issued by this Court.
Delaware courts, when addressing the issuance of writs of prohibition by this
Court, have used the term “tribunal” to describe the entity at issue in that case, not
to create a rule of law confining future courts to that term.** Indeed, when Delaware
courts determine whether to issue a writ of prohibition, they address whether the
lower judicial or quasi-judicial entity exceeded its jurisdiction, not whether it was a
“tribunal.”
As a case in point, in Whiteley, this Court, after noting that a writ of
prohibition is appropriate only “in cases of usurpation or abuse of jurisdiction by a
lower tribunal,” proceeded to determine whether the Delaware Secretary of Labor
had exceeded his jurisdiction in establishing a bargaining unit for a school district’s
custodial employees.*? The Court never considered whether the Secretary, as an
individual state officer, not a judge or a court, is a “tribunal” and thus not subject to
such a writ.*?
37 See n. 18, supra.
38 See, ¢.g., Whiteley, 401 A.2d at 953 (considering issuance of writ from Superior Court to
Delaware Secretary of Labor); Matushefske, 214 A.2d at 885 (considering issuance of writ from
Superior Court to Court of Common Pleas and Justice of the Peace); Knight, 176 A. at 464-65
(considering issuance of writ from Superior Court to Justice of the Peace).
39 401 A.2d at 953 (emphasis supplied).
“° See also Family Court, 320 A.2d at 780 (Court of Chancery held that Superior Court has
jurisdiction to issue writ of prohibition to administrative body exercising quasi-judicial functions,
in that case the Delaware Department of Labor).
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In short, the issue before this Court is not whether Weidman, as an arbitrator,
meets a legal-dictionary definition of “tribunal,” but instead whether Weidman, as a
quasi-judicial officer appointed pursuant to Delaware law — in particular, the rent
justification provisions of the Act — exceeded his jurisdiction. Having determined
that this Court may issue a writ of prohibition to Weidman, the Court will now
determine whether Weidman exceeded his jurisdiction during the arbitration, and if
so, whether Wild Meadows has an adequate alternative remedy at law.*!
B. Weidman did not exceed his jurisdiction during the arbitration
proceedings.
1. Weidman did not exceed his jurisdiction as the arbitrator when
he ordered Wild Meadows to disclose information requested by
the HOA.
a. Weidman appropriately relied upon Supreme Court
authority in ordering the production of information by Wild
Meadows.
The Delaware Supreme Court has determined that under the Act, an arbitrator
has the authority to compel, and limit, discovery during arbitration proceedings
regarding a proposed rent increase. When he issued the Second Decision in June
2019, Weidman had the benefit of both Supreme Court opinions addressing this
principle,” and properly found that he could not only compel Wild Meadows to
produce certain documents, but also limit the discovery to protect the privacy of the
information contained therein.
"! See Whiteley, 401 A.2d at 953 (“[T]he extraordinary writ of prohibition is only appropriate in
cases of usurpation or abuse of jurisdiction . . . and even then only if other existing remedies are
inadequate to afford relief.”’)
* Donovan Smith HOA v. Donovan Smith MHP, LLC, 190 A.3d 997, 2018 WL 3360585 (Del.
July 18, 2018) (TABLE); Sandhill Acres, supra.
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In Donovan Smith HOA v. Donovan Smith MHP, LLC, the Supreme Court
affirmed the arbitrator’s holding that the proposed rent increase was permissible
under the Act.*? However, the Supreme Court rejected the Superior Court’s holding
that a community owner may seek a rent increase above the CPI-U and
simultaneously refuse to allow the homeowners to examine the community owner’s
books and records necessary to determine whether the proposed rent increase is
“directly related to operating, maintaining or improving the manufactured home
community” as required by the Act.** The Supreme Court explained that in response
to a request by the homeowners, a community owner seeking to raise lot rent above
the CPI-U must produce its business records for the contesting homeowners to
review so that they may test the assertion that the rent increase is justified under the
Act. More importantly for the matter before this Court, the Supreme Court
recognized that the arbitrator may control the production of such documents by
imposing “appropriate conditions” to address confidentiality concerns, and may
“require production” of the relevant books and records if the homeowners “fairly
demand” their discovery.*®
In Sandhill Acres, the Supreme Court reversed this Court and thus affirmed
the arbitrator’s holding that the community owner had justified the rent increase
under the Act.*7 However, expanding on its statements in Donovan Smith regarding
discovery, the Supreme Court declared that a community owner seeking a rent
increase above the CPI-U is not in an “equitable or legal position to resist a
reasonable request for information about its costs and profit margins” designed to
“3 2018 WL 3360585, at *2.
“* Id, at *2-3; see also former 25 Del. C. § 7042(a)(2) (‘“directly-related” requirement is prerequisite
for above-inflation rent increase).
5 2018 WL 3360585 at *3.
46 Id.
47 Sandhill Acres, 210 A.3d at 732.
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test its “directly-related” claim.*® Indeed, a community owner seeking to increase
lot rent above the CPI-U must make a decision — either refrain from seeking an
above-inflation rent increase and keep its financial information from the eyes of
others, or seek such an increase and be willing to justify it by revealing relevant
documents.’? Furthermore, the Supreme Court again confirmed the arbitrator’s
power to oversee and direct such discovery by addressing “legitimate confidentiality
and proprietary concerns . . . through the imposition of use restrictions” and by
denying “excessively burdensome requests for information.”
Wild Meadows argues that the arbitrator’s role under the Act, far from
including discovery powers, is limited to determining whether the community owner
' The Supreme
has presented sufficient information to justify the rent increase.°
Court obviously sees the arbitrator’s role differently: while the community owner
bears a “modest” initial burden in a “directly-related” arbitration of merely showing
that it (Z.e., the community owner) “has incurred costs that are likely to reduce its
expected return,”°? the homeowners have the right to test that assertion by
demanding the production of relevant financial information — a right that the
arbitrator is empowered to enforce.
Wild Meadows, however, asserts that the statements in Donovan Smith and
Sandhill Acres regarding discovery are dicta and therefore not authoritative. In the
strictest sense, to be sure, the Supreme Court’s statements regarding the production
of financial information were not essential to the decision in either case, because in
both cases the homeowners had failed to request the relevant books and records
“8 Id. at 731.
49 Id.
50 Td.
5! Wild Meadows Apr. 14, 2020, Br. at 19-20.
°2 Sandhill, 210 A.2d at 729.
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during the arbitration proceedings.*? This does not mean, however, as Wild
Meadows contends, that the Supreme Court’s pronouncements carried no
authoritative weight, or that subsequent judicial — and quasi-judicial — entities are
not obligated to follow them.
When a court refers to “dicta,” it is often referring to “obiter dicta,” which are
statements or comments made “by the way.”>4 Obiter dicta are not binding
precedent and therefore need not be followed by a lower court.°*> In contrast, a
court’s “expression of opinion upon a point in a case argued by counsel and
deliberately passed upon . . . though not essential to the disposition of the cause, if
dictum, is a judicial dictum.”°® Judicial dictum is entitled to much weight and should
be followed unless it is erroneous.°’
Here, the Supreme Court’s statement in Donovan Smith (later confirmed in
Sandhill Acres**) that a community owner must be willing to produce relevant
documents if it wishes to increase lot rent above the CPI-U*’ was judicial dictum
because it addressed an issue relevant but not dispositive to the issues at bar — i.e.,
°3 See Donovan Smith, 2018 WL 3360585, at *3 (explaining that Superior Court had erroneously
stated that community owner had no obligation to produce its financial records, but nonetheless
affirming because homeowners had failed at arbitration to request production of records or to argue
that community owner was required to produce them); Sandhill Acres, 210 A.3d at 729, 732
(explaining that community owner must respond to reasonable requests for financial information,
but affirming arbitrator’s approval of rent increase because homeowners’ association had failed
either to present evidence to rebut community owner’s assertion that its costs had increased or to
request such information in discovery).
4 Eg, Cates v. Cates, 619 N.E.2d 715, 717 (Ill. 1993).
°° Id.; see also Humm y. Aetna Cas. and Sur. Co., 656 A.2d 712, 716 (Del. 1995) (because language
from prior Supreme Court decision was obiter dicta, it was not binding legal precedent).
*® Cates, 619 N.E.2d at 717.
7 Id.
°8 Sandhill Acres, 210 A.3d at 731.
°? Donovan Smith, 2018 WL 3360585, at *3 (community owner may not “argue that it is entitled
to an above-inflation rent increase [i.e., that the proposed rent increase is “directly related” to the
operation, maintenance, or improvement of the community]| without also being willing to produce
documents to contesting homeowners that allow them to fairly test that assertion”).
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the Superior Court’s holding that the community owner had no obligation to produce
its financial records in order to justify its “directly-related” claim. As the Supreme
Court observed, that holding was not only erroneous, but also “inconsistent with the
principles underlying all litigation in our courts,” as a community owner must be
required, in response to a proper request, to produce documents allowing
homeowners to “fairly test” the community owner’s asserted entitlement to the rent
increase. Ultimately, however, the issue was not dispositive in that case because, as
noted supra, the homeowners had failed to request the financial documentation at
arbitration.
Thus, the Supreme Court’s statements in Donovan Smith and Sandhill Acres
declaring that arbitrator-supervised discovery is appropriate under the Act, although
technically dicta, are not simply persuasive, they are judicial dicta that must be
followed unless erroneous — and Wild Meadows has failed to establish that they are
erroneous, as explained more fully infra. Given these statements, it is clear that
because a community owner may not raise lot rent above the CPI-U without
disclosing financial documentation verifying the “directly-related” assertion upon
request by the homeowners, the arbitrator may order production of this information
in the course of the arbitration proceedings. Therefore, Weidman did not exceed his
authority under the Act when he ordered discovery after the HOA requested
production of the relevant books and records that provided support for the proposed
rent increase. Moreover, even assuming arguendo that the statements in Donovan
Smith and Sandhill Acres regarding production of financial records are not judicial
dicta and therefore need not be followed, they may nonetheless be accepted as
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° and thus Weidman did not abuse or exceed his jurisdiction in relying
persuasive,°
upon them.
Wild Meadows’s position regarding the alleged dicta in Donovan Smith and
Sandhill Acres is ironic, given that one of Wild Meadows’s principal arguments in
attacking Weidman’s discovery orders is that the Delaware Supreme Court, in Bon
Ayre Land, LLC v. Bon Ayre Community Association (hereinafter “Bon Ayre IT’),°'
allegedly held that arbitrators in rent justification proceedings do not have the power
to compel the production of information in the course of arbitration proceedings.
Putting aside the question of Wild Meadows’s characterization of that holding
(which characterization, as explained infra, is erroneous), the holding itself, like
those in Donovan Smith and Sandhill Acres that Wild Meadows seeks to dismiss, is
technically dicta. In Bon Ayre IT, the Supreme Court recognized that the issue of
whether the arbitrator must require the community owner to prove market rent by
submitting evidence of actual rents charged in comparable communities™ was not
dispositive, but the Supreme Court nonetheless felt “obliged” to address it because
such a requirement “would materially restrict arbitrators under the [Act] in the
evidence they could hear ... in a manner that has the potential to raise material
doubts about the constitutionality” of the Act.® In Bon Ayre II, as in Donovan Smith
and Sandhill Acres, the Supreme Court was issuing judicial dicta meant to guide
future courts and arbitrators in the interpretation and application of the Act, an
exercise that is helpful, not harmful, to the administration of justice.
6° See Wright v. American Home Products Corp., 768 A.2d 518, 526 (Del. Super. 2000) (adopting
dicta from previous holding of this Court, finding it persuasive over contrary non-dicta holding of
this Court).
6! 149 A.3d 227 (Del. 2016).
62 The Court held that the arbitrator could not impose this requirement, in part because the Act
does not give the arbitrator the power to compel production of information by non-parties to the
proceeding. /d. at 237.
63 Id. at 236.
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Finally, in considering the issue of dicta raised by Wild Meadows, this Court
must be mindful of the standard for a writ of prohibition. As noted supra, a writ of
prohibition is an extraordinary remedy that may be issued only if Wild Meadows
proves by clear and convincing evidence that Weidman has exceeded his
4 Whether the Supreme Court’s guidance in Donovan Smith and
jurisdiction.®
Sandhill Acres was binding upon Weidman or not, Weidman certainly did not
exceed his jurisdiction by compelling production of financial documents that the
Supreme Court, in those two decisions, had concluded that homeowners have the
right to review — and that arbitrators have the right to compel.
b. Weidman had the authority to compel discovery even
though such powers are not explicitly addressed in the Act.
Wild Meadows also argues that because the Act does not contain the word
“discovery,” let alone explicitly provide an arbitrator with power to compel
production of documents, Weidman acted outside the scope of his authority when
he compelled the production of its financial records.
However, the Act’s failure to state explicitly that an arbitrator has the power
to compel discovery does not render an arbitrator incapable of doing so. While the
Act does not explicitly authorize the arbitrator to compel the production of relevant
information, neither does it prohibit such conduct. Indeed, as noted supra, in
Donovan Smith and Sandhill Acres the Supreme Court assumed that under the Act,
if a community owner raises lot rent above the CPI-U and the contesting
homeowners request fundamental books and records covering the reasoning behind
the proposed rent increase, there will be arbitrator-facilitated discovery.”
Moreover, the Court finds unpersuasive Wild Meadows’s argument that discovery
64 In re Webb, 2013 WL 1871699, at *1; In re Dennison, 2006 WL 197164, at *1; Whiteley, 401
A.2d at 953; In re Mahan, 2012 WL 5417075, at *1.
65 Donovan Smith, 2018 WL 3360585, at *3; Sandhill Acres, 210 A.2d at 731.
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would extend arbitration proceedings that are intended under the Act to be
expedited, given the fact that the arbitration proceedings involving the parties
before the Court have been extended by more than a year due to Wild Meadows’s
refusal to produce the requested information.®’
Furthermore, while the Act does not explicitly provide for arbitrator-
supervised discovery, the Delaware Administrative Code does so. The State created
the Authority to oversee manufactured home communities, and gave it the power
under the Act to “[a]dopt a plan of operation and articles, bylaws, and operating
68 Pursuant to this power, the Authority has issued several regulations
rules.
providing an arbitrator with procedural standards to follow, including Regulation
202-7.10, which provides, in pertinent part, as follows:
[t]he arbitrator is authorized to require the parties to
exchange or provide to the other parties documents
relevant to the rent increase at issue, including documents
related to the standards set forth in 25 Del. C. § 7042.
Wild Meadows argues that Regulation 202-7.10 is not applicable in the
present case, and proposes that the Regulation itself is void because it is inconsistent
with the Act. Regulation 202-7.10, however, is clearly applicable to, and consistent
with, the law pertaining to the issue before the Court. Indeed, the Act gives the
arbitrator general authority over the arbitration;’° Donovan Smith and Sandhill Acres
66 Wild Meadows Jan. 10, 2020, Br. at 22.
67 Indeed, it is the members of the HOA, not Wild Meadows, who are adversely impacted by any
delay in the proceedings, since under the provisions of the Act, the homeowners must pay the
proposed rent increase pending a final decision by the arbitrator. Former 25 Del. C. § 7043(i).
68 Former 25 Del. C. § 7011(c)(1).
® 1 Del. Admin. C. § 202-7.10. Wild Meadows’s argument that this regulation mandates exchange
only of documents that the parties intend to rely upon at the arbitration hearing is without merit,
given that the unambiguous language of the provision requires exchange of documents “relevant
to the rent increase at issue,” whether intended to be utilized at the hearing or not.
7 Former 25 Del. C. § 7043.
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recognize that the arbitrator has authority under the Act to compel discovery of
relevant documents; and Regulation 202-7.10 confirms this authority by explicitly
stating that it exists. In addition, the Supreme Court implicitly acknowledged the
validity of the Authority-enacted regulations addressing arbitrator direction of
discovery by citing with approval a companion regulation, Regulation 202-7.17,
which authorizes the arbitrator to impose appropriate confidentiality restrictions for
documents at issue in the arbitration.”|
Finally, in resolving a question of statutory interpretation, this Court should
give force to the General Assembly’s purpose behind the statute at issue.’ In
summary, the purpose of the Act is to protect manufactured homeowners from
unreasonable rent increases, while simultaneously ensuring that community owners
3 The Supreme Court effectuated those
receive a fair return on their properties.’
purposes by rendering decisions in Donovan Smith and Sandhill Acres that
acknowledge an arbitrator’s authority both to compel discovery of documents
relevant to the required justification for a rent increase and, at the same time, to
provide that the confidentiality of the information therein is protected.
c. The Supreme Court has not previously held that an
arbitrator under the Act does not have the authority to
compel the production of documents by a party to the
proceedings.
Wild Meadows argues that the Supreme Court has already considered, and
rejected, the principle that an arbitrator has power under the Act to compel
discovery.” In support of this contention, Wild Meadows cites Bon Ayre II, wherein
7! Donovan Smith, 2018 WL 3360585, at *3 n. 18.
” See State v. Cephas, 637 A.2d 20, 25 (Del. 1994) (interpreting Worker’s Compensation Act in
order to “effectuate its purpose”).
® Former 25 Del. C. § 7040.
74 Wild Meadows Apr. 14, 2020, Br. at 24-25.
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the Supreme Court declared that “the Act does not provide the arbitrator or parties
to the arbitration with the power to use compulsory process to obtain evidence from
third parties.”’>
In Bon Ayre I, in the context of a rent justification proceeding, the Supreme
Court explicitly referred to an arbitrator’s lack of power to use compulsory process
to obtain evidence from third parties. At issue in this case, by contrast, is whether
an arbitrator possesses the power to compel the production of documents by parties
to the arbitration, which was addressed in the affirmative by the Supreme Court in
Donovan Smith and Sandhill Acres, as explained supra. Therefore, Wild Meadows’s
argument on this point is incorrect because it misapplies a holding that has no
bearing on this case.
d. Weidman is not bound by the terms of a contractual
arbitration agreement.
Wild Meadows argues in its January 10, 2020, Brief that as with a contractual
arbitration, where the language of the contract dictates the arbitrator’s authority to
compel discovery, the language of the Act is the sole source of any such authority
for Weidman.’® In its April 14, 2020, Brief Wild Meadows goes one step further
and argues that the Act itself is a contractual agreement between the parties, and thus
Weidman is bound to its terms alone.” Therefore, according to Wild Meadows,
Weidman could rely only upon the explicit terms of the Act, not relevant regulations
or Supreme Court jurisprudence, in ascertaining his authority.
149 A.3d at 237.
76 Wild Meadows Jan. 10, 2020, Br. at 18 n. 3 (citing LG Elecs., 114 A.3d at 1256 n. 47).
™ Wild Meadows Apr. 14, 2020, Br. at 14-15 (citing Fagnani v. Integrity Fin. Corp., 167 A.2d 67,
73-74 (Del. Super. 1960) (“[T]he authority of the arbitrators is derived from the mutual assent of
the parties to the terms of the submission. The parties are bound only to the extent, and in the
manner, and under the circumstances pointed out in their agreement, and they have a right to stand
upon the precise terms of their contract.”)).
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To the contrary, the Act is not a contractual arbitration agreement limiting
Weidman’s authority solely to its terms, but a law enacted by the General Assembly.
It is true that Weidman’s authority comes from the Act; however, the provisions of
the Administrative Code and Delaware Supreme Court jurisprudence flesh out how
Weidman is to carry out his duties under the Act. In other words, Weidman is bound
by the language of the Act and the regulations enacted pursuant to it, as explained
by the Supreme Court. Therefore, Weidman appropriately utilized the applicable
regulations and Supreme Court jurisprudence to determine the scope of his arbitral
authority.
2. Weidman did not exceed his jurisdiction by imposing the
Confidentiality Agreement governing production of the
requested documents.
Wild Meadows argues that Weidman did not have the authority to impose the
Confidentiality Agreement governing the production of the documents requested by
the HOA prior to arbitration. Not only did Weidman possess such authority,
however, but he properly wielded it to balance the HOA’s right to access to the
information with Wild Meadows’s confidentiality and proprietary concerns.
As noted supra, the Delaware Supreme Court has acknowledged the
arbitrator’s authority to address confidentiality concerns with appropriate
restrictions. In Donovan Smith, the Supreme Court stated that the arbitrator is to
“condition discovery and use” of relevant financial documents upon compliance
with “appropriate conditions.”’* In Sandhill Acres, the Supreme Court reiterated this
authority.”? Moreover, Regulation 202-7.17 provides as follows:
Any party may request that the arbitrator accord
confidential treatment to some or all of the information
contained in a document. If the claim of confidentiality is
78 Donovan Smith, 2018 WL 3360585, at *3.
7 Sandhill Acres, 210 A.3d at 731.
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challenged by any party, then the party claiming
confidential treatment must demonstrate to the arbitrator
that the designated information is confidential as
recognized by state law. Notwithstanding any claim of
confidentiality, any party to the proceeding shall be
allowed to inspect a copy of the confidential document
upon the signing of a confidentiality agreement in a form
approved by the arbitrator.*°
This provision demonstrates that an arbitrator is given authority not only over which
documents are produced in discovery but also over how those documents are
protected.
Weidman, moreover, appropriately exercised this authority. He limited
disclosure of the documents at issue to the parties’ counsel and their respective staffs;
to the parties themselves, including the HOA’s directors, officers, and Board
members who would be attending the arbitration proceedings; to the parties’ experts
and consultants and their respective staffs; and to the arbitrator and the appellate
courts (i.e., the Superior Court and the Supreme Court) and their respective staffs.*!
He also required HOA representatives as well as experts and consultants to sign a
separate agreement agreeing not to disclose confidential information, and provided
that any confidential information submitted in the litigation would be filed under
seal.®?
Wild Meadows claims that if forced to disclose its financial information, even
with the Confidentiality Agreement in place, it will suffer “irreparable harm,” but it
offers no justification for this assertion other than the vague contention that Wild
Meadows “is a privately-held business” engaging in ‘“‘a highly competitive market .
8° 1 Del. Admin. C. § 202-7.17.
81 Draft Stipulation and Proposed Order for the Production and Exchange of Confidential
Information at § 5 (included in Exhibit C to Wild Meadows’s Motion for Judgment on the
Pleadings).
82 Td at 995, 7, 10.
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. . dominated by large competitors,” and that disclosure of the information would
9983 In
provide those competitors “an enormous tactical and strategic advantage.
Donovan Smith, the Supreme Court observed that any claim of confidentiality in a
business record must be proven,* but despite Wild Meadows’s failure to do so with
any specificity, Weidman did take reasonable steps to preserve the confidentiality of
Wild Meadows’s documents. Moreover, it is worth noting that the community
owner in Donovan Smith, like Wild Meadows, was a private entity,®> but this did not
prevent the Supreme Court from concluding that that owner could not pursue an
above-inflation rent increase without being willing to subject its financial records to
reasonably protected disclosure.*°
3. With regard to Weidman’s exercise of power to compel
discovery and impose the Confidentiality Agreement, this
Court must exercise deference to these decisions.
An additional consideration lends support to this Court’s conclusion that
Weidman did not exceed his jurisdiction, i.e., the deference that this Court must
afford Weidman as the arbitrator in this case.®’ In short, this Court will defer to
Weidman’s conclusion that he had the authority to compel discovery and control its
scope via the Confidentiality Agreement because both of these decisions, being
procedural in nature, were within the bounds of his authority as the arbitrator in the
rent justification proceeding.
8° Wild Meadows Jan. 10, 2020, Br. at 12-13.
82018 WL 3360585, at *3.
85 Td. at *2.
86 Td. at *3.
87 See id. (upon review of arbitrator’s decision regarding justification of proposed rent increase,
Supreme Court was “hesitant to second-guess the initial fact finder” and determined to “accord
deference to the arbitrator”); December Corp. v. Wild Meadows Home Owners Ass’n, 2017 WL
923459, at *2 (Del. Super. Mar. 7, 2017) (court applied substantial evidence review to arbitrator’s
final decision regarding proposed rent increase under the Act because “considerable deference [is]
given [to] an arbitrator”).
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Arbitral authority “includes the power to resolve procedural issues relevant to
[the] dispute.”®* Because an arbitrator’s authority over discovery, including the
arbitrator’s authority to compel discovery, is a procedural matter to be addressed by
the arbitrator,®° the issue of whether Weidman has the authority to compel discovery
and to limit its scope is a procedural question for Weidman to decide.
Here, Weidman did not exceed his jurisdiction when he decided the
procedural issues at bar. Indeed, his conclusions in the First and Second Decisions
are entirely within his authority as the arbitrator. The Confidentiality Agreement
directed and controlled the scope of the discovery and took the concerns of the
parties into account. Weidman denied the HOA’s requests to conduct depositions
and seek discovery from third parties, and declared that he would permit only the
° Additionally, as discussed supra,
exchange of documents and information.’
Weidman limited the number of individuals who could review the documents that
he had ordered to be produced, and he prohibited any individual who viewed the
documents from discussing, disclosing, or electronically copying the information
therein in a manner that would enable a prohibited third party from gaining access
to the information.”!
88 1G Elecs., 114 A.3d at 1257.
8° Mehiel., 2005 WL 1252348, at *6; see also Hunter vy. Bogia, 2015 WL 5050648, at *4 (Del.
Super. July 29, 2015) (stating discovery was “[o]ne of the most significant procedural
developments” in Delaware’s rules of civil procedure as adopted in 1948).
°° E-mail from Weidman to Olga Beskrone, Michael Morton, and Bob Valihura (June 26, 2019
15:59 EST) (included in Exhibit C to Wild Meadows’s Motion for Judgment on the Pleadings).
*! Draft Stipulation and Proposed Order for the Production and Exchange of Confidential
Information at { 5 (included in Exhibit C to Wild Meadows’s Motion for Judgment on the
Pleadings).
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C. Because Weidman did not abuse or exceed his jurisdiction, the Court
need not address the question of whether Wild Meadows has an
appropriate alternative remedy at law.
As noted supra, the standard for a writ of prohibition is two-pronged, and
examines whether the lower tribunal has exceeded its jurisdiction and whether the
petitioner has access to alternative remedies.”” Here, as explained supra, Weidman
did not exceed his jurisdiction as arbitrator when he ordered the disclosure of
discoverable information and imposed the Confidentiality Agreement. Therefore,
the Court need not reach the issue of whether Wild Meadows has an adequate
alternative remedy at law.
D. This case will not be transfered to the Court of Chancery.
Pursuant to 10 Del. C. § 1902, Wild Meadows has requested transfer to the
Court of Chancery should this Court find that it lacks jurisdiction over Weidman in
this proceeding.’ As explained supra, however, the Court has rejected Weidman’s
allegations that it lacks jurisdiction over him. To the contrary, the Court has
considered Wild Meadows’s request for a writ of prohibition and, upon review, has
found it without merit. Therefore, this case will not be transferred to the Court of
Chancery pursuant to 10 Del. C. § 1902.
In the Court’s view, moreover, further litigation of the issue in this
proceeding, i.e., the scope of Weidman’s arbitral authority over discovery, in the
Court of Chancery or any other trial court would be unproductive and would result
” Whiteley, 401 A.2d at 953; In re Dennison, 2006 WL 197164, at *1.
"3 10 Del. C. § 1902 states, in pertinent part, that “[n]Jo civil action, suit or other proceeding brought
in any court of this State shall be dismissed solely on the ground that such court is without
jurisdiction of the subject matter, either in the original proceeding or on appeal. Such proceeding
may be transferred to an appropriate court for hearing and determination... .”.
*4 Wild Meadows Apr. 14, 2020, Br. at 13-14.
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in additional inordinate delay in the resolution of the substantive issue in dispute
between the parties — whether the proposed rent increase is justified under the Act.”
IV. CONCLUSION
Given Delaware Supreme Court jurisprudence, the Act itself, and regulations
promulgated by the Authority, it is clear that Weidman did not exceed his
jurisdiction as the arbitrator in this case when he ordered Wild Meadows to produce
certain documents in discovery and imposed the Confidentiality Agreement.
Because Weidman did not exceed his jurisdiction, the Court declines to issue the
extraordinary remedy of a writ of prohibition to him.
WHEREFORE, the Motions to Dismiss of Weidman and the HOA are
GRANTED, and the Petition is DISMISSED. Wild Meadows’s Motion for
Judgment on the Pleadings is DENIED as moot.
IT IS SO ORDERED.
/s/ Noel Eason Primos
Judge
NEP/wjs
Via File & ServeXpress
oc: Prothonotary
Counsel of Record
file
°° Cf Quereguan vy. New Castle County, 2006 WL 2522214, at *7 (Del.Ch. Aug. 18, 2006) (in
denying transfer of third-party complaint to Superior Court, Court of Chancery found that such
transfer “would result in multiple actions, require duplication of judicial effort and delay provision
of any relief that might be due the claimant”).
27