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Ensing v. Ensing

Court of Chancery of Delaware

March 6, 2017

SARA HILDEGARD ENSING, Plaintiff,
v.
HANS ENSING and OIGGOL HOLDING, LLC, Defendants, INTERNATIONAL WINE CAPITAL PARTNERS, LLC; LOGGIO FINANCE, LLC, Nominal Defendants.

          Date Submitted: January 30, 2017

          David J. Teklits, Esquire and D. McKinley Measley, Esquire of Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware, and Michael H. Johnson, Esquire and William G. Somerville, Esquire of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. of Birmingham, Alabama, Attorneys for Plaintiffs.

          Daniel K. Astin, Esquire, John D. McLaughlin, Jr., Esquire, and Joseph J. McMahon, Jr, Esquire of Ciardi & Astin, Wilmington, Delaware, Attorneys for Defendants.

          MEMORANDUM OPINION

          SLIGHTS, Vice Chancellor

         A husband and wife, Dr. Hans Ensing ("Hans") and Sara Ensing ("Sara"), [1]made the dream of many a reality: they acquired a picturesque vineyard in Italy and moved there with their two children to operate a winery and boutique hotel on the property. The businesses operate indirectly through two Delaware limited liability companies. Prior to the events that precipitated this litigation, Sara was a manager and member of one of the entities and, through that entity, was manager of the other. Hans was neither a member nor manager of either entity.

         Sadly, the marriage has ended bitterly. When Hans purported to remove Sara and appoint himself as manager of one of the entities, and then engage in a series of transactions intended to divest Sara of her interests in the winery and hotel, Sara initiated this action pursuant to 6 Del. C. §§ 18-110 and 18-111 to obtain declarations regarding the rightful owners and managers of the entities.

         The matter was litigated as a summary proceeding and tried over two days. During the litigation, Hans ignored his discovery obligations, violated court orders, submitted evidence of suspect (at best) authenticity and generally engaged in bad faith litigation conduct. In contrast, Sara presented a straightforward case. According to Sara, the controlling operating agreements of the entities in question afford no rights to Hans, either as member, manager or otherwise. Thus, he had no authority to engage in any conduct with respect to the entities without her consent. And because she did not give consent for Hans to seize control of either entity, or to effect any changes at the winery or the hotel, Sara maintains that she is entitled to declaratory judgments that Hans' actions are null and void as a matter of law.

         After carefully reviewing the evidence, I conclude that Sara has carried her burden of proving that Hans had no authority to remove her as manager of the entities, to appoint himself as manager of the entities or to transfer membership units of one of the entities to an entity under his control. Accordingly, I will enter each of the declaratory judgments Sara has requested in her Verified Complaint. I also conclude that Hans has engaged in blatant violations of court orders and bad faith litigation conduct that justify serious sanctions. My reasons follow.

         I. BACKGROUND

         I have drawn the facts from the testimony and exhibits presented during trial and from reasonable inferences that flow from that evidence. I have also relied upon the stipulations of fact the parties entered in advance of the trial.

         A. The Parties and Related Entities

         Sara and Hans married in Amsterdam in 2002. They are now legally separated and engaged in bitter divorce proceedings in Italy. Two sons were born of the marriage, ages nine and thirteen years old (together, the "Minor Children").[2]

         During happier times, in 2012, Hans and Sara moved to Italy to operate a vineyard and winery named Villa Loggio.[3] The winery sells wine throughout

         Europe.[4] They opened a boutique hotel co-located with the winery in 2014. By all accounts, the hotel is quite successful, attracting guests from approximately 50 different nationalities.[5]

         International Wine Capital Partners, LLC ("IWCP") was formed in April 2012.[6] It is a manager-managed Delaware limited liability company with three members-Sara and the two Minor Children (collectively, the "Members").[7] Each member holds 50 units of IWCP.[8] At the time of its formation, Sara's brother, Fidelis Rainer Süttman, was designated as manager of IWCP.[9]

         IWCP's stated purpose was to serve "as an investment holding company."[10]When it was formed, it owned 100% of the shares of Società Agricola Villa Loggio srl ("S.A. Villa Loggio"), an Italian entity which owns the winery, vineyard and other related assets.[11] As of the spring of 2016, S.A. Villa Loggio had three board members: Hans, as managing director, his father, Geert Ensing, as president, and Sara as consigliere.[12]

         Loggio Finance LLC ("Loggio") was formed in May 2012 with IWCP as its sole member.[13] In July 2012, IWCP pledged 70% of its interest in S.A. Villa Loggio to Loggio, leaving IWCP with a 30% interest in S.A. Villa Loggio.[14]

         In December 2013, the members of IWCP appointed Sara as Manager of IWCP.[15] In accordance with Loggio's Operating Agreement, on December 9, 2013, IWCP appointed Sara as manager of Loggio.[16] Thus, as of the end of 2013, Sara served as manager of both IWCP and Loggio. Hans was neither manager nor member of either entity.

         The opening recital of the IWCP Operating Agreement designates Sara as guardian of the Minor Children for purposes of representing their interests in IWCP.[17] In this capacity, Sara executed the IWCP Operating Agreement on behalf of the Minor Children and thereafter executed every other entity-related instrument on their behalf as well, including the First Amendment to the Operating Agreement and a December 2013 unanimous consent document.[18] Hans expressly consented to Sara's actions as guardian for the Minor Children in February 2014, as reflected in a written consent executed before a Notary in Germany.[19]

         B. Sara and Hans Separate and Hans Attempts to Seize Control of the Winery and Hotel

         Sara and Hans separated in April 2015 and Hans soon after moved out of the family residence at Villa Loggio.[20] The split of the marriage marked the end of Sara and Hans' collaboration with respect to the operations of Villa Loggio.[21] Sara was in residence and was handling the day-to-day operations of the winery and hotel.[22]From her perspective, Hans had begun to undermine her efforts by refusing to oversee operations in the vineyards and by interfering with the hotel's on-line booking platforms.[23] This often left the hotel staff guessing about when guests would arrive, how long they would stay and the rate they had committed to pay on the booking platform they utilized to book their stay.[24]

         Believing she was acting "for the well being of [S.A. Villa Loggio]" as consigliere, Sara asked Geert Ensing to convene a special board meeting of S.A. Villa Loggio on May 6, 2016, where she would propose changes to the composition of its board of directors.[25] Geert took no action.[26] Fearing that her inaction would be deemed acquiescence, on the advice of counsel, Sara advised Geert by formal notices that, as manager of both entities, she would convene a special meeting S.A. Villa Loggio's shareholders (IWCP and Loggio) on June 9, 2016, for the purpose of changing the composition of S.A. Villa Loggio's board of directors.[27]

         These notices sparked a flurry of activity by Hans.[28] First, on May 30, 2016, Hans emailed Sara to advise her that he was activating a "Pledge of Shares and Voting Agreement" (the "Pledge Agreement") between an entity called Villa Loggio Finance BV and Loggio which purported to allow Villa Loggio Finance BV to appoint Loggio's management.[29] The Pledge Agreement purports to be executed by Hans on behalf of Loggio Finance BV and Sara on behalf of Loggio.[30] Second, also on May 30, Hans executed a document entitled "INTERNATIONAL WINE CAPITAL PARTNERS (IWCP) LLC: Action by Consent in Writing of the Members, " pursuant to which he was elected as manager of IWCP.[31] He signed the document as Manager and as guardian of the Minor Children.[32]

         Sara convened the special shareholders meeting of S.A. Villa Loggio on June 9, 2016 as noticed.[33] Neither Hans nor Geert attended.[34] Acting on behalf of IWCP and Loggio, Sara removed Hans and Geert as directors and elected herself as managing director.[35]

         On June 15, 2016, Sara received an email from a Thomas Hunt who purported to be an accountant acting on behalf of Hans.[36] Mr. Hunt's email attached a "Trust Agreement" and a "Share Purchase Agreement" that he claimed to have received from Hans' lawyer in 2012.[37] The Trust Agreement, purportedly executed by Hans and Sara, allows Hans to appoint the management of IWCP.[38]

         Seven days later, Hans, ostensibly acting as manager of IWCP and Loggio, executed a Board Resolution for Loggio in which Loggio agreed to "sell all or substantially all" of its 70% interest in S.A. Villa Loggio to a Delaware limited liability company, Oiggol Holdings, LLC ("Oiggol"), of which he is the manager and his girlfriend, Jelena Reinhardt, is the sole member.[39] Two days later, Loggio and Oiggol entered into an Agreement of Sale pursuant to which Loggio sold its 70% interest in S.A. Villa Loggio to Oiggol for 420, 000.[40] In order to complete the transaction and file papers reflecting the transfer of interest, Hans was required to submit proof of payment to an Italian notary. He did so by supplying a receipt from Commerzbank which purported to evidence a transfer of the 420, 000 to a joint account in his and Sara's name.[41] At trial, Hans acknowledged that the transfer never actually happened.[42]

         Hans then turned his focus back to IWCP. On June 25, 2016, purportedly acting as guardian of the Minor Children, Hans sent a notice to IWCP of a "special meeting of the members of [IWCP]" to be convened on July 8, 2016.[43] He sent the notice of the meeting to IWCP's registered agent in Delaware; he did not send notice to Sara.[44] Having not received notice of the July 8 meeting, Sara did not attend.[45]The minutes of the meeting, which Hans sent to Sara on July 14, reveal that Hans, acting as guardian of the Minor Children, removed Sara as manager of IWCP and Loggio and appointed himself as manager of both entities.[46] He then directed that 350 newly-issued IWCP units be "granted" to Oiggol and that Loggio be "disinvest[ed]" to Oiggol, thereby making Oiggol the majority member of IWCP.[47]Hans was not finished. On July 19, 2016, he emailed the members of the board of directors of S.A. Villa Loggio and advised them that Oiggol now owned 70% of S.A. Villa Loggio and would exercise its "voting rights" to undo whatever Sara had purported to do during the June 9 meeting of the S.A. Villa Loggio shareholders, including the removal and replacement of its board of directors.[48]

         C. Sara Initiates This Litigation

         Sara filed her Verified Complaint in this Court on July 22, 2016, along with a motion to expedite and a motion for a status quo order. The Court granted both motions and the parties began expedited discovery.

         1. Hans Stakes His Litigation Position

         In her written discovery responses, and at her deposition, Sara denied ever having seen or signed either the Pledge Agreement or the Trust Agreement and thereby placed the authenticity of both documents squarely at issue. In his opposition to Sara's motion for a status quo order, Hans maintained that he was authorized to remove Sara as manager of IWCP and Loggio, and to transfer ownership interests to Oiggol, in part based on the Trust Agreement and the Pledge Agreement.[49] At a hearing on August 1, 2016, counsel for Hans alleged that, based on the disputed documents, Sara "actually stands in a fiduciary role to Hans, " that she was "the nominee of Hans, " and that "the bottom line is [Sara is] acting as his fiduciary, as his trustee, his nominee, and quite frankly, needs to do what he tells her to, and if she doesn't, he's within his rights to remove her."[50] In response to Sara's claims that the documents were "forgeries, " Hans wrote to the Court on August 2, 2016, to advise that he intended to have "certified copies" of the documents "prepared at the U.S. Embassy in Rome[.]"[51] That never happened.

         During his deposition on October 6, 2016, Hans doubled-down. He explained that a lawyer and an accountant, Remco Vermeer and Thomas Hunt, respectively, had been instrumental in forming and structuring IWCP and Loggio. He confirmed that Thomas Hunt had sent the email to Sara four months prior, on June 15, 2016, along with the Trust Agreement. He also confirmed that the Trust Agreement was a principal basis upon which he had removed Sara as manager of IWCP.[52] Yet he could not produce the originals of either of the disputed documents. When pressed to provide more information about Mr. Hunt, Hans shut down. He was unable to provide any contact information or even to provide Mr. Hunt's nationality.[53] Hans followed up after his deposition with a street address for Mr. Hunt and Mr. Vermeer but an investigation of the address revealed that neither of them maintained offices in the building that was located there.[54]

         Hans refused to provide any further contact information for Hunt or Vermeer in response to supplemental discovery requests from Sara and also refused to turn over the devices on which he testified that he had created and stored the Pledge and Trust Agreements. Sara moved to compel. The Court granted the motion on November 29, 2016, and directed Hans to deliver certain computers, drives and other electronic storage devices to a third-party vendor by December 6, 2016, so that a search for information relating to Hunt and Vermeer, and the Trust Agreement and Pledge Agreement, could be performed.[55] Hans ignored the Court's order. Accordingly, Sara filed a motion asking the Court to draw an adverse inference against Hans with respect to the Trust Agreement and the Pledge Agreement. The Court granted that motion as well and entered the following order:

At the trial of this matter, the Court will operate under the inference that the subject trust agreement and the pledge agreement (the "Agreements") are not authentic. At trial, the burden will be on Dr. Ensing to prove that the Agreements are authentic.[56]

         With only two weeks left before trial, there appeared to be little time left for Hans to further attempt to undermine the litigation process. Unfortunately, two weeks provided ample time for more misbehavior.

         2. Hans Continues to Press the Trust and Pledge Agreements, Violates the Status Quo Order and Files a Misleading Motion to Continue the Trial

         The two weeks leading up to the trial, as would be expected, were quite busy for the parties and the Court. The parties submitted pretrial briefs and a pretrial stipulation as anticipated in the trial scheduling order. Unfortunately, Hans generated additional litigation by violating the status quo order and then seeking an eleventh-hour continuance of the trial under false pretenses. Sara, of course, was forced to respond.

         a. Hans Relies Upon the Trust and Pledge Agreements in His Pretrial Brief

         The parties filed simultaneous pretrial briefs on December 9, 2016. For his part, Hans continued to maintain that Sara's interest in Villa Loggio was subject to a suite of agreements between the parties that included the Operating Agreement, Trust Agreement and Pledge Agreement. He argued that "Sara's one-third interest [in IWCP] was a naked legal interest and was held by her as a trustee for Hans pursuant to the Trust Agreement."[57] He later argued that he maintained the right to "direct [Sara's] actions" in IWCP pursuant to the Trust Agreement and that the Pledge Agreement allowed him (indirectly through Loggio Finance BV) "to select the management" of Loggio.[58] He "vehemently denie[d]" that the documents were not what they "purport[ed] to be on [their] face."[59] This, in part, prompted Sara to include in the pretrial stipulation a prayer for attorney's fees, costs and expenses for bad faith litigation conduct.[60]

         b. Hans Violates the Status Quo Order

         As is typical in control contests, the Court entered a status quo order at the outset of the litigation that prohibited both parties from taking extraordinary steps that would fundamentally change or disrupt the business of Villa Loggio. In the days leading up to trial, Sara discovered that Hans had been taking actions that threatened to interfere with her operation of the hotel.[61] Specifically, Hans made unauthorized contact with several booking platforms that the hotel relied upon to book guests and informed them that an entity controlled by him and his father (Scorpius) would be in control of Villa Loggio on January 1, 2017. He advised these booking platforms that they should no longer deal with Sara.[62] As proof of his alleged control of Villa Loggio, Hans forwarded copies of a power of attorney from Scorpius granting him authority to act on its behalf, a copy of the filed shareholder composition of S.A. Villa Loggio showing Oiggol's majority shareholder status and a copy of the purported share transfer agreement between Loggio and Oiggol.[63]Hans persisted in his interference until Sara moved to compel him to comply with the Status Quo Order, which the Court ultimately granted.[64]

         c. Hans Seeks to Continue the Trial Under False Pretenses

         One week before trial, on December 12, 2016, Hans moved to continue the trial and to postpone his second court-ordered deposition on the ground that he could not travel to the United States because he did not have a valid passport.[65] According to Hans, he had applied to renew his Dutch passport but the passport had not yet arrived as of the date of his motion (or it had been sent to a wrong address). In response to the motion, Sara's counsel contacted the Dutch Consulate to determine the status of Hans' passport application and learned that the passport was available to be picked up by Hans as early as December 2 and had, in fact, been delivered to an address in Cortona, Italy (where Hans resides) on December 12. It was signed for by a "H. Ensing."[66] Of course, Hans did not provide this update to the Court after filing his motion; the Court learned that he had actually received his passport when the motion for a continuance was presented to the Court on December 14.[67]Remarkably, Hans still pressed for a trial continuance.[68] The motion was denied.[69]Hans was ordered to appear for trial and to sit for his second deposition on the eve of trial.[70]

         3. Hans Seeks to Distance Himself From the Trust and Pledge Agreements on the Eve of Trial

         The first hint that Hans would abandon his reliance upon the Trust and Pledge Agreements came in the Pretrial Order where Hans listed as the only issue to be litigated at trial "[w]hether Dr. Hans Ensing as parent and natural guardian of [the Minor Children] may vote his childrens' membership interests in IWCP to remove and replace the sole manager?"[71] At the outset of the trial, counsel for Hans advised the Court for the first time that Hans no longer would be relying upon the Trust Agreement.[72] Sara responded by arguing that the Court should receive evidence regarding the Trust Agreement's authenticity, nevertheless, in support of her claim for attorney's fees. The Court agreed.[73]

         For reasons that remain unclear, Hans did not profess to abandon his reliance upon the Pledge Agreement at any time during the trial. Instead, Hans waited until he filed his opening post-trial brief to advise the Court and Sara that he would no longer rely upon the Pledge Agreement and instead would rest his defense of Sara's claims solely upon his right as guardian of the Minor Children to vote their interests in IWCP.[74]

         4. Sara Presents Evidence Regarding the Unreliability of the Trust and Pledge Agreements

         Sara testified unequivocally at trial that she had never seen or signed the Pledge Agreement or the Trust Agreement.[75] And even though Hans had begun to distance himself from these documents by the time of trial, they were relevant to Sara's allegations that Hans' testimony was not credible and to her claim for sanctions. Sara presented compelling evidence that the documents were not what Hans represented them to be.

          a. The Pledge Agreement

         Sara began her attack on the authenticity of the Pledge Agreement by explaining that a company stamp that appeared over her purported signature on the document was actually created in 2015, long after the 2012 date on which the document was purportedly executed.[76] Moreover, she explained that she was not appointed manager of Loggio until December 2013 so she had no authority to execute the Pledge Agreement on its behalf in 2012.[77]

         Sara then presented the testimony of a computer forensics expert, James Broidy, who testified that metadata on the PDF version of the Pledge Agreement that Hans had emailed to Sara showed that Hans had created it on May 27, 2016, using a Mac operating system that was released by Apple in January 2015.[78]According to Mr. Broidy, the metadata revealed that three versions of the document should exist: the original from which the PDF was created, the digital copy of the scanned original and a version that was saved in "Preview mode."[79] Of course, Hans produced none of these versions despite being ordered to do so. And because Hans refused to produce the devices on which the document was created and stored, no further forensic examination could be performed to pin down precisely when the original document was created.[80]

         For his part, Hans was not able meaningfully to rebut Sara's evidence regarding the 2015 stamp that mysteriously appeared on a document she allegedly signed in 2012.[81] Nor was he able convincingly to account for the original, answer Sara's testimony that she never saw much less signed the document or respond to the expert's testimony regarding the timing of the creation of the PDF attached to the email he sent to Sara (while still maintaining that he cannot produce the original document). Even without the adverse inference, which was well-earned by Hans' blatant refusal to comply with a Court order, the evidence overwhelmingly points to the conclusion that Hans relied upon and introduced into this litigation a Pledge Agreement that was not authentic.

         b. The Trust Agreement

         The trial evidence revealed that on June 15, 2016, a person claiming to be Thomas Hunt, using the email address thomas.hunt@accountant.com, emailed Sara a copy of the Trust Agreement, which purports to give Hans the authority to appoint the manager of IWCP.[82] According to Hans, he and his lawyers drafted the Trust Agreement in April 2012 prior to IWCP's formation.[83] As noted, Mr. Hunt has not appeared as a witness in this litigation and, despite the fact that the man served as his trusted advisor, Hans has no way of contacting him either.[84] Sara, of course, testified that she had never met or heard of Thomas Hunt and had no idea who he was.[85]

         Mr. Broidy studied both the Hunt email and the Trust Agreement attached to it. As for the email, Mr. Broidy explained that the "accountant.com" email address utilized by Hunt was not nearly as impressive as it appeared. Such addresses are available to anyone who signs up with "mail.com"-there is no need to verify one's status as an accountant and the process of securing the address takes all of "a few minutes."[86] Utilizing forensic software that allows him to extract data from received emails, Mr. Broidy was able to discover that emails sent to Sara from Hans and Thomas Hunt came from the same IP address meaning that the emails were "either being sent from different accounts that are in the same physical location, like under one roof, or the same device."[87] This, in turn, caused Mr. Broidy to conclude either that Hans and Hunt were together at the time the June 15, 2016 email (with the Trust Agreement) was sent or that one user (presumably Hans) logged in and created an accountant.com email address on behalf of Thomas Hunt and then sent the emails to Sara.[88] Given that Hans testified he had not seen Hunt since 2012 or 2013, [89] it appears more likely that Hans fabricated Hunt's involvement as a ploy to convince Sara that she was outgunned and should capitulate to Hans' demand that she step away from IWCP, Loggio and Villa Loggio.

         The metadata from the Trust Agreement revealed that, like the Pledge Agreement, the Trust Agreement PDF was created on June 15, 2016, and then emailed to Sara thirty minutes later.[90] Mr. Broidy testified that it is most likely "that these PDFs [the Pledge Agreement and the Trust Agreement] were created using a single computer system, "[91] and that, like the Pledge Agreement, the Trust Agreement had been created using a Mac operating system that was released in 2015.[92] And the Trust Agreement, like the Pledge Agreement, was created in Preview (or Voorventoning, the Dutch word for Preview) which would require the user to scan in the original document, save a digital copy and then save a Preview version.[93] According to Mr. Broidy, "[i]t doesn't seem to make sense why someone would do that" unless "the original has metadata that you don't wish to pass on" or the metadata has been altered on the document.[94] Here again, if Hans had preserved the devices on which the Trust Agreement was created and stored, then Mr. Broidy would have been able to extract a "wealth more metadata about the original Word file that was created."[95]

         The Court need not employ an adverse inference to conclude that Sara demonstrated by overwhelming evidence that the Trust Agreement relied upon by Hans prior to and during most of this litigation was not authentic. The ramifications of this conclusion will be addressed below.

         II. ANALYSIS

         Pursuant to 6 Del. C. § 18-110 ("Section 18-110"), "[u]pon application of any member or manager, the Court of Chancery may hear and determine the validity of any . . . removal . . . of a manager of a limited liability company, and the right of any person to become or continue to be a manager of a limited liability company, and, in case the right to serve as a manager is claimed by more than 1 person, may determine the person or persons entitled to serve as managers; and to that end make such order or decree in any such case as may be just and proper." Sara seeks a declaration under Section 18-110 that the following actions taken by Hans were void as a matter of law: (A) his removal of Sara as manager of IWCP and his appointment of himself as manager of IWCP and Loggio by written consent; (B) his transfer of Loggio's 70% interest in Villa Loggio to Oiggol; and (C) his transfer of voting control of IWCP to Oiggol. I address each of Hans' contested actions seriatim and then address Sara's request for counsel fees.

         A. Hans' Attempt to Remove Sara as Manager of IWCP and Loggio Was Ineffective.

         On May 30, 2016, Hans purported to act by "unanimous" written consent on behalf of IWCP and Loggio to remove Sara as manager of both entities.[96] Although he initially advised Sara in May 2016, and maintained through most of this litigation, that his authority to remove Sara as manager flowed from the Trust Agreement and the Pledge Agreement, [97] by the post-trial argument, Hans had abandoned his reliance upon both documents. Instead, he now relies solely upon his right to vote the Minor Children's interests in IWCP as their legal guardian under Italian law. Even if he had that right, which I conclude he did not, his execution of that right was highly flawed and ineffective under Delaware law.

         1. Hans' Attempt to Undo the Operating Agreement Fails.

         Hans has urged the Court from the outset of this litigation to take notice of the fact that he was "the financial impetus behind the acquisition and operation of the vineyard" and that he has always acted as the "de facto manager" of IWCP.[98]According to Hans, the Court should interpret the Operating Agreement, and his actions with respect to IWCP and Loggio, with these background facts in mind. Hans ignores that the Operating Agreement is clear and unambiguous (he does not argue otherwise) and that it is a fully integrated document. There is nothing in that agreement that even remotely suggests that the parties intended that Hans' sponsorship of the entity should be accounted-for or that the Operating Agreement should be construed together with or modified by any other agreement. Hans has failed to offer any basis in law whereby the Court could afford him more rights in the management or operation of IWCP or Loggio than are provided in the unambiguous provisions of the Operating Agreement.[99]

         2. Hans' Untimely and Ineffective Attempt to Invoke Italian Law Fails.

         In the midst of trial, Hans filed a "Request for Judicial Notice of Foreign Law" (the "Notice") in which he invoked Rule 202(e) of the Delaware Rules of Evidence and requested that the Court take judicial notice of certain provisions of the "Italian Civil Code" and a ruling of the "Italian Supreme Court" relating to his rights as guardian of the Minor Children. This was his first notice to the Court and to Sara that he intended to rely upon these statements of Italian law to support his defense. Sara immediately objected on the ground that the notice was untimely and otherwise ineffective since Hans simply attached the code provisions and a copy of the Italian Supreme Court decision without any explanation of what they meant or how they might apply under the facts of this case.[100]

         Sara's objection was well founded. Springing his Rule 202(e) notice on Sara and the Court on the night before the second day of trial ensured that Sara would not have an opportunity to consult with an expert in Italian law prior to trial or to present counter-evidence regarding Italian law during trial. Rule 202(e) contemplates that notice of an intent to rely upon foreign law will be given in a party's "pleadings or other reasonable time."[101] Hans' delivery of his notice during trial strayed far from that mark. Moreover, Hans offered no context in which either the Court or Sara could interpret the Italian law or apply it to these facts.[102] The Court will not venture a guess at how, if at all, the Italian law Hans has belatedly proffered might (or might not) apply here.[103] Hans has improperly invoked Rule 202(e) and his Notice is stricken.[104]

         3. The Minor Children's Rights in IWCP Are Governed by ...


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