         IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

EAGLEVIEW TECHNOLOGIES,
INC., a Washington corporation,
                                                 No. 72644-7-1
                     Respondent
                                                 DIVISION ONE



YURI PIKOVER an individual; and 37
TECHNOLOGY VENTURES, LLC,                        UNPUBLISHED OPINION
A Delaware limited liability corporation,

                     Appellants                  FILED: December 21.2015

       Spearman, C.J. — This dispute is over the valuation of dissenter shares of stock

in EagleView Technologies, Inc. (EagleView). Appellants Yuri Pikover and 37

Technology Ventures, LLC (collectively, the Dissenters) were shareholders of

EagleView who dissented to the company's merger with Pictometry International

Corporation (Pictometry). The parties asked the trial court for a determination of the

shares' value under chapter 23B.13 RCW. After reviewing the evidence, the trial court

concluded that the fair value of the shares was represented by the valuation prepared

by EagleView's expert witness. The Dissenters appeal. We affirm the trial court.

                                            FACTS


       Respondent EagleView Technologies, Inc. (EagleView) was founded in 2007.

The company provides aerial roof measurement services that allow insurance

companies and contractors to estimate the costs of repair or replacement of rooftops.
No. 72644-7-1/2



EagleView's business grew rapidly-from revenues of $1.4 million in 2008 to $48.5

million in 2012.

         Pictometry was EagleView's predominant supplier of images from 2008 until the

two companies merged in 2013. Prior to the merger EagleView had a five-member

board of directors, including CEO Chris Barrow, Chris Pershing, and three outside

investors. Appellants Yuri Pikover and 37 Technology Ventures, LLC (37TV)

(collectively, the Dissenters) are former EagleView shareholders who dissented from

EagleView's January 7, 2103 merger with Pictometry. Pikover is the managing director

and sole member of 37TV and sat on EagleView's board of directors from 2008 until

2012.

         Pictometry provided the high quality orthogonal and oblique images that

EagleView needed to generate accurate roof measurements. In 2012, Pictometry had

the only access to airspace and high quality image library that could meet EagleView's

needs.

         In 2010, EagleView and Pictometry entered into a new contract that required

EagleView to pay higher royalties for the use of Pictometry's images. The contract

expired in 2015. In late 2010 or early 2011, Pictometry expressed interest in acquiring

EagleView. Later in 2011, Pictometry acquired one of EagleView's competitors,

GeoEstimator.

         In early 2012, EagleView was for sale. The company received a number of

offers, ranging as high as $350 million. On June 11, 2012, EagleView and Pictometry

executed a term sheet with the intention to merge the two companies. At that point,
No. 72644-7-1/3



EagleView was valued at $250 million. After the term sheet was executed, EagleView's

three independent directors, including Pikover, were removed by shareholder vote.

      During the merger talks, the relationship between EagleView and Pictometry

began to sour. At one point Pictometry threatened to terminate the contract with

EagleView and offer its own roof reports through GeoEstimator. Pictometry also had

concerns about whether EagleView had adhered to the terms of the contract. As a

result, Pictometry began to limit EagleView's access to its newer imagery and to design

a new product that would not be available to EagleView. Ifthe merger did not go

through, Pictometry intended to terminate its contract with EagleView. Some of

EagleView's customers had already started looking to Pictometry for roof reports.

EagleView looked for an alternate source for its images, but was unable to find a

provider that could match Pictometry's capabilities.

       EagleView and Pictometry eventually negotiated a stock-based, 50/50 merger of

equals and finally executed an agreement on December 18. 2012. The merger closed

on January 6, 2013.

       On January 30, 2013, the Dissenters notified EagleView that they were asserting

their dissenters' rights. EagleView sent response letters and checks reflecting the fair

value of the Dissenters' shares plus interest on March 1, 2013. Based on an estimated

value of $250 million, the Dissenters expected to receive $12 or more per share. They

received $2.75-$3.65 per share, with interest at a rate of 0.05 percent, reflecting a value

of approximately $67 million.

       Between June 2012 and January 2013, EagleView had additional difficulties that

affected its net value. Two of EagleView's patents were under reexamination and
No. 72644-7-1/4



therefore effectively unenforceable as a result of an infringement lawsuit. EagleView

was also involved in litigation with its software provider, Xactware, from which

EagleView derived about 30 percent of its revenue.

       In early 2012, EagleView had prepared a three year earnings forecast that

projected revenue for 2012, 2013, and 2014. EagleView fell short of its most

conservative estimate in 2012, however, only obtaining $48.5 million in revenue when it

had projected at least $60 million.

       EagleView determined that the fair value of its common stock in late 2012 was

$2.75 per share and $3.65 for its preferred stock. It arrived at this estimate after

considering a number of factors including the redemption rights of the common stock,

the current value of shares, the price paid for each share in its repurchase offer, strike

price for stock options, estimated fair value of a share, and the business considerations

of the board of directors.

       An estimate prepared by Alvarez & Marsal determined that the fair value of

EagleView's common stock on December 30, 2012 was $2.53 per share and $3.89 per

share for preferred stock. The report, prepared in June 2013, used figures for 2014 and

2015 that had carried over from the initial 2012 forecast, but they were not adjusted to

account for EagleView falling short of the 2012 forecast by almost thirty percent.

       In September 2012, Houlihan Lokey valued EagleView at $187-$294 million, with

a midpoint value of $239 million. Houlihan Lokey requested projections from EagleView,

but when EagleView did not provide them, it based the valuation on a financial model

created by Pictometry.
No. 72644-7-1/5



      On March 29, 2013, the Dissenters informed EagleView that they rejected their

estimate of fair value of the shares and submitted a valuation prepared by FTI

Consulting. This report concluded that the fair value of EagleView's shares as of

January 4, 2013, was $12.14 per share, based on a total value of $296.5 million.

EagleView filed suit on May 24, 2013, to determine the fair value of the shares.

       EagleView obtained a report by Neil Beaton that valued the company at $88.4

million, or $3.94/$4.88 per share, which was slightly higher than its original estimate. On

December 20, 2013, EagleView wrote another check to the Dissenters that reflected the

updated value of the shares. In January 2014, Verisk Analytics purchased the combined

company for $650 million, with the Dissenters and other shareholders receiving $14.85

per share.

      At trial, EagleView presented testimony on valuation from its expert, Neil Beaton,

while the Dissenters presented testimony from their expert, Ellen Larson. The trial court

considered the testimony and the various valuations, and ultimately valued the

Dissenters' shares at $3.94 per share for common stock and $4.88 for preferred stock

as of January 6, 2013. These values corresponded to the estimates provided by

Beaton. Because EagleView had already paid the Dissenters that amount, no additional

fair payment was due. The trial court also awarded interest on shares at 5.75 percent,

instead of EagleView's estimate of 0.05 percent. The Dissenters were entitled to an

amount equivalent to an additional 5.70 percent interest on the fair value amounts paid
on February 28, 2104 and December 20, 2014. Finally, neither party was awarded fees.

       The Dissenters appeal.
No. 72644-7-1/6


                                       DISCUSSION

       The parties agree that in the absence of any legal errors, abuse of discretion is

the applicable standard of review. But the Dissenters argue that because their claims of

error implicate legal issues under chapter 23B.13 RCW, our review should be de novo.

The Dissenters contend that issues such as "what evidence is relevant in the valuation

phase of a trial? What is the nature of a trial court's independent review of value?"

present questions of law. Reply Brief at 12. We disagree. The crux of the Dissenters'

argument is that the trial court erred when it agreed with EagleView's expert. Because

this is not a legal question, and the Dissenters have not provided any other basis for de

novo review, our review is for an abuse of discretion.

Independent Objective Analysis of Value-RCW 23B. 13.300

       The Dissenters argue that the trial court failed to conduct an independent,

objective analysis as required by RCW 23B. 13.300. Br. of Appellant at 18. According to

them, the trial court "rel[ied] entirely on the Beaton analysis," and "ignored other

independent sources of fair value for the dissenter shares." Brief of Appellant at 36-37.

EagleView argues that the trial court conducted an independent evaluation that is

supported by the record.

       Under the Washington Business Corporation Act, (WBCA) Title 23B RCW,

shareholders are "entitled to dissent from, and obtain payment of the fair value of the

shareholder's shares" when a corporation performs a corporate action such as a merger

with another company. RCW 23B. 13.020(1). If a dissenter is dissatisfied with the

corporation's estimate of the fair value of the shares, he or she may provide the

corporation with his or her own estimate of the fair value of the dissenters' shares. RCW


                                             6
No. 72644-7-1/7



23B. 13.280(1). If the corporation contests the estimate, it must file for an appraisal

proceeding to determine the "fair value of the shares and accrued interest." RCW

23B.13.300(1). Fair value is defined as:

       [T]he value of the shares immediately before the effective date of the
       corporate action to which the dissenter objects, excluding any
       appreciation or depreciation in anticipation of the corporate action
       unless exclusion would be inequitable.

RCW 23B. 13.010(3). RCW 23B. 13.020 is designed to provide dissenters fair and

accurate compensation for their shares, recognizing that corporations have both

the power and the right to perform such transactions. Sound Infiniti, Inc. v.

Snyder, 169 Wn.2d 199, 210, 237 P.3d 241 (2010). The court makes the ultimate

valuation decision in a dissenter's rights action. SentinelC3. Inc. v. Hunt, 181

Wn.2d 127, 142, 331 P.3d 40 (2014).

       Both parties cite Gonsalves v. Straight Arrow Publishers. Inc., Del. Supr., 701

A.2d 337,359 (1997), in which the trial court failed to conduct an independent valuation

because it announced in advance that it intended to choose between the two appraisals

presented. Relying on Gonsalves, the Dissenters argue that the trial court's adoption of

Beaton's estimate violated its duty to conduct an independent valuation. This duty

prohibits the trial court from "adopting] at the outset an 'either-or' approach, thereby

accepting uncritically the valuation of one party. . . ." In re Appraisal of Metromedia Int'l.

Group, Inc., 971 A.2d 893, 899-900 (Del. Ch. 2009). The Dissenters cite to nothing in

the record, however, indicating that the trial court took an "either-or" approach at the

outset of trial, nor do they show that it "accepted uncritically" the valuation presented by

EagleView. They argue that the trial court's Conclusions of Law B-C-ten pages of
No. 72644-7-1/8



discussion about the two expert valuations-demonstrate that it "simply evaluated the

opinions of the parties' witnesses and chose to credit one over the other." Br. of

Appellant at 39. We disagree.

       The trial court's concurrence with Beaton's analysis is not a per se failure to

conduct an independent valuation. The fact that the trial court ultimately agreed with one

of the experts does not diminish the independent nature of its valuation. When parties

offer conflicting evidence on the value of an asset, the trial court may adopt the value

asserted by either party or any value in between. In re Marriage of Soriano, 31 Wn. App.

432, 435, 643 P.2d 450 (1982). Similarly, under Delaware's statutory scheme, a trial

court "has the discretion to select one of the parties' valuation models as its general

framework or to fashion its own. M.G. Bancorporation, Inc. v. Le Beau, Del Supr., 737

A.2d 513, 525-26 (1999). The Delaware Supreme Court found that it was "entirely

proper for the Court of Chancery to adopt any one expert's model, methodology, and

mathematical calculations, in toto, if that valuation is supported by credible evidence

and withstands a critical judicial analysis on the record." Id. at 526.

       The Dissenters set forth numerous additional arguments as to why the trial

court's valuation was not independent and otherwise flawed. They argue that the trial

court should have given more consideration to conflicting evidence, such as the

Houlihan Lokey and Alvarez & Marsal valuations. They also assign error to the trial

court's conclusion that Beaton's valuation "was more reasonable than Larson's expert

valuation." Br. of Appellant at 39. The Dissenters argue that the trial court "ignored

independent indicia of EagleView's value," because in light of the other estimates of

value, the trial court's valuation "simply made no sense. ..." Id. at 42-43.

                                              8
No. 72644-7-1/9



       Property valuation is a determination to be made by the trier of fact. Worthington

v. Worthington. 73 Wn.2d 759, 762, 440 P.2d 478 (1968). An appellate court does not

substitute its judgment for that of the trial court in a factual dispute over the valuation of

property, id. Under chapter 23B.13 RCW, "the word 'value' contemplates a

consideration of all facts and circumstances pertinent to a particular case." Petition of

Northwest Greyhound Lines, Inc. v. McComack. 41 Wn.2d 672, 680, 251 P.2d 607

(1952). There are no hard and fast rules for determining fair value of dissenters' shares;

such determination must take into account the various approaches to evaluating

corporate assets, earnings and business prospects without regard to the events that

triggered the dissent. Columbia Mgmt. Co. v. Wvss, 94 Or. App. 195, 765 P.2d 207

(1988). A valuation approach "must include proof of value by any techniques or

methods which are generally considered acceptable in the financial community. .. ."

Weinberger v. UOP, Inc.. 457 A.2d 701, 713 (Del. 1983). The facts of the case

determine which factors are relevant and which valuation methods are appropriate. Bell

v.Kirbv Lumber Corp.. 413 A.2d 137, 143 (Del. 1980).

       The Dissenters propound a number of arguments as to why the trial court should

have disregarded Beaton's estimates. They argue that Beaton was not independent,

because it had recently performed valuations for EagleView. They also argue that

Beaton overemphasized future risks, that it improperly used the subject company

transaction methodology, and that it failed to add a premium to stock prices.

       EagleView disagrees, arguing that the trial court was within its discretion to

consider factors such as the risk of Pictometry acquiring a competitor and terminating

contract, the failure to secure an additional image source, the risk from litigation with
No. 72644-7-1/10



Xactware and over EagleView's patents, the failure of its underwriting project, and the

overestimated revenue from insurance carriers. According to EagleView, the trial court

was also permitted to disregard other indicia of value if the bids were outdated or didn't

reflect fair value.

       We agree with EagleView. In MPM Enterprises, Inc. v. Gilbert, 731 A.2d 790, 796

(Del. 1999), the Delaware Supreme Court held that "[a] trial court, in its discretion, need

not accord any weight to such values when unsupported by evidence that they

represent the going concern value of the company at the effective date of the merger or

consolidation." In this case, the trial court heard testimony from both parties' experts. It

concluded that Larson's valuation opinion was less credible because the underlying

data upon which she relied "was outdated by several months." CP at 100. The court

also considered the testimony of both experts regarding the use of the subject company

transaction methodology and the stock pricing of comparable companies. It concluded

that Beaton's methodologies were "widely-accepted" by experts in the field, that he

relied on "known and knowable facts adduced by EagleView's management" and as a

result, "his analysis is reliable and helpful." CP at 99. These determinations are well

within the trial court's discretion. We reject the Dissenters' arguments because they

amount to no more than disagreement with the trial court's analysis and ultimate

adoption of Beaton's valuation. We will not substitute our judgment for that of the trial

court nor will we reweigh evidence on appeal. In re Marriage of Greene, 97 Wn. App.

708, 714, 986 P.2d 144(1999).




                                             10
No. 72644-7-1/11



Admission of Evidence Relevant to Reguest for Fees

       The Dissenters argue that the trial court erred in admitting evidence of conduct

because the trial court "fell prey to EagleView's effort to interject irrelevant

considerations into the case" and entered findings about the Dissenters' conduct "in

connection with its valuation decision." Br. of Appellant at 29-30. The Dissenters cite

EagleView's trial brief, cross examination, opening statement and closing argument as

containing multiple attempts to "demonize Pikover" and draw attention to his "revenge

motivation." Br. of Appellant at 16. EagleView argues that the trial court was allowed to

consider the evidence at trial because it was relevant to whether fees were to be

awarded under the statute.


       We review a trial judge's evidentiary rulings for abuse of discretion. Univ. of

Wash. Med. Ctr. v. Dep't. of Health, 164 Wn.2d 95, 104, 187 P.3d 243 (2008). We will

not reverse such a decision unless it is manifestly unreasonable or based on untenable

grounds or untenable reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940

P.2d 1362(1997).

       RCW 23B. 13.310(2) states that "[t]he court may assess the fees and expenses of

counsel and experts for the respective parties, in amounts the court finds equitable: (b)

Against either the corporation or a dissenter, in favor of any other party, if the court finds

that the party against whom the fees and expenses are assessed acted arbitrarily,

vexatiously, or not in good faith with respect to the rights provided by chapter 23B.13

RCW." Such a finding would require consideration of evidence of the parties' conduct.

As a result, evidence of Pikover's conduct is therefore relevant to EagleView's request

for an award of fees.


                                              11
No. 72644-7-1/12



       The Dissenters argue that this highly prejudicial evidence 'had no place in the

trial on fair value" but should have been addressed in a separate proceeding. Br. of

Appellants at 30. According to the Dissenters, CR 54(d) prohibits a court from hearing a

fee request in the same proceeding. EagleView disagrees and argues that nothing

prohibits fee requests from being heard in the same proceeding. EagleView also argues

that the Dissenters waived their right to raise this argument when they did not object at

trial or request a separate hearing.

       Under CR 54(d)(2), "[cjlaims for attorneys' fees and expenses, other than costs

and disbursements, shall be made by motion unless the substantive law governing the

action provides for the recovery of such fees and expenses as an element of damages

to be proved at trial." If a statute appears to conflict with a court rule, the Supreme Court

will first attempt to harmonize the two and give effect to both. City of Fircrest v. Jensen,

158 Wn.2d 384, 394, 143 P.3d 776 (2006). If they cannot be harmonized, the court rule

will prevail in procedural matters and the statute will prevail in substantive matters.

Putnam v. Wenatchee Valley Med. Ctr., P.S., 166 W.2d 974, 984, 216 P.3d 374 (2009).

Substantive law "'creates, defines, and regulates primary rights,'" while procedures

involve the "'operations of the courts by which substantive law, rights, and remedies are

effectuated.'" Id. (citations omitted).

         Here, RCW 23B.13.310 allows for an award of fees only if certain conditions

are met; and those conditions must be proved at trial. We find no error in the trial court's

decision to address the issue of fees at trial. There is nothing in CR 54(b) that precludes

a fee request from being heard at trial in a dissenters' rights case such as this, where




                                             12
No. 72644-7-1/13


the substantive law provides for the recovery of fees as an element of damages to be

proved at trial.

       The Dissenters also contend that the trial court was "plainly influenced in its

valuation decision by this illicit evidence because it discussed such evidence in its

findings of fact on the valuation decision." Reply Br. at 9-10. EagleView maintains there

was "zero evidence in the trial court's decision that. . . [it] considered the evidence of

[Pikover's conduct]... for any purpose other than EagleView's request for fees." Br. of

Respondent at 41.

       The Dissenters cite the trial court's findings of fact, arguing that the valuation

discussion included improper consideration of Pikover's conduct. There is no indication

in the record, however, that the trial court considered these factors in its valuation

decision. While the trial court made almost four pages of findings of fact regarding

Pikover's conduct, none of these findings were mentioned as factors affecting its

valuation decision. In the "Conclusions of Law" section, the trial court discussed the

expert testimony, valuation methodology, assumptions, growth rates, discount rates,

risk factors, and other considerations. Pikover's conduct was only mentioned in

reference to EagleView's request for costs and fees. The trial court found that

EagleView had failed to prove by a preponderance of evidence that Pikover "dissented

solely to get revenge for being fired and to prove he was wronged." Clerk's Papers (CP)

at 58. The trial court also stated that EagleView "proved that Mr. Pikover lacked

information after his removal," and that "[i]n the absence of such inside information, it is

understandable that a director could dissent from the new valuation presented to it by

Eagle View [sic]." CP at 59. The record shows that evidence of Pikover's conduct was


                                             13
No. 72644-7-1/14



discussed separately from trial court's valuation decision. As a result, we cannot say
that Pikover was prejudiced by the evidence.

Denial of Fees Under RCW 23B. 13.310

        Lastly, the Dissenters argue that they should have been awarded fees under

RCW 23B. 13.310 because EagleView failed to comply with the requirements of chapter

RCW 23B.13 and/or acted vexatiously, arbitrarily, or in bad faith. The Dissenters also

argue that the trial court erred by failing to make express findings of fact and

conclusions of law with regard to its denial of fees to the Dissenters. EagleView argues

that the supreme court in AllianceOne Receivables Management. Inc. v. Lewis, 180

Wn.2d 389, 393, n.1, 325 P.3d 904 (2014), recently determined that findings of fact and

conclusions of law are not required when a trial court denies attorney fees. Even if it

were required, EagleView argues that the trial court entered sufficient findings to

support a denial of fees. The Dissenters claim that there is no distinction between an

award and a denial and that the trial court should have made a record when it denied

fees.


        We review a trial court's denial of a motion for attorneys' fees for abuse of

discretion. Nakata v. Blue Bird, Inc.. 146 Wn. App. 267, 276, 191 P.3d 900 (2008). A

trial court abuses its discretion when it bases its denial on untenable grounds or

reasons, jd. We use the same standard to review a trial court's refusal to award

sanctions under CR 11 or RCW 4.84.185. Skimming v. Boxer. 119 Wn. App. 748, 754,

82 P.3d 707 (2004). In Skimming, the court expressly stated that a court "need not enter

findings when the request for CR 11 sanctions is rejected. It is the decision to impose

the sanction that must be supported by the record." Id. at 755. Here, the trial court made


                                             14
No. 72644-7-1/15



no findings that EagleView failed to comply with RCW 23B.13.200-.280 or that

EagleView acted in bad faith. In the absence of such findings, the Dissenters were not

entitled to an award of fees. A trial court is "not required to enter negative findings or

findings that a certain fact has not been established." Gen. Indus.. Inc. v. Eriksson. 2

Wn. App. 228, 229, 467 P.2d 321 (1970).

       The Dissenters argue that EagleView did not provide "fair value" for the

Dissenters' share as mandated by the statute and that it failed to pay fair value within

the statutory time frame. RCW 23B. 13.250(1) requires a corporation to pay each

dissenter the fair value within 30 days of the later of the effective date of the corporate

action, or the date the payment demand is received. The Dissenters submitted a

demand for payment on January 30, 2013. EagleView paid what it determined to be fair

value on March 1, 2013, within 30 days of the demand. EagleView later revised its

estimate and paid an additional amount to the Dissenters on December 20, 2013.

       Second, the Dissenters argue that EagleView acted in bad faith because it did

not offer the Dissenters a higher amount for its shares, applied a low interest rate,

revised its estimates of value, and failed to respond to their demand letter. But they cite

no authority for their contention that this conduct amounts to bad faith under the statute.

There is no basis for finding an abuse of discretion when the trial court declined to

award fees in the absence of any finding that EagleView acted in bad faith or failed to

comply with RCW 23B. 13.310.




                                             15
No. 72644-7-1/16



       Finally, the Dissenters request an award of fees and costs on appeal. Because

they are not the prevailing party in this appeal, we decline to award fees and costs.

      Affirmed.




                                                    yp<<cl Qftr^, L')J,
WE CONCUR:




      ks<My -h-




                                            16
