             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

    WALTER A. WINSHALL, in his capacity )
    as the Stockholders’ Representative for )
    former Harmonix Stockholders.           )
                                            )
                       Plaintiff,           )          C.A. No.: N15C-06-137 EMD CCLD
                                            )
                  v.                        )
                                            )
    VIACOM INTERNATIONAL INC., a            )
    Delaware Corporation.                   )
                                            )
                       Defendant.           )
                                            )

               ORDER DENYING PLAINTIFF’S CORRECTED
    MOTION FOR REARGUMENT AND SETTING A HEARING ON DEFENDANT
       VIACOM INTERNATIONAL INC.’S MOTION FOR REARGUMENT

       Upon consideration of Defendant Viacom International Inc.’s Motion for Reargument

(the “Viacom Motion”) filed by Defendant Viacom International Inc. (“Viacom”) on March 4,

2019; Plaintiff’s Corrected Motion for Reargument (the “Plaintiff’s Motion”) filed by Plaintiff

Walter A. Winshall, in his capacity as the Stockholders’ Representative for former Harmonix

On March 7, 2019; Plaintiff’s Answer in Opposition to Defendant Viacom International Inc.’s

Motion for Reargument (the “Plaintiff’s Opposition”) filed by Mr. Winshall on March 11, 2019;

Defendant’s Opposition to Plaintiff’s Corrected Motion for Reargument (the “Viacom

Opposition”) filed by Viacom on March 11, 2019; the Court’s February 25, 2019 Memorandum

Opinion Denying Plaintiff Walter A. Winshall’s Motion for Partial Summary Judgment and

Granting in Part Defendant Viacom International Inc.’s Motion for Summary Judgment (the

“Opinion”); Superior Court Civil Rule 59(e); the entire record of this civil proceeding; and

having determined that no hearing is necessary on the Plaintiff’s Motion,
         1.       Superior Court Civil Rule 59(e) (“Rule 59(e)”) provides that a party may file a

motion for reargument “within 5 days after the filing of the Court’s Order or decision.”1 Rule

6(b) states that “the Court . . . may not extend the time for taking any action under Rules . . .

59(b), (d) and (e) . . . except to the extent and under the conditions stated in them.” 2 Rule 59(e)

does not allow for an extension.3

         2.       The standard for a Rule 59(e) motion is well defined under Delaware law.4 A

motion for reargument will be denied unless the Court has overlooked precedent or legal

principles that would have controlling effect, or misapprehended the law or the facts such as

would affect the outcome of the decision.5 Importantly, motions for reargument should not be

used merely to rehash the arguments already decided by the court,6 or to present new arguments

not previously raised.7 In other words, a motion for reargument is “not a device for raising new

arguments or stringing out the length of time for making an argument.”8 Such tactics frustrate

the efficient use of judicial resources, place the opposing party in an unfair position, and stymie

“the orderly process of reaching closure on the issues.”9

         3.       In the Plaintiff’s Motion, Mr. Winshall asserts that the Court improperly entered

judgment against him on his claim that Viacom must indemnify the Harmonix Shareholders for



1
  Super. Ct. Civ. R. 59(e).
2
  Super. Ct. Civ. R. 59(e) (“A motion for reargument shall be served and filed within 5 days after the filing of the
Court's opinion or decision. The motion shall briefly and distinctly state the grounds therefor. Within 5 days after
service of such motion, the opposing party may serve and file a brief answer to each ground asserted in the motion.
The Court will determine from the motion and answer whether reargument will be granted. A copy of the motion
and answer shall be furnished forthwith by the respective parties serving them to the Judge involved.”).
3
  Del. Super. Ct. Civ. R. 6(b).
4
  Kennedy v. Invacare Corp., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006).
5
  Woodward v. Farm Family Cas. Ins. Co., 2001 WL 1456865, at *1 (Del. Super. Aug. 24, 2001).
6
  Id.
7
  Plummer v. Sherman, 2004 WL 63414, at *2 (Del. Super. Jan. 14, 2004); see also Bd. of Managers of the Del.
Crim. Justice Info. Sys. v. Gannett Co., 2003 WL 1579170, at *3–4 (Del. Super. Jan. 17, 2003) rev’d on other
grounds, Gannett Co. v. Bd. of Managers of the Del. Crim. Justice Info. Sys., 840 A.2d 1232 (Del. 2003).
8
  Gannett, 2003 WL 1579170, at *1.
9
  Plummer, 2004 WL 63414, at *2.

                                                          2
the personal income taxes that they incurred as a result of their profits from the merger. Mr.

Winshall argues that the Court’s entry of judgment was improper because: (1) the Court

misconstrued CertainTeed Corp. v. Celotex Corp.10 and overlooked the common law accrual

rule, and (2) the Court misconstrued LaPoint v. Amerisource Bergen Corp.11

        4.       The Court issued the Opinion on February 25, 2019. Under Rule 59(e), the

deadline for filing a motion for reargument was March 4, 2019. Mr. Winshall filed a motion for

reargument on March 4, 2019 which did not comply with the requirements for a motion for

reargument. After Viacom filed a motion to strike, Mr. Winshall then filed the “corrected”

Plaintiff’s Motion on March 7, 2019. The Court finds that the Plaintiff’s Motion is untimely

because it was filed after the March 4, 2019 deadline. Accordingly, the Court must deny the

Plaintiff’s Motion. Alternatively, the Court has reviewed the substantive claims made in the

Plaintiff’s Motion and will deny it for the reasons set forth below.

Certainteed and the Common Law Accrual Rule

        5.       In the Opinion, the Court cited Certainteed Corp. v. Celotex Corp.12 for the

proposition that claims for contractual indemnification accrued at the time of the underlying

breach of contract. The Court held that Mr. Winshall’s claim for indemnification for personal

income taxes arose from the Merger Agreement and so was a claim for contractual

indemnification. In accordance with the Certainteed case, the Court found that these claims

accrued at the time Viacom breached the Merger Agreement, which occurred in or before 2011.

The Court concluded that Mr. Winshall’s claims were barred by both the three-year statute of

limitations and res judicata.



10
   2005 WL 217032 (Del. Ch. Jan. 24, 2005).
11
   LaPoint, 970 A.2d at 197-98.
12
   2005 WL 217032, at *3 (Del. Ch. Jan. 24, 2005).

                                                     3
           6.      Mr. Winshall claims that the Court improperly entered judgment against him on

his personal income taxes claim as untimely. Mr. Winshall alleges that the Court erred by

misconstruing CertainTeed Corp. v. Celotex Corp.13 and overlooking the common law accrual

rule. Mr. Winshall argues that if the Court has applied these authorities then the Court would

have treated this claim as a common law claim for third-party indemnification and found that the

claim was timely. As a common law claim for third-party indemnification, Mr. Winshall

contends that the claim would be timely as it would not accrue until after the payment of Mr.

Winshall’s and the Harmonix Shareholders’ personal income taxes on profits from the merger to

third-party taxing authorities.

           7.      In response, Viacom contends that Mr. Winshall’s argument about the common

law accrual rule is completely new. As such, Viacom claims that this new argument is an

improper basis for a motion for reargument. Next, Viacom asserts that Mr. Winshall’s

classification of a claim for personal income taxes as a common law claim for third-party

indemnification lacks merit. This is because obligations to pay income taxes to the government

are not “claims” brought by “third-parties.” Finally, Viacom cites the Opinion, in which the

Court found that Mr. Winshall’s indemnification claim for personal income taxes is precluded by

the terms of the Merger Agreement. In the Opinion, the Court found that the Merger Agreement

sets forth the types of “Taxes” that fall within Viacom’s indemnification obligation, and personal

income taxes are not included.

           8.      The Court finds that it did not overlook legal precedent or misapprehend the law

or facts in the Opinion. As Viacom notes, Mr. Winshall raises a new argument about the

common law accrual rule that he did not present, but could have presented, in his initial briefing



13
     2005 WL 217032 (Del. Ch. Jan. 24, 2005).

                                                   4
before the Court. In addition, the Court discussed and addressed the Certainteed case in depth in

the Opinion. Accordingly, the Court holds that there is no basis for reargument.

Application of LaPoint

           9.       In the Opinion, the Court cited LaPoint v. Amerisource Bergen Corp.14 for the

proposition that a claim for indemnification for attorneys’ fees first accrues only after a court

issues a final determination that the plaintiff is entitled to indemnification and the defendant has

failed to indemnify the plaintiff. As in LaPoint, the Court held that Mr. Winshall’s claim for

indemnification for attorney’s fees was not barred by the statute of limitations. This was because

Mr. Winshall’s attorney’s fees claim became ripe after the Delaware Supreme Court issued its

final determination in 2013 that Mr. Winshall was entitled to indemnification and Viacom failed

to indemnify Mr. Winshall. But, as noted above, the Court found that Mr. Winshall’s

indemnification claim for personal income taxes was governed by Certainteed, not LaPoint.

           10.      Mr. Winshall claims that the holding in LaPoint v. AmerisourceBergen Corp.15

should not be limited to indemnification claims for attorneys’ fees and costs. Mr. Winshall is

presumably arguing that the Court should apply LaPoint to Mr. Winshall’s claim for

indemnification for personal income taxes and find that this claim is not barred by the statute of

limitations. In response, Viacom contends that this argument is irrelevant because claims for

personal income taxes are not claims for common law indemnification. In addition, Viacom

asserts that Mr. Winshall is rehashing arguments that the Court has already decided. So, Viacom

argues Mr. Winshall’s argument is not appropriate for a motion for reargument.

           11.      The Court again finds that it did not overlook legal precedent or misapprehended

the law or facts in the Opinion. In fact, the Court decided in the Opinion that the LaPoint case


14
     LaPoint, 970 A.2d at 197-98.
15
     970 A.2d 185 (Del. 2009).

                                                    5
does not apply to Mr. Winshall’s claim for indemnification for personal income taxes. Therefore,

there is no basis to grant reargument.

The Viacom Motion

       12.     After review of the Viacom Motion and the Plaintiff’s Opposition, the Court has

determined that a hearing may assist the Court in determining the issues raised in the Viacom

Motion. Accordingly, the parties should contact the Court to schedule a hearing on the Viacom

Motion and the Plaintiff’s Opposition.

       IT IS HEREBY ORDERED that the Plaintiff’s Motion is DENIED.

Dated: May 22, 2019
Wilmington, Delaware

                                                    /s/ Eric M. Davis
                                                    Eric M. Davis, Judge
CC:    File&ServeXpress




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