Fisher Dev. Corp. v. Tigani, CPU4-19-003443

• Court: Court of Common Pleas of Delaware
• Writing for the Court: Alex J. Smalls, Chief Judge
• Parties: FISHER DEVELOPMENT CORPORATION, et al., Appellants, v. CHRISTOPHER J. TIGANI, Appellee.
• Decision Date: 09 April 2021
• Docket Number: CPU4-19-003443

FISHER DEVELOPMENT CORPORATION, et al., Appellants,
v.
CHRISTOPHER J. TIGANI, Appellee.

CPU4-19-003443

COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

Submitted: February 8, 2021
April 9, 2021

Thomas Marconi, Esq.
1813 N. Franklin Street
Wilmington, DE 19802
Attorney for Appellants

Christopher Tigani
3399 Concord Pike
P.O. Box 7752
Wilmington, DE 19803
Pro se Appellee

MEMORANDUM OPINION AND ORDER ON APPELLANTS' MOTION TO ENFORCE SETTLEMENTAGREEMENT AND APPELLEE'S MOTION TO COMPEL

On September 30, 2019, Appellants Fisher Development Corporation, Nina Fisher, and Michael Phouts (collectively as the "Fishers") brought this appeal from a decision of the Justice of the Peace Court in a replevin action brought by Appellee Christopher Tigani. Before the Court are the Fishers' Motion to Enforce Settlement Agreement, filed December 15, 2020, and Tigani's Motion to Compel, filed December 15, 2020.

A hearing on the Motions was held on February 9, 2021, at which the Court heard oral argument from both parties. In conjunction with the present Motions, the Court also heard oral argument on a Motion to Quash and for a Protective Order brought by non-parties NKS

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Distributors, Inc. ("NKS") and A. Paul Ruggiero. At the conclusion of the hearing, the Court granted the Motion to Quash Subpoena and for Protective Order, and reserved decision as to the Fisher's Motion to Enforce Settlement Agreement and Tigani's Motion to Compel.¹

For the reasons set forth below, this Court finds that an enforceable settlement agreement existed between the parties. Accordingly, the Fishers' Motion to Enforce Settlement Agreement is GRANTED, and Tigani's Motions to Compel is DENIED as moot.

FACTS AND PROCEDURAL HISTORY

This appeal stems from a series of contentious landlord-tenant interactions which culminated in Tigani filing a replevin action in the Justice of the Peace Court to recover personal property left at a rental unit managed by the Fishers. Throughout the duration of this litigation, Tigani has also been involved in separate actions in the Court of Chancery involving NKS Distributors, Inc. ("NKS"), and its president, Paul Ruggiero, neither of whom are parties to the action before this Court.² Although the parties in this case are wholly distinct from those in the Chancery actions, Tigani has repeatedly endeavored to use this litigation as a tool for obtaining information he believes may be pertinent to the Chancery actions, focusing on alleged interactions between Ruggiero and Michael Phouts.

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On the afternoon of December 4, 2020, Tigani initiated unsolicited settlement negotiations with counsel for the Fishers, Thomas Marconi, Esq., with the following e-mail (the "December 4^th E-mail"):

Thanks for your time yesterday. After the deposition, it is my belief that Mr. Phouts has more information than he is disclosing. I have a settlement offer for your clients subject to Delaware Rules of Evidence 408(a). Please present it to your clients and get back to me.

In addition to not filing any motions relating to the deposition seeking more time and sanctions, I will:

1. Withdraw my Amended Complaint with prejudice.
2. Pay your clients $33,000, which is the amount the Appellant's are seeking in their counter-claims.
3. Pay all of the Appellant's legal fees from January 2019, up to $15,000
4. Execute a broad confidentiality and non-disclosure agreement, prohibiting the reporting or pressing perjury charges.
5. Stop investigating the July Theft.
6. Commit to any other reasonable stipulations from Appellants.

In exchange:

1. Appellants will provide all facts, communications, and evidence of any scheme or payments from NKS or anyone related to the NKS matter.
2. Appellants execute a videotaped statement under oath in C.A. 2017-0786-KSJM, smearing to the facts above.
3. The videotaped statement would be filed under seal.

Please let me know if your clients are interested in the offer.

Any communications between the parties, relating to this settlement offer, up to and including the execution of a confidential settlement agreement, shall be subject to D.R.E. 408(a).

In subsequent communications, Tigani advised that his offer would remain open until 5:00 p.m. on December 7, 2020. On December 7, 2020, prior to the 5:00 p.m. deadline, Marconi responded to Tigani's offer via e-mail (the "December 7^th E-mail"), stating:

Dear Chris: The Appellants accept your settlement offer. Please put together a first draft of the settlement documents and it/ them to me for review asap. I will prepare the stipulation of dismissal of the lawsuit and get that to you once we agree on the other settlement document(s).

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Within a few hours of Marconi's e-mailed response, Tigani contacted Marconi via telephone and advised that his offer to settle was contingent on the Fishers sharing information not previously disclosed about a scheme or payments related to NKS. Marconi disagreed, and insisted that the offer—which had already been accepted—required only that his clients offer videotaped testimony under oath as to their knowledge of any facts, communications, or evidence relating to NKS, regardless of the extent or scope of that knowledge. Ultimately, Tigani refused to execute a formal settlement agreement, prompting the Fishers to file the instant Motion to Enforce Settlement Agreement on December 15, 2020.

Meanwhile, the parties were also engaged in discovery. On November 2, 2020, Tigani obtained several subpoenas directed to telephone service providers, for telephone records and text messages sent and/or received by Michael Phouts and Nina Fisher, as well as non-parties NKS and Ruggiero, during specific periods. However, the telephone service providers required the consent of the subscribers for such records to be disclosed. Not surprisingly, Michael Phouts, Nina Fisher, NKS, and Ruggiero all refused to consent. In response, Tigani filed a Motion to Compel on December 15, 2020, directed to the Fishers. NKS and Ruggiero follow suit with a Motion to Quash and for a Protective Order on December 23, 2020.

PARTIES' CONTENTIONS

With regards to the Motion to Enforce Settlement Agreement, it is the Fishers position that the December 4^th E-mail constituted an offer, including all essential terms, that they accepted the offer, including all terms, in the December 7^th E-mail, thereby creating a valid and enforceable agreement. Tigani, on the other hand, argues that the parties did not intend

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to be bound as there was no agreement to all material terms, no consideration, and no formal, signed agreement. As such, he contends, no agreement exists to be enforced.

As...