New Wood Resources LLC v. Baldwin ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
NEW WOOD RESOURCES LLC,
)
)
Plaintiff, ) C.A. No. N20C-10-231 AML CCLD
)
V. )
)
RICHARD BALDWIN, )
)
Defendant. )
Submitted: May 26, 2021
Decided: August 23, 2021
Upon Plaintiff's Motion for Judgment on the Pleadings - GRANTED
ORDER
The defendant in this case served as a manager of the plaintiff limited liability
company from 2013 until his resignation in 2016. While he was a manager, some
of the company’s members sued the defendant for, among other things, breach of
contract, breach of fiduciary duty, and negligence. To cover the costs of defending
this suit, the defendant sought advancement and indemnification from the plaintiff
company. After the plaintiff refused to advance the defendant’s attorneys’ fees and
costs, the defendant filed an action in the Delaware Court of Chancery to enforce his
advancement rights. In connection with that advancement action, the defendant
signed a written undertaking promising to repay the advanced funds if it was later
determined he was not entitled to indemnification under the plaintiff's governing
agreement. The Court of Chancery ultimately determined the defendant was entitled
1
to advancement for the costs of defending the underlying lawsuit, and the plaintiff
paid the amount ordered by the court. Thereafter, through the process prescribed in
the LLC agreement, a majority of the plaintiff company’s unitholders determined
the defendant’s conduct in the underlying lawsuit did not meet the contractually
specified standard for indemnification.
The plaintiff then sought to claw back its payments, citing the defendant’s
written undertaking to repay. To that end, the plaintiff filed a breach of contract
claim in this Court, alleging the defendant breached the LLC agreement and written
undertaking by refusing to reimburse the advancement funds. The defendant
counterclaimed, alleging the plaintiff breached the implied covenant of good faith
and fair dealing by acting in bad faith when it determined he was not entitled to
indemnification. The defendant later orally argued that this Court should imply a
term into the LLC agreement requiring any indemnification decision to be made in
good faith. The plaintiff now moves for judgment on the pleadings as to both its
breach of contract claim and the defendant’s counterclaim. Because (i) the LLC
agreement and the defendant’s undertaking unambiguously require the defendant to
repay the advancement funds, (ii) the plaintiff did not make the indemnification
determination, and (iii) the determination was made in accordance with the LLC
agreement’s express terms, the plaintiff's motion for judgment on the pleadings is
granted.
FACTUAL & PROCEDURAL BACKGROUND
1. Plaintiff/Counterclaim Defendant New Wood Resources LLC (“New
Wood”) is a Delaware limited liability company that operates a plywood and veneer
manufacturing facility in Mississippi known as Winston Plywood & Veneer LLC
(“WPV”).! Defendant/Counterclaim Plaintiff Richard F. Baldwin served as one of
New Wood’s managers from 2013 until his resignation in 2016.2, New Wood’s
Second Amended and Restated Limited Liability Company Agreement (the “LLC
Agreement”) provides New Wood’s managers with certain indemnification and
advancement rights. Section 8.2 of the LLC Agreement states, in pertinent part:
Notwithstanding anything to the contrary in this Section 8.2, no Person
shall be entitled to indemnification hereunder unless it is found (in the
manner described below in this Section 8.2) that, with respect to the
matter for which such Person seeks indemnification, such Person acted
in good faith and in a manner that he or she reasonably believed to be
in or not opposed to the best interests of the Company ... .°
Section 8.2 goes on to establish the process for determining that a manager acted
with the requisite good faith and in the company’s best interests:
The finding of the standard of conduct required above shall be made (a)
by a majority vote of all of the Managers who are not parties to such
Proceeding even though less than a quorum or (b) if there are no such
Managers, or if such Managers so direct, by independent legal counsel
in a written opinion or (c) by holders of a Majority of the then-
1 P].’s5 Mot. at 2.
2 Id.
3 Td. at 4.
outstanding Units (determined without regard to any Members that are
parties to such Proceeding).*
Further, Section 8.3 provides that a manager shall be advanced the costs of litigation
“without any determination as to the Person’s ultimate entitlement of
indemnification.”> Section 8.3 expressly conditions such right to advancement on
the manager executing “a written undertaking . . . to repay all amounts so advanced
if it shall ultimately be determined that such indemnified Person is not entitled to be
indemnified.”
2. On February 9, 2018, a member of New Wood that Baldwin managed,
Oak Creek Investments, LLC (“OCI”), filed a complaint in the United States District
Court for the Northern District of Mississippi against New Wood, WPV, and other
third parties, alleging breach of contract, fraud, and breach of fiduciary duty among
other things.” On May 17, 2018, the defendants in the Mississippi federal action
moved to dismiss for lack of subject matter jurisdiction and filed a lawsuit against
OCI and Baldwin in the Delaware Court of Chancery (the “Delaware Plenary
Action”). The Delaware Plenary Action asserted claims against OCI and Baldwin
for, among other things, breach of fiduciary duty, breach of contract, and
negligence.® On May 25, 2018, OCI dismissed the Mississippi federal action and
4 Td. (emphasis added).
> Id. at 4-5.
6 Td.
T Id. at 5.
8 Id. at 6.
re-filed its claims in Mississippi state court (the “Mississippi State Court Action”).?
The Mississippi State Court Action ultimately was dismissed in favor of the
Delaware Plenary Action. On March 27, 2020, the Court of Chancery granted
judgment in OCI and Baldwin’s favor in the Delaware Plenary Action.!°
3. Beginning in 2018, Baldwin sought advancement under the LLC
Agreement, but New Wood denied his advancement claim. Baldwin and OCI then
filed a separate action in the Delaware Court of Chancery seeking advancement in
connection with the lawsuits (the “Advancement Action”).!' As required under
Section 8.3, Baldwin signed a written undertaking promising to repay advanced
funds if it was later determined he was not entitled to indemnification.'* On October
14, 2019, the Court of Chancery ruled that Baldwin and OCI were entitled to
advancement and ordered New Wood to pay $269,881.61 in advancement,
$17,726.97 in prejudgment interest, and $214,459.49 as indemnification or “fees on
fees” for the fees and expenses incurred in enforcing Baldwin’s advancement right."
The Court of Chancery later entered an order under Court of Chancery Rule 88 on
August 26, 2020, ordering New Wood to pay an additional $223,373.70 in
° Id.
10 Td. at 7.
1! 7d. at 6.
12 Td. at 6-7.
'3 Def.’s Suppl. Br., Ex. A.; Richard F. Baldwin and Oak Creek Investments, LLC v. New Wood
Resources, LLC, Case No. 2019-0019-JRS (Del. Ch. Oct. 14, 2019).
5
advancement, $30,682.71 in interest, and $111,086.55 in indemnification. The
total advancement amount ordered was $541,664.99, and the total indemnification
ordered was $325,546.04. Neither party disputes these sums.'°
4, On April 23, 2020, in accordance with Section 8.2, a majority of New
Wood’s unitholders issued a written consent (the “Written Consent”) that
determined Baldwin failed to act in good faith and therefore was not entitled to
indemnification for fees or expenses incurred in the Mississippi State Court Action
and the Delaware Plenary Action.'® Baldwin alleges this determination was made
by New Wood’s majority member, ACR Winston Preferred Holdings, LLC
(“ACR”), acting on New Wood’s behalf.'’ Citing the written undertaking and the
LLC Agreement, New Wood requested that Baldwin repay the advanced amounts,
and Baldwin refused."
5. OnOctober 26, 2020, New Wood initiated this action, alleging Baldwin
breached the LLC Agreement and written undertaking by failing to reimburse New
Wood the advanced funds.'? On January 20, 2021, Baldwin filed his Answer,
including three affirmative defenses and a counterclaim (the “Counterclaim”). The
M4 Iq., Ex. B.; Richard F. Baldwin and Oak Creek Investments, LLC v. New Wood Resources, LLC,
Case No. 2019-0019-JRS (Del. Ch. Aug. 26, 2020).
'S P].’s Supp. Br. at 2; Def.’s Supp. Br. at 2.
16 P].*s Mot. at 7.
'7 Nef.’s Resp. at 12.
18 P].*s Mot. at 7-8.
'9 P].’s Compl. at 8-9.
Counterclaim seeks a declaratory judgment that: (i) New Wood is required to pay
the attorneys’ fees and costs Baldwin incurred in domesticating the judgment in the
Mississippi State Action, (ii) Section 8.2 of the LLC Agreement contains an implicit
term that any determination of the right of indemnification must be made in good
faith, and (iii) the Written Consent by ACR was entered into in a bad faith attempt
to avoid New Wood’s indemnification obligation under the LLC Agreement.”” On
March 16, 2021, New Wood filed this Motion for Judgment on the Pleadings as to
its breach of contract claim and Baldwin’s Counterclaim.
6. After briefing was complete, the Court heard oral argument. At the
conclusion of the hearing, the Court asked the parties to supplement the record
regarding the specific amounts New Wood paid as advancement and
indemnification. The Court also asked the parties to provide any relevant authority
relating to Baldwin’s assertion during oral argument that his counterclaim was both
an implied covenant claim and an independent claim seeking to imply a term in the
LLC Agreement. The Court took the Motion under advisement after the parties
submitted their supplemental briefing on May 26, 2021.
PARTIES’ CONTENTIONS
7. New Wood asserts it is entitled to judgment on the pleadings because
the pleadings demonstrate Baldwin breached a valid agreement and there are no
20 Def.’s Answer at 26.
material facts in dispute.2! New Wood argues Baldwin’s Answer does not dispute
the essential elements of New Woods’ breach of contract claim.” New Wood also
maintains judgment on the pleadings is warranted because Baldwin has not asserted
a valid defense or counterclaim.”7 New Wood contends Baldwin’s implied covenant
counterclaim fails because Baldwin lacks any support for the allegation that the
Written Consent was issued in bad faith.“ Further, the LLC Agreement expressly
dictates how the indemnification is made and therefore there is no contractual gap
for the implied covenant to fill.> Finally, in its supplemental briefing, New Wood
contends that implying new terms into the LLC Agreement outside the scope of the
implied covenant would be contrary to Delaware law because doing so effectively
would re-write the parties’ agreement.”°
8. Baldwin contends New Wood’s motion must be denied because the
allegations in the Counterclaim sufficiently put New Wood on notice of the claims
against it.27 Baldwin argues the Counterclaim and Affirmative Defenses contain
well-pleaded allegations that New Wood: (i) purposefully delayed any payments to
him, (ii) forced him to incur needless attorneys’ fees and expenses, and (iii) induced
21 P].’s Mot. at 9.
22 Td. at 9-10.
3 Id. at 10.
24 Td.
25 Id, at 11.
26 P].’s Suppl. Br. at 5-6.
27 Def.’s Resp. at 18.
ACR to enter into the Written Consent in bad faith so that it could improperly claw-
back the advanced funds.”* Baldwin maintains the implied covenant of good faith
and fair dealing properly is invoked in this case because (i) there is a gap in Section
8.2 as to whether the indemnification decision must be made in good faith, and (ii)
New Wood’s refusal to indemnify Baldwin was unreasonable conduct that prevented
him from receiving the fruits of his bargain.” In his supplemental briefing, Baldwin
also argues the Court should invoke the doctrine of necessary implication to imply
a good faith requirement into Section 8.2 of the LLC Agreement.’? Without this
implied term, Baldwin asserts New Wood unilaterally could defeat the
indemnification rights for which Baldwin bargained.*! According to Baldwin, the
parties would have included an explicit term requiring good faith had it not been so
obvious that the parties intended for Section 8.2 to have such a limitation.*?
ANALYSIS
9. A party may move for judgment on the pleadings under Superior Court
Civil Rule 12(c).*? In resolving such a motion, the Court accepts the truth of all
well-pleaded facts and draws all reasonable factual inferences in favor of the non-
28 Jd. at 15.
29 Id. at 19.
3° Def.’s Suppl. Br. at 4.
31 Td. at 4-5.
32 Td. at 4,
33 See Del. Super. Ct. Civ. R. 12(c).
moving party3’ The Court “accords the party opposing a [Rule] 12(c) motion the
same benefits as a party defending” a motion to dismiss under Rule 12(b)(6).°>
Accordingly, this Court will grant a motion for judgment on the pleadings only if,
after drawing all reasonable inferences in favor of the non-moving party, there is no
material fact in dispute and the moving party is entitled to judgment as a matter of
36
law.
A. Baldwin must repay the amounts advanced to him but is not required to
repay previous indemnification payments.
10. Baldwin must repay the $541,664.99 that New Wood advanced to him,
as expressly required by the LLC Agreement and his written promise to repay. “In
interpreting contract language, clear and unambiguous terms are interpreted
according to their ordinary and usual meaning.”*’ The parties agreed in Section 8.2
of the LLC Agreement that Baldwin would not be entitled to indemnification unless
34 See Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund II, L.P., 624 A.2d 1199,
1205 (Del. 1993); Northrop Grumman Innovation Sys., Inc. v. Zurich Am. Ins. Co., 2021 WL
347015, at *6 (Del. Super. Ct. Feb. 2, 2021) (citing Indian Harbor Ins. Co. v. SharkNinja
Operating LLC, 2020 WL 6795965, at *2 (Del. Super. Ct. Nov. 19, 2020)).
35 Catlin Specialty Ins. Co. v. CBL & Assocs. Props., Inc., 2017 WL 4784432, at *6 (Del. Super.
Sept. 20, 2017) (citing Desert Equities, 624 A.2d ay 1205); see SharkNinja, 2020 WL 6795965, at
*2 (“[T]he standard for motion for judgment on the pleadings is almost identical to the standard
for a motion to dismiss under Rule 12(b)(6).” (internal quotation marks omitted)); see also Incyte
Corp. v. Flexus Biosciences, Inc., 2017 WL 7803923, at *1-2 (Del. Super. Nov. 1, 2017)
(importing the same liberal construction into review of motion for “partial” judgment on the
pleadings).
36 V&M Areospace LLC v. V&M Co., 2019 WL 3238920, at *3 (Del. Super. July 18, 2019)
(citations omitted).
31 Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 739 (Del. 2006); Rhone—Poulenc
Basic Chem. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1195 (Del. 1992); accord Allied Capital
Corp. v. GC—Sun Holdings, L.P., 910 A.2d 1020, 1030 (Del. Ch. 2006).
10
a majority of New Woods’ unitholders determined that, “with respect to the matter
for which such Person seeks indemnification, such Person acted in good faith and in
a manner that he or she reasonably believed to be in or not opposed to the best
interests of the Company.”** Further, under Section 8.3 of the LLC Agreement,
Baldwin signed a written undertaking promising to repay all amounts advanced to
him if it ultimately was determined that he was not entitled to indemnification.
11. Section 8.2’s good faith prerequisite to managers’ indemnification
rights may be unusual, but Baldwin has not cited any authority suggesting it is
unenforceable. To the contrary, Delaware’s Limited Liability Company Act gives
maximum effect to the principles of freedom of contract and contractual
enforceability.2? In fact, one of the advantages to selecting a limited liability
company as a form of entity is the parties’ freedom to shape their relationship
through contract.” Baldwin does not dispute that he signed the written undertaking
to repay or that a majority of New Woods’ unitholders ultimately made a
determination that he was not entitled to indemnification in the Delaware Plenary
Action. Neither party disputes that Section 8.2’s language is clear and unambiguous,
and the parties agree on the precise amounts advanced to Baldwin. Even drawing
all reasonable inferences in Baldwin’s favor, there is no material dispute that
38 p].’s Mot. at 4.
39 6 Del. C. § 18-110(b).
40 Haley v. Talcott, 864 A.2d 86, 88 (Del. Ch. 2004).
11
Baldwin contractually was required to repay the advanced amounts if it later was
determined he was not entitled to indemnification.“' Baldwin therefore must
reimburse New Wood the $541,664.99 advanced to him.
12. For two reasons, however, the same conclusion does not apply to
amounts New Wood previously paid as indemnification for the fees Baldwin
incurred in the Advancement Action. First, the written undertaking only applies to
the funds advanced in the Delaware Plenary Action.*” Accordingly, the undertaking
does not obligate Baldwin to repay “fees on fees,” since such sums constitute
indemnification, rather than advancement. Second, Sections 8.2 and 8.3 do not
authorize claw-back of amounts paid out for indemnification, even if New Wood
paid these amounts before any “good faith or best interests” determination. Rather,
Sections 8.2 and 8.3 establish the standard that governs when indemnification must
be paid. In short, Baldwin is not contractually obliged to reimburse New Wood the
$325,546.04 paid as indemnification for the Advancement Action.”
4 As explained below, Baldwin’s affirmative defenses and counterclaim do not create disputed
issues of material fact.
42 P].’s Am. Compl. at ¥ 16.
43. New Wood correctly points out that Baldwin did not raise this distinction between advancement
and indemnification in his opposition to New Wood’s motion. The Court raised the point sua
sponte at oral argument. Baldwin, however, cannot truly be said to have waived the argument,
since he never implicitly or expressly conceded the indemnified funds should be repaid. In my
view, the Court was compelled by principles of comity to raise the issue of whether the “fees on
fees” the Court of Chancery ordered New Wood to pay should be considered differently from the
advancement ordered by the Court and governed by the undertaking. For the reasons explained
above, I believe the amounts must be treated differently.
\2
B. Baldwin’s affirmative defenses and Counterclaim do not raise disputed
issues of material fact that preclude entry of judgment on the pleadings.
13. Baldwin’s Counterclaim and affirmative defenses do not preclude
judgment on the pleadings because Baldwin has not pleaded a cognizable
counterclaim. Baldwin’s argument fails at the outset because it is undisputed that
New Wood did not make the indemnity decision; rather, the majority of New
Woods’ unitholders made the decision, as provided for in the LLC Agreement. New
Wood cannot be said to have breached the implied covenant of good faith and fair
dealing when the challenged decision was made by a non-party to this action.
14. Moreover, even if Baldwin could avoid the fact that New Wood did not
make the indemnity decision, the Counterclaim fails for other reasons as well. The
implied covenant of good faith and fair dealing attaches to all contracts and exists to
fill unanticipated contractual gaps.** To state a claim for breach of the implied
covenant, a claimant must allege: (1) a specific implied contractual obligation; (2) a
breach of that obligation; and (3) resulting damage.** The implied covenant
“involves a cautious enterprise” in which a court infers contractual terms to fill gaps
or developments that neither party anticipated.*° A contracting party may not use
44 See Dieckman v. Regency GP LP, 155 A.3d 358, 367 (Del. 2017).
45 Brightstar Corp. v. PCS Wireless, LLC, 2019 WL 3714917, at *11 (Del. Super. Aug. 7, 2019)
(quotation marks and citations omitted).
46 Nemec y. Shrader, 991 A.2d 1120, 1125 (Del. 2010) (quotation marks omitted).
13
the implied covenant to alter a contract’s express terms.*’ Put differently, Delaware
courts will use the implied covenant to fill gaps only when a contract truly is silent
on the disputed issue.** As a result, where the express terms of an agreement govern
a particular matter, an implied covenant claim regarding that matter is not viable and
must be dismissed.*”
15. Baldwin argues New Wood breached the implied covenant of good
faith and fair dealing because New Wood acted in bad faith when it determined he
was not entitled to indemnification.’ Alternatively, Baldwin asserts this Court
should invoke the doctrine of necessary implication to imply into the LLC
Agreement a term that required New Wood to make an indemnification
determination in good faith.°! Baldwin’s implied covenant claim fails because it
would create a free-floating obligation of good faith that is not tethered to any
unanticipated gap in the LLC Agreement. Instead, the implied covenant Baldwin
advances directly would contradict the express language in the LLC Agreement,
which conditions indemnification on a determination that a manager acted in good
47 See Brightstar Corp., 2019 WL 3714917, at *11 (When reviewing an implied covenant claim,
“the express terms of a contract must always control.”) (citing Dunlap v. State Farm Fire & Cas.
Co., 878 A.2d 434, 441 (Del. 2005)).
48 See Brightstar Corp., 2019 WL 3714917, at *11; accord Dunlap, 878 at 441; see also EL
DuPont de Nemours & Co. v. Pressman, 679 A.2d 436, 443-44 (Del. 1996).
49 Edinburgh Holdings, Inc. y. Educ. Affiliates, Inc., 2018 WL 2727542, at *9 (Del. Ch. June 8,
2018).
°° Def.’s Resp. at 16,19-21.
>! Def.’s Supp. Br. at 2-5.
°2 Dunlap, 878 A.2d at 441.
14
faith and in a manner he believed to be in the company’s best interests. Baldwin
asks this Court to override express contractual language to impose a free-floating
duty that any indemnification determination be made in good faith; the implied
covenant cannot be used in this way.
16. Baldwin’s reliance on Dieckman v. Regency GP LP** is misplaced and
unsupported by the pleaded facts. In Dieckman, a unitholder in a master limited
partnership alleged the general partner made false and misleading statements in a
proxy statement the general partner issued to induce unitholders to approve a
conflicted transaction. The unitholder’s approval of the transaction triggered the
limited partnership agreement’s safe harbor provision and thereby shielded the
general partner from further scrutiny. The Delaware Supreme Court determined
that, once the general partner elected to issue a proxy statement to take advantage of
the safe harbor protection, there was an implied obligation in the agreement not to
mislead the unitholders.** But Dieckman does not rescue Baldwin’s bid to avoid the
LLC Agreement’s plain terms because the case is distinct factually and legally. First,
Dieckman was decided in the context of a publicly traded master limited partnership
in which the investors could not competitively negotiate the partnership agreement’s
terms and necessarily relied on the public documents and public disclosures about
53.155 A.3d 358 (Del. 2017).
54 Td. at 368.
15
the entity.°° Second, the safe harbor provision at issue was a voluntary protection
the general partner attempted to utilize to immunize the merger from judicial
review.°° The Delaware Supreme Court held that, having voluntarily sought the safe
harbor’s protections, the implied covenant precluded the general partner from
‘ misleading the unitholders in the proxy statement or appointing conflicted members
to the ostensibly independent conflicts committee.*’
17. Here, in contrast to Dieckman, the LLC Agreement was a negotiated
agreement of a private entity, not a publicly traded master limited partnership. And,
the LLC Agreement mandates a determination that an indemnitee acted in good faith
or in the company’s best interests before the indemnification may be paid. Imposing
an additional free-floating good faith obligation would subject every express and
mandatory provision in the LLC Agreement to fact-intensive and unyielding judicial
review. This is not consistent with either Delaware law or the “narrow” purposes of
the implied covenant.*8 Accordingly, the Counterclaim does not create a genuine
factual issue that precludes judgment on the pleadings.
18. Baldwin’s argument that this Court should invoke the doctrine of
necessary implication to imply a good faith term into the LLC Agreement likewise
55 Id. at 366-67.
6 Td. at 367-68.
57 Id. at 367-69.
58 See Kuroda v. SPJS Holdings, LLC, 971 A.2d 872, 888 (Del. Ch. 2009).
16
fails because the implied term would contradict the LLC Agreement’s express
language.” The doctrine of necessary implication permits a court to read an implied
promise into a contract in order to carry out the purpose for which the promise was
made or prevent one party from frustrating the other’s right to receive the fruits of
the contract.© Terms are implied not because they are reasonable but because they
necessarily are involved in the contractual relationship such that the parties only
failed to express them because they are too obvious to need expression. In other
words, the doctrine appears to be no broader than, and arguably is synonymous with,
the implied covenant. The doctrine does not apply, however, where the implied term
sought would destroy, rather than carry out, the agreement’s express purpose.°!
19. In this case, for the same reasons discussed above, implying the term
Baldwin’s seeks would undermine Section 8.2’s express and unambiguous language.
It is far from “obvious” that the LLC Agreement’s parties intended any process to
govern the indemnification decision other than the one expressly set forth in Section
8.2. Implying some free-floating obligation of good faith into the LLC Agreement
59 Although the Counterclaim does not refer to the doctrine of necessary implication, Baldwin
asserted during his oral argument that the Counterclaim was both a claim for breach of the implied
covenant and a claim to imply a term in the LLC Agreement. Baldwin’s supplemental briefing on
May 19, 2021 argues this Court should invoke the doctrine of necessary implication to imply a
contractual term requiring any indemnification determination to be made in good faith. Def.’s
Suppl. Br. At 4.
60 Im re IT Group, Inc., 448 F.3d 661, 671 (3d Cir. 2006) (citing Killian v. McCulloch. 850 F.Supp.
1239, 1250-51 (E.D.Pa. 1994)).
6! In re IT Group, Inc., 448 F.3d 661, 671 (3d Cir. 2006).
17
would undermine, rather than carry out, the parties’ intentions. The doctrine of
necessary implication therefore is not applicable to this case.
CONCLUSION
For the reasons set forth above, Plaintiff/Counterclaim-Defendant New
Wood’s Motion for Judgment on the Pleadings is GRANTED and Baldwin shall
repay the $541,664.99 advanced to him.
18