Aerogrow Int'L, Inc. v. Dist. Ct. (Overbrook Capital Llc)

IN THE SUPREME COURT OF THE STATE OF NEVADA
AEROGROW INTERNATIONAL, INC.; No. 83835
CHRIS HAGEDORN; CORY MILLER;
PATRICIA M. ZIEGLER; H.
MACGREGOR CLARKE; DAVID B.
KENT; SMG GROWING MEDIA, INC.; rm,
AGI ACQUISITION SUB, INC.; THE i F fe i}
SCOTTS MIRACLE-GRO COMPANY; :
JAMES HAGEDORN; AND PETER JUN 30 2022
SUPRON, | ELIZABETH A. BROWN
Petitioners CLERK OF SUPREME COURT
, BY -Yo.
VS. DEPUTY CLERK
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
MARK R. DENTON, DISTRICT JUDGE,
Respondents,
and
OVERBROOK CAPITAL LLC; NICOYA
CAPITAL, LLC; BRADLEY LOUIS
RADOFF; FRED M. ADAMCYZK;
THOMAS C. ALBANESE; WILLIAM A.
ALMOND, III; MICHAEL 8. BARISH;
GEORGE C. BETKE, JR. 2019 TRUST;
DIANA BOYD; ANNE CAROL DECKER;
THOMAS H. DECKER; THE DEUTSCH
FAMILY TRUST; JOHN C. FISCHER;
ALFREDO GOMEZ; ALFREDO GOMEZ
FMT CO CUST [IRA ROLLOVER;
LAWRENCE GREENBERG; PATRICIA
GREENBERG; KAREN HARDING; H.L.
SEVERANCE, INC. PROFTT SHARING
PLAN & TRUST; H.L. SEVERANCE, |
INC. PENSION PLAN & TRUST; |
DANIEL G. HOFSTEIN; KEVIN |
JOHNSON; CANDACE KAYE; LAURA |
J. KOBY; CAROLE L. MCLAUGHLIN: |
BRIAN PEIERLS; JOSEPH EK. PETER;
Supreme Gourt
OF
NeEvapA
(0) 19470 RR ' - -2 Ob7e
ALEXANDER PERELBERG; AMY
PERELBERG; DANA PE ARELBERG:
GARY PERELBERG; LINDA
PERELBERG; THE REALLY COOL
GROUP; RICHARD ALAN RUDY
REVOCABLE LIVING TRUST; JAMES
D. RICKMAN, JR.; JAMES D.
RICKMAN, JR. IRREVOCABLE TRUST;
PATRICIA D. RICKMAN
IRREVOCABLE TRUST; ANDREW
REESE RICKMAN TRUST; SCOTT
JOSEPH RICKMAN IRREVOCABLE
TRUST; MARLON DEAN
ALESSANDRA TRUST; BRYAN
ROBSON; WAYNE SICZ IRA; WAYNE
SICZ ROTH IRA; THE CAROL W.
SMITH REVOCABLE TRUST; THOMAS
K. SMITH; SURAJ VASANTH; CATHAY
C. WANG; LISA DAWN WANG; DARCY
J. WEISSENBORN; THE MARGARET 5S.
WEISSENBORN REVOCABLE TRUST;
THE STANTON F. WEISSENBORN
IRA; THE STANTON F.
At WEISSENBORN REVOCABLE TRUST;
THE STANTON F. WEISSENBORN
IRREVOCABLE TRUST; THE NATALIE
WOLMAN LIVING TRUST; ALAN
BUDD ZUCKERMAN; JACK WALKER;
STEPHEN KAYE; THE MICHAEL S.
BARISH IRA; AND THE ALEXANDER
PERELBERG IRA,
Real Parties in Interest.
ORDER DENYING PETITION
This original petition for a writ of mandamus challenges a
district court order denying a motion to dismiss.
Real parties in interest (RPIs) are minority shareholders in
AeroGrow International. Inc. AeroGrow recently merged with SMG
Supreme Court
OF
NevaDA
{O} 19474 cfg
Growing Media, Inc. RPls filed a class action against petitioners, alleging
breach of fiduciary duty and aiding and abetting breaches of fiduciary duty.
Petitioners moved to dismiss RPIs’ amended complaint, arguing that the
dissenters rights provision in NRS 92A.380 made appraisal RPIs’ exclusive
remedy, precluding their complaint, and that the complaint failed to state
a claim. The district court denied petitioners’ motion to dismiss,
determining that RPIs adequately pleaded their claims. Petitioners
reasserted their arguments in this writ petition, asserting that the district
court erred by denying their motion to dismiss.
Petitioners have an adequate remedy at law
Petitioners argue that writ relief is warranted because they
ft lack a plain, speedy, or adequate remedy at law. We disagree.
Whether to grant a mandamus relief petition is within this
court’s sole discretion. Smith v. Eighth Judicial Dist. Court. 107 Nev. 674,
is: H77, 818 P.2d 849, 851 GS91). A writ of mandamus may issue to compel the
if performance of an act that the law requires or to control a district court’s
arbitrary or capricious exercise ot discretion. NRS 34.160: Int'l Game Tech.,
Inc. v. Second Judicial Dist. Court, 124 Nev. 198, 197, 179 P.3d 556, 558
(2008). This extraordinary relief may be available if a petitioner does not
have a plain, speedy, and adequate remedy otherwise. NRS 34.170.
Generally, this court declines to consider writ petitions challenging
interlocutory orders denying motions to dismiss because an appeal from a
final judgment is an adequate and speedy legal remedy. Int? Game Tech..,
124 Nev. at 197, 179 P.8d at 558-59. Moreover, this court has made plain
that it will only entertain such petitions when “no factual dispute exists and
the district court is obligated to dismiss an action pursuant to clear
Supreme Court
OF
Nevaba
(O01 1987A eGR
authority under a statute or rule....” Int’l Game Tech., 124 Nev. at 197-
98, 179 P.3d at 559.
We determine that writ relief is not warranted because
petitioners have an adequate remedy through an appeal and this matter
involves factual disputes better left for the district court. Petitioners may
yet succeed by summary judgment after discovery has completed or at trial,
and if they are unsuccessful on those fronts, they may appeal to this court.
Additionally, the record demonstrates that trial is set for October 25, 2022.
This expedited timeline further counsels our denial of this petition. Put
simply, extraordinary relief is not warranted when the ordinary course of
litigation will suffice.
There are factual disputes between the parties
Petitioners also argue that RPIs’ complaint did not adequately
allege either basis set forth in NRS 92A.380(2), that the district court erred
in concluding that two of the petitioners owed fiduciary duties to the
minority stockholders, and that the district court’s conclusions imposing
these duties on these parties were unsupported by the record.
Problematically, the parties vigorously contest the facts alleged
in the complaint and the district court is best positioned to resolve this
dispute. Petitioners have thus failed to show the absence of a factual
dispute and that writ relief was appropriate on this basis.
There are no important tissues of law that need clarification
Petitioners further contend that the petition will clarify when
“stockholders may—-and may not---assert certain claims challenging the
price of a merger outside the exclusive appraisal process set forth in NRS
Chapter 92A.”
SuPREME Court
OF
Nevaba
(0) 1947 aegSBpo
While this court may consider writ petitions where “an
important issue of iaw needs clarification and considerations of sound
judicial economy and administration militate in favor of granting the
petition,” Intl Game Tech., 124 Nev. at 197-98, 179 P.3d at 559, this writ
petition does not present any issues of law needing clarification. This court
has clarified when dissenting shareholders fall under NRS 92A.380(2)’s
exceptions. Cohen v. Mirage Resorts, Inc., 119 Nev. 1, 62 P.3d 720 (2003).
And so, we conclude that writ relief is unwarranted on this ground as well.
Accordingly, we
ORDER the petition DENIED.
pA, A Laat. , od.
Hardesty
Stiglich
Herndon
cc: Hon. Mark R. Denton, District Judge
Jones Day/Atlanta
Pisanelhi Bice, PLLC
Brownstein Hyatt Farber Schreck, LLP/Las Vegas
Jones Day/Columbus
Bryan Cave Leighton Paisner LLP/Denver
Marquis Aurbach Coffing
Muehlbauer Law Office, Ltd.
Wolf Popper LLP
Kemp Jones, LLP
Bottini & Bottint, Inc.
Supreme Court
OF
NEVADA
(0) 19474 aie
Snnons Hall Johnston PC/Reno
Eighth District Court Clerk
SupPREME COURT
OF
Nevapa
(O) 19974 eSB