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CPL (Delaware) LLC v. Conley2/15/2002
t the Memorandum Agreement, which has no attorney fees provision, trumped the purchase agreements. We agree.
CPL brought this action asserting mutual mistake in the formation of the Memorandum Agreement. And we resolve this matter based upon a finding that CPL assumed the risk when it entered the Memorandum Agreement. Thus, it is reasonable to conclude that the action was not 'instituted to enforce or interpret' a term of the purchase agreements. Rather, the purpose of the action was to void the subsequent and separate Memorandum Agreement that settled on an EBITDAR figure.
As the Memorandum Agreement did not contain an attorney fees provision and there is no statutory support for an attorney fee award, the trial court did not err in denying fees. For the same reason, neither party is entitled to attorney fees on appeal.
We affirm the grant of summary judgment and the denial of attorney fees.
Seinfeld, J.
We concur:
Bridgewater, J.
Armstrong, C.J.
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