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Phillips v. Wilks, Lukoff & Bracegirdle, LLC

Supreme Court of Delaware

October 1, 2014

ERIC PHILLIPS and WICKS' END, INC., Defendants/Counterclaim Plaintiffs Below-Appellants,
v.
WILKS, LUKOFF & BRACEGIRDLE, LLC, AND THAD BRACEGIRDLE, Plaintiff Below and Counterclaim Defendant Below-Appellees.

Submitted: July 10, 2014

Corrected: October 7, 2014

Court Below Superior Court of the State of Delaware in and for New Castle County C.A. No. N11C10194

Before STRINE, Chief Justice, HOLLAND, and RIDGELY, Justices.

ORDER

Henry duPont Ridgely Justice

On this 1st day of October 2014, it appears to the Court that:

(1) Defendants-Below/Counterclaim-Plaintiffs/Appellants Eric Phillips ("Phillips") and Wicks' End Inc. ("Wicks' End") (collectively, the "Appellants") appeal from Superior Court orders excluding the expert testimony of their liability witness and granting summary judgment to Plaintiff-Below/Counterclaim-Defendant/Appellees Wilks, Lukoff & Bracegirdle, LLC ("WLB"), and Thad Bracegirdle ("Bracegirdle") (collectively, the "Appellees"). The Appellants raise four claims on appeal. First, they contend that the trial court erred by excluding the expert testimony of their malpractice liability witness. Second, they argue that the court erred by granting summary judgment to the Appellees on Appellants' malpractice counterclaim. Third, the Appellants claim that the court erred in awarding the Appellees summary judgment on their breach of contract claim. Finally, the Appellants claim that the court abused its discretion by refusing to allow them to take a fact deposition beyond the discovery cutoff date. We find no merit to the Appellants' appeal and affirm.

(2) In October 2010, Phillips engaged the Appellees for the purpose of representing him in on-going Court of Chancery litigation. Phillips is the owner and operator of Wicks' End, Inc. The Appellees sent Phillips an engagement letter which set forth the costs and fees for their legal services. Specifically, the engagement letter provided that (1) fees for services rendered were based on the actual time spent representing the client, (2) the amount of attorney's fees could not be predicted with reasonable certainty due to the nature of the representation, and (3) payment of the firm's fees and costs was not contingent on the on the ultimate outcome of the case. Bracegirdle, as agent of WLB, was assigned to act as the Appellants' primary legal representative.

(3) In 2011, the Appellees filed a complaint against the Appellants alleging breach of contract, quantum meruit, and breach of implied contract. In their answer to the complaint, the Appellants acknowledged that the engagement letter was a contract but denied owing the amount requested by Appellees. The Appellants also filed a counter-claim alleging negligent representation and breach of contract against both WLB and Bracegirdle.

(4)In March 2012, the trial court issued a scheduling order that established deadlines and informed both parties that "failure to meet those deadlines, absent good cause shown, likely will result in the court refusing to allow extensions regardless of consequences."[1] Pursuant to the scheduling order, all discovery was to be completed by June 1, 2013. In February 2013, the trial court modified the scheduling order by extending dates for expert discovery, but specifically stated that "[a]ll other dates set forth . . . shall remain in place."[2]

(5) In May 2013, the trial court denied Phillips' motion to extend the fact discovery deadline. But, the trial court did permit WLB to take Phillips' deposition after the June 1st deadline. In July 2013, the court denied Phillips' motion for reconsideration of its May order. In August 2013, the Appellees filed a motion for summary judgment on their breach of contract claim. After hearing arguments on the motion, the trial court awarded summary judgment to the Appellees on that claim.

(6) The Appellees also filed a motion in limine to exclude the expert testimony of New Jersey attorney William Michelson ("Michelson"). In conjunction with the motion to exclude Michelson, the Appellees filed a motion for summary judgment on the Appellants' malpractice counterclaim citing the Appellants' failure to obtain a qualified standard of care expert. The court granted the Appellees' motion to exclude Michelson's testimony. Thereafter, the trial court awarded summary judgment to the Appellees on the malpractice claim, citing the Appellants' failure to obtain a proper Delaware standard of care expert. This appeal followed.

(7) We review a trial court's decision to admit or exclude expert testimony as a finding of fact for abuse of discretion.[3] "This Court reviews de novo the Superior Court's grant or denial of summary judgment 'to determine whether, viewing the facts in the light most favorable to the nonmoving party, the moving party has demonstrated that there are no material issues of fact in dispute and that the moving party is entitled to judgment as a matter of law.'"[4]

(8) In Brett v. Berkowitz, we held that an expert witness in a legal malpractice action must "be familiar with the applicable standard of care in the locality where the alleged malpractice occurred."[5] "Although competency requirements are not designed to preclude all testimony from out-of-state experts, expert witnesses must be 'well acquainted or thoroughly conversant' with the degree of skill ordinarily employed in the local community."[6] Further, "[i]n cases where an expert is familiar with a different locality where the standard of care is identical to that observed in the relevant Delaware locality, another expert may provide bridging testimony to reconcile the two standards."[7] In the absence of any showing of such familiarity, and without bridging testimony to harmonize the standard of care, the expert testimony must be excluded.[8] The Appellants first argue that the trial court erred by excluding the expert testimony of Michelson. They contend that Michelson sufficiently familiarized ...


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