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Commonwealth Land Title Insurance Co. v. Funk

Superior Court of Delaware, New Castle

June 17, 2015

COMMONWEALTH LAND TITLE INSURANCE COMPANY, a Florida Corporation, Plaintiff,
v.
VANCE A. FUNK, IV and THE LAW OFFICES OF VANCE A. FUNK, a Delaware Professional Association, Defendants.

Submitted: May 12, 2015

Upon Defendants' Renewed Motion to Compel and for Sanctions,

Bradley P. Lehman, Esquire, Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy, P.C., Wilmington, Delaware, Phillip A. Magen, Esquire, (pro hac vice), Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy, P.C., Philadelphia, Pennsylvania Attorneys for Plaintiff.

Jeffrey M. Weiner, Esquire, Wilmington, Delaware, Attorney for Defendants.

MEMORANDUM OPINION

PAUL R. WALLACE, JUDGE

I. INTRODUCTION

Before the Court is the Renewed Motion to Compel and for Sanctions of Defendants, Vance A. Funk, IV and the Law Offices of Vance A. Funk (collectively, "Funk" or "Funk Defendants"), heard on April 27, 2015. The Funk Defendants seek to compel Plaintiff Commonwealth Land Title Insurance Company ("Commonwealth") to produce email communications between Commonwealth and counsel it retained for its insureds, Alessio and Nancy Baffone (collectively, the "Baffones"). Commonwealth asserts the emails are protected by attorney-client privilege and are therefore not discoverable. For the reasons set forth more fully below, the Funk Defendants' Motion to Compel is DENIED.

II. FACTUAL AND PROCEDURAL BACKGROUND[1]

This matter involves a claim for contractual indemnification arising out of a property sale in which the Funk Defendants served as the closing agent. Part of the closing required the Funk Defendants to ensure the Baffones had a priority mortgage on the property. When a dispute arose over which mortgage had priority-the Baffones' or the property sellers' (Angelo and Mary Galantino – the "Galantinos")-litigation soon followed. The matter was heard here and ultimately appealed to the Delaware Supreme Court. That Court found that, as a matter of law, the Galantinos' mortgage-as a purchase money mortgage-had priority over the Baffones' mortgage.

Commonwealth retained James F. Harker, Esquire, of Cohen Seglias Pallas Greenhall & Furman PC ("Cohen Seglias") to represent the Baffones' interests in the Supreme Court appeal. During the appeal and on the remanded proceedings in this Court, Mr. Harker exchanged certain email communications with Nate Tincher, Esquire, at Commonwealth. Some of those communications attached email chains including communications with the Galantinos' counsel, David E. Matlusky, Esquire.

As part of this indemnification claim, Commonwealth seeks damages for both the purchase money for the competing mortgage and for the attorneys' fees incurred in the underlying litigation and appeal. The Funk Defendants propounded discovery requests on Commonwealth seeking:

(1) Communications between Plaintiff Commonwealth and the Galantinos and their counsel pertaining to the Galantinos' Mortgage referenced in paragraphs 10, 12, 20 and 29 of the Complaint;
(2) [Support for the] $39, 827.00 in attorneys' fees and costs incurred by Plaintiff in connection with the Superior Court Action and the Appeal alleged in paragraph 7(b) of the Complaint.[2]

In response, Commonwealth produced copies of Cohen Seglias invoices for services rendered to Commonwealth. Some of the invoice entries indicate email ...


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