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ASPIC Engineering & Construction Co. v. ECC Centcom Constructors, LLC

Superior Court of Delaware

January 3, 2018

ASPIC ENGINEERING AND CONSTRUCTION COMPANY, Judgment Creditor,
v.
ECC CENTCOM CONSTRUCTORS, LLC and ECC INTERNATIONAL, LLC, Judgment Debtors.

          Submitted: October 6, 2017

         Upon ASPIC Engineering and Construction Company's "Appeal from Commissioner's Finding of Fact and Recommendations": DENIED

          Vivian A. Houghton, Esq.

          Philip Trainer, Jr., Esq.

          Hayley M. Lenahan, Esq.

          ORDER

          Jan R. Jurden, President Judge

         AND NOW TO WIT, this 3rd day of January, 2018, the Court having duly considered ASPIC Engineering and Construction Company's ("ASPIC") "Appeal from Commissioner's Findings of Fact and Recommendations, " which constitutes a Motion for Reconsideration of Commissioner's Order pursuant to Super. Ct. Civ. R. 132(a)(3); and ECC Centcom Constructors, LLC and ECC International, LLC's (collectively the "Defendants") response thereto, IT APPEARS THAT:

          1. On September 25, 2017, a Superior Court Commissioner granted the Defendants' Motion for Attorneys' Fees[1] and ordered ASPIC to pay $16, 149.75 in attorneys' fees and costs to the Defendants.[2]

         2. On October 6, 2017, ASPIC filed an "Appeal from Commissioner's Finding of Fact and Recommendations."[3] Pursuant to Rule 132(a)(3)(ii), ASPIC's filing should have been entitled, "Motion for Reconsideration of a Commissioner's Order." Pursuant to Super. Ct. Civ. R. 132(a)(3)(H) and (iv), a judge may reconsider a Commissioner's determination on a non-dispositive issue "only where it has been shown on the record that the Commissioner's Order is based upon findings of fact that are clearly erroneous, or is contrary to law, or is an abuse of discretion."

         3. Delaware courts have awarded attorneys' fees and costs under the bad faith exception to the American Rule[4] "when parties have unnecessarily prolonged or delayed litigation or knowingly asserted frivolous claims, "[5] and have broad discretion in fixing the amount of attorneys' fees to be awarded.[6]

         4. Although ASPIC stipulated that: (i) the judgment at issue was entered in error by the California State Court, and (ii) the judgment at issue should be vacated by the California Federal Court, [7] ASPIC nonetheless sought to enforce that same judgment in Delaware Superior Court. The Affidavit of Counsel[8] submitted with ASPIC's Application to Record a Foreign Judgment in Delaware[9] on May 24, 2017 does not mention that ASPIC stipulated to the vacatur of the judgment in California because it was entered erroneously, or that an unopposed motion to vacate the judgment was pending in California.[10] Rather, counsel for ASPIC averred and represented to this Court that "the Judgment is valid, enforceable and unsatisfied."[11]

         5. To be clear, ASPIC asked this Court to enforce a judgment after, and despite the fact that, it had taken the position in California State Court and California Federal Court that the judgment was entered in error and should be vacated, [12] and when ASPIC knew an unopposed motion to vacate that judgment was pending decision by the California Federal Court.[13]

         6. One day after ASPIC filed its Application to Record a Foreign Judgment in Delaware in this Court, the California Federal Court vacated the judgment.[14]That same day, the Defendants' counsel sent an email to ASPIC, and another email on May 31, 2017, informing ASPIC that the foreign judgment had been vacated and noting that ASPIC's statements made in its May 24, 2017 Affidavit of Counsel filed with this Court were not consistent with the California Federal Court's order vacating the judgment.[15] ASPIC's counsel did not respond to those emails.[16]

         7. On July 18, 2017, the California Federal Court then vacated the underlying arbitration award.[17] Thus, as of July 18, 2017, ASPIC had no judgment and no arbitration award. Despite this, ASPIC did not ...


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