Submitted: February 20, 2018
L. Gouge, Jr., Esq. Attorney for Plaintiffs
Talley-Siders Pro se Defendant
DECISION ON ATTORNEY'S FEES
K. Welch, Judge
September 5, 2017, the Court issued its Memorandum
Opinion & Order in this matter ("Substantive
Opinion"), finding for Plaintiff in the amount of $17,
236.60. The Court's Substantive Opinion also
directed Mr. Gouge to file a petition for attorney's fees
as the contract that both parties signed allowed the awarding
of attorney's fees. Mr. Gouge was allowed fifteen (15)
days to submit the affidavit and Defendant was allowed
fifteen (15) days to respond.
September 18, 2017, Mr. Gouge submitted his affidavit to the
Court requesting $13, 800.00 in attorney's fees for work
performed in this case from December 9, 2015 to September 18,
2017, and $1, 169.42 in litigation costs for work performed
from January 22, 2016 to August 4, 2017. On September 19,
2017, while Defendant was contesting the fees and costs, and
before this Court issued a decision on attorney's fees,
Defendant appealed this Court's Substantive Opinion to
the Delaware Superior Court.
October 17, 2017, Defendant responded to Mr. Gouge's
request for attorney's fees, disputing certain billing
calculations and deeming the overall amount excessive given
its proximity to the damage award amount. On October 23,
2017, Plaintiffs filed a reply to Defendant's
response. Mr. Gouge disputes the majority of
Defendant's contentions; however, he failed to properly
credit Defendant $724.50 when calculating his attorney's
fees. On January 3, 2018, the Delaware Superior
Court dismissed Defendant's appeal without prejudice, as
it was premature. And on February 20, 2018, the Superior
Court returned the appropriate documentation to this Court.
This is the Court's decision on attorney's fees and
litigation costs in this case.
Court recently discussed the law surrounding attorney's
fees and litigation costs:
In Delaware, the general rule-the venerable "American
Rule"-is that each party is responsible for its own
costs and attorney's fees unless there is a contractual
or statutory basis for the award of such fees. When such an
appropriate basis exists- as in the present case-the United
States Supreme Court has held that "even for work
performed on the successful claim, the court 'should
award only that amount of fees that is reasonable in relation
to the results obtained.' " The determination of
whether attorney's fees requested in a particular case
are reasonable is within the discretion of the Court.
Delaware precedent requires the Court to consider the
(a) The time and labor required, the novelty and difficulty
of the questions involved, and the skill requisite to perform
the legal service properly; (b) The likelihood, if apparent
to the client, that the substance of the particular
employment will preclude other employment by the lawyer; (c)
The fees customarily charged in the locality for similar
legal services; (d) The amount involved and the results
obtained; (e) The time limitations imposed by the client or
by the circumstances; (f) The nature and length of the
professional relationship with the client; (g) The
experience, reputation, and ability of the lawyer or lawyers
to perform the services; (h) Whether the fee is fixed or
contingent; (i) The employer's ability to pay; and (j)
Whether claimant's counsel has received or expects to
receive compensation from any other source.
case sub judice, Mr. Gouge has a contractual right
to collect attorney's fees and litigation costs. The
Agreement of Sale states, "[i]n the event a dispute
arises under this Agreement between Seller and Buyer
resulting in any litigation, and/or arbitration, Buyer or
Seller, whichever is unsuccessful, shall also be liable for
the other [party's] court costs and attorney's
fees." Concurrently, 10 Del. C. §
5101 and Court of Common Pleas Civil Rule 54 grant
Plaintiffs the right to seek litigation costs.
Gouge has requested $13, 800.00 in attorney's fees for
40.0 hours billed at $345.00 per hour. Defendant has
objected to Mr. Gouge's request on the following
grounds. First, she argues that she was
double-billed in the amount of $724.50 for attorney's
fees related to the June 10, 2016 motion
hearing. Second, she claims that all
attorney's fees incurred prior to June 10, 2016 for
motions work have been paid and/or resolved. Third, she
argues she should not be charged for four sheriff subpoenas
and telephone calls to Plaintiffs' key witness because of
her unavailability. Fourth, Defendant argues that $13,
800.00 for attorney fees is "terribly excessive" in
comparison to the $17, 236.60 awarded in this
case. Mr. Gouge disagrees with the majority of
Defendant's assertions; however, he admits that he
double-billed Defendant related to the June 10, 2016 motion
Court will address Defendant's contentions in turn.
First, the Court agrees with both parties that Defendant was
double-billed for work performed in relation to
Defendant's motion for a protective order and
Plaintiffs' motion to compel. On June 14, 2016, Mr. Gouge
filed an affidavit of attorney's fees related to the June
10, 2016 motion hearing. The affidavit stated that Mr. Gouge
sought $724.50 in attorney's fees relating to
Defendant's motion for a protective order and
Plaintiffs' motion to compel. On June 15, 2016, the Court
granted Plaintiffs' request for attorney's fees and
Defendant paid the same on July 6, 2016. Thus, Slip ID
#s: 99524, 99754, 100034, 100035, 100038, and 100042-totaling
$724.50-will be deducted from Mr.
Gouge's request for attorney's fees.
the Court agrees with Defendant that attorney's fees
incurred prior to June 10, 2016 related to motion filing,
preparation, or litigation before this Court have been
satisfied. Defendant has provided sufficient evidence that
she paid the $724.50 in attorney's fees related to the
motions. Likewise, Mr. Gouge specifically states in his June
14, 2016 letter to this Court that he is "not seeking
attorney's fees" for opposing Defendant's motion
to dismiss. Defendant filed her motion to dismiss twice, once
on May 23, 2016 and again on July 20, 2016. Based on Mr.
Gouge's admission, he has waived the right to collect
attorney's fees for his time spent representing
Plaintiffs against the first motion to dismiss. Thus, Slip ID
#s: 99949, 100031, 100032, and 100033-totaling
$379.50-will be deducted from Mr.
Gouge's request. Accordingly, regarding Defendant's
second motion to dismiss, Mr. Gouge's August 10, 2016
response is nearly identical to his June 6, 2016 response to
Defendant's first motion to dismiss. Since Defendant
simply refiled her motion to dismiss, the similarity between
Plaintiffs' responses is logical. However, the Court will
not award $310.50 in fees for a duplicative
response. Thus, Slip ID #s: 100959 and 100864 will
be deducted from Mr. Gouge's request.
the Court does not agree with Defendant that Mr. Gouge is
precluded from collecting attorney's fees related to
telephonic contact with Plaintiffs' primary witness, Real
Estate Broker Stefanie Morris ("Ms. Morris").
Specifically, Defendant argues that Plaintiffs cannot charge
fees when Ms. Morris' deposition was not utilized by
Plaintiffs at trial and Ms. Morris was prevented from
appearing for trial because of mandatory employment training.
Contrary to Defendant's assertion, Plaintiffs did utilize
Ms. Morris' deposition at trial as her employment
precluded her attendance. Further, Defendant not only agreed
at trial that she voluntarily declined to participate in
person, or by telephone, at said deposition, but-despite the
opportunity-Defendant did not object to Ms. Morris'
deposition testimony being submitted into evidence.
Therefore, the Court will not deduct attorney's fees
related to Ms. Morris.
the Court is not persuaded by Defendant's argument that
the Court should restrict Mr. Gouge's attorney's fees
to a less "excessive" figure in light of its
proximity to the award of damages. This Court has previously
rejected this argument. Therefore, the Court declines to
adjust Mr. Gouge's request solely for this reason.
in reviewing Plaintiffs' requested attorney's fees,
the Court finds that Slip ID # 99796-totaling
$207.00-is duplicative of Slip ID # 99795.
Therefore, the former will be deducted from Mr. Gouge's
request. The Court also notes that Slip ID # 99232-totaling
$69.00- includes time spent drafting a
letter to the Justice of the Peace Court regarding a Form 50
agent. As Mr. Gouge has not provided the Court with a reason
for this fee, and this case does not concern an appeal, the
Court will deduct this fee from Mr. Gouge's request. The
Court will also deduct one hour-totaling
$345.00-from Slip ID # 105722, which charged
for a four-hour trial, as the trial lasted less than three
hours. In addition, the Court will deduct 0.4-totaling
$138.00-from Slip ID # 106251 since Mr.
Gouge did not support his affidavit with legal research.
Granted, he directed the Court's attention to a Delaware
Superior Court opinion as general guidance; however, he was
the attorney of record. The Court does not believe such a
search warrants billing nearly a quarter of an hour. The
remaining calculations strike the Court as correctly
to this Court's fair and reasonable review of
attorney's fees, the Court finds as follows.
Time & Novelty Prong
case only concerns the breach of an agreement of sale,
however, its shelf life in this Court has exceeded two (2)
years. In addition, the subject matter has been
fact-intensive and delved into issues concerning corporate
advertising. Further, Defendant was intensely focused on
claims and affirmative defenses that-while
unavailing-required time and effort to refute properly. The
docket indicates that four motions were involved, and
Plaintiffs were required to defend against a Motion to
Dismiss on two separate occasions. Trial was rescheduled four
times. On two of those occasions, trial was postponed because
Plaintiffs' main witness, Ms. Morris, was unavailable due
to her wedding and medical issues.