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Mayhorn v. Talley-Siders

Court of Common Pleas of Delaware, New Castle

April 2, 2018


          Submitted: February 20, 2018

          Donald L. Gouge, Jr., Esq. Attorney for Plaintiffs

          Sinina Talley-Siders Pro se Defendant


          John K. Welch, Judge


         On 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.[1] 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.

         On 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.[2] 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.

         On 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.[3] On October 23, 2017, Plaintiffs filed a reply to Defendant's response.[4] Mr. Gouge disputes the majority of Defendant's contentions; however, he failed to properly credit Defendant $724.50 when calculating his attorney's fees.[5] On January 3, 2018, the Delaware Superior Court dismissed Defendant's appeal without prejudice, as it was premature.[6] 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.


         This 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 following factors:
(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.[7]

         In the 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."[8] Concurrently, 10 Del. C. § 5101 and Court of Common Pleas Civil Rule 54 grant Plaintiffs the right to seek litigation costs.[9]

         A. Attorney's Fees

         Mr. Gouge has requested $13, 800.00 in attorney's fees for 40.0 hours billed at $345.00 per hour.[10] Defendant has objected to Mr. Gouge's request on the following grounds.[11] 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.[12] Second, she claims that all attorney's fees incurred prior to June 10, 2016 for motions work have been paid and/or resolved.[13] Third, she argues she should not be charged for four sheriff subpoenas and telephone calls to Plaintiffs' key witness because of her unavailability.[14] Fourth, Defendant argues that $13, 800.00 for attorney fees is "terribly excessive" in comparison to the $17, 236.60 awarded in this case.[15] 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 hearing.[16]

         The 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.[17] 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.

         Second, 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.[18] Thus, Slip ID #s: 100959 and 100864 will be deducted from Mr. Gouge's request.[19]

         Third, 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.

         Fourth, 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.[20] Therefore, the Court declines to adjust Mr. Gouge's request solely for this reason.

         Finally, 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 determined.

         Turning to this Court's fair and reasonable review of attorney's fees, the Court finds as follows.

         1. Time & Novelty Prong

         This case only concerns the breach of an agreement of sale, however, its shelf life in this Court has exceeded two (2) years.[21] 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.

         2.Employment ...

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