POPE INVESTMENTS LLC, POPE INVESTMENTS II, LLC and CHINA ALARM HOLDINGS ACQUISITION LLC, Defendants Below, Appellants,
THE MARILYN ABRAMS LIVING TRUST, Plaintiff Below, Appellee.
Submitted: June 22, 2018
Below: Court of Chancery of the State of Delaware C.A. No.
STRINE, Chief Justice; VAUGHN and TRAYNOR, Justices.
STRINE, JR. CHIEF JUSTICE
December 15, 2017, this Court affirmed the judgment of the
Court of Chancery on the basis of and for the reasons
assigned in its post-trial ruling dated March 21, 2017, its
final order and judgment dated May 9, 2017, and its order
awarding attorneys' fees and expenses dated May 26,
2017. The Clerk of this Court issued the mandate
and closed the case on January 3, 2018. On June 22, 2018, the
Marilyn Abrams Living Trust (the "Trust") filed a
motion for the attorneys' fees it incurred on appeal.
the mandate in this appeal issued months ago, the Court has
no jurisdiction to act on or consider the merits of the
Trust's motion for attorneys' fees.To the extent the
Trust's motion implicitly requests the Court to recall
the mandate, that request is denied. In any event, this
request for attorneys' fees comes far too late. In the
original appeal in this case, the Court affirmed the Court of
Chancery's decision and did not include a provision
ordering an award of fees. We did so intentionally because no
request for fees had been made.
appropriate time for litigants to make a motion for
attorneys' fees before a trial court is before the trial
court enters a final judgment. Similarly, the appropriate time
for a litigant to make a motion before this Court under Rule
20(f) is in the course of briefing before this
Court. It is inefficient for parties to raise
collateral post-judgment proceedings regarding attorneys'
THEREFORE, IT IS ORDERED that the Marilyn Abrams Living
Trust's motion for the award of attorneys' fees, to
the extent that it requests the mandate on appeal be
recalled, is DENIED.
 Pope Investments LLC v. Marilyn
Abrams Living Trust, 177 A.3d 69, 2017 WL 6398168 (Del.
 Atlas Sanitation Co. v.
State, 595 A.2d 380 (Del. 1991).
 See Biolase, Inc. v. Oracle
Partners, L.P., 97 A.3d 1029, 1036 (Del. 2014) ("It
is common and efficient for parties to argue their merits
arguments in their trial briefs and then conclude their brief
by presenting an argument why, if they win on the merits,
they are entitled to attorneys' fees." (first citing
Branson v. Branson, 2011 WL 1135024, at *1 (Del. Ch.
Mar. 1, 2011) ("The Defendants did not assert a claim
for attorney's fees in the Pretrial Order, and they did
not seek any award of attorney's fees in their post-trial
briefing. Moreover, they did nothing else that might have
operated to keep alive any claim for attorney's fees. In
short, their request was not properly preserved and is now
untimely."); and then citing Kosachuk v.
Harper, 2002 WL 1767542, at *8 n.51 (Del. Ch. July 25,
2002) (observing that where a party had sought an award of
attorney's fees in the Pretrial order but did not pursue
the award during trial or in the post-trial brief, the claim
for an award had been waived); and then citing Donald J.
Wolfe & Michael A. Pittenger, Corporate and Commercial
Practice in the Delaware Court of Chancery § 13.03
(2013) (explaining that the Court of Chancery ordinarily will
not award attorney's fees after a trial "if a
request for a fee award has not been properly
See Scion Breckenridge Managing
Member, LLC v. ASB Allegiance Real Estate Fund, 68 A.3d
665, 688 (Del. 2013) ("'Although we have authority
under Supreme Court Rule 20(f) to award attorneys' fees
in the case of a frivolous appeal, we will not consider an
informal request in the absence of a formal motion made and
presented in accordance with the Supreme Court
Rules.'" (quoting Gatz Props., LLC v. ...