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Shoppes of Mount Pleasant LLC v. J.M.L., Inc.

Court of Common Pleas of Delaware, New Castle

March 18, 2019

SHOPPES OF MOUNT PLEASANT, LLC, a Delaware Limited Liability Company Plaintiff,
J.M.L., INC, a Delaware Corporation and LAWRENCE GILLEN, an individual Defendants.

          Submitted: January 31, 2019

          Josiah R. Wolcott, Esquire Connolly Gallagher, LLP Attorney for Plaintiff

          Donald L. Gouge, Jr., Esquire Donald L. Gouge, Jr., LLC Attorney for Defendants



         The plaintiff, Shoppes of Mount Pleasant, LLC[1] (hereinafter "Plaintiff), moves this Court to order costs and attorney's fees against the defendants, J.M.L., Inc. and Lawrence Gillen (hereinafter "Defendants"). This case, which originated as a commercial breach of contract action, has a convoluted history dating back to May 29, 2014, which began in this Court and involved numerous appeals. Plaintiff seeks attorney's fees and costs that accrued as a result of defending the proceedings following trial. Defendants oppose the request alleging the request is untimely and unreasonable, as it comes 100 days after the issuance of the final order of Superior Court dated April 30, 2018.[2]

         On October 12, 2018, a motion hearing was held and the issues regarding timeliness and reasonableness were presented to the Court. As to costs, the Court found that Superior Court Civil Rule 54(d)[3] which proscribes a 10-day deadline to request costs was applicable in the absence of a comparable rule in the Court of Common Pleas, [4] rendering Plaintiffs request for costs untimely.[5]At the conclusion of the hearing, the Court took the matter under advisement and requested supplemental briefing regarding whether the request for attorney's fees was timely made and whether the amount requested was reasonable, with emphasis on the time spent briefing the Delaware Supreme Court on appeal. This is the Final Decision and Order of the Court on Shoppes of Mount Pleasant, LLC's Motion for Attorney's Fees and Costs.


         On May 29, 2018, Plaintiff commenced this action which resulted in a favorable decision granting Plaintiff a judgment in the amount of $21, 984.80 plus post-judgment interest at 6% per annum until paid in full, for which Defendants were jointly and severally liable. The May 11, 2015, trial opinion ordered Plaintiff to submit an affidavit in support of attorney's fees within thirty days, with which Plaintiff complied. In an order dated August 4, 2015, this Court granted Plaintiff attorney's fees in the amount of $20, 132.00 and costs in the amount of $1, 933.74. Subsequent to trial, the following events took place: 1) October 14, 2015, Defendants appealed the trial order dated May 11, 2015, to Superior Court;[6] 2) Defendants appealed the Superior Court decision to the Delaware Supreme Court on or about November 11, 2016;[7] 3) During Defendants' appeal to the Delaware Supreme Court, Plaintiff began to execute on the judgments, which resulted in Plaintiff filing suit against Defendants in the Court of Chancery;[8] 4) March 15, 2017, Defendants filed a Motion to Stay and a Motion to Vacate;[9] 5) May 9, 2017, Defendants filed a Motion to Vacate Judgment;[10] 6) September 13, 2017, Defendants appealed the denial of the Motion to Vacate to the Superior Court;[11] 7) August 7, 2018, Plaintiff filed the instant Motion for Attorney's Fees and Costs whereby Plaintiff requests $36, 372.00 in attorney's fees and $1, 821.81 in costs.[12]The request comes 100 days after the final decision of Superior Court dated April 30, 2018. On October 12, 2018, a hearing on the instant Motion was held.[13] On October 22, 2018, Defendants filed a supplemental brief as ordered by the Court. On November 5, 2018, Plaintiff filed a supplemental brief in response. On December 14, 2018, Plaintiffs counsel submitted another supplemental affidavit for an additional $5, 908.00 in attorney's fees.[14] The requested attorney's fees now total $42, 280.00. On January 7, 2019, Defendants filed a response in opposition to the supplemental request for $5, 908.00 in attorney's fees. Defendants' response indicated that there were filing issues and miscommunications between the parties that needed to be resolved. On January 31, 2019, Defendants confirmed that the parties had conferred and Defendants were relying on their previous submission in opposition.


         Plaintiff argues that the request for attorney's fees and costs is timely and reasonable. As to timeliness, Plaintiff argues that the Court of Common Pleas Civil Rule 54(d) does not provide for a deadline for requesting costs in contrast to its Superior Court counterpart, therefore, application is timely. Plaintiff also contends that it was reasonable to wait to calculate the fees and costs for the entire litigation, rather than submit requests in a piecemeal manner. Alternatively, Plaintiff argues that the Court should find that Plaintiffs failure to file the instant Motion sooner amounts to excusable neglect. Plaintiff also opines that Defendants have not been prejudiced by the delay in filing. As to reasonableness of the fee amount, Plaintiff defers to the factors considered by the Court in ordering attorney's fees after trial. Plaintiff further contends that the fees resulting from the briefs to the Delaware Supreme Court were reasonable as the briefs "vastly differe[d]"[15]from the previous briefs submitted to Superior Court.

         In opposing the Motion for Attorney's Fees and Costs, Defendants argue that the Motion comes too late. Defendants contend that there were no prior requests for attorney's fees after the original appeal to Superior Court or subsequent proceedings and this Motion comes more than 90 days after the latest decision from Superior Court dated April 30, 2018. Defendants argue that an award of attorney's fees would essentially allow for an unlimited amount of time to file for such fees following a final decision, aggravating the notion of reaching finality in a case. As to costs, Defendants propose for the Court to adopt Superior Court Civil Rule 54(d)'s 10-day limit pertaining to costs. As to attorney's fees, Defendants argue the Court should follow either Federal Rule of Civil Procedure 54(d)(2)(B) which allows 14 days to file a request for fees or apply the 30-day limit required for appeals. Alternatively, Defendants argue that if fees and costs are rewarded to Plaintiff, the same analysis used in the August 4, 2015 decision pertaining to fees and costs should be applied here, thus reducing the requested award. Defendants also defer to the nine points of consideration set forth in the May 11, 2015 trial opinion to decide whether the time spent by Plaintiffs counsel on briefs to the Delaware Supreme Court was reasonable. Lastly, Defendants argue that the fees and costs associated with the action filed in the Court of Chancery should not be considered.


         Request for Costs is Untimely

         Defendants are correct in asserting that the time to bring a motion for costs and attorney's fees is not unlimited. In accordance with the record of the October 12, 2018 Motion hearing, the Court is inclined to adopt Superior Court Civil Rule 54(d) which sets forth a 10-day deadline for requesting costs where the Court of Common Pleas Civil Rule 54(d) is silent as to timing. Since the request for costs comes 100 days after the April 30, 2018 order from Superior Court, the request for costs is denied.

         Request for Attorney's Fees is Timely Under the Circumstances

         Whether this Court retains jurisdiction to resolve the request for attorney's fees which were incurred as a result of various appeals is undisputed by the parties.[16] Indeed this Court does retain such jurisdiction. "Where a plaintiff wins its case . . . and is awarded attorney's fees pursuant to a contract between the parties, and the defendant appeals the decision ... and the trial court's award is affirmed ... the Court does have jurisdiction and may properly award attorney's fees for the appeal."[17] Defendants aver that such jurisdiction is not for an unlimited period of time.

         There is no rule in the Court of Common Pleas or Superior Court prescribing a time for requesting attorney's fees. Therefore, the Court looks to other Delaware courts for guidance. In a recent opinion cited by Plaintiff, the Delaware Court of Chancery grappled with determining timeliness of service of process where the court lacked a rule requiring a set time for effecting service.[18] Chancery Court determined that the court would look at whether the timing was the result of dilatory conduct, whether the opposing party received notice of the suit, and whether the untimeliness resulted in prejudice against the opposing party.[19] Applying such a reasonableness standard where a balancing of factors is weighed, this Court finds that Plaintiffs request for attorney's fees is timely. While under different circumstances filing beyond 90 days could be found unreasonable, in the instant matter it is not. Defendants extended litigation over 4 years and involved numerous courts. It was Defendants' behavior throughout the course of litigation that caused Plaintiff to incur the escalating attorney's fees. Further, there was no resulting prejudice to Defendants caused by the late filing.[20] For these reasons, the Court finds that Plaintiff is entitled to fees.

         Request for Attorney's Fees is Reasonable

         As to reasonableness of the fees, this decision incorporates the legal standard applied in the decision on fees dated August 4, 2015, [21] wherein this Court applied the reasonableness factors of Rule 1.5 of The Delaware Lawyers' Rules of Professional Conduct. Pursuant to Rule 1.5, the Court will consider the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2)the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other ...

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