CONSOL'D Beyond Building, Inc. et al.,
Mark Fiss, et al.
Douglas A. Schachtman, Esquire The Schachtman Law Firm Arthur
D. Kuhl, Esquire Reger Rizzo & Darnall, LLP Christopher
H. Lee Cooch and Taylor, P.A.
L. Medinilla Judge
October 7, this Court signed an Order and entered judgment in
favor of Plaintiffs for the unpaid arbitrator's award,
plus costs and expenses, and post-judgment interest. It also
awarded attorney's fees for $920 for Mr. Shachtman and
$2007.50 for Mr. Lee. During oral arguments on
Plaintiffs' Motion to Compel Enforcement of Arbitration
Award, the Court addressed some concerns about why this
matter has derailed, and decided to consider awarding
attorney's fees. Because Mr. Kuhl opposed the request for
attorney's fees on September 13, I offer the following to
clarify the Court's Order to make sure there is no
asked why Beyond Building, Inc. (BBI) failed to pay the
binding arbitration award, Defendant's counsel explained
that his client has no funds. This Court expressed concern
about why BBI entered into-and its counsel drafted-a binding
agreement that it had no intention of honoring. If BBI does
not argue "to invalidate or nullify the arbitration
award" per Mr. Kuhl's letter dated September 13,
then judgment should be entered against BBI.
the Court is troubled that not only were Plaintiffs forced to
file motions in this Court to compel compliance with the
parties' agreement, BBI formally opposed these motions as
well. BBI argues that regardless of what it agreed to
(i.e., that an award would be entered as a judgment
in the Superior Court) or ordered by the arbitrator
(i.e., in favor of Plaintiffs), this Court has no
jurisdiction to enforce the arbitration award, and any relief
that Plaintiffs seek must be litigated in the Court of
Chancery. Query why a party would seek additional litigation
in another court when it has no money. Nevertheless, asked
for the basis of this new position, Defendant's counsel
stated that, "someone in my office told me" and
conceded that he did not reach out to opposing counsel to
address this issue. For the reasons stated on the record,
this Court disagrees with the position of BBI.
Court ordered ADR through the Trial Scheduling Order, and
compliance is expected. The parties elected binding
arbitration as the more appropriate ADR tool. BBI, through
counsel, drafted the arbitration agreement, and agreed that
one of the terms would be to have the judgment entered in
this Court. The case remains pending in this Court. It has
the authority to address a party's failure to comply with
its TSO or its failure to participate in good faith via
motion or sua sponte, under Rule 16. BBI may have
complied with the TSO by going through the motions of the
binding arbitration but either BBI or its attorney, or both,
has failed to participate in good faith under Rule 16. Under
Rule 16, in addition to any other sanction (not requested
here), the Court shall require the party or the
attorney representing the party, or both, to pay the
reasonable expenses incurred, including attorney's fees.
Both Plaintiffs' counsel made their respective requests
for attorney's fees incurred for the preparation and
presentation of their motions.
objects to the award of attorney's fees, arguing in part
that "preparation and presentation of the motions"
was insufficient. This Court disagrees and is satisfied that
the affidavits from each Plaintiff's attorney suffices.
Both have provided documentation specifying the hours spent
on the case, the hourly rate charged, and any other costs or
expenses incurred. Defendant further objects to the award of
attorney's fees, suggesting that they would have been
incurred regardless, where BBI's "response to the
motion . . . simply raised and argued the issue as to if the
Superior Court had jurisdiction over an arbitration award . .
. ."For the reasons already stated, this Court
mandates that the party or the attorney representing the
party, or both, pay the reasonable expenses incurred because
of any noncompliance with this Rule, including attorneys'
fees. BBI and its attorney participated in every aspect of
this litigation, including accepting the terms of an
agreement that it has decided not to honor, and forcing
Plaintiffs to incur unexpected costs of further litigation in
this Court and potentially others. The Court finds it
appropriate to award attorneys' fees for $920 to Mr.
Shachtman and $2007.50 to Mr. Lee. The fees are to be borne
by BBI. If BBI is unable or unwilling to pay, they are to be
paid by Defendant's counsel.
the parties will resolve their differences and put this
matter to rest. Any additional sanctions or consequences will
be again be considered via motion or sua sponte
under Rule 16 to avoid any further delay.
See Del. Super Ct. Civil. R.
16(f) ("Sanctions. If a party or party's attorney
fails to obey a scheduling or pretrial order . . ., or if a
party or party's attorney fails to participate in
good faith, the judge, upon motion or the judge's own
initiative, may make such orders with regard thereto as
are just, and among others any of the orders provided in Rule
37(b)(2)(B), (C), (D). In lieu of or in addition to any other
sanction, the judge shall require the party or the attorney
representing the party, or both, to pay the reasonable
expenses incurred because of any noncompliance with this
Rule, including attorneys' fees, unless the ...