IN THE SUPREME COURT OF THE STATE OF DELAWARE
ERIC PHILLIPS and WICKS’ END, §
INC., §
§ No. 671, 2013
Defendants/Counterclaim §
Plaintiffs Below- §
Appellants, § Court Below: Superior Court
§ of the State of Delaware in and
v. § for New Castle County
§
WILKS, LUKOFF & BRACEGIRDLE, §
LLC, AND THAD BRACEGIRDLE, § C.A. No. N11C10194
§
Plaintiff Below and §
Counterclaim Defendant Below- §
Appellees. §
Submitted: July 10, 2014
Decided: October 1, 2014
Before STRINE, Chief Justice, HOLLAND, and RIDGELY, Justices.
ORDER
On this 1st day of October 2014, it appears to the Court that:
(1) Defendants-Below/Counterclaim-Plaintiffs/Appellants Eric Phillips
(“Phillips”) and Wicks’ End Inc. (“Wicks’ End”) (collectively, the “Appellants”)
appeal from Superior Court orders excluding the expert testimony of their liability
witness and granting summary judgment to Plaintiff-Below/Counterclaim-
Defendant/Appellees Wilks, Lukoff & Bracegirdle, LLC (“WLB”), and Thad
Bracegirdle (“Bracegirdle”) (collectively, the “Appellees”). The Appellants raise
four claims on appeal. First, they contend that the trial court erred by excluding
the expert testimony of their malpractice liability witness. Second, they argue that
the court erred by granting summary judgment to the Appellees on Appellants’
malpractice counterclaim. Third, the Appellants claim that the court erred in
awarding the Appellees summary judgment on their breach of contract claim.
Finally, the Appellants claim that the court abused its discretion by refusing to
allow them to take a fact deposition beyond the discovery cutoff date. We find no
merit to the Appellants’ appeal and affirm.
(2) In October 2010, the Appellees engaged Phillips for the purpose of
representing him in on-going Court of Chancery litigation. Phillips is the owner
and operator of Wicks’ End, Inc. The Appellees sent Phillips an engagement letter
which set forth the costs and fees for their legal services. Specifically, the
engagement letter provided that (1) fees for services rendered were based on the
actual time spent representing the client, (2) the amount of attorney’s fees could
not be predicted with reasonable certainty due to the nature of the representation,
and (3) payment of the firm’s fees and costs was not contingent on the on the
ultimate outcome of the case. Bracegirdle, as agent of WLB, was assigned to act
as the Appellants’ primary legal representative.
(3) In 2011, the Appellees filed a complaint against the Appellants alleging
breach of contract, quantum meruit, and breach of implied contract. In their
2
answer to the complaint, the Appellants acknowledged that the engagement letter
was a contract but denied owing the amount requested by Appellees. The
Appellants also filed a counter-claim alleging negligent representation and breach
of contract against both WLB and Bracegirdle.
(4) In March 2012, the trial court issued a scheduling order that established
deadlines and informed both parties that “failure to meet those deadlines, absent
good cause shown, likely will result in the court refusing to allow extensions
regardless of consequences.”1 Pursuant to the scheduling order, all discovery was
to be completed by June 1, 2013. In February 2013, the trial court modified the
scheduling order by extending dates for expert discovery, but specifically stated
that “[a]ll other dates set forth . . . shall remain in place.”2
(5) In May 2013, the trial court denied Phillips’ motion to extend the fact
discovery deadline. But, the trial court did permit WLB to take Phillips’
deposition after the June 1st deadline. In July 2013, the court denied Phillips’
motion for reconsideration of its May order. In August 2013, the Appellees filed a
motion for summary judgment on their breach of contract claim. After hearing
arguments on the motion, the trial court awarded summary judgment to the
Appellees on that claim.
1
Appellants’ Op. Br. App. at A4.
2
Appellants’ Op. Br. App. at A6.
3
(6) The Appellees also filed a motion in limine to exclude the expert
testimony of New Jersey attorney William Michelson (“Michelson”). In
conjunction with the motion to exclude Michelson, the Appellees filed a motion for
summary judgment on the Appellants’ malpractice counterclaim citing the
Appellants’ failure to obtain a qualified standard of care expert. The court granted
the Appellees’ motion to exclude Michelson’s testimony. Thereafter, the trial
court awarded summary judgment to the Appellees on the malpractice claim, citing
the Appellants’ failure to obtain a proper Delaware standard of care expert. This
appeal followed.
(7) We review a trial court’s decision to admit or exclude expert testimony
as a finding of fact for abuse of discretion.3 “This Court reviews de novo the
Superior Court’s grant or denial of summary judgment ‘to determine whether,
viewing the facts in the light most favorable to the nonmoving party, the moving
party has demonstrated that there are no material issues of fact in dispute and that
the moving party is entitled to judgment as a matter of law.’”4
(8) In Brett v. Berkowitz, we held that an expert witness in a legal
malpractice action must “be familiar with the applicable standard of care in the
3
Baldwin v. Benge, 606 A.2d 64, 67 (Del. 1992); Perry v. Berkley, 996 A.2d 1262, 1267 (Del.
2010).
4
Brown v. United Water Delaware, Inc., 3 A.3d 272, 275 (Del. 2010) (quoting Estate of Rae v.
Murphy, 956 A.2d 1266, 1269–70 (Del. 2008)).
4
locality where the alleged malpractice occurred.”5 “Although competency
requirements are not designed to preclude all testimony from out-of-state experts,
expert witnesses must be ‘well acquainted or thoroughly conversant’ with the
degree of skill ordinarily employed in the local community.”6 Further, “[i]n cases
where an expert is familiar with a different locality where the standard of care is
identical to that observed in the relevant Delaware locality, another expert may
provide bridging testimony to reconcile the two standards.”7 In the absence of any
showing of such familiarity, and without bridging testimony to harmonize the
standard of care, the expert testimony must be excluded.8 The Appellants first
argue that the trial court erred by excluding the expert testimony of Michelson.
They contend that Michelson sufficiently familiarized himself with Delaware case
law to meet the standard set forth in Brett. They also argue that a bridging expert
is unnecessary here because the Appellees have not shown that the standard of care
in Delaware and New Jersey differs.
(9) The Appellants’ first claim lacks merit. The Brett standard requires more
than a mere reading of Delaware case law to qualify one as an expert witness. The
fact that Michelson familiarized himself with the language of Brett does not permit
5
Brett v. Berkowitz, 706 A.2d 509, 517 (Del. 1998). This rule applies equally to medical and
legal malpractice actions. Id. at 518.
6
Id. at 517 (quoting Loftus v. Hayden, Del. Supr., 391 A.2d 749, 752 (1978)).
7
Id.
8
Id. at 518.
5
him to opine on the degree of skill Delaware lawyers must use to successfully
discharge their duty of care. Michelson is neither “well acquainted nor thoroughly
conversant” with the degree of skill ordinarily employed by Delaware attorneys.9
Further, whether the standard of care in Delaware and New Jersey is the same is
not an assessment that can be made by the Appellants or Michelson. Pursuant to
Brett, this task belongs to an outside bridging expert who is sufficiently familiar
with Delaware law to so opine.10 The purpose of a bridging expert is to confirm
that the standard of care in both states at issue is identical. If Michelson qualified
as an expert on the standard of care in Delaware and New Jersey, a bridging expert
would not be necessary. But as previously discussed, Michelson is not qualified as
an expert on the Delaware standard of care, and thus a bridging expert is required.
None was proffered. Thus, the trial court did not err in excluding Michelson’s
testimony.
(10) The Appellants next claim that, having excluded Michelson from
testifying, the trial court erred by granting summary judgment on the legal
malpractice action. They argue that the trial court erred by granting summary
judgment without ruling on several other motions relating to their malpractice
claim. The other motions cited by the Appellants were defensive motions for
9
Brett, 706 A.2d at 517.
10
Id.
6
summary judgment made the by the Appellees.11 The Appellants argue that these
motions also lacked merit and that “it would be unfair if the Trial Judge granted
any of [them].”12 But the Appellants admit that if summary judgment was properly
granted for failure to retain a qualified standard of care expert, these motions are
moot. We have explained that:
“In order to recover for an attorney’s malpractice, the client
must prove the employment of the attorney and the attorney's
neglect of a reasonable duty, as well as the fact that such
negligence resulted in and was the proximate cause of loss to
the client.” Thus, in order to sustain a claim of professional
negligence against a Delaware attorney, plaintiff must
establish the applicable standard of care through the
presentation of expert testimony, a breach of that standard of
care, and a causal link between the breach and the injury. It is
well settled law that claims of legal malpractice must be
supported by expert testimony.13
(11) The Appellants’ claim is misplaced. The Appellants’ appeal stems
from the trial court’s grant of summary judgment, not those motions which were
not addressed by the trial court. Because each of the other motions relates to the
malpractice claim, the Appellants’ failure to make out a prima facie case of
11
Specifically, the Appellants argue the following motions should have been decided and denied
by the trial court: (1) Appellees’ motion for summary judgment on Appellants’ claim of
malpractice for failure to amend the complaint to make a claim for a $160,000 note; (2)
Appellees’ motion for summary judgment on the malpractice claim relating to the alleged
deviation from the standard of care relating to the March 27, Factual Stipulation; (3) Appellees’
motion for summary judgment relating to but-for causation; and (4) Appellees’ motion for
summary judgment relating to the “Two Trigger” issue.
12
Appellants’ Op. Br. at 25.
13
Middlebrook v. Ayres, 2004 WL 1284207, at *5 (Del. June 9, 2004) (quoting Weaver v. Lukoff,
511 A.2d 1044, 1986 WL 17121, at *1 (Del. July 1, 1986) (emphasis added)).
7
negligence by providing expert testimony of the applicable standard of care renders
the undecided motions moot. Accordingly, the Appellants’ second claim is
without merit.
(12) In their third claim, the Appellants contend that the trial court erred by
granting summary judgment on the Appellees’ breach of contract claim simply
because a retainer agreement existed. A “contract may exist as either an express
contract or an implied-in-fact contract because they are legal equivalents-the first
being arrived at by language and the second by actions that demonstrate a meeting
of the minds.”14 “The parol evidence rule bars the admission of evidence extrinsic
to an unambiguous, integrated written contract for the purpose of varying or
contradicting the terms of that contract.”15 The Appellants argue that the Appellees
forfeited their right to compel performance of the agreement due to their negligent
representation. They also contend that the Appellees promised to cap fees,
creating a question of fact for trial. Finally, they argue that because Wicks’ End
did not sign the retainer agreement, the claim against it should have proceeded on a
quantum meruit basis.
14
Klehr, Harrison, Harvey, Bransburg & Ellers, LP v. Mosaica Educ., Inc., 2009 WL 5177144,
at *2 (Del. Super. 2009) (citing Lawrence v. Dibiase, 2001 WL 1456656, at *5 (Del. Super.
2001)).
15
Galantino v. Baffone, 46 A.3d 1076, 1081 (Del. 2012); Eagle Indus., Inc. v. DeVilbiss Health
Care, Inc., 702 A.2d 1228, 1232 (Del. 1997) (“If a contract is unambiguous, extrinsic evidence
may not be used to interpret the intent of the parties, to vary the terms of the contract or to create
an ambiguity.”); Restatement of Contracts (Second), § 213, Comment (a) (“[The parol evidence
rule] renders inoperative prior written agreements as well as prior oral agreements.”).
8
(13) Appellants’ third claim fails for several reasons. As to the Appellants’
first argument, in order to be awarded a setoff, the Appellants would first have to
show that the Appellees provided negligent legal representation that resulted in
financial loss. As previously discussed, the Appellants failed to make a prima
facie case of malpractice on the part of the Appellees. Thus, they are not entitled
to any setoff and are liable for the full amount of legal fees as provided for in the
engagement letter.
(14) Second, as to the alleged promise to cap fees, the Appellants
acknowledge the engagement letter as a binding contract. The terms of the
contract unambiguously state that legal fees are based upon the actual time
expended in representing the client, that the Appellees made no commitment in
regard to fees and costs, and that the amount of fees and costs could not be
predicted with reasonable certainty. Because these terms are unambiguous and the
Appellants failed to raise any argument that the contract is not integrated in their
Opening Brief, contradictory oral evidence is barred by the parol evidence rule.
Thus, the Appellants’ second argument lacks merit.
(15) The Appellants’ third argument is that the court below should have
proceeded on a quantum meruit theory in regard to Wicks’ End because it was not
party to the engagement letter. This argument is also unpersuasive because an
implied-in fact contract existed between the parties. The engagement letter was
9
signed by Phillips, who owns and operates Wicks’ End. Wicks’ End was a third
party defendant in the Court of Chancery litigation at issue and was clearly
represented by Bracegirdle. This point is highlighted by the fact that Bracegirdle
was expressly recognized by the Court of Chancery as Wicks’ End’s attorney.
Wicks’ End silently accepted Bracegirdle’s services without raising any objection
to the professional relationship. Accordingly, an implied-in-fact contract existed
and was breached by the Appellants’ refusal to pay fees and costs. For the
foregoing reasons, the Appellants’ third claim fails.
(16) In their fourth and final claim, Appellants argue that the trial court
abused its discretion when it denied them the right to depose their former attorneys
after the fact discovery cutoff date. We review pretrial discovery rulings for abuse
of discretion.16 “‘When an act of judicial discretion is under review the reviewing
court may not substitute its own notions of what is right for those of the trial judge,
if his [or her] judgment was based upon conscience and reason, as opposed to
capriciousness or arbitrariness.’”17 “A trial judge has broad discretion to control
scheduling and the court’s docket.”18
(17) The Appellants’ final claim is without merit. The record viewed in its
entirety shows that the trial court’s refusal to extend discovery was neither
16
Coleman v. PricewaterhouseCoopers, LLC, 902 A.2d 1102, 1106 (Del. 2006).
17
Id. (quoting Chavin v. Cope, 243 A.2d 694, 695 (Del. 1968)).
18
Goode v. Bayhealth Medical Center, Inc., 931 A.2d 437, 2007 WL 2050761, at *3 (Del. July
18, 2007) (citing Valentine v. Mark, 873 A.2d 1099 (Del. 2005)).
10
arbitrary nor capricious. The trial court accommodated Phillips’ requests for
deadline extensions on several occasions. Specifically, the trial court extended the
deadline for Phillips’ expert report by 329 days, and also granted Phillips
extensions, after his counsel withdrew, to engage new counsel. The modified
scheduling order clearly stated that the fact discovery deadline was June 1st and
that it would not be modified except for good cause. The Appellants have failed to
put forth any valid reason as to why an extension was warranted. Thus, the
Appellants’ final claim is without merit.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Henry duPont Ridgely
Justice
11