Phillips and Wicks' End, Inc. v.

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
Corrected: October 7, 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, Phillips engaged the Appellees 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

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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)).

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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.

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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.

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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

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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)).

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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.”).

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 (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

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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)).

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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

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