IN THE COURT OF COMMON PLEAS FOR TI-IE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
UBALDO CESAR,
Plaintiff-Below/Appellant,
v. C.A. No. CPU4-16-000642
jOHN A. MACCONI JR. LLC,
Defendant-Below/Appellees.
\_/\_/\/\/\/\/\_/\_/\./\_/
Submitted: August 30, 2017
Decided: October 9, 2017
Ubaldo Cesar john A. Macconi,]r., Esquire
P.O. BOX 5413 John A. Macconi,]r., LLC
\X/ilmington, DE 19808 1224 King Street
P/¢lz';¢fg'[§§` Pro 56 Wilmington, DE 19801
Az‘fom@)for Dej”endcmt
DECISION AFTER TRIAL
SMALLS, C.J.
Plaintiff-BeloW/Appellant Ubaldo Cesar (“Plaintiff,” “Cesar”) brings this appeal
pursuant to 10 De/. C. §9571 and Court of Common Pleas Rule 72.3, from a decision by the
]ustice of the Peace Court (“JP”) order of February 11, 2016 granting Defendant~
BeloW/Appellee John A. Macconi]r. LLC (“Defendant,” “l\/lacconi”) l\/[otion to Dismiss.
'l`he]P Court held that the issues involved in this case did not fall Within that Court’s limited
jurisdiction because the issues involve a dispute between former attorney and former client.
On February 25, 201(), Plaintiff filed a Complaint in this Court alleging that
Defendant failed to return PlaintifF s money after properly Withdrawing from legal
representation Plainn`ff alleges that the parties entered into an agreement Where Defendant
Would represent Plaintiff in a civil matter for a flat fee of $5,000.00. Plaintiff avers that he
paid Defendant $3,200.00 of the agreed $5,000.00 price prior to the time of Defendant’s
Withdraw. Plaintiff claims Defendant failed to represent him in court, return documents,
and refused to reimburse him the $3,200.00, Which he seeks in this action On February 20,
2017, Defendant filed a response to the complaint Which he denied the allegations and
brought several affirmative defenses
Trial Was held on August 30, 2017 Where the Plaintiff and Witness Ramonita Aviles
testified in support of his case. Plaintjff introduced nine (9) exhibits Defendant testified
and introduced one (1) exhibit At the conclusion of trial, the Court reserved decision. This
is the Court’s decision after trial.
FACTUAL AND PROCEDURAL BACKGROUND
On or about February 18, 2013, Cesar’s condominium filed a complaint against Cesar
for unpaid condominium fees. On September 12, 2014, Cesar retained l\/Iacconi to represent
him in the Condominium dispute. Plaintiff introduced as exhibit #2 the retainer agreement
where Macconi agreed to represent Cesar for a flat fee of $5,000.00, on a non-hourly basis.
The docket in case CPU4-13-000565 “Lz`nden Green Condomz`m'z/m At§’n. 2). U!aa/do CeM/’
indicates that on September 18, 2014, l\/lacconi entered his appearance on behalf of Cesar.
Also on that date the docket reflects that l\/lacconi filed three motions: motion to amend the
answer, motion to amend the scheduling order, and motion to continue the trial. On
October 23, 2014, l\/lacconi filed a letter with the Court on behalf of both parties requesting
a new trial date. Cesar introduced as exhibit #3 an email from l\/lacconi to him dated l\/lay 2,
2015, where l\/lacconi was requesting that Cesar contact him to discuss the case because the
trial was scheduled for l\/lay 12, 2015.
Plaintiff introduced exhibit #4; a series of cancelled checks which reflect payments to
Defendant totaling $3,200.00. Plaintiff exhibit #5 is a WSFS bank statement indicating
Plaintiff had a loan of $35,083.23 with WSFS bank. Plaintiff exhibit #6 is an email from
Defendant to Plaintiff inquiring of the status of how Plaintiff was proceeding with
accumulating the documents they previously discussed Plaintiff exhibit #7 is an email dated
l\/lay 5, 2015 from Defendant following up On a twenty-five minute telephone conversation
with Cesar. This email indicates that the parties have reached an impasse on their
attorney/ client relationship Plaintiff exhibit #8 is a collective of two emails between
Defendant and the Court regarding trial and the need of Plaintiff to appear. In this email
Defendant stated he had a copy of Cesar’s email address and that he will call Cesar
immediately to follow up with Court dates.
On May 5, 2015, l\/lacconi filed a l\/Iotion to Withdrawal as Counsel on the basis there
had been a lack of communication, responsiveness, and a lack of production for reasonably
requested information l\/[acconi maintains that there is a “fundamental disagreement”
between Cesar and himself with respect to how the case should proceed. l\/Ioreover,
l\/[acconi claims that “representation up to the present time has been unreasonably difficult,
but going forward, even with the scheduled trial on l\/lay 12, 2015, it would be nearly
impossible, at a minimum with respect to his ethical duties to act in Cesar’s best interests.”
Macconi indicated that he filed the motion to withdraw as soon as he learned that there was
no chance he and his client could form a solution to their disagreement about how the case
should be handled.
On l\/lay 8, 2015, Macconi was granted leave to withdraw from the case but was
ordered to appear on l\/[ay 12, 2015, at the trial, to address any notice issues The trial was
scheduled for 9:00 am and at 9:13 am Cesar having failed to appear without notice, the court
entered judgment for the Condominium Association, dismissed l\/[acconi and dismissed all
counter claims. Cesar subsequently appeared at 9:33 a.m. that morning and moved to vacate
the judgment Cesar argued that l\/lacconi failed to tell him the time of trial, failed to answer
his calls, and had retained all his materials he needed to proceed. On l\/[ay 18, 2015, l\/lacconi
advised the court that he left a voicemail and email with Cesar on l\/lay 7, 2015 informing
him of the trial date and time. l\/lacconi further indicated he received a voicemail from Cesar
at 6:30 a.m. on l\/Iay 8, 2015 confirming his receipt of the call and requesting that Macconi
cease all further communication with him.
On Cesar’s Motion to Vacate the court found that it was unreasonable to believe that
Cesar was not aware of the trial date due to communication provided by l\/lacconi, in writing,
on two separate occasions Furthermore, Cesar was correct that he did not have the
documents to move forward in his case but the situation was his own making l\/lacconi had
attempted to return the documents to Cesar at the earlier court proceeding but Cesar failed
to appear. ln addition, Cesar told l\/lacconi to cease all communications with him before
Cesar received the documentation he needed for court On July 7, 2015 the l\/lotion to
Vacate the ]udgment was denied.
On February 25, 2016, Cesar filed a complaint against l\/lacconi alleging
misrepresentation and demanded he be reimbursed for the funds paid to l\/lacconi for his
representation On February 20, 2017, Defendant filed an answer to the complaint which
included affirmative defenses At trial, Defendant introduced Defense exhibit #1, a
document which indicates “Client Billing Escrow Summary” for Cesar’s case
notwithstanding the representation contract was for a flat fee of $5,000.00.
PARTIES’ CONTENTIONS
\X/hen Cesar retained Macconi, he signed an agreement which outlined the legal
services l\/lacconi would provide, and the fees and expenses associated with representation
Cesar claims that l\/lacconi failed to provide adequate legal services in his representation
Cesar further claims that l\/lacconi unethically withdrew four (4) days prior to trial. Cesar
seeks judgment in the amount of $3,200.00 with interest
l\/lacconi responds that the agreement to represent Cesar was for a flat fee of
$5,000.00 and the amount paid to him from Cesar was for representation commensurate
with the work performed Macconi admits that the total amount paid in increments by
Cesar to l\/lacconi as counsel, was $3,200.00. However, l\/lacconi claims that the sum was
reasonable based upon the work performed in representing Cesar.
DISCUSSION
This is a trial de nova Therefore, it is the Court’s responsibility to assess the credibility
of the testifying witnesses and, where there is a confiict in the testimony, to reconcile these
conflicts, “if reasonably possible[,] so as to make one harmonious story.”1 ln doing so, the
Court takes into consideration the demeanor of the witnesses, their apparent fairness in
giving their testimony, their opportunities in hearing and knowing the facts about which they
testified, and any bias or interest they may have concerning the nature of the case.2
In civil claims, the plaintiff bears the burden to prove each and every element of his
or her claims by a preponderance of the evidence.3 The side which establishes the greater
weight of evidence in its favor has met the preponderance standard.4
Under the Delaware Rules of Professional Conduct, “ln all professional functions a
lawyer should be competent, prompt and diligent and should maintain communication with
a client concerning the representation.”5 ln assessing the reasonableness of attorney's fees,
the Court is entitled to exercises its discretion, and in doing so, relies on Rule 1.5 of the
Delaware Lawyers' Rules of Professional Conduct for guidance, which sets forth the factors
‘ NalYGrange Muf. Im. Co. a Ne/wn F. D¢wz'.r,]r., el. aL, 2000 WL 33275030, at *4 (Del. Com. Pl. Feb. 9, 2000).
3 tf€e ilale z/. We.r{fa//, 2008 \X/L 2855030, at *3 CDel. Com. Pl. Apr. 22, 2008).
3 Rayno/di‘ v. R@/no/a'i‘, 237 A.2d 708, 711 (Del. 1967).
4 I¢z'.
5 Del. Lawyers' R. Profl Conduct, Preamble.
that the Court should consider when deciding whether the fees are reasonable.6 The factors
are as follows:
(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 employment by the lawyer; (3) the fee
customarily charged in the locality for similar legal services; (4) the amount
involved and the results obtained; (5) the time limitations imposed by the
client or by the circumstances; (6) the nature and length of the professional
relationship with the client; (7) the experience, reputation, and ability of the
lawyer or lawyers performing the services; and, (8) whether the fee is fixed or
contingent7
In addition to these factors, trial courts also consider “whether the number of hours devoted
to litigation was excessive, redundant, duplicative or otherwise unnecessary.”8 This “does
not require that this Court examine individually each time entry and disbursement.”9
l\/loreover, in assessing the reasonableness in attorney's fees, the Court is not required to
determine whether attorney's litigation tactics in representing his or her client were
appropriate10
Rule 1.5(b) regarding professional conduct of attorneys provides that “The scope of
the representation and the basis or rate of the fee and expenses for which the client will be
responsible shall be communicated to the client, preferably in writing, before or within a
(’ Danenbez;g a Fz`fm¢'/é:, Im‘., 58 A.3d 991, 995-96 (Del, Ch.2012) (citing Ma/an` a EDIXMea'z'a Gp., Im‘., 935
A.2d 242, 245 (Del.2007)).
7 Mam/bay 1/. ila/zion Medz'm/ B/dg. Cwm'. Coum'z`/, 2000 WL 33275129 (Del.Com.Pl.), citing Delaware Rules of
Profl Conduct R.1.5(a). (1/3 of controversy reasonable attorney's fees).
*‘]afep/a v. C/.M¢'/éo, No. CPU4-15-001931, 2016 WL 2931595, at *3 CDel. Com. Pl. l\/lay 18, 2016). 536 a/Jo
Maham`, 935 A.2d at 247-48 (internal quotation marks omitted>.
9 D¢menbe¢;g v. Fz'/fm¢‘/ét Im‘., 58 A.3d 991, 997 (quoting Avel¢z. Im‘. a Bengoa, 2010 WL 3221823, at *6 (Del.
Ch.2010); accord B/an/e Rome y. dee/, 2003 WL 21801179, at *8-9 (Del. Ch.2003) (rejecting alleged
requirement of line~item review)).
101”'
reasonable time after commencing the representation”11 “The amount involved in litigation
and results obtained are only two of many factors to be considered in determining the
reasonableness of an attorney's fee.”12 The time and effort required to fully litigate a case
carries significant weight in the fees apportioned “Defendant will not be heard to complain
that the time spent preparing for litigation was excessive when he may be blamed for so
much of the cost and delay.”13 ln EDIX Medz`a Gr;t)., lm‘. v. Ma/a¢zm', the defendant/ client was
upset at the 169.9 hours his attorney dedicated to trial preparation ln that case the
defendant had requested trial be postponed and was warned by the Court that any harm to
the plaintiff could risks imposition of a significant financial judgment against the client14
The Court found that the additional hours were the responsibility of the defendant due to
his conduct during the trial process
Turning to the case at hand, l\/lacconi provided Cesar a detailed initial consultant
agreement that included representation of the case and the breakdown of the fees involved
Macconi specified that his representation in the lawsuit against Linden Green Condominium,
and a possible counter-claim, would cost Cesar $5,000.00. The fee was further broken down
in the letter to include the first payment offlj`>1,200.00, which included a consultant fee of
3250.00. Furthermore, Cesar was to make $500.00 monthly payments to Macconi until paid
in full. Cesar paid the initial $1,200.00 upon signing the agreement and four (4) monthly
payments of 3500.00 thereafter At trial, l\/[acconi provided a time sheet presenting “non-
hourly billable hours and escrow summary.” l\/lacconi’s escrow summary shows the date,
11 Del. Lawyers' R. Profl Conduct 1.5.
12 Del. Lawyers' R. Prof'l Conduct 1.5(a)(4).
‘~‘ EDIX M€¢z'l'd Grp., Im'. v. M¢Zf/¢zm', NO. CIV.A. 2186-N, 2007 WL 417208, at *2 (D€l. Ch. Jan. 25, 2007), rifd,
935 A.2d 242 (Del. 2007).
14 ]d at 2.
hours worked, and tasks performed from September 12, 2014 through May 18, 2015.15 A
review of the evidence, which includes testimony and the exhibits of both parties, indicates
that Defendant devoted significant time and efforts to this case by filing motions, seeking
continuances, and contacting his client During l\/lacconi’s representation of Cesar he filed
several motions, sent numerous emails, conducted several telephone calls, held conferences
with Cesar, completed a civil case management order, conducted discovery, prepared
answers to interrogatories and requests for production, attended motion hearings, wrote and
answered letters, and appeared for trial, These are actions of an attorney which is engaged
and actively representing his client Therefore, the evidence supports that the fees charged
are reasonable in accordance with the time l\/lacconi devoted to Cesar’s case.
Additionally, Cesar claimed that l\/[r. l\/lacconi had documents which he needed after
l\/lacconi withdrew that were not returned to him in a reasonable time. On May 12, 2015,
l\/lacconi represented to the Court that he did not have in his possession any documents of
Cesar’s. lt was eventually determined that l\/[acconi had some photographs and documents
that were obtained through discovery However, l do not find this fact critical to resolution
of the issues in this case.
CONCLUSION
Based on testimony and the exhibits, l find that l\/lacconi represented Cesar diligently
for the matter he was retained and the fee was earned.
'5 Defendant’s exhibit #1_
Accordingly, I find that Cesar has failed to prove that Macconi failed to provide
effective representation and judgment is entered for the Defendant; each party will bear their
Own costs
ITIs so oRDERED. l ]%j/) jj
1 /z’lex].f malls,
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