Shoppes of Mount Pleasant, LLC., a Delaware Limited Liability Company v. J.M.L., a Delaware Corporation and Lawrence Gillen, an individual

IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

SHOPPES OF MOUNT PLEASANT, LLC, a )
Delaware Limited Liability Company )
) Case No. CPU4-l4-001415
Plaintiff, )
)
v. )
)
J.M.L., INC., a Delaware Corporation and )
LAWRENCE GILLEN, an individual )
)
Defendants. )
Submitted: January 31, 2019
Decided: March 18, 2019
Josiah R. Wolcott, Esquire Donald L. Gouge, Jr., Esquire
Connolly Gallagher, LLP Donald L. Gouge, Jr., LLC
267 East Main Street 800 N. King Street, Suite 303
Newark, Delaware 19711 Wilmington, Delaware 19801
Attorneyfor Plainti]j€ Attorneyfor Defena'ants

MEMORANDUM OPINION AND ORDER
ON PLAINTI FF’S MOTION FOR ATTORNEY’S FEES AND COSTS
The plaintiff, Shoppes of Mount Pleasant, LLCl (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 attomey’s fees and costs that accrued as a result of defending

the proceedings following trial. Defendants oppose the request alleging the request is untimely

l “During the course of this litigation, Plaintiff converted to a Delaware Statutory Trust and is now known as Shoppes
of Mount Pleasant, DST.” Pl.’s Mot. for Att’y Fees and Costs n. l.

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 Plaintiff’ s 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 attomey’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.

FACTS AND PROCEDURAL HISTORY
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 attomey’ s fees within thirty
days, with which Plaintiff complied. In an order dated August 4, 2015, this Court granted Plaintiff

attomey’s fees in the amount of $20,132.00 and costs in the amount of $1,933.74. Subsequent to

2 Final decision from Superior Court affirming Motion to Vacate was issued April 30, 2018, and this Motion for Costs
and Attorney’s Fees was filed August 7, 2018.

3 “Except When express provision therefor is made either in a statute or in these Rules or in the Rules of the Supreme
Court, costs shall be allowed as of course to the prevailing party upon application to the Court within ten (10) days of
the entry of final judgment unless the Court otherwise directs.”

4 Ct. Com. Pl. Civ. R. 54(d) (“Except When express provision therefor is made either in a statute or in these Rules or
in the Rules of the Supreme Court, costs shall be allowed as of course to the prevailing party unless the Court otherwise
directs.”).

5 Plaintiff’s request for costs comes 100 days after the final decision in Superior Court dated April 30, 2018.

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trial, the following events took place: l) 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;ll 7) August 7, 2018, Plaintiff filed the instant Motion for Attomey’s
Fees and Costs whereby Plaintiff requests $36,372.00 in attomey’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, Plaintiff’ s 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 attomey’s fees. Defendants’ response indicated that there

6 On October 14, 2016, Superior Court reversed in-part, reducing damages, and affirmed in-part as to the attorney’s
fees and costs.

7 On February 8, 2017, the parties stipulated to dismissing the appeal.

8 See Pl.’s Mot. for Att’y Fees and Costs 11 5 (discussing the need for Plaintiff to petition the Court of Chancery to
prevent Defendants’ attempt to foreclose on a mortgage which would have interfered with Plaintiff’ s ability to execute
on underlying judgments).

9 On March 31, 2017, the Motion to Stay was granted with surety. Failure to comply with the order would deem the
Motion to Vacate withdrawn. The Motion to Stay Was later Withdrawn by Defendants.

10 On August l l, 2017, Defendants’ Motion to Vacate Judgment Was denied.

ll On April 30, 2018, Superior Court affirmed the denial of Defendants’ Motion to Vacate.

12 On October 8, 2018, Defendant responded in opposition to Plaintiff’s Motion for Attorney’s Fees and Costs.

'3 During the Motion hearing, Plaintiff’ s counsel advised the Court that the Motion did not already include charges
for drafting the instant Motion, attending the Motion hearing, or a meeting with defense counsel. Therefore, Plaintiff’ s
counsel stated his intention to submit a supplemental affidavit for said fees.

'4 The affidavit contains twenty-one hours-worth of fees not already included in the original Motion. These fees
encompass drafting the instant Motion, argument on the Motion and drafting of supplemental briefing.

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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.

PARTIES’ CONTENTIONS

Plaintiff argues that the request for attomey’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. Altematively,
Plaintiff argues that the Court should find that Plaintiff’s 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 attomey’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 Attomey’s Fees and Costs, Defendants argue that the Motion
comes too late. Defendants contend that there were no prior requests for attomey’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,

15 Pl.’s Supp’l Submission to Mot. for Att’y Fees and Costs at 4.
4

Defendants propose for the Court to adopt Superior Court Civil Rule 54(d)’s 10-day limit
pertaining to costs. As to attomey’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. Altematively, 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 Plaintiff’s 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.

DISCUSSION
Requestfor Costs is Um‘z'mely

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 Altorney ’s Fees is Timely Una'er 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

16 Defs.’ Resp. in Opp’n to Pl.’s Req. for Att’y Fees and Costs 11 9 (“The defendant does not dispute that this Court
retains jurisdiction to hear a fee application, but not for unlimited amount of time.”).

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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 attomey’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 attomey’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 Plaintiff’ s request for
attomey’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 attomey’s fees. Further, there was no resulting prejudice
to Defendants caused by the late filing.20 F or these reasons, the Court finds that Plaintiff is entitled

to fees.

17 Council of Wilmington Condo. v. Wilmington Ave. Assoc. ’s, L.P, 1999 WL 1223792, at *1 (Del. Super. Nov. 3,
1999)

13 Re [MO Last Wi[l & Testament ofHarley, 2017 WL 4158803, at *2 (Del. Ch. Sept. 18, 2017).

19 Id. See also Evans v. Lee, 36 A.3d 349 (Del. 2012) (holding when there is no set time to file a motion to reopen, the
movant must act with reasonable diligence and the motion should be filed without unnecessary delay).

20 At the Motion hearing on October 12, 2018, defense counsel stipulated that Defendants suffered no prejudice by the
late filing for attorney’s fees.

Requesl 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 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 contingent.22

The Court must also determine whether the hours charged are “excessive, redundant, duplicative

or otherwise unnecessary.”23

21 This Court found that although Delaware follows the American Rule requiring each party to bear its own costs, the
fee shifting provision in the underlying contract in this case effectively shifted fees onto the non-prevailing party.

22 Del. Lawyers’ R. Prof’l Conduct 1.5(a).

23 Mahani v. Edix Media Group, lnc., 935 A.Zd 242, 247 (Del. 2007).

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The Court finds the following upon application of the aforementioned factors:

(1) The time and labor required, the novelty and difficulty of the questions involved, and

the skill requisite to perform the legal service properly,'

As stated in the prior order dated August 4, 2015, this case did not involve complex
commercial litigation, nor did it require superior knowledge or experience beyond that possessed
by a junior employee.

(2) T he likelihood, if apparent to the client, that the acceptance of the particular

employment will preclude other employment by the lawyer;

Consistent with the finding in factor one, acceptance of this case would not have likely
precluded Mr. Wolcott from accepting new cases.

(3) T he fee customarily charged in the locality for similar legal services;

Consistent with the August 4, 2015 order prescribing a rate of $280 an hour as a reasonable
hourly fee, this 'Court finds that Mr. Wolcott’s application of $280 an hour is the appropriate rate.

(4) T he amount involved and the results obtained;

Plaintiff sought $26,286.75 and was awarded $21,984.80 at trial.

(5) T he time limitations imposed by the client or by the circumstances;

This factor is not apparently at issue.

(6) T he nature and length of the professional relationship with the client;

The circumstances of the professional relationship is unknown and is not apparently at
issue.

(7) T he experience, reputation, and ability of the lawyer or lawyers

performing the services;

Mr. Wolcott is an experienced and highly regarded member of the Delaware Bar as well as
a partner of a respected firm. Mr. Wolcott’s conduct throughout the litigation was as would be
expected from such a member. Thus, the Court is satisfied with his representation in this case.

(8) Whether the fee is fixed or contingent.24

The fees are based on an hourly rate for counsel’s services; the fees are not fixed or
contingent. A review of Plaintiff’ s counsel’s billing statements indicates that preparation of the
briefs to the Delaware Supreme Court on appeal comprised approximately 29% of the post-trial
fees, or 45 of the 150.9 total hours. The Court has not been supplied copies of the briefs, but
Plaintiff s counsel contends that they “vastly differ[ed]”25 from briefs submitted to Superior Court
“both in format and substance.”26 Defendants challenge the Supreme Court fees but provide the
Court with no basis for finding those fees, or others, excessive, redundant, duplicative or otherwise
unnecessary. Consistent with Defendants’ request,27 Plaintiff’ s counsel has already reduced the
hourly rate in accordance with the prior order of August 4, 2015.

As to fees associated with the Chancery Court matter, Defendants’ request to exclude these
fees is denied. Plaintiff’ s filing in Chancery Court was necessary to enforce the order of this Court
which Defendants, in a blatant act of bad faith, attempted to circumvent.28 Defendant Gillen, in
open court, agreed to allow execution on the judgment in order to avoid the cost of an appeal bond.
Thereafter, Defendants attempted to avoid execution. Lastly, Plaintiff will be awarded
compensation for the 21.1 additional hours incurred from July 25, 2018 to November 5, 2018 to

draft the instant Motion, attend the Motion hearing, and draft the supplemental briefs. It is unclear

24 Del. Lawyers’ R. Prof`l Conduct 1.5(a).

25 Pl.’s Supp’l Submission to Mot. for Att’y Fees and Costs at 4.
26 [d

27 See Defs.’ Resp. in Opp’n to Pl,‘s Req. for Att’y Fees 1[ 9.

28 Pl.’s Mot. for Att’y Fees and Costs, supra note 8.

if Plaintiff` s supplemental affidavit accounts for fees related to a meeting with defense counsel as
promised at the October 12, 2018 Motion hearing, Therefore, the award will include only the fees

included in the affidavits provided to the Court.

CONCLUSION
F or the foregoing reasons, IT IS HEREBY ORDERED this 18th day of March, 2019, that
Plaintiff s Motion for Attomey’s Fees and Costs be DENIED as to costs and GRANTED as to
attorney’s fees. The award for attomey’s fees is reduced to $42,252.00 from the requested amount

of $42,280.00 due to calculation errors found in the statements provided by Plaintiffs counse1.29

cc: Patricia Thomas, Judicial Case Manager

29 Billing statements indicate that 7.7 hours were spent on attempts to execute on the underlying judgment associated
with paragraph 6 of Mr. Wolcott’s August 8, 2018, affidavit At an hourly rate of $280, the total fees for said matter
should reflect $2,156.00 instead of $1,988.00. Additionally, billing statements indicate that 38 hours were spent on
defending the motion to vacate and stay execution associated with paragraph 8 of Mr. Wolcott’s affidavit At an hourly
rate of $280, the total fees for said matter should reflect $10,640.00 instead of $10,836.00.

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