Opinion
C.A. No. 2024-S.
Date Submitted: June 3, 2005.
June 6, 2005.
John A. Sergovic, Jr., Esquire, Sergovic Ellis, P.A., Georgetown, DE.
Vincent G. Robertson, Esquire, Griffin Hackett, P.A., Lewes, DE.
Dear Counsel:
The Defendants have moved for reargument of the Order, dated May 19, 2005, which required that they pay the Plaintiff's attorneys' fees and expenses incurred in pursuing this action because they were obligated to pay the "cost of litigation" if they were unsuccessful.
"A motion for reargument [under Court of Chancery Rule 59(f)] will usually be denied unless the Court has overlooked a decision or principle of law that would have controlling effect or the Court has misapprehended the law or the facts so that the outcome of the decision would be affected." This, the Defendants have not done. They have reprised their argument that "costs" and "cost" within the context of the declaration of restrictions must be given the same meaning. This contention was addressed and rejected in the letter opinion accompanying the Order. That the term "costs" may not encompass attorneys' fees does not demonstrate that the phrase "cost of litigation" does not include attorneys' fees.
Noddings Inv. Group, Inc. Noddings Warrant Ltd. Partnership v. Capstar Communications, Inc., 1999 WL 350494, at *1 (Del.Ch. Apr. 16, 1999); see also Miles, Inc. v. Cookson Am., Inc., 677 A.2d 505, 506 (Del.Ch. 1995).
The Defendants also cite to All Pro Maids, Inc. v. Layton and its reading of Comrie v. Enterasys Networks, Inc. The Defendants have failed to recognize that the contract at issue in Comrie addressed the right of a prevailing party "to recover its costs." Comrie did not involve an agreement entitling the prevailing party to recover the " `cost' of litigation."
2004 WL 3029869 (Del.Ch. Dec. 20, 2004).
2004 WL 936505 (Del.Ch. Apr. 27, 2004).
Finally, at this late date, the Defendants have decided to challenge the amount of the fees sought by the Plaintiff. As they concede, "[a]t oral argument, . . . Defendants did not address the amount of fees sought to be awarded to Plaintiff." Indeed, the Defendants' counsel was asked directly at oral argument if his clients contended that the fees were excessive (something not asserted in the Defendants' previously filed written arguments), and counsel deflected the question. It is now too late to bring a challenge to the reasonableness of the fee application because a motion for reargument is not the proper procedural device for the initial presentation of a contention.
Motion for Reargument, ¶ 7 (emphasis in original).
Cummings v. Jimmy's Grille, Inc., 2000 WL 1211167, at *2 (Del.Super. Aug. 9, 2000).
Accordingly, the Defendants' motion for reargument is denied.