Opinion
C.A. No. 08C-02-399 MJB.
Submitted: August 4, 2010.
Decided: November 30, 2010.
Upon Defendant's Motion for Reargument. DENIED.
Upon Plaintiff's Motion for Entry of Judgment. GRANTED.
Catherine A. Gaul, Stephen E. Jenkins, Ashby Geddes, P.A., Wilmington, Delaware, Attorneys for Plaintiff.
David I. Portnoy, pro se Defendant.
OPINION AND ORDER
Introduction
Defendant, David Portnoy ("Portnoy") has filed a Motion for Reconsideration of this Court's Opinion and Order issued on June 30, 2010 ("Opinion and Order"), which granted Plaintiff's, Ashby Geddes' ("AG"), motion for summary judgment and motion in limine. For the reasons set forth in this Opinion, Portnoy's Motion for Reconsideration is DENIED. As a result, AG's Motion for Entry of Judgment is GRANTED.
Factual Background
This litigation arises out of a dispute over attorneys' fees. Portnoy previously brought an action in the Delaware Chancery Court in which he challenged the election of a corporate board of directors. However, after performing some work on the matter, and just weeks prior to trial, Portnoy's original counsel discovered a conflict that required them to withdraw.
Shortly thereafter, Portnoy met and conferred with an attorney from AG. At that meeting, AG provided Portnoy an estimate of $150,000 to handle the matter. This figure was given with the caveat that AG knew little about the case and that the cost could be more or less. Portnoy and AG subsequently entered into a retention agreement, in which AG stated that "we cannot determine in advance the amount of time that will be needed to complete this matter," and further, "our statements will detail the time used for conferences, telephone calls, drafting documents, research, consulting and so forth."
AG handled the litigation going forward. In the end, AG achieved the legal result that Portnoy sought. A new election was ordered by the Court of Chancery.
On February 27, 2008, AG filed this action against Portnoy for breach of contract seeking the payment of fees and expenses owed to AG for legal services rendered in connection with the Chancery Court matter. In his Answer, Portnoy contended that AG had engaged in a "fraudulent billing practice," and that the invoices were presented in such a way as to "disguise the unreasonableness" of the fees. This Court ruled that Portnoy was required to provide expert testimony to support these allegations. As a result, Portnoy proffered the testimony of Jeffre Lowe, Esq. ("Lowe"), an attorney licensed to practice in California.
Def.'s Answer 7.
Id. 6.
Subsequently, AG filed, and this Court granted, a motion in limine to preclude the proffered testimony of Lowe. The Court found that Lowe was unqualified under Rule 703 of the Delaware Rules of Evidence to provide an expert opinion regarding AG's billing practices. Because Portnoy could not provide qualified expert testimony to support his claims, summary judgment was granted in favor of AG. The Court provided a written Opinion and Order on June 30, 2010. Portnoy subsequently filed a Motion for Reconsideration.
In their Response to Portnoy's Motion for Reconsideration, AG claimed that this Court did not have jurisdiction to consider the Motion because it was filed beyond the five-day deadline. However, during oral argument, on August 12, 2010, it came to light that Portnoy did not receive notice of the Court's Opinion and Order until July 12. Since Portnoy's Motion was filed on July 16, within five days of receiving notice, Portnoy's Motion is considered timely.
Legal Standard
A motion for reargument will generally be denied unless the movant demonstrates that the Court overlooked a precedent or legal principle that would have controlling effect, or that it has misapprehended the law or facts in such a way that the outcome of the decision would be affected. A motion for reargument should not be used merely to "rehash the arguments already decided by the court."Analysis
I. Portnoy's Motion for ReargumentIn his Motion, Portnoy fails to demonstrate that this Court overlooked a legal principle or facts that would have altered the Opinion and Order. The basis for the Opinion and Order was that Portnoy failed to provide an opinion from a qualified expert to support his claim that the manner in which AG billed him was designed to conceal fraudulent and unreasonable fees. None of the arguments presented in the Motion alter the fact that Lowe is unqualified to proffer an expert opinion regarding AG's billing practices.
Indeed, only one of the several arguments set forth in the Motion relates to the issue of Lowe's qualifications to provide an expert opinion. Specifically, Portnoy contends that the retainer agreement gave him the right to receive time records for each task billed, and that, because he did not receive detailed entries of the tasks performed, his expert was unable to challenge AG's billing practices. However, Portnoy did receive invoices from AG which provided fairly detailed descriptions of what work was performed. For example, an invoice from November 5, 2007 detailed the following:
10/23/2007 CH Office Conference with Richard Heins and Philip 6.10 hrs Trainer; review of e-mails from D. Portnoy and Greenberg's office; review of pleadings; review of M. Walton's deposition transcript; drafting of notice of substitution of counsel.
Def's. Mot. to Compel, Ex. 2
As this entry illustrates, AG gave Portnoy and Lowe sufficiently detailed information to challenge the legitimacy of AG's billing practices. However, during his deposition, Lowe stated that he didn't want to challenge the legitimacy of any single entry. Instead, Lowe made an assertion that the general billing scheme was fraudulent. Moreover, Portnoy chose not depose any of the AG attorneys who worked on his matter, nor did he accept AG's invitation to come to their office to review his entire file. Clearly Portnoy had sufficient opportunity to provide material information to his expert to challenge AG's billing practices.
There are three remaining arguments set forth in the Motion, however, none are related to whether or not Lowe was qualified to give an expert opinion. First, Portnoy challenges the Court's use of the word "briefly" to describe the discussion that took place between AG and Portnoy's original counsel. Portnoy alleges that the Court's characterization is inaccurate, and asserts that "[i]n fact, Plaintiff had a discussion of approximately 20 minutes" with the original counsel. Second, Portnoy contends that contrary to the Court's statement in the Opinion and Order, AG did not mention to him that the estimate did not include post-trial briefing. Third, Portnoy argues that contrary to the Court's statement in the Opinion and Order, he did in fact challenge the invoices prior to this lawsuit.
The Court's use of the word "briefly", whether or not AG's estimate included post-trial briefing, and whether or not Portnoy previously challenged the invoices prior to this lawsuit have no bearing on whether Lowe was qualified to provide an expert opinion.
Finally, Portnoy argues that because he is a pro se litigant and is not "intimately familiar with Delaware Civil Rules of Procedure," the Court could have determined whether the retainer agreement was ambiguous without a formal motion or pleading. The Court is cognizant of Mr. Portnoy's status as a pro se litigant, and his lack of formal legal training. However, he did raise the issue of ambiguity during the litigation, and was explicitly told by the Court during the pre-trial conference that in order for the issue to be considered, a formal motion was required. Mr. Portnoy cannot now claim that his inexperience in litigation was an excuse for not presenting a motion when the Court provided him with notice. Further, his previous submissions to the Court demonstrate an ability to present his arguments through proper means.
Def.'s Mot. for Recons., 2.
II. AG's Motion for Entry of Judgment, or, in the alternative, to Amend Judgment
The Complaint filed by AG specifically requested that "judgment be entered (i) against Mr. Portnoy in the sum of $270,539.96 plus costs, pre-judgment interest and post-judgment interest; and (ii) for such other relief as this Court deems just and appropriate." AG later agreed to remove from the Court's consideration bills related to meals eaten while working on Portnoy's behalf, and all hours billed by AG prior to the retention agreement becoming effective. The cost of the meals totaled $1,241.57, and the fees generated prior to the effectiveness of the retention agreement was $7,622.50. Thus, AG seeks $261,675.89, plus pre-judgment and post-judgment interest.
Pursuant to Title Six § 2301(a) of the Delaware Code, AG is entitled to pre-judgment interest as a matter of right. AG seeks $39,231.21 in interest, which was compounded annually at 5% over the Federal Reserve discount rate. In addition, AG seeks post-judgment interest beginning on July 1, 2010 at the legal rate compounded annually. During oral argument on August 12, 2010, Portnoy conceded that he has no basis in which he can dispute the figures presented by AG other than his claims that were addressed and rejected in his motion for reargument and response to AG's motion for summary judgment and motion in limine. Thus, AG's Motion for Entry of Judgment is granted.
AG seeks pre-judgment interest beginning on February 25, 2008. On January 23, 2008, the final bill was submitted to Portnoy, with payment due in thirty days. February 25, 2008 provides for thirty days plus three days for mailing and receipt.
Conclusion
For the foregoing reasons, Defendant's Motion for Reconsideration is DENIED, and Plaintiff's Motion for Entry of Judgment is GRANTED. Counsel for the Plaintiff is instructed to submit an Order for Entry of Judgment in accord with this ruling for the Court's signature.
IT IS SO ORDERED.