Opinion
C. A. No. 01C-11-017-THG.
April 8, 2003.
David J. Weidman, Esquire, Hudson, Jones, Jaywork Fisher
Craig A. Karsnitz, Esquire, Young, Conaway, Stargatt Taylor
Thomas E. Birsic, Esquire, Michael L. Bell, Esquire, Kirkpatrick Lockhart, LLP
Glenn E. Hitchens, Esquire, Carl N. Kunz, III, Esquire, Morris, James, Hitchens Williams, LLP
Dear Counsel:
The Court has received the Plaintiff's Motion for Reargument as to the matters concerning attorneys' fees ordered on December 31, 2002.
The attorneys' fees were awarded not to punish the Plaintiff in this case. The attorneys' fees were to cover a portion of the Defendant's expenses in preparation for trial, but from which Defendant would get little or no benefit because of the emergency continuance request by the Plaintiff.
I deemed it to be unfair that the Plaintiff filed an emergency request for a continuance, literally at the 11th hour. The emergency continuance was in response to Defendant's Motion in Limine seeking to bar Plaintiff from presenting evidence on a theory of damages in which there had been no discovery. The request for continuance may very well have been wise for the Plaintiff, as the Plaintiff desired to pursue a theory at trial on damages that had not been aired out in discovery. If the continuance request was not granted and Defendant's Motion in Limine was granted, then Plaintiff was in a real pickle. Plaintiff would have been unable to pursue the new theory of damages which Plaintiff apparently realized was probably its only path to a recovery. Mr. Weidman was advised by me that if the continuance was granted, I would have to do it under the condition that reasonable attorneys' fees should be paid to the defense, as I found the Plaintiff's actions or lack thereof necessitated the continuance request.
In the reargument motion, Mr. Weidman stated he "was not of the understanding that the court intended to make an award of counsel fees". I disagree and it appears the failure of accountability continues.
The following is from Pages 20 and 21 of the transcript:
THE COURT: David, I think you have created the situation that you need a continuance. That's my opinion. That during the discovery period, that you did not make any indications that you were switching to 708. These are special damages.
The scope and focus of what discovery would be is based upon the damages you are seeking. I will grant a continuance, but there has to be consequences to that. The defendant, the defense has spent, I'm sure, thousands and thousands and thousands of dollars in preparing for the trial that is going to be in two weeks. They should not absorb that. There are consequences. If I grant the continuance, I am going to undertake and look at what expenses should be reimbursed as a consequence of the continuance, do you understand that?
MR. WEIDMAN: Yes, I do, Your Honor. And you know, quite frankly, if I discussed this with my client, I foresee a very additional limited period of discovery underlying the lost profits. I don't think my client will have a problem absorbing that cost because my client has no alternative. It will be foreclosed for him seeking a legitimate remedy. My fear is, that the way NewBold has litigated this case, it could amount to thousands, if not tens of thousands of dollars.
THE COURT: It could. They have four lawyers.
This is a significant dollar case in which the Plaintiff is pursuing a judgment against the Defendant for a quarter of a million dollars or more. In defending the action, the Defendant has local counsel and out-of-state counsel as is the Defendant's choice. Normally, the Defendant would pay his own way. But as aforementioned, and mentioned in my ruling of December 31, 2002, it is unfair for the Defendant to have to bear the substantial expenses of preparing for a trial and then having the case continued based upon Plaintiff's determination that it can't recover unless it changes course. While I agree that in many cases the continuances requested by a party do not trigger attorneys' fees, I also note that most of the continuances come well before the "11th hour" and frequently do not involve cases where substantial sums are at risk and therefore substantial attorneys' fees are being generated.
To the extent Plaintiff argues the Court has no authority to award attorneys fees under these circumstances, I am satisfied the Court can enforce its scheduling orders and condition a continuance request on appropriate equitable relief. Cebenka v. Upjohn Co., 559 A.2d 1219 (Del. 1989); Bell v. Wolhar, 1999 WL 971072 , Del. Supr., No. 117, 1999, Walsh, J. (Oct. 5, 1999) (ORDER); and Baker v. Rivair Flying Serv., Inc., 744 F.2d 1438 (10th Cir. 1984).
Plaintiff's Motion for Reargument is denied, but since I determined the fees without the benefit of a hearing, I shall conduct a post-trial hearing on the question of the appropriate amount of the fees to be awarded.
IT IS SO ORDERED.