Opinion
No. 117, 1999.
October 5, 1999.
Superior Court of the State of Delaware, in and for Sussex County, C.A. No. 97C-02-014.
AFFIRMED.
Unpublished Opinion is below.
ADA H. BELL, individually and as administratrix of the estate of decedent ELLA MAE STANFORD, Plaintiff Below, Appellant, v. ROBERT C. WOLHAR, JR., Defendant Below, Appellee. No. 117, 1999. Supreme Court of Delaware. Submitted September 13, 1999. Decided October 5, 1999.
Superior Court of the State of Delaware, in and for Sussex County, C.A. No. 97C-02-014.
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices.
Joseph T. Walsh, Justice
ORDER
This 5th day of October 1999, it appears to the Court that:
(1) This appeal arises from an order of the Superior Court requiring plaintiff's counsel ("counsel") to pay $2,500 in attorney's fees and expenses to defendant. Counsel has filed her opening brief and appendix. Defendant has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of the opening brief that the appeal is without merit. Supr. Ct. R. 25(a). We agree and affirm.
(2) It appears from the record that, in February 1997, Ada H. Bell ("plaintiff"), individually and as administratrix of her deceased mother's estate, brought a wrongful death action in the Superior Court against Robert C. Wolhar, Jr. ("defendant"). Plaintiff alleged that her mother died from severe burn injuries she sustained in a house fire. The house was a rental property that was owned and operated by defendant. Plaintiff alleged that defendant's negligence in maintaining the rental house proximately caused her mother's death.
(3) A trial was scheduled for October 21, 1998. At a pretrial conference on September 30, 1998, counsel, over defendant's objection, requested a continuance of the trial date. The record reflects that the basis of the request was "due to [counsel] not being prepared." The record reflects that the Superior Court "reluctantly" granted a continuance and set a new trial date for March 3, 1999.
(4) On October 5, 1998, the Superior Court issued an amended pretrial scheduling order. The scheduling order established that plaintiff's expert was to be named by October 31, 1998, that any report by plaintiff's expert was due by November 20, 1998, and that discovery was to be completed by January 15, 1999.
(5) The Superior Court held a pretrial conference on February 17, 1999. On that date, defendant filed a motion in limine seeking, in part, to exclude testimony pertaining to a new theory of liability that defendant alleged was first disclosed by plaintiff's expert witness at a deposition the day before. Defendant also sought to exclude the testimony of plaintiff's sole medical expert witness, charging that the identity of the medical witness also was disclosed to defendant for the first time the day before.
(6) Defendant's motion in limine requested a dismissal of plaintiff's complaint on the basis that the exclusion of the testimony was fatal to plaintiff's case. In her response to the motion, plaintiff opposed the exclusion of the testimony, but suggested that a continuance of the trial was "the optimal solution."
(7) At teleconferences on February 24 and 26, 1999, the Superior Court granted plaintiff's request for a continuance on the condition that counsel pay to defendant the amount of $2,500 as reimbursement for defendant's trial expenses. This appeal followed.
Earlier in this appeal, this Court determined that this interim order was appealable under the collateral order doctrine. See Elwyn Evans v. Justice of the Peace Court No. 19, Del. Supr., 652 A.2d 574 (1995).
(8) In her opening brief on appeal, counsel contends that, in the absence of her wilful disregard of a court order, the Superior Court was without authority to order that counsel pay defendant's trial expenses. Counsel also claims that the amount awarded was unjustified. Counsel's claims are without merit.
(9) The Superior Court has the inherent authority to impose sanctions and assess reasonable expenses, including attorney's fees, for the violation of a pretrial scheduling order. Such an award is within the discretion of the Superior Court and will be overturned only if the court abused its discretion.
Cebenka v. Upjohn Co., Del. Supr., 559 A.2d 1219, 1225 (1989).
Id. at 1226.
(10) In this case, counsel did not comply with the pretrial scheduling order that required the timely disclosure of expert witness information. Rather than dismiss the case or exclude the expert witness testimony, the Superior Court granted plaintiff's request for a continuance, but imposed a sanction against counsel and assessed reasonable expenses, as it had the authority to do. The total amount awarded was $2,500, representing $500 for continuing the trial and $2,000 as reimbursement for a portion of the $3,123 in attorney's fees and trial preparation expenses that were incurred by the defendant. The amount awarded was reasonable. We find no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that defendant's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.