Opinion
Civil Action No. 07C-12-002.
August 6, 2009.
Joseph W. Benson, Esquire, Andrew Ahern III, Esquire, JOSEPH W. BENSON, P.A., Wilmington, DE.
Christopher J. Lamb, Esquire, Pepper, Hamilton, LLP, Wilmington, DE.
Barbara Anisko, Esquire, Pamela M. Tobin, Esquire, KAPLIN STEWARD MELOFF REITER AND STEIN, P.C., Blue Bell, PA.
Daniel F. Wolcott, Jr., Esquire, Gregory A. Inskip, Esquire, POTTER ANDERSON CORROON, LLP, Wilmington, DE.
Dear Counsel:
This Motion for a Charging Lien became ripe for decision upon the remand from the Supreme Court to resolve post-trial ancillary motions. The decision of this Court and return to the Supreme Court must be accomplished prior to August 24, 2009.
Kaplin, Steward, Meloff, Reiter and Stein, P.C. ("Kaplin Steward") represented Plaintiff in this case.
As a part of my decision of May 29, 2009, I awarded Plaintiff prejudgment interest on a Two Million Dollar ($2,000,000.00) mortgage that Defendants, Ridings and Centex, did not timely satisfy. This mortgage was not on the real property that was at issue in the litigation but on another property. This mortgage was to protect Defendants if Plaintiff defaulted on the contract. The prejudgment interest has been calculated to be $214,772.80 and I entered judgment on same on August 5, 2009.
Subsequent to my decision, RBS Citizens, N.A. ("RBS") filed a writ seeking to attach the prejudgment interest award. RBS obtained a stipulated judgment on April 1, 2009 against Plaintiff involving the property that was the subject of this litigation.
Kaplin Steward has filed a motion seeking an attorneys' charging lien against the prejudgment interest award for its representation of Plaintiff in which Plaintiff substantially prevailed in the litigation including the prejudgment interest award. Royal Ins. V. Simon, 174 A.2d 444 (Del. Ch. 1934); Polin v. Delmarva Poultry Corp., 188 A.2d 364 (Del. Super 1963). Plaintiff has not filed any objection to its attorneys' application.
The Court's decision significantly increased the value of the subject real property; and, therefore, the decision also significantly benefitted RBS as to its mortgage on the subject property.
But for the litigation and efforts of Kaplin Steward, the prejudgment interest award now owed by Ridings and Centex would not exist.
As a party to the litigation, RBS was fully aware of the litigation and Kaplin Steward's significant work which benefitted not only Plaintiff but also RBS. RBS was also aware of the financial plight of Plaintiff based upon not only the subject matter of the litigation but also the direct communications and negotiations with Plaintiff as to the indebtedness to RBS.
It is important to repeat that RBS benefitted significantly in the protection of its collateral by the work of Kaplin Steward, and RBS had knowledge of the financial circumstances of Plaintiff. RBS was represented and could have reasonably predicted that Plaintiff's counsel would try to protect itself with a charging lien.
On May 29, 2009, the prejudgment interest was awarded and it became ripe for a charging lien. The writ of attachment fieri facias was filed by RBS on or about June 10, 2009. In other words, RBS was secured by its mortgage and judgment as to the subject property, but its "interest" in the prejudgment interest award was not an automatic lien. The writ was necessary to attach the prejudgment interest.
Therefore, based upon the above, it is fair, equitable and appropriate that a charging lien be recognized in favor of Kaplin Steward as to the May 29, 2009 prejudgment interest award.
IT IS SO ORDERED.
Dear Counsel:
This is the Court's decision on the remaining post-trial ancillary motions to be resolved pursuant to the remand from the Supreme Court. The return of the case to the Supreme Court must be accomplished before August 24, 2009.
Plaintiff is seeking costs pursuant to Superior Court Civil Rule 54 and 10 Del. C. § 5101. Ridings and Centex oppose the motion as being untimely and on the grounds that Caldera was not the prevailing party.
The Court issued its post-trial decision on May 29, 2009. Superior Court Civil Rule 54 requires an application for costs to be filed within ten (10) days. The Motion was filed on June 16, 2009 which is two (2) business days late.
Caldera subsequently filed a Motion seeking to enlarge the time permitted for the costs motion based upon "counsel's inadvertence in calendaring the deadline". The Court has discretion to enlarge the time for filing pursuant to Superior Court Civil Rule 6 for good cause shown. This case has been hard fought. I have endeavored to get to the substantive issues and will do so as to this motion. I accept counsel's reason for filing two business days late and find it to be excusable neglect. This is a situation where there is no harm or prejudice to Ridings or Centex arising from Plaintiff's tardiness.
As to the merits, Defendants argue that the Court should determine Caldera was not the prevailing party. Defendants also argue that the Court's decision in denying the attorneys fee application should end the matter based upon the Court's prior reasoning.
The heart and soul of this litigation involved who was going to bear the costs of the sewer infrastructure for Phases II and III. This was an issue primarily outside of the contract; and, for that reason, I did not award attorneys' fees as may have been permitted by the contract.
The present motion is not based on the contract but on the pertinent rule and statute.
Caldera was the prevailing party as to the sewer infrastructure issue. Defendants do not contest the specifics of what is being requested. The Court costs, sheriff's fees, docket fees, and deposition costs are awarded in the amount of $14,532.09.
IT IS SO ORDERED.