Opinion
C.A. No. 98A-04-001.
Date submitted: November 15, 1999.
Date decided: January 27, 2000. Petition Granted: February 8, 2000.
Upon Appellee's Petition for Attorney's Fees — GRANTED.
ORDER
Upon review of the aforementioned petition for attorney's fees, it appears to this Court that:
1. On April 13, 1999, the attorneys for Appellee Terry Alphin ("Petitioner") submitted to this Court a Petition for Attorney's Fees pursuant to 19 Del. C. § 2350 (f). Petitioner supplemented the application on October 26, 1999 and November 29, 1999.
19 Del. C. § 2350 (f) provides:
The Superior Court may at its discretion allow a reasonable fee to claimant's attorney for services on an appeal from the Board to the Superior Court and from the Superior Court to the Supreme Court where the claimant's position in the hearing before the Board is affirmed on appeal. Such fee shall be taxed in the costs and become a part of the final judgment in the cause and may be recovered against the employer and the employer's insurance carrier as provided in this subchapter.
2. An award of counsel fees under section 2350 requires an exercise of judicial discretion in light of the factors set forth in General Motors Corp. v. Cox. These eight factors are listed in what is now Delaware Lawyers' Rule of Professional Conduct 1.5(a). Also, the Court must take into account the employer's ability to pay and whether the attorney will receive any fees and expenses from any source other than the Board's award.
Del. Supr., 304 A.2d 55 (1973).
3. On April 1, 1999, this Court affirmed the Board's decision denying Appellant Shaffers Market ("Employer")'s Motion for Reconsideration. Employer appealed to the Delaware Supreme Court and by Order dated October 21, 1999, the Supreme Court affirmed the decision of this Court.
Shaffers Market v. Alphin, Del. Super., C.A. No. 98A-04-001, Gebelein, J. (April 1, 1999).
Shaffers Market v. Alphin, Del. Supr., No. 193, 1999, Walsh, J. (Oct. 21, 1999).
4. Petitioner, having prevailed in successfully opposing Employer's appeal, is entitled to an award of attorney's fees and costs. Petitioner seeks $3,781.20 based upon 1.5 hours of work by Gordon L. McLaughlin, Esq. at the rate of $225.00 per hour, and 15.4 hours of work by Richard T. Wilson, Esq. at the rate of $200.00 per hour. Petitioner has included $203.70 for copying costs.
5. Employer has not challenged this application.
On November 1, 1999, in response to a letter from Petitioner advising the Court of the outcome of Supreme Court appeal, this Court ordered Employer to respond to the petition by November 15, 1999. On November 15, 1999, Employer requested an additional week to respond to the petition in hopes that the issue could be resolved without a ruling by the Court.
As of the date of this Order, the Court has not received a notice from the parties that the issue has been resolved, nor has a response from Employer been filed. Therefore, the Court will rule on the issue without a response from Employer.
6. Petitioner requests an award calculated at the rate of $225.00 per hour for the work performed by Gordon L. McLaughlin, Esq., and at the rate of $200.00 for the work performed by Richard T. Wilson, Esq. The hourly charges are reasonable in light of the work produced and are consistent with the hourly fees charged by other attorneys in the area with similar experience and credentials. Additionally, this Court finds that considering the complexity of the issues involved and the work produced, 16.9 hours of time is reasonable.
7. Based on the forgoing, Petitioner is awarded $3,781.20 based on the following:
Appeal (1.5 hours x $225.00 per hour) = $337.50
(15.4 hours x $200.00 per hour) = 3,080.00
Petition (0.80 hours x $200.00 per hour) = 160.00
Costs = 203.70
Total Awarded: = 3,781.20
Based on the foregoing reasons, Appellee's Petition for Attorney's Fees is GRANTED.
IT IS SO ORDERED.