Gillen v. Continental Power Corporation ( 2014 )


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  •            IN THE SUPREME COURT OF THE STATE OF DELAWARE
    LAWRENCE P. GILLEN,                     §
    §
    Plaintiff Below,                  §   No. 227, 2014
    Appellant,                        §
    §
    v.                                §   Court Below: Superior Court
    §   of the State of Delaware,
    CONTINENTAL POWER                       §   in and for New Castle County
    CORPORATION and EDWARD                  §   C.A. No. N10C-05-090 (PRW)
    HENRY KIMMEL                            §
    §
    Defendants Below,                 §
    Appellees.                        §
    Submitted: September 12, 2014
    Decided: November 18, 2014
    Corrected: November 19, 2014
    Before HOLLAND, RIDGELY, and VALIHURA Justices.
    ORDER
    This 18th day of November 2014, upon consideration of the parties’ briefs
    and the record on appeal, it appears to the Court that:
    (1)    The plaintiff-appellant, Lawrence P. Gillen, filed this appeal from a
    Superior Court jury’s verdict in favor of the defendants-appellees, Continental
    Power Corporation (“Continental”) and Edward Henry Kimmel, the Superior
    Court’s April 7, 2014 opinion and order denying Gillen’s motion for a new trial,
    and the Superior Court’s April 8, 2014 order awarding the defendants $2,997.69 in
    attorneys’ fees and costs. We affirm the judgment of the Superior Court.
    (2)     The record reflects that Gillen and Kimmel met in the fall of 2007.
    Gillen sold power conditioning systems and Kimmel was the founder, president,
    and sole stockholder of Continental, a Delaware corporation that sold power
    conditioning systems for residential and commercial use.               Gillen initially
    purchased power conditioning systems from Continental and resold the systems to
    his own customers, primarily EcoQuest. In 2008, Gillen became an independent
    manufacturer’s sales representative for Continental.         After Ecoquest filed for
    bankruptcy, the relationship between Gillen and Kimmel gradually deteriorated.
    (3)     In April 2010, Gillen filed a pro se complaint against Continental and
    Kimmel.        Gillen alleged that he, Kimmel, and Continental “entered into an
    agreement in October 2007 whereby they agreed to be 50/50 partners in the
    distribution and installation in energy savings devices in residence and commercial
    property in Delaware and other locations” and that he did not receive 50% of the
    profits as the parties had agreed.1 Gillen asserted claims for breach of contract,
    tortious interference, fraud, and defamation. In October 2012, the Superior Court
    granted the defendants’ motion for summary judgment on the tortious interference,
    fraud, and defamation claims, but denied the motion with respect to the breach of
    contract claim.
    1
    Appellant’s Appendix at A56 ¶¶ 4, 8, 11.
    2
    (4)    In July 2013, Gillen retained counsel, who requested a continuance of
    the September 2013 trial dates so that a particular witness could attend the trial and
    counsel could familiarize himself with the case. The Superior Court granted the
    motion and re-scheduled the trial to begin on October 28, 2013. On September 30,
    2013, Gillen’s counsel moved to withdraw. The Superior Court granted the motion
    and denied Gillen’s request for another continuance.
    (5)    Gillen then retained new counsel, who requested a continuance so he
    could prepare for the trial. Counsel also later informed the Superior Court that he
    had a scheduling conflict on the last day of trial. The Superior Court granted the
    motion for a continuance over the objections of the defendants and re-scheduled
    the trial to begin on December 4, 2013. The Superior Court bifurcated the trial so
    that the trial would proceed on liability only, with a hearing on damages to be
    scheduled if necessary. The jury returned a verdict in favor of the defendants.
    (6)    Gillen filed a motion for a new trial and his counsel moved to
    withdraw. The Superior Court granted the motion to withdraw and denied the
    motion for a new trial. The Superior Court awarded the defendants $2,997.69 for
    attorneys’ fees and costs they incurred in responding to the second motion for a
    continuance and preparing another pretrial stipulation. This appeal followed.
    (7)    Gillen’s arguments on appeal may be summarized as follows: (i) the
    Superior Court judge erred in not recusing himself; (ii) the Superior Court erred in
    3
    allowing the admission of Gillen’s prior criminal convictions in Florida and failed
    to provide a limiting instruction to the jury; (iii) the Superior Court erred in
    limiting the theory of liability presented at trial and in instructing the jury; (iv) the
    Superior Court erred in limiting the testimony of Leo Rammuno, Esq. and
    excluding correspondence written by Kimmel; (v) the Superior Court erred in
    denying his motion for a new trial; and (vi) the Superior Court erred in awarding
    the defendants’ $2,997.69 in attorneys’ fees and costs.
    (8)    At a September 23, 2013 hearing on Gillen’s motion in limine to
    preclude the use of his criminal convictions at trial, the Superior Court judge (who
    had replaced the original judge in July 2013) notified the parties that he had
    learned that he was the prosecutor for driving charges brought against Gillen in the
    early 1990s as well as a misuse of credit card charge brought in 1994. The
    Superior Court judge noted that neither of these matters would be admissible under
    Rule 609 of the Delaware Rules of Evidence (“D.R.E.”) because they were
    misdemeanors or subject to nolle prosequi.           He also stated that he had no
    recollection of the charges. Although the Superior Court judge believed he could
    be fair and impartial, he stated that he wanted to give Gillen’s counsel the
    opportunity to consider whether he wished to file a motion for recusal.
    (9)    Gillen’s counsel did not file a motion for recusal. At the October 14,
    2013 hearing on the motion to withdraw filed by Gillen’s first counsel, Gillen
    4
    asked if he could file a motion for recusal. The Superior Court judge indicated that
    he was unlikely to grant such a motion based on his previous analysis, but he
    would consider a written motion if filed by the close of business on October 16,
    2013. Gillen did not file a motion for recusal, but complained in his motion for a
    new trial that the Superior Court judge refused to recuse himself. The Superior
    Court judge rejected this argument and concluded that he was not required to
    recuse himself.
    (10)    When deciding whether to recuse himself, a judge engages in a two-
    part analysis. First, the judge must be satisfied, as a matter of subjective belief,
    that he can hear the matter free of bias or prejudice.2 Second, even if the judge
    believes he is free of bias or prejudice, he must objectively consider whether the
    circumstances require recusal because there is an appearance of bias sufficient to
    cast doubt on the judge’s impartiality.3 On appeal, we review the subjective
    analysis for abuse of discretion and the objective analysis de novo.4
    (11) In denying Gillen’s motion for a new trial, the Superior Court engaged
    in the two-part analysis for recusal. The Superior Court judge noted that Gillen
    never filed a motion for recusal, the Delaware charges for which he was the
    2
    Los v. Los, 
    595 A.2d 381
    , 384-85 (Del. 1991).
    3
    
    Id. at 385
    .
    4
    Fritzinger v. State, 
    10 A.3d 603
    , 611 (Del. 2010).
    5
    prosecutor were not admissible under Rule 609, and he had no recollection of the
    charges. The Superior Court judge concluded, as a matter of subjective belief, that
    he could and did hear the matter free of bias or prejudice and that an objective
    observer would not question his impartiality.
    (12) Gillen contends that there was an appearance of bias because the
    Superior Court judge learned he was the prosecutor for two of the Delaware
    convictions by researching Gillen’s Delaware criminal history (which was
    described in the pardon accompanying Gillen’s motion in limine). We disagree.
    The Superior Court judge did not create an appearance of impropriety by
    discovering the potential issue (an issue that Gillen relies upon in his appeal) and
    promptly informing the parties. Under the circumstances, we do not discern any
    abuse of discretion in the Superior Court’s subjective analysis nor, after de novo
    review, do we discern any appearance of bias sufficient to cast doubt on the
    Superior Court judge’s impartiality.
    (13) Gillen next argues that the Superior Court erred in allowing the
    admission of his credit card fraud and felony larceny criminal convictions in
    Florida for impeachment purposes. The Superior Court granted Gillen’s motion in
    limine to exclude evidence of his Delaware convictions (which had been
    pardoned), but denied the motion with respect to his Florida convictions. This
    6
    Court reviews evidentiary rulings for abuse of discretion.5 “An abuse of discretion
    occurs when ‘a court has ... exceeded the bounds of reason in view of the
    circumstances, [or] ... so ignored recognized rules of law or practice so as to
    produce injustice.’”6
    (14) The Florida convictions occurred in 1992 and were therefore more
    than ten years old. Under Rule 609(b), evidence of a conviction more than ten
    years old is not admissible unless the Superior Court “determines, in the interests
    of justice, that the probative value of the conviction supported by the specific facts
    and circumstances substantially outweighs its prejudicial effect.”7                  Having
    carefully reviewed the record, we conclude that the Superior Court’s decision did
    not amount to an abuse of discretion. The Superior Court properly applied Rule
    609(b) and concluded that the probative value of the Florida convictions
    substantially out weighed the prejudicial effect in this case because the jury had to
    determine whether the parties had an oral agreement as alleged by Gillen and
    Gillen’s credibility was important to this determination. The Marvel v. Snyder8
    decision that Gillen relies upon is inapposite as it involved a prisoner convicted of
    5
    Cuonzo v. Shore, 
    958 A.2d 840
    , 845 (Del. 2008).
    6
    Lilly v. State, 
    649 A.2d 1055
    , 1059 (Del.1994) (quoting Firestone Tire & Rubber Co. v. Adams,
    
    541 A.2d 567
    , 570 (Del.1988)).
    7
    D.R.E. 609(b).
    8
    
    2003 WL 22134838
     (D. Del. Sept. 9, 2003).
    7
    sexual crimes and assault who brought a prisoner civil rights action against the
    Department of Correction, not a businessman convicted of credit card fraud and
    larceny who claimed to have an oral agreement with another businessman.
    (15) Gillen also contends that the Superior Court erred by failing to give a
    limiting jury instruction regarding his Florida criminal convictions. There is no
    indication that Gillen ever requested a limiting jury instruction so we review this
    claim for plain error.9         “Under the plain error standard of review, the error
    complained of must be so clearly prejudicial to substantial rights as to jeopardize
    the fairness and integrity of the trial process.”10 Gillen has not shown that the lack
    of an instruction cautioning the jurors to limit their consideration of the Florida
    convictions to his credibility clearly prejudiced his substantial rights or jeopardized
    the fairness and integrity of the trial process. Accordingly, the lack of such an
    instruction did not constitute plain error.
    (16) Gillen next argues that the Superior Court erred in limiting the scope
    of the trial and the jury instructions to consideration of whether the parties entered
    into an agreement forming a partnership in October 2007. According to Gillen, his
    case was not limited to whether the parties formed a partnership in October 2007,
    9
    Supr. Ct. R. 8; Dougherty v. State, 
    21 A.3d 1
    , 6 (Del. 2011); Beebe Med. Ctr., Inc. v. Bailey,
    
    913 A.2d 543
    , 555 (Del. 2006).
    10
    Wainwright v. State, 
    504 A.2d 1096
    , 1100 (Del. 1986).
    8
    the jury could have found the parties entered into a commission relationship in
    April 2008, and the Superior Court should not have denied his request for a
    promissory estoppel instruction.           We review the denial of a requested jury
    instruction de novo.11
    (17) Before the trial started, the defendants objected to Gillen’s attempt to
    include jury instructions for promissory estoppel and other non-partnership
    agreement theories of liability because the case was pled and defended as a breach
    of a partnership agreement for more than three years. Based upon its prior rulings,
    the complaint, how the case was litigated, and the lack of a motion to amend the
    complaint, the Superior Court concluded that the only remaining issue for the jury
    was whether the parties entered into an agreement in October 2007 whereby they
    agreed to be 50/50 partners in the distribution and installation of energy savings
    devices in residential and commercial property in Delaware.                    The jury was
    instructed to decide if Gillen and Kimmel or Gillen and Continental entered into a
    partnership agreement in October 2007 whereby they agreed to be 50/50 partners
    in the distribution and installation of energy saving devices in residential and
    commercial properties.
    (18) In support of his argument that the Superior Court erred in limiting the
    scope of the trial and instructing the jury, Gillen points to allegations in his
    11
    Sammons v. Doctors for Emergency Servs., P.A., 
    913 A.2d 519
    , 540 (Del. 2006).
    9
    complaint that he was owed 50% of the profits from jobs performed by the parties
    as well as commissions, Kimmel’s trial testimony that there was a commission
    relationship between the parties (rather than a partnership) beginning in 2008, and
    Gillen’s pro se status throughout most of the litigation. The complaint includes
    allegations that the parties “entered into an agreement in October 2007 whereby
    they agreed to be 50/50 partners in the distribution and installation in energy
    savings devices in residence and commercial property in Delaware and other
    locations,”12 the parties were “actively engaged in their partnerships” and sharing
    profits on a 50/50 basis,13 and the “partnership sold units to a multi-level marketing
    firm know as Ecoquest and was sharing those profits as well on a 50/50 basis.”14
    Throughout the summary judgment papers, Gillen argued that the parties entered
    into an oral partnership agreement in October 2007. When the Superior Court
    denied the defendants’ motion for reconsideration of the denial of their motion for
    summary judgment on the breach of contract claim, it recognized that it had
    previously found there was a genuine issue of material fact “regarding the specifics
    of the alleged 50/50 partnership agreement.”15 Given the record in this case, the
    12
    Appellant’s Appendix at A56 ¶ 4.
    13
    
    Id.
     at A57 ¶ 6.
    14
    
    Id.
    15
    Superior Court Docket Entry No. 170.
    10
    Superior Court did not err in limiting the theory of liability presented by Gillen at
    trial or in instructing the jury. Pro se litigants are generally granted some leeway
    in preparing and presenting their cases, but the Superior Court was not required to
    “sacrifice the orderly and efficient administration of justice” to accommodate
    Gillen.16
    (19) Gillen next argues that the Superior Court erred in limiting the
    testimony of Leo Ramunno, Esq. and excluding correspondence written by
    Kimmel in the course of the parties’ attempts to settle their disputes, with
    Ramunno’s assistance, in April 2010. Ramunno, who was a friend of Gillen and
    represented him in various matters over the years, began representing Continental
    in 2008 or 2009. In June 2010, Ramunno withdrew from representing Continental
    in a Court of Chancery action.
    (20) The defendants filed a motion in limine to preclude Ramunno from
    testifying about matters subject to the attorney-client privilege and/or work product
    doctrine and the parties’ efforts to compromise their disputes in April 2010. Gillen
    sought to introduce testimony from Ramunno that: (1) he heard Kimmel make a
    toast referring to Gillen as his partner and their partnership at a dinner in 2008,
    before Continental retained Ramunno, with a number of other, non-Continental
    affiliated people; (2) he heard Kimmel and Gillen refer to each other as partners
    16
    Draper v. Med. Ctr. of Delaware, 
    767 A.2d 796
    , 799 (Del. 2001).
    11
    and their partnership in conversations they had with Ramunno or in Ramunno’s
    presence regarding litigation brought by or against Continental and an Ecoquest
    employee who became an independent manufacturer’s sales representative for
    Continental after Ramunno was retained by Continental; and (3) he had knowledge
    of the parties’ business relationship as a result of trying to help them settle their
    disputes in April 2010. The Superior Court permitted Ramunno to testify about the
    toast at the 2008 dinner, but did not allow him to testify about the other
    communications.       The Superior Court also excluded the April 2010
    correspondence Kimmel sent in the course of the parties’ settlement negotiations.
    (21) The Superior Court concluded that the communications were
    privileged under Rule 502 because they were made in the rendition of legal
    services and meant to be confidential between Continental and its sales agents.
    The Superior Court also found that statements Kimmel made during the parties’
    April 2010 settlement negotiations (which included oral and written statements)
    were inadmissible under Rule 408 because the statements were made in
    compromise negotiations and being offered to prove liability. Finally, the Superior
    Court held that Ramunno’s testimony regarding the parties’ relationship would be
    unfairly prejudicial under Rule 403 because he was a lawyer that had represented
    Continental and the jury would be inclined to give undue weight to his testimony.
    12
    (22) This Court reviews evidentiary rulings for abuse of discretion.17 If
    there is an abuse of discretion, then we must determine whether the error
    constituted significant prejudice depriving the appellant of a fair trial.18
    Applicability of the attorney-client privilege and work product doctrine is reviewed
    de novo.19
    (23) Gillen argues that Kimmel’s statements are not privileged under Rule
    502(d)(6) because he and Continental were joint clients of Ramunno
    communicating about a matter of common interest.            The record reflects that
    Ramunno was representing Continental in the litigation under discussion, but does
    not reflect that Ramunno was representing Gillen, a Continental sales agent, in the
    litigation. If Gillen and Kimmel had jointly consulted Ramunno about forming a
    partnership, then those communications could be admissible under Rule 502(d)(6).
    But there is no contention or indication in the record that Gillen and Kimmel
    jointly sought Ramunno’s advice about forming a partnership and Ramunno was
    not retained by Continental until approximately a year after Gillen claims that the
    parties agreed to a partnership. As far as statements Kimmel made in the course of
    the parties’ April 2010 negotiations to settle their disputes, Gillen offered these
    17
    Cuonzo, 
    958 A.2d at 845
    .
    18
    
    Id.
    19
    Wal-Mart Stores, Inc. v. Indiana Elec. Workers Pension Trust Fund IBEW, 
    95 A.3d 1264
    ,
    1272 (Del. 2014).
    13
    statements to prove liability. Gillen does not address the Superior Court’s holding
    that Ramunno’s proposed testimony was unfairly prejudicial to Continental under
    Rule 403.
    (24) In addition, the statements and correspondence Gillen claims were
    wrongly excluded are generally cumulative of evidence that was admitted.
    Multiple witnesses testified that Kimmel referred to a partnership and Gillen as a
    partner at the 2008 dinner. Kimmel testified as to how the parties split profits and
    expenses on certain jobs. The excluded statements and correspondence are also
    well after October 2007 and do not contain any admissions by Kimmel that the
    parties entered into a partnership in October 2007. Having carefully reviewed the
    record, we conclude that the Superior Court’s limitation of Ramunno’s testimony
    and exclusion of Kimmel’s April 2010 correspondence does not constitute
    reversible error.
    (25) With respect to Gillen’s claim that the Superior Court erred in
    denying his motion for a new trial, we review the denial of a motion for a new trial
    for abuse of discretion.20 “We will find an abuse of discretion ‘if the jury verdict
    was against the great weight of evidence, no reasonable jury could have reached
    20
    Young v. Frase, 
    702 A.2d 1234
    , 1236 (Del. 1997).
    14
    the result, and the denial was untenable and unreasonable.’”21 Gillen seems to
    argue that the Superior Court erred in denying his motion for a new trial because it
    mistakenly believed that he had not requested preparation of trial transcripts, it did
    not give him the opportunity to supplement his motion with citations to the trial
    transcripts because the transcripts were not ready until after the Superior Court’s
    decision, and the verdict was against the weight of the evidence. To the extent
    Gillen claims he is entitled to a new trial based upon the jury instructions and the
    evidentiary rulings of the Superior Court, we have already addressed and rejected
    those claims.
    (26) The only time the Superior Court referred to the lack of trial transcript
    citations in its opinion denying the motion for a new trial was in connection with
    Gillen’s claim that the Superior Court erroneously limited the testimony of
    Ramunno and excluded correspondence written by Kimmel. The Superior Court
    reviewed the events leading to its decision to limit Ramunno’s proffered testimony
    and concluded that Gillen did not identify any legal error in that decision. Gillen
    fails to identify any portions of the trial transcripts that could have led to a different
    result on his motion for a new trial. As far as the correspondence that Gillen
    contends was erroneously excluded, he could have included that correspondence
    21
    Estate of Rae v. Murphy, 
    956 A.2d 1266
    , 1272 (Del. 2008) (quoting Wilhelm v. Ryan, 
    903 A.2d 745
    , 755 (Del. 2006)).
    15
    with his motion for a new trial but did not do so. Gillen also fails to identify any
    portions of the trial transcripts that could have led to a different result on his
    motion for a new trial.
    (27) Based upon the trial record in this case, a reasonable jury could have
    concluded that the parties did not enter into a partnership agreement in October
    2007 whereby they agreed to be 50/50 partners in the distribution and installation
    of energy saving devices in residential and commercial properties. Gillen has not
    shown that the jury’s verdict was against the great weight of the evidence. Thus,
    the Superior Court did not err in denying Gillen’s motion for a new trial.
    (28) Finally, Gillen argues that the Superior Court erred in awarding the
    defendants $2,997.69 in attorneys’ fees and costs. We review an attorney’s fee
    award for abuse of discretion.22             After granting the second motion for a
    continuance filed by Gillen’s counsel over the objections of the defendants, the
    Superior Court ordered Gillen to pay the costs and expenses incurred by the
    defendants in responding to the second motion for continuance and preparing
    another pretrial stipulation. The Superior Court concluded that Gillen should pay
    these costs and expenses because it was his conduct that led to multiple
    continuance motions, the rescheduling of trial twice, and the filing of multiple
    pretrial stipulations.      After trial, the Superior Court awarded the defendants
    22
    Johnston v. Arbitrium (Cayman Islands) Handels AG, 
    720 A.2d 542
    , 546 (Del. 1998).
    16
    $2,997.69 of the $10,553.69 in attorneys’ fees and costs they incurred in
    responding to the second motion for a continuance and preparing another pretrial
    stipulation.
    (29) On appeal, Gillen claims he should not have to pay the defendants’
    fees and costs in connection with his second counsel’s request for a continuance
    because counsel accepted the case and should have known he had a conflict on one
    of the scheduled trial days. Gillen disregards that his counsel originally requested
    a continuance so that he would have more than two weeks to prepare for trial. The
    short time frame was a result of Gillen’s previous counsel (who also requested and
    received a continuance in order to have additional time to prepare for trial)
    withdrawing from the case because Gillen failed to fulfill his obligations to him.
    Given that Gillen’s actions resulted in multiple continuance motions, the
    rescheduling of trial twice in two months in a case filed more than three years
    earlier, and the filing of multiple pretrial stipulations, the Superior Court did not
    abuse its discretion in awarding the defendants attorneys’ fees and costs they
    incurred in responding to the second motion for a continuance and preparing
    another pretrial stipulation.
    (30) Nor did the Superior Court err in awarding attorneys’ fees and costs of
    $2,997.69.     The defendants provided sufficient information concerning their
    attorneys’ fees and costs in connection with the second motion for a continuance
    17
    and the preparation of another pretrial stipulation.    Although the defendants
    requested $10,553.69 (consisting of $9,556 in attorneys’ fees and $997.69 in
    costs), the Superior Court awarded $2,997.69 (consisting of $2,000 in attorneys’
    fees and $997.69 in costs). Gillen benefitted from this reduction and has not
    shown that the Superior Court abused its discretion in concluding that $2,000 in
    attorneys’ fees and $997.69 in costs were reasonable.
    NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
    Court is AFFIRMED.
    BY THE COURT:
    /s/ Henry duPont Ridgely
    Justice
    18