1205 Coastal, LLC v. Cove Owners Association, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
1205 COASTAL, LLC, a Delaware )
limited liability company, )
)
Plaintiff, )
)
) C.A. No. S22C-07-002 CAK
v. )
)
)
COVE OWNERS ASSOCIATION, )
INC., a Delaware corporation, )
)
Defendant. )
Submitted: February 29, 2024
Decided: March 8, 2024
Upon Affidavits for Attorneys’ Fees
DENIED IN PART AND GRANTED IN PART
ORDER
Richard E. Berl, Jr., Esquire, Hudson Jones Jaywork & Fisher, LLC, 34382
Carpenter’s Way, Suite 3, Lewes, DE 19958, Attorney for Plaintiff.
Robert J. Valihura, Esquire, Morton, Valihura & Zerbato, LLC, 3704 Kennett Pike,
Suite 200, Greenville, DE 19807, Attorney for Defendant.
Aaron E. Moore, Esquire and M. Claire McCudden, Esquire, Marshall Dennehey,
P.C., 1007 North Orange Street, Suite 600, P.O. Box 8888, Wilmington, DE 19899-
8888, Attorneys for Defendant.
KARSNITZ, R. J.
In my Opinion dated January 29, 2024, I discussed the request of each party to
award it attorneys’ fees and costs against the other. Specifically, Defendant
requested such relief under two statutory provisions of the Delaware Uniform
Common Interest Ownership Act (“DUCIOA”)1
The first is 25 Del. C. §81-417(a), which provides that if a “person subject to
this chapter fails to comply with any of its provisions or any provision of the
declaration or bylaws, any person or class of persons adversely affected by the failure
to comply has a claim for appropriate relief. The court, in an appropriate case, may
award court costs and reasonable attorneys’ fees.” Defendant argued that the Court
of Common Pleas had already ruled in its favor on the statutory lien in an amount
well above the amount of the recorded lien, yet Plaintiff commenced this lawsuit in
Superior Court solely on the basis of the recorded lien, in an attempt to avoid its
obligations under the statutory lien, even though the decision of the Court of
Common Pleas on attorneys’ fees was still pending. Defendant claimed that it is a
person adversely affected by Plaintiff’s failure under DUCIOA to comply with its
obligations under the Cove Declaration and that is was harmed by Plaintiff’s
prosecution of this lawsuit.
The second is 25 Del. C. § 81-316(a), which provides that, in its efforts under
1
25 Del. C. § 81-101 et seq.
2
DUCIOA to collect the amounts due to it under the statutory lien, Defendant is entitled
to, inter alia, “court costs and reasonable attorneys' fees incurred in attempting
collection of the same.” In defending this action, Defendant was compelled to further
litigate – beyond the Court of Common Pleas -- the issue of whether it was entitled
to past due assessments and charges. T he statute does not provide that only a
prevailing plaintiff can recover legal fees and costs. It provides for recovery by
Defendant “as a result of an administrative or judicial decision.”2
In Delaware the general rule is that each party bears its attorneys’ fees and
expenses of litigation unless there is a “contractual or statutory basis for liability.” 3
A provision for personal liability for attorneys’ fees contained in the Cove
Declaration or DUCIOA is an enforceable contractual obligation against a record
owner of a condominium unit.4 I may order payment of reasonable attorneys’ fees
and costs so long as such payment is authorized by some provision of statute or
contract.5 Both the Cove Declaration and DUCIOA entitle Defendant to reasonable
attorneys’ fees and costs incurred in the obtaining and collection of this summary
judgment.
2
25 Del. C. § 81-316(a).
3
Casson v. Nationwide Ins. Co., 455 A.2d 361, 370 (Del. Super. 1982).
4
Id.5
Id.3
After rendering judgment for Defendant, and after reviewing the facts and
procedural history of the case, I awarded attorneys’ fees to Defendant. I asked
counsel for Defendant to file for my review an Affidavit of Attorneys’ Fees within
twenty-one (21) days of the Opinion and counsel for Plaintiff to file any response to
the Affidavit of Attorneys’ Fees within fourteen (14) days thereafter. Both counsel
have done so within the prescribed time period.
The Affidavits and related correspondence I received from counsel for the
Defendant were disappointing and inadequate. The fees of Morton, & Zerbato, LLC
were summarily stated in dollars and billable hours for lawyers and staff, without
any breakdown of which lawyer or staff person provided the legal services, what the
legal services were, when the legal services were provided, and at what applicable
billing rate the legal services were provided.
Similarly, the fees of Marshall Dennehy, P.C. are stated as a lump sum with
no breakdown of which lawyer or staff person provided the legal services, what the
legal services were, when the legal services were provided, and at what applicable
billing rate the legal services were provided.
With this minimal information, it is impossible for me to ascertain whether
the legal services and the fees therefor were reasonable and proportionate to the
results obtained by Defendant.
4
Therefore, I deny the award of attorneys’ fees to Defendant in this case with
prejudice, and only award the amount of costs and expenses as set forth in the
Affidavits.
It is therefore unnecessary for me to consider the arguments of counsel for
Plaintiff that the attorneys’ fees for one of Defendant’s attorneys are duplicative and
therefore constitute a windfall.
IT IS SO ORDERED.
/s/ Craig A. Karsnitz
cc: Prothonotary
5