      IN THE SUPREME COURT OF THE STATE OF DELAWARE

H. PRESTON HAYWARD and                  §
CORA L. HAYWARD,                        §        No. 202, 2015
                                        §
      Defendants Below,                 §        Court Below–Superior Court
      Appellants,                       §        of the State of Delaware in and
                                        §        for New Castle County
      v.                                §
                                        §        C.A. No. N13C-07-232
WILLIAM J. KING and DIANE               §
HAGY-KING,                              §
                                        §
      Plaintiffs Below,                 §
      Appellees.                        §

                          Submitted: August 28, 2015
                          Decided:   November 9, 2015

Before STRINE, Chief Justice; HOLLAND, and SEITZ, Justices.

                                  ORDER

      This 9th day of November 2015, upon consideration of the briefs of

the parties and the Superior Court record, it appears to the Court that:

      (1)    This appeal is from the Superior Court’s decision in a civil

action between next-door neighbors over a shared property line. After a

bench trial, the Superior Court ruled in favor of the plaintiffs, William King

and Diane Hagy-King, on their claims for a declaratory judgment and

ejectment and on their application for fees and costs.           The defendants,

Preston and Cora Hayward, have appealed the Superior Court’s bench trial

rulings, verdict, and order on fees and costs.
       (2)    The disagreement between the Kings and the Haywards arose

during the summer of 2012 when the Kings came to believe that a fence

installed by the Haywards was encroaching on the Kings’ property. The

disagreement escalated into an acrimonious dispute, which led to the filing

of criminal charges in the Court of Common Pleas1 and to this Superior

Court civil action filed by the Kings in July 2013.                 The Kings were

represented by counsel until mid-September 2014, when their counsel was

granted leave to withdraw. The Haywards appeared pro se throughout the

Superior Court proceedings.

       (3)    The record reflects that, in August 2013, the Kings served the

Haywards with requests for production of documents and for permission to

survey the Haywards’ property as necessary to advance the action. When

the Haywards denied any obligation or intention to respond to discovery and

did not respond, the Haywards filed a motion to compel. The Haywards did

not appear at the hearing on the motion to compel. By order dated October

14, 2013, the Superior Court granted the motion and gave the Haywards



1
   From the Court of Common Pleas case dockets in Cr. ID Nos. 1210011882,
1305023638, and 1305018619, the Court takes judicial notice that Mr. Hayward was
arrested and charged with Harassment in October 2012 and with noncompliance of bond
in May 2013. Mr. King was arrested and charged with Harassment, Criminal Mischief,
and Criminal Trespass in May 2013. After a failed attempt at mediation, all charges were
dismissed in May 2014.
                                           2
thirty days to answer all written discovery and provide written permission to

survey the property. Unfortunately, the Haywards did not comply with the

October 14 order. Instead, two days before the thirty-day deadline, the

Haywards moved for a protective order, which would relieve them from

having to respond to the requests for discovery. The Kings filed a response

to the motion for a protective order and moved for sanctions.

      (4)    After a hearing on December 9, 2013, the Superior Court issued

an order denying the motion for a protective order, finding that the Kings’

“filings in this matter have been wholly proper.” The court ordered the

Haywards to provide written answers to discovery and directed the Kings’

counsel to notify the court if, after reviewing the response, a survey still was

needed. The court held the motion for sanctions in abeyance pending the

submission of a detailed list of the Kings’ litigation costs.

      (5)    By letter dated December 16, 2013, counsel requested that the

Superior Court issue an order granting permission to retain a professional

surveyor to conduct a survey, take photographs, and stake the shared

boundary between their property and the Haywards’ property.                The

Haywards opposed the request. After a hearing on January 27, 2014, the

Superior Court issued an order that granted the request and provided that the



                                        3
costs for the survey would be paid by the Kings with leave to request

reimbursement at a later point.

      (6)    When the survey was completed, the Kings moved for a partial

summary judgment on their claims for a declaratory judgment and

ejectment.   The Superior Court directed a response to the motion and

scheduled the motion for oral argument, which prompted the Haywards to

file repetitive requests for an extension of time to submit the response and

for a continuance of the oral argument date. Following oral argument, the

Superior Court denied the summary judgment motion “for the reasons set

forth on the record” and set up a scheduling conference for trial.

      (7)    At the pretrial conference in September 2014, the Superior

Court amended the parties’ pretrial stipulation to reflect that the Kings had

withdrawn their claims of physical and emotional injury and for medical

expenses.    Also, the Superior Court struck the Kings’ claim that the

Haywards were obstinate in their rejection of “any bona fide attempt to

resolve the situation” and the Haywards’ counterclaims for loss of capital

investment, trespass, slander, intimidation, false accusations, property

destruction, and physical and emotional injury.        The court took under

advisement the parties’ cross-claims for monetary sanctions for alleged

improper litigation conduct.

                                       4
      (8)    The Superior Court held a bench trial on October 9, 2014 and

issued its verdict on November 24, 2014. The Superior Court ruled in favor

of the Kings and issued a declaratory judgment and order of ejectment,

finding that the Kings were the record owners and out of possession of the

0.7 foot strip of land enclosed by the Haywards’ fence. The Superior Court

ordered the Haywards to remove the fence.

      (9)    After the fence was removed, the Superior Court directed the

parties to submit their applications for attorney’s fees and costs. By order

dated April 9, 2015, the court denied the Haywards’ application and partially

granted the Kings’ application. The court noted that its award on fees and

costs included a sanction for the Haywards’ discovery violations.         This

appeal followed.

      (10) On appeal, the Haywards contend that the Superior Court erred

when i) amending the pretrial stipulation to eliminate their counterclaims; ii)

admitting expert witness testimony; and iii) denying their affirmative

defense of adverse possession. The Haywards also challenge the order on

fees and costs, claiming that the sanction was unwarranted, that the fees

requested were excessive, and that the award improperly included fees

incurred by the Kings in connection with the Court of Common Pleas

criminal case.

                                      5
          (11) This Court reviews the Superior Court’s findings of facts for

abuse of discretion and the court’s legal conclusions de novo.2 We review

the order on fees and costs for abuse of discretion.3

          (12) Appellate review is limited in this case due to the Haywards’

failure to provide the Court with the transcript of the Superior Court’s

proceedings.4 As the appellants, the Haywards were required to order the

transcript “of all evidence relevant to the challenged finding or conclusion”

“to give this Court a fair and accurate account of the context in which the

claim of error occurred.”5

          (13) Without the bench trial transcript, the Court is unable to

evaluate the merit of the Haywards’ claim challenging the expert witness’

testimony and the adverse possession claim, which the Superior Court

concluded was without merit based on the parties’ trial testimony. Also,

having considered the available record and the parties’ briefs, the Court

concludes that the Haywards have not demonstrated that the Superior Court

erred when striking their counterclaims from the pretrial stipulation.


2
    Levitt v. Bouvier, 287 A.2d 671, 673 (Del. 1972).
3
 Black v. Staffieri, 2014 WL 814122, at *3 (Del. Feb. 27, 2014) (citing William Penn
P’ship v. Saliba, 13 A.3d 749, 758 (Del. 2011)).
4
 Seramone-Isaacs v. Mells, 873 A.2d 301, 304 (Del. 2005) (citing Tricoche v. State, 525
A.2d 151, 154 (Del. 1987)).
5
    Del. Supr. Ct. R. 14(e).
                                              6
Without the transcript, the Court has no idea if the Haywards objected to the

exclusion of the claims. And having reviewed for plain error,6 we find no

error from the exclusion of claims that the court apparently found were not

germane to the underlying declaratory judgment and ejectment action.7

         (14) The Court also finds no basis to disturb the order on fees and

costs. The Superior Court is required to determine the reasonableness of a

request for attorney’s fees and did so in this case.8 After analyzing the

reasonableness of the Kings’ request, the Superior Court awarded $1,479.70

in expert witness fees and $24,244.00 in attorney’s fees and related litigation

costs, noting that the latter amount included an appropriate sanction for the

Haywards’ discovery violations.              The Court finds no support for the

Haywards’ conclusory claim that the award of fees and costs includes the

Kings’ attorney’s fees in the Court of Common Pleas criminal case.

         (15) Although the general rule is that parties bear their own

litigation fees and expenses, there are exceptions to the rule that apply in this



6
  Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (providing that plain error is
error that is “so clearly prejudicial to substantial rights as to jeopardize the fairness and
integrity of the trial process”).
7
  See Del. Super. Ct. Civ. R. 12(f) (providing that the court may strike immaterial matter
from any pleading); Deutsche Bank Nat. Tr. Co. v. Goldfeder, 2014 WL 7692441, at *4
(Del. Super. Dec. 9, 2014) (dismissing counterclaim unrelated to subject matter of
action), aff’d, 86 A.3d 1118 (Del. 2014).
8
    Mahini v. EDIX Media Group, Inc., 935 A.2d 242, 245 (Del. 2007).
                                             7
case.9 The Superior Court has the authority to award fees and costs and

impose sanctions for a party’s excessively litigious conduct and when a

party’s conduct necessitates a motion to compel.10 Also, in a declaratory

judgment proceeding the court “may make such award of costs as may seem

equitable and just.”11

          (16) In this case, the available record fairly reflects that the

Haywards engaged in an exasperating course of conduct throughout the

Superior Court proceedings that unnecessarily prolonged the litigation and

caused increased fees and costs. In what should have been a straightforward

case, the Superior Court was required to hold three hearings to address

problems caused by the Haywards’ refusal and avoidance of the Kings’

reasonable requests for discovery. Also, the Haywards’ persistent disregard

of procedural rules and orders interfered with the orderly and efficient

administration of justice for all involved.


9
  Blue Hen Mech., Inc. v. Christian Bros. Risk Pooling Tr., 117 A.3d 549, 559 (Del.
2015).
10
  Id. at 558-60. Accord Cebenka v. Upjohn, 559 A.2d 1219, 1226 (Del. 1989) (holding
that the Superior Court has the inherent authority to impose sanctions for violations of
orders entered under Rule 16); Johnston v. Arbitrium (Cayman Islands) Handels AG, 720
A.2d 542, 545-46 (Del. 1998) (applying “bad faith” exception to general rule that parties
bear their own litigation fees and expenses); Burge v. Fidelity Bond and Mortg. Co., 648
A.2d 414, 421-22 (Del. 1994) (noting exception to the general rule on fees and costs
when the circumstances of an individual case mandate that the court, in its discretion,
assess counsel fees).
11
     10 Del. C. § 6510.
                                           8
          (17) Although pro se litigants are afforded some leniency in

presenting their cases, as the Haywards were in this case, pro se litigants

must abide by the same rules that apply to all other litigants and must

comply with the orders of the court.12 Under the circumstances as reflected

in the available record, and under the abuse of discretion standard of review,

this Court cannot say that the Superior Court’s order of fees and costs was

arbitrary, capricious, or clearly wrong.13

          NOW, THEREFORE, IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                              BY THE COURT:
                                              /s/ Leo E. Strine, Jr.
                                              Chief Justice




12
     Draper v. Med. Ctr. of Del., 767 A.2d 796, 799 (Del. 2001).
13
     Chavin v. PNC Bank, 873 A.2d 287, 289 (Del. 2005).
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