IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

RAMUNNO & RAMUNNO, P.A.,
C.A. No. N14C-12-077 WLW

Plaintiff,
vt

STEPHEN B. POTTER and
POTTER CARMINE &

ASSOCIATES, P.A.,

Defendants,,
Date Submitted: April 11, 2016
Date Decided: May 11, 2016
ORDER
Upon Defendants’ Motion for Summary Judgment

and Motion to Dismiss Count II.
Deniea'.

L. Vincent Ramunno, Esquire of Ramunno & Ramunno, P.A., Wilrnington, Delaware;
attorney for Plaintiff.

Stephen B. Potter, Esquire of Potter Carmine & Associates, P.A., Wilmington,
De1aware; attorneys for Defendants.

WITHAM, R.J,

Ramunno & Ramunno v. Stephen B. Potter, et al.
C.A. No. Nl4C- 12-077 WLW
May ll, 2016

Before the Court are motions to dismiss and for summary judgment brought by
Stephen B. Potter and Potter Carmine & Associates, P.A. (collectively, “Potter").
Potter moves the Court to grant summary judgment on Count ll of the complaint of
Ramunno & Ramunno, P.A. ("Ramunno") pursuant to Superior Court Civil Rule 5 6,
and to dismiss Count ll of the complaint pursuant to Superior Court Civil Rule
l2(b)(l) for lack of subject matter jurisdiction. For the following reasons, the
Defendants’ motions are DENIED.

FACTUAL AND PROCEDURAL BACKGROUND

The case before the Court consists of two counts. Each count involves separate
clients and independent causes of action. In each cause of action, both Potter and
Ramunno were retained by the client at one point during the proceedings. This is a
highly contentious case over attorney fees in which the parties have filed numerous
motions. The motions currently before the Court relate only to the second count
involving the representation of Roblisha Smith ("Smith").

Smith’s mother, Mary Smith, was involved in an automobile accident related
to a police chase on October 2, 2014 and passed away on October 3, 20l4. On
October 7, 2014, Potter was retained by Smith. The retainer agreement stated that
Smith retained Potter "as my attomey to represent me and/ or my children in my claim
for damages against any and all parties who may be liable on account of negligence
which occurred on 10/3/14."1 Settlements with two insurance carriers were rapidly

reached. On October 16, 20l4, a settlement was reached with the at fault driver’s

' Mot. for summary judgrnent, Ex. B

Ramunno & Ramunno v. Stephen B. Potter, et al.

C.A. No. N14c-12-077 wLw
May 11, 2016

insurance carrier for the policy limit of $15,000, and on October 24, 20l4, a
settlement was reached with the underinsured motorist carrier for the policy limit of
$25,000. Potter attempted to open an estate for Smith’s mother, but was discharged
by Smith before the estate could be opened. On November 12, 2014, Smith retained
Ramunno. Francis J. Bass, an employee of Ramunno, was appointed the personal
representative of the estate of Mary Smith. Ramunno made a claim to the proceeds
for the estate, but the insurance carrier refused to tender a check because of the
competing claims of Potter and Ramunno. Ramunno then filed a complaint seeking
compensation for fees owed in the Smith case.z

ln October 2015, Potter filed a motion to dismiss the complaint pursuant to
Superior Court Civil Rule l2(b)(6). Potter argued that Ramunno took a case that had
already been settled, and that Ramunno’s only valid course of action was to make a
claim for administrator fees in the Court of Chancery. The motion was denied.

ln March 20 l 6, Potter filed the motion now before the Court seeking summary
judgment on Count ll pursuant to Rule 56 and dismissal of Count ll pursuant to Rule
l2(b)(l) for lack of subject matter jurisdiction.

STANDAI§§J} OF .;RI§VIEW
Standard for Summary Judgment
Summary judgment will be granted when, viewing all of the evidence in the

light most favorable to the nonmoving party, the moving party demonstrates that

2 An objective observer would expect close coordination and cooperation be required by the
two firms.

Ramunno & Ramunno v. Stephen B. Potter, et al.
C.A. N0. Nl4C-l2-077 WLW
May ll, 2016

"there are no material issues of fact in dispute and that the moving party is entitled
to judgment as a matter of law."3 This Court shall consider the "pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any" in determining whether to grant summary judgment." When
material facts are in dispute, or "it seems desirable to inquire more thoroughly into
the facts, to clarify the application of the law to the circumstances," summary

5 However, when the facts permit a reasonable

judgment will not be appropriate.
person to draw but one inference, the question becomes one for decision as a matter
of law.é
Standard for Dismissal for Lack of Subject Matter jurisdiction

This Court is required to dismiss an action for lack of subject matter
jurisdiction if it appears from the pleadings that the Court does not have jurisdiction
over the claim.7 "'l`he burden of establishing the Court’s subject matter jurisdiction

rests with the party seeking the Court’s intervention."g When reviewing a claim for

lack of subject matter jurisdiction, the Court "need not accept Plaintiff’ s factual

3 Burkhart v. Davies, 602 A.2d 56, 59 (Del. l99l) (citing Benge v. Davis, 553 A.2d ll80,
1182 (Del. 1989)); see also Super. Ct. Civ. R. 56c.

4 Super. Ct. Civ. R. 56c.

5 Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962) (citing Knapp v. Kinsey, 249
F.2d 797, 802 (6th Cir. 1957)).

6 Wootten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
7 Super Ct. Civ. R. l2(b)(l).
8 Ropp v. Kzng, 2007 wL 2198771, ar *2 (Del. Ch. July 25, 2007).

4

Ramunno & Ramunno v. Stephen B. Potter, et al.

C.A. No. N14C-12-077 wLw
May 11, 2016

allegations as true and is free to consider facts not alleged in the complaint."9
DISCUSSION

Potter’s retainer agreement with Smith states that he would provide
representation in her claim for damages. Potter secured a settlement from two
insurance carriers and then attempted to open an estate for Mary Smith. The
insurance claims were for Mary Smith as the decedent and were required to be
deposited into an estate before being distributed.l° Potter claims he was retained to
procure a settlement, and that the settlement was procured. However, Potter’ s attempt
to open the estate raises a question of material fact. No retainer agreement between
Smith and Potter concerning the opening of the estate was submitted to the Court.
Although not part of the retainer agreement for the recovery of damages, Potter may
have led Smith to believe an estate would be opened as part of the damages recovery
process. Thus, the scope of Potter’s representation remains unclear. The estate was
subsequently opened by Ramunno. If Potter represented to Smith that an estate
would be opened as part of the recovery process, then Ramunno may be entitled to
part of the recovery for opening the estate. Because this question of material fact
exists, Potter’s motion for summary judgment cannot succeed.

Because the scope of representation is not clear, Ramunno may have a valid

9 Appriva Shareholder Litigation Co., LLC v. EV3, Inc., 937 A.2d 1275, 1285 n.l4 (Del.
20()7).

m An email from Potter to Conner Lawrence of Liberty Mutual asked that the settlement
check be made to the Estate of Mary Potter. Mot. For Summary Judg1nent, Ex. C. The settlement
check from Liberty Mutual was paid to Potter and the Estate of Mary Smith. Ia’.

5

Ramunno & Ramunno v. Stephen B. Potter, et al.
C.A. No. Nl4C-l2-077 WLW l
May ll, 2016

argument for an attomey’ s charging lien. In Doroshow, the Delaware Supreme Court
noted that "the common law has long recognized the attorney’s right to a charging
lien and that common law courts have ‘used such means as are available to it to
enforce it."’“ As a court of general jurisdiction, this Court has jurisdiction over
actions at laW. This jurisdiction includes the right to enforce an attorney’s charging
lien. For this reason, Potter’s motion to dismiss for lack of jurisdiction fails.
CONCLUSION

For the foregoing reasons, the Defendants’ motions for summary judgment and
to dismiss pursuant to Rule l2(b)(l) are DENIED.

IT IS SO ORDERED.

!§/;V!illi.am,l.,$j»§¢fit_h.arr.!a,lrrt_= .._
Resident Judge

WLW/dmh

" Doroshow, 36 A.3d at 341 (quoting Polin v. Delmarva Poultrjy Corp., 188 A.2d 364, 366
(Del. Super. 1963)).

