                                      COURT OF CHANCERY
                                             OF THE
                                      STATE OF DELAWARE

TAMIKA R. MONTGOMERY-REEVES                                          Leonard Williams Justice Center
       VICE CHANCELLOR                                                500 N. King Street, Suite 11400
                                                                     Wilmington, Delaware 19801-3734

                                 Date Decided: June 28, 2018




   Basil C. Kollias, Esquire                      Kelly E. Farnan, Esquire
   Douglas J. Cummings, Jr., Esquire              Travis S. Hunter, Esquire
   Kollias Law, LLC                               Richards, Layton & Finger, P.A.
   3513 Concord Pike, Suite 3300                  920 North King Street
   Wilmington, Delaware 19803                     Wilmington, Delaware 19801


            RE:     K&G Concord, LLC et al. v. Charcap, LLC et al.,
                    C.A. No. 12563-VCMR
    Dear Counsel:

            This letter opinion resolves the parties’ cross motions for attorneys’ fees and

    costs. For the reasons set forth below, I deny Defendants’ motion for attorneys’ fees

    and costs and deny Plaintiffs’ cross-motion for attorneys’ fees and costs. This letter

    opinion assumes familiarity with the facts outlined in the Court’s August 1, 2017

    memorandum opinion and focuses only on those facts pertinent to the resolution of

    the pending motions for attorneys’ fees and costs.
K&G Concord, LLC, et al. v. Charcap, LLC, et al.
C.A. No. 12563-VCMR
June 28, 2018
Page 2 of 12

I.    BACKGROUND 1

      The underlying dispute arose after Defendants, Charcoal Pit’s owners, erected

a fence to prevent cars from driving through its property to the neighboring

Claymont Steak Shop, which Plaintiffs own. 2 Plaintiffs claimed that there was an

easement by prescription, by estoppel, and by implication over the Charcoal Pit

property that allows cars to reach Claymont Steak Shop.3 Relevant to this motion,

a title search by Plaintiffs showed that no recorded easement existed, and Plaintiffs

certified the same to two government agencies before filing this action. 4 As part of

their easement by estoppel claim, Plaintiffs also argued that the record plan for the

“2530 Property,” a property also owned by Defendants that is further south of

Plaintiffs’ property, requires that the owner of that property “pursue a cross-access

agreement with the parcel to the north[.]” 5 Plaintiffs claimed that the “parcel to the

north” referred to their property instead of the parcel directly to the north, which


1
      Terms not otherwise defined have the same meaning as in the Court’s August 1,
      2017 memorandum opinion.
2
      K & G Concord, LLC v. Charcap, LLC, 2017 WL 3268183, at *1 (Del. Ch. Aug. 1,
      2017).
3
      Id. at *8. Plaintiffs dropped their easement by implication claim before trial.
4
      Id. at *9, n.126.
5
      Id.
K&G Concord, LLC, et al. v. Charcap, LLC, et al.
C.A. No. 12563-VCMR
June 28, 2018
Page 3 of 12

Defendants own. 6 The Court ultimately found that no easement by prescription or

estoppel existed. Thus, Defendants were within their rights to construct a fence on

their private property, and Plaintiffs’ claims were denied. 7

      On October 20, 2017, Defendants moved for attorneys’ fees and costs.

Defendants filed their opening brief in support of that motion on December 7, 2017.

Plaintiffs filed their brief in opposition to Defendants’ motion for attorneys’ fees and

costs on January 31, 2018, and cross-moved for attorneys’ fees and costs on the same

date. Thereafter, the parties briefed both motions for attorneys’ fees and costs, and

the Court heard oral argument on the cross motions on May 17, 2018.

II.   ANALYSIS

      Delaware follows the American Rule, which generally requires that,

“regardless of the outcome of litigation, each party is responsible for paying his or

her own attorneys’ fees.”8 “The bad faith exception to the American Rule applies in

cases where the court finds litigation to have been brought in bad faith or finds that

a party conducted the litigation process itself in bad faith, thereby unjustifiably




6
      Id.
7
      Id.
8
      In re SS & C Techs., Inc. S’holders Litig., 948 A.2d 1140, 1149 (Del. Ch. 2008).
K&G Concord, LLC, et al. v. Charcap, LLC, et al.
C.A. No. 12563-VCMR
June 28, 2018
Page 4 of 12

increasing the costs of litigation.”9 A trial court may grant a bad faith fee award

during the pendency of ongoing litigation “as a sanction for making frivolous legal

arguments or engaging in bad-faith litigation tactics.”10 To justify an award under

the bad faith exception, “the Court must conclude that the party against whom the

fee award is sought has acted in subjective bad faith.”11 “In order for a party’s

conduct to constitute bad faith, that conduct must be ‘egregious.’” 12 “The bad faith

exception is not lightly invoked, because ‘[t]he party seeking a fee award bears the

stringent evidentiary burden of producing clear evidence of bad-faith conduct.’”13

“[L]awyers should think twice, three times, four times, perhaps more before seeking

Rule 11 sanctions or moving for fees under the bad faith exception. . . . These types




9
      Beck v. Atl. Coast PLC, 868 A.2d 840, 850-51 (Del. Ch. 2005).
10
      In re Del Monte Foods Co. S’holders Litig., 2011 WL 2535256, at *6 (Del. Ch. June
      27, 2011).
11
      Reagan v. Randell, 2002 WL 1402233, at *3 (Del. Ch. June 21, 2002).
12
      In re Carver Bancorp, Inc., 2000 WL 1336722, at *2 (Del. Ch. Aug.28, 2000)
      (quoting Arbitrium (Cayman Islands) Handels AG v. Johnston, 705 A.2d 225, 231
      (Del. Ch. 1997), aff’d, 720 A.2d 542).
13
      Beck, 868 A.2d at 851 (quoting Arbitrium, 705 A.2d at 232).
K&G Concord, LLC, et al. v. Charcap, LLC, et al.
C.A. No. 12563-VCMR
June 28, 2018
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of motions are inflammatory.” 14 “An unwarranted motion for fee shifting under the

bad faith exception can itself justify a finding of bad faith and fee shifting.”15

      Defendants argue that the Court should shift attorneys’ fees and costs because

Plaintiffs brought frivolous claims, and Plaintiff’s counsel pursued “baseless

theories” and engaged in questionable litigation tactics.16 Defendants assert that the

claims were frivolous because (1) Plaintiffs “were aware that no easement existed

over the property from various sources[;]” 17 and (2) Plaintiffs’ Amended Complaint

either (a) “directly contradicted” statements made to government agencies before the

litigation or (b) contained facts that Plaintiffs “never had any evidence of.” 18

Defendants also argue that fee shifting is warranted because Plaintiffs’ counsel (1)

“pursued the baseless theory that certain notes on plans for 2530 Concord Pike

required Defendants to provide Plaintiffs with an easement over the Charcap




14
      Katzman v. Comprehensive Care Corp., C.A. No. 5892-VCL, at 13 (Del. Ch. Dec.
      28, 2010) (TRANSCRIPT).
15
      Coughlin v. S. Canaan Cellular Invs., LLC, 2012 WL 2903924, at *1 (Del. Ch. July
      6, 2012).
16
      Defs.’ Opening Br. 15.
17
      Id. at 26 (citing K & G Concord, 2017 WL 3268183 at *10).
18
      Id. at 34.
K&G Concord, LLC, et al. v. Charcap, LLC, et al.
C.A. No. 12563-VCMR
June 28, 2018
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property[;]” 19 and (2) “engaged in a pattern of conduct designed to drive up the costs

of the litigation and to obfuscate discovery.” 20 Specifically, Defendants claim that

Plaintiffs’ counsel “littered the record” with speaking objections, directed a witness

not to answer at a deposition, stopped a deposition shortly after it began requiring

the Court to then order that the deposition proceed, served subpoenas “with no notice

that included dates for deposition that [he] refused to move,” missed every deadline

imposed in the case scheduling order, used discovery search terms picked by his

client without Defendants’ input, and sent emails to opposing counsel threatening

sanctions. 21

       Plaintiffs respond that they litigated in “subjective good faith” and that

Plaintiffs’ counsel’s conduct is not evidence of the “ilk of egregiousness or fraud

necessary for bad faith.”22      Plaintiffs assert that they “always believed” an

unrecorded easement existed and that their theory as to the notes on the plan was not

baseless because there were competing interpretations of the notes.23 Plaintiffs also


19
       Id. at 36.
20
       Id. at 37.
21
       Id. at 18-19, 38.
22
       Pls.’ Answering Br. 1.
23
       Id.
K&G Concord, LLC, et al. v. Charcap, LLC, et al.
C.A. No. 12563-VCMR
June 28, 2018
Page 7 of 12

point out that Defendants never filed a motion to compel related to Plaintiffs’

discovery obligations and that Defendants “pressed their counterclaims knowing

they had no damages.” 24 With respect to the conduct of Plaintiffs’ counsel at

depositions, Plaintiffs point out that Defendants “have not (and cannot) cite a single

instance of witness coaching,” and that the “issues with [the] deposition . . . was

[Defendants’ counsel’s] (a) unwillingness to accept a running objection against

disclosure of legal strategy and (b) personal attack on Mr. Kollias in his capacity as

a senior Member of our Bar.”25 Plaintiffs also cross-move for a “counter-award”

arguing that Defendants’ motion is improper. 26

      Defendants respond that the distinction between a recorded and unrecorded

easement is “immaterial” because “Plaintiffs told the [government agencies] that

cross-access with the Charcap property was not viable and that the owner would

resist cooperation.” 27 Defendants also argue that information relied on by Plaintiffs

to bring their claims—including “deed histories/historical aerial photographs,”

interviews “with senior-citizen customers,” “a report prepared by [an environmental


24
      Id. at 42.
25
      Pls.’ Reply Br. 16.
26
      Pls.’ Answering Br. 1.
27
      Defs.’ Reply Br. 4-5.
K&G Concord, LLC, et al. v. Charcap, LLC, et al.
C.A. No. 12563-VCMR
June 28, 2018
Page 8 of 12

survey company hired by Plaintiffs] containing telephone listings,” and “recent

photographs and Google Earth documents”—gave “[no] indication that an easement

existed between the 2720 property and the Charcap property or that anyone . . . ever

used the easement Plaintiffs tried to obtain through this litigation.” 28

      After examining the “totality of circumstances” in this case,29 I find that the

bad faith exception is inapplicable. Plaintiffs’ theory of the case may have shifted,

but their argument that an unrecorded easement existed is not frivolous. Plaintiffs

certified to government agencies that no easement existed, but Plaintiffs assert that

they subjectively believed that they represented to those agencies that no recorded

easement existed.30 Further, Plaintiffs are permitted in their complaint to allege facts

“on information and belief” even though they may lack evidence to prove that fact

at the time of pleading. Finally, Defendants argue that “Plaintiffs pursued the

baseless theory that certain notes on plans for 2530 Concord Pike required


28
      Id. at 7.
29
      Judge v. City of Rehoboth, 1994 WL 198700, at *2 (Del. Ch. Apr. 29, 1994).
30
      Plaintiffs point out that non-party Grant H. Gregor, a professional land surveyor
      who was engaged by Plaintiff K & G to develop a site and parking plan for the
      Plaintiffs’ property, testified that the government agencies “are not interested in
      unrecorded, common-law easements during the plan review and approval process.”
      Pls.’ Answering Br. 8 (citing Oral Arg. Tr. 600-01). Thus, Plaintiffs assert that they
      would have no reason to certify to those government agencies that no unrecorded
      easements existed.
K&G Concord, LLC, et al. v. Charcap, LLC, et al.
C.A. No. 12563-VCMR
June 28, 2018
Page 9 of 12

Defendants to provide Plaintiffs with an easement over the Charcap property.” 31 The

Court found that “the document itself contradicted this theory,” but as Plaintiffs

assert, there were competing interpretations of the notes and the plans, including

what parcel the plans referred to. 32 Thus, even though the theory was weak,

Plaintiffs assertion of it does not rise to the level of bad faith required to shift fees.

       Plaintiffs’ counsel’s litigation conduct also does not rise to the level of

egregiousness required by the bad faith exception to shift fees. I note, however, that

some of his conduct “flirted with a finding of bad faith and Rule 11 sanctions.”33

“The issue of discovery abuse, including lack of civility and professional misconduct

during depositions, is a matter of considerable concern to this Court.”34 But




31
       Defs.’ Opening Br. 17. Defendants also argue that Plaintiffs’ believed their
       easement by implication claim was baseless because “[o]nly when faced with
       Defendants’ motion for summary judgement Plaintiffs attempt[ed] to withdraw their
       easement by implication claim.” Id. at 28. Merely withdrawing a claim in the face
       of a summary judgment motion is not bad faith. Defendants also claim that
       Plaintiffs’ tortious interference claim related to a contract with Republic Services,
       Inc. (“Republic”) for dumpster removal was baseless because “Plaintiffs never had
       an enforceable contract for dumpsters nor was there ever a breach of any agreement
       with Republic.” Id. at 29-30. Although the claim may have been weak, I am not
       convinced that it rises to the level of bad faith required to shift fees.
32
       K & G Concord, 2017 WL 3268183 at *10.
33
       In re Carver Bancorp, Inc., 2000 WL 1336722, at *3 (Del. Ch. Aug. 28, 2000).
34
       Paramount Commc’ns Inc. v. QVC Network Inc., 637 A.2d 34, 52 (Del. 1994).
K&G Concord, LLC, et al. v. Charcap, LLC, et al.
C.A. No. 12563-VCMR
June 28, 2018
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Defendants never moved to compel document production or otherwise raised

Plaintiffs’ counsel’s alleged document discovery abuse before moving for sanctions.

In addition, Plaintiffs’ counsel is relatively inexperienced in litigating in this Court.

Thus, I decline to shift fees.35 But I remind counsel of former-Justice Sandra Day

O’Connor’s wise words:



35
      Defendants point to several cases which they contend support their argument that
      Plaintiffs’ counsel’s conduct was so egregious as to justify an award of attorneys’
      fees, but these cases are all factually distinguishable from the instant case. Reagan,
      2002 WL 1402233, at *5 (finding an “egregious example of bad faith warranting
      the shifting of attorneys’ fees” where the “foundation for [the defendant’s] position”
      was a “forged Shareholders Agreement” submitted to this Court); Ensing v. Ensing,
      2017 WL 880884, at *12 (Del. Ch. Mar. 6, 2017) (finding bad faith warranting a
      shifting of attorneys’ fees where the defendant’s counsel presented “sham
      documents” and “violated the Court’s status quo order, forced [the plaintiff] to
      depose him twice because he dumped a cache of documents on her at his first
      deposition (after the document production deadline in the trial scheduling order),
      intentionally ignored a court order to produce discovery relating to the sham
      documents and then made up a reason why he couldn’t attend the trial as
      scheduled”); In re Fuqua Indus., Inc. S’holders Litig., 752 A.2d 126, 134 (Del. Ch.
      1999) (finding bad faith warranting a shifting of attorneys’ fees where the plaintiffs’
      counsel “supplant[ed] a witness in a deposition” by “interruptions, interferences and
      mid-deposition coaching” in contravention of Court of Chancery Rule 30);
      Paramount Commc’ns, Inc., 637 A.2d at 53-55 (finding the defendant’s counsel’s
      “unprofessional behavior to be outrageous and unacceptable” where he “continually
      interrupted the questioning, engaged in colloquies and objections which sometimes
      suggested answers to questions and constantly pressed the questioner for time
      throughout the deposition”); Phillips v. Firehouse Gallery, LLC, 2010 WL 3220677,
      at *2 (Del. Ch. Aug. 9, 2010) (awarding fees of $5,000 where plaintiffs’ counsel
      scheduled a deposition on short notice while defendant’s counsel was on a family
      vacation “[without] asking the witness for alternative dates”); Kaung v. Cole Nat’l
      Corp., 884 A.2d 500, 508 (Del. 2005) (affirming this Court’s finding of bad faith
      warranting a shifting of attorneys’ fees where plaintiffs’ counsel “made excessive
      and duplicative deposition requests while ignoring their own discovery obligations,”
K&G Concord, LLC, et al. v. Charcap, LLC, et al.
C.A. No. 12563-VCMR
June 28, 2018
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              [T]he justice system cannot function effectively when the
              professionals charged with administering it cannot even be
              polite to one another. Stress and frustration drive down
              productivity and make the process more time consuming
              and expensive. Many of the best people get driven away
              from the field. The profession and the system itself lose
              esteem in the public’s eyes. . . . In my view, incivility
              disserves the client because it wastes time and energy—
              time that is billed to the client at hundreds of dollars an
              hour, and energy that is better spent working on the case
              than working over the opponent.36

       Although I have denied Defendants’ motion for attorneys’ fees and costs, I

find that Defendants’ motion was not baseless given the conduct of Plaintiffs’

counsel discussed above, among other things. Thus, I deny Plaintiffs’ cross-motion

for attorneys’ fees.

III.   CONCLUSION

       For the reasons set forth above, I deny Defendants’ motion for attorneys’ fees

and costs, and I deny Plaintiffs’ cross-motion for attorneys’ fees and costs.

       IT IS SO ORDERED.




       “refused to facilitate the scheduling of [a] deposition,” and “fail[ed] to provide any
       substantive answers to [defendant’s] discovery requests”).
36
       The Honorable Sandra Day O'Connor, “Civil Justice System Improvements,”
       ABA at 5 (Dec. 14, 1993) (footnotes omitted).
K&G Concord, LLC, et al. v. Charcap, LLC, et al.
C.A. No. 12563-VCMR
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                                             Sincerely,

                                             /s/Tamika Montgomery-Reeves

                                             Vice Chancellor



TMR/jp
