IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ROBERT CANNON, THELMA
CANNON, and GERALD
CANNON,

Plaintiffs,

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Vv. ) C.A. No. K19C-03-023 CLS
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RONALD POLIQUIN, ANDRE )
BEAUREGARD, and BROWN )
SHEILS & BEAUREGARD, LLC, _ )
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Defendants. )

Date Submitted: March 6, 2020
Date Decided: March 16, 2020

Upon Defendant Ronald Poliquin’s Motion for Reargument
Denied.
Robert Cannon, Pro Se Plaintiff.
Thelma Cannon, Pro Se Plaintiff.
Gerald Cannon, Pro Se Plaintiff.

Ronald G. Poliquin, Esquire, The Poliquin Firm LLC, Dover, Delaware, Attorney
for Defendant Poliquin.

SCOTT, J.
Before the Court is Defendant Ronald Poliquin’s Motion for Reargument
brought pursuant to Superior Court Rule of Civil Procedure 59(e). For the following
reasons, Defendant’s motion is DENIED.

Background

On March 5, 2020, this Court issued an Order denying Defendant Ronald
Poliquin’s Motion for Summary Judgment.' The Court found that Defendant
Poliquin (“Defendant”) had not shown that he was entitled to judgment as a matter
of law on either of Plaintiffs’ claims.’

Defendant’s Assertions

On March 6, 2020, Defendant moved for reargument on his motion for
summary judgment. Defendant argues that Plaintiffs have the burden of proving
their legal malpractice claim by providing evidence of the appropriate standard of
care.2 Defendant further argues that he was not obligated to request expert reports

and the identity of expert witnesses from Plaintiffs.

 

' Cannon v. Poliquin, 2020 WL 1076051 (Del. Super. Mar. 5, 2020).

2 Td. at *1—2.

3 At the outset, the Court notes that Defendant misquotes Ruthenberg v. Kimmel &
Spiller, P.A. as saying that the plaintiff has the “burden of proof to demonstrate the
standard of practice.” Def.’s Mot. Reargument § 4-5. The Ruthenberg case does
not say this. See Ruthenberg v. Kimmel & Spiller, P.A., 1981 WL 383091, at *2
(Del. Super. Mar. 17, 1981) (“It is true that in an action for legal malpractice,
expert testimony of lawyers is usually necessary to establish the standard of care,
skill and diligence which is commonly possessed and exercises by a ‘reasonably
prudent’ attorney in this community under the circumstances.” (emphasis added)).

2
Standard of Review

On a Motion for Reargument under Superior Court Rule of Civil Procedure
59(e), the only issue is whether the Court overlooked something that would have
changed the outcome of the underlying decision.* Thus, the motion will be granted
only if “the Court has overlooked a controlling precedent or legal principles, or the
Court has misapprehended the law or facts such as would have changed the outcome
of the underlying decision.”” A Motion for Reargument is not an opportunity for a
party to rehash the arguments already decided by the Court or to present new
arguments not previously raised. A party seeking to have the Court reconsider the
earlier ruling must, “demonstrate newly discovered evidence, a change in the law,
or manifest injustice.”’ “Delaware law places a heavy burden on a [party] seeking
relief pursuant to Rule 59.”*

Discussion
The Court has not overlooked controlling precedent or legal principles nor has

the Court misapprehended the law or the facts. Defendant has not demonstrated

 

4 Brenner v. Vill. Green, Inc., 2000 WL 972649, at *1 (Del. Super. May 23, 2000)
aff'd, 763 A.2d 90 (Del. 2000).

5 BRP Hold Ox, LLC v. Chilian, 2018 WL 6432978, at *1 (Del. Super. Dec. 6,
2018) (quoting Kennedy v. Invacare, Inc., 2006 WL 488590, at *1 (Del. Super.
Jan. 31, 2006)).

© Kennedy, 2006 WL 488590, at *1.

7 Brenner, 2000 WL 972649, at *1.

8 Newborn v. Christiana Psychiatric Serv., P.A., 2017 WL 394096, at *2 (Del.
Super. Jan. 25, 2017).

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newly discovered evidence, a change in the law, or manifest injustice. Finally, much
of Defendant’s motion for reargument rehashes his argument from his two-page
motion for summary judgment.? Accordingly, Defendant’s motion for reargument
must be denied.
A. Standard for a Motion for Summary Judgment

To prevail on a motion for summary judgment, the movant must show that
there are no genuine issues of material fact and that the movant is entitled to
judgment as a matter of law.'° Upon reviewing a motion for summary judgment, the
Court views the facts in a light most favorable to the non-moving party.'' Because
granting a motion for summary judgment usually takes a case away from the jury,
the burden upon the moving party is purposefully high.

Plaintiffs’ Complaint alleges two claims against Defendant: Fraudulent
Inducement of Contract and Legal Malpractice.'* Defendant’s motion for summary

judgment argued that he was entitled to judgment as a matter of law because

 

° Compare Def.’s Mot. Reargument J 2, 4-5, 8 (alleging that legal malpractice
claims require expert reports), 14-17 (demonstrating that Plaintiffs failed to
disclose an expert by the deadline in the Trial Scheduling Order) with Def.’s Mot.
Summ. J. ¥f 2 (demonstrating that Plaintiffs failed to disclose an expert by the
deadline in the Trial Scheduling Order), 3 (alleging that legal malpractice claims
require expert reports).

'0 Super. Ct. Civ. R. 56(c).

"' Infante v. Horizon Servs., Inc., 2019 WL 3992101, at *1 (Del. Super. Aug. 23,
2019).

!2 Verified Compl. 10-11.
Plaintiffs failed to identify an expert witness by the deadline in the Trial Scheduling
Order.!3 This argument addressed only Plaintiffs’ legal malpractice claim and not
Plaintiffs’ fraudulent inducement claim. Despite the fact that his argument only
addressed half of Plaintiffs’ claims, Defendant argued that he was entitled to
judgment as a matter of law on Plaintiffs’ entire case.’ Defendant is not so entitled.

Additionally, Defendant failed to show that there are no genuine disputes of
material fact. Defendant’s Answer to Plaintiffs’ Complaint denies several material
facts, such as: a) Defendant denies that he stole client’s $3,000 retainer fee;'° b)
Defendant denies that he sent Plaintiffs a six-page Complaint on December 7, 2017
that did not allege claims Defendant promised he would allege;'® and c) Defendant
denies that Plaintiffs ultimately drafted the Complaint that was filed with Chancery
Court.'? The Court must view the facts in a light most favorable to Plaintiffs.'® Upon
viewing the facts in the Complaint in this light, it is clear that there are still genuine
disputes of material facts.

Finally, in its decision denying summary judgment in this case this Court did

not decide whether or not Plaintiffs need an expert witness to prove their prima facie

 

13 Def.’s Mot. Summ. J.

'4 Def.’s Mot. Summ. J. J§ 2-3.

'S Answer § 45, Apr. 2, 2019.

16 Answer 9 59, Apr. 2, 2019.

'7 Answer J 78-79, Apr. 2, 2019.

18 Infante, 2019 WL 3992101, at *1.
case.'? Unlike previous cases of legal malpractice, Plaintiffs allege intentional or
reckless misconduct—not negligence.”? While expert testimony is normally
required for legal malpractice claims, expert testimony is not required when the
attorney’s mistakes are obvious.”! The Court declined to rule on whether or not the
exception for “obvious mistakes” applies to claims of legal malpractice that allege
intentional or reckless misconduct.

Defendant failed to meet the requirements for this Court to grant his motion
for summary judgment. Defendant’s motion for reargument does not cure the
deficiencies in Defendant’s original motion for summary judgment. Defendant has
presented the Court with no new arguments nor has Defendant shown that the Court
erred in applying the well-defined standard of review for a motion for summary
judgment.

B. Civil Discovery Practice in Delaware

The Delaware Supreme Court has recently outlined the proper manner in

which Delaware attorneys are to conduct discovery. First, in Drejka v. Hitchens Tire

Service, Inc.,”* the Delaware Supreme Court provided courts with six factors to use

 

'° Cannon, 2020 WL 1076051 at *1.

20 Td.

2! Iq. (citing Lorenzetti v. Enterline, 2012 WL 1383186, at *2 (Del. Apr. 18, 2012);
Weaver v. Lukoff, 1986 WL 17121, at *1 (Del. July 1, 1986)).

22 Drejka v. Hitchens Tire Service, Inc., 15 A.3d 1221 (Del. 2010).

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to determine if discovery violations warrant dismissing a case.”? Those six factors
are: 1) the extent of the party’s personal responsibility; 2) the prejudice to the
adversary caused by the failure to meet scheduling orders and respond to discovery;
3) a history of dilatoriness; 4) whether the conduct of the party or the attorney was
willful or in bad faith; 5) the effectiveness of sanctions other than dismissal; and 6)
the meritoriousness of the claim or defense.”

In Christian v. Counseling Resource Associates, Inc.,”> the Delaware Supreme
Court refined the manner in which courts apply the Drejka factors.?° In Christian,
the Supreme Court noted that trial scheduling orders are issued a year or more before
the trial date and acknowledged that courts normally have little involvement in a
case until shortly before trial.27. The Supreme Court acknowledged that trial
scheduling orders work well in cases where the parties strictly adhere to the
discovery deadlines.”* Problems develop, however, when attorneys grant their own

extensions on discovery deadlines without coming to the court.” To avoid potential

 

23 fq at 1224. The Supreme Court noted that “the sanction of dismissal is severe”

and that courts have been “reluctant to apply it except as a last resort.” /d.

24 Td.

25 Christian v. Counseling Resource Associates, Inc., 60 A.3d 1083 (Del. 2013).

6 Id. at 1087-88.

27 Id. at 1087.

28 Td.

29 Td at 1087-88. The Supreme Court aptly described the problem:
In Delaware, where civility is a cherished value, attorneys are likely to
grant their own extensions to opposing counsel without “bothering” the
trial court. That practice is commendable, and fosters good will. But

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discovery problems, the Supreme Court advised litigants that “if they act without
court approval, they do so at their own risk.”*? Ifa party misses a discovery deadline,
opposing counsel has two choices: a) resolve the matter informally or b) promptly
notify the court.*! If opposing counsel contacts the court—either by a motion to
compel, a proposal to amend the scheduling order, or a request for conference—then
the court will remedy the problem in a timely manner.** The Supreme Court
cautioned those attorneys who would choose to resolve the matter informally:

If the party chooses not to involve the court, that party will be deemed

to have waived the right to contest any late filings by opposing counsel

from that time forward. There will be no motions to compel, motions

for sanctions, motions to preclude evidence, or motions to continue the

trial. It is entirely possible, under this scenario, that some vital

discovery will not be produced until the day before trial. Still, the party

prejudiced by the delay accepts that risk by failing to promptly alert the

trial court when the first discovery deadline passes.**
While the Supreme Court acknowledged that this change would increase motion

practice, it also noted that these motions would serve an important purpose:

preserving the trial date and avoiding ill will.**

 

it also leads to the predicament that occurred here. The [defendant]
kept making accommodations until they ran out of time.

Id.

3 Td. at 1088.

31 Td.

32 Td.

33 Jd. (emphasis added).

34 Tq.
In the instant case, Defendant should not have moved for summary judgment
based on Plaintiffs’ failure to disclose an expert witness. After Plaintiffs did not
disclose an expert witness by the deadline in the Trial Scheduling Order, Defendant
did not move to compel Plaintiffs to do so. Instead, Defendant waited four months
to tell the Court that Plaintiffs missed a discovery deadline.*° And rather than notify
the Court of Plaintiffs’ inaction through a motion to compel, a proposal to amend
the scheduling order, or a request for conference,** Defendant chose to use Plaintiffs
failure to identify an expert as a weapon.°’ As this Court has already noted: “Pre-
trial discovery, as we all know, is meant to eliminate or discourage trial-by-ambush.
Yet, to file a summary judgment motion without the requisite motion to compel is

exactly that.”?8

As this Court’s precedent shows, a proper discovery request or a motion to

compel is a prerequisite to granting a motion for summary judgment for a failure to

 

35 The deadline for Plaintiffs to produce expert reports was September 18, 2019.
Trial Scheduling Order, June 6, 2019. Defendant filed his motion for summary
judgment on January 29, 2020. Def.’s Mot. Summ. J.

36 See Christian, 60 A.3d at 1088 (“If counsel contacts the court, that contact can
take the form of a motion to compel, a proposal to amend the scheduling order, or
a request for a conference. Any one of these approaches will alert the trial court to
the fact that discovery is not proceeding smoothly.”).

37 Defendant filed a motion for summary judgment based solely on Plaintiffs’
failure to disclose an expert witness. Def.’s Mot. Summ. J.

38 Tsakalas v. Hicks, 2013 WL 749317, at *5 (Del. Super. Feb. 22, 2013) (denying
the defendants’ motion for summary judgment after the defendants failed to move
to compel discovery of the plaintiffs’ medical report).

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comply with a discovery deadline. The Court already advised Defendant of this
prerequisite in its decision on Defendant’s Motion for Summary Judgment when the
Court cited Bailey v. Commercial Joint Ventures, LLC” In Bailey, this Court found
that a plaintiff cannot prevail after a defendant moves for summary judgment if “after
a proper discovery request from the defendant under Civil Rule 26(b)(4), the
plaintiff does not fulfill her discovery obligations under that Rule.”*° Additionally,
in Stephenson v. Big Oaks Trailer Park, Inc., this Court denied the defendant’s
motion for summary judgment because defendant failed to move to compel
discovery of expert reports that the plaintiffs had failed to produce by the discovery
deadline.*!

To prevail on a motion for summary judgment for Plaintiffs’ failure to identify
an expert witness, Defendant must have tried to obtain this information through the
proper discovery channels;** Defendant did not do so. Therefore, this Court

correctly denied Defendant’s motion for summary judgment.

 

39 Cannon, 2020 WL 1076051, at *2 n.9.

49 Bailey v. Commercial Joint Ventures, LLC, 2013 WL 5492544, at *2 (Del.
Super. Sept. 30, 2013) (emphasis added).

41 Stephenson v. Big Oaks Trailer Park, Inc., 2019 WL 4273809, at *3 (Del. Super.
Sept. 10, 2019) (“Although Plaintiffs failed to comply with the Trial Scheduling
Order, Defendant also failed to move to compel submission of these expert

reports . . . [D]ismissing Plaintiffs’ claims because of counsel’s failure to comply
with the Trial Scheduling Order is a broader remedy than is required.”).

42 Christian, 60 A.3d at 1087-88; Dillulio v. Reece, 2014 WL 1760318, at *5 (Del.
Super. Apr. 23, 2014) (finding that counsel should have taken prompt action to

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Conclusion
The Court’s decision on Defendant’s Motion for Summary Judgment did not
overlook controlling precedent or legal principles; rather, this Court’s decision was
in-line with recent Supreme Court precedent on discovery practice in Delaware and
prior decisions of this Court. Defendant has failed to meet his burden of proof.
Accordingly, Defendant’s Motion for Reargument is DENIED.

IT IS SO ORDERED.

ZS ZZ

a
The Honorable Cafvin L. Scott, Jr.

 

involve the Court when discovery was not forthcoming); Bailey, 2013 WL
5492544, at *2; Tsakalas, 2013 WL 749317, at *5.
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