                                 SUPERIOR COURT
                                      of the
                               STATE OF DELAWARE

Jeffrey J Clark                                                Kent County Courthouse
     Judge                                                         38 The Green
                                                                  Dover, DE 19901
                                                               Telephone (302)735-2111

                                  January 11, 2019


Walt F. Schmittinger, Esquire                         John J. Klusman, Esquire
Candace E. Holmes, Esquire                            Tybout, Redfearn & Pell
Schmittinger & Rodriguez                              750 Shipyard Drive, Suite 400
414 South State Street                                Wilmington, DE 19801
Dover, DE 19901

          RE: State of Delaware v. Nicholas Gates
              K18A-04-002 JJC

                               Submitted: January 9, 2019
                               Decided: January 11, 2019

Counsel:
          The Court has considered the parties’ procedural and substantive arguments
regarding the State’s motion to stay the award of attorneys’ fees. With regard to
procedural issues, the Court considers Mr. Gates’s January 2, 2019 motion for
reconsideration to be a motion for reargument pursuant to Superior Court Civil Rule
59(e). Such a motion must be filed within five business days of the date of the order
at issue.1 Here, the challenged order is the Court’s January 2, 2019 Order to Stay
Execution of the Judgment. Accordingly, Mr. Gates’s motion for reargument is timely.
His response in opposition to the State’s motion to stay, that he attached to the motion

1
    Super.Ct. Civ. R. 59(e).
for reargument, is deemed filed. The Court further finds that the circumstances in this
case warrant reargument.
       With regard to the substantive issues, the stay remains appropriate. The Court
finds persuasive the two cases the State cites in support of its position. Both Pollard
v. The Placers, Inc.2 and Playtex v. Roland3, recognize, in the context of ongoing
workers’ compensation litigation, that an award of attorneys’ fees is interlocutory, as
long as litigation is ongoing.
       Stays traditionally require a balancing of the equities. Because any attorneys’
fees award will fluctuate after the appeal (they will either not be awarded or will
significantly increase), and the costs at issue are easily secured by issuance of a
supersedeas bond, the stay remains appropriate. The Court has considered Mr.
Gates’s arguments regarding the Delaware Supreme Court’s decision in Kirpat v.
Delaware Alchololic Beverage Commission.4 The Court finds that case and its
requirement to apply four discrete factors to be distinguishable. Namely, the
circumstances in that case involved a request to stay a judgment representing a
complete disposition of the merits of a case that closed the appellants business.5 Here,
when balancing the relevant equities given (1) the protection available to Mr. Gates
through posting a supersedas bond in the amount of the attorneys’ fees awarded to date,
and (2) recognizing that the portion of the judgment sought to be stayed are costs that
will change after final disposition of the Supreme Court appeal, a stay of that portion
of the judgment remains appropriate.
       As a final matter, Mr. Gates correctly argues that because the award of

2
  692 A.2d 879 (Del. 1997).
3
  2004 WL 220332 (Del. Feb. 2, 2004).
4
  741 A.2d 356 (Del. 1998).
5
  Id. At 358.

                                           2
attorneys’ fees is included in the final judgment, Supreme Court Rule 32 and Article
IV, section 24 of the Delaware Constitution require posting of a supersedeas bond or
other sufficient security in order to perfect a stay. The Court had stayed the matter
prior to the State filing a bond. The most practical approach at this point is to require
the State to present a supersedeas bond or other sufficient security in the amount of the
currently awarded attorneys’ fees within ten days of the date of this Order. If the State
does not, then the Stay shall be deemed vacated without further order of this Court. For
these reasons, Mr. Gates’s motion for reargument seeking to vacate the Stay is
DENIED.
      IT IS SO ORDERED.
                                                      Very truly yours,

                                                      /s/Jeffrey J Clark
                                                              Judge




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