            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                     IN AND FOR NEW CASTLE COUNTY


KENNETH & CLASINA DREISBACH )
                            )
Plaintiffs                  )
                            )
              v.            )                  C.A. No. N12C-09-121 MJB
                            )
ROBERT T. &                 )
MARTINA L. WALTON           )
                            )
Defendants                  )


                               Submitted: October 8, 2014
                               Decided: October 27, 2014


 Upon Plaintiffs’ Motion for Costs and Attorney’s Fees, GRANTED in part, DENIED in part.

                  Upon Defendants’ Motion for Attorney’s Fees, DENIED.

                                       OPINION



Donald L. Gouge, Esquire, Donald L. Gouge, Jr., LLC, 800 King Street, Suite 303, P.O. Box
1674, Wilmington, Delaware 19899, Attorneys for Plaintiffs.


Bayard J. Snyder, Esquire, Snyder & Associates, P.A. Attorneys at Law, 3801 Kennett Pike
Suite 201, Building C, Wilmington, Delaware 19807, Attorney for Defendants.




      BRADY, J.

                                           1
                                           I. INTRODUCTION

        The underlying cause of action in this case concerns a sale of real property. Kenneth and

Clasina Dreisbach (“Plaintiffs”) bought a home (the “Property’) from Robert and Martina

Walton (“Defendants”) in 2008. Shortly after the sale, Plaintiffs discovered that several answers

on the Seller’s Disclosure were incorrect, and Property required reconstruction. Plaintiff’s filed

suit alleging breach of contract, fraud and misrepresentation, negligent fraud, and violation of the

covenant of good faith and fair dealing. A bench trial was held beginning on April 14, 2014, and

the Court found for Plaintiffs in the amount of $1,375 on the basis of breach of the implied

covenant of good faith and fair dealing.

        On September 5, 2014, Plaintiffs filed a timely Motion for Costs and Attorney’s fees.

The Motion is opposed by Defendants, who filed a timely Response on September 12, 2014.

Defendants also countermoved for Defendants’ attorney’s fees. The Court permitted Plaintiffs to

file a brief reply to Defendants’ Response.      Plaintiffs submitted the reply on September 25,

2014. The Court subsequently granted Defendants’ request to file an additional brief reply. On

October 8, 2014, Defendants submitted the additional reply, and the Court took the matter under

consideration. For the reasons set forth below, Plaintiffs’ Motion is GRANTED in part and

DENIED in part. Defendants’ Motion is DENIED.



                           II. FACTS AND PROCEDURAL BACKGROUND

        Because there are multiple motions for costs, and because the Court found both for and

against the Plaintiff as to the many, various claims made, some recitation of the underlying facts

ir required.




                                                  2
         In 2009, Plaintiffs began house hunting for a new residence. Plaintiffs eventually settled

on subject Property, which was owned by Defendants. Before buying the home, Plaintiffs hired

a home inspector and learned that the roof needed to be replaced. 1 Plaintiffs negotiated a credit

of $8,500 to replace the roof. 2 However, aside from the roof’s needing to be replaced, Plaintiffs

did not learn of any other defects prior to the sale.

         Defendant Martina Walton (“Mrs. Walton”) filled out the Seller’s Disclosure form. As

later came to light, Mrs. Walton answered several questions on the form incorrectly. 3 First, Mrs.

Walton represented that there were no violations of New Castle County code on Property, and

that permits for structural changes to the home had been appropriately secured. 4       In fact, as

Plaintiffs discovered after the sale was complete, permits for work done in finishing the

basement had never been issued, and the basement was not in compliance with NCC code. 5

         Second, Mrs. Walton answered “no” to the question of whether there were any plumbing

additions and “na” for whether a licensed contractor was used for these additions. 6 Mrs. Walton

also represented that all of the electrical work had been done by a licensed contractor. 7 In fact,

Defendants had hired a contractor in 2003 to finish the basement, which included installing a

kitchenette and full bathroom, which involved extensive plumbing additions. 8         Defendants’

contractor turned out not to be licensed in New Castle County. 9




1
  Trial Transcript (“TT”) at 77:16-18.
2
  TT at 83:22-23; 84:1.
3
  TT at 99:5-11.
4
  Joint Trial Exhibit (“JTE”) 9, Seller’s Disclosure.
5
  TT at 67:4-8; TT at 6:1-4.
6
  JTE 9, Seller’s Disclosure.
7
  JTE 9, Seller’s Disclosure.
8
  TT at 111: 7-19.
9
  TT at 33:2-6.

                                                        3
        Finally, Mrs. Walton answered “no” to the question of whether that had been any past

leaks. 10 The questions about roof repairs were left blank. 11 In fact, in 2005, Defendants’ son-in-

law had discovered some possible mold near the soffit when he was insulating the attic. 12

Because of what their son-in-law found, Defendants hired a roofing company to inspect their

roof. The roofing company found signs of water leakage in the attic and chimney. 13 Defendants

had the roofing company remove, replace, and repair the damaged area. 14

        Upon discovery of the defects with the home in 2010, Plaintiffs hired a contractor to fix

the problems and bring the house up to code. 15 In 2012, Plaintiffs filed the instant suit seeking

$20,956.50 in damages for the construction work that had been performed to fix the problems

with the house.        Plaintiffs alleged causes of action for breach of contract, fraud and

misrepresentation, negligent fraud, and breach of the implied covenant of good faith and fair

dealing. Plaintiffs alleged that Mrs. Walton knew or should have known of the inaccuracies in

the Seller’s Disclosure form, and that Mrs. Walton negligently or intentionally misled Plaintiffs

about the condition of Property. 16 Plaintiffs also alleged that Defendants failed to disclose that:

(1) that Property had been rented, (2) that Defendants filed an insurance claim on that address in

March of 2008, and (3) the issues with the roof. 17

        At the end of trial, Plaintiffs withdrew their claim for damages relating to the roof

because an $8,500 credit for same had been made when the property was purchased. 18 The

Court found that Plaintiffs failed to prove, by a preponderance of the evidence, that the 2008


10
   JTE 9, Seller’s Disclosure.
11
   JTE 9, Seller’s Disclosure.
12
   TT at 108:22-23; 109: 1-4.
13
   JTE 13, Lane Roofing Contract.
14
   JTE 13, Lane Roofing Contract.
15
   TT at 8-11.
16
   Complaint at 3-4.
17
   Complaint at 2.
18
   TT at 137.

                                                 4
insurance claim was related to subject Property. The Court also found that Plaintiffs failed to

prove that Property was rented during Defendants’ ownership.

           The issues concerning the construction defects in the home itself were more complex.

The Court found no breach of contract related to the fact that the basement was finished by an

unlicensed contractor and that the contractor failed to secure the proper permits. The Court

found that Plaintiffs failed to prove that Defendants knew or should have known about these

defects, or that Defendants had acted in bad faith to conceal them.

           Concerning the charges of fraud, intentional misrepresentation, and negligent

representation, the Court also found for the Defendants on the grounds that Plaintiffs had not

demonstrated the necessary element of reliance. The Court did, however, find a violation of the

implied covenant of good faith and fair dealing with respect to Mrs. Walton’s failure to disclose

the plumbing upgrades in the Seller’s Disclosure where she was asked to disclose “any

additions/upgrades to the original [plumbing] service.” 19 The Court found that Mrs. Walton

clearly knew about the plumbing upgrades as Defendants had contracted for a new full bathroom

and kitchenette to be installed in the basement. Mrs. Walton argued that she did not disclose this

work because she considered the basement bathroom and kitchenette to be entirely new and

separate, rather than “upgrades” to the existing plumbing system. 20 However, the Court did not

find this explanation credible.

           Because Mrs. Walton’s bad faith omission made it much less likely that Plaintiffs would

discover the material defects in the plumbing system, the Court found Defendants liable to

Plaintiffs for the cost of the plumbing repairs ($1,375).




19
     JTE 9, Seller’s Disclosure.
20
     TT at 111:11-15.

                                                  5
                                      III. PARTIES’ CONTENTIONS

                        A. Plaintiffs’ Motion for Costs and Attorney’s Fees

        Plaintiffs argue that they are entitled to costs in the amount of $1,577 and attorney’s fees

in the amount of $12,972. 21 Plaintiffs argue that as they are the prevailing party, costs and fees

are recoverable under Superior Court Civil Rule 54(d), 10 Del. C. §5101, and Paragraph 27 of

the Parties’ Agreement of Sale. 22 Plaintiffs point out that they made a claim for attorney’s fees

in the Complaint and Pretrial Stipulation.23 Plaintiffs also say that it is “noteworthy” that an

offer of judgment under Rule 68 was not filed. 24

                               B. Defendants’ Response in Opposition

        Defendants argue that Plaintiff’s Motion should be denied and countermove for

Defendants’ attorney’s fees in the amount of $7,420. Defendants first argue that the decision to

award costs is a matter of judicial discretion. 25 The Court should examine the reasonableness of

the costs as well as what costs could have been avoided. 26 Defendants argue that awarding costs

in the amount of $1,577.50 is unreasonable when the award for damages is only $1,374.00. 27

        Second, Defendants argue that attorney’s fees “are not generally recoverable unless there

is a specific statutory authorization for such an award.” 28 Defendants maintain that there are no

statutory authorizations for an award of attorney’s fees in the instant case. Defendants do not

dispute that attorney’s fees may also be awarded when there is a contractual provision

authorizing the award of attorney’s fees. However, Defendants maintain that even when there is

21
   Plaintiffs’ Motion for Costs and Fees (“Plaintiffs’ Motion”) at 1.
22
   Plaintiffs’ Motion at 1; JTE 8, Agreement of Sale.
23
   Plaintiffs’ Motion at 2.
24
   Plaintiffs’ Motion at 2.
25
   Defendants’ Response to Plaintiffs’ Motion for Costs and Fees (“Defendants’ Response”) at 1.
26
   Defendants’ Response at 1-2 (citing Donovan v. Delaware Water & Air Resources Commission, 358 A.2d 717
(Del. 1976); Christiana Marine Service Corp. v. Texaco Fuel & Marine Marketing, 2004 WL 42611 (Del. Super. Ct.
Jan. 8, 2004)).
27
   Defendants’ Response at 2.
28
   Defendants’ Response at 2 (citing Stephenson v. Capano Development, Inc., 462 A.2d 1069 (Del. 1983)).

                                                      6
such a contractual provision, the Court still has the discretion to determine the reasonableness of

the fees. 29 Defendants point out that the Delaware Chancery Court has observed that the idea

that “an award of attorney’s fees should be reduced to reflect the fact that a party only achieved

limited or partial success is not a novel [idea].”30 Defendants point out that in the instant case all

but one of Plaintiffs’ claims were rejected by the Court. 31

        Third, Defendants argue courts also consider Rule 1.5 of the Professional Rules of

Conduct to determine the reasonableness of an award of attorney’s fees. 32 Defendants cited

eight factors within Rule 1.5 that at least one court has considered: (1) the time and labor

required, (2) the likelihood that the acceptance of the particular case will preclude other

employment by the attorney, (3) the fee customarily charged in the locality, (4) the amount

involved and the results obtained, (5) the time limitations imposed, (6) the nature and length of

the professional relationship, (7) the experience and reputation of the lawyer, and (8) whether the

fee is fixed or contingent. 33 Defendants emphasize the fourth factor—the amount involved and

the results obtained—and argue that $12,972 in attorney’s fees is unreasonable considering that

“the amount requested is almost 10 times the Plaintiff’s award of $1,374.00.” 34

        Finally, Defendants suggest that Plaintiffs’ claim that it is “noteworthy” that a Rule 68

offer of judgment was not filed is misleading. 35                 Defendants maintain that “[i]t is only

noteworthy for the following reason. Plaintiffs demanded $32,000 to settle the case well before

trial. The Defendants offered $1,500 in response to that demand. The Plaintiffs were so


29
   Defendants’ Response at 2 (citing Fasciana v. Electronic Data Systems Corp., 829 A.2d 178, 184 (Del. Ch.
2003)).
30
   Fasciana, 829 A.2d at 184.
31
   Defendants’ Response at 3.
32
   Defendants’ Response at 3 (citing Cedar Tree Books Ltd. v. Sushi Rock, Inc., Judge Paul E. Bilodeau, Court of
Common Pleas CPU4-13-002159, decided May 20, 2014).
33
   Defendants’ Response at 3 (citing Cedar Tree, CPU4-13-002159).
34
   Defendants’ Response at 3.
35
   Defendants’ Response at 4.

                                                         7
confident of their case that they refused to reduce their demand in response to such a low offer.

It turned out that the Defendants’ ‘low offer’ was higher than the Plaintiff’s recovery.” 36 In light

of these alleged facts, Defendants argue that “having successfully defended all but one of

Plaintiffs’ claims,” they are “the successful party” and are entitled to attorney’s fees in the

amount of $7,420. 37

                              C. Plaintiffs’ Reply to Defendants’ Response

         In their brief September 25, 2014 reply, Plaintiffs argue that Defendants never offered

$1,500 to settle the case, and allege that there is “nothing from the record or communications

between the parties to support this claim.” 38 Plaintiffs maintain that the only settlement offer

was made at mediation before Commissioner Reynolds. 39 Plaintiffs also argue that Defendants’

countermotion for attorney’s fees should be denied as Defendants did not make this claim in

either Defendants’ Answer or in the Pretrial Stipulation. 40

                                D. Defendants’ Reply to Plaintiffs’ Reply

         In their brief October 8, 2014 reply, Defendants explain that they made the offer to settle

the case for $1,500 at mediation. Defendants also suggest Plaintiffs behaved uncooperatively in

that, “plaintiffs never reduced their demand during mediation from $32,000, even after receiving

the offer of $1,500. They never offered to settle for less than half of their $32,000 demand.”41

Defendants do not claim that there ever was a formal offer of settlement under Rule 68.

                                             IV. LEGAL STANDARD

                                             A. Costs of Litigation



36
   Defendants’ Response at 4.
37
   Defendants’ Response at 4.
38
   Plaintiffs’ Reply to Defendants’ Response at 1.
39
   Plaintiffs’ Reply to Defendants’ Response at 2.
40
   Plaintiffs’ Reply to Defendants’ Response at 2
41
   Defendants’ Second Response at 1.

                                                       8
         The general rule in Delaware regarding court costs and attorney’s fees is articulated in

Casson v. Nationwide Insurance Co. 42 The court in Casson explained that it is well-settled in

Delaware that ordinary court costs are usually allowed to a prevailing party. 43 This is the rule

that is reflected in 10 Del. C. §5101, which provides, “Generally a party for whom final

judgment in any civil action, or on a writ of error upon a judgment is given in such action, shall

recover, against the adverse party, costs of suit, to be awarded by the court.”

         However, generally does not mean without exception. 44 As the Delaware Supreme Court

has made clear, “there may be circumstances under which costs do not go to the party to whom a

final judgment is awarded. Determining when costs are awarded and when they are not is, in

[the Court’s] judgment, a matter of judicial discretion under the statute.” 45 The Court found such

a conclusion is consistent with both 10 Del. C. §5101 and Superior Court Civil Rule 54(d).46

Even when costs are awarded “as a matter of course,” the court has discretion as to the amount of

costs that should be awarded. 47 An important factor to consider is whether the cost reasonably

could have been avoided. 48

                                               B. Attorney’s Fees

         Attorney’s fees are different. The general rule in Delaware is that attorney’s fees are not

awarded to the prevailing party. 49 “In an action at law, a court may not order the payment of

attorney’s fees as part of costs to be paid by the losing party unless the payment of such fees is



42
   Casson v. Nationwide Insurance Co., 455 A.2d 361 (Del. Super. Ct.1982).
43
   Id. at 369.
44
   Donovan v. Delaware Water & Air Resources Commission, 358 A.2d 717, 722 (Del. 1976).
45
   Id.
46
   Id.
47
   Christiana Marine Service Corp. v. Texaco Fuel & Marine Marketing, 2004 WL 42611, at *7 (Del. Super. Ct.
Jan. 8, 2004)
48
   Id. at *8 (holding that plaintiff was not entitled to pro hac admissions fees as these could have been avoided by
selecting a Delaware attorney).
49
   Casson, 455 A.2d at 369.

                                                           9
authorized by some provision of statute or contract.” 50 However, even where there is a statutory

or contractual provision authorizing an award of fees, the court may still elect to award fees only

in proportion to a party’s limited success. 51 The United States Supreme Court has held that

attorney’s fees should not be awarded for work related to claims distinct from the claim on which

the party was successful. 52 Even for work related to the successful claim, the court “should

award only that amount of fees that is reasonable in relation to the results obtained.” 53



                                                V. DISCUSSION

                                           A. Costs of Litigation

        Ordinary court costs are awarded to prevailing parties in Delaware as a matter of course.

However, this includes only costs that are found to be reasonable. Costs that were reasonably

avoidable may not be awarded. 54

        The Court finds that filing and service fees are necessary costs and awards all filing fees

($375), the trial scheduling fee ($150), and fees for service by the NCC Sheriff ($190). 55

Concerning the deposition transcripts, the trial transcripts, and the trial binders, the Court follows

Delaware Supreme Court authority, which holds that the expense of printing the record,

including transcripts, “exists only when authorized by statute or rule of court enacted under

authority of law.” 56 Under Superior Court Civil Rule 54(f), copies of transcripts of depositions

“shall not be taxable costs unless introduced into evidence.” In Christiana Marine Services



50
   Id. at 370.
51
   Fasciana v. Electronic Data Systems Corp., 829 A.2d 178, 185 (Del. Ch. 2003) (citing Hensley v. Eckerhart, 461
U.S. 424 (1983)).
52
   Hensley, 461 U.S. at 440.
53
   Id.
54
   Christiana Marine Service Corp., 2004 WL 42611, at *7.
55
   For a summary of these costs, see Plaintiffs’ Motion, Exhibit 1, Slip Listing.
56
   Peyton v. William C. Peyton Corp., 23 Del. Ch. 365, at *91 (1939).

                                                       10
Corp., the court interpreted this rule as extending to a deposition video and transcription used by

both parties at trial. 57

         In the instant case, there are two deposition transcripts, one for the deposition of Mr.

Dreisbach and one for the deposition of Mrs. Walton. Both of these deposition transcripts were

relied on by the parties at trial. 58 Thus, the Court awards to Plaintiffs $315.60 for the deposition

transcripts. Extending this reasoning just a bit further, both Plaintiffs and Defendants relied on

the trial binder (the “Joint Trial Exhibit”) at trial. Correspondingly, the Court deems this a

necessary cost and awards $120.90 to Plaintiffs for the trial binders. Trial transcripts have been

found necessary expenses in the case of an appellate proceeding. 59 In a trial court proceeding,

however, transcripts have been found “extremely helpful” but not necessary. 60 For this reason,

the Court does not award the cost of trial transcripts to Plaintiffs. In sum, the Court awards

$1,151.50 in costs to Plaintiffs.

                                         B. Plaintiffs’Attorney’s Fees

         Even when there is a statutory or contractual provision authorizing attorney’s fees, fees

should only be awarded in proportion to the party’s success. The Court finds that Plaintiffs’

success in the instant case was limited both in the monetary amount recovered and in the number

of claims on which Plaintiffs prevailed.               Accordingly, the Court awards attorney’s fees to

Plaintiffs only in proportion to the limited success Plaintiff achieved.

         In Hensley, plaintiffs brought a civil rights suit on behalf of all persons involuntarily

confined at the forensic unit of a state hospital, challenging the constitutionality of the conditions


57
   Christiana Marine Service Corp., 2004 WL 42611, at *8.
58
   For example, Defendants relied on the deposition of Mr. Dreisbach (TT at 78) and Plaintiffs relied on the
deposition of Mrs. Walton (TT at 127).
59
   Peyton, 23 Del. Ch. 365, at *92 (holding that trial transcripts are necessary in an appellate proceeding to comply
with the Rules of the Delaware Supreme Court, which require the parties to bear the cost of a transcript of the
record).
60
   Connolly v. Labowitz, 1987 WL 28316, at *2 (Del. Super. Ct. Dec. 15, 1987).

                                                          11
and treatment at the hospital. 61 A statutory provision, 42 U.S.C. §1988, authorizes the award of

attorney’s fees in federal civil rights actions. Plaintiffs originally filed a three-count complaint;

however, Count II was resolved by a consent decree, and Count III was largely mooted before

trial. 62 At trial, violations of patients’ constitutional rights were found in five of six general areas

of alleged mistreatment. 63 The District Court in Hensley awarded attorney’s fees, refusing to

eliminate from the award hours spent on unsuccessful claims. 64

         The Supreme Court found that the Hensley trial court erred in failing to properly consider

the relation between the extent of success and the amount of attorney’s fees awarded. Awarding

attorney’s fees is a balancing act; “[w]here a plaintiff has obtained excellent results, his attorney

should recover a fully compensatory fee. Normally this will encompass all hours reasonably

expended on the litigation… In these circumstances the fee award should not be reduced simply

because the plaintiff has failed to prevail on every contention raised in the lawsuit.” 65 However,

when “a plaintiff has achieved only partial or limited success, the product of hours reasonably

expended on the litigation as a whole times a reasonable hourly rate may be an excessive

amount.” 66 This may be true even when the unsuccessful claims are related to the successful

claims, nonfrivolous, and raised in good faith. 67 The Court made clear that “the most critical

factor is the degree of success obtained.” 68

         In Fasciana, the Delaware Chancery Court applied the Hensley rule to Delaware law. 69

The plaintiff, who served as outside counsel to the corporate client defendant, brought suit


61
   Hensley, 461 U.S. at 440.
62
   Id. at 426.
63
   Id.
64
   Id. at 428.
65
   Id. at 435.
66
   Id. at 436.
67
   Id.
68
   Id.
69
   Fasciana, 829 A.2d 178.

                                                   12
against defendant to obtain advancement of litigation expenses when plaintiff was indicted by a

federal grand jury and sued for fraud by the defendant. 70 The plaintiff claimed entitlement under

a relevant statutory provision, 8 Del. C. §145.71 The plaintiff won a partial victory, and the

corporate client was required to advance only some of the litigation expenses. 72 The plaintiff

then filed suit for the expenses he incurred in vindicating his rights to this advancement. 73 The

court held that “because of [plaintiff’s] very limited success on his advancement claim, [plaintiff]

is only entitled to a partial award.” 74 Citing Hensley, the court reasoned as follows,

          The relief that [plaintiff] received was extremely limited.     In this litigation,

          [plaintiff] sought a complete advancement of his litigation expenses for the

          criminal action and the civil action. Instead of his requested relief, [the Court]

          ordered that [plaintiff] receive an advancement to respond to a very narrow subset

          of the claims brought against him by [corporate client] and the federal

          government. Put simply, [plaintiff] did not obtain the type of “excellent result”

          that… would entitle him to “a fully compensatory fee.” 75

The court acknowledged that it was not possible to translate the facts of the case into an award

number in a way that is “mathematically precise,” and that some of the expenses claimed were

general expenses of litigation rather than related to a specific claim; hence it was appropriate for

the court to “err towards generosity” in calculating the expenses awarded to plaintiff. 76 Under




70
   Id. at 180.
71
   Id. at 181
72
   Id.
73
   Id.
74
   Id. at 184.
75
   Id. at 186.
76
   Id. at 188.

                                                 13
the circumstances, the court found that an award of one-third of plaintiff’s litigation expenses

embodied the requisite generosity. 77

         In the instant case, the Court must first ask whether there is a contractual provision that

provides for fee-shifting in the instant action. The Court finds that there is such a provision.

Paragraph 27 of the Agreement of Sale executed by the parties provides, “[i]n the event a dispute

arises under this Agreement between Seller and Buyer resulting in any litigation, and/or

arbitration, Buyer or Seller, whichever is unsuccessful, shall also be liable for the other parties’

court costs and attorney’s fees.” 78 Defendants have not challenged the validity of this contract or

this specific contractual provision.

         Second, the Court must determine what amount of attorney’s fees would be reasonable in

light of the degree of success achieved by Plaintiffs. Notably, Defendants have not disputed the

reasonableness of the amount of attorney’s fees with respect to the legal work performed. 79

Instead, Defendants simply argue that Plaintiffs are not entitled to attorney’s fees because

Plaintiffs have failed to achieve substantial success in the litigation.

         Plaintiffs originally alleged breach of contract, fraud and misrepresentation, negligent

fraud, and violation of the covenant of good faith and fair dealing concerning (a) the roof defects,

(b) the plumbing defects, (c) the permitting violations, and (d) the fact that the work had not been

performed by a contractor licensed in the appropriate county. Plaintiffs claimed for damages in

the amount of $20,956.50, which was the amount of the construction work required to fix the

defects. At the end of trial, Plaintiffs withdrew their claim for damages relating to the roof



77
   Id.
78
   JTE 8, Agreement of Sale.
79
   Defendants hint at the argument that Plaintiffs’ calculations for the value of the legal work performed may be
excessive by stating that the Court should consider what costs could have been avoided. Defendants’ Response at 2.
However, Defendants do not directly make the claim that the amount in legal fees that Plaintiffs cite is unreasonable.
Instead, Defendants focus on the claim that Plaintiffs have not substantially prevailed.

                                                         14
because of the $8,500 credit Plaintiffs had received when the property was purchased. 80 At trial,

the Court awarded judgment to Plaintiffs on only one of the remaining claims: breach of the

implied covenant of good faith and fair dealing with respect to Mrs. Walton’s failure to disclose

the plumbing work. Correspondingly, the Court awarded judgment to Plaintiffs only in the

amount Plaintiffs paid to fix the plumbing ($1,375).

           Concerning the number of claims on which Plaintiffs prevailed, Plaintiffs only prevailed

on one claim out of four legal theories (breach of the implied covenant of good faith and fair

dealing) in relation to only one out of four factual claims of damages (the plumbing problems).

Concerning the monetary amount of recovery, Plaintiffs recovered only $1,375 in damages,

which is less than 7% of the total damages Plaintiffs originally alleged ($20,956.50).

           Under these circumstances, the Court finds that Plaintiffs did not achieve the sort of

“excellent result” that occasions a full award of all attorney’s fees. It is clear to the Court that an

award on only one narrow claim for less than 7% of the monetary damages requested does not

qualify as substantial success. Nonetheless, the Court is cognizant that the size of Plaintiffs’

narrow victory cannot be quantified with mathematical precision, and that many of the costs

incurred by Plaintiffs’ attorneys may be general costs of litigation that are not tied to a specific

claim.      All things considered, the Court awards legal fees to Plaintiffs in the amount of

$1,250.00.

                                           C. Rule 68 Issue

           Delaware’s Rule 68 provides that “[a]t any time more than 10 days before the trial begins

a party defending against a claim may serve upon the adverse party an offer to allow judgment to

be taken against the defending party for the money or property or to the effect specified in the



80
     TT at 137-1-11.

                                                  15
offer, with costs then accrued… If the judgment finally obtained by the offeree is not more

favorable than the offer, the offeree must pay the cost incurred after the making of the offer.” 81

        In explaining Federal Rule 68, after which Delaware’s rule is patterned, the United States

Supreme Court made clear that “Rule 68 imposes a special burden on the plaintiff to whom a

formal settlement offer is made. If a plaintiff rejects a Rule 68 settlement offer, he will lose

some of the benefits of victory if his recovery is less than the offer.” 82

        In the instant case, Defendants contend that they made an offer to settle the case for

$1,500 during mediation. 83 Plaintiffs deny that any such offer was ever made. 84 There is no

evidence that a formal settlement offer was ever put in writing or filed with the Court. The Court

anticipates that offers and counteroffers will be made during the course of mediation, but an offer

made during the course of mediation is not a binding offer under Rule 68. 85 The Court finds

there was no qualifying settlement offer such as would invoke Rule 68.

                                     D. Defendants’ Attorney’s Fees

        Plaintiffs argue that Defendants’ Motion should be denied because Defendants failed to

assert these claims in the Answer or Pretrial Stipulation. 86 Hence, Plaintiffs maintain that these

claims have been waived. While Delaware has not explicitly addressed the timing of a motion

for attorney’s fees, Rule 54 allows a motion for costs to be made up to 10 days after final

judgment. 87 Given the similarities between costs and attorney’s fees, as both are claims arising

from the litigation itself, rather than preexisting claims that gave rise to the litigation, the Court

81
   Del. Super. Ct. R. 68.
82
   Napolski v. Davis. 734 A.2d 637, 638 (Del. Super. Ct. 1999) (quoting Delta Air Lines, Inc. v. August, 450 U.S.
346 (1981)).
83
   Defendants’ Response at 4; Defendants’ Second Response at 1.
84
   Plaintiffs’ Reply to Defendants’ Response at 1.
85
   Ceccola v. State Farm Mut. Auto. Ins. Co., 58 A.3d 982, at *1 (Del. 2012) (finding that a Rule 68 offer must be
filed with the court); Dean-Seeney v. State Farm Mut. Auto. Ins. Co., 2007 WL 3380119, at *2 (Del. Super. Ct. Apr.
19, 2007) (finding that an oral offer at mediation does not qualify as a written settlement offer).
86
   Plaintiffs’ Reply to Defendants’ Response at 2.
87
   Del. Super. Ct. R. 54(d).

                                                       16
finds it reasonable to hold that attorney’s fees, like costs, need not be pled in the original

pleadings. Other jurisdictions have found that claims for attorney’s fees are not ordinary claims

and hence are not barred if not asserted as counterclaims. 88 Some jurisdictions, however, have

held that claims for fees must be asserted before there is a signed final judgment. 89 Nonetheless,

the Court finds that the issue of timing need not be addressed as Defendants’ Motion for

attorney’s fees must be denied on independent grounds.

        The language of Rule 54 suggests that there can be only one prevailing party for the

purposes of costs. The rule refers to “the prevailing party”, using the singular definite article. 90

Although Delaware courts do not customarily award attorney’s fees, fees are awarded along with

costs when authorized by statute or contract. In this case, there is a contract, which provides,

“[i]n the event a dispute arises under this Agreement between Seller and Buyer resulting in any

litigation, and/or arbitration, Buyer or Seller, whichever is unsuccessful, shall also be liable for

the other parties’ court costs and attorney’s fees.” 91 Like Rule 54, the language of the contract

appears to contemplate a single prevailing party. The contract explicitly mentions “Buyer” and

“Seller,” and states that “whichever [of these two parties] is unsuccessful” shall be responsible

for the costs and fees of the other. Further, while Delaware courts have not explicitly addressed

this issue, the consensus in other jurisdictions is clearly that there can be only one prevailing

party with respect to costs and fees. 92 The only possible exception that has been found is when


88
   Cheek v. McGowan Electric Supply Co., 511 So. 2d 977, 979 (Fla. 1987); T & G Aviation, Inc. v. Footh, 792 P.2d
671, 672 (Alaska 1990) (upholding award of attorney fees where motion was filed for first time seventy days after
entry of judgment);
89
   See, e.g., Meadowbrook, LLC v. Flower, 959 P.2d 115, 119-20 (Utah 1998) (holding “a prevailing party that files
a motion for attorney fees before signed entry of final judgment or order does not waive its claim to such fees,
unless otherwise provided by statute or unless it fails to comply with the court’s order to address the issue at a
specific time”).
90
   Del. Super. Ct. R. 54(d).
91
   JTE 8, Agreement of Sale.
92
   See, e.g., Oregon Bank v. RSG Forest Products, Inc., 872 F.2d 429, *5 (9th Cir. 1989); Shum v. Intel Corp., 629
F.3d 1360, 1363 (Fed. Cir. 2010) (holding that “even in a mixed judgment case… Rule 54 does not allow every

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“in the same lawsuit there are separate and distinct claims[,] which would support independent

actions.” 93 But that is not the case here. In the instant case, the Court finds all of the claims

substantially related; all of the claims concerned defects with Property that Mrs. Walton alleged

failed to reveal in the Seller’s Disclosure.

        Because there can be only one prevailing party in a single action, absent distinct claims,

and because the Court has found for Plaintiff, albeit in a limited victory, Defendants’ Motion for

Attorney’s Fees is DENIED.



                                               VI. CONCLUSION

        For the foregoing reasons, the Court finds Defendants liable to Plaintiffs in the amount of

$1,151.50 in costs and in the amount of $1,250.00 in attorney’s fees.



IT IS SO ORDERED.


                                                             ______/s/__________________________
                                                              M. JANE BRADY
                                                               Superior Court Judge




party that won on some claims to be deemed a ‘prevailing party.’ For the purposes of costs and fees, there can be
only one winner. A court must choose one, and only one, ‘prevailing party’ to receive any costs award”).
93
   Green Companies, Inc. v. Kendall Racquetball Investment, Ltd., 658 So.2d 1119, 1121 (Fla. 3d DCA 1995)
(citations omitted).

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