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Delaware Trial Practice Blog

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A plaintiff’s failure to retain a damages expert is not fatal in a suit to recover the value of damaged personal property.

Posted in Civil Procedure, Delaware Superior Court, Evidence

On July 21, 2014, the Delaware Superior Court (Judge Young) ruled in Dippold Marble & Granite, Inc. v. Harleysville Mutual Insurance Company (No. K12C-09-021) that “because the owner of personalty may testify as to its value, Plaintiff’s failure to name an outside expert is not fatal.”  The full opinion can be found here.

The Plaintiff, Dippold, filed suit against its insurance company, Harleysville, seeking to recover approximately $91,000 for damage to personal property stored in a rental unit in New Castle, Delaware.  To support this damages figure, Plaintiff produced a spreadsheet identifying the allegedly damaged property and the replacement cost for each item.  However, Plaintiff did not retain a damages expert.  After the deadline for identifying experts had passed, Harleysville moved to dismiss Plaintiff’s claim due to Plaintiff’s failure to produce an expert opinion on damages.

The Court denied Harleysville’s motion to dismiss.  Citing Ligon v. Brooks, 196 A. 200 (Del. Super. 1937), the Court explained that a “record owner…of personal property is qualified by law to testify to the value of such property.”  The Court further explained that a property owner’s familiarity with the property’s value “is, of course, subject to cross examination.”

In sum, the bottom line is this:  In a suit to recover the value of damaged property, it may not be necessary for the plaintiff to retain an expert to opine on the value of the property.  However, while a plaintiff’s failure to produce an expert report in such cases may not be fatal, it is almost always advisable to retain an expert to opine on such matters.

Delaware Supreme Court Amends Delaware Supreme Court Rules, Effective July 1, 2014

Posted in Delaware Supreme Court

On June 23, 2014, the Delaware Supreme Court entered three separate orders modifying Delaware Supreme Court Rules 2(b), 15(a)(iii), 16(c), 69(b), and Supreme Court Internal Operating Procedure V(1)(a)(i).  The amendments become effective July 1, 2014.  The announcement of these rule changes, and the implementing orders, can be read in their entirety here.

Delaware Superior Court Update

Posted in Civil Procedure, Delaware Superior Court, Uncategorized

We previously posted on the Superior Court’s web based initiative related to civil case management (see posts here and here).  As an update, several additional Judges have added their individual case management preferences to the Court’s website.  The Judicial Officers’ Preferences section provides detailed information about individual judge’s or commissioner’s particular practices and procedures for civil case management in an effort to assist attorneys.  All Superior Court practitioners should visit this site regularly in order to stay current on each Judge’s practices and procedures.

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Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.

The Delaware Supreme Court Amends the Delaware Uniform Rules of Evidence

Posted in Delaware Supreme Court, Evidence

The Delaware Supreme Court has entered an order modifying Delaware Uniform Rules of Evidence 510, 606(b), 801(d)(1), and 803(10).  The comments to the Rules have been amended as well.  The amendments, which become effective July 1, 2014, may be read in their entirety here.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Delaware Supreme Court Examines The Standard For Vacating An Arbitrator’s Order

Posted in Alternate Dispute Resolution, Delaware Supreme Court

In the matter of SPX Corporation v. Garda USA, Inc. et al., Del. Supr., No. 332, 2013 (June 16, 2014), the Delaware Supreme Court was asked to consider the circumstances under which an order entered by an arbitrator may be vacated based on allegations that the arbitrator manifestly disregarded the law.  Pursuant to Section 5714(a) (3) of the Delaware Arbitration Act “[t]he Court shall vacate an award where . . .[t]he arbitrators exceeded their powers, or so imperfectly executed them that a final and definite award upon the subject matter submitted was not made.”  Id. at 9.  After examining Section 5714, the Court concluded that “[t]o vacate an arbitration award based on ‘manifest disregard of the law,’ a court must find that the arbitrator consciously chose to ignore a legal principle, or contract term, that is so clear that it is not subject to reasonable debate.”  Id. at 2.  The decision may be read in its entirety here.

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Leslie Spoltore is an attorney with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

2014 Delaware Bench & Bar Conference – June 4, 2014

Posted in Uncategorized

The 2014 Bench and Bar Conference will take place on Wednesday, June 4, 2014 at the Chase Center on the Riverfront in Wilmington, Delaware.  Highlights of the event will include:

- The State of the Judiciary Address by The Honorable Leo E. Strine, Jr., Chief Justice of the Supreme Court of Delaware

- First State Distinguished Service Award presented posthumously to Arthur G. Connolly, Jr., Esquire

- Passing of the gavel from Fox Rothschild’s very own Gregory B. Williams, Esquire to the new DSBA President, Yvonne Takvorian Saville, Esquire

- The New Bench and Bar Social Reception: Engage in lively conversation while enjoying delicious Delaware-themed food stations and beverages

- Prize drawing offered to attendees who visit and obtain signatures of all exhibiting vendors

- CLE Prior to the Bench and Bar Conference: A View from the Bench: Preferred Procedures, Proper Practices, and Pet Peeves featuring a distinguished judicial panel and The Technology of Today and the Issues of Tomorrow featuring a panel of technology experts

The brochure and registration form for the 2014 Bench and Bar Conference is available here.

The Ring Part II: When “Will You” Becomes “I Won’t”

Posted in Delaware Court Of Common Pleas

A prior post examined who is entitled to retain an engagement ring when an engagement is mutually broken.  In that instance, the person who gave the engagement ring as a gift is entitled to retain it if the marriage does not take place.  But what happens if the engagement isn’t mutually broken?  An interesting decision issued by the Court of Common Pleas answers that very question.

In Walton v. Snow, C.A. No. CPU4-13-000791, Rennie, J. (March 3, 2014), the Court adopted the “fault approach.”  “Under the fault-based analysis, return of the ring depends on an assessment of who broke the engagement, which necessarily entails a determination of why that person broke the engagement.”  Id. at 10 (citations omitted).  Under the fault approach, the recipient of the ring may retain it if the marriage does not take place, so long as he or she is not at fault. Id. at 11.  This interesting, and precedential decision may be read in its entirety here.

Tax Time Is Here Again – Did You Plan Ahead?

Posted in Family Law

Preparing and filing federal and state tax returns is often a difficult and stressful process.  It can be even more stressful if you are going through a divorce.  Will you file jointly or separately?  If you file jointly, which one of you will prepare the returns?  If you are not preparing them, will you have sufficient time and information to review the returns?  As Mark Ashton, a Partner in our Exton, Pennsylvania office points out in his recent post entitled “Make April 11 Your Tax Day,” early communication can be helpful in reducing some of the stress of tax day.  His post is well worth reading.

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Leslie Spoltore is an attorney with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Be certain of your damages numbers; don’t just guess!

Posted in Delaware Superior Court, Evidence

In a matter of first impression in Delaware, the Superior Court in Villare v. Beebe Medical Center Inc., C.A. No. 08C-10-189-JRJ (Jurden, J., March 19, 2014) held that: (1) a medical center’s policy/bylaws regarding appointment to a medical staff position (“Appointment Policy” or “Bylaws”) does not constitute an enforceable contract; and (2) even if such a policy did constitute an enforceable contract, the Plaintiff here—Dr. Villare—was unable to prove damages because he lacked a sufficient evidentiary basis for making a fair and reasonable estimate of damages.  Thus, the Court granted defendant Beebe Medical Center’s motion for summary judgment on Dr. Villare’s breach of contract claim.  The full opinion can be read here.

Significantly, this case reinforces that, at the summary judgment stage, a plaintiff seeking to prove breach of contract must proffer more than mere “guesstimates.”  The plaintiff must have competent evidence of damages.

Court of Common Pleas Announces Standards for Attorneys’ Professionalism and Civility

Posted in Delaware Court Of Common Pleas, Uncategorized

The Court of Common Pleas recently adopted Standards For Attorneys’ Professionalism And Civility In A Courtroom Setting (a copy can be found here).  The Standards are a complement to the Delaware Principles of Professionalism for Delaware Attorneys.  The Standards are intended to foster a level of civility and professionalism.

The standards are offered because civility in the practice of law promotes both the effectiveness and the enjoyment of the practice of client representation. The legal profession must strive to uphold the honor and dignity of the profession to elevate and enhance our service to justice. Uncivil or unprofessional conduct not only disserves the individual involved, it demeans the profession as a whole and our system of justice.

The Standards offer the following Special Rules Of Courtroom Decorum:

  •  An attorney should rise before addressing the Court.
  • An attorney should wait until the Judge or Commissioner has finished speaking before speaking.
  • An attorney shall address all remarks to the Court and not to opposing counsel or the opposing party.
  • An attorney should always introduce himself/herself at the time of first interaction with the Court.
  • An attorney should not leave the courtroom or turn his/her back to the Court when a recess is declared until the Judge or Commissioner has left the courtroom.
  • If an attorney expects to be late because of another court commitment, he/she should so inform the affected Judge, Commissioner or court staff as soon as practical.
  • An attorney shall seek the Court’s permission before approaching the bench.
  • As Court staff are an integral part of the justice system, attorneys should treat staff with courtesy and respect at all times.
  • An attorney will be considerate of the time constraints and pressures on the Court and Court staff in their efforts to administer justice.
  • An attorney should always face the bench while addressing the Court.
  • An attorney should begin with “May it please the Court” when making oral arguments, opening statements and closing arguments.
  • An attorney should not eat, chew gum or bring beverages (other than water provided by the Court) in a courtroom and should similarly advise witnesses.
  • An attorney should avoid inappropriate humor and gestures.

Attorneys appearing in any Delaware Court should take some time to review the Standards.

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Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.