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Delaware Trial Practice Blog

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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.

Delaware Supreme Court Examines The Right To Bear Arms

Posted in Delaware Supreme Court

The matter of Doe v. Wilmington Housing Authority, Del. Supr., No. 403, 2013 (March 18, 2014), is a procedurally and factually interesting case that presents questions regarding the right to bear arms in public housing.  Specifically, the case presents the question of whether provisions in a lease for public house that restrict when residents, members of the household and their guests may carry and possess firearms in common areas violate the constitutionally protected right to bear arms.  Doe, which began in the Court of Chancery, was removed to the United States District Court for the District of Delaware (“District Court”).  The decision of the District Court was appealed to the United States Court of Appeals for the Third Circuit (“Third Circuit”).  The District Court and Third Circuit both concluded that the restrictions imposed by the Wilmington Housing Authority (“WHA”) do not violate the Second Amendment of the United States Constitution or the Delaware Constitution.

However, that did not conclude the inquiry.  The Third Circuit certified questions regarding Article I, § 20 of the Delaware Constitution to the Delaware Supreme Court.  Article I, § 20 provides, “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.”  With regard to that Section, the Third Circuit presented two questions,

1.   Whether, under Article I, §20 of the Delaware Constitution, a public housing agency such as the WHA may adopt a policy prohibiting its residents, household members, and guests from displaying or carrying a firearm or other weapon in a common area, except when the firearm or other weapon is being transported to or from a resident’s housing unit or is being used in self-defense.

2. Whether, under Article I, §20 of the Delaware Constitution, a public housing agency such as the WHA may require its residents, household members, and guests to have available for inspection a copy of any permit, license, or other documentation required by state, local, or federal law for the ownership, possession, or transportation of any firearm or other weapon, including a license to carry a concealed weapon, as required by Del. Code Ann. tit. 11, §1441, on request, when there is reasonable cause to believe that the law or policies have been violated.

The Delaware Supreme Court answered both questions in the negative.  The case, which is well worth reading, may be found here.  In addition, you may view the oral argument here.

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LeslieSpoltore 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.

Martial Property Agreements – An Unspecified Time Period For Performance

Posted in Contract law, Delaware Supreme Court, Property Division

It is not uncommon for marital property agreements to contain terms for tasks that have yet to be completed.  For example, one party may need to refinance the debt associated with the marital residence to remove the other spouse from the obligation.  Or, one party may need to prepare two lists for the division of personal property.  What happens if the agreement does not specify the time period in which an act must occur?

This is one of the questions recently presented to the Delaware Supreme Court in the matter of Harris v. Frank-Harris, No. 511, 2013, Ridgely, J. (March 7, 2014).  In Harris, the Court upheld the Family Court conclusion that where a valid marital property agreement fails to specify a time for performance of an act, a reasonable time can be implied.  Id. at *5.  To determine what constitutes a reasonable period of time the court will consider the “subject matter, situation of the parties, their intentions and what was contemplated when the agreement was signed.”  Id.  at *6.

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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.

Appellate Practice – Amendment to Delaware Supreme Court Rule 10

Posted in Delaware Supreme Court

The Delaware Supreme Court recently entered an Order amending Rule 10(d) regarding the service and filing of papers.  As amended, Delaware Supreme Court Rule 10(d) provides:

Number of copies required.  Ten copies of briefs, including supplemental briefs, and appendices shall be filed.

This amendment, which was signed on March 4, 2014, became effectively immediately.

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LeslieSpoltore 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 Judiciary Issues 2013 Annual Report

Posted in Uncategorized

The Delaware Judiciary recently issued its 2013 Annual Report.  The Report begins with a farewell message from Chief Justice Steele.   In addition, the Chancellor, President or  Chief Judge from each Court provide a more detailed update on the state of their Court along  with a summary of Court initiatives and developments from the previous year.  The Report also includes a message from the State Court Administrator, fiscal overview and a summary of 2013 legislation that impacts the Judiciary.

Along with the Annual Report, the Judiciary also published Statistical Information for 2013.  This is a valuable resource for Delaware practitioners and offers statistics such as,

  • Disposition of appeals to the Supreme Court
  • Average time from filing to disposition of appeals to the Supreme Court
  • Average time from submission to disposition of appeals to the Supreme Court
  • Caseload of each Court
  • Caseload breakdown and disposition of matters filed in each Court with comparisons to previous years

Previous Annual Reports and Statistical Information can be found on the Court’s website.

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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.

Divorce – Dividing Marital Personal Property

Posted in Delaware Family Court

Prior posts have examined how the Family Court conducts its analysis when dividing marital property in a divorce.  That analysis is designed to result in an equitable division of marital assets and debts.  In addition to dividing the assets and debts, the Family Court also has the authority to divide marital personal property such as furniture, dishes, candlesticks and televisions.

If the parties cannot agree on the division of this type of property Family Court does not typically hear evidence at trial over who should get what.  Rather, the Court typically utilizes what it calls the “two-list method.”  Here’s how it works:

One party, typically the party still in the marital residence, prepares an inventory of all the marital personal property dividing it into two lists.  Both lists are then provided to the other party.  The party receiving the lists selects one list and returns the other list to the party who prepared the lists.  Each party then gets to keep the items on their list.

And with that, the marital personal property is divided.

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LeslieSpoltore 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.

 

 

Killing Two Birds With One Stone: The Former Testimony Hearsay Exception As Applied To Expert Testimony

Posted in Delaware Superior Court, Evidence

In Carroll, et al. v. Phillip Morris, C.A. No. 03C-08-167 (JTV)—a class action suit alleging that Philip Morris violated the Delaware Consumer Fraud Act—the Delaware Superior Court (Vaughn, President Judge) denied Philip Morris’s motion to strike Plaintiffs’ designation of William A. Farone as an expert witness on hearsay grounds.  The opinion can be read in its entirety here.

Plaintiffs had designated Farone as an expert relating to class certification, and proposed to offer into evidence former sworn testimony given by Farone in another class action suit brought against Philip Morris in Illinois – Miles v. Philip Morris Co.  Farone, a former employee of Philip Morris, had actually refused to be retained as an expert in the Delaware case due to his current position with the FDA, believing that providing testimony in the case would be a conflict of interest.  Defendants objected to Plaintiffs’ designation of Farone and moved to strike, contending that Farone’s former testimony in the Miles case would constitute inadmissible hearsay in the Delaware case.  Plaintiffs invoked the “former testimony” hearsay exception and argued that Farone’s former testimony should be admitted.

The Court denied Philip Morris’s motion for the following reasons: (1) Farone is “unavailable” as a witness because of his refusal to testify and because he is beyond the subpoena power of the Court, thus satisfying Rule 804(a)(5); (2) Farone was uniquely qualified to present the testimony that Plaintiffs sought to present, having worked for Philip Morris in the past; and (3) Philip Morris had an “opportunity and similar motive” to cross-examine Farone in the Miles case.  Thus, the Court concluded that Plaintiffs successfully satisfied the requirements of Delaware Rule of Evidence 804 and accordingly denied Philip Morris’s motion to strike.