Caldera Properties-Lewes / Rehoboth VII, LLC v. The Ridings Development, LLC, et al.
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SUPERIOR COURT OF THE STATE OF DELAWARE T. HENLEY GRAVES SUSSEX COU NTY C OUR THO USE RESIDENT JUDGE ONE THE CIRCLE, SUITE 2 GEORGETOWN, DE 19947 August 6, 2009 Joseph W. Benson, Esquire Andrew Ahern III, Esquire JOSEPH W. BENSON, P.A. 1701 N. Market Street P.O. Box 248 Wilmington, DE 19899 Barbara Anisko, Esquire Pamela M. Tobin, Esquire KAPLIN STEWARD MELOFF REITER AND STEIN, P.C. P.O. Box 3037 Blue Bell, PA 19422-0765 Christopher J. Lamb, Esquire Pepper, Hamilton, LLP 1313 Market Street Suite 5100 Wilmington, DE 19801 RE: Caldera Properties v. The Ridings Development, LLC, et al. Civil Action No. 07C-12-002 Dear Counsel: This Motion for a Charging Lien became ripe for decision upon the remand from the Supreme Court to resolve post-trial ancillary motions. The decision of this Court and return to the Supreme Court must be accomplished prior to August 24, 2009. Kaplin, Steward, Meloff, Reiter and Stein, P.C. ( Kaplin Steward ) represented Plaintiff in this case. As a part of my decision of May 29, 2009, I awarded Plaintiff prejudgment interest on a Two Million Dollar ($2,000,000.00) mortgage that Defendants, Ridings and Centex, did not timely satisfy. This mortgage was not on the real property that was at issue in the litigation but on another property. This mortgage was to protect Defendants if Plaintiff defaulted on the contract. The prejudgment interest has been calculated to be $214,772.80 and I entered judgment on same on August 5, 2009. Subsequent to my decision, RBS Citizens, N.A. ( RBS ) filed a writ seeking to attach the prejudgment interest award. RBS obtained a stipulated judgment on April 1, 2009 against Plaintiff involving the property that was the subject of this litigation. Kaplin Steward has filed a motion seeking an attorneys charging lien against the prejudgment interest award for its representation of Plaintiff in which Plaintiff substantially prevailed in the litigation including the prejudgment interest award. Royal Ins. V. Simon, 174 A.2d 444 (Del. Ch. 1934); Polin v. Delmarva Poultry Corp., 188 A.2d 364 (Del. Super 1963). Plaintiff has not filed any objection to its attorneys application. The Court s decision significantly increased the value of the subject real property; and, therefore, the decision also significantly benefitted RBS as to its mortgage on the subject property. But for the litigation and efforts of Kaplin Steward, the prejudgment interest award now owed by Ridings and Centex would not exist. As a party to the litigation, RBS was fully aware of the litigation and Kaplin Steward s significant work which benefitted not only Plaintiff but also RBS. RBS was also aware of the financial plight of Plaintiff based upon not only the subject matter of the litigation but also the direct communications and negotiations with Plaintiff as to the indebtedness to RBS. It is important to repeat that RBS benefitted significantly in the protection of its collateral by the work of Kaplin Steward, and RBS had knowledge of the financial circumstances of Plaintiff. RBS was represented and could have reasonably predicted that Plaintiff s counsel would try to protect itself with a charging lien. On May 29, 2009, the prejudgment interest was awarded and it became ripe for a charging lien. The writ of attachment fieri facias was filed by RBS on or about June 10, 2009. In other words, RBS was secured by its mortgage and judgment as to the subject property, but its interest in the prejudgment interest award was not an automatic lien. The writ was necessary to attach the prejudgment interest. Therefore, based upon the above, it is fair, equitable and appropriate that a charging lien be recognized in favor of Kaplin Steward as to the May 29, 2009 prejudgment interest award. IT IS SO ORDERED. Yours very truly, /s/ T. Henley Graves T. Henley Graves THG:baj cc: Prothonotary Gerald M. Rourke, Esquire Deborah J. Israel, Esquire and Cathy A. Hinger, Esquire Daniel F. Wolcott, Jr., Esquire and Gregory A. Inskip, Esquire William A. Denman, Esquire Sheldon K. Rennnie, Esquire Edward J. Hayes, Esquire
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