IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, upon )
The Relation of the Secretary of the )
DEPARTMENT OF TRANSPORTATION, )
)
Plaintiff, )
) C.A. No.: S24C-07-019 CAK
v. )
)
LESLIE GAY KNAPP MARINI, et al., )
)
Defendants. )
Submitted: August 14, 2026
Decided: September 30, 2026
Defendants’ Corrected Application for Reimbursement of Litigation Expenses
GRANTED IN PART AND DENIED IN PART
MEMORANDUM OPINION AND ORDER
E. Chaney Hall, Esquire and Kasey H. DeSantis, Esquire, Fox Rothschild LLP, 1201 North Market Street, Suite 1200, Wilmington, Delaware 19801, Attorneys for
Plaintiff.
Bradley S. Eaby, Esquire, Deputy Attorney General, Department of Justice, 800 South Bay Road, Dover, Delaware, 19901, Attorney for Plaintiff.
John W. Paradee, Esquire, Mark A. Denney, Jr., Esquire, and Joseph S. Grubb, Esquire, Brockstedt Mandalas Federico, LLC, 6 South State Street, Dover, Delaware 19901, Attorneys for Defendants.
Timothy G. Willard, Esquire, Fuqua Willard & Schab PA, 26 The Circle,
Georgetown, Delaware 19958, Attorney for Defendants.
KARSNITZ, R. J.
INTRODUCTION
The Fifth Amendment to the United States Constitution provides that no
person shall be deprived of property without due process of law, nor shall private
property be taken for public use without just compensation. Eminent domain is a
constitutional power exercised in furtherance of building public infrastructure. It is
in derogation of these constitutional private property ownership rights, and the costs
of condemnation are ultimately borne by the taxpayers.
Our legislature has provided by statute that, in a just compensation trial, where
the award of just compensation by the Commissioners is closer to the property owner’s
highest valuation evidence at trial than the State’s offer of judgment, the property
owner may apply to the Court for an order for the State to pay the property owner’s
reasonable litigation expenses. As a matter of public policy, this is an effort to
balance the competing interests of the property owner and the public taxpayers by
vesting discretion in the Court rather than mandating full reimbursement. An
excessive fee award could chill the State’s exercise of its eminent domain power,
discourage the vigorous advocacy that the adversarial system requires for the proper
determination of just compensation, and discourage the State from making an offer of
judgment to resolve such actions before trial. An inadequate fee award could chill
the property owner’s exercise of his Fifth Amendment right to challenge the State’s
2
taking and cause the property owner to pay fees he otherwise would have never
incurred but for the taking.
The statute provides three bases for the State to challenge an application for
fees and costs. It also requires that any fees and costs awarded must be reasonable
and have been actually incurred because of the just compensation trial.
Overlaid on these constitutional and statutory factors is the common law
requirement that the fee award be reasonable. Delaware case law has developed
principles guiding the determination of reasonableness of fees based on the
Delaware Rules of Professional Conduct.
All that being said, at the end of the day my review of a law firm’s fees and
costs is more of an art than a science. I will not second guess the minutiae of work
in which I was not involved. Nonetheless, using the legal guardrails that are in place,
I now step into this thicket.
PROCEDURAL BACKGROUND
On July 12, 2024, the Delaware Department of Transportation (“Plaintiff”)
commenced this condemnation action by filing a Complaint. Based upon an appraisal
by its expert, on July 18, 2024, Plaintiff deposited six checks in the total amount of
$2,040,900.00 with the Court, and on November 4, 2025, Plaintiff deposited a check
for an additional $256,300.00 with the Court, for a total amount of $2,297,200.00,1
1
There is a $17,800.00 disparity in the record between this amount and Plaintiff’s appraiser’s fair
3
as just compensation for the properties being condemned (collectively, the
“Property”). On August 13, 2024, I entered an Order entitling Plaintiff to immediate
entry on and possession of the Property. Defendants filed their Answer to the
Complaint on September 20, 2024.2
Five scheduling orders were entered (on October 22, 2024, April 30, 2025,
July 2, 2025, September 24, 2025, and December 22, 2025), pursuant to the last of
which Plaintiff and Defendants were required to identify all expert witnesses
(appraisers) and produce any related reports (appraisals) by May 9, 2025, and December
31, 2025, respectively. Discovery was to be completed by January 30, 2026. Motions
were to be finalized by March 13, 2026. Commissioners were to be designated by April
22, 2026, and a pretrial stipulation was required by April 29, 2026. The striking of
Commissioners was to occur at the pretrial conference on May 5, 2026. All exhibits were
to be filed ten days before trial. A two-day Commissioner’s trial was to begin on June
1, 2026.
On August 8, 2024, the law firm Fuqua, Willard & Schab, P.A. (“FWS”)
entered its appearance as counsel for Defendants. On June 25, 2025, Brockstedt
Mandalas Federico, LLC (“BMF”) entered its appearance on behalf of Defendants.
Plaintiff propounded two sets of requests for document production and three
market value of $2,279,400.00, which is the amount I used in my Order of Confirmation and Entry of Judgment, as discussed later in this opinion. See footnote 6.
2
Plaintiff filed an Amended Complaint on May 4, 2026, and Defendants filed an Answer to the Amended Complaint on May 5, 2026.
4
motions in limine.3 Plaintiff issued a combined sixteen individual written discovery
requests. Defendants propounded four sets of requests for document production and
two sets of interrogatories. Defendants filed three motions to compel.4 Defendants
issued six sets of written discovery requests, or over one hundred individual written
discovery requests.
In April 2026, Defendants produced another expert report, consisting of
conceptual renderings and a conceptual video prepared by an engineer. Plaintiff
t o o k the deposition of the engineer on May 8, 2026, and subsequently sought to
exclude his report, which request was denied. On May 15, 2026, Plaintiff served an
Offer of Judgment5 on Defendants in the amount of $3,250,000.00. On May 27, 2026,
Defendants made a counteroffer to Plaintiff, which was summarily rejected.
Trial commenced on June 1, 2026, and concluded on June 3, 2026. At trial,
Plaintiff’s expert appraiser testified that the fair market value of the interests
acquired was $2,279,400.00,6 while Defendants’ expert appraiser testified that the
value was $4,238,400.00. The Jury of Commissioners returned a verdict awarding
3
The Plaintiff’s motions in limine sought to exclude foreign appraisals other than the Property, to exclude certain pictures, and a Daubert motion with respect to Defendants’ appraiser. All these motions were denied.
4
Defendants’ motions to compel sought appraisal reports for properties other than the Property, to be used to impeach Plaintiff’s expert at trial. These motions were granted. 5
Pursuant to 10 Del. C. § 6111(1).
6
There is a $17,800.00 disparity in the record between this amount and the amount of Plaintiff’s deposit with the Court, $2,297,200.00. See footnote 1.
5
just compensation to Defendants in the amount of $4,238,400.00. On August 14,
2026, I entered an Order of Confirmation and Entry of Judgment, as follows:
The final award of just compensation for the real estate interests
condemned is $4,238,400.00.
The Protonotary was directed to release and pay the additional amount
of $1,959,000.007 to Defendants after such amount has been deposited
by Plaintiff which, when added to the $2,279,400.00 8 previously
deposited by Plaintiff and released to Defendants, will result in
Defendants receiving a total just compensation amount of
$4,238,400.00.
Interest through the date of the entry of the Commissioners’ verdict is
awarded in the amount of $470,240.51.
Post-judgment interest will accrue at a rate of $724.56 per day
beginning on June 4, 2026, until the just compensation amount is paid
in full.
On June 12, Defendants filed their corrected Application for Reimbursement
of Litigation Expenses (the “Application”), and requested reimbursement by
Plaintiff of the following:
Attorneys’ Fees and Costs $637,261.78
Expert Appraiser $ 26,360.00
Expert Engineer $ 41,054.78
Courtroom Technology Firm $ 10,169.24
TOTAL $714,845.80
On July 17, 2026, Plaintiff filed its Response in Opposition to the Application.
7
See footnotes 1 and 6.
8
See footnotes 1 and 6.
6
On July 30, 2026, Defendants filed their Reply to Plaintiff’s Opposition to the
Application. This is my decision on the Application.
LEGAL STANDARDS
Statutory Tests
Under the Delaware Code,9 where the award of just compensation is closer to
the defendant’s highest valuation evidence at trial than the plaintiff’s offer of
judgment, the defendant “may apply for an order for the plaintiff to pay the
defendant’s reasonable litigation expenses.” I have broad discretion over the award
of such expenses. 10 The statute states three independent bases for reducing or
denying a fee award: (1) the defendant, during the course of the proceeding, engaged
in conduct which unduly and unreasonably protracted the final resolution of the
action; (2) the Court finds that the position of the plaintiff was substantially justified;
or (3) special circumstances make an award of expenses unjust.11 In addition, under
the statute the fees awarded must be limited to those actually incurred because of the
compensation trial.
Reasonableness
The Delaware statute is in abrogation of the general rule Delaware courts use
in determining the reasonableness of attorneys’ fees and costs. Nonetheless, the
9
10 Del. C. § 6111(2).
10
See State ex rel. Secretary of Department of Transportation v. Melpar, LLC, 2022 WL 17985491, at *2 (Del. Super. Dec. 28, 2022).
11
10 Del. C. § 6111(2).
7
Delaware common law rule is instructive in addressing the arguments of the parties
here. Delaware follows the American Rule, under which litigants are normally
responsible for paying their own litigation costs.12 An exception arises in litigation
involving a fee-shifting provision, whether statutory or contractual, where a trial
judge may award the prevailing party all costs incurred during litigation.13 Here, a
statute sets forth the standard. In such cases, Delaware law dictates that a judge
determine whether the fees requested are reasonable.14
With respect to reasonableness, the Delaware Supreme Court established
in General Motors Corp. v. Cox15 that the factors for determining the reasonableness
of legal fees are found in Rule 1.5(a) of the Delaware Lawyers' Rules of Professional
Conduct.16 These eight non-exclusive “Cox factors” are:
1. The time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
2. The likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
3. The fee customarily charged in the locality for similar legal services;
4. The amount involved and the results obtained;
12
Mahani v. Edix Media Group, Inc., 935 A.2d 242 (Del. 2007).
13
Id.
14
Id.
15
304 A.2d 55 (Del. 1973).
16
Surf's Up Legacy Partners, LLC v. Virgin Fest, LLC, 2025 WL 3232923 (Del. Super. Nov. 19, 2025); Monheit v. Chalk, 1985 WL 11556 (Del. Ch. April 16, 1985); Meyers v. Chatham Cove Association of Unit Owners, 2025 WL 1744378 (Del. Super. June 24, 2025).
8
5. The time limitations imposed by the client or by the circumstances;
6. The nature and length of the professional relationship with the client;
7. The experience, reputation, and ability of the lawyer or lawyers performing
the services; and,
8. Whether the fee is fixed or contingent.
In reviewing a fee award pursuant to a prevailing party statutory or contractual
provision, the court will generally exclude excessive, redundant, duplicative, or
otherwise unnecessary hours.17 The party seeking an award of attorneys’ fees and
expenses shoulders the burden of establishing that the amount sought is reasonable.18
A trial court's consideration of the Cox factors may be brief, and it may even suffice
for the court to state in conclusory fashion that it considered the factors.19 However,
the record must contain some showing that the court considered them.20 Delaware
courts have confirmed that a judge must consider all of the factors listed in Section
1.5(a) of the Rules of Professional Conduct, rather than giving primary weight to
any single factor such as the degree of likelihood of trial success.21
17
Surf's Up Legacy Partners, LLC v. Virgin Fest, LLC, 2025 WL 3232923 (Del. Super. Nov. 19, 2025).
18
Id.
19
Meyers v. Chatham Cove Association of Unit Owners, 2025 WL 1744378 (Del. Super. June 24, 2025).
20
Id.
21
Mahani v. Edix Media Group, Inc., 935 A.2d 242 (Del. 2007).
9
ANALYSIS
Statutory
Unreasonable Protraction of the Litigation by Defendants
The statute authorizes me to reduce the award of fees and costs “to the extent
that the defendant, during the course of the proceeding, engaged in conduct which
unduly and unreasonably protracted the final resolution of the action. 22 Mere
protraction is not enough – the delay must be unreasonable.
Plaintiff first argues that Defendants’ adding new counsel nearly a year into
the case resulted in duplicative work as new counsel had to review and redo work
already performed, particularly in the months of June, July, August, and September
2025.
Second, Plaintiff argues that Defendants extended scheduling deadlines on
four or more occasions, and at least three of these extensions were necessitated by
Defendants’ delays in discovery, identifying experts, and producing expert reports.
Third, Defendants were several weeks late in producing their appraiser’s
reports. They also retained an engineer a few weeks before trial and commissioned
conceptual renderings and a video at a cost of $41,054.78, which necessitated
additional motion practice. This required Plaintiff to designate a rebuttal expert
22
10 Del. C. § 6111(2) (emphasis added).
10
witness and attend his deposition.
Defendants counter these arguments. First, they argue that the addition of BMF
as counsel during the pendency of this case did not protract the litigation, and the June,
July, August, and September 2025 invoices of FWS and BMF are not duplicative. BMF's
work was separate and distinct from any work done by FWS. All work conducted
on this case would have been required regardless of which firm represented
Defendant.
Second, with respect to delaying deadlines in the scheduling orders,
Defendants point out that not all their four sets of requests for document production
were answered, and some were withdrawn. Defendants' requests were necessary
to preserve Defendants' rights to confront the government's expert witness on his
prior inconsistencies. Defendants argue that their three motions to compel discovery
were not duplicative but rather caused by Plaintiff’s refusal to comply with
reasonable discovery requests. A s s t a t e d a b o v e , t h e s e m o t i o n s sought
appraisal reports for properties other than the Property, to be used to impeach
Plaintiff’s expert at trial. Every motion was granted. By contrast, Plaintiff’s motions
in limine sought to exclude foreign appraisals other than the Property, to exclude
certain pictures, and a Daubert motion with respect to Defendants’ appraiser. All
these motions were denied.
Third, Defendants’ appraisal reports were only a few weeks late and did not
11
significantly delay the proceedings. With respect to the engineer’s report,
Defendants gave notice of the engineer as a potential rebuttal witness four months
before trial. Defendants intended to use the engineer’s report only f o r demonstrative
exhibits to aid their appraiser's testimony. Yet Plaintiff objected to the demonstrative
exhibits, causing more motion practice. Plaintiff claims the engineer necessitated a
rebuttal witness, which inflated costs, but Plaintiff itself called the engineer as a
witness and never called a rebuttal witness.
In my view, Plaintiff complains about the duplication of law firms, the
timeliness of Defendants' production, and a late appraisal and engineer’s report, but
it provides no adequate explanation of how any of these impacted costs or fees.
Defendants were certainly entitled to the counsel of their choice. Most pre-trial
deadlines were resolved and met without my intervention. The trial date that was
set at the very beginning of the case, June 1, 2026, was never delayed. In short,
Plaintiff does not demonstrate how the trial was protracted at all, let alone by
Defendants' conduct.
Plaintiff’s Position Substantially Justified
A position is substantially justified if it is “justified in substance or in the
main; i.e., justified to a degree that could satisfy a reasonable person” or “if it has a
12
reasonable basis in both law and fact.”23 To defeat Defendants’ application for fees,
Plaintiff must establish substantial justification for its position by demonstrating “(1)
a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the
theory it propounded; and (3) a reasonable connection between the facts alleged and
the legal theory advanced.” 24 “[A] court cannot assume that the government’s
position was not substantially justified simply because the government lost on the
merits,”25 as here.
Plaintiff argues that its position was substantially justified for three reasons.
First, its position had a reasonable basis in the truth for the facts alleged. Its position
as to the value of the Property was grounded in a professional appraisal prepared by
a qualified expert appraiser. I accepted the appraiser as Plaintiff’s qualified expert,
and Defendants did not object to the admission of his report or testimony. The
appraiser’s opinion was based on real facts, and Defendants did not challenge the
facts underlying his reports. In accordance with his estimate of value, Plaintiff
deposited $2,279,400.00 with the Court.
Second, Plaintiff argues that its position had a reasonable basis in law. Its
appraiser’s methodology complied with all statutory and other requirements, and
23
Williams v. Astrue, 600 F.3d 299, 301-02 (3d Cir. 2009) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988) and Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 128 (3d Cir. 1993)). 24
Williams, 600 F.3d at 302 (citing Morgan v. Perry, 142 F.3d 670, 684 (3d Cir. 1998)). 25
Id.
13
Defendants do not allege otherwise. The fact that Defendants’ appraiser disagreed
with Plaintiff’s appraiser does not render Plaintiff’s position unreasonable because
in these types of complex valuation disputes reasonable experts may differ. 26 A
significant spread between the parties’ appraisals reflects the inherent uncertainty in
valuing complex real property interests; it does not render either party’s position
unreasonable.
Third, there was a reasonable connection between the facts and the legal
theory. Plaintiff’s position was rooted in a credible appraisal report that was prepared
in accordance with all statutory requirements. Plaintiff deposited the appraised
amount with the Court. Plaintiff’s Offer of Judgment in the amount of $3,250,000
represented a 43% increase above its expert’s appraised value. This significant
upward adjustment demonstrates Plaintiff’s good faith effort to resolve the case.
Plaintiff argues that I cannot find that it took an unjustified position when it made
such a substantial effort to compromise.
Defendants counter that the Commissioners clearly disagreed with
Plaintiff’s appraisal, as they made an award to Defendants in the full amount of
Defendant’s appraisal, almost $2,000,000.00 above what Plaintiff presented as
26
See Twp. of Manchester Dep’t of Utilities v. Even Ray Co., 315 N.J. Super. 122, 135 (App. Div. 1998) (“[t]here is no precise and inflexible rule for the assessment of just compensation”); United States v. Fuller, 409 U.S. 488, 490 (1973) (market value “is not an absolute standard nor an exclusive method of valuation”).
14
"fair and just compensation" at trial, and roughly $1,000,000.00 above Plaintiff’s Offer
of Judgment. Plaintiff’s Offer of Judgment came two weeks before trial and well
after most of the expenses had been incurred and paid for by Defendants. Defendants
made a counteroffer to Plaintiff on May 27, 2026, which was summarily rejected.
Plaintiff, therefore, chose to move to trial by rejecting Defendants' counteroffer,
knowing the risk that Defendants might be reimbursed for their litigation expenses.
In my view, Plaintiff provides no persuasive explanation of the wide disparity
between its determination of fair and just compensation and its Offer of Judgment and the
Commissioners’ verdict. In short, Plaintiff does not demonstrate a reasonable
connection between the facts alleged and the legal theory advanced.
Special Circumstances Make an Award of Expenses Unjust
Plaintiff argus that several “special circumstances” militate against awarding
the full amount claimed by Defendants. It claims that the requested fee award is
grossly disproportionate to the benefit Defendants received. The incremental benefit
Defendants obtained over Plaintiff’s Offer of Judgment was approximately
$988,400.00. Defendants seek $714,845.80 in litigation expenses – almost threequarters of that incremental benefit. Plaintiff argues that this award would penalize
it for attempting to resolve this action in good faith before trial by making an Offer
of Judgment.
Second, Plaintiff argues that the public interest trumps the amount of the
15
requested fee award. The costs of condemnation are ultimately borne by the
taxpayers. The statute is an effort to balance the competing interests of the property
owner and the public taxpayers by vesting discretion in the Court rather than
mandating full reimbursement. An excessive fee award in this case would chill the
government’s ability to exercise its eminent domain power, discourage the vigorous
advocacy that the adversarial system requires for the proper determination of just
compensation, and discourage the State from making an Offer of Judgment to resolve
such actions before trial.
Third, Defendants have reserved the right to seek additional fees beyond
this Application. Plaintiff argues that this open-ended and potentially increasing
nature of Defendants’ claim is itself a special circumstance weighing against the full
award now requested.
Defendants argue that nothing in the statute itself requires that the fees and
costs be proportionate to the incremental benefit achieved for Defendants. It clearly
states that Plaintiff is required to pay Defendants' reasonable fees incurred because
of the compensation trial if the verdict is closer to Defendants' evidence of value
than Plaintiff’s evidence of value. This is true whether Defendants beat that mark by
$1.00 or by $1,000,000.00.
Defendants further argue that the public and taxpayers’ interests do not
overcome the fee award. To the contrary, denying reimbursement would chill the
16
exercise by property owners of their Fifth Amendment right to challenge the State’s
taking of their property without just compensation. Reimbursing fees in this type of trial
encourages a just amount to be offered in the first place to avoid litigation.
Lastly, Defendants argue that the reason they reserve the right to seek
additional fees is in anticipation of Plaintiff potentially appealing the
Commissioners’ verdict, with the concomitant costs of continuing litigation.
In my view, Plaintiff lays out no persuasive special circumstances which make
an award of expenses unjust.
Fees Actually Incurred Because of the Compensation Trial
Under 10 Del. C. § 6111(2), the litigation expenses must be limited to those
“actually incurred because of the compensation trial.’ Plaintiff argues that the statute
does not authorize the recovery of Defendants’ litigation expenses since the very
beginning of the case – Defendants’ retention of counsel. As this Court emphasized
in Melpar, not all work performed in a condemnation action qualifies. The Court
“cannot agree the General Assembly shared [the] view” “that all actions taken by an
attorney in a condemnation suit constitute costs ‘actually incurred because of the
condemnation trial.’”27 The court reasoned that, “[i]f that were true, then the limiting
language ‘because of the condemnation trial’ would be superfluous.” The Melpar
court divided the litigation into two phases: a first phase in which the defendant
27
Melpar, 2022 WL 17985491, at *4.
17
attempted to force the State to restart its appraisal approach – which the court found
was not “because of the condemnation trial” – and a second phase encompassing all
work performed in preparation for and at trial.28 The court excluded all attorney fees
incurred during the first phase and awarded only those fees incurred during the
second phase. Plaintiff argues that I should apply a similar analysis here, i.e., that
fees and expenses that predate the July 12, 2024, filing of the Complaint should be
excluded. Moreover, Plaintiff argues that not all the fees claimed from July 12, 2024,
through June 3, 2026, were incurred because of the compensation trial. For example,
Defendants did not complete production of their appraisal expert report until
December 2025. Before that, Plaintiff argues, Defendants had no basis to contest
Plaintiff’s appraisal expert report.
Defendants respond that Melpar's approach of dividing the litigation into two
phases is not applicable to this case. Here there was no "first phase" during which
"the defendant attempted to force the State to restart its appraisal approach." Rather,
the entirety of the litigation fees for which Defendants incurred reimbursable fees
in the instant case was "because of the condemnation trial."
Defendants further argue that their expert appraiser fees and engineering fees
were plainly incurred "because of the compensation trial.” Indeed, as discussed
above, Plaintiff used the engineer as its own witness, so it cannot now assert that the
28
Id.
18
engineer's work was unrelated to the trial.
Finally, Defendants refute Plaintiff’s argument that preparation time for trial
is not reimbursable and only time spent in trial is reimbursable. Delaware attorneys
must prepare for trial as a matter of professional responsibility and to effectively
represent their clients. Plaintiff’s position is not supported anywhere in the statute,
and one can assume that both Plaintiff and Defendants compensated their attorneys
for preparation time.
In my view, and except as otherwise provided herein, the fees and costs for
which Defendants have applied for reimbursement were incurred because of the
compensation trial.
Reasonableness
Since I have determined that some award of fees and costs to Defendants is
appropriate under the statute, I must independently scrutinize each category of
expense for reasonableness. The statute limits recovery to “reasonable litigation
expenses, including reasonable attorney, appraisal, engineering or other expert
witness fees.”29
Attorneys’ Fees ($637,261.78)
Defendants seek $637,261.78 in attorney fees for two law firms: FWS
29
10 Del. C. § 6111(2) (emphasis added); see also Melpar, 2022 WL 17985491, at *4 (recognizing that the Court has a duty to assess whether “the amount requested and time spent [are] reasonable.”).
19
($35,398.10, consisting of $34,510 in fees and $888.10 in costs) and BMF
($601,863.68, consisting of $585,502.50 in fees and $16,361.18 in costs). Plaintiff
points to six areas where it asserts that these fees are unreasonable.
First, on January 23, 2026, BMF charged four hours of time at $650 per hour
for “travel to Georgetown and attend CLE seminar on courtroom technology in
preparation for June trial.” Plaintiff argues that Continuing Legal Education is a
professional responsibility of every member of the Delaware Bar, and should not be
billed to a client, let alone compensated by the State.
Defendants have agreed to subtract the amount for this entry, $2,600.00. I
agree that amount should be deducted.
Second, BMF billed for time spent on phone calls with individuals Plaintiff
claims are not related to the case, such as a realtor (4/28/26 “Lengthy telephone
conference with Bob McVey”) and a local politician (4/24/26 “Telephone conference
with Bill Landon”). Mr. McVey and Councilman Landon were not witnesses or
experts in the case. The time entries contain no description of the content of the
communications, or that such communications constituted legal work related to this
case. On January 7, 2026, BMF charged a block billed entry for, in part, “Exchange
correspondences (via e-mail) with Richard Forsten re: Oceans One property.” Mr.
Forsten is not a counsel of record in this action and the Property in this case does not
relate to Oceans One.
20
Defendants explain that Bob McVey was the realtor for a comparable sale by
Plaintiff’s appraiser. Counsel spoke to McVey at length to learn about the facts and
circumstances of that sale, which were used to impeach Plaintiff’s appraiser at
both deposition and trial. Similarly, counsel did not speak to Landon because he
was a Councilman, but rather because he was the owner of nearby Tax Parcel 32,
and Landon purchased the office building that had been located on Tax Parcel 74
which Plaintiff had planned to demolish. Landon relocated that office building to Tax
Parcel 32. He provided Defendants with important details about the value of the
improvements on Tax Parcel 74, which value was subtracted from Plaintiff’s total
valuation to arrive at a value for the underlying real estate. This information
ultimately assisted with the impeachment of Plaintiff’s appraiser at trial. As for the
January 7, 2026, time entry for exchanging correspondence with Richard Forsten
regarding the Oceans One property, counsel reached out to Mr. Forsten to inquire if
his client (Joel Sens of Oceans One) would be willing to share a copy of an appraisal
which Defendants’ appraiser had performed for Oceans One. This was prompted by
Plaintiff’s agreement to pay Oceans One a sum closer to Defendant’s appraiser’s
appraised value than Plaintiff’s initial offer to Oceans One, to avoid a condemnation
trial over Oceans One's property on the southwest comer of the intersection of SRI
and SRI 6, just a few miles up the road from Nassau Orchards. Defendant’s
a p p r a i s e r was unable to provide Defendants with a copy of that appraisal absent
21
consent by Mr. Forsten's client. These efforts are illustrative of counsel's requisite
due diligence in attempting to discover relevant and admissible subject areas for the
cross-examination of Plaintiff’s appraiser. Thus, this expense is reimbursable, as
Defendants would not have sought a copy of that appraisal "but for" the
compensation trial in this case.
I find that the entries for McVey, Landon, and Forsten to be appropriate and
reasonable.
Third, Plaintiff argues that time spent by one firm reviewing the other’s work,
internal conferences between firms, or duplicative and overlapping tasks between the
firms should be reduced or disallowed. Defendants’ decision to change counsel midlitigation was their own, and the resulting duplication should not be subsidized by
Plaintiff.
Defendants respond that, although Plaintiff argues that time spent on
conferences between Defendants' counsel at both law firms should be stricken, it
states no reason why and offers no supporting law. Multiple attorneys on both sides
of the case entered their appearances in this complex trial. Seeking compensation
for each attorney who devoted time to attending, preparing for, and participating in
conferences is reasonable. Defendants were represented by and paid for only one
attorney at every deposition. P l a i n t i f f , however, had multiple attorneys present
for multiple depositions.
22
I find that the retention of two law firms did not result in unreasonable costs.
Fourth, Plaintiff complains that Defendants lump multiple tasks into a single
time entry and contain general descriptions such as “review documents” or “case
strategy,” which does not allow me to properly assess the reasonableness thereof.
Defendants respond that such "block billing" was recently approved by this
Court.30 I find that the expenses incurred by Defendants for the work performed
because of the compensation trial do not require invoiced details of the granularity
that Plaintiff suggests.
Fifth, Plaintiff asks that all fees for Mr. Willard be excluded, since he played
no substantive role after BMF was retained and was a wholly passive spectator at
trial.
Defendants have agreed to subtract FWS’s fees predating the July 12, 2024,
filing of the Complaint, or $3,570.00. I concur with this reduction.
Sixth, the Application includes the costs of travel (mileage), gasoline, and
meals. Plaintiff argues that, in Melpar, this Court specifically held that “[c]ounsel’s
travel costs (i.e., tolls and gas) and in-house costs for photocopying and postage are
not reasonable litigation expenses.”31 Defendants do not directly respond to this argument.
30
DelDOT v. P1TB, LLC, 2024 WL 489062 (Super. Ct. Feb. 6, 2024). In that case, the defendants were awarded a reimbursement of litigation expenses totaling $959,749.77, $730,193.77 of which was apportioned to reimburse defendants for some of the types of costs Plaintiff which complains of here, including expert appraiser fees, expert engineering fees, and courtroom technology fees. 31
Melpar, 2022 WL 17985491, at *5 n.15.
23
I follow Melpar and disallow Defendants’ counsel’s travel (mileage), gasoline, and
meals. Defendants’ counsel shall review their invoices and deduct all such amounts.
Defendants’ Appraisal Expert ($26,360.00)
Defendants’ appraisal expert charged a total of $26,360.00, billing $350 per
hour for 46.75 hours and a flat fee of $5,000 for each of the two appraisal reports he
issued. Delaware law limits expert witness fees in condemnation cases to “time
necessarily spent in attendance upon the Court for the purpose of testifying”—
including travel to and from court, waiting to testify, and time on the stand.32 Expert
fees do not include “time spent in listening to other witnesses for orientation, or in
consulting and advising with a party or counsel or other witnesses during the trial.”33
The 1994 amendments to the statute broadened recovery to include “reasonable . . .
appraisal . . . fees actually incurred because of the compensation trial.”
Plaintiff states that several of the appraiser’s time entries do not match the time
he spent on the task described. On January 20, 2026, he charged 9.5 hours for his
deposition, but his deposition did not last 9.5 hours. He also charged 5.25 hours for
a Daubert hearing that did not last 5.25 hours. Similarly, he charged for 10 and 8.75
hours of trial on June 1 and 2, 2026, respectively, but the trial time for the day did not
exceed 8 hours.
32
9.88 Acres of Land v. State ex rel. State Highway Dep’t, 274 A.2d 139, 140–41 (Del. 1971); State ex rel. State Highway Dep’t v. Lots Nos. 133, 134 & 135, 238 A.2d 837, 838–39 (Del. 1968). 33
State ex rel. Price v. 0.0673 Acres of Land, 224 A.2d 598, 602 (Del. 1966).
24
Defendants deny that their appraiser ever billed for time spent listening to
other witnesses for orientation, or in consulting and advising with a party or counsel
or other witnesses during trial. His time entries for his deposition and trial
appearances are longer than his actual time in deposition or in court on those days due
to travel. Plaintiff acknowledges in its Opposition that Delaware law allows expert
witnesses in condemnation cases to bill time for travel to and from court, waiting to
testify, and time on the stand.34 In any event, such fees are reasonable and were
actually paid by Defendants.
I will allow all of Defendants’ expert appraiser’s fees.
Defendants’ Engineering Expert ($41,054.78)
Defendants’ expert engineer charged $41,054.78, which includes two distinct
components: (i) expenses relating to conceptual renderings and video in the amount
of $25,000.00; and (ii) expenses relating to expert witness testimony and additional
services in the amount of $16,054.78.
The conceptual renderings and video were used as demonstrative aids for the
testimony of Defendants’ expert appraiser. The statute authorizes recovery of
“reasonable attorney, appraisal, engineering or other expert witness fees.” 35
However, Plaintiff argues that these conceptual renderings and videos are litigation
34
See fn 31.
35
10 Del. C. § 6111(2).
25
presentation tools, not engineering fees, and are analogous to trial exhibits, visual
aids, or presentation graphics, which are routinely prepared at a party’s own
expense.36
The engineer billed $525 per hour for 25.75 hours of expert witness testimony
time, totaling $13,518.75. Additionally, a designer billed $125 per hour for 14.75
hours, and an architect billed $350 per hour for 1.5 hours, adding $2,368.75 in
“additional services.”
Defendants state that they gave notice of the engineer as a potential rebuttal
witness four months before trial. Nonetheless, Defendants used the engineer’s work
as only demonstrative exhibits to aid their appraiser's testimony. The demonstrative
exhibits employed at trial required the expertise of engineers and architects to
prepare; therefore, they are not mere litigation tools.
Plaintiff objected to these demonstrative exhibits, resulting in motion practice,
and its motion was denied. Plaintiff claims that the engineer necessitated the creation
of a rebuttal witness, which inflated costs, but Plaintiff called the engineer as its own
witness and never called a rebuttal witness of their own.
I will allow all of Defendants’ expert engineer’s fees.
36
See Sweren v. Sheehy, 2001 WL 1783076, at *1 (Del. Super. Dec. 12, 2001) (“the costs of presenting trial exhibits at trial is traditionally borne by the party presenting the evidence”) (citing Sliwinski v. Duncan, 608 A.2d 730 (Del. 1992)).
26
Courtroom Technology Fees ($10,169.24)
A vendor charged $10,169.24 for courtroom technology fees. The statute
authorizes recovery of reasonable attorney, appraisal, engineering or other expert
witness fees. Plaintiff argues that a courtroom technology vendor does not fall within
any of these categories. Moreover, the services which the vendor provided, such as
courtroom technology setup and testing, creation and editing of PowerPoint
presentations, foam board mounting, and travel time and gasoline, are litigation
support services, not expert witness fees.
Specifically, Plaintiff objects to the following charges by this vendor:
a. $800.00 for foam board mounting and delivery,
which is a trial supply cost;
b. $187.99 for gas, which is a travel cost;
c. Overtime premium charges of $250.00 per hour
(versus the standard rate of $225.00 per hour),
which reflect Defendants’ own scheduling
choices; and,
d. Preparation time, i.e., any time other than time
spent in trial.
Defendants state only that Plaintiff employed and paid for an identical
technology individual, and that technology expenses were reimbursed in the P1TB
case.
This Court has consistently recognized that the cost of trial technology is a
proper and recoverable court cost, provided the services were rendered during trial
27
and significantly aided in the presentation of evidence. Reasonable trial technology
fees are recoverable where the technology support staff significantly aided in the
presentation of evidence at trial and the factfinder's navigation and understanding
thereof.37 A critical restriction is that the technology support services must have
been provided during trial. 38 The court has affirmed that technology support
expenses are reasonable and expected costs of litigation, and it encourages the use
of technology and support personnel in the presentation and viewing of exhibits at
trial.39
Delaware courts have applied this framework consistently across multiple
decisions. This Court awarded $14,761 for trial technology support, calculated at the
support person's hourly rate of $290.00 multiplied by the 50.9 in-trial hours
confirmed by trial transcripts, while disallowing pre-trial preparation time and time
billed on a Sunday and a court holiday.40 The court awarded $14,801 as technical
support staff costs because the trial technology support person was critical to the trial
presentation and the viewing of the numerous exhibits introduced in the case. 41
37
(River Valley Ingredients, LLC, et al. v. American Proteins, et al., 2026 WL 1182418 (Del. Super. Apr. 30, 2026) (granting a request for $16,441.60 in trial technology support costs provided by Fulcrum Legal Graphics, finding those services met the applicable standard.) 38
In re Bracket Holding Corp. Litigation, 2020 WL 764148 (Del. Super. Feb. 7, 2020). (reducing the requested technology fees because the billing records reflected significantly more time than the support staff could have spent in trial, including weekend days when trial was not in session.) 39
Id.
40
NewWave Telecom & Technologies, Inc. v. Jiang, 2024 WL 4564150 (Del. Super. Oct. 24, 2024).
41
TranSched Systems Ltd. v. Versyss Transit Solutions, LLC, 2012 WL 1415466 (Del. Super. March 29, 2012).
28
Similarly, the court awarded $16,258.45 as computer exhibit operator fees because
the operator helped to keep the multitude of documents organized and readily
available for witnesses.42
Not all technology-related services qualify. For example, the court declined
to award the cost of trial consulting services, finding that such costs were not
necessarily incurred to assert the party's rights and that reimbursement for such
services was not authorized by statute. 43 This distinction underscores that the
recoverable cost is specifically tied to in-court technology support for exhibit
presentation, not broader litigation consulting.
I find that the four technology expenses listed by Plaintiff are not permissible
under Delaware law and I disallow them.
CONCLUSION
For the foregoing reasons, Defendants’ Corrected Application for Reimbursement
of Litigation Expenses is GRANTED IN PART and DENIED IN PART.
Defendants shall recalculate the amounts requested in their Application for
Reimbursement of Litigation Expenses as provided in this opinion and submit the
revised Application to Plaintiff and the Court for further review.
42
Salt Meadows Homeowners Association, Inc. v. Zonko Builders, Inc., 2023 WL 1370997 (Del. Super. Jan. 31, 2023).
43
Payne v. Home Depot, 2009 WL 659073 (Del. Super. March 12, 2009).
29
IT IS SO ORDERED.
/s/Craig A. Karsnitz
Craig A. Karsnitz
cc: Prothonotary
30