IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LINDEN GREEN CONDOMINIUM )

ASSOCIATION, )

)

 Plaintiff-Counterclaim Defendant, )

 ) C.A. No. N17L-11-116 FWW

)

v. ) 

) 

STEPHANIE M. LARKIN, )

)

 Defendant-Counterclaim Plaintiff. ) 

 )

Submitted: October 5, 2021

Decided: January 27, 2022

DECISION AFTER TRIAL

Frances Gauthier, Esquire, LEGAL SERVICES CORPORATION OF 

DELAWARE, INC., 100 West 10th St., Suite 203, Wilmington, DE, 19801, Attorney 

for Counterclaim Plaintiff Stephanie M. Larkin. 

Paul E. Bilodeau, Esquire, LOSCO & MARCONI, P.A., 1813 N. Franklin St., P.O.

Box 1677, Wilmington, DE, 19899, Attorney for Counterclaim Defendant Linden 

Green Condominium Association.

WHARTON, J.
2

I. INTRODUCTION

This decision, following a two-day bench trial held on July 12th and July 13th,

2021, resolves Defendant/Counterclaim Plaintiff Stephanie Larkin’s (“Larkin”)

counterclaim against Plaintiff/Counterclaim Defendant Linden Green Condominium 

Association (“Linden Green”). Linden Green’s original complaint was resolved 

when the Court granted its motion for summary judgment. This decision also 

resolves Linden Green’s request for attorney’s fee, costs, and pre-judgment interest

on its complaint and Larkin’s request for attorney’s fees and costs on her 

counterclaim. During a bench trial, the Court sits as the trier of fact and considers 

Larkin’s claims on their merits. The Court considers the testimony, exhibits, 

demeanor of the witnesses, and post-trial submissions of the parties, together with 

the applicable law. The Court’s factual findings and legal conclusions are set forth 

in the opinion below. In summary, the Court finds: (1) for Larkin and against Linden 

Green in the amount of $18,840.63 on her counterclaim; and (2) Linden Green is 

entitled attorney’s fees, costs, and pre-judgment interest on its complaint, but only 

as to its complaint. Larkin is not entitled to attorney’s fees but is entitled to costs on 

her counterclaim, but only on her counterclaim. 

II. FACTS AND PROCEDURAL CONTEXT

This action originated when Linden Green filed a complaint against Larkin 

alleging failure to pay liens and assessments against her and her townhouse unit. In 
3

response, Larkin filed an answer and counterclaimed against Linden Green. After 

Linden Green filed its answer to the counterclaim, Linden Green then moved for 

summary judgment on its complaint,1 on the counterclaim,2and in limine to preclude 

Larkin from offering expert testimony in support of her counterclaim.3 The Court 

granted Linden Green’s motion for summary judgment on its claim4and the motion 

in limine,5 but denied its motion for summary judgment on the counterclaim.6 In 

addition to granting Linden Green summary judgment on its complaint for past due 

monthly assessments of $12,504.75 and late fees of $1,270.00, the Court also 

granted Linden Green “leave to submit any claim for attorney fees, costs and 

applicable finance charges at the conclusion of this litigation.”7 In May 2021, Larkin 

paid the past due assessments and late fees in full.8 Partial satisfaction of the 

judgment was entered by the Prothonotary on June 22, 20219 pursuant to a power of 

attorney from Linden Green in which it reserved “the right to pursue further 

[judgments] against Ms. Larkin ...for Court costs, pre and post judgment 

1 Linden Green’s Mot. Summ. J. on Claim, D.I. 52 

2 Linden Green’s Mot. Summ. J. on Countercl., D.I. 54.

3 Linden Green’s Mot. in Limine, D.I. 53.

4 D.I. 64.

5 D.I. 66.

6 Linden Green Condo. Assoc. v. Larkin, 2020 WL 5890585 (Del. Super. Ct. Oct. 

5, 2020), rearg. den. 2020 WL 7181370 (Del. Super. Ct. Dec. 4, 2020).

7 D.I. 66.

8 D.I. 95. 

9 D.I. 99.
4

finance/interest charges, monthly assessments and late charges owing after July 

2021, and such other amounts as may be lawfully owing by Ms. Larkin.”10 Linden 

Green now seeks those attorney’s fees, costs, and finance charges on its successful 

complaint.

Larkin’s counterclaim arises from an alleged failure by Linden Green to 

comply with its obligations under the Linden Green Enabling Declaration and the 

Linden Green Code of Regulations.11 Specifically, Larkin alleges that Linden Green 

has failed to maintain the common elements of the association, resulting in a 

defective exterior and foundation, which, in turn, has caused rain to pool and 

accumulate near Larkin’s unit.12 This accumulation of moisture allegedly has caused 

mold to grow on the interior surface of the foundation, which has damaged the 

drywall, baseboards, and hardwood floors of Larkin’s townhouse unit.13 Larkin 

seeks damages to effect repairs necessary to return Larkin’s unit to a safe and 

sanitary condition, as well as damages to her HVAC system and personal property.

14

 

For the first time, Larkin seeks costs and attorney’s fees, despite not requesting them 

in her counterclaim. 

10 D.I. 95.

11 Larkin’s Answer and Countercl., D.I. 26.

12 Id. at 9-10.

13 Id.

14 Id.
5

At trial Larkin testified herself and presented three other witnesses – Alyanna 

Burton, Chris DiMarco and Bobby Friant – and 40 exhibits. Aylanna Burton is 

Larkin’s daughter. Chris DiMarco is the co-owner of the property management 

company that manages Linden Green. Bobby Friant is an employee of ServPro who 

was engaged to provide remediation and repair estimates. Linden Green’s witnesses 

were Chris DiMarco and John Meredith. John Meredith is an HVAC technician who 

worked on Larkin’s system. Linden Green presented two exhibits. 

At the conclusion of trial, the Court solicited post-trial submissions from the 

parties. Among other things the trial testimony presented six specific issues the 

Court asked the parties to address.

15

 They are: 

1) Whether expert evidence is necessary to prove Linden Green is liable for 

damage to Larkin’s home or whether other evidence can be relied on to 

prove causation?

2) A specific itemization of damages for each claimed item.

3) Who is responsible for the cost of the HVAC system?

4) Whether punitive damages should be awarded. 

5) Any additional issues either party would like the Court to consider.

6) Should Linden Green should receive attorney’s fees?

16

15 D.I. 113, Trial Tr. 252.

16 Id., at 252-254.
6

III. THE PARTIES’ CONTENTIONS

In response to the questions proposed by the Court, Larkin asserts: (1) expert 

testimony is not necessary to prove causation and pictures of the townhouse unit are 

sufficient; (2) Linden Green should be liable for $97,449.39 in damages for its 

negligence and breach of fiduciary duties; (3) Linden Green should be held liable 

for the replacement cost of Larkin’s HVAC system; (4) the Court should impose 

punitive damages against Linden Green at three times the regular damages; (5) 

Linden Green failed to comply with a reserve study, and acted in retaliation when it 

prevented Larkin from using the Linden Green pool; and (6) the Court should award

attorney’s fees to Larkin rather than Linden Green.17

Linden Green claims in its Answer: (1) Larkin did not meet her burden of 

proving causation because an expert is required; (2) remediation would amount to 

only $3,376.53 because Larkin failed to mitigate her damages; (3) Larkin is not 

entitled to damages for her HVAC unit, rugs, or couch set; (4) Larkin is not entitled 

to punitive damages; (5) the additional claims raised by Larkin are barred; and (6) 

only Linden Green is entitled to attorney’s fees and costs.18

17 Larkin’s Op. Mem., at 2-3, D.I. 88.

18 Linden Green’s Ans. Mem., at 20-21, D.I. 106.
7

IV. STANDARD OF REVIEW

In a bench trial, “the Court is the factfinder, and the plaintiff must prove each 

claim by a preponderance of the evidence. A preponderance of the evidence exists 

upon ‘the side on which the greater weight of the evidence is found.’”19 “Because 

the Court is the finder of fact, it is up to the Court to weigh the credibility of 

witnesses and resolve conflicts in witness testimony.”20

V. DISCUSSION

A. Expert Evidence is not Necessary to Prove Linden Green is Liable for 

Damages to Larkin’s Home.

The first question the Court addresses is whether expert evidence is necessary 

to prove Linden Green is liable for damages to Larkin’s home, or whether other 

evidence can be relied on to prove causation.21 The Court concludes that expert 

evidence is not necessary to prove causation because the photographs submitted into

evidence are sufficient proof. The Delaware Supreme Court has held, while expert 

testimony is required when a claim requires the proof of facts that are not common 

knowledge of laymen, “[t]here may be cases where the source of mold is arguably 

within the common knowledge of laymen. For example, where black mold is 

19 Patel v. Patel, 2009 WL 427977, at *3 (Del. Super. Feb. 20, 2009)(quoting 

Reynolds v. Reynolds, 237 A.2d 708, 711 (Del. 1967)). 

20 Masterson-Carr v. Anesthesia Svcs., P.A., 2015 WL 5168557, at *3 (Del. Super. 

Aug. 28, 2015).

21 D.I. 113, Trial Tr. 252:11-20.
8

growing on the ceiling of an apartment at a place where water is leaking[.]”22 Larkin 

submitted multiple photographs into evidence depicting the mold in her unit as well 

as the wet foundation.23 The source of the mold is clearly visible to the naked eye 

and within the common knowledge of laymen. Therefore, expert evidence is not 

required.

B. Linden Green is Responsible for Certain Damages.

Having concluded that expert testimony is not necessary to determine the 

source of the mold in Larkin’s unit, the next logical conclusion is that exterior leaks 

were the cause. Again, this conclusion is plainly obvious from the extensive 

photographic evidence.24 Accordingly, Linden Green is responsible for certain 

damages caused by the water and mold. 

C. Larkin is Entitled to Repair and Remediation Costs and Lodging 

Expenses.

The Court requested a “specific itemization of damages.”25 The Court finds 

Larkin is entitled to $18,840.63 for repair and remediation costs for her damaged 

unit as well as lodging expenses. It is the plaintiff’s responsibility to prove damages 

by a preponderance of the evidence. Damages must be proven by a “fair degree” of 

22 Campbell v. DiSabatino, 947 A.2d 1116, 1118 (Del. 2008). 

23 See, e.g., Larkin Ex. 13.

24 Linden Green arguably acknowledged that the building’s foundation “has 

structural issues that have caused water/moisture to penetrate into Ms. Larkin’s 

unit.” Larkin Ex. 34.

25 D.I. 113, Trial Tr. 253:4-14.
9

precision26 and “[r]easonable estimates are permissible even if they lack 

mathematical certainty if the Court is given a reasonable basis to make a responsible 

estimate of damages.”27 Repair estimates are acceptable devices to measure 

damages. 

Larkin offered the testimony of Bobby Friant of ServPro to establish repair 

and remediation costs for her unit. Friant testified the total costs for repair and 

remediation amount to $15,340.63,

28 broken down as $3,575.65 for interior 

remediation, $8,995.82 for interior repairs, $293.06 for general repairs, and 

$2,294.10 for storage of equipment during repairs.29 The Court finds this testimony 

credible and accepts it. Therefore, this Court awards Larkin $15,340.63 for repair 

and remediation. 

Larkin claims she is entitled an increase of the $15,340.63 due to a rise in 

prices for supplies during the COVID-19 pandemic.

30 Linden Green argues that 

Larkin failed to mitigate her damages by refusing it entry31 However, Larkin failed 

establish what that increase might be, either through proof quantifying such an 

enhancement or reasonable estimates at trial. Thus, any enhancement the Court 

26 Laskowski v. Wallis, 205 A.2d 825 (Del.1964).

27 CIT Technology Financing Services v. Owen Printing Dover, Inc., 2008 WL 

2586683 (Del. Super. April 30, 2008).

28 D.I. 113, Trial Tr. 100:1.

29 Larkin Ex. 40.

30 Larkin’s Op. Mem., at 12, D.I. 88. 

31 Linden’s Green Mem., at 12-15., D.I. 106. 
10

might award necessarily would be speculative. Accordingly, the Court finds she is 

not entitled to any enhancement of the repair and remediation costs. Linden Green’s 

failure to mitigate argument has some superficial appeal, but in the Court’s view, 

both parties share some of the blame for the repairs not being done sooner. The 

Court does not grant the reduction Linden Green seeks. 

Larkin is entitled to $3,500 for lodging expenses for the time work is to be 

done in her unit. During trial, Larkin testified hotel lodging could be had for $100 a 

night while the repairs to her unit were taking place.32 Bobby Friant testified that 

repairs would take approximately four to six weeks.33 Based on that testimony, and 

taking the middle of the estimated time, Larkin is entitled to five weeks of lodging 

at a rate of $100 a night, amounting to $3,500. 

D. Larkin is Not Entitled to Diminished Value Costs, Damage to Personal 

Property Costs, Towing Charges, or Post Judgement Interest.

Larkin, for the first time, on the eve of trial advised Linden Green that she 

intended to seek damages for the “diminished use” of her townhouse.34 The Court 

refused to allow that untimely claim.35 The Court sustained Linden Green’s 

objection regarding damages for “diminished value” of Larkin’s property because 

those damages were not asserted in her counterclaim’s prayer for relief, nor were 

32 D.I. 113, Trial Tr. 39:18.

33 D.I. 113, Trial Tr. 103:1.

34 Linden Green’s Ans. Mem., at 5, D.I. 106.

35 Id. 
11

they asserted in pre-trial any submissions.36 Larkin had ample time to amend her 

counterclaim to include these damages but did not.37 Nonetheless, despite being 

barred at trial from introducing any evidence concerning those “diminished use” 

claims, Larkin inexplicably seeks them in her post-trial memorandum. The 

prejudice to Linden Green was manifest at trial and remains manifest post-trial. The 

Court will not entertain claims for “diminished value.”

Larkin is not entitled to the cost of her area rugs, or the cost of her 5-piece 

sectional couch set that were allegedly ruined due to water damage. During trial, 

Larkin presented evidence in the form of photographs depicting damage to two area

rugs in her unit as well as a 5-piece sectional couch set.38 In Bennett, this Court held 

that the plaintiff was not entitled to damages for personal property because no 

evidence was offered to reflect the depreciated value of those items.39 Here, no 

testimony or evidence was introduced by Larkin showing any depreciated value in 

the area rugs purchased in 2014 or the 5-piece couch set purchased in 2013. 

Accordingly, no damages are awarded. 

36 See Pre-Trial Stipulation and Order, D.I. 97.

37 Such claims likely would involve expert testimony. Larkin made no expert 

disclosures and Linden Green had no opportunity to retain an expert. 

38 Larkin Exs. 38, 39.

39 Bennett, Debra & William v. Plantations E. Condo. Assoc., Inc., No. CIV.A. 

S12C-04-002ES, 2013 WL 493329, at *2 (Del. Super. Ct. Jan. 16, 2013). 
12

Larkin claims damages for an illegal towing charge. She asserts that Linden 

Green towed her vehicle in retaliation for her withholding the unpaid assessments to 

Linden Green following a default judgment Linden Green’s favor.

40 Larkin provided 

insufficient evidence to prove by a preponderance of the evidence that the temporary 

tags on her vehicle were not expired at the time of towing. While Larkin produced 

some evidence, namely the picture of a replacement tag, she did not provide any 

testimony or evidence that this replacement tag was on the vehicle at the time of 

towing.41 Furthermore, the license plate number on the temporary tag in the picture 

in evidence is different from the one listed on the tow receipt.42 Larkin did not 

provide any evidence that Linden Green requested the towing of her vehicle, or any 

evidence that Linden Green contacted the police after the towing. There is no reason 

the believe that Larkin’s vehicle was towed for any reason other than it was 

perceived to be illegally parked with an expired registration. Therefore, damages 

are not awarded for any claim regarding the towing of Larkin’s vehicle. 

Larkin requests post-judgment interest on any damages awarded in under 6 

Del. C. § 2301(a) and (d). Section 2301(d) states:

In any tort action for compensatory damages in the Superior Court ... 

seeking monetary relief for ... property damage, interest shall be added 

to any final judgment entered for damages awarded, calculated at the 

rate established in subsection (a) of this section, commencing from the 

40 Larkin’s Op. Mem., at 14, D.I. 88.

41 Larkin Ex. 28. 

42 Id.
13

date of injury, provided that prior to trial the plaintiff had extended to 

defendant a written settlement demand valid for a minimum of 30 days 

in an amount less than the amount of damages upon which the judgment 

was entered.43

No evidence was provided to the Court that prior to trial Larkin extended the written 

settlement demand required by § 2301(d). Therefore, this Larkin is not entitled to 

any post-judgment interest. 

Based on the evidence provided at trial, Larkin is entitled to a total of 

$18,840.63, which consists of $15,340.63 for repair and remediation costs and 

$3,500 for lodging costs.

E. Larkin is Not Entitled to Partial Damages for Her HVAC System.

The Court requested that the both parties present arguments on the 

responsibility for any claimed damage to Larkin’s HVAC unit as well as the value 

of any damage to the unit.44 Larkin claims to be entitled to $7,490 for the 

replacement of her HVAC system because Linden Green’s agents were the cause of 

the HVAC system’s failure.45 Linden Green asserts insufficient evidence was 

produced to demonstrate the HVAC unit was not functioning after being reconnected 

by John Meredith, the First State Contractor approved by Linden Green.46 The Court 

agrees and accepts Meredith’s testimony that the unit was working after his visit. 

43 6 Del. C. § 2301(d). 

44 D.I. 113, Trial Tr. 253:15-21.

45 Larkin’s Op. Mem., at 16, D.I. 88.

46 Linden Green’s Ans. Mem., at 9, D.I. 106. 
14

Moreover, the unit was well past its life expectancy and there is ample reason to 

believe it ceased functioning for that reason. In any event, even if Linden Green was

responsible for its failure, it is Larkin’s responsibility to prove damages by a 

preponderance of the evidence.47 No evidence was presented establishing the

depreciated value of the HVAC unit as required in Bennett.

48

 Because of the 

insufficiency of evidence as to the cause of the system’s failure and the absence of 

evidence as to the depreciated value of the HVAC unit, the Court does not award

damages to Larkin for the HVAC unit. 

F. Larkin is Not Entitled to Punitive Damages.

Larkin is not entitled to punitive damages because Linden Green’s conduct 

was not willful or malicious. Larkin claims she is entitled to treble punitive damages 

because of Linden Green’s breach of its fiduciary duty of loyalty and its gross 

negligence and reckless indifference to addressing the water issues.49 The high 

standard for imposing punitive damages in contract cases requires that the breach be 

willful or malicious.50

47 Meyer & Meyer, Inc. v. Brooks, 2009 WL 2778426, at *3 (Del. Com. Pl. May 

19, 2009).

48 Bennett, Debra & William v. Plantations E. Condo. Assoc., Inc., 2013 WL 

493329, at *2 (Del. Super. Ct. Jan. 16, 2013).

49 Larkin’s Op. Mem., at 18, D.I. 88.

50 Casson v. Nationwide Ins. Co., 455 A.2d 361, 368 (Del. Super. Ct. 1982). 
15

Whatever fiduciary duty of loyalty Linden Green may have had to Larkin, she 

failed to prove it was breached because she did not allege that any Council member 

used his position for personal gain. Pursuant to 25 Del. C. § 81-111, punitive 

damages must be specifically provided for in that chapter or by other rule of law.

51

 

Elected Council members are subject to the same degree of care and loyalty required 

by a director of a Delaware non-profit corporation.52 Linden Green is comprised of 

elected Council members, and each member has the same duty of care and loyalty 

that a director of a non-profit would have. The duty of loyalty requires that Council 

members refrain from using their positions for personal gain.53 Here, no such 

allegations were made nor was any evidence produced showing this type of breach.

Therefore, a claim for punitive damages based on a violation of the duty of loyalty 

is unfounded.

Larkin alleges gross negligence or reckless misconduct by Linden Green due 

to its failure to repair her townhouse unit promptly after she reported water damage. 

She also alleges that Linden Green retaliated against her for her failure to pay her 

assessments. A willful or malicious breach of contract must be present for punitive 

damages to be appropriate.54 Here, Linden Green did not willfully or maliciously 

51 25 Del. C. § 81-114.

52 25 Del. C. § 81-303(a).

53 In re Woods v. Shara Enterprises, Inc., 238 A.3d 879, 895 (Del. Ch. 2020).

54 Casson, at 368.
16

breach the contract it had with Larkin. Larkin alleges that Linden Green did not take 

comprehensive action to repair the building when water damage became known.

However, the evidence shows attempts by Linden Green to make repairs to the 

building. Furthermore, Larkin denied access on multiple occasions when those 

repairs were attempted to be made.55 The court finds Linden Green’s conduct was 

neither willful, nor malicious.

Larkin argues the suspension of her parking privileges for non-payment of 

assessments was a willful and malicious breach of a privilege due to her.56 Pursuant 

to §81-302(a)(11), Linden Green properly chose to suspend Larkin’s parking 

privileges for non-payment of assessments.

57

 At the time Larkin’s spot was

removed, she was six months delinquent on her assessments.

58

 Larkin’s additional 

claim that a hearing date was not provided by Linden Green does not prove a willful 

or malicious breach of contract required for punitive damages. She is not entitled to 

any punitive damages, much less treble punitive damages.

G. Additional Allegations are Barred.

The Court did not intend to limit the parties in their post-trial memoranda to 

arguing only the issues it asked them to address. So, it invited them to discuss any 

55 D.I. 113, Trial Tr. 72:14-17; 120:1-7; 123:19-20. 

56 Larkin’s Op. Mem., at 23, D.I. 88.

57 See, D.I. 113, Trial Tr. 146-48.

58 D.I. 113, Trial Tr. 171-72.
17

other issues raised at trial appropriate for post-trial submissions. It was not an open 

invitation to relitigate matters already decided.59 Nevertheless, Larkin asserts claims 

regarding a reserve study by Linden Green, denial of pool access to her, and Council 

members owning multiple units in the building.60 The Court sustained an objection 

at trial to an attempt to introduce evidence regarding a reserve study.61 Claims 

involving a denial of access to the pool and council members owning multiple units 

were excluded during the pre-trial conference.

62

 All three of these claims were 

previously ruled on by the Court and will not be considered now.

H. Attorney’s Fees, Costs, and Interest.

Finally, the Court addresses each side’s request for attorney’s fees and costs

and Linden Green’s request for pre-judgment interest.63 Linden Green seeks costs 

and attorney’s fees of $116,554.06,64 while Larkin asks for $113,955.31.65 Together 

attorneys’ fees and costs exceed $230,000.66 The criteria for awarding fees are well 

59 D.I. 113, Trial Tr. 254:13-15.

60 Larkin’s Op. Mem., at 24-28, D.I. 88.

61 Linden Green’s Ans. Mem., Tab 1 at 189, D.I. 106; see also, D.I. 113, Trial Tr. 

78-79.

62 Pre-Trial Stipulation and Order at 20, 22-23, D.I. 97.

63 D.I. 113, Trial Tr. 254:16-18.

64 Linden Green’s Ans. Mem., Ex. 4, at 8, D.I. 106.

65 Larkin’s Op. Mem., at 36, D.I. 88. 

66 No doubt much could be said about this figure and the costs of litigation generally, 

but not here.
18

established.67 Delaware follows the “American Rule” by which “prevailing litigants 

are responsible for the payment of their own attorney’s fees.”68 A court may not 

order the payment of attorney’s fees ‘“unless the payment of such fees is authorized 

by some provision of statute or contract.”’69

Linden Green is entitled to attorney’s fees on its complaint pursuant to Linden 

Green’s Code of Regulations and 25 Del. C. § 81-316(g), but Larkin is not on her 

counterclaim. The Linden Green’s Enabling Declaration states all occupants are 

subject to and shall comply with the Code of Regulations.70 The Code of 

Regulations entitles Linden Green to “reasonable attorneys” fees, incurred in the 

collection of the delinquent assessment by legal proceedings or otherwise[.]”71 

According to 25 Del. C. § 81-316(a), Linden Green is entitled to its court costs and 

reasonable attorney’s fees on any judgment. Furthermore, § 81-316(g) states any 

judgment originating under this section “must include costs and reasonable 

attorney’s fees for the prevailing party.” On March 11, 2020 this Court entered 

67 Brice v. State, Dept. of Correction, 704 A.2d 1176, 1178 (Del. 1998) (citing 

Goodrich v. E.F. Hutton Group, Inc., 681 A.2d 1039, 1043-44 (Del. 1996).

68 Id.

69 Mullen v. Ascetta, 2021 WL 5710899, at *2 (Del. Supr. Ct. Dec. 2, 2021) 

(quoting Driesbach v. Walton, 2014 WL 5426868, at *5 (Del. Super. Ct. Oct. 27, 

2014) (citing Casson v. Nationwide Insurance Co. 455 A.2d 361, 370 (Del. Supr. 

Ct. Sept. 20, 1982)). 

70 Larkin Ex. 3, at 10.

71 Larkin Ex. 4, at 18.
19

judgment in favor of Linden Green on its foreclosure action brought under 25 Del. 

C. § 81-316. Therefore, Linden Green is entitled to costs attorney’s fees. In its posttrial memorandum Linden Green has submitted an itemized request for attorney’s 

fees and costs in the amount of $116,554.06. That amount represents attorney’s fees 

and costs for the entire litigation, including Larkin’s counterclaim. The Court does 

not award attorney’s fees and costs for that portion or the litigation since Linden 

Green did not prevail, nor does it find such costs and fees compelled by statute or 

regulation. Linden Green is entitled only to attorney’s fees and costs related to its 

original complaint.

Linden Green also seeks pre-judgment interest at the rate of 18% on Larkin’s

delinquent balances from July 15, 2016 until Linden Green’s Council repealed the 

interest charge on March 1, 2018. Title 25 Del. C. § 81-316(g) states, “[u]nless the 

declaration provides for a different rate of interest, interest on unpaid assessments 

shall accrue at the rate of the lesser of 18% per annum or the highest rate permitted 

by law.”72 Pursuant to its declaration and regulations, in May 2009, Linden Green 

increased the interest rate to 18%.73 Thus, Linden Green is entitled to pre-judgment 

interest at 18% on Ms. Larkin’s delinquent balances from July 15, 2016, until Linden 

Green’s Council repealed the interest charge on March 1, 2018.

72 25 Del. Code § 81-316(a).

73 Linden Green’s Ans. Mem, at 26, D.I. 106.
20

Larkin requests attorney’s fees and costs of $113,955.31.74 Her counterclaim 

made no specific request for either.75 Nonetheless, she relies on 25 Del. C. § 81-417 

in support of her request. That section provides:

If a declarant or any other person subject to this chapter 

fails to comply with any of its provisions or any provision 

of the declaration or bylaws, any person or class of persons 

adversely affected by the failure to comply has a claim for 

appropriate relief. The court, in an appropriate case may 

award court costs and reasonable attorney’s fees.

Larkin argues that she is someone adversely affected by Linden Green’s failure to 

comply with its bylaws and declarations. However, she makes no compelling 

substantive argument why the Court should depart from the “American Rule” 

followed in Delaware and the Court declines to do so. 

Costs are assessed differently than attorney’s fees. The general rule is that 

“Ordinary court costs are usually allowed to a prevailing party[.]”76 This rule 

reflects 10 Del. C. § 5101 – “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.” The 

determination of whether to award costs is a matter of judicial discretion.77 But, 

74 Larkin’s Op. Mem., at 36, D.I. 88. Larkin promises to supplement this amount 

at the conclusion of briefing. Id.

75 Larkin’s Ans. and Countercl., D.I. 26.

76 Casson, at 369.

77 Driesbach, at *4. 
21

“costs shall be allowed as of course to the prevailing party upon application to the 

Court within ten (10) days of the entry of final judgment unless the Court otherwise 

directs.”78 Both parties have requested costs for the entire case. Here, the case was 

bifurcated, with each party prevailing on the portion of the case in which it was the 

plaintiff. Because Linden Green prevailed on its complaint 25 Del. C. § 81-316(g) 

requires the Court to award it costs. But it did not prevail on Larkin’s counterclaim, 

and thus, it is not entitled to costs on the counterclaim. The Court exercises its 

discretion to award costs to Larkin on her counterclaim only since that is the part of 

the case on which she prevailed. 

VI. CONCLUSION

THEREFORE, the Court finds in favor of Larkin and against Linden Green 

in the amount of $18,840.63. Costs are awarded to her only as to her counterclaim. 

Attorney’s fees are not awarded. Larkin shall submit an appropriate application for 

costs on her counterclaim consistent with this Order no later than February 11, 2022. 

Linden Green shall submit any objections to Larkin’s application no later than 

February 25, 2022. 

The Court further finds that Linden Green is entitled to reasonable attorney’s 

fees and costs, but only as to its complaint. Linden Green shall submit a revised 

application for attorney’s fees and costs consistent with this Order no later than 

78 Super. Ct. Civ. R. 54(d).
22

February 11, 2022. Larkin shall submit any objections to Linden Green’s revised 

application no later than February 25, 2022.

The Court further finds that Linden Green is entitled to pre-judgment interest 

at the rate of 18% per annum on any delinquencies from July 15, 2016 to March 1, 

2018. Linden Green shall submit a calculation of that interest no later than February 

11, 2022. Larkin shall submit any objections to that calculation no later than 

February 25, 2022. 

The Court will issue a Final Order after it considers the parties’ submissions. 

IT IS SO ORDERED.

/s/ Ferris W. Wharton

Ferris W. Wharton, J.