IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

1205 COASTAL, LLC, a Delaware )

limited liability company, )

)

Plaintiff, )

)

) C.A. No. S22C-07-002 CAK

 v. )

)

)

COVE OWNERS ASSOCIATION, )

INC., a Delaware corporation, )

)

Defendant. )

Submitted: February 29, 2024 

Decided: March 8, 2024 

Upon Affidavits for Attorneys’ Fees

DENIED IN PART AND GRANTED IN PART

ORDER

Richard E. Berl, Jr., Esquire, Hudson Jones Jaywork & Fisher, LLC, 34382 

Carpenter’s Way, Suite 3, Lewes, DE 19958, Attorney for Plaintiff.

Robert J. Valihura, Esquire, Morton, Valihura & Zerbato, LLC, 3704 Kennett Pike, 

Suite 200, Greenville, DE 19807, Attorney for Defendant.

Aaron E. Moore, Esquire and M. Claire McCudden, Esquire, Marshall Dennehey, 

P.C., 1007 North Orange Street, Suite 600, P.O. Box 8888, Wilmington, DE 19899-

8888, Attorneys for Defendant.

KARSNITZ, R. J.
2

In my Opinion dated January 29, 2024, I discussed the request of each party to 

award it attorneys’ fees and costs against the other. Specifically, Defendant

requested such relief under two statutory provisions of the Delaware Uniform 

Common Interest Ownership Act (“DUCIOA”)1

The first is 25 Del. C. §81-417(a), which provides that if a “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 attorneys’ fees.” Defendant argued that the Court 

of Common Pleas had already ruled in its favor on the statutory lien in an amount 

well above the amount of the recorded lien, yet Plaintiff commenced this lawsuit in 

Superior Court solely on the basis of the recorded lien, in an attempt to avoid its 

obligations under the statutory lien, even though the decision of the Court of 

Common Pleas on attorneys’ fees was still pending. Defendant claimed that it is a 

person adversely affected by Plaintiff’s failure under DUCIOA to comply with its 

obligations under the Cove Declaration and that is was harmed by Plaintiff’s 

prosecution of this lawsuit.

The second is 25 Del. C. § 81-316(a), which provides that, in its efforts under 

1

25 Del. C. § 81-101 et seq.
3

DUCIOA to collect the amounts due to it under the statutory lien, Defendant is entitled 

to, inter alia, “court costs and reasonable attorneys' fees incurred in attempting 

collection of the same.” In defending this action, Defendant was compelled to further 

litigate – beyond the Court of Common Pleas -- the issue of whether it was entitled

to past due assessments and charges. The statute does not provide that only a

prevailing plaintiff can recover legal fees and costs. It provides for recovery by 

Defendant “as a result of an administrative or judicial decision.”2

In Delaware the general rule is that each party bears its attorneys’ fees and 

expenses of litigation unless there is a “contractual or statutory basis for liability.”3

A provision for personal liability for attorneys’ fees contained in the Cove 

Declaration or DUCIOA is an enforceable contractual obligation against a record 

owner of a condominium unit.4I may order payment of reasonable attorneys’ fees 

and costs so long as such payment is authorized by some provision of statute or 

contract.5 Both the Cove Declaration and DUCIOA entitle Defendant to reasonable 

attorneys’ fees and costs incurred in the obtaining and collection of this summary 

judgment.

2

25 Del. C. § 81-316(a).

3 Casson v. Nationwide Ins. Co., 455 A.2d 361, 370 (Del. Super. 1982).

4

Id.

5

Id.
4

After rendering judgment for Defendant, and after reviewing the facts and 

procedural history of the case, I awarded attorneys’ fees to Defendant. I asked 

counsel for Defendant to file for my review an Affidavit of Attorneys’ Fees within 

twenty-one (21) days of the Opinion and counsel for Plaintiff to file any response to 

the Affidavit of Attorneys’ Fees within fourteen (14) days thereafter. Both counsel 

have done so within the prescribed time period.

The Affidavits and related correspondence I received from counsel for the 

Defendant were disappointing and inadequate. The fees of Morton, & Zerbato, LLC 

were summarily stated in dollars and billable hours for lawyers and staff, without 

any breakdown of which lawyer or staff person provided the legal services, what the 

legal services were, when the legal services were provided, and at what applicable 

billing rate the legal services were provided.

Similarly, the fees of Marshall Dennehy, P.C. are stated as a lump sum with 

no breakdown of which lawyer or staff person provided the legal services, what the 

legal services were, when the legal services were provided, and at what applicable 

billing rate the legal services were provided. 

With this minimal information, it is impossible for me to ascertain whether 

the legal services and the fees therefor were reasonable and proportionate to the 

results obtained by Defendant. 
5

Therefore, I deny the award of attorneys’ fees to Defendant in this case with 

prejudice, and only award the amount of costs and expenses as set forth in the 

Affidavits.

It is therefore unnecessary for me to consider the arguments of counsel for 

Plaintiff that the attorneys’ fees for one of Defendant’s attorneys are duplicative and 

therefore constitute a windfall.

IT IS SO ORDERED.

/s/ Craig A. Karsnitz

cc: Prothonotary