IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DAVIS , BOWEN & FRIEDEL, INC., ) ) Plaintiff, ) ) C.A. No.: N14C

- 05

- 021 AML v. ) ) ) BERNARD DISABATINO , ) ) Defendant

. )

Submitted: September 7 , 2016 Decided: December 27 , 2016

MEMORANDUM OPINION

P atrick J. Scanlon , Esquire and Darlene Wyatt Blythe, Esquire, LAW OFFICE S OF PATRICK SCANLON, P.A. , Wilmington, Delaware; Attorney s for Davis, Bowen & Friedel, Inc

. Leo John Ramunno , Esquire , LEO JOHN RAMUNNO, ATTORNEY AT LAW , Wilmington, Delaware; Attorney for Bernard DiSabatino

.

LeGROW, J.1

This is a breach of contract case stemming from four separate contracts through which the defendant retained the plaintiff to assist in developing four
distinct pieces of real estate

. The p laintiff re quests judgment in its favor in the
amount of $1 80,484.86 , plus interest , attorneys’ fees, and court costs. 1 The key question in this case is one of timeliness: did the plaintiff’s claims accrue when the
de fendant stopped paying or were the plaintiff’s damages uncertain until the
contracts were termina ted? I conclude the plaintiff could ascertain its damages at the time the invoices were not paid, and I therefore award damages only for those invoices that became past due no more than three years before the complaint was
filed.
FACTUAL AND PROCEDURAL HISTORY These are the facts as I find them after trial, taking into account the credibility of the witne sses and the evidence presented by the parties. Defendant
Bernard DiS abatino , who is a real estate developer , retained the engineering and surveying services of Plaintiff Davis, Bowen & Friedel (“DBF”) relating to four real estate projects: the C hickberry Project, Jestice Farm Project, Northeast Project, and Elkton Project (collectively, the “Projects”)

. 2 Each project was ba sed on a

contract that enumerated the service s to be provided for that project and a proposed

1 Davis, Bowen & Friedel, Inc. v. DiSabatino , C.A. No. 14C

- 05

- 021, at 8 (Del. Super. Apr. 19, 2016) (TRANSCRIPT) (hereinafter “ Trial Tr. ”)

. 2 Id . at 7.2

or estimated fee associated with the particular service

. Each contract also stated : “Payment terms are in accordance with our attached Schedule of Rates No. 43. Should payments not be received in accordance with the above payment terms, [DBF] reserves the right to stop work on this project and reassign staff until such time as all outstanding monies are paid and staff can be reassigned to your project.” Attached to each contract wa s a “schedule of rates and general
conditions , ” setting forth various staff members’ hour ly rates and other payment

terms ( “Schedule 43”)

. Schedule 43 required “Payment terms: Net 30 days of
invoice date.” On May 2, 2014, DBF filed suit against DiSabatino based on each of these

contracts. This Court held a bench trial on April 19, 2016. T wo witnesses testified
at trial : William Zachary Crouch and Anthony Carrozza. Crouch , a registered professional engineer , is DBF’s vice president and owner

. 3 Carrozza worked with
DiSabatino as a consultant on the P rojects, attended every meeting , and handled all
email communications between DBF and DiSabatino. 4 Between 2011 and 2013, DiSabatino and Carrozza spoke to Crouch about all four P rojects multiple times a
week and met with him at least twice a month. 5 Carrozza testified that he kept

3 Trial Tr. 11 (Crouch)

. 4 Trial Tr. 71

- 72 (Carrozza)

. 5 Id . at 96: A: We communicated with Mr. Crouch in 2011, 2012, 2013. At least two,

three, four

- - Q: About Chickberry?3

i nfo rmal bill payment records and maintained a ledger list ing amounts paid and to
whom. DiSabatino did not, however, maintain a record of invoices that were
received or outstanding. 6
A. The Chickberry Project The Chickberry Project , which involved developing approximately 381 acres
of land in Sussex County, Delaware, wa s based on a proposal DBF created and
revised in 2006, and which the parties sign ed on January 12, 2007

. 7 The C ounty preliminar ily approved the project in January 2009, and extended that approval several times, but the project never was completed

. 8 Crouch , who was the project engineer for Chickberry, testified that DBF received a letter from the C ounty extending the project to January 14, 201 2. 9 He testified credibly that he ne ver was told to cease work on this project

. 10
DBF claims DiSabatino owes a total of $49, 234.78 on the Chickberry Project. 11 Nearly all the invoices underlying DBF’s damages claim for Chickberry

A: About all of them. Four projects. Three, four, five times a week. Met with him at least twice a month. 6 Id . at 93

- 96

. 7 Trial Ex s . 1 ( A ) at 1, 7 , 11

. 8 Trial Tr. 16 (Crouch)

. 9 Id . at 14, 17. There was some discrepancy during trial about when the extension expired

– January or June. See i d . at 17, 47, 109, 113

- 14, 117 ; Trial Tr. 85 (Carrozza). This discrepancy is not material to my decision. 10 Trial Tr. 32 (Crouch)

. 11 Id . at 17.4

relate to work completed , invoiced , and past due before May 2, 2011. 12 Only one invoice, dated March 6, 2013 , relates to work done after May 2, 2011. 13 Before
March 2013 , the last work DBF performed on the project was attend ing a meeting
in March 2011 with Tidewater and Artesian relating to water and sewer agreements. 14 A year b efore that, in March 2010 , DBF worked to obtain preliminary approval for the extensions until 2012. 15
Crouch tes tified that he regularly sent DiSabatino invoices, and DiSabatino did not object to the amount or services invoiced

. 16 T he invoice s were sent on or about the date on the invoice. 17 Carrozza acknowledged receiving the March 6,
2013 invoice, 18 which related to exten ding t he previously completed wetlands
delineation

. 19 Because DBF does not perform w etlands consulting, it retained
outside consultants , paid those consultants , and then billed DiSabatino to be

r eimburse d for the expenses. 20

D iSabatino contends that, except for the March 2011 meeting, n o work was authorized after the preliminary plan was approved on January 14, 2009. 21

12 DBF periodically sent past due invoices after May 2, 20 11, but no new work was done. 13 Trial Tr. 15 (Crouch)

. The other invoices were for interest accruing on the past due amounts

. 14 Id . at 44; Trial Tr. 84 (Carrozza) ; Trial Ex. 1 ( C ) at 23

. 15 Trial T r . 45

- 46 (Crouch) ; Trial Tr. 84 (Carrozza)

. 16 Trial T r . 15, 17, 22 (Crouch)

. 17 Id . at 17. 18 Trial Tr. 81 (Carrozza)

. 19 Trial T r . 16 (Crouch) . “The wetlands delineation is only good for five years.” Id

. 20 Id

. 21 Def.’s Resp. Br. 2.5

Carrozza testified that he instructed Crouch to stop working on Chickberry , but
concedes that his instruction was not memorialized in a ny letter or email. 22 In addition to asserting the work was not authorized , DiSabatino questions whether any wetlands work actually was done at all in 2013. 23 Therefore, according to DiSabatino, the last time DBF did any work on Chickberry was in March 2011

. 24
B. The Jestice Farm Project
The Jestice Farm Project was based on a July 27, 2006 proposal made by
DBF , w h ich DiSabatino signed on November 15, 2006. 25 This project involved the development of a 91

- acre parcel of land in Sussex County

. 26 The initial work , such as the preliminary site plan approval, was completed in 2008

. 27 The project received preliminar y approval in January 2009. 28 Then , on March 4, 2011, DBF
invoiced DiSabatino for work done in January 2011. 29 This January 2011 work
involved preliminary site layout service s because th e layout of the project changed

. 30

22 Trial Tr. 96 (Carrozza)

. 23 Id . at 82. 24 Id . at 82

- 83. 25 Trail Ex. 2 (A) at 39. 26 Trial T r . 18 (Crouch)

. 27 Id . at 46. 28 Trial Tr. 84 (Carrozza)

. 29 Trial Ex. 2 (B) at 43. 30 Trial T r . 46 (Crouch)

.6

Crouch testified that DBF, at DiSabatino ’s direction, submit ted one
- year extensions for Chickberry and Jestice Farm. 31 The project received extensions through January 2012, at which time Crouch believed that D iSabatino i ntended to pursue both projects. 32 Crouch testified he never was told otherwise. 33 Although t he Jestice Farm Project ’s approval expired in January 2012, DBF began at the end of 2012 preparing construction docum ents for the subdivision plan 34 because “they were going to submit another extension.” 35 T he project already was app roved, so getting the C ounty to re

- approve the project was not “that big of a hurdle.” 36 A nother extension, however, never was obtained , nor was the project ever completed. 37 DBF’s communication with DiSabatino ended in
2013 , at which time DBF had prepared approximately 65% of the project’s fina l
construction documents

. 38 DBF maintains DiSabatino owes a total of $69,749.22 on the Jestice Farm Project , $55,275.81 of which is for work done after May 2,
2011

. 39 On May 7, 2013, DBF sent D iSabatino an invoice for the partially completed construction documents , which DBF started six to eight months before

31 Id . at 113. 32 Id . at 113

- 14; see supra note 9 and accompanying text. 33 Id . at 113. 34 Id . at 47; 114

- 15. 35 Id . at 48. 36 Id

. 37 Id

. 38 Id . at 21, 115, 119. 39 Id . at 22.7

that date in connection with seeking the extension

. 40 Although C arrozza testified
that he saw this invoice for the first time when it was attached to court
documents , 41 his testimony on that topic was not credible. I conclude that DBF’s course of conduct was to send its invoices regularly and automatically. DiSabatino failed to maintain records that would support its remarkably convenient contention that it did not receive this particular , fairly substantial, invoice.
Carrozza also testified that this project preliminar ily was approved in January 2009 and that , other than one meeting in March 2011 , which was billed through Chickberry, he “doesn’t believe” any work subsequently was authorized

. 42 Carrozza testified that in the spring of 2011, the Chickberry and Jestice Farm Projects fell through for two reasons: (1 ) DiSabatino could not get a new sewer contract, and (2) DiSabatino became aware that the property for both projects was the subject of foreclosure proceedings

. 43 He testified that this information, along
with the fact that DiSabatino was not going through with the project s , was communicated to DBF and Crouch

. 44 Carrozza testified that DBF and Crouch also
were aware of these foreclosure actions because Crouch spoke to Mr. Jestice, the owner of the property , “ as much as he spoke to us about these two projects .” 45

40 Trial Ex. 2 (B) at 53; Trial Tr. 114 (Crouch)

. 41 Trial Tr. 85 (Carrozza)

. 42 Id . at 84. 43 Id . at 78

- 79. 44 Id . at 79

- 80. 45 Id . at 80.8

Crouch disputes that Mr. Jestice informed him that the property was in
foreclosure

. 46 Crouch testified he stopped communicating with Mr. Jestice
sometime in 2012. 47 Aside from Carrozza’s testimony, there is noth ing in the record to support DiS abatino’s claim that DBF or Crouch were instructed to suspend or cease work.
C. The Northeast Project
The Northeast Project was based on a July 21, 2009 proposal that was signed

on October 26, 2009. 48 This project involved 43 acres of land located in Cecil County, Maryland

. DiSabatino retained DBF to provide conceptual planning for a
250

- unit development. After DBF created some conceptual layouts, the deal between the developer and the property owner fell through. 49 DBF completed the
work on this project on September 10, 2010 for a total of $9,151.53

. 50 Crouch testified that he sent several emails, state ments, and invoices to DiSabatino requesting payment, but Crouch only received responses such as “we’re working with investors; we’re trying to find . . . builders.” 51 On June 15, 2011, Crouch
testified that he sent DiSabatino an email requesting that he pay $10,000 a month

46 Trial Tr. 120 (Crouch)

. 47 Id . at 119. 48 Trial Ex s . 3 ( A ) at 59, 61. 49 Trial T r . 23 (Crouch)

. 50 Id . at 24, 54 ; Trial Tr. 83 (Carrozza). 51 Trial T r . 24 (Crouch)

.9

toward past

- due invoices relating to the Nort heast Project and another project , the Elkton Project. 52
D. The Elkton Project
T he Elkton Project , which involved 47 acres of land neighboring Elkton, Maryland , was proposed on July 21, 2006, revised on August 20, 2009, and signed by DiSabatino on August 31, 2009. 53 DBF was hired to turn the area into a 336

- unit development , which included conceptual site planning, property annexation to the town, forest delineation, coordination with utility service companies, an aerial topography survey, and a wetlands delineation. 54 Crouch testified he did not know why the Elkton Project was not complet ed

. 55 On July 25, 2012, h e received an
email stat ing “we’re still working on financing .” 56 Then on June 4, 2013, he
received an email s tat ing “we met with Ryan Homes today. Everything’s looking good.” 57 Crouch testified that in 2015 , “all of a sudden , ” he received a request for
the computer

- aided design drawing s ( the digital files) for this p roject. 58 The total outstanding balance on this project is $52,454.33. 59 It is undisputed that DBF last worked on the Elkton Project in 2013. 60 Crouch testified

52 Id . This email is not in the record

. 53 Trial Ex s . 4 (A) at 78, 80; Trial T r . 25 (Crouch). 54 Trial T r . 25

- 26 (Crouch); T rial Ex s
. 4 (A) at 78

- 81

. 55 Trial T r . 28 (Crouch). 56 Id

. 57 Id

. 58 Id

. 59 Id . at 29

.10

that of the outstanding invoices, 12 or 13 invoices are dated after May 2, 2011. 61 Those invoices total $25,989.61.
ANALYSIS The primary dispute in this case is the timeliness of DBF’s claims. In Delaware, no action based on a promise “ shall be brought after the expiration of 3 years from the accruing of the cause of such action.” 62 A cause of action for
breach of contract accr ues wh en the contract is broken, not when actual damage
results or is ascertained. 63 One exception to this general rule involves what interchangeably is referred to as a “continuous contract” or a “continuing breach.”
I n continuous contract and continuing breach cases , “ the statute begins to run only when full damages c an be ascertained and recovered, ” 64 which may not be
until the contract terminates. 65 I f , on the other hand , “ the Court finds the contract severable in nature, the statute of limitations generally begins to run on each severable portion when a party breaches that portion of the contract.” 66 To
determine if a contract is severable, Del a w are courts consider whether the breaches

60 Trial Tr. 92 (Carrozza). 61 Tr ial T r. 27 (Crouch). 62 10 Del. C. § 8106

. 63 Worrel v. Farmers Bank , 430 A.2d 469, 472 (Del. 1981)

. 64 Guerrieri v. Cajun Cove Condo. Council , 2007 WL 1520039, at *6 (Del. Super. Apr. 25, 2007) (citing Oliver B. Cannon & Son, Inc. v. Fid. & Cas. Co. of N.Y ., 484 F. Supp. 1375, 1390 (D. Del. 1980)). 65 AM Gen. Hld

gs . LLC v. The Renco Gr p
. , Inc

. , 2016 WL 4440476, at *11 (Del. Ch. Aug. 22, 2016) (citing Smith v. Mattia , 2010 WL 412030, at *4 (Del. Ch. Feb. 1, 2010) ). 66 Kaplan v. Jackson , 1994 WL 45429, at *2 (Del. Super. Jan. 20, 1994) (citing B urger v. Level End Dairy Inv’ rs, 125 B. R . 894, 901

- 02 (Bankr. D. Del. 1991); Worrel, 430 A.2d at 474

- 75 )

.11

can be divided such that the plaintiff “could have a lleged a prima facie case for breach of contract . . . after a single incident.” 67 If such a case can be made, the contract is severable, “even when confronted with numerous repeated wrongs of similar, if not same, character over an extended period.” 68 The continuing breach doctrine is “narrow” and “typically [] applied only in unusual circumstances.” 69 The plaintiff bears the burden of proving that the continuing breach doctrine tolls
the statute of limitations

. 70
DBF filed its claims fo r breach of contract on May 2, 2 014. 71 DBF f iled four separate cases, one for each contract, which later were consolidated. Therefore, to be timely, DBF’s claims must have accrued on or after May 2, 2011.
DiSabatino maintains that DBF ’s claims are barred by the thre e
- year statute
of limitations because the contracts are severable rather than continuous

. D iSabatino support s this position with the following facts: consideration for the
services wa s not paid i n one lump sum; consideration was paid in accordanc e wit h separate s ervices; the scope of the work wa s broken down b y individual tasks;

67 AM Gen. Hld

gs . LLC , 2016 WL 4440476, at *12 (citing Price v. Wilm. Trust Co ., 1995 WL 317017, at *2

- 3 (Del. Ch. May 19, 1995)). 68 Id

. (internal quotations omitted). 69 AM Gen. Hld

gs . LLC , 2016 WL 4440476, at *11 (citing Desimone v. Barrows , 924 A.2d 908, 924

- 25 (Del. Ch. 2007) )

. 70 Fike v. Ruger , 754 A.2d 254, 261 (Del. Ch. 1999), aff'd , 752 A.2d 112 (Del. 2000) (“ The plaintiffs bear the burden of proving that tolling is available. ”) (citing U. S. Cellular Inv. Co. v.. Bell Atl. Mobile Sy s s. , Inc., 677 A.2d 497, 504 (Del. 1996) ). 71 DiSabatino incorrectly contends DBF’s claims were filed on Se ptember 23, 2014. The docket contradicts this contention.12

services were performed in multiple phases; and either part y could terminate the

contract at any time. 72 Because each contract is severable, DiSabatino argues , each
claim accrued at the time of each breach , that is, when each invoice wa s not paid within 30 days of its issuance

. DBF responds that each contract is continuous and therefore the claim s only

ac crue d at the termination of each contract, which DBF implicitly arg ues was the first time full damages could be ascertained

. 73 DBF contends that the trial testimony contradicts D iSabatino’s position that services were performed in multiples phases ; Crouch testi fied that: “They’re typically done at the same time. When you’re doing a property line survey, you’re also doing topography, you’re
also coo rdinating with []wetlands delinea[t] ion, but it’s all done at the same

– pretty much the same time.” 74
A. Damages for the C hickberry Project are barred by the statute of l imitations , except for the invoices that became over due after May 2, 2011
. DBF’s breach of contract claim for the Chickberry Project is supported by a
few invoice s and the testimony of one witness. DBF is requesting $49,234.78 in damages relating to this project going back to services performed in 2008. The last
time DBF undisputedly worked on this p roject is in March 2011.

72 Def.’s Re sp . Br. 2. 73 Pl.’s Trial Memo. on S tatute of Limitations 2. 74 Pl .’s Reply ¶ 3 (citing Trial T r . 31. (Crouch) )

.13

Although DBF contends i t worked on th e project in 2013, DiSabatino claims
the last service performed was in March 2011. Carroz z a testified Crouch was told the project was dead and he should stop working. D iSabatino argues: additional
work neither was done nor authorized in January 2013; the work described in the March 6, 2013 invoice previously was performed and billed; and the March 6, 2013 invoice does not describe any services DBF performed. Alternatively , D iSabatino argues that if the last day of service was in March 2013, DBF is

e ntitl ed to $2,479.14 because th e contract is divisible and the statute of limitations precludes reco very for services rendered more than three years before the complaint was filed

. DBF argues it defies common sense to continue working on a project after being told it is not going forward , and Crouch testified that DBF was not told to stop working. 75 In addition, DiSabatino offered no evidence confirming Carrozza’s testimony that DBF was told to stop working on this p roject. 76 The parties’ arguments largely focus ed on whether the contracts we re continuous or severable. In my view, the resolution of DiSabatino’s statute of limitations defense turns on a distinct question: when DBF’s damages could be
determined and rec overed.

75 T rial T r . 117

- 19 (Crouch)

. 76 Tr ial T r . 98 (Carrozza)

.14

That question is determinative because , even w here there is a continuous contract or continuing breach, “the statute begins to run the moment full damages
can be determined and recovered.” 77 That is, e ven if the Chickberry contract was a continuous contract, 78 DBF ’s claim accrued when DBF was able to determine and recover its damages . Although DBF assumes that was when the contracts were terminated, that conclusion is not supported by the record. Rather, a fter the 30

- day

c ontractual payment period had passed , 79 and DiSabatino had failed to pay, DBF
could ascertain its damages and pursue its claim. Although DBF vigorously argues the contracts were continuous, it does not explain why its damages could not be
ascertained when the invoices went unpaid

. 80 Accordingly, claims for invoices overdue before May 2, 2011 are barred by the stat ute of limitations. Those that
became overdue after May 2, 2011 , or that relate to services rendered after that date, are not time

- barred. DiSabatino also argues DBF’s work after May 2, 2011 neither was authorized nor performed . This argument is inconsistent with , and unsupported by, the testimony and exhibits admitted at trial

. DiSabatino re ceived invoices and

77 AM Gen. Hld

gs
. LLC , 2016 WL 4440476, at *11

. 78 The weight of the evidence supports a conclusion that the contracts were severable, rather than continuous. The separate identification of distinct services to be provided, the issuance of periodic bills related to those services, and the extended and un delineated term of the contract all support a conclusion of severability. The Court, however, need not reach that issue because the damages could be ascertained at the time the invoices were overdue, even if the contract was continuous. 79 See Schedule No . 43

. 80 See AM Gen. Hld

gs . LLC , 2016 WL 4440476, at *11 (citing Price , 1995 WL 317017, at *2

- 3 ).15

never objected on any basis t o the work or amounts, including on the basis that the
work was not authorized or previously was performed

. Based on DiSabatino’s witness’s testimony, the parties met and spoke often about all four P rojects t hrough 2013. DiSabatino’s purported instructio n to DBF to stop work on this project (or any other) was not memorialized in writing, and DiSabatino’s witness was not credible on this point. Moreover, DBF’s conduct evidences its belief that the contract was not terminated. For example, DBF continued working and incurring expenses, including substantial out

- of

- pocket expenses for a wetlands consultant. Accordingly, DiSabatino cannot avoid DBF’s timely claims under the pretense t hat
the work was not authorized or performed

. B. Damages for the Jestice Farm Project are barred by the statute of l imitations , except fo r the invoice that became over due after May 2, 2011.
DBF is entitled to $55,275.81 for the Jestice Farm Project. DBF s eeks damages for work done in 2008, 2011, and 2013 on this project. DBF contends that it worked through May 7, 2013 , when it billed DiSabatino for the work it had completed until that point

. 81 The May 7, 2013 invoice relates to se rvices rendered approximately six months before the work was invoiced

. 82 Di Sabatino contends
this work neither was performed nor authorized. 83 DBF’s earlier work on this

81 Pl.’s Post Tr. Memo. 5. 82 Trial Tr . 49 , 114 (Crouch). 83 Def.’s Resp. Br. 3.16

project was done in January 2011, more than two years before the May 7, 2013
invoice

. For the same re asons as explained above, DBF was able to determine and recover its damages at the time the invoices were not paid , and , therefore , only
those claims for invoices over due after May 2, 2011 survive. DiSabatino’s
contention s that this work was not authorized and that he did not receive the
invoice fails because DiSabatino presented no credible evidence to support those
contentions

. C. DBF cannot recover d amages for the Northeast Project
. DiSabatino contends the latest date o f service relating to the Northeast Project is December 23, 2009 for work performed in November 2009. In post

- trial briefing, DBF conceded that its claims relating to the Northeast Project were
barred. 84 I agree. The trial test imony was consistent that t his p roject was completed by September 10, 2010. Accordingly, even using the latest date in the record, the statute of limitations b ars any claim relating to this p roject. This is so
whether the contra ct is continuous or severable , since damages were asc ertainable and recoverable by September 2010.

84 Pl.’s Reply ¶ 5

.17

D. Damages for the Elkton Project are barred by the statute of limitations, except for the invoice s that became over due after May 2, 2011. As to the Elkton Project, D iSabatino argues that DBF’s recovery should be limited for two reasons: (1) the contr act is divisible so DBF’ s recovery is limited to services performed after May 2, 2011 ; and (2) DBF “ should have insisted that the environmental work (wetlands and forest delineatio n) [be] completed prior to preparing plans.” 85 D iSabatino therefore maintains that DBF is entitled to no more than $19,002.50. 86 DBF responds that “the work on the Elkton Project was documented by [DBF’s] invoices and Mr. Crouch’s testimony.” 87
DBF is ent itled to $25,989.61 for 12 invoices. Again, DBF was able to ascertain its damages on this project wh en DiSabatino failed to pay the invoices within 30 days of the invoice date. Twelve invoices became due after May 2, 2011. Accordingly, recovery is not barred by the statute of limitations as to these
invoices. As to DiSabatino’s argument that DBF should have completed certain work before beginning other services, there is nothing to indicate DBF acted unreasonably or in a manner inconsistent with the co ntract.

85 Def.’s Resp. Br. 4 (emphasis in original). 86 DiSabatino’ s amount is based on duplicative invoices and the faulty premise that the complaint was filed in September 2014

. 87 Pl.’s Reply ¶ 6 (c iting Trial Tr. 25

- 29 ( Crouch )).18

E. DBF is entitled to a ttorneys’ fees and c osts . DBF contends each of the four contracts entitle it to recover attorneys’ fees and costs in pres sing its claims. Schedule 43 , attached and referenced in each
contract, provides: “If required to engage legal counsel to collect an overdue invoice, DBF shall be entitled to recover also its costs of collection, including counsel fees and expenses.” 88 Generally, Delaware courts follow the American Rule, whereby each party
bear s its own costs and atto rn ey s ’ fees

. 89 There are, however, long recognized exceptions, one of which is a contractual fee

- shifting clause

. 90 Here, the parties entered into four contracts whereby “ DBF s hall be entitled to recover [] its costs of collection, including counsel fees and expenses. ” 91
As previously explained , DBF succeeded , at least partially, in its claims under the Chickberry Project , Jestice Farms Project, and Elkton Project. DBF did
not succeed on its claim under t he Northeast Project. Therefore , DBF only is entitled to recover those reasonable attorneys’ fees and costs associated with the portion of its claims pertaining to Chickberry, Jestice Farms, and Elkton. DBF

88 Trial Ex. 1 ( A ) at 8 ; Trial Ex. 2 ( A ) at 40 ; Trial Ex. 3 ( A ) at 62; Trial Ex. 4 ( A ) at 81

. 89 Dover Historical Soc’y, Inc. v. City of Dover Planning Comm’n , 902 A.2d 1084, 1089 (Del. 2006). 90 ATP Tour, Inc. v. Deutscher Tennis Bund , 91 A.3d 554, 558 (Del. 2014); Bergin v. McCloskey, 2008 WL 4662378, at *1 (Del. Com. Pl. Oct. 22, 2008)

. 91 Trial Ex. 1 ( A ) at 8; Trial Ex. 2 ( A ) at 40; Trial Ex. 3 ( A ) at 62; Trial Ex. 4 ( A ) at 81

.19

may file a petition and affidavit associated wi th the fees and expenses it believes it
is entitled to receive.
CONCLUSION For the reasons stated above, DBF is entitled to $2,479.14 for the Chickberry Project, $55,275.81 for the Jestice Farm Project, and $25,989.61 for the Elkton Project, plus pre

-

judgment interest at 12% 92 beginning December 20, 2013, post

judgment interest at the legal rate, 93 attorneys’ fees, and costs. DBF SHALL
submit within 30 days of the date of this decision an application detailing the basis for and amount of the reasonable attorneys’ fees and costs expended litigating this

case , but only as to those claims that were successful

. DBF also simultaneously
SHAL L file a proposed form of final order. To the extent he objects to t he amount of attorneys’ fees or costs requested, or to the proposed form of order, DiSabatino
SHALL file an opposition within ten days of the filing of DBF’s application and proposed orde r
. IT IS SO ORDERED.

92 The contracts provided a contractual interest rate of 12% annually. Trial Ex. 1 ( A ) at 8; Trial Ex. 2 ( A ) at 40; Trial Ex. 4 ( A ) at 81. 93 DBF demanded pre

-

judgment interest at the legal rate. Compl. 1.