A.B. v. Thresholds, Inc.

• Decision Date: 31 August 2009
• Docket Number: No. CS08-02438.,CS08-02438.
• Citation: 982 A.2d 295
• Parties: A.B.,<SMALL><SUP>*</SUP></SMALL> Petitioner, v. THRESHOLDS, INC., Respondent.
• Court: Delaware Family Court

982 A.2d 295

A.B.,^* Petitioner, v. THRESHOLDS, INC., Respondent.

No. CS08-02438.

Family Court of Delaware, Sussex County.

Submitted: July 27, 2009.

Decided: August 31, 2009.

Ashley M. Oland, Esquire, The Law Office of Edward C. Gill, P.A., Georgetown, DE, for the Petitioner.

André M. Beauregard, Brown, Shiels, and O'Brien, PA., Dover, DE, for Respondent.

OPINION

HENRIKSEN, J.

Ashley Oland, Esquire represents A.B. (mother), an indigent parent in a child dependency case, as part of a contract with this Court. During the course of representing mother, it became necessary for Ms. Oland to pursue a contempt finding against Thresholds, Inc. (Thresholds) because of its failure to produce records regarding Ms. Oland's client's substance and alcohol abuse treatment received at Thresholds.¹ Thresholds failed to timely produce these records and appear at a hearing despite Ms. Oland's client having executed an appropriate release and also despite this Court's subpoena duces tecum compelling Thresholds to appear at Court with the records. Ms. Oland contends that Thresholds' non-compliance required her to perform legal services that went beyond the scope of the reasonable expectations of her indigent parent child dependency contract. She further avers that the time she was required to spend representing her indigent client in the dependency case for matters necessitated by Thresholds' actions, prevented her from spending time during which she could have been representing her private clients at her usual privately billed rates. Therefore, Ms. Oland has requested that the Court award her attorney's fees for the time she had to spend on behalf of her dependency contract client in her pursuit of a successful contempt action against Thresholds based on the hourly rate at which she would ordinarily bill a private client. For the reasons hereinafter stated, the Court will grant Ms. Oland's request to be paid attorney's fees by Thresholds calculated at the hourly rate she would normally charge a private client.

Facts

Ms. Oland requested two subpoenas duces tecum be served on Thresholds during the course of her representation of mother. The Court caused the first subpoena to be served upon Thresholds on August 8, 2008, and requested that Thresholds produce documents related to mother's drug and alcohol treatment at a hearing on August 11, 2008. Thresholds failed to produce the documents at Court on that date. The Court declined to find Thresholds in contempt for failing to abide by this subpoena due to the short notice.

A second subpoena duces tecum was issued immediately following the August 11, 2008 hearing requesting that the same materials be produced at a hearing on October 20, 2008. In addition, Ms. Oland's client signed an appropriate release on August 15, 2008 for her records to be provided to Ms. Oland, and the Court also issued an Order on August 13, 2008 requiring the records of Ms. Oland's client to be provided within 20 days to the Attorney Guardian Ad Litem in the dependency case as well as to the Division of Family Services. Despite having these several timely orders and requests, Thresholds failed to produce the requested documents regarding mother's treatment at the October 20, 2008 hearing. In addition, and almost unbelievably, the Thresholds representative failed to appear for the hearing, and its attorney made no effort to quash the subpoena. Thresholds' actions were without basis, and demonstrated a lack of concern and disrespect for the authority of the Court. Its actions delayed the possible visitation between a mother and her child. As a consequence, Ms. Oland was required to go well beyond the reasonable expectations of her dependency contract and take extraordinary steps to enforce and protect her dependency client's rights.

In response to the Rule to Show cause petition filed by Ms. Oland on behalf of her indigent dependency client, the Court issued an Order which held Thresholds in contempt for failing to comply with the subpoena. The Court sanctioned Thresholds by fining it $1,000.00, of which $500.00 was suspended. This fine was payable to the Court, and contemplated the disrespect demonstrated by Thresholds for the authority of the Court.

Following the issuance of that Contempt Order, Ms. Oland filed her Motion for Attorney's Fees. She argues that the time spent on Thresholds' contempt could have been afforded instead to her private clients and at the hourly rate she bills her private clients. She requests a total of $1,638.75 in attorney's fees. Thresholds opposes an award of attorney's fees, claiming that the time Ms. Oland spent on this case should be covered by her dependency contract with the Court.

Ms. Oland filed a memorandum of law supporting her motion. Thresholds, through its attorney, Andre M. Beauregard, Esquire, sent a response letter, arguing that Ms. Oland's motion should be summarily dismissed or denied. Ms. Oland then filed a response letter addressing the shortcomings in both Thresholds' arguments and its failure to follow proper Court procedure. Thresholds again responded to Ms. Oland via letter.

Discussion

The Court will first address Thresholds' response letter dated August 20, 2009, wherein Counsel for Thresholds requests the summary dismissal of Ms. Oland's motion. Thresholds alleges that Ms. Oland failed to submit a copy of her dependency contract as well as her memorandum by the date mandated by the Court's July 28, 2009 Order, which called for the memorandum to be submitted by August 13, 2009. The arguments put forth by Thresholds fail. Counsel for Thresholds has failed to make a proper motion to dismiss. Counsel instead asks the Court to dismiss the motion through a letter responding to Ms. Oland's memorandum. This is certainly improper under Family Court Rule of Civil Procedure 41, which calls for the respondent to move for dismissal. Moreover, even if his letter was accepted as a proper motion, this Court would deny Thresholds' counsel's request to dismiss Ms. Oland's motion. She filed and sent to opposing counsel her memorandum on August 13, 2009. Counsel for Thresholds argues that he did not receive it until August 19, 2009 due to an incorrect address thereby violating the Court's Order. However, the excusable mistake was rectified by Ms. Oland's office in a timely manner.² Therefore, the Court will not dismiss Ms. Oland's motion.

The Court now turns to the merits of Ms. Oland's motion. Ms. Oland has requested attorney's fees and costs to be paid by Thresholds in relation to its failure to produce subpoenaed documents. Ms. Oland provided the Court with the necessary affidavit accounting for time and rates of pay. She recites the hourly rates she would bill a privately retained client as $175.00, $200.00, and $225.00 per hour. She also avers that she expended 8.3 hours on matters relating to Thresholds' failure to comply with her subpoena. The total amount she is requesting is $1,638.75.

Thresholds argues that Ms. Oland's motion should be denied because she filed the contempt request against Thresholds, thereby creating the need for her to spend the extra time in arriving at a successful contempt action against Thresholds.

Thresholds also contends that Ms. Oland has not proven that she would have had private cases which would entitle her to the aforementioned rates of pay. The Court will take judicial notice of the frequent and regular representation by Ms. Oland of private clients in the Family Court on the days when Ms. Oland is not representing her indigent clients in dependency proceedings.

When considering an award of attorney's fees, the Court is guided by Family Court Rule of Civil Procedure 88, which reads:

In every case where there is a legal or equitable basis therefor the Court may assess a party the reasonable counsel fees of any other party. Where counsel fees are requested the attorney shall submit to the Court an affidavit stating the following:

(1) time and effort expended;

(2) an itemization of services rendered;

(3) relevant hourly rates;

(4) itemization of disbursements claimed;

(5) any sums received or that will be received with respect to legal services and/or disbursements; and

(6) any information that will enable the Court to properly weigh the relevant factors set forth in the Rules of Professional Conduct, Rule 1.5.³

Awards of attorney's fees are proper when there is a legal or equitable basis. In this case, Ms. Oland has...