Opinion
Civil Action No. 1463-K.
Date Submitted: August 26, 2003.
Draft Report: September 11, 2003. Final Report: September 29, 2003.
H. Cubbage Brown, Jr., Esquire, of BROWN, SHIELS, BEAUREGARD CHASANOV, Dover, Delaware; Attorney for Plaintiff.
Patrick Scanlon, Esquire, of BARROS McNAMARA SCANLON MALKIEWICZ TAYLOR, P.A., Dover, Delaware; Attorney for Defendants.
MASTER'S REPORT (Damages Costs)
This matter involves an attempt by the plaintiff to enforce a contract for the sale of real property in Kent County. Previously, I decided that the plaintiff had a valid contract for sale with the defendant sellers but that he was not entitled to the extraordinary remedy of specific performance. Morabito v. Harris, Del. Ch., C.A. No. 1463-K, Glasscock, M. (Oct. 10, 2001) (Master's Report). Accordingly, I found that the plaintiff was entitled to contract damages including rescissory damages. The plaintiff now seeks his rescissory damages. The parties have filed cross-memoranda and asked for a decision based on the briefing. This is my report on the measure of damages.
The plaintiff, while requesting rescissory damages, has failed to demonstrate that any such damages have been incurred. The plaintiff did commit $1000 in earnest money, but that sum has already been returned together with interest thereon. The plaintiff seeks court costs in this matter, which the defendants concede should be paid. These costs include a filing fee of $200 and a Kent County Sheriffs bill for service of process of $35.
The plaintiff also seeks his litigation costs, principally his attorney's fee, as part of rescissory damages. The cost of litigation are not available in this Court as damages, rescissory or otherwise, exception under special circumstances not present here. Rescissory damages contemplate putting the plaintiff in the position he would have occupied absent entry of the breached contract, including reimbursement of the plaintiffs out-of-pocket costs expended in an attempt to comply with the contract. Rescissory damages do not include the plaintiffs efforts to redress the breach of the contract, however. Where, as here, the party seeking the shifting of legal fees has demonstrated no entitlement to fees by statute or special equity, the traditional "American Rule" applies by which each party bares its own fees and litigation costs. See, e.g., Division of Child Support Enforcement v. Smallwood, Del. Supr., 526 A.2d 1353, 1355-57 (1987). Here, the plaintiff has shown breach of the contract, and seeks damages. In this regard, he is in the position of any other successful litigant who falls short of being made whole by the amount of his attorney's fees.
In summary, the plaintiff has not demonstrated that any rescissory damages have been incurred beyond the deposited earnest money, which has been repaid with interest. The plaintiff is entitled to his court costs. The plaintiffs request for the fees and litigation costs are denied. The plaintiff should present a form of order consistent with this report.
ORDER
This 29th day of September 2003, having considered the parties' cross-memoranda, the applicable law of damages, and matters already presented to the Court,
IT IS HEREBY ORDERED, that Defendants Lawrence and Angela Harris pay to Plaintiff Anthony Morabito the costs of this action consisting of a filing fee of $200.00 and a Kent County Sheriffs bill for service of process of $35.00.