IN THE SUPREME COURT OF THE STATE OF DELAWARE
LAWRENCE P. GILLEN, § § Plaintiff Below, § No. 227, 2014 Appellant, § § v. § Court Below: Superior Court § of the State of Delaware, CONTINENTAL POWER § in and for New Castle County CORPORATION and EDWARD § C.A. No. N10C-05-090 (PRW) HENRY KIMMEL § § Defendants Below, § Appellees. §
Submitted: September 12, 2014 Decided: November 18, 2014 Corrected: November 19, 2014
Before HOLLAND, RIDGELY, and VALIHURA Justices.
ORDER
This 18th day of November 2014, upon consideration of the parties’ briefs
and the record on appeal, it appears to the Court that:
(1) The plaintiff-appellant, Lawrence P. Gillen, filed this appeal from a
Superior Court jury’s verdict in favor of the defendants-appellees, Continental
Power Corporation (“Continental”) and Edward Henry Kimmel, the Superior
Court’s April 7, 2014 opinion and order denying Gillen’s motion for a new trial,
and the Superior Court’s April 8, 2014 order awarding the defendants $2,997.69 in
attorneys’ fees and costs. We affirm the judgment of the Superior Court. (2) The record reflects that Gillen and Kimmel met in the fall of 2007.
Gillen sold power conditioning systems and Kimmel was the founder, president,
and sole stockholder of Continental, a Delaware corporation that sold power
conditioning systems for residential and commercial use. Gillen initially
purchased power conditioning systems from Continental and resold the systems to
his own customers, primarily EcoQuest. In 2008, Gillen became an independent
manufacturer’s sales representative for Continental. After Ecoquest filed for
bankruptcy, the relationship between Gillen and Kimmel gradually deteriorated.
(3) In April 2010, Gillen filed a pro se complaint against Continental and
Kimmel. Gillen alleged that he, Kimmel, and Continental “entered into an
agreement in October 2007 whereby they agreed to be 50/50 partners in the
distribution and installation in energy savings devices in residence and commercial
property in Delaware and other locations” and that he did not receive 50% of the
profits as the parties had agreed.1 Gillen asserted claims for breach of contract,
tortious interference, fraud, and defamation. In October 2012, the Superior Court
granted the defendants’ motion for summary judgment on the tortious interference,
fraud, and defamation claims, but denied the motion with respect to the breach of
contract claim.
1 Appellant’s Appendix at A56 ¶¶ 4, 8, 11.
2 (4) In July 2013, Gillen retained counsel, who requested a continuance of
the September 2013 trial dates so that a particular witness could attend the trial and
counsel could familiarize himself with the case. The Superior Court granted the
motion and re-scheduled the trial to begin on October 28, 2013. On September 30,
2013, Gillen’s counsel moved to withdraw. The Superior Court granted the motion
and denied Gillen’s request for another continuance.
(5) Gillen then retained new counsel, who requested a continuance so he
could prepare for the trial. Counsel also later informed the Superior Court that he
had a scheduling conflict on the last day of trial. The Superior Court granted the
motion for a continuance over the objections of the defendants and re-scheduled
the trial to begin on December 4, 2013. The Superior Court bifurcated the trial so
that the trial would proceed on liability only, with a hearing on damages to be
scheduled if necessary. The jury returned a verdict in favor of the defendants.
(6) Gillen filed a motion for a new trial and his counsel moved to
withdraw. The Superior Court granted the motion to withdraw and denied the
motion for a new trial. The Superior Court awarded the defendants $2,997.69 for
attorneys’ fees and costs they incurred in responding to the second motion for a
continuance and preparing another pretrial stipulation. This appeal followed.
(7) Gillen’s arguments on appeal may be summarized as follows: (i) the
Superior Court judge erred in not recusing himself; (ii) the Superior Court erred in
3 allowing the admission of Gillen’s prior criminal convictions in Florida and failed
to provide a limiting instruction to the jury; (iii) the Superior Court erred in
limiting the theory of liability presented at trial and in instructing the jury; (iv) the
Superior Court erred in limiting the testimony of Leo Rammuno, Esq. and
excluding correspondence written by Kimmel; (v) the Superior Court erred in
denying his motion for a new trial; and (vi) the Superior Court erred in awarding
the defendants’ $2,997.69 in attorneys’ fees and costs.
(8) At a September 23, 2013 hearing on Gillen’s motion in limine to
preclude the use of his criminal convictions at trial, the Superior Court judge (who
had replaced the original judge in July 2013) notified the parties that he had
learned that he was the prosecutor for driving charges brought against Gillen in the
early 1990s as well as a misuse of credit card charge brought in 1994. The
Superior Court judge noted that neither of these matters would be admissible under
Rule 609 of the Delaware Rules of Evidence (“D.R.E.”) because they were
misdemeanors or subject to nolle prosequi. He also stated that he had no
recollection of the charges. Although the Superior Court judge believed he could
be fair and impartial, he stated that he wanted to give Gillen’s counsel the
opportunity to consider whether he wished to file a motion for recusal.
(9) Gillen’s counsel did not file a motion for recusal. At the October 14,
2013 hearing on the motion to withdraw filed by Gillen’s first counsel, Gillen
4 asked if he could file a motion for recusal. The Superior Court judge indicated that
he was unlikely to grant such a motion based on his previous analysis, but he
would consider a written motion if filed by the close of business on October 16,
2013. Gillen did not file a motion for recusal, but complained in his motion for a
new trial that the Superior Court judge refused to recuse himself. The Superior
Court judge rejected this argument and concluded that he was not required to
recuse himself.
(10) When deciding whether to recuse himself, a judge engages in a two-
part analysis. First, the judge must be satisfied, as a matter of subjective belief,
that he can hear the matter free of bias or prejudice.2 Second, even if the judge
believes he is free of bias or prejudice, he must objectively consider whether the
circumstances require recusal because there is an appearance of bias sufficient to
cast doubt on the judge’s impartiality.3 On appeal, we review the subjective
analysis for abuse of discretion and the objective analysis de novo.4
(11) In denying Gillen’s motion for a new trial, the Superior Court engaged
in the two-part analysis for recusal. The Superior Court judge noted that Gillen
never filed a motion for recusal, the Delaware charges for which he was the
2 Los v. Los, 595 A.2d 381, 384-85 (Del. 1991). 3 Id. at 385. 4 Fritzinger v. State, 10 A.3d 603, 611 (Del. 2010).
5 prosecutor were not admissible under Rule 609, and he had no recollection of the
charges. The Superior Court judge concluded, as a matter of subjective belief, that
he could and did hear the matter free of bias or prejudice and that an objective
observer would not question his impartiality.
(12) Gillen contends that there was an appearance of bias because the
Superior Court judge learned he was the prosecutor for two of the Delaware
convictions by researching Gillen’s Delaware criminal history (which was
described in the pardon accompanying Gillen’s motion in limine). We disagree.
The Superior Court judge did not create an appearance of impropriety by
discovering the potential issue (an issue that Gillen relies upon in his appeal) and
promptly informing the parties. Under the circumstances, we do not discern any
abuse of discretion in the Superior Court’s subjective analysis nor, after de novo
review, do we discern any appearance of bias sufficient to cast doubt on the
Superior Court judge’s impartiality.
(13) Gillen next argues that the Superior Court erred in allowing the
admission of his credit card fraud and felony larceny criminal convictions in
Florida for impeachment purposes. The Superior Court granted Gillen’s motion in
limine to exclude evidence of his Delaware convictions (which had been
pardoned), but denied the motion with respect to his Florida convictions. This
6 Court reviews evidentiary rulings for abuse of discretion.5 “An abuse of discretion
occurs when ‘a court has ... exceeded the bounds of reason in view of the
circumstances, [or] ... so ignored recognized rules of law or practice so as to
produce injustice.’”6
(14) The Florida convictions occurred in 1992 and were therefore more
than ten years old. Under Rule 609(b), evidence of a conviction more than ten
years old is not admissible unless the Superior Court “determines, in the interests
of justice, that the probative value of the conviction supported by the specific facts
and circumstances substantially outweighs its prejudicial effect.”7 Having
carefully reviewed the record, we conclude that the Superior Court’s decision did
not amount to an abuse of discretion. The Superior Court properly applied Rule
609(b) and concluded that the probative value of the Florida convictions
substantially out weighed the prejudicial effect in this case because the jury had to
determine whether the parties had an oral agreement as alleged by Gillen and
Gillen’s credibility was important to this determination. The Marvel v. Snyder8
decision that Gillen relies upon is inapposite as it involved a prisoner convicted of
5 Cuonzo v. Shore, 958 A.2d 840, 845 (Del. 2008). 6 Lilly v. State, 649 A.2d 1055, 1059 (Del.1994) (quoting Firestone Tire & Rubber Co. v. Adams, 541 A.2d 567, 570 (Del.1988)). 7 D.R.E. 609(b). 8 2003 WL 22134838 (D. Del. Sept. 9, 2003).
7 sexual crimes and assault who brought a prisoner civil rights action against the
Department of Correction, not a businessman convicted of credit card fraud and
larceny who claimed to have an oral agreement with another businessman.
(15) Gillen also contends that the Superior Court erred by failing to give a
limiting jury instruction regarding his Florida criminal convictions. There is no
indication that Gillen ever requested a limiting jury instruction so we review this
claim for plain error.9 “Under the plain error standard of review, the error
complained of must be so clearly prejudicial to substantial rights as to jeopardize
the fairness and integrity of the trial process.”10 Gillen has not shown that the lack
of an instruction cautioning the jurors to limit their consideration of the Florida
convictions to his credibility clearly prejudiced his substantial rights or jeopardized
the fairness and integrity of the trial process. Accordingly, the lack of such an
instruction did not constitute plain error.
(16) Gillen next argues that the Superior Court erred in limiting the scope
of the trial and the jury instructions to consideration of whether the parties entered
into an agreement forming a partnership in October 2007. According to Gillen, his
case was not limited to whether the parties formed a partnership in October 2007,
9 Supr. Ct. R. 8; Dougherty v. State, 21 A.3d 1, 6 (Del. 2011); Beebe Med. Ctr., Inc. v. Bailey, 913 A.2d 543, 555 (Del. 2006). 10 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
8 the jury could have found the parties entered into a commission relationship in
April 2008, and the Superior Court should not have denied his request for a
promissory estoppel instruction. We review the denial of a requested jury
instruction de novo.11
(17) Before the trial started, the defendants objected to Gillen’s attempt to
include jury instructions for promissory estoppel and other non-partnership
agreement theories of liability because the case was pled and defended as a breach
of a partnership agreement for more than three years. Based upon its prior rulings,
the complaint, how the case was litigated, and the lack of a motion to amend the
complaint, the Superior Court concluded that the only remaining issue for the jury
was whether the parties entered into an agreement in October 2007 whereby they
agreed to be 50/50 partners in the distribution and installation of energy savings
devices in residential and commercial property in Delaware. The jury was
instructed to decide if Gillen and Kimmel or Gillen and Continental entered into a
partnership agreement in October 2007 whereby they agreed to be 50/50 partners
in the distribution and installation of energy saving devices in residential and
commercial properties.
(18) In support of his argument that the Superior Court erred in limiting the
scope of the trial and instructing the jury, Gillen points to allegations in his
11 Sammons v. Doctors for Emergency Servs., P.A., 913 A.2d 519, 540 (Del. 2006).
9 complaint that he was owed 50% of the profits from jobs performed by the parties
as well as commissions, Kimmel’s trial testimony that there was a commission
relationship between the parties (rather than a partnership) beginning in 2008, and
Gillen’s pro se status throughout most of the litigation. The complaint includes
allegations that the parties “entered into an agreement in October 2007 whereby
they agreed to be 50/50 partners in the distribution and installation in energy
savings devices in residence and commercial property in Delaware and other
locations,”12 the parties were “actively engaged in their partnerships” and sharing
profits on a 50/50 basis,13 and the “partnership sold units to a multi-level marketing
firm know as Ecoquest and was sharing those profits as well on a 50/50 basis.”14
Throughout the summary judgment papers, Gillen argued that the parties entered
into an oral partnership agreement in October 2007. When the Superior Court
denied the defendants’ motion for reconsideration of the denial of their motion for
summary judgment on the breach of contract claim, it recognized that it had
previously found there was a genuine issue of material fact “regarding the specifics
of the alleged 50/50 partnership agreement.”15 Given the record in this case, the
12 Appellant’s Appendix at A56 ¶ 4. 13 Id. at A57 ¶ 6. 14 Id. 15 Superior Court Docket Entry No. 170.
10 Superior Court did not err in limiting the theory of liability presented by Gillen at
trial or in instructing the jury. Pro se litigants are generally granted some leeway
in preparing and presenting their cases, but the Superior Court was not required to
“sacrifice the orderly and efficient administration of justice” to accommodate
Gillen.16
(19) Gillen next argues that the Superior Court erred in limiting the
testimony of Leo Ramunno, Esq. and excluding correspondence written by
Kimmel in the course of the parties’ attempts to settle their disputes, with
Ramunno’s assistance, in April 2010. Ramunno, who was a friend of Gillen and
represented him in various matters over the years, began representing Continental
in 2008 or 2009. In June 2010, Ramunno withdrew from representing Continental
in a Court of Chancery action.
(20) The defendants filed a motion in limine to preclude Ramunno from
testifying about matters subject to the attorney-client privilege and/or work product
doctrine and the parties’ efforts to compromise their disputes in April 2010. Gillen
sought to introduce testimony from Ramunno that: (1) he heard Kimmel make a
toast referring to Gillen as his partner and their partnership at a dinner in 2008,
before Continental retained Ramunno, with a number of other, non-Continental
affiliated people; (2) he heard Kimmel and Gillen refer to each other as partners
16 Draper v. Med. Ctr. of Delaware, 767 A.2d 796, 799 (Del. 2001).
11 and their partnership in conversations they had with Ramunno or in Ramunno’s
presence regarding litigation brought by or against Continental and an Ecoquest
employee who became an independent manufacturer’s sales representative for
Continental after Ramunno was retained by Continental; and (3) he had knowledge
of the parties’ business relationship as a result of trying to help them settle their
disputes in April 2010. The Superior Court permitted Ramunno to testify about the
toast at the 2008 dinner, but did not allow him to testify about the other
communications. The Superior Court also excluded the April 2010
correspondence Kimmel sent in the course of the parties’ settlement negotiations.
(21) The Superior Court concluded that the communications were
privileged under Rule 502 because they were made in the rendition of legal
services and meant to be confidential between Continental and its sales agents.
The Superior Court also found that statements Kimmel made during the parties’
April 2010 settlement negotiations (which included oral and written statements)
were inadmissible under Rule 408 because the statements were made in
compromise negotiations and being offered to prove liability. Finally, the Superior
Court held that Ramunno’s testimony regarding the parties’ relationship would be
unfairly prejudicial under Rule 403 because he was a lawyer that had represented
Continental and the jury would be inclined to give undue weight to his testimony.
12 (22) This Court reviews evidentiary rulings for abuse of discretion.17 If
there is an abuse of discretion, then we must determine whether the error
constituted significant prejudice depriving the appellant of a fair trial.18
Applicability of the attorney-client privilege and work product doctrine is reviewed
de novo.19
(23) Gillen argues that Kimmel’s statements are not privileged under Rule
502(d)(6) because he and Continental were joint clients of Ramunno
communicating about a matter of common interest. The record reflects that
Ramunno was representing Continental in the litigation under discussion, but does
not reflect that Ramunno was representing Gillen, a Continental sales agent, in the
litigation. If Gillen and Kimmel had jointly consulted Ramunno about forming a
partnership, then those communications could be admissible under Rule 502(d)(6).
But there is no contention or indication in the record that Gillen and Kimmel
jointly sought Ramunno’s advice about forming a partnership and Ramunno was
not retained by Continental until approximately a year after Gillen claims that the
parties agreed to a partnership. As far as statements Kimmel made in the course of
the parties’ April 2010 negotiations to settle their disputes, Gillen offered these
17 Cuonzo, 958 A.2d at 845. 18 Id. 19 Wal-Mart Stores, Inc. v. Indiana Elec. Workers Pension Trust Fund IBEW, 95 A.3d 1264, 1272 (Del. 2014).
13 statements to prove liability. Gillen does not address the Superior Court’s holding
that Ramunno’s proposed testimony was unfairly prejudicial to Continental under
Rule 403.
(24) In addition, the statements and correspondence Gillen claims were
wrongly excluded are generally cumulative of evidence that was admitted.
Multiple witnesses testified that Kimmel referred to a partnership and Gillen as a
partner at the 2008 dinner. Kimmel testified as to how the parties split profits and
expenses on certain jobs. The excluded statements and correspondence are also
well after October 2007 and do not contain any admissions by Kimmel that the
parties entered into a partnership in October 2007. Having carefully reviewed the
record, we conclude that the Superior Court’s limitation of Ramunno’s testimony
and exclusion of Kimmel’s April 2010 correspondence does not constitute
reversible error.
(25) With respect to Gillen’s claim that the Superior Court erred in
denying his motion for a new trial, we review the denial of a motion for a new trial
for abuse of discretion.20 “We will find an abuse of discretion ‘if the jury verdict
was against the great weight of evidence, no reasonable jury could have reached
20 Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997).
14 the result, and the denial was untenable and unreasonable.’”21 Gillen seems to
argue that the Superior Court erred in denying his motion for a new trial because it
mistakenly believed that he had not requested preparation of trial transcripts, it did
not give him the opportunity to supplement his motion with citations to the trial
transcripts because the transcripts were not ready until after the Superior Court’s
decision, and the verdict was against the weight of the evidence. To the extent
Gillen claims he is entitled to a new trial based upon the jury instructions and the
evidentiary rulings of the Superior Court, we have already addressed and rejected
those claims.
(26) The only time the Superior Court referred to the lack of trial transcript
citations in its opinion denying the motion for a new trial was in connection with
Gillen’s claim that the Superior Court erroneously limited the testimony of
Ramunno and excluded correspondence written by Kimmel. The Superior Court
reviewed the events leading to its decision to limit Ramunno’s proffered testimony
and concluded that Gillen did not identify any legal error in that decision. Gillen
fails to identify any portions of the trial transcripts that could have led to a different
result on his motion for a new trial. As far as the correspondence that Gillen
contends was erroneously excluded, he could have included that correspondence
21 Estate of Rae v. Murphy, 956 A.2d 1266, 1272 (Del. 2008) (quoting Wilhelm v. Ryan, 903 A.2d 745, 755 (Del. 2006)).
15 with his motion for a new trial but did not do so. Gillen also fails to identify any
portions of the trial transcripts that could have led to a different result on his
motion for a new trial.
(27) Based upon the trial record in this case, a reasonable jury could have
concluded that the parties did not enter into a partnership agreement in October
2007 whereby they agreed to be 50/50 partners in the distribution and installation
of energy saving devices in residential and commercial properties. Gillen has not
shown that the jury’s verdict was against the great weight of the evidence. Thus,
the Superior Court did not err in denying Gillen’s motion for a new trial.
(28) Finally, Gillen argues that the Superior Court erred in awarding the
defendants $2,997.69 in attorneys’ fees and costs. We review an attorney’s fee
award for abuse of discretion.22 After granting the second motion for a
continuance filed by Gillen’s counsel over the objections of the defendants, the
Superior Court ordered Gillen to pay the costs and expenses incurred by the
defendants in responding to the second motion for continuance and preparing
another pretrial stipulation. The Superior Court concluded that Gillen should pay
these costs and expenses because it was his conduct that led to multiple
continuance motions, the rescheduling of trial twice, and the filing of multiple
pretrial stipulations. After trial, the Superior Court awarded the defendants
22 Johnston v. Arbitrium (Cayman Islands) Handels AG, 720 A.2d 542, 546 (Del. 1998).
16 $2,997.69 of the $10,553.69 in attorneys’ fees and costs they incurred in
responding to the second motion for a continuance and preparing another pretrial
stipulation.
(29) On appeal, Gillen claims he should not have to pay the defendants’
fees and costs in connection with his second counsel’s request for a continuance
because counsel accepted the case and should have known he had a conflict on one
of the scheduled trial days. Gillen disregards that his counsel originally requested
a continuance so that he would have more than two weeks to prepare for trial. The
short time frame was a result of Gillen’s previous counsel (who also requested and
received a continuance in order to have additional time to prepare for trial)
withdrawing from the case because Gillen failed to fulfill his obligations to him.
Given that Gillen’s actions resulted in multiple continuance motions, the
rescheduling of trial twice in two months in a case filed more than three years
earlier, and the filing of multiple pretrial stipulations, the Superior Court did not
abuse its discretion in awarding the defendants attorneys’ fees and costs they
incurred in responding to the second motion for a continuance and preparing
another pretrial stipulation.
(30) Nor did the Superior Court err in awarding attorneys’ fees and costs of
$2,997.69. The defendants provided sufficient information concerning their
attorneys’ fees and costs in connection with the second motion for a continuance
17 and the preparation of another pretrial stipulation. Although the defendants
requested $10,553.69 (consisting of $9,556 in attorneys’ fees and $997.69 in
costs), the Superior Court awarded $2,997.69 (consisting of $2,000 in attorneys’
fees and $997.69 in costs). Gillen benefitted from this reduction and has not
shown that the Superior Court abused its discretion in concluding that $2,000 in
attorneys’ fees and $997.69 in costs were reasonable.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Henry duPont Ridgely Justice