Margolis Edelstein v. Kirschner

• Court: Superior Court of Delaware
• Decided: January 29, 2026
• Docket: N24C-09-018 FJJ
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MARGOLIS EDELSTEIN, ) a Pennsylvania Partnership, ) ) Plaintiff, ) v. ) C.A. No. N25C-09-018 FJJ ) GENE KIRSCHNER and ) GARY JEFFERSON, ) ) Defendants. )

ORDER on Plaintiff’s Motion to Dismiss Defendants’ Counterclaim

DENIED

Having considered Plaintiff’s Motion to Dismiss Defendants’ Counterclaim

and the response thereto, it appears to the Court that:

1. Plaintiff is a law firm. Plaintiff represented Gene Kirchner and Gary

Jefferson (collectively referred to as “Defendants”) in an action in this Court

captioned Mid Atlantic Sport and Hospitality, LLC v. Kirchner and

Jefferson, (this suit will be referred to as the “MASH” suit). The MASH

suit resolved when the instant defendants agreed that a Stipulated Judgment

against them would be entered in favor of the plaintiff in the MASH suit.

The stipulated judgment was for $289,450 plus interest at a rate of 5% per

month.

1 2. Plaintiff alleges that the defendants failed to pay their final legal bill

in the amount of $4,399.35 and have filed the instant suit to collect at least

that amount.

3. Defendants have filed a counterclaim in which they allege “Plaintiff

committed malpractice by recommending that Defendants settle the dispute

with MASH by stipulating to a judgment in favor of MASH in an excessive

amount with interest that was to accrue at an outlandish effective rate of

sixty percent (60%) per annum.” 1

4. Plaintiff has moved to dismiss Defendants’ counterclaim for the

following reasons: (a) the Counterclaim meets essentially none of the

required prima facie elements for a legal malpractice claim; (b) its lists no

facts to show why Defendants would win the ‘case within a case;’ (c) Rule

11 governed the parties submissions to Judge Butler and allowed him to

enter it; and (d) judicial estoppel bars the claim.2

5. When reviewing a Motion to Dismiss under Superior Court Rule

12(b)(6), the Court (1) accepts all well-plead factual allegations as true, (2)

accepts even vague allegations as well-plead if they give the opposing party

notice of the claim, (3) draws all reasonable inferences in favor of the non-

moving party, and (4) only dismisses a case where the plaintiff would not

1 Docket Item (“D.I.”) 10, ¶55. 2 D.I. 12.

2 be entitled to recover under any reasonably conceivable set of

circumstances.3 “Dismissal is warranted where the plaintiff has failed to

plead facts supporting an element of the claim, or that under no reasonable

interpretation of the facts alleged could the complaint state a claim for which

relief might be granted.” 4

6. Plaintiff maintains that Defendant must plead facts demonstrating

how they will win the ‘case within a case.’ Not so. Dismissal is warranted

under Rule 12(b)(6) only where under no reasonable interpretation of the

facts alleged could the counterclaim state a claim for which relief might be

granted. The complaint clearly alleges the substance of the malpractice

claim. At this stage of the proceedings, Plaintiff is not required to plead the

‘case within the case.’ Nor are defendants required to plea the identity of

an expert or that one has been consulted. That is a matter for summary

judgment not for a motion to dismiss. What has been pled puts plaintiff on

notice of the claims against it.

7. Plaintiff maintains that the filing of the Stipulated Judgment bars the

counterclaim for malpractice based on the doctrine of judicial estoppel.

“Judicial estoppel is an extraordinary, discretionary, (and) equitable remedy

3 Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings, 27 A.3d 531, 535 (Del. 2011). 4 Wyoming Concrete Indus., Inc. v. Hickory Commons, LLC II, 2007 WL 53805, at *1 (Del. Super. Ct. Jan. 8, 2007) (citing Hedenberg v. Raber, 2004 WL 2191164, at *1 (Del. Super. Ct. Aug. 20, 2004)).

3 that acts to preclude a party from asserting a position inconsistent with a

position previously taken in the same or earlier legal proceeding … to

protect the integrity of the judicial proceedings.”5 “As the Delaware

Supreme Court has explained, judicial estoppel applies only where (1) a

party’s current position contradicts a position that the party previously took;

and (2) the party ‘successfully induced’ a court to adopt its earlier position

in a judicial ruling or accept that position as a basis for its ruling.”6 “The

party’s prior position will be considered a basis for the court’s ruling where

(i) the prior position contributed to the court’s decision; (ii) the court relied

on the party’s prior position; or (iii) the party’s newly inconsistent position

contradicts the court’s ruling.”7 Nothing in the Stipulated Judgment is

inconsistent with the defendants’ allegations that the plaintiff committed

legal malpractice. The fact that the defendants agreed to the stipulated

judgment could very well have been based on incorrect advice given by

counsel. For these same reasons, Plaintiff’s reliance on Superior Court Rule

11 for dismissal is equally misplaced.

5 Chandler v. Bayhealth Medical Center, Inc., 2024 WL 4977010 (Del. Super. 2024) (internal citations and quotation marks omitted). 6 Id. (citing La Grange Cmtys., LLC v. Cornell Glasgow, LLC, 74 A.3d 653, 2013 WL 4816813, at *4 (Del. Sept. 9, 2013)). 7 Id. (citing In re Rural/Metro Corp. S'holders Litig., 102 A.3d 205, 247 (Del. Ch. 2014)) (internal citations and

quotation marks omitted).

4 For the above stated reasons, Plaintiff’s Motion to Dismiss the Counterclaim

be and hereby is DENIED.

IT IS SO ORDERED this 29th day of January, 2026.

/s/ Francis J. Jones, Jr. Francis J. Jones, Jr., Judge

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