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Court Of Chancery Denies Post-Affirmance Request To Increase Fee Award

The Marilyn Abrams Living Trust v. Pope Investments LLC, C.A. No. 12829-VCL (Del. Ch. May 29, 2018)

When a party wins an attorneys’ fee award under the bad faith exception to the American Rule, and the final award is affirmed on appeal, may it also seek fees for successfully defending the appeal back in the trial court?  May the same party seek to increase the original award back in the trial court when it inadvertently omitted some trial-court fees the first time around?

As a matter of first impression in Delaware, this decision holds “no.”  A party that secured its trial-court fees under the bad faith exception cannot also recover its appellate fees if it does not ask for them on appeal and waits until it is back before the trial court.  The trial court lacks authority to award fees at that point, absent direction by the Delaware Supreme Court to consider such a request.  That same party also cannot seek to increase its trial-court fees based on its own prior miscalculation.  It’s too late for that as well.