A pair of decisions by the Delaware Court of Chancery and the Delaware Supreme Court have clarified the time to seek an award of attorney fees for successfully defending against an alleged frivolous appeal. In The Marilyn Abrams Living Trust v. Pope Investments, C.A. No. 12829-VCL (Del. Ch. May 29, 2018), Vice Chancellor J. Travis Laster held that when the trial court has awarded a party expenses under the bad-faith exception to the American Rule, and that party successfully defends the trial court’s ruling on appeal, the trial court lacks authority after the appeal to award the expenses that the party incurred defending the appeal. In a subsequent decision, Pope Investments v. The Marilyn Abrams Living Trust, No. 259, 2017 (Del. July 18, 2018), the Supreme Court held that it had no jurisdiction to consider the party’s motion for attorney fees after the mandate had issued and the case was closed.

The Marilyn Abrams Living Trust sought books and records from the defendants. The trust made multiple requests for the information, but the defendants denied each one. The trust filed suit and prevailed at trial. Laster also awarded the trust its attorney fees and expenses under the bad-faith exception to the American Rule. The defendants appealed, and the Supreme Court affirmed the judgment of the Court of Chancery. The mandate then issued and the case was closed in the Supreme Court.