In re 244.5 Acres of Land the Vill., L.L.C
In In re 244.5 Acres of Land the Vill., L.L.C., 830 A.2d 845 (Del. Super. Ct. 2003), the plaintiff filed suit seeking a declaratory judgment that it was not required to observe a setback or, alternatively, was entitled to compensation for an unconstitutional taking.
A Delaware trial court granted summary judgment against the plaintiff on both federal and state grounds.
On appeal, the appellate court reversed only as to state grounds and did not decide the federal constitutional claim.
On remand, the plaintiff filed a petition for attorney's fees under section 1988.
The trial court determined that the section 1983 claim fell into the "'pleaded but undecided'" category. Id. at 847.
Applying the three-part test, it determined that the plaintiff could recover attorney's fees under section 1988.