IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STONE CREEK CUSTOM KITCHENS

& DESIGN and JEFF BRAATEN,
-. K16A-01-002 WLW
Appellants, :` Kent County
va

JOSEPH VINCENT and

DANIELLE VINCENT,
Appellees.

Submitted: May 1 6, 20 1 6
Decided: July 20, 2016

ORDER
Upon an Appeal from a Decision of

the Court of Common Pleas.
Ajj‘irmed.

Sean T. O’Kelly, Esquire and Daniel P. Mur'ray, Esquire of O’Kelly Ernst & Bielli,
LLC, Wilrnington, DelaWare; attorneys for Appellants.

Joseph Vincent and Danie1le Vincent, pro se.

WITHAM, R.J.

Stone Creek Custom Kitchens v. Vincent
C.A. No. Kl6A-Ol-()O2 WLW
July 20, 2016

Defendant-below/Appellant Stone Creek Custom Kitchens & Design ("Stone
Creek") appeals a Court of Common Pleas order denying Stone Creek’s motion for
reargument pursuant to Court of Common Pleas Rule 59(e) or, altematively, for relief
from judgment pursuant to Court of Common Pleas Rule 60(b). Plaintiffs-
below/Appellees Joseph and Danielle Vincent ("the Vincents") obtained a default
judgment in a breach of contract action against Stone Creek in Justice of the Peace
Court l6. A motion in the Justice of the Peace Court by Stone Creek to vacate the
default judgment was denied. Stone Creek then filed an appeal with the Court of
Common Pleas, and the Vincents filed a motion to dismiss the Court of Common
Pleas appeal. The Court of Common Pleas issued an order granting the dismissal of
the appeal from the Justice of the Peace Court pursuant to Court of Common Pleas
Rule 72.l(i) for failure to diligently prosecute an appeal. Stone Creek then filed a
motion for reargument or, in the altemative, a motion for relief from judgment in the
Court of Common Pleas. Both motions were denied, and Stone Creek filed an appeal
with this Court. The appeal at bar relates only to the Court of Common Pleas
decision denying Stone Creek’ s motion for reargument and the altemative motion for
relief from judgment. However, because Stone Creek now claims manifest injustice
as far back as the Justice of the Peace Court action, the factual background will
include events taking place since the inception of the action. For the following
reasons, the decision of the Court of Common Pleas denying Stone Creek’s motions
is AFFIRMED.

FACTUAL AND PROCEDURAL BACKGROUND

A careful review of the facts of this case indicate that the parties have created

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Stone Creek Custom Kitchens v. Vincent
C.A. No. Kl6A-01-002 WLW
July 20, 2016

notice from the moment the court granted the motion. Because Rule 59(e) contains
no provisions for the enlargement of time, the court lacked jurisdiction to grant Stone
Creek’s motion for reargument.

The Court of Common Pleas properly denied Stone Creek’s motion
for relief from judgment per Court of Common Pleas Rule 60(b)

Stone Creek’s second issue on appeal is the Court of Common Pleas’ denial of
its motion for relief from judgment pursuant to Court of Common Pleas Civil Rule
60(b). Stone Creek’s motion for relief presented a single argument to the Court of
Common Pleas. Stone Creek argued for relief under Court of Common Pleas Civil
Rule 60(b)(l). Court of Common Pleas Civil Rule 60(b)(l) is similar to Superior
Court Civil Rule 60(b)(l). Both provide relief where judgment was ordered as a
consequence of "mistake, inadvertence, surprise, or excusable neglect."” When
exercising its discretion, Delaware courts pay deference to the policy favoring
disposition of the case on its merits, and generally favor such motions upon almost
any reasonable excuse.“ When considering a motion under Rule 60(b)(l), a court
must first determine whether the conduct of the moving party may be characterized
as the conduct of a reasonably prudent person.” If the court determines that the
moving party’s actions may be so characterized, the court will grant the motion if the

moving party shows (l) the possibility of a meritorious defense, and (2) that the non-

__1_1-1_;- __.»

35 Super. Ct. Civ. R. 60(b)(l); Ct. Com. Pl. Civ. R. 60(b)(l).
36 Keith v. Melvin L. Joseph Const. Co., 451 A.Zd 842, 846 (Del. Super. 1982).
37 Id. (citing Cohen v. Brandywine Raceway Ass ’n, 238 A.2d 320, 325 (Del. Super. 1968)).

ll

Stone Creek Custom Kitchens v. Wncent
C.A. No. KlGA-Ol-OOZ WLW
July 20, 2016

moving party will not suffer substantial prejudice.”

Stone Creek does not clear the first hurdle. The Court of Common Pleas found
that "a reasonably prudent person under the circumstances would have confirmed
service prior to the expiration of the 120 time period, contacted the Court before
allowing several months to pass without service of process and if all else failed, made
inquiries after the Motion to Dismiss the Appeal was filed," and, based on this
assessment, found there was no excusable neglect. This finding was not contrary to
law, was supported by substantial evidence, and was not an abuse of discretion.
Therefore, Stone Creek’s appeal of the Court of Common Pleas decision to deny the
motion to vacate under Rule 60(b) must fail.

Stone Creek has not suffered Manifest Injustice

In its appeal to this Court, Stone Creek now adds a manifest injustice argument
and asks this Court to reverse the Court of Common Pleas, vacate the default
judgment, and remand the case to the Justice of the Peace Court to be heard on the
merits. Manifest injustice would be properly argued under Rule 60(b)(6). Because
this argument was not presented to the Court of Common Pleas, the argument is not
contained in the record. This Court is limited to reviewing the case on the record and
therefore cannot consider the manifest injustice argument on appeal.

Although manifest injustice is not considered here because it was not raised

below, the Court notes that this argument would also fail in any event. The interest

38 Battaglia v. VI/'ilmz`ngton Sav. Fund S0c., 379 A.Zd ll32, 1135 (Del. 1977).

12

Stone Creek Custom Kitchens v. Vincem‘

C.A. No. K16A-01-002 WLW
July 20, 2016

of justice provision is addressed to the sound discretion of the court,” and the
standard for assessing such claims is the "extraordinary circumstance" test as set forth
in federal law."°

Stone Creek claims a "parade of horribles has led to their current position.
They claim, inter alia, that service was improper, orders we not docketed correctly,
submissions were improperly rejected, and extraneous entries by a Court Clerk led
to prejudice. For instance, Stone Creek claims the Vincent’s "lied on their declaration
to the Court regarding service of Stone Creek,"‘“ and that the Vincent’s affidavit of
service in the Justice of the Peace Court "was at best defective, and at worst
fraudulent."‘” As the Magistrate noted in the Justice of the Peace Court order dated
January 26, 20l5, these characterizations were discourteous and inaccurate.‘” The
Vincents supplied receipts showing mailings to Stone Creek and Braaten dated May
7, 2014, with return receipts requested."" They were also able to show that the
envelope delivered to Braaten was refused,“ and that the envelope delivered to Stone
Creek was unclaimed."° Moreover, the Vincents informed counsel for Stone Creek

39 Christina Bd. OfEduc. v. Chapel St., 1995 WL 163509, at *3 (Del. Super. Feb. 9, 1995),
aff d sub nom. Chrysler First Fin. Servs. Corp. v. Porter, 667 A.2d 1318 (Del. 1995) (citing Wife
B v. Husband B, 395 A.2d 358, 359 (Del. 1978)).

40 Ia'. (citing Jewell v. Div. of S0c. Servs., 401 A.2d 88, 91 (Del. 1979)).
‘" Appellant’s Opening Br. at 8.

42 Id. at 14.

43 J.P. Order of Jan. 26, supra note 9, at 2.

44 Appellee’s Answering Br., Ex. 6.

45 Id., Ex. 8.

46161'., EX.13.

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Stone Creek Custom Kitchens v. Vincent
C.A. NO. Kl 6A-Ol-OO2 WLW
July 20, 2016

and Braaten via email that they had attempted to serve Stone Creek, but service was
refused.‘" The Vincents also supplied receipts showing first class mailings to Stone

Creek and Braaten on June 3, 2014.48

Per lO Del. C. 3 l04(h)(2), Delaware’s long arm statute, "the notation of refusal
shall constitute presumptive evidence that the refusal was by the defendant or the
defendant’s agent." Moreover, service of summons upon a domestic or foreign
corporation may be made upon an officer of the corporation."g Thus, service on
Braaten would suffice. Braaten has admitted that service was proper as to him, and
the Justice of the Peace Court found service was also proper as to Stone Creek. Stone
Creek’s claim that service was insufficient because the Vincent’s failed to attach
return receipts, or that Stone Creek was not notified of the service deficiency, are

inapposite. Justice of the Peace Civil Rule 4(g) states that "[f]ailure to make a return

7

or proof of service shall not affect the validity of service.’ There has been no

manifest injustice based on service of process. The Vincents have made diligent

efforts to ensure proper service, and it appears Stone Creek and Braaten have

47 Id., Ex. lO.
‘"‘Id., Ex. ll.

49 J.P. Ct. Civ. R. 4(f) (l) states in pertinent part:
Summons. Service of summons shall be made as follows:
* * >l<

(III) Upon a domestic or foreign corporation or upon a partnership or
unincorporated association which is subject to suit under common name by
delivering copies of the summons, complaint and affidavit, if any, to an officer,
a managing or general agent or to any other agent authorized by law to receive
service of process and if the agent is one authorized by statute to receive service
and the statute so requires, by also mailing a copy to the defendant.

l4

Stone Creek Custorn Kitchens v. Vincent

C.A_ No. 1<16A-01_002 wLw
Juiy 20, 2016

attempted to avoid service by either refusing or not claiming properly mailed
complaints. This is especially true in light of the Vincent’s attempts to inform both
Braaten and counsel for Stone Creek of their continuing attempts at service via email.

Stone Creek also claims to have been prejudiced because "[t]he underlying
action in the Justice of the Peace Court was rampant with technological problems and
clerk error,"$° and there were continuing prejudicial effects from technological errors
in the Court of Common Pleas. However, both courts investigated alleged problems
and took corrective action where needed. The Justice of the Peace Court
acknowledged docketing errors and clerk mistakes and is making changes to ensure
they do not happen in the future. An acknowledged mistake can hardly be considered
prejudicial. The Court of Common Pleas investigated the electronic docket and found
no discrepancies. What is absent from the scenario is any indication that counsel for
Stone Creek took proactive steps to determine if there were problems on their end.
There has been no prejudice or manifest injustice as a result of technological
problems or clerk error.

T he Vincents sufficiently addressed all arguments related to the appeal

In its reply brief, Stone Creek cites Emerald Partners v. Berlin” and Harbor
Finance Partners Ltd. v. Butler” for the proposition that any arguments raised on
appeal but not addressed in the answer are deemed unopposed. Emerald Partners

notes that the appellant had waived any argument it had against the defendant on a

50 Appellee’s Answering Br. at 20.
51 Emerald Partners v. Berlin, 726 A.2d 1215 (Del. l994).
52 Harbor Fin. Partners Ltd. v. Butler, 1998 WL 294011, at *l (Del. Ch. June 3, 1998).~

15

Stone Creek Custom Kitchens v. Vincent
C.A. No. K16A-01-002 WLW
July 20, 2()16

specific issue because that issue had not been raised in the opening brief.” This
proposition was supported by a citation to Murphy v. State which again dealt with the
failure to raise in issue in an opening brief.§" In Butler, the defendant makes an
argument in its opening brief that is not answered by the plaintiff, and the court found
that the plaintiff had thus conceded the point.

Each of these cases can be differentiated from the case at bar. Emerala'
Partners and Murphy addressed opening briefs rather than answering briefs. Failure
to include an issue in an opening brief deprives the opposing party of the opportunity
to address the issue. Butler dealt with issues that were not addressed in an answer at
the trial level.

In the case at bar, Stone Creek deems their argument to vacate the Court of
Common Pleas judgment unopposed because the issue was not addressed by the
Vincents in their answering brief. Both parties have had the opportunity to address
their claims in multiple courts. The motion to vacate is grounded in the numerous
claims of failure to receive notice, whether by failure of service or failure of the
courts to properly docket events. The Vincents’ answering brief contains a time line
of all relevant events and can be fairly read to have addressed all issues in the
opening brief.

CONCLUSION

The seminal issue in this case is service of process when the case was still

53 Emerald Partners, 726 A.2d at 1224.
54 Murphy v. State , 632 A.2d 1150, 1152 (Del. 1993)._

16

Stone Creek Custom Kitchens v. Vincem‘
C.A. N0. Kl6A-01-002 WLW
July 20, 2016

under the jurisdiction of the Justice of the Peace Court. The Court is left with the
impression that the Vincents were diligently trying to prosecute the action while
Stone Creek was diligently trying to avoid service. To be sure, Stone Creek also
blames court clerks and the electronic filing system for their current woes, but those
issues were addressed by each court below and no prejudice accrued to Stone Creek.
lt appears to this Court that Stone Creek has been treated fairly as this action wound
through the various lower courts, and that Stone Creek’s current predicament is self-

inflicted. For the foregoing reasons the decision of the Court of Common Pleas is

AFFIRMED.
IT IS SO ORDERED.
_/s/ William L. Witham, Jr.
Resident Judge
WLW/dmh

17

Stone Creek Custom Kitchens v. Vincent
C.A. N0. Kl6A-01-002 WLW
July 2(), 2016

an unnecessary procedural nightmare. Prior to filing a breach of contract action in
the Justice of the Peace Court, Joseph Vincent attempted to contact both counsel for
Stone Creek and J eff Braaten, owner and president of Stone Creek. In an email dated
April l8, 2014, Joseph Vincent informed counsel for Stone Creek that the Vincents
would be seeking compensation in small claims court. This email was addressed to
counsel for Stone Creek and carbon copied to Braaten.l ln an email dated April 29,
2014, and addressed to both counsel for Stone Creek and Braaten, Danielle Vincent
stated that she was in the process of gathering documentation to file a complaint in
the Justice of the Peace Court and asked counsel to confirm that he still represented
Stone Creek.z Counsel replied to Danielle Vincent with one sentence that neither
confirmed nor denied his representation of Stone Creek, but simply stating only that
he "d[id] not agree to accept service of any Complaint."'°’

On May l, 20l4, the Vincents filed a breach of contract action against Stone
Creek and Braaten in the Justice of the Peace Court. Service was attempted pursuant
to Delaware’s long arm statute. The Vincents mailed the complaint to Stone Creek
and Braaten on May 7, 20l4, return receipt requested." The mailing to Braaten was

refused,$ and the mailing to Stone Creek was unclaimed.6 On June 3, 2014, the

‘ Appellee’s Answering Br., Ex. l.
2 Ia'., EX. Z.

3 Id., Ex. 3.

4 Id., Ex. 6.

5 Ia'., EX. 8.

6 Id., EX. l3.

Stone Creek Custom Kitchens v. Vincent
C.A. No. Kl6A-0l-()02 WLW
July 20, 2016

Vincents mailed the complaint to Braaten and Stone Creek via first class mail.7 Also
on June 3, 2014, the Vincents filed an affidavit of service with the Justice of the
Peace Court, but forgot to attach return receipts or tracking information On June 23,
20l4, the Justice of the Peace Court issued a notice of deficient filing. The notice
stated that there had been no service on Stone Creek and that the Vincents needed to
once again serve that party. On June 27, 2014, the Vincent’s supplemented their
affidavit of service and supplied the missing receipts.g

On July l0, 20 14, the Justice of the Peace Court found that a timely answer had
not been filed and entered a default judgment against Stone Creek and Braaten in the
amount of $6961.15 plus court costs and post judgment interest.9 On July 25, 2014,
Stone Creek timely filed a motion to vacate the default judgment. Stone Creek
argued that service upon them was improper because the Vincents did not attach
return receipts with their affidavit of service.‘° The Justice of the Peace Court noted
that the receipts had been supplied with the supplement to the affidavit on June 27,
2014.

The record indicated that the Vincent’s may have conilated the terms

"unclaimed" and "refused," but in either case, the Vincents followed the initial

 

7 Appellee’s Answen`ng Br., Ex. l l.
8 Appellant’s Opening Br. at 3.

9 Vincent v. Stone Creek Custom Kitchens & Design, JP 1 6-14-0()225 l , at l (Del. J.P. Jan. 26,
201 5) [hereinafcer J.P. Order of Jan. 26].

10 Vincent v. Stone Creek Custom Kitchens & Design, JP l 6-14-00225 l , at 2 (Del. J.P. Aug.
29, 20l4) [hereinafter J.P. Order of Aug. 29] .

Stone Creek Custom Kitchens v. Vincent
C.A. No. Kl6A-()l-()02 WLW
July 20, 2016

mailings with a first class mailing as required by statute when mailed is unclaimed.11
In an order dated August 29, 2()14, the Justice of the Peace Court found that Braaten
and Stone Creek had been properly served. The court noted that the Vincents had
been assisted by a court clerk, but seemed confused as to which documents needed
to be attached to the affidavit. "Between the original service documents produced by
the plaintiffs at the August 29 hearing and the original documents held by the court
clerk and scanned into the [Justice of the Peace] Court’s electronic case management
system, the [Justice of the Peace] Court found that service upon Stone Creek was
valid under Delaware’s long-arrn statute."12 The court also dismissed Braaten as a
individual in the action, and denied Stone Creek’s motion to vacate the default
judgment.13 Although not discussed in any order, it should be noted that Stone Creek
was a corporate entity,“ Braaten was president of the corporation," and at the August
29 hearing, Braaten admitted that service upon him had been effective.“"

Also at the August 29 hearing, Stone Creek requested an extension of time to

file an amended motion regarding additional grounds for the motion to vacate

11 Ia’. at 2.
12 J.P. Order of Jan 26, supra note 9, at l n.l.

13 J.P. Ora’er of Aug. 29, supra note l0, at l. Defense counsel moved to have Braaten
removed from the suit as an individual. The Vincents explained that they had served Braaten with
the purpose of ensuring that they obtained service over the company, but were unsure how to
proceed. The Vincents did not oppose the motion to dismiss the action against Braaten as an

individual.
14 Appellant’ s Opening Br. at 6 ("[B]ecause no corporate veil piercing facts or law were pled,
the parties agreed that defendant Braaten should be dismissed from the action.").
15 Id. at 16 (noting Braaten was not only president of his company, but also a laborer).

16 J.P. Ora'er of Aug. 29, supra note lO, at l.

5

Stone Creek Custom Kitchens v. Vincent
C.A. No. Kl6A-01-002 WLW

Juiy 20, 2016

judgment. The Vincents did not object, and the extension of time was granted. Stone
Creek was allowed until September 19 to file the brief. The brief was filed by Stone
Creek on September l 9, but was rejected by the clerk because a default judgment had
already been entered. The incident was investigated by the Court Manager and it was
found that the brief had been rejected in error. The court noted that it was satisfied
with the Case Manager’s investigation and ruled that the brief had been timely
submitted."

Despite the Justice of the Peace Court’s previous finding, Stone Creek once
again argued that service of process was improper.‘g Stone Creek also argued that the
court did not serve proper notice when the Vincents were notified of the deficient
filing for not including the return receipts, and that the Vincent’s did not serve notice
of the request for default judgment. ln its January 26, 2015 order, the Justice of the
Peace Court noted that court instructions do not require that a deficient filing notice

or a request for default judgment be served on the opposing party.lg The court found

17 Vincent v. Stone Creek Custom Kitchens &Design, JPl6-l4-00225l, at l (Del. J.P. Sept.
25, 2014).

18 J.P. Ora'er of Jan. 26, supra note 9, at 2.

19 Id. at 3. The court noted that arguably these documents should be served in the same
marmer of other notices pursuant to J.P. Ct. Civ. R. 5, but Rule 5 contains an exception for default
judg1nents. Rule 5(a) states:

Service: When required. Except as otherwise provided in these Rules, every pleading

subsequent to the original complaint, . . . every paper relating to discovery required

to be served upon a party unless the Court otherwise orders, every written motion

other than one which may be heard ex parte, and every written notice, appearance,

demand, offer of judgrnent, and similar paper shall be served upon each of the parties

by the filing party. Every order required by its terms to be served shall be served upon

each of the parties by the Court. N0 service need be made on parties in default for

6

Stone Creek Custom Kitchens v. Vincerzt
C.A. No. Kl6A-01-002 WLW
July 20, 2016

there was no excusable neglect on the part of Stone Creek, that there were no
misrepresentations by the Vincents, and that no extraordinary circumstances
warranted vacating the default judgment. The motion to vacate the default judgment
was denied.z°

On February l0, 20l5, Stone Creek appealed the Justice of the Peace Court
decision to the Court of Common Pleas. The appeal was rejected due to a clerical
error, but the court allowed the appeal nunc pro tunc.zl The appeal to the Court of
Common Pleas was limited to the Justice of the Peace Court’ s denial of Stone Creek’ s
motion to vacate.” Service notifying the Vincents of the appeal was required to be
made within 120 days.” Stone Creek filed a praecipe and requested service by
Sheriff, but service was either not returned by the Sheriff, or the return was not
docketed. However, on April 22, 201 5, the Vincents learned of the appeal through
contact with the Justice of the Peace Court. Upon leaming of the appeal, the Vincents
contacted Stone Creek regarding lack of service and filed a motion in the Court of

Common Pleas to dismiss the appeal.

failure to appear except that pleadings asserting new or additional claims for relief
against them shall be served upon them in the manner provided for service of
summons in Rule 4 (emphasis added).

20 Ia'. at 4.

21 Stone Creek Custom Kitchens & Desigrz v. Vincent, CPU5-l 5-000l4l , at l (Del. Com. Pl.
Oct. 19, 2015).

22 See Ney v. Polite, 399 A.Zd 527, 529 (Del. 1979) (" However, we note that the appeal
permits only review of the magistrate’s order denying relief and not of the nonsuit and default

judgments themselves.").
23 Ct. Com. Pl. Civ. R. 4(]`).

Stone Creek Custom Kitchens v. Vincent
C.A. N0. Kl6A-Ol-0()2 WLW
July 20, 2016

Stone Creek failed to file a response to the motion to dismiss claiming to have
never received a copy of the motion, but the Court of Common Pleas conducted an
investigation of the electronic docket and found that Stone Creek had been notified
electronically by the court.z" The Court Clerk contacted both sides to schedule a
hearing on the motion to dismiss for October l9, 20l5. At the hearing, counsel for
Stone Creek claimed his electronic filing account had never received notices
regarding the case. The court noted that eight months had passed since the filing of
the appeal, and counsel had done nothing to verify a possible problem with its
electronic filing account, had failed to take action when contacted by the Court Clerk
to schedule the hearing on the motion to dismiss, and failed to serve the Vincents
once it became clear that the Vincents had not been served. The court dismissed the
appeal for failure to diligently prosecute under Court of Common Pleas Civil Rule
72. l(i).”

On October 30, 20l5, Stone Creek filed a motion for reargument, or
alternatively, a motion for relief from judgment. The motion for reargument was

denied for non-compliance with Court of Common Pleas Civil Rule 59(e).26 This

24 Vincent, CPU5-l5-00Ol4l, at 3.

25 Ct. Com. Pl. Civ. R. 72.l(i) states in pertinent part:
The Court may order an appeal dismissed, sua sponte, or upon a motion to
dismiss by any party. Dismissal may be ordered for untimely filing of an appeal,
for appealing an unappealable, interlocutory order, for failure of a party diligently
to prosecute the appeal, for failure to comply with any rule, statute, or order of
the Court or for any other reason deemed by the Court to be appropriate.

26 Ct. Com. Pl. Civ. R. 59(e) states "[a] motion for reargument shall be served and filed
within 5 days after the filing of the Court’s opinion or decision. The motion shall briefly and
distinctly state the grounds therefor."

Stone Creek Custom Kitchens v. Vincent
C.A. No. Kl6A-0l-O02 WLW
July 20, 2016

time limitation is jurisdictional and thus prevents the court from granting additional
time.”

The Court of Common Pleas denied Stone Creek’s motion for relief from
judgment pursuant to Rule 60(b). The court noted that Stone Creek was again
blaming the court and its electronic filing system for its failure to properly prosecute
the appeal. The court held there was no excusable neglect because Stone Creek failed
to confirm service or make inquiries regarding the motion to dismiss, and denied
Stone Creek’s motion for reargument.zg On January 20, 2016, Stone Creek filed the
appeal at bar.

STANDARD OF REVIEW

An appeal from the Court of Common Pleas "shall be reviewed on the record
and shall not be tried de novo."” This Court’s function is to correct errors of law and
determine whether the factual findings of the Court of Common Pleas "are
sufficiently supported by the record and are the product of an orderly and logical
deductive process."""° The decision to relieve a party from a final judgment or order
is at the sound discretion of the court and is reviewed under an "abuse of discretion"

standard.” "An abuse of discretion arises when a court exceeds the bounds of reason

in light of the circumstances or so ignores recognized rules of law or practice as to

27 See Strong v. Wells Fargo Bank, 2013 WL 1228028, at *l (Del. Super. Jan. 3, 2013).
28 Vincent, CPU5-l5-0OOl4l, at 3.

29 10 Del. C. § l326(c).

30 State v. Anderson, 2010 WL 4513029, at *4 (Del. Super. Nov. l, 2010).

31 Am. Spirit Fed. Credit Union v. Speedy Key Lock & Tow Servs., 2016 WL 399231, at *2-3
(Del. Super. Jan. 29, 2016).

Stone Creek Custom Kitchens v. Vincent
C.A. No. Kl6A-0l-002 WLW
July 20, 2016

produce injustice."”
DISCUSSION
The Court of Common Pleas properly denied Stone Creek’s motion
for reargument per Court of Common Pleas Rule 59(€)

The question on appeal is whether the Court of Common Pleas properly denied
Stone Creek’s motions for reargument and relief from judgment. The appeal on the
first motion may be disposed of with little analysis. Just as in the Superior Court, the
Court of Common Pleas Civil Rules make the time limit for filing a motion for
reargument jurisdictional. A motion for reargument is filed pursuant to Rule 59(e).
This rule requires that "[a] motion for reargument shall be served and filed within 5
days after the filing of the Court’s opinion or decision."” Rule 6 allows the court to
grant an enlargement of time in certain circumstances, but specifically states that the
court "may not extend the time for taking any action under Rules 50(b), 59(b), (d) and
(e), 60(b), except to the extent and under the conditions stated in them."“

Counsel for Stone Creek claims notice of the Court of Common Pleas’ order
granting the Vincent’s motion to dismiss was not received until October 28, 2015,
and the motion for reargument, which was filed on October 30, 2015, should
therefore be considered timely. However, Stone Creek’s motion for reargument to
the Court of Common Pleas noted that the court granted the motion to dismiss at the

October l9, 2015 , hearing. Stone Creek attended the hearing, and therefore was on

32 Anderson, 2010 WL 4513029, at *4.
33 Ct. Com. Pl. Civ. R. 59(e).
34 Ct. Com. Pl. Civ. R. 6(b).

l0

