IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

LARRY B. WISE,

Defendant-below/Appellant,

)
)
)
)
)
v. ) CA. No. CPU4-14-000699
)
G—Town Partners, LP, )

)

)

)

Plaintiff-below/Appellee.

Submitted: December 19, 2014
Decided: January 20, 2015
Revised: January 21, 2015

Larry B. Wise Michaei P. Morton, Esquire
828 N. Monroe Street 3704 Kennett Pike, Suite 200
Wilmington, DE 19801 Greenville, DE 19807
Appellant; pro se Coumelfor Appellee

DECISION 0N APPELLANT’S MOTION FOR
DEFAULT JUDGMENT AND APPELLEE’S MOTION TO
DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

RENNIE, J.

PROCEDURAL BACKGROUND

This is an appeal from a March 1 i, 2014 Justice of the Peace Courtjudgmcnt order ﬁnding in
favor of Plaintiff-below/Appellee, G—Town Partners, LP (“G-Town”) in the amount of $1,990.00,
plus post—judgment interest and costs. The case was initiated as a summary possession action, but
proceeded to trial as a debt action. Defendant—below/Appeilant Larry B. Wise (“Wise”) ﬁled an
appeal to the Court of Common Pleas on March 21, 2014. GeTOWn failed to ﬁle the Complaint on
appeal. On November 14, 2014, Wise ﬁled a motion for default judgment. G~Town retained legal
counsel and ﬁled a response to the motion for defaultjudgment, and also filed a motion to dismiss for
lack of subject matterjurisdiction. The Court heard the motions on December 19, 2014, and reserved
decision. This is the Court’s opinion on the relief sought by the parties.

FACTS

The Justice of the Peace Court issued its decision on March 11, 2014. Notably, even though
the case began as a summary possession action, the Court noted in its order that “[t]he matter went
forward as a debt action.” As a result, Wise ﬂied an appeal with this Court on March 21, 2014, within
the ﬁfteen-day deadline for appeals to this Court. On March 24, 2014, the Court of Common Pleas
Clerk’s office notified Wise that his appeal was incomplete, and that he had until March 3], 2014 to
cure the deﬁciencies.i Wise cured the deﬁciencies by March 31, 2014. On April 2, 2014, service of
the appeal was perfected upon G-Town; however, G-Town faiied to ﬁle its Compliant on appeal as
required by Court of Common Pleas Civil Ruie 72.3(b).2 As a result, on November 14, 2014, Wise
moved for defaultjudgment.

On December 17, 2014, G—Town filed a response to the motion for default judgment, and

also moved to dismiss the appeal for lack of subject matter jurisdiction. In its motion, G-Town

] The notice states that Wise’s appeal was deﬁcient for his failure to (1) file the notice of appeal at the justice of the
Peace Court; (2) pay the ﬁling fee of $135.00 in the Court of Common Pleas; and (3) pay the $30.00 service fee to

the Sherriff of New Castle County.
2 The docket reflects that no other action was taken in this case until Wise ﬁled the instant Motion for Default

Judgment.

contends that, because the case began as a summary possession suit, Wise’s only option on appeal
was to appeal to a three-judge panel in the Justice of the Peace Court within the ﬁve day window
allowed by 25 Del. C. §5717.3 G—Town argues that the Court of Common Pleas cannot exercise
jurisdiction because this case began as a summary possession action. Thus, G-Town seeks dismissal
of the appeal for lack of subject matter jurisdiction. G—Town also argues that Wise’s appeal to this
Court was untimely because his notice of appeal was incomplete, and his later curing of the
deﬁciencies fell beyond the ﬁfteen day deadiine for appeals to the Court of Common Pleas.
DISCUSSION

The Court is called upon to determine two issues: (1) whether it shouid grant G—Town’s
motion to dismiss for lack of subject matter jurisdiction, and (2) whether it should grant Wise’s
motion for default judgment for failure by G-Town to ﬁle the compiaint on appeal.

A. G-TOWN’S MOTION TO DISMISS

G-Town makes two arguments in support of its motion to dismiss for lack of subject matter
jurisdiction. First, G-Town contends that Wise should not have appealed the Justice of the Peace
Court ruling to the Court of Common Pleas because it originated as a summary possession action.
This argument fails because the Justice of the Peace Court, in its written ruling on the case, stated
that “the tenant vacated; possession is no longer at issue. The matter went forward as a debt action.”4
In Justice of the Peace Court cases when summary possession is no longer at issue at the time of trial,
and the action proceeds as a debt action, appeals should be made to the Court of Common Pleas. This

practice is consistent with established Delaware precedent which states that appeals from Justice of

3 Under 25 Del. C. §5717, when a party appeals from a summary possession action the appeal is directed to a panei
of three Justices of the Peace. Capano Investments v. Leveabei‘g, 564 A.2d 1130, 113i (Del. 1989). To the contrary,
debt and other matters ancillary to summary possession are appealed to the Court of Common Pleas. 10 Del. C. §

9571.
4 See Notice of Judgment by Argument (Justice of the Peace Court No. 13, Mar. 1 1, 2014).

3

the Peace Courts of matters ancillary to summary possession are within the jurisdiction of the Court
of Common Pleas.5 Thus, Wise properly ﬁled his appeal ofthe debt action to this Court.

Second, G—Town argues that even if the appeal was properly ﬁled in the Court of Common
Pleas, the appeal is untimely. G—Town acknowledges that Wise ﬁled the notice of appeal within the
ﬁfteen—day deadline for appeals to this court. However, because Wise was required to cure certain
deﬁciencies with the appeal which were not completed until after the ﬁfteen~day deadline, G-Town
asserts that the appeal is untimely. In other words, G—Town takes the position that the clock for the
ﬁfteen-day deadline to ﬁle an appeal continues to run even after a notice of appeal is ﬁled and does
not end until all actions incident to the ﬁling of the notice of appeal are completed. Thus, according
to G—Town, even if all deﬁciencies are cured, they must be cured within the original ﬁfteen-day
deadline for appeals, notwithstanding the deadline set forth in the Clerk of Court’s notice of
incomplete appeal. This argument fails.

it is well established that the timely ﬁling of a notice of appeal is the operative action to

confer jurisdiction on an appellate court.6 To the extent that there are any deﬁciencies, a notice of
incomplete appeal is sent to the appellant with a deadline to cure the defect. For example, in Porter
and D&S Catering, LLC v. Doherty & Associates, Inc, this Court held that the defendant~

below/appellant’s ﬁling of an incomplete notice of appeal that was cured within the ten days
speciﬁed in the notice of incomplete appeal issued by the clerk’s office conferred jurisdiction on the

Court? Thus, as long as the defect is cured within the timeframe outlined in the notice of incomplete

appeal, the appeal will be deemed effective and timely.

There is no dispute that Wise ﬁled a notice of appeal in the Court of Common Pleas within

the ﬁfteen-day deadline required by statute. Wise, however, failed to pay the requisite fees on appeal

5 Bomba's Restaurant & Cocktail Lounge, Inc. 1). Lord De La War-r Hotel, Inc, 389 A.2d 766 (Del. 1978).

6 Preston v. 39'. oanjiustnient ofNew Castle County, 772 A.2d 787, 791 (Del. 2001)(“the ﬁling of a notice of appeal
within the prescribed period confers jurisdiction on the appellate court, which will not dismiss the appeal fora defect
that does not result in a substantial prejudice to a party in interest”).

7 2014 WL 6804723, at *2 (Del. Com. P]. Oct. 15, 2014).

4

and failed to ﬁle the notice of appeal with the Justice of the Peace Court. As a result, the Clerk’s
ofﬁce for the Court of Common Pleas sent a notice to Wise informing him that his appeal was
incomplete, and that unless he cured the defects within ten days of the “clock min date” of March 21,
20l4, the appeal would be dismissed without further notice. Wise cured the defects on March 31,
2014 M the last day to do so.

Therefore, because Wise’s notice of appeal was filed within the fifteen-day deadline for
appeals to the Court of Common ﬂeas, and he cured all deficiencies outlined in the notice of
incomplete appeal within the prescribed deadline, his appeal is timely. Accordingly, G-Town’s
Motion to Dismiss is DENIED.

B. WISE’S MOTION FOR DEFAULT JUDGMENT

Wise seeks default judgment for G-Town’s failure to file the complaint on appeal.8 Court of
Common Pleas Civil Rule 55(b)(2) sets forth the standard for motions for default judgment, and
provides that “when a party against whom a judgment for afﬁrmative relief is sought, has failed to

appear, plead or otherwise defend as provided by these Rules... judgment by default may be entered

by... the Court.”9

In response to Wise’s motion, G—Town states that although it failed to file the complaint on
appeal as required, if its motion to dismiss is denied, it will ﬁle the complaint on appeal within the
time directed by the Court. G—Town’s failure to file the complaint on appeal does not deprive the
Court of jurisdiction.'0 The Court notes that G-"i‘own hired counsel and has appeared in this
proceeding, albeit late, to defend against Wise’s motion. Moreover, Wise has not argued or
demonstrated that he will suffer any undue prejudice if the case is allowed to proceed on the merits.
8 Court of Common Pleas Civil Rule 72.3(b) reads in relevant part: “. . .When the Appellee is the party having the
duty of ﬁling the complaint or other ﬁrst pleading on appeal, the Appellee shall serve a copy of such pleading within

twenty days after service of the process on appeal...”

9 CC? Civ. R. 55(b)(2).
m Stoltz Management of Delaware, Inc. v. Justice ofthe Peace Court ofﬂre Stare QfDelawnre, 2001 WL 1557486,

at *1 (Del. Com. Pi. Jan. 25, 2001) (quoting PNC Bank, Delaware v. Hudson, 687 A.2d 9i5 (Del. 1997).

In this instance, the Court will exercise its discretion and allow G-Town to ﬁle the complaint on
appeal within ﬁve days of this opinion. H Accordingiy, Wise’s motion for default judgment is
DENIED.

CONCLUSION
For the foregoing reasons, Wise’s Motion for Default Judgment is DENIED. G—TOWn’s

Motion to Dismiss for lack of subject matter jurisdiction is DENIED. G~T0wn is ordered to ﬁle the

complaint on appeal within ﬁve days ofthis opinion.

     

IT IS SO ORDERED this 21Si day of January, 2015.

     

    

_' «m 7
The Honrable Sheldon K. Ren 'e,

\

” This Court’s ruling is consistent with Delaware's strong judicial policy of deciding cases on the merits and giving
parties to litigation their day in court.

