         IN THE SUPREME COURT OF THE STATE OF DELAWARE

IN THE MATTER OF THE PETITION §
OF DEBRA AND WILLIAM BENNETT § No. 225, 2017
FOR A WRIT OF MANDAMUS        §

                                Submitted: June 21, 2017
                                Decided: July 26, 2017

Before VALIHURA, SEITZ, and TRAYNOR, Justices.

                                      ORDER

      This 26th day of July 2017, upon consideration of the petition of Debra and

William Bennett for an extraordinary writ of mandamus and the responses thereto,

it appears to the Court that:

      (1)    The Bennetts seek to invoke the original jurisdiction of this Court to

issue an extraordinary writ of mandamus directing the Superior Court to: (i)

resolve undecided issues of fact and law pending in Bennett v. The Plantations

East Condominium Ass’n, C.A. No. S10C-08-006 (“the Plantations East Action”);

and (ii) enter a “full and final judgment” in the case. We conclude that the petition

fails to invoke the Court’s original jurisdiction. Thus, we dismiss.

      (2)    The record reflects that the Bennetts filed a complaint in 2009 in the

Court of Chancery against their condominium association, The Plantations East

Condominium Association, and the condominium manager, Wilgus Associates

(collectively, “the Association”), allegedly seeking to enforce a deed restriction.

After the Court of Chancery dismissed the complaint for lack of subject matter
jurisdiction, the complaint was transferred to the Superior Court and the Bennetts

added Philadelphia Indemnity Insurance Company (“PIIC”), the Association’s

insurance carrier, as a defendant.

       (3)     On October 3, 2011, the Superior Court granted summary judgment in

favor of the Association and entered the order as a final judgment under Superior

Court Civil Rule 54(b).1 The Bennetts filed a notice of appeal on October 21, 2011

in No. 563, 2011. In December 2011, the Bennetts’ remaining claims against PIIC

were consolidated with a companion action that the Bennetts had filed against their

own insurance carrier, USAA Casualty Insurance Company (“USAA”) in Superior

Court C.A. No. S10C-02-010 (“the USAA Action”). After the appeal was briefed

and argued, this Court concluded that there were interrelated and undecided issues

of law and fact in the case against PIIC that needed to be resolved before the Court

could consider the claims against the Association. The Court dismissed the appeal,

finding that the entry of judgment under Rule 54(b) was improvidently granted

because there were just reasons for delay.2

       (4)     On February 15, 2013, the Superior Court granted summary judgment

to PIIC in the USAA Action. The Bennetts filed a motion for clarification on

March 6, 2013, requesting the Superior Court to clarify whether summary

1
  Del. Super. Civ. R. Proc. 54(b) allows the Superior Court to direct the entry of a final judgment
upon one or more, but fewer than all, of the claims in a pending action upon an express
determination that there is no just reason for delay.
2
  Bennett v. Plantations East Condo. Assn., 2012 WL 1410270 (Del. Apr. 23, 2012).

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judgment in PIIC’s favor in the USAA Action constituted the final judgment in the

Plantations East Action. The Superior Court granted the Bennetts’ motion for

clarification and, on April 19, 2013, directed the entry of a final judgment in PIIC’s

favor under Rule 54(b). Although the order was only docketed in the USAA

Action, it is clear from the parties’ filings that the Rule 54(b) judgment in PIIC’s

favor was the final judgment in the Plantations East Action. The Bennetts did not

appeal that final judgment.

         (5)     Instead, nearly four years later, on March 30, 2017, the Bennetts filed

a request for a scheduling conference in the Plantations East Action. The Superior

Court denied the Bennetts’ request, finding that there was nothing left open in the

case to resolve. The Bennetts moved for reargument, which the Superior Court

denied. The Bennetts then filed this petition for a writ of mandamus.

         (6)     This Court has authority to issue a writ of mandamus when the

petitioner can demonstrate a clear right to the performance of a duty, no other

adequate remedy is available, and the trial court arbitrarily failed or refused to

perform its duty.3         When invoking this Court’s original jurisdiction to issue

extraordinary relief, the burden is upon the petitioner to establish clear entitlement

to that relief and that no other adequate remedy is available.4



3
    In re Bordley, 545 A.2d 619, 620 (Del. 1988).
4
    In re Wittrock, 649 A.2d 1053, 1054 (Del. 1994).

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         (7)    The Bennetts have failed to carry their burden in this case. The

Bennetts could have appealed the summary judgment rulings in favor of the

Association and PIIC when the Superior Court entered its final judgment under

Rule 54(b) on April 19, 2013 in the companion USAA Action. The Bennetts

requested and received clarification that the April 19, 2013 order was the final

judgment in the Plantations East Action.              Although the April 19, 2013 final

judgment mistakenly was not docketed in the Plantations East Action, the Bennetts

cannot rely upon that oversight to now attempt to appeal a judgment that is more

than four years old. A writ of mandamus is not a substitute for a timely appeal.5

         NOW, THEREFORE, IT IS ORDERED that the petition for a writ of

mandamus is DISMISSED.

                                             BY THE COURT:

                                             /s/ Collins J. Seitz, Jr.
                                                    Justice




5
    In re Noble, 2014 WL 5823030, *1 (Del. Nov. 6, 2014).

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