        IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARY SUE DIFEBO,                 §
                                 §          No. 208, 2015
    Petitioner Below-Appellant,  §
                                 §          Court Below: Superior Court
    v.                           §          of the State of Delaware
                                 §
BOARD OF ADJUSTMENT OF NEW §                C.A. No. N14A-11-006
CASTLE COUNTY, RICHARD           §
PAVERD, BRIDGET PAVERD,          §
BRUCE OSBORNE, CYNTHIA           §
OSBORNE, and RAMESH BATTA,       §
                                 §
    Respondents Below-Appellees. §

                          Submitted: January 13, 2016
                          Decided:   January 25, 2016
                          Revised:   January 28, 2016

Before STRINE, Chief Justice; HOLLAND and VAUGHN, Justices.

Upon appeal from the Superior Court. AFFIRMED.

Lisa C. McLaughlin, Esquire, Stephen A. Spence, Esquire, Phillips, Goldman &
Spence, P.A., Wilmington, Delaware, for Appellant.

Wilson B. Davis, Esquire, Darryl A. Parson, Esquire, New Castle County Law
Department, New Castle, Delaware, for Appellee Board of Adjustment of New
Castle County.

Richard L. Abbott, Esquire, Abbott Law Firm, LLC, Hockessin, Delaware, for
Appellees Richard Paverd, Bridget Paverd, Bruce Osborne, Cynthia Osborne, and
Ramesh Batta.

STRINE, Chief Justice:
                                 I.         INTRODUCTION

       In this appeal, Mary Sue DiFebo, a petitioner for a writ of certiorari, argues

that the Superior Court erred by dismissing her amended petition seeking review of

a Board of Adjustment decision that granted a variance application for two land

plots located near DiFebo‟s home to be subdivided into four flag lots.                       The

Superior Court had two related reasons for dismissing the amended petition. First,

that DiFebo had not named the owners of the two properties that were the subject

of the Board‟s proceeding within the thirty-day statute of limitations for

commencing a petition challenging a Board decision set forth in 9 Del. C.

§ 1314(a),1 and for that reason alone she was foreclosed from proceeding.

Alternatively, the Superior Court found that DiFebo had not met the requirements

for relation back under Superior Court Civil Rule 15(c)(3).2

                                      II.     ANALYSIS

       We review the Superior Court‟s grant of a motion to dismiss de novo.3



1
  DiFebo v. Bd. of Adjustment of New Castle Cty., 2015 WL 1888072, at *3 (Del. Super. Apr. 17,
2015); see also 9 Del. C. § 1314(a) (“Any person aggrieved by any decision of the Board of
Adjustment, or any taxpayer or any officer, department, board or bureau of the County, may
present to the Superior Court a petition duly verified alleging that such decision is illegal in
whole or in part, and specifying the grounds of illegality. The petition shall be presented within
30 days after the filing of the decision in the office of the Board.”).
2
  DiFebo, 2015 WL 1888072, at *4.
3
  King Constr., Inc. v. Plaza Four Realty, LLC, 976 A.2d 145, 151 (Del. 2009) (“This Court
reviews the Superior Court‟s grant of a motion to dismiss de novo to „determine whether the trial
judge erred as a matter of law in formulating or applying legal precepts.‟”) (internal citations
omitted).

                                                1
A.        The Superior Court Erred In Holding That DiFebo’s Amended Petition
          Was Untimely Because It Was Filed After The Thirty-Day Statute Of
          Limitations For Commencing A Challenge To A Board Decision Under
          § 1314

          DiFebo claims that the Superior Court erred in two related respects. First,

she contends that the Superior Court failed to take account of a 1993 amendment to

Rule 15(c) that changed that rule from stating that an amendment adding a new

party would relate back to the initial pleading if the requirements of the rule were

met “within the period provided by law for commencing the action . . .”4 to

allowing relation back of the amendment if the rule‟s requirements were met

“within the period provided by statute or these Rules for service of the summons

and complaint.”5

          DiFebo contends that the Superior Court erred because it held that her

amendment to add the indispensible property owners could not relate back to her

4
    Super. Ct. Civ. R. 15(c) (amended 1993).
5
    Super. Ct. Civ. R. 15(c) (current):
         Relation back of amendments. -- An amendment of a pleading relates back to the
         date of the original pleading when
                 (1) relation back is permitted by the law that provides the statute of
         limitations applicable to the action, or
                 (2) the claim or defense asserted in the amended pleading arose out of the
         conduct, transaction, or occurrence set forth or attempted to be set forth in the
         original pleading, or
                 (3) the amendment changes the party or the naming of the party against
         whom a claim is asserted if the foregoing provision (2) is satisfied and, within the
         period provided by statute or these Rules for service of the summons and
         complaint, the party to be brought in by amendment (A) has received such notice
         of the institution of the action that the party will not be prejudiced in maintaining
         a defense on the merits, and (B) knew or should have known that, but for a
         mistake concerning the identity of the proper party, the action would have been
         brought against the party.

                                                   2
timely initial filing unless it was filed within the statute of limitations under the

relevant statute which, she argued, applies the old version of Rule 15(c). We agree

with DiFebo in this respect. We note that Rule 15(c)(3) does not specify when an

amendment must be filed; it simply provides that an amendment will relate back

only if all of the rule‟s requirements are satisfied “within the period provided by

statute or these Rules for service of the summons and complaint.”6 Because

§ 1314 does not set forth a period of time for serving a respondent, Rule 15(c)(3)

provides that the time for process of service under the Superior Court Civil Rules

applies.7 And under Rule 4(j), which provides the time period for “service of the

summons and complaint”—or their equivalent by analogy—DiFebo had 120 days

from the time she filed her initial petition to satisfy Rule 15(c)(3)‟s requirements to

have her amended petition relate back to her initial filing.8


6
  Id. 15(c)(3).
7
  Id.
8
  See id. 4(j):
        If a service of the summons and complaint is not made upon a defendant within
        120 days after the filing of the complaint and the party on whose behalf such
        service was required cannot show good cause why such service was not made
        within that period, the action shall be dismissed as to that defendant without
        prejudice upon the court‟s own initiative with notice to such party or upon
        motion.
See also Taylor v. State Farm Ins., Co., 1994 WL 233886, at *2 (Del. Super. May 2, 1994)
(citing Super. Ct. Civ. R. 4(j)) (“The most significant difference between the old Rule 15(c) and
amended Rule 15(c) is that, instead of requiring notice within the limitations period, relation
back is permitted as long as the added party had notice within 120 days following the filing of
the complaint.”); Lemanski v. Jones, 1994 WL 636971, at *1 (Del. Super. Apr. 5, 1994) (“Like
its federal model, [Rule 15(c)] was amended effective December 1, 1993 to require notice to the
party to be brought in by amendment within the period provided for service of process, instead of
within the statutory limitation period.”).

                                               3
       To the extent that the Superior Court was understandably confused by some

of our prior cases, where no party had focused on the relevant rule change from

1993,9 we regret that and understand the trial court‟s reluctance to apply the rule as

currently written in the shadow of those decisions. But, we must give effect to that

clear amendment to the Superior Court Civil Rules. Thus, to the extent that

DiFebo was barred from proceeding solely because she did not file within the time

frame provided by § 1314 for filing a petition, that decision ignored the provision

of Rule 15(c)(3) allowing relation back of an amendment as long as the rule‟s

requirements are satisfied “within the period provided by . . . these Rules for

service of the summons and complaint.”10

B.     The Superior Court Correctly Applied Delaware Law In Deciding That
       DiFebo Had Failed To Show That There Was A Mistake As To The
       Property Owners’ Identity

       Second, DiFebo argues that the Superior Court erred by concluding that

even if her attempt at amendment was within the time frame allowed by

Rule 15(c)(3), she had not met the conditions under which relation back could be

granted. One of those conditions is that DiFebo must show that, within the period

of time for service, the property owners “knew or should have known that, but for




9
  See Hackett v. Bd. of Adjustment of Rehoboth Beach, 794 A.2d 596 (Del. 2002); Preston v. Bd.
of Adjustment of New Castle Cty., 772 A.2d 787 (Del. 2001).
10
   Super. Ct. Civ. R. 15(c)(3).

                                              4
a mistake concerning the identity of the proper party, the action would have been

brought against [them].”11

       We take judicial notice of the fact that there are interpretations of the

analogous Federal Rule of Civil Procedure 15(c) under which any reason why a

petitioner failed to timely name a respondent would constitute a mistake for

purposes of relation back. To wit, in 2010, the U.S. Supreme Court decided the

case of Krupski v. Costa Crociere S. p. A.12 In that case, the Court stated:

       The reasonableness of the mistake is not itself at issue. . . . [A]
       plaintiff might know that the prospective defendant exists but
       nonetheless harbor a misunderstanding about his status or role in the
       events giving rise to the claim at issue, and she may mistakenly
       choose to sue a different defendant based on that misimpression. That
       kind of deliberate but mistaken choice does not foreclose a finding
       that [Federal] Rule 15(c)(1)(C)(ii) has been satisfied.13

Accordingly, the Krupski Court held that “[r]elation back under [Federal]

Rule 15(c)(1)(C) depends on what the party to be added knew or should have

known, not on the amending party‟s knowledge or timeliness in seeking to amend

the pleading.”14

       But our state has traditionally followed the “strict approach” to what a

mistake under Rule 15(c) means.15 For example, the year before Krupski was


11
   Id. 15(c)(3)(B).
12
   560 U.S. 538 (2010).
13
   Id. at 549.
14
   Id. at 539.
15
   See, e.g., CCS Inv’rs, LLC v. Brown, 977 A.2d 301, 313 (Del. 2009); see also Brown v. City of
Wilmington Zoning Bd. of Adjustment, 2007 WL 1828261, at *11 (Del. Super. June 25, 2007)

                                               5
decided, in CCS Investors, LLC v. Brown, this Court expressed that “a mistake

occurs when the petitioner makes a true mistake as to the identity or name of the

proper party as opposed to where the plaintiff merely chose the wrong party to

sue.”16 That is, “[Delaware] courts generally decline to find a mistake when the

plaintiff cannot demonstrate an intent to include the unnamed party before the

limitations period expired but will find a mistake if the plaintiff intended to sue

certain parties but was misled as to the identity of those parties.”17 Here, there is

no mistake of that kind. The petitioner knew who owned the two properties,

having been a neighbor of the property owners for over fifteen years. And the only

excuse for not naming them is that her attorney did not research who the owners of

the properties were and assumed that the property owners‟ engineer, Ramesh

Batta—named as the applicant in the Board‟s Application for Public Hearing18 and

the Board‟s Notice of Decision19—was somehow also the owner of the properties

despite her client knowing otherwise and despite the fact that the Application for

Public Hearing clearly states that Batta was the applicant and the Paverds and




(“Delaware courts follow the strict approach.”); but see Lovett v. Pietlock, 2011 WL 5354267, at
*3 (Del. 2011) (acknowledging the U.S. Supreme Court‟s guidance in Krupski, but finding that
the plaintiff failed to show that the defendant should have known that he would have been named
in the original complaint but for a mistake of identity).
16
   CCS Inv’rs, LLC, 977 A.2d at 313.
17
   Id.
18
   App. to Opening Br. at 38 (Board of Adjustment Application for Public Hearing).
19
   Id. at 14 (Notice of Decision at 1).

                                               6
Osbornes were the legal owners.20 That is not the sort of mistake that supports

relation back under Delaware‟s Rule 15(c)(3).

       We have read the record very closely. DiFebo did not argue below that

Superior Court Rule 15(c), which accords in text with Federal Rule of Civil

Procedure 15(c), should be read in accord with Krupski, that the nature of the

mistake was no longer critical, and that the inquiry should focus solely on “what

the party to be added knew or should have known.”21 Nor has the briefing before

us done so in any reliable manner.22 Because the question of whether the strict

approach traditionally taken by our courts should be relaxed was never fairly

presented to the Superior Court or ourselves, we decide the appeal on the basis the

parties argued it.23 It may be that future cases will present an opportunity to

consider that question, but that question should not be decided in a case without

fair presentation to the trial court.

       Because the Superior Court correctly determined that DiFebo did not satisfy

all of Rule 15(c)(3)‟s requirements to have her amended petition relate back to her



20
   Id. at 38 (Board of Adjustment Application for Public Hearing).
21
   Krupski, 560 U.S. at 539.
22
   The first time DiFebo raises the U.S. Supreme Court‟s holding in Krupski and this Court‟s
Lovett v. Pietlock decision, is in her reply brief. See Reply Br. at 19 n.57.
23
   Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented for
review; provided, however, that when the interests of justice so require, the Court may consider
and determine any question not so presented.”); id. 14(b)(vi)(A)(3) (“The merits of any argument
that is not raised in the body of the opening brief shall be deemed waived and will not be
considered by the Court on appeal.”).

                                               7
initial filing, we affirm the Superior Court‟s April 17, 2015 judgment dismissing

DiFebo‟s amended petition.




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