                                    COURT OF CHANCERY
                                            OF THE
                                     STATE OF DELAWARE

D ONALD F. PARSONS, JR.                                          New Castle County Courthouse
   VICE CHANCELLOR                                               500 N. King Street, Suite 11400
                                                                Wilmington, Delaware 19801-3734



                               Date Submitted: April 2, 2015
                               Date Decided: May 15, 2015




   John A. Sergovic, Jr., Esq.                    John H. Newcomer, Jr., Esq.
   Sergovic, Carmean & Weidman, P.A.              Morris James LLP
   142 East Market Street                         500 Delaware Avenue, Suite 1500
   P.O. Box 751                                   P.O. Box 2306
   Georgetown, DE 19947-0751                      Wilmington, DE 19899-2306

           RE:    Tumulty v. Schreppler, et al.
                  C.A. No. 5948-VCP

   Dear Counsel:

           On March 30, 2015, this Court issued its post-trial Opinion (the

   “Opinion”)1 in which I concluded that Defendant, James Schreppler, had

   satisfied the standard for adverse possession and, therefore, the Property2 legally

   belonged to him.       On April 6, 2015, Plaintiffs timely moved for reargument

   pursuant to Court of Chancery Rule 59(f) (the “Motion”). Schreppler opposed

   the Motion on April 9.


   1
           Tumulty v. Schreppler, 2015 WL 1478191 (Del. Ch. Mar. 30, 2015).
   2
           Capitalized terms not otherwise defined herein have the same meaning as in
           the Opinion.
Tumulty v. Schreppler, et al.
C.A. No. 5948-VCP
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Page 2


      To prevail on a motion for reargument under Rule 59(f), the moving party

must demonstrate either that the Court overlooked a decision or principle of law

that would have controlling effect or that the Court misapprehended the facts or the

law such that the outcome of the decision would be different.3              To justify

reargument, a misapprehension of the facts or the law must be both material and

outcome-determinative of the earlier decision.4      Mere disagreement with the

Court’s resolution of a matter is not sufficient, and the Court will deny a motion

for reargument that does no more than restate a party’s prior arguments.5

      In their Motion, Plaintiffs contend that the Opinion contains a “critical

misapprehension of fact upon which the Court heavily relied.” 6 Specifically,

Plaintiffs challenge the factual basis for the Court’s finding that Schreppler


3
      See, e.g., Preferred Invs., Inc. v. T&H Bail Bonds, 2013 WL 6123176, at *4
      (Del. Ch. Nov. 21, 2013); Medek v. Medek, 2009 WL 2225994, at *1 (Del.
      Ch. July 27, 2009); Reserves Dev. LLC v. Severn Sav. Bank, FSB, 2007 WL
      4644708, at *1 (Del. Ch. Dec. 31, 2007).
4
      See, e.g., Preferred Invs., 2013 WL 6123176, at *4; Aizupitis v. Atkins, 2010
      WL 318264, at *1 (Del. Ch. Jan. 27, 2010); Medek, 2009 WL 2225994, at
      *1.
5
      See, e.g., Preferred Invs., 2013 WL 6123176, at *4; In re Mobilactive
      Media, LLC, 2013 WL 1900997, at *1 (Del. Ch. May 8, 2013); Brown v.
      Wiltbank, 2012 WL 5503832, at *1 (Del. Ch. Nov. 14, 2012).
6
      Pls.’ Mot. ¶ 1.
Tumulty v. Schreppler, et al.
C.A. No. 5948-VCP
May 15, 2015
Page 3


established the second campsite in 1988. 7 Plaintiffs contend that neither the trial

testimony nor any other evidence in the record supports this finding, and that

other evidence actually undermines the Court’s determination.           Schreppler

contests each of these points.

      Initially, I note that Plaintiffs’ challenge to the 1988 date appears to be a

new argument. None of the cross-examination of Schreppler challenged the year

in which he claimed to have established the second camp. 8 Indeed, Plaintiffs

referenced the 1988 date in their own post-trial briefing. 9         “Motions for

reargument or alteration of judgment are not the appropriate method for a party

to raise new arguments that it failed to present in a timely way.” 10 Because

Plaintiffs did not challenge the accuracy of the 1988 date until they sought

reargument, that delay is a sufficient reason on its own to deny the Motion.

      In addition,    I reject on the merits Plaintiffs’ argument that I

misapprehended the underlying facts. Schreppler testified at trial: “Later, I put

in another camp a little bit east, on a peninsula, in 1988, I think it was, near the

7
      Tumulty, 2015 WL 1478191, at *3.
8
      See Tr. 641-42 (cross-examining Schreppler generally about the campsites).
9
      Pls.’ Post-Trial Opening Br. 31 (“The second overnight campsite was placed
      to the east on a peninsula in 1988.” (citing Tr. 597, which is the same
      testimony the Court relied upon)).
10
      Anvil Hldg. Corp. v. Iron Acq. Co., 2013 WL 4447840, at *3 (Del. Ch. Aug.
      16, 2013).
Tumulty v. Schreppler, et al.
C.A. No. 5948-VCP
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Page 4


duck season.” 11 Plaintiffs assert that the phrase “I think it was” undermines the

accuracy of the 1988 date and shows it was only a guess. Aside from being a

turn of phrase, it is not clear that the words “I think it was” modify the date

Schreppler provided. As one would expect, witnesses generally do not testify in

a way that eliminates any doubt as to how their sentences should be punctuated.

Rather, punctuation is added by the Court reporters based on their understanding

of what is most appropriate in the circumstances.         At trial, I understood

Schreppler’s testimony to mean that he installed the second camp in 1988 and

that, within 1988, he thought it was near duck season. 12         This reading is

supported by Schreppler’s deposition testimony, which included a diagram listing

the second campsite as having been established in 1988. 13 Before filing their

Motion, Plaintiffs also appear to have interpreted the disputed testimony in this

same manner. 14    Thus, there is ample support in the record for the 1988

determination.

      Finally, Plaintiffs contend that the trial testimony of Joseph Phillips, Jr.

contradicts Schreppler’s testimony, because of Phillips’s reference to having

11
      Tr. 597.
12
      This interpretation reads Schreppler’s testimony as: “Later, I put in another
      camp . . . in 1988, I think it was near the duck season.”
13
      JX 74 (Schreppler Dep. Ex. 1).
14
      Pls.’ Post-Trial Opening Br. 31 (citing Tr. 597).
Tumulty v. Schreppler, et al.
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Page 5


“mov[ed]” the main camp. 15 Phillips’s testimony on this issue was muddled.

Based on that testimony, however, I found that the “main camp”—which was the

1986 camp established on the Adjacent Parcel—was reestablished in another

location after Schreppler acquired a lot in Deere Country sometime after the start

of this litigation in 2010. 16 Furthermore, I gave Phillips’s testimony almost no

weight on this issue, because he had not been on the Property since 1989 or 1990

and his testimony regarding the “relocation” of the “main camp” was based

entirely on what Schreppler told him. 17

      In general, asking a court to re-weigh evidence that it considered in

rendering a decision is not a proper basis for seeking reargument. “Weighing

the credibility of testimony is the Court’s responsibility. Disagreement with the

Court’s credibility determinations is not a basis for reargument.” 18 Moreover,

nothing in Phillips’s testimony or the other evidence relied upon in Plaintiffs’

Motion causes me to doubt the credibility of Schreppler’s testimony or question

whether the second campsite was established in 1988.



15
      Tr. 569-70.
16
      Tr. 628-29 (Schreppler: commenting on his acquisition of a lot in Deere
      Country).
17
      Id. at 571 (Phillips).
18
      Zutrau v. Jansing, 2014 WL 6901461, at * 6 (Del. Ch. Dec. 8, 2014).
Tumulty v. Schreppler, et al.
C.A. No. 5948-VCP
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Page 6


      In sum, Plaintiffs have not shown that I misapprehended any critical facts

in reaching the decision reflected in the Opinion. Accordingly, the Motion is

denied.

      IT IS SO ORDERED.

                                    Sincerely,

                                    /s/ Donald F. Parsons, Jr.

                                    Donald F. Parsons, Jr.
                                    Vice Chancellor

DFP/ptp
