           IN THE SUPREME COURT OF THE STATE OF DELAWARE

BRANCH BANKING AND TRUST               §
COMPANY, a bank organized under        §     No. 385, 2014
the laws of the State of North         §
Carolina existing under the laws of    §     Court Below:
the State of North Carolina;           §
Assignee of Mortgage Electronic        §     Superior Court of the
Registration Systems, Inc. as          §     State of Delaware, in and for
nominee, a corporation organized       §     New Castle County
and existing under the laws of the     §
State of Delaware,                     §     C.A. No. N11L-12-270-CEB
                                       §
      Plaintiff Below,                 §
      Appellant/Cross-Appellee,        §
                                       §
      v.                               §
                                       §
HATEM G. EID a/k/a HATEM EID;          §
and YVETTE EID,                        §
                                       §
      Defendants Below,                §
      Appellees/Cross-Appellants.      §

                          Submitted: March 11, 2015
                            Decided: May 4, 2015

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

Upon appeal from the Superior Court. REVERSED.
Robert T. Aulgur, Jr., Esquire, Whittington & Aulgur, Middletown, Delaware, for
Appellant, Cross-Appellee.

Of Counsel: Michael Montecalvo, Esquire (argued) and Brent F. Powell, Esquire,
Womble Carlyle Sandridge & Rice LLP, Winston-Salem, North Carolina.

Stephen B. Brauerman, Esquire, Kara M. Swasey, Esquire and Vanessa Tiradentes,
Esquire, Bayard, P.A., Wilmington, Delaware, for Appellees, Cross-Appellants.
Of Counsel: W. Jeffrey Barnes, Esquire (argued), W. J. Barnes, P.A., Beverly
Hills, California.

VALIHURA, Justice:




                                     1
                     FACTUAL AND PROCEDURAL HISTORY

         On June 13, 2013, the Superior Court granted Branch Banking and Trust

Company’s (“BB&T”) motion for summary judgment on its foreclosure and

breach of contract claims.1 On July 11, 2013, before the trial court entered a final

judgment that included a damages award, Hatem and Yvette Eid (collectively, the

“Eids”) filed an amended notice of appeal to this Court from the Superior Court’s

order granting summary judgment. This Court issued a notice to show cause as to

why the appeal was not interlocutory. The parties thereafter stipulated to the

dismissal of the appeal. On March 20, 2014, the Superior Court entered a final

judgment order awarding damages to BB&T. The Eids failed to file a timely

notice of appeal from the March 20, 2014, order. Instead, on May 30, 2014, a little

over two months after the entry of the final judgment order, the Eids filed a motion

with the Superior Court under Rule 60(b) seeking vacatur of the final judgment

order, contending that their counsel never received actual notice of the final

judgment order. On June 19, 2014, the Superior Court granted the Eids’ motion to

vacate.

         On July 21, 2014, the trial court entered a new final judgment order from

which the Eids could file a timely notice of appeal. On July 21, 2014, BB&T filed



1
    Branch Banking and Trust Co. v. Eid, 2013 WL 3353846 (Del. Super. Jun. 13, 2013).



                                                2
an appeal from the Superior Court’s grant of the Rule 60(b) motion to vacate, and

on July 29, 2014, the Eids filed a cross-appeal from the Superior Court’s grant of

summary judgment in favor of BB&T.

                                   DISCUSSION

      BB&T raises three issues on appeal. First, it argues that pursuant to Rule

77(d), the trial court lacked authority to grant the motion to vacate the final

judgment order. Second, it argues that the trial court erred as a matter of law when

it applied a vague and undefined “interest of justice” standard to the motion to

vacate. Third, it argues that the trial court abused its discretion in granting the

motion to vacate because the Eids failed to establish that they were entitled to

relief under Rule 60(b)(1) or (b)(6).

      On cross-appeal, the Eids also raise three issues. First, they argue that

BB&T lacks standing to institute a foreclosure.       Second, they argue that the

affidavit supporting the motion for summary judgment was defective. Third, they

argue that BB&T failed to demonstrate that there were no genuine issues of

material fact. We agree with BB&T that the trial court improperly granted the

motion to vacate the final judgment, and for the reasons stated herein, we reverse

the judgment below and dismiss the appeal.

      “[T]he grant or denial of a Rule 60(b) motion is generally reviewed for an

abuse of discretion. A claim that the trial court employed an incorrect legal



                                         3
standard, however, raises a question of law that this Court reviews de novo.”2

Before we address the merits of a Rule 60(b) motion, we must determine whether

jurisdiction has been properly conferred upon this Court. As we have previously

stated, “[t]his Court lacks jurisdiction to consider an appeal when the notice of

appeal is not filed in a timely manner unless the appellant can demonstrate that the

failure to file a timely notice of appeal is attributable to court-related personnel.”3

         Superior Court Rule of Civil Procedure 77(d) provides that:

         Immediately upon the entry of an order of judgment, the Prothonotary
         shall serve a notice of the entry by mail in the manner provided for in
         Rule 5 upon each party who is not in default for failure to appear, and
         shall make a note in the docket of the mailing. Such mailing is
         sufficient notice for all purposes for which notice of the entry of an
         order is required by these Rules; but any party may in addition serve a
         notice of such entry in the manner provided in Rule 5 for the service
         of papers. Lack of notice of the entry by the Prothonotary does not
         affect the time to appeal or relieve or authorize the Court to relieve a
         party for failure to appeal within the time allowed.4

         The Superior Court Rules of Civil Procedure are patterned after the Federal

Rules of Civil Procedure. Both Superior Court Rule 77(d) and Federal Rule 77(d)

expressly impose the duty of notification on the court clerk. However, Superior




2
    MCA, Inc. v. Matsushita Elec. Indus. Co., 785 A.2d 625, 638 (Del. 2001).
3
 Giordano v. Marta, 723 A.2d 833, 834 (Del. 1998) (emphasis in original) (citing Bey v. State,
402 A.2d 362, 363 (Del. 1979)); see also Riggs v. Riggs, 539 A.2d 163, 164 (Del. 1988).
4
    Super. Ct. Civ. R. 77(d) (emphasis added).



                                                 4
Court Rule 77(d) also provides that lack of notice does not affect the time for

appeal or permit relief for failure to file a timely appeal.

          In 1991, the Federal Rules were amended to permit a federal court to

provide relief from a final judgment order where a party does not receive actual

notice of the final judgment. Federal Rule 77(d) provides that “[l]ack of notice of

the entry does not affect the time for appeal or relieve -- or authorize the court to

relieve -- a party for failing to appeal within the time allowed, except as allowed by

Federal Rule of Appellate Procedure (4)(a).”5 The Advisory Committee Note to

the 1991 amendment of Federal Rule 77 states that “[t]his revision is a companion

to the concurrent amendment to Rule 4 of the Federal Rules of Appellate

Procedure,” and that “[t]he purpose of the revisions is to permit district courts to

ease strict sanctions now imposed on appellants whose notices of appeal are filed

late because of their failure to receive notice of entry of a judgment.”6

          To aid in effecting the revisions discussed in the Advisory Committee Note

to Federal Rule 77, Federal Rule of Appellate Procedure 4(a) was also amended in

1991 by adding subsection (6). Federal Rule 4(a)(6) provides that “[t]he district

court may reopen the time to file an appeal for a period of 14 days after the date

when its order to reopen is entered, but only if all the following conditions are

5
    Fed. R. Civ. P. 77(d).
6
    Fed. R. Civ. P. 77 Advisory Committee’s Note (1991).



                                                5
satisfied: (A) the court finds that the moving party did not receive notice under

Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought

to be appealed within 21 days after entry; (B) the motion is filed within 180 days

after the judgment or order is entered or within 14 days after the moving party

receives notice under Federal Rule of Civil Procedure 77(d) of the entry,

whichever is earlier; and (C) the court finds that no party would be prejudiced.”7

The Advisory Committee Note to the 1991 amendment of Federal Rule 4 states

that “[t]he amendment adds a new subdivision (6) allowing a district court to

reopen for a brief period the time for appeal upon a finding that notice of entry of a

judgment or order was not received from the clerk or a party within 21 days of its

entry and that no party would be prejudiced.”8

          The changes to Federal Rule of Civil Procedure 77(d) and Federal Rule of

Appellate Procedure 4(a) have not been adopted by the Delaware Superior Court.

Prior to the 1991 amendments to the Federal Rules, when the Federal Rules

contained language similar to the Superior Court Rules, the clerk’s failure to mail a

notice of judgment to counsel did not constitute excusable neglect for filing an




7
    Fed. R. App. P. 4(a)(6).
8
    Fed. R. App. P. 4 Advisory Committee’s Note (1991).



                                               6
untimely appeal under the analogous Federal Rule 60(b)(1).9 Thus, as we held in

Giordano v. Marta with respect to Court of Chancery Rule 77(d), we now hold

with respect to Superior Court Rule 77(d), that the failure of a party to receive

notice of a final judgment, absent any fault attributable to court personnel, does not

excuse a jurisdictional defect.

      The Eids, in an attempt to circumvent the expiration of their time to file a

notice of appeal to this Court, sought a new final judgment order from the Superior

Court. They argued that they were unable to timely file a notice of appeal because

they did not receive actual notice of the final judgment order. However, they

admitted that the lack of notice was not attributable to court personnel, but rather,

due to their counsel leaving the counsel’s law firm and new counsel at the firm

failing to update contact information provided to the trial court. Further, the Eids

did not demonstrate that they exercised due diligence to ascertain whether the

judgment was entered, nor did they provide any reason for the lack of such

diligence. Essentially, the Eids’ Rule 60(b) motion to vacate served merely as a

tool to restart the thirty-day jurisdictional clock.       However, as noted above,

Superior Court Rule 77(d) precludes a trial court from relieving a party for failure




9
 See Bortugno v. Metro-North Commuter Railroad, 905 F.2d 674, 676 (2d Cir. 1990); see also
Spika v. Village of Lombard, III, 763 F.2d 282, 286 (7th Cir. 1985).



                                            7
to timely file an appeal due to lack of notice of the final judgment absent any fault

attributable to court personnel.10

       Moreover, although Superior Court Rule 60(b)(6) provides a broad

exception allowing the Superior Court to relieve a party from a final judgment for

any reason justifying relief, given our interpretation of Court of Chancery Rule

77(d) in Giordano, the interests of justice exception in Superior Court Rule

60(b)(6) cannot be used as a way to escape the plain effect of the Superior Court

Rule that addresses the precise circumstances facing the Eids. To allow Rule

60(b)(6) to be used in that circuitous fashion would end-run the purpose of Rule

77(d), which is to require litigants and their attorneys to monitor the court docket

with diligence and to file an appeal within the appropriate statutory period.

       The Eids argue that BB&T failed to preserve this issue for appeal and

conceded that the court could grant the motion to vacate.11 The Eids’ contentions

are misplaced for several reasons. First, BB&T sufficiently raised this issue in its




10
  See Giordano, 723 A.2d at 837; see also Riggs, 539 A.2d at 163 (“[T]he parties to an appeal
cannot confer jurisdiction on this Court by agreement.”); Dixon v. Delaware Olds, Inc., 396 A.2d
963, 966 (Del. 1978) (“Neither counsel nor this Court can waive a jurisdictional defect so as to
confer jurisdiction which does not otherwise exist.”).
11
  See App. to Appellant’s Opening Br. at A246-47 (“[Court]: I have the right under the interest
of justice provisions to this thing right, right? MR. WOODS: I wouldn’t disagree with that. . . .
[Court]: Well, I can agree with you and still grant the relief, right? MR. WOODS: You can.”).



                                               8
briefing before the Superior Court in response to the Eids’ motion to vacate.12

Second, BB&T’s response to the Superior Court’s inquiry was not a binding

judicial admission, but rather, a conclusion of law to which we do not defer. Third,

and perhaps most importantly, parties cannot waive issues regarding appellate

jurisdiction and cannot confer jurisdiction on this Court by agreement.13

Accordingly, we reverse the Superior Court’s grant of the motion to vacate the

final judgment order, reinstate the Superior Court’s March 20, 2014, order, and

dismiss the Eids’ cross-appeal as untimely. Because we dismiss the appeal on

jurisdictional grounds, we do not reach the other issues presented.

                                       CONCLUSION

         Based upon the foregoing, the judgment of the Superior Court is hereby

REVERSED and the appeal is DISMISSED.




12
  See App. to Appellant’s Opening Br. at A233-36. See Telxon Corp. v. Meyerson, 802 A.2d
257, 263 (Del. 2002) (holding that an issue raised in the complaint and “briefed in the trial court”
was “fairly presented to that court and thus properly a subject of appeal” even where “it was not
addressed by the trial court in its decision”).
13
     See Riggs, 539 A.2d 163; Dixon, 396 A.2d at 966.



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