SUPERIOR COURT

OF THE
STATE OF DELAWARE
ABIGAIL M. LEGROW LEoNARD L. WILLIAMS JUSTICE CENTER
JUDGE 500 N. KING STREET, SUlTE 10400

WILMINGTON, DELAWARE 19801
TELEPHONE (302) 255-0669

April 11, 2019

John A. Sergovic, Jr., Esquire Triumph Mortgage Corp.
Sergovic Carmean Weidman McCartney c/o Ralph V. Estep

& OWens, P.A. 508 Main Street

406 south Bedford street suite 1 Wilmington, DE 198041
P.O. Box 751

Georgetown, DE 19947
RE: Lawrence E. Mergenthaler v. Triumph Mortgage Corp.
C.A. No. 09C-09-203 AML
Dear Counsel,

On January 3, 2019, I issued an order and simultaneous letter decision
granting Plaintiff’s motion to compel responses to discovery (the “Motion to
Compel”) and awarding Plaintiff his attorneys’ fees incurred in connection With
that Motion to Compel. Thereafter, Defendant’s counsel filed a timely Motion for
Reargument. Plaintiff opposes that motion and, for the reasons that folloW, the

Motion for Reargument is denied.

 

l This address Was provided by Triumph’s former counsel as the address to Which Triumph’s
mail should be sent.

BACKGROUND

The parties’ underlying dispute concerning the validity of a Writ of
attachment jieri facias (the “Challenged Writ”) presently is on appeal to the
Delaware Supreme Court.2 Plaintiff is a judgment creditor With an unpaid
judgment against Defendant. While litigation Was proceeding regarding the
validity of the Challenged Writ, Plaintiff served Defendant With discovery relating
to executing on the judgment. That discovery is unrelated to the Challenged Writ.
Plaintiff served the discovery by serving Defendant’s counsel3 in this action.
Defendant did not respond to the discovery. When Plaintiff’ s counsel inquired
about the status of Defendant’s discovery responses, Defendant’s counsel advised
Plaintiff for the first time that Defendant’s counsel did not represent Defendant for
any purpose except contesting the validity of the Challenged Writ. Defendant’s
counsel later filed a “corrected” entry of appearance attempting to limit
retroactively the scope of counsel’s appearance in this action. On the basis of that
corrected entry of appearance, Defendant argued the discovery never properly Was

served.

 

2 In my January 3, 2019 letter, I explained Why, in my view, the pending appeal does not divest
this Court of the discretion to consider the Motion to Compel. Defendant does not challenge that
holding in its Motion for Reargument. See Mergenthaler v. Triumph Mor!gage Corp, , 2019 WL
11?993 (Del. Supcr. Jan. 3, 2019).
3 After filing the Motion for Reargument, Defendant’s counsel filed a Motion to Withdraw as
counsel and the Court granted that motion. The references in this decision to “Defendant’s
counsel” refer to counsel Who represented Defendant at the time the discovery Was served and
the Motion to Compel Was filed.

2

In my January 3, 2019 order and letter opinion, I concluded service was
effective because Defendant’s counsel entered his appearance relating to “this
action” and never advised Plaintiff s counsel or the Court that the appearance only
was for a limited purpose. Defendant now seeks to reargue the Court’s holdings
relating to whether service was effective and whether Plaintiff was entitled to an
attorneys’ fee award.

ANALYSIS

Defendant argues the Court erred in its conclusion that service of the
discovery was effective because the Court’s decision “overlooked well settled
precedent that establishes ‘[t]he Superior Court rules have abolished the distinction
between general and special appearance.”’4 Defendant argues “only one type of
appearance is allowed” under the Superior Court rules, the entry of appearance
therefore was not dispositive of the scope of representation, and Defendant’s
counsel’s conduct in these proceedings, coupled with the “corrected” entry of
appearance, clarified any confusion regarding the scope of Defendant’s counsel’s
representation Defendant also argues the Court had discretion under Superior
Court Civil Rule 37(a)(4)(A) to decide whether to award fees when a motion to
compel is granted. Defendant appears to contend, vaguely, that the Court erred in

exercising its discretion in favor of awarding fees.

 

4 Mot. for Reargument 11 3.

Defendant’s motion does not meet the standard for reargument both because
it presents new arguments not previously raised and because it fails to cite
controlling precedent overlooked by the Court. A motion for reargument will be
granted if the Court has “overlooked a controlling precedent or legal principles, or
[ ] misapprehended the law or facts such as would have changed the outcome of
the underlying decision.”5 A movant neither may present new arguments nor
rehash those already presented.6 The movant “has the burden of demonstrating
newly discovered evidence, a change in the law or manifest injustice.”7

First, Defendant’s Motion for Reargument fails because it presents new
arguments that never were presented to the Court. In response to Plaintiff s
Motion to Compel, Defendant filed the “corrected” entry of appearance and a letter
arguing to the Court that Defendant never properly was served with the discovery.
Defendant did not otherwise oppose the Motion to Compel and therefore has
waived any new argument, including that attorneys’ fees should not have been
awarded.

Second, Defendant’s Motion for Reargument does not cite any legal
principles or facts the Court overlooked or misapprehended As to the attorneys’

fees, Rule 37(a)(4)(A) directs that the Court “shall” require a party whose conduct

 

5 Radi'us Servs., LLC v. Jack Corrozi Const., Inc., 2010 WL 703051, at *1 (Del. Super. Feb. 26,
2010).
6 Reid v. Hindt, 2008 WL 2943373, at *1 (Del. Super. July 31, 2008).
7 Id. (quoting State v. Brooks, 2008 WL 435085, at *1 (Del. Super. Feb. 12, 2008)).
4

necessitated a motion to pay the attomeys’ fees incurred in obtaining the order
unless the Court finds that (i) the opposition to the motion was “Substantially
justified,” or (ii) other circumstances make the award unjust. Given Defendant’s
complete disregard of the discovery and the Motion to Compel, despite being
served with both, the Court saw no “substantial justification” or other
circumstances making the attorneys’ fee award unjust.

As to the Court’s conclusion that Defendant’s counsel entered his
appearance without restriction and service of the discovery on Defendant’s counsel
therefore constituted effective service, the Court similarly did not misapprehend
applicable law. Defendant relies on the elimination of the distinction between
general and special appearances in Rule 5. As the case law makes clear, however,
that rule was changed to eliminate prior practice under which “a special appearance
to attack [service of] process constituted a protest against the exercise of
jurisdiction over the person or property[, while a] general appearance constituted a
voluntary Submission to that jurisdiction.”8 As the Delaware Supreme Court
explained, “[t]he two kinds of appearance served as a method of establishing the
status of a defendant before the court, that is, whether or not he had submitted to
personal jurisdiction.”9 In other words, the revision to Rule 5 eliminated the need

to contest personal jurisdiction by entering a special appearance, The revision does

 

: Canaday v. Superior Court in and for New Castle County, 119 A.2d 347, 351 (Del. 1955).
Id.
5

not, however, mean that an attorney may enter an appearance in an action, remain
silent regarding the scope of that appearance, and later argue that service of
pleadings in the action made upon the attorney was not effective service. If
Defendant’s counsel intended to limit the scope of his appearance, he had an
obligation to inform Plaintiff’ s counsel of that fact from the outset of counsel’s
involvement in this action. Having failed to do so, Plaintiff was entitled (and
indeed required) to serve Defendant through Defendant’s counsel, and that service
was effective service under the rules.

For the foregoing reasons, Defendant’s Motion for Reargument is DENIED.

Mf)r>?»/

Abiga~ii M LeGi'/of§/, Judge

IT IS SO ORDERED.

Original to Prothonotary

cc: Richard Abbott, Esq. (via First Class Mail)

