IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STONE CREEK CUSTOM KITCHENS

& DESIGN and JEFF BRAATEN,
,, Kl6A-01-002 WLW
Appellants, _; Kent County
v.

JOSEPH VINCENT and

DANIELLE VINCENT,
Appe11ees.

Submitted: May 16, 2016
Decided: July 20, 2016

ORDER
Upon an Appeal from a Decision of

the Court of Common Pleas.
Ajj'l`rmed.

Sean T. O’Kelly, Esquire and Daniel P. Murray, Esquire of O’Kelly Ernst & Bielli,
LLC, Wilmington, Delaware; attorneys for Appellants.

Joseph Vincent and Danielle Vincent, pro se.

VVITHAM, R.J.

Stone Creek Custom Kitchens v. Vincent
C.A. No. Kl6A-0l-()O2 WLW
July 20, 2016

an unnecessary procedural nightmare. Prior to filing a breach of contract action in
the Justice of the Peace Court, Joseph Vincent attempted to contact both counsel for
Stone Creek and J eff Braaten, owner and president of Stone Creek. ln an email dated
April l8, 2014, Joseph Vincent informed counsel for Stone Creek that the Vincents
would be seeking compensation in small claims court. This email was addressed to
counsel for Stone Creek and carbon copied to Braaten.‘ In an email dated April 29,
2014, and addressed to both counsel for Stone Creek and Braaten, Danielle Vincent
stated that she was in the process of gathering documentation to file a complaint in
the Justice of the Peace Court and asked counsel to confirm that he still represented
Stone Creek.z Counsel replied to Danielle Vincent with one sentence that neither
confirmed nor denied his representation of Stone Creek, but simply stating only that
he "d[id] not agree to accept service of any Complaint.’”

On May l, 2014, the Vincents filed a breach of contract action against Stone
Creek and Braaten in the Justice of` the Peace Court. Service was attempted pursuant
to Delaware’s long ann statute. The Vincents mailed the complaint to Stone Creek
and Braaten on May 7, 2014, return receipt requested." The mailing to Braaten was

refused,5 and the mailing to Stone Creek was unclaimed." On June 3, 20l4, the

1 Appellee’s Answering Br., Ex. l.
2 Id., Ex. 2.

3 Id., Ex. 3.

4 Ia'., EX. 6.

5 Id., EX. 8.

6 Id., EX. l3.

Stone Creek Custom Kitchens v. Vincem‘
C.A. No. Kl6A-Ol-0O2 WLW
July 20, 2016

mailings with a first class mailing as required by statute when mailed is unclaimed.11
In an order dated August 29, 2014, the Justice of the Peace Court found that Braaten
and Stone Creek had been properly served. The court noted that the Vincents had
been assisted by a court clerk, but seemed confused as to which documents needed
to be attached to the affidavit. "Between the original service documents produced by
the plaintiffs at the August 29 hearing and the original documents held by the court
clerk and scanned into the [Justice of the Peace] Court’s electronic case management
system, the [Justice of the Peace] Court found that service upon Stone Creek was
valid under Delaware’s long-arm statute."12 The court also dismissed Braaten as a
individual in the action, and denied Stone Creek’s motion to vacate the default
judgment.13 Although not discussed in any order, it should be noted that Stone Creek
was a corporate entity,1‘1 Braaten was president of the corporation,15 and at the August
29 hearing, Braaten admitted that service upon him had been effective.16

Also at the August 29 hearing, Stone Creek requested an extension of time to

file an amended motion regarding additional grounds for the motion to vacate

11 Ia'. at 2.
12 J.P. Ora'er of Jan 26, supra note 9, at l n.l.

13 J.P. Ora'er of Aug. 29, supra note lO, at l. Defense counsel moved to have Braaten
removed from the suit as an individual. The Vincents explained that they had served Braaten with
the purpose of ensuring that they obtained service over the company, but were unsure how to
proceed. The Vincents did not oppose the motion to dismiss the action against Braaten as an

individual.
14 Appellant’ s Opening Br. at 6 ("[B]ecause no corporate veil piercing facts or law were pled,
the parties agreed that defendant Braaten should be dismissed from the action.").

15 Ia'. at 16 (noting Braaten was not only president of his company, but also a laborer).
16 J.P. Ora'er of Aug. 29, supra note l0, at l.

5

Stone Creek Custom Kitchens v. Vir¢cent

C.A. No. K16A-01-002 wLw
Juiy 20, 2016

there was no excusable neglect on the part of Stone Creek, that there were no
misrepresentations by the Vincents, and that no extraordinary circumstances
warranted vacating the default judgment. The motion to vacate the default judgment
was denied.z°

On February l0, 2015, Stone Creek appealed the Justice of the Peace Court
decision to the Court of Common Pleas. The appeal was rejected due to a clerical
error, but the court allowed the appeal nunc pro tunc.” The appeal to the Court of
Common Pleas was limited to the Justice of the Peace Court’ s denial of Stone Creek’ s
motion to vacate.” Service notifying the Vincents of the appeal was required to be
made within 120 days.” Stone Creek filed a praecipe and requested service by
Sheriff, but service was either not returned by the Sheriff, or the return was not
docketed. However, on April 22, 2015, the Vincents learned of the appeal through
contact with the Justice of the Peace Court. Upon learning of the appeal, the Vincents
contacted Stone Creek regarding lack of service and filed a motion in the Court of

Common Pleas to dismiss the appeal.

failure to appear except that pleadings asserting new or additional claims for relief
against them shall be served upon them in the manner provided for service of
summons in Rule 4 (emphasis added).

20 Ia'. at 4.

21 Stone Creek Custom Kitchens & Design v. Vincent, CPU5-l 5-OOOl4l , at l (Del. Com. Pl.
Oct. 19, 20l5).

22 See Ney v. Polite, 399 A.Zd 527, 529 (Del. 1979) (" However, we note that the appeal
permits only review of the magistrate’s order denying relief and not of the nonsuit and default
judgments themselves.").

23 Ct. Com. Pl. Civ. R. 4(j).

Stone Creek Custom Kitchens v. Vincem‘
C.A. No. K16A-01-002 WLW
July 20, 2016

time limitation is jurisdictional and thus prevents the court from granting additional
time.”

The Court of Common Pleas denied Stone Creek’s motion for relief from
judgment pursuant to Rule 60(b). The court noted that Stone Creek was again
blaming the court and its electronic filing system for its failure to properly prosecute
the appeal. The court held there was no excusable neglect because Stone Creek failed
to confirm service or make inquiries regarding the motion to dismiss, and denied
Stone Creek’s motion for reargument.zg On January 20, 2016, Stone Creek filed the
appeal at bar.

STANDAH-l§ OF REVIEW

An appeal from the Court of Common Pleas "shall be reviewed on the record
and shall not be tried de novo."29 This Court’s function is to correct errors of law and
determine whether the factual findings of the Court of Common Pleas "are
sufficiently supported by the record and are the product of an orderly and logical
deductive process.’”° The decision to relieve a party from a final judgment or order
is at the sound discretion of the court and is reviewed under an "abuse of discretion"

standard.” "An abuse of discretion arises when a court exceeds the bounds of reason

in light of the circumstances or so ignores recognized rules of law or practice as to

27 See Strong v. Wells Fargo Bank, 2013 WL l228028, at *l (Del. Super. Jan. 3, 2013).
28 Vincent, CPU5-15-000141, at 3.

29 10 Del. C. § l326(c).

30 State v. Ana'erson, 2010 WL 4513029, at *4 (Del. Super. Nov. 1, 2010).

31 Am. Spirit Fed. Credit Union v. Speedy Key L0ck & T0w Servs. , 2016 WL 399231, at *2-3
(Del. Super. Jan. 29, 201 6).

Stone Creek Custom Kitchens v. Vincent
C.A. NO. Kl 6A-0 l -()02 WLW
July 2(), 2016

notice from the moment the court granted the motion. Because Rule 59(e) contains
no provisions for the enlargement of time, the court lacked jurisdiction to grant Stone
Creek’s motion for reargument.
The Court ofCommorz Pleas properly denied Stone Creek’s motion
for relief from judgment per Court of Common Pleas Rule 60([))

Stone Creek’s second issue on appeal is the Court of Common Pleas’ denial of
its motion for relief from judgment pursuant to Court of Common Pleas Civil Rule
60(b). Stone Creek’s motion for relief presented a single argument to the Court of
Common Pleas. Stone Creek argued for relief under Court of Common Pleas Civil
Rule 60(b)(l). Court of Common Pleas Civil Rule 60(b)(l) is similar to Superior
Court Civil Rule 60(b)(l). Both provide relief where judgment was ordered as a
consequence of "mistake, inadvertence, surprise, or excusable neglect."” When
exercising its discretion, Delaware courts pay deference to the policy favoring
disposition of the case on its merits, and generally favor such motions upon almost
any reasonable excuse.” When considering a motion under Rule 60(b)(l), a court
must first determine whether the conduct of the moving party may be characterized
as the conduct of a reasonably prudent person.” If the court determines that the
moving party’s actions may be so characterized, the court will grant the motion if the

moving party shows (l) the possibility of a meritorious defense, and (2) that the non-

35 Super. Ct. Civ. R. 60(b)(l); Ct. Com. Pl. Civ. R. 60(b)(l).
36 Keith v. Melvin L. Joseph Const. Co., 451 A.Zd 842, 846 (Del. Super. 1982).
37 Ia'. (citing Cohen v. Brandywine Raceway Ass ’n, 238 A.2d 320, 325 (Del. Super. 1968))_._

ll

Stone Creek Custom Kitchens v. Vincent
C.A. No. Kl6A-Ol-002 WLW
July 20, 2016

of justice provision is addressed to the sound discretion of the court,” and the
standard for assessing such claims is the "extraordinary circumstance" test as set forth
in federal law.4°

Stone Creek claims a "parade of horribles has led to their current position.
They claim, inter alia, that service was improper, orders we not docketed correctly,
submissions were improperly rejected, and extraneous entries by a Court Clerk led
to prejudice. For instance, Stone Creek claims the Vincent’s "lied on their declaration
to the Court regarding service of Stone Creek,"4l and that the Vincent’s affidavit of
service in the Justice of the Peace Court "was at best defective, and at worst
fraudulent."42 As the Magistrate noted in the Justice of the Peace Court order dated
January 26, 2015, these characterizations were discourteous and inaccurate.43 The
Vincents supplied receipts showing mailings to Stone Creek and Braaten dated May
7, 2014, with return receipts requested.44 They were also able to show that the
envelope delivered to Braaten was refused,45 and that the envelope delivered to Stone

Creek was unclaimed.46 Moreover, the Vincents informed counsel for Stone Creek

39 Christina Bd. OfEa'uc. v. Chapel St., 1995 WL l63509, at *3 (Del. Super. Feb. 9, 1995),
aff’ d sub nom. Chrysler First Fin. Servs. Corp. v. Porter, 667 A.2d 1318 (Del. l995) (citing VVife
B v. Husbana' B, 395 A.2d 358, 359 (Del. 1978)).

40 Id. (citing Jewell v. Div. of S0c. Servs., 401 A.2d 88, 91 (Del. l979)).
41 Appellant’s Opening Br. at 8.

42 Ia'. at 14.

43 J.P. Order of Jan. 26, supra note 9, at 2.

44 Appellee’s Answering Br., Ex. 6.

45 Id., EX. 8.

46 Id., Ex. l3.

13

Stone Creek Custom Kitchens v. Vincent
C.A. No. Kl 6A-Ol-O02 WLW
July 20, 2016

attempted to avoid service by either refusing or not claiming properly mailed
complaints. This is especially true in light of the Vincent’s attempts to inform both
Braaten and counsel for Stone Creek of their continuing attempts at service via email.

Stone Creek also claims to have been prejudiced because "[t]he underlying
action in the Justice of the Peace Court was rampant with technological problems and
clerk error,"5° and there were continuing prejudicial effects from technological errors
in the Court of Common Pleas. However, both courts investigated alleged problems
and took corrective action where needed. The Justice of the Peace Court
acknowledged docketing errors and clerk mistakes and is making changes to ensure
they do not happen in the future. An acknowledged mistake can hardly be considered
prejudicial. The Court of Common Pleas investigated the electronic docket and found
no discrepancies. What is absent from the scenario is any indication that counsel for
Stone Creek took proactive steps to determine if there were problems on their end.
There has been no prejudice or manifest injustice as a result of technological
problems or clerk error.

T he Vz`ncents sujj‘z`ciently addressed all arguments related to the appeal

In its reply brief, Stone Creek cites Emerald Partners v. Berlin” and Harbor
Finance Partners Ltd. v. Butler” for the proposition that any arguments raised on
appeal but not addressed in the answer are deemed unopposed. Emerald Partners

notes that the appellant had waived any argument it had against the defendant on a

50 Appellee’s Answering Br. at 20.
51 Emerald Partners v. Berlin, 726 A.Zd 1215 (Del. 1994).
52 Harbor Fin. Partners Ltd. v. Butler, 1998 WL 2940l l, at *l (Del. Ch. June 3, 1998).

15

Stone Creek Custom Kitchens v. Vincem‘
C.A. No. Kl6A-01-002 WLW
July 20, 2016

under the jurisdiction of the Justice of the Peace Court. The Court is left with the
impression that the Vincents were diligently trying to prosecute the action while
Stone Creek was diligently trying to avoid service. To be sure, Stone Creek also
blames court clerks and the electronic filing system for their current woes, but those
issues were addressed by each court below and no prejudice accrued to Stone Creek.
lt appears to this Court that Stone Creek has been treated fairly as this action wound
through the various lower courts, and that Stone Creek’s current predicament is self-
inflicted For the foregoing reasons the decision of the Court of Common Pleas is
AFFIRMED.
IT IS SO ORDERED.


Resident Judge

WLW/dmh

17

