  IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE

                         IN AND FOR NEW CASTLE COUNTY



LINDEN GREEN CONDOMINIUM              )
ASSOCIATION,                          )
                                      )
    Plaintiff/Counterclaim-Defendant, )
                                      )
            v.                        )             C.A. No. CPU4-13-000565
                                      )
UBALDO CESAR,                         )
                                      )
    Defendant/Counterclaim-Plaintiff. )


                                   Submitted: May 20, 2015

                                     Decided: July 7, 2015


Christopher J. Sipe, Esquire                                       Ubaldo Cesar
P.O. Box 8092                                                      P.O. Box 5413
Newark, DE 19714                                                   Wilmington, DE 19808
Attorney for Plaintiff/                                            Defendant/
Counterclaim-Defendant                                             Counterclaim-Plaintiff, Pro se


                ORDER ON DEFENDANT’S MOTION TO VACATE


       Plaintiff/Counterclaim-Defendant       Linden     Green     Condominium       Association

(“Plaintiff”) brings this action against Defendant/Counterclaim-Plaintiff Ubaldo Cesar’s

(“Cesar”) for failure to pay condominium association fees. Cesar filed a counterclaim against

Plaintiff, alleging Plaintiff failed to repair a leaking pipe in his condominium unit resulting in

damage to the unit.
         The Court scheduled the trial for May 12, 2015 and the parties were sent notice to

appear at 8:30 a.m.1 At a hearing on May 8, 2015, defense counsel was granted leave to

withdraw from the case, but was ordered to appear on May 12, 2015 to address any notice

issue which may surface prior to the trial. At 9:13 a.m. on the morning of trial, Cesar had

not appeared; therefore, the Court entered Judgment for Plaintiff on liability, dismissed

defense counsel, and dismissed Cesar’s counterclaims. Following, the Court commenced a

hearing to determine damages. Just as Plaintiff completed its case on damages, Cesar

appeared at 9:33 a.m.2              Cesar now moves the Court to vacate the judgment and any

conclusions it may reach regarding the inquisition hearing.

         Cesar did not present his position in a formal motion, but stated on the record the

proceedings should be vacated. Cesar stated he had a situation with his attorney and he did

not know the time the trial was scheduled. He further stated his attorney withdrew from the

case on May 7, 2015; he did not provide him any information; his attorney did not return his

calls; he was not notified of the time the trial was scheduled and he had no information to

proceed with the trial because his attorney retained all his materials. Cesar also indicated he

intended to appeal.

         The Court reserved decision on Cesar’s motion to vacate and the value of damages.

The Court also on May 12, 2015 sent a letter to former Defense Counsel requesting he

address the issues raised by Cesar at the conclusion of the trial.




1
  The docket entry October 27, 2014, indicates that trial in this case is scheduled for May 12, 2015 and the parties were
noticed to appear at 8:30 a.m.
2
  See Transcript of Court Journals May 12, 2015, Page 4 (attached as Exhibit A)

                                                            2
        Former defense attorney responded on May 18, 2015 to the Court’s inquiry. The

response provided to the Court indicated Defense Counsel advised Mr. Cesar on May 7,

2015 electronically and by telephone voicemail message of the motion hearing. The trial

date was included in that material.           Defense Counsel further indicated he received a

voicemail message from Cesar at 6:30 a.m. on May 8, 2015 confirming receipt of his call and

requesting that he cease all further communication with him. Further, Cesar did not appear

at the motion hearing held on the morning of May 8, 2015. Finally, Defense Counsel

indicated that on April 20, 2015, he received discovery from plaintiff which was voluminous,

but he was unable to reach Cesar until May 5, 2015, the date he filed the motion to

withdraw.



                                                DISCUSSION

        “A motion to vacate a default judgment pursuant to . . . Civil Rule 60(b) is addressed

to the sound discretion of the Court.”3 Three elements must be proven by the movant

before a motion to vacate judgment is granted:


                (1) excusable neglect in the conduct that allowed the default
                judgment to be taken; (2) a meritorious defense to the action
                that would allow a different outcome to the litigation if the
                matter was heard on its merits; and (3) a showing that
                substantial prejudice will not be suffered by the plaintiff if the
                motion is granted.4




3 Verizon Delaware, Inc. v. Baldwin Line Const. Co., Inc., CIV.A.02C-040212JRS, 2004 WL 838610, at *1 (Del.
Super. Apr. 13, 2004).
4 Id.


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           “Excusable neglect is defined as the actions of defendant which might have been the

acts of a reasonably prudent person under similar circumstances.”5 Further, although

Delaware courts hold pro se litigants to a “somewhat less stringent standard” in their filings

and interactions with the Court, a party’s pro se status is “not a blank check for defect.”6

           After an in-camera review of Macconi’s communications with Cesar and the docket, it

is unreasonable to believe that Cesar was not aware of the trial date. The communications

show that Macconi provided notice of the trial date in writing on two separate occasions,

including a May 5, 2015 email with court documents discussing the trial date. Cesar’s

assertion that he was not made aware of the trial date is not supported, and is contrary to

documents in the record.

           Cesar is correct that he did not have the documents to move forward with a defense,

but this was of his own making. Defense Counsel indicates that he could not reach Cesar to

discuss the case, and when he did reach him, he was informed to cease all communications

with him. With these proceedings progressing, a reasonable person would take steps to

appear at scheduled proceedings to protect his interest. Here, Cesar did not appear on his

attorney’s application to withdraw, nor did he appear for trial.

           Accordingly, under this set of facts, the Court cannot find that Cesar’s conduct was

that of a reasonable person under similar circumstances which would support a finding of

excusable neglect.

           Turning next to the issue of whether there exists a meritorious defense, Cesar in his

counterclaim seeks offset of any damages awarded to Plaintiff for alleged failure to repair a

5   Lewes Dairy, Inc. v. Walpole, 1996 WL 111130, at *2 (Del. Super. Jan. 5, 1996).
6   Sloan v. Segal, 2008 WL 81513, at *7 (Del. Ch. Jan. 3, 2008).
                                                          4
leaking pipe in his condominium unit. Cesar alleges that he stopped paying the assessment

because Plaintiff’s failure to repair the pipe prevented him from renting the condominium

unit to potential tenants. Cesar’s argument here lacks merit because Delaware courts have

held that a homeowner’s obligation to pay condominium association assessments is not

conditioned upon the fulfillment of the association’s obligation to homeowners.7 In other

words, assuming arguendo that Plaintiff indeed failed to repair the pipe, such failure does not

absolve Cesar of his obligation to pay assessments. Because, as the Court stated in the Park

Centre case:

                  “Whatever grievance a unit owner may have against the
                  condominium trustees must not be permitted to affect the
                  collection of lawfully assessed common area charges. A system
                  that would tolerate a unit owner’s refusal to pay assessment
                  because the unit owner asserts a grievance, even a seemingly
                  meritorious one, would threaten the financial integrity of the
                  entire condominium operation.        For the same reason that
                  taxpayers may not lawfully decline to pay lawfully assessed taxes
                  because of some grievance or claim against the taxing
                  governmental unit, a condominium unit may not decline to pay
                  lawful assessments.”

         Finally, although Plaintiff would suffer inconvenience, there is no basis to conclude it

would be substantially prejudiced if the default judgment is vacated. However, since I find

Cesar’s conduct does not constitute excusable neglect and the results of the proceeding

would not likely be different, there is no basis to grant the motion. Therefore, Cesar’s

motion to vacate the dismissal of his counterclaim and the Court order entering default on

liability is denied.



7Park Centre Condominium Council v. Epps, 1997 WL 817875 (Del.Super. May 16, 1997) (holding that the obligation to pay
assessments of the condominium association is not dependent upon the fulfillment of any obligation which the
association may owe to the homeowner)).

                                                          5
                                           ORDER ON DAMAGES

         At trial, after the Court entered default judgment against Cesar on liability, the Court

held an inquisition hearing to determine damages. Plaintiff introduced its exhibits through

its sole witness, Christopher Dimarco.8

         Plaintiff’s testimony and exhibits indicate that the purpose of the condominium fee is

for the maintenance of common areas.9 Cesar entered into a contract with Plaintiff for unit

A-2. Pursuant to the agreement, he is required to pay monthly condominium assessment.

When Cesar first took ownership of unit A-2, in 2002, the condominium assessment was

$195/month.10 Dimarco testified that as the cost of maintenance increases, the

condominium assessment increases. The assessment increase at the beginning of each

calendar year. In 2015, unit A-2’s condominium assessment increased to $377.44/month.11

         Plaintiff’s Exhibit No. 5 “Statements” indicates when Cesar made a payment on

November 30, 201112; he had an outstanding balance of $2,012.50, for the period ending

December 18, 2011, excluding the finance charge. The condo fees from December 31, 2011

to May 1, 2015 are $13,536.39, late fees of $1,000.00, and finance charges of $4,702.64.13 In

calculating the amount due, I find that Plaintiff has established a claim for the condo fee of

$13,536.39 and late fees of $1,000.00. I find no basis for the claim based upon finance

charges of $4,702.64 and do not award any amount on this matter.


8Dimarco has been Plaintiff’s property manager since 2013. He oversees the management of the condominium

association and the individual units. The association is governed by a five-member board, and holds monthly meetings
open to all condominium owners. The Court accepted eight exhibits into evidence.
9 See Plaintiff’s Ex. 1. The rules and regulations of the association are kept in the management office, and may be printed

from the association’s website.
10 Pl.’s Ex. 4.
11 Id.
12
   See Pl.’ Ex. 5-8.
13
   Pl.’s Ex. 5.

                                                            6
            Plaintiff seeks $401.00 to file and record the lien, and $9,316.64 in attorney’s fees.14

Based upon the nature of litigation, the complexity of issues, and the length of the trial, I

award attorney’s fees in the amount of $5,589.98, and the amount to cover cost of the lien.

            Accordingly, judgment is entered for plaintiff in the amount of $14,937.39, attorney’s

fees of $5,589.98, costs, and post-judgment interest of 5.75% until paid.



                                                                    SO ORDERED



                                                                    ________________________
                                                                    Alex J. Smalls
                                                                    Chief Judge

Linden Green-ORD July 2015 (LR)




14
     Id. See also Pl.’s Ex. 2, Article 1 Section 2(b), authorizing the collection of attorneys’ fee.

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