IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DENNIS D. & DIANE M. BLEVINS,

Plaintiffs,
C.A. No.: N16C-06-06l EMD
v.

HOPE L. METZGAR AND ROBERT O.
METZGAR, JR.,

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Defendants. )
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ORDER (i) DENYING DEFENDANTS/COUNTERCLAIM PLAINTIFFS’
MOTION FOR REARGUMENT - DA UBERT MOTION AND (ii) DENYING
DEFENDANTS/COUNTERCLAIM PLAINTIFFS’ MOTION FOR REARGUMENT -
SUMMARY JUDGMENT MOTION
Upon consideration of Defendants/Counterclaim Plaintiffs’ Motion for Reargument ~
Daubert Motion (the “Daubert Reargument Motion"’) filed by Defendants Hope and Robert
Metzgar on June ]3‘h, 2017; Defendants/Counterclaim Plaintiffs’ Motion for Reargument -
Surnmary Judgment (the “Surnrnary Judgment Reargurnent Motion”) filed by Defendants Hope
and Robert Metzgar on June l3th, 2017; Plaintiff`s Dennis and Diane Blevins not having
responded to the Daubert Reargument Motion or the Summary Judgment Reargurnent Motion;
the Court’s June 6, 2017 Order Denying Defendants’ Dauben‘ Motion to Exclude Piaintiffs’
Proposed Expert Evidences (the “Daubert Order”); the Court’s June 8, 2017 Memorandum
Opinion Denying Defendants’ Motion for Sumrnary Judgment (the “Surnrnary Judgrnent
Opinion”); Superior Court Civil Rule 59(e); the entire record of this civil proceeding and having

determined that no hearing is necessary on the Daubert Reargument Motion or the Summary

Judgrnent Reargurnent Motion,

l. Superior Court Civil Rule 59(e) (“Rule 59(€)”) provides that a party may file a
motion for reargument “Within 5 days after the filing of the Court’s Order or decision.”l The
standard for a Rule 59(e) motion is Well defined under Delaware law.2 A motion for reargument
Will be denied unless the Court has overlooked precedent or legal principles that Would have
controlling effect, or misapprehended the law or the facts such as Would affect the outcome of
the decision.3

2. lmportantly, motions for reargument should not be used merely to rehash the
arguments already decided by the court,4 or to present new arguments not previously raised.5 ln
other Words, a motion for reargument is “not a device for raising new arguments or stringing out
the length of time for making an argument.”6 Such tactics frustrate the efficient use of judicial
resources, place the opposing party in an unfair position, and stymie “the orderly process of
reaching closure on the issues.”7

3. As it relates to the Daubert Order, the Metzgars request reconsideration of the
Court’s finding that the Blevins’ expert, Russell Carlson, applied a proper tree-valuation method
for purposes of the Timber Trespass claim. As it relates to the Summary Judgment Decision, the
Metzgars ask the Court to reconsider its finding that Trespass to Chattels and Conversion are
permissible causes of action for damage to or removal of trees. The l\/letzgars argue that

summary judgment is appropriate on the Trespass to Chattels and Conversion claims as a matter

 

‘ super. Ct. Civ. R. 59(€).

z Kennedy v. [nvacare Corp., C.A. No. 04C-06-028, 2006 WL 488590, at *l (Del. Super. Jan. 31, 2006).

3 Woodward v. Farm Family Cas. Ins. Co., C.A. No. 00C-08-066, 2001 WL 1456865, at *l (Del. Super. Aug. 24,
2001).

4 ld.

5 Plummer v. Sherman, C.A. No. 99C-08-010, 2004 WL 63414, at *2 (Del. Super. Jan. l4, 2004); see also Bd. of
Managers oflhe Del. Crim. Juslice hifo. Sys. v. Gannett Co., C.A. No. 01C-Ol-039, 2003 WL 1579170, at *3-4
(Del. Super. Jan. 17, 2003) rev ’d On other grounds, Gannett Co. v. Bd. of Managers oflhe De/. Crim. Jusll`ce lnfo.
Sys., 840 A.2d 1232 (Del. 2003).

" Gmmen, 2003 WL 1579170, at *i.

7 Plummer, 2004 wL 63414, ar *2.

of law, and that the Court should exclude Mr. Carlson from testifying based on his improper tree-
valuation method.

4. The Court does not find that it overlooked legal precedent or misapprehended the
law or facts in the Daubert Order or the Summary Judgment Opinion. l\/loreover, the Metzgars
raise new arguments that they did not present, but could have presented, in their initial briefing
before the Court.8 As such, the Court will not grant reargument on these new arguments
Finally, these new arguments address disputes that can be resolved by the Court at or right before
trial, as opposed to on a motion for summary judgment or Dauberl motion. Accordingly, the
Court finds no basis to grant reargument

5. The reality of this civil action is that the Metzgars have admitted to the Blevins
that they removed some trees from the Blevins’ property.9 That issue is not contested. Section
1401 of Title 25 provides for a remedy when such an event occurs. The remedy may differ
depending on whether the party removes the tree negligently or intentionally, but there is a
remedy. The l\/letzgars, recognizing this, are attempting to exclude any damages evidence
presented by the Blevins. The Blevins’ expert characterized his opinion as “restoration” value
instead of “replacement” value; however, the Court does not find this characterization to mean

that the expert’s testimony should be excluded. As such, the Court will allow Mr. Carlson to

testify.

 

8 For example, in the Metzgars initial motion for summary judgment, the Metzgars argued that trees constituted real
property, not personal property, and that claims for Trespass to Chattels and Conversion could not be maintained
based thereupon. Now, in the Summary Judgment Reargument Motion, the Metzgars argue for the first time that the
common law recourse for the unlawful removal of trees is Trespass Quare C/asum Fregit, not Trespass to Chattels
or Conversion. Additionally, in the Metzgars initial Daubert motion, the Metzgars argued that Mr. Carlson’s
“restoration plan” was not an appropriate damages valuation method because it was not the replacement cost method
or the before and after method. The Court held in the Daubert Order that Mr. Carlson’s “restoration plan” was, in
effect, the replacement cost method. Now, in the Daubert Motion for Reargument, the Metzgars argue for the first
time that the Court must strictly construe the Timber Trespass statute to limit damages to the value of the trees
removed.

9 See Compl. 11 5 (“Metzgar admitted to Blevins that they had removed some trees from the Property”); Answer 11 5

(“Admined”).

IT IS HEREBY ORDERED that Defendants/Counterclaim Plaintiffs’ Motion for
Reargument - Daubert Motion is DENIED and Defendants/Counterclaim Plaintiffs’ Motion for

Reargument - Summary Judgment is DENIED.

Dated: June 22, 2017 ‘
Wilmington, Delaware v v@_
QA
r' .

avis, Judg§~/
CC: Donald L. Gouge, Jr., Esq.
Richard L. Abbot, Esq.

