               IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

     M&T BANK,                                     )
                                                   )
                             Plaintiff,            )
                                                   )
                        v.                         )      C.A. No.: N16C-06-182 EMD
                                                   )
     JOSEPH E. CARBONELL, III, et al.,             )
                                                   )
                             Defendants.           )



                      ORDER GRANTING SUMMARY JUDGMENT
                    AGAINST DEFENDANT JOSEPH E. CARBONELL, III

        Upon consideration of Plaintiff’s Renewed Motion for Summary Judgment (the

“Motion”) filed by Plaintiff M&T Bank (“M&T”); Plaintiff’s Brief in Support of Renewed

Motion for Summary Judgment (the “Brief”) filed by M&T; the exhibits attached to the Brief

including, but not limited to, the Affidavit of Cassie Olsen (the “Olsen Affidavit”); the Stipulated

Briefing Schedule (the “Scheduling Order”); the failure of Defendant Joseph E. Carbonell, III, to

respond to the Motion; the factual and legal arguments set out in the Brief; and the entire record

of this civil action,

        1.      M&T filed the Motion on or about August 18, 2017. Under the Scheduling

Order, Mr. Carbonell had until September 29, 2017 to file a response, or “Opposition Brief, to

the Motion. Mr. Carbonell did not file any response or opposition to the Motion.

        2.      The Motion is supported by the Brief. The Brief sets out uncontested facts and

the law applicable to this civil action. The Olsen Affidavit and the pleadings in this civil action

provide support for the facts relied upon in the Brief.

        3.      The Court has reviewed all exhibits attached to the Brief. Exhibit 1 is the Olsen

Affidavit. Exhibits 2 through 8 are legal documents that apply to the commercial transaction
among Wilmington Trust Company and Moeckel Carbonell Associates, Inc. and Mr. Carbonell.

Exhibit 9 is the Acquisition and Assumption Agreement Between Wilmington Trust Company

and Manufacturers and Traders Trust Company (the “Assumption Agreement”). Manufacturers

and Traders Trust Company is M&T. The Assumption Agreement provides M&T standing to

enforce the obligations at issue in this civil action. The Olsen Affidavit provides a proper

foundation for Exhibits 2 through 9.

         4.       The standard of review on a motion for summary judgment is well-settled. The

Court’s principal function when considering a motion for summary judgment is to examine the

record to determine whether genuine issues of material fact exist, “but not to decide such

issues.”1 Summary judgment will be granted if, after viewing the record in a light most

favorable to a nonmoving party, no genuine issues of material fact exist and the moving party is

entitled to judgment as a matter of law.2 If, however, the record reveals that material facts are in

dispute, or if the factual record has not been developed thoroughly enough to allow the Court to

apply the law to the factual record, then summary judgment will not be granted.3

         5.       The moving party bears the initial burden of demonstrating that the undisputed

facts support his claims or defenses.4 If the motion is properly supported, then the burden shifts

to the non-moving party to demonstrate that there are material issues of fact for the resolution by

the ultimate fact-finder.5




1
  Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992) (internal citations omitted); Oliver B. Cannon
& Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del. Super. 1973).
2
  Id.
3
  Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); see also Cook v. City of Harrington, 1990 WL 35244 at *3
(Del. Super. Feb. 22, 1990) (citing Ebersole, 180 A.2d at 467) (“Summary judgment will not be granted under any
circumstances when the record indicates . . . that it is desirable to inquire more thoroughly into the facts in order to
clarify the application of law to the circumstances.”).
4
  Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970) (citing Ebersole, 180 A.2d at 470).
5
  See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995).
       6.      The Court finds that M&T has met its initial burden of demonstrating that the

undisputed facts and applicable law support its claims against Mr. Carbonell. The Court notes

that Mr. Carbonell has not filed any paper in opposition to the Motion.

       7.      After reviewing the record in a light most favorable to Mr. Carbonell, the Court

finds and holds that no genuine issues of material fact exist and M&T is entitled to judgment as a

matter of law on its claims against Mr. Carbonell.

       8.      Accordingly, the Court will GRANT the Motion.

       9.      The Court also enters JUDGMENT in favor of M&T and against Mr. Carbonell

in the amount of $335,659.14, plus attorneys’ fees and collection expenses of $13,021.10,

interest at a per diem interest rate of $43.53222 per day from August 15, 2017 to January 19,

2018 plus post-judgment interest at the legal rate.

IT IS SO ORDERED this 19th day of January, 2018.


                                              /s/ Eric M. Davis
                                              Eric M. Davis, Judge


CC:    Gregory Arbogast, Esq.
       William D. Sullivan, Esq.
