Summary
interpreting the semicolon in Superior Court Rule 6(b)
Summary of this case from Carlyle Inv. Mgmt. L.L.C. v. Moonmouth Co. S.A.Opinion
C.A. No. 03C-11-021 (THG).
Submitted: June 3, 2005.
June 10, 2005.
Jeffrey S. Welch, Esquire, Jaclyn Cramer, 824 Market Street, Suite 805, P.O. Box 25307, Wilmington, DE 19899.
Eugene M. Lawson, Jr., Esquire, Fletcher, Heald Hildreth, P.L.C., 1300 North 17th Street, 11th Floor, Arlington, VA 22209.
William E. Wright, P.A., 1632 Savannah Road, Suite 4, P.O. Box 215, Lewes, DE 19958.
Dear Counsel:
The Court issued a decision on Wednesday, March 30, 2005 granting in part and denying in part the Defendant's Motion for Summary Judgment. Plaintiff's counsel entered the hospital for emergency treatment the same day. On April 4, 2005, the Court received a faxed Motion for Enlargement of Time to File a Motion for Reargument. On April 5, 2005, the Prothonotary received a signed copy of the Motion for Enlargement of Time to File a Motion for Reargument. On April 6, 2005, the Prothonotary received Plaintiff's Motion for Reargument, which was endorsed with a rubber stamp signature of the attorney of record. The Motion for Reargument was rejected by the Prothonotary for failure to include an authentic signature by at least one attorney of record. On April 8, 2005, Plaintiff's counsel submitted a second Motion for Reargument, bearing an authentic signature of an attorney of record.
Del. Sup. Ct. Civ. R. 11.
After a number of continuances by Plaintiff's counsel, the Motions were presented to the Court on June 3, 2005. This is the Court's decision on the Plaintiff's Motion for Enlargement of Time to file a Motion for Reargument and Motion for Reargument. For the foregoing reasons, the motions are DENIED.
This written decision supports the findings and rulings I made from the bench on June 3, 2005.
According to Superior Court Civil Rule 6(b), enlargements of time cannot be granted for Motions for Reargument. That rule states, in relevant part, that:
Del. Sup. Ct. Civ. R. 6(b).
[w]hen by these Rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the Court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect ; but it may not extend the time for taking any action under Rules 50(b), 52(b) [omitted], 59(b), (d) and (e), 60(b), except to the extent and under the conditions stated in them.
Del. Super. Ct. Civ. R. 6 (b) (emphasis added).
First, the portion of the rule beginning with the semicolon should be read as an independent clause from the preceding section. The Harbrace College Handbook states that "especially when the second independent clause reveals a contrast or when one independent clause contains commas, a semicolon separates independent clauses." Another court to consider semicolon usage in statutory language found that where "the punctuation mark after each succeeding phrase is a semicolon, as here, its use to separate the proviso from the immediately preceding phrase indicates that the proviso was intended to apply to all the antecedent propositions." Semicolons "`separate with more distinctness than commas.'" Therefore, the phrase should be read independently.
Sanzone v. Board of Police Comm'rs, 219 Conn. 179, 190 (Conn. 1991).
Id. quoting West Hartford v. Thomas D. Faulkner Co., 126 Conn. 206, 210-11, 10 A.2d 592 (1940).
Second, a number of Delaware Courts have interpreted the interplay between Rule 6 (b) and Rule 59 as absolutely precluding the Superior Court's right to grant an extension for time for certain motions. In considering a Superior Court's power to enlarge the time to file a motion for a new trial, the Supreme Court ruled that "[b]y the explicit provision of Superior Court Civil Rule 6 (b), the Superior Court lacked the power to enlarge the time for filing the motion for new trial." In the lower case, the Superior Court granted an enlargement of time for the filing of a motion for a new trial within the 10 day period provided by the rules. The Supreme Court held that the lower court's permission to extend the time to file a motion for new trial was outside its jurisdiction and that "the Superior Court had no power to entertain the untimely motion; and it is elementary that counsel could not confer the power and jurisdiction upon the Court by consent or otherwise."
Preform Building Components v. Edwards, 280 A.2d 697, 698 (Del. 1971) (reversed on other grounds).
Id.
The Supreme Court held in Preform that Superior Court was outside its jurisdiction when it granted permission for a party to file a motion for a new trial outside the 10 days provided for in the Rules. The Supreme Court held that the Superior Court exceeded its jurisdiction despite the fact that the Motion for Enlargement had been entered before the expiration of the period originally prescribed. Section 59 (e), the section governing motions for reargument, is similarly excepted from Rule 6 (b) for enlargements by the Court. Other Delaware courts dealing with similar rules have precluded the application of motions to enlarge for Reconsideration or Motions for a New Trial and have withstood review by the Delaware Supreme Court.
Preform, 280 A.2d at 698.
Id.
Del. Super. Ct. Civ. R. 6 (b).
In Re the Matter of Gordon L. Hall v. Rachel E. Moore, 832 A.2d 1264, 1266 (Del.Fam.Ct. 2003).
Penn Mart Realty Company v. Perelman, 529 A.2d 772 (Del. 1987); Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969).
A Motion for Reargument must be served and filed within five days after the filing of the Court's opinion. The Plaintiffs filed a Motion for Reargument on April 6, 2005, the fifth day after the issuance of the decision. However, the Motion was summarily rejected by the Prothonotary's office because the pleading contained a rubber-stamped signature. On April 8, 2005, the Plaintiffs submitted another Motion to Reargue, including a valid signature on the pleading. However, the second submission of the motion fell outside the time period allowed for Motions to Reargue. Plaintiff's counsel argued that the Motion should be permitted because the initial motion to reargue was timely, although defective. Essentially, Plaintiff's counsel contends that the untimely motion of April 8, 2005 be permitted to relate back to the timely filing of April 6, 2005.
Del. Sup. Ct. Civ. R. 59 (e).
Rule 11 (a) governs the signing of pleadings and other motions presented to the Court. It requires that "[e]very pleading, motion, and other paper shall be signed by at least 1 attorney of record in the attorney's individual name. . . ." However, the rule is not unforgiving, for it allows that "[a]n unsigned paper shall be stricken unless it is corrected promptly after the omission of the signature is called to the attention of the attorney or party." The forgiving language included in the Rule has been interpreted by Delaware courts as permitting rejected pleadings to establish a timely filing date.
Del. Super. Ct. Civ. R. 11.
Id.
In Hunter v. McGee, this Court ruled that a defective praecipe and complaint, which were submitted unsigned on the last day of the statute of limitations period and summarily rejected by the Prothonotary, could be amended after the running of the statutory period. The Court ruled that a failure to sign a pleading did not constitute fatal error. Instead, the Court ruled that a moving party will be permitted to cure the defect as long as they do so promptly.
Hunter v. McGee, 820 A.2d 1167, 1169 (Del.Super. 2001).
Id.
Id.
As soon as the Plaintiffs were made aware of the defect in their filing, they corrected the mistake. Two days after the defective filing, they submitted a corrected Motion for Reargument. Therefore, the technical defect included in their first filing will not bar the Plaintiff's motion.
A Motion for Reargument is the proper way to seek a Court's reconsideration of its findings of facts and conclusions of law. Traditionally, motions for reargument allow a trial judge to correct errors before a case is appealed to a higher court. However, a motion for reargument must be denied unless the moving party can show that the trial judge failed to consider controlling precedent or misunderstood the law or facts in a material manner that altered the outcome of the decision. After reviewing the Motion to Reargue on its merits, I find it unnecessary to entertain this matter again.
Hessler, 260 A.2d at 702.
Beatty v. Smedley, 2003 Del. Super. LEXIS 437, at *6 (Del.Super.Ct. 2003).
Id.
During the hearing on June 3, 2005, Plaintiff's counsel attempted to put forth several grounds on which he believed reargument should be granted. I did not find any of the proffered arguments worthy of reconsideration. The principal contentions by Plaintiff were either a rehashing of the arguments made in the pleadings and covered in the decision or new arguments which were not previously proffered. On a motion to reargue, the Court does not consider arguments previously proffered and rejected. Nor does the Court consider new arguments that were not raised before the motion for summary judgment.
Carlozzi v. Fid. Cas. Co., 2001 Del. Super. LEXIS 217, at *3-4 (Del.Super.Ct. 2001).
Id.
The only ground that the Court considers worthy of mention here is the Plaintiff's proffer of Seamons v. Snow, a Tenth Circuit decision instructing that a trial judge should not hold an evidentiary hearing to make factual determinations for a Motion for Summary Judgment. The Court agrees with Seamons' premise. The Court understands that Motions for Summary Judgment are to be based on pleadings alone and not prospective evidence. The Court complied with these standards.
Seamons v. Snow, 206 F.3d 1021 (10th Circuit 2000). The Court reiterates its frustration with Plaintiff's counsel as to compliance with the Rules and general courtesy. In April, counsel filed his Motion for Reargument and a substantial memorandum of law supporting the same. Nevertheless, without notifying his opponent or contacting the court, he faxed in another memorandum just twenty-four (24) hours before the motion was argued.
On March 10, 2005, the Court held a hearing in which it requested the testimony of Michael Baylis, a loan officer for Plaintiff. The Court did not request the hearing to gain additional evidence or to make any determination of credibility. Instead, and unfortunately, the Court felt it necessary to verify the accuracy of the pleadings. As discussed at length in my order addressing the Summary Judgment motion, several pleadings in the record contained material misstatements about the collateral descriptions at issue in this action. The Court feared that the same inaccuracies that plagued the Plaintiff's pleadings may have been present in Mr. Baylis' sworn affidavits, which were prepared by the same law office. The Court recognizes that this course of action is not routine or necessary in most cases, but the evolution of this case necessitated clarification of the pleadings. Therefore, for the sake of judicial economy and in order to ascertain whether there existed a material issue of fact, the Court needed to inquire as to the accuracy of these pleadings. With this intention, the Court requested Mr. Baylis' sworn testimony on the topics covered in his affidavit. As suspected, Mr. Baylis was unable to affirmatively confirm the statements presented in his affidavit as to "fixtures."
Plaintiff's counsel suggests that by holding the March hearing, this Court somehow unfairly expanded the permissible evidence to be considered at the summary judgment stage. I disagree. The hearing's only purpose and accomplishment was to confirm or deny the accuracy of the affidavit by having the affiant testify. Again, it is not normal for the Court to take this type of action, but nor is it normal for the Court to be presented briefs with material misstatements and mistakes. The Court felt that confirming these facts was necessary in order to rule on the summary judgment motion. Again, I heard one witness and that was Plaintiff's loan officer.
Moreover, Plaintiff's counsel seemed to suggest that the Court made certain determinations of credibility from the evidence gathered at the hearing. A careful reading of the pleadings led the Court to find it unlikely that Mr. Baylis specifically referred to fixtures in his purported conversation with Mr. Stein. And while the Court did take notice of Mr. Baylis' failure to confirm the statements in his affidavit at the hearing, the Court alternatively based its decision on various grounds apart from Mr. Baylis' testimony at the hearing.
Plaintiff's counsel argued that the affidavit of Mr. Baylis, about which the Court was concerned, stated Mr. Baylis specifically referenced fixtures in his conversation with Mr. Stein. At the hearing, Mr. Baylis stated under oath that he could not affirmatively state that he used the word "fixtures." "Fixtures" in this case is a critical legal term. Plaintiff's witness testified in court differently than in his affidavit, which was prepared by Plaintiff's counsel. Counsel used this variation in testimony to argue that a question of fact existed. Essentially, Plaintiff desires to create a dispute of fact based on the inconsistent testimony of his own witness.
The only information gleaned at the hearing in March concerned Mr. Baylis' inability to confirm the statements made in his affidavit. This evidence is relevant only to the fraud, promissory estoppel and misrepresentation claims. Even viewing the evidence in a light most favorable to the Plaintiffs, these claims were unable to withstand summary judgment review. For the reasons cited herein, the reasons I provided at the June 3, 2005 hearing, and for the reasons summary judgment was granted on March 30, 2005, the Plaintiff's Motion for Reargument is DENIED.