Opinion
C.A. No. CPU5-12-001174
08-01-2013
RE: Tsipouras v. Check & Go
Mr. Alexandros Tsipouras
595 Graves End Road
Smyrna, DE 19977 Kara M. Swasey, Esquire
222 Delaware Avenue, Suite 900
P.O. Box 25130
Wilmington, Delaware 19899 Dear Mr. Tsipouras and Ms. Swasey,
On August 30, 2012, Mr. Tsipouras failed to appear for a trial in the Justice of the Peace Court where he was the Plaintiff. The Court entered a non suit or default judgment for the Defendant due to Plaintiff's failure to appear. On September 7, 2012, Mr. Tsipouras filed a Motion to Vacate the default judgment. On October 2, 2012, the Justice of the Peace Court denied Mr. Tsipouras' Motion to Vacate the Dismissal of his case. On October 11, 2012, Mr. Tsipouras appealed that decision to this Court. The Defendant, Check & Go, moved for Summary Judgment on the grounds that the dismissal of the case was within the discretion of the lower court and should not be reversed as a matter of law. This Court finds that the denial of Plaintiff's Motion to Vacate was an abuse of discretion under the updated guidelines set forth in a recent Delaware Supreme Court decision, as set forth below. The Motion for Summary Judgment is denied and the case is remanded to the Justice of the Peace Court for a trial.
Under the holding in Ney v. Polite, 399 A.2d 527 (Del. 1979), the sole issue on appeal is the denial of the Motion to Vacate the judgment.
Justice of the Peace Court Rule 41(b) permits cases to be dismissed upon motion of a defendant when a Plaintiff fails to prosecute a case by appearing for trial. This rule enabled the judge to dismiss Mr. Tsipouras' case when he failed to appear for this trial. Justice of the Peace Rule 60(b)(1) permits relief from such orders for "excusable neglect." Mr. Tsipouras asked the Court to vacate the dismissal of his case when he failed to appear for trial because he mixed up his dates. He made this motion within days of the dismissal. The judge denied his motion and Mr. Tsipouras appealed to this Court. Counsel for Check & Go asserts that the judge's decision was properly within his discretion and should not be reversed by this Court.
"In reviewing whether the trial court abused its discretion, [a Court should] consider: (i) whether the conduct resulting in the entry of the default judgment was the result of excusable neglect; (ii) whether the outcome of the action may be different if the judgment is reopened; and (iii) whether the nonmoving party will suffer substantial prejudice if the judgment is reopened."
Schrader-VanNewkirk v. Daube, 45 A.3d 149, 150 (Del. 2012) citing Tsipouras v. Tsipouras, 677 A.2d 493, 495 (Del. 1996).
In evaluating these factors, the first consideration is whether Mr. Tsipouras' failure to appear at the courthouse on his scheduled trial date was the result of "excusable neglect" which is defined as "neglect which might have been the act of a reasonably prudent person under the circumstances." Mr. Tsipouras claims that his failure to appear at trial was due to a failure to keep track of his court dates. While it can be argued that a reasonably prudent person would have promptly calendared the trial date, a reasonably prudent person can, from time to time, forget appointments. Therefore, mixing up the trial date one time could be considered "excusable neglect."
Battaglia v. Wilmington Sav. Fund Soc'y, 379 A.2d 1132, 1136 (Del. 1977) (citations omitted).
The second consideration is the possibility that a different outcome would result if this case were reopened. This factor is important because Delaware's public policy favors cases being heard on the merits and judges are directed to apply Rule 60(b) motions liberally as to favor this public policy. Mr. Tsipouras claims that Check & Go wrongly repossessed his motor vehicle, failed to accept his payment and owes him monetary damages. These are factual questions that could be decided in Mr. Tsipouras' favor if he was allowed to present his case at trial.
Schrader-VanNewkirk v. Daube at 150. --------
The third consideration is the possibility of prejudice to the nonmoving party if the case is reopened. Mr. Tsipouras' case was dismissed, however he moved to reopen it quickly and the defendant was notified of his intention to continue to pursue his claim against Check & Go. In addition, the case is fairly straight forward. There is no showing of actual prejudice to Check & Go due to the reopening of this case other than it will have to now address the case on the merits. Any reliance on a default judgment in a case should have been fleeting as Mr. Tsipouras quickly moved to reopen it and timely filed an appeal of the Court's denial of his motion.
Upon review of all the factors, this Court concludes that the Justice of the Peace Court abused its discretion in denying Mr. Tsipouras' motion to reopen the judgment. The case is remanded to the Justice of Peace Court for a trial.
IT IS SO ORDERED.
Sincerely,
/s/
Anne Hartnett Reigle