Opinion
C.A. No. 09C-09-203 AML
01-03-2019
RE: Lawrence E. Mergenthaler v. Triumph Mortgage Corp.
John A. Sergovic, Jr., Esquire Rachel Bleshman, Esquire Sergovic Carmean Weidman McCartney & Owens, P.A. 406 South Bedford Street, Suite 1 P.O. Box 751 Georgetown, DE 19947 Richard L. Abbott, Esquire Abbott Law Firm, LLC 724 Yorklyn Road, Suite 240 Hockessin, DE 19707
John A. Sergovic, Jr., Esquire
Rachel Bleshman, Esquire
Sergovic Carmean Weidman McCartney
& Owens, P.A.
406 South Bedford Street, Suite 1
P.O. Box 751
Georgetown, DE 19947 Richard L. Abbott, Esquire
Abbott Law Firm, LLC
724 Yorklyn Road, Suite 240
Hockessin, DE 19707 Dear Counsel,
This is an action that, at this stage, involves Plaintiff's ongoing efforts to collect on a judgment entered against Defendant. On January 6, 2017, Defendant's counsel filed a general entry of appearance indicating counsel represented Defendant "in this action." On October 12, 2018, Plaintiff's counsel served on Defendant's counsel discovery requests relating to Plaintiff's execution efforts. On December 18, 2018, Plaintiff filed a motion to compel responses to that discovery (the "Motion"). After the Motion was filed, Defendant's counsel filed a "corrected entry of appearance" purporting to limit the scope of counsel's representation to motions to quash and "related proceedings." In a nutshell, Defendant's counsel appears to contend that he represents Defendant only for purposes of quashing a writ of execution and not for any other purpose, including the discovery. Accordingly, Defendant's counsel asserts Defendant never was served with the discovery that is the subject of the Motion.
D.I. 94.
Defendant's counsel first advised Plaintiff of the limited scope of the representation in late November 2018, after Plaintiff wrote to Defendant's counsel about the overdue discovery responses.
This morning, the Court heard Plaintiff's Motion. Neither Defendant nor Defendant's counsel appeared at the hearing. Simultaneously with this letter, the Court is entering an order granting the Motion. This letter briefly summarizes the Court's ruling on the Motion; the Court explained the ruling in greater depth at the hearing.
First, the Court considered sua sponte whether Defendant's pending appeal divests the Court of jurisdiction to consider the Motion. The Court concluded that it retains jurisdiction over the discovery and the Motion because the discovery is independent from the subject of the appeal, which is the writ of execution and the associated motion to quash. The discovery relates to Plaintiff's other collection efforts, and the Supreme Court's ruling on the appeal will not alter whether Plaintiff is entitled to engage in those collection efforts. Although the general rule is that proper perfection of an appeal divests a trial court of jurisdiction over a cause of action, in some instances the trial court may exercise its jurisdiction as to collateral or independent matters. In my view, this discovery is collateral to, and will not be affected by, the resolution of Defendant's appeal.
In its November 26, 2018 opinion, the Court denied the motion to quash and concluded the writ of execution was valid. If the Supreme Court affirms that ruling, Plaintiff's judgment against Defendant still will not be satisfied. Accordingly, Plaintiff's efforts to continue collecting on the judgment are independent of the issues on appeal to the Delaware Supreme Court.
Radulski ex rel Taylor v. Delaware State Hosp., 541 A.2d 562, 567 (Del. 1988). See also Shaw v. Metzger, 1985 WL 199884 (Del. Super. Jun. 25, 1995).
This is consistent with the Court's earlier ruling granting the Motion to Allow Execution on Judgment in the Alternative. The Court concluded the Motion could be heard and granted without prejudicing either side's position regarding the writ of execution and the motions to quash it. See D.I. 181.
Second, the Court considered whether Defendant properly was served with the discovery at issue. Under Superior Court Civil Rule 11(b), service on a party represented by an attorney must be made upon that party's attorney. At the time Plaintiff served the discovery, Defendant's counsel had entered a general appearance on behalf of Defendant relating to "this action." Nothing in the record suggested the entry of appearance was limited to the motion to quash, and Defendant's counsel previously responded to and opposed a motion unrelated to the motion to quash. Accordingly, at the time the discovery was served, Defendant's counsel represented Defendant in this action, and Plaintiff was required to serve Defendant through its counsel. Service of the discovery and the Motion therefore was effective.
See D.I. 177, 179. Defendant's counsel opposed Plaintiff's Motion to Allow Execution on Judgment in the Alternative even after it was clear that Plaintiff's counsel only was seeking to renew the judgment prospectively and would not use any such renewal to oppose the motion to quash.
Third, the Court concluded the Motion must be granted. Defendant, despite properly being served, has not responded to discovery. More than 30 days have elapsed since discovery was served. Under Superior Court Civil Rule 37(a)(4), Plaintiff also is entitled to an award of attorneys' fees incurred in obtaining the order compelling discovery. Plaintiff's counsel shall file a fee affidavit within five days.
On January 2, 2019, Plaintiff's counsel filed a letter and alternate proposed form of order seeking additional relief, including an order holding Defendant's counsel jointly and severally liable for any attorneys' fee award arising from the Motion. The Court denied this additional relief, finding it was not sought with sufficient notice to Defendant or Defendant's counsel. --------
Finally, the Court hereby advises Defendant's counsel that the "corrected entry of appearance" is not effective in limiting the scope of counsel's appearance in this action. Having filed a general entry of appearance, Defendant's counsel cannot withdraw from some or all aspects of the representation without complying with Superior Court Civil Rule 5(aa)(1).
IT IS SO ORDERED.
/s/_________
Abigail M. LeGrow, Judge Original to Prothonotary