Opinion
C.A. No. 06A-10-008 RRC.
Submitted: October 10, 2007.
Decided: December 14, 2007.
On Appeal from the Court of Common Pleas. AFFIRMED.
Ms. Bernadette Montgomery Wilmington, DE.
Richard L. Renck, Esquire Andrew D. Cordo, Esquire Ashby Geddes Attorneys for Defendant.
Dear Ms. Montgomery, Mr. Renck and Mr. Cordo:
Before the Court is Bernadette Montgomery's ("Appellant") appeal from an order of the Court of Common Pleas dismissing with prejudice her claim against sanofi-aventis U.S. Inc. ("Appellee") (per Appellee, its correct name.) The Court of Common Pleas dismissed her claim as barred by the three year statute of limitations under 10 Del. C. § 8106. The Court agrees, and the decision is AFFIRMED.
I. FACTS AND PROCEDURAL HISTORY
This case arises out of an alleged debt Appellant claims Appellee has owed her since 2001.
Appellant was employed by Appellee from October 9, 2000, until her resignation on May 17, 2001. Appellant's job with Appellee required her to travel, and Appellee agreed to reimburse Appellant for business expenses that Appellant incurred. Appellee issued Appellant a corporate American Express credit card to use for her expenses.
Compl., D.I. 1, ¶¶ 3, 5.
Following her resignation, Appellant claimed that some of her business-related expenses had not been reimbursed by Appellee. Appellee claimed that it had reimbursed her for all expenses, and denied that it owed her any further reimbursement.
By July 2001, Appellant had engaged counsel to attempt to collect the disputed amounts. Appellant's counsel sent two letters to Appellee, the first on July 20, 2001, and the second on May 20, 2002. Both letters requested payment of a variety of expenses. In response, Appellee again denied that it was responsible for any of the alleged expenses, but stated that it would reimburse any expenses that Appellant could substantiate.
On February 2, 2006, Appellant filed this action in the Justice of the Peace Court seeking damages totaling approximately $9,500. The Justice of the Peace Court granted Appellee's motion to dismiss, holding that the three year statute of limitations under 10 Del. C. § 8106 barred Appellant's claim.
Appellant appealed to the Court of Common Pleas, and Appellee again filed a motion to dismiss. The Court of Common Pleas granted Appellee's motion to dismiss, holding, as did the Justice of the Peace Court, that the July 20, 2001 letter had triggered the statute of limitations, and that her claim was untimely under 10 Del. C. § 8106.
Following the dismissal, Appellant filed the instant appeal.
II. CONTENTIONS OF THE PARTIES
Appellant identifies eleven issues in her opening brief. Most of these issues deal with the merits of the underlying claim, though some address the issue on appeal of whether Appellee's claim was filed within the time period mandated by the applicable statute of limitations. Appellant's primary contention appears to be that 10 Del. C. § 8106 applies only to contracts, and that since there was no contractual relationship between Appellant and Appellee, it is proper to view the debt as a promissory note, which, under 10 Del C. § 8109, has a six year limitation period. Appellant also argues for the first time on appeal that New Jersey law applies to her claim, which apparently has a six year statute of limitation. She bases this on her assertion that Appellant and American Express entered into a contract in New Jersey.
Appellant's Opening Br., at 1-3
Id. at 5-6.
Id. at 4.
Appellee contends that 10 Del. C. § 8106 applies to Appellant's claim since it is an action to collect a debt, which actions are covered by 10 Del. C. § 8106. Appellee maintains that the statute's three year limitation period began on July 20, 2001, the date of Appellant's first letter to Appellee regarding the disputed debt, and ended three years later, on July 20, 2004, before Appellant filed her claim in the Justice of the Peace Court on February 2, 2006. Appellee argues that the alleged debt was not secured by written instrument, that Appellee has never acknowledged that it owes Appellant her claimed expenses, and that therefore 10 Del. C. § 8109 does not apply. As to Appellant's argument that New Jersey law applies, Appellee cites Delaware's borrowing statute, 10 Del. C. § 8121, which requires the Court "to apply the shorter of the limitation periods as between Delaware and the state in which the action arose." Appellee asserts that Delaware's three year limitation period applies under this statute.
Appellee's Answering Br., at 6.
Id. at 6-7.
Id. at 7.
III. STANDARD OF REVIEW
IV. DISCUSSION
de novo Del. C.8106 Del. C.8106
Wright v. Platinum Financial Services, 2007 WL 1850904, at *2 (Del. June 28, 2007).
Del. State Housing Authority/Clark's Corner v. J. of Peace Ct. 16, 2007 WL 625901, at *2 (Del.Super.Ct. Jan 25, 2007).
The Court cannot agree with Appellant's argument that 10 Del. C. 8109 applies to her claim. 10 Del. C. § 8109 reads, in full,
[w]hen a cause of action arises from a promissory note, bill of exchange, or an acknowledgment under the hand of the party of a subsisting demand, the action may be commenced at any time within 6 years from the accruing of such cause of action.
Promissory notes and bills of exchange are both written instruments. Appellant has submitted no written instrument that could be construed as either a promissory note or a bill of exchange. Neither has Appellant provided any record that Appellee has acknowledged the debt she claims she is owed. Thus, 10 Del. C. § 8109 is inapplicable.
See Saunders v. Stella, 1989 WL 89518, at *2 (Del.Super.Ct. June 29, 1989) (holding that "a promissory note is a written promise by one person to pay another person, absolutely and unconditionally, a sum certain at a specified time). A bill of exchange is a draft or a check. BLACK'S LAW DICTIONARY 129, 401 (7th ed. 2000).
Appellant's argument that New Jersey law applies to her claim is raised for the first time now on appeal. Arguments that are not raised below ordinarily cannot be raised for the first time on appeal. This argument was not presented to the trial court, and thus cannot be raised in this appeal.
See, e.g., Equitable Trust Co. v. Gallagher, 77 A.2d 548, 550 (Del. 1950) (holding that "[a]ppellate Courts generally will refuse to review matters on appeal not raised in the Court below"); Wilmington Trust Co. v. Conner, 415 A.2d 773, 781 (Del. 1980) (holding that "[i]t is . . . the general rule in this State that issues not raised in the trial court shall not be heard on appeal).
The Court holds that 10 Del. C. § 8106 applies to Appellant's claim. 10 Del. C. § 8106 reads, in pertinent part,
. . . no action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations, no action based on a promise, shall be brought after the expiration of 3 years from the accruing of the cause of such action. . . .
The Court disagrees with Appellant's contention that this statute applies to contracts alone, as a plain reading of the statute shows that it applies to a variety of claims, not just to contracts. Appellant's claim that Appellee promised to pay her for her business expenses is clearly covered by the language "action to recover a debt not evidenced by a record or by an instrument under seal," and "action based on a promise."
Thus, the three year time limit of 10 Del. C. § 8106 applies to Appellant's claim. Under Delaware law, the statute of limitations generally "begins to run at the time of the wrongful act, and, ignorance of a cause of action, absent concealment or fraud, does not stop it." Appellant's three year period began, at the very latest, on July 20, 2001, the time of her first letter to Appellee that requested payment of the alleged debt. Appellant's three year time period for filing her claim ended on July 20, 2004, almost two years before she filed her claim on February 2, 2006. Therefore, Appellant's claim is barred as untimely by 10 Del. C. § 8106.
Isaacson, Stolper Co. v. Artisan's Sav. Bank, 330 A.2d 130, 132 (Del. 1974) (citing Mastellone v. Argo Oil Corp., 82 A.2d 379 (Del. 1951)).
V. CONCLUSION
For the preceding reasons, the Court finds that the Court of Common Pleas did not commit legal error in dismissing Appellant's claim as untimely under 10 Del. C. § 8106. The decision of the Court of Common Pleas is AFFIRMED.