Opinion
C.A. No. 99A-11-001.
Submitted: May 15, 2000.
Decided: May 26, 2000.
Upon Appellee's Motion for Reargument — Denied .
Thomas H. Ellis, Esquire Department of Justice 820 North French Street Wilmington, Delaware 19801.
Gregory A. Morris, Esquire Liguori, Morris Redding 46 The Green Dover, Delaware 19901.
Counsel:
Appellee has filed a motion for reargument pursuant to Superior Court Civil Rule 59(e) from this Court's remand of this matter back to the Adult Entertainment Commission. The manifest purpose of all Rule 59 motions is to afford the court an opportunity to correct errors prior to an appeal. To prevail on reargument, the moving party must demonstrate that the Court "overlooked a precedent or legal principle that would have controlling effect, or that it has misapprehended the law or the facts such as would affect the outcome of the decision."
Monsanto Co. v. Aetna Cas. Surety Co., Del. Super., C.A. No. 88-JA-118, Ridgely, P.J. (Jan. 14, 1994) citing Wilshire Rest. Group, Inc. v. Ramada, Inc., Del. Ch., C.A. No. 11506, Jacobs, V.C. (Dec. 19, 1990) (Letter Op.).
After reviewing the submissions of the parties, the Court does not find that it has misapprehended the facts or law before it. The Appellee asserts that the Court apparently misapprehended the testimony of Ms. Moffitt in coming to its conclusion. However, the record is clear that Ms. Moffitt, and her counsel at the hearing below, did in fact admit the violations of the applicable portions of the Delaware Code by Ms. Moffitt's establishment. Therefore, the Court did have evidence before it to determine that the Appellee did admit to the violations and the Court did not misapprehend the facts as presented to it.
Furthermore, the Court is not persuaded that the Commission had before it substantial evidence that Ms. Moffitt was prejudiced by any delay on behalf of the State in bringing these charges. As stated in the Court's Order, Ms. Moffitt employed the individuals whose registrations were in question, and if anyone was in the proper position to locate them, the owner of the establishment would be that person. Ms. Moffitt also cannot rely on the fact that her memory has faded to support her affirmative defense. She is the individual with the most information relating to the issues in this case. To support her defense of these charges, one would expect her to recall exactly what occurred. Her inability to recall certain facts cannot support her affirmative defense of the doctrine of laches although it is obvious from the record that some delay did occur in the instant matter on behalf of the State. On remand, the Commission must determine that there is substantial evidence to conclude that the delay would cause prejudice to the Appellee. Therefore, the Appellee's Motion for Reargument is denied .
IT IS SO ORDERED.
Very truly yours,
William L. Witham, Jr. Judge