Opinion
No. 204, 2003.
Submitted: August 19, 2003.
Decided: October 3, 2003.
Court Below-Superior Court of the State of Delaware, in and for New Castle County C.A. No. 99C-04-223
Before VEASEY, Chief Justice, HOLLAND and STEELE, Justices.
ORDER
This 3rd day of October 2003, upon consideration of the appellant's opening brief, the appellees' motion to affirm, and the record below, it appears to the Court that:
(1) The appellant, Belfint, Lyons Shuman, P.A., filed this appeal from the Superior Court's denial of Belfint's motion for relief from judgment pursuant to Superior Court Civil Rule 60(b). The appellees, the Pevar Company and Marc Pevar (collectively, "Pevar"), have filed a motion to affirm the Superior Court's judgment on the ground that it is manifest on the face of Belfint's opening brief that the appeal is without merit. We agree and affirm.
(2) The record reflects that, in April 1999, Belfint filed suit against Pevar to collect a debt (C.A. No. 99C-04-223). On June 18, 1999, Marc Pevar answered the complaint, pro se, on behalf of himself and as president of the Pevar Company.
On April 18, 2001, the Superior Court sent a notice to Belfint, pursuant to Superior Court Civil Rule 41(e), to show cause why the case should not be dismissed for Belfint's failure to prosecute the matter. Belfint's counsel responded to the notice and indicated that the parties were in the process of rescheduling an arbitration hearing in the matter. Nothing further happened in the case until another Rule 41(e) notice was issued on October 4, 2001. Belfint did not respond to the notice.
The Superior Court, therefore, dismissed the case for Belfint's failure to prosecute.
(3) Several weeks later, Belfint's counsel wrote a letter to the Superior Court judge who had signed the order of dismissal, requesting that the dismissal be reversed. The Superior Court judge responded to Belfint's counsel and advised him that he must file an appropriate motion for relief under Superior Court Civil Rule 60(b). Nearly a month later, Belfint filed a motion to reopen. On March 22, 2002, the Superior Court denied Belfint's motion to reopen on the ground that there was no excusable neglect. Belfint did not appeal that dismissal.
(4) Instead, on April 3, 2002, Belfint filed a second Superior Court debt action against Pevar seeking to collect the same debt that was the subject of the first complaint (C.A. No. 02C-03-265). Pevar, through counsel, filed a motion to dismiss, which the Superior Court granted. Belfint appealed that order of dismissal to this Court but later sought voluntary dismissal of the appeal. Six months later, Belfint, undaunted, filed a second motion to reopen Superior Court Civil Action No. 99C-04-223. For the first time, Belfint argued that Pevar's pro se answer to the complaint was a nullity as to the corporate defendant and that the judgment in defendants' favor, therefore, was void. The Superior Court denied the motion to reopen, and this appeal ensued.
(5) We review the denial of a motion to reopen under Superior Court Civil Rule 60(b) for abuse of discretion. We find it manifest that the Superior Court properly exercised its discretion in this case. Despite numerous opportunities to do so, Belfint never raised any issue concerning a defect in Pevar's answer prior to the dismissal of the complaint. The Superior Court's dismissal of Belfint's complaint for failure to prosecute was a dismissal with prejudice and was a proper exercise of the Superior Court's discretion. Moreover, the Superior Court properly denied Belfint's second motion to reopen on the ground that Belfint had waived any alleged defect in Pevar's answer and, therefore, the Superior Court's dismissal was not void.
Wife B. v. Husband B., 395 A.2d 358 (Del. 1978).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.