Opinion
C.A. No.: 98C-09-079 — FSS
Submitted: December 13, 2000
Decided: March 29, 2001
Upon Defendant's Motion for Reargument — DENIED
Somers S. Price, Jr., Esquire, Todd L. Goodman, Esquire and Michael B. Miller, Esquire, Potter Anderson Corroon, LLP, Attorneys for Plaintiff.
William D. Bailey, Jr., Esquire, Attorney for Defendant.
OPINION and ORDER
This condemnation case continues to continue. After the Court of Chancery enjoined the utility from trespassing on an abandoned railroad right-of-way owned by Ms. Forwood, the utility filed this action under 26 Del. C. § 908 in order to condemn an easement. Through pre-trial motion practice, Forwood asked the Court to determine, for valuation purposes, the date of the utility's taking. Accordingly, on November 29, 2000 the Court issued an Opinion and Order holding that the valuation date would be in 1976, when the railroad abandoned the right-of-way and the utility, nevertheless, remained in possession. On December 6, 2000, Forwood filed a timely motion for reargument.
I.
Until Forwood moved for reargument, her position was that the valuation date was December 5, 1988. The utility, however, contended that the valuation date should be when the railroad abandoned its right-of-way in 1976. As mentioned, between the earlier date proposed by the utility and the later date proposed by Forwood, the Court chose the earlier date. That was based on undisputed facts and as a matter of law.
Having litigated the valuation date on the theory that the taking occurred in 1988 and having received the Court's decision that the taking occurred over eleven years earlier, in 1976, Forwood seeks reargument to establish the valuation date in 2002, when this case will go to trial. In other words, on reargument, Forwood has abandoned her original position and she advances an entirely new and bolder theory.
Forwood barely acknowledges her post-decision sea change. Without elaboration, she vaguely mentions: "Defendant concedes that, on the motion in limine, the same jurisdictional defect infected her contention that 1988 was the time of taking." Presumably, the Court is supposed to read into Forwood's reargument motion a claim that determining the valuation date in a condemnation is jurisdictional and, by implication, Forwood contends that she is entitled to argue a different date, as she sees fit.
As a matter of civil procedure, the valuation date is not jurisdictional and Forwood is not free to wait until the Court rejects her original position and then try another tack. As far as the Court is concerned, once the motion in limine concerning value was under submission, the parties waived all theories not asserted and they are estopped from advancing on reargument any theory that could have been presented before the Court issued its decision. In this instance, Forwood offers no explanation or excuse for raising a new and different theory after the Court rejected her original position.
New Castle County Bd. of Adjustment v. White, Del. Supr., No. 349, 1989, per curiam, (May 25, 1990) (ORDER) (affirming trial court's denial of motion for reargument raising issue not raised at hearing); Ferko v. McLaughlin, Del. Super., C.A. No. 96C-03-276, Herlihy, J. (Feb. 19, 1999), Letter Op. at 1 ("Such a motion does not provide an opportunity for movant to advance new arguments which were not previously made."). See Risk Enterprise Mgt. Ltd. v. National Union Fire Ins. Co. of Pittsburgh, Del. Super., C.A. No. 97C-04-024, Witham, J. (Dec. 8, 1999) (ORDER); El Di, Inc. v. Justice of the Peace Court of the State of Delaware, Del. Super., C.A. No. 97A-03-003, Lee, J. (April 23, 1998) (Mem. Op.); Iocono v. Air Prods., Del. Super., C.A. No. 82C-JN-117, Bifferato, J. (Aug. 8, 1985) (ORDER). See also Hessler, Inc. v. Farrell, Del. Supr., 260 A.2d 701 (1969); Bata v. Bata, Del. Supr., 170 A.2d 711 (1961), cert. denied, 366 U.S. 964 (1961).
II.
As it happened, when the Court issued its Opinion and Order, it was not oblivious to the possibility that the valuation might be determined as of the date of trial. That is a common alternative in condemnation cases. Moreover, the Court not only was familiar with Forwood's latest authority, Cochran Coal Company v. Municipal Management Co., the Court had reviewed the authorities on which Cochran was based, especially Shevalier v. Postal Telegraph Company. There was no need discuss other possible valuation dates, including trial, because they were not in issue, but the Court considered them. Moreover, the Court appreciates the distinction between damages for trespass, with or without applying the statute of limitations for tort claims, and compensation for a taking by eminent domain.
Pa. Supr., 110 A.2d 345 (1955).
22 Pa. Super. 506 (1903).
Nevertheless, the original decision reflects what everyone agrees is this case's anomalous nature. In this case the utility did not push the landowner aside. To the contrary, Forwood bought the land despite the utility's obvious presence. Furthermore, after the railroad pulled up its track, 16 years after she took title, Forwood tolerated the utility's trespass for over ten more years until the utility began to upgrade its distribution facilities. At this point, the utility is converting its defunct license into a permanent easement and Forwood is entitled to compensation for that. Like the Court said in the original decision, the utility made a mistake by not obtaining an easement in 1935. And now it must pay. The undisputed fact remains, nevertheless, that when Forwood took title she had a railroad and a utility line running across her backyard. Were it not for the railroad's unanticipated demise, Forwood would have come and gone, but the poles and wires would have remained.
The Court continues to view the valuation date simply as a means to an end. The Court sees no reason why due process dictates that the valuation date in a case like this should be 1988, much less 2002. To the contrary, the Court continues to hold that in unusual circumstances, the Court has limited discretion to adopt a valuation date appropriate to a case's peculiarities. In this instance, because the undisputed facts justify it, the Court has adopted a valuation date supposedly favoring the utility. Accordingly, the Court stands by the holding set out in Section V of its original Opinion and Order.
See 4 Julius L. Sackman, Nichols on Eminent Domain § 12A.04-.05 (3d ed. 1998); See also Uniform Eminent Domain Code § 1003(b)(3) (1974).
III.
For the foregoing reasons, Defendant's December 6, 2000 Motion for Reargument is DENIED.
IT IS SO ORDERED.