Opinion
C.A. No. K10A-08-009 WLW.
Oral Argument: February 11, 2011.
Decided: May 3, 2011.
Upon Appeal from a Decision of the Court of Common Pleas.
Affirmed.
Upon Appellants' Motion for Admission Pro Hac Vice.
Determined to be Unnecessary.
Christopher J. Curtin, Esquire of MacElree Harvey, Ltd., Wilmington, Delaware; attorneys for the Appellants.
Gregory A. Morris, Esquire of Liguori Morris, Dover, Delaware; attorneys for Appellee Security National.
ORDER
The Court has before it both an appeal from the decision of the Court of Common Pleas and a motion pro hac vice from counsel for the Consumer for Auto Reliability and Safety ("CARS"), a California based consumer advocacy group. CARS desires to file an amicus brief to help the Court resolve this appeal. Both matters will be addressed in this opinion.
ISSUES
A. Whether a proposed amicus brief would help the Court resolve this appeal when the proposed brief raises issues not argued in the court below and not briefed by either party at any stage of the proceedings. If not helpful, is the admission pro hac vice necessary.
B. Whether the lower court properly denied Appellant's motion for relief from judgment, which was predicated on "fraud on the court" allegedly perpetrated by counsel for Appellees when they moved to exclude a party who lacked standing on a breach of contract claim without suggesting that the party might have standing to sue under some other cause of action if she chose to raise it.
FACTS
Kenneth and Kimberly Gibson ("Appellants") allege that Car Zone, an a u t o m o bile dealership in Dover, Delaware, fraudulently sold them an automobile with undisclosed damage that had been caused by flooding. Appellants brought an action for fraud in the Delaware Justice of the Peace Court. Appellees brought a counterclaim for the outstanding balance due for the vehicle. The court dismissed Kimberly Gibson from the case upon motion from Appellees after determining that she was not a party to the contract for the sale of the automobile.
Car Zone assigned the financing contract to Security National Automotive Acceptance Corporation ("SNAC"). Appellants sued both companies in a single action. Thus, Car Zone and SNAC will be jointly referred to as ("Appellees").
Kenneth Gibson pursued his claim alone during a one-day bench-trial on May 14, 2007. The court found for Appellees after determining that Kenneth Gibson had failed to provide any evidence to support his claim that the car had suffered undisclosed flood damage. The court noted that the only evidence supplied by Appellants (a "CARFAX" report) indicated that there is no record of the car having been damaged by a flood.
The unpublished opinion in contained in "Plaintiff's Appendix" on appeal as Ex. 1.
Appellants failed to file a timely appeal. However, they brought a Rule 60 motion to set aside the judgment on the basis of "fraud upon the court." The motion was denied by both courts below, and now appears before this Court on appeal. Appellants argue that the judgment must be set aside because it was improper to dismiss Kimberly Gibson from the case. They contend that it was fraudulent for Appellees to bring a motion to have her stricken as a plaintiff because she is a third party beneficiary of the contract for the sale of the automobile. Appellants contend that opposing counsel committed "fraud upon the court" by not suggesting the third party beneficiary theory to the court. Appellees strongly deny the allegation, and they filed a motion seeking sanctions against Appellants for filing a frivolous claim.
The claim implicitly relies on a finding that counsel for Appellees violated Rule 3.3 of the Delaware Lawyers' rules of Professional Conduct. Del. Prof. Cond. R.3.3(a)(2). The provides that: "lawyers shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." The rule does not seem to be implicated in this case where the lawyers are accused of not suggesting a potential legal theory rather than failing to disclose an unfavorable precedent.
J.P. Ct. Civ. R. 11.Ct.
The Justice of the Peace court denied both motions in an order dated November 10, 2009. The magistrate reiterated the prior finding that there was no evidence on the record to support Appellants' claim that the vehicle had ever incurred flood damage. Additionally, the court noted that Appellants had not brought a third party beneficiary claim in the original proceeding. The court explained that it is a plaintiff's duty to plead his or her claims, and that it is not the duty of defense counsel or the court to do so. Finally, the court determined that it would not impose sanctions because it would be unfair to Appellants' counsel who no doubt relied heavily on the representations of his clients in the absence of a trial transcript (civil trials in JP courts are not on the record).
The unpublished opinion in contained in "Attachment A" to Appellant's opening brief.
Id.
The Court of Common Pleas adopted the reasoning of the magistrate and affirmed the decision to deny the Rule 11 motion. This Court likewise approves the magistrate's reasoning and affirms his disposition of the Rule 11 motion.
Appellants appealed the to the Court of Common Pleas, which affirmed in an opinion approving the reasons given by the magistrate. Appellants subsequently appealed to Superior Court. In the interim, CARS has requested leave to join the case as an amicus curiae. Appellants have presented a petition for the pro hac vice admission of CARS's attorney so that he may proffer the amicus brief.
Gibson v. Car Zone, 2010 WL 3958776 (Del. Com. Pl. Aug. 3, 2010).
PROCEDURAL HISTORY
A one-day bench trial was held at JP Court 16 on May 14, 2007. The magistrate issued a decision for Defendants/Appellants on both the claim and counterclaim. Appellants filed an appeal with the Court of Common Pleas on May 29, 2007. However, they failed to file a copy of the complaint before the deadline for perfecting their appeal. Therefore, the Court of Common Pleas dismissed the action on July 5, 2007. More than one year later, on September 12, 2008, Appellants attempted to re-file their original claim in the Court of Common Pleas. This action was transformed into a Rule 60 motion to set aside judgment. The Court dismissed the action after determining that Appellants were impermissibly attempting to use the Rule 60 motion as a substitute for an appeal.
The unpublished opinion of the JP court is contained in "Plaintiff's Appendix" to Appellants' opening brief on appeal as Ex. 1.
Gibson v. Car Zone, 2007 WL 3231595 (Del. Com. Pl. July 5, 2007).
On May 11, 2009, Appellants filed another Rule 60 Motion-this time in JP Court. The Court denied the motion on November 10, 2009. Appellants appealed to the Court of Common Pleas, which affirmed on June 1, 2010. Appellants subsequently appealed to Superior Court. This is the opinion of the Court.
The unpublished opinion is contained in Appellants' Ex. I.
Standard of Review
Superior Court sits as an intermediate appellate court when reviewing appellate decisions of the Court of Common Pleas on appeals originating from the Justice of the Peace. The Court's role is to correct errors of law and review factual findings to determine if they are logical and supported by the record. Matters committed to the lower court's discretion are reviewed for abuse of discretion.
Bolden-Wilson v. Hertrich of Milford, 2007 WL 2319783 at *2 (Del. Super. 2007).
Id.
DISCUSSION
This is an appeal from a decision of the Court of Common Pleas that affirmed the magistrate's order denying Appellants' motion for relief from judgment. Appellants and their proposed amicus curiae raise numerous issues beyond the scope of the Rule 60 motion that is now on appeal before this Court. Issues not raised below are not on the record and cannot be addressed in this procedural posture. The only substantive issue before this Court is whether the Court of Common Pleas was correct to affirm the denial of Appellants' motion, which sought relief from judgment on the theory that the judgment had been procured through "fraud upon the court."A. Amicus curiae and pro hac vice petitions
"[T]he privilege to be heard as an amicus curiae, as well as the manner and extent of participation, rests within the discretion of the court." The proposed amicus brief raises issues of federal law that were not plead below and that played no part in the original decision or the denial of Appellant's motion for relief from judgment. Superior Court sits in a limited appellate capacity. It cannot consider issues raised for the first time on appeal. Moreover, an amicus lacks standing to make claims not raised by a represented party in its opening brief on appeal. Appellants are represented on appeal, and they have not raised the issues presented by the amicus. To the extent that the proposed amicus brief focuses on such issues, it would not be helpful to the Court in this case. Therefore, CARS's petition is denied. Since the brief is not helpful, there is no need for the admission pro hac vice for counsel for CARS.
Turnbull for Turnbull v. Fink, 644 A.2d 1322, 1324 (Del. 1994) (quoting Giammalvo v. Sunshine Mining Co., 644 A.2d 407, 408 (Del. 1994)).
The proposed brief contends that the lower court violated several sections of The Soldiers and Sailor's Relief Act, as amended. 50 Appx. USC § 501 et. seq. he brief contends that it was error for the lower court to stay the case for less than a minium of 90-days when Appellants requested a continuance. The brief further argues that the lower court committed error by not appointing counsel for Appellants sua sponte. It is important to note that Appellants never invoked any rights under the Act, have never made a claim under the Act, and have never briefed the issue. The brief also devotes considerable attention to the public policy problem presented by the sale of flood-damaged or salvaged automobiles. The policy concern is legitimate, but it is not implicated by the facts of this case where the lower court found that there was no evidence to support the allegation that the vehicle had suffered flood damage.
Fink, 644 A.2d at 1324.
Id. (citing United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60 n. 2 (1981)).
B. Rule 60 motion
Rule 60(b)(3) of the Justice of the Peace Civil Rules provides that the court may grant relief from a final judgment that has been procured through fraud. In this case, Appellants argue that counsel for Appellees committed "fraud on the court" by moving to have Kimberly Gibson dismissed as a plaintiff without informing the court that she might have standing as a third party beneficiary. The trial court granted the motion after determining that she was not a party to the contract giving rise to the lawsuit and was not listed as an owner of the vehicle. Appellants argue that opposing counsel knew or should have known that Kimberly Gibson would have had standing to sue as a third party beneficiary since her husband had purchased the vehicle for her to use while he was deployed. They argue that it was fraudulent not to inform the magistrate of that potential basis for standing in a case involving pro se plaintiffs.
J.P. Ct. Civ. R. 60(b)(3).
The court below rejected Appellants' argument. It explained that its judicial review was limited to the narrow issue of fraud presented by the Rule 60 motion. It affirmed the magistrate's order after determining that the record contained no evidence of fraud.
Gibson v. Car Zone, 2010 WL 3958776 (Del. Com. Pl. Aug. 3, 2010). The court below further noted that an appeal of the trial (J.P.) court's decision may not be circumvented through a Rule 60 (b) motion. I agree. See Dixon v. Delaware Olds, 405 A.2d 117 (Del. 1979).
The court below is correct. Opposing counsel in this case did not misinform the tribunal regarding the law. They argued that Kimberly Gibson had no direct claim when she was not a party to the contract and apparently had no ownership interest in the vehicle, which was listed only in her husband's name. The argument was not fraudulent. It is important to note that a third party beneficiary claim has different and more exacting elements than a standard breach of contract claim. Counsel for Appellees served their clients' interests by taking action to prevent Kimberly Gibson from recovering under a less stringent breach of contract claim when they had a good faith basis for believing that she was not a party to the contract.
A plaintiff in a standard breach of contract action must show that there was a legally binding agreement that was breached. Rash v. Equitable Trust Co., 157 A. 839, 840 (Del. Super. 1931). A plaintiff in a third party beneficiary action must show three additional elements to establish standing: (1) an intent between the contracting parties to benefit a third party though the contract; (2) an intent that the benefit serve as a gift or satisfaction of a debt to the third party; (3) a showing that the benefitting of the third party was a material part of the bargain. Reserves Development v. Severn Savings Bank, 2007 WL 4054231 (Del. Ch. Nov. 9, 2007).
Counsel for Appellees had no duty to inform Appellants of an alternative legal theory that might be used against their clients-assuming the elements of the claim could be met. It is a plaintiff's duty to raise his or her own claims and prove them. Appellants failed to do so at trial, never perfected an appeal, and now contend-more than three years later-that they should be relieved from the judgment because opposing counsel did not make their case for them. There is no basis for such a claim. This Court holds that the courts below did not commit legal error or abuse of discretion by denying Appellants' motion.
CONCLUSION
For the foregoing reasons: (1) the application for pro hac vice admission is determined to be unnecessary, and (2) the decision of the Court of Common Pleas is affirmed .IT IS SO ORDERED.