Opinion
C.A. No.: 02C-07-182-CLS.
Submitted: January 6, 2005.
Decided: April 4, 2005.
Upon Consideration of Plaintiff's Motion For Reargument.
DENIED.Martin J. Siegel, Esquire, Angela Pinto Ross, Esquire, Doroshow, Pasquale, Krawitz, Seigel Bhaya, Wilmington, Delaware, Attorneys for Plaintiff.
Kenneth M. Doss, Esquire, Casarino, Christman Shalk, P.A., Wilmington, Delaware, Attorney for Defendant.
Before this Court is a Motion for Reargument filed by Plaintiff Tracy Hendricks ("Hendricks"). In essence, Hendricks is seeking reargument pursuant to Superior Court Civil Rule 59 premised on her belief that the jury was presented with uncontroverted evidence of injury, therefore, an award of zero damages is inadequate at law. Defendant, Elizabeth J. Tull ("Tull") opposes the motion on two grounds: (a) that the Motion to Reargue was untimely; (b) that the merits of the uncontroverted evidence issue has already been determined by this Court. After considering the Motion and the Response, this Court is prepared to render its decision.
Background
A trial was held from August 30, 2004, through September 1, 2004 before this Court. The jury returned a defense verdict. Subsequently, Hendricks filed a Motion for a New Trial on September 9, 2004. Tull filed her opposition on September 24, 2004. In an order dated December 20, 2004, this Court denied Hendrick's Motion for a New Trial. The order reads in pertinent part:
The Court finds no uncontroverted objective evidence that there was an injury. All of Hendricks' injuries were based upon her subjective complaints, thus, this is an issue of Hendricks' credibility. The credibility of any witness is solely for the trier of fact to determine. There was a sufficient basis for the jury to conclude that Hendricks' injuries, if any, were so minimal that they were not worthy of compensation. "The credibility judgments made by the jury will not be disturbed by the Court unless it is clearly against a fair and reasonable determination of the issues presented." The Court, therefore, finds no basis for granting a new trial on this issue.
See also Amalfitano v. Baker, 794 A.2d 575, 578 (Del.Supr. 2001) (where "medical experts present uncontradicted evidence of injury, confirmed by objective medical tests supporting a plaintiff's subjective testimony about her injuries and offer opinions that the injuries relate to the accident about which the plaintiff complains, a jury award of zero damages is against the weight of the evidence.").
Knight v. State, 690 A.2d 929, 932 (Del.Supr. 1996) (Internal citation omitted.).
See Hall v. Dorsey, 1998 WL 960774 at *6 (Del.Super.) (holding that zero verdicts are part of the process and are valuable community responses to some exaggerated claims).
Thomas v. Lagola, 2003 WL 22496355 at *1 (Del.Super.) (internal citation omitted).
Hendricks v. Tull, Del. Super., C.A. No. 02C-07-182, Scott, J. (Dec. 20, 2004) (ORDER).
Discussion
A. Timeliness of Motion For Reargument
Tull argues that Hendricks' Motion for Reargument is untimely. This Court agrees. Superior Court Civil Rule 59(e) states that a "motion for reargument shall be served and filed within 5 days after the filing of the Court's opinion or decision." When time limits are under eleven days, weekends and holidays are excluded from the computation of time to file a motion. Accordingly, Plaintiff's Motion for Reargument was due on December 28, 2004.
Super. Ct. Civ. Rule. 6(a).
Hendricks argues that because the parties did not receive the Order until the day the Motion was due, she asked the Court for an enlargement of time. The Court has no record of such a Motion or, in the alternative, that the Court granted that request. Furthermore, this Court cannot enlarge time for a Motion for Reargument. Under Superior Court Civil Rule 6(b) the Court "may not extend the time for taking any action under Rule . . . 59(e)." Therefore, Hendricks' Motion for Reargument is DENIED as untimely.
B. Merits of Uncontroverted Evidence Already Determined
Hendricks next argues that at trial, uncontroverted evidence of injury to her big toe was presented. Hendricks relies on Amalfitano v. Baker, for the proposition that if uncontroverted evidence of injury is presented at trial, an award of zero damages in prohibited. Tull contends that there was not uncontroverted evidence of injury.
794 A.2d 575, 577 (Del.Supr. 2001).
This Court will not revisit the injury of the toe. In her Motion for a New Trial, Hendricks argued that she suffered a hairline fracture of her toe and that this evidence was entered into evidence without objection. Tull, however, disputes that uncontroverted evidence of a toe injury was presented; rather, Tull argued that a medical report for Tull's toe reported "no evidence of trauma." As a result, Tull argues, the jury was free to "reject a causal relationship of [the] injur[y] to this accident." This Court already held in its December 20, 2004 order, that uncontroverted evidence was not presented, it was an issue of credibility, and Hendricks did not prevail. Because no new evidence has been presented with regard to the toe injury, this Court declines to look at the Motion for Reargument on the merits. Hendricks' Motion to Reargue is DENIED.
Pl.'s Mot. for New Trial, ¶ 5.
Def.'s Resp. to Mot. for New Trial, ¶ 8.
Def.'s Resp. to Mot. for New Trial, ¶ 8.
IT IS SO ORDERED.