Opinion
C.A. No. 04C-05-175-JRS.
September 11, 2006.
Stephen W. Spence, Esquire, Phillips, Goldman Spence, P.A. Dewey Beach, DE.
James S. Green, Esquire, Seitz, Van Ogtrop Green, P.A., Wilmington, DE.
Donald L. Logan, Esquire, Tighe, Cottrell Logan, P.A., Wilmington, DE.
Dear Counsel:
Two matters still remain for decision in this case: (1) Plaintiff's Motion for Reargument; and (2) the entry of final judgment. To follow are the Court's decisions on both matters.
The Court has reviewed the motion for reargument and has determined that it must be DENIED. The motion simply reiterates previously-made arguments on behalf of the plaintiff. In stating that the Court would adjudicate Mr. Mitchell's contribution claim against the co-guarantors, the Court gave no indication as to the final outcome of that process, including against whom as among the co-guarantors judgment would be entered. Plaintiff claims that the applicable loan documents preclude Mr. Mitchell from obtaining a judgment against any of the borrowers until the guaranteed obligations have been paid in full. This is precisely what Mr. Mitchell's guaranty says and the Court will enforce the clear and unambiguous language of this provision in connection with any final judgment that is entered.
See Norfleet v. Mid-Atlantic Realty Co., Inc., 2001 Del. Super. LEXIS 328 at *2-3 (citations omitted) (court will not consider a rehash of previously made arguments on a motion for reargument).
DX 1, at ¶ 15.
Turning to the Court's verdict, as the parties know, the Court requested guidance from the parties regarding allocation methodologies that the Court might employ to resolve Mr. Mitchell's contribution claims. The plaintiff filed its submission by the appointed deadline; Mr. Mitchell has not responded. In its submission, plaintiff renews its demand for 49% of the par value of the assigned loans (commensurate with Mr. Mitchell's ownership interest in the borrowers) for a total of $355,349.54, plus interest for the month of April, 2004 ($1,193.47), plus interest since May 1, 2004 ($48,860.55), plus post-judgment interest at the prime rate. This totals $405,403.56 plus post-judgment interest. Plaintiff also seeks costs and attorneys fees.
D.I. 48.
With respect to allocation methodologies, plaintiff reiterates its position that no judgment should be entered against the co-guarantors for contribution until Mr. Mitchell pays more than his proportionate share of the seven assigned loans. Alternatively, it suggests that the Court dismiss Mr. Mitchell's contribution claim without prejudice. Given the current posture of this case, the Court must agree with this approach. Mr. Mitchell has not adequately prosecuted his contribution claim such that the Court may entertain a thoughtful allocation of damages. The Court declines to consider allocation methodologies on its own without appropriate guidance from the parties. Accordingly, Mr. Mitchell's third-party contribution claims are DISMISSED without prejudice. The Court notes that this dismissal shall not be deemed as a determination of the merits of Mr. Mitchell's contribution claims, except as indicated above with respect to his claims against the borrowers as governed by paragraph 15 of his personal guaranty. No such claims will be entertained against the borrowers until the guaranteed loans are paid in full.
See Del. Super. Ct. Civ. R. 41(c).
Based on the foregoing, the Court directs the Prothonotary to enter judgment against Mr. Mitchell in the amount of $405,403.56, plus post-judgment interest at the WSFS prime rate. Plaintiff shall have 10 days to submit an affidavit setting forth its attorney's fees and costs.
See DEL. CODE ANN., tit. 6, § 2301.