Opinion
C.A. No. 01A-09-002 RFS.
Submitted: April 15, 2005.
Decided: April 26, 2005.
Shawn P. Tucker, Esquire, Duane Morris LLP, Wilmington, Delaware.
Alix K. Robinson, Esquire, Griffin Hackett, P.A., Georgetown, Delaware.
David Rutt, Esquire, Kashif I. Chowdhry, Esquire, Moore and Rutt, P.A., Georgetown, DE.
Dear Counsel:
This is my decision regarding Robin A. Karman's Motion to Re-Open. For the reasons set forth herein, the Motion is denied.
STATEMENT OF THE CASE
In November and December of 2000, Chartan Solsnes ("Solsnes") made improvements to his dwelling, including tearing down a first floor overhang and adding a second floor addition. He also built a shed and a gazebo. He applied for a building permit for these improvements, but failed to note that they violated Sussex County zoning setback requirements. In addition, the first floor encroachment was the subject of a license agreement entered into on April 17, 1998 between Solsnes and Robin A. Karman ("Karman"). See Petition for Writ of Certiorari, Ex. C. The license permitted the overhang to encroach upon Karman's land.
On December 20, 2000, Karman filed a Complaint in the Chancery Court seeking a permanent and preliminary injunction to have Solsnes remove the second floor addition. She alleged that he constructed the addition in violation of the setback requirements and that the second floor addition encroached upon her property. On March 1, 2001 Solsnes applied for a variance for all of the setback violations.
She states that once the one story overhang was torn down, the license was void and Solsnes no longer had any right to encroach on her property.
The Sussex County Board of Adjustment ("the Board") issued a decision, dated August 6, 2001, in which it was agreed that the shed and gazebo would be moved into compliance. It found, however that the second floor addition was only vertical and did not extend beyond previously existing walls. The Board had sought an independent legal opinion, in which it was stated that any increase in non-conformity would require a variance. The Board had been previously interpreting the ordinance contrary to this interpretation, however, and because of Solsnes' reliance on that interpretation, it determined the issue was moot and that no variance was required.
On September 5, 2001, within the 30 day statutory time limit, Karman filed a Writ of Certiorari pursuant to 9 Del. C. § 6918 in Superior Court, challenging the Board's decision. She also filed a Verified Complaint for Preliminary and Permanent Injunction asking that Solsnes be compelled to remove any new construction that encroached upon Karman's property. Karman did not demand a transcript be included in the return, however, and none was included by the Board.
(a) Any persons jointly or severally aggrieved by a decision of the Board of Adjustment or any taxpayer or any officer, department, board or bureau of the County may present to the Superior Court in and for Sussex County, a petition duly verified, setting forth that such decision is illegal in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the Court within 30 days after the filing of the decision in the office of the Board.
(b) Upon the presentation of the petition, the Court may allow a writ of certiorari, directed to the Board of Adjustment, to review the decision of the Board of Adjustment, and shall prescribe therein the time within which a return thereto must be made and served upon the petitioner's attorney, which shall not be less than 10 days and may be extended by the Court.
(c) The allowance of the writ shall not stay proceedings upon the decision appealed from, but the Court may, on application, on notice to the Board and on due cause shown, grant a restraining order.
(d) The Board of Adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof, or of such portions thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified. The cost of the transcript of the hearing appealed from shall be the responsibility of the person appealing the decision unless said costs are allowed against the Board as provided in subsection (g) of this section.
(e) If, upon the hearing, it shall appear to the Court that testimony is necessary for the proper disposition of the matter, it may take evidence, or appoint a referee to take such evidence as it may direct and report the same to the Court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the Court shall be made.
(f) The Court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.
(g) Costs shall not be allowed against the Board, unless it shall appear to the Court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.
When a transcript had still not been filed on June 14, 2002, a letter was sent to Karman stating that one must be filed by July 15, 2002 or the case would be dismissed. Allegedly, Karman contacted her attorney, who told her he would take care of providing the transcript to the Court. No transcript was filed and the case was dismissed by Order, dated August 27, 2002, because no action had been taken by the Plaintiff in accordance with a court directive. Ms. Karman's Counsel then apparently told her that he had made a mistake and had not filed the transcript. He informed her again that he would take care of it. Nothing further was filed in this case until November 15, 2004.
In Chancery, a Motion for Summary Judgment was filed on August 6, 2004 by Solsnes. He alleged that not only had Karman failed to establish that there had been a trespass and that the encroachment did not violate the Sussex County Ordinance, but also that the suit should be barred by res judicata and collateral estoppel because it had already been resolved by the Board and in the Superior Court. On August 17, 2004 Karman's counsel, Sean Bellew of Cozen O'Connor filed a Motion for Leave to Withdraw as Counsel. The Motion was granted on August 19th.
Karman obtained new counsel, Shawn P. Tucker, and on November 16, 2004, she filed a Motion to Re-Open the case in Superior Court pursuant to Superior Court Civil Rule 60(b). Karman argues the case should be reopened under 60(b)(1) because the Sussex County Board of Adjustment made a mistake when it did not provide a transcript. She also claims the decision to dismiss should be vacated under Rule 60(b)(6), extraordinary circumstances, because her former counsel failed to provide the Court with the transcript and repeatedly informed her that everything was under control and being properly addressed. She cites Nanticoke Mem'l Hosp., Inc. v. Uhde, 498 A.2d 1071 (Del. 1985) in support of the proposition that a lawyer's neglect can be justification for relief from a judgment.
DISCUSSION
Superior Court Civil Rule 60(b) provides that a Court "may relieve a party . . . from a final judgment, order, or proceeding for . . .: (1) Mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment." The decision to vacate a default judgment is within the sound discretion of the court. Battaglia v. Wilmington Savings Fund Soc'y, 379 A.2d 1132, 1135 (Del. 1977). Delaware Courts construe Rule 60(b) liberally. See Robins v. Garvine, 136 A.2d 549, 552 (Del. 1975) (following the Federal courts' policy of according the rule liberal construction).
1. Rule 60(b)(1) — "mistake; inadvertence; excusable neglect"
In Barbour v. Board of Adjustment of Bethany Beach, 1992 WL 302292 (Del.Super.Ct.), the Court concluded that under 22 Del. C. § 328, a transcript must be included in the record when a statutory petition for writ of certiorari is filed. That Court looked to 9 Del. C. § 6918(d) in order to make that determination:
This statute [ 9 Del. C. § 6918(d)] is identical to 22 Del.C. § 331 except for the inclusion of the last sentence addressing who bears the costs of the transcript. That last sentence in 9 Del.C. § 6918(d) evidences the Legislature was assuming that the return includes a copy of the transcript. Consequently, the Court concludes that the Legislature similarly intended for the same language of 22 Del.C. § 331 to cover the inclusion of a transcript.Id. at * 3.
In that case, a party moved to dismiss the case because no transcript had been filed. The Court decided that dismissal was unnecessary, despite the fact that a transcript was required, and gave the petitioner time to supplement the record with a transcript. It also suggested that in the future, to ensure a transcript is delivered with the return, the petitioner might include in her petition a demand that the return include a transcript.
Here, no demand was made in the petition that the return include a transcript. It was the responsibility of the petitioner to either demand it be included or to solicit the Board to provide a transcript. Petitioner was told in the letter of June 16, 2002 that if no transcript was filed the case would be dismissed. No transcript was filed and the case was dismissed on August 27, 2002, a full month and twelve days after the deadline given in the letter. The Petitioner had ample time to procure a transcript or to provide the Court with documentation that the transcript was en route from the Board. It cannot be said that a mistake was made.
The only theories that Karman could possibly allege under 60(b)(1) would be either excusable neglect because her lawyer did not get the transcript filed, but continued to inform her he would take care of it, or mistake because the lawyer made a mistake when he failed to file the transcript. See, e.g., Model Finance Co. v. Barton, 188 A.2d 233, 235 (Del. 1963) (finding the carelessness of out-of-state counsel in miscalculating time for response was excusable neglect justified vacating the default judgment); Williams v. DelCollo Electric, Inc., 576 A.2d 683, 686 (Del.Super.Ct. 1989) (finding neglect was not attributable to defendant, and was thus excusable, when it was solely the fault of the defendant's insurer). Neither of these theories has been alleged. The Court finds there is no justification for reopening this case under Rule 60(b)(1).
2. Rule 60(b)(6) — "any other reason justifying relief"
Paragraph (b)(6) is an "independent ground for relief, with a different standard to be applied than under [the] other subdivisions, in particular (1) and (3)." Jewell v. Division of Social Services, 401 A.2d 88 (Del. 1979). Delaware Courts have looked to the Federal Courts' interpretation of the Federal Rules to determine that the application of Rule 60(b)(6) requires extraordinary circumstances such that injustice would result if relief from judgment is not granted. See Id. In Cristina Bd. of Educ. v. 322 Chapel St., 1995 WL 163509, at * 7 (Del.Super.Ct.), the Court stated, "[g]enerally speaking, the extraordinary circumstances test is not defined but rather is illustrated by way of the facts."
According to 47 Am. Jur. 2d Judgments § 818 (1995), some courts find that an attorney's mistake or neglect is not imputed to the client and thus may justify relief from default judgment, while others find that if the mistake of the attorney is not excusable, the client cannot be entitled to relief from judgment. See also 21 A.L.R. 3d 1255 (1968). As to whether the mistake is excusable or not, "it appears that each case must be decided upon its own facts in the exercise of the court's discretion." 47 Am.Jur. 2d Judgments § 818.
The only generalizations that may fairly be made from the decisions are that some courts hold that an attorney's mistake or miscalculation as to the time for pleading or appearance is ordinarily sufficient ground to warrant relief from a default judgment resulting therefrom, while other courts have taken the view that such mistake of an attorney is not in itself sufficient ground for opening or vacating a default or default judgment and that in order for it to be considered as a ground for relief, there must be a showing of sufficient reasons or causes for the mistake.
21 A.L.R. 3d 1255.
The trend in Delaware is that under Rule 60 the mistake of the attorney might justify reopening a case. "Mistake of counsel may be a ground for remedial action under Rule 60(b) if timely action and justice permit." Nashold v. Giles Ransome, Inc., 245 A.2d 175, 176 (Del. 1968). See also Young v. Reynoso, 2001 WL 880128, at * 2 (Del.Super.Ct.). Generally, a party is bound by the acts of her lawyer. Gebhart v. Ernest DiSabatino Sones, Inc., 264 A.2d 157, 160 (Del. 1970). "Faults of omission or commission by the plaintiffs' attorneys must be imputed to the plaintiffs." Id. However, in Nanticoke Mem'l Hosp., 498 A.2d 1071 (" Nanticoke Mem'l Hosp."), the Supreme Court affirmed a Superior Court's decision to reinstate a case when the appellee's attorney had acted with gross negligence.
Gross negligence alone, however, is not enough to justify reopening a case. Gross negligence of the attorney was one of four factors supporting the Court's decision in Nanticoke Mem'l Hosp. It also considered the fact that 1) the parties had continued with settlement negotiations after the dismissal, 2) there was no evidence that the proper Rule 41(e) and 77(d) notice was sent out by the Superior Court, and, 3) the passage of time was not prejudicial to the defendant-doctor. Moreover, in Young, 2001 WL 880128, at * 2, the Court refused to give relief from a dismissal when the only factor in common between that case and Nanticoke Mem'l Hosp., was the gross negligence on the part of the Plaintiff's attorney.
There is some difference, however, in Delaware law as to whether attorney mistake should be addressed under Rule 60(b)(1) or Rule 60(b)(6). In Nanticoke Mem'l Hosp., the Court analyzed the issue under subparagraph (6), while in Young, the Court analyzed the case under subparagraph (1), excusable neglect. There, the Plaintiff claimed her lawyer negligently failed to take action to prevent the dismissal of her case, and thus it was dismissed through no fault of her own.
It is interesting to note that in Scureman v. Judge, 1998 WL 409153, at * 5 (Del.Ch.), the Court stated that the Delaware District Court had interpreted the test for the Federal Rule 60(b)(6) "to require `. . . extreme hardship where relief would not be available under any of the other provisions.'" Therefore, there may be some question as to whether Karman should have brought her claim solely under 60(b)(1) for excusable neglect or mistake, instead of under 60(b)(6). The Court in Nanticoke Mem'l Hosp., however, did not make such a distinction, addressing lawyer mistake under subparagraph (6).
In sum, pursuant to Delaware law, the actions of the attorney are generally imputed to the client; however, under Rule 60, when the actions of the attorney are grossly negligent and there are other extenuating circumstances (i.e., factors similar to those listed in Nanticoke Mem'l Hosp.), there may be relief from judgment. Time would be one factor to consider, along with prejudice.
Here, Karman knew that the case had been dismissed and discovered soon after that it was due to a mistake made by her attorney. The motion to reopen was not filed, however, until over two years later. Furthermore, Cozen O'Connor did not request to withdraw as her attorneys until August of 2004. During that two year span of time, she relied on them to pursue the case in Chancery and there is no evidence that she insisted they try to remedy the dismissal in Superior Court. It seems that what happened here was more of a tactical decision than gross negligence. Cf. Trans World Airlines, Inc. v. Summa Corp., 394 A.2d 241, 246 (Del.Ch. 1978) (finding that attorney made tactical decision rather than mistake within the meaning of Chancery Court Rule 60(b), so that reopening the case was not warranted).
As long as the Chancery case was going forward, Karman's lawyer did not seem concerned about reopening the Superior Court case. Solsnes points out that it was not until he filed the Motion for Summary Judgment in the Chancery Court that Karman's new lawyer filed a motion to reopen the Superior Court case. While Karman's first lawyer may have acted negligently when he failed to solicit the Board to file the transcript and when he subsequently did not try to reopen the case, it cannot be said his act arises to the level of gross negligence sufficient to warrant a finding of "extraordinary circumstances." Cf. Cooke v. Cobbs, 2003 WL 22535080, at *2 (Del.Super.Ct.) (finding defendant was unable to show "extraordinary circumstances" when all he could show was that the insurance company's claims' office failed to process the claim when he sent them the complaint). In Christina Bd. of Educ., at *7, the Court, in finding the attorneys for Chrysler had acted only after unreasonable delay, stated, "[a] Rule 60(b)(6) motion, although designed to protect against injustice, cannot be used to `relieve a party from the duty to take legal steps to protect his interests.'"
Moreover, there is some prejudice to the defendant because this case involves a structure that has been built and has presumably been used as a living space for the past two years. The prejudice is somewhat alleviated since the Chancery case involving the same issue has been ongoing before the suit was brought in Superior Court, and up until the present. At the same time, interests of justice often support the opening of a default judgment with the idea that a defendant should be given the chance to argue the case on the merits. This case, however, involves a plaintiff who did not prosecute. The interests of justice inherent in dropping a case for failure to prosecute should be considered as a factor here. In other words, there is always some prejudice to a defendant when a plaintiff pursues a case against him, but fails to prosecute it in a timely manner. See Gebhart, 264 A.2d at 160 (noting that the rights of the defendant should not be overlooked and are also entitled to protection by the Courts, when upholding Superior Court's decision to dismiss Plaintiff's case with prejudice for failure to prosecute). Here, Solsnes believed the Superior Court case to be over and done with for over two years. As the Delaware Supreme Court stated in Bachtle v. Bachtle, 494 A.2d 1253, 1256 (Del. 1985), "[t]here must be an end to litigation."
The idea that an attempt to reopen a case that was closed for failure to prosecute might involve different judicial interests than a motion to vacate default judgment is further supported by the annotation in 64 A.L.R. 4th 323 (1988). It states:
The general rule developed at common law, and still followed by most state courts, although there are well-established exceptions, is that incompetence of counsel is no ground for relief from a civil judgment. . . .
In ordinary civil cases, courts have been protective of the rights of successful parties whose judgments are attacked on grounds of incompetence on the part of the attorneys retained by their opponents. As the United States Supreme Court declared in a similar context, such a basis for disturbing judgments is inconsistent with a system of representative litigation, in which the parties must be deemed bound by the acts of the lawyers they select as their agents.Id.
The annotation goes on to discuss exceptions to the rule created under a state's remedial statute, like Rule 60(b). It goes on to say, however:
It is evident that . . . the thrust of the common law rule is in accord with the outcome of the great majority of the cases. . . . Excusable mistakes, flagrant failures of representation, and glaringly unjust results may sometimes qualify for relief, and decisions in a few jurisdictions have established other limitations on the rule, but such cases are indeed exceptional. For the most part, clients must abide by the results obtained by their counsel, perhaps simply because in order for the legal process to function with reasonable fairness and certainty, attorneys must be assumed to be acting for their clients.Id.
3. Unreasonable Delay
In Schremp v. Marvel, 405 A.2d 119, 120 (Del. 1979), the Supreme Court observed that a movant has an obligation to act without unreasonable delay when making a motion to vacate default judgment. The Schremp Court measured reasonableness by comparing the amount of time that had passed (i.e., time of defaulting party's actual knowledge of dismissal to time of filing of motion) to the inflexible time for appealing adverse judgment (thirty days), moving for a new trial (ten days) or reargument (five days). 405 A.2d at 121 (finding motion to vacate default judgment untimely when the plaintiff filed two months after learning of dismissal of case). In McMartin v. Quinn, 2004 WL 249576, it was determined that the Defendant did not act with unreasonable delay, when the Motion for to Vacate Default Judgment was filed within thirty days from when she received notice of the default judgment.
In Nanticoke Mem'l Hosp., the Court reopened the case when the Plaintiff made the motion to reopen almost three years after it had originally been dismissed. It seemed to have been swayed by the fact that there would be no prejudice to the defenses of the doctor and the hospital allegedly responsible for the wrongful death. Other Delaware Courts have also opened cases after a considerable delay. See, e.g., Scureman v. Judge, 1998 WL 409153 (Del.Ch.) (reopening case after five year delay when Court had been induced to make an erroneous conclusion of fact by the parties). In Young, 2001 WL 880128, however, the Court refused to reopen the case when two and a half years had passed from the date the case had been dismissed to the time the motion to reopen was filed.
In Christina Bd. of Educ., at *7, the Court noted that "although an unreasonable delay can sometimes serve to bar a motion to vacate, it can also rise to the level of extraordinary circumstances justifying relief under Rule 60(b)(6)." There, the Court did not further consider the issue because attorney negligence had not been raised and it did not want to determine the issue sua sponte. In this case, however, the attorney's actions were not grossly negligent. Therefore, the Court finds there was an unreasonable delay before the Motion to Re-open was filed.
Karman waited over two years from the date this case was dismissed before she filed the Motion to Re-open. She has given no adequate justification for allowing such a considerable period of time to pass. Karman states that her lawyer did tell her he would take care of it when she first discovered the case had been dismissed, but two years passed and there was no evidence presented that any more discussions were had about the case. There is no indication that she was not aware that the case was not proceeding during those two years.
CONCLUSION
Considering the foregoing, Karman's Motion to Re-open is denied. Solsnes also requests attorneys' fees for having to defend a baseless motion. However, the motion was grounded in law and neither frivolous nor baseless. Attorneys' fees are not awarded.
Whether to award attorney's fees is within the discretion of the Court. Gannett Co. v. Board of Managers, 840 A.2d 1232, 1240 (Del. 2003).
IT IS SO ORDERED.