Opinion
Civil Action No. 2922-VCP.
Date Submitted: November 13, 2008.
Date Decided: December 22, 2008.
Richard H. Cross, Jr., Esquire, Ryan M. Ernst, Esquire, Cross Simon, LLC, Wilmington, DE.
Thomas C. Marconi, Esquire, Losco Marconi, P.A., Wilmington, DE.
Dear Counsel:
In my October 30, 2008 Order on Defendants' petition to increase security by Plaintiff, I increased the bond from $5,000 to $10,000 based on Defendants' demonstration of their potential ability to prove damages resulting from higher property taxes, higher insurance costs, and lost use of the property. Defendants have moved for reargument under Court of Chancery Rule 59(f), arguing that the October 30 Order misapplied the legal standard. According to Defendants, the Court mistakenly required "the Guzzettas to fully establish their damages claim, both legally and factually, before" allowing an increase in security. For the reasons stated below, I deny Defendants' motion.
Defs.' Mot. to Reargue ¶ 4.
Reargument under Rule 59(f) is appropriate only when "the court has overlooked a controlling decision or principle of law that would have controlling effect, or the court has misapprehended the law or the facts so the outcome of the decision would be different." The moving party must show that "the court's misunderstanding of a factual or legal principle is both material and would have changed the outcome of its earlier decision." "Motions for reargument are also denied, however, when they are merely a rehash of arguments already made."
Those Certain Underwriters at Lloyd's, London v. Nat'l Installment Ins. Servs., Inc., 2008 WL 2133417, at *1 (Del.Ch. May 21, 2008) (citing Miles, Inc. v. Cookson America, Inc., 677 A.2d 505 (Del. Ch. 1995)), aff'd, 2008 WL 4918222 (Del. Nov. 18, 2008); see also Quereguan v. New Castle County, 2006 WL 2522214, at *2 (Del.Ch. Aug. 18, 2006); Cole v. Kershaw, 2000 WL 1336724, at *3 (Del.Ch. Sept. 5, 2000).
Those Certain Underwriters, 2008 WL 2133417, at *1.
Id. (quoting Handloff v. City Council of Newark, 2006 WL 2052685, at *2 (Del.Super. July 19, 2006)).
Defendants contend that the Court applied too high a legal standard and improperly required Defendants to "actually prove their damages in a petition to increase the security." This Court's October 30 Order, however, correctly stated that Defendants needed to support their position by "facts of record or by some realistic . . . legal theory." Defendants' motion fails to demonstrate that any of the items excluded from the October 30 Order ( i.e., landscaping and arborist goods and services, Defendants' time in responding to these legal proceedings, interest, and certain lost use of property) were supported by facts of record or a realistic legal theory. Rather, they rehash their previous arguments without further support and conclusorily state that the wrong legal standard was applied.
Defs.' Mot. to Reargue ¶ 4.
See Petty v. Penntech Papers, Inc., 1975 WL 7481, at *1 (Del. Ch. Sept. 24, 1975).
Furthermore, in contrast to the purported damages items the Court excluded, and as noted in the October 30 Order, there were facts of record and a realistic legal theory to support Defendants' contention that the delay in the proposed demolition of the house due to the injunction may have caused an increase in their taxes and insurance premiums. Consequently, I did increase the required security based on those items.
Whether any damages ultimately will be recoverable depends upon a prior determination that the preliminary injunction was improvidently granted.
A major component of Defendants' alleged damages relates to their "time off from work." Defendants claim to have made a "good faith showing . . . that there is a reasonable likelihood that the Guzzettas can prove these damages," and thus, the bond should be increased by nearly $47,000. Whether or not Defendants could prove these damages, they still would need to identify a realistic legal theory under which the court could use such alleged damages to increase the bond. Yet, Defendants' motion for reargument, like their petition for an increased bond, cites no legal authority or theory that would support awarding them, as litigants, lost wages for time spent responding to the litigation. Therefore, Defendants have not shown any basis for reargument on the Court's decision to exclude their lost wages from the increased bond amount reflected in the October 30 Order.
Defendants aver that they have lost $46,646.15 of wages due to time spent on this litigation. Defs.' Pet. to Increase Security Ex. A. The total damages Defendants estimated in their petition was $79,146.94. Id.
Defs.' Mot. to Reargue ¶ 11.
Similarly, Defendants failed to identify any legal authority or factual basis for altering the Court's decision to exclude certain other categories of damages.
For the foregoing reasons, I deny Defendants' motion for reargument on the October 30 Order, and reaffirm the increase in the amount of the bond to $10,000.
IT IS SO ORDERED.