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Delaware Trial Practice Blog

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Supreme Court Analyses of Excusable Neglect Standard

Posted in Construction Litigation

The Delaware Supreme Court recently analyzed the standard of excusable neglect sufficient to vacate a default judgment.  In the case of Christiana Mall, LLC v. Emory Hill and Company (opinion here), Christiana Mall sought to overturn the Superior Court’s finding that it could not vacate a default judgment entered against it.  The judgment was the result of a mechanic’s lien claim brought by Emory Hill against the mall and one of its tenants, MrFruz.  MrFruz was obligated to defend and indemnify Christiana Mall in the action pursuant to the terms of the lease between the parties.

After the complaint was filed, McFruz advised Christiana Mall that it was attempting to resolve the claim and that it had secured an extension of time for it and the Mall to answer the Complaint.  In fact, MrFruz never obtained an extension for the Mall.  Moreover, Emory Hill had advised MrFruz that it did not believe MrFruz was negotiating in good faith and therefore it and the Mall must answer the complaint to avoid a default.  Following the deadline to answer the complaint, Emory Hill filed a direction for entry of default against MrFruz and Christiana Mall.  Thereafter, the Mall sought to vacate the default—MrFruz filed for bankruptcy protection.

The Superior Court denied Christiana Mall’s motion to vacate the default.  The Court found that there was excusable neglect, however it denied Christiana’s motion to vacate on the basis that granting such relief would substantially prejudice Emory Hill.  On appeal, the Supreme Court affirmed the Superior Court judgment, however it found that Christiana Mall’s conduct was not excusable neglect.

Christiana’s conduct demonstrated indifference to the Superior Court proceedings …. Christiana did not engage or consult with its own counsel upon receipt of the Complaint because it relied on the representations of the attorney for Mrfruz, based on Mrfruz’s obligation to defend and indemnify Christiana. [The mall] believed, based on that obligation and [MrFruz’s] November 27, 2012 email, that Mrfruz was engaged in good faith negotiations with Emory Hill and that both Christiana and Mrfruz had an extension of time to answer.


We hold that it is not excusable neglect for a party, relying on a codefendant to defend and indemnify it, to disregard its obligations to the court, fail to monitor the docket in the proceedings, fail to verify extensions of time, and fail to ensure that its own interests were being properly represented and protected. In this case, Christiana did all of these things. Therefore, Christiana failed to demonstrate that its neglect was excusable. For that reason, its motion to set aside the default judgment was without merit and should have been denied on that basis.

This opinion provides important guidance to commercial property owners who should be advised that it is not sufficient to rely upon the representations of their tenants.  For more on mechanic’s liens in Delaware, please review my Guide to Mechanic’s Lien.


Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.

Custody – Rebuttable Presumptions and Perpetrators of Domestic Violence

Posted in Custody, Delaware Family Court, Family Law

In a prior post I described the factors the Family Court of the State of Delaware examines when determining custody of a child.  Number 7 in the list of factors is “[e]vidence of domestic violence as provided for in Chapter 7A of this title.”  What does Chapter 7A provide and to whom does it apply?

Subchapter I of Chapter 7A applies to perpetrators of domestic violence.  A “perpetrator of domestic violence” is defined as,

any individual who has been convicted of committing any of the following criminal offenses in the State, or any comparable offense in another jurisdiction, against the child at issue in a custody or visitation proceeding, against the other parent of the child, or against any other adult or minor child living in the home:

(1) Any felony level offense;

(2) Assault in the third degree;

(3) Reckless endangering in the second degree;

(4) Reckless burning or exploding;

(5) Unlawful imprisonment in the second degree;

(6) Unlawful sexual contact in the third degree; or

(7) Criminal contempt of Family Court protective order based on an assault or other physical abuse, threat of assault or other physical abuse or any other actions placing the petitioner in immediate risk or fear of bodily harm.

It also establishes rebuttable presumptions against such perpetrators. Specifically, Subchapter I of Chapter 7A provides, “there shall be a rebuttable presumption that no perpetrator of domestic violence shall be awarded sole or joint custody of any child.”   It also provides, “there shall be a rebuttable presumption that no child shall primarily reside with a perpetrator of domestic violence.”  13 Del. C. § 705A.


Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Fox Rothschild Blogroll

Posted in Uncategorized

In addition to the Delaware Trial Practice Blog, we encourage you to check out the other 35 blogs published by Fox Rothschild attorneys.  The Fox Rothschild blog roll ranges from Fashion Law to Privacy Law (a link to all of the Fox Rothschild blogs can be found here).  Of particular attention to our Delaware readers, consider the following:

  • Delaware Bankruptcy Litigation – Join attorneys Jason Cornell, whose practice includes representing a broad range of clients in bankruptcy matters before the U.S. Bankruptcy Court, District Court and the Third Circuit, and L. John Bird as they offer their take on corporate bankruptcy proceedings in Delaware and throughout the United States.
  • Delaware Chancery Law Blog – The Delaware Court of Chancery is widely considered the preeminent forum for resolving disputes involving the internal affairs of the multitude of Delaware corporations and other business entities through which a vast amount of the world’s commercial affairs is conducted. Join our Delaware corporate and commercial litigation attorneys—who are skilled at navigating this precedent-setting arena—as they guide you through the complex landscape of legal issues and analysis arising before this Court.
  • Delaware Intellectual Property Litigation – Wilmington attorney Gregory B. Williams explores the decisions issued by the U.S. District Court of Delaware in the areas of antitrust and intellectual property law.


Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.

A plaintiff’s failure to retain a damages expert is not fatal in a suit to recover the value of damaged personal property.

Posted in Civil Procedure, Delaware Superior Court, Evidence

On July 21, 2014, the Delaware Superior Court (Judge Young) ruled in Dippold Marble & Granite, Inc. v. Harleysville Mutual Insurance Company (No. K12C-09-021) that “because the owner of personalty may testify as to its value, Plaintiff’s failure to name an outside expert is not fatal.”  The full opinion can be found here.

The Plaintiff, Dippold, filed suit against its insurance company, Harleysville, seeking to recover approximately $91,000 for damage to personal property stored in a rental unit in New Castle, Delaware.  To support this damages figure, Plaintiff produced a spreadsheet identifying the allegedly damaged property and the replacement cost for each item.  However, Plaintiff did not retain a damages expert.  After the deadline for identifying experts had passed, Harleysville moved to dismiss Plaintiff’s claim due to Plaintiff’s failure to produce an expert opinion on damages.

The Court denied Harleysville’s motion to dismiss.  Citing Ligon v. Brooks, 196 A. 200 (Del. Super. 1937), the Court explained that a “record owner…of personal property is qualified by law to testify to the value of such property.”  The Court further explained that a property owner’s familiarity with the property’s value “is, of course, subject to cross examination.”

In sum, the bottom line is this:  In a suit to recover the value of damaged property, it may not be necessary for the plaintiff to retain an expert to opine on the value of the property.  However, while a plaintiff’s failure to produce an expert report in such cases may not be fatal, it is almost always advisable to retain an expert to opine on such matters.

Delaware Supreme Court Amends Delaware Supreme Court Rules, Effective July 1, 2014

Posted in Delaware Supreme Court

On June 23, 2014, the Delaware Supreme Court entered three separate orders modifying Delaware Supreme Court Rules 2(b), 15(a)(iii), 16(c), 69(b), and Supreme Court Internal Operating Procedure V(1)(a)(i).  The amendments become effective July 1, 2014.  The announcement of these rule changes, and the implementing orders, can be read in their entirety here.

Delaware Superior Court Update

Posted in Civil Procedure, Delaware Superior Court, Uncategorized

We previously posted on the Superior Court’s web based initiative related to civil case management (see posts here and here).  As an update, several additional Judges have added their individual case management preferences to the Court’s website.  The Judicial Officers’ Preferences section provides detailed information about individual judge’s or commissioner’s particular practices and procedures for civil case management in an effort to assist attorneys.  All Superior Court practitioners should visit this site regularly in order to stay current on each Judge’s practices and procedures.


Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.

The Delaware Supreme Court Amends the Delaware Uniform Rules of Evidence

Posted in Delaware Supreme Court, Evidence

The Delaware Supreme Court has entered an order modifying Delaware Uniform Rules of Evidence 510, 606(b), 801(d)(1), and 803(10).  The comments to the Rules have been amended as well.  The amendments, which become effective July 1, 2014, may be read in their entirety here.


Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Delaware Supreme Court Examines The Standard For Vacating An Arbitrator’s Order

Posted in Alternate Dispute Resolution, Delaware Supreme Court

In the matter of SPX Corporation v. Garda USA, Inc. et al., Del. Supr., No. 332, 2013 (June 16, 2014), the Delaware Supreme Court was asked to consider the circumstances under which an order entered by an arbitrator may be vacated based on allegations that the arbitrator manifestly disregarded the law.  Pursuant to Section 5714(a) (3) of the Delaware Arbitration Act “[t]he Court shall vacate an award where . . .[t]he arbitrators exceeded their powers, or so imperfectly executed them that a final and definite award upon the subject matter submitted was not made.”  Id. at 9.  After examining Section 5714, the Court concluded that “[t]o vacate an arbitration award based on ‘manifest disregard of the law,’ a court must find that the arbitrator consciously chose to ignore a legal principle, or contract term, that is so clear that it is not subject to reasonable debate.”  Id. at 2.  The decision may be read in its entirety here.


Leslie Spoltore is an attorney with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

2014 Delaware Bench & Bar Conference – June 4, 2014

Posted in Uncategorized

The 2014 Bench and Bar Conference will take place on Wednesday, June 4, 2014 at the Chase Center on the Riverfront in Wilmington, Delaware.  Highlights of the event will include:

- The State of the Judiciary Address by The Honorable Leo E. Strine, Jr., Chief Justice of the Supreme Court of Delaware

- First State Distinguished Service Award presented posthumously to Arthur G. Connolly, Jr., Esquire

- Passing of the gavel from Fox Rothschild’s very own Gregory B. Williams, Esquire to the new DSBA President, Yvonne Takvorian Saville, Esquire

- The New Bench and Bar Social Reception: Engage in lively conversation while enjoying delicious Delaware-themed food stations and beverages

- Prize drawing offered to attendees who visit and obtain signatures of all exhibiting vendors

- CLE Prior to the Bench and Bar Conference: A View from the Bench: Preferred Procedures, Proper Practices, and Pet Peeves featuring a distinguished judicial panel and The Technology of Today and the Issues of Tomorrow featuring a panel of technology experts

The brochure and registration form for the 2014 Bench and Bar Conference is available here.

The Ring Part II: When “Will You” Becomes “I Won’t”

Posted in Delaware Court Of Common Pleas

A prior post examined who is entitled to retain an engagement ring when an engagement is mutually broken.  In that instance, the person who gave the engagement ring as a gift is entitled to retain it if the marriage does not take place.  But what happens if the engagement isn’t mutually broken?  An interesting decision issued by the Court of Common Pleas answers that very question.

In Walton v. Snow, C.A. No. CPU4-13-000791, Rennie, J. (March 3, 2014), the Court adopted the “fault approach.”  “Under the fault-based analysis, return of the ring depends on an assessment of who broke the engagement, which necessarily entails a determination of why that person broke the engagement.”  Id. at 10 (citations omitted).  Under the fault approach, the recipient of the ring may retain it if the marriage does not take place, so long as he or she is not at fault. Id. at 11.  This interesting, and precedential decision may be read in its entirety here.