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Delaware Trial Practice Blog

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A Petition for Writ of Certiorari – What Is It?

Posted in Delaware Superior Court

The Superior Court recently granted a petition for writ of certiorariSee, Millsboro Fire Co. v. Delaware State Fire Prevention Commission et al., Del. Super., No. K14A-05-001, Young, J. (Oct. 21, 2014).  In reaching its decision, the Court reminds us of the essential concepts of the writ and the analysis involved with this type of petition.

What is a petition for writ of certiorari?

It “is simply a form that calls up, for review, the record from the lower court or tribunal.  The purpose of the writ is to permit the higher court to review the conduct of the lower tribunal of record.”  Id. at 3.

What is the scope of review?

The “scope of review by the higher court is limited to the consideration only of the record below, and does not involve fact-finding or weighing of the evidence.” Id. at 3-4.

What are the considerations involved in the analysis?

First, the petitioner must establish the existence of two conditions: (1) the judgment of the tribunal below must be final; and (2) there can be no other available basis for review.  Id. at 4.  If the petitioner satisfies those conditions, the court will grant a petition for certiorari if the tribunal below: “(1) exceeded its jurisdiction; (2) committed errors of law; or (3) proceeded irregularly.”  Id. at 4.

The decision may be read in its entirety here.

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LeslieSpoltore 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 Courts Consider Work-Life Balance

Posted in Delaware Supreme Court, Uncategorized

Earlier this month, the Delaware District Court announced that with the exception of initial pleadings, all electronic transmissions of documents (including, but not limited to, motions, briefs, appendices, and discovery responses) must be completed by 6:00 p.m. Eastern Time, in order to be considered timely filed and served that day (a copy of the Court’s standing Order can be found here).  Last week, in an open letter to the bar, Chief Judge Stark emphasized that the deadline applies to every filing and service deadline in every case in the District of Delaware and that parties will not be permitted to alter the new deadline on a case-by-case basis (a copy of the letter can be found here).  This follows Chief Judge Strine’s comments at the 2014 State of the Judiciary Address concerning work-life balance and Making It Easier To Be A Lawyer And A Good Spouse And Parent (the State of the Judiciary Address can  be found here, see page 14).  To our readers, what are your thoughts on the trend towards a 6:00 filing deadline?  Is there any downside?

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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 Senate Confirms A New Supreme Court Justice

Posted in Delaware Supreme Court

The Delaware Supreme Court has a new member!  During a special session conducted yesterday, the Delaware Senate unanimously confirmed the appointment of James T. Vaughn, Jr.   Justice Vaughn, who served as a Superior Court judge for 15 years, fills the seat vacated by retired Justice Carolyn Berger.

Governor Markell, who appointed Justice Vaughn to the Court, issued the following statement regarding the confirmation:

Justice Vaughn is an accomplished and well-respected jurist whose integrity and commitment to justice are second to none.  I believe he will make an outstanding addition to the Supreme Court, and I thank the members of the Senate for their consideration and swift confirmation of his nomination.

Motions for Judgment on the Pleadings Get DENIED When Factual Disputes Abound

Posted in Civil Procedure, Contract law, Delaware Superior Court

In two recent Delaware Superior Court cases before different Judges, the Court denied motions for judgment on the pleadings due to the existence of a material factual dispute.  These decisions underscore the importance of ensuring that, if you are going to move for judgment on the pleadings (“MJOP”), there are no disputed material facts.

In Sheets v. Quality Assured, Inc., No. N14C-03-010-VLM (Medinilla, J.), a case involving a dispute over the enforceability of a purported settlement agreement memorialized in an email exchange, the Court denied the defendant’s MJOP, noting that “[w]hile Defendant relied solely on the email exchange between the parties, the pleadings give rise to a reasonable inference that an oral agreement to settle their dispute existed between them.”  [Opinion at 7.]  [The full opinion is available here.]  The Court further noted that “[i]f material facts concerning the existence or terms of an agreement to settle are in dispute, courts should not summarily enforce a settlement agreement absent an evidentiary hearing.”  [Id.]

Similarly, in Hedgewood v. Rommell Motorsports Delaware, Inc., No. N13C-11-192 (Wharton, J.), a case involving allegations of negligence and breach of warranty arising out of allegedly defective merchandise, the Court denied the defendant’s MJOP.  [The full opinion is available here.]  The defendant in Hedgewood argued that it was entitled to judgment on the pleadings because the executed sale documents attached to the pleadings included conspicuous disclaimer language that disposes of the plaintiff’s breach of warranty claims.  In response, the plaintiff raised a material factual dispute as to whether the disclaimer of warranties, which was executed on the same date as the sales invoice, had been executed as part of the sales contract or after the sales contract.  The Court agreed with the plaintiff, finding that material issues of fact remain.

These decisions serve as a helpful reminder to assess whether there are any material facts in dispute before filing a MJOP.  While your client may ultimately deserve to win on the merits, it might not be appropriate at the pleadings stage to try to sink the battleship.

The Hague Convention On Support Orders

Posted in Child Support

Enforcing child support orders can present issues and complications even in the best of cases.  Those issues may be compounded if the obligor does not reside in the United States. As Aaron Weems, a partner in our Montgomery County office and editor of our Pennsylvania Family Law Blog, recently posted, the United States has taken another step toward ratifying the Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance. As Aaron points out, if ratified, the Hague Convention can be an effective tool for ensuring that a parent cannot abandon their financial obligations to their children just by leaving the country. The post is well worth reading.

Amendments to Superior Court Rules of Civil Procedure

Posted in Uncategorized

Effective September 4, 2014, the Superior Court amended and adopted several miscellaneous Superior Court Rules.  A copy of the amendements can be found here.

The first amendment is to Rule 6 and addresses additional time provided to parties where service is by mail.  In the age of electronic filing, this amendment is unlikely to have a significant impact on practice, however there are still some acts that occur by mail (i.e. long arm service pursuant to 10 Del.C. 3104).   Superior Court Civil Rule 6 is amended by deleting paragraph (e) and by substituting in lieu thereof the following new paragraph (e):

(e) Additional time after service by mail. Whenever a party has the right to or is required to do some act or take some proceeding within a prescribed period after being served and service is by mail, 3 days shall be added to the prescribed period. The additional 3-day period applies only to actions taken by parties and does not apply to actions taken by the Court

The amendments to Rule 16 address compliance with Scheduling Order Deadlines.  See our previous post on compliance with Scheduling Order deadlines here.  Superior Court Civil Rule 16 is amended by adding the following new subparagraph (b)(5)(a):

(b)(5)(a) Scheduling Order Deadlines.

(i) A party, upon reasonable notice to other parties and all persons affected thereby, who proposes a change to a deadline contained in a scheduling order entered by the Court in accordance with this Rule shall make an application to the Court for such a change pursuant to Rule 7(b) or by written stipulation and order. Subsection (i) shall not apply to deadlines that are not contained in the scheduling order.

(ii) The Court may be promptly notified if a party does not comply with a deadline contained in a scheduling order. The Court may be notified by any party through a motion to compel, a proposal to amend the scheduling order or a request for a conference. A party may avail itself of any Rule of this Court (including but not limited to Rule 37) for a party’s failure to comply with a deadline contained in a scheduling order.

(iii) Unless manifest injustice would result, a party’s failure to promptly notify the Court of another party’s failure to comply with a deadline contained in a scheduling order may result in a waiver of that party’s right to contest any late filings by the offending party from that time forward.

(iv) This Rule shall not prevent the Court, upon motion or its own initiative, from making any orders to enforce compliance with a scheduling order.

Rule 26 is amended to protect drafts of expert reports as well as communication between a party’s attorney and expert witness.  Superior Court Civil Rule 26 is amended by deleting paragraph (b)(5) and by substituting in lieu thereof the following new paragraph (b)(5) and by adding the following new subparagraph (b)(6):

(5) Protection for draft reports or disclosures – Rule 26(b)(3) protects drafts of any report or disclosure required under Rule 26 regardless of the form in which a draft is recorded.

(6) Protection of communication between a party’s attorney and expert witnesses. – Rule 26 protects communications between the party’s attorney and any witness required to provide an opinion under Rule 26(b)(4) regardless of the form of the communications, except to the extent that communications:

(i) relate to compensation for the expert study or testimony;

(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.

The amendments to Superior Court Rule 78 impact motion practice in the Court.   In addition to changes regarding scheduling, the new Rule limits all Motions and Responses to 6 pages and requires that all text be in Times New Roman 14 point font.  Superior Court Civil Rule 78 is amended by striking the Rule and replacing it with a new Superior Court Rule 78 as follows:

(a) Motion days. Unless otherwise ordered by the Court, motions shall be held by the Court as follows:

(1) New Castle County. Motions in cases assigned to a Judge shall be presented as directed by the Judge. All other motions shall be presented to the Court on Fridays at 1:30 p.m.

(2) Kent County. Motions in cases assigned to a Judge shall be presented as directed by the Judge.  All other motions, except motions assigned to a Commissioner, shall be presented to the Court on Fridays at 11 a.m. Motions assigned to a Commissioner shall be heard on Thursday at 2:00 p.m.

(3) Sussex County. Motions in cases assigned to a Judge shall be presented on the 1st and 3rd Fridays of each month at 11:00 a.m.

(b) Motions. Motions shall not exceed 6 pages in length on paper approximately 8 1/2 inches by 11 inches in size.  Responses in opposition to any motion shall be filed no later than four days prior to the hearing on the motion and shall not exceed 6 pages in length on paper approximately 8 1/2 inches by 11 inches in size. All motions and responses must be double spaced and typeset in Times New Roman 14-point type with two spaces between sentences.  Case names shall be italicized or underlined. Footnotes shall be single-spaced and typeset in Times New Roman 12-point type with two spaces between sentences.

(c) Oral argument. There will be no oral argument unless scheduled by the Court, except as may be otherwise expressly provided by statute or rule.

(d) Scheduling. Arguments scheduled will be scheduled as to date and time by the assigned judge.

Superior Court Civil Rule 107 was also amended to require that briefs be in Times New Roman 14 point font.  Superior Court Civil Rule 107 is amended by deleting paragraph (b) and by substituting in lieu thereof the following new paragraph (b):

(b) Type of print for briefs, motions and other papers. All briefs must be double spaced and typeset in Times New Roman 14-point type with two spaces between sentences.  Case names shall be italicized or underlined. Footnotes shall be single-spaced and typeset in Times New Roman 12-point type with two spaces between sentences.

Finally, The following new Rule 140- Historical Society of the Superior Court of Delaware is approved:

(a) There shall be a Historical Society of the Superior Court of Delaware (“Society”). Its purpose shall be to preserve the history of the Delaware Superior Court, its members, and its administration of justice in Delaware and to educate and inform others periodically about such matters.

(b) The society shall consist of the present judges of the Superior Court and such others members of the Delaware bench and bar as may from time to time be designated by the President Judge, with the concurrence of a majority of the Judges.

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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.

Supreme Court Reverses Denial Of Alimony Obligor’s Motion To Reopen

Posted in Alimony, Civil Procedure, Delaware Family Court, Delaware Supreme Court

In the matter of Taylor v. Taylor, the Delaware Supreme Court examined the trial court’s denial of Mr. Taylor’s application to reopen an alimony order entered in default of any appearance by him.  Mr. Taylor sought to reopen the matter claiming he did not receive notice of the petition.  His request was initially denied by the Family Court.  On appeal, the Supreme Court concluded when Ms. Taylor sought the alimony award she was “not candid with the court” in that she changed Mr. Taylor’s address with the trial court from the “one where he expected to receive mail to one she knew to be outdated.”  The Supreme Court further concluded that had Ms. Taylor “been candid with the Family Court, there is no doubt that the default judgment would not have been entered against [Mr. Taylor].”  As a result, the Supreme Court found that Ms. Taylor’s actions in the matter constituted “other misconduct” justifying relief under Rule 60(b)(3).

The decision may be read in its entirety here.

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.

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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.

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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.

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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.

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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.