IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY

Transcription

1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY GRACE L. BOLDEN-WILSON & ) VANCE WILSON ) ) Plaintiffs/Appellees, ) ) v. ) ) HERTRICH S CORPORATION/ ) HERTRICH OF MILFORD LTD. ) HERTRICH S OF MILFORD, LTD. ) a subsidiary of HERTRICH FAMILY) of AUTODEALERSHIPS, INC., and ) HERTRICH FAMILY OF ) AUTOMOBILE DEALERSHIPS, ) INC. ) ) Defendants/Appellants. ) Submitted: May 17, 2007 Decided: August 2, 2007 Upon Appellant s Appeal from the Court of Common Pleas AFFIRMED Grace L. Bolden-Wilson and Vance Wilson, pro se. Andre M. Beauregard, Esq., Brady, Richardson, Beauregard & Chasanov, Rehoboth Beach, Delaware, for Appellants. OPINION & ORDER

2 Young, J. 2

3 The Appellant, Hertrich s Corporation/Hertrich of Milford Ltd., has appealed the January 26, 2007 decision of the Court of Common Pleas dismissing as untimely an appeal from the Justice of the Peace Court No. 16. For the following reasons the decision of the Court of Common Pleas is AFFIRMED and the Appeal is DISMISSED. FACTUAL AND PROCEDURAL HISTORY On September 26, 2002, the Appellees, Grace L Bolden-Wilson and Vance Wilson, filed an action in Justice of the Peace Court No.16 against the Appellant. Previously, the Appellees had brought their vehicle to the Appellant for service. The action was based on the Appellant s alleged failure to perform certain service work that was paid for by the Appellees warranty company. The Appellees allegedly had to have the service performed by another service shop, and then had to pay for the work themselves. According to the Justice of the Peace Court Civil Docket, the Appellant was served with notice of the action on November 1, On the same day, Frederick Hertrich IV filed a Form 7 with the Justice of the Peace Court requesting a trial. On December 12, 2002, the Appellant filed a demand for a bill of particulars. On the same day, the matter was scheduled for trial on January 13, The Appellant did not appear for trial. Thus, on January 13, 2003, the Magistrate ordered judgment by default against the Appellant in the amount of $1, plus costs and interest. On January 29, 2003, the Appellant s attorney, Andre M. Beauregard, filed a Motion to Set Aside Judgment. The Motion was heard on April 17, After 3

4 reviewing the arguments, the Magistrate denied the Motion, ruling that the Appellant had failed to meet its burden of the reasonableness of its conduct since the Appellant had returned a Form 7 request for trial to the Justice of the Peace Court. On May 7, 2003, the Appellant filed a notice of appeal with the Court of Common Pleas. That Court dismissed the appeal on August 19, 2003, for violating the mirror image rule, because the Appellant omitted a party plaintiff essential to the appeal. On September 9, 2003, the Appellees transferred the judgment to the Superior Court. Thereafter, the Appellees sought a writ of execution. The Kent County Sheriff, however, would not serve the writ, because he was uncertain as to the existence of the Appellant s corporation based on the information contained within the caption. On November 29, 2006, the Appellees filed a motion in the Superior Court to amend the caption of the case. The Superior Court remanded the case to the Justice of the Peace Court for further action by the Magistrate. The Appellees filed a motion to amend the caption by adding Hertrich Corporation/Hertrich of Milford Ltd. to the caption. The Magistrate granted the Motion. The Appellant then appealed to the Court of Common Pleas. The Court of Common Pleas held a hearing on the appeal. At the hearing, the Court of Common Pleas indicated that it did not believe it had jurisdiction to order, three years after default judgment was entered, a trial on the Appellees initial action in the Justice of the Peace Court. The Court of Common Pleas stated, in its January 26, 2007 written order, that the appeal was, thus, untimely, and that the Justice of the Peace Court was within the authority vested in it by Justice of the Peace Civil Rule 60(a) when it amended the caption of the case. On February 7, 2007, the Appellant appealed to this Court. 4

5 STANDARD OF REVIEW When considering an appeal from a decision of the Court of Common Pleas on an appeal 1 from the Justice of the Peace Court, this Court sits as an intermediate appellate court. 2 As such, the Court s function is similar to that of the Delaware Supreme Court. 3 Therefore, the Court s role is to correct errors of law and to review the factual findings of the court below to determine if they are sufficiently supported by the record and are the product of an orderly and logical deductive process. 4 Errors of law are reviewed de novo. 5 However, this Court is bound by the findings of fact made by the Trial Court that are supported by substantial evidence on the record. 6 If substantial evidence exists, this Court must accept the Trial Court s ruling and not make its own factual findings, weigh evidence, or make credibility determinations. 7 Finally, when a decision is addressed to the sound discretion of the 1 Such an action, by statute, 10 Del. C. 9571(c), culminates in a trial de novo in the Court of Common Pleas. 2 State v. Richards, 1998 WL , at *1 (Del. Super.). 3 Baker v. Connell, 488 A.2d 1303, 1309 (Del. 1985). 4 State v. Huss, 1993 WL , at *1 (Del. Super.) (citing Levitt v. Bouvier, 287 A.2d 671, 673 (Del. 1972)). 5 Tekstrom, Inc. v. Savla, 2006 WL , at *4 (Del. Super.) (citing Downs v. State, 570 A.2d 1142, 1144 (Del. 1990)). 6 7 State v. Dalton, 878 A.2d 451, 454 (Del. 2005) (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)). 5

6 Trial Court, this Court reviews for an abuse of discretion. 8 An abuse of discretion occurs when a court has... exceeded the bounds of reason in view of the circumstances, [or]... so ignored recognized rules of law or practice... to produce injustice. 9 DISCUSSION The Appellant claims that the Justice of the Peace Court committed error when it treated the amendment of the original caption as a clerical error. Pursuant to Justice of the Peace Civil Rule 60(a), [c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the Court any time of its own initiative, or on motion of any party and after such notice, if any, as the Court orders. 10 The Appellant contends that the Justice of the Peace Court could only act pursuant to Rule 59(c), and that, since more than 10 days had passed since the entry of judgment, the Justice of the Peace Court was without authority to act. Additionally, the Appellant claims that in whatever capacity the 8 See First State Communications Systems, Inc. v. Motorola, Inc., 1998 WL , at *2 (Del. Super.) (Where the Superior Court reviewed the Court of Common Pleas handling of a petition to set aside a default judgment, which is addressed to the sound discretion of the Court of Common Pleas, for an abuse of discretion.). 9 Lilly v. State, 649 A.2d 1055, 1059 (Del. 1994) (quoting Firestone Tire & Rubber Co. v. Adams, 541 A.2d 567, 570 (Del. 1988)). 10 The Court notes that this Rule is a carbon copy of Court of Common Pleas Civil Rule 60(a) and Superior Court Civil Rule 60(a) and that all three Rules are consistent with Federal Rule of Civil Procedure 60(a). Therefore, to the extent Delaware Courts have not addressed the mechanics of Rule 60(a), the Court refers to federal sources. See Wolhar v. General Motors Corp., 712 A.2d 464, 469 (Del. Super. 1997) ( Construction of federal rules is generally persuasive in the construction of Superior Court Civil Rules. ). 6

7 Justice of the Peace Court acted, its order was appealable, thus, arguing, that it may attack the propriety of the entry of default judgment through that appeal. First, the Court addresses whether the Justice of the Peace Court could have acted in this case. It appears that only one Delaware Court, other than the Court of Common Pleas in this case, has been presented with the question of whether the amendment of a caption amounts to a clerical mistake subject to correction under Rule 60(a). In Schwalm v. Zachrais Const., 11 the Court of Common Pleas, through the Commissioner, held that if the record had permitted him, he would have simply ordered the name of the corporation corrected, pursuant to Rule 60(a). 12 For support of that proposition the Commissioner cited Wright, Miller and Kane, Federal Practice and Procedure. 13 According to that treatise, [a] great variety of matters have been held by the courts to come within Rule 60(a). 14 One such matter applicable to this case is the correction of a misnomer in a judgment. 15 Additionally, two federal court decisions are instructive on the topic. First, in Anderson v. Brady, 16 the plaintiff sought to correct the name of the defendant as originally named in the complaint by the plaintiff WL (Del. Com. Pl.). 12 at * Federal Practice and Procedure Civ. 3d , n F.R.D. 587 (E.D. Ky.1947). 7

8 and listed on the default judgment order, i.e., Commercial Bank. 17 The plaintiff sought to change the name of the defendant to Commercial Deposit Bank. 18 Previously, the plaintiff had received a default judgment against the defendant when the defendant failed to answer or plea. 19 The Court stated that Rule 60(a) authorizes the Court to correct the name of the defendant. 20 Therefore, given that authorization, and the fact that no one was misled or deceived, and that the proper party was actually served with process, the Court entered the requested amendment. 21 Additionally, based on Anderson, the District Court for the Eastern District of Virginia, in Silas v. Paroh S. S. Co., 22 entered an order, pursuant to Rule 60(a), correcting the name of the judgment debtor in [the case] so as to read Paroh Steamship Corporation, rather than Paroh Steamship Company. The process was received by Paroh Steamship Corporation at the address of its place of business. 23 The Court held, based on Anderson, that it was clear that this was a mere clerical error or misnomer which at ) F.Supp. 35 (E.D. Va. 1958), vacated on other grounds, 276 F.2d 857 (4 th Cir. 23 at

9 should be corrected. 24 More recent cases have held similarly. 25 Second, having found the Justice of the Peace Court was within its authority under Rule 60(a) when it acted, the Court now addresses whether such an action was appealable and, if so, the scope of such an appeal. At least two federal courts have held that Rule 60(a) orders are appealable. 26 These courts have held such orders are reviewed on an abuse of discretion standard; however, appellate scrutiny of the order does not bring the entire underlying judgment up for review. 27 Turning to the case sub judice, the Court concludes that the Justice of the Peace Court was within its authority under Rule 60(a) when it amended the name of the Appellant on the caption. 28 The mistake was merely one of recitation by the Appellees. The Appellees had only one person in mind when it filed the suit, the person to which they took their car for service. The Appellant, under whatever 24 at See Fluoro Elec. Corp. v. Branford Associates, 489 F.2d 320 (2 nd Cir. 1973); Hodge ex rel. Skiff v. Hodge, 269 F.3d 155 (2 nd Cir. 2001); PacifiCorp Capital, Inc. v. Hansen Properties, 161 F.R.D. 285 (S.D.N.Y. 1995). 26 See Barber for Crytzer v. Cincinnati Bengals, Inc., 1996 WL , at *2 (9 th Cir.); In re Fraser-Morris Fine Foods, Inc., 1993 WL , at *3 (S.D. N.Y.). 27 Barber for Crytzer, 1996 WL at *2 (citing Harman v. Harper, 7 F.3d 1455, 1458 (9 th Cir.1993), cert. denied, 115 S.Ct. 68 (1994) and applying the standard and scope of review of a Rule 60(b) order to Rule 60(a) orders.). 28 To the extent the Justice of the Peace Court relied on any other Rule or statutory provision as the basis of its authority it did so incorrectly. Rule 60(a) was drafted to cover the situation confronted by the Justice of the Peace Court. When it acted, it did so under that authority. 9

10 corporate incarnation, was that person. The Appellees, acting pro se, recited the names of the corporate parent and subsidiary to the best of their abilities based on the information provided to them by the Appellant. 29 Furthermore, the Appellant was not prejudiced by the Appellees mistake. The Appellant was properly served with process in the Justice of the Peace Court action. It was in no way misled or deceived. The Court finds prejudice lacking given that the Appellant, through Frederick Hertrich IV, sought a trial on the issues immediately after being served. Next, the Court does not find that the Justice of the Peace Court abused its discretion when it granted the Appellees Motion. As discussed above, the Justice of the Peace Court was acting within its authority upon a reasonable request to correct the name of the judgment debtor, the Appellant, so the judgment could be executed upon. The Appellant was not prejudiced by the correction. Thus, the Justice of the Peace Court did not abuse its discretion. Additionally, while the Court has held that the Justice of the Peace Court s grant of the Motion was appealable for an abuse of discretion, the Appellant could not use this appellate process to attack the underlying default judgment entered against it. The Appellant s ability to attack the judgment ended when the Court of Common Pleas dismissed its appeal on August 19, 2003, and the Appellant failed to appeal to this Court. The entry of default judgment, followed Appellant s cavalier absence from the trial it requested. Before concluding, the Court pauses to note that the Appellant s counsel has 29 The Appellees named Hertrich s of Milford Ltd. in the suit based on the service invoice they received and Hertrich Corporation based on information received from the Appellant s agents. 10

11 asked this Court to sanction the Appellees for their false allegations regarding his behavior in this action. That request is DENIED. The Appellees, who have, pro se, navigated three separate courts for five years to execute on a validly entered judgment, are understandably frustrated. While the Court would never excuse incivility among the litigants before it, given the history of the case and the nature of the comments, the Court finds that sanctions against the Appellees are uncalled for. Accordingly, the decision of the Court of Common Pleas is AFFIRMED and the Appeal is DISMISSED. Moreover, to the extent that the Justice of the Peace Court has not already correctly amended the caption regarding the Appellant s full corporate name, the following will be accomplished and confirmed. Per the Appellant s statements to the Court of Common Pleas, the Appellant consists of at least one subsidiary corporation, called Hertrich s of Milford Ltd., a subsidiary of Hertrich Family of Automobile Dealerships, Inc., the entity to which the Appellees took their car for service, and one parent corporation, called Hertrich Family of Automobile Dealerships, Inc. To the extent the judgment caption does not already correctly list the Appellant in all its applicable incarnations, that caption is now so amended. SO ORDERED. oc: cc: Prothonotary Opinion Distribution Justice of the Peace Court No. 16 /s/ Robert B. Young J. 11