Independence Mall, Inc. v. Wahl, et al.
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SUPERIOR COURT
OF THE
STATE OF DELAWARE
FRED S. SILVERMAN
NEW CASTLE COUNTY COURTHOUSE
500 North King Street, Suite 10400
Wilmington, DE 19801-3733
Telephone (302) 255-0669
JUDGE
January 17, 2013
(VIA E-FILED)
William J. Rhodunda, Jr., Esquire
Rhodunda & Williams
1220 N. Market Street
Suite 700
Wilmington, DE 19801
Paul E. Bilodeau, Esquire
Losco & Marconi, P.A.
1813 N. Franklin Street
P.O. Box 1677
Wilmington, DE 19899
RE:
Independence Mall, Inc. v. Michael J. Wahl and Wahl Family
Dentistry, C.A. No. 10C-12-031 FSS
Upon Plaintiff’s Motion for Reargument and to Alter or Amend Judgment –
DENIED
Dear Counsel:
After oral argument and supplemental briefing on cross motions for
partial summary judgment, the court issued its decision on December 31, 2012.
Plaintiff has timely moved for reargument under Superior Court Civil Rules 59(d)
and (e), and 60(a) and (b). Defendants responded January 15, 2013.
First, Plaintiff argues the court decided claims that were not presented.
William J. Rhodunda, Jr., Esquire
Paul E. Bilodeau, Esquire
Independence Mall, Inc. v. Michael J. Wahl, et al.
C.A. No. 10C-12-031 FSS
Letter/Order
January 17, 2013
Page 2
Specifically, Plaintiff states that “the only issue” it moved on was “that Defendants
Michael J. Wahl and Wahl Family Dentistry [] were holdover tenants.” Second,
Plaintiff “did all that it was required to do . . . to defeat Defendant’s [sic] Motion for
Partial Summary Judgment.” Lastly, Plaintiff urges the court to alter its decision
because “the Court already made a [] ruling from the bench at the hearing on the
motions for summary judgment that [Wahl Family Dentistry] was not a month-tomonth tenant.”
A motion for reargument will be denied unless the court overlooked
controlling principles or misapplied the law or facts in such a way that would change
the outcome of the underlying decision.1 A Rule 59(e) motion may not present new
arguments nor rehash those already presented.2 “The disposition of a Superior Court
Civil Rule 59(d) motion to alter or amend the judgment, or a Rule 59(e) motion for
reargument is within the sound discretion of the court.”3
The court recognized: “Technically, [Plaintiff’s] motion was for
summary judgment on Count II, alleging breach of the 1997 lease.” The court further
recognized, however, that: “Tenant’s motion prompted Landlord to raise the rest of
the arguments addressed at oral argument and here.” In its response and at oral
argument, Plaintiff argued that Defendants adopted the 2007 lease. The court left the
record open, allowing supplemental briefing regarding Plaintiff’s partial performance
“defense to Tenant’s Statute of Frauds argument.” Thus, Plaintiff cannot say that
Defendants’ adoption of the 2007 lease was not presented. In summary, Plaintiff’s
first claim here is neither new nor previously overlooked.
1
Reid v. Hindt, 2008 WL 2943373, *1 (Del. Super. July 31, 2008) (Vaugh, P.J.).
2
Id.
3
Brown v. Weiler, 719 A.2d 489 (Del. 1998) (TABLE).
William J. Rhodunda, Jr., Esquire
Paul E. Bilodeau, Esquire
Independence Mall, Inc. v. Michael J. Wahl, et al.
C.A. No. 10C-12-031 FSS
Letter/Order
January 17, 2013
Page 3
That leads to Plaintiff’s claim regarding the court’s changing position.
The court specifically noted that it would review the record to determine “as a matter
of law” whether Defendants adopted the 2007 lease or were estopped from denying
it. Upon reviewing the record and the parties’ supplemental briefs, and as explained
in its decision, the court determined, as a matter of law, the parties created a monthto-month tenancy.
Finally, Plaintiff’s claim that “it did all that it was required to do” to
overcome summary judgment is not a proper basis for a motion under Superior Court
Civil Rule 59 or 60. Rule 60(a) concerns clerical mistakes. Plaintiff has not alleged
any. And, Rule 60(b) “requires a showing of ‘extraordinary circumstances.’”4 Again,
the Plaintiff has not alleged any. Moreover, Plaintiff fails to expose law or facts the
court failed to consider that would ultimately alter its decision under Rule 59(e).
For those reasons, Plaintiff’s Motion for Reargument/Clarification and
to Alter or Amend Judgment is DENIED.
IT IS SO ORDERED.
Very truly yours,
/s/ Fred S. Silverman
FSS:mes
oc: Prothonotary (Civil)
4
Dixon v. Delaware Olds, Inc., 405 A.2d 117, 119 (Del. 1979).
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