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Joyner v. Kmart Corp.9/7/2005
Submitted: July 15, 2005
Before HOLLAND, BERGER and JACOBS, Justices
ORDER
This 7th day of September 2005, upon consideration of the appellant's opening brief and the appellee's motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The plaintiff-appellant, Doris L. Joyner, filed an appeal from two orders of the Superior Court---the first, dated April 13, 2005, dismissed her complaint and the second, dated April 26, 2005, denied her motion for reargument. The defendant-appellee, Kmart Corporation ("Kmart"), has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of the opening brief that the appeal is without merit.
We agree and AFFIRM.
(2) In January 2002, Kmart filed a petition for bankruptcy relief in the United States Bankruptcy Court for the Northern District of Illinois . The record reflects that, on April 23, 2003, the Bankruptcy Court entered an order confirming Kmart's Chapter 11 reorganization plan, which then became effective on May 6, 2003. The record further reflects that, on or before May 19, 2003, the claims agent for Kmart's Chapter 11 bankruptcy sent notification of the confirmation order and the June 20, 2003 deadline for submitting claims, along with a proof of claim form, to Joyner at her last-known address. Joyner never returned the proof of claim form to the agent.
(3) In February 2004, Joyner filed a personal injury lawsuit against Kmart in the Superior Court, claiming that, in February 2002, she was injured by an automatic door while exiting a Kmart store on Centerville Road in Wilmington, Delaware. In its answer to the complaint, Kmart asserted a number of defenses, among them that any claims by Joyner against Kmart had been discharged by the Bankruptcy Court due to her failure to timely submit her proof of claim form.
(4) In this appeal, Joyner claims that: a) she did not receive notice of the bankruptcy proceedings and, therefore, should be permitted to proceed with her claim in the Superior Court to protect her rights; b) Kmart did not file a timely answer to her complaint and, therefore, a default judgment should have been entered; and c) the Superior Court should not have granted Kmart's motion to dismiss because she did not see a copy of it until April 15, 2005, when she appeared for the hearing on the motion.
(5) The record does not support Joyner's claim that she did not receive notice of the bankruptcy proceedings. Even assuming that the Bankruptcy Court should not have discharged Joyner's claim for that, or any other, reason, any remedy Joyner may have lies with the Bankruptcy Court and not with the Superior Court. Joyner is not entitled to proceed with her claim against Kmart in the Superior Court because her claim against Kmart has been discharged in the bankruptcy proceeding. For all of these reasons, we find Joyner's first claim to be without merit.
(6) Joyner's second claim is that Kmart did not timely answer her complaint and, therefore, she is entitled to a default judgment. This claim was not presented to the Superior Court in the first instance and we decline to address it in this appeal.
(7) Joyner's third claim is that her complaint should not have been dismissed because she did not see a copy of Kmart's motion to dismiss prior to April 15, 2005, the hearing date for the motion. Even assuming that Joyner did not actually see the motion prior to appearing for the hearing, she must have at least been aware of its existence prior to that date or she would not have appeared for the hearing. It was Joyner's obligation to respond to the motion in a
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