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Karman v. Board of Adjustment of Sussex County4/26/2005
a Motion to Re-Open the case in Superior Court pursuant to Superior Court Civil Rule 60(b). Karman argues the case should be reopened under 60(b)(1) because the Sussex County Board of Adjustment made a mistake when it did not provide a transcript. She also claims the decision to dismiss should be vacated under Rule 60(b)(6), extraordinary circumstances, because her former counsel failed to provide the Court with the transcript and repeatedly informed her that everything was under control and being properly addressed. She cites Nanticoke Mem'l Hosp., Inc. v Uhde, 498 A.2d 1071 (Del. 1985) in support of the proposition that a lawyer's neglect can be justification for relief from a judgment.
DISCUSSION
Superior Court Civil Rule 60(b) provides that a Court "may relieve a party . . . from a final judgment, order, or proceeding for . . . (1) Mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment." The decision to vacate a default judgment is within the sound discretion of the court. Battaglia v. Wilmington Savings Fund Soc'y, 379 A.2d 1132, 1135 (Del. 1977). Delaware Courts construe Rule 60(b) liberally. See Robins v. Garvine, 136 A.2d 549, 552 (Del. 1975) (following the Federal courts' policy of according the rule liberal construction).
1. Rule 60(b)(1) - "Mistake; Inadvertence; Excusable Neglect"
In Barbour v. Board of Adjustment of Bethany Beach, 1992 WL 302292 (Del. Super. Ct.), the Court concluded that under 22 Del. C. § 328, a transcript must be included in the record when a statutory petition for writ of certiorari is filed. That Court looked to 9 Del. C. § 6918(d) in order to make that determination:
This statute [9 Del. C. § 6918(d)] is identical to 22 Del.C. § 331 except for the inclusion of the last sentence addressing who bears the costs of the transcript. That last sentence in 9 Del.C. § 6918(d) evidences the Legislature was assuming that the return includes a copy of the transcript. Consequently, the Court concludes that the Legislature similarly intended for the same language of 22 Del.C. § 331 to cover the inclusion of a transcript.
Id. at * 3.
In that case, a party moved to dismiss the case because no transcript had been filed. The Court decided that dismissal was unnecessary, despite the fact that a transcript was required, and gave the petitioner time to supplement the record with a transcript. It also suggested that in the future, to ensure a transcript is delivered with the return, the petitioner might include in her petition a demand that the return include a transcript.
Here, no demand was made in the petition that the return include a transcript. It was the responsibility of the petitioner to either demand it be included or to solicit the Board to provide a transcript. Petitioner was told in the letter of June 16, 2002 that if no transcript was filed the case would be dismissed. No transcript was filed and the case was dismissed on August 27, 2002, a full month and twelve days after the deadline given in the letter. The Petitioner had ample time to procure a transcript or to provide the Court with documentation that the transcript was en route from the Board. It cannot be said that a mistake was made.
The only theories that Karman could possibly allege under 60(b)(1) would be either excusable neglect because her lawyer did not get the transcript filed, but continued to inform her he would take care of it, or mistake because the lawyer made a mistake when he failed to file the transcript. See, e.g., Model Finance Co. v. Barton, 188 A.2d 233, 235 (Del. 1963) (finding the carelessness of out-of-state
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