Branch Banking and Trust Co.

IN THE SUPREME COURT OF THE STATE OF DELAWARE
BRANCH BANKING AND TRUST §
COMPANY, a bank organized under § No. 385, 2014
the laws of the State of North §
Carolina existing under the laws of § Court Below:
the State of North Carolina; §
Assignee of Mortgage Electronic § Superior Court of the
Registration Systems, Inc. as § State of Delaware, in and for
nominee, a corporation organized § New Castle County
and existing under the laws of the §
State of Delaware, § C.A. No. N11L-12-270-CEB
§
Plaintiff Below, §
Appellant/Cross-Appellee, §
§
v. §
§
HATEM G. EID a/k/a HATEM EID; §
and YVETTE EID, §
§
Defendants Below, §
Appellees/Cross-Appellants. §
Submitted: March 11, 2015
Decided: May 4, 2015
Before STRINE, Chief Justice; HOLLAND and VALIHURA, Justices.
Upon appeal from the Superior Court. REVERSED.
Robert T. Aulgur, Jr., Esquire, Whittington & Aulgur, Middletown, Delaware, for
Appellant, Cross-Appellee.
Of Counsel: Michael Montecalvo, Esquire (argued) and Brent F. Powell, Esquire,
Womble Carlyle Sandridge & Rice LLP, Winston-Salem, North Carolina.
Stephen B. Brauerman, Esquire, Kara M. Swasey, Esquire and Vanessa Tiradentes,
Esquire, Bayard, P.A., Wilmington, Delaware, for Appellees, Cross-Appellants.
Of Counsel: W. Jeffrey Barnes, Esquire (argued), W. J. Barnes, P.A., Beverly
Hills, California.
VALIHURA, Justice:
1
FACTUAL AND PROCEDURAL HISTORY
On June 13, 2013, the Superior Court granted Branch Banking and Trust
Company’s (“BB&T”) motion for summary judgment on its foreclosure and
breach of contract claims.1 On July 11, 2013, before the trial court entered a final
judgment that included a damages award, Hatem and Yvette Eid (collectively, the
“Eids”) filed an amended notice of appeal to this Court from the Superior Court’s
order granting summary judgment. This Court issued a notice to show cause as to
why the appeal was not interlocutory. The parties thereafter stipulated to the
dismissal of the appeal. On March 20, 2014, the Superior Court entered a final
judgment order awarding damages to BB&T. The Eids failed to file a timely
notice of appeal from the March 20, 2014, order. Instead, on May 30, 2014, a little
over two months after the entry of the final judgment order, the Eids filed a motion
with the Superior Court under Rule 60(b) seeking vacatur of the final judgment
order, contending that their counsel never received actual notice of the final
judgment order. On June 19, 2014, the Superior Court granted the Eids’ motion to
vacate.
On July 21, 2014, the trial court entered a new final judgment order from
which the Eids could file a timely notice of appeal. On July 21, 2014, BB&T filed
1
Branch Banking and Trust Co. v. Eid, 2013 WL 3353846 (Del. Super. Jun. 13, 2013).
2
an appeal from the Superior Court’s grant of the Rule 60(b) motion to vacate, and
on July 29, 2014, the Eids filed a cross-appeal from the Superior Court’s grant of
summary judgment in favor of BB&T.
DISCUSSION
BB&T raises three issues on appeal. First, it argues that pursuant to Rule
77(d), the trial court lacked authority to grant the motion to vacate the final
judgment order. Second, it argues that the trial court erred as a matter of law when
it applied a vague and undefined “interest of justice” standard to the motion to
vacate. Third, it argues that the trial court abused its discretion in granting the
motion to vacate because the Eids failed to establish that they were entitled to
relief under Rule 60(b)(1) or (b)(6).
On cross-appeal, the Eids also raise three issues. First, they argue that
BB&T lacks standing to institute a foreclosure. Second, they argue that the
affidavit supporting the motion for summary judgment was defective. Third, they
argue that BB&T failed to demonstrate that there were no genuine issues of
material fact. We agree with BB&T that the trial court improperly granted the
motion to vacate the final judgment, and for the reasons stated herein, we reverse
the judgment below and dismiss the appeal.
“[T]he grant or denial of a Rule 60(b) motion is generally reviewed for an
abuse of discretion. A claim that the trial court employed an incorrect legal
3
standard, however, raises a question of law that this Court reviews de novo.”2
Before we address the merits of a Rule 60(b) motion, we must determine whether
jurisdiction has been properly conferred upon this Court. As we have previously
stated, “[t]his Court lacks jurisdiction to consider an appeal when the notice of
appeal is not filed in a timely manner unless the appellant can demonstrate that the
failure to file a timely notice of appeal is attributable to court-related personnel.”3
Superior Court Rule of Civil Procedure 77(d) provides that:
Immediately upon the entry of an order of judgment, the Prothonotary
shall serve a notice of the entry by mail in the manner provided for in
Rule 5 upon each party who is not in default for failure to appear, and
shall make a note in the docket of the mailing. Such mailing is
sufficient notice for all purposes for which notice of the entry of an
order is required by these Rules; but any party may in addition serve a
notice of such entry in the manner provided in Rule 5 for the service
of papers. Lack of notice of the entry by the Prothonotary does not
affect the time to appeal or relieve or authorize the Court to relieve a
party for failure to appeal within the time allowed.4
The Superior Court Rules of Civil Procedure are patterned after the Federal
Rules of Civil Procedure. Both Superior Court Rule 77(d) and Federal Rule 77(d)
expressly impose the duty of notification on the court clerk. However, Superior
2
MCA, Inc. v. Matsushita Elec. Indus. Co., 785 A.2d 625, 638 (Del. 2001).
3
Giordano v. Marta, 723 A.2d 833, 834 (Del. 1998) (emphasis in original) (citing Bey v. State,
402 A.2d 362, 363 (Del. 1979)); see also Riggs v. Riggs, 539 A.2d 163, 164 (Del. 1988).
4
Super. Ct. Civ. R. 77(d) (emphasis added).
4
Court Rule 77(d) also provides that lack of notice does not affect the time for
appeal or permit relief for failure to file a timely appeal.
In 1991, the Federal Rules were amended to permit a federal court to
provide relief from a final judgment order where a party does not receive actual
notice of the final judgment. Federal Rule 77(d) provides that “[l]ack of notice of
the entry does not affect the time for appeal or relieve -- or authorize the court to
relieve -- a party for failing to appeal within the time allowed, except as allowed by
Federal Rule of Appellate Procedure (4)(a).”5 The Advisory Committee Note to
the 1991 amendment of Federal Rule 77 states that “[t]his revision is a companion
to the concurrent amendment to Rule 4 of the Federal Rules of Appellate
Procedure,” and that “[t]he purpose of the revisions is to permit district courts to
ease strict sanctions now imposed on appellants whose notices of appeal are filed
late because of their failure to receive notice of entry of a judgment.”6
To aid in effecting the revisions discussed in the Advisory Committee Note
to Federal Rule 77, Federal Rule of Appellate Procedure 4(a) was also amended in
1991 by adding subsection (6). Federal Rule 4(a)(6) provides that “[t]he district
court may reopen the time to file an appeal for a period of 14 days after the date
when its order to reopen is entered, but only if all the following conditions are
5
Fed. R. Civ. P. 77(d).
6
Fed. R. Civ. P. 77 Advisory Committee’s Note (1991).
5
satisfied: (A) the court finds that the moving party did not receive notice under
Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought
to be appealed within 21 days after entry; (B) the motion is filed within 180 days
after the judgment or order is entered or within 14 days after the moving party
receives notice under Federal Rule of Civil Procedure 77(d) of the entry,
whichever is earlier; and (C) the court finds that no party would be prejudiced.”7
The Advisory Committee Note to the 1991 amendment of Federal Rule 4 states
that “[t]he amendment adds a new subdivision (6) allowing a district court to
reopen for a brief period the time for appeal upon a finding that notice of entry of a
judgment or order was not received from the clerk or a party within 21 days of its
entry and that no party would be prejudiced.”8
The changes to Federal Rule of Civil Procedure 77(d) and Federal Rule of
Appellate Procedure 4(a) have not been adopted by the Delaware Superior Court.
Prior to the 1991 amendments to the Federal Rules, when the Federal Rules
contained language similar to the Superior Court Rules, the clerk’s failure to mail a
notice of judgment to counsel did not constitute excusable neglect for filing an
7
Fed. R. App. P. 4(a)(6).
8
Fed. R. App. P. 4 Advisory Committee’s Note (1991).
6
untimely appeal under the analogous Federal Rule 60(b)(1).9 Thus, as we held in
Giordano v. Marta with respect to Court of Chancery Rule 77(d), we now hold
with respect to Superior Court Rule 77(d), that the failure of a party to receive
notice of a final judgment, absent any fault attributable to court personnel, does not
excuse a jurisdictional defect.
The Eids, in an attempt to circumvent the expiration of their time to file a
notice of appeal to this Court, sought a new final judgment order from the Superior
Court. They argued that they were unable to timely file a notice of appeal because
they did not receive actual notice of the final judgment order. However, they
admitted that the lack of notice was not attributable to court personnel, but rather,
due to their counsel leaving the counsel’s law firm and new counsel at the firm
failing to update contact information provided to the trial court. Further, the Eids
did not demonstrate that they exercised due diligence to ascertain whether the
judgment was entered, nor did they provide any reason for the lack of such
diligence. Essentially, the Eids’ Rule 60(b) motion to vacate served merely as a
tool to restart the thirty-day jurisdictional clock. However, as noted above,
Superior Court Rule 77(d) precludes a trial court from relieving a party for failure
9
See Bortugno v. Metro-North Commuter Railroad, 905 F.2d 674, 676 (2d Cir. 1990); see also
Spika v. Village of Lombard, III, 763 F.2d 282, 286 (7th Cir. 1985).
7
to timely file an appeal due to lack of notice of the final judgment absent any fault
attributable to court personnel.10
Moreover, although Superior Court Rule 60(b)(6) provides a broad
exception allowing the Superior Court to relieve a party from a final judgment for
any reason justifying relief, given our interpretation of Court of Chancery Rule
77(d) in Giordano, the interests of justice exception in Superior Court Rule
60(b)(6) cannot be used as a way to escape the plain effect of the Superior Court
Rule that addresses the precise circumstances facing the Eids. To allow Rule
60(b)(6) to be used in that circuitous fashion would end-run the purpose of Rule
77(d), which is to require litigants and their attorneys to monitor the court docket
with diligence and to file an appeal within the appropriate statutory period.
The Eids argue that BB&T failed to preserve this issue for appeal and
conceded that the court could grant the motion to vacate.11 The Eids’ contentions
are misplaced for several reasons. First, BB&T sufficiently raised this issue in its
10
See Giordano, 723 A.2d at 837; see also Riggs, 539 A.2d at 163 (“[T]he parties to an appeal
cannot confer jurisdiction on this Court by agreement.”); Dixon v. Delaware Olds, Inc., 396 A.2d
963, 966 (Del. 1978) (“Neither counsel nor this Court can waive a jurisdictional defect so as to
confer jurisdiction which does not otherwise exist.”).
11
See App. to Appellant’s Opening Br. at A246-47 (“[Court]: I have the right under the interest
of justice provisions to this thing right, right? MR. WOODS: I wouldn’t disagree with that. . . .
[Court]: Well, I can agree with you and still grant the relief, right? MR. WOODS: You can.”).
8
briefing before the Superior Court in response to the Eids’ motion to vacate.12
Second, BB&T’s response to the Superior Court’s inquiry was not a binding
judicial admission, but rather, a conclusion of law to which we do not defer. Third,
and perhaps most importantly, parties cannot waive issues regarding appellate
jurisdiction and cannot confer jurisdiction on this Court by agreement.13
Accordingly, we reverse the Superior Court’s grant of the motion to vacate the
final judgment order, reinstate the Superior Court’s March 20, 2014, order, and
dismiss the Eids’ cross-appeal as untimely. Because we dismiss the appeal on
jurisdictional grounds, we do not reach the other issues presented.
CONCLUSION
Based upon the foregoing, the judgment of the Superior Court is hereby
REVERSED and the appeal is DISMISSED.
12
See App. to Appellant’s Opening Br. at A233-36. See Telxon Corp. v. Meyerson, 802 A.2d
257, 263 (Del. 2002) (holding that an issue raised in the complaint and “briefed in the trial court”
was “fairly presented to that court and thus properly a subject of appeal” even where “it was not
addressed by the trial court in its decision”).
13
See Riggs, 539 A.2d 163; Dixon, 396 A.2d at 966.
9