Submitted: July 14, 2017
R. Wolcott, Esquire, Connolly Gallagher LLP Attorney for
Lawrence Gillen, Pro Se Defendant
MEMORANDUM OPINION AND ORDER ON DEFENDANT'S
MOTION TO VACATE JUDGMENT
Honorable Carl C. Danberg Judge.
underlying action in this matter was for breach of contract.
Judgment was entered in favor of the plaintiff, Shoppes of
Mount Pleasant, LLC (hereinafter "Shoppes") and
affirmed in part by the Superior Court. The defendant,
Lawrence Gillen (hereinafter "Mr. Gillen"), brings
the instant Motion to Vacate the judgment with respect to his
March 15, 2017, Mr. Gillen, acting through counsel,
filed the instant Motion. Both parties provided initial briefing
on the matter, and a hearing was convened on July 14, 2017.
The Court heard oral argument from the parties and reserved
judgment. This is the Court's Opinion and Order on the
Motion to Vacate Judgment.
standard for reviewing a Motion to Vacate Judgment is
governed by Court of Common Pleas Civil Rule 60(b). It is in
dispute whether the Court should address the instant Motion
under Rule 60(b)(2) or Rule 60(b)(3). However, this dispute is
immaterial, as the underlying subject matter remains the
same. Therefore, the Court shall analyze each Rule and
determine which Rule governs the Motion. Regardless of the
precise Rule, under established Delaware precedent, a
"party moving to vacate a final judgment or order must
show that they are entitled to relief under Rule 60(b) by a
preponderance of the evidence." Motions to vacate "are
within the sound discretion of the trial court, and they are
not to be taken lightly or easily
Gillen argues Shoppes provided at trial a fraudulent copy of
the lease between Shoppes and J.M.L., Inc. (hereinafter the
"Lease"), which purported to include Mr.
Gillen's signature as personal guarantor. Mr. Gillen
maintains, as he did at trial, he did not sign as personal
guarantor and the Lease did not include a provision for a
personal guarantor. As proof of the fraudulent quality of the
Lease, Mr. Gillen presented the Court with a copy of the
Lease found in the files of the Office of the Alcoholic
Beverage Control Commission (hereinafter the
"OABCC"), which does not contain a line for a
personal guarantor. According to Mr. Gillen, Shoppes
"knew that they did not have a cause of action against
[Mr. Gillen] so presented a forged lease in order to justify
their fraudulent action[.]"
Gillen argues the applicable standard for his Motion is Rule
60(b)(3), on the grounds of fraud on the Court. Mr.
Gillen's arguments all derive from the allegation of the
Lease introduced at trial being fraudulent, which Mr. Gillen
claims is sufficient in and of itself to warrant reopening
the case for an evidentiary hearing, if not outright vacating
the judgment. Lastly, Mr. Gillen asserts his delay in
bringing the alleged fraud to the attention of the Court is
due to his reliance upon the testimony introduced at trial,
Mr. Gillen's need to care for his wife following a
serious automobile accident, and a flood resulting in damage
to his personal files.
argues Mr. Gillen has failed to prove he was unaware of the
lease filed with the OABCC or, at the very least, he failed
to prove he could not have obtained a copy of the alternative
lease through the exercise of due diligence. Shoppes further
cast doubt on the veracity of the purported lease, as the
bottom of the final page is cut off due to the last page
being on letter-sized paper, while the rest of the lease is
on legal-sized paper. Concerning the argument for fraud,
Shoppes argues Mr. Gillen's Motion is conclusory in its
suppositions of Shoppes' alleged fraudulent conduct.
While Shoppes does not evince a clear preference for applying
either Rule 60(b)(2) or Rule 60(b)(3), Shoppes argues Mr.
Gillen cannot be successful under either standard.
of Common Pleas Civil Rule 60(b)(2) allows a party to move to
vacate a judgment on the grounds of "newly discovered
evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule
59(b)[.]" To succeed, "a party must demonstrate
that the newly discovered evidence could not have been
discovered by the exercise of due diligence prior to the
underlying order or judgment; that it is sufficiently
material and relevant that it would probably ...