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Shoppes of Mount Pleasant LLC v. J.M.L., Inc.

Court of Common Pleas of Delaware, New Castle

August 11, 2017

J.M.L., INC. and LAWRENCE GILLEN Defendants

          Submitted: July 14, 2017

          Josiah R. Wolcott, Esquire, Connolly Gallagher LLP Attorney for Plaintiff

          Lawrence Gillen, Pro Se Defendant


          Honorable Carl C. Danberg Judge.

         The 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.[1] The defendant, Lawrence Gillen (hereinafter "Mr. Gillen"), brings the instant Motion to Vacate the judgment with respect to his individual liability.[2]

         On March 15, 2017, Mr. Gillen, acting through counsel, [3] filed the instant Motion.[4] 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.


         The 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).[5] 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."[6] Motions to vacate "are within the sound discretion of the trial court, and they are not to be taken lightly or easily granted."[7]


         Mr. 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[.]"

         Mr. 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.

         Shoppes 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.


         Court 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 ...

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