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Mergenthaler v. Triumph Mortgage Corp.

Superior Court of Delaware

January 3, 2019

Lawrence E. Mergenthaler
v.
Triumph Mortgage Corp.

          John A. Sergovic, Jr., Esquire Rachel B1eshman, Esquire Sergovic Carmean Weidrnan McCartney & Owens, P.A.

          Richard L. Abbott, Esquire Abbott Law Firm, LLC

          ABIGAIL M. LEGROW JUDGE.

         Dear Counsel, This is an action that, at this stage, involves Plaintiffs ongoing efforts to collect on a judgment entered against Defendant. On January 6, 2017, Defendant's counsel filed a general entry of appearance indicating counsel represented Defendant "in this action."[1] On October 12, 2018, Plaintiffs counsel served on Defendant's counsel discovery requests relating to Plaintiffs execution efforts. On December 18, 2018, Plaintiff filed a motion to compel responses to that discovery (the "Motion"). After the Motion was filed, Defendant's counsel filed a "corrected entry of appearance" purporting to limit the scope of counsel's representation to motions to quash and "related proceedings."[2] In a nutshell, Defendant's counsel appears to contend that he represents Defendant only for purposes of quashing a writ of execution and not for any other purpose, including the discovery. Accordingly, Defendant's counsel asserts Defendant never was served with the discovery that is the subject of the Motion.

         This morning, the Court heard Plaintiffs Motion. Neither Defendant nor Defendant's counsel appeared at the hearing. Simultaneously with this letter, the Court is entering an order granting the Motion. This letter briefly summarizes the Court's ruling on the Motion; the Court explained the ruling in greater depth at the hearing.

         First, the Court considered sua sponte whether Defendant's pending appeal divests the Court of jurisdiction to consider the Motion. The Court concluded that it retains jurisdiction over the discovery and the Motion because the discovery is independent from the subject of the appeal, which is the writ of execution and the associated motion to quash. The discovery relates to Plaintiffs other collection efforts, and the Supreme Court's ruling on the appeal will not alter whether Plaintiff is entitled to engage in those collection efforts.[3] Although the general rule is that proper perfection of an appeal divests a trial court of jurisdiction over a cause of action, in some instances the trial court may exercise its jurisdiction as to collateral or independent matters.[4] In my view, this discovery is collateral to, and will not be affected by, the resolution of Defendant's appeal.[5]

         Second, the Court considered whether Defendant properly was served with the discovery at issue. Under Superior Court Civil Rule ll(b), service on a party represented by an attorney must be made upon that party's attorney. At the time Plaintiff served the discovery, Defendant's counsel had entered a general appearance on behalf of Defendant relating to "this action." Nothing in the record suggested the entry of appearance was limited to the motion to quash, and Defendant's counsel previously responded to and opposed a motion unrelated to the motion to quash.[6] Accordingly, at the time the discovery was served, Defendant's counsel represented Defendant in this action, and Plaintiff was required to serve Defendant through its counsel. Service of the discovery and the Motion therefore was effective.

         Third, the Court concluded the Motion must be granted. Defendant, despite properly being served, has not responded to discovery. More than 30 days have elapsed since discovery was served. Under Superior Court Civil Rule 37(a)(4), Plaintiff also is entitled to an award of attorneys' fees incurred in obtaining the order compelling discovery.[7] Plaintiffs counsel shall file a fee affidavit within five days.

         Finally, the Court hereby advises Defendant's counsel that the "corrected entry of appearance" is not effective in limiting the scope of counsel's appearance in this action. Having filed a general entry of appearance, Defendant's counsel cannot withdraw from some or all aspects of the representation without complying with Superior Court Civil Rule 5(aa)(1).

         IT IS SO ORDERED.

---------

Notes:

[1] D.I. 94.

[2] Defendant's counsel first advised Plaintiff of the limited scope of the representation in late November 2018, after Plaintiff wrote to Defendant's counsel ...


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