A party in a civil case and a defendant in a criminal case may file a motion with a court for relief from a judgment or order from that court.42 There is no time limit for filing such a motion, and the motion may be filed after the judgment has become final.43 The filing of the motion does not affect the finality of the judgment or suspend its operation.44 Notwithstanding the absence of any time limit for bringing a motion for relief from judgment, a court may decline to grant such a motion upon determining that the petitioner delayed unreasonably in bringing the motion.45 A related factor is whether the delay resulted in prejudice to the non-movant.46 In any event, unreasonable delay in bringing such a motion however, is not a basis for denying the motion when it is established that the judgment is void, although when a judgment is merely voidable, unreasonable delay may bar relief.47
There are two significant values implicated by the rules relating to relief from judgment. The first is ensuring the integrity of the judicial process and the second, countervailing, consideration is the finality of judgments. Because of the significant interest in preserving the finality of judgments, motions for relief from judgment motions are not to be taken lightly or easily granted.48 A proper standard must strike a balance between the interest in bringing litigation to an end and the countervailing concern that justice is carried out. The test for determining whether or not to grant a motion for relief from judgment is (1) did the moving party make some showing that, if relief is granted, the outcome of the action may be different from what it will be if the judgment is allowed to stand; and (2) will the non-moving party suffer substantial prejudice as a result of re-opening the judgment.49 The fact that the non-moving party may suffer some loss as a result of re-opening a judgment is not sufficient to deter the motion.50 Other types of prejudice may be mitigated by a court attaching appropriate conditions to a grant of the motion, such as an award of attorney’s fees or such other relief as the court deems just.51
The decision whether or not to grant a motion for relief from judgment and the terms under which such a motion may be granted is within the discretion of the trial judge.52 The burden is on the movant to establish the basis for relief.53 When a case presents a question of substantial rights and a litigant has not been afforded an opportunity to have the case decided on the merits, public policy favors liberality in granting a motion for relief from judgment.54 There is less reason for liberality when the judgment comes after a full trial on the merits and after the time for an appeal has passed.55 Further, courts take a restrained approach to reopening cases that have been resolved by consent of the parties.56 The criteria established by rule for the grant of such a motion are set forth below.
Mistake, Inadvertence, Surprise or Excusable Neglect.57 What constitutes “mistake” will depend on the type of judgment sought to be set aside. For example, with respect to a default judgment, a “mistake” refers to some action, not amounting to gross negligence, which has operated to keep a defendant out of court and prevented him or her from having a trial on the merits. With respect to a consent judgment, which is similar to a contract between the parties, there must be some theory, such as mutual mistake, which would be adequate to relieve a party from the contract.58 Mistake means mutual mistake when a consent judgment is involved.59 “Mistake” usually refers to a mistake of fact. Alleged mistakes of law are not favored as grounds for relief.60 Although a mistake of counsel may qualify as a ground for relief,61 errors amounting to a tactical decision of counsel of a type routinely made in litigation do not qualify as the type of mistake warranting relief from a judgment.62
“Excusable neglect” refers to the neglect which might have been the act of a reasonably prudent person under the circumstances. A mere showing of carelessness or negligence without a valid reason is insufficient. All the surrounding circumstances may be considered in determining the issue.63 Excusable neglect has been described as that neglect which might have been the act of a reasonably prudent person under the circumstances. However, negligence may be so gross as to amount to sheer indifference, and to open and vacate a judgment upon such excuse would cease to give meaning to the words excusable neglect.64
Newly Discovered Evidence.65 To be entitled to relief on this ground, the petitioner must demonstrate that (i) the evidence came to the movant’s knowledge only after the trial; (ii) the new evidence could not, in the exercise of reasonable diligence, have been discovered in time for use at trial; (iii) the new evidence is so material and relevant that it will probably change the result if there is a new trial; (iv) the new evidence is not merely cumulative or impeaching in character; and (v) it is reasonably probable that the new evidence will be produced at trial.66 In addition to these requirements, the rules of the Superior Court, the Court of Common Pleas and the Family Court also expressly require that the new evidence could have been discovered in time to move for a new trial, i.e., not later than ten days after the entry of judgment.67
Fraud, Misrepresentation or Other Misconduct of an Adverse Party.68 This section is reserved for situations where a party has engaged in fraud or misrepresentation that prevents the moving party from fairly and adequately presenting his or her case.69 A party who seeks relief from justice on the ground that another party used fraud or circumvention to obtain a judgment has the burden of proving fraud by clear and convincing evidence. The evidence of fraud must be of such a material nature that it would convince the court that the court’s decision would have been different had the court known of the transgression or improprieties committed during the proceedings. A motion based on a claim of fraud must be brought within a reasonable period of time after the final judgment has been entered.70
A trial judge may provide relief from a judgment sua sponte when there is fraud upon the court. For relief from a final judgment on the ground that a party committed fraud upon the court, a heavy burden must be met. Ultimately, there must be a showing of the most egregious conduct involving a corruption of the judicial process itself.71 Thus, “fraud on the court” is typically confined to the more serious cases involving, for example, bribery of a judge or juror, improper influence exerted on the court by an attorney, or involvement of an attorney as an officer of the court in the perpetration of fraud. In each of these instances, the integrity of the court and its ability to function impartially are directly affected. Moreover, a finding of fraud on the court must be supported by clear, unequivocal, and convincing evidence. Under this doctrine, fraud must be extrinsic to justify relief. That is, the fraud must be so subversive that it actually prevents an issue from being joined or a party from making a valid claim or defense. Generally speaking, perjury and fabricated evidence are not grounds for dismissal as these are evils that can be exposed at trial and court rules are fashioned to facilitate such revelations.72
The Judgment Is Void.73
The Judgment Has Been Satisfied, Released or Discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have a prospective application.74
Any Other Reason Justifying Relief in the Opinion of the Court.75 This catch-all provision grants courts power to vacate or set aside judgments where such action is appropriate to accomplish justice.76 To obtain relief under this provision, the petitioner must demonstrate “extraordinary circumstances.”77 Extraordinary circumstances will not be found to exist where the conduct of the moving party has been intentional or willful, such as ignoring a complaint after it was served.78 Extraordinary circumstances that would justify relief under this rule encompass circumstances that could not have been addressed using other procedural methods, and which constitute an extreme hardship, or demonstrate that manifest injustice would occur if relief were not granted.79
A court may in its discretion stay the execution of any order pending the disposition of a motion for relief from a judgment.80
42. Ch. Ct. R. 60(b); Super. Ct. Civ. R. 60(b); Comm. Pls. Ct. Civ. R. 60(b); Fam. Ct. Civ. R. 60(b); J.P. Ct. Civ. R. 20(b). Rule 60(b) is applicable to criminal cases pursuant to Superior Court Criminal Rule 61. State v. Hinson, I.D. No. 9804020279, slip op. at 7, Cooch, J. (Del. Super. Feb. 10, 2006). At common law, courts had inherent power to vacate, modify or set aside their judgments during the term in which the judgments were rendered, Tyndall v. Tyndall, 214 A.2d 124, 125 (Del. 1965), later proceeding, 238 A.2d 343 (Del. 1968); Tweed v. Lockton, 167 A. 703, 704-06 (Del. Super. 1932), but not beyond the term, unless proceedings to vacate, modify or set aside the judgment had begun prior to the end of the term. Miles v. Layton, 193 A. 567, 571 (Del. 1937). Delaware courts did not follow the common-law rule strictly, and courts would grant motions for relief from a judgment even after the term had ended where the record showed that a party had been deprived of a right granted by law. Webb Packing Co. v. Harmon, 193 A. 596, 598 (Del. Super. 1937).
43. Levine v. Smith, 591 A.2d 194, 203 (Del. 1991); Swann v. Carey, 272 A.2d 711, 712 (Del. 1970).
44. Ch. Ct. R. 60(b); Super. Ct. Civ. R. 60(b); Comm. Pls. Ct. Civ, R. 60(b); Fam. Ct. Civ. R. 60(b); J.P. Ct. Civ. R. 20(b). Thus, an order denying a motion for relief from judgment brought after the time has elapsed for an appeal from the judgment is itself appealable, but the appeal brings up only the correctness of the order. It does not permit the appellant to attack the underlying judgment. Swann v. Carey, 272 A.2d 711, 712 (Del. 1970).
45. Levine v. Smith, 591 A.2d 194, 203 (Del. 1991); Schremp v. Marvel, 405 A.2d 119, 120 (Del. 1979); Stoltz Management Co. v. Consumer Affairs Bd., C.A. No. 91A-03-7, slip op. at 2, Taylor, J. (Del. Super. Jan. 3, 1992), aff’d, 616 A.2d 1205 (Del. 1992).
46. Scureman v. Judge, C.A. No. 1486-S, Jacobs, V.C. (Del. Ch. June 26, 1998).
47. B. J. Hollingsworth Co. v. Cesarini, 129 A.2d 768, 769 (Del. Super. 1957).
48. MCA, Inc. v. Matsushita Elec. Indus. Co., Ltd., 785 A.2d 625, 634 (Del. 2001).
49. Tsipouras v. Tsiopouras, 677 A.2d 493, 496 (Del. 1996); Reynolds v. Reynolds, 595 A.2d 385, 389 (Del. 1991); Battaglia v. Wilmington Trust Sav. Fund Soc., 379 A.2d 1132, 1135 (Del. 1977).
50. Brown v. Tunis, No. C594-3738, slip op. at 7, Robinson, J. (Del. Fam. June 22, 1995).
51. Reynolds v. Reynolds, 595 A.2d 385, 389 (Del. 1991); Brown v. Tunis, No. C594-3738, slip op. at 7, Robinson, J. (Del. Fam. June 22, 1995).
52. Shipley v. New Castle County, 975 A.2d 764, 767 (Del. 2009); MCA, Inc. v. Matsushita Elec. Indus. Co., Ltd., 785 A.2d 625, 633 (Del. 2001); Levine v. Smith, 591 A.2d 194 (Del. 1991); Wife B v. Husband B, 395 A.2d 358, 359 (Del. 1978).
53. Weeks v. Wilson, Del.Supr., No. 422, 1989, Walsh, J. (May 31, 1990) (ORDER).
54. Insurance Co. of North America v. Dubroff, C.A. No. 6316, slip op. at 6, Hartnett, V.C. (Del. Ch. Feb. 1, 1993); East Coast Insulation Sales Co. v. Stevenson, C.A. No. 2359, slip op. at 4, Gebelein, J. (Del. Super. June 29, 1990), reh’g denied, C.A. No. 2359, Gebelein, J. (Del. Super. Aug. 20, 1990).
55. Insurance Co. of North America v. Dubroff, C.A. No. 6316, slip op. at 6, Hartnett, V.C. (Del. Ch. Feb. 1, 1993).
56. M.C.D. v. F.C., No. CN99-09413, Tumas, J. (Del. Fam. Ct. July 7, 2003).
57. Ch. Ct. R. 60(b)(1); Super. Ct. Civ. R. 60(b)(1); Comm. Pls. Ct. Civ. R. 60(b)(1); Fam. Ct. Civ. R. 60(b)(1); J.P. Ct. Civ. R. 20(b)(1).
58. Keystone Fuel Oil Co. v. Del-Way Petroleum, Inc., 364 A.2d 826, 829 (Del. Super. 1976).
59. Keystone Fuel Oil Co. v. Del-Way Petroleum, Inc., 364 A.2d 826, 829 (Del. Super. 1976).
60. Keystone Fuel Oil Co. v. Del-Way Petroleum, Inc., 364 A.2d 826, 829-30 (Del. Super. 1976).
61. Nashold v. Giles & Ransome, Inc., 245 A.2d 175, 176 (Del. 1968).
62. Trans World Airlines, Inc. v. Summa Corp., 394 A.2d 241, 246 (Del. Ch. 1978).
63. Battaglia v. Wilmington Say. Fund Soc., 379 A.2d 1132, 1135 n.4 (Del. 1977); City of Dover v. Hunter, 880 A.2d 239, 244 (Del. Super. 2004), aff’d mem., 873 A.2d 1099 (Del. 2005); Cohen v. Brandywine Raceway Asso., 238 A.2d 320, 325 (Del. Super. 1968).
64. City of Dover v. Hunter, 880 A.2d 239, 244 (Del. Super. 2004), aff’d mem., 873 A.2d 1099 (Del. 2005).
65. Ch. Ct. R. 60(b)(2); Super. Ct. Civ. R. 60(b)(2); Comm. Pls. Ct. Civ. R. 60(b)(2); Fam. Ct. Civ. R. 60(b)(2); J.P. Ct. Civ. R. 20(b)(2).
66. Levine v. Smith, 591 A.2d 194, 202 (Del. 1991); Poole v. N. V. Deli Maatschappij, 257 A.2d 241, 243 (Del. Ch. 1969). Cf. Bachtle v. Bachtle, 494 A.2d 1253, 1255-56 (Del. 1985) (holding that to qualify as newly discovered evidence, the evidence must have been “in existence and hidden at the time of the judgment”).
67. Super. Ct. Civ. R. 60(b)(2); Comm. Pls. Ct. Civ. R. 60(b)(2); Fam. Ct. Civ. R. 60(b)(2).
68. Ch. Ct. R. 60(b)(3); Super. Ct. Civ. R. 60(b)(3); Comm. Pls. Ct. Civ. R. 60(b)(3); Fam. Ct. Civ. R. 60(b)(3); J.P. Ct. Civ. R. 20(b)(3).
69. MCA, Inc. v. Matsushita Elec. Indus. Co., Ltd., 785 A.2d 625, 639 (Del. 2001), cert. denied, 535 U.S. 1017 (2002).
70. Glinert v. Wickes Cos., CA. No. 10407, slip op. at 7, AlIen, C. (Del. Ch. July 13, 1992), aff’d mem., 620 A.2d 857 (Del. 1993).
71. Sammons v. Doctors for Emergency Services, P.A., 913 A.2d 519, 542 (Del. 2006); MCA, Inc. v. Matsushita Elec. Indus. Co., Ltd., 785 A.2d 625, 639 (Del. 2001), cert. denied, 535 U.S. 1017 (2002).
72. MCA, Inc. v. Matsushita Elec. Indus. Co., Ltd., 785 A.2d 625, 638-39 (Del. 2001), cert. denied, 535 U.S. 1017 (2002); Smith v. Williams, C.A. No. 05C-10-307-PLA, slip op. at 12-13, Ableman, J. (Del. Super. July 27, 2007).
73. Ch. Ct. R. 60(b)(4); Super. Ct. Civ. R. 60(b)(4); Comm. Pls. Ct. Civ. R. 60(b)(4); Fam. Ct. Civ. R. 60(b)(4); J.P. Ct. Civ. R. 20(b)(4).
74. Ch. Ct. R. 60(b)(5); Super. Ct. Civ. R. 60(b)(5); Comm. Pls. Ct. Civ. R. 60(b)(5); Fam. Ct. Civ. R. 60(b)(5); J.P. Ct. Civ. R. 20(b)(5).
75. Ch. Ct. R. 60(b)(6); Super. Ct. Civ. R. 60(b)(6); Comm. Pls. Ct. Civ. R. 60(b)(6); Fam. Ct. Civ. R. 60(b)(6); J.P. Ct. Civ. R. 20(b)(6).
76. Jewell v. Division of Social Services, 401 A.2d 88, 90 (Del. 1979).
77. Bachtle v. Bachtle, 494 A.2d 1253, 1256 (Del. 1985); Schremp v. Marvel, 405 A.2d 119, 120 (Del. 1979); Jewell v. Division of Social Services, 401 A.2d 88, 90 (Del. 1979).
78. Keith v. Melvin L. Joseph Contr. Co., 451 A.2d 842, 847 (Del. Super. 1982); Fenwick Housing Corp. v. Sergovic & Ellis, P.A., C.A. No. 94A-12-001, slip op. at 5, Graves, J. (Del. Super. Dec. 21, 1995).
79. Saito v. McCall, C.A. Nos. 17132 & 18553, slip op. at 3, Chandler, V.C. (Del. Ch. Aug. 18, 2004), aff’d mem., 870 A.2d 1192 (Del. 2005).
80. Ch. Ct. R. 62(b); Super Ct. Civ. R. 62(b); Comm. Pls. Ct. Civ. R. 62(b); Fam. Ct. Civ. R. 62(b); Newcastle Partners, L.P. v. Vesta Ins. Group, Inc., 887 A.2d 975, 979 (Del. Ch.), aff’d mem., 906 A.2d 805 (Del. 2005).
© 2010 David L. Finger