In a rare split decision, the state Supreme Court held that Delaware will accept class-action, cross-jurisdictional tolling.
Delaware Law Weekly
Attorneys appointed by the Delaware Family Court to represent indigent families in dependency and neglect cases have qualified immunity from malpractice lawsuits and cannot cite the lack of malpractice insurance as a reason to withdraw from representation, the Delaware Supreme Court has ruled.
Delaware Law Weekly
A federal court has ruled that it lacks authority under the U.S. Code to resolve a dispute between a Delaware developer and the state Department of Education on the constitutionality of the state's Voluntary School Assessment Act, or VSA. The court held that it did not have subject-matter jurisdiction over the collection of state taxes and granted the Education Department's motion for summary judgment to dismiss the developer's lawsuit.
Scion Breckenridge Managing Member, LLC v. ASB Allegiance Real Estate Fund, DEFAX Case No. D65605 (Del. Supr. en banc May 9, 2013) Steele, C.J. (40 pages).
Formation ; Scrivener's Error ; Reformation ; Unilateral Mistake ; Misconduct
Plaintiffs were permitted to seek reformation of written agreements that incorrectly transcribed the parties' joint venture agreements because plaintiffs' failure to catch the mistake did not amount to a failure to act in good faith and in accordance with reasonable standards of fair dealing. Affirmed in part.
New Cingular Wireless PCS v. Sussex Cnty. Bd. of Adjustment, DEFAX Case No. D65612 (Del. Supr. en banc May 9, 2013) Ridgley, J.; Strine, C., concurring (16 pages).
LAND USE & PLANNING
Special Exceptions ; Cell Tower ; Legal Standard ; "Substantially Affect Adversely"
The Delaware Supreme Court vacated a board of adjustment decision denying petitioner a special use exception where the board failed to apply the correct legal standard in considering the application. Reversed and vacated.
Arrants v. Home Depot, DEFAX Case No. D65602 (Del. Supr. May 7, 2013) Holland, J. (11 pages).
Termination of Benefits ; Total Disability ; Back Surgery ; Change in Condition
The record supported the Industrial Accident Board's finding that claimant's condition had changed where the evidence established that claimant was medically able to return to work after undergoing back surgery and that employment was readily available. Affirmed.
Imbert v. LCM Interest Holding LLC, DEFAX Case No. D65611 (Del. Ch. May 7, 2013) LeGrow, Master (29 pages).
Personal Liability ; Advancement of Fees ; Alleged Misconduct ; Manager vs. Member
Plaintiff was entitled to advancement of legal fees under the terms of two limited liability company agreements where defendant companies' claims against plaintiff were brought about by reason of plaintiffs' conduct as a manager, not a member. Advancement of fees recommended.
In re Mobileactive Media, LLC, DEFAX Case No. D65604 (Del. Ch. May 8, 2013) Parsons, V.C. (18 pages).
Valuation ; Discount Rate ; Discounted Damages Figure ; Evidence ; Expert Testimony
The Chancery Court found that it did not misapprehend a "fact," i.e., an appropriate discount rate and discounted damages figure, where plaintiff never advocated for or proved such a position through competent evidence at trial. Motions for reargument denied.
Whittington v. Dragon Group L.L.C., DEFAX Case No. D65588 (Del. Ch. May 1, 2013) Parsons, V.C. (42 pages).
Formation ; Settlement Agreement ; Attorney Lien ; Intent to be Bound ; Counsel's Signature
The record demonstrated that both parties intended to be bound by the challenged settlement agreement and that it constituted a valid, binding agreement even though plaintiff's former counsel did not sign the agreement. Settlement agreement enforced.
United Health Alliance, LLC v. United Medical, LLC, DEFAX Case No. D65598 (Del. Ch. May 6, 2013) Parsons, V.C. (12 pages).
Admissions ; Mediation ; Confidential Communications ; Waiver ; Hearsay Statement
Although defendant waived the right to invoke public policy favoring confidentiality in mediation proceedings to preclude admission of an email from the mediator, the subject email was impermissible hearsay evidence. Motion to strike granted.
Kalb v. Council, DEFAX Case No. D65603 (Del. Super. May 8, 2013) Davis, J. (13 pages).
Premises Liability ; Attractive Nuisances ; Pastured Horse ; Restatement (Second) of Torts §339
Where a young child was injured by a horse in a pasture, genuine issues of material fact remained as to whether attractive nuisance doctrine applied, and alternatively, whether defendants committed willful and wanton conduct so as to owe a duty to protect her from injury. Defendants' motion for summary judgment denied.
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