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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WILLIAMBURG VILLAGE 

CONDOMINIUM ASSOCIATION, a 

Delaware incorporated association of 

unit formed under the Unit Property 

Act,

Plaintiff,

v.

PADDY’S LLC, a Delaware limited 

liability company, and SM Contractors, 

LLC, a Delaware limited liability 

company

Defendants.

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) C.A. No. N21C-07-246 CLS

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Date Submitted: November 14, 2022

Date Decided: December 13, 2022

Upon Plaintiff’s Motion for Reargument. DENIED.

ORDER

Robert J. Valihura, Jr., Esquire, Morton, Valihura & Zerbato, LLC, Greenville, 

Delaware, 19807, Attorney for Plaintiff, Williamsburg Village Condominium 

Association, Inc. 

Cynthia G. Beam, Esquire, Reger Rizzo Darnall LLP, Wilmington, Delaware 

19803, Attorney for Defendant Paddy’s, LLC

Joseph S. Naylor, Esquire, Swartz Campbell, LLC, Wilmington, Delaware, 19801, 

Attorney for Defendant SM Contractors, LLC.

SCOTT, J.
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INTRODUCTION

Before this Court is Plaintiff Williamsburg Village Condominium 

Association’s (“Plaintiff”) Motion for Reargument brought pursuant to Superior 

Court Rule of Civil Procedure 59(e). For the following reasons, Plaintiff’s Motion 

is DENIED.

BACKGROUND

On October 31, 2022, this Court issued a Decision denying Plaintiff’s Motion 

to Amend. Plaintiff sought to add two additional counts, one for fraud and another 

for consumer fraud based upon a text message sent by Defendant Paddy’s, the 

contractor for the roofing project that is the subject of the Complaint, to Defendant

SM Contractors. Specifically, that text message stated, “[o]bviously, this is a 

widespread issue, as we now have several new areas that have falling shingles. This 

was no surprise to our guys, who are saying that these shingles were not installed 

properly and were all nailed wrong. There is no telling how many areas are going to 

continue to have problems. I just wanted to lay it out for you so you could decide the 

best way to handle this. It is obvious that this is the result of poor workmanship.”

When the Court denied the Motion to Amend, it added the following comments: 

Nothing in the Motion indicates how a text reviewing poor workmanship could be a 

false material representation that induced plaintiff to enter the contract. It would not 

have survived a 12(b) motion.
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On November 7, 2022, at 5:10 p.m., Plaintiff filed this Motion for 

Reargument. In this Motion, Plaintiff’s argue this Court misinterpreted Plaintiff’s 

claims and treated the claims as such that would not survive a 12(b) motion, which 

deprives Plaintiff the opportunity to properly develop the record to support its 

additional fraud claims. Additionally, Plaintiff argues the Court mistakenly 

interpreted Plaintiff’s fraud claims to be related to the inducement of the contract 

rather than fraud based on Defendant Paddy’s actions after the roofing contract was 

allegedly completed and those actions having resulted in after the fact fraudulent 

conduct. 

Defendant SM Contractors filed an answer in opposition of Plaintiff’s Motion 

on November 14, 2022, at 3:27 p.m. In Defendant SM Contractors’ answer, it argued 

fraud is only actionable where it relates to the inducement of the contractual 

relationship, not performance under the contract. Additionally, Defendant SM 

Contractors argues Plaintiff failed to allege Defendants made an affirmative 

misrepresentation to Plaintiff and Plaintiff’s fraud allegations are based entirely on 

nonfeasance without pleading facts to Defendants owing a duty to speak. 

Defendant Paddy’s LLC filed a Notice of Joinder to Defendant SM 

Contractors opposition on November 14, 2022, at 3:41 p.m. 
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STANDARD OF REVIEW

On a Motion for Reargument under Superior Court Rule of Civil Procedure 

59(e), the Court will determine from the motion and answer whether reargument will 

be granted and the only issue is whether the Court overlooked something that would 

have changed the outcome of the underlying decision.1 Thus, the motion will be 

granted only if “the Court has overlooked a controlling precedent or legal principles, 

or the Court has misapprehended the law or facts such as would have changed the 

outcome of the underlying decision.”2 A Motion for Reargument is not an 

opportunity for a party to rehash the arguments already decided by the Court or to 

present new arguments not previously raised.3 A party seeking to have the Court 

reconsider the earlier ruling must, “demonstrate newly discovered evidence, a 

change in the law, or manifest injustice.”4“Delaware law places a heavy burden on 

a [party] seeking relief pursuant to Rule 59.”5

1 Brenner v. Vill. Green, Inc., 2000 WL 972649, at *1 (Del. Super. May 23, 2000) 

aff'd, 763 A.2d 90 (Del. 2000).

2 BRP Hold Ox, LLC v. Chilian, 2018 WL 6432978, at *1 (Del. Super. Dec. 6, 

2018) (quoting Kennedy v. Invacare, Inc., 2006 WL 488590, at *1 (Del. Super. 

Jan. 31, 2006)).

3 Kennedy, 2006 WL 488590, at * 1.

4 Brenner, 2000 WL 972649, at *1.

5 Newborn v. Christiana Psychiatric Serv., P.A., 2017 WL 394096, at *2 (Del. 

Super. Jan. 25, 2017)
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DISCUSSION

A. Timeliness of Motion for Reargument

Plaintiff’s Motion is untimely. Superior Court Civil Rule 59(e) states that a 

“motion for reargument shall be served and filed within 5 days after the filing of the 

Court's opinion or decision.” When time limits are under eleven days, weekends and 

holidays are excluded from the computation of time to file a motion.6 Accordingly, 

Plaintiff's Motion for Reargument was due on November 7, 2022 by 5 p.m. In 

accordance with Delaware Supreme Court adoption of policies to improve work life 

balance, effective September 14, 2018, the filing deadline is 5 p.m. While Plaintiff 

filed its Motion on November 7, 2022, the time in which the Motion was filed was 

5:10 p.m. Therefore, Plaintiff’s Motion for Reargument, in accordance with 

Delaware Supreme Court standards, is untimely. Regardless of the timeliness of the 

Motion, this Court will continue its analysis as if it were timely. 

B. Even if the Motion was Timely, the Motion Still Would be Denied. 

A motion for leave to amend is within the sound discretion of the court and 

leave “shall be freely given when justice so requires.”7 In the absence of substantial 

prejudice or legal insufficiency, the court must exercise its discretion in favor of 

granting leave to amend. However, a motion to amend must be denied if the 

amendment would be futile in the sense that it would not survive a motion to dismiss 

6 Super. Ct. Civ. Rule. 6(a).

7 Super. Ct. Civ. Rule. 15(a).
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under Rule 12(b)(6).8 The standard for assessing the legal sufficiency of a proposed 

amended complaint is the same standard applicable to a motion to dismiss under 

Rule 12(b)(6)9-all allegations in the amended complaint must be accepted as true,10

and the proposed amendment will not be dismissed unless the plaintiff would not be 

entitled to recover under any reasonably conceivable set of circumstances 

susceptible of proof.11

With this standard for futility in mind, this Court finds that it has not

overlooked a controlling precedent or legal principles or has misapprehended the 

law or facts such as would have changed the outcome of the underlying decision. 

The correct standard for futility to determine whether amendment should be granted 

was analyzed by this Court. 

This Court did not misapprehend law or facts, as Plaintiff has suggested by 

asserting its fraud claim was “after the fact.” The Court has found no caselaw in 

Delaware to support such a claim. The only claim this Court believes Plaintiff may 

be attempting to bring which could be considered “after the fact” is a fraudulent 

concealment claim. A fraudulent concealment claim is based on a defendant’s

8 E.I. du Pont de Nemours & Co. v. Allstate Ins. Co., 2008 WL 555919, at *1 (Del. 

Super. Ct. Feb. 29, 2008) (citing Cartanza v. Lebeau, 2006 WL 903541).

9 FS Parallel Fund L.P. v. Ergen, 2004 WL 3048751; Fitzgerald v. Cantor, 1998 

WL 940824.

10 Atamian v. Gorkin, 1999 WL 743663.

11 Id.
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deliberate concealment of material facts or silence in the face of a duty to speak. To 

claim fraudulent concealment, the plaintiff must allege that the defendant 

successfully took an affirmative action designed or intended to prevent the plaintiff’s 

discovery of facts giving rise to the fraud claim.12 Just as the Court found before, the 

allegations asserted in the previous Motion to Amend would not survive a 12(b)(6) 

Motion, making amendment futile. 

CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Reargument is DENIED.

IT IS SO ORDERED.

/s/ Calvin L. Scott

Judge Calvin L. Scott, Jr.

12 Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1074 (Del. 1983); Norton v. 

Poplos, 443 A.2d 1, 5 (Del. 1982); Lock v. Schreppler, 426 A.2d 856, 860 (Del. 

Super. 1981) (superseded by statute on other grounds).