MIDDLEBROOK v. AYRES, 801 A.2d 10 (Del. 2002)

NIKERRAY MIDDLEBROOK, Plaintiff Below-Appellant, v. CAROLINE P. AYRES, Defendant Below-Appellee.

No. 48, 2002Supreme Court of Delaware.Submitted: May 10, 2002
Decided: July 2, 2002

Court Below Superior Court of the State of Delaware, in and for New Castle County C.A. No. 01C-03-006.

Affirmed.

Unpublished opinion is below.

NIKERRAY MIDDLEBROOK, Plaintiff Below-Appellant, v. CAROLINE P. AYRES, Defendant Below-Appellee. No. 48, 2002 In the Supreme Court of the State of Delaware. Submitted: May 10, 2002 Decided: July 2, 2002
Before HOLLAND, BERGER, and STEELE, Justices.

CAROLYN BERGER, Justice.

ORDER
This 2nd day of July 2002, upon consideration of the parties’ briefs and the record below, it appears to the Court that:

(1) The plaintiff-appellant, Nikerray Middlebrook, filed this appeal from an order of the Superior Court dated January 16, 2002. The January 16 order denied Middlebrook’s motion for relief from judgment[1] from a Superior Court order dated November 27, 2001. The November 27 order dismissed, without prejudice, Middlebrook’s complaint for legal malpractice because of his failure to properly serve the defendant-appellee, Caroline Ayres.

(2) We have reviewed this matter carefully and have determined that the judgment of the Superior Court should be affirmed. The Superior Court did not abuse its discretion in denying Middlebrook’s Rule 60(b) motion.[2]
Moreover, to the extent that Middlebrook seeks to challenge the Superior Court’s dismissal of his complaint for failure to properly serve Ayres, we note that the Superior Court’s dismissal was without prejudice, and thus Middlebrook is free to refile his complaint. A dismissal without prejudice is, by its terms, interlocutory in nature and is not presently subject to review absent compliance with Supreme Court Rule 42.[3]

(3) As an aside, we note that Ayres is a member of the Delaware Bar. As part of the annual lawyer registration process, Ayres appointed the Clerk of the Delaware Supreme Court as her agent for service of process. If Middlebrook chooses to refile his complaint in the Superior Court, he may seek to serve the Clerk of this Court, Ayres’ designated agent, in lieu of serving Ayres personally.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.

[1] Middlebrook captioned his motion as a “Motion for Relief from Judgment” under Superior Court Civil Rule 60(b). The Superior Court considered the motion under Rule 60(b) and also considered the motion, alternatively, as a motion for reargument under Superior Court Civil Rule 59(e). The Superior Court denied the motion under both rules.

[2] See Wife B. v. Husband B., 395 A.2d 358, 359 (Del. 1978) (a motion for relief from judgment is addressed to the sound discretion of the trial court and will be set aside only for an abuse).

[3] Whitney v. State Farm Mutual Ins. Co., Del. Supr., No. 315, 1985, Horsey, J. (May 29, 1986).

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