Opinion
C.A. No. 09C-02-026 PLA.
Submitted: January 29, 2010.
Decided: February 8, 2010.
Upon Plaintiff's Request for Certification of Interlocutory Appeal, Denied.
Elwood T. Eveland, Jr., Esquire, The Eveland Law Firm, Wilmington, DE, Attorney for Plaintiff.
Stephen J. Milewski, Esquire, White and Williams LLP, Wilmington, DE, Attorney for Defendant New Castle County Vo-Tech Education Association.
James M. Kron, Esquire, Potter Anderson Corroon LLP, Wilmington, DE, Attorney for Defendant Afro-American Historical Society of Delaware.
This case arises from plaintiff Betty Bantum's slip and fall on ice in front of Howard High School. At the time, Bantum was attending a privately-sponsored celebration of the Afro-American Historical Society's Heritage Day. Bantum filed suit against New Castle County Vo-Tech School District and the Afro-American Historical Society of Delaware, seeking damages for injuries she allegedly sustained as a result of her fall in the Howard High School parking lot.
Defendant NCVTSD filed a Motion for Summary Judgment based on the statutory grant of immunity under 14 Del.C. § 1056(h), which provides that public school boards that hold school premises open for non-school uses cannot be held liable for claims of neglectful maintenance of school property arising from such non-school uses. In its Opinion, dated January 29, 2010, this Court held that § 1056(h) applied in this case so as to exempt New Castle Vo-Tech School District from liability.
Plaintiff Bantum now seeks certification of an interlocutory appeal from the Court's Order granting summary judgment in favor of NCVTSD and dismissing it from the case. The sole ground set forth in the Motion for the application of Supreme Court Rule 42(b) is that "a review of the interlocutory order may terminate the litigation, substantially reduce further litigation, or serve considerations of justice by providing judicial relief prior to the remaining parties, both of whom are limited financially, having to expend further sums in discovery and trial of this matter." There is no mention in the motion that the order of the trial court determines a substantial issue or establishes a legal right.
In response, NCVTSD argues that the Afro-American Historical Society's assets or lack thereof are irrelevant to its entitlement to immunity. Because the Court's opinion applied "the undisputed facts to the unambiguous statute," and because none of the other Rule 42(b) criteria for certification have been met, NCVTSD contends that no basis for an interlocutory appeal exists.
Under Delaware Supreme Court Rule 42, an interlocutory appeal will not be certified unless the trial court's order determines a substantial issue, establishes a legal right, and meets one of the five additional criteria set forth in Rule 42(b). Bantum makes no claim that the trial court's Order determines a substantial issue or establishes a legal right. Her sole argument that the Court's Order satisfies the requisite criteria under Rule 42 is that the parties are limited financially and need relief before expending additional funds in discovery and trial of this case.
The five criteria provided under the rule are as follows:
(i) Same as Certified Question. Any of the criteria applicable to proceedings for certification of questions of law set forth in Rule 41; or
(ii) Controverted Jurisdiction. The interlocutory order has sustained the controverted jurisdiction of the trial court; or
(iii) Substantial Issue. An order of the trial court has reversed or set aside a prior decision of the court, a jury, or an administrative agency from which an appeal was taken to the trial court which had determined a substantial issue and established a legal right, and a review of the interlocutory order may terminate the litigation, substantially reduce further litigation, or otherwise serve considerations of justice; or
(iv) Prior Judgment Opened. The interlocutory order has vacated or opened a judgment of the trial court; or
(v) Case Dispositive Issue. A review of the interlocutory order may terminate the litigation or may otherwise serve considerations of justice.
Delaware Courts have repeatedly emphasized the strong policy of avoiding piecemeal litigation, most notably through the final judgment rule that limits the jurisdiction of the Delaware Supreme Court to appeals from final judgments. The rule serves to minimize appellate court interference with the myriad of decisions made by trial courts during litigation. It also promotes judicial economy by preventing a succession of expensive and time-consuming appeals. It is with this focus in mind that the procedures for seeking an interlocutory appeal set forth in Supreme Court Rule 42 impose strict deadlines and require that the application for certification fulfill exacting criteria before the Supreme Court will accept an interlocutory appeal.
The fact that Rule 42 imposes strict deadlines on the parties does not exempt the applicant for interlocutory relief from fulfilling its exacting criteria by satisfying the two-step analysis.
The rule requires a two-part inquiry prior to certification. First, the applicant must establish to the trial court's satisfaction that the Order determines a substantial issue or establishes a legal right. Secondly, the trial court must determine that the Order satisfies at least one of the specific criteria set forth in Rule 42.
The Request for Certification of Interlocutory Appeal filed by plaintiff Bantum falls far short of satisfying either of the two requirements for certification under Rule 42. In the first place, nowhere in the application does Bantum assert that the Order sought to be appealed determines a substantial issue or establishes a legal right. The applicant in this case has made no effort whatsoever to meet the first prong of the stringent test requirements for this Court to certify an interlocutory appeal.
Even assuming that dismissal of one of two defendants — the New Castle County Vo-Tech School District — would in fact constitute the determination of a substantial issue or the establishment of a legal right, Bantum has also failed to meet the second prong of the Rule by satisfying one or more of the specific criteria set forth in Rule 42. Bantum's sole attempt to satisfy this prong of the Rule consists of her quoting the Rule verbatim and making the somewhat veiled suggestion that it will be costly for her to continue this litigation because of her financial limitations. None of the five quite specific criteria for certification make any mention of the financial resources of the parties as playing any role in the determination of whether an interlocutory appeal is justified.
The application by Bantum is also fundamentally flawed because it fails to identify the specific issues for which certification is sought. In light of this deficiency, the Court is simply incapable of determining whether the question or questions to be appealed are case dispositive issues, questions of first impression, or unsettled issues of law, or if they satisfy any of the criteria applicable to proceedings for certification of questions of law set forth in Supreme Court Rule 41.
The fact that the remaining defendant in this action "apparently has little or no assets" is not an appropriate basis for this Court to certify an interlocutory appeal. If all that were required to justify an immediate determination by the Supreme Court was a simple statement that it is more cost-effective for one of the parties, virtually every pretrial ruling would be eligible for interlocutory appeal and the purpose of the Rule would be effectively emasculated.
Bantum has made no attempt whatsoever to specify the question or issue for which certification is sought. She has likewise failed to demonstrate that the issues (whatever they may be) she seeks to appeal determine a substantial issue or establish a legal right. Finally, she has not identified any of the specific criteria in Supreme Court Rule 42 that her proposed contention on appeal satisfies.
For these reasons, Application for Certification of Interlocutory Appeal is hereby DENIED.
IT IS SO ORDERED.