Anderson v. Leer

• Court: Supreme Court of Delaware
• Decided: February 16, 2021
• Docket: 444, 2020
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

KEVIN ANDERSON and SUSAN § FITZGERALD, § No. 444, 2020 § Plaintiffs Below, § Court Below: Court of Chancery Appellants, § of the State of Delaware § v. § C.A. No. 2018-0602-SG § STEVEN LEER, JENNIFER § SCANLON, JOSE ARMARIO, § WILLIAM H. HERNANDEZ, § RICHARD P. LAVIN, BRIAN A. § KENNEY, GRETCHEN R. § HAGGERTY, MATTHEW § CARTER, JR., and THOMAS A. § BURKE, § § Defendants Below, Appellees. §

Submitted: February 5, 2021 Decided: February 16, 2021

Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.

ORDER

After consideration of the notice to show cause and the appellants’ response,

it appears to the Court that:

(1) The appellants filed this appeal from decisions of the Court of Chancery

dated August 31, 2020, which granted a motion to dismiss brought by the appellees

(the “Motion to Dismiss Opinion”), and December 1, 2020, which denied the

appellants’ motion for reargument. The Motion to Dismiss Opinion instructed the parties to submit a form of order consistent with the decision, but no such order has

yet been entered. On December 11, 2020, the appellants filed in the Court of

Chancery a motion for leave to file a second amended complaint. That motion

remains pending.

(2) On January 26, 2021, the Senior Court Clerk issued a notice to the

appellants to show cause why the appeal should not be dismissed for the appellants’

failure to comply with Supreme Court Rule 42 when appealing an apparent

interlocutory order. In their response, the appellants state that they filed the appeal

out of an abundance of caution because, in the opposition to the motion for leave to

file a second amended complaint, the appellees suggested that the Motion to Dismiss

Opinion might be a final, appealable order and the appellants wanted to ensure that

they preserved their opportunity to appeal. In response to the notice to show cause,

the appellants also state that the parties have conferred and now agree that the Court

of Chancery has not yet entered a final, appealable order.

(3) Absent compliance with Supreme Court Rule 42, the appellate

jurisdiction of this Court is limited to the review of final orders.1 An order is deemed

final and appealable if the trial court has declared its intention that the order be the

1 Hines v. Williams, 2018 WL 2435551 (Del. May 29, 2018); Julian v. State, 440 A.2d 990, 991 (Del. 1982).

2 court’s final act in disposing of all justiciable matters within its jurisdiction. 2 At

least one motion remains pending before the Court of Chancery, and the parties agree

that the Court of Chancery has not entered a final order. The appeal therefore must

be dismissed.

NOW, THEREFORE, IT IS ORDERED that this appeal is hereby

DISMISSED without prejudice. Any docketing fee paid to this Court by the

appellants in conjunction with this appeal may be applied to a future appeal filed by

the appellants from the Court of Chancery’s final order.

BY THE COURT:

/s/ Karen L. Valihura Justice

2 J.I. Kislak Mortgage Corp. v. William Matthews, Builder, Inc., 303 A.2d 648, 650 (Del. 1973).