Immanuel Shelter v. Hartigan

• Court: Supreme Court of Delaware
• Decided: July 24, 2018
• Docket: 294, 2018
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

IMMANUEL SHELTER, INC., § § No. 224, 2018 Appellee Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § C.A. No. S17A-09-001 KENNETH BARTHOLOMEW and § JOHN R. ZAWISLAK, § § Appellants Below, § Appellees.

IMMANUEL SHELTER, INC., § § No. 294, 2018 Appellee Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § C.A. No. S17A-08-003 JOHN D. HARTIGAN, § § Appellant Below, § Appellee. §

Submitted: June 22, 2018 Decided: July 24, 2018

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

ORDER

This 24th day of July 2018, it appears that:

(1) The above-captioned appeals—No. 224, 2018 and No. 294, 2018—

were filed by the appellee-below/appellant, Immanuel Shelter, Inc., from the Superior Court’s memorandum opinion of March 28, 2018, which jointly decided

two administrative appeals from the Sussex County Board of Adjustment’s approval

of Immanuel Shelter’s application for a special use exception. Appeal No. 224,

2018, from the memorandum opinion entered in C.A. No. S17-A-09-001, was filed

on April 27, 2018. Appeal No. 294, 2018, from the memorandum opinion entered

in C.A. S17A-08-003, was filed on June 4, 2018, following the Superior Court’s

denial of a motion for award of costs filed by appellant-below/appellee, John D.

Hartigan on April 5, 2018. Immanuel Shelter has filed a motion to consolidate

appeal No. 224, 2018 and appeal No. 294, 2018.

(2) A notice of appeal in a civil case must be filed within thirty days after

entry upon the docket of the judgment or order from which the appeal is taken.1 “It

is fundamental that the appellate jurisdiction of this Court rests wholly upon the

perfecting of an appeal within the period of limitations fixed by law.”2 Because

appeal No. 294, 2018 was filed on June 4, 2018, sixty-eight days after the docketing

of the Superior Court’s March 28, 2018 memorandum opinion, the Clerk issued a

notice directing Immanuel Shelter to show cause why appeal No. 294, 2018 should

not be dismissed as untimely filed.

1 Del. Sup. Ct. R. 6(a)(i). 2 Fisher v. Biggs, 284 A.2d 117, 118 (Del. 1971).

-2- (3) In response to the notice, Immanuel Shelter argues that the thirty-day

appeal period from the March 28 memorandum opinion in C.A. No. S17-08-003 was

tolled by the motion for costs filed on April 5, 2018, because the motion sought costs

under 9 Del. C. § 6198(g), which requires a judicial determination that the Board of

Adjustment acted with gross negligence, bad faith, or malice when approving

Immanuel Shelter’s application for a special use exception. Immanuel Shelter’s

argument is without merit. It is well-settled that a pending motion for costs does

not toll the finality of a judgment.3 Immanuel Shelter’s failure to file its notice of

appeal within thirty days of the March 28 memorandum opinion in C.A. No. S17-

08-003 leaves this Court without jurisdiction to consider appeal No. 294, 2018.4

NOW, THEREFORE, IT IS ORDERED that appeal No. 294, 2018, is

DISMISSED. The Clerk shall issue a brief schedule in appeal No. 224, 2018. The

motion to consolidate is moot.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Justice

3 Del. Super. Ct. Civ. R. 58(3); McDaniel v. DaimlerChrysler Corp., 860 A.2d 321, 323 (Del. 2004) (quoting Emerald Partners v. Berlin, 811 A.2d 788, 791 (Del. 2001)). 4 Cahall v. Thomas, 889 A.2d 966, 968 (Del. 2005).

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