Schmalhofer v. Ward

• Court: Supreme Court of Delaware
• Decided: March 15, 2017
• Docket: 62, 2017
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

GLEN D. SCHMALHOFER, § § Defendant Below- § No. 62, 2017 Appellant, § § Court Below—Court of Chancery v. § of the State of Delaware § LISA WARD and STEPHEN J. § C.A. No. 11685 MOTTOLA, § § Plaintiffs Below- § Appellees. §

Submitted: March 2, 2017 Decided: March 15, 2017

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

ORDER

This 15th day of March 2017, upon consideration of the notice to show

cause, the appellant’s response, and the appellees’ reply, it appears to the Court

that:

(1) On January 6, 2017, the appellant, Glenn D. Schmalhofer filed a

notice of appeal from a December 8, 2016 Order of Final Partial Judgment

Pursuant to Rule 54(b) in the Court of Chancery (“Final Partial Judgment Order”).

The order incorporated a Court of Chancery order, dated November 10, 2016,

granting the motion to enforce a partial settlement agreement (“Settlement

Agreement”) filed by the appellees, Lisa Ward and Stephen J. Mottola, and awarding Ward and Mottola the attorneys’ fees they incurred in bringing the

motion. The Final Partial Judgment Order set forth the procedure for

determination of the attorneys’ fee award.

(2) On January 20, 2017, the Court of Chancery awarded Ward and

Mottola $38,522.25 in attorneys’ fees and costs. The order was without prejudice

to any future application by Ward and Mottola for further fees and expenses they

incurred in seeking to enforce the Settlement Agreement. This appeal followed.

(3) On February 8, 2017, the Chief Deputy Clerk issued a notice directing

Schmalhofer to show cause why this appeal should not be dismissed for his failure

to comply with Supreme Court Rule 42 when taking an appeal from an apparent

interlocutory order. In his response to the notice to show cause, Schmalhofer

argues that the January 20, 2017 order is not interlocutory because it is clearly the

Court of Chancery’s final act with respect to the Final Partial Judgment Order.

Ward and Mottola contend that the January 20, 2017 order is interlocutory.

(1) After careful consideration of the parties’ positions, we conclude that

this appeal must be dismissed as interlocutory. Absent compliance with Supreme

Court Rule 42 (“Rule 42”), this Court is limited to the review of a trial court’s final

judgment.1 An order is deemed final and appealable if the trial court has declared

1 Julian v. State, 440 A.2d 990, 991 (Del. 1982). 2 its intention that the order be the court’s final act in disposing of all justiciable

matters within its jurisdiction.2

(2) The Court of Chancery docket reflects that the case remains ongoing.

The Settlement Agreement did not resolve all of the parties’ claims and other

disputes have arisen among the parties. The Court of Chancery entered the

November 10, 2016 order as a partial final judgment under Court of Chancery Rule

54(b), but did not enter the January 20, 2017 order as a partial final judgment.

Because the January 20, 2017 order did not finally determine and terminate the

Court of Chancery proceedings and those proceedings remain ongoing, this appeal

is interlocutory. Schmalhofer was therefore required to comply with the provisions

of Rule 42. Schmalhofer has not done so. Accordingly, this appeal must be

dismissed.

NOW, THEREFORE, IT IS ORDERED that this appeal is DISMISSED.

The filing fee paid by Schmalhofer shall be applied to any future appeal it files

from a final order entered in the case.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Justice

2 J.I. Kislak Mortg. Corp. v. William Matthews, Builder, Inc., 303 A.2d 648, 650 (Del. 1973). 3