The Board of Adj of the City of Lewes v. Nepa and City of Lewes

• Court: Supreme Court of Delaware
• Decided: June 11, 2018
• Docket: 256, 2018
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

THE BOARD OF ADJUSTMENT § OF THE CITY OF LEWES, § No. 248, 2018 § Respondent Below, § Court Below—Superior Court Appellant, § of the State of Delaware § v. § C.A. No. S17A-06-003 § ERNEST M. NEPA and DEBORAH § A. NEPA, § § Petitioners Below, § Appellees. §

THE CITY OF LEWES, § DELAWARE, § No. 256, 2018 § Respondent Below, § Court Below—Superior Court Appellant, § of the State of Delaware § v. § C.A. No. S17A-06-003 § ERNEST M. NEPA and DEBORAH § A. NEPA, § § Petitioners Below, § Appellees. §

Submitted: June 5, 2018 Decided: June 11, 2018

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

ORDER

This 11th day of June 2018, having considered the notices to cause in the

above-captioned appeals and the parties’ responses, it appears to the Court that: (1) These appeals arise from a Superior Court letter opinion, dated April

11, 2018, reversing the respondent below-appellant Board of Adjustment of the City

of Lewes’ decision denying the application for three variances filed by the

petitioners below-appellees Ernest M. Nepa and Deborah A. Nepa. On April 20,

2018, the Nepas filed a Motion for Costs and Attorneys’ Fees under 22 Del. C. § 332

and the Corporate Benefit Doctrine. The Nepas filed an amended motion on April

25, 2018.

(2) On May 9, 2018, the Board of Adjustment filed a notice of appeal from

the April 11, 2018 opinion. On May 10, 2018, the respondent below-appellant City

of Lewes, Delaware filed a notice of appeal from the April 11, 2018 opinion. On

May 14, 2018, the Senior Court Clerk issued notices directing the appellants to show

cause why these appeals should not be dismissed for their failure to comply with

Supreme Court Rule 42 in taking appeals from an apparent interlocutory order.

(3) In their joint responses to the notices to show cause, the appellants

contend that the April 11, 2018 decision is final and appealable, not interlocutory.

The appellants argue that the pending motion for costs and attorneys’ fees does not

invoke a meritorious basis for an award of attorneys’ fees and a motion for costs

alone does not stay the finality of a judgment for purposes of an appeal. The

appellees contend that the April 11, 2018 decision is interlocutory because the

2 pending motion seeks attorneys’ fees as well as costs and does set forth a meritorious

basis for an award of attorneys’ fees.

(4) 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 when it disposes of all justiciable matters.2 “[A] pending motion for

attorneys’ fees delays the finality of a judgment on the merits,” but “a pending

motion for costs alone does not.”3

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

this appeal must be dismissed as interlocutory. A motion for costs and attorneys’

fees is pending in the Superior Court. The possibility that the Superior Court may

deny the appellees’ request for attorneys’ fees does not transform the motion for

costs and attorneys’ fees into a motion for costs alone. The April 11, 2018 decision

is therefore interlocutory. The appellants were required to comply with the

provisions of Rule 42, but did not do so. These appeals must be dismissed.

1 Julian v. State, 440 A.2d 990, 991 (Del. 1982). 2 J.I. Kislak Mortg. Corp. v. William Matthews, Builder, Inc., 303 A.2d 648, 650 (Del. 1973). 3 McDaniel v. DaimlerChrysler Corp., 860 A.2d 321, 322 (Del. 2004). See also Emerald Partners v. Berlin, 811 A.2d 788, 790-91 (Del. 2001).

3 NOW, THEREFORE, IT IS ORDERED, that these appeals are DISMISSED.

The filing fees paid by the appellants shall be applied to any future appeal they file

from a final order entered in the case.

BY THE COURT:

/s/ Gary F. Traynor Justice