The Roofers, Inc. d/b/a Tri-State

• Court: Supreme Court of Delaware
• Decided: November 24, 2014
• Docket: 205, 2014
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

THE ROOFERS, INC., d/b/a § TRI-STATE THE ROOFERS, § § No. 205, 2014 Plaintiff-Below, § Appellant, § Court Below: Superior Court of § the State of Delaware in and for v. § New Castle County § DELAWARE DEPARTMENT § C. A. No. N09C-11-063 OF LABOR, § § Defendant-Below, § Appellee. §

Submitted: November 19, 2014 Decided: November 24, 2014

Before STRINE, Chief Justice, HOLLAND and VAUGHN, Justices.

ORDER

This 24th day of November 2014, upon consideration of the parties’ briefs

and the record in this case, it appears to the Court that:

The appellant raises as its central argument on appeal a proposition it did not

fairly raise below. At best, the appellant can point to a single reference to that

issue in a lengthy oral argument before the Superior Court. Its briefs to the

Superior Court addressing sovereign immunity do not make the argument the

appellant now attempts to make. Therefore, the issue has not been properly raised below and may not be raised on appeal under Rule 8.1 Nor is it in the interest of

justice to allow a litigant who made an extremely unusual request for attorneys’

fees, who should have anticipated a sovereign immunity defense, and who failed to

present all of its arguments fairly below, to appeal the denial of that request. Based

on the arguments that were fairly presented below, we find that the Superior Court

made no error of law in denying the appellant’s application for attorneys’ fees, and

we affirm on the basis of the Superior Court’s opinion of March 25, 2014.2

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY THE COURT: /s/ Leo E. Strine, Jr. Chief Justice

1 Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented for review; provided, however, that when the interests of justice so require, the Court may consider and determine any question not so presented.”). 2 Roofers, Inc. v. Del. Dep’t of Labor, 2014 WL 1228911 (Del. Super. Mar. 25, 2014). 2