Opinion
No. 482 2011.
2012-07-19
Elizabeth PLUMMER, Individually and as Executrix of the Estate of Edmond Plummer, Sr. deceased and Edmond Plummer, Jr., John Plummer, and James Plummer as Surviving Children of Edmond Plummer, Sr., deceased, Plaintiffs Below–Appellants, v. R.T. VANDERBILT COMPANY, INC., Defendant Below–Appellee.
Robert Jacobs, Esquire (argued) of Jacobs & Crumplar P.A., Wilmington, Delaware, for Appellant. Jeffrey M. Weiner, Esquire of the Law Offices of Jeffrey Weiner, Wilmington, Delaware, for Robert Jacobs, Esquire.
Court Below: Superior Court of the State of Delaware in and for New Castle County, C.A. No. 08C–08–247.
Upon appeal from the Superior Court. DISMISSED.
Robert Jacobs, Esquire (argued) of Jacobs & Crumplar P.A., Wilmington, Delaware, for Appellant. Jeffrey M. Weiner, Esquire of the Law Offices of Jeffrey Weiner, Wilmington, Delaware, for Robert Jacobs, Esquire.
Joseph S. Naylor, Esquire (argued) of Swartz Campbell LLC, Wilmington, Delaware, for Appellee.
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS, and RIDGELY, Justices, constituting the Court en Banc.
RIDGELY, Justice:
Plaintiffs–Below/Appellants Elizabeth, Edmond, John and James Plummer (collectively, the “Plummers”), filed an appeal from a Superior Court order granting summary judgment in favor of Defendant–Below/Appellee R.T. Vanderbilt Co., Inc. (“Vanderbilt”). Vanderbilt has moved to dismiss the Plummers' appeal as untimely. Vanderbilt takes the position that the Superior Court's June 28, 2011 dismissal order (the “June 28 Order”) was the final order in the matter below. Thus, Vanderbilt contends, the Plummers' notice of appeal filed on September 6, 2011 was untimely under Supreme Court Rule 6(a)(i). Vanderbilt argues in the alternative that if the June 28 Order is not the final order, the appeal is interlocutory and any appeal must await entry of a final order.
Del.Supr. Ct. R. 6(a)(i) (requiring appeal “[w]ithin 30 days after entry upon the docket of a judgment, order or decree from which the appeal is taken in a civil case”).
The Plummers contend that their appeal is timely and not interlocutory because the Special Master's August 9, 2011 order dismissing nine defendants (the “August 9 Order”), and not the June 28 Order, constituted the final order. The Plummers contend that under accepted Superior Court practice, the June 28 Order was not understood to be final.
We conclude that the June 28 Order was the only final order in this case and that no court error contributed to the Plummers' delayed filing of this appeal. Accordingly, we dismiss the Plummers' appeal as untimely under Supreme Court Rule 29(b).
Del.Supr. Ct. R. 29(b) (providing for dismissal upon motion for untimely filing of an appeal).
Facts and Procedural History
Edward Plummer, deceased, was an employee at the Avisun/Amoco Plant. The Plummers brought suit against Vanderbilt and thirty-six other defendants alleging that the decedent had been exposed to asbestos-containing products during the course of his employment.
Vanderbilt moved for summary judgment. The Superior Court entered an order granting the motion on January 20, 2011, immediately following oral argument. On February 4, a judicial action form was issued reflecting the Superior Court's decision. Vanderbilt's claims against several other defendants remained pending. The case did not proceed to trial, however, because the Plummers notified the Superior Court that a settlement had been reached. On May 17, 2011, the Prothonotary advised the Plummers' counsel, Thomas Crumplar and Robert Jacobs, Esquires (collectively, “Plaintiffs' Counsel”), that the parties had settled and that the case would be dismissed in thirty days if no information was provided as to why the case should not be dismissed. After not hearing from Plaintiffs' Counsel, the Superior Court entered the June 28 Order dismissing the case. The Superior Court also designated the case “closed” on the LexisNexis File & Serve system.
Nine defendants involved in this case and in related cases, not including Vanderbilt, also filed an “Omnibus Motion to Dismiss All Claims.” The omnibus motion to dismiss was re-noticed and e-filed the same day as the June 28 Order of a Superior Court judge. On August 9, 2011, the Special Master signed an order granting the omnibus motion to dismiss (the “August 9 Order”), apparently without knowledge of the earlier June 28 Order. The Plummers filed a proposed form of final order, which the Superior Court did not rule upon. The Plummers then filed a Notice of Appeal with this Court on September 6, 2011, referring to the Special Master's August 9 Order as the final order from which the appeal was being taken.
Relying on the June 28 Order as the final order, Vanderbilt moved to dismiss the Plummers' appeal as untimely. This Court remanded the case to the Superior Court for clarification of whether a final order had been issued and, if so, when that order was issued. The Superior Court responded that the June 28 Order is the final order in this case.
Following the Superior Court's return of this matter from remand, the parties filed supplemental memoranda. The Plummers argued that the Superior Court's June 28 Order did not follow longstanding practice:
If prior practice and custom had been followed, nothing would have been entered until all of the stipulations of dismissal were filed for all Defendants. As indicated even where summary judgment was orally granted it has been a practice to have such cases dismissed later on the “omnibus” motion calendar.
That argument caused this Court to remand the case to the Superior Court for a second time. We requested clarification from the Superior Court on the following questions:
a. Is there a specific procedure currently in place in the Superior Court for dismissal of multiple defendants and the issuance of final, appealable orders in asbestos litigation;
b. If so, what is the procedure and when was it instituted;
c. Does this procedure deviate from prior practice in asbestos litigation;
d. How specifically does it deviate from prior practice; and
e. Were asbestos counsel notified of the change in practice and by what means were they notified.
In response, the Superior Court informed this Court of the current procedure used since January 2007:
a. Yes, there is a specific procedure in place for the dismissal of multiple defendants and the issuance of final, appealable Orders in asbestos litigation.
b. The procedure was instituted in January 2007 and is as just described.
c. The procedure does not deviate from practice as it has been conducted since January 2007 and the history and reasons for the change are outlined above.
d. The practice employed here has been the same since January 2007 and has not been modified since.
e. Asbestos counsel, including Jacobs and Crumplar, were notified in 2006 of the change, were invited to participate in a hearing before the change was implemented, participated at the hearing, and have been operating under this procedure for more than five years without objection until the issue of the timeliness of this appeal was presented.
The Superior Court reported that, under the new procedure, when the parties notify the Superior Court of a settlement, the Superior Court takes no action until thirty days after the date the case was scheduled for trial. After those thirty days elapse, the Prothonotary issues a letter advising the parties that an order dismissing the case will be issued in another thirty days. This process gives the parties a total of sixty days during which to act to prevent dismissal. A party seeking to prevent dismissal must show good cause as to why a dismissal is inappropriate. A standard dismissal order includes a provision that the case may be reopened to enforce the settlement or to pursue claims after bankruptcy.
After return of the matter from the second remand, this Court heard oral argument. This is the Court's decision on Vanderbilt's motion to dismiss.
Analysis
Supreme Court Rule 6(a)(i) provides that a civil appeal must be filed within thirty days of the entry of the judgment from which the appeal is taken. Time is a jurisdictional requirement. Unless the appellant can demonstrate that failure to file a timely appeal is attributable to court-related personnel, this Court lacks jurisdiction to consider the matter.
Del.Supr. Ct. R. 6(a)(i); 10 Del. C. § 148.
Scott v. Draper, 371 A.2d 1073, 1073–74 (Del.1977) ( “Perfection of the appeal within the statutory period is a necessary condition to this Court's jurisdiction”).
Giordano v. Marta, 723 A.2d 833, 834 (Del.1998); Bey v. State, 402 A.2d 362, 363 (Del.1979) (allowing a late appeal on the merits because default was related to court personnel); 10 Del. C. § 148.
This Court's jurisdiction to hear appeals from the Superior Court in civil cases is limited to appeals from final judgments, unless an interlocutory appeal is taken and accepted under Supreme Court Rule 42. The question of whether an opinion embodies a final decision depends on “whether the judge has or has not clearly declared his intention in this respect in his opinion.” If the language of the judgment evidences the judge's intention that the judgment be final, then the judgment is final. “When a civil action involves multiple claims and multiple parties, a judgment regarding any claim or any party does not become final until the entry of the last judgment that resolves all claims as to all parties, unless an interlocutory ruling ... is certified pursuant to Superior Court Rule 54(b).”
Showell Poultry, Inc. v. Delmarva Poultry Corp., 146 A.2d 794, 795 (Del.1958); Julian v. State, 440 A.2d 990, 991 (Del.1982); Del.Supr. Ct. R. 42.
J. I. Kislak Mortgage Corp. v. William Matthews, Builder, Inc., 303 A.2d 648, 650 (Del.1973) (quoting United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958)).
Id.
Harrison v. Ramunno, 730 A.2d 653, 653–54 (Del.1999); Super. Ct. Civ. R. 54(b).
The June 28 Order is clear on its face that it is a final order. The caption lists Edmond Plummer's name, and the case number associated with his matter. It states:
IT IS HEREBY ORDERED ... the above captioned cases are hereby DISMISSED; however upon motion and upon a showing of good cause, each of the cases may be reopened for the limited purpose of pursuing applications to enforce settlement agreements or pursuing state law claims upon the conclusion of any bankruptcy related matters.
The May 17 letter preceding the dismissal also clearly notified Plaintiffs' Counsel that the case would be dismissed the following month if no further action was taken. If there was any ambiguity as to the May 17 letter or the June 28 Order, Plaintiffs' Counsel could have requested clarification from the Superior Court. Plaintiffs' Counsel did not do so.
Because we hold that the June 28 Order was a final order, we need not consider whether the appeal is interlocutory.
The June 28 Order was also the only final order from which the Plummers could have appealed in this case. The August 9 Order entered by the Special Master was not a final order by a Superior Court judge. In Delaware, the exercise of judicial authority is limited to persons who have been appointed by the Governor and confirmed by the Senate. Case-dispositive decisions are inherently judicial; the dismissal of a matter is thus an exercise of judicial authority. A Superior Court judge did not act on the Plummers' subsequently-filed proposed final order form or otherwise confirm and adopt the dismissal entered by the Special Master. Absent such judicial action, there was no final order from which the Plummers could have appealed, except the June 28 Order.
State v. Wilson, 545 A.2d 1178, 1184 (Del.1988) (citing Del. Const. Art. IV, §§ 1, 3).
See Lacy v. Green, 428 A.2d 1171, 1178 (Del.Super.1981) ( “Constitutionally, the essence of judicial power is the final authority to render and enforce a judgment.”); cf. In re Asbestos Litigation, 623 A.2d 546, 549 (Del.Super.1992) (noting that master's pre-trial, non-dispositive decisions “do not represent the employment of judicial power,” but that “[d]ecisions which are case-dispositive are inherently judicial”).
See Wilson, 545 A.2d at 1184 (“[A] master has no independent power of adjudication. In this respect a master's authority is comparable to that of a court-appointed referee whose limited role has been authoritatively described: ‘Without confirmation and adoption by the court, the acts of the referee have no force or validity whatever, and nothing can terminate with or by his decision, the entire proceeding being an exercise of judicial power by the court.’ ”) (quoting 66 Am.Jur.2d, References § 1 (1973)); accord Redden v. McGill, 549 A.2d 695 (Del.1988) (holding that “[f]indings and recommendations of masters which have not been subject to meaningful judicial review, including approval or disapproval with the reasons therefore, are not deemed final judgments of the Family Court” and thus will not be accepted by Court for review); A. L. W. v. J. H. W., 416 A.2d 708, 712 (Del.1980) (holding Master of the Family Court did not have authority to enter a “judgment” and thus did not have authority to enter final decree of divorce).
Nor have the Plummers shown that their failure to file a timely appeal was attributable to court personnel. The Plummers argue that nine defendants moving for dismissal evidenced confusion among the parties as to the effect of the June 28 Order. But the Superior Court followed its established procedure in asbestos cases by issuing the May 17 letter followed by the June 28 Order. By the time the Special Master acted on August 9, the Plummers' thirty-day window to file an appeal had closed. Thus, even if the Plummers could show error attributable to court personnel in connection with the August 9 Order, that error is irrelevant. It is the appeal of the final order entered on June 28 that matters, and that appeal is out of time.
Conclusion
This Court lacks jurisdiction to hear an appeal of the June 28 Order of dismissal. Appellee's motion to dismiss this appeal as untimely is GRANTED and this appeal is DISMISSED.