Opinion
C.A. No. 98C-05-227 RRC
July 31, 2002
ORDER DENYING LEAVE TO APPEAL FROM INTERLOCUTORY ORDER
Plaintiffs have made an application pursuant to Rule 42 of the Delaware Supreme Court for an order certifying an appeal to the Delaware Supreme Court from the Interlocutory Order of this Court, dated July 11, 2002. Defendants oppose the application. This court finds that in the July 11, 2002 Interlocutory Order 1) no substantial issues were determined; 2) no legal rights were established; 3) however, a review of the interlocutory order of July 11, 2002 "may terminate the litigation [or] substantially reduce further litigation."
This Court denies Plaintiffs' application to appeal from the Interlocutory Order of July 11, 2002 for the following reasons:
This litigation, since it inception, has been especially contentious with obvious distrust and hostility between the parties.
The reissued opinion of July 11, 2002 did not determine a "substantial issue" that was 1 part of the underlying merits of the litigation. The issues in this case, as stated by the Court, was
"Whether the Court can compel the performance of a "high/low" binding arbitration settlement agreement with a agreed upon-arbitrator when that arbitrator subsequently disclosed (immediately prior to the arbitration hearing) a past adverse relationship with a witness important to the defendants'case." Spiedel et al. v. St. Francis Hospital, Inc., et al. Del.Supr., July 11, 2002, Cooch, J.(Let. Op.) at 2-3
Generally speaking, the substantive element of the appealability of an interlocutory order must relate to the merits of the case. Castald v.Pittsburgh-DesMoines Steel Co., 301 A. 2087 (Del. 1973). See also Wilmington Medical Center, Inc. v. Coleman, 298 A.2d 320, 322 (Del. 1972) (stating that an interlocutory order was not appealable because it did not decide the underlying issue in the case at bar and that, therefore no substantial legal rights were determined. This Court concludes that no substantial issue within the meaning of Supreme Court Rule 41 was decided. The order only determined that Defendants' decision not to proceed with Mr. Ward was not unjustifiable."
This Court does not believe the issue decided in its July 11, 2002 order is that of "first impression"; cases such as Los v. Los, 595 A.2d.2 381 (Del. 1991) have spoken to the issue of when "the appearance of bias sufficient to cause doubt as to [a] judge's impartiality" may exist.
It is important to understand that the parties' September 20, 2001 "confidential binding high/low arbitration agreement" provided that the Superior Court "shall retain jurisdiction for the purpose of enforcing the terms of the Agreement." Spiedel at 9. However, as explained by this Court in its decision, the terms of the binding arbitration agreement had basic contradictions with Superior Court Civil Rule 16.1 and in many ways was "more akin to a common law binding arbitration agreement, enforceable only in the Court of Chancery." See Spiedel at 9-10 for discussion of the perceived inconsistencies between the Agreement and Rule Spiedel at 12-13. As this Court further explained in its opinion, (see Spiedel at 9-10), this Court had some hesitation about any legal ability to "enforce" the arbitration agreement since judicial authority (to enforce arbitration agreements) is generally invested in the Court of Chancery, but both parties urged that their respective cross-motions be considered under Rule 16.1, despite the contradictions between the September 20, 2001 agreement and Rule 16.1). This Court noted in its opinion that "neither the parties nor the Court want this overly-protracted litigation to start anew in the Court of Chancery in the context of a complaint to enforce they arbitration agreement."
The arbitrator who had been selected, Rodman Ward, Jr., Esquire disclosed his prior relationship with Defendant's witness Jea Street and invited counsel for Defendants to confer with her clients, implicitly suggesting that in Mr. Ward's mind there might be a sufficient appearance of impartiality to prevent Mr. Ward from serving as the arbitrator (although Mr. Ward did state that he could, in his opinion, fairly and impartially arbitrate the case). This Court said in its July 11, 2002 opinion, "[t]he fact that Mr. Ward made the disclosure accentuates the importance in proceeding with caution, particularly since the parties have voluntarily submitted to binding arbitration."
Although this Court recommends to the Supreme Court that this interlocutory appeal not be accepted, this Court does agree with Plaintiffs that, if the Supreme Court should accept this Interlocutory Appeal and should subsequently order Mr. Ward to arbitrate the case over Defendants' objections, such order from the Supreme Court would serve to terminate the litigation.
Lastly, this Court will note that on December 6, 2001 (about 10 days after the collapse of the binding arbitration before Mr. Ward), Defendant furnished the names of ten other Wilmington attorneys, all acceptable to Defendant to serve as potential arbitrators under the September 20, 2001 binding arbitration agreement. Plaintiffs, however,. are apparently not willing to agree to any arbitrator other than Mr. Ward. This Court in its July 11, 2002 opinion urged the parties to agree upon another arbitrator and continues to urge the parties to select another arbitrator and re-set this dispute for binding arbitration as promptly as possible.
For the foregoing reasons and explanations, Plaintiffs application for certification of Interlocutory Appeal of this Courts July 11, 2002 Order is denied.