Opinion
No. 376, 1999.
September 21, 1999.
Appeal from the Superior Court, New Castle County, CA 98C-05-088.
APPEAL DISMISSED
Unpublished Opinion is below.
KENNETH T. JOHNSON, Plaintiff Below-Appellant, v. PAUL'S PLASTERING, INC., a corporation doing business in the State of Delaware, KENNY JESTER, JOSEPH RIZZO SONS, INC., and THE NEMOURS FOUNDATION, Defendants Below-Appellees. No. 376, 1999. Supreme Court of Delaware. Submitted: September 14, 1999. Decided: September 21, 1999.
Court Below — Superior Court of the State of Delaware, in and for New Castle County, C.A. No. 98C-05-088
Before WALSH, HOLLAND and HARTNETT, Justices.
RANDY J. HOLLAND, Justice
ORDER
This 21st day of September 1999, it appears to the Court that:
(1) The plaintiff below, Kenneth T. Johnson, has petitioned this Court pursuant to Supreme Court Rule 42 to appeal from an interlocutory order entered by the Superior Court on July 30, 1999. The Superior Court's order granted a motion to dismiss filed by the Nemours Foundation ("Nemours") on the ground that the statute of limitations had run. Nemours and another defendant below, Joseph Rizzo Sons, each have filed motions to dismiss Johnson's petition for failure to comply with the procedural and substantive requirements of Rule 42.
(2) Supreme Court Rule 42(c) provides that an application for certification of an interlocutory appeal "shall be made in the first instance to the trial court." In this case, Johnson did not file a Rule 42 application for certification of an interlocutory appeal with the Superior Court. Instead, Johnson filed a certificate of questions of law in accordance with Supreme Court Rule 41. The Superior Court refused to certify the proposed question holding that, among other reasons, certification under Rule 41 was inappropriate because the Superior Court already had decided the question sought to be certified. The Superior Court also noted that the proper procedure for seeking interlocutory review of its July 30 order was by an application under Rule 42. Rather than filing an application with the Superior Court under Rule 42, Johnson chose instead to file a notice of interlocutory appeal with this Court.
(3) Johnson asserts that the procedures for certification under Rule 41 and Rule 42 are substantially similar and that his application under Rule 41 should be deemed to comply with the requirements of Rule 42. We disagree. Only questions that have not been answered by the trial court may be certified to this Court under Rule 41. The Superior Court properly refused to certify the question presented under Rule 41 because the Superior Court already had resolved the issue. Furthermore, the Superior Court had no opportunity to consider whether the question presented met the criteria for certification of an interlocutory appeal under Rule 42.
(4) In adopting Rule 42, this Court made a policy decision that an appeal from an interlocutory order would not be accepted unless it met certain criteria and a special application was made to the trial court and to this Court. Pollard v. The Placers, Inc., Del. Supr., 692 A.2d 879, 881 (1997). Johnson failed to follow the procedural requirements of Rule 42 in seeking to certify an interlocutory appeal. Accordingly, this Court has determined that the notice of interlocutory appeal should be dismissed.
NOW, THEREFORE, IT IS HEREBY ORDERED that the within interlocutory appeal be, and the same hereby is, DISMISSED for plaintiff's failure to comply with the procedural requirements of Rule 42.