Opinion
C.A. No. 07C-07-248 JAP.
Submitted: December 28, 2009.
Decided: January 8, 2010.
Robert Jacobs, Esquire, Wilmington, Delaware — Attorney for Plaintiff.
Stephen J. Milewski, Esquire, Wilmington, Delaware — Attorney for Defendants Christina School District Board of Education, James R. Durr, Christiana High School and Dr. Lillian M. Lowrey.
William J. Cattie III, Esquire, Wilmington, Delaware — Attorney for Defendant Megan Morrissey.
MEMORANDUM OPINION
Defendant Diamond State Wildcats ("DSW") seeks certification of an interlocutory appeal from this Court's November 30, 2009 opinion in which it granted the co-defendant Christina School District's motion requiring DSW to defend the school district from Plaintiff's claims and indemnify the district for any damages. For the reasons which follow, DSW's application for certification is denied.
A. Procedural History in this Court
This case arises from an alleged injury to Plaintiff as a result of a fall from the bleachers while he was attending a privately sponsored cheerleading competition at the Christiana High School gymnasium. DSW sponsored the competition, and, in order to obtain use of the Christiana High School gymnasium, it executed an agreement in which it agreed to defend and hold the Christina School District harmless from any claims against the school district which arose from the competition. Plaintiff named DSW, an individual who is an official of DSW, the Christina School District, the district's superintendant and school board president as defendants.
This Court dismissed the claims against the superintendant and school board president in its November 30 opinion. DSW does not seek to appeal from those rulings.
During the course of the litigation the school district filed a motion for summary judgment seeking a declaration that because of its agreement with DSW, the latter was obligated to defend the school district and hold it harmless from plaintiff Boyle's claims. DSW argued in response that the indemnification agreement was void as against public policy under 6 Del. C. § 2704(a) and that the agreement lacked the clear and unequivocal language required of agreements in which a party seeks indemnification for its own conduct. The Court rejected these contentions in its November 30 memorandum opinion. Thereafter DSW moved for reargument, contending for the first time that, as a matter of public policy, the school district was not entitled to indemnification for its alleged wanton and gross negligence. This Court denied the motion on the basis that "[i]t is well-settled that a motion for reargument is not an appropriate vehicle for the losing party to present new arguments to the Court." The Court therefore never reached the merits of DSW's public policy argument.
DSW does not mention the Court's denial of its motion for reargument nor does it attach a copy of that denial to its application. A copy is therefore attached hereto.
B. The procedures for seeking an interlocutory appeal
Delaware courts have long adhered to a policy of avoiding piecemeal litigation. This policy is driven by the universally recognized need to "make efficient use of judicial resources," and to facilitate "the proper administration of justice," so as to avoid delays. The policy has been longstanding throughout the country. Indeed, only thirteen years after the fall of the Alamo, the Texas Supreme Court referred to the "well-settled practice and sound public policy which forbids the cutting up and deciding a case piecemeal."
Tyson Foods, Inc. v. Aetos Corp., 809 A.2d 575, 580 (Del. 2002).
Hodsdon, 239 A.2d at 225.
Ownbey v. Morgan, 105 A. 838, 844 (Del. 1919).
Allen v. Menard, 1849 WL 4096, at *1 (Tex. 1849).
The most common manifestation of the policy against piecemeal litigation is found in the final judgment rule. That rule limits the appellate jurisdiction of a court to appeals from final judgments. In 1919 the predecessor of the modern Delaware Supreme Court described the rule and its purpose this way:
A writ of error cannot be taken until after final judgment. Finality of decision is essential to a right of review as a rule of convenience, to avoid delays from separate appeals of each of the steps in the cause as they occur. Therefore, the right to review these several steps is held in abeyance until the cause has reached a stage when all of the appealable steps can be reviewed in a single appeal involving the whole cause.
Ownbey, 105 A. at 844.
Ownbey, 105 A. at 844.
Since that time Delaware courts have repeatedly referred to the "strong policy" against piecemeal appeals embedded in the final judgment rule. The same policy has long been embraced by the federal courts where "[f]inality as a condition of review is an historic characteristic." In Flanagan v. United States the Supreme Court observed that several interests militate against piecemeal appeals:
E.g., Thompson v. Thompson,2004 WL 2297396 (Del. Oct. 5, 2004) (referring to the "strong policy of this Court not to accept piecemeal appeals from a single proceeding in a trial court"); In re Explorer Pipeline Co., 2001 WL 1009302 (Del. Ch., Aug. 29, 2001) (noting that "strong public policy that piecemeal appeals should not be presented to the Delaware Supreme Court").
Cobbledick v. United States, 309 U.S. 323, 324, 60 S.Ct. 540, 84 L.Ed. 783 (1940).
465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984).
The final judgment rule serves several important interests. It helps preserve the respect due trial judges by minimizing appellate-court interference with the numerous decisions they must make in the pre-judgment stages of litigation. It reduces the ability of litigants to harass opponents and to clog the courts through a succession of costly and time-consuming appeals. It is crucial to the efficient administration of justice.
Id. at 263-4.
Id. at 263-4.
The Delaware Supreme Court, though not bound by federal law in this area, has expressly endorsed the view expressed in Flanagan.
Gottlieb v. State, 697 A.2d 400, 402 (Del. 1997).
The procedures for seeking an interlocutory appeal, which are set forth in Supreme Court Rule 42, were crafted with this strong public policy in mind. According to the Supreme Court "[i]n adoptingSupreme Court Rule 42 in 1981, [it] made a policy decision that appeals from interlocutory orders would not be accepted unless the order met certain criteria and special application to appeal was made to the trial court and this Court." To this end, Rule 42 sets forth tight deadlines and requires the applicant for certification to fulfill certain exacting criteria before the Supreme Court will consider accepting an interlocutory appeal.
Acierno v. Hayward, 859 A.2d 617, 619 (Del. 2004).
In order to minimize the disruption to the trial court proceedings inevitably caused by an application for certification of an interlocutory appeal, Supreme Court Rule 42 imposes stringent time deadlines on the parties. The party seeking an interlocutory appeal must file an application for certification of the appeal within 10 days of the ruling which it seeks to appeal. Rule 42 provides short deadlines for responses from the parties opposing the application and for an order by the trial court granting or denying certification.
Plaintiff filed a timely response to the application on or about December 28, 2009. The school district's response was due on January 4, 2010, but was not filed until January 8, 2010. The Court has therefore not considered the school district's response.
Because the deadlines are so short, Rule 42 requires that the application for certification must not only be filed with the clerk of the court, but a copy must be "delivered . . . to the judge of the trial court whose order is sought to be reviewed." Supreme Court Rule 42(c)(v). DSW did not deliver a copy of it sapplication to this Judge, and as a result by the time a copy of the e-filed application came to this Judge's desk, this Court had only three days (as opposed to the 20 days contemplated by the rule) to consider and decide the application.
Although the Delaware constitution grants jurisdiction to the Supreme Court to hear any interlocutory appeal in a civil case, the Court, as noted previously, has acted to considerably narrow the issues it will hear on interlocutory appeal. In essence, Supreme Court Rule 42 requires a two step analysis by this Court when considering whether to certify an appeal. First, the Court must determine sought to be appealed either determines a substantial issue or establishes a legal right. If the applicant can clear that hurdle, then the trial court must determine whether the order satisfies one or more of several relatively specific criteria set forth in Rule 42. Finally, irrespective of whether the trial court grants or denies certification, the Supreme Court conducts its own review to determine whether the application satisfies the various criteria set forth in Rule 42. Even in instances where the application for certification may satisfy Rule 42, the Supreme Court may, in its discretion, refuse the appeal.
Del. Const., art. IV, § 11( 1)(a).
Supreme Court Rule 42(b) ("No interlocutory appeal shall be certified by the trial court . . . unless the order of the trial court determines a substantial issue, establishes a legal right. . . .").
Supreme Court Rule 42(d)(v) ("[T]his Court shall determine . . . in its discretion whether to accept or refuse the appeal.").
In the instant matter this Court agrees with DSW that its rulings of November 30 determine a substantial issue or establish a legal right. For the reasons stated below, however, the Court concludes that DSW's application fails the second step in the analysis because it does not satisfy any of the more specific criteria set out in Rule 42.
C. The questions for which certification is sought
DSW apparently seeks to raise three questions in its interlocutory appeal:
1. Did this Court correctly apply 6 Del. C. § 2704 and 14 Del. C. § 1056(h)?
2. Did this Court correctly determine that the agreement between DSW and Christina School District includes a clear and unequivocal agreement to defend and indemnify the school district from claims arising from its own conduct?
3. Is a contract requiring defense and indemnification for Christina's alleged wanton and gross negligence void as against public policy?
These are discussed below.
D. Why the application is denied.
Before considering the specific issues which DSW seeks to appeal, a general observation is in order. One of the specific criteria set out in Rule 42 is "[a]ny of the criteria applicable to proceedings for certification of questions of law set forth in Rule 41," and it is this Rule 42 criterion upon which DSW relies. It is therefore necessary to examine Supreme Court Rule 41. That rule provides for consideration by the Supreme Court only "if there is an important and urgent reason for an immediate determination." Nowhere in its application does DSW argue why there is an "important and urgent reason" for "an immediate determination" by the Supreme Court of the issues DSW seeks to raise. DSW has failed to demonstrate why it cannot obtain full redress on an appeal after a final judgment. In short there is no need, let along an "important and urgent" reason, for immediate review by the Supreme Court. This reason alone requires this Court to deny the application for certification.
Supreme Court Rule 41(a)(1).
This Court agrees with Plaintiff that an interlocutory appeal will delay his day in court. However, it does not agree with him that an interlocutory appeal will consume a year.
The Court will now turn to the specific issues which DSW seeks to raise.
1. Did this Court correctly apply 6 Del. C. § 2704 and 14 Del. C. § 1056(h)?
In the proceedings before this Court, DSW argued that the indemnification provision contained in its agreement with the school district is void by virtue of 6 Del. C. § 2704(a). That statute provides that certain indemnification agreements are void in contracts "relative to the construction, alteration, repair or maintenance" of a state building. This Court rejected that argument because the contract between DSW was not for the maintenance of the high school gymnasium, but rather for the use of that building by DSW for a cheerleading competition. DSW argues that this Court should certify an interlocutory appeal because that ruling concerns an "original question of law." This Court disagrees. This Court's determination that the contract between DSW and the school district does not come within 6 Del.C. § 2704 is not "an unsettled question of law." Indeed, it does not even involve a question of law at all, but rather is an application of law to fact. This is not the sort of issue contemplated by Rule 41(b)(i) and (iii). If it were, virtually any pre-trial ruling would be potentially subject to an interlocutory appeal.
DSW's Mot., at ¶ 3.
If the Court understands DSW correctly, the applicant also argues that the Court's interpretation and application of 14 Del.C. § 1056(h) is inconsistent with its application of 6 Del.C. § 2704. Section 1056 provides limited immunity to school districts for tort claims based upon, among other things, improper maintenance. The tort claim against the school district is that prior to the cheerleading contest school maintenance personnel improperly set up the bleachers in the gymnasium. The Court construed that as "maintenance" and held that Christina School District is entitled to the limited immunity provided by section 1056(h).
Ironically, this ruling benefits DSW, which has a duty to defend and indemnify the school district.
DSW apparently posits that this Court's application of section 2704 is inconsistent with its application of section 1056(h) and therefore gives rise to an unsettled question of law. This argument — made for the first time in the application for certification — is a proverbial mixing of apples and oranges. The application of section 2704 (that the agreement between DSW and the school district was for the use of the gymnasium) is entirely distinct from its application of section 1056(h) (that Plaintiff's claims against the school district were for inadequate maintenance). More importantly, these are not the type of issues contemplated by Rule 41(b)(i) and (iii) and are not so "important and urgent" as to require immediate determination by the Supreme Court.
DSW's Mot., at ¶ 7.
2. Did this Court correctly determine that the agreement between DSW and Christina Scholl District includes a clear and unequivocal agreement to defend and indemnify the school district from claims arising from its own conduct?
DSW argues that its contract with the school district does not contain an agreement which clearly and unequivocally requires it to defend and indemnify the school district for the district's alleged "wanton" or "gross negligence" because those terms are not mentioned in the agreement. There are two reasons why the Court will deny certification of this issue. First, DSW makes no attempt to identify which of the criteria in Supreme Court Rule 42 its proposed contention on appeal satisfies.
DSW's Mot., at ¶ 13.
Second, DSW did not make this argument before this Court. It argued only that the provision in its contract was void by reason of 6 Del. C. § 2704(a) — it never argued that the language of the indemnification clause is unclear or ambiguous. It is settled law that the Supreme Court will ordinarily not consider arguments not raised below. In Christiana Care Health Systems, Inc. v. Crist , the Supreme Court wrote:
In its November 30 Memorandum Opinion the Court noted that "DSW does not ague that the language of the indemnification clause is unclear or ambiguous." Op. at 4.
956 A.2d 622 (Del. 2008).
The trial judge found that these arguments had been waived and did not address them. Because the trial court found that CCHS had waived its argument and did not address it, we agree with Plaintiffs that these arguments should not be considered on appeal.
Id. at 629, n. 17.
Id. at 629, n. 17.
Therefore, even if DSW had shown that this issue satisfied one of the criteria set out in Rule 42, this Court believes that the Supreme Court would likely still decline to hear DSW's argument.
3. Is a contract requiring defense and indemnification for Christina's own alleged wanton and gross negligence void as against public policy?
It bears emphasis that DSW does not seek to challenge on interlocutory appeal this Court's denial of its motion for reargument because it failed to timely present its public policy argument. Instead, it seeks certification so that it may appeal the merits of the procedurally barred argument.
There are two reasons why the Court will deny the application for certification of this issue. First, the issue was never timely presented to this Court and, as a result, this Court did not consider it. As noted previously, in opposing the school district's motion for summary judgment, DSW argued only that the indemnification provision violated 6 Del.C. § 2704(a). DSW presented the present argument for the first time on a motion for reargument after it lost the school district's motion. This Court refused to consider DSW's argument citing the time-honored rule that motions for reargument cannot be used to present new arguments. The Supreme Court rules effectively, and reasonably, preclude certification when the issue to be argued on interlocutory appeal was never decided by the trial court. Supreme Court rule 42(b) provides that "[n]o interlocutory appeal will be certified by the trial court" unless the ruling giving rise to the interlocutory appeal satisfies certain exacting criteria specified in the Supreme Court rules. A fortiori, where there was no ruling in the trial court, those criteria cannot be satisfied. Consequently this Court cannot certify an interlocutory appeal here.
There is a second reason why the Court declines to certify an interlocutory appeal here. The rule that a motion for reargument cannot be used by the losing party to raise new arguments is intended to allow courts to manage their dockets. Absent such a rule, losing parties could endlessly delay implementation of a ruling by a trial court simply by the repeated introduction of new arguments. A system in which the losing party could achieve the same result by having the merits of its procedurally barred argument reviewed by an appellate court would strip that procedural bar of its salutary effect altogether and would substantially impede the ability of trial courts to manage their dockets.
For the foregoing reasons, DSW's application for certification of an interlocutory appeal is DENIED.