Opinion
Docket No. 13, 1999.
April 8, 1999.
Appeal from Superior Court, New Castle County, CA 96C-01-070.
APPEAL DISMISSED.
Unpublished Opinion is below.
ANTHONY W. GUNZL, Plaintiff Below, Appellant, v. DEBORAH SPAYD, a/k/a DEBORAH PETERS, NEW CASTLE COUNTY, PAUL REYNOLDS, and BROOKSIDE CIVIC ASSOCIATION, Defendants Below, Appellees. No. 13, 1999. In the Supreme Court of the State of Delaware. Submitted: March 29, 1999. Decided: April 8, 1999.
Appeal from Superior Court of the State of Delaware, in and for New Castle County, in C.A. No. 96C-01-070.
Before VEASEY, Chief Justice, HOLLAND and BERGER, Justices.
ORDER
This 8th day of April 1999, it appears to the Court that:
(1) The Clerk of this Court issued a notice directing the appellant, Anthony W. Gunzl, to show cause why this appeal should not be dismissed pursuant to Supreme Court Rule 29(b) for Gunzl's failure to comply with Supreme Court Rule 42 when taking an appeal from an apparent interlocutory order. On March 29, 1999, Gunzl filed an answer to the notice to show cause.
(2) In his response, Gunzl tacitly concedes that his appeal was interlocutory at the time it was filed. He asserts, however, that after he filed his notice of appeal the trial judge subsequently entered a final judgment against the sole remaining defendant, Deborah Spayd, thereby ending the case before the Superior Court. Gunzl therefore requests that this appeal be allowed to continue as if the notice of appeal had been filed from a final order.
(3) The test for whether an order is final and therefore ripe for appeal is whether the trial court has clearly declared its intention that the order be the court's "final act" in a case. J.I. Kislak Mortgage Corporation of Delaware v. William Matthews, Builder, Inc., Del. Supr., 303 A.2d 648, 650 (1973). At the time he filed this appeal Gunzl's claims against Spayd had not been resolved by the Superior Court. Accordingly, Gunzl's appeal was interlocutory when it was filed, and it was not filed in compliance with Supreme Court Rule 42. The jurisdictional defect created by Gunzl's premature filing of his notice of appeal cannot be cured by the subsequent entry of a final order by the Superior Court. If, as Gunzl contends, the Superior Court has since entered its final order in the case, then the appropriate procedure is for Gunzl to file a notice of appeal from that final order. An appeal from a final order brings up all interlocutory rulings for review.
NOW, THEREFORE, IT IS ORDERED that the within appeal is DISMISSED pursuant to Supreme Court Rules 29(b) and 42. In the event that Gunzl files a notice of appeal from a final judgment in this case, the filing fee in that appeal is waived.
BY THE COURT:
/s/ E. NORMAN VEASEY
Chief Justice