Opinion
C.A. No. 08C-12-258 FSS.
August 16, 2011.
Upon Defendants' Application for Certification of Interlocutory Appeal — DENIED.
Robert K. Beste, Jr., Esquire, Cohen Seglias Pallas Greenhall Furman PC, Wilmington, DE.
Laurence V. Cronin, Esquire, Smith Katzenstein Jenkins LLP, Wilmington, DE.
Dear Counsel:
Defendants move to certify an interlocutory appeal of the denial of their motion for summary judgment. Now, as then, Defendants argue the statute of limitations started when Defendant Richard Forsten allegedly advised Plaintiff to proceed to closing despite a title defect. The court held the limitations period did not begin until later, when the alleged damages ensued and the cause of action accrued.
Supr. Ct. R. 42.
The dispositive issue "is whether the denial of a summary judgment motion, which asserts a statute of limitations defense, constitutes the `establishment of a legal right' between the parties for the purpose of appealing an interlocutory order." The Levinson Court "conclude[d] it does not, and for that reason," dismissed the appeal. Thus, Defendants' argument that "the untimeliness of the claim implicated the legal right to be free of the expense of a trial defense to a claim" is unpersuasive.
Levinson v. Conlon, 385 A.2d 717 (Del. 1978); see also Blum v. Kauffman, 286 A.2d 757, 759 (Del. 1972).
Levinson, 385 A.2d at 719-20.
Unisuper Ltd. v. News Corp., 2006 WL 207505 at *4, n. 11 (Del. Ch.) (CHANDLER, C.) rev'd News Corp. v. Unisuper Ltd., No. 635, 2005 (Del. Jan. 27, 2006).
Although no legal right was established, as just discussed, it bears mention that certifying Defendants' application would neither serve the interests of justice nor promote judicial economy. Even if Forsten's advice is time-barred, Plaintiff has a second professional negligence claim against Forsten. If, as Defendants claim, Forsten's title advice "accounts for more than 99% of alleged damages[,]" they may convert the interlocutory order into a final one.
For the foregoing reasons, Defendants' August 8, 2010 Application for Certification of Interlocutory Appeal is DENIED.
IT IS SO ORDERED.