Opinion
No. 430, 2002
Submitted: September 20, 2002
Decided: October 8, 2002
Court Below-Superior Court of the State of Delaware, in and for New Castle County C.A. No. 01C-12-041
Appeal dismissed.
Unpublished opinion is below.
GARY L. RHUDY, as personal representative of the ESTATE OF DENISE L. RHUDY, deceased, and as guardian and next friend of GARY E. RHUDY, EVA RHUDY, MORGAN RHUDY and MADISON RHUDY, minors, Plaintiffs Below-Appellants, v. BOTTLECAPS INC., a Delaware corporation d/b/a BOTTLECAPS BAR RESTAURANT and THE WILMINGTON PARKING AUTHORITY, a corporation of the State of Delaware, Defendants Below-Appellees. No. 430, 2002 In the Supreme Court of the State of Delaware. Submitted: September 20, 2002 Decided: October 8, 2002
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices
ORDER
Joseph T. Walsh, Justice
This 8th day of October 2002, it appears to the Court that:
(1) The plaintiffs-appellants, Gary L. Rhudy, as personal representative of the estate of Denise L. Rhudy and as guardian and next friend of Gary E. Rhudy, Eva Rhudy, Morgan Rhudy and Madison Rhudy, minors (the "Rhudys"), filed an appeal from the Superior Court's June 28, 2002 order granting summary judgment in favor of Defendant-Appellee Bottlecaps, Inc. Bottlecaps subsequently filed a motion to dismiss the appeal on the ground that the Superior Court's order was an interlocutory, and not a final, order.
No ruling was made with respect to defendant Wilmington Parking Authority.
(2) 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. The Superior Court's June 28, 2002 order was not intended to be its final act for purposes of appeal, since the order did not dispose of the Rhudys' claims against the Wilmington Parking Authority. Moreover, the Superior Court did not direct the entry of a final judgment upon the Rhudys claims against Bottlecaps in accordance with Superior Court Civil Rule 54(b).
J.I. Kislak Mortgage Corporation v. William Matthews, Builder, Inc., 303 A.2d 648, 650 (Del. 1973).
Consisting of the transcript of the June 28, 2002 hearing on Bottlecaps' motion for summary judgment.
Stroud v. Milliken Enterprises, Inc., 552 A.2d 476, 482 (Del. 1989).
(3) An appeal from the Superior Court's June 28, 2002 order, therefore, must satisfy the requirements for taking an interlocutory appeal pursuant to Supreme Court Rule 42. The Rhudys have not attempted to comply with that Rule. Accordingly, their appeal must be dismissed.
NOW, THEREFORE, IT IS ORDERED that this appeal is DISMISSED pursuant to Supreme Court Rules 29(b) and 42.