Opinion
C.A. No. 99C-09-168-JTV.
Submitted: September 11, 2003.
Decided: September 16, 2003.
Upon Consideration of Defendant's Application For Certification of Interlocutory Appeal
DENIED
Olha N.M. Rybakoff, Esq., Department of Justice, Wilmington Delaware. Attorney for the State of Delaware.
C. Scott Reese, Esq., Cooch Taylor, Wilmington, Delaware. Attorney for Defendants Wellington Homes, 397 Properties and Albert Tina Marie Vietri.
Adam Balick, Esq., Balick Balick, Wilmington, Delaware. Attorney for Defendants Christiana Ventures and Joseph Capano.
Richard H. Cross, Jr., Esq., Wilmington, Delaware. Attorney for Defendant Joseph Capano.
ORDER
Upon consideration of the defendants' application for certification of an interlocutory appeal, it appears that:
1. In this action the Attorney General seeks civil penalties from the defendants under Delaware's Consumer Fraud and Deceptive Trade Practices Acts. Under those acts, the Attorney General may seek civil penalties if it is determined that a party has willfully violated the provisions of either act. The Attorney General contends that the defendants committed numerous violations of both acts in the course of marketing, selling and constructing new homes in a residential subdivision known as Lea Eara Farms which is located in the area of Middletown, New Castle County, Delaware.
2. On August 20, 2003, the Court entered an order denying a motion for partial summary judgment filed by the defendants. The motion sought partial summary judgment as to those counts of the complaint which alleged violations of the Deceptive Trade Practices Act ("the Act"). The defendants contended that the Act does not apply to sales of real estate and that their activities involved the sale of real estate. The Attorney General contended that the Act does apply to sales of real estate and, in the alternative, that the activities of the defendants involved the sale of home construction goods and services. The Court held that the Act does not apply to an isolated sale of real estate but that it does extend to transactions for the construction and sale of new homes because such transactions involve the sale of home construction goods and services. In doing so, the Court distinguished two Supreme Court decisions, Young v. Joyce and Stephenson v. Capano. Those were cases involving the sale of real estate in which the Act was found not to apply.
351 A.2d 857 (Del. 1975).
462 A.2d 1069 (Del. 1983).
3. Trial is scheduled to begin September 29, 2003.
4. On August 28, 2003, the defendants filed an application for certification of an interlocutory appeal regarding the Court's August 20, 2003 order. They contend that the question presented — whether the Act is applicable in the new home construction context — is an important question that should be settled; that the question relates to the construction or application of a state statute which has not been, but should be, settled by the Supreme Court; that the question is of first instance in this State; that if summary judgment is entered in favor of the defendants on the question, 20 of 30 counts of the complaint will be resolved prior to trial; and that a review of the decision of the trial court will serve considerations of justice.
4. The Attorney General opposes the defendants' application. The Attorney General, after noting that the case is four years old this month, has had four trial dates, was continued for mediation which was unsuccessful, was continued at defense request, and was the subject of a statutory stay while the parties litigated in the Court of Chancery over issues arising from the unsuccessful mediation, contends that the facts underlying the ten counts of alleged violations of the Consumer Fraud Act are substantially the same, if not broader than, the facts underlying the counts alleging violations of the Deceptive Trade Practices Act; that a decision on appeal will not, therefore, have any impact on the evidence which the Attorney General will be presenting; that an interlocutory appeal will not substantially reduce further litigation or otherwise serve considerations of justice, but will instead increase litigation in the form of added appeal and delay; that the August 20, 2003 order is consistent with the interpretation of similar uniform laws and, therefore, is unlikely to be reversed; and that since a final, appealable judgment will come into existence in about a month, there is no exigency to justify an interlocutory appeal.
5. Applications for certification of an interlocutory appeal should be granted only in exceptional circumstances. The beneficial purpose of materially advancing litigation and saving time in the trial court should be balanced against the danger of fragmenting litigation and causing unnecessary delay.
In re Pure Resources, Inc., 2002 Del. Ch. LEXIS 116 (Del.Ch. 2002).
Id.; Rhone-Poulenc Basic Chemicals Company v. American Motorists Insurance Company, 616 A.2d 1192, 1194 n. 1 (Del. 1992) (committee comment to Supreme Court Rule 42).
6. Consideration of the relevant factors in this case leads to the conclusion that the application should be refused. Even if an interlocutory appeal were resolved in the defendants' favor, a trial would still be necessary on the alleged violations of the Consumer Fraud Act. Those counts would be unaffected by an interlocutory appeal. An interlocutory appeal would not materially affect the evidence which is presented at trial. For the most part, the same acts are alleged as violations of both the Consumer Fraud Act and the Deceptive Trade Practices Act. If the case proceeds to trial on September 29, a final judgment will be produced which can then be appealed. Through the use of a special verdict form or interrogatories, the jury can be asked to state separately any verdict based on the Consumer Fraud Act and any verdict based on the Deceptive Trade Practices Act. If the question which the defendants wish to pursue in an interlocutory appeal is resolved in their favor in an appeal from a final judgment, any verdict based upon the Deceptive Trade Practices Act can be reversed without necessitating, on that ground alone, a retrial of any verdict based upon the Consumer Fraud Act. An interlocutory appeal at this time would cause another delay in this long-pending litigation without bringing it to a conclusion.
7. For the foregoing reasons, the application for certification of an interlocutory appeal is refused.
IT IS SO ORDERED.