Browne v. Thriftway's Manager et al. v. J.R.Gettier and Associates, Inc.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE CECIL BROWNE, § § Plaintiff Below, § Appellant, § § v. § § THRIFTWAY S MANAGER, JOHN § DOE, THRIFTWAY S SECURITY, § JOHN DOE, § § Defendants Below, § Appellees, § § v. § § J.R. GETTIER AND ASSOCIATES, § INC., § § Third-Party Defendant Below, § Appellee. § No. 106, 2002 Court Below: Superior Court of the State of Delaware, in and for New Castle County C.A. No. 99C-06-069 Submitted: March 14, 2002 Decided: April 2, 2002 Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices. ORDER This 2nd day of April 2002, it appears to the Court that: (1) The appellant, Cecil Browne, filed a notice of appeal on March 4, 2002 from the Superior Court s decision of February 7, 2002, which granted the appellees Motion for Judgment as a Matter of Law. (2) Upon learning from an independent review of the Superior Court docket that there was a Motion for New Trial pending in Superior Court, the Clerk of the Supreme Court, on March 8, 2002, issued a notice pursuant to Supreme Court Rule 29(b) directing Browne to show cause why the appeal should not be dismissed for his failure to comply with Supreme Court Rule 42 when taking an appeal from an apparent interlocutory order. (3) Browne filed a response to the Notice to Show Cause on March 14, 2002. Browne admits that he filed a timely motion for a new trial that remains pending in the Superior Court. Nonetheless, Browne asserts that his appeal is a direct appeal from a final judgment of the Superior Court. (4) We disagree. This Court previously has held that the timely filing of a motion for new trial in a civil case tolls the finality of the judgment and, also, the time period for filing an appeal to this Court.1 Absent compliance with Rule 42, the jurisdiction of this Court is limited to the review of a final judgment of the trial court.2 (5) The proceedings before the Superior Court are ongoing. Until all issues are disposed of, the judgment of February 7, 2002, is not final. 1 2 Tomasetti v. Wilmington Savings Fund Soc y, 672 A.2d 61, 64 (Del. 1996). Julian v. State, 440 A.2d 990, 991 (Del. 1982). -2- Accordingly, an appeal from the Superior Court to this Court is premature absent compliance with the requirements for taking an interlocutory appeal in accordance with Supreme Court Rule 42. Browne has not attempted to comply with this Rule. NOW, THEREFORE, IT IS ORDERED that appellant s appeal is DISMISSED. BY THE COURT: s/Joseph T. Walsh Justice -3-
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