Submitted: February 8, 2018
ORDER DENYING LEAVE TO APPEAL FROM INTERLOCUTORY
M. Johnston, Judge
have moved for an order certifying an interlocutory appeal to
the Delaware Supreme Court. The determination of whether to
certify an interlocutory appeal lies within the discretion of
the Court and is analyzed under the criteria set forth in
Supreme Court Rule 42(b). An interlocutory appeal will not be
certified unless the Court finds that its decision: (1)
determines a substantial issue; (2) establishes a legal
right; and (3) satisfies one of the five criteria set forth
in Rule 42(b)(i)-(v). Under Rule 42(b)(i), the Court may look
to the criteria established by Rule 41.
Plaintiff moved, in limine, to exclude any evidence
relating to consequential or opportunity cost damages, or the
loss of anticipated or future business or profits. The motion
was reviewed by the Special Master, who found that the motion
was an untimely partial summary judgment motion. The Special
Master recommended that the Court resolve the issue prior to
motion requested that the Court find, as a matter of law,
that the contract at issue precludes Defendants'
counterclaims for damages in the form of lost profits. The
Court determined that the motion was partially dispositive
and, therefore, untimely. Nevertheless, in the interest of
judicial economy, the Court exercised its discretion to
address the motion prior to trial to enable the parties to
Memorandum Opinion dated December 19, 2017, the Court granted
Plaintiffs motion. The Court held that "all remaining
counterclaims are in essence claims for breaches of
representations and warranties. Thus, Article VII
Indemnification controls as the defined Exclusive Remedy.
Damages in the form of consequential, opportunity cost, loss
of anticipated or future business, and profits, are
moved for reargument. The Court denied the reargument motion
by Order dated January 18, 2018.
have applied for certification of an interlocutory appeal
from the December 19, 2017 Memorandum Opinion and the January
18, 2018 Order.
Defendants argue that the Court decided two substantial
issues of material importance. First, the Court erroneously
interpreted the asset purchase agreement as precluding
certain damages. Second, the Court made this decision without
full briefing. Defendants contend that the criteria of Rule
42(b)(iii)(E) (the Court reversed a prior decision deciding a
significant issue and interlocutory review may substantially
reduce litigation or otherwise serve considerations of
justice) and Rule 42(b)(iii)(H) (review may serve
considerations of justice) have been satisfied.
opposes interlocutory appeal. Plaintiff contends that the
Court's ruling precluding evidence relating to certain
damages is a collateral matter, not a substantial issue.
Additionally, whether Defendants had a sufficient opportunity
to brief and argue their motion is a matter of procedure, not
Court finds that the December 19, 2017 Memorandum Opinion
determined a substantial issue. However, the Memorandum Opinion
did not reverse or set aside a prior decision of the trial
court. For reasons set forth in the Memorandum Opinion, and
January 18, 2018 Order, resolving the legal issue -contract
interpretation regarding available damages - was not contrary
to the Court's prior decisions. In any event, Rule
42(b)(iii)(E) was not intended to apply to alleged
self-reversal by a judge in the course of a single case.
Further, denial of reargument is not appropriate for
Court holds that interlocutory review in this case will not
substantially reduce further litigation and otherwise serve
considerations of justice. The Court ruled that all claims,
including counterclaims, fall within certain contractual
damages limitations. The Court did not prohibit all damages
evidence. The measure of damages remains a question of fact
for the jury. The interests of justice weigh in favor of this
case proceeding to trial. The Court has made many crucial
rulings in the course of this hotly-contested litigation.
Once the jury has rendered its verdict, a single appeal, if
any, should encompass all issues of concern to the parties.
Defendants have failed to demonstrate that any of the five
criteria set forth in Delaware Supreme Court Rule
42(b)(i)-(v) require that the Court exercise its discretion
to certify interlocutory appeal. The Application for
Certification of Interlocutory Appeal is hereby