ORDER DENYING APPLICATION TO CERTIFY AN INTERLOCUTORY
Sheldon K. Rennie, Judge
7th day of September, 2018, upon consideration of
Defendants' Application under Supreme Court Rule 42 for
an order certifying an interlocutory appeal from this
Court's Order, issued on July 19, 2018,  denying
Defendants' Motion to Amend Answer to Assert
Counterclaims (the "Application"), and Plaintiffs
Opposition thereto, it appears to the Court that:
Plaintiff Fulton Bank, N. A. ("Plaintiff) filed the
instant action against Defendants River Rock, LLC, et
al. ("Defendants"), to recover amounts
allegedly owed on Commercial Loan No. xxxxx67-9001 (the
"Account"). Six months after they filed their
Answer, Defendants moved to amend the Answer to assert
counterclaims against Plaintiff ("Motion to Assert
Counterclaims"). In the proposed counterclaims,
Defendants sought to recover alleged overpayments made by
them on the Account. They contended that the overpayments
were caused by Plaintiffs mismanagement of the Account.
July 19, 2018, the Court denied Defendants' Motion to
Assert Counterclaims and found that Defendants' prior
knowledge of the alleged overpayments precluded them from
asserting the proposed compulsory counterclaims by amendment
("July 19 Order"). Defendants then filed a Motion
for Reargument, which the Court also denied. On August 23,
2018, Defendants filed this Application for certification of
an interlocutory appeal of the July 19 Order pursuant to
Supreme Court Rule 42 ("Rule 42").
considering whether to certify an interlocutory appeal under
Rule 42, the Court must: (1) determine that the order to be
certified for appeal "decides a substantial issue of
material importance that merits appellate review before a
final judgment;" (2) decide whether to certify via
consideration of the eight factors listed in Rule
42(b)(iii); (3) consider the Court's own
assessment of the most efficient and just schedule to resolve
the case; and (4) identify whether and why the
likely benefits of interlocutory review outweigh the probable
costs, such that interlocutory review is in the interests of
Defendants maintain that their Application meets the criteria
set forth in Rules 42(b)(i) and 42(b)(iii)(H). The Court must
first determine whether the July 19 Order decided a
substantial issue of this case. To meet the "substantial
issue of material importance" prong under Rule 42(b)(i),
the question decided must go to the merits of the case, and
not to collateral matters. The Court agrees with Defendants that
the proposed counterclaims, which concern the ultimate
balance on the Account, relate to the merits of this case.
So, by denying Defendants' request for leave to assert
the proposed counterclaims, the July 19 Order decided a
However, this Application does not otherwise meet the
standards for certification. Among the eight Rule 42(b)(iii)
factors, Defendants rely solely on 42(b)(iii)(H), i.e., the
interlocutory review may serve considerations of justice.
Defendants repeated the same arguments they had made numerous
times in arguing their Motion to Assert Counterclaims and
Motion for Reargument, that they did not become aware of the
substance of those compulsory counterclaims until after they
filed the Answer. But the Court has pointed out that
Defendants' contentions are belied by their own pleadings
filed in other cases. Defendants have failed to refute this
finding in the Application, nor have they shown that the
requested interlocutory appeal would serve considerations of
justice on any other grounds. Hence, Defendants fail to meet
Rule 42(b)(iii)(H). The other Rule 42(b)(iii) factors are not
applicable to this case.
is well-established that interlocutory appeals are not
routine, but rather appropriate only in
"exceptional" circumstances. When the
Court denied Defendants' Motion to Assert Counterclaims,
it did not resolve any novel or exceptional issues. It simply
applied Superior Court Civil Rules 13(f) and 15 as they are
customarily and routinely construed. Hence, the Court does
not believe certification would promote the most efficient
and just schedule to resolve the case. Nor will the likely
benefits of interlocutory review outweigh the probable costs.
The Court finds, therefore, that Defendants have failed to
meet the strict standards for certification under Rule 42.
foregoing reasons, Defendants' Application to Certify an
Interlocutory Appeal from the Court's July 19, 2018 Order
IS SO ORDERED.
 Defendants' Application for
Certification of Interlocutory Appeal (Trans. ID.
See July 19, 2018 Judicial
Action Form (Trans. ID. 62257099). The Court did not issue a
written order, but issued its ruling orally at the hearing.
See Transcript of July 19, 2018 ...