The Roofers, Inc. d/b/a Tri-State ( 2014 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
THE ROOFERS, INC., d/b/a §
TRI-STATE THE ROOFERS, §
§ No. 205, 2014
Plaintiff-Below, §
Appellant, § Court Below: Superior Court of
§ the State of Delaware in and for
v. § New Castle County
§
DELAWARE DEPARTMENT § C. A. No. N09C-11-063
OF LABOR, §
§
Defendant-Below, §
Appellee. §
Submitted: November 19, 2014
Decided: November 24, 2014
Before STRINE, Chief Justice, HOLLAND and VAUGHN, Justices.
ORDER
This 24th day of November 2014, upon consideration of the parties’ briefs
and the record in this case, it appears to the Court that:
The appellant raises as its central argument on appeal a proposition it did not
fairly raise below. At best, the appellant can point to a single reference to that
issue in a lengthy oral argument before the Superior Court. Its briefs to the
Superior Court addressing sovereign immunity do not make the argument the
appellant now attempts to make. Therefore, the issue has not been properly raised
below and may not be raised on appeal under Rule 8.1 Nor is it in the interest of
justice to allow a litigant who made an extremely unusual request for attorneys’
fees, who should have anticipated a sovereign immunity defense, and who failed to
present all of its arguments fairly below, to appeal the denial of that request. Based
on the arguments that were fairly presented below, we find that the Superior Court
made no error of law in denying the appellant’s application for attorneys’ fees, and
we affirm on the basis of the Superior Court’s opinion of March 25, 2014.2
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice
1
Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented for review;
provided, however, that when the interests of justice so require, the Court may consider and
determine any question not so presented.”).
2
Roofers, Inc. v. Del. Dep’t of Labor, 2014 WL 1228911 (Del. Super. Mar. 25, 2014).
2