Cooper v. Seasons Hospice & Palliative Care of Delaware, Inc. ( 2024 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
GWENDOLYN COOPER, §
ADMINISTRATOR ON BEHALF §
OF THE ESTATE OF VIVIAN K. §
LOCKE, DECEASED, § No. 239, 2024
§
Plaintiff Below, § Court Below—Superior Court
Appellant, § of the State of Delaware
§
v. § C.A. No. N23C-08-030
§
SEASONS HOSPICE & §
PALLIATIVE CARE OF §
DELAWARE, INC., SEASONS §
HOSPICE & PALLIATIVE CARE §
OF DELAWARE LLC, and §
ACCENTCARE, INC., §
§
Defendants Below, §
Appellees. §
Submitted: July 18, 2024
Decided: August 9, 2024
Before SEITZ, Chief Justice; VALIHURA and GRIFFITHS, Justices.
ORDER
Upon consideration of the notice to show cause and the responses, it appears
to the Court that:
(1) On June 24, 2024, the plaintiff below-appellant Gwendolyn Cooper,
administrator on behalf of the estate of Vivian K. Locke, filed a notice of appeal
from a Superior Court order, dated and docketed on May 8, 2024, denying her
motion for reargument of a Superior Court opinion granting the motion to dismiss
filed by the defendants below-appellees Seasons Hospice & Palliative Care of
Delaware, Inc., Seasons Hospice & Palliative Care of Delaware, LLC, and
AccentCare, Inc. A timely notice of appeal would have been filed by June 7, 2024.1
The Senior Court Clerk issued a notice directing that Cooper to show cause why this
appeal should not be dismissed as untimely.
(2) In response to the notice to show cause, Cooper states that a notice of
appeal was mistakenly filed in the Superior Court on June 7, 2024.2 The mistake
was not discovered until June 24, 2024, at which point a notice of appeal was filed
in this Court. Cooper’s counsel takes responsibility for the untimely appeal, but
suggests that if the Superior Court had rejected the improperly filed appeal, a timely
appeal could have been filed with this Court. Cooper emphasizes that the appellees
had notice of the appeal from the mistaken filing and, relying on Riggs v. Riggs,3
asks the Court to accept this untimely appeal in the interests of justice.
(3) The appellees assert that the appeal is untimely and does not fall within
the exception for untimely appeals attributable to court-related personnel. Relying
1
10 Del. C. § 148 (“No appeal from a final judgment of the Superior Court in a civil action shall
be received or entertained in the Supreme Court unless the praecipe or notice of appeal is duly
filed in the office of the Clerk thereof within 30 days after the date of the judgment or decree.”);
Supr. Ct. R. 6(a)(i) (providing that the notice of appeal from civil judgment must be filed within
30 days from entry of the judgment on the docket).
2
The notice of appeal was also incorrectly captioned in the Superior Court.
3
539 A.2d 163 (Del. 1988).
2
on Lima Delta Co. v. Gulfstream Aerospace Corp.,4 the appellees argue that this
appeal should be dismissed. We agree.
(4) Time is a jurisdictional requirement.5 A notice of appeal must be
received by the Office of the Clerk of this Court within the applicable time period in
order to be effective.6 An untimely appeal can be considered if the appellant
demonstrates that the failure to file a timely notice of appeal is attributable to court-
related personnel.7 In Riggs, for example, this Court accepted an untimely appeal
where the appellant had incorrectly filed his notice of appeal in the Family Court
and the Family Court proceeded as if the appeal had been properly filed by
acknowledging receipt of the papers, setting bond for the appeal, and questioning its
ability to provide further relief while the matter was on appeal to this Court.8
(5) This situation is, however, more similar to Lima Delta. In Lima Delta,
the appellants mistakenly filed their appeal in the Superior Court, realized their
mistake a few days later, and filed their appeal in this Court after the appeal deadline
had expired.9 The Lima Delta appellants argued that their untimely appeal was
attributable to court-related personnel because the Superior Court had “erroneously
accepted” the appeal without noticing that it was filed by a law firm rather than a
4
2019 WL 1870563 (Del. Apr. 26, 2019).
5
Carr v. State, 554 A.2d 778, 779 (Del. 1989).
6
Supr. Ct. R. 10(a).
7
Bey v. State, 402 A.2d 362, 363 (Del. 1979).
8
539 A.2d 163, 164 (Del. 1988).
9
2019 WL 1870563, at *1.
3
court clerk.10 Based on our previous holding that a notice of appeal should not be
refused by a court clerk or rejected automatically by the File and Serve system, we
rejected the Lima Delta appellants’ argument.11 We found that the filing of the
appeal in the wrong court was attributable solely to the Lima Delta appellants and
dismissed their appeal for untimeliness.12
(6) As in Lima Delta, the decision to file the initial notice of appeal in the
wrong court is attributable to Cooper alone. Because Cooper has not shown that the
failure to file a timely notice of appeal is attributable to court-related personnel, this
appeal must be dismissed.
NOW, THEREFORE, IT IS ORDERED, under Supreme Court Rule 29(b),
that the appeal is DISMISSED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Chief Justice
10
Id. at *2.
11
Nicholas v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 74 A.3d 634, 635 (Del. 2013) (“This
Court has held that ‘no notice of appeal should ever be refused by a clerk for filing if the intention
to appeal is clear from the document filed.’ Similarly, a notice of appeal should not be rejected
automatically by the File and Serve system.”) (citations omitted). In Nicholas, the appellants
sought to transfer the appeal they mistakenly filed in the Superior Court to this Court under 10
Del. C. § 1902 and were allowed to do so. Cooper has not raised § 1902 so we do not address that
possibility.
12
Lima Delta, 2019 WL 1870563, at *2.
4