IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ERIC RILEY & JEANNE RILEY, )

) 

Defendants-Below, )

Appellants, )

)

v. ) C.A. No. N15A-12-005 JAP

)

NEW CASTLE AUTO AUCTION )

& CONSIGNMENTS, INC., )

)

Plaintiff-Below, )

Appellee. )

MEMORANDUM OPINION

On November 1, 2016 the court sua sponte issued a Rule to Show Cause 

why this appeal from the Court of Common Pleas should not be dismissed for 

lack of jurisdiction. Appellants oppose dismissal; Appellee does not. For the 

reasons that follow, the court finds that it lacks jurisdiction because the 

judgment from which the appeal has been taken is not final. The appeal is 

therefore dismissed. 

Background

In 2010 Appellants (the “Rileys”)1 purchased a used 2002 Dodge Stratus 

from New Castle Auto Auction. They signed a promissory note in favor of the 

New Castle Auto Auction as part of the transaction. Within a few months the 

purchasers began missing payments, and New Castle Auto Auction brought 

suit against them in a Justice of the Peace Court. That court ruled against the 

 

1 The court understands the Rileys to contend that only Eric Riley purchased the Stratus and 

that Jeanne Riley signed the promissory note only because the auto auction required her to do 

so as a condition to selling her husband the car. This contention is not germane to the issue 

now before the court and, for shorthand purposes, it will sometimes refer to both Rileys as the 

“purchasers.”
2

Auto Auction because the Auction failed to introduce sufficient documentation 

of the transaction at trial. The Auto Auction appealed to the Court of Common 

Pleas where it received a trial de novo. After that trial, the Court of Common 

Pleas held that the Rileys defaulted on their promissory note and awarded New 

Castle Auto Auction $8,574.60 plus interest. During the course of the 

proceedings below, the Auto Auction contended it had a contractual right to 

attorneys fees under the promissory note signed by the purchasers. The Court 

of Common Pleas agreed that the Auto Auction was entitled to attorneys fees 

but deferred ruling on the amount of those fees until after the parties had an 

opportunity to file written submissions on the amount to be awarded. The 

Rileys appealed to this court before the Court of Common Pleas could rule on 

the amount of the fees.

The Rule to Show Cause

Both sides filed briefs in this court on the merits of the appeal. When 

the matter was submitted to this court for decision it questioned its jurisdiction 

because there did not appear to be a final judgment entered below. On 

November 1, 2016 this court issued a Rule to Show Cause directing the parties 

to show cause why the matter should not be dismissed for lack of jurisdiction. 

In its Rule to Show Cause the court directed the parties’ attention to several 

Delaware Supreme Court opinions, including Sentinel Technologies, Inc. v. 

Revolution Retail Systems, L.L.C.2 The Rileys filed a response to the Rule to 

 

2 130 A.3d 931 (Del. 2015).
3

Show Cause in which they opposed dismissal of their appeal; New Castle Auto 

Auction submitted a response advising the court it does not oppose dismissal.

Analysis

Neither side disputes that this court’s jurisdiction over civil appeals from 

the Court of Common Pleas is limited to appeals from final judgments. 

Delaware law provides that “[f]rom any final order, ruling, decision or judgment 

of the court [of Common Pleas] in a civil action there shall be the right of 

appeal to the Superior Court.”3 The court must therefore determine if this is 

an appeal from a final judgment. It is not. In Showell Poultry, Inc. v. Delmarva 

Poultry Corp. the Delaware Supreme Court wrote that the “test for whether an 

order is final and therefore ripe for appeal is whether the trial court has clearly 

declared its intention that the order be the court’s ‘final act’ in a case.”4 There 

is no room for doubt here that the Court of Common Pleas did not intend its 

ruling to be its final act in the case. After finding in favor of New Castle Auto 

Auction on the merits and finding the Rileys were obligated to pay the Auto 

Auction’s attorneys fees, the court-below required the parties to make further 

submissions on the amount of the fees. The trial judge then wrote “[t]he Court 

shall then issue a separate written decision on the amount of attorney’s fees.” 

This alone is dispositive of the jurisdictional issue presently before this court. 

The court notes that nowhere in their response to the Rule to Show Cause do 

the Rileys mention Showell.

 

3 10 Del. C. § 1326 (emphasis added).

4 Showell Poultry, Inc. v. Delmarva Poultry Corp., 146 A.2d 794, 796 (Del. 1958). Showell

Poultry has withstood the test of time and is still cited for that proposition. E.g., Brunhammer 

v. State, 2016 WL 611822 (Del. 2016).
4

The operation of the rule in Showell and its progeny with respect to the 

context of a pending award of attorneys fees is illustrated by the Delaware 

Supreme Court in Sentinel Technologies, Inc. v. Revolution Retail Systems, 

L.L.C.5 wherein it wrote:

This Court consistently has held that that a judgment 

on the merits is not final until an outstanding related 

application for an award of attorneys fees has been 

decided. The ruling from which the appeal is taken is 

interlocutory in nature because it did not finally 

determine and terminate the cause before the Court of 

Chancery.

Sentinel Technologies was decided after the Rileys filed the instant appeal. The 

Rileys assert that “[w]hether [Sentinel Technologies] is retroactive is an open 

question” and argue that it “is merely a prospective precedent.” They follow 

with a discussion of retroactivity in the federal courts. This court is hardpressed to understand why the Rileys assert that there is “an open question”

about whether Sentinel Technologies can retroactively be applied. The Rileys’ 

assertion is particularly perplexing given the Sentinel Technologies Court’s

observation that “[t]his Court consistently has held that a judgment on the 

merits is not final until an outstanding related application for an award of 

attorneys fees has been decided.” There are indeed many instances in which 

the courts of this state have held that a pending claim for attorneys fees 

renders a judgment non-final. 

The Rileys also contend there is no case law applying the rule to appeals 

from the Court of Common Pleas to this court: “counsel was not able to find a 

 

5 130 A.3d 931 (Del. 2015).
5

case using the jurisdictional analysis between the Court of Common Pleas and 

the Superior Court prior to Sentinel Technologies.”

6 The point lacks merit for at 

least two reasons. First, there is nothing novel about this application of 

principles, which have been firmly established in Delaware law since at least 

the Supreme Court’s 1958 decision in Showell Poultry. Second, the assertion 

that these principles have never been applied to appeals “between the Court of 

Common Pleas and the Superior Court” is wrong. In Gould v. Wien this court 

did that very thing in 2007. According to the Court of Common Pleas:

On June 27, 2007 the Court [of Common Pleas] issued 

its decision after trial in this matter, and entered 

judgment against Defendant in the amount of 

$16,500.00 plus interest and costs. The Court further 

found that, under the terms of the contract at issue, 

Plaintiff was entitled to an award of attorney's fees. 

The Court ordered Plaintiff to submit a fee affidavit, 

and gave Defendant the right to respond thereto. On 

July 12, 2007, Plaintiff submitted her attorney's fee 

affidavit. On July 20, 2007, prior to the final date for 

Defendant to respond to the fee affidavit, Defendant 

appealed this action to the Superior Court. On 

September 7, 2007 the Superior Court dismissed 

Defendant's appeal as untimely, since this Court had 

yet to enter its final judgment on the issue of attorney's

fees.

7

The Rileys urge that “there is no prejudice to either party if the court 

were to retain jurisdiction [while they litigate the amount of attorneys fees in 

the Court of Common Pleas], rather than dismiss it.”8 This court, however, 

cannot retain something it does not have. Finally, the Rileys also urge that this 

court apply their filing fee for this appeal to the appeal they will likely file once 

 

6 Riley Resp. ¶6.

7 Gould v. Wien, 2007 WL 4158041 (Del. Ct. Com. Pl. Nov. 15, 2007) (emphasis added).

8 Riley Resp. ¶9.
6

the Court of Common Pleas enters a final judgment. Had the Rileys 

acknowledged the obvious in their response to Rule to Show Cause, this court 

would consider (but not necessarily grant) their request. But because they have 

chosen to fruitlessly belabor a point which this court deems to be wellestablished, it will not credit the fee they have paid to their next appeal.9

It is therefore ORDERED that the appeal is DISMISSED.

Dated: November 21, 2016 John A. Parkins, Jr.

 Superior Court Judge

oc: Prothonotary

cc: David J. J. Facciolo, Esquire, Minster & Facciolo LLC, Wilmington,

Delaware

D. Miika Roggio, Esquire, Silverman McDonald & Friedman, Wilmington,

Delaware

 

9 Cf., Superior Court Civil Rule 54(e) (“if any party unnecessarily swells the record or 

otherwise causes unnecessary expense, the Court may, in its discretion, order such 

unnecessary expense to be taxed against the party causing the same, without regard to the 

outcome of the action.”).