Petrone v. Canal Corkran Homeowners Association, Inc.

IN THE SUPREME COURT OF THE STATE OF DELAWARE
JOSEPH PETRONE, §
§ No. 34, 2018
Defendant Below, §
Appellant, § Court Below: Court of Chancery
§ of the State of Delaware
v. §
§ C.A. No. 10562
CANAL CORKRAN §
HOMEOWNERS ASSOCIATION, §
INC., a Delaware non-profit §
corporation, §
§
Plaintiff Below, §
Appellee. §

Submitted: July 20, 2018
Decided: August 21, 2018

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

ORDER

This 21st day of August 2018, it appears that:

(1) This appeal is from an order of the Court of Chancery. The Appellant,

Joseph Petrone, owns a residential property in Canal Corkran subdivision at

Rehoboth Beach. The Appellee is Canal Corkran Homeowners Association, Inc.

The subdivision’s Declaration of Covenants, Conditions, Easements and

Restrictions requires a property owner to submit any proposed construction to the

Homeowners Association’s Architectural Review Committee for prior approval.

Petrone sought and received approval to construct a dwelling on his property. His

application indicated the driveway would be made of asphalt. The driveway he
installed, however, was made of oyster shells. The Homeowners Association

claimed the oyster shell driveway violated the Declaration and brought an action in

the Court of Chancery seeking an order requiring Petrone to replace the oyster shell

driveway with one that complied with the Declaration.

(2) In a bench ruling dated December 20, 2017 the Court of Chancery ruled

in favor of the Homeowners Association. It also ruled that the Homeowner’s

Association was entitled to an award of attorneys’ fees and costs under 10 Del. C. §

348.

(3) On January 10, 2018 counsel for the Homeowners Association submitted

a detailed application seeking $63,045.48 in attorneys’ fees and costs.

(4) On January 11, 2018 the Court of Chancery entered an order requiring

Petrone to apply to the Architectural Review Committee for approval of a driveway

which complied with the Declaration and to install the driveway after approval.

(5) On January 19, 2018, this appeal was filed. When the appeal was filed,

the Court of Chancery had not yet ruled on the Homeowners Associations’

application for attorneys’ fees and costs, and it remains pending in that court.

(6) On July 12, 2018 the Clerk of the Supreme Court issued a notice directing

the Appellant to show cause why this appeal should not be dismissed for his failure

to comply with Supreme Court Rule 42 in taking an appeal from an apparent

interlocutory order.

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 (7) In his response, the Appellant contends that the Court of Chancery’s

December 20, 2017 is a final order. In the alternative, the Appellant requests, if this

appeal is found to be interlocutory, that the appeal be stayed until the Court of

Chancery determines the amount of attorneys’ fees and costs to be awarded.

(8) Absent compliance with Supreme Court Rule 42, this Court is limited to

the review of a trial court’s final judgment.1 An order is deemed final and appealable

when it disposes of all justiciable matters.2 “[A] pending motion for attorneys’ fees

delays the finality of a judgment on the merits,” but “a pending motion for costs

alone does not.”3

(9) We conclude that this appeal must be dismissed as interlocutory. A

motion for costs and attorneys’ fees is pending in the Court of Chancery.

NOW, THEREFORE, IT IS ORDERED that this appeal is DISMISSED. The

filing fees paid by the Appellant shall be applied to any future appeal he files from

a final order entered in this case.

BY THIS COURT:

/s/ James T. Vaughn, Jr.

1
Julian v. State, 440 A.2d 990, 991 (Del. 1982).
2
J.I. Kislak Mort. Corp. v. William Matthews, Builder, Inc., 303 A.2d 648, 650 (Del. 1973).
3
McDaniel v. DaimlerChrysler Corp., 860 A.2d 321, 322 (Del. 2004). See also Emerald
Partners v. Berlin, 811 A.2d 788, 790-91.
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