Emeritus Corporation v. McDonald
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
EMERITUS CORPORATION,
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Defendant Below,
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Appellant,
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v.
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DANIEL J. McDONALD,
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EXECUTOR OF THE ESTATE OF §
JAMES McDONALD,
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Plaintiff Below,
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Appellee.
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No. 524, 2011
Court Below–Superior Court of
the State of Delaware in and for
New Castle County
Submitted: September 28, 2011
Decided:
September 30, 2011
Before STEELE, Chief Justice, HOLLAND and JACOBS, Justices.
ORDER
This 30th day of September 2011, upon consideration of the notice and
supplemental notice of interlocutory appeal, it appears to the Court that:
(1)
On February 24, 2010, plaintiff below/appellee, Daniel J.
McDonald, Executor of the Estate of James McDonald (“McDonald”), filed
a personal injury complaint against defendant below/appellant, Emeritus
Corporation (“Emeritus”). On August 15, 2011, Emeritus filed a motion to
dismiss.
(2)
At a hearing on August 29, 2011, the Superior Court denied
Emeritus’ motion to dismiss “with the understanding that [McDonald] will
file an Amended Complaint and [Emeritus] will have ten business days to
respond.”1 Thereafter, McDonald filed a motion to amend the complaint and
Emeritus filed a response in opposition to the motion to amend.
(3)
On September 20, 2011, Emeritus filed an application asking
the Superior Court to certify its August 29, 2011 denial of the motion to
dismiss. It appears that, at a hearing on September 23, 2011, the Superior
Court granted McDonald’s motion to amend the complaint and denied
Emeritus’ application for certification of the August 29, 2011 denial of the
motion to dismiss. The Superior Court also indicated that a written decision
would follow.
(4)
On September 27, 2011, Emeritus petitioned this Court
pursuant to Supreme Court Rule 42, to accept an interlocutory appeal from
the Superior Court’s August 29, 2011 denial of the motion to dismiss.
Thereafter, Emeritus filed a supplemental notice of interlocutory appeal
submitting the Superior Court’s written decision of September 27, 2011 that
formally denied Emeritus’ motion to dismiss and application for certification
1
See docket at 27, McDonald v. Emeritus Corp., Del. Super., C.A. No. N10C-023-199
(Aug. 29, 2011) (filing of judicial action form).
2
of an interlocutory appeal and granted McDonald’s motion to amend the
complaint.2
(5)
Applications for interlocutory review are addressed to the
sound discretion of this Court and are granted only in exceptional
circumstances. Having examined the Superior Court’s August 29, 2011
bench ruling and September 27, 2011 decision according to the criteria set
forth in Supreme Court Rule 42, we have concluded that exceptional
circumstances meriting interlocutory review do not exist in this case.
NOW, THEREFORE, IT IS HEREBY ORDERED that the
interlocutory appeal is REFUSED.
BY THE COURT:
/s/ Randy J. Holland
Justice
2
See id. at 39, (Sep. 27, 2011) (filing of decision on the motion to amend complaint,
motion to dismiss and application for certification of an interlocutory appeal).
3
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