IN THE SUPREME COURT OF TI-HE STATE OF DELAWARE

PATRICK SWIER, M.D. and §
PATRICK SWIER, M.D., P.A., § No. 77, 2016
§
Defendants Below, § Court Below--Superior Court
Appellants, § of the State of Delaware
§
v. § C.A. No. S12C-07-004
§
PATRICIA A. McLEOD, §
§
Plaintiff Below, §
Appellee. §

Submitted: March 11, 2016
Decided: May 17, 2016

Before STRINE, Chief Justice; HOLLAND and VAL]HURA, Justices.
0 R D E R

This 17th day of May 2016, it appears to the Court that:

(1) ln this appeal from the Superior Court’s denial of a motion for new trial
in a medical malpractice case, the Clerk issued a notice directing the
defendants/appellants to show cause why the appeal should not be dismissed as
premature because, at the time the appeal was filed, the Superior Court had not yet
ruled on the plaintiffYappellee’s motion for costs. For the reasons below, the Court

concludes that the appeal should be dismissed as in`terlocutory.

(2) Following the jury verdict for the plaintifUappellee, Patricia A.

McLeod ("McLeod"), McLeod filed a timely "Bill of Costs" (hereinafter "motion\

for costs") seeking an award of expert witness fees in the amount of $26,899.74,
court costs of $l,l32.00, pre-judgment interest in the amount of $923,324.04, and
post-judgment interest at the legal rate of 5.75 percent. After McLeod filed the
motion for costs, the defendants/appellants, Patrick Swier, M.D. and Patrick Swier,
M.D., P.A. ("Swier"), filed a timely motion for new trial. Swier filed this appeal
from the Superior Court’s denial of the motion for new trial. At the time the appeal
was filed, McLeod’s motion for costs was still pending in the Superior Court.

(3) After the appeal was filed, the Clerk issued a notice directing Swier to
show cause why the appeal should not be dismissed for failure to comply with
Supreme Court Rule 42 when filing an appeal from an apparent interlocutory order.
Absent compliance with Rule 42, this Court has no jurisdiction to consider an
interlocutory appeal.l

(4) In response to the notice to show cause, Swier contends that the
Superior Court’s opinion denying the motion for new trial is fmal and appealable,
and that McLeod’s motion for costs did not affect the fmality of that judgment. ln
answer to Swier’ s response, McLeod contends that the $923,324.04 in pre-judgment
interest she is entitled to in this case is an essential component of the f1naljudgment,

and that the undecided motion for costs renders the current judgment interlocutory.

l.fulz'an v. State, 440 A.Zd 990 (Del. 1982).

;.y‘;"¥*§!°

(5) Having carefully considered the parties’ positions and the Superior
Court record, the Court concludes that the appeal is interlocutory. The Superior
Court’s action on the pending motion for costs will require an exercise of judicial
discretion in deciding whether, and in what amount, to award pre-judgment interest
to McLeod.

(6) A judgment is final for purposes of appeal when it disposes of all
justiciable matters.z In this case, the Superior Court’s opinion denying Swier’s
motion for new trial was not the fmal judgment because it did not rule on McLeod’s
pending motion for costs.3

NOW, THEREFORE, IT IS ORDERED that this appeal is DISMISSED
under Supreme Court Rules 29(b) and 42. The filing fee paid in conjunction with
the appeal shall be transferred to any later appeal filed by Swier from the Superior

Court’s final judgment.

BY THE COURT:

Justice §

2 .I.I. Kz'slak Mortg. Corp. v. Wz`lliam Matthews, Buz'lder, Inc., 303 A.Zd 648, 650 (Del. 1973).

3 See Delta Eta Corp. v. Unz`versily of Delaware, 2009 WL 3842040 (Del. Nov. l7, 2009) (citing
Stroud v. Mz'lliken Enterprz'ses, Inc., 552 A.2d 476, 480, 482 (Del. 1989)).

3

