IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

)
THE STATE OF DELAWARE, )
)
Plaintiff )
) C.A. No. N18C-01-144 RRC
v. )
)
CINDY GONZALEZ, )
)
Defendant. )

Submitted: August 2, 2018
Decided: August 6, 2018

On Defendant’s Application for Certification of Interlocutory Appeal.
GRANTED.

ORDER

Oliver J. Cleary, Esquire, Deputy Attomey General, Department of Justice,
Wilmington, Delaware, Attomey for Plaintiff.

John S. Whitelaw, Esquire, Kate Sell, Esquire, Community Legal Aid Society, Inc.,
Wilmington, Delaware, Attomey for Defendants.

COOCH, R.J.

This 6th day of August 2018, upon consideration of Defendant’s Application
for Certification of Interlocutory Appeal, it appears to the Court that:

1. On January 12, 2018, the State of Delaware (“Plaintiff”) filed a complaint
against Cindy Gonzalez (“Defendant”). In the complaint, Plaintiff alleged that
Defendant “fraudulently obtain[ed] government benefits in violation of
Delaware common law and the Delaware False Claims and Reporting Acts, 6
Del. C. §§ 1201 et. seq. (“DFCRA”).l On February 23, 2018, Defendant filed

 

l Pl.’s Compl. at 1.

her Answer to Plaintiff’s Complaint and acknowledged all allegations against
her; however, she asserted an affirmative defense of federal implied conflict-
preemption and alleged that Plaintiffs claim is “precluded by the provisions
of the Food Stamp Act, 7 U.S.C. § 2011 et seq.”2 On March l, 2018, Plaintiff
filed a Motion for Judgment on the Pleadings. On July 9, 2018 a hearing on
the Motion for Judgment on the Pleadings was held. On June 19, 2018, this
Court granted the Plaintiff"s Motion for Judgment on the Pleadings after
finding no material issues of fact in dispute.3 Pursuant to 10 Del. C. § 512 and
Superior Court Rule 132, this Court referred this matter to a Comrnissioner of
the Delaware Superior Court for “a hearing to determine the amount of all
fees and/or costs owed by Defendant pursuant to 6 Del. C. § 1201(a).”4 On
July 27, 2018, Defendant filed the instant “Application to the Trial Court for
Certification of lnterlocutory Appeal.”5 On August 2, 2018, Plaintiff “[took]
no position on this Application.”6

2. Delaware Supreme Court Rule 42 sets out the criteria to be applied when a
court is faced with certification and acceptance of interlocutory appeals. A
party seeking certification and acceptance of an interlocutory appeal must
adhere to the strict requirements set forth in 42(b). Specifically, the rule states:

(b) Criteria to be applied in determining certification and acceptance of
interlocutory appeals. _-
(i) No interlocutory appeal will be certified by the trial court or
accepted by this Court unless the order of the trial court decides a
substantial issue of material importance that merits appellate review
before a final judgment.
(ii) lnterlocutory appeals should be exceptional, not routine, because they
disrupt the normal procession of litigation, cause delay, and can threaten to
exhaust scarce party and judicial resources. Therefore, parties should only
ask for the right to seek interlocutory review if they believe in good faith
that there are substantial benefits that will outweigh the certain costs that
accompany an interlocutory appeal.
(iii) Any application for interlocutory review shall contain a statement that
the applicant and the applicant’s counsel have determined in good faith that
the application meets the criteria set forth in this paragraph. Consistent with

 

2 Def.’s Answ. at 14; see also Pl.’s Mot. For J. on the Pleadings at 2-3.
3 state v. Cindy Gonzaiez, C.A. No. NisC-01-144 RRC ar 5.

4 Id. at 8.

5 Def.’s Application for Certification of lnterlocutory Appeal at 1.

6 Pl.’s Letter, dated August 2, 2018, D.I. 15.

the principles set forth in subparagraph (ii) of this paragraph, in deciding
whether to certify an interlocutory appeal, the trial court should consider
whether:

3. The Supreme Court of Delaware will accept an interlocutory appeal if the
party seeking such appeal adheres to the strict requirements set forth above.8
“An aggrieved party can appeal to [the Delaware Supreme Court] only after a
final judgment is entered by the trial court.”9 “A final judgment is generally
defined as one which determines the merits of the controversy or the rights of
the parties and leaves nothing for future determination or consideration
“The purpose of not permitting appeals [until after a final judgment is
rendered] is to prevent piecemeal litigation and to eliminate the delays which

(A) The interlocutory order involves a question of law resolved
for the first time in this State;

(B) T he decisions of the trial courts are conflicting upon the question
of law;

(C) The question of law relates to the constitutionality, construction,
or application of a statute of this State, which has not been, but
should be, settled by this Court in advance of an appeal from a final
order;

(D) The interlocutory order has sustained the controverted
jurisdiction of the trial court;

(E) The interlocutory order has reversed or set aside a prior decision
of the trial court, a jury, or an administrative agency from which an
appeal was taken to the trial court which had decided a significant
issue and a review of the interlocutory order may terminate the
litigation, substantially reduce further litigation, or otherwise serve
considerations of justice;

(F) The interlocutory order has vacated or opened a judgment of the
trial court;

(G) Review of the interlocutory order may terminate the
litigation; or

(H) Review of the interlocutory order may serve considerations of
justice.

After considering these factors and its own assessment of the most
efficient and just schedule to resolve the case, the trial court should
identify whether and why the likely benefits of interlocutory review
outweigh the probable costs, such that interlocutory review is in the
interests of justice. If the balance is uncertain, the trial court should
refuse to certify the interlocutory appeal.7

 

7 Supr. Ct. R. 42(b).
8 See Ia’.

9 Tyson Foods, Inc. v. Aetos Corp., 809 A.2d 575, 579 (Del. 2002).
10 Showell Poullry, lnc. v. Delmarva Poultry Corp., 146 A.2d 794, 796 (Del. 1958).

3

might be occasioned by so many interlocutory or interim appeals.”11 The
Delaware Supreme Court has stated that “courts should generally deny
requests for certification of appeals on interlocutory orders ‘directed to the
pleadings’ unless ‘such rulings will be so substantively affect the merits a case
or change the status of the parties[.]”12 “The trial court should not certify the
interlocutory appeal where courts have not settled an issue affecting the
litigation with finality.”13 “The test is whether such judgment or decree
determines the substantial merits of the controversy and the material issues
litigated or necessarily involved in the litigation.”14

. In her Application for the Certification of an lnterlocutory Appeal, Defendant
states that [1] “[the trial court order meets the standard of review for
certification of an interlocutory appeal]”15 and that [2] “[the Court should
certify this matter for an interlocutory appeal]”16 because [2.1] “[t]he decision
of the trial court involves a question of law resolved for the first time
anywhere in the United States[,]”17 [2.2] “[r]eview of the interlocutory order
may terminate litigation”18 and [2.3] “[r]eview of the interlocutory order will
serve considerations of justice[.]”19

. The threshold standard for an Application for Certification of lnterlocutory
Appeal under Rule 42 has been satisfied as the July 19, 2018 Memorandum
Opinion determined the substantial merits of the controversy,2° the finality of
the July 19, 2018 Memorandum Opinion,21 “the interlocutory order involves
a question of law resolved for the first time in this State[,]”22 and “[r]eview of
the interlocutory order may terminate litigation[.]”23

 

11 Id. at 795.

12 In re Novell, Inc. Shareholder Litigatl`on, Pl. ’s Mem. OfLaw in Opp ’n., 2013 WL 395362
(Del. Ch. Jan. 28, 2013) (quoting Levinson v. Conlon, 385 A.2d 717, 720 (Del. 1978)).

13 Ia'.

14 Id. at 796.

15 Def.’s Application for Certification of lnterlocutory Appeal at 4.

16 Id.

17 Id. at 5.

18 Id.

19 Id. at 6.

20 Supr. Ct. Rule 42(b)(i); see also In re Novell, Inc., 2013 WL 395362 at 13 (quoting Levinson,
at 385 A.2d at 720 (Del. 1978)).

21 In re Novell, Inc., 2013 WL 395362 at 13 (quoting Levinson, at 385 A.2d at 720 (Del. 1978)).
22 Supr. Ct. Rule 42(b)(iii)(A).

23 Supr. Ct. Rule 42(b)(iii)(G).

6. The substantial merits of this controversy have been determined by this
Court.24 While damages have yet to be assessed by a Commissioner of this
Court, pursuant to 10 Del. C. § 512 and Superior Court Rule 132, the
Commissioner’s assessment of damages and/or costs will not affect the final
judgment this Court rendered on June 19, 2018,

7. This pre-emption claim involves an issue of apparent first impression in this
State. Pursuant to Superior Court Rule 42(b)(iii)(A), this Court agrees that this
matter “involves a question of law resolved for the first time in this State.” 25

8. This Court’s July 19, 2018 Memorandum Opinion has “changed the status of
the parties”26 and “[r]eview of the interlocutory order may terminate
litigation”27 if the Delaware Supreme Court should reverse this Court’s July
19, 2018 Memorandum C)pinion.

9. Pursuant to Supreme Court Rule 42(b), this Court believes the likely benefits
of interlocutory review outweigh the probable costs here. Although the
Commissioner’s task of assessing damages will be postponed until further
review by the Delaware Supreme Court, any reversal of the July 19, 2018
Memorandum Opinion would eliminate the Commissioner’s task and make
such duty moot in this matter. Additionally, any reversal would “eliminate
need for the lengthy process of calculating damages”28 and eliminate the need
to determine how many counts are truly at issue for purposes for damages.
“The result in this case [may] lay the framework for future actions by the State
in these cases.” Notably, the Plaintiff has “no position on this Application.”29

10. Accordingly, Defendant’s Application for Certification of lnterlocutory
Appeal is GRANTED.

1T1s so oRDEREi). O.\,:L j {2 5,,,,.(,/\
69 ¢

Richard R. Cooch, J.

 

cc: Prothonotary

 

24 In re Novell, lnc., 2013 WL 395362 at 13 (quoting Levinson, at 385 A.2d at 720 (Del. 1978)).
25 supr. Ct. R. 42(b)(iii)(A).

26 In re Novell, Inc., 2013 WL 395362 at 13 (quoting Levz`nson, at 385 A.2d at 720 (Del. 1978)).
27 supr. Ct. Ruie 42(b)(iii)(G).

28 Def.’s Application for Certification of lnterlocutory Appeal at 6.

29 Pl.’s Letter, dated August 2, 2018, D.l. 15.

