     IN THE SUPREME COURT OF THE STATE OF DELAWARE

  JUAN TORRES,                            §
                                          §   No. 460, 2017
        Appellant Below-                  §
        Appellant,                        §
                                          §   Court Below—Superior Court
        v.                                §   of the State of Delaware,
                                          §
  REYBOLD HOMES, INC.,                    §   C.A. No. N17A-02-012
                                          §
        Appellee Below-                   §
        Appellee.                         §

                          Submitted: March 9, 2018
                           Decided: May 15, 2018

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

                                 ORDER

      This 15th day of May 2018, upon consideration of the parties’ briefs and

the record below, it appears to the Court that:

      (1)    The appellant, Juan Torres, filed this appeal from a Superior

Court decision dated October 11, 2017, dismissing his appeal from a decision

of the Industrial Accident Board (“the Board”) for failure to prosecute. After

careful consideration, we affirm the Superior Court’s judgment.

      (2)    In September 2016, Torres, through counsel, filed a petition to

determine disfigurement, seeking additional compensation for disfigurement

to his knee caused by an industrial accident for which he previously had been
awarded compensation for disability and disfigurement.1 Following a hearing

on January 12, 2017, the Board awarded Torres a total of twenty-eight weeks

of additional compensation for disfigurement, including scarring and altered

gait. Torres, acting pro se, appealed that decision to the Superior Court on

February 28, 2017.

         (3)    In his single-page opening brief in the Superior Court, Torres

requested additional compensation for his total disability. In its answering

brief, Reybold Homes (“the Employer”) asserted, among other things, that the

issue of Torres’ total disability was not presented to the Board in the first

instance. The Employer also argued that, on March 7, 2017, Torres signed an

agreement with the Employer accepting $14,242.20 in satisfaction of the

Board’s judgment as to additional compensation due for disfigurement and

deposited the check.         Torres did not file a reply brief and received a

delinquency notice.

         (4)    On September 25, 2017, the Superior Court directed Torres to

file a response explaining why his appeal was not moot in light of his signed

agreement accepting the Employer’s full payment of the IAB’s award and his

signed receipt of payment. The Superior Court further directed Torres to

explain, alternatively, why the appeal should not be dismissed for his failure


1
    See Torres v. Reybold Homes, Inc., 2014 WL 5822971 (Del. Nov. 6, 2014).


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to file a reply addressing the points made in the Employer’s answering brief.

Torres failed to respond by the October 8th due date. On October 11, 2017,

the Superior Court dismissed Torres’ appeal for failure to prosecute. This

appeal followed.

          (5)     Torres’ opening brief on appeal does not address the Superior

Court’s dismissal of his appeal for failure to prosecute. Instead, he asserts that

his current disability benefits are not enough to cover his monthly expenses.

He requests that the Court increase his total disability benefits.

          (6)     This Court will not consider issues on appeal that were not fairly

raised and presented to the trial court for review.2 The petition Torres filed

with the Board only raised an issue concerning Torres’ compensation for

disfigurement to his knee. There was no request for additional compensation

due to his total disability. This issue was not fairly presented to the Board or

the Superior Court. Accordingly, we will not consider it here.

          (7)     Furthermore, we find no error in the Superior Court’s dismissal

of Torres’ appeal for failure to prosecute. The Superior Court directed Torres

to show cause why his appeal was not made moot by his signed agreement

and receipt of payment of the full amount of the Board’s award in satisfaction




2
    Del. Supr. Ct. R. 8.


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of the judgment. Torres failed to respond to the court’s directive. Dismissal

was entirely appropriate.3

          NOW, THEREFORE, IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                      BY THE COURT:

                                      /s/ Karen L. Valihura
                                      Justice




3
    Super. Ct. Civ. R. 72(i).


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