Burhenn v. Celotex Asbestos Settlement Trust

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JOYCE BURHENN, Individually §
and as Personal Representative of § No. 434, 2024
the Estate of Leonard D. Burhenn, §
§ Court Below–Superior Court
Plaintiff Below, § of the State of Delaware
Appellant, §
§ C.A. No. N23C-12-040
v. §
§
CELOTEX ASBESTOS §
SETTLEMENT TRUST, §
§
Defendant Below, §
Appellee. §

Submitted: October 17, 2024
Decided: October 25, 2024

Before TRAYNOR, LEGROW, and GRIFFITHS, Justices.

ORDER

After consideration of the notice to show cause and the appellant’s response,

it appears to the Court that:

(1) On October 8, 2024, counsel for the appellant, Joyce Burhenn,

Individually and as Personal Representative of the Estate of Leonard D. Burhenn,

filed a notice of appeal from the Superior Court’s September 6, 2024 order granting

the defendant-below/appellee’s motion to dismiss Burhenn’s complaint. Under

Supreme Court Rules 6 and 10, a timely notice of appeal was due on or before
October 7, 2024. The Senior Court Clerk therefore issued a notice directing Burhenn

to show cause why this appeal should not be dismissed as untimely filed.

(2) In response to the notice to show cause, counsel for Burhenn advised

the Court that he erroneously noted the date of the appeal deadline as October 8—

instead of October 7—on his calendar.

(3) This Court lacks jurisdiction to consider an appeal when the notice of

appeal is not filed in a timely matter, unless the appellant can demonstrate that her

failure to file a timely notice of appeal is attributable to court-related personnel.1

The jurisdictional defect created by the untimely filing of a notice of appeal cannot

be excused “in the absence of unusual circumstances [that] are not attributable to the

appellant or the appellant’s attorney.”2

(4) The failure to file a timely appeal in this case is not attributable to court-

related personnel. Consequently, this case does not fall within the exception to the

general rule that mandates the timely filing of a notice of appeal, and this appeal

must be dismissed.

1
Bey v. State, 402 A.2d 362, 363 (Del. 1979).
2
Riggs v. Riggs, 539 A.2d 163, 164 (Del. 1988).
2
NOW, THEREFORE, IT IS HEREBY ORDERED that the appeal is

DISMISSED under Supreme Court Rule 29(b).

BY THE COURT:

/s/ Abigail M. LeGrow
Justice

3