GANS v. MDR LIQUIDATING CORPORATION

Full title: LEO GANS and JAMES F. BERNARD, Plaintiffs Below-Appellants, v. MDR…

Court: Supreme Court of Delaware

Date published: Dec 14, 1999

744 A.2d 987 (Del. 1999)

Opinion

No. 203, 1999.

Submitted: November 19, 1999.

Decided: December 14, 1999.

Court Below — Court of Chancery of the State of Delaware, in and for New Castle County, C.A. No. 9630-NC.

APPEAL DISMISSED.

Before VEASEY, Chief Justice, WALSH, and HOLLAND, Justices.

JOSEPH T. WALSH, Justice

ORDER

This 14^th day of December 1999, upon consideration of the briefs of the parties, the appellants' motion to withdraw the appeal, and the appellees' response thereto, it appears to the Court that:

(1) The plaintiffs below filed this appeal from a decision of the Court of Chancery dated April 13, 1999. The April 13^th order implemented a plan, Plan C, to distribute assets to the plaintiffs by the Liquidating Trustee of the MDR Liquidating Trust. After the Court of Chancery issued its decision, the defendants apparently took the position that the Court of Chancery's adoption of Plan C eliminated the plaintiffs' right to receive life insurance and cost of living adjustment (COLA) benefits. The Court of Chancery previously had decided in 1995 that the plaintiffs were entitled to life insurance benefits of $100,000 each.

(2) The plaintiffs filed a motion, which the defendants opposed, requesting clarification of the Court of Chancery's April 13^th order. Before the Court of Chancery ruled on the motion for clarification, the plaintiffs filed a notice of appeal with this Court on May 10, 1999. Thereafter, due to the pending appeal, the Court of Chancery held that it no longer had jurisdiction to rule on the motion for clarification. This Court later remanded the matter to the Court of Chancery for clarification of its April 13, 1999 decision. On remand, the Court of Chancery held that its April 13^th decision contemplated continued funding of the previous life insurance policies and entitlements.

(3) After the matter was returned from remand, we requested the parties to file supplemental memoranda addressing the Court of Chancery's decision on remand. The plaintiffs contend that the issues that they have raised on appeal have been rendered moot because the Court of Chancery unequivocally stated that its April 13^th decision contemplated continued funding of the plaintiffs' life insurance policies and COLA entitlements.

(4) The defendants appear to concede that there is no controversy with respect to COLA entitlements. The defendants contend, however, that a real controversy continues to exist over whether the plaintiffs are entitled to $100,000 each in life insurance, as the plaintiffs contend, or whether the plaintiffs are entitled to only $50,000 each.

(5) We have considered the parties' respective positions carefully. In light of the Court of Chancery's decision on remand, it is clear that the issues raised by the plaintiffs on appeal are moot. To the extent that the defendants claim a justiciable controversy still exists over the amount of the life insurance benefit, such a claim is not properly before us in this appeal. The Court of Chancery ruled on March 25, 1995 that the plaintiffs were entitled to $100,000 each in life insurance benefits. After the Court of Chancery issued its final order in the case on April 13, 1999, the defendants did not file a notice of appeal challenging the March 25, 1995 ruling. Instead, the defendants took the position that the Court of Chancery's April 13, 1999 decision eliminated the plaintiffs' life insurance benefit altogether. The defendants were aware that both the plaintiffs and the Liquidating Trustee disagreed with their interpretation of the trial court's ruling, yet the defendants did not appeal from the Court of Chancery's final order nor did they file a notice of cross-appeal. The decision not to appeal or cross-appeal was made at the defendants' own peril. It having been determined that the Court of Chancery's April 13^th order did not alter its earlier ruling entitling the plaintiffs to $100,000 in life insurance benefits, the defendants cannot now assert an argument that would modify the April 13^th ruling in the absence of a cross-appeal.^_ Accordingly, this Court lacks jurisdiction to consider the defendants' claim.

_ See In re Sante Fe Pacific Corp., Del. Supr., 669 A.2d 59, 67 (1995); Universal Unerwriters Ins. Co. v. The Travelers Ins. Co., Del. Supr., 669 A.2d 45, 49 (1995).

NOW, THEREFORE, IT IS ORDERED that the motion to withdraw this appeal is GRANTED. This is appeal is hereby DISMISSED.