Bayer-Highland & Family Partnership, Ltd. v. RF Capital Holdings, LLC ( 2018 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
BAYER-HIGHLAND FAMILY §
PARTNERSHIP, LTD, 2002 §
SILVERSTEIN FAMILY § No. 441, 2018
PARTNERSHIP, LTD., JEFFREY §
A. BAYER and DAVID L. § Court Below—Court of Chancery
SILVERSTEIN, § of the State of Delaware
§
Plaintiffs and Counterclaim § C.A. No. 2018-0206
Defendants Below, §
Appellants, §
§
v. §
§
RF CAPITAL HOLDINGS, LLC, a §
Delaware LLC, f/k/a §
ROTENSTREICH FAMILY §
PARTNERSHIP, LTD., §
§
Defendant and Counterclaim §
Plaintiff Below, §
Appellee. §
Submitted: September 11, 2018
Decided: September 13, 2018
Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
Upon consideration of the notice of interlocutory appeal and the supplemental
notice of interlocutory appeal, it appears to the Court that:
(1) The plaintiffs and counterclaim defendants below-appellants have
petitioned this Court under Supreme Court Rule 42 to accept an interlocutory order
from a Court of Chancery order, dated July 26, 2018, denying their motion to dismiss
the defendant and counterclaim plaintiff below-appellee’s breach of fiduciary duty
claim.1 On August 27, 2018, the appellants filed an application for certification to
take an interlocutory appeal. The appellees opposed the application. On September
10, 2018, the Court of Chancery denied the application, finding that it was untimely
and that the appellants had failed to demonstrate good cause to excuse their untimely
application. The Court of Chancery held that the parties’ involvement in settlement
discussions did not constitute good cause to excuse the untimely application.
(2) Having considered the Court of Chancery’s September 10, 2018 order,
the Court agrees with the denial of the application for certification. The application,
which was filed on August 27, 2018, was untimely because it was filed more than
ten days after the Court of Chancery’s July 26, 2018 order.2 The appellants did not
establish good cause to excuse their untimely application.
1
On July 26, 2018, the Court of Chancery also granted in part the appellee’s motion for judgment
on the pleadings as to the invalidity of the appellants’ actions relating to a merger. The Court of
Chancery granted the parties’ stipulation and order for entry of a final judgment under court of
Chancery Rule 54(b) as to this ruling.
2
Supr. Ct. R. 42(c)(i) (“Such application shall be served and filed within 10 days of the entry of
the order from which the appeal is sought or such longer time as the trial court, in its discretion,
may order for good cause shown.”).
2
NOW, THEREFORE, IT IS HEREBY ORDERED that the interlocutory
appeal is REFUSED.
BY THE COURT:
/s/ Karen L. Valihura
Justice
3