O R D E R
After consideration of the parties' briefs and the record on appeal, it appears to the Court that:1
1. The parties are engaged in an insurance coverage dispute regarding a policy with a forum selection clause sending disputes to the Court of Chancery and, if it declined jurisdiction, the District of Delaware.2The insured filed in a different state court, inspiring the insurer to seek an antisuit injunction from the Court of Chancery.
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2. The parties joined issue at the preliminary injunction stage on the Court of Chancery's subject matter jurisdiction and the availability of a transfer to the Superior Court under 10 Del. C. § 1902.3A nominal defendant sought an injunction enforcing the forum selection clause, and argued the Court of Chancery "may"
decline jurisdiction "and transfer the case to Superior Court under" Section 1902.4 In opposing that motion, the appellee contended the forum selection clause
"expressly forecloses transfer to Superior Court."5The appellant replied with the argument that "the forum selection clause does not divest this Court of statutory authority to transfer the matter to Superior Court."6The appellant did not argue Section 1902's plain text required the opportunity for transfer.7
3. At the February 13, 2026 preliminary injunction hearing, the Court of Chancery denied the antisuit injunction, explaining the motion failed on the merits
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prong because the Court of Chancery lacked subject matter jurisdiction over the underlying insurance dispute.8The trial court also offered its view that dismissal was "not a route to transfer under Section 1902" because the forum selection clause specified the District of Delaware, not Superior Court, as the "fallback jurisdiction."9 In denying the motion for preliminary injunction, the Vice Chancellor concluded the case had to be dismissed, but gave the parties the option to brief a motion to dismiss specifically to avoid an appellate argument that the trial court had deprived the plaintiff of due process.10The Vice Chancellor asked the parties to inform the court of their choice early in the week of February 16.11
4. The parties could not agree on whether to conduct another round of briefing before dismissal, as reflected in several letters.12The plaintiff expressed it was attempting to preserve its appeal rights and forego additional briefing, while
"agreeing that insurers will not raise the prejudice argument" the trial court had predicted.13The plaintiff specifically sought a stipulation that it could appeal "the alleged right to transfer to Superior Court pursuant to Section 1902," which the
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defendant rejected as an "entirely new argument[]."14The defendant asked the plaintiff if it wanted to brief a motion to dismiss, and the plaintiff did not respond.15
5. Mid-afternoon on Friday, February 20, the defendant asked the trial court to order the plaintiff to elect briefing or dismissal by Monday, February 23.16 The plaintiff still did not respond. After noon on February 23, the Court of Chancery entered an order dismissing the case for lack of subject matter jurisdiction, without any comment on Section 1902. 17The trial court observed the parties "were jockeying for advantage in the form of ancillary terms."18The plaintiff did not file any notice of election of transfer before Section 1902's deadline.
6. The plaintiff appeals the Court of Chancery's order of dismissal on two grounds. First, it argues for the first time that Section 1902 mandates the plaintiff have the opportunity to transfer its case to the Superior Court; put differently, that Section 1902 grants a right to transfer. And second, it asserts the trial court denied the plaintiff due process by prohibiting transfer without providing the opportunity to be heard.
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7. Under Delaware Supreme Court Rule 8, "[o]nly questions fairly presented to the trial court may be presented for review."19Rule 8 offers "an escape hatch that allows the Court to review an unpreserved argument 'when the interests of justice so require.'"20That exception is not available for waived issues.21An issue is unreviewable as "waived" when a party "knowingly and intelligently"
waives a right.22A "conscious decision" to refrain from pursuing a position before the trial court "as a tactical matter is a waiver that will negate plain error appellate review."23By contrast, when a party forfeits a right, as by failing to timely assert it, this Court reviews it for plain error when justice requires.24The appellee has the
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burden of proving an issue was waived, and the Court will "indulge in every reasonable presumption against waiver."25
8. The appellant knowingly, intelligently, and tactically waived the opportunity to argue to the trial court that Section 1902 mandates transfer. The parties joined issue on subject matter jurisdiction on the motion for preliminary injunction, and the appellant argued only that Section 1902 granted the trial court authority to transfer the case notwithstanding the forum selection clause.26After the trial court rejected that argument, it generously offered the parties the opportunity to brief a motion to dismiss.27The appellant did not pursue that opportunity—even as it contemplated appealing on the grounds that Section 1902 mandated transfer.28The appellant's series of decisions to make one Section 1902 argument but not another, of which it was aware, amounts to waiver that forecloses appellate review.
9. The appellant's arguments to the contrary are not persuasive. The appellant argues its request that the appellee stipulate the appellant could appeal its mandatory transfer interpretation shows the appellant did not waive that argument.29
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This argument shows appellant was aware of the argument, but chose not to present it to the trial court: a knowing waiver. The appellant also argues its mandatory transfer position was "fairly encompassed by its position below" and that the distinction between permissive and mandatory transfer is "pure legal refinement."30 But the statute cannot be simultaneously mandatory and permissive. Finally, the appellant argues it would have been futile to raise its mandatory transfer argument in another round of briefing, as the trial court had made up its mind. The point is that accepting the trial court's offer would have preserved the issue for appeal.
10. As to the second question presented, the appellant's choices below foreclose its due process complaint on appeal. Procedural due process requires
"meaningful notice and an opportunity to be heard." 31But parties may waive procedural due process rights just like any other right.32When a party fails to raise an inadequate notice issue below, it effectively waives a due process argument on
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appeal.33A notice claim is also foreclosed when earlier proceedings raised the underlying issue.34
11. The appellant had sufficient notice and opportunity to be heard on its Section 1902 argument: as the Court of Chancery noted, the appellant could address the statutory transfer issue before the preliminary injunction hearing in its opening brief and its reply brief.35The appellant waived any due process argument by failing to object at the preliminary injunction hearing. Then, after the trial court denied the preliminary injunction and indicated it favored dismissal without leave to transfer, the appellant failed to avail itself of the express invitation to enjoy additional due process by briefing dismissal.36Instead, it jockeyed for advantage on a proposed stipulation that it would not appeal a due process violation.37The appellant had three
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chances to present its Section 1902 argument, and two chances to make a due process argument, but chose to forego them all. It cannot be heard to complain it did not receive due process.
NOW THEREFORE, IT IS ORDERED that the judgment of the Court of Chancery is AFFIRMED.
BY THE COURT:
/s/ Morgan T. Zurn Justice