Twin Willows, LLC v. Lewis Pritzkur, Trustee for Patricia E. Gibbs, Dawn R. Ellery, Gwen D. Rinaldi, Patricia E. Gibbs, and Robin Silverman ( 2022 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
TWIN WILLOWS, LLC, )
)
Petitioner, )
)
v. ) C.A. No. 2020-0199-PWG
)
LEWIS PRITZKUR, TRUSTEE )
FOR PATRICIA E. GIBBS, )
DAWN R. ELLERY, GWEN )
D. RINALDI, and ROBIN )
SILVERMAN, )
)
Respondents. )
MASTER’S REPORT
Date Submitted: April 25, 2022
Final Report: August 2, 2022
Mark Billion, Esq., BILLION LAW, Dover, Delaware; Peter K. Shaeffer, Jr., Esq.,
AVENUE LAW, Dover, Delaware, Attorneys for Petitioner
Jeffrey M. Weiner, Esq., LAW OFFICES OF JEFFREY M. WEINER, Wilmington,
Delaware, Attorney for Respondent Lewis Pritzkur, Trustee for Patricia E. Gibbs,
Dawn R. Ellery, Gwen D. Rinaldi, and Robin Silverman
Robert A. Penza, Esq., Christina B. Vavala, Esq., POLSINELLI PC, Wilmington,
Delaware, Attorney for Dawn R. Ellery, Gwen D. Rinaldi, and Robin Silverman
Patricia E. Gibbs, Smyrna, Delaware, Pro Se
GRIFFIN, M.
Pending before me is a complaint in which a buyer seeks an extension of time
to complete a land sale agreement, with a “time is of the essence” clause, and specific
performance of that agreement. At issue is 81 acres outside of Smyrna, Delaware,
which is being sold by a partition trustee appointed by the Court to sell the property
for the disputing co-tenants. Buyer alleges that seller’s misconduct prevented it from
performing its obligations under the agreement. After trial, I conclude that the
evidence does not show seller’s or co-tenants’ actions prevented buyer from
fulfilling its obligations under the agreement, and I recommend that the Court enter
judgment in favor of seller. This is a final report.
I. FACTUAL BACKGROUND1
A. Introduction
At the heart of this matter is a petition to partition approximately 81.9 acres
located at 3431 South Dupont Boulevard, Smyrna, Delaware (“Property”), which
was filed by Dawn Ellery, Gwen Rinaldi, and Robin Silverman (collectively,
“Lawrence Respondents”), who together own a 50% interest in the Property, against
Patricia Gibbs (“Gibbs”), the other 50% owner of the Property, in 2007.2 On
February 25, 2008, the Court appointed Lewis Pritzkur (“Pritzkur” or “Seller”) as
1
I refer to the transcript of the trial that occurred on March 23, 2022 and March 24, 2022
as “Trial Tr.,” and to joint trial exhibits as “JX.” I refer to the transcript of the December
15, 2020 hearing on Plaintiff’s Motion for Default Judgment as (“MDJ Tr.”).
2
Docket Item (“D.I.”) 1, ¶¶ 2, 3, 5.
partition trustee over the property and ordered that the Property be sold by private
sale with the Court’s approval.3 There were difficulties selling the Property but,
eventually, an agreement of sale for the Property (“Agreement”) between Pritzkur
and JMW Investments LLC (“JMW”) was signed on September 27, 2016.4 The
Agreement was approved by the Court on November 14, 2016 and Pritzkur began
providing quarterly status updates to the Court.5
B. The Agreement
The Agreement provided buyer with a 120 day due diligence period (“Due
Diligence Period”) to evaluate the Property, which began running on the date of
court approval.6 At the end of the Due Diligence Period buyer could elect to
terminate the Agreement and recover the deposit.7 The Due Diligence Period ended
on March 14, 2017. Following the Due Diligence Period, buyer had 24 months
(“Permitting Period”) to use “good faith, diligent efforts” “to apply for and obtain
all necessary zoning, subdivision, environmental, local, state and federal approvals
[(“Approvals”)] needed for [its] intended development of the Property.”8 Seller had
3
Pritzkur v. Ellery, C.A. No. 12820-MG (Del. Ch.), D.I. 1, ¶ 14; see also See Ellery v.
Gibbs, C.M. No. 2521-K (Del. Ch.). I take judicial notice of these filings. D.R.E. 201.
4
See D.I. 5, ¶ 6; JX02 [hereinafter “Agreement”]; JX06.
5
JX06; see also Pritzkur v. Ellery, C.A. No. 12820-MG (Del. Ch.), D.I. 18.
6
Agreement, art. 3(a).
7
Id., art. 2(b).
8
Id., art. 3(b).
2
to permit buyer to access the Property during the Due Diligence and Permitting
Periods, if buyer met certain conditions including “providing Seller not less than
seventy-two (72) hours’ notice of each intended entry onto the Property”(“Notice
Condition”).9 The Agreement gave buyer the option to extend the Permitting Period
for two additional periods of six months each, for an extension fee.10 If, after using
good faith, diligent efforts, buyer was unable to obtain the Approvals, it could either
waive the Approvals and proceed to settlement or terminate the Agreement.11
Closing was to occur thirty days following the “outside date” (the earlier of buyer’s
receipt of the Approvals or the end of the Permitting Period), with buyer delivering
the purchase price at settlement.12 The Agreement has a time is of the essence clause,
and buyer’s sole remedies for seller’s failure to perform any of the terms of
conditions of the Agreement is to either sue for specific performance or terminate
the Agreement and receive back the deposit and extension fees.13
C. Performance Under the Agreement
On March 14, 2017, JMW assigned its interest in the Agreement to Petitioner
Twin Willows, LLC (“Twin Willows” or “Buyer”), and Pritzkur approved the
9
Id., art. 3(a).
10
Id., art. 3(b).
11
Id., art. 3(b).
12
Id., ¶ 4(a).
13
Id., ¶ 10.
3
assignment the same day.14 With Pritzkur’s agreement, JMW’s principal assigned
his ownership interest in Twin Willows to Henry Mast (“Mast”) on May 16, 2017.15
Following the assignment, the next communication between Pritzkur and Twin
Willows was on August 8, 2017, when Pritzkur inquired about Twin Willows’
progress seeking the Approvals.16 On August 17, 2017, Mast engaged Morris
Ritchie and Associations (“MRA”) to provide concept planning services, including
a topographical survey, for the Property.17 On September 19, 2017, Pritzkur again
asked Mast for a progress report, who responded that he was working with DelDOT
and would like permission to enter the Property to clean it up with a bush hog for
the topographical survey.18
On October 27, 2017, Pritzkur and Mast had a conversation, which was
confirmed in an email from Pritzkur asking that Mast provide a letter indicating what
he needs to do on the Property to “reasonably move forward” with the Agreement
14
JX08.
15
See JX16; JX17. The consideration for the assignment was $200,000.00 plus
reimbursement of the $175,000 deposit. Id. Twin Willows “has no income” and “is a
holding company for a land contract.” Trial Tr. 258:22-259:1.
16
JX162.
17
JX20.
18
JX21. It appears that Mast or others undertook some work on the Property during this
time period, although the nature and extent is uncertain. E.g., Trial Tr. 267:11-12; Mast
Dep Tr. 25:1-9; id. 28:15-29:6; id. 33:23-34:5; JX21; JX23.
4
and “giving 2-3 weeks advance notice so [Pritzkur] can give enough advance notice
to Mrs. Gibbs.”19 The email also stated that Pritzkur intended to be on the Property
when Twin Willows’ agents are on the Property, and offered to provide law
enforcement assistance “[i]f a serious confrontation should arise which would
endanger the personal safety of your representatives.”20 On or about December 21,
2017, it appears Twin Willows reported to Pritzkur that it had made contact with
Gibbs and she gave permission to bring equipment onto the Property to clear brush
to facilitate surveying and engineering work.21
At that time, Mast testified that he continued to go onto the Property, giving
the required 72 hours’ notice to Gibbs, not Pritzkur.22 At Gibbs’ request, Pritzkur
met with her on January 23, 2018 to discuss her issues related to Twin Willows’
performance under the Agreement.23 She requested two days’ notice before Twin
19
JX23. The 2-3 weeks’ notice exceeded what was required in the Agreement, which Mast
testified presented problems for him. See Agreement, art. 3(a); Trial Tr. 267:2-13. Pritzkur
was aware he was not getting notices from Mast in August or September 2017. Pritzkur
Dep. Tr. 121:13-16.
20
JX23.
21
JX27, ¶ 6. In addition, on November 6, 2017, Pritzkur emailed Mast’s attorney
requesting an update and reminding him about the Notice Condition. D.I. 106, Ex. CC.
22
Mast Dep. Tr. 32:8-35:14.
23
JX 26; JX33.
5
Willows would bring equipment on the Property,24 which Mast agreed to provide to
Gibbs.25
On February 15, 2018, however, Mrs. Gibbs wrote to Pritzkur and Mast’s
attorney purporting to “totally revoke any permission” that may have been given for
Twin Willows or Mast, or his agents, to have access to the Property.26 After
contacting Gibbs, on February 21, 2018, Pritzkur told Mast that Gibbs was agreeable
to going back to 48 hours’ advance written notice prior to entry on the Property, but
wanted a waiver/indemnification letter from Mast before anyone accessed the
Property.27 Pritzkur followed up with a letter to Gibbs indicating that the
waiver/indemnification letter was being prepared and advising that Twin Willows’
agents would not seek access to the Property until she sends a letter revoking her
February 15, 2018 letter.28 In an April 2, 2018 email to Mast and others, Pritzkur
discussed that Mast’s attorney was finalizing an indemnification/waiver letter for all
owners of the Property and that, once Gibbs received that letter, he did not
“necessarily have reason to believe” that she would interfere with Twin Willows’
24
JX34.
25
JX36.
26
JX37; JX38. Following receipt of this letter, Pritzkur called Gibbs, and she verbally
retracted the statements in the letter. Pritzkur Dep. Tr. 186:19-22; JX39.
27
JX39.
28
JX41. On March 23, 2018, Pritzkur sent a letter to Gibbs seeking the letter revoking her
February 15, 2018 letter. JX42.
6
agents.29 It appears that the indemnification/waiver was forwarded to Pritzkur from
Mast’s attorney on April 18, 2018 and, on May 3, 2018, Pritzkur requested that
Mast’s attorney send the indemnification/waiver directly to Gibbs and also two
weeks’ notice for when Mast intends to access the Property.”30 On May 15, 2018,
Pritzkur asked that Mast let him know “about his progress with getting onto the
[P]roperty, clearing away debris, etc.,” and for a timeline of steps to be taken to
obtain the Approvals.31
On May 22, 2018, Mast provided a timeline for obtaining the Approvals,
which indicated that it would take an additional 2+ years to obtain the Approvals, if
no issues arose.32 Mast’s attorney advised Pritzkur that Twin Willows’ agents had
begun to access the Property around the end of May of 2018.33 On July 3, 2018,
Geo-Technology Associates (“GTA”), a sister company to MRA, submitted a
29
JX45. It appears Mast sent an indemnification letter to Gibbs on March 23, 2018. JX43.
30
JX46; JX47. In a May 2, 2018 email to Mast’s attorney, Pritzkur stated, “[it has] been a
while since we’ve had any communication about the Buyer’s access to the Property.” D.I.
106, Ex. CC.
31
JX51.
32
JX53. The timeline listed a topographical survey (30-45 days); wetlands delineation
(approximately two months); followed by a traffic study and the permitting process for an
entrance onto Route 13 (“minimum of two years is anticipated”); and a sewer capacity
study (“in tandem with the above items”). Id. At that time, Pritzkur was concerned about
Twin Willows’ ability to obtain the Approvals by the closing date. JX52.
33
JX55.
7
proposal to Mast for an environmental site assessment, wetland delineation, wetland
delineation report and plan of the Property.34 On July 9, 2018, MRA submitted a
proposal to Mast for a boundary survey of the Property.35
Mast’s attorney contacted Pritzkur on July 30, 2018 complaining that Gibbs
was “sometimes helpful and then very disruptive as she [was] being currently.”36
On July 31, 2018, Pritzkur responded by email reiterating that Twin Willows needs
to comply with the Notice Condition (send 72 hours’ written notice to him), copying
Gibbs, prior to accessing the Property.37 He also requested proof of insurance
coverage as specified in the Agreement, which was provided on or about August 6,
2018.38 On August 1, 2018, Mast gave notice to Pritzkur and Gibbs that his agents
would be doing work on the Property (cutting and clearing underbrush) between
August 6, 2018 and August 19, 2018.39 On August 6, 2018, Pritzkur emailed Mast
34
JX57. The proposal was submitted to Bay Developers, LLC, which is another limited
liability company that Mast owns. Mast Dep. Tr. 47:22-48:16.
35
JX58.
36
JX59.
37
JX60.
38
Id.; Trial Tr. 459:14-21. The insurance coverage period was April 10, 2018 to April 10,
2019. Id. 477:13-24; JX244. No proof of insurance was provided showing coverage after
April 10, 2019. Trial Tr. 459:22-460:5.
39
JX64. Although the Agreement required only that advance notice be sent to Pritzkur and
Lawrence Respondents’ attorney, Pritzkur worked with Mast to ensure that notice was also
sent to Gibbs, without objection from Mast. Pritzkur Dep. Tr. 170:24-174:22; Mast Dep.
Tr. 52:3-53:12; JX60; see also Agreement, art. 11.
8
advising that his representative will accompany Twin Willows’ agents onto the
Property and reiterated that he will arrange for a police escort if needed.40 On August
16, 2018, Mast sent notice to Pritzkur that Twin Willows’ agents would be doing a
topographical survey on the Property from September 10, 2018 until September 30,
2018.41 In September and October 2018, MRA and GTA employees were
performing work on the Property related to topographical and boundary surveys, and
environmental studies.42
A major incident occurred on November 2, 2018, in which MRA employees
reported to police that Gibbs and her daughter kicked them off of the Property and
her daughter took a MRA field notebook, which the police returned.43 On November
13, 2018, MRA indicated to Mast that they would “not be able to continue working
[at the Property] without some sort of chaperon[e] or security personnel.”44 On
40
JX67.
41
JX68.
42
See JX71; JX72; JX73; JX231, ¶ 13(b) (description of incident between a GTA employee
and Gibbs on October 17, 2018).
43
See JX75; JX76; Trial Tr. 23:24-25:8; id. 42:19-44:19. There is no evidence that Twin
Willows provided advance notice of this entry to Pritzkur. At trial, a MRA employee
reported that Gibbs’ daughter “touched” their equipment but did not damage it. Trial Tr.
25:13-18; id. 33:12-22. A MRA employee testified that he did not feel threatened by the
interaction with Gibbs and her daughter but they “wanted [them] to leave.” Id. 44:20-45:3.
But see id. 26:17-20 (another MRA employee testified that Gibbs’ daughter made him feel
“very uncomfortable”).
44
JX80. The MRA internal email also indicated that “[t]he other days we worked [on the
Property] they did not have any significant encounters.” JX79.
9
November 16, 2018, Pritzkur responded that his representative “will make certain to
have a state trooper or troopers present so that the work that needs to be done can be
done without interference by [Gibbs].”45 On December 11, 2018, Mast emailed
Pritzkur that MRA employees would be on the Property on January 7-11, 2019.46
Pritzkur responded that Mast needed to put this notice in writing to him, copying
Gibbs.47 Although written notice was not sent until later,48 Pritzkur’s representative,
after receiving confirmation of the dates onsite on January 7, 2019, arranged for a
police escort for MRA’s employees from January 8-10, 2019.49
On or about December 5, 2018, GTA produced an environmental site
assessment in which it recommended that former orchard and plant nursery areas on
the Property be evaluated for residual pesticides.50 On January 9, 2019, Mast
engaged GTA for soil sampling to evaluate for “priority pollutant pesticides.”51
45
JX82. On November 19, 2018, Mast sent notice to Pritzkur, copying Gibbs, that Twin
Willows’ agents will be on the Property to survey between December 1, 2018 and
December 15, 2018. JX 83. It is unclear if any agents were on the Property during that
time and no evidence that any issues arose then.
46
JX85.
47
Id.
48
On January 8, 2019, Mast sent written notice than MRA will be onsite January 7-21,
2019. JX83.
49
JX87; JX88; Pritzkur Dep. Tr. 226:12-16.
50
JX84, §6.2.
51
JX95.
10
GTA completed their evaluation on January 28, 2019, which indicated that those
pesticides were within allowable limits.52
On January 9, 2019, MRA estimated to Mast that their work on the Property
would take at least another 20-30 months (which would exceed the Agreement’s
time period).53 At that point, “Twin Willows’ focus changed.”54 Mast sent written
notices to Pritzkur that no one would be onsite, due to weather, between January 21,
2019 and February 18, 2019.55 When MRA contacted Mast on or about February 5,
2019 asking to go onsite to complete the one-half day of additional field work
needed, he indicated that two weeks’ notice was needed to go onsite.56 On February
18, 2019, Mast sent written notice to Pritzkur that, due to weather, no one would be
onsite between February 18, 2019 and March 4, 2019.57 When MRA followed up
with Mast on February 21, 2019, asking whether Mast had obtained permission for
MRA to go on the Property, Mast responded that MRA should “hold off [until] I
52
JX99, at 2; see also JX96. Mast testified that he wanted additional soil borings to further
evaluate the arsenic levels, although there is no evidence he took steps to complete those
borings. See Trial Tr. 365:22-23; id. 376:8-11; id., 380:15-18.
53
JX92. This timeframe assumes that the preliminary process and final engineering occur
concurrently; if not, the process was estimated to take 24-36 months. Id.
54
D.I. 157, at 7.
55
Notices were sent on January 21, 2019 and February 4, 2019. JX83.
56
JX104.
57
JX83.
11
give you the green light.”58 There is no evidence that Mast ever followed up with
MRA to complete their work on the Property.59
On or about March 13, 2019, Twin Willows paid $50,000.00 for a six-month
extension under the Agreement, extending the Agreement until October 14, 2019.60
Mast sent written notices stating that Twin Willows was “conducting traffic counts
and noise studies” and did not need to go onsite between March 18, 2019 and May
27, 2019.61 It appears that the May 13, 2019 notice was the final notice sent by Mast
to Pritzkur.62
In mid-2019, Mast pursued a possible sale of a portion of the Property to
Smyrna School District, which fell through during the summer of 2019.63 On or
58
JX108.
59
Trial Tr. 106:5-11; id. 107:9-12. At trial, Mast testified that MRA told him to “pound
sand ... we’re done, we ain’t coming back.” Id. 270:20-22; id. 263:10-13. His testimony
was contradicted by the testimony of a MRA principal who indicated that MRA would
have returned to the job. Id. 106:12-21; id. 107:9-12 (“[I]s it fair to say you waited for him
to give you the green light to finish your work and he never did, right? [Response:] That’s
fair.”). Considering all of the evidence, I weigh the testimony of the MRA principal greater
than Mast’s testimony.
60
JX119.
61
JX83. Notices stating that work would be conducted off the Property for two week
periods were sent on March 18, 2019; April 1, 2019; April 15, 2019; April 29, 2019; and
May 13, 2019. Id. At his deposition, Mast testified that someone in his office “was just
keeping up with the reporting.” Mast Dep. Tr. 63:17-21.
62
See JX83.
63
See Trial Tr. 350:19-351:20; JX133; JX135; JX136; JX 137; JX142. The Property was
appraised for the school district for “possible acquisition purposes” at $5,850,000.00, as of
May 24, 2019. JX138. It is not clear when or why the sale did not occur. With regard to
why the sale did not occur, Mast testified that “we got into the weeds with [an]
12
about September 11, 2019, Twin Willows paid $50,000.00 for a second six-month
extension under the Agreement, extending the Agreement until March 14, 2020.64
The Twin Willows project “languished.”65 Mast testified that he was not “making
any progress with anything else,” and did not pursue a traffic impact study.66 In
December of 2019, Mast and Pritzkur started negotiating about extending the
Agreement beyond March 14, 2020.67 On February 28, 2020, Mast signed a listing
agreement with R&R Commercial Realty to sell the Property for $7,300,000.00.68
II. PROCEDURAL HISTORY
On March 13, 2020, Twin Willows filed the Complaint for Declaratory
Judgment and Specific Performance (“Complaint”) against Pritzkur (as partition
trustee), Lawrence Respondents, and Gibbs, seeking a declaration that the parties
have a current, valid, and binding Agreement, an 18 month extension of the
archeological study … [t]hen one of the school board members found out what was going
on, and they killed the deal.” Trial Tr. 352:10-15. But see JX209 (“the [P]roperty was in
the wrong school development zone”).
64
JX145.
65
D.I. 157, at 8.
66
Trial Tr. 288:2-5. Mast testified that the “only thing [he] did with a traffic study … [is
use] a private guy that counts for DelDOT.” Id. 345:10-12. He admitted at trial that the
notices he sent stating that a noise and traffic study were being conducted were not true.
Id. 288:8-14.
67
JX150; JX152-JX161.
68
JX163. The realtor who entered into the listing agreement testified that the purpose of
listing the Property was to find tenants, such as a “supermarket,” to help Mast develop the
Property. Trial Tr. 452:7-11.
13
Agreement to complete the contingencies, an order that Lawrence Respondents and
Gibbs vacate the Property, damages, and attorneys’ fees and costs, based on claims
of specific performance and breach of contract as well as “general principles of
equity.69 On April 23, 2020, Pritzkur and Lawrence Respondents filed their answers,
in which both agreed that the Agreement should be extended only for the time
“reasonably necessary” for Twin Willows to finish what needs to be done to obtain
the Approvals.70 Gibbs was served on June 11, 2020,71 but did not file an answer.
On September 1, 2020, Twin Willows moved for default judgment against
Gibbs, which was opposed by Lawrence Respondents and Pritzkur.72 Both argued
that the remedy Twin Willows seeks is inappropriate and asked the Court to craft a
different remedy.73 At a December 15, 2020 hearing, I declined to grant the motion
for default judgment and questioned whether this Court has subject matter
jurisdiction over the matter.74 After briefing, the Court held oral argument on subject
69
D.I. 1.
70
D.I. 5; D.I. 6.
71
D.I. 9.
72
D.I. 16; D.I. 17; D.I. 22.
73
D.I. 17, at 7-8; D.I. 22; Pritzkur Dep. Tr. 256:12-19.
74
D.I. 24; MDJ Tr. 21:5-12. I also questioned whether Gibbs was properly a party since
she was not a party to the Agreement. MDJ Tr. 20:6-21:4. Nevertheless, I have allowed
the Lawrence Respondents and Gibbs to participate in this matter as parties. See Trial Tr.
4:6-24.
14
matter jurisdiction on July 8, 2021.75 In a July 27, 2021 Final Master’s Report
(“Subject Matter Jurisdiction Report”), I concluded that this Court has subject matter
jurisdiction over Twin Willows’ specific performance claim.76 Exceptions were
taken to the Subject Matter Jurisdiction Report, but they were overruled.77
Extensive discovery followed, and I addressed several discovery disputes.78
Twin Willows filed a January 10, 2022 Motion for Leave to File a Motion for
Summary Judgment, contending that, based upon judicial admissions, there were no
facts in dispute and that it could prove entitlement to judgment as a matter of law.79
75
D.I. 32; D.I. 33; D.I. 34; D.I. 35; D.I. 36; D.I. 37. Briefing was delayed to allow time
for the parties to negotiate. MDJ Tr. 21:8-12; D.I. 29; D.I. 30.
76
D.I. 38, at 12. I also found that the Complaint’s request for relief under the “general
principles of equity” failed to state a cognizable equitable claim. Id., at 7-8.
77
D.I. 40; D.I. 64; D.I. 70.
78
On November 16, 2021, Twin Willows filed a Joint Motion to Modify a Subpoena and
for a Protective Order, arguing that it did not have to produce tax information for Mast and
related entities. D.I. 72. On December 17, 2021, I issued an oral final master’s report
granting in part and denying in part that motion, holding that the tax returns were relevant
and discoverable but requiring that they be produced subject to a confidentiality stipulation,
and stayed exceptions to that report. D.I. 81; D.I. 87. On December 28, 2021, Lawrence
Respondents filed a Motion for Protective Order, arguing that they had no discoverable
information and did not have to sit for depositions. D.I. 86. On January 13, 2022, I denied
in part, and granted in part, that motion in an oral final master’s report, holding that Twin
Willows had the ability to depose Lawrence Respondents with limitations, and stayed
exceptions to that report. D.I. 92; D.I. 93; D.I. 96. Upon an emergency request of the
parties, on January 20, 2022, I resolved issues that arose during Pritzkur’s deposition. D.I.
95; D.I. 98. On February 3, 2022, Twin Willows filed a Motion to Compel Production of
Communications between Lawrence Respondents’ attorney and Pritzkur. D.I. 99.
Following oral argument on February 18, 2022, I issued a written final master’s report on
February 28, 2022, granting that motion in part and denying it in part, and stayed exceptions
on that report. D.I. 120; D.I. 127; D.I. 129.
79
D.I. 90.
15
In a January 12, 2022 order, I denied that request because the scheduling order would
not allow full briefing on a summary judgment motion before trial and, preliminarily,
it appears that material factual disputes still remain.80 Pre-trial briefs were submitted
on March 9, 2022, and the pre-trial conference in this matter was held on March 15,
2022.81 On March 21, 2022, Twin Willows filed a Motion to Seal Certain Financial
Information and Specify Confidential Treatment.82 At the beginning of trial on
March 23, 2022, I granted that motion in part, holding that the public did not have a
strong interest in Mast’s detailed financial tax information and sealing trial exhibits
and any portion of the trial transcript that addresses that sensitive information.83
Trial was held on March 23, 2022 and March 24, 2022.84 Mrs. Gibbs appeared at
80
D.I. 91. The denial was without prejudice and Twin Willows was free to advance its
arguments at trial. Id., at 4. Under Court of Chancery Rule 143, that order was a final
master’s report, and I stayed exceptions to that final report. Id., at 4-5.
81
D.I. 134; D.I. 135; D.I. 138; D.I. 143; D.I. 150.
82
D.I. 144.
83
Trial Tr. 11:7-16:8. Granular details of Mr. Mast’s tax returns and personal financial
statements were protected, not high level financial information or cash flow statements,
since it appeared that Twin Willows’ ability to perform under the Agreement would be an
issue at trial. Id. 14:4-11; id. 13:12-23. As discussed below, this legal issue was not
dispositive to my decision in this matter. See infra note 169.
84
D.I. 151. At the beginning of trial, Pritzkur moved to dismiss the matter for lack of
standing, citing 6 Del. C. § 18-1107(1), because Twin Willows had allowed its corporate
charter to lapse in June 2020. Trial Tr. 19:14-20:6. I denied that motion without prejudice
in favor of proceeding with trial and allowed Pritzkur to raise that issue in post-trial
briefing. Id. 22:13-23:13. During the trial, evidence was presented that Twin Willows’
charter had been revived nunc pro tunc, and Pritzkur withdrew the motion to dismiss at the
close of trial. See id. 241:16-242:18; id. 495:13-17; Demonstrative Ex. 5.
16
trial, and I allowed her to participate in the proceedings in the same capacity as
Lawrence Respondents.85 The parties submitted post-trial memoranda on April 25,
2022.86
III. ANALYSIS
A. Judicial Admissions
Twin Willows contends that Pritzkur and Lawrence Respondents made
judicial admissions in their answers that are binding and dispositive to this matter.87
Pritzkur responds that these judicial admissions are not binding because the factual
allegations were subsequently established to be false.88
“Voluntary and knowing concessions of fact made by a party during judicial
proceedings (e.g., statements contained in pleadings, stipulations, depositions, or
testimony; responses to requests for admissions; counsel’s statements to the court)
are termed ‘judicial admissions.’”89 “Judicial admissions which are binding on the
tendering party are limited to factual matters in issue and not to statements of legal
85
Trial Tr. 4:6-24.
86
D.I. 153; D.I. 155; D.I. 157.
87
D.I. 138, at 11-14; D.I. 131; see also D.I. 90.
88
D.I. 153, at 19-20. Alternatively, Pritzkur argues that judicial admissions are not binding
on the Court. Id.
89
Merritt v. United Parcel Serv., 956 A.2d 1196, 1201 (Del. 2008) (citations omitted).
E.g., Feldman v. YIDL Tr., 2018 WL 1151797, at *4 (Del. Ch. Mar. 5, 2018); Pilot Point
Owners Ass’n v. Bonk, 2010 WL 3959570, at *2 (Del. Ch. Oct. 7, 2010).
17
theories or conceptions.”90 A judicial admission “is not merely another layer of
evidence, upon which the … court can superimpose its own assessment of weight
and validity. It is, to the contrary, an unassailable statement of fact that narrows the
triable issues in the case.”91 “A tribunal may, however, in the exercise of its
discretion, relieve a party from the conclusiveness of its judicial admissions.”92
First, Twin Willows asks the Court to establish as a judicial admission that
“Gibbs has made it very difficult for Twin Willows to complete work at the Property
in order to complete the permitting processing [sic] specified in the Agreement of
Sale” against Pritzkur.93 This is a concession of fact made by Pritzkur in his answer
and confirmed in deposition and trial testimony.94 This is a judicial admission and,
considering the circumstances, I find it would be inequitable to relieve Pritzkur of
the consequences of that admission.95
90
Blinder, Robinson & Co. v. Bruton, 552 A.2d 466, 474 (Del. 1989) (citation omitted);
see also AT&T Corp. v. Lillis, 953 A.2d 241, 257 (Del. 2008) (citation omitted); Cox
Commc’ns, Inc. v. T-Mobile US, Inc., 273 A.3d 752, 766 (Del. 2022) (“[The judicial
admission] doctrine does not apply to legal conclusions.”) (citation omitted), reargument
denied (Mar. 22, 2022).
91
BE&K Eng’g Co. v. RockTenn CP, 2014 WL 186835, at *7 (Del. Ch. Jan. 15, 2014)
(internal quotation marks and citations omitted) (alteration in original), aff’d sub nom.
RockTenn CP v. BE&K Eng’g Co., 103 A.3d 512 (Del. 2014) (Mem.); see also Itron, Inc.
v. Consert Inc., 109 A.3d 583, 588 (Del. Ch. 2015).
92
Merritt, 956 A.2d at 1202 (citations omitted).
93
D.I. 138, at 12 (citing D.I. 6, ¶ 29).
94
See D.I. 98; Pritzkur Dep. Tr. 155:10-24; Trial Tr. 161:11-12.
95
The legal significance of this admission is addressed later. See infra notes 160-166 and
accompanying text.
18
Next, Twin Willows asks the Court to establish as a judicial admission that
“[Twin Willows] was unable to clear the ground for the survey team and that [Gibbs]
ran over the surveyors’ GPS system,” and that “Gibbs barred Twin Willows from
the [P]roperty in early 2018.”96 I find that the first statement was not an unequivocal
statement as to a matter of fact because Pritzkur’s admission in the answer contained
a disclaimer – “Trustee was provided information to apparently substantiate this
allegation.”97 Further, the trial evidence does not support that statement.98
Therefore, I decline to establish that statement as a judicial admission. The second
statement was an unequivocal statement of fact in Pritzkur’s answer, consistent with
trial evidence, and is subject to judicial admission.99
In addition, Twin Willows asks that the Court find that Pritzkur’s and
Lawrence Respondents’ prayers for relief asking the Court to “[e]xtend the time for
[Twin Willows] to complete the contingencies [in] … the Agreement” are judicial
admissions.100 I conclude that the decision whether the Court should extend the
96
D.I. 138, at 12 (citing D.I. 6, ¶¶ 30-31, 34).
97
D.I. 6, ¶¶ 30-31; see also Trial Tr. 161:16-19 (“I had no personal knowledge of what she
did … [T]his is the allegation …. And how I answered them is in [my answer].”).
98
See supra notes 39-43 and accompanying text. A MRA employee testified at trial that
Gibbs’ daughter “touched” their equipment but did not damage it. Trial Tr. 25:13-18; id.
33:12-22. See also AT&T Corp. v. Lillis, 953 A.2d 241, 257 (Del. 2008).
99
See D.I. 6, ¶ 34.
100
D.I. 138, at 14; see D.I. 5, at 17; D.I. 6.
19
Agreement is a legal conclusion – a litigating position – and it is not subject to
judicial admission.101
B. Twin Willows is not Entitled to Specific Performance due to the Agreement’s
Time is of the Essence Clause
At issue is whether Twin Willows is entitled to specific performance of the
Agreement, given the time is of the essence clause in the Agreement. Twin Willows
contends that it is entitled to specific performance because Gibbs’ interference with
Twin Willows’ access, which was not properly addressed by Pritzkur, prevented it
from performing under the Agreement.102 Respondents argue, in response, that Twin
Willows is in default of material obligations under the Agreement, including the time
is of the essence clause, and was not ready, willing and able to perform its obligations
under the Agreement.103
101
I also consider whether judicial estoppel might apply. Judicial estoppel “prevents a
litigant from advancing an argument that contradicts a position previously taken that the
court was persuaded to accept as the basis for its ruling.” Motorola Inc. v. Amkor Tech.,
Inc., 958 A.2d 852, 859 (Del. 2008). However, a party “is not barred from changing its
position under the doctrine of judicial estoppel [if the] court did not rely on [the party’s]
argument in a decision.” AT&T Corp. v. Lillis, 953 A.2d 241, 257 (Del. 2008).
Respondents changed their positions long ago (before December 2020), see D.I. 17, D.I.
22; D.I. 34; D.I. 51; D.I. 76; D.I. 106; D.I. 134. The Court has not relied on these statements
in its decisions, and there is no prejudice in allowing Respondents to change their litigating
positions.
102
D.I. 138, at 4-11.
103
See D.I. 135, at 7-11; D.I. 134, at 20-31; D.I. 155, at 9-15.
20
“A party seeking specific performance must establish (1) a valid contract
exists, (2) he is ready, willing, and able to perform, and (3) that the balance of the
equities tips in favor of the party seeking performance.”104 The burden of proof for
each element is clear and convincing evidence.105 “Specific performance will not be
granted to a party who is in default of a material obligation under the contract, unless
that party is excused from performance of that obligation.”106 Here, the Agreement
has a time is of the essence clause.107 Delaware courts will generally give substantial
weight to these provisions, and the presence of a time is of the essence clause usually
prohibits the remedy of specific performance if the party fails to meet its contractual
obligations within the specified time.108
In the Subject Matter Jurisdiction Report, I considered the effect of the
Agreement’s time is of the essence clause, and concluded that “[t]o obtain specific
performance, … Twin Willows will have to prove [Respondents’] misconduct, that
their actions prevented Twin Willows from performing under the contract, and that
104
Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1158 (Del. 2010).
105
Id.106
Walton v. Beale, 2006 WL 4763946, at *3 (Del. Ch. Jan. 30, 2006).
107
Agreement, art. 10.
108
See Penden v. Gray, 886 A.2d 1278, 2005 WL 2622746, at *3 (Del. Oct. 14, 2005)
(TABLE); see also HIFN, Inc. v. Intel Corp., 2007 WL 1309376, at *9 (Del. Ch. May 2,
2007) (“When time is of the essence in a contract, a failure to perform by the time stated is
a material breach of the contract.”) (citation omitted).
21
it could have performed under the Agreement on a timely basis if the alleged
misconduct had not occurred.”109 With the advantage of the trial record, I return to
the question of whether Twin Willows has proven it is entitled to specific
performance, and also address Twin Willows’ argument about post-contractual
modification of the Notice Condition, and its contention that Mogavero v.
Greenberg110 entitles it to relief.
“It is fundamental law that a party seeking a decree for specific performance
of a contract must, himself, have performed within the time specified [for] his own
obligations under the contract.”111 Where there is a time is of the essence clause,
“the surrounding circumstances are ordinarily immaterial in excusing the [party’s]
delay in tendering performance on or before the specified date.”112 “It is, however,
equally fundamental that a failure of a plaintiff to have performed his own obligation
will be excused if he was prevented by the other party from performing his
obligation.”113 “Where time is of the essence, the plaintiff must have performed
109
D.I. 38, at 12; see also D.I. 70, 11:12-19.
110
2007 WL 2713843 (Del. Ch. Sept. 12, 2007).
111
Wells v. Lee Builders, Inc., 99 A.2d 620, 621 (Del. 1953) (citations omitted).
112
Charamella v. Barley Mill Road Homes, Inc., 142 A.2d 515, 517 (Del. Ch. 1958)
(citation omitted); see also Thompson v. Burke, 1985 WL 165736, at *3 (Del. Ch. June 7,
1985).
113
Wells, 99 A.2d at 621 (citations omitted). See also T.B. Cartmell Paint & Glass Co. v.
Cartmell, 186 A. 897, 903 (Del. Super. 1936) (“It is a sound principle that he who prevents
a thing being done shall not avail himself of the non-performance that he has occasioned.”)
(internal quotation marks and citations omitted).
22
those obligations within the specified time, unless prevented from doing so by the
defendant.”114
Under the prevention doctrine, a party’s duty to perform a condition of a
contract is excused if the other party’s actions contributed materially to the non-
occurrence of the condition.115 “It is an established principle of contract law that
‘[w]here a party’s breach by non-performance contributes materially to the non-
occurrence of a condition of one of his duties, the non-occurrence is excused.’”116
The non-performance must be material.117 “A breach ‘contributed materially’ to the
114
Thompson, 1985 WL 165736, at *3 (citing Wells, 99 A.2d 620).
115
See Snow Phipps Grp., LLC v. KCake Acquisition, Inc., 2021 WL 1714202, at *52-56
(Del. Ch. Apr. 30, 2021); Neurvana Med., LLC v. Balt USA, LLC, 2020 WL 949917, at *19
(Del. Ch. Feb. 27, 2020) (“The prevention doctrine provides that a party may not escape
contractual liability by reliance upon the failure of a condition precedent where the party
wrongfully prevented performance of that condition precedent.”) (citing Mobile Commc’ns
Corp. of Am. v. MCI Commc’ns Corp, 1985 WL 11574, at *4 (Del. Ch. Aug. 27, 1985));
Seven Invs., LLC v. AD Cap., LLC, 32 A.3d 391, 400 (Del. Ch. 2011). However, if the
condition would not have occurred regardless of the other party’s actions, the prevention
doctrine does not apply. See Snow Phipps Grp., 2021 WL 1714202, at *52 (citation
omitted).
116
WaveDivision Hldgs., LLC v. Millennium Digital Media Sys., LLC, 2010 WL 3706624,
at *14 (Del. Ch. Sept. 17, 2010) (quoting Restatement (Second) of Contracts § 245).
117
Snow Phipps Grp., 2021 WL 1714202, at *52 (citation omitted); id. (“[To be material,]
it is not necessary to show that the condition would have occurred but for the lack of
cooperation.” (quoting In re Anthem-Cigna Merger Litig., 2020 WL 5106556, at *91 (Del.
Ch. Aug. 31, 2020)).
23
non-occurrence of a condition if the conduct made satisfaction of the condition less
likely.”118
To determine whether there was misconduct by Respondents that prevented
Twin Willows from performing its obligations under the Agreement, it is necessary
to understand the parties’ obligations under the Agreement.
1. Parties’ Obligations under the Agreement119
Twin Willows was obligated under the Agreement to pay Pritzkur
$3,276,000.00 no later than 30 days after the expiration of the Permitting Period
(“Closing Obligation”),120 to pursue the Approvals, and to provide quarterly written
status updates to Seller in the 24 months following the Due Diligence Period.121
Twin Willows’ Closing Obligation was not conditioned upon actually obtaining the
Approvals. The Agreement states that “Buyer’s obligations are expressly
118
Id. (quoting Anthem-Cigna, 2020 WL 5106556, at *91) (internal quotation marks
omitted). The Court does not, within this analysis, consider whether the parties acted in
subjective bad faith. Id., at *53.
119
In addition to the obligations addressed below, Buyer and Seller had other obligations
under the Agreement that are not at issue here. See Agreement, art. 3(a) (Buyer’s obligation
to evaluate to its satisfaction “the soil types, water table, and other requirements” of the
Property during the Due Diligence Period); id., art. 6 (mutual obligations of Buyer and
Seller to pay applicable transfer taxes and pr-rated charges); id. art. 9(a) (Seller covenanted
that it had the authority to sell the Property); id., art. 3(d) (Seller’s obligation to seek
immediate approval of the Agreement from this Court).
120
Id., arts. 1, 2(a), 4(a). It could elect to close earlier upon obtaining the Approvals or
providing 15-days written notice to Seller. Id., art. 4(a).
121
Id., art. 3(b).
24
conditioned upon [a Due Diligence Period and a Permitting Period], the satisfaction
of which may be waived by Buyer.”122 Buyer was obligated to use good faith,
diligent efforts to seek the Approvals; however, it could waive the Approvals and
proceed to settlement, or terminate the Agreement and walk away.123
In addition, Twin Willows was obligated to use “good faith, diligent efforts”
to pursue the Approvals during the Permitting Period.124 The Agreement does not
define “good faith, diligent efforts.” If a contractual term is undefined, “the
interpreting court may consult the dictionary, if that is deemed useful, when
determining the term’s plain meaning.”125 Based on dictionary definitions, Twin
Willows had an obligation to make a steady, earnest, energetic, honest, and lawful
exertion of power to obtain the Approvals.126 Thus, Twin Willows was not under an
122
Id., art. 3.
123
Id., art. 3(b); see id. art. 4(b) (“[I]f Buyer … determines in good faith that one or more
of the contingencies cannot be satisfied and will not be waived, and provided Buyer shall
have used good faith, diligent efforts to satisfy all contingencies, Buyer shall have the
option to cancel this Agreement.”).
124
Id., art. 3(b); see id., 4(b) (“… provided Buyer shall have used good faith, diligent efforts
to satisfy all contingencies”).
125
Wenske v. Blue Bell Creameries, Inc., 2018 WL 3337531, at *10 (Del. Ch. July 6, 2018),
reargument denied, 2018 WL 5994971 (Del. Ch. Nov. 13, 2018); see also Lorillard
Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 738 (Del. 2006).
126
See Diligent, Merriam-Webster Dictionary, https://www.merriam-webster.com/
dictionary/diligent (last accessed August 1, 2022) (“characterized by steady, earnest, and
energetic effort”); Good Faith, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/good%20faith (last accessed August 1, 2022) (“honesty and
lawfulness of purpose”); Effort, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/effort (last accessed August 1, 2022) (“conscious exertion of
25
absolute duty to obtain the Approvals, but it had a heightened obligation to pursue
them.
Pritzkur was obligated under the Agreement to convey marketable title to the
Property by special warranty deed to Buyer at closing,127 and to permit Buyer to
enter onto the Property (“Access Rights”) during the Due Diligence and Permitting
Periods.128 The Access Rights, however, were expressly conditioned upon the
following: 1) Buyer must provide 72 hours’ “notice of each intended entry”; 2)
Buyer must afford Seller the opportunity to accompany Buyer onto the Property; 3)
power”). This Court has considered language requiring “due diligence and good faith
efforts” as similar to the “best efforts” standards. See W. Willow-Bay Ct., LLC v. Robino-
Bay Ct. Plaza, LLC, 2007 WL 3317551, at *8, 11 n. 93 (Del. Ch. Nov. 2, 2007), aff’d, 985
A.2d 391 (Del. 2009), as corrected (Nov. 30, 2009). This Court has considered that the
“best efforts” standard “requir[es] a party to do essentially everything in its power to fulfill
its obligation.” AB Stable VIII LLC v. Maps Hotels & Resorts One LLC, 2020 WL
7024929, at *91 (Del. Ch. Nov. 30, 2020), judgment entered, (Del. Ch. 2021),
and aff’d, 268 A.3d 198 (Del. 2021) And, considering “good faith efforts” and “diligent
efforts” separately, the “good faith efforts” standard has been considered in the context of
a corporate merger & acquisition as “requir[ing] honesty in fact and the observance of
reasonable commercial standards of fair dealing.” AB Stable VIII LLC v. Maps Hotels &
Resorts One LLC, 2020 WL 7024929, at *91 (Del. Ch. Nov. 30, 2020), judgment entered,
2021 WL 46242 (Del. Ch. Feb. 5, 2021), aff’d, 268 A.3d 198 (Del. 2021) (citations
omitted). Although I found no caselaw addressing the separate “diligent efforts” standard
(if not contractually defined), it appears the “diligent efforts” standard is a higher standard,
similar to “best efforts” and “reasonable efforts.” See Ryan Aaron Salem, Comment, An
Effort to Untangle Efforts Standards Under Delaware Law, 122 Penn St. L. Rev. 793, 803
(2018); Menn v. ConMed Corp., 2022 WL 2387802, at *34-35 (Del. Ch. June 30, 2022);
see also AB Stable VIII LLC, 2020 WL 7024929, at *91 (discussing that “reasonable
efforts” require taking of typical actions under the circumstances).
127
Agreement, arts. 1, 5, 7.
128
Id., art. 3(a).
26
Buyer must use good faith, diligent efforts to minimize the disruption to any
occupant’s use of the Property during its entry onto the Property; 4) Buyer must
provide Seller with evidence of adequate insurance to cover risks associated with
Buyer’s activities; 5) Buyer must restore any damage to the Property; and 6) Buyer
must indemnify and hold Seller harmless from any loss, cost, claim, liability, or
damage resulting from its entry onto the Property (collectively, “Conditions”).129
Twin Willows argues that Pritzkur’s “job was to facilitate access for whatever
work, if any, that [Twin Willows] wanted to do.”130 I agree that Pritzkur had the
duty to take reasonable efforts to permit Twin Willows’ access onto the Property.131
However, that duty was expressly conditioned upon Twin Willows fulfilling the
Conditions, so it did not arise until Twin Willows satisfied the Conditions.
129
Id.130
D.I. 157, at 3.
131
Here, the Agreement placed no express obligation on Pritzkur to cooperate with Twin
Willows’ efforts to obtain the Approvals. Compare Mogavero v. Greenberg, 2007 WL
2713843, at *6 (Del. Ch. Sept. 12, 2007) (an express contractual duty to cooperate is a
heightened obligation over the implied covenant of good faith and fair dealing). Some
reasonable duty under the implied covenant of good faith and fair dealing, consistent with
Pritzkur’s conditional obligation to provide the Access Rights, would be implied. See
Glaxo Grp. Ltd. v. DRIT LP, 248 A.3d 911, 919 (Del. 2021) (holding that, under Delaware
law, the implied covenant of good faith inheres in every contract.”).
27
2. Respondents’ Conduct did not Prevent Twin Willows from Performing its
Obligations
Twin Willows contends that it “suffered from repeated interruptions to its
permitting process, and it was not Twin Willow’s responsibility to solve these
problems.”132 It argues that Pritzkur’s demands and Gibbs’ interference resulted to
a breach of the Access Rights, preventing Twin Willows from obtaining the
Approvals and closing on the Property.133 Pritzkur responds that, because Twin
Willows breached the Agreement’s terms, including by failing to diligently pursue
the Approvals or to satisfy the Notice Condition, the time is of the essence clause in
the Agreement prevents specific performance.134 Similarly, Lawrence Respondents
argue that Respondents did not breach the duty to provide Access Rights since Twin
Willows did not provide the required 72 hours” notice to activate those Rights.135
The issue is whether Pritzkur, as a result of Gibbs’ actions, interfered with
Twin Willows’ Access Rights and pursuit of the Approvals such that Twin Willows
was prevented from fulfilling its obligations under the Agreement. If that
interference prevented Twin Willows from performing its obligations under the
132
D.I. 138, at 18.
133
D.I. 157, at 4-6; D.I. 138, 4-9, 19.
134
D.I. 153, at 5-14; D.I. 134, at 24-33. Pritzkur also argues that Twin Willows delayed in
providing proof of insurance and indemnification, which were pre-conditions for Pritzkur
to provide the Access Rights. D.I. 153, at 11.
135
D.I. 155, at 9-11. The Lawrence Respondents also assert that Twin Willows breached
the Agreement by failing to provide quarterly status reports. Id., at 11-12.
28
Agreement, Twin Willows may be entitled to specific performance, despite the time
is of the essence clause.
After assuming the Agreement in March 2017, Twin Willows initially took
limited action pursing the Approvals.136 It engaged MRA on August 17, 2017 to
provide concept planning services.137 It began accessing the Property around that
time but the evidence does not show it complied with the Notice Condition prior to
entry.138 On October 27, 2017, Mast and Pritzkur discussed Twin Willows’ access
to the Property and Pritzkur asked that Mast provide 2-3 weeks’ notice before
entering onto the Property (and offered to arrange for a police escort if needed).139
In December 2017, Twin Willows’ representatives continued to go onto the Property
with Gibbs’ (not Pritzkur’s) permission.140 During that time, because Twin Willows
failed to comply with the Notice Condition, any impediment caused by Gibbs does
not represent a denial of the Access Rights, or a breach under the Agreement, by
Pritzkur.
136
When Twin Willows assumed the Agreement, it knew that the Due Diligence Period
had run. Trial Tr. 382:23-383:17. Nothing in the record indicates that JMW completed any
tasks or did any work on the Property prior to Twin Willows assuming the Agreement.
137
JX20.
138
See Mast Dep Tr. 23:21-24:11; Trial Tr. 470:12-17.
139
JX23.
140
See supra note 22.
29
In mid-February 2018, Gibbs purported to revoke Twin Willows’ access to
the Property, but Pritzkur arranged for restoration of access once Twin Willows
provided an indemnification/waiver letter, and 48 hours’ advance written notice.141
On April 2, 2018, Pritzkur wrote Mast that he could resume accessing the
Property.142 Twin Willows’ Access Rights were halted for approximately two
months. After being told that it could return to the Property in early April, Twin
Willows did not access the Property again until late May 2018, and Twin Willows
did not begin working with MRA and GTA on proposals for survey, engineering,
and environmental work until July 2018.143
It appears difficulties arose with Gibbs in July 2018 and Pritzkur told Twin
Willows to provide 72 hours’ written notice to him, copying Gibbs.144 When Mast
provided advance notice to Pritzkur about access for August and September 2018, it
appears Twin Willows’ agents performed work on the Property without incident.145
There was a major incident between Gibbs and MRA employees on November 2,
141
The fact that Gibbs barred Twin Willows from the Property was a judicial admission.
See supra note 99. Indemnification was one of the Conditions, along with the Notice
Condition. See Agreement, art. 3(a).
142
JX45. It is not clear when Twin Willows provided the indemnification/waiver. It
appears issues continued through April of 2018, although an indemnification/waiver was
sent to Gibbs on March 23, 2018. See supra notes 28-30.
143
See JX55; JX57; JX58; D.I. 106, Ex. CC.
144
He also requested proof of insurance, which is one of the Conditions. JX60; see
Agreement, art. 3(a).
145
JX64; JX67; JX68.
30
2018, but there is no evidence that advance notice was given to Pritzkur prior to that
entry.146 Upon learning of the November 2, 2018 incident, Pritzkur responded that
a police escort will be arranged if advance notice is provided, which occurred for
Twin Willows’ next entry onto the Property in January 2019.147 In February 2019,
Twin Willows’ plans for the Property changed, and it appears Twin Willows stopped
pursuing the Approvals.148 Twin Willows paid for two extensions to the Permitting
Period,149 but did not seek access to perform work on the Property after March
2019.150
Twin Willows never completed the preliminary approvals process, and Mast
testified that “[i]t’s a huge sum of money,” and an involved and long process.151 To
obtain preliminary plan approval, Mast would need to have completed (1) a traffic
impact study reviewed and approved by DelDOT, (2) a very detailed preliminary
plan, (3) a topographical study, and (4) a boundary survey, and (5) an accurate
146
See supra note 43 and accompanying text.
147
JX82; JX85; JX87; JX88.
148
See supra notes 54-59, 65-66 and accompanying text.
149
See JX114; JX145.
150
See supra note 61 and accompanying text.
151
Mast Dep. Tr. 40:10-13; see Trial Tr. 66:23-67:15; id. 262:6-14 (“[T]here’s probably
30 steps, 40 steps, I don’t know how many steps, in order to get a project like this from
Point A to Point B. And honestly, we were, I don’t know, we’re a step – I don’t know what
step we were in …”).
31
delineation of wetlands.152 Rezoning also would have been required for Twin
Willows’ project on the Property.153
By February 2019, MRA had completed a conceptual study, a boundary
survey and “95 percent [of] the topographic survey [and] were in the process of
locating ... wetland flags.”154 GTA had “completed a wetland delineation of the
[P]roperty” and were close to three-quarters done on the wetland delineation report
and plan.155 A Phase I environmental study had been completed.156 But, substantial
additional time and work was required to obtain the Approvals, since little work had
been performed on the traffic study (it was estimated to take a minimum of two years
to complete a traffic study and the permitting process for the Property).157 And, Mast
wanted additional soil borings for arsenic levels on the Property but took no steps to
obtain the borings.158
152
Trial Tr. 69:11-21.
153
Id. 115:3-10.
154
See id. 59:2-6; id. 343:2-8.
155
Id. 59:8-10; see JX91 (GTA October 15, 2018 invoice showing GTA had completed
100% of Wetland Delineation); JX116 (GTA March 13, 2019 invoice showing GTA had
completed 72.72% of the Wetland Delineation Report & Plan).
156
See Trial Tr. 71:15-16; JX84; JX72.
157
See Mast Dep. Tr. 42:4-12 (Twin Willows only held preliminary meetings with Kent
Conservation District); see also JX92; JX100; MDJ Tr. 5:4-6 (“As [of December 15, 2020],
... the process necessary to close is about half completed.”).
158
Trial Tr. 365:22-23; id. 376:8-11; id., 380:15-18.
32
Twin Willows’ limited efforts do not support that it diligently – with a
heightened obligation – pursued the Approvals.159 Further, the evidence does not
show that Pritzkur’s or Gibbs’ conduct prevented Twin Willows from fulfilling its
obligations under the Agreement. It is judicially admitted that “Gibbs has made it
very difficult for Twin Willows to complete work at the Property in order to
complete the permitting process specified in the Agreement of Sale.”160 There were
incidents with Gibbs that impeded Twin Willows’ access to the Property at times.
However, the evidence shows that those incidents occurred when Twin Willows had
not complied with the Notice Condition.161 Pritzkur, in response to concerns about
Gibbs’ conduct, repeatedly offered to provide a police escort to prevent problems or
interference with Twin Willows’ Access Rights.162 Twin Willows asserts that
providing a police escort was not efficient, given that contractors’ plans change at
159
Over the course of three years, it appears Twin Willows actively took steps to pursue
the Approvals for approximately seven months (July 2018 to January 2019), was barred
from the Property for approximately two months (February 2018 to April 2018), and made
limited efforts otherwise in pursuit of the Approvals. See supra notes 16-68 and
accompanying text.
160
See supra notes 93-95 and accompanying text.
161
Twin Willows specifically points to the November 2, 2018 incident as a denial of the
Access Rights. D.I. 138, at 7-10. But since Twin Willows failed to comply with the Notice
Condition for that entry onto the Property, it did not meet the Conditions, and its Access
Rights were not breached. See supra note 43 and accompanying text.
162
See, e.g., JX23; JX67.
33
the last minute.163 However, Twin Willows was obligated to provide 72 hours’
advance notice before entering the Property, so last-minute changes would have
implicated that Condition as well. Pritzkur offered to arrange for a police escort
whenever requested, and when the police were present, there were no issues with
access to the Property.164 Without advance notice, Pritzkur was unaware that Twin
Willows’ agents were going onto the Property and had no opportunity to work with
Gibbs in advance to prevent problems, or to accompany the agents onto the Property
to address problems that might arise.165
Although Gibbs’ actions may have contributed to Twin Willows’ difficulties,
considering all of the circumstances, I do not find that Respondents’ actions, and
particularly Pritzkur’s actions (as Seller), prevented Twin Willows from performing
under the Agreement.166 When provided advance notice, Pritzkur permitted access
and addressed access issues, consistent with any obligations he had under the
implied covenant of good faith and fair dealings. In contrast, Twin Willows did not
meet its obligation to pursue the Approvals with good faith, diligent efforts. Its
163
Trial Tr. 270:7-19 (Mast’s testimony that hiring state troopers as security “was the
probably the dumbest setup ever”).
164
See id. 94:19-22.
165
D.I. 106, Ex. CC (December 21, 2017 letter from Pritzker to Mast).
166
And, with regard to the prevention doctrine, I consider that the Closing Obligation was
not actually conditioned upon obtaining the Approvals, so there was not failure of a
condition precedent. See supra notes 115-118, 122 and accompanying text.
34
efforts were lackadaisical at best and left much to be accomplished in order to obtain
the Approvals, without the time available under the Agreement to do so.167 Thus,
Twin Willows’ failure to perform under the Agreement would have occurred
regardless of Pritzkur’s or Gibbs’ actions. Because I find that Respondents’ actions
did not prevent Twin Willows from performing under the Agreement, Twin Willows
defaulted on a material obligation in the Agreement when time remained of the
essence and it failed to close on the date specified in the Agreement, or by April 14,
2020.168 Therefore, Twin Willows has not shown by clear and convincing evidence
that there are on-going obligations under the Agreement that can be specifically
enforced, and Twin Willows is not entitled to specific performance.169
3. Notice Condition was Not Modified by Waiver, Estoppel or Acquiescence
Twin Willows argues that waiver, estoppel, or acquiescence apply to modify
the Notice Condition in the Agreement.170 Twin Willows first argues that Pritzkur
167
See supra notes 157-158.
168
Since the extended Permitting Period ended on March 14, 2020, the outside date for
closing under the Agreement was April 14, 2020. See Agreement, art. 4(a).
169
The Agreement allocated the risk of not obtaining the Approvals to Buyer since Buyer
could proceed to settlement or terminate, regardless of whether it obtained the Approvals.
See id., arts. 3(b), 4(b). Because I find Twin Willows’ materially defaulted on other
grounds, I do not address Pritzkur’s argument regarding Twin Willows’ financial ability to
close by the outside date specified in the Agreement. See D.I. 153, at 17-18.
170
D.I. 157, at 13-20. Twin Willows also claims that the obligation in the Agreement that
it provide quarterly written status reports was either waived or modified. Id., at 12, 16-17.
I do not address that issue since I do not rely on any alleged breach by Twin Willows with
regard to that requirement in my decision. In addition, the Agreement contains an anti-
waiver provision. Agreement, art. 13(d). “Delaware law recognizes [and enforces] the
35
waived the Notice Condition by choosing not to act when Twin Willows did not
comply with the Notice Condition.171 “[Although] contractual requirements or
conditions may be waived, … the standards for proving waiver under Delaware law
are ‘quite exacting.’”172 “A party asserting waiver must demonstrate that (1) there
is a requirement or condition to be waived; (2) the waiving party knew of the
requirement or condition; and (3) the waiving party intended to waive that
requirement or condition.”173 “The facts relied upon to prove waiver must be
unequivocal.”174
Here, Pritzkur brought up the requirement that Twin Willows comply with the
Notice Condition repeatedly over the course of the Agreement.175 Although Twin
important policy considerations underlying … anti-waiver provisions, … [b]ut when
applied to post-contract behavior, these principles do not prohibit the Court’s consideration
of subsequent promises, communications, or modifications to the express agreement.” In
re Coinmint, LLC, 261 A.3d 867, 896-97 (Del. Ch. 2021) (citations omitted). Therefore, I
consider Twin Willows’ arguments concerning post-contract behavior.
171
D.I. 157, at 15-16.
172
AeroGlobal Cap. Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428, 444 (Del. 2005)
(citation omitted).
173
See Coinmint, 261 A.3d at 893 (citation omitted).
174
Id. (quoting AeroGlobal Cap. Mgmt., 871 A.2d at 444) (internal quotation marks
omitted); see Simon-Mills II, LLC v. Kan Am USA XVI LP, 2017 WL 1191061, at *34 (Del.
Ch. Mar. 30, 2017); Dudizak v. Dudizak, 1975 WL 1251, at *3 (Del. Ch. Aug. 8, 1975).
175
E.g., JX23; JX45; JX51; JX60; JX61; JX67; JX85. Mast testified that he and Pritzkur
spoke regularly on the telephone, suggesting that Pritzkur impliedly agreed to accept
notices by telephone. E.g., Trial Tr. 288:19-289:1; id. 290:16-24; id. 291:21-292:4; id.
358:12-18. I am unpersuaded by his testimony since Pritzkur repeatedly requested written
notice from Mast before Twin Willows’ entry on the Property, and Pritzkur’s fees’ affidavit
shows only infrequent telephonic communication between Mast and Pritzkur. See JX148.
36
Willows points to Pritzkur’s testimony where Pritzkur indicated that he “[tried] to
work things out” with regard to the Agreement,176 the evidence does not show an
“unequivocal” intent to waive the Notice Condition.177 Indeed, if there was a
modification of the Notice Condition it was to expand the requirement – to include
a longer advance written notice to Gibbs as well as Pritzkur.178 Thus, Twin Willows’
waiver argument fails.
Next, Twin Willows argues that quasi-estoppel applies and that Pritzkur
should be estopped from making “a strategic turn” by invoking the Notice
Condition.179 “Under Delaware law, the doctrine of quasi-estoppel applies ‘when it
would be unconscionable to allow a person to maintain a position inconsistent with
one to which he acquiesced, or from which he accepted a benefit. To constitute this
sort of estoppel the act of the party against whom the estoppel is sought must have
gained some advantage for himself or produced some disadvantage to another.’”180
176
D.I. 157, at 15 (quoting Trial Tr. 467:15-468:1). In that same interaction, Pritzkur
reiterated that, even though there was an exchange of phone numbers between Mast and
Gibbs, “there was still the requirement of written notice, yes, in the contract.” Trial Tr.
466:4-16.
177
I distinguish the case cited by Twin Willows, Prizm Grp., Inc. v. Anderson, 2010 WL
1850729 (Del. Ch. May 10, 2010), to support its argument. Unlike here, the evidence in
the Prizm case showed that a stockholder “consciously chose not to pursue any action,”
and cited specific instances in the trial exhibits and the trial transcript. Id., at *6.
178
See supra notes 19, 30, 39, 41 and accompanying text (regarding two weeks’ notice).
179
D.I. 157, at 17-18.
180
RBC Cap. Markets, LLC v. Jervis, 129 A.3d 816, 872-73 (Del. 2015) (quotation
omitted).
37
This theory similarly lacks support from the evidence – Pritzkur repeatedly invoked
the Notice Condition. Accordingly, Twin Willows’ estoppel argument fails.
In addition, Twin Willows contends that “this is textbook acquiescence.”181
“The doctrine of acquiescence effectively works an estoppel: where a plaintiff has
remained silent with knowledge of her rights, and the defendant has knowledge of
the plaintiff's silence and relies on that silence to the defendant’s detriment, the
plaintiff will be estopped from seeking protection of those rights.”182 Twin Willows’
theory is that Pritzkur knew of the Notice Condition, knew that Twin Willows was
not strictly complying with that condition, failed to act regarding Twin Willows’
non-compliance, and asserts the Notice Condition only after Twin Willows
detrimentally relied on Pritzkur’s silence.183 Contrary to Twin Willows’ theory, the
evidence shows that Pritzkur repeatedly informed Mast and his attorney that
compliance with the Notice Condition was needed.184 Pritzkur, then, was not silent
181
D.I. 157, at 18 (citing COPI of Del., Inc. v. Kelly, 1996 WL 633302 (Del. Ch. Oct. 25,
1996)).
182
In re Coinmint, LLC, 261 A.3d 867, 895 (Del. Ch. 2021) (citing Lehman Brothers Hldgs.
Inc. v. Spanish Broad. Sys., Inc., 2014 WL 718430, at *9 (Del. Ch. Feb. 25, 2014)).
183
D.I. 157, at 16-17.
184
See supra notes 19, 23-25, 27, 30, 37 and accompanying text. Pritzkur also repeatedly
offered to provide a police escort and did provide one when it was requested. See supra
notes 20, 40, 45, 49 and accompanying text.
38
about Twin Willows’ failure to comply with the Notice Condition, and Twin
Willows’ acquiescence theory fails to remove the Notice Condition.185
4. Mogavero v. Greenberg does not Entitle Twin Willows to Relief
Twin Willows relies on Mogavero v. Greenberg (“Mogavero”)186 to show that
that it is entitled to a 12 months’ extension of the Agreement because of the “repeated
interruptions to its permitting process” caused by Gibbs, and Pritzkur’s alleged
failure to secure Twin Willows’ access to the Property.187 It argues that the
circumstances here are practically identical to those in Mogavero.188 Mogavero
involved a sale agreement for real estate that required the subdivision of property
and defendants expressly agreed “to cooperate with [plaintiffs] and to execute and
deliver all necessary documents ... in connection with the application for the
permits.”189 When defendants unilaterally withdrew the subdivision application that
had been submitted by plaintiffs, the Court found that defendants “unreasonably
interfered with [plaintiffs’] efforts” under that agreement and failed to satisfy their
185
The case cited by Twin Willows, COPI of Del., Inc. v. Kelly, 1996 WL 633302 (Del.
Ch. Oct. 25, 1996), is distinguishable since that case involved standards for a preliminary
injunction. Id. at *7.
186
2007 WL 273843 (Del. Ch. Sept. 12, 2007).
187
D.I. 138, at 14-22.
188
Id., at 15 (“The distance between Mogavero and Twin Willows is vanishingly small.”).
189
Mogavero, 2007 WL 293843, at *3. The Court determined that the contractual duty to
cooperate was “an enhanced and express imposition of the duty inherent in all contracts:
the duty of good faith and fair dealing.” Id., at *6 (citation omitted).
39
contractual duty to cooperate.190 As relief, the Court ordered defendants to cooperate
with the subdivision application process and extended the agreement for one year.191
In this case, unlike in Mogavero, Pritzkur had no express duty to cooperate
with Twin Willows and its inherent duty to act with good faith and dealing was
subject to the Conditions.192 Further, in Mogavero, plaintiffs’ performance was
expressly subject to obtaining the subdivision approvals while there is no such
condition precedent in this case. Thus, I distinguish Mogavero from this case and
find that Twin Willows is not entitled to the same relief as order in Mogavero.
C. Twin Willows did not Prove Damages
Twin Willows also seeks damages for breach of contract.193 Lawrence
Respondents argue that the Agreement provides for an election of damages or
specific performance as a remedy.194 “Under Delaware law, the elements of a breach
of contract claim are: 1) a contractual obligation; 2) a breach of that obligation by
190
Id., at *5, *8. The application would not be considered without defendants’ participation
in the application process. Id., at *5.
191
Id., at *8.
192
See supra note 131 and accompanying text.
193
D.I. 1, ¶¶ 59-63 (Twin Willows’ breach of contract claim only sought equitable relief
as a remedy, although its prayer for relief asked for “attorney’s fees and damages”); see
also D.I. 149, at 10. Its briefing did not address the issue of damages. D.I. 138; D.I. 157.
Arguably, Twin Willows has waived any damages claim by not pursuing it in their
arguments, but I address this briefly for the sake of completeness.
194
D.I. 135, at 12-13; D.I. 155, at 12. Twin Willows did not respond to this argument. See
D.I. 157.
40
the defendant; and 3) resulting damage to the plaintiff.”195 First, I do not find in this
Report that Pritzkur breached any of his obligations under the Agreement. Further,
Twin Willows did not prove any damages resulting from any breach by Pritzkur.196
Therefore, Twin Willows’ claim for damages because of breach of contract fails.197
D. Attorneys’ Fees
Twin Willows and Respondents seek attorney’s fees.198 Neither Twin
Willows nor Pritzkur addressed attorneys’ fees in their briefing.199 “Delaware
follows the ‘American Rule,’ which provides that each party is generally expected
to pay its own attorneys’ fees regardless of the outcome of the litigation.”200 Under
the American Rule, each party is normally responsible for their own attorney’s fees,
whatever the outcome of the litigation, absent express statutory language to the
195
H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129, 140 (Del. Ch. 2003) (citation omitted).
196
Mast discussed payments he made over the course of the Agreement, see Trial Tr.
297:16-299:1, but the evidence indicated those expenditures were incurred consistent with
Twin Willows’ obligations under the Agreement (to pursue the Approvals with good faith,
diligent efforts) and not as a result of any breach committed by Pritzkur.
197
Because I find that Twin Willows did not prove a damages claim, I need not reach the
Lawrence Respondent’s argument about the Agreement providing an election of remedies.
198
D.I. 149, at 10, 11; see D.I. 1, ¶ 63.
199
See D.I. 134; D.I. 138; D.I. 153; D.I. 157. The Lawrence Respondents asked that the
Court “reserve decision on attorneys’ fees claims for all parties until [Twin Willows’]
claims are finally determined.” D.I. 155, at 19.
200
Shawe v. Elting, 157 A.3d 142, 149 (Del. 2017) (citation omitted); see also ATP Tour,
Inc. v. Deutscher Tennis Bund, 91 A.3d 554, 558 (Del. 2014); Mahani v. Edix Media Grp.,
Inc., 935 A.2d 242, 245 (Del. 2007).
41
contrary or an equitable doctrine exception, such as the bad faith exception.201 “The
bad faith exception is applied in ‘extraordinary circumstances’ as a tool to deter
abusive litigation and to protect the integrity of the judicial process.” 202 I find that
there is no basis in this case to justify the extraordinary action of fee shifting and
that each party should their own fees in this litigation.203
IV. CONCLUSION
For the reasons set forth above, I recommend that the Court enter judgment in
favor of Respondents and also decline to award attorneys’ fees. This is a Final
Master’s Report, and exceptions may be taken under Court of Chancery Rule 144.
Stays of exceptions in the following Master’s Reports are LIFTED:
• December 17, 2021 oral Final Master’s Report granting in part and denying
in part the Joint Motion to Modify a Subpoena and for a Protective Order;204
201
Delaware courts have awarded attorney’s fees for bad faith when “parties have
unnecessarily prolonged or delayed litigation, falsified records or knowingly asserted
frivolous claims.” Kaung v. Cole Nat. Corp., 884 A.2d 500, 506 (Del. 2005) (quoting
Johnston v. Arbitrium (Cayman Islands) Handels AG, 720 A.2d 542, 546 (Del. 1998))
(internal quotation marks omitted); see also RBC Capital Markets, LLC v. Jervis, 129 A.3d
816, 877 (Del. 2015) (citation omitted).
202
Montgomery Cellular Holding Co. v. Dobler, 880 A.2d 206, 227 (Del. 2005) (citation
omitted).
203
Although I ultimately conclude that Twin Willows’ position was not meritorious, its
position was not frivolous. See D.I. 38. In addition, I recognize that the parties have not
meaningfully briefed the issue of attorneys’ fees. However, since I find that the record is
clear that fee shifting would not be appropriate in this matter, I decline to defer
consideration of the attorneys’ fees issue, as Lawrence Respondents suggested. See D.I.
155, at 19.
204
D.I. 81; D.I. 87.
42
• January 13, 2022 oral Final Master’s Report denying in part and granting in
part Lawrence Respondents’ Motion for Protective Order;205
• January 12, 2022 Order denying Twin Willows’ Motion for Leave to File a
Motion for Summary Judgment;206
• February 28, 2022 Final Master’s Report granting in party and denying in part
Twin Willows’ Motion to Compel Production of Communications between
Robert Penza, Esq. and Trustee Lewis Pritzkur;207 and
• March 23, 2022 oral Final Master’s Report granting in part Twin Willows’
Motion to Seal Certain Financial Information and Specify Confidential
Treatment.208
Exceptions to those Reports may be taken under Court of Chancery Rule 144.
205
D.I. 92; D.I. 96.
206
D.I. 91.
207
D.I. 127.
208
Trial Tr. 11:7-16:8.
43