Scott D. Wollard v. Yoder and Sons Construction, LLC ( 2021 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
SCOTT D. WOLLARD, )
)
Plaintiff, )
)
v. ) C.A. No. 2020-0599-SG
)
)
YODER AND SONS )
CONSTRUCTION, LLC, )
)
Defendant. )
MEMORANDUM OPINION
Date Submitted: December 17, 2020
Date Decided: January 15, 2021
Scott D. Wollard, pro se Plaintiff.
David C. Hutt and Michelle G. Bounds, of MORRIS JAMES LLP, Georgetown,
Delaware, Attorneys for Defendant Yoder and Sons Construction, LLC.
GLASSCOCK, Vice Chancellor
The Plaintiff, Scott Wollard, is a lot owner in a housing development just west
of the Lewes and Rehoboth canal, outside Rehoboth Beach. 1 His house was
destroyed by a fire in 2017. He hired Defendant Yoder and Sons Construction, LLC
(“Yoder”) to rebuild. Per the construction contract (the “Contract”),2 the house was
to be complete September 15, 2019; 3 it remains unfinished. Predictably, the parties
disagree as to the blame for this.
Wollard, appearing pro se, has sued Yoder for breach of contract, via an
amended complaint filed on September 15, 2020 (the “Amended Complaint”).4
Breach of contract is a legal action, for which damages are available. 5 The parties,
I note, negotiated for a liquidated damages provision in the Contract. A contract
action for damages is an action at law. Wollard also alleges, confusingly to me,
1
The improbable name of which is “The Grande at Canal Pointe.”
2
Exs. Part 1 of Part 2 filed by Scott Wollard on 11-12-20, Dkt. No. 27 [hereinafter “Ex. 1 to Pl.’s
Nov. 12 Ltr.”]. Ex. 1 to Pl.’s Nov. 12 Ltr. appears to include documents other than the Contract,
and it does not have page numbers. For clarity’s sake, I will refer to the pages of the Exhibit as
though it were paginated in normal fashion. The Contract is located at pages 8–13 of the 25-page
Exhibit.
3
Ex. 1 to Pl.’s Nov. 12 Ltr., at 11.
4
Am. Compl. for Specific Performance, Breach of Contract filed by Scott Wollard on 9-15-20,
Dkt. No. 14 [hereinafter “Am. Compl.”].
5
Wollard also alleges breach of the implied covenant, which is also a contract claim at law.
1
negligence on the part of Yoder in performing the Contract. 6 Negligence is a legal
claim sounding in tort. 7
Chancery is a court of limited equitable jurisdiction. Absent statutory
jurisdiction not pertinent here, Chancery is limited to that jurisdictional sphere
enjoyed by the English Court of Chancery as of the time of this State’s independence
from Britain in 1776. 8 Chancery, accordingly, may adjudicate only two types of
cases. The first involves equitable causes of action (notably cases involving
fiduciary duties). The instant matter, as just noted, is legal, not equitable. The
second arena of Chancery jurisdiction involves legal causes where equitable relief
is required, because adequate relief is unavailable at law. The Defendant has
moved to dismiss under Court of Chancery Rule 12(b)(1), due to lack of equitable
jurisdiction here. Upon review of the Amended Complaint and the documents
referenced therein, I find that the Defendant’s Motion must be granted.
6
Wollard alleges “intentional negligence” in interference with the Contact. I have been more than
twenty years a progger in the marshes and swamps of equity, but I admit I have never run across
such a beast as “intentional negligence,” let alone one menacing contractual rights. Perhaps in the
broader uplands of legal jurisdiction such a rare animal may be found, but he surely is in the genus
Tort, and therefore legal in his nature, if he exists.
7
Wollard brings six “counts,” but in addition to two claims sounding in contract and one in tort,
the rest are not causes of action, but instead requests for remedies: specific performance,
“temporary” injunction, and expedition.
8
Clark v. Teeven Holding Co., 625 A.2d 869, 875 (Del. Ch. 1992) (citing Glanding v. Indus. Trust
Co., 45 A.2d 553, 555–56 (Del. 1945)).
2
Wollard contends that a court of law would afford him only an inadequate
remedy. He invokes this Court’s equitable power for two types of equitable relief:
he seeks an order requiring specific performance of the Contract, and he seeks an
injunction prohibiting Yoder from undertaking any other construction work until
Wollard’s house is complete. The question before me is whether the money-
damages relief available to Wollard at law is nonetheless sufficient to remedy any
breach. If it is, I have no jurisdiction here and Wollard must pursue his damages at
law.
Generally, contract damages9 are a sufficient remedy for breach.10 This
rationale is particularly persuasive, where, as here, the parties have provided for
liquidated damages in the case of breach.11 Nonetheless, Wollard contends such
damages are insufficient, and that equity therefore must act.
9
As noted above, the Amended Complaint attempts to plead negligence in frustration of the
Contract. Because, for purposes of analysis of the jurisdictional issue, the negligence count is
redundant of the contract claim, I do not address negligence separately, but include it generally in
consideration of the availability of contract damages.
10
W. Air Lines, Inc. v. Allegheny Airlines, Inc., 313 A.2d 145, 149 (Del. Ch. 1973) (“[I]t is
ordinarily the case that: ‘. . . a party aggrieved by a claimed breach of contract or injured as a
result of a tort has a complete and adequate remedy at law in the form of an action for damages.’”)
(quoting Hughes Tool Co. v. Fawcett Publications, Inc., 297 A.2d 428, 432 (Del. Ch. 1972), rev’d
on other grounds 315 A.2d 577 (Del. 1974) (“It is true that ordinarily a party with [breach of
contract and inducement of breach] claims has an adequate remedy at law.”)).
11
See Lyons Ins. Agency, Inc. v. Wilson, 2018 WL 4677606, at *9 (Del. Ch. Sept. 28, 2018) (noting
that a buyout provision “functioned as a liquidated damages clause, and prevented a finding of
threatened irreparable harm, and thus injunctive relief” at the preliminary injunction phase).
3
I. FACTS 12
The facts pertinent here are undisputed, and are taken from the Amended
Complaint and documents referenced therein. Wollard lives in New York City, New
York. He had a second home near Rehoboth, in a housing tract known as The
Grande at Canal Pointe (“TGACP”). Unfortunately, his property burned in
September 2017. Wollard engaged in a competitive bidding process, and chose
Yoder to rebuild on his lot. Pursuant to the resulting Contract, the construction was
to be completed by September 15, 2019. Time was of the essence. Yoder
“abandoned” the project, however, and the house remains partially completed and
unfit for habitation.
Wollard filed his initial complaint on July 20, 2020, with a motion for a
“temporary injunction” and a motion to expedite. 13 Yoder moved to dismiss. In
response, Wollard filed both an answering brief and the Amended Complaint.14 In
September 2020, Yoder renewed its motion to dismiss. Briefing concluded on
12
The facts, except where otherwise noted, are drawn from the Amended Complaint, and exhibits
or documents incorporated therein, and are presumed true for the purposes of the Defendant’s
Motion to Dismiss.
13
Compl. For Specific Performance, Breach of Contract with Certificate of Service filed by Pro
Se Pl., Scott D. Wollard, on 7-20-20, Dkt. No. 1; Mot. for Temp. Inj. filed by Pro Se Pl., Scott D.
Wollard, on 7-20-20, Dkt. No. 2; Mot. for Expedited Proceedings filed by Pro Se Pl., Scott D.
Wollard, on 7-20-20, Dkt. No. 3.
14
Pl.’s Answer to Def.’s Aug. 27, 2020 Def.’s [sic] Mot. to Dismiss Pl.’s Compl., Pl.’s Mot. for
Temp. Inj. and Pl.’s Mot. for Expedited Proceedings filed by Scott Wollard on 9-15-20, Dkt. No.
14; Am. Compl.
4
December 4, 2020, and, having decided that oral argument is unnecessary, I consider
the matter fully submitted as of December 17, 2020. 15
II. ANALYSIS
The remedy under the facts alleged would seem to be obvious: hire a new
contractor, have the house finished, and sue for damages. Such a remedy is available
at law. The burden is on Wollard to establish that, nonetheless, equitable jurisdiction
exists.16 He asserts that legal damages are insufficient, for numerous reasons, and
seeks specific performance of the Contract.
A. The subject matter of the Contract is not unique, so as to require equity to
act.
Wollard points out that land is unique, and that this Court may, as a result,
specifically enforce contracts for purchase and sale of real property. 17 Construction
of a frame dwelling house itself is not similarly unique, however. In fact, Wollard
solicited bids for the project from nine other contractors.18 Nonetheless, he points
to several reasons why only Yoder can satisfy the particular requirements of the
15
Ltr. to Litigants, Dkt. No. 33.
16
All. Compressors LLC v. Lennox Indus. Inc., 2020 WL 57897, at *3 (Del. Ch. Jan. 6, 2020)
(“The party seeking an equitable remedy has the burden to show that a legal remedy would be
inadequate.”) (quoting Amaysing Techs. Corp. v. Cyberair Commc’ns, Inc., 2004 WL 1192602, at
*2 (Del. Ch. May 28, 2004)).
17
E.g., DeMarie v. Neff, 2005 WL 89403, at *4 (Del. Ch. Jan. 12, 2005) (“Specific performance
is a remedy that is particularly suitable for land given its unique characteristics.”).
18
Am. Compl. ¶ 5.
5
project. First, he asserts that Yoder is an adherent to the Amish sect of Christianity19
(Wollard asserts elsewhere in the pleadings that Yoder is a Mennonite)20 and that
the particular qualities of such religious adherents make their work irreplaceable.21
Without denigrating the work of either sect, this assertion is fatuous and conclusory.
I note that Wollard also accuses Yoder of bad faith in the execution of the contract.22
Next, Wollard argues that Yoder promised “Yoder custom cabinets” which
are, Wollard asserts, irreplaceable by other builders, a quality of cabinetry loss which
is presumably irremediable by damages. 23 This is a conclusory assertion for which
Wollard makes no specific pleadings, and is not consistent with common sense.24
The assertion of the unique nature of Yoder’s contracting abilities, I note, is belied
by the relief sought in the amended complaint—to compel Yoder or another
contractor to complete the contract. 25
19
Pl.’s Answering Br. in Response to Def.’s Opening Br. Regarding Def.’s Renewed Mot. to
Dismiss Pl.’s Compl., Pl.’s Mot. for Temp. Inj. and Pl.’s Mot. for Temp. Inj. [sic] and Pl.’s Mot.
for Expedited Proceedings and Certificate of Service 29, Dkt. No. 23 [hereinafter “Pl.’s Answering
Br.”].
20
Ltr. to Vice Chancellor Glasscock to be Taken into Consideration of the Pl.’s Compl., Am.
Compl., and Answering Br. Regarding Hearing the Compl. and Granting the Mot. for Expedited
Proceedings filed by Scott Wollard 11-12-20, at 1, Dkt. No. 27 [hereinafter “Pl.’s Nov. 12 Ltr.”].
21
Id.
22
Am. Comp. ¶ 26; Pl.’s Answering Br. 2.
23
Pl.’s Nov. 12 Ltr., at 1.
24
I need not accept conclusory allegations in considering a motion to dismiss. MaD Inv’rs GRMD,
LLC v. GR Companies, Inc., 2020 WL 6306028, at *2 (Del. Ch. Oct. 28, 2020) (“[T]he Court ‘need
not accept conclusory allegations as true, nor should inferences be drawn unless they are truly
reasonable.’”) (quoting Sheldon v. Pinto Tech. Ventures, L.P., 220 A.3d 245, 251 (Del. 2019)).
25
Am. Compl. ¶ 40 (“Plaintiff respectfully requests that the Court order the specific performance
of the Contract either by Defendant or a builder to replace Defendant with Defendant paying all
damages.”). Because I find that Wollard has not demonstrated that a remedy at law is insufficient
6
Wollard next makes assertions based on the unique nature of the harm he has
suffered. He alleges that damages cannot compensate him for the lost opportunity
to relocate from New York City to Sussex County in 2019. 26 As a great admirer of
Sussex County, I cannot disagree, but such a loss is not remediable in equity, either.
The same applies to his claims that damages cannot address the psychic harm of
seeing bird feces in the unfinished structure, an image “that will never be
forgotten,”27 or the insults left on the unfinished walls of the house, in graffiti. I
confess this harm is beyond the remedies that even equity, in my limited
imagination, may set right; an injunction would provide no relief. I must say the
same with respect to Wollard’s poignant assertion that time is linear, and that the
memories he and his family have not created are irreplaceable. Specific performance
is a powerful, but not metaphysical, remedy. Lastly in this category, Wollard assets
that the lack of construction progress is causing “harm to [his] reputation” with
suppliers and tradesmen, as well as in the community of TGACP at large. I assume
that Wollard’s reputation among these groups was sterling, and hope it remains so;
here, I need not address further whether this Court would order specific performance of this
construction project, which would, I suspect, require a level of judicial supervision greatly in
excess of what this Court could reasonably provide. See Williams v. White Oak Builders, Inc.,
2006 WL 1668348, at *4 n.67 (Del. Ch. June 6, 2006), aff’d sub nom. Williams v. White Oak
Builders, 913 A.2d 571 (Del. 2006).
26
Wollard points out that the house could have provided a refuge from COVID, but given the
current stage of the pandemic in Sussex County, I am not persuaded that this is an ongoing harm
remediable in equity.
27
See Pl.’s Answering Br. 17.
7
I cannot imagine how specific performance of the Contract could enhance it further,
however.
In a more concrete fashion, Wollard argues that the parties to the Contract
agreed that time was of the essence. He urges me to find that an especial harm is
thus present here. Again, however, specific performance cannot remedy the fact that
the Contract was to be completed over a year ago, nor is there any indication that an
equitable remedy is superior to the legal remedy in securing promptly a dwelling on
Wollard’s lot. In any event, a time-is-of-the-essence clause goes to whether a minor
deviation from a date on which action is required is a breach of the contract; such a
clause does not of itself invoke equity.
In short, Wollard has alleged that Yoder has abandoned the project, in breach
of the Contract, and that he has been and continues to be damaged as a result. It is
clear to me that his frustration at this situation is sincere. If true, he is entitled to
relief. He has stated nothing, however, that separates this case from the traditional
rule that such a breach receives adequate remedy in legal damages.28 Here, in fact,
the parties agreed to liquidated damages, further negating any claim that equity must
act.29 Because a legal remedy is adequate here, the contract claim must be
dismissed. 30
28
See W. Air Lines, Inc. v. Allegheny Airlines, Inc., 313 A.2d 145, 149 (Del. Ch. 1973).
29
See Lyons Ins. Agency, Inc. v. Wilson, 2018 WL 4677606, at *9 (Del. Ch. Sept. 28, 2018).
30
The negligence claim is included here, for reasons set out above.
8
B. A preliminary injunction is not warranted here.
Wollard seeks a “temporary injunction” prohibiting Yoder from doing other
contracting work until the Contract is specifically preformed. This is a tool to coerce
the specific performance remedy; as I have found that damages provide sufficient
relief, I need not consider a coercive injunction in aid of that remedy here. For
completeness’ sake, however, I note that Yoder’s argument—that facts are in
dispute, precluding such relief and mandating a dismissal—is misplaced. If a request
for a preliminary injunction had been properly pled, a factual dispute would not
require dismissal at the pleading stage. The standard of proof required for the
injunction sought—which Yoder characterizes as a positive injunction—and
whether such a standard could be met would be a matter for decision on a record.
III. CONCLUSION
The Plaintiff’s claims are legal, and an adequate remedy exists at law.
Accordingly, I have no jurisdiction in the matter. The Defendant’s Motion to
Dismiss is granted, unless the Plaintiff elects to transfer the matter to a court of law
consistent with 10 Del. C. § 1902. An appropriate order is attached.
9
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
SCOTT D. WOLLARD, )
)
Plaintiff, )
)
v. ) C.A. No. 2020-0599-SG
)
)
YODER AND SONS )
CONSTRUCTION, LLC, )
)
Defendant. )
ORDER
WHEREAS, upon consideration of Defendant’s Motion to Dismiss under
Court of Chancery Rule 12(b)(1) and the briefing of the parties with respect thereto,
the Court on January 15, 2021, issued a Memorandum Opinion granting the Motion
to Dismiss,
NOW, THEREFORE, IT IS HEREBY ORDERED, that:
1. For the reasons stated in the January 15, 2021 Memorandum Opinion, the
Defendant’s Motion to Dismiss is GRANTED, unless the Plaintiff elects to transfer
the matter to a court of law consistent with 10 Del. C. § 1902.
IT IS SO ORDERED this 15th day of January, 2021.
/s/ Sam Glasscock III
Vice Chancellor