Clouser v. Marie ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JEFFREY A. CLOUSER, )
)
Plaintiff, )
) C.A. No. N21C-03-166 FWW
v. )
)
LISA MARIE, )
)
Defendant. )
Submitted: February 3, 2022
Decided: February 14, 2022
Upon Defendant Lisa Marie’s Motion to Dismiss
GRANTED.
MEMORANDUM OPINION
Jeffrey A. Clouser, 1332 Lovering Avenue, Wilmington, DE, 19806, Plaintiff,
pro se.
Judy M. Jones, Esquire, PARKOWSKI, GUERKE & SWAYZE, P.A., 1105 North
Market Street, 19th Floor, Wilmington, DE, 19801, Attorney for Defendant Lisa
Marie.
WHARTON, J.
I. INTRODUCTION
After an initial false start, pro se Plaintiff Jeffrey A. Clouser (“Clouser”) filed
an Amended Complaint (“AC”) enumerating six counts for which he seeks relief:
(1) Breach of Oral Contract (Count One); (2) Fraudulent Misrepresentation (Count
Two); (3) Tortious Interference with Prospective Business Relations (Count Three);
(4) Slander Per Se (Count Four) (5) Personal Injury of Mental Suffering and
Emotional Distress (Count Five); (5) Identifying Unknown Defendant (Count Six).1
The AC alleges, inter alia, that Marie, a licensed realtor, breached an “implied oral
contract” with Clouser to represent him in the purchase of a property at 227 Murphy
Road (“the Property”) in New Castle County.2 The other claims flow from, but are
collateral to, the alleged breach of the oral contract.3 The heart of the AC is that
Marie, after engaging with Clouser in March 2020 to explore his interest in
purchasing the Property abandoned him without notice. As a result, he was unable
to bid on the Property which ultimately sold about two months later.
Marie asks the Court to dismiss the AC pursuant to Superior Court Rules
12(b)(6) and/or 12(c).4 According to her, there was no oral contract between the
parties. She simply showed Clouser a few properties and because there was no
1
AC, D.I. 13.
2
Id.
3
Id.
4
Def.’s Mot. to Dismiss, D.I. 47.
2
written contract between them as required by law, she was free to disengage from
whatever relationship that existed between them at any time. Because she was free
to terminate the relationship at any time, the fraudulent misrepresentation claim fails
as well. Further, Clouser suffered no damages at all, much less the value of a
property he never owned. Next Marie argues that there are no facts alleged to
support the tortious interference with business claim, or his claim of mental
suffering. Finally, Marie argues that the AC alleges that Marie was the recipient of
slanderous comments about Clouser, not the one who made them.
After carefully reviewing the AC and the parties contentions, the Court
concludes for the reasons set out below that the AC fails to state a claim upon which
relief may be granted and/or Marie is entitled to judgment as a matter of law. The
factual allegations set out in the AC simply do not support Clouser’s contentions that
the parties entered into an enforceable oral contract, that Marie fraudulently
misrepresented herself, that she tortiously interfered with his business, that she
caused him compensable mental suffering, or that she slandered him. At best, the
AC describes a perceived slight when Marie, for whatever reason, ceased showing
Clouser potential properties to buy. It then alchemically attempts to transform that
slight into a viable lawsuit for money damages. Unfortunately for Clouser, there is
simply nothing compensable here.
3
II. FACTS AND PROCEDURAL HISTORY
On Friday, March 13, 2020 Clouser submitted his contact information to an
online real estate service expressing an interest in two properties on Murphy Road
in North Wilmington.5 Marie responded and the two met that same day to view the
properties.6 After viewing the properties, Marie suggested that Clouser might be
interested in seeing a third property located at 227 Murphy Road.7 Clouser agreed
and the two viewed the Property that same day.8 After viewing the Property, Clouser
told Marie that he was interested in buying it because it’s location suited his planned
transition to a home based business and asked if she would represent him in
purchasing it.9 She agreed and told Clouser she would research other potentially
suitable properties as well.10 Clouser then told Marie he would like his wife to view
the property as soon as possible, preferably within the next two days.11 Marie agreed
to schedule a weekend showing for Clouser and his wife, but failed to contact
Clouser to make arrangements.12
5
AC, at ⁋ 16, D.I.13.
6
Id., at ⁋⁋ 17-18.
7
Id., at ⁋ 19.
8
Id., at ⁋⁋ 20-23.
9
Id., at ⁋⁋ 25-26.
10
Id., at ⁋⁋ 27, 30.
11
Id., at ⁋ 32.
12
Id., at ⁋⁋ 32-34.
4
The parties then began communicating by text message. On Monday, March
16th, Clouser texted Marie and asked when she would be in North Wilmington.13
Marie responded that she would be back at work on Friday the 20 th.14 On March
19th, the Governor declared a state of emergency due to the COVID-19 pandemic
and closed many businesses.15 Although the Governor did not close the real estate
business, he did place restrictions on showing properties.16 The Property sold on
May 18, 2020, apparently without further communication between the parties.17
Clouser’s initial Complaint was filed on March 17, 2021, listing four “John
Doe” defendants in addition to Marie.18 The Court dismissed the Complaint only as
to the unnamed “John Doe” defendants on March 25th.19 On April 29, 2021, Clouser
filed the AC.20 Marie answered pro se on May 18th.21 After meeting with both
unrepresented parties on October 25, 2021, the Court issued a Trial Scheduling
Order.22 On December 8, 2021, counsel entered her appearance for Marie.23 Marie
13
Id., at ⁋ 36.
14
Id., at ⁋ 37.
15
Id., at ⁋ 39.
16
Id., at ⁋⁋ 40-41.
17
Id., at ⁋ 46.
18
Compl., D.I. 1.
19
D.I. 11.
20
AC, D.I. 13.
21
Ans., D.I. 19.
22
D.I. 22.
23
D.I. 35.
5
moved to dismiss on January 7, 202224 and Clouser responded in opposition on
February 3rd.25
III. THE PARTIES’ CONTENTIONS
In her Motion to Dismiss (the “Motion”), Marie argues that the AC does not
support the allegation of an oral contract between the parties – only that Marie
showed the property to Clouser one time, after which Marie had no further obligation
to maintain any agency relationship with him.26 According to Marie, at best, the AC
alleges that Clouser was “interested” in the property, that he “potentially” wanted to
purchase the property if his wife approved, and that Marie was going to show him
other commercial properties.27 The AC does not allege that Clouser instructed Marie
to make an offer for the property on his behalf, or even that he was prepared to make
one.28 Under 24 Del. C. § 2930(b), a buyer does not owe a fee to an agent absent a
written contract, and therefore there was no consideration for any implied oral
contract.29 Moreover, Marie contends that Clouser suffered no financial damages.
He did not expend any funds and should not receive the fair market value of a
property for free.30
24
Def.’s Mot. to Dismiss, D.I. 47.
25
Pl.’s Opp., D.I. 58.
26
Id.
27
Id., at ⁋ 7.
28
Id.
29
Id., at ⁋ 8.
30
Id., at ⁋ 9.
6
As to the remaining counts, Marie argues that Clouser fails to allege any false
representation she made upon which he detrimentally relied. Instead, he relies on
the assertion that Marie terminated an agreement to represent him.31 No specific
facts support his claims of tortious interference with prospective businesses relations
or mental suffering and emotional distress.32 The slander per se claim fails because
Clouser never alleges that Marie said anything slanderous, only that some unnamed
person said something slanderous to her.33
In response, Clouser argues that he has adequately pled the existence of an
oral contract with Marie for her to represent him as his agent in his effort to buy 227
Murphy Road.34 He maintains that the oral contract is evidenced both by the conduct
of the parties and Marie’s express agreement to represent him.35 Consideration was
to be Marie’s commission for Clouser’s purchase of the property.36 Regarding
damages, Clouser’s position is that he should not be punished financially for the loss
of an investment opportunity because of his reliance on Marie.37
31
Id., at ⁋ 11.
32
Id., at ⁋⁋ 12-14.
33
Id., at ⁋⁋ 15-18.
34
Pl.’s Opp., at ⁋ 4, D.I. 58.
35
Id., at ⁋⁋ 4-6.
36
Id., at ⁋ 7.
37
Id., at ⁋ 8.
7
Clouser argues that Marie fraudulently misrepresented herself as a real estate
agent acting in his best interests.38 Further, Marie’s text messages to him meet the
particularity requirement for pleading fraud.39 He responds to Marie’s argument that
no facts were pled supporting his claim of tortious interference with prospective
business relations by emphasizing that the AC alleges that Marie knew he planned
to use the property for commercial purposes.40 Regarding his slander per se claim,
Clouser argues that no reasonable realtor would abandon an “easy” commission. If
Marie engaged in conversations with third parties she is liable for slander per se.41
Finally, Clouser acknowledges he did not plead any specifics of his mental suffering
and emotional distress, but Marie is on sufficient notice of the claim and the basis
for it.42
IV. STANDARD OF REVIEW
A motion to dismiss for failure to state a claim pursuant to Superior Court
Rule 12(b)(6) will not be granted if the “plaintiff may recover under any reasonably
conceivable set of circumstances susceptible of proof under the complaint.”43 The
Court's review is limited to the well-pled allegations in the complaint.44 In ruling on
38
Id., at ⁋ 9.
39
Id.
40
Id., at ⁋⁋ 11-12.
41
Id., at ⁋ 13.
42
Id., at ⁋ 14.
43
Browne v. Robb, 583 A.2d 949, 950 (Del. 1990).
44
Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).
8
a 12(b)(6) motion, the Court “must draw all reasonable factual inferences in favor
of the party opposing the motion.”45 Dismissal is warranted “only if it appears with
reasonable certainty that the plaintiff could not prove any set of facts that would
entitle him to relief.”46
Pursuant to Super. Ct. Civ. R. 12(c), “[a]fter the pleadings are closed but
within such time so as not to delay the trial, any party may move for judgment on
the pleadings.”47 Upon considering such a motion, the Court must accept all well-
pled facts as true and must construe all reasonable inferences in favor of the non-
moving party.48 The motion may only be granted where the Court is satisfied that
“no material issue of fact exists and the movant is entitled to judgment as a matter
of law.”49
V. DISCUSSION
In Section V.A. below, discussing Clouser’s breach of contract claim, the
Court finds that the AC fails to state a claim that Clouser and Marie entered into
binding oral contract. Some other claims allege and are premised to a greater or
lesser degree on the existence of an oral contract. The absence of a properly pled
45
Id.46
Id.47
Super. Ct. Civ. R. 12(c).
48
Silver Lake Office Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at
*6 (Del. Super. Ct. Jan. 17, 2014).
49
Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund II, L.P., 624
A.2d 1199, 1205 (Del. 1993).
9
oral contract is fatal to those claims as well. Nevertheless, each of them fails
independently for the reasons set out in sections V.B., V.C., and V.E. below.
Section V.D. deals with Clouser’s slander per se claim and is independent from his
breach of contract claim. Further, because there appear to be no material issues of
fact (as opposed to Clouser’s incorrect legal conclusions) the Court finds that
Marie is entitled to judgment as a matter of law based on those facts.
A. Count One - Breach of Oral Contract Fails to Allege Necessary Elements
of a Binding Oral Contract.
In the AC, Clouser appears to use the terms “oral contract” and “implied oral
contract” interchangeably, but they are not the same. “An implied contract is one
inferred from the conduct of the parties, though not expressed in words. The parties’
intent and mutual assent to an implied in-fact-contract is proved through conduct
rather than words.”50 An express contract is arrived at by language and an implied-
in-fact contract by the actions of the parties.51 Thus, the term “implied oral contract”
is an oxymoron. In order to state a claim, the AC must allege either an implied-in-
fact contract or an oral contract.
It is clear to the Court that the AC fails to state a claim for an implied-in-fact
contract. Just the opposite. The AC alleges that after initially showing Clouser the
50
Capital Management Co. v. Brown, 813 A.2d 1094, 1098 (Del. 2002).
51
Phillips v. Wilkes, Lukoff & Bracegirdle, LLC, 2014 WL 4930693, at *3 (Del.
2014).
10
Property, Marie abandoned any efforts on his behalf. That abandonment is the
gravamen of the AC. An allegation that Marie did nothing on Clouser’s behalf
cannot be evidence that her conduct infers her assent to an implied-in-fact contract
to so something on his behalf. Therefore, in order to state a claim, the AC must
allege a valid oral contract.
Of course, outside of the Statute of Frauds, which is inapplicable here, an oral
contract, is perfectly enforceable once established. “It is the blackest of black letter
law that an enforceable contract requires an offer, acceptance, and consideration.”52
Implicit in that formulation is a requirement that the terms of a contract be
sufficiently definite.53 As alleged in the AC, Marie verbally accepted Clouser’s offer
to retain her to represent him in his efforts to buy the Property.54 But, that agreement
appears to be the end of any progress the parties made toward entering into a
contract, either written or oral. The AC identifies no contract terms other than that
Marie would represent Clouser in his attempt to buy the Property. Clouser
acknowledges that he understood that Marie would prepare a written contract
formalizing their relationship.55 Indeed, pursuant to 24 Del. C. § 2930(a) Clouser
52
Cigna Health and Life Insurance Company v. Audax Health Solutions, Inc., 107
A.3d 1082, 1088 (Del. Ch. Nov. 14, 2014).
53
Handler Corporation v. West American Insurance Company, 2022 WL 175769at *2 (Del. Super. Ct. Jan. 19, 2022).
54
Pl.’s Opp., at ⁋ 4, D.I. 58.
55
Id., at ⁋ 6.
11
had no obligation to pay compensation to Marie absent a written contract.56 That
section states, “Nothing in this chapter obligates a buyer…to pay compensation to a
broker…unless that party has entered into a written brokerage agreement with the
broker…specifying the compensation terms.” As a result, there was no
consideration for the putative oral contract, not even the speculative consideration
Clouser claims Marie would have received if he were able to buy the Property. At
most, the AC alleges a preliminary agreement on Marie’s part to assist Clouser in
buying the Property. Thus, it is clear from the AC that the parties (or certainly at
least Marie) understood that the terms of the proposed representation agreement
would be reduced to writing before it was complete and binding on them.
Because the Court has determined that no oral contract existed, it follows that
there was no breach of an oral contract. However, even if there was an oral contract
between Clouser and Marie, the breach of contract claim still would fail because
Clouser suffered no damages. The elements of a breach of contract claim are: (1) a
contract existed between the parties; (2) the defendant breached an obligation
imposed by the contract; and (3) the plaintiff suffered damages as a result of the
breach.57 As Marie points out in the Motion, Clouser did not expend any funds – he
56
24 Del. C. § 2930(a).
57
Levy Family Investors, LLC v. Oars + Alps LLC, 2022 WL 245543, at *9 (Del.
Ch. Jan. 27, 2022).
12
did not lose a deposit, nor did he pay Marie anything to show him properties.58 At
most, Clouser lost the opportunity to make an offer to buy the Property. Whether
his offer would have been successful is unknown, as is the value of his missed
opportunity. Instead, Clouser claims damages in the amount of $305,000, which
apparently represents the sale price of the Murphy Road property, plus additional
compensation for the property’s appreciation. This damages claim is fanciful.
Clouser still possesses all of the funds he would have expended in purchasing the
Property. He has no out-of-pocket damages but seeks to be compensated in an
amount equal to the fair market value of a property he never owned. In effect,
Clouser wants to be paid for losing something he never had. Such windfall damages
are not an appropriate measure of a legitimate loss.
B. Count Two - Fraudulent Misrepresentation Fails to State a Claim.
To prevail at trial on a fraud claim, a plaintiff must prove by a preponderance
of the evidence that a defendant engaged in fraudulent conduct.59 “The general
elements of common law fraud under Delaware law are: (1) defendant's false
representation, usually of fact, (2) made either with knowledge or belief or with
reckless indifference to its falsity, (3) with an intent to induce the plaintiff to act or
refrain from acting, (4) the plaintiff's action or inaction resulted from a reasonable
58
Def.’s Mot. to Dismiss, at ⁋ 9, D.I. 48.
59
George v. A. C. & S. Co., 1988 WL 22365, at *1 (Del. Super. Ct. Feb. 16, 1988).
13
reliance on the representation, and (5) reliance damaged the [plaintiff].”60
Additionally, when alleging fraud, “the circumstances constituting fraud shall be
stated with particularity.”61
A fraud claim may not be an improperly “bootstrapped” breach of contract
claim, under the “Anti-Bootstrapping Rule.” What constitutes improper
bootstrapping is not entirely clear.62 However, a reasonable statement of the Rule is
that it generally applies when a plaintiff attempts to transmute a breach of contract
claim into a fraud claim by adding conclusory allegations to its breach of contract
claim.63 It bars a fraud claim where the plaintiff merely sprinkles the complaint with
terms like “fraudulently induced,” or alleges that the defendant never intended to
comply with the agreement at issue at the time the parties entered into it.64
Clouser alleges that Marie “fraudulently misrepresented herself as his realtor
when she unilaterally refrained from working on his behalf without notifying him of
her decision.”65 He also alleges that Marie’s agreement to represent him “was
afterwards unduly influenced by the slander per se of Plaintiff by, the as of yet,
Unknown Defendant(s) John Doe, when Defendant unilaterally refrained from
60
Browne v. Robb, 583 A.2d 949, 955 (Del. 1990).
61
Super. Ct. Civ. R. 9(c).
62
Levy, at *7.
63
Swipe Acquisition Corporation v. Krauss, et al., 2020 WL 5015863, at *11 (Del.
Ch. Aug. 25, 2020).
64
Id., at 8 (internal quotes omitted).
65
AC, at ⁋ 96.
14
representing plaintiff as a buyer in a real estate transaction without informing
Plaintiff.”66 In other words, the AC alleges that sometime after Marie told Clouser
she would be his realtor she was induced by someone whose identity is unknown to
terminate her representation. It follows that Marie’s statement that she would be his
realtor was not false when she made it. Therefore, the allegations of the AC establish
that she did not fraudulently misrepresent herself.
Further, the fraudulent misrepresentation count is an improper attempt to
bootstrap a breach of contract allegation into a fraud claim. The fraudulent
misrepresentation claim really is nothing more than the breach of contract claim with
the term “fraudulent misrepresentation” thrown in a few times.
C. Count Three - Tortious Interference with Prospective Business Relations
Fails to State a Claim.
A properly stated claim for tortious interference with prospective business
relations must allege: (1) a reasonable probability of a business opportunity; (2)
intentional interference by a defendant with that opportunity; (3) proximate
causation; and (4) damages.67 The allegations in the AC specific to this claim simply
repeat Clouser’s mantra the Marie breached an oral contract to represent him as his
realtor in his attempt to purchase the Property by abandoning any efforts on his
66
Id., at ⁋ 101.
67
Beard Research, Inc. v. Kates, 8 A.3d 573, 607-8 (Del. Ch. 2020)
15
behalf.68 Incorporating by reference the previous allegations in the AC only bolsters
the claim to the extent that Marie knew Clouser intended to use the Property for
business purposes. Nowhere does the AC identify a reasonable probability of any
specific business opportunity with which Marie allegedly intentionally interfered or
how her alleged breach of an oral contract was the proximate cause of the loss of
any specific prospective business opportunity. The AC also fails to allege any
damages particular to a specific business opportunity. The AC fails to allege any of
the elements of a tortious interference of a prospective business opportunity claim.
D. Count Four - Slander Per Se Fails to State a Claim.
At common law, defamation consists of the “twin torts” of libel and slander,
with libel being written defamation and slander being oral defamation.69 Clouser
alleges slander per se. The four types of slander per se are: (1) maligning one in a
trade, business, or profession; (2) imputing a crime; (3) implying one has a
loathsome disease; or (4) imputing unchastity to a woman.70 The AC generically
alleges the first three categories without specifying any specific slanderous
statement.71 More fundamentally, however, this count must be dismissed because
the AC alleges that some unknown person uttered the slanderous statement(s) to
68
AC, at ⁋⁋ 95-104.
69
Spence v. Funk, 396 A.2d 967, 970 (Del. 1978).
70
Optical Air Data Systems, LLC v. L-3 Communications Corporation, 2019 WL
328429, at *7 (Del. Super. Ct. Jan. 23, 2019).
71
AC, at ⁋⁋ 122-123.
16
Marie.72 Making the listener liable for the slander of the speaker turns the concept
of slander on its head.
E. Count Five - Personal Injury of Mental Suffering and Emotional Distress
Count Fails to State a Claim.
Clouser alleges in this count that Marie caused him mental suffering and
emotional distress as a result of the conduct alleged in the preceding counts. Because
those counts fail to state claims upon which relief can be granted, this claim does as
well.73 To the extent Clouser is attempting to make out a claim of intentional
infliction of emotional distress, the AC fails. Such a claim requires that a defendant
“by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another.”74 The AC fails to allege any conduct that is close to
being extreme or outrageous.
F. Count Six – Identifying Unknown Defendant Fails to State a Claim.
This count seeks the identity of an unknown person whom Clouser alleges
dissuaded Marie from continuing to work with him by slandering him to her.75 To
the extent such person exists, Clouser had the opportunity through discovery to
72
The Count also is defective because it does not identify the slanderous
statement(s).
73
AC, at ⁋⁋ 137-142.
74
Spence v. Cherian, 135 A. 3d 1282, 1288, 89 (Del. Super. Ct. 2016) (quoting the
Restatement (Second) of Torts, § 46).
75
AC, at ⁋⁋ 146-154.
17
learn that person’s identity. Count Six does not state a valid claim form relief and
is not a proper vehicle for obtaining the information he seeks.
THEREFORE, for the reasons set forth above, Defendant Lisa Marie’s
Motion to Dismiss is GRANTED. The Amended Complaint is DISMISSED
PREJUDICE.
IT IS SO ORDERED.
/s/ Ferris W. Wharton
Ferris W. Wharton, J.
18