Don T. Clymer v. Nancy C. DeGirolano

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
DON T. CLYMER and )
BEATRICE C. CLYMER )
)
Petitioners, )
) C.A. No. 2021-0004-SEM
v. )
)
NANCY C. DeGIROLANO and )
JOSEPH DeGIROLANO )
)
Respondents. )
MASTER’S FINAL POST-TRIAL REPORT
Final Report: July 5, 2023
Date Submitted: March 22, 2023
David J. Weidman, SERGOVIC CARMEAN WEIDMAN MCCARTNEY &
OWENS PA, Georgetown, Delaware; Counsel for Petitioners.
Richard L. Abbott, ABBOTT LAW FIRM, LLC, Wilmington, Delaware; Counsel
for Respondents.
MOLINA, M.
This case is a property dispute, complicated by the underlying family
dynamics. Formerly close family members dispute whether the matriarch of the
family transferred, gifted, or promised to gift a portion of her property to her
daughter and son-in-law over 25 years ago. If so, the daughter and son-in-law argue
that the matriarch’s transfer of that same property to her son in 2020 was invalid and
the parties to that transfer should be held liable for their inequitable conduct.
Ownership is hotly contested not just because the land is family property but
because the property has commercial value—it has been the site of a roadside fruit
stand for over 12 years. The daughter and son-in-law wish to continue operating that
stand; the matriarch wants the growing business off her front lawn.
In this final report and on the record developed during a four-day trial, I find
the daughter and son-in-law, at most, had a license to operate their business on the
matriarch’s property. That license was revoked, and the daughter and son-in-law do
not have an enforceable future interest in the property. They are entitled, however,
to reimbursement for improvements made to the property after 2009. That
reimbursement should be offset, however, by the reasonable rent owed to the new
property owner, up to the amount of the injunction bond. I recommend the parties
meet and confer regarding the rent/reimbursement offset and propose an appropriate
form of order to bring this matter, and their disputes, to a close.
1
I. BACKGROUND1
The property at issue is located at 32861 Long Neck Road, Millsboro
Delaware (the “Property”) and is adjacent to a 70-acre farm with a farmhouse (the
“Farmhouse”).2 The Property is a four-acre parcel with a residence on the back two-
acres and a block building on the front two-acres (the “Front Acres”).3 Ownership
of the Front Acres is in dispute.
Before I get into the ownership and use of the Property, I pause to identify the
key players in this litigation. The above-referenced matriarch is Nancy DeGirolano
(“Nancy”). Nancy and her husband Anthony DeGirolano (“Anthony”) had six
children, four boys (Gene DeGirolano (“Gene”), Anthony DeGirolano Jr. (“Tony”),
James DeGirolano (“Jimmy”), and Joseph DeGirolano (“Joseph”)) and two girls
(Diana DeGirolano (“Diana”) and Beatrice Clymer (“Beatrice”)).4 Beatrice and her
1
The facts in this report reflect my findings based on the record developed at trial on
December 5, 7, 9, and 13, 2022. See Docket Item (“D.I.”) 168. I grant the evidence the
weight and credibility I find it deserves. Citations to the trial transcripts are in the form
“Tr. #.” D.I. 171-174. The Clymers’ exhibits are cited as “PX __.” The DeGirolanos’
exhibits are cited as “RX __.” All exhibits referenced herein were admitted at trial without
objection. See Tr. 36:5-24, 999:10-1000:1. In their post-trial submissions, neither side
presented objections to the exhibits admitted. See D.I. 175, 176, 178.
2
Tr. 12:2-4, 12:14-16. The 70-acre farm is owned jointly by Nancy and her sister, Beatrice
(“Aunt Bea”). Tr. 207:13-15.
3
Tr. 9:22-24, 201:17-23, 796:5.
4
Tr. 797:12-18. Diana sadly passed away several years ago from cancer. Tr. 276:24-
277:3. Anthony was known by family and friends as “Muzzi.” Tr. 14:14-17. I do not
assume such familiarity. I refer to the parties by first name for the sake of clarity, intending
no disrespect.
2
husband Don Clymer (“Don,” and together with Beatrice, the “Clymers”) initiated
this action seeking ownership of the Front Acres.5
I address the historical ownership and use of the Property, with the relevant
family dynamics, in chronological order.
A. Pre-1997
On February 6, 1975, Nancy inherited the Property from her aunt, Radie K.
Moore.6 She did not, however, immediately use the Property. Rather, Nancy and
her husband, Anthony, continued to live in their home at 341 Salem Church Road in
Newark, Delaware (the “Newark Property”) until the late 1980s or early 1990s.7
While her parents lived at the Newark Property, Beatrice would “pick strawberries
and other produce” and sell it off the Newark Property.8
Sometime before 1990, per Nancy, the State took the Newark Property and
she and Anthony decided to build a new home on the Property in 1990 or 1991.9
After a few years in their new home, Beatrice asked her parents if she could sell
produce off the Front Acres, like she had done at the Newark Property.10 Beatrice
5
D.I. 1, 77.
6
Tr. 815:2; RX 38.
7
Tr. 204:19-20, 815:4-6.
8
Tr. 204:14-20.
9
Tr. 204:19-20; 815:4-6.
10
Tr. 204:15-16.
3
testified that Anthony “was all for it” and that Nancy “didn’t say she wasn’t.”11 With
that tacit approval, in or about the summer of 1996, the Clymers began selling
produce on the Front Acres.12
The setup, at first, was minimal. The Clymers used a wagon and had tarps to
protect the produce when it rained.13 At some time, according to Nancy, the Clymers
were selling out of “a little shed . . . on there” that used to store the produce.14 But
“closer to the fall, the winds got real bad.”15 Wind would knock over the carts and
rain was damaging the produce.16 According to Don, Anthony suggested the idea of
constructing a block building on the Front Acres “so [the Clymers] wouldn’t have
an issue with everything getting blown around.”17
B. The Agreement
Before any building was constructed, however, the Clymers contend that their
interest in the Front Acres was memorialized. It happened in 1997, while the
11
Tr. 205:15-19.
12
Tr. 13:23-14:1.
13
Tr. 13:23-24, 205:3-8.
14
Tr. 802:3-9.
15
Tr. 14:5-7.
16
Tr. 14:6-22, 205:6-8.
17
Tr. 14:10-22. Beatrice contends that Nancy was a part of the discussion surrounding the
need for a building. Tr. 207:4-9. But see Tr. 797:22-798:7 (Nancy) (testifying that she
believed Anthony approved the building because he “probably wanted to work” and “liked
doing things like that”).
4
Clymers were living in the Farmhouse, adjacent to the Property.18 As close family
and neighbors, the Clymers would regularly enjoy morning coffee with Nancy and
Anthony at the Property.19 According to Nancy, the Clymers were “always” at her
house when they lived at the Farmhouse.20
On the morning of March 1, 1997, the Clymers went to the Property, much
like any other day.21 But on that morning, per the Clymers, five people were present
when they arrived: Ron Simpler, Sr. (“Ron Sr.”), Ron Simpler, Jr. (“Ron Jr.”),
Anthony, and Nancy.22 Nancy denies being present.23 And Nancy’s son, Gene,
18
Tr. 22:8-11. Beatrice explained that the Clymers originally moved into the Farmhouse
because their house in Georgetown, Delaware had a tenant in it. Tr. 210:18-23. Nancy did
not ask the Clymers to sign a lease and the Clymers did not pay rent to live in the
Farmhouse. Tr. 801:6-10.
19
Tr. 206:2-3, 212:24-213:2, 807:17-19.
20
Tr. 808:7.
21
Tr. 24:7-14, 807:3-10. Per the Clymers, Nancy called them to come down to the house
on the Property. Tr. 123:20-22, 214:13-18. Don testified that it was their routine to have
morning coffee at Nancy’s. Tr. 15:1-3. Nancy, however, recalls that the Clymers came
down that day uninvited, as they had done on previous occasions. Tr. 807:20-24. She does
not recall calling them and testified that she was out shopping when the Clymers arrived at
her home. See Tr. 854:11. To her recollection, she got to the store at 7:00 A.M. and returned
home “[b]etween 9:00 and 9:30 [A.M.].” Id. She does, however, recall the Clymers,
Anthony, Ron Sr., and Gene being at her house when she returned. Tr. 854:8-20.
22
Tr. 95:4-8, 217:4-6. Ron Sr. was a friend of Anthony’s. Tr. 206:7-10, 217:6-7, 810:15-
16.
23
Tr. 806:7-10.
5
testified that he was present, not Ron Jr.24 Gene also testified that Nancy “wasn’t
home at the time.”25 Conversely, the Clymers deny that Gene was present.26
Per the Clymers, they walked into the group of five reviewing a document in
the center of kitchen table.27 The document was a single-page, type-written text
purporting to transfer the Front Acres of the Property to the Clymers (the
“Agreement”). It provided:
Agreement dated March 1st 1997
This agreement is between Nancy C DeGirolano and Anthony P
DeGirolano and Beatrice C Clymer and Don T Clymer.
The agreement is that Nancy and Anthony are giving the front of their
property at RR #1 Box346 Longneck RD Millsboro DE 19966 for the
sum of One United States Dollar. To Beatrice and Don.
The propose [sic] of this is for Beatrice and Don to build their produce
building.
After the death of Nancy and Anohony [sic] DeGirolano Beatrice and
Don will pay for subdivision of 2 acers [sic] and transfer tax.28
None of the witnesses who testified at trial seem to know how this mystery document
came to be. Don testified that he did not know who created the Agreement and he
did not own a typewriter in 1997.29 Beatrice also denied knowing where the
24
Tr. 582:1-24. Nancy could not recall if Ron Jr. was present. Tr. 854:21-855:6. She did,
however, concede that the Simplers were at her house a lot. Tr. 854:24 (“[Ron Sr. and Ron
Jr.] were always at my house.”).
25
Tr. 561:18-19.
26
Tr. 25:11-20, 217:18-218:2.
27
Tr. 24:13-14, 214:13-18.
28
PX 2.
29
Tr. 23:9-20.
6
Agreement came from and testified that she did not own a typewriter in 1997.30
Nancy was also unaware of how the Agreement was created and was unsure if the
Clymers or Simplers had access to typewriters or computers.31
The parties also dispute who signed the Agreement that morning. At the
bottom of the Agreement are signatures purporting to be from Anthony, Nancy, Don,
and Beatrice, with Ron Sr. and Ron Jr. as witnesses.32 Nancy testified that she “didn't
know nothing about it and that wasn’t [her] signature.”33 She unequivocally denies
signing the Agreement.34 Don testified that “[Anthony] signed it and [Nancy] signed
it, me and [Beatrice] signed it. And then [Anthony]’s buddy [Ron Simpler Sr.] and
his son [Ron Simpler Jr.] signed it.”35
Gene tells a different story. He recalls everybody was seated at the table with
the Agreement sitting in front of Ron Sr.36 “[Anthony] asked [him] to come into the
kitchen.”37 Gene admitted that he had forged his mother’s checks as a teenager and,
30
Tr. 213:21-214:6. But see Tr. 811:16-19 (Nancy) (testifying that Beatrice had access to
a typewriter while she was in school at Del Tech). Beatrice graduated from Del Tech in
2001. Tr. 231:23-232:5.
31
Tr. 805:16-24, 811:12-18.
32
PX 2.
33
Tr. 856:14-16.
34
But see Tr. 217:8-11 (Beatrice) (testifying that she witnessed Nancy sign the Agreement).
35
Tr. 20-15:19.
36
Tr. 561:3-8.
37
Tr. 555:22-24. Gene conflicted himself regarding whether the Agreement was pre-signed
when he walked into the kitchen that morning. See Tr. 586:2-5, 604:15-17.
7
because he was “good at forging [Nancy’s] checks” his father, Anthony, asked if he
would “forge… her name on [the Agreement].”38 Gene refused and all he
“remember[s] is [his] mom’s name being signed.”39 Gene testified to “watch[ing]
Ron [Sr.] sign the paper.”40 During the 15-20 minutes that Gene was in the kitchen,
however, he did not witness Ron Sr. practice Nancy’s signature.41
After he witnessed Ron Sr. sign, Gene left through the back door, where he
encountered Nancy returning from the grocery store.42 Gene did not inform Nancy
of Anthony’s request of him or that he witnessed Ron Sr. forge her signature.43 Per
Nancy, she asked Gene as he was leaving “What’s going on here?”, Gene replied
“[a]sk them.”44
When Nancy walked into her kitchen, “Don, Bea[trice], Ron [Sr.]” were
“drinking coffee, as [they] always did” and “everything got quiet.”45 Despite her
38
Tr. 555:24-556:2. Cf. Tr. 850:11-14 (Nancy) (testifying that Anthony was a good and
honest man).
39
Tr. 580:4-5.
40
Tr. 562:1.
41
Tr. 587:19-22.
42
Tr. 562:1-6.
43
Tr. 562:24-563:2. Gene forgot all about that day until this litigation. Tr. 588:16-17. Gene
revealed his story about Ron Sr. forging Nancy’s signature to his family for the first time
on March 21, 2021, on a phone call with the DeGirolanos’ counsel. Tr. 601:11-602:12.
Gene’s convenient memory, admitted history of forging his mother’s signature, and prior
guilty plea for lying to a police officer, undermine his credibility. Tr. 572:14-17.
44
Tr. 806:21-24.
45
Tr. 807:3-18.
8
son’s ominous warning, Nancy did not pry and it appears the parties never discussed
the Agreement again, until this litigation. Don testified that after it was signed, “[the
Agreement] went in the file box with the rest of the receipts.”46 Beatrice also
testified to finding the Agreement with the “business receipts that [the Clymers] had
on the building.”47
C. The Construction
After the Agreement was signed, the parties went on with their days and
construction on the building began shortly thereafter. The contemplated block
building was constructed between March and May of 1997 (the “Building”).48
Before the construction or seeking permits for the build, Don personally made
concept drawings of the Building.49 He envisioned and captured a three-walled
structure with the “open side” facing the parking lot which affronts Long Neck
Road.50 Don estimated the Building to be 24 by 24 feet.51
46
Tr. 27:15-16.
47
Tr. 319:16-18.
48
See PX 9; Tr. 28:22-29:1. During that time, on April 10, 1997, Nancy added Anthony’s
name to the deed for the Property. PX 4. Nancy testified that Anthony “always
complain[ed] about not being on the deed” because he had “no say in it.” Tr. 813:13-15,
815:1-2. Nancy and Anthony were, thereafter, tenants by the entirety. PX 4.
49
Tr. 102:18-20; PX 5.
50
PX 5, at 14.
51
Id.
9
With that vision, on March 20, 1997, Don applied for a building permit with
Sussex County.52 The permit listed the cost of improvements at $7,488.00 and
reflected Nancy as the property owner.53 Once the permit was approved,
construction began. The parties quibble over who did the bulk of the work. The
Clymers’ testimony was consistent that Don built the Building with Anthony.54
Nancy does not, however, recall Don assisting with the construction.55 Instead,
Nancy testified that Anthony built the Building, with the help of Paul McMinn
(“McMinn”).56
McMinn’s testimony, perhaps the most credible given his disinterest in this
litigation, was a blend of both sides. McMinn testified that he, Anthony, and Don
built the Building together. McMinn remembers “helping [Anthony] set … lintels”
in the doorway.57 McMinn recalls Anthony telling him to “[h]urry up, boy. Hurry
52
PX 6.
53
Id. at 16.
54
Tr. 16:1-6, 224:6-8 (“Don and my father…built the [Building].”).
55
Tr. 861:9-11. But see Tr. 861:2-4 (Nancy) (testifying she “can’t answer” whether Don
also helped construct the Building because she “doesn’t know.”).
56
Tr. 861:6-8. Don refutes that testimony. Tr. 91:11-15.
57
Tr. 451:1-3.
10
up.”58 He testified to Don assisting as well, saying he did “a little bit of everything”
like “labor and helping do whatever he needed to do to get the job done.”59
The materials for the construction were primarily provided by Don. Although
most materials were purchased after the Agreement manifested, Don also used
materials he had purchased prior to March 1, 1997. For instance, four of the
windows to the Building were purchased on February 26, 1997, while the door and
a fifth window were purchased March 10, 1997.60 During the months of March,
April, and May, Don continued to make purchases necessary to complete the
Building.61 The Clymers contend that Nancy and Anthony did not pay for any of
the materials to construct the Building.62 Nancy indicated that she had no reason to
dispute that the Clymers’ paid for the Building to be constructed.63
58
Tr. 451:2-3.
59
Tr. 451:23-452:1.
60
PX 9, at 26, 48.
61
See id. at 45 (concrete), 46 (truck rental), 44 (shingles). Additional improvements were
made on the Building after the produce stand opened in 1997. For example, receipts
introduced at trial indicate that the Clymers purchased trash services, lumber, roof shingles,
and gravel for the parking lot. Id. at 28-34, 37, 39-40; Tr. 40:8-43:20. The Clymers made
further improvements in 1998. See, e.g., PX 9, at 27. And on April 15, 1998, the Clymers
purchased electricity for the Building. PX 10, at 49.
62
Tr. 39:4-10, 223:17-22.
63
Tr. 863:7-10.
11
The stand opened sometime in May or April of 1997, while construction was
still ongoing; it was fully complete around June 20, 1997.64 The Clymers called their
business “Michael’s Produce.”65 Michael’s Produce operated out of the Building on
the Front Acres in 1997, 1998, and 1999.66 It was seasonal and would run from
approximately April or May to “at least October.”67
D. The 2000-2001 Change
Michael’s Produce ended in 2000. Following an argument between Nancy
and Beatrice around Christmas of 1999, the Clymers moved out of the Farmhouse
and into their current home in Georgetown.68 Given the nature of their dispute, the
Clymers stayed away from the Property and did not operate Michael’s Produce in
2000.69 The following year, Don slipped a disc in his back following a car accident
and, again, Michael’s Produce did not open.70
64
Tr. 42:6-9, 46:8-10. See also PX 6, at 31. The Certificate of Compliance was issued by
the Sussex County Building Code Department on July 24, 1997. Id. at 20.
65
Tr. 34:16-18.
66
Tr. 303:10. During this time, the Clymers were still living in the Farmhouse. Tr. 50:5-7.
67
Tr. 47:18-22, 50:2-4, 224:23-225:2.
68
Tr. 163:11-164:11. I decline to address the substance of their argument; why Nancy and
Beatrice argued is simply not relevant to the matters before this Court. I likewise decline
to dwell on the irrelevant testimony regarding the Clymers’ marital issues. See Tr. 207:16-
23.
69
See Tr. 50:14-52:5.
70
Tr. 52:10-20.
12
Although the Clymers were not using the Building in 2001, Nancy wanted to
“get [the Clymers] out” because “[t]hey had their stuff stored in the [Building].”71
Nancy went to the courthouse to “find out what [she] had to do to get [the Clymers]
out of the [Building].”72 Then, on June 12, 2001, Nancy asked a family friend,
Vincetta Jones, to craft a letter (the “June Letter”).73 The June Letter, addressed to
Beatrice indicated that: Nancy wanted “all of [Beatrice’s] belongings removed from
the [Building] on [the Property;]” gave the Clymers until “June 30, 2001 to remove”
their items; and indicated Nancy would “be using the [B]uilding starting July 1,
2001.”74 Nancy sent Beatrice the June Letter via certified mail.75
Don testified that he “didn’t see the [June Letter].”76 Even if he had seen it,
Don indicated that he would not have objected to Nancy using the Building; nor did
he feel the need to remind her of the Agreement.77 Don did not view the June Letter
as revoking the Agreement.78 Beatrice received and read the June Letter.79 After
71
Tr. 817:10-14.
72
Tr. 819:10-13.
73
Tr. 816:22-817:4, 819:8-820:6.
74
PX 11.
75
Tr. 819:22-23.
76
Tr. 53:14-15.
77
Tr. 53:11-23.
78
See Tr. 54:21-23 (“We had an agreement. I trusted them. There was no reason for them
to take the [B]uilding away.”).
79
Tr. 230:3-4.
13
speaking with her Aunt Bea about it, she concluded that, as the letter stated, “[Nancy]
[would] be using the [B]uilding.”80
Regardless of what the Clymers believed the nature of the June Letter to be,
following its receipt, the Clymers vacated the Building without raising the
Agreement.81 The Clymers would not operate their produce stand in the Building
again for nearly a decade.
E. The Candle Shop
After the Clymers received the June Letter and ceased operating the Business,
the Building sat vacant for a number of years; Nancy never did use it.82 But,
beginning around 2002 or 2003 Leigh Ann DeGirolano (“Leigh Ann”), Nancy’s
daughter-in-law, Jimmy’s wife, began selling candles from a cart on the Front Acres
(similar to the way the Clymers began the produce business).83 After about two
years, Leigh Ann asked Nancy if she could move her candle shop into the Building.84
Nancy agreed and Jimmy worked to refurbish the inside of the Building for Leigh
Ann’s needs; he framed the walls and roof, added insulation, stained the concrete,
80
Tr. 230:16-231:12, 233:3-234:4.
81
See, e.g., Tr. 303:20-304:6.
82
Tr. 518:1-2, 527:17.
83
Tr. 539:12-23. During this time, Beatrice was suffering from certain medical ailments
(2002-2004) and then assisting her Aunt Bea with various matters until she passed (2006-
2009). See Tr. 236:16-19, 239:2-15.
84
Tr. 539:20-23.
14
and did some decorating.85 He did not produce receipts or invoices for these
expenditures, but a building permit application with Sussex County submitted in or
about August of 2005 listed the cost of improvements at $2,500.00.86
The candle shop operated in the Building from approximately 2005 to 2009.87
Leigh Ann testified that she operated the candle shop seasonally.88 During her tenure
in the Building, Leigh Ann did not have a formal rent agreement with either Nancy
or the Clymers.89 In lieu of rent, Leigh Ann “would pay [Nancy] 10 percent of . . .
what [she] would bring in.”90
A combination of work outside of the home and the 2009 economic downturn
caused Leigh Ann to close that candle shop; “it was not as profitable as it had been
in the past.”91 “[The candle shop] started winding down … in 2009 and 2010.”92
After she left, Leigh Ann does not remember what happened to the Building, only
that “[e]verything was left, all the . . . fixtures were left. [E]verything minus the . . .
85
Tr. 518:21-519:13.
86
PX 12, at 51-53.
87
Tr. 526:16-527:3, 542:2-3.
88
Tr. 542:23-34.
89
Tr. 543:10-14.
90
Tr. 543:13-15.
91
Tr. 543:8-9.
92
Tr. 543:2-3.
15
goods that were in there.”93 When she left, Leigh Ann gave Nancy the keys to the
Building.94
F. The Clymers’ Return
The Clymers’ return was prompted by Anthony’s decline. In or about 2008,
Anthony, who had recently underwent a heart operation and was diabetic, suffered
a stroke.95 The stroke left him partially paralyzed on one side.96 Don testified that
after Anthony got sick, he frequently visited the Property to assist with Anthony’s
care.97 Although Nancy handled the “[m]ajority of” the work caring for Anthony,
she conceded that Don “c[ame] over once in a while… to pick him up and put him
in the chair.”98
While Anthony was declining, the Clymers’ produce business reopened in the
Building.99 The business’s name was changed to “Muzzi’s Produce,” in honor of
93
Tr. 542:14-19.
94
Tr. 829:16-18. The Clymers contend that they had keys to the Building while Leigh Ann
ran the candle shop, but that they did not work because Nancy changed the locks. Tr.
318:23-319:1. During the years the candle shop operated, the Clymers did not object to
either Nancy or Leigh Ann to the Building being used for that purpose. Tr. 310:1-8, 544:2-
4, 824:13-16.
95
Tr. 60:8, 868:17-19.
96
Tr. 868:20-22.
97
Tr. 60:7-23.
Tr. 869:1-10. Don recalls others assisting with Anthony’s care such as Tony and Nancy
98
McMinn. Tr. 171:10-11, 171:24.
99
Tr. 59:16-24, 242:21-243:7.
16
Anthony.100 How and why the Clymers regained access to the Building is
disputed.101 Don testified that Nancy gave him the keys to the Building one day in
2009 because “the [B]uilding was leaking and it needed some work.”102 Without the
keys, Don would have been unable to access and repair the Building “because the
locks had been changed.”103 Don then used the keys provided to him to restart the
business, without, it appears, any express permission or direction to do so.
Nancy testified that she allowed the Clymers back into the Building so that
their son, Michael Clymer (“Michael”), would have a place to work following his
release from jail.104 Per Nancy, Beatrice asked if Michael could reopen the stand.105
According to Nancy, Michael also personally asked her for permission to operate a
business out of the Building.106 After she thought about it for “a couple weeks,”
Nancy agreed and “gave Michael the keys to the stand.”107
100
Tr. 46:17-22. Anthony’s nickname was “Muzzi”. Tr. 14:14-17.
Compare Tr. 59:19-24 (“Nancy gave [Don] the keys”) with Tr. 829:14 (“[Nancy] gave
101
Michael [Clymer] the keys.”).
102
Tr. 59:22-23, 60:1-4.
103
Tr. 59:19-21.
104
Tr. 828:16-19.
105
Tr. 828:16-24.
106
Tr. 829:1-6.
107
Tr. 829:13-15.
17
Nancy’s story is difficult to believe. She testified that she believes she gave
Michael the keys in or around 2011, and that only after she gave Michael the keys
did Muzzi’s open.108 Michael was released from jail in 2012, and the evidence
reflects the produce stand was already operating out of the Building by 2011.109
Further, Michael testified that he did not begin working at the Building until 2014
or 2015.110 Michael denied that he ever requested the keys from Nancy or asked her
to reopen the Business.111 Michael also denied that he needed a job when he got out
of jail in 2012 and said that he went to work for “1995 Property Management” upon
his release.112 Disputes aside, all agree that as of at least 2011, the Clymers were
running Muzzi’s out of the Building.113
After the Clymers retook possession of the Building, Muzzi’s underwent an
expansion in the types of goods it sold, “selling more jar goods… concrete statuary
and fire camp wood.”114 The primary operator was Don, who was present at Muzzi’s
108
See, e.g., Tr. 829:13-22, 870:11-18, 827:14-20.
109
Tr. 363:7-10, 871:6-9.
110
Tr. 442:19-21.
111
Tr. 363:22-364:7.
112
Tr. 363:14-21.
113
Tr. 59:19-24. Anthony died on August 21, 2011. Tr. 827:1-2; RX 26. Don was present
when Anthony died. Tr. 95:18-20; RX 26.
114
Tr. 62:13-15.
18
“every day.”115 Beatrice, though not physically present, “pa[id] the bills” and
“order[ed]” inventory.116 The Clymers’ children, including Michael, also helped run
Muzzi’s.117
The Clymers also made improvements to the Building between 2015-2018.118
Don testified to “increase[ing] the size of [the Building],” adding “a propane station,
storm door, storage room,” “walk-in cooler,” “shelves,” and a “lean-to.”119 The lean-
to and the addition of concrete slab in the parking lot—all improvements performed
by Izzo & Sons—totaled over $15,000.120
At some point during Muzzi’s operation between 2015 and 2016, an RV was
hooked up next to the Building (the “RV”).121 The RV served several purposes. Don
testified that while running the business in the summers, it “would get real hot out
there”, and there wasn’t any place to get out of the heat. So [the Clymers] could go
115
Tr. 62:21, 924:24-925:2. But see Tr. 920:5-8.
116
Tr. 273:1-8.
117
Tr. 275:8-11, 367:1-3, 920:5-8. Michael, Beatrice, and Don all testified that Michael is
not paid for his work directly. Tr. 111:9-16, 275:15-20, 382:3-18.
118
Tr. 63:23-64:1.
119
Tr. 64:4-67:7; PX 13, at 146-151.
120
PX 13, at 147, 149-50. The Clymers did not produce permits for the improvements made
after 2015. Tr. 139:16- 141:5. Don testified that he paid for the materials for this expansion
and Nancy did not dispute that assertion at trial. Tr. 379:3-4; 873:1-4. In addition to the
improvements to the Building, the Clymers paid the property taxes on the Property in 2019.
PX 13, at 168. The tax bill was $994.96, and Don testified that he has paid the property
taxes on the Property in other years as well. Tr. 70:1-15, 839:21-840:4.
121
Tr. 70:19-21.
19
in there and eat lunch” in the “air conditioning” and “cool down.”122 Per Don
Michael would also sleep in the RV after making trips to “Philadelphia in the middle
of the night” to buy produce.123 Tony testified that he helped Michael hook the RV
up to Nancy’s sewer line.124
G. The 2020 Transfer
Although Nancy enjoyed some benefits from Muzzi’s, she did not like the
expansion.125 Per Nancy, “[the Clymers]… did not listen” when she told them “to
leave things the way they were.”126 Nancy would “put curtains up and pull her
shades down so she didn’t have to see the mess that was down in front of [her].”127
The Clymers, however, do not recall a single instance of Nancy objecting to their
122
Tr. 71:1-4.
123
Tr. 71:4-11.
124
Tr. 478:24-479:3.
125
Nancy enjoyed free produce from the stand over the years such as fruit, tomatoes, and
bacon. Tr. 893:1-12. See also PX 20. Additionally, Don testified that Nancy and Anthony
both “took whatever they wanted” and one occasion they gave Nancy an Amish rocking
chair. Tr. 49:1-2, 49:14-17.
126
Tr. 886:23-887:1.
127
Tr. 887:3-5. During the time of the expansion, Nancy was also struggling with her
health. In or around 2018, Nancy suffered a heart attack and needed surgery. Tr. 364:13-
15, 878:1-3. Following her release from the hospital, Michael moved in with her until
about 2020 when COVID-19 started. Tr. 364:20-22, 878:7-10. During his time living
with Nancy, Michael testified that he had discussions with Nancy about an agreement with
his mother regarding the Building but he had “never known about a paper agreement.” Tr.
367:15-21, 420:8-11.
20
use or expansion of the business between 2009 and 2020.128 Nor did Nancy ever
request or demand rent from the Clymers for their use of the Building.129
But eventually, Nancy reached a breaking point with the Clymers and turned
to her son, Joseph.130 Joseph had “asked [Nancy] for property before” and had
previously “offered to buy [Aunt Bea’s] property” but “[Aunt Bea] did not want to
sell” her land to him.131 Around 2020, frustrated with the Clymers, Nancy said
“[she] would like to give [her] house to [Joseph.]”132 Joseph spoke with his brothers,
and asked them if they wanted the Property or wanted to split it with him. 133 The
same courtesy was not shown to Beatrice, Joseph’s sister and Nancy’s daughter.134
Nor did Nancy or Joseph invite Don or Michael to make an offer on the Property or
give the Clymers any notice that Nancy was considering selling the Property.135
128
Tr. 63:14-16, 245:16-18. See also Tr. 873:14-874:2.
129
Tr. 892:20-22.
130
I find Nancy’s representation that she transferred the Property to Joseph “so that he
always had a home to live in” difficult to believe, particularly given that Joseph already
owned real property. See PX 18, at 185; Tr. 882:22-883:6.
131
Tr. 903:2-6.
132
Tr. 903:2.
133
Tr. 903:12-20.
134
Tr. 888:12-15, 967:13-15.
135
Tr. 885:8-17.
21
Nevertheless, on August 1, 2020, Nancy deeded the Property to Joseph (the
“2020 Deed”).136 The 2020 Deed was prepared by an attorney, Carl W. Heckert,
Esquire, and reflected an exchange of $10.00.137
When Joseph went to sign the necessary paperwork to complete the transfer,
he brought his longtime friend “Curtis.”138 Joseph “told [Curtis] [Nancy] was giving
[him] her four acres.”139 Curtis, not Joseph or Nancy, would be the one to tell the
Clymers.
Around fall of 2020, while attending a birthday party, Michael ran into Curtis
who told him that Joseph was being gifted the Property.140 Michael reached out to
Nancy to confirm, but she did not answer.141 Thereafter, in September 2020,
Michael told his mom, Beatrice, what he had heard from Curtis.142 On September
26 or 27, 2020, Beatrice called Nancy.143 During their discussion, Beatrice was
136
RX 8. The 2020 transfer to Joseph was not the first time Nancy had deeded property to
her children. In 1998, Nancy deeded Tony and his wife the four acres of land on which
they built their home. RX 39.
137
RX 8.
138
Tr. 942:3-10.
139
Tr. 942:15-16.
140
Tr. 387:18-23.
141
RX 10; Tr. 388:9-15.
142
Tr. 311:4-7, 410:17-19.
143
Tr. 311:4-22.
22
extremely upset and when she asked about the transfer to her brother Joseph, Nancy
replied “Ha, ha, I gotcha.”144
Thereafter, the already tense relationship between Nancy and the Clymers
deteriorated. Even Michael, who previously enjoyed a close relationship with
Nancy, was having difficulty communicating with her.145 On October 14, 2020,
Michael asked if Joseph had “t[old] [Nancy] not to talk to” him. 146 After Joseph
responded “she doesn’t want to argue with anyone,” Michael replied: “What’s there
to argue about . . . why can’t we come up with a number?”147 Thereafter, Michael
and Joseph agreed to speak in person; they met at the Building on the morning of
Sunday, October 18, 2020 (the “October Meeting”).148
The October Meeting included Joseph, Don, and Michael.149 The meeting
was passionate, but short, lasting only five to ten minutes.150 At the outset, Joseph
144
Tr. 311:24-312:1. Beatrice did not raise the Agreement with Nancy during that
conversation. Tr. 312:2-5. On September 27, 2020, Beatrice texted Joseph asking him
what had happened. RX 9. Joseph told her that she “d[idn’t] want to hear the truth,” to
which Beatrice responded “[t]he truth [is] I did want the [P]roperty.” Id. at 1.
145
Tr. 367:4-6.
146
RX 10.
147
Id. Michael testified that he offered a number to help financially secure his grandmother
because “[Nancy] was broke and she needed money, and [Michael] wanted to make sure
she was taken care of.” Tr. 389:1-3.
148
PX 10.
149
Tr. 931:12-17.
150
Tr. 391:19-20. Don admitted at trial to being upset at the October Meeting and to using
profanity thereat. Tr. 75:24-76:5.
23
proposed leasing the Clymers some of the Property for them to continue to run
Muzzi’s.151 Joseph proposed $1,200 per month in-season, or $1,000 if they agreed
to cut the grass, and $500 per month in the off-season.152 This offer upset and
insulted Don.153 He believed that he and Anthony had an understanding and now
Joseph “want[ed] [Don] to pay [Joseph] a bunch of rent for [the Building] that [Don]
constructed.”154 Yet, neither Don nor Michael mentioned the Agreement to
Joseph.155 Don did, however, threaten to tear down the Building because “it was his
and he could do what he wanted with it.”156 The October Meeting ended with no
resolution.
Thereafter, Joseph and Michael continued to text about their disputes. Their
text conversations were no more successful than the October Meeting. Joseph began
with a threat to call the police “if any structure on [the Property] is damaged or tore
down.”157 Michael responded by asking Joseph to “[s]end [the] lease.”158 Michael
151
Tr. 931:19-22.
152
Tr. 392:2-3, 946:12-947:2. Joseph based his figures on his own research of what nearby
produce stores rented for and presented those figures to the Clymers. Tr. 946:4-7.
153
Tr. 76:3.
154
Tr. 75:20-23.
155
Tr. 122:8-10, 933:15-22.
156
Tr. 420:21-24.
157
RX 10.
158
Id.
24
again told Joseph to “send your lease” after Joseph demanded that Michael remove
the RV from the Property.159
Thereafter, on October 29, 2020, Joseph delivered a letter to Muzzi’s, care of
the Clymers and Michael (the “October Letter”).160 The October Letter notified the
Clymers that any previous rental “agreement is terminated” and that they must
“vacate the property on or before [December 31, 2020].”161 The Clymers did not
comply and Muzzi’s operated in the summers of 2021 and 2022.162
II. PROCEDURAL POSTURE
Rather than vacate the Front Acres, the Clymers initiated this action on
January 4, 2021, stating various claims against Nancy and Joseph (the
“DeGirolanos”).163 Much ink has already been spilled in this case and I direct
interested readers to the procedural posture provided in Vice Chancellor Fioravanti’s
May 27, 2021 orders.164 Through those orders, Vice Chancellor Fioravanti granted
a preliminary injunction prohibiting the DeGirolanos from (1) interfering with the
Clymers’ operation of the business on the Front Acres, (2) entering the Front Acres
159
Id.
160
PX 16.
161
Id.
162
Tr. 61:20-22.
163
D.I. 1.
164
D.I. 70-71.
25
in a way that disturbs the Clymers’ use thereof, and (3) selling or otherwise
encumbering the Property.165 That injunction remains in place.166
I briefly address the posture that followed entry of that preliminary injunction.
On August 16, 2021, the Clymers filed their amended complaint (the “Amended
Complaint”).167 The Amended Complaint added a claim for breach of the implied
covenant of good faith and fair dealing against Nancy and removed the Clymers’
claim of adverse possession.168 Altogether the Clymers pled the followings claims:
(1) specific performance of a contract; (2) specific performance of a promise to
convey a gift; (3) promissory estoppel; (4) constructive trust; (5) resulting trust; (6)
conversion; (7) unjust enrichment; (8) conspiracy; (9) tortious interference with a
contract; (10) breach of contract; (11) recission; (12) declaratory judgment; and (13)
breach of the implied covenant of good faith and fair dealing.169 On September 7,
2021, the DeGirolanos answered the Amended Complaint and pled counterclaims
165
See D.I. 71.
166
Vice Chancellor Fioravanti was brought back into this action through a September 21,
2021 limited reassignment to hear the competing motions for rules to show cause. See D.I.
88. On February 22, 2022, Vice Chancellor Fioravanti ruled from the bench and followed
up with written orders confirming that the Clymers’ motion should be granted, and the
DeGirolanos’ denied. D.I. 118-119, 122. He also denied the DeGirolanos’ motion for
reargument and awarded fees. D.I. 124, 127. On October 19, 2022, I granted an order
increasing the injunction bond. D.I. 156.
167
D.I. 77.
168
Id.
169
Id.
26
for fraud and declaratory relief.170 The Clymers answered the counterclaims on
September 9, 2021, closing the pleadings.171
On September 30, 2021, Master Griffin entered a schedule setting trial for
June 14-16, 2022.172 At the June 7, 2022 pretrial conference, Master Griffin
recommended, over the DeGirolanos’ objection, that the Clymers’ expert be
permitted to testify and directed the parties to meet and confer on a revised schedule
and new trial date.173 On August 25, 2022, this case was reassigned to me.174 Trial
was promptly rescheduled for December 2022.175 Trial proceeded as scheduled on
December 5, 7, and 9, 2022 and was extended an extra day, concluding on December
13, 2022.176 Post-trial briefing was completed on March 22, 2023, at which time I
took this matter under advisement.177
III. ANALYSIS
The parties briefed nine (9) issues post-trial: (1) whether the Agreement is
binding and enforceable, (2) whether the Clymers are entitled to specific
170
D.I. 82.
171
D.I. 84.
172
D.I. 91.
173
D.I. 131, 145.
174
D.I. 148.
175
See D.I. 149-150.
176
D.I. 168.
177
D.I. 175-76, 178.
27
performance of the Agreement, (3) alternatively, whether the Clymers are entitled to
specific performance of a gift, (4) alternatively, whether the Clymers should prevail
under the promissory estoppel lens, (5) whether the Clymers have demonstrated the
need for a constructive trust over the Front Acres to prevent unjust enrichment, (6)
whether the Clymers have demonstrated the need for a resulting trust, (7) whether
the DeGirolanos conspired to deprive the Clymers of their interest in the Front Acres,
(8) whether Nancy breached the implied covenant of good faith and faith dealing,
and (9) whether the 2020 Deed should be rescinded to carry out the intent of the
Agreement.178
Except for the alleged forgery discussed below, the Clymers bear the burden
of proof on these claims. That burden, except for the specific performance request,
is proof by a preponderance of the evidence.179 “Proof by a preponderance of the
evidence means proof that something is more likely than not. It means that certain
evidence, when compared to the evidence opposed to it, has the more convincing
178
The arguments and claims not briefed (including the Clymers’ claim for tortious
interference, the DeGirolanos’ counterclaims, and both sides’ request for attorneys’ fees)
should be considered waived. Emerald P’s v. Berlin, 2003 WL 21003437, at *43 (Del. Ch.
Apr. 28, 2003) (“It is settled Delaware law that a party waives an argument by not
including it in its brief.”).
179
In re Osborn ex rel. Osborn v. Kemp, 2009 WL 2586783, at *4 (Del. Ch. Aug. 20, 2009)
aff’d 991 A.2d 1153 (Del. 2010) (“Typically, in a post -trial opinion, the court evaluates
the parties’ claims using a preponderance of the evidence standard.”).
28
force and makes you believe that something is more likely true than not.”180 For
their specific performance request, the burden on the Clymers is clear and
convincing evidence.181 Clear and convincing evidence “produce[s] in the mind of
the fact-finder a firm belief or conviction that the allegations in question are true.”182
I address the nine (9) remaining issues in the following order. First, I address
whether the Agreement is an enforceable contract; I find it is, in part. Then, I turn
to whether Nancy breached, revoked, or repudiated the Agreement and the
consequences thereof, including whether there are any equitable bars to the Clymers’
claims. I find Nancy did revoke or repudiate the Agreement, but laches should bar
the Clymers’ claims. That brings me to the 2009-2010 reopening and the October
Letter to vacate; I find the reopening was through a revocable license, Joseph
revoked that license, and, as such, Joseph is entitled to reasonable rent from the
injunction bond, less the Clymers’ improvements to the Building.
180
Del. Express Shuttle, Inc. v. Older, 2002 WL 31458243, at *17 (Del. Ch. Oct. 23, 2002)
(quoting Del. P.J.I. Civ. § 4.1 (2000)).
181
Osborn, 2009 WL 2586783, at *5 (“The burden of persuasion on a claim
for specific performance is higher than the preponderance of the evidence: entitlement
to specific performance must be proved by clear and convincing evidence.”).
182
Cerberus Int’l, Ltd. v. Apollo Mgmt., L.P., 794 A.2d 1141, 1151 (Del. 2002) (quoting
29 Am. Jur.2d Evidence § 157 (1994)).
29
A. The Agreement is an enforceable license.
I start with the predicate underlying this action—whether the Agreement is an
enforceable contract and what duties and obligations it imposes on the parties. “The
elements necessary to prove the existence of an enforceable contract are: (1) the
intent of the parties to be bound, (2) sufficiently definite terms, and (3)
consideration.”183 I address these elements in turn and find the Agreement is an
enforceable contract, but not for the transfer of real property; it was merely a license
to use the Front Acres and the Building.
i. The parties intended to be bound.
On its face, the Agreement reflects all parties’ intention to be bound through
their signatures.184 The DeGirolanos argue, however, that Nancy’s signature was
forged. I find the DeGirolanos bore the burden to prove such forgery and they failed
to meet it.
The DeGirolanos argue that the Clymers bear the burden of proving that
Nancy’s signature is genuine. In doing so, they cite decisions from Louisiana,
Florida, New Mexico, Michigan, Ohio, and Alabama.185 Those decisions, the
183
Otto v. Gore, 45 A.3d 120, 138 (Del. 2012) (citations omitted).
184
“[A] wet ink, signed version of a contract looks to be solid evidence of a meeting of
minds. But it is not evidence so powerful that it negates all other evidence to the contrary.”
Kotler v. Shipman Assocs., LLC, 2019 WL 4025634, at *17 (Del. Ch. Aug. 21, 2019).
185
D.I. 176, at 133-34 (citing Excel Finance Camp, Inc. v. Sommers, 140 So.2d 800 (La.
App. 1962); Barnes v. Boulevard Nat’l Bank of Miami, 124 So.2d 494 (Fla. App. 1960);
Wight v. Citizens’ Bank, 124 P. 478 (N.M. 1912); PNC Nat’l Ass’n v. Goyette Mechanical
30
DeGirolanos contend, should be given more weight than Delaware authority, which
has shifted the burden to challengers. Per the DeGirolanos, the Delaware cases only
addressed notarized documents, which should be held to a higher standard; because
the Agreement was not notarized, the DeGirolanos argue the burden to prove
authenticity rests with the Clymers. I disagree.
As recognized by Vice Chancellor Fioravanti, “[t]he weight of authority in
Delaware indicates that the [DeGirolanos] bear the burden of proving that Nancy’s
signature was forged.”186 That is because alleged forgery in the civil context operates
as a fraud claim.187 The burden of proof in any fraud claim is on the party claiming
fraud.188
The Delaware Supreme Court held as much in Killen v. Purdy.189 Therein,
parties to a purported agreement to transfer real property alleged that their signatures
on the agreement and deed were forged. The Supreme Court reasoned that such
Co., Inc., 140 F. Supp. 3d 623 (E.D. Mich. 2015); R.C. Olmstead, Inc. v. GBS Corp., 2009
WL 4981226 (Ohio App., Dec. 18, 2009); Sherman Intern. Corp. v. Summit General
Contractors, Inc., 848 So.2d 263 (Ala. App. 2002)).
186
D.I. 70.
187
See Killen v. Purdy, 99 A. 537, 538 (Del. 1916) (treating alleged forgery as a claim of
fraud).
188
Grzybowski v. Tracy, 2013 WL 4053515, at *4 (Del. Ch. Aug. 9, 2013), judgment
entered, (Del. Ch. 2013).
189
99 A. at 538.
31
claims reflected an overarching theory that the documents were “procured through
fraud” and, as such, held the complainants to their burden to prove such fraud.190
This burden “shift” has also been recognized with alleged forgeries on other
types of documents. For example, “[o]ne who relies upon forgery to challenge the
validity of a will has the burden of proving such forgery in a clear, direct, precise,
and convincing manner.”191 The same is true for challenges to proxies and stock
transfers. As then-Vice Chancellor Seitz recognized, “a strict rule of proof should be
required in this court of those who would have a proxy invalidated on the ground of
forgery in the execution thereof.”192
Missing from these holdings is any indication that the burden was shifted due
to notarization of the allegedly fraudulent documents. Vice Chancellor Seitz did not
predicate his ruling on whether the proxy signature was notarized, neither did the
judicial officers analyzing wills, deeds, and stock certificates.193 Notarization was
190
Id.
191
In re Melori, 1987 WL 6442, at *6 (Del. Ch. Feb. 11, 1987).
192
Inv. Associates v. Standard Power & Light Corp., 48 A.2d 501, 512 (Del. Ch. 1946),
decree aff’d, 51 A.2d 572 (Del. 1947). See also Tuggle v. Am. Fin. Sys., Inc., 1978 WL
21995, at *1 (Del. Ch. June 22, 1978) (allocating the burden of proving forgery to the party
claiming same).
193
See Melori, 1987 WL 6442, at *6 (“One who relies upon forgery to challenge the
validity of a will has the burden of proving such forgery.”); Standard Power, 48 A.2d at
512 (“[O]ne attacking a proxy bearing the names of both tenants must be prepared to
assume the burden of demonstrating to this court that the person signing the proxy…was
not authorized to sign.”); Tuggle, 1978 WL 21995, at *1 (holding that the plaintiff
32
simply not a factor in those decisions, which support a broader rule: in the civil
context, the party alleging a document was procured by fraud or forgery bears the
burden of proving such. Thus, I find, the DeGirolanos bore the burden of proving
Nancy’s signature on the Agreement was forged. They failed to meet that burden.
Whether the Agreement contains Nancy’s genuine signature was addressed
through competing experts J. Wright Leonard, the DeGirolanos’ expert, and Robert
Lesnevich, the Clymers’ expert. Ms. Leonard analyzed approximately twenty sample
signatures, executed between 1991 to 2003.194 The samples were collected by Nancy
and provided to Ms. Leonard by Joseph.195 Ms. Leonard found “unexplained
differences” between Nancy’s sample signatures and Nancy’s signature on the
Agreement.196 Ultimately, she concluded that “the [Agreement] signature . . . was not
executed by the same hand that executed the comparison specimens.”197
Mr. Lesnevich disagreed. He performed a “technical review” on Ms.
Leonard’s report and examined the same sample checks.198 Mr. Lesnevich testified
challenging a stock sale sustained her burden of proof at trial that her signature was a
forgery).
194
Tr. 627:18-22; RX 27, at 4.
195
Id. Joseph testified that he directed Nancy to collect checks “of [1997], before that year,
after that year.” Tr. 950:15-16.
196
RX 27, at 5.
197
Id.198
PX 22, at 241; Tr. 732:18-20, 734:11-24.
33
that, in his professional opinion, Ms. Leonard’s conclusion was “not supported by the
evidence.”199 He noted that “external factors” (like the type of pen or table surface)
and “internal factors” (like age, health, or medications) can “affect the writing act,”
which necessarily precludes the signature variations between the samples and the
Agreement from being “unexplained.”200
I found both experts to be credible witnesses, knowledgeable in their field.
But Ms. Leonard was not more convincing than Mr. Lesnevich. Thus the expert
testimony alone, the DeGirolanos failed to meet their burden to prove forgery. The
only other evidence of forgery is the unbelievable story proffered by Gene and Nancy.
Nancy’s recollection of the morning the Agreement was signed (which she terms a
routine morning), particularly when compared to her inability to remember other
more recent matters, is not credible. Neither is Gene’s story that he was asked to forge
Nancy’s signature, declined, and witnessed Ron Sr. doing so, without practice or
preparation. Given the similarities between the signature on the Agreement and
Nancy’s known samples, I find it unlikely that Ron Sr. signed for Nancy as Gene
purports. Further, Gene’s belated recollection, motivation to assist his mother, and
admitted participation in dishonest conduct in the past undermines his credibility.
199
PX 22, at 241.
200
Id. at 274, 284; Tr. 740:16-20, 745:14-23.
34
Altogether, I find the DeGirolanos have failed to prove that it is more likely
than not that Nancy’s signature on the Agreement is a forgery. Rather, the weight of
the evidence supports the opposite: I find it more likely than not that Nancy’s
signature on the Agreement is genuine.
ii. The Agreement lacks all material terms to be an enforceable
agreement for the sale of real property; it contains all
materials terms for a license.
The Agreement purports to be an agreement for the transfer of real property.
The material terms for such agreements are “price, date of settlement, and the
property to be sold.”201 These terms also must be sufficiently definite. “A contract
is sufficiently definite and certain to be enforceable if the court can—based upon the
agreement’s terms and applying proper rules of construction and principles of
equity—ascertain what the parties have agreed to do.”202 “Where essential terms are
lacking, a court is not permitted to insert its own judgment and terms as it is a
fundamental principle of equity that the remedy of specific performance will only
be granted as to an agreement which is clear and definite and as to which there is no
need to ask the court to supply essential terms.”203
201
River Enterprises, LLC v. Tamari Properties, LLC, 2005 WL 356823, at *2 (Del. Ch.
Feb. 15, 2005).
202
Eagle Force Holdings, LLC v. Campbell, 187 A.3d 1209, 1232 (Del. 2018).
203
Pharmathene, Inc. v. SIGA Techs., Inc., 2010 WL 4813553, at *10 (Del. Ch. Nov. 23,
2010) (cleaned up).
35
Vice Chancellor Parsons’ pleading-stage ruling in Black Horse Capital, LP v.
Xstelos Holdings, Inc. demonstrates the definitiveness required, particularly in a
specific performance action.204 Therein, the plaintiffs sought to enforce an oral
agreement for the sale of patented drug technology. But the plaintiffs failed to plead
sufficient factual predicate that the parties reached agreement on the definition of
the specific asset(s) to be transferred.205 Such was “a vagueness that . . . any court
would be ill-equipped to resolve.”206 Thus, the request for specific performance of
the vague agreement was dismissed at the pleadings.
Here, the Agreement should fair no better. In the Agreement, the date of
settlement and property to be sold are not definite. One cannot ascertain from the
face of the Agreement when and what portion of the Property was to transfer to the
Clymers.207 Thus, it is not an enforceable agreement for the immediate or future
transfer of the Front Acres.208
204
2014 WL 5025926, at *1 (Del. Ch. Sept. 30, 2014).
205
Id. at *18.
206
Id. at *19.
207
The Agreement suffers from a further defect in that Anthony purports to transfer
property he does not own; Anthony was not added to the deed for the Property until April
10, 1997. PX 4.
208
This lack of specificity further dooms the Clymers’ alternative theory that the
Agreement was a promise to gift, or that promissory estoppel applies, and differentiates
this case from Mazzetti v. Shephard, 1987 WL 9367 (Del. Ch. Apr. 6, 1987). There,
Chancellor Allen found an enforceable agreement by a father to convey a future interest in
real property to his son. Id. at *1. The Chancellor held the claimant to a clear and
convincing evidentiary burden, and found the father promised disposition of specific
36
The Agreement does, however, have all terms that would be material to create
a license. “A license with respect to real property is ‘a privilege to go on the premises
for a certain purpose, as, for example, the purpose specified in the instrument
creating the license; it does not operate to confer on, or vest in, the licensee any title,
interest, or estate in such property.’”209 The terms material to such an interest, I find,
are the general premises available and for what specific purpose.210
I find Vice Chancellor Short’s analysis in Timmons v. Cropper helpful in
drawing this distinction.211 Therein, the Vice Chancellor focused on whether the
alleged lease covered an identifiable space and specified exclusive possession.
property, the son acted on that promise to his detriment (representing legal consideration),
and, as such, the promise was enforceable. Id. at *4. Here, the Clymers have failed to
prove that Nancy, more likely than not, promised disposition of the Front Acres to them.
Thus, the Clymers’ involvement in constructing and using the Building from 1997-1999
cannot serve as part performance or consideration toward a promise not made; rather, such
was conduct expressly within the license granted.
To the extent the Clymers seek to save the unenforceable property-transfer portion
of the Agreement through their implied covenant claim, that argument is rejected. See
Kuroda v. SPJS Hldgs., LLC, 283 A.3d 1099, 1118 (Del. 2022) (“The implied covenant
cannot be invoked to override the express terms of the contract.”); Encite LLC v. Soni, 2008
WL 2973015, at *12 (Del. Ch. Aug. 1, 2008) (“The implied covenant of good faith and fair
dealing ‘attaches to every contract.’ That no such covenant can exist in the absence of a
contract is the obvious, and logical, corollary to this fundamental proposition.”) (citations
omitted).
209
Timmons v. Cropper, 172 A.2d 757, 759 (Del. Ch. 1961) (quoting 53 C.J.S. Licenses §
84, p. 810).
The term for such license is not material because it is “terminable at the will of the
210
owner.” Coker v. Walker, 2013 WL 1858098, at *3 (Del. Ch. May 3, 2013).
211
172 A.2d 757 (Del. Ch. 1961).
37
Because it did not, it was a license, not a lease. He explained that “[e]ven where an
instrument is denominated as a lease and contains technical words of demise it is not
to be construed as such if, in fact, it is something else.”212 The same is true here.
Even though the Agreement purports to be an agreement for transfer of
property and contains words indicating property transfer, it fails to contain all
material terms for a transfer or real property. But it has the terms necessary to create
a license—a portion of the Property is made available for the Clymers to the extent
necessary to build the Building and operate their business. It is, thus, a license
permitting the Clymers to use an indeterminate space on the Property to build the
Building and operate their business, without any promise of ownership or
exclusivity.213
212
Id. at 759.
213
Because I find the Agreement is not an enforceable agreement for the transfer of real
property, I find the Clymers cannot prevail on their claim to rescind the 2020 Deed. Such
was expressly predicated on the Clymers’ alleged interests arising from the Agreement.
See D.I. 175, p.53. I also find the unjust enrichment claim unavailing because there is an
underlying contract for a license. Nemec v. Shrader, 991 A.2d 1120, 1130 (Del. 2010)
(“Delaware courts . . . have consistently refused to permit a claim for unjust enrichment
when the alleged wrong arises from a relationship governed by contract.”). The Clymers’
requests for a constructive or resulting trust should also fail because they have failed to
prove that they were granted or promised an interest greater than a license. Teachers’
Retirement System of Louisiana v. Aidinoff, 900 A.2d 654, 676, n.22 (Del. Ch. June 21,
2006) (“Unless a plaintiff can prove out a claim under a recognized cause of action . . . the
plaintiff should have no eligibility for any remedy, including the remedy
of constructive trust.”); Hudak v. Procek, 727 A.2d 841, 843 (Del. 1999) (“A resulting trust
is one that is imposed by a court of equity to give effect to the presumed intentions of the
parties.”). Further, the Clymers’ conspiracy claim relies on an unlawful act, which they
cannot establish without an enforceable interest in the Property. Allied Cap. Corp. v. GC-
Sun Holdings L.P., 910 A.2d 1020, 1037 (Del. Ch. Nov. 22, 2006) (“[T]o state a claim for
38
The license granted to the Clymers the privilege to go onto the Property to
build the Building and operate their business. It did not convey any present
ownership interest, expressly denoting any such transfer would occur “[a]fter the
death of Nancy and [Anthony].”214 But, as explained above, the terms of any such
future transfer are not sufficiently definite to be enforceable. The Agreement is only
enforceable as a license to use the Property.215
iii. The Agreement reflects the exchange of sufficient
consideration.
Finally, I turn to consideration. “Delaware courts define consideration as a
benefit to a promisor or a detriment to a promisee pursuant to the promisor’s
request.”216 My inquiry into consideration is limited “to its existence and not
civil conspiracy, a plaintiff must plead facts supporting . . . an unlawful act was done in
furtherance of the conspiracy.”).
214
PX 2.
215
In so holding, I find the Agreement has two severable provisions—an enforceable one
for a present interest (the license) and an unenforceable one contemplating an indefinite
future interest (the purported promise to transfer or bequeath). “An invalid term of an
otherwise valid contract, if severable, will not defeat the contract.” Hildreth v. Castle
Dental Centers, Inc., 939 A.2d 1281, 1283–84 (Del. 2007). “Whether or not the terms of a
contract are severable is purely a question of the intent of the parties.” Tracey v. Franklin,
67 A.2d 56, 61 (Del. 1949). “Absent ambiguity, the court ‘will give priority to the parties’
intentions as reflected in the four corners of the agreement, construing the agreement as a
whole and giving effect to all its provisions.’” Fairstead Capital Mgmt. LLC v. Blodgett,
288 A.3d 729, 759 (Del. Ch. 2023) (quoting In re Viking Pump, Inc., 148 A.3d 633, 648
(Del. 2016)). Here, neither side argued ambiguity and I find the four corners of the
Agreement reflect a definitive present interest and a contingent future interest. The latter
indefiniteness, I find, reflects an intent that the two be treated as severable.
216
Cont’l Ins. Co. v. Rutledge & Co., Inc., 750 A.2d 1219, 1232 (Del. Ch. 2000).
39
whether it is fair or adequate.”217 “A court of equity does not attempt to weigh the
actual value nor to insist upon the equivalent in contracts, when each party had equal
competence.”218 Here, the consideration of one (1) dollar reflected on the face of
the Agreement is sufficient to support a mere license.219
B. Nancy revoked or repudiated the license in 2001 and the Clymers
waited too long to assert their interests therein.
The Clymers argue that Nancy breached the Agreement and the implied
covenant implicit therein. The DeGirolanos argue that Nancy revoked or repudiated
the Agreement and the Clymers are barred from challenging such in this action. I
agree with the DeGirolanos.
Ordinarily, licenses are “terminable at the will of the owner.”220 But a license
“can vest enforceable rights in the grantee if the court is convinced that the grant of
use was reasonably relied upon and that the parties intended the grant to be
217
Osborn, 991 A.2d at 1159.
218
Glenn v. Tide Water Associated Oil Co., 101 A.2d 339, 344 (Del. Ch. 1953).
219
See also Tr. 215:3-12. Although there is Delaware case law reflecting the exchange of
consideration for licenses to use real property, it is not clear that consideration is required
to form such a license. See Baynard v. Every Evening Printing Co., 77 A. 885, 887 (Del.
Ch. 1910) (distinguishing a license from a contract); Jackson v. Philadelphia, W. & B.R.
Co., 1871 WL 2084, at *7 (Del. Ch. Sept. 1871) (explaining “a mere license affecting lands
is at law always revocable, even though granted for a valuable consideration”). See also 3
Tiffany Real Prop. § 830 (3d ed. 2022) (“No formality is necessary to establish or create a
license. It may be in writing or oral, no particular words being necessary. It may be implied
from the relations of the parties, or from the conduct of the landowner, as when he indicates
an assent to the doing of certain acts on his land.”) (citations omitted).
220
Coker, 2013 WL 1858098, at *3.
40
permanent.”221 If that reliance is “acted upon in the expenditure of money it becomes
a contract for a valuable consideration, to be executed by a Court of Equity as a
contract part performed.”222 Whether a license should be held permanent depends
on “the intent of the parties, . . . the circumstances of the particular case, and may be
wholly countervailed by evidence demonstrative that the privilege in question was
in fact granted and accepted not as a perpetual, indefeasible right, but as a voluntary
accommodation, to abide the good will and mutual interests of the parties.”223 If a
license is held permanent, the property owner can no longer revoke at will and any
purported revocation is properly considered repudiation. Under the doctrine of
repudiation, “an unequivocal statement by a promisor that he will not perform his
promise gives ‘the injured party an immediate claim to damages for total breach.’”224
Here, the Clymers presented some evidence in support of converting the
license into a more permanent, enforceable interest in the Building or the Front
Acres.225 Whatever interest granted to or acquired by the Clymers was either
221
Hionis v. Shipp, 2005 WL 1490455, at *4 (Del. Ch. June 16, 2005), aff’d, 903 A.2d 323(Del. 2006).
222
Jackson, 1871 WL 2084, at *5.
223
Id.224
Carteret Bancorp, Inc. v. Home Grp., Inc., 1988 WL 3010, at *5 (Del. Ch. Jan. 13,
1988).
225
Although I entertain the possibility, I find it unlikely the Clymers’ license was converted
to anything more. Like in Carriage Realty P’ship v. All-Tech Auto Automotive, 2001 WL
1526301 (Del. Ch. Nov. 27, 2001), the Clymers’ license was expressly for the purpose of
constructing the Building, thus, that construction would not support converting the license
41
revoked or repudiated by Nancy in 2001 by the June Letter, wherein Nancy
unequivocally revoked whatever permission the Clymers had to use and enjoy the
Front Acres and the Building.226 Either she (1) exercised her authority to terminate,
at will, a mere license, or (2) the June Letter was a repudiation of a promise of a
greater property interest.
Most importantly, however, is what the Clymers did in response—nothing.
When Nancy expressly took away the present rights she conferred by the Agreement,
the Clymers failed to act promptly to protect those rights. Rather, from the receipt
of the letter in June 2001 until Nancy returned the Building’s keys to the Clymers
around 2009, they stayed away from the Building and the Front Acres were either
vacant or used by others. I find their conduct amounts to laches.
into a greater interest. Id. at *9. Absent such, the Clymers have not demonstrated the
inequitable conduct necessary to support a finding that they obtained a greater interest in
the Building or the Front Acres between 1997 and 2001. See id. I find their representations
at trial that they would “never put a building on [other’s] property without an agreement”
represent their thinking now, with the benefit of hindsight, rather than their present
intentions in 1997 as reflected in the Agreement. See Tr. 284:17-19.
226
PX 11. In his preliminary injunction ruling, Vice Chancellor Fioravanti held: “At this
stage of the proceedings, the record does not suggest that the [June] Letter and Nancy’s
subsequent conduct were sufficiently unequivocal, positive, and unconditional to constitute
a repudiation of the Agreement.” D.I. 70, ¶ 17. But, herein, I find that the Agreement is
enforceable only as a license and not a promise to gift or bequeath the Front Acres. I agree
with Vice Chancellor Fioravanti that the June Letter does not represent a clear repudiation
of a future gift or bequeath of the Front Acres. But it does clearly repudiate or revoke any
present interest the Clymers had at that time in using the Building and the Front Acres.
42
Laches will bar “an action in equity if the defendant carries the burden of
persuasion that two conditions have been satisfied: (1) the plaintiff waited an
unreasonable length of time before bringing the suit and (2) the delay unfairly
prejudices the defendant. What constitutes unreasonable delay and prejudice are
questions of fact that depend upon the totality of the circumstances.”227 Although
“[a] statute of limitations period at law does not automatically bar an action in equity
. . . [a]bsent a tolling of the limitations period, a party’s failure to file within the
analogous period of limitations will be given great weight in deciding whether the
claims are barred by laches.”228
Here, the analogous statute of limitations is found in 10 Del. C. § 8106, which
imposes a three-year period of limitations for actions based on contract or promise.
That analogous period for claims arising out of Nancy’s revocation or repudiation
would have run by June 12, 2004, three years after the June Letter.229 The Clymers
227
Hudak v. Procek, 806 A.2d 140, 153 (Del. 2002).
228
Whittington v. Dragon Grp., LLC, 991 A.2d 1, 9 (Del. 2009).
229
The Clymers have not articulated any basis on which this period would have been tolled.
To the extent the Clymers argue their restart in 2010 somehow tolls the period during which
they should have sued, I disagree. The Clymers’ claim under the Agreement arose in 2001,
was arguably exacerbated when Leigh Ann began the candle shop around 2002, and they
failed to act timely to protect their interests. On this record, I find regaining access in 2010
was a separate arrangement. See Ontario Provincial Council of Carpenters’ Pension Tr.
Fund v. Walton, 294 A.3d 65, 71 (Del. Ch. 2023) (“Tolling cannot preserve an otherwise
untimely claim after the point of inquiry notice.”).
43
did not act until January 4, 2021, when they filed this action. I find they waited an
unreasonable amount of time to assert their rights under the Agreement.230
I turn to prejudice. “Laches is fundamentally concerned with the prevention
of inequity in permitting a claim to be enforced. Inequity for this purpose arises
where there occurs some change in the condition or relation of the parties or the
property involved in the pending lawsuit.”231 This type of prejudice and inequity is
present here.
Between 2004 (when a timely action should have been brought) and 2021
(when this action was filed) much changed relevant to the Agreement. During this
period of delay Anthony, Ron Sr., and Ron Jr.—who were all witnesses to the
Agreement and construction of the Building—died. Further, memories of those who
survived faded. Even the Clymers forgot about the Agreement over time and went
their own ways. Now, this Court is being asked to fill those gaps. This is the type of
230
Arguably, the Clymers should have acted even sooner. “A party asserting a claim for
specific performance in this Court, . . . will typically need to act with even greater alacrity
than simply within the analogous limitations period.” Pulieri v. Boardwalk Properties,
LLC, 2015 WL 691449, at *11 (Del. Ch. Feb. 18, 2015).
231
Donald J. Wolfe, Jr. & Michael A. Pittenger, Corporate & Commercial Practice in the
Delaware Court of Chancery § 15.07[c][4], at 15-18 (2021).
44
prejudice laches was meant to ward against.232 The Clymers should, thus, be barred
from asserting any rights arising from the Agreement.233
C. Joseph should be permitted to recover reasonable rent from the
Clymers, less the cost of improvements made to the Building.
With any challenges to the Agreement barred by laches, I turn to the Clymers’
use of the Front Acres after they reopened the business as Muzzi’s. I find that use
was through a revocable oral license granted by Nancy. In reliance on that license,
the Clymers expended funds to improve the Building. Then, after Joseph acquired
the Property, he revoked the license. This change of events, to me, leads to two
conclusions: (1) Joseph should be paid, from the bond, reasonable rent for the
Clymers’ use of the Front Acres after the revocation, and (2) that rent should be
reduced by the amount of the Clymers’ improvements to the Building.
A license—the privilege to use a premise for a specified purpose—can be
created orally or through a course of conduct.234 Here, Nancy granted a license to
232
See Territory of U.S. Virgin Islands v. Goldman, Sachs & Co., 937 A.2d 760, 809 (Del.
Ch. Dec. 20, 2007) (explaining the fading of key witnesses’ memories and the death of
other key witnesses preventing them from testifying was the “sort of evidentiary prejudice”
which “clearly supports a finding of laches”).
233
Because I find that laches bars the Clymers’ claims, I decline to address the alternative
bars of waiver and acquiescence. I further reject the Clymers’ argument that Vice
Chancellor Fioravanti’s preliminary injunction ruling conclusively determined laches—his
ruling was expressly predicated on the record before him and qualified by the ability for
trial to clarify and change the analysis. D.I. 70, ¶ 19. I find it did.
234
Carriage Realty P’ship, 2001 WL 1526301, at *8.
45
the Clymers sometime around 2009-2010 to use the Building and Front Acres to
operate their business. And, although the Clymers demonstrated that they made
expenditures to repair and improve the Building, the evidence demonstrated that the
license was never intended to convey to the Clymers a perpetual, indefeasibly,
exclusive right to use the Front Acres.235 Thus, I find the license remained revocable
at the will of the owner of the Property.236 Joseph unequivocally exercised the right
to revoke in the October Letter.237
235
The Clymers’ claims all rely on the Agreement. See, e.g., D.I. 175; D.I. 178 at 13-14.
The Clymers have not articulated any theory under which Nancy made new promises
regarding the reopening. With the 2001 revocation or repudiation, I see the restart as a
separate arrangement and reject the argument that Nancy’s repudiation was retracted when
she gave the Clymers keys in 2009 and allowed them to reopen as Muzzi’s. “A repudiation
is, of course, the reverse of positive and clear where the promisor before the time of
performance retracts the repudiation and announces himself prepared to perform his
promise.” Carteret Bancorp, Inc., 1988 WL 3010, at *6 (emphasis added). Stated another
way, where “there is no explicit or implicit acceptance of [a] repudiation (by for example
covering or filing suit for breach) and no detrimental reliance on it by the promisee, it is
the general rule that such a repudiation can be retracted prior to the agreed time for contract
performance.” Cochran v. Denton, 1991 WL 220547, at *1 (Del. Ch. Oct. 28, 1991), aff’d,
612 A.2d 157 (Del. 1992). Here, Nancy repudiated in 2001 and the Clymers accepted the
repudiation by vacating the Front Acres and the Building to their detriment. Even if Nancy
meant to retract the repudiation (which the evidence does not support) she failed to do so
timely. The Agreement was revoked or repudiated in 2001 and claims arising therefrom
unenforceable by 2004. The 2009-2010 arrangement was, at most, a new license.
236
See Jackson, 1871 WL 2084, at *5.
237
PX 16. I trigger revocation of the 2009-2010 license based on Joseph’s express
direction, rather than the mere transfer of interest to Joseph, following the lead of Vice
Chancellor Zurn in Jones v. Collison, 2022 WL 414237, at * 2 (Del. Ch. Feb. 11, 2022)
(holding that a license is not revoked by the mere conveyance of the servient estate) (citing
Baynard, 77 A. at 890-92).
46
Under this Court’s injunction, the Clymers were permitted to continue using
the Building and the Front Acres during the summer seasons of 2021 and 2022 (and,
presumably, are doing so currently). That use was, however, subject to their bond.
The bond requirement serves two purposes. First, it assures the enjoined
party that it may readily collect damages from the funds posted or the
surety provided in the event that it was wrongfully enjoined, without
further litigation and without possible insolvency of the assured.
Second, it provides the plaintiff with notice of the maximum extent of
its liability, since the amount of the bond is the limit of the damages the
defendant can obtain for a wrongful injunction, . . . provided the
plaintiff was acting in good faith.238
To recover from the bond, the DeGirolanos must prove that they were “wrongfully
enjoined.”239 A party is wrongfully enjoined “if the enjoined party had at all times
the right to do the enjoined act.”240 I find the DeGirolanos met that burden.
Because the only interest the Clymers had in the Front Acres or the Building
was a license, revocable at will, I find Joseph had the right to order the Clymers to
vacate. Thus, the DeGirolanos should recover injunction damages to cover
reasonable rent for the Clymers’ use after Joseph’s revocation, up to the amount of
the bond. But I further find that equity dictates reduction in the rent owed to
238
Concerned Citizens of Estates of Fairway Vill. v. Fairway Cap, LLC, 256 A.3d 737,
744 (Del. 2021) (cleaned up).
239
Ct. Ch. R. 65(c).
240
Emerald P’rs v. Berlin, 726 A.2d 1215, 1226 (Del. 1999).
47
accommodate for the repairs and improvements made by the Clymers to the Building
post-2009.
In striking this balance, I find then-Vice Chancellor Strine’s decision in
Carriage Realty Partnership v. All-Tech Auto Automotive most persuasive.241
Therein, the Vice Chancellor found that a property owner’s permission to a lessee to
build a fence was, at most, a license.242 Looking to the parties’ negotiations, the Vice
Chancellor found the fence builder “extracted nothing more than an indefinite
promise to permit construction of the fence.”243 Thus, the agreement was
“insufficient to create a property right” and the builder had only a license.244 Because
the license was expressly to construct a fence and there was no fraud or other support
for a greater claim, the construction alone did not convert the license into anything
more.245 But the Vice Chancellor did not stop there. Although he recognized the
property owner had the right to revoke the license at any time, he nonetheless shifted
the cost of removing the fence to such owner.246 He reasoned, the property owner
“stood by and let [the other side] erect an expensive fence designed to last for
241
2001 WL 1526301 (Del. Ch. Nov. 27, 2001).
242
Id. at *8.
243
Id. at *9.
244
Id.
245
Id.
246
Id.
48
years[,]” and “equity therefor suggests that [the property owner] should bear the
costs of removal.”247
I invoke the same reasoning here. Nancy permitted the Clymers to use the
Building and the Front Acres for their business. It was a permissive license revokable
first at Nancy’s, then at Joseph’s, will. But the DeGirolanos also stood by while the
Clymers made improvements and repairs to the Building on the Front Acres. Equity
supports reimbursement thereof. Because specific information regarding the
Clymers’ use since the injunction, and any 2023 improvements, is not in the record
before me, I do not attempt to quantify the rent/reimbursement offset herein. Rather,
I find the parties should meet and confer and propose a joint or competing order(s)
regarding such offsetting damages.
IV. CONCLUSION
For the foregoing reasons, I find the Clymers only had a license to operate
their business on the Front Acres and in the Building. Any claims they might have
had when Nancy first asked them to vacate in 2001 are time barred. The only relief
available to them due to Joseph’s similar request is reimbursement for improvements
made after 2009. That reimbursement should be offset by the reasonable rent owed
to Joseph, up to the amount of the injunction bond.
247
Id.
49
This is my final report and exceptions may be filed under Court of Chancery
Rule 144. Any stay of exceptions to interlocutory orders is hereby lifted. If this
becomes an order of the Court, the proposed order(s) contemplated above should be
submitted within twenty (20) days of finality.
50