Donald E. Polk, Jr v. Dennis R. Stewart and Joyce A Stewart

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
BONNIE W. DAVID COURT OF CHANCERY COURTHOUSE
MAGISTRATE IN CHANCERY 34 THE CIRCLE
GEORGETOWN, DE 19947
April 10, 2024
Dean A. Campbell, Esquire David Carl Zerbato, Esquire
Law Office of Dean A. Campbell, P.A. Morton, Valihura & Zerbato LLC
703 Chestnut Street 17527 Nassau Commons Boulevard
Milton, Delaware 19968 Suite 107
Lewes, Delaware 19958
RE: Donald E. Polk, Jr. v. Dennis R. Stewart, et al.,
C.A. No. 2021-1074-BWD
Dear Counsel:
As you know, on April 8, 2024, this action, which was previously assigned to
Vice Chancellor Glasscock, was reassigned to me. See Dkt. 45. Since then, I have
closely reviewed Defendants’ Motion for Summary Judgment (the “Motion”), the
parties’ briefing, exhibits, and supplemental submissions in connection with the
Motion, and the transcript of the oral argument during which the Court took the
Motion under advisement. See Dkts. 33-34, 37, 39-42. For reasons explained below,
the Motion is denied.
As alleged in his Complaint for Specific Performance (the “Complaint”), the
plaintiff in this action, Donald E. Polk, Jr. (“Plaintiff”), entered into an installment
contract with defendants Dennis R. Stewart and Joyce A. Stewart (“Defendants”) to
Donald E. Polk, Jr. v. Dennis R. Stewart, et al.,
C.A. No. 2021-1074-BWD
April 10, 2024
Page 2 of 4
purchase property in Long Neck, Delaware (the “Property”) for $303,000. Compl.
For Specific Performance [hereinafter, “Compl.”] ¶ 3, Dkt. 1. The contract required
Plaintiff to pay monthly installments over a five-year period and then to pay the
balance of the purchase price by June 30, 2020. Id. ¶¶ 3-4. The parties later extended
the contract term until December 31, 2020. Id. ¶ 6. Plaintiff asserts that he made
arrangements with his sister, Donna, to obtain financing but Defendants repudiated
the contract and refused to sell the Property to Plaintiff. Id. ¶¶ 6-8. The Complaint
seeks an order compelling specific performance of the contract. Id. ¶¶ 14-21.
In response to the Complaint, Defendants have asserted counterclaims for
breach of contract and unjust enrichment. See Dkt. 21. If the Motion is granted, the
counterclaims nevertheless will proceed to a trial, which is currently scheduled for
July 9 and 10, 2024. Dkt. 44.
“[T]here is no absolute right to summary judgment, and it is within the
discretion of the presiding judicial officer to require a developed record before
rendering a decision on the merits.” Gerald N. & Myrna M. Smernoff Rev. Trs. v.
King’s Grant Condo. Assn., 2022 WL 6331860, at *1 (Del. Ch. Oct. 10, 2022)
(footnote omitted). “Even where the facts are not in dispute, a court may decline to
grant summary judgment where a more thorough exploration of the facts is needed
to properly apply the law to the circumstances.” In re Tri-Star Pictures, Inc., Litig.,
Donald E. Polk, Jr. v. Dennis R. Stewart, et al.,
C.A. No. 2021-1074-BWD
April 10, 2024
Page 3 of 4
1995 WL 106520, at *5 (Del. Ch. Mar. 9, 1995); see also In re El Paso Pipeline
P’rs, L.P. Deriv. Litig., 2014 WL 2768782, at *9 (Del. Ch. June 12, 2014) (“[T]he
court may, in its discretion, deny summary judgment if it decides upon a preliminary
examination of the facts presented that it is desirable to inquire into and develop the
facts more thoroughly at trial in order to clarify the law or its application.”).
In support of the Motion, Defendants argue, among other things, that
“Plaintiff was neither ready nor able to purchase the Property” in December 2020
and is still “unable to purchase the Property[]” today. Defs.’ Br. In Supp. Of Defs.’
Mot. For Summ. J. [hereinafter, “OB”] at 15, Dkt. 34. Plaintiff, on the other hand,
says the evidence at trial will show that but for Defendants’ repudiation of the
contract, Plaintiff would have been ready and able to perform, and remains so today.
Pl.’s Ans. Br. To Def.’s Mot. For Summ. J. [hereinafter, “AB”] at 5-7, Dkt. 37.
Defendants also contend that the equities weigh against an order of specific
performance because Plaintiff has engaged in “inequitable, . . . disingenuous,
vindictive and malicious” conduct. OB at 20. Plaintiff responds that “without a
complete factual record, the Court cannot engage in a balance of the equities.” AB
at 10-11.
After careful review of the parties’ submissions, I have concluded that the
Motion implicates fact questions that will be resolved most efficiently after trial,
Donald E. Polk, Jr. v. Dennis R. Stewart, et al.,
C.A. No. 2021-1074-BWD
April 10, 2024
Page 4 of 4
which, regardless of the outcome of the Motion, is necessary to resolve Defendants’
counterclaims. The Motion is, therefore, denied. I will consider the arguments
raised in connection with the Motion when rendering my post-trial final report.
This is a final report pursuant to Court of Chancery Rule 144. In the interest
of judicial and litigant economy, exceptions are stayed pending final resolution of
this matter after trial.
Sincerely,
/s/ Bonnie W. David
Bonnie W. David
Magistrate in Chancery
cc: All counsel of record (by File & ServeXpress)