Suppi Construction, Inc. v. EC Developments I, LLC

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SUPPI CONSTRUCTION, INC. )
a Delaware Corporation, )
)
Plaintiff, )
) C.A. No. N18L-11-009 AML
v. )
)
EC DEVELOPMENTS I, LLC, )
a Nevada corporation, )
FRONTIER BUILDING CORP., )
a Florida corporation, )
PANDA RESTAURANT GROUP, INC., )
a California corporation, )
PANDA EXPRESS, INC., )
a California corporation, )
MBOS CONCESSIONS, LLC, )
a Delaware limited liability company, )
)
Defendants. )
Submitted: September 27, 2022
Decided: December 8, 2022
ORDER
Upon Plaintiff’s Motion to Enforce Settlement Agreement: DENIED
1. The plaintiff seeks to enforce a settlement agreement it contends the
parties reached in May or June 2022. Although it is undisputed that the parties
agreed to an amount to be paid to resolve the plaintiff’s claims, they could not agree
on the scope of a release of claims. That disagreement caused the plaintiff to
represent to this Court that the action was not settled and that the plaintiff was not
1
willing to engage in further discussions. Then, three weeks later, the plaintiff
purported to accept the last settlement agreement proposed by the defendant, which
the plaintiff previously had rejected as unacceptable. The question before this Court
is whether these circumstances meet the plaintiff’s burden to prove that the parties
agreed upon all essential settlement terms. Because the record does not support the
plaintiff’s position that the parties entered into an enforceable agreement, the
plaintiff’s motion is denied.
FACTUAL BACKGROUND
2. This action arises out of a Subcontract (the “Subcontract”) between
Defendant Frontier Building Corp. (“Frontier”) as general contractor and Plaintiff
Suppi Construction, Inc. (“Suppi”) as subcontractor. The Subcontract related to site
work for construction of a new Panda Express Restaurant at 4704 Kirkwood
Highway, Wilmington, Delaware (the “Property”).
3. On November 5, 2018, Plaintiff filed a complaint and statement of
mechanic’s lien (the “Complaint”) against Frontier and several other entities.1 The
Complaint sought a mechanic’s lien and an in rem judgment in the amount of
$114,647.98 against the Property. The Complaint also sought judgment in the
amount of $114,647.98 against Frontier based upon an alleged breach of the
Subcontract and against Panda Restaurant Group, Inc., Panda Express Inc. and
1
Compl. ¶¶ 2-6.
2
MBOS Concessions LLC (collectively the “Panda Entities”) under theories of
quantum meruit and unjust enrichment. Finally, the Complaint asserted a claim
against Frontier for an alleged violation of 6 Del. C. § 3501.
4. Trial in this matter was scheduled to begin on May 2, 2022.2 In the
weeks before trial, the parties engaged in settlement negotiations. As a result of those
efforts, the parties reached an agreement on an amount to be paid to resolve the
litigation, subject to negotiating the terms of a formal settlement agreement,
including an acceptable mutual release.3
5. On April 26, 2022, Plaintiff circulated a proposed settlement agreement
(the “April 26 Proposal”).4 The April 26 Proposal contained release language that
was not wholly reciprocal. Specifically, Plaintiff’s release of claims against
Defendants expressly excluded claims for fraud and for conduct after the date of the
agreement, while Defendants’ release of claims against Plaintiff did not contain
those exclusions.5 Defendants responded on April 26 that the release language was
not acceptable.
2
Trial in this matter was delayed several times. Trial initially was scheduled to take place on
November 29, 2021, but was rescheduled to May 2, 2022, when the parties requested additional
time for discovery and to prepare the pretrial stipulation. On February 28, 2022, Defendants’
counsel asked the Court to refer the case to mediation in advance of trial. The Court granted the
request on March 3, 2022. Then, on April 6, 2022, Defendants’ counsel requested a one-week
extension to mediate the case. The Court granted the extension.
3
Defendants’ Response in Opposition to Plaintiff’s Motion to Enforce Settlement Agreement and
for an Award of Attorneys’ Fees (hereinafter ““Defs.’ Resp. in Opp.”) at 3, Ex A.
4
Defs.’ Resp. in Opp. at 3, Ex. B.
5
Id. at 3, Ex. B ¶¶ 4-5.
3
6. On April 28, 2022, Plaintiff circulated another proposed settlement
agreement (the “April 28 Proposal”). The April 28 Proposal eliminated the exclusion
for fraud but continued to exclude a release of potential claims against Defendants
arising out of any conduct occurring after the date of the settlement agreement.6 In
other words, the release Plaintiff proposed to give Defendants still was not
reciprocal. Defendants refused to accept the April 28 Proposal.
7. Later that day, the Court conducted a status and pretrial conference (the
“Pretrial Conference”). During the Pretrial Conference, the parties represented to the
Court that they had been unable to settle the case because they could not reach an
agreement on the terms of a release. Counsel agreed they were not prepared to try
the case on May 2nd. As a result of this update, the Court ordered the parties to reach
a settlement or participate in a further round of mediation by May 20, 2022. If the
parties were unable to resolve the case by May 20th, the Court would provide counsel
a new trial date.7
8. On May 11, 2022, Defendants circulated a revised proposed settlement
agreement (the “May 11 Proposal”). The May 11 Proposal struck the non-reciprocal
release language favoring Plaintiff and added additional language related to the
scope of the mutual release. Defendants’ proposal struck the release language that
6
Id. at 3, Ex. C ¶ 4.
7
Judicial Action Form, D. I. 113.
4
expressly excluded claims arising in the future, and specifically listed “Contract”
and “Contract Work” as included within the release.8 On May 19, 2022, in response
to the May 11 Proposal, Plaintiff advised Defendants that “the edits proposed by the
defendants are not acceptable to Suppi.”9
9. On May 20, 2022, the parties provided a status update to the Court (the
“May 20 Status Report”).10 The May 20 Status Report informed the Court that the
parties had not been able to agree upon the settlement language. Plaintiff advised the
Court that Plaintiff had provided its “definitive position on settlement language.”
Defendants stated Plaintiff’s proposed settlement language was unreasonable and
Defendants remained willing to mediate.
10. Three weeks later, without any further discussion between the parties,
Plaintiff sent Defendants a signed copy of the previously rejected May 11 Proposal,
which Plaintiff edited to include a new proposed payment date of June 30, 2022.
Defendants responded on June 27, 2022. In their response, Defendants stated
Plaintiff had rejected the May 11 Proposal, and payment on the terms now requested
by Plaintiff should not be expected.
11. The Court convened another status conference on July 12, 2022. During
that conference, Plaintiff took the position that the matter was settled upon Plaintiff
8
Defs.’ Resp. in Opp. at 3, Ex. D ¶ 4.
9
Id. at 4, Ex. E.
10
Id. at 4, Ex. F.
5
signing the May 11 Proposal. For that reason, Plaintiff argued further mediation was
not warranted. Plaintiff filed this Motion to Enforce the Settlement Agreement (the
“Motion”) on July 27, 2022. Plaintiff’s Motion also seeks an award of attorneys’
fees. The parties argued the Motion on September 27, 2022, after which the Court
took the Motion under advisement.
ANALYSIS
12. The issue before the Court is whether the parties reached a binding
settlement agreement. Delaware courts encourage negotiated resolutions to
contested cases, and settlement agreements are enforceable as contracts.11 As the
party seeking to enforce the purported agreement, Plaintiff bears the burden of
proving the existence of a contract by a preponderance of the evidence.12 In
determining whether Plaintiff has met its burden, the Court must inquire:
whether a reasonable negotiator in the position of one asserting the
existence of a contract would have concluded, in that setting, that the
agreement reached constituted agreement on all of the terms that the
parties themselves regarded as essential and thus that that agreement
concluded the negotiations . . . .13
11
Schwartz v. Chase, 2010 WL 2601608, at *4 (Del. Ch. Jun. 29, 2010); Asten, Inc. v. Wangner
Sys. Corp., 1999 WL 803965, at *1 (Del. Ch. Sept. 23, 1999).
12
Schwartz, 2010 WL 2601608, at *4.
13
Loppert v. WindsorTech, Inc., 865 A.2d 1282, 1285 (Del. Ch. 2004) (quoting Leeds v. First
Allied Conn. Corp., 521 A.2d 1095, 1097 (Del. Ch. 1986)).
6
It is the parties’ overt manifestations of assent, rather than their subjective intent,
that controls the determination of whether an agreement was reached on all material
terms.14
13. Delaware law requires a contract to contain all material terms in order
to be enforceable, and specific performance only will be granted when an agreement
is clear, definite, and a court does not need to supply essential contract terms.15
When settlement terms are left to future negotiation, as they were in this case, the
enforceability of an agreement depends on “the relative importance and severability
of the matter left to the future.”16 The relative importance of a term is by its nature a
fact-intensive inquiry. The absence of an agreement on a particular term has been
found to be immaterial where other terms in the parties’ agreement allow the Court
to enforce the parties’ bargain.17 Where, however, the unresolved terms are material
and the parties’ intent cannot be gleaned from other aspects of the agreement, no
enforceable contract exists.18
14
United Health All., LLC v. United Med., LLC, 2013 WL 6383026, at *6 (Del. Ch. Nov. 27,
2013).
15
Ramone v. Lang, 2006 WL 905347, at *10 (Del. Ch. Apr. 3, 2006).
16
Asten, Inc., 1999 WL 803965, at *2.
17
Spacht v. Cahall, 2016 WL 6298836, at *4 (Del. Super. Ct. Oct. 27, 2016) (citing Asten, Inc.,
1999 WL 803965, at *2–3 (concluding unresolved administrative issue as to how to effect division
of proceeds paid in kind rather than in cash did not constitute omission of material term); Hendry
v. Hendry, 1998 WL 294009, at *2 (Del. Ch. June 3, 1998) (holding exact property line description
was not an essential term because other terms of the contract allowed the Court to enforce the
parties' agreement)).
18
Spacht, 2016 WL 6298836, at *4 (citing Schwartz, 2010 WL 2601608, at *10-11).
7
14. Plaintiff advances two independent theories in support of its Motion.
First, Plaintiff contends the parties reached a settlement on May 11, 2022, because
they agreed to all material terms on that date. According to Plaintiff, the scope of the
release language was not a material term and therefore the parties’ failure to agree
as to the precise scope of a release does not preclude a finding that a settlement was
reached. In order to resolve this argument, the Court must determine whether the
scope of the release language was “so essential to the bargain that to enforce the
promise would render enforcement of the rest of the agreement unfair.”19
15. Plaintiff argues that on May 11, 2022, when Defendants removed from
the release the exclusion for claims arising after the date of the settlement agreement
and listed “Contract” and “Contract Work” as part of the release,20 Defendants did
not request any other substantive edits to the language the parties had negotiated. As
such, Plaintiff contends, the parties had a meeting of the minds and were in
agreement on all other terms and language as of that date.21 Plaintiff maintains the
only issue left to negotiate was whether the release contained any carve out for
claims arising in the future.22 According to Plaintiff, Defendants’ attempt to expand
the release to include future claims was of no material significance because “[t]he
19
Asten, Inc., 1999 WL 803965, at *2.
20
Plaintiff’s Motion to Enforce Settlement Agreement and for an award of Attorneys’ Fees
(hereinafter “Pl.’s Mot.”) at 2, Ex. A, ¶ 4.
21
Id. at 2.
22
Id. at 2-3.
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rule in Delaware is that a release cannot apply to future conduct.”23 Therefore,
according to the Plaintiff, there was nothing of consequence left to negotiate after
Defendants made the May 11 Proposal, and an enforceable settlement had been
reached.24
16. Second, Plaintiff argues that even if the parties did not reach an
agreement on May 11th, the parties came to a meeting of the minds on June 13th when
Plaintiff accepted the May 11 Proposal.25 On June 13, 2022, Plaintiff responded to
its own May 19th email, writing to Defendants that “Suppi has decided to sign
Defendants’ last form of settlement agreement.”26 Plaintiff signed a “clean” copy of
the May 11 Proposal and changed the payment deadline to June 30, 2022.27 Plaintiff
claims that other than the change in the payment deadline, Plaintiff accepted the May
11 proposal as presented by Defendants, which was a “mirror image acceptance.”28
17. Defendants, on the other hand, argue no enforceable agreement was
reached because (1) the language of the release was an essential settlement term
upon which the parties did not agree, and (2) Plaintiff’s rejection of the May 11
23
Id. at 3 (citing UniSuper Ltd. v. News Corp., 898 A.2d 344, 348 (Del. Ch. 2006)).
24
Id. at 2.
25
Id. at 3-4, ¶¶ 8-9. On May 19, 2022, Plaintiff responded to Defendants’ May 17th email inquiring
about a response to the proffered edits to the release reflected in the May 11 Proposal. Plaintiff
stated that “the edits proposed by [D]efendants are not acceptable.” According to Plaintiff,
Defendants did not respond to this correspondence by indicating that the May 11 Proposal was
withdrawn or that Defendants’ position had changed before June 13, 2022, when Plaintiff
responded to its own email and accepted the May 11 Proposal. Pl’s. Mot. at 3.
26
Id. at 2, Ex. F.
27
Id. at 4.
28
Id.
9
Proposal foreclosed Plaintiff’s ability to accept it later.29 As to Plaintiff’s first
argument, Defendants contend the parties’ words and actions establish that the
release language was an essential, unresolved settlement term.30 Defendants assert
that on two occasions (April 28 and May 20), the parties advised the Court that
settlement had not been reached because the parties were unable to agree on the
terms of the release.31 Defendants further contend Plaintiff’s argument concerning
the practical and legal significance of the release carve-outs does not affect the
materiality of the release language to the parties.32 Moreover, Defendants assert the
carve-out language’s significance to Plaintiff was evidenced by its insistence that
the future claims language remain in the proposed settlement agreement.33
18. As to Plaintiff’s second argument, Defendants contend Plaintiff
expressly rejected the May 11 Proposal on May 19, 2022, and Plaintiff advised
Defendants and the Court that the terms of its April 28 Proposal contained Plaintiff’s
definitive position on settlement language.34 Defendants contend Plaintiff’s express
rejection of the May 11 Proposal and subsequent statement that it only would accept
the release language in the April 28 Proposal was a rejection and counteroffer that
29
Defs.’ Resp. in Opp. at 5-6.
30
Id. at 5.
31
Id.
32
Id. at 6.
33
Id.
34
Id.
10
terminated Plaintiff’s power to accept the May 11 Proposal.35 Defendants therefore
contend Plaintiff’s attempt to accept the May 11 Proposal on June 13, 2022 is
unenforceable and no agreement exists between the parties.36
19. Neither of Plaintiff’s arguments satisfy its burden on this Motion. First,
the record unequivocally establishes the parties had not reached a binding settlement
agreement on May 11, 2022. Plaintiff informed the Court on April 28, 2022 at the
Pretrial Conference that no settlement agreement had been reached as of that date.37
On May 11, 2022, Defendants circulated a revised proposed settlement agreement.
That May 11 Proposal changed the scope of the release Plaintiff previously
proposed.
20. On May 19, 2022, in response to the May 11 Proposal, Plaintiff advised
Defendants that “the edits proposed by the defendants are not acceptable to Suppi.”38
On May 20, 2022, Plaintiff reported to the Court that the parties had not been able
to resolve their remaining disagreements, and Plaintiff had provided its definitive
position on settlement language.39 As of May 20, 2022, Plaintiff’s conduct did not
objectively manifest an intent to be bound by Defendants’ May 11 Proposal.
35
Id. at 6-7.
36
Id. at 7.
37
Id. at 3, ¶5.
38
Id. at 4, Ex. E.
39
Id. at 4, Ex. F.
11
21. Although Plaintiff now contends the scope of the release was not a
material term, this Court must consider the parties’ overt manifestations of assent,
rather than their subjective intent, to determine whether they reached an agreement
on all material terms.40 The parties’ conduct during the negotiation period
demonstrated the materiality of the release to both sides. Plaintiff repeatedly
informed the Court that it had not reached an agreement with Defendants because
the release language was not resolved. These representations show that the parties
did not believe they had formed an enforceable agreement. Whether the scope of a
release would be “material” in all cases is not an issue this Court needs to resolve.
Here, the parties’ communications among themselves and to the Court established
that the scope of the release was material to them and was the single issue preventing
them from advising the Court that a settlement had been reached. Neither side
indicated in May 2022 that the scope of the release was not material.
22. Moreover, Plaintiff’s argument in the Motion that the parties’
disagreement regarding the scope of the release was irrelevant because settled
Delaware law controlled the issue does not alter the materiality of the release to the
parties or their unequivocal representations to the Court that no settlement had been
reached. Plaintiff contends the only issue left to negotiate was whether the release
40
Spacht, 2016 WL 6298836, at *2 (citing United Health All., LLC, 2013 WL 6383026, at *6).
12
contained any carve out for claims arising in the future.41 Even if Plaintiff’s view of
the caselaw regarding future claims is correct, however, what matters is the parties’
objective manifestations of intent. At the time of the parties’ communications
regarding the scope of the release, Plaintiff continued to resist agreeing to settlement
terms that the Plaintiff now contends were immaterial. This new view of the parties’
negotiations cannot revise the otherwise unambiguous record regarding Plaintiff’s
position and representations in May 2022.
23. As to Plaintiff’s alternative theory, Plaintiff rejected the May 11
Proposal and therefore could not accept it in June 2022. It is a basic tenet of contract
law that an offer, once rejected, cannot be accepted unless renewed.42 In Plaintiff’s
view, it accepted the Defendant’s May 11 Proposal on June 13th as a mirror image
acceptance. But Plaintiff’s express rejection of the May 11 Proposal on May 19th and
later statement that it only would accept the release language in the April 28 Proposal
was a rejection and counteroffer that terminated Plaintiff’s power to accept the May
11 Proposal on June 13th.
24. Plaintiff nevertheless argues Defendants never formally withdrew their
offer and Plaintiff therefore retained the power to accept it.43 Plaintiff has not cited
41
Pl.’s Mot. at 2-3.
42
PAMI–LEMB I Inc. v. EMB–NHC, L.L.C., 857 A.2d 998, 1015 (Del. Ch. 2004) (by making a
counteroffer, party rejected the initial offer and terminated its power to accept that offer); see also
Ramone, 2006 WL 905347, at *10 (Delaware has adopted the mirror-image rule, which requires
an acceptance to be identical to an offer).
43
Pl.’s Mot. at 3.
13
to any caselaw requiring an offeror to formally withdraw an offer that already has
been rejected. Once Plaintiff rejected the May 11 Proposal on May 19th, there was
no pending offer for Defendant to withdraw or for Plaintiff to accept. Defendants
never renewed the May 11 Proposal. Defendants’ statement to the Court on May 20 th
expressing a willingness to engage in another round of mediation was not an
unambiguous renewal of the terms of the May 11 Proposal. In short, on June 13th,
there was no open offer for Plaintiff to accept, and Plaintiff’s attempt to do so could
not bind Defendants.
25. For the foregoing reasons, Plaintiff has not established by a
preponderance of the evidence that the parties formed a settlement agreement, and
the Plaintiff’s Motion to Enforce the Settlement Agreement therefore is DENIED.
In accordance with the Court’s order on April 28, the parties shall schedule an in-
person mediation to be held by January 20, 2023. Counsel shall provide the Court
with an update on January 23, 2023. If the case has not resolved by that date, a new
trial date will be established. IT IS SO ORDERED.
/s/ Abigail M. LeGrow
Abigail M. LeGrow, Judge
14