Opinion
Civil Action No. 07C-01-016 THG.
Date Submitted: March 20, 2008.
April 15, 2008.
I. Jay Katz, Esquire, Newark, DE.
Vincent G. Robertson, Esquire, Griffin and Hackett, P. A., Lewes, DE.
Dear Counsel:
This is the Court's decision granting Defendant Kathleen Engel's Motion for Summary Judgment.
PROCEDURAL BACKGROUND
On January 23, 2007, Plaintiff Vanguard Group, LLC ("Plaintiff") filed suit against Kathleen Engel ("Engel") and RE/MAX Realty Group ("RE/MAX").
On August 3, 2007, RE/MAX was dismissed from the litigation without opposition.
The Scheduling Order controlling this litigation required Plaintiff to identify its expert witnesses and produce related reports by August 9, 2007. All other discovery was to be completed by November 9, 2007.
Engel filed her timely dispositive motion and briefing was completed on March 20, 2008.
FACTUAL BACKGROUND
In early 2002, Plaintiff was desirous of locating property for purposes of residential development. Engel was a realtor in Sussex County. Engel and Plaintiff communicated as to Plaintiff's goals.
At this time, Engel also had listings of properties that other entities were desirous of selling. Engel's listing of land which Theodore Richards and Nancy Richards ("Sellers") owned is the property involved in this litigation.
Plaintiff and Sellers executed a dual agency agreement whereby both parties acknowledged and agreed that Engel would be an agent of both in trying to negotiate anagreement. In summary, the agreement set forth the limitations and restrictions of a dual agency.
In April 2002, Plaintiff submitted an offer to purchase a portion of Sellers' property. The following property description was included at Plaintiff's insistence: 39 acres "located in TAX DISTRICT 2-35; MAP 16.00; known as PARCEL 40"; "Acreage of at least 39 acres, to be determined by survey." A tax map with cross-hatching as to a more specific location was attached.
The offer to purchase was rejected as to the price. In May 2002, an agreement was reached with a higher price. The contract contained the same property description aforementioned, except the tax map was not attached.
The survey was completed and only 32 acres were found to exist. Plaintiff wanted Sellers to provide an additional seven (7) acres from adjacent property so Plaintiff could have 39 acres. Sellers refused and the deal collapsed.
On October 10, 2002, Plaintiff filed an action in the Chancery Court of the State of Delaware seeking specific performance of the sale of 39 acres of land. Discovery followed, including the deposition of Engel on July 2, 2003.
Chancellor William B. Chandler, III granted Sellers' Motion for Summary Judgment, thereby denying Plaintiff's request for specific performance. Vanguard Group, L.L.C. v. Richards, 2004 Del. Ch. LEXIS 182 (Del.Ch. Nov. 29, 2004), rearg. den., 2004 Del. Ch. LEXIS 191 (Del. Ch. Dec. 20, 2004), aff'd, 2005 Del. LEXIS 280 (Del. July 21, 2005). This Chancery case is noteworthy for the following reasons.
(a) The Chancellor held as follows. The contract language was ambiguous as to whether approximately 39 acres was to be conveyed versus a minimum of 39 acres. Even if the tax map attached to the first offer was considered, it was clear that there were not 39 acres to be found. Therefore, the exclusion of the tax map from the May contract did not harm Plaintiff's position because it did not impact the Chancellor's decision.
(b) Upon reargument, the Chancellor ruled that the contract had to be construed based solely on the contract language. Paragraph 25 of the contract contained a merger clause precluding the use of pre-contract discussions to interpret upon what the parties agreed. Likewise, pursuant to Paragraph 25, post-contract communications could not alter the written agreement unless reduced to writing and executed by both parties. The Chancellor denied reargument, finding that there was a failure of the meeting of the minds as to what land was to be conveyed and where it was located. Both parties made the mistake that 39 acres could be conveyed.
(c) The bottom line of the Chancellor's decision was that the contract failed to specifically identify a specific 39 acres which both parties agreed was to be conveyed.
Plaintiff, as a party to the Chancery action, is bound by collateral estoppel to the findings and rulings of the Chancellor. Nicholson v. Redman, 1993 Del. LEXIS 20 (Del. Jan. 6,1993); HealthTrio, Inc. v. Margules, 2007 Del. Super. LEXIS 34 (Del.Super. Jan. 16, 2007), at *33-8.
Finally, it is noteworthy that the language of the contract that proved fatal to specific performance was included at the insistence of the Plaintiff. (Complaint, Paragraph 15.)
LEGAL STANDARD
This Court will grant summary judgment only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Once the moving party has met its burden, the burden shifts to the non-moving party to establish the existence of material issues of fact. Id. at 681. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. Super. Ct. Civ. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-32 3 (1986). If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of his or her case, summary judgment must be granted. Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. denied, 504 U.S. 912 (1992); Celotex Corp., supra. If, however, material issues of fact exist, or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, summary judgment is inappropriate. Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
DISCUSSION
Much of the summary judgment argument is devoted to Plaintiff's allegations that Engel's "wrongful actions before and during the Chancery Action" caused the Sellers' refusal to honor the contract in a manner consistent with "Plaintiff's view of the transaction". (Complaint, Paragraph 3.) Plaintiff alleged and argued that Engel's wrongful actions before and during the course of the Chancery action made it impossible for Plaintiff to establish it had a valid enforceable contract and thereby prevented it from acquiring the property.
Plaintiff blames Engel for somehow sabotaging the deal, thereby causing Plaintiff damages. This seems illogical because Engel's compensation would be tied to the success of the deal. However, my ultimate rulings make it unnecessary for the Court to consider the allegations that Engel failed to interpret and communicate Plaintiff's intentions properly to Sellers and/or thereby misrepresented Plaintiff's position and/or breached her duty to Plaintiff.
STATUTE OF LIMITATIONS
The parties agree that the applicable Statute of Limitations is three (3) years. 11 Del. C. § 8106.
Defendant argues that any cause of action against Engel arose on May 30, 2002, the date the failed contract was signed. Since this lawsuit was not filed until June 23, 2007, the Plaintiff was too late by approximately twenty (20) months.
Plaintiff argues that his claims against Engel did not ripen until the Supreme Court affirmed the Chancellor's ruling on November 24, 2007. Despite this argument, Plaintiff filed this lawsuit ten (10) months earlier on January 23, 2007.
Plaintiff has pled and argued Engel's conduct at the birth of the contract harmed it.
In the first sentence of Plaintiff's brief, it is stated "All relevant events to this action occurred in 2002." Plaintiff has pled, though not articulated, a position that Engel's conduct during the Chancery litigation harmed it.
I find that Plaintiff did not have the luxury of waiting for the Chancery rulings to become final to file his action against Engel.
Plaintiff knew in 2002 that the wheels had fallen off his efforts to purchase the desired 39 acres. Plaintiff was at that time on notice that problems existed and Plaintiff was responsible for pursuing any and all courses of action against any responsible party. The latest date that Plaintiff knew or should have known he might have a cause of action would be the date Plaintiff deposed Engel which was July 2, 2003. At that time he would have known or could have known what Engel did or did not communicate to the Sellers.
Under Delaware law, the cause of action accrues upon the commission of the act or omission giving rise to the cause of action. Isaacson, Stolper Co. v. Artisan's Savings Bank, 330 A.2d 130, 132 (Del. 1974). Also as a general rule, Plaintiff's ignorance of his cause of action does not toll the statute of limitations. Id.
The facts in this case do not fall into the situation where the Plaintiff is "blamelessly ignorant" of having an "inherently unknowable" injury or cause of action. Layton v. Allen, 246 A.2d 794, 798(Del. 1968). Nor is there any evidence of fraudulent concealment which would toll the statute. See Isaacson, Stolper Co. v. Artisan's Savings Bank, 330 A.2d at 132.
Since everything on which Plaintiff's case is based occurred in 2002, and since Plaintiff had the opportunity to learn all about Engel's communications with Sellers upon her deposition in the Chancery action, Plaintiff should have pursued any complaint against Engel earlier.
The January 23, 2007 lawsuit comes too late and the Statute of Limitations bars it. Summary judgment is therefore granted.
ALTERNATIVE — NO DAMAGES
Plaintiff acknowledges that damages are a necessary element of its claim. VLIW Technology, LLC v. Hewlett-Packard Co., 840 A.2d 606, 612 (Del. 2003); In re: Asbestos Litigation, 1994 Del. Super. LEXIS 685 (Del.Super. Aug. 5, 1994), rev'd on other grounds, 1995 Del. LEXIS 323 (Del. Sept. 5, 1995). In response to Engel's position that Plaintiff has not identified any expert witnesses, any expert witness reports as to financial losses or other evidence in support of damages, it only argues, "Finally, as a result of Defendant's breach, he lost the property he sought to acquire and all of the damages in respect with such loss." Such a general position may be fine at the pleading stage, but not at the post-discovery summary judgment stage. If there are no alleged damages on the table, the Defendant is entitled to summary judgment regardless of the parties' disputed positions concerning what Engel should have communicated to Sellers.
When a party in a summary judgment motion alleges the lack of proof of an essential element of a claim, then the burden shifts to the opposite party to rebut same. Superior Court Civil Rule 56(e); Burkhart v. Davies, 602 A.2d at 59. By not producing evidence of damages, Plaintiff's case fails and summary judgment is granted.
CONCLUSION
Defendant's Motion for Summary Judgment is granted based upon the alternative grounds of being barred by the Statute of Limitations and the Plaintiff's failure to produce evidence of the essential element of damages.
IT IS SO ORDERED