Bunting Macks LLC v. D.R. Horton, Inc. - New Jersey

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
BONNIE W. DAVID COURT OF CHANCERY COURTHOUSE
VICE CHANCELLOR 34 THE CIRCLE
GEORGETOWN, DE 19947

Date Submitted: June 18, 2025
Date Decided: August 6, 2025

Sean A. Meluney, Esq. David E. Wilks, Esq.
William M. Alleman, Jr., Esq. D. Charles Vavala, III, Esq.
Meluney Alleman & Spence, LLC Anna L. Fiscella, Esq.
1143 Savannah Road, Suite 3-A Wilks Law, LLC
Lewes, DE 19958 4250 Lancaster Pike, Suite 200
Wilmington, DE 19805

RE: Bunting Macks LLC v. D.R. Horton, Inc. – New Jersey,
C.A. No. 2025-0272-BWD

Dear Counsel:

Plaintiff Bunting Macks LLC (“Bunting Macks”) seeks to exercise self-help

rights under a joint development and reciprocal easement agreement. Bunting

Macks claims it is entitled to install a sewer forcemain under real property owned

by defendant D.R. Horton, Inc. – New Jersey (“Horton”). Bunting Macks wishes to

install a forcemain that is ten inches in diameter, but Horton contends that the parties’

agreement requires installation of a forcemain only six inches in diameter. This

letter opinion concludes that, under the agreement, the parties’ dispute must be

arbitrated.
Bunting Macks LLC v. D.R. Horton, Inc. – New Jersey,
C.A. No. 2025-0272-BWD
August 6, 2025
Page 2 of 16

I. BACKGROUND

A. The Purchase Agreement

This case represents the latest installment in ongoing litigation between

Bunting Macks and Horton over the development of real property in Selbyville,

Delaware. In 2021, Bunting Macks and Horton entered into a land purchase contract

(the “Purchase Agreement”) under which Horton agreed to purchase, and Bunting

Macks agreed to sell, real property (the “Property”) to be developed into a residential

community called “Coastal Villages.” Verified Compl. [hereinafter Compl.] ¶ 4,

Dkt. 1.

The Purchase Agreement governed the purchase of the Property in four

phases. Id. On May 3, 2022, Bunting Macks and Horton closed on Phase 1. Id.

¶ 14. The same day, Bunting Macks and Horton entered into a joint development

and reciprocal easement agreement (the “REA”) to govern the development of

Phases 1 through 4. See id., Ex. 3 [hereinafter REA].

On January 29, 2024, Horton filed an action in this Court, alleging that

Bunting Macks had breached the Purchase Agreement and seeking an order

compelling Bunting Macks to specifically perform its obligations under the Purchase

Agreement to sell the Phase 2 property “with all contingencies, representations, and

warranties met and with all contractually required approvals.” D.R. Horton, Inc. –
Bunting Macks LLC v. D.R. Horton, Inc. – New Jersey,
C.A. No. 2025-0272-BWD
August 6, 2025
Page 3 of 16

N.J. v. Bunting Macks LLC, 2024 WL 4870606, at *2 n.13 (Del. Ch. Nov. 22, 2024);

see D.R. Horton, Inc. – N.J. v. Bunting Macks LLC, 2024 WL 3045169, at *4 (Del.

Ch. June 18, 2024) [hereinafter Horton I], exceptions denied, 2024 WL 4870606

(Del. Ch. Nov. 22, 2024). On June 18, I issued a final report, later adopted as an

order of the Court, concluding that the remedy of specific performance was no longer

available to Horton after it elected not to exercise its contractual right to extend the

outside closing date under the Purchase Agreement. Horton I, 2024 WL 3045169,

at *1. As a result of that ruling, Horton owns Phase 1 but Bunting Macks still owns

Phases 2 through 4.

B. The REA
The present dispute concerns Bunting Macks’ rights under the REA to install

a sewer forcemain under Phase 1 for the benefit of Phases 2 through 4. Compl.

¶¶ 58–71. In short, under the REA, the parties agreed that the owner of Phase 1—

Horton—would construct a forcemain to service the Coastal Villages community,

while the owner of Phase 2—Bunting Macks—would construct a pump station to tie

into the forcemain. Eventually, the forcemain and pump station will be dedicated to

the Town of Selbyville (the “Town”).1

1
The REA contemplates that “the [c]ommon [r]oadways, [f]orcemain and the water and
sewer lines will eventually be transferred to the Town of Selbyville.” REA § 3.1.
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Section 2.7.1.1 of the REA states that “the Owner of Phase 1 [i.e., Horton] is

required to construct, at such Owner’s cost, the Forcemain,2 as located in Phase 1

. . . .” REA § 2.7.1.1. Under Section 2.9 of the REA,

Until such time as the Forcemain has been publicly dedicated, Horton
grants and conveys to the Owner of Phases 2-4, for the benefit of Phases
2-4, a perpetual easement to tie-in to and use the Forcemain to be
constructed on Phase 1 in accordance with the Final Phase 1 Plan,
provided such rights to tie-in and use of the Forcemain infrastructure
shall be in accordance with the Final Phase 2-4 Plans.3
Id. § 2.9. Section 2.7.1.1 of the REA further states that:
In the event that the Owner of Phase 1 fails to construct the Forcemain
. . . in accordance with the approved Final Phase 1 Plan on or before the
later of (i) May 3, 2024, and (ii) the date on which the [Purchase
Agreement] terminates with respect to Phase 2, Phase 3 and/or Phase 4,
the Owner(s) of Phases 2-4 shall have the right to complete the
construction of the Forcemain . . . in accordance with the approved
Final Phase 1 Plan, in accordance with the self-help provisions set forth
herein.
Id. § 2.7.1.1. Article 7 of the REA sets out the “self-help provisions.” Section 7.1(a)

of the REA states that:

If, subject to any Unavoidable Delays, as defined in Section 7.2, any
Owner (hereinafter the “Defaulting Owner”) shall fail to perform or

2
The REA defines “Forcemain” to mean “the forcemain sewer pipe as shown on the Final
Phase 1 Plan.” REA § 1.1(m). “Final Phase 1 Plan” refers to “the Coastal Villages Phase
I Record Plan recorded in the Recorder’s Office . . . in Plat Book 367, Page 76.” Id. at 1.
3
“Final Phase 2-4 Plans” means “the finally approved site development plans for Phases
2, 3, and 4, as approved by the applicable Governmental Authority, which plans may either
be simultaneously approved or approved sequentially following the date hereof.” REA
§ 1.1(l).
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abide by any of the provisions, covenants or conditions of the Self Help
Designated Sections4 of this Agreement on its part to be performed at
the time and in the manner herein provided for the performance thereof
or such Defaulting Owner, in respect of any Sections of this Agreement
which requires the diligent pursuance of a course of conduct or a course
of work, fails to pursue the same diligently, then in either such event,
any other Owner, after thirty (30) business days’ notice to the
Defaulting Owner, shall have the right, but shall in no event be
obligated, to proceed to take such action or make such payment as shall
be necessary to cure such default (unless within such period the
Defaulting Owner shall cure such default, or in the case of a default
which by its nature cannot be cured within such period, the Defaulting
Owner shall take such action as is reasonably calculated to commence
the curing thereof, and thereafter shall diligently prosecute the curing
thereof to completion), all in the name of and for the account of the
Defaulting Owner. . . . Prior to any Owner exercising the rights granted
in this Section 7.1(a), the Owner intending to exercise such rights shall
first provide the Owner upon whose Phase such rights are intended to
be exercised with a certificate of insurance. Any Owner availing itself
of the rights granted in this Section 7.l(a) shall promptly pay all costs
and expenses associated with such work and shall promptly clean the
area and restore the affected area to a condition which is substantially
equal to or better than the condition which existed prior to the
commencement of such work.

Id. § 7.1(a).

In Section 7.1(b) of the REA, the parties agreed to arbitrate certain disputes

concerning the self-help provisions:

If, however, notwithstanding the contention by such other Owner
contained in such notice, or made by such other Owner in acting
pursuant to the third sentence of the preceding paragraph, the

4
The “Self Help Designated Sections” include Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9,
2.10, 2.11, Article 3, Article 6, and Article 7. REA § 1.1(cc).
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Defaulting Owner shall contend that it has not in fact failed to perform,
or diligently to pursue a course of conduct or work in respect of, the
provision, covenant or condition in question, or that the work
performed by the other Owner was excessive in cost or extent (such
contention to be made promptly if to be so made), then, if the matter is
not agreed upon by the other Owner and the Defaulting Owner within
sixty (60) days, the matter shall be submitted to arbitration for
determination in accordance with the provisions of Section 7.1(c) of
this Agreement and the Defaulting Owner shall not be required to make
any payment provided for in this Article, until the arbitration
proceedings are concluded.

Id. § 7.1(b) (emphasis added). Section 7.2(a) of the REA separately states that

“[e]ach Owner may proceed, at law or in equity, to prevent the occurrence or

continuance of any violation of any provision of this Agreement . . . .” Id. § 7.2(a).

Section 2.7.1.3 of the REA provides that, “[i]n order to develop Phase 2, the

Owner of Phase 2 [i.e., Bunting Macks] shall be required to construct, at such

Owner’s cost, for the use of each Owner and for the benefit of and as an appurtenance

to each Phase, the Pump Station5 in Phase 2 in accordance with the Final Phase 2-4

Plans.” Id. § 2.7.1.3. Under Section 2.6 of the REA, “[t]he Owner of Phase 2 grants

and conveys to the Owners of Phases 3 and 4, an access and utility easement to tie-

in and use the Pump Station for the benefit of Phases 3 and 4, in accordance with the

Final Phase 2-4 Plans.” Id. § 2.6. In addition, under Section 2.10 of the REA,

5
The REA defines “Pump Station” as “that certain sewer pump station as shown on the
Plan, to be constructed in accordance with the Final Phase 2-4 Plans.” REA § 1.1(y).
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Upon completion of the Pump Station in accordance with Section
2.7.1.3, and until such time as the Pump Station has been publicly
dedicated, the Owner of Phase 2 grants and conveys to the Owner(s) of
Phase 1, Phase 3 and Phase 4 . . . a perpetual easement to tie-in to and
use the Pump Station, as constructed in accordance with the Final Phase
2-4 Plans, provided such rights to tie-in and use of the Pump Station
infrastructure shall be in accordance with the Final Phase 1 Plan and
the Final Phase 2-4 Plans.

Id. § 2.10.

C. Horton Fails To Construct A Forcemain And Bunting Macks
Invokes Self-Help Rights Under The REA.
On April 25, 2022, the Town approved plans for Phase 1 that included a

Forcemain of six inches in diameter. See Rule 56(f) Aff. of D. Charles Vavala, III

[hereinafter Vavala Aff.], Ex. A at 4, Dkt. 24.6 On August 7, 2023, however, the

Town approved plans for Phase 2 that included a Forcemain of ten inches in diameter

to service a regional pump station. Compl. ¶¶ 32, 34.7

In late 2024, Horton attempted to install a six-inch Forcemain, but the town

engineer halted construction, explaining that the Town required a ten-inch

Forcemain. See Vavala Aff., Ex. A at 3–4. On December 20, 2024, Horton

requested that the town solicitor “advise the Town Engineer that the Developer

6
Those plans were recorded on May 3, 2022. See Compl., Ex. 1; id., Ex. 2 at C520–C523.
7
Those plans were recorded on August 16, 2023. See Compl., Ex. 5; id., Ex. 6 at C520–
C523.
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Agreement and approved Construction Plans require Horton to install a 6-inch force

main on the Property and not a 10-inch force main.” Id. at 4.

On January 30, 2025, Bunting Macks notified Horton that Bunting Macks

intended to exercise self-help rights under Section 7.1 of the REA to install a ten-

inch Forcemain at its own cost. Compl., Ex. 8. On February 19, Horton responded

that Bunting Macks “may not exercise self-help rights or enter Horton’s property to

increase the Forcemain.” Id., Ex. 12.

On February 25, the town solicitor confirmed to Horton that the Town

required a ten-inch Forcemain but suggested that “any issue that DR Horton may

have had with the size of the force main to be installed in Coastal Villages has been

resolved since Bunting Macks will be installing the force main at its sole cost . . . .”

Compl. ¶ 54.

D. Procedural History

On March 11, 2025, Bunting Macks initiated this action through the filing of

a Verified Complaint (the “Complaint”). Concurrent with the filing of the

Complaint, Bunting Macks moved for expedited proceedings on its forthcoming

motion for summary judgment. Dkt. 2. Horton opposed expedition. Dkt. 7. On

April 1, Bunting Macks moved for summary judgment and filed its opening brief in

support thereof. Dkt. 12. On April 9, Horton moved to dismiss the Complaint. Dkt.
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14.8 On April 21, the Court denied Bunting Macks’ request for expedition,

explaining that, “[t]o the extent Bunting Macks’ pleadings and motion identify some

modicum of threatened irreparable harm in the form of interference with its property

rights, the alleged harm does not justify the burden of the expedited schedule

Bunting Macks seeks.” Dkt. 18. The Court heard oral argument on the pending

motions on June 18. Dkt. 33.

II. ANALYSIS

Horton has moved to dismiss the Complaint under Court of Chancery Rules

12(b)(1) and 12(b)(6). Horton seeks dismissal on three grounds: (1) the dispute is

subject to arbitration; (2) the Court lacks equitable subject matter jurisdiction over

the dispute; and (3) the Complaint fails to state a claim upon which relief can be

granted. This letter opinion resolves the motion on the first ground for dismissal.

Horton moves to dismiss the Complaint in favor of the arbitration provision

in Section 7.1(b) of the REA. “It is well settled that ‘Delaware courts lack subject

8
Horton filed its Opening Brief in Support of its Motion to Dismiss on May 5, 2025. Dkt.
22 [hereinafter DOB]. On May 21, Horton filed its Answering Brief in Opposition to
Plaintiff’s Motion for Summary Judgment. Dkt. 24. Bunting Macks filed its Answering
Brief in Opposition to Horton’s Motion to Dismiss on May 30. Dkt. 27 [hereinafter PAB].
On June 12, Bunting Macks filed its Reply Brief in Support of its Motion for Summary
Judgment. Dkt. 29. Horton filed its Reply Brief in Support of its Motion to Dismiss on
June 13. Dkt. 31 [hereinafter DRB].
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matter jurisdiction to resolve disputes that litigants have contractually agreed to

arbitrate.’” Innovation Inst., LLC v. St. Joseph Health Source, Inc., 2019 WL

4060351, at *4 (Del. Ch. Aug. 28, 2019, revised Aug. 29, 2019) (quoting NAMA

Hldgs., LLC v. Related World Mkt. Ctr., LLC, 922 A.2d 417, 429 (Del. Ch. 2007)).

“A strong presumption exists in favor of arbitration, and, accordingly, contractual

arbitration clauses are generally interpreted broadly by the courts.” NAMA Hldgs.,

LLC, 922 A.2d at 430 (first citing Majkowski v. Am. Imaging Mgmt. Servs., LLC, 913

A.2d 572, 581–82 (Del. Ch. 2006); and then citing Westendorf v. Gateway 2000,

Inc., 2000 WL 307369, at *3 (Del. Ch. Mar. 16, 2000)). “However, this presumption

will not trump basic principles of contract interpretation[.]” Id. (citing Parfi Hldg.

AB v. Mirror Image Internet, Inc., 817 A.2d 149, 156 (Del. 2002)).

The parties agree that arbitrability should be decided by the Court and not by

the arbitrator.9 PAB at 20 n.7. They disagree, however, on whether the claims

9
Arbitrability is “an issue for judicial determination [u]nless the parties clearly and
unmistakably provide otherwise.” James & Jackson, LLC v. Willie Gary, LLC, 906 A.2d
76, 78 (Del. 2006) (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83
(2002)). Contracting parties reserve the question of arbitrability for arbitrators only where
(1) “the arbitration clause generally provides for arbitration of all disputes”; and (2) the
contract “incorporates a set of arbitration rules that empower arbitrators to decide
arbitrability.” Id. at 80. That is not the case here.
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brought in this action fall within the scope of Section 7.1(b) of the REA. The

Delaware Supreme Court has explained that:

When the arbitrability of a claim is disputed, the court is faced with two
issues. First, the court must determine whether the arbitration clause is
broad or narrow in scope. Second, the court must apply the relevant
scope of the provision to the asserted legal claim to determine whether
the claim falls within the scope of the contractual provisions that require
arbitration. If the court is evaluating a narrow arbitration clause, it will
ask if the cause of action pursued in court directly relates to a right in
the contract.

Parfi Hldg. AB, 817 A.2d at 155. The arbitration provision in Section 7.1(b) of the

REA is narrow. It states that:

If, however, notwithstanding the contention by such other Owner
contained in such notice, or made by such other Owner in acting
pursuant to the third sentence of the preceding paragraph, the
Defaulting Owner shall contend that it has not in fact failed to perform,
or diligently to pursue a course of conduct or work in respect of, the
provision, covenant or condition in question, or that the work
performed by the other Owner was excessive in cost or extent (such
contention to be made promptly if to be so made), then, if the matter is
not agreed upon by the other Owner and the Defaulting Owner within
sixty (60) days, the matter shall be submitted to arbitration . . . .

REA § 7.1(b). In other words, Section 7.1(b) applies only in three narrow

circumstances—when a party invokes the self-help procedures due to a breaching

party’s “fail[ure] to perform or abide by any of the provisions, covenants or
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conditions of the Self Help Designated Sections[,]”10 but the breaching party

contends that (1) “it has not in fact failed to perform . . . the provision, covenant or

condition in question,” (2) “it has not in fact failed . . . diligently to pursue a course

of conduct or work in respect of, the provision, covenant or condition in question,”

or (3) “the work performed by the other Owner was excessive in cost or extent[.]”

REA § 7.1(b).

Bunting Macks claims that Horton failed to perform its obligations under

Section 2.7.1.1 of the REA to construct the Forcemain by May 3, 2024, and seeks to

exercise its rights under the self-help provisions in Section 7.1 to construct a ten-

inch Forcemain. In response, Horton contends that Bunting Macks is not permitted

to act under the guise of self-help rights to construct a Forcemain that is four inches

larger than the six-inch Forcemain included in the Final Phase 1 Plan. See id.

§ 2.7.1.1 (“the Owner of Phase 1 is required to construct, at such Owner’s cost, the

Forcemain”); id. § 1.1(m) (defining “Forcemain” to mean “the forcemain sewer pipe

as shown on the Final Phase 1 Plan”); Compl. ¶ 54 (confirming the Final Phase 1

Plan reflected a six-inch Forcemain). In other words, Horton objects to Bunting

Macks’ exercise of self-help rights on the grounds that the work Bunting Macks

10
REA § 7.1(a).
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seeks to perform exceeds the extent of what is permitted under the REA. Horton’s

contention falls within scenario (3) above and must be arbitrated.11

According to Bunting Macks, two additional provisions in the REA show that

the dispute need not be arbitrated. I disagree. First, Section 7.2(a) of the REA

generally permits “[e]ach Owner [to] proceed, at law or in equity, to prevent the

occurrence or continuance of any violation of any provision of this Agreement

. . . .” REA § 7.2(a). Bunting Macks says that, notwithstanding the arbitration

provision, Section 7.2(a) permits Bunting Macks to seek relief in this Court “to

prevent the occurrence and continuation of Horton’s multiple violations of the

REA[,]” including alleged breaches of Sections 2.7.1.1., 2.7.1.3, and 7.1. PAB at

18. Importantly, however, the only violation Bunting Macks seeks to prevent

through this action is Horton’s interference with Bunting Macks’ self-help rights—

the precise issue that must be arbitrated under Section 7.1(b) of the REA.12

Bunting Macks also points to Section 9.8 of the REA, which states:

All rights, privileges and remedies afforded to the Owners by this
Agreement are cumulative and shall be deemed additional to any and

11
Horton also contends that it is “pursuing a course of conduct or work that would lead to
the installation of the Forcemain.” DRB at 5.
12
See Compl. ¶ 68 (seeking “a declaration affirming [Bunting Macks’] right to exercise
self-help rights to build the Forcemain”); id. ¶ 69 (seeking “an injunction preventing
Horton from interfering with Bunting Macks’ exercise of its self-help rights pursuant to
the REA”); id. at 22.
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all other remedies to which each of them may be entitled at law or in
equity, by statute or otherwise, and shall include the right to restrain by
injunction any violation or threatened violation by any Owner of any of
the terms, covenants or conditions of this Agreement . . . .

REA § 9.8. As Bunting Macks points out, the Delaware Supreme Court considered

similar language in James & Jackson, LLC v. Willie Gary, LLC, 906 A.2d 76.13

There, an “arbitration clause beg[an] by requiring arbitration of any controversy

arising out of or relating to [an] LLC Agreement[,]” but “continue[d] by expressly

authorizing the nonbreaching [m]embers to obtain injunctive relief and specific

performance in the courts.” Id. at 81. The Delaware Supreme Court read that

language as a whole to mean that, “despite the broad [arbitration] language at the

outset, not all disputes must be referred to arbitration.” Id.

“‘[W]here specific and general provisions conflict, the specific provision

ordinarily qualifies the meaning of the general one[,]’” and “‘general terms of the

contract must yield to more specific terms.’” Thompson St. Cap. P’rs IV, L.P. v.

Sonova U.S. Hearing Instruments, LLC, 2025 WL 1213667, at *8 (Del. 2025) (first

13
Willie Gary adopted the “majority federal view that reference to the [American
Arbitration Association] rules evidences a clear and unmistakable intent to submit
arbitrability issues to an arbitrator[,]” but held that the majority federal view did not apply
to that case because the arbitration clause did not refer all controversies to arbitration.
Willie Gary, LLC, 906 A.2d at 80–81. That is not at issue here; as noted above, the parties
agree that the Court should decide arbitrability.
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quoting Nucor Coatings Corp. v. Precoat Metals Corp., 2023 WL 6368316, at *10

(Del. Super. Aug. 31, 2023); and then quoting Sunline Com. Carriers, Inc. v. CITGO

Petroleum Corp., 206 A.3d 836, 846 (Del. 2019)). Unlike in Willie Gary, here,

Section 9.8 of the REA does not provide a narrow carve-out to broad arbitration

language. Instead, the opposite is true—Section 9.8 broadly permits all remedies “at

law or in equity,” but Section 7.1(b) provides a narrow exception for disputes

concerning self-help rights that must be arbitrated. The present dispute falls within

that narrow exception.

III. CONCLUSION

For the reasons explained above, the parties’ dispute over Bunting Macks’

exercise of self-help rights under the REA must be arbitrated. The parties should

meet and confer on whether this action should be stayed or dismissed in favor of

arbitration.14

14
The Federal Arbitration Act appears to govern the arbitration provisions in the REA. See
10 Del. C. § 5702(c) (“Unless an arbitration agreement complies with the standard set forth
in subsection (a) of this section for the applicability of the Delaware Uniform Arbitration
Act, any application to the Court of Chancery to enjoin or stay an arbitration, obtain an
order requiring arbitration, or to vacate or enforce an arbitrator’s award shall be decided
by the Court of Chancery in conformity with the Federal Arbitration Act [9 U.S.C. § 1 et
seq.] . . . .”); see also Smith v. Spizzirri, 601 U.S. 472, 478–79 (2024) (suggesting a stay,
as opposed to dismissal, may be appropriate).
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Sincerely,

/s/ Bonnie W. David

Bonnie W. David
Vice Chancellor

cc: All counsel of record (by File & ServeXpress)