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.,
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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
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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,
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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

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