G-Wilmington Associates v. Riverside Hospital Redevelopment, LLC

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

G-WILMINGTON ASSOCIATES, )
)
Plaintiff, )
)
v. ) C.A. No. 2024-0090-LM
)
RIVERSIDE HOSPITAL )
REDEVELOPMENT, LLC, )
LANDON CONSTRUCTION, LC, )
CONSTRUCTION DELAWARE, INC., )
and the CITY OF WILMINGTON, )
)
Defendants. )

POST-TRIAL FINAL REPORT

Final Report: October 31, 2025
Date Submitted: June 9, 2025

Christopher P. Simon, David G. Holmes, CROSS & SIMON, LLC, Wilmington,
DE; Counsel for Plaintiff G-Wilmington Associates.

Stephen A. Spence, Sean A. Meluney, MELUNEY ALLEMAN & SPENCE, LLC,
Wilmington, DE; Counsel for Defendant Riverside Hospital Redevelopment, LLC
and LC Construction Delaware, Inc.

William E. Gamgort and Carmella Cinaglia, YOUNG CONAWAY STARGATT &
TAYLOR, LLP, Wilmington, DE; Counsel for Defendant City of Wilmington.

Mitchell, M.
This matter comes before the Court on a dispute arising out of an easement

agreement that allowed a right of access on property owned by the plaintiff, the

owner of a shopping center. The plaintiff brings this action against three defendants,

a neighboring housing developer, a construction company, and the City of

Wilmington, alleging a breach of agreement, trespass, and related claims stemming

from the alleged unauthorized extension of an easement across the plaintiff’s

property. The plaintiff contends that the defendants exceeded the scope of the

easement as agreed and thereby encroached upon and trespassed onto the plaintiff’s

property. For reasons explained in greater detail below, I find there is a breach of the

easement agreement and trespass onto the Plaintiff’s property, however I do not find

it appropriate to terminate the agreement and order the removal of the sidewalk.

I. BACKGROUND1

Plaintiff, G-Wilmington Associates (hereinafter, “GWA”) is the owner of the

Miller Road Commons shopping center (hereinafter, the “GWA Property”).2 LC

Construction (hereinafter, “LCC”) and Riverside Housing Redevelopment

(collectively, “Defendants”) are companies with their principal place of business in

1
The facts in this report reflect my findings based on the record developed at trial. I grant
the evidence the weight and credibility I find it deserves. Citations to the transcript will be
in the form of “Tr. __.” Citations to the Docket are cited in the form of “D.I. __”.
Deposition transcripts are cited as “[Last Name] Dep. Tr.__.” The parties submitted joint
exhibits numbered 1-138. Citations to the joint exhibits are in the form of “JX__.”
2
Tr. 7:20–24; D.I. 82 at ¶B1; JX 97.
Delaware.3 In May 2019, Defendant, Riverside Housing Redevelopment

(hereinafter, “RHR”) purchased a 4.6-acre parcel adjacent to the GWA Property

(hereinafter, the “RHR Property”).4 The City of Wilmington (hereinafter, the “City”)

assisted in orchestrating the purchase of the RHR Property and is the third defendant

here.5

A. The Properties

The 17.5-acre GWA Property, located at 3600 Miller Road in New Castle

County, Wilmington, Delaware, contains approximately eight or nine stores

comprised of about 165,000 square feet of rentable space.6 GWA asserts they

acquired this Property in 1980.7 The shopping center, as it stands today, is located

between Miller Road to the north, Franklin Place to the south, and West 37th Street

to the east side of the property, outside the boundaries of the City.8

The RHR Property is located at 710 Lea Boulevard, Wilmington, Delaware.9

Unlike the GWA Property, the RHR Property is within the boundaries of the City of

3
D.I. 82 at 6.
4
Tr. 308:15–16; D.I. 82 at ¶B8.
5
D.I. 82 at ¶A4.
6
Tr. 15:3–10; D.I. 82 at ¶B1.
7
Tr. 9:18–20.
8
Tr. 9:5–8; Tr. 10:4–11:5; JX 32, Ex. A; see also D.I. 82 at 6 (“The GWA Property is
outside the established corporate limits of the City and is, instead, in unincorporated New
Castle County.”).
9
D.I. 82 at 7.

2
Wilmington, located to the east of both the GWA Property and West 37 th Street.10

RHR acquired the RHR Property in May 2019 with the intention of building multi-

family apartments.11

West 37th Street (hereinafter, “W. 37th St.”), is a finished roadway on the

GWA Property, connecting Franklin Place with Miller Road.12 It is a twenty-six foot

wide road that runs the length of the parcel owned by GWA, and it is identified as a

public right of way dedicated by GWA in a subdivision plan recorded in 1989.13

Along W. 37th St. sits a 10-foot construction easement on either side, that was

expressly dedicated in the GWA recorded subdivision plan and appears on

subsequent plans of the property.14 There is conflicting testimony on the purpose of

the construction easement with the GWA stating and providing support that it is to

provide the State space for storage of materials and access to W. 37th St. when it is

providing maintenance to the road,15 and the Defendants offering supporting

10
Tr. 41:8–11.
11
D.I. 82 at ¶B7.
12
Tr. 10:12–17; Tr. 11:7–15; JX 32, Ex. A; D.I. 82 at ¶B3; JX 94.
13
Tr. 10:4–22; Tr. 11:7–15; JX 32, Ex. A; D.I. 82 at ¶B.3; JX 94; JX 126.
14
JX 104 at 3–4; JX 94; JX 96; JX 97; JX 98.
15
Tr. 216:4–23.

3
evidence and testimony that it is a permanent construction easement that gives the

State the right to construct a sidewalk.16

GWA claims to own this right-of-way and exhibits its ownership of the street

through maintenance.17 Yet GWA cannot recall specific instances of maintaining,

paving, or fixing potholes, and a contract for plowing and shoveling displays that

such services do not extend to this roadway.18 DelDOT does not claim to have

maintenance rights over W. 37th St..19 The street is a private road that has been

dedicated to public use, meaning it can be used by the public and cannot be closed

off to the public.20

B. The Declaration of Voluntary Assurances

In January 2019, before RHR purchased the RHR Property, the former Mayor

of the City of Wilmington, Michael Purzycki contacted Mr. David Rosen, the

executive vice president of Rosen Associate Management Corp. and agent for

16
Donlon Dep. Tr. 104:13–24 (indicating uncertainty as to what type of construction
easement was present here but that “currently DelDOT asked for a permanent easement on
most jobs that run adjacent to rights-of-way for them to construct sidewalks or pedestrian
paths[.]”); Rudy Dep. Tr. 112:14–17 (“Q. Okay. So fair to say that DelDOT is the one who
has rights under the permanent construction easement? A. Yes.”).
17
Tr. 52:15–18; see Tr. 53:14–54:7 (referencing JX 119 at 3, No. 5).
18
Tr. 58:10–19; JX. 59 (showing that the snowplow vendor does not shovel or plow on W.
37th St. right-of-way).
19
Tr. 202:23–203:7; JX 104 at 4–5; Hastings Dep. Tr. 71:3–72:9.
20
Hastings Dep. Tr. 28:16–30:4; D.I. 82 at ¶B3; see also JX 63.

4
GWA.21 In doing so, the mayor discussed the possibility of RHR’s planned 165-

unit, three-building, upscale market-rate housing project, scheduled to begin within

the next six months.22 The mayor also specifically mentioned that he wanted to

explore the possibility of an easement over a portion of the GWA Property to have

a secondary entrance to the proposed development site.23 Mr. Rosen believed that

this would benefit the shopping center and tenants by increasing the flow of potential

customers.24 On January 15, 2019, Mr. Rosen received a subsequent letter from the

mayor, with the City of Wilmington letterhead, memorializing the verbal discussions

and urging the importance of the easement over GWA’s property to the City.25 The

mayor emailed GWA on February 19, 2019, which included renderings of RHR’s

proposed housing project.26 The renderings consisted of a schematic showing three

buildings with two entrances, a parking lot, and a swimming pool.27

During this time, the mayor also facilitated a negotiation with RHR and

Brandywine Hills Community Association (hereinafter, “BHCA”), a neighborhood

within the City boundaries and next door to the two properties, who expressed

21
Tr. 12:14–21.
22
Tr. 13:1–11.
23
Tr. 14:3–9.
24
Tr. 14:17–24.
25
Tr. 16:1–16; JX 5.
26
Tr. 17:12–18:11; JX 11.
27
Tr. 17:12–18:11; JX 11.

5
concern with the proposed new construction of multi-family apartments on the RHR

Property.28 When RHR purchased its property in 2019, it was not zoned for multi-

family housing but zoned as R-2 residential, for single-family housing.29 To obtain

the necessary rezoning for the construction of the multi-family housing on RHR’s

Property, on May 3, 2019, RHR entered into the Declaration of Voluntary

Assurances (hereinafter, the “DVA”) with the City and BHCA.30 The DVA was

signed by Louis J. Capano III, CEO of Capano the parent company of RHR and

recorded on May 6, 2019.31 The BHCA required, through the execution of the DVA,

the construction of new sidewalk on the GWA Property along W. 37th St. and the

construction of a secondary access point to the RHR Property onto W. 37th St..32

GWA is not a party to the DVA.33 Nonetheless, the mayor’s assistant emailed

Mr. Rosen a draft of the DVA before its execution on March 25, 2019.34 The draft

sent to Mr. Rosen is identical to the final executed DVA with the only difference

being the dates at the top of the document.35

28
JX 23; JX 24; see JX 25; Tr. 309:14–310:16; Tr. 311:21–313:7.
29
JX 19 at 1; Tr. 466:11–19.
30
Tr. 471:20–472:5; JX 25.
31
Capano Dep. Tr. 6:20–7:6; Capano Dep. Tr. 9:8–21; D.I. 82 at ¶B8.
32
JX 25 at §2(a)–(b), (d); see JX 9.
33
Tr. 135:24–136:6; see JX 25.
34
JX 22; Tr. 96:4–99:17.
35
JX 22; JX 25; Tr. 314:4–7.

6
C. The Easement Agreement

On April 22, 2020, GWA and RHR entered into the Easement Agreement.36

The City is not a signatory to the Easement Agreement.37 The easement is

approximately ten feet wide and one hundred and ten feet long running along the

east side of W. 37th St..38 The easement, like the GWA Property, lies within

unincorporated New Castle County and outside the boundaries of the City.39

GWA and RHR agreed that RHR would pay $25,000 as partial consideration

for the granting of the easement and then thereafter the RHR parcel owner would

pay $2,000 per month, increasing on a compounding basis by 12% every five years,

for as long as the Easement Agreement remained in place.40 RHR has made all

required payments under the Easement Agreement, even those required of it

throughout the span of this litigation.41 GWA believes the agreement was only for

building the secondary vehicular access between the two properties, while RHR

36
D.I. 82 at ¶B11; JX 32 at 1.
37
D.I. 82 at ¶B11; JX 32 at 1.
38
D.I. 82 at ¶B12; JX 32, Ex. B; Tr. 22:4–17.
39
Tr. 9:23–10:3; Tr. 41:8–11.
40
JX 32 at §3.
41
Tr. 55:1–6.

7
entered the agreement to facilitate the construction projects described in the DVA,

which include a sidewalk running along W. 37th St..42

The Easement Agreement permits RHR to use GWA’s Property as a means

of secondary vehicular access to the RHR Property.43 The Easement Agreement, in

Section 2.1, provides for an easement “for the purpose of facilitating pedestrian and

vehicular access, ingress, egress, and regress in, on, to, from, upon, under, across,

over, and through that portion of [the Easement Area.]”44 Section 2.2 of the

Easement Agreement states that “[t]he RHR Parcel Owner shall have the right, at its

sole cost and expense, to install, construct, use, connect, maintain, repair, and replace

such improvements on the Easement Area . . . as are necessary to connect the RHR

Parcel to the public right of way identified as 37th Street on the RHR Plan, and/ or

as desirable to the RHR Parcel Owner for the use of the Permanent Easement;

provided” they abide by further requirements therein.45

RHR, under the agreement, is to obtain “all certificates, approvals, permits,

licenses and other consents respecting the Easement Area that are required by any

42
D.I. 93 at 4 (“[I]nstalling approximately 875 feet of sidewalk and curbing on GWA’s
property, [] was i) not permitted by the Agreement[.]”); JX 101 at 14 (“The Agreement was
intended to provide a curb cut for secondary egress to RHR’s property, but such access did
not give anyone the right to build a sidewalk the entire length of 37th Street[.]”); Tr. 488:13–
20; Tr. 488:24–489:22.
43
Tr. 25:23–26:5; Tr. 488:13–20; see also JX 32.
44
JX 32 at §2.1.
45
JX 32 at §2.2.

8
local, county, state or federal agencies or other authorities having jurisdiction over

the Easement Area and/or [the GWA Property,]” and must also procure and maintain

insurance for the duration of the agreement “in amounts and coverages reasonably

required by [GWA.]”46 RHR agreed to provide all plans and specifications for the

installation and maintenance of the easement to GWA for its approval before the

start of construction.47 The Easement Agreement requires that construction is to be

completed within 36 months of the execution of the agreement, and if the

construction was not completed within the 36-month period GWA was granted the

right to terminate the agreement.48

D. The Assignment

While pleased that the DVA and Easement Agreement contained

commitments from RHR to construct and install the secondary access from W. 37th

St. and sidewalk along W. 37th St., the BHCA was now concerned that RHR might

not follow through with such commitments, jeopardizing the future of the secondary

access point and sidewalk.49 On November 14, 2020, a representative of BHCA

emailed the former deputy chief of staff of Mayor Purzycki’s administration, John

Rago, expressing concern over the security of the Easement Agreement due to the

46
JX 32 at §2.5; JX 32 at §15.1.
47
JX 32 at §2.4.
48
Tr. 489:23–490:6; JX 32 at §6.
49
Goff Dep. Tr. 62:3–13.

9
monthly payment requirement.50 RHR spoke with its attorneys contemplating a

resolution that would recognize the easement formally, however RHR never went

forward with getting the resolution approved by the City council.51 A series of

communications took place between December 6, 2020 and December 8, 2020

between Mayor Purzyki and Martha Carper, wife of former senator of Delaware and

resident of BHCA, regarding a draft of a partial assignment of the Easement

Agreement to the City.52

On December 10, 2020, RHR entered into an assignment agreement

(hereinafter, the “Assignment”) with the City regarding the Easement Agreement for

the GWA Property, despite GWA not being a party to this agreement.53 The

Assignment is signed by the mayor and Mr. Capano III, as representative for RHR.54

GWA was unaware of the Assignment at the time of its execution and was not

informed of its existence until discovery for the present litigation.55

The agreement grants the City the right to pay expenses due to GWA, to cure

any breach of the easement, and to construct or install improvements on the

50
JX 34; Tr. 495:20–496:16; Tr. 497:2–16.
51
Tr. 501:4–20; JX 35.
52
JX 38; Tr. 504:5–505:13.
53
D.I. 82 at ¶¶13–14; JX 41; Tr. 117:4–118:17.
54
JX 41; Tr. 506:3–10.
55
Tr. 117:8–14.

10
easement.56 The Assignment also provides that “[i]n the event [RHR] fails to make

or deliver any payments” or “fails to cure any breach of the Easement following

written notice of such breach from GWA,” then the City has “the right to make or

deliver such payments” and “cure any such breach[.]”57 The City is also assigned

“the right to construct and install the Easement Area Improvements pursuant to

Section 2 of the Easement[,]” in the even that RHR “fails to complete the

construction and installation of the Easement Area Improvements within thirty-six

(36) months from the date of the Easement as required pursuant to Section 6 of the

Easement[.]”58

E. The Construction of the Entrance and the Sidewalk

The facts in relation to the construction in this case have, by in large, been

stipulated to.59 Landon Construction, a subcontractor for LCC, constructed and

installed the entrance, curbing, sidewalks, and ramps within the GWA Property,

completing their work no later than June 5, 2022.60 The entrance connects the RHR

Property to the GWA Property, crossing over the 10 foot construction easement,

56
JX 41 at §§1.1–1.3.
57
JX 41 at §§2.1.1–2.1.2; Tr. 507:3–8.
58
JX 41 at §2.1.3.
59
See D.I. 82 at ¶¶B16–23.
60
D.I. 82 at ¶¶B16–17.

11
onto the easement area, and then encroaching onto the 26-foot-right of way.61 No

permits were obtained from New Castle County, DelDOT, or the City for any of the

aforementioned construction within the GWA Property.62 RHR did have the curbs

inspected by Geo Technology Associates, who reported that the subgrade was

acceptable to place the curbs.63 GWA has not contracted with any of the parties here

regarding the installation of the sidewalk and curbing outside the easement area

along W. 37th St. and GWA was not contacted, before the installation of the

sidewalks and curbing to expressly state that the sidewalks and curbing would be

installed.64

GWA asserts that the sidewalk as constructed runs parallel to RHR’s property

on W. 37th St. and does not actually provide a path for access onto RHR’s Property.65

There are portions of the constructed sidewalk not built within the designated

easement area.66 On December 30, 2022, January 12, 2023, and April 27, 2023,

former counsel for GWA sent letters to RHR providing notice of RHR’s breaches of

61
Tr. 217:5–20.
62
D.I. 82 at ¶B18; Tr. 325:19–327:1 (referencing JX 22, Ex. B); Tr. 424:19–425:15
(referencing JX 44).
63
Tr. 327:2–328:8 (referencing JX 46).
64
D.I. 82 at ¶¶B20–21.
65
D.I. 101 at 14; JX 101.
66
Tr. 287:10–22; Tr. 354:16–355:12; Tr. 422:24–423:23 (referencing to JX 29); Tr.
426:12–427:2 (referencing JX 44); see also JX 101.

12
the Easement Agreement, by constructing hundreds of feet of sidewalks on the

“Shopping Center Parcel outside of the easement Area, without the consent of GWA

and, on information and belief, without having obtained the proper permits or

government approvals.”67 GWA demanded that RHR cure those breaches.68

In a June 2023 letter from GWA’s former counsel, GWA provided RHR of a

notice of termination of the Easement Agreement between RHR and GWA and

demanded damages because of the sidewalk outside the easement and easement

entrance’s construction without the proper permits and approvals.69

F. The Maintenance Agreement

In a January 2023 letter, former counsel for GWA advised RHR that after

checking with the City of Wilmington and DelDOT, DelDOT confirmed that it lacks

jurisdiction over W. 37th St., advising GWA to turn to RHR for more information.70

The letter further states that although the sidewalks were not constructed by RHR,

but rather by Landon Construction at the direction of LC Construction, RHR cannot

avoid its responsibility by simply delegating or subcontracting its works to affiliates

67
Tr. 87:1–11; JX 52; JX 53; JX 62.
68
Tr. 84:11–14; JX 52.
69
Tr. 90:12–21; JX 62.
70
Tr. 88:12–24; JX 53.

13
or third parties.71 LC Construction is an affiliate of Capano Management, and

performed the work at the direction of RHR and/or Capano Management.72

In May 2023, the City and DelDOT discussed the possibility of the City being

delegated maintenance responsibility over W. 37th St. and be assigned “jurisdictional

authority over the same area.”73 On December 21, 2023, the City and DelDOT

entered an agreement (hereinafter, “Maintenance Agreement”).74 The City claims

through this agreement and through the 10-foot construction easement running

parallel to W. 37th St., they have taken on the municipal authority and control over

improvements on the W. 37th St. Right of way.75 The Maintenance Agreement

provides for the authorization of the City to maintain and improve W. 37 th St..76 The

Maintenance Agreement may be terminated within “30 days following written notice

by either party to the other party of an intent to terminate[.]”77

71
Tr. 89:1–10; JX 53.
72
Tr. 89:1–6.
73
JX 63.
74
D.I. 82 at ¶B27; JX 82; JX 83.
75
D.I. 97 at 49.
76
JX 83 at §§1–3.
77
JX 83 at §4. (The City sent GWA a letter, at some point, informing them that the
sidewalk next to W. 37th St. “is part of the City of Wilmington Right of Way and cannot
be removed,” and is to be “maintained by GWA[,]” however it is unclear whether this letter
was sent before or after the execution of the Maintenance Agreement.); JX 108; Tr. 40:20–
41:15; Tr. 621:24–622:14.

14
G. Procedural Posture

On February 1, 2024, GWA filing its verified complaint against the three

named defendants.78 The complaint asserts four claims: breach of agreement, quiet

title, injunctive relief, and trespass.79 On March 21, 2024, RHR and LC Construction

jointly filed their answer, denying all allegations and asserting counterclaims for

declaratory judgment.80 That same day, defendant City of Wilmington filed its

answer, raising multiple affirmative defenses, including failure to state a claim, the

doctrine of laches, estoppel, acquiescence, ratification, and waiver.81 GWA

answered the counterclaims on April 17, 2024.82

On January 9, 2025, about a month before trial, the City of Wilmington

requested permission to move for summary judgment and a stay of trial.83 GWA

urged the Court to proceed to trial without delay, arguing that summary judgment

proceedings would unnecessarily prolong the case.84 A teleconference regarding the

City of Wilmington’s motion for leave to file for summary judgment was held on

78
D.I. 1; see D.I. 82 at ¶I10 (Landon Construction was included as a defendant, but the
plaintiff was not able locate a registered agent to effectuate service and eventually learned
that Landon Construction no longer operates or exists.).
79
D.I. 1.
80
D.I. 10.
81
D.I. 11.
82
D.I. 16.
83
D.I. 64.
84
D.I. 69.

15
January 21, 2025 at which the Court denied the motion for leave to move for

summary judgment.85

The originally scheduled two-day trial was held on February 11, 2025 and

February 12, 2025.86 It was determined that a third day for the trial was necessary,

and the final trial day was held on February 28, 2025.87 Post trial briefing was

completed on June 9, 2025, and I took this matter under advisement.88

II. ANALYSIS

“An easement is a non-possessory interest in real property, granted for a

particular purpose, enforceable of right and not depend[e]nt for its continued

existence on the will of the grantor.”89 “An express easement is created if the

document ‘contains plain and direct language evidencing the grantor’s intent to

create a right in the nature of the easement.’”90 “Documents conveying an interest in

85
D.I. 73.
86
D.I. 88.
87
D.I. 85; .D.I. 88; D.I. 89.
88
D.I. 93; D.I. 95; D.I. 97; D.I. 101.
89
Coker v. Walker, 2013 WL 1858098, at *3 (Del. Ch. May 3, 2013).
90
Reybold Venture Gp. IX, LLC v. Summit Plaza Shopping Ctr., LLC, 2025 WL 658760,
at *9 (Del. Ch. Feb. 18, 2025) (ORDER) (quoting Black v. Staffieri, 2014 WL 814122, at
*2 (Del. Feb. 27, 2014)).

16
land ‘are specialized forms of contract, and like other contracts are not subject to

construction unless the language is ambiguous.’”91

A. RHR is in breach of the Easement Agreement.

A plaintiff pleading breach of contract must prove by a preponderance of the

evidence: “(1) the existence of a contract, (2) the breach of a contractual obligation,

and (3) resulting damages.”92 “The Agreement is the appropriate starting point for

determining the rights and duties of the parties.”93 “When determining the scope of

a contractual obligation and measuring the parties conduct against that obligation to

determine breach, ‘the role of a court is to effectuate the parties’ intent.’”94 “When

interpreting a contract, this Court will give priority to the parties’ intentions as

reflected in the four corners of the agreement, construing the agreement as whole

and giving effect to all its provisions.”95

91
Buckeye P’rs, L.P. v. GT USA Wilm., LLC, 2022 WL 906521, at *30 (Del. Ch. Mar. 29,
2022) (quoting Jestice v. Buchanan, 1999 WL 962591, at *2 (Del. Ch. June 14, 1999)).
92
Anschutz Corp. v. Brown Robin Cap., LLC, 2020 WL 3096744, at *9 (Del. Ch. June 11,
2020) (citing Pharm. Prod. Dev., Inc. v. TVM Life Sci. Ventures VI, L.P., 2011 WL 549163,
at *2 (Del. Ch. Feb. 16, 2011)).
93
Georgetown Crossing LLC, v. Ruhl, 2006 WL 3720134, at *6 (Del. Ch. Dec. 5, 2006).
94
In re Anthem-Cigna Merger Litig., 2020 WL 5106556, at *90 (Del. Ch. Aug. 31, 2020)
(quoting Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 739 (Del. 2006)).
95
N. Am. Leasing, Inc. v. NASDI Hldgs., LLC, 276 A.3d 463, 467 (Del. 2022); see also
Alta Berkeley VI C.V. v. Omneon, Inc., 41 A.3d 381, 385 (Del. 2012) (“Unless there is
ambiguity, Delaware courts interpret contract terms according to their plain, ordinary
meaning.”).

17
If the document conveying an interest in land is ambiguous the Court will look

to grantor’s intent “in the light of the intent of the parties as determined by the facts

and circumstances surrounding the transaction,” otherwise known as extrinsic

evidence.96 “The contract’s construction should be that which would be understood

by an objective reasonable third party” and “[a]bsent some ambiguity, Delaware

courts will not destroy or twist contract language under the guise of construing it.”97

The parties here do not dispute formation of either the Easement Agreement

or the partial assignment agreements that the Plaintiff brings its breach of contract

claims under.98 The question left for the Court is therefore one of interpretation of

the language within the documents and whether the defendants failed to perform

their obligations. In this section, I address the Plaintiff’s claims for breach under

sections 2.1, 2.2, 2.4, 2.5, and 15.1, and I save my analysis of the claim for breach

of section 6 for the portion of my analysis that addresses the Plaintiff’s termination

rights under the agreement.

96
Buckeye P’rs, L.P., 2022 WL 906521, at *30 (citing Francis v. Macklin, 1990 WL
100799, at *2 (Del. Ch. July 19, 1990).
97
Thermo Fisher Sci. PSG Corp. v. Arranto Bio MA, LLC, 2023 WL 2771509, at *17 (Del.
Ch. Apr. 4, 2023) (internal quotation marks omitted).
98
See D.I. 82 at ¶¶11–13.

18
1. The construction of the sidewalk was within the scope of use
granted through the Easement Agreement, however RHR
has breached sections 2.1, 2.2, 2.4, 2.5, and 15.1.

GWA insists that the Easement Agreement did not provide for the

construction of sidewalks running the entire length of W. 37 th St..99 The plain

language of the Easement Agreement provides for the construction of sidewalks

when it specifies its use for the ingress and egress of pedestrians.100 I find this

language to be unambiguous considering the Easement Agreement also grants RHR

the express right to construct improvements onto the easement area.101

Even if this Court were to look to extrinsic evidence to aid in the interpretation

of the parties’ intent for the scope of use of the granted easement, the facts and

circumstance surrounding the execution of the Easement Agreement imply that a

sidewalk was within its scope. GWA received a copy of the DVA which placed them

on notice of RHR’s intention of building the sidewalks to satisfy the needs of

BHCA.102 RHR entered into the Easement Agreement to construct the necessary

items that were demanded in the DVA, including an access point “for the purpose of

99
D.I. 93 at 4; JX 101 at 14.
100
JX 32 at §2.1.
101
JX 32 at §2.2 (“The RHR Parcel Owner shall have the right, at its sole cost and expense,
to install, construct, use, connect, maintain, repair, and replace such improvements on the
Easement Area . . . as are necessary to connect the RHR Parcel to the public right of way
identified as ‘37th Street’ on the RHR Plan[.]”).
102
JX 22; JX 25; Tr. 314:4–7.

19
facilitating pedestrian and vehicular access” which includes the construction of a

sidewalk.103 The construction of the sidewalks in addition to the second entryway

does not constitute a breach because sidewalks were contemplated within the

Easement Agreement.

Section 2.1 of the Easement Agreement, read with the physical description of

the easement area outlined in the exhibits to the agreement, indicates that RHR was

only permitted to construct the sidewalk within the easement area. 104 The sidewalk

was constructed outside the designated easement area and onto GWA Property in

multiple sections, in breach of the Easement Agreement.105

RHR agreed to abide by section 2.2 of the Easement Agreement which grants

RHR the right to construct improvements on the easement provided “all work in

connection with the easement area be done . . . in accordance with all applicable

laws, regulations, and standards[.]”106 Section 2.5 also states that RHR is “liable to

the Shopping Center Parcel to obtain and continuously maintain, at its sole cost and

expense, all certificates, approvals, permits, licenses and other consent respecting

103
Tr. 488:13–20; Tr. 489:2–22.
104
JX 32 at §2.1; JX 32, Ex. A–C.
105
Tr. 287:10–22; Tr. 354:16–355:12; Tr. 422:24–423:23 (referencing JX 29); Tr. 426:12–
427:2 (referencing JX 44); see also JX 101.
106
JX 32 at §2.2.

20
the Easement Area that are required[.]”107 The Defendants did not obtain the

appropriate certificates, approvals, permits, licenses, or other consent respecting the

construction of the side walk, which contravenes its responsibilities under sections

2.2 and 2.5.108 The Defendants claim that they sought to get the necessary paper

work for construction but no government agency would review the plans but

provided insufficient evidence to prove this as fact while GWA provided testimony

that revealed that an entrance permit was necessary.109 RHR therefore breaches

sections 2.2 and 2.5 of the Easement Agreement for failing to fulfill the necessary

permitting and legal requirements in the construction on GWA’s property.

RHR agreed in section 2.4 of the Easement Agreement that “prior to any entry

upon the Easement Area . . . and prior to any work being performed . . . RHR shall

provide to GWA . . . plans and specification for the Easement Area Improvements

and RHR’s plans for the installation and maintenance thereof, for GWA’s prior

107
.JX 32 at §2.5.
108
D.I. 82 at ¶B18; Tr. 325:19–327:1 (referencing JX 22, Ex. B); Tr. 424:19–425:15
(referencing JX 44); see also D.I. 10 at ¶25 (“it is admitted only that Defendants had the
sidewalk and curbing installed without a performance or payment bond, without permits,
and without general liability insurance naming GWA as an additional insured[.]”).
109
D.I. 95 at 18–19; JX 104 at 10; Tr.190:4–12 (“I believe DelDOT might have treated this
as a commercial entrance permit, even though you were coming from a private parcel to
another private parcel, but you’re interacting with this corridor that has been designated for
access. So, it’s conceivable that DelDOT might have required a commercial entrance
permit for that.”).

21
approval[.]”110 RHR, in violation of this provision, did not provide GWA with the

required documents, or seek GWA’s approval, before the construction of the

improvements on the easement area.111 Section 15.1 of the Easement Agreement

requires that RHR procure and maintain insurance for the duration of the

agreement.112 RHR did not originally obtain the insurance required under section

15.1 of the Easement Agreement.113

In sum, RHR breached the Easement Agreement for constructing the

sidewalks outside the easement area, not requesting GWA’s approval before the start

of the construction, and not getting the necessary insurance or documentation to

begin construction.

2. RHR is no longer able to cure because its’ reasonable
opportunity to do so has passed.

Under section 7 of the Easement Agreement breaching parties are entitled to

the reasonable opportunity to cure a breach after written notice was given to them of

the breach.114 Section 7 also provides, “[i]n the event of uncured breach of this

110
JX 32 at §2.4.
111
D.I. 82 at ¶B21 (“After the execution of the Easement Agreement, neither RHR, LCC,
nor the City contacted GWA prior to the installation of the sidewalks and curbing to
expressly state that the sidewalks and curbing were going to be installed.”); Tr. 29:3–18.
112
JX 32 at §15.1.
113
Tr. 342:7–20; D.I. 10 at ¶25 (“it is admitted only that Defendants had the sidewalk and
curbing installed . . . without general liability insurance naming GWA as an additional
insured[.]”).
114
JX 32 at §7.

22
Agreement by the RHR Parcel Owner, it is expressly acknowledged and agreed that,

given the subject matter and consideration involved hereunder [GWA] shall be

entitled to all remedies available at law or in equity[.]”115 The plain language of this

provision shows that GWA is entitled to broad legal and equitable remedies if a

breach of the agreement is not cured within a reasonable amount of time after notice

has been given.116 On December 23, 2022, GWA sent a letter to RHR informing

them of their breach of sections 2.1 and 2.5 and requesting RHR cure the breach

within 30 days through the immediate removal of all sidewalks and other

improvements improperly installed.117 GWA gave notice of all of the breaches to the

Easement Agreement on April 27, 2023 in a letter labeled “Notice of Termination”

informing the Defendants that unless they comply with the requests of the letter

within 7 days they would “seek any other remedy to which GWA is entitled under

the Agreement.”118

The notice of breach in December 2022 for sections 2.1 and 2.5 and the notice

sent in April 2023, the latter of which came almost a full 10 months before GWA

filing the complaint that began this action, provided RHR with sufficient notice and

115
JX 32 at §7.
116
JX 32 at §7; see also Akorn, Inc. v. Fresenius Kabi AG, 2018 WL 4719347, at *81 (Del.
Ch. Oct. 1, 2018) (interpreting an opportunity to cure provision in a contract based on the
plain language of the provision).
117
JX 52.
118
JX 62.

23
a reasonable opportunity to cure any defective conduct in relation to the Easement

Agreement.119 RHR has not cured a breach pursuant to section 2.1 relating to the

sidewalk’s encroachment on GWA’s land and is thus in breach of this section of the

Agreement.120

RHR offers to retroactively cure its deficiencies under sections 2.2 and 2.5 of

the Easement Agreement by filing for the proper legal documentation required for

the construction it has performed on the property.121 RHR has had a reasonable

opportunity to perform this cure since being given notice 10 months before the start

of this litigation but did not do so.122 RHR has therefore breached sections 2.2 and

2.5.123

RHR claims to have cured its breach of section 2.4 when it provided GWA

with the plans for the easement area improvements in discovery for this matter.124

This is not sufficient to cure RHR’s breach as it cannot solve its deficiency in not

seeking GWA’s approval of the plans and permission to begin construction in the

119
JX 53; JX 62.
120
JX 32 at §2.1.
121
D.I. 95 at 20–21.
122
JX 62.
123
JX 32 at §§2.2, 2.5.
124
D.I. 95 at 18.

24
first place. Despite eventually providing the plans, RHR breached section 2.4 of the

Easement Agreement by not providing the plans in advance for GWA’s approval.125

RHR argues that GWA has not proven any damages in relation to the section

15.1 breach and RHR has since cured its breach on March 18, 2024, when RHR’s

Counsel sent GWA’s counsel a certificate of insurance dated March 13, 2024, after

the complaint was filed, naming GWA as an additional insured.126 GWA argues it

gave notice of all of the breaches to the Easement Agreement on April 27, 2023, yet

RHR did not make any attempt to cure this breach until almost a year later and after

litigation already commenced.127 This is outside the reasonable opportunity to cure

and therefore RHR had breached section 15.1.

B. The City is not liable to GWA for breach of contract.

The plain language of the assignment explicitly grants the City rights in

relation to the Easement Agreement and not obligations.128 There is no language

within the assignment that indicates the City is required to take any action to cure on

RHR’s behalf, and there was no evidence presented at trial that the City and RHR’s

intention when entering into the agreement was to place an obligation onto the

125
JX 32 at §2.4.
126
D.I. 95 at 18; JX 84.
127
JX 62 at 2–3.
128
JX 41.

25
City.129 The assignment states specifically that “[i]n the event that Assignee

exercises any of its rights under this Assignment, Assignee shall promptly provide

Notice to Assignor[,]” and also required RHR as the assignor to provide a

representation and warrantee that the City “has no obligation to GWA other than as

expressly set forth in the Easement[,]” indicating the non-obligatory nature of the

rights being afforded to the City.130 The Assignment agreement does not create any

kind of enforceable duty owed by the City, the only right it creates is that which is

in the hands of the City to be able to fulfill, not to be obligated to fulfill, certain

terms of the Easement Agreement on RHR’s behalf. So, despite the City’s heavy

involvement with the parties, execution of the Assignment, and insistence on

entrenching itself with property outside its boundaries, I do not find the City liable

to GWA under the Assignment agreement to cure RHR’s breaches of the Easement

Agreement.

C. GWA cannot terminate the Easement Agreement.

“A party is excused from performance under a contract if the other party is in

material breach thereof.”131 Conversely, “a slight breach by one party, while giving

rise to an action for damages, will not necessarily terminate the obligations of the

129
JX 41 at §§2.1.1–2.1.3 (using the language “shall have the right to”); see Tr. 507:3–20.
130
JX 41 at §§2.2.3, 3.2.
131
BioLife Sols., Inc. v. Endocare, Inc., 838 A.2d 268, 278 (Del. Ch. 2003).

26
injured party to perform under the contract.”132 In determining whether a breach is

material, the Court considers five factors:

(a) the extent to which the injured party will be deprived of the
benefit which he reasonably expected; (b) the extent to which the
injured party can be adequately compensated for the part of that benefit
of which he will be deprived; (c) the extent to which the party failing
to perform will suffer forfeiture; (d) the likelihood that the party failing
to perform or to offer to perform will cure his failure, taking into
account of all the circumstances including any reasonable assurances;
[and] (e) the extent to which behavior of the party failing to perform or
to offer to perform comports with standards of good faith and fair
dealing.133

The substantial compliance “standard is ‘necessarily imprecise and flexible’ and

must be ‘applied in the light of the facts of each case in such a way as to further the

purpose of securing for each party his expectation of an exchange of

performances.’”134

Here the Easement Agreement provides specifically for GWA to terminate the

agreement in the event of RHR’s breach of the allotted period for certain

construction.135 Section 6 of the Easement Agreement states:

RHR shall develop the RHR Parcel and construct improvements
thereon in order to lease and manage upscale, market-rate multifamily

132
Murphy Marine Servs. of Del., Inc. v. GT USA Wilm., LLC, 2022 WL 4296495, at *15
(Del. Ch. Sept. 19, 2022) (quoting Level 4 Yoga, LLC v. CorePower Yoga, LLC, 2022 WL
601862, at *27 (Del. Ch. Mar. 1, 2022)).
133
LPPAS Representative, LLC v. ATH Hldg. Co., 2023 WL 3197819, at *16 (Del. Ch.
May 2, 2023) (quoting Restatement (Second) of Contracts §§241(a)–(e)).
134
Id. (quoting Restatement (Second) of Contracts §241)).
135
JX 32 at §6.

27
housing and that the RHR Parcel shall continuously be used primarily
for such purpose throughout the term of this Agreement. RHR further
represents that the commencement of the work relating to the
construction and installation of the Easement Area Improvement will
be completed no later than thirty-six (36) months from the date of this
Agreement. In the event that the Easement Area improvements are not
completed within thirty-six (36) [months] from the date of this
Agreement, the Shopping Center Parcel Owner shall have the right to
terminate this Agreement as of the expiration of such 36-month
period.136

That period required the construction on the easement to be completed by

April 22, 2023.137 The Parties argue whether completion of the construction includes

RHR receiving all necessary permitting and legal requirements in relation to the

construction and RHR completing its overall construction of the apartment

buildings, or if it simply requires the material completion of construction of the

improvements on the easement areas.138 I am moved towards the latter. In reading

the provision it specifically provides for the “construction of and installation of the

Easement Area Improvement,” which does not include any language about

appropriate paperwork, only the physical act of installation and construction, and

does not reference the preceding sentence in a way that indicates it implies the RHR

apartment construction must be completed in this time frame.139

136
Id.
137
Id.
138
D.I. 93 at 37; D.I. 95 at 9–12.
139
See JX 32 at §6.

28
The construction on the easement area, including the entrance, curbing,

sidewalks, and ramps, were completed no later than June 5, 2022, well within the

designated 36-month period.140 Although the parties dispute whether the

construction is completed because the topcoat still must be put on the relocated

entrance, testimony showed that the topcoat is traditionally added after all the

improvements are complete because construction vehicles could damage the final

product.141 Therefore, the lack of a topcoat does not change my assessment on

whether the construction was complete.

The construction required for the easement area is sufficiently completed such

that the lack of topcoat would not deprive GWA of the benefit, the additional access

point, it reasonably expected.142 If RHR fails to complete this construction in full

they are likely to be able to be compensated for the cost to complete it themselves if

they so choose, but it is also likely that RHR will cure this defect.143 RHR is likely

to take a loss on the construction if the Easement Agreement is completely

terminated, as it would no longer benefit from the sidewalk it paid to build and may

risk having to pay for its removal after it substantially completed its obligations for

140
JX 32 at §6; D.I. 82 at ¶B17.
141
Tr. 323:7–19; Tr. 388:22–389:13.
142
Restatement (Second) of Contracts §241(a); Tr. 447:14–448:1.
143
Restatement (Second) of Contracts §241(b), (d); Tr. 323:7–19; D.I. 95 at 10.

29
construction under the agreement.144 I therefore cannot find that the lack of topcoat

to be a material breach to completion of construction on the easement areas such that

it justifies the termination of the easement agreement.

As for the breaches of sections 2.1, 2.2, 2.4, 2.5, and 15.1, I do not find they

meet the muster necessary to justify termination. GWA does admittedly lose benefits

incurred from these clauses, including RHR’s responsibility for obtaining proper

documentations for construction, insurance policy, and zoning requirements.145

GWA also loses the benefit of being able to approve the construction plans and have

the sidewalk constructed in the designated easement area.146 These losses can be

properly remedied through monetary damages. RHR stands to lose far more if the

Easement Agreement is terminated by being forced to bear the cost of the

construction on the easement area that would no longer exist and would greatly affect

RHR’s development on the land it purchased.147 RHR has conducted itself in good

faith and has offered to cure in the areas it can, specifically in the documentation

required for the new structures it built on GWA’s property.148

144
Restatement (Second) of Contracts §241(c), (e).
145
JX 32 at §§2.1, 2.2, 2.5, and 15.1.
146
JX 32 at §2.4.
147
See JX 109 (quoting the cost of removal of the sidewalk at $27,000).
148
See D.I. 95 at 20.

30
I also find it necessary to note the primary purpose of the Easement

Agreement is to provide RHR with access onto GWA’s property and to create a

second entry point for pedestrian and vehicular access, and in consideration of that

RHR must pay $25,000 and then $2,000 monthly.149 RHR substantially completed

the improvements on the easement area and has not missed a single payment even

with the commencement of this litigation.150 Although RHR has breached multiple

terms of the Easement Agreement, I still do not find them to amount to a substantial

breach such that it would justify the termination of the Easement Agreement. I

therefore do not find any of RHR’s breaches to the agreement considered

individually or collectively to be substantial enough to justify GWA’s complete

termination of the Easement Agreement.151 Accordingly, GWA’s request for quiet

title is denied.

In short, the Plaintiff has not proven substantial breach of the Easement

Agreement such that they are able to terminate the contract. There is no cloud upon

their title, since they voluntarily entered the agreement, RHR continues to pay, and

149
JX 32 at §§2–3.
150
Tr. 55:1–6.
151
See DeMarie v. Neff, 2005 WL 89403, at *4 (Del. Ch. Jan 12, 2005) (quoting Saienni v.
G & C Cap. Gp., Inc., 1997 WL 363919, at *3 (Del. Super. May 1, 1997)) (“Not all
breaches will authorize the other party to abandon or refuse further performance. To justify
termination, ‘it is necessary that the failure of performance on the part of the other go to
the substance of the contract.’”).

31
they have no right to terminate based on these breaches to the agreement. GWA is

not entitled to their claim for quiet title.

D. The sidewalk constructed by RHR under the Easement Agreement
did trespass onto the GWA Property.

“The elements of trespass, a strict liability offense, are as follows: (1) the

plaintiff must have lawful possession of the property; (2) the defendant must have

entered onto the plaintiff’s land without consent or privilege; and (3) the plaintiff

must show damages.”152 “Any unlawful entry upon another’s land constitutes a

trespass, and the law implies damages for such a trespass, but the amount depends

upon the damages actually done.”153 The Delaware Supreme Court adopts the

Restatement (Second) of Torts definition of possession as including someone who

“is in occupancy of land with intent to control it[.]”154

There are portions of the sidewalk that were constructed onto GWA’s land

outside both the easement area and the 26 foot right of way, and these portions do

constitute a continuing trespass.155 The issue this Court must address is whether the

152
Kuhns v. Bruce A. Hiler Del. QPRT, 2014 WL 1292860, at *19 (Del. Ch. Mar. 31, 2014)
(quoting O’Bier v. JBS Const., LLC, 2012 WL 1495330, at *2 (Del. Super. Apr. 20, 2012).
153
Id. at *2.
154
State ex rel. Jennings v. Monsanto Co., 299 A.3d 372, 388 (Del. 2023) (quoting
Restatement (Second) of Torts §157).
155
See Jagger v. Schiavello, 93 A.3d 656, 660–61 (Del. Super. 2014) (“As to continuing
trespass, such a claim occurs when the defendant tortiously places or erects a structure or

32
constructed sidewalks on the 26 foot right of way identified here as W. 37th St. and

the 10-foot construction easement constitute a trespass. RHR argues that the

sidewalk that was built on these portions are not a trespass because the W. 37 th St. is

dedicated to public use, and the scope of the construction easement allows for the

construction of the sidewalk.156

W. 37th St. is a private road dedicated to public use, that has been dedicated

as such since the 1990s.157 W. 37th St. a 26-foot dedicated right of way, which at the

time of the sidewalk construction had not been accepted into state maintenance.158

The street despite not being accepted into the state maintenance system is “eligible

for improvements funded by the Community Transportation program” including the

construction of a sidewalk.159 DelDOT transferred to the City maintenance rights in

the Maintenance Agreement entered into in December 2023.160 Along W. 37th St.

other thing on the land of another person and constitutes a trespass for the entire length of
time such thing is wrongfully on that land.”); JX 101, Ex. 10-B, C (indicating a portion of
the sidewalk built onto the construction easement and then, at the southern end, a portion
of the sidewalk build onto unencumbered GWA Property).
156
D.I. 95 at 22–28.
157
Hastings Dep. Tr. 29:2–13; see also Hastings Dep. Tr. 29:16–21 (“Dedicated to public
use means that a private road can be used by the general public without the need to live
there or own the property.”).
158
JX 104 at 4–5; D.I. 83 at 1; Tr. 202:23–203:7; Hastings Dep. Tr. 71:3–72:9.
159
2 Del. Admin. C. §2309-8.7.2; see also Hastings Dep. Tr. 85:23–86:11.
160
JX 83.

33
sits a construction easement, ten feet to either side of the road.161 A construction

easement sometimes only grants the state the ability to occupy the space with the

movement of equipment or the storage of materials when construction is occurring

on the road.162 A permanent construction easement will grant the State the right to

make improvements, such as construct a sidewalk.163

Notably both the right of way and the construction easement grant DelDOT

and/or the City a right of access to GWA’s property.164 However, RHR is not

DelDOT or the City, and although they seemingly have the City’s support in the

construction of the sidewalk, it does not change the fact that when they underwent

construction, they did so under private interests and not at the express direction of

the holder of the access rights to the right of way and the construction easement.

161
JX 104 at 3–4; JX 94; JX 96; JX 97; JX 98.
162
Rudy Dep. Tr. 103:10–105:13 (“It’s a construction easement which allows operation,
movement of equipment, of material. I can occupy that space while I build that reduced
area road or do what improvements I need to do in there.”)
163
Rudy Dep. Tr. 106:15; Donlon Dep. Tr. 104:13–24 (indicating uncertainty as to what
type of construction easement was present here but that “currently DelDOT asked for a
permanent easement on most jobs that run adjacent to rights-of-way for them to construct
sidewalks or pedestrian paths[.]”).
164
Rudy Dep. Tr. 112:14–17 (“Q. Okay. So fair to say that DelDOT is the one who has
rights under the permanent construction easement? A. Yes.”); Hastings Dep. Tr. 86:23–
87:7 (discussing DelDOT’s authority on the public right of way stating that “[t]hrough it
being dedicated to public use, [DelDOT has] the authority to go on and do certain types of
improvements and we’re not required to get that underlying property owner to agree to
them. Typically, in a neighborhood the people want whatever it is we’re doing, but we
don’t have that requirement.”).

34
Therefore, I find RHR to be liable for trespass, and the existence of DelDOT or the

City’s right of access for the purpose of improvement does not change GWA’s

possession and ownership of the land and does not bear effect on RHR’s right of

access, or in this case lack thereof, onto GWA’s property.

E. I do not find it appropriate at this time to order the sidewalk be
removed, and I decline at this time to address Plaintiff’s request for
injunctive relief.

To obtain a permanent injunction, a party must show: “(1) actual success on

the merits of the claims; (2) that the plaintiff will suffer irreparable harm if injunctive

relief is not granted; and (3) that the harm to the plaintiff outweighs the harm to the

defendant if an injunction is granted.”165 Proof of these three elements is by “the

preponderance of the evidence,” which requires “proof that something is more likely

than not.”166

GWA has not succeeded in its claim to carry out termination of the Easement

Agreement such that this Court can order the removal of the sidewalk in its entirety.

As for the encroaching portions, after weighing the harm to the parties in granting

the requested injunctive relief to remove the encroaching portions of the sidewalk, I

165
Benner v. Council of Narrows Ass’n of Owners, 2014 WL 7269740, at *11 (Del. Ch.
Dec. 22, 2014) (citing Examen, Inc. v. VantagePoint Venture P’rs 1996, 2005 WL
1653959, at *2 (Del. Ch. July 7, 2005)).
166
Rosenbaum v. CytoDyn Inc., 2021 WL 4775140, at *13 (Del. Ch. Oct. 13, 2021);
McKenna v. Singer, 2017 WL 3500241, at *13 (Del. Ch. July 31, 2017) (quoting Agilent
Techs., Inc. v. Kirkland, 2010 WL 610725, at *13 (Del. Ch. Feb. 18, 2010)).

35
am not inclined to order the sidewalk be removed at this time. The cost of removing

portions of the sidewalk that are not within the easement area would be great.167

GWA has presented little evidence of any actual harm it has incurred or will incur

outside the speculative testimony of its risk of potential liability, which RHR has

both taken action to attempt to mitigate and has expressed a willingness to cure any

further issues regarding the maintenance responsibility moving forward.168 The

balance of the harm tips heavily in favor of the Defendants.169

Rather than grant the injunctive relief requested, I direct these parties to

engage in good-faith negotiations regarding a workable settlement for the portions

of the sidewalk that sit outside the easement area, including agreements to handle

the future maintenance and liability responsibilities that align with the needs of all

parties involved. Depending on the results of these settlement discussions, parties

are to return to the Court with either a joint form of order or separate competing

forms of order if the parties cannot come to an agreement.

167
See JX 109.
168
D.I. 95 at 18; JX 84; D.I. 95 at 20–21.
169
See New Castle Shopping LLC v. Trs. of New Castle Common, 2024 WL 4432778, at
*7 (Del. Ch. Oct. 7, 2024) (ORDER) (finding that although the law implies damage for
trespass, injunctive relief was not appropriate where the defendant has already paid a
significant amount in remediation efforts and the plaintiff has presented little evidence as
to actual harm from the trespass).

36
F. Attorneys’ Fees and Costs

Delaware follows the American rule which states that “[l]itigants are normally

responsible for paying their own litigation costs.”170 An exception to this rule is the

bad faith exception, which requires the party seeking to shift fees to satisfy “the

stringent evidentiary burden of producing ‘clear evidence’ of bad faith.”171 None of

the parties have engaged in conduct that would justify an award of bad faith fee

shifting.

Another “exception to the American rule ‘is found in contract litigation that

involves a fee shifting provision.’ When a contract contains a fee shifting provision,

Delaware courts will enforce that provision.”172 This Court must interpret fee

shifting provisions as it would any contract provision, by interpreting them

according “to their plain meaning.”173

Section 7 of the easement agreement states, “The RHR Parcel Owner shall

reimburse the Shopping Center Parcel owner for any and all reasonable costs and

expenses, including reasonable attorney’s fees, which the Shopping Center Parcel

170
Mahani v. Edix Media Gp., Inc., 935 A.2d 242, 245 (Del. 2007).
171
Dearing v. Mixmax, Inc., 2023 WL 2632476, at *5 (Del. Ch. Mar. 23, 2023) (ORDER)
(quoting Beck v. Atl. Coast PLC, 868 A.2d 840, 851 (Del. Ch. 2005)).
172
GB-SP Hldgs., LLC v. Walker, 2024 WL 4799490, at *24 (Del. Ch. Nov. 15, 2024)
(quoting Bako Pathology LP v. Bakotic, 288 A.3d 252, 280 (Del. 2022)) (internal citation
omitted).
173
Bako Pathology LP, 288 A.3d at 281 (quoting Scion Breckenridge Managing Member,
LLC v. ASB Allegiance Real Est. Fund, 68 A.3d 665, 683 (Del. 2013)).

37
owner may directly incur in connection with the enforcement of this Agreement.”174

Considering this, I find it appropriate to award the fees requested by GWA under

section 7 of the Easement Agreement.175 LCC and the City do not owe GWA fees

under section 7, as they are not the RHR parcel owner.

RHR has acknowledged that GWA is entitled to the reimbursement of some

legal fees but argues the additional claims are beyond what was agreed to in the

agreement.176 The enforcement of the agreement included, in part, making claims

relating to the construction of the sidewalk within the designated area; therefore I

find the trespass claims are relating to and arising out of the enforcement of the

agreement.177 Plaintiff shall submit an affidavit in accordance with Court of

Chancery Rule 88, to which Defendant RHR may file a response within twenty days

after filing.

III. CONCLUSION

For these reasons, I find that although RHR has breached the Easement

Agreement, GWA does not have the right to terminate the agreement because the

breaches are not material to the substance of the agreement which has been

substantially fulfilled by RHR. The Easement Agreement remains in place and RHR

174
JX 32 at §7.
175
Id.
176
D.I. 95 at 31.
177
JX 32 at §2.1; JX 32, Ex. A–C.

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maintains all rights of access afforded therein. The City is not liable for breach of

contract.

I do not find it appropriate to order the encroaching portions of the sidewalk

be removed at this time and instead encourage the parties to engage in good-faith

negotiations to reach a settlement that addresses the encroachment, maintenance

obligations moving forward, and reconciliation of any lacking documentation

required for the construction on GWA’s property.

GWA is entitled to monetary damages representative of any harm imposed

from RHR’s breach of contract. The record was not sufficiently developed for the

Court to make a determination on the amount of monetary damages GWA is entitled

to. The parties should consider this in their settlement discussions on the issues

discussed above. If the parties are not able to come to an agreement, further briefing

and documentation on damages may be required.

Absent the filing of exceptions, the plaintiff shall file a status report within

thirty days. This is my final report, and exceptions may be filed under Court of

Chancery Rule 144.178

178
See Ct. Ch. R. 144(d)(1) (In “[a]ctions that are not summary or expedited… [a] party
taking exceptions must file a notice of exceptions within 11 days of the date of the Final
report or Draft Report.”).

39