      IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

 DOMINICK A. PULIERI, as Court Appointed )
 Receiver for SUNVIEW CORPORATION,       )
                                         )
                   Plaintiff,            )
                                         )
               v.                        )       C.A. No. 9886-CB
                                         )
 BOARDWALK PROPERTIES, LLC,              )
                                         )
                   Defendant.            )



                         MEMORANDUM OPINION

                      Date Submitted: December 12, 2014
                       Date Decided: February 18, 2015


Kevin William Gibson of GIBSON & PERKINS P.C., New Castle, Delaware; Attorney
for Plaintiff.

Gregory P. Williams, Blake Rohrbacher and Susan M. Hannigan of RICHARDS
LAYTON & FINGER, P.A., Wilmington, Delaware; Attorneys for Defendant.

BOUCHARD, C.
I.     INTRODUCTION

       This action involves an alleged oral agreement made over twelve years ago

concerning the ownership of real property located at 101 South Boardwalk, Rehoboth

Beach, Delaware 19971 (the “Rehoboth Property”). The Rehoboth Property used to be a

motel called the Sunview Motel. It is now home to a Greene Turtle restaurant.

       The thrust of the oral agreement, which is referred to as the “Friendly Agreement,”

is that Sunview Corporation (“Sunview”) would transfer the Rehoboth Property to

Boardwalk Properties, LLC (“Boardwalk”) and then, upon the satisfaction of two

conditions discussed below, Boardwalk would retransfer the Rehoboth Property back to

Sunview on a “dollar for dollar basis.” Sunview transferred the Rehoboth Property to

Boardwalk for $3.2 million in 2002, and dissolved four years later in 2006. In 2013, the

principal behind Sunview demanded that Boardwalk retransfer the Rehoboth Property for

$3.2 million, which Boardwalk refused to do.

       In 2014, a Court-appointed receiver for Sunview filed this action asserting two

claims against Boardwalk: specific performance for breach of contract (Count I) and

unjust enrichment (Count II). Boardwalk moved to dismiss the Complaint under Court of

Chancery Rule 12(b)(6) on four separate grounds: (i) laches; (ii) the Statute of Frauds;

(iii) the rule against perpetuities; and (iv) the Complaint otherwise fails to state a claim.

       In this opinion, I conclude that Sunview has failed to state a claim for specific

performance because at least two essential terms of the Friendly Agreement—the

conditions to and timing of Boardwalk’s obligation to perform—are not sufficiently

definite to demonstrate the existence of a valid contract. I also conclude for the reasons


                                               1
explained below that the specific performance claim is legally defective either by

application of the rule against perpetuities or the doctrine of laches, depending on

whether or not the Friendly Agreement is construed to require Sunview to demand that

Boardwalk retransfer the Rehoboth Property before Boardwalk must perform. Finally, I

conclude that Sunview’s unjust enrichment claim, which is premised on the theory that

the Rehoboth Property was transferred to Boardwalk for less than fair value in 2002,

must be dismissed on laches grounds. Accordingly, I grant Boardwalk’s motion to

dismiss the Complaint.

II.     BACKGROUND 1

        A.     The Parties

        Plaintiff Dominick A. Pulieri (“Pulieri”) is a former director, officer, and

stockholder of Sunview Corporation. Pulieri is also a stockholder of non-party Grotto

Pizza, Inc. (“Grotto”), a chain of pizzerias well known in Delaware. On June 13, 2014, in

a related action in this Court (C.A. No. 9701), the Court appointed Pulieri as the receiver

of Sunview Corporation “for the limited purpose of prosecuting an action against

Boardwalk Properties, LLC for specific performance of a contract for the transfer of real

property located at 101 South Boardwalk, Rehoboth Beach, Delaware 19971.” 2 Pulieri is


1
  Unless noted otherwise, the facts recited in this opinion are based on the well-pled
allegations of the Verified Complaint (the “Complaint”), which are accepted as true for
this motion, and the documents attached to it. See Cent. Mortg. Co. v. Morgan Stanley
Mortg. Capital Hldgs. LLC, 27 A.3d 531, 536 (Del. 2011); Ct. Ch. R. 10(c).
2
    Compl. Ex. B.



                                            2
the named plaintiff in this action, but I refer to the plaintiff as “Sunview” because that is

the entity on whose behalf Pulieri has asserted the claims in this action.

         Sunview Corporation was a Delaware corporation with its principal place of

business in Rehoboth Beach, Delaware. On March 6, 2006, Pulieri filed a Certificate of

Dissolution for Sunview with the Delaware Secretary of State. 3

         Non-party Joseph Paglianite (“Paglianite”), Pulieri’s brother-in-law, is also a

former director, officer, and stockholder of Sunview. 4

         Defendant Boardwalk Properties, LLC is a Delaware limited liability company.

Boardwalk is the current owner of the Rehoboth Property.

         Non-party Joseph J. Farnan, Jr. (“Farnan”), a former federal judge, had the

authority to act on behalf of Boardwalk and non-party KidFar Properties, LLC

(“KidFar”) at all relevant times.

         B.      The Purported Oral Agreement

         From the late 1990s through 2003, Sunview, Grotto, non-party Lido Realty and

certain other unspecified Grotto-related entities (collectively, the “Grotto Entities” 5) were

experiencing financial hardship. During that period, Farnan offered financial assistance

to certain of the Grotto Entities, including by loaning money to them.

3
    Id. Ex. A.
4
 There is no allegation in the Complaint that Paglianite is a former Sunview stockholder,
but the parties do not dispute this point. See, e.g., Tr. of Oral Arg. 10.
5
  The Complaint defines “Grotto Entities” as “Grotto, Pulieri, Sunview, Lido Realty and
other Grotto related entities.” Compl. ¶ 12.



                                              3
          “In or around 2002 to 2003,” 6 Farnan and the Grotto Entities allegedly entered

into the Friendly Agreement, an oral agreement pursuant to which the Grotto Entities

would transfer certain real estate to Farnan-affiliated entities and then, upon the

satisfaction of two conditions, the Farnan-affiliated entity would retransfer that real estate

back to the respective Grotto Entity on a “dollar for dollar basis.” More specifically, as

alleged in the Complaint, the Friendly Agreement involved

          a series of real estate transactions by which the respective Grotto Entity-
          owner would transfer certain real property to entities, for which Farnan was
          acting as the authorized agent . . . , on the condition that the respective
          Grotto Entity-owner would retain the right to have the real property re-
          transferred to it on a dollar for dollar basis, upon the happening of two
          contingencies[,] the first being the improvement of the financial health of
          the Grotto Entities and the second contingency being an initiation of a buy-
          out or removal of the interests of Pulieri’s brother-in-law, [Paglianite], from
          all Grotto Entities with the exception of Pizza Systems, Inc. 7

I refer to the improvement of the financial health of the Grotto Entities as the “Financial

Improvement Condition,” to the removal of Paglianite’s interests in certain Grotto

Entities as the “Paglianite Removal Condition,” and to both together as the “Retransfer

Conditions.”

          Regarding the Paglianite Removal Condition, Sunview alleges that “[f]or many

years leading up to the Friendly Agreement, Farnan had advised Pulieri to jettison

Paglianite, counseling him to ‘get rid of his evil brother-in-law.’ ” 8          According to

6
    Id. ¶ 17.
7
    Id.
8
    Id. ¶ 18.



                                                4
Sunview, Farnan sought to remove Paglianite as Pulieri’s business partner “so that

Farnan, his family, and/or entities controlled by Farnan could take Paglianite’s place and

thereby exert control and undue influence over Pulieri.” 9

          C.     The Rehoboth Property

          The first alleged transfer pursuant to the Friendly Agreement involved the

Rehoboth Property, which Sunview owned at the time.

          In December 2002, Sunview needed money to make a balloon payment on the

loan it had entered into to purchase the Rehoboth Property. Farnan “counseled” Pulieri

and Sunview to transfer the Rehoboth Property to Boardwalk in an arrangement to be

governed by the Friendly Agreement—i.e., upon satisfaction of the Retransfer

Conditions, Boardwalk would transfer the Rehoboth Property back on a dollar-for-dollar

basis. 10

          On December 30, 2002, Pulieri and Sunview transferred the Rehoboth Property to

Boardwalk for $3.2 million. 11 Farnan allegedly “failed to advise Sunview and Pulieri that

the Statute of Frauds required the transfer of real estate to be in writing.” 12 Instead,

Farnan purportedly advised Pulieri “that a written agreement was not necessary as the

9
  Id. ¶ 20. The Complaint alleges in considerable detail a close personal and business
relationship between Pulieri and Farnan and his family dating back to the early 1990’s.
Id. ¶¶ 11(a)-(r).
10
     Id. ¶ 36.
11
     Id. Ex. F. The deed is dated December 30, 2002, and was recorded on January 6, 2003.
12
     Id. ¶ 37.



                                             5
deal was simply a ‘friendly transaction,’ part of the Friendly Agreement.” 13 Sunview

also alleges that the $3.2 million transfer price was “substantially below fair market

value,” in part because Pulieri and Sunview “did not list the [Rehoboth Property] for sale

on the market nor did Pulieri engage an independent appraisal.” 14

          D.     The Dewey Beach Property

          The second alleged transfer pursuant to the Friendly Agreement involved real

estate located in Dewey Beach, Delaware (the “Dewey Beach Property”). At the time,

Lido Realty, of which Grotto, Pulieri, and Paglianite were general partners, owned the

Dewey Beach Property.

          In early 2003, Pulieri faced an income tax liability of approximately $397,000. As

before, Farnan “counseled” Pulieri, Lido Realty, and Grotto to transfer the Dewey Beach

Property to KidFar in another arrangement pursuant to the Friendly Agreement—i.e.,

upon satisfaction of the Retransfer Conditions, KidFar would transfer the Dewey Beach

Property back on a dollar-for-dollar basis. 15 Farnan “represented and assured Pulieri that

the transaction was only temporary.” 16




13
     Id. ¶ 38.
14
     Id. ¶¶ 39, 41.
15
     Id. ¶ 25.
16
     Id. ¶ 26.



                                              6
          On May 8, 2003, Lido Realty and Grotto transferred the Dewey Beach Property to

KidFar for $2.8 million. 17 Farnan established this $2.8 million transfer price unilaterally,

and he again allegedly “failed to advise Pulieri, Lido [Realty] or Grotto that the Statute of

Frauds required the transfer of real estate to be in writing.” 18

          In the fall of 2004, Pulieri informed Farnan and KidFar that he, Lido Realty, and

Grotto were “ready, willing, and able to exercise their right to have the Dewey Beach

Property re-transferred on a dollar-for-dollar basis.” 19 On January 12, 2006, KidFar

transferred the Dewey Beach Property to a new entity, Grotto Pizza Dewey, LLC, a

Delaware limited liability company of which Pulieri is the sole member, for $3.1

million. 20      Sunview contends this retransfer price “constitut[ed] the original transfer

amount and transactional costs.” 21




17
  Id. Ex. D. On June 11, 2003, the three Deeds of Transfer for the Dewey Beach
Property were recorded.
18
     Id. ¶ 28.
19
     Id. ¶ 31.
20
  Id. Ex. E. On January 13, 2006, this Deed of Transfer for the Dewey Beach Property
was recorded.
21
     Id. ¶ 32.



                                                7
          E.     Sunview Dissolves

          On March 6, 2006, Sunview dissolved.        Pulieri executed the Certificate of

Dissolution as Sunview’s President. 22 The Complaint specifically alleges that Sunview,

“prior to dissolution, complied with all terms of the Friendly Agreement.” 23

          F.     Pulieri Initiates Litigation against His Former Counsel 24

          On September 6, 2013, Pulieri, Sunview, and other Grotto-related entities filed a

complaint in Delaware Superior Court against Pulieri’s former counsel, Duane Morris

LLP. As amended, the complaint asserts claims for legal malpractice for failing to timely

pursue certain claims against Farnan and others, including claims related to the retransfer

of the Rehoboth Property. 25

22
   Id. Ex. A. Sunview’s board of directors (Pulieri and Paglianite) authorized the
dissolution on December 31, 2005.
23
     Id. ¶ 47.
24
   Sunview requests that I take judicial notice of the truth of the allegations of the
amended complaint filed in the Delaware Superior Court action, C.A. No. S13C-09-006,
(Def.’s Ex. 1) and Pulieri’s affidavit submitted in connection with his brief in opposition
to the defendant’s motion for judgment on the pleadings (Def.’s Ex. 2). I decline to do
so. Delaware Rule of Evidence 202(d)(1)(B) permits the Court to take judicial notice of
“records of the court in which the action is pending and of any other court of this State or
federal court sitting in or for this State.” Taking judicial notice of the truth of the
statements in the Superior Court filings, however, is beyond the scope of what Rule
202(d)(1)(B) permits. See In re Rural Metro Corp. S’holders Litig., 2013 WL 6634009,
at *8-9 (Del. Ch. Dec. 17, 2013) (construing Rule 202 to permit a Delaware court “to
consider filings and other docketed items that led up to the order, ruling, or decision” and
not as “a license to credit the contents of filings in other courts”). I draw upon certain
allegations from the Superior Court filings for the limited purpose of reciting the relevant
background facts, but I do not rely on them in my analysis.
25
     See Def.’s Ex. 1 at ¶ 249.



                                              8
          According to that amended complaint, Pulieri and Sunview learned of facts giving

rise to their claims related to the Rehoboth Property in June 2009. 26 In May 2010, they

retained Duane Morris to pursue those claims against Farnan and Farnan-affiliated

entities. 27

          On February 10, 2012, Duane Morris informed Pulieri that bringing a claim

against Boardwalk related to the Rehoboth Property could result in sanctions against

Duane Morris and Sunview. 28 In October 2012, Duane Morris refused to bring any

claims against Boardwalk related to the Rehoboth Property. 29

          G.     Pulieri Seeks to Have the Rehoboth Property Retransferred

          On April 3, 2013, Pulieri, on behalf of Sunview, informed Farnan in writing that

Sunview was “ready, willing, and able to have the [Rehoboth Property] transferred back

to Sunview pursuant to the terms of the Friendly Agreement.” 30 Neither Farnan nor

Boardwalk responded to Pulieri’s April 2013 letter.

          On March 11, 2014, Pulieri’s counsel, on behalf of Sunview, sent a second letter

to Farnan’s counsel in which Pulieri sought to exercise his right under the Friendly



26
     Id. at ¶¶ 216, 220.
27
     Id. at ¶ 204; Def.’s Ex. 2 ¶ 19.
28
     Def.’s Ex. 1 at ¶ 210.
29
     Id. at ¶ 222.
30
  Compl. ¶ 42, Ex. G. The typed letter attached to the Complaint as Exhibit G is
undated.



                                              9
Agreement to have the Rehoboth Property retransferred. 31 On April 2, 2014, Farnan’s

counsel informed Pulieri’s counsel that Farnan would not comply with this request. 32

          H.      Procedural History

          On June 13, 2014, Pulieri was appointed as the receiver of Sunview in a separate

action. 33 On July 15, 2014, Pulieri filed the Complaint in his capacity as the Court-

appointed receiver of Sunview. On September 19, 2014, Boardwalk moved to dismiss

the Complaint under Court of Chancery Rule 12(b)(6). On December 12, 2014, I heard

oral argument on Boardwalk’s motion to dismiss.

III.      ANALYSIS

          A.      Legal Standard

          A motion to dismiss under Court of Chancery Rule 12(b)(6) for failure to state a

claim for relief must be denied unless, accepting as true all well-pled allegations and

drawing all reasonable inferences from those allegations in the plaintiff’s favor, there is

no “reasonably conceivable set of circumstances susceptible of proof” in which the

plaintiff could recover. 34 The failure to plead an element of a claim warrants dismissal

under Rule 12(b)(6). 35


31
     Id. Ex. H.
32
     Id. Ex. I.
33
     Order, In re Sunview Corp., C.A. No. 9701-CB (Del. Ch. June 13, 2014).
34
     See Cent. Mortg., 27 A.3d at 536.
35
     See Crescent/Mach I P’rs, L.P. v. Turner, 846 A.2d 963, 972 (Del. Ch. 2000).



                                             10
          B.     Count I Fails to State a Claim for Specific Performance

          Count I, which is styled as a claim for breach of contract, asserts that Sunview “is

entitled to [the] relief of Specific Performance of the Friendly Agreement directing . . .

Boardwalk to re-transfer the [Rehoboth Property] to Sunview Corporation.” 36 In support

of this request, Sunview alleges it has no adequate remedy at law because the Rehoboth

Property “is unique and the damages occasioned by the breach of the Friendly Agreement

to transfer real property are difficult to ascertain.” 37

          Under Delaware law, a party asserting a breach of an oral agreement must prove

the existence of an enforceable contract by a preponderance of the evidence. 38 Where a

party seeks an award of specific performance, however, the burden of proof is clear and

convincing evidence:

          A party must prove by clear and convincing evidence that he or she is
          entitled to specific performance and that he or she has no adequate legal
          remedy. A party seeking specific performance must establish that (1) a
          valid contract exists, (2) he is ready, willing, and able to perform, and (3)
          that the balance of equities tips in favor of the party seeking performance. 39




36
     Compl. ¶ 58.
37
     Id. ¶ 55.
38
  See Grunstein v. Silva, 2014 WL 4473641, at *16 (Del. Ch. Sept. 5, 2014), appeal
docketed, No. 569,2014 (Del. Oct. 3, 2014).
39
     Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1158 (Del. 2010).



                                                11
The legal standard here is thus whether it is reasonably conceivable that Sunview could

establish a right to specific performance by clear and convincing evidence. 40

         “The elements necessary to prove the existence of an enforceable contract are: (1)

the intent of the parties to be bound, (2) sufficiently definite terms, and (3)

consideration.” 41   Delaware courts have long recognized that equity has no role in

supplying a contract’s essential terms where a party seeks specific performance, “since

that would be rather to make than to execute an agreement.” 42 Thus, all essential terms

of the agreement must be sufficiently definite to establish an enforceable contract. 43

Furthermore, under Delaware law, an award of specific performance to transfer real


40
   It is appropriate to consider this heightened evidentiary burden at the motion to dismiss
stage. See, e.g., BAE Sys. Info. & Elec. Sys. Integration, Inc. v. Lockheed Martin Corp.,
2009 WL 264088, at *7 (Del. Ch. Feb. 3, 2009) (“[I]t is reasonably conceivable that BAE
could demonstrate the existence of an enforceable agreement on the facts alleged.
Therefore, the Court cannot conclude, on the facts presented here, that BAE would fail
the higher clear and convincing standard required for specific performance.”);
PharmAthene, Inc. v. SIGA Techs., Inc., 2008 WL 151855, at *15 (Del. Ch. Jan. 16,
2008) (“[I]t is reasonably conceivable that PharmAthene could show the LATS contains
all of the material and essential terms to be incorporated into the final license agreement.
For essentially the same reasons, I consider it conceivable that PharmAthene also could
establish that proposition by clear and convincing evidence[.]”).
41
     Otto v. Gore, 45 A.3d 120, 138 (Del. 2012).
42
  Godwin v. Collins, 3 Del. Ch. 189, 199 (Del. Ch. 1868), aff’d, 9 Del. 28, 56 (Del.
1869); see also Mehiel v. Solo Cup Co., 2005 WL 1252348, at *7 (Del. Ch. May 13,
2005) (“[T]he Court will not decree this relief [(i.e., specific performance)] if the
contractual terms are unclear and indefinite—there must be no need for the Court to
supply meaning to essential elements of the contract.”).
43
  See, e.g., Osborn, 991 A.2d at 1158; Deene v. Peterman, 2007 WL 2162570, at *5
(Del. Ch. July 12, 2007) (“[T]he court must be certain of the essential elements of the
contractual obligation it is asked to enforce.”).



                                             12
property is “an extraordinary remedy” 44 that is “available at the discretion of this

[C]ourt.” 45

         This Court has found that that the “price, date of settlement, and the property to be

sold” are essential terms of an enforceable contract for the sale of real property. 46 In my

view, the material conditions to a party’s obligation to perform also are essential terms of

an enforceable contract. This comports with the general legal principles set forth in

American Jurisprudence, which other Delaware courts have cited with approval. 47

According to that legal encyclopedia, which I find persuasive here, the essential terms in

a contract for the sale of real property include “(1) the names of the buyer and seller; (2) a

description of the property; (3) the sales price or the means of determining the price, and

the terms and conditions of the sale; and (4) the signature of the party to be charged.” 48

         Boardwalk contends that the Complaint fails to allege with sufficient detail several

essential terms of the Friendly Agreement, including the date of formation, the parties to
44
     Osborn, 991 A.2d at 1158.
45
   Gildor v. Optical Solutions, Inc., 2006 WL 4782348, at *11 (Del. Ch. June 5, 2006)
(citing Esso Standard Oil Co. v. Cunningham, 114 A.2d 380, 383 (Del. Ch. 1955), aff’d,
118 A.2d 611 (Del. 1955)).
46
   See River Enters., LLC v. Tamari Props., LLC, 2005 WL 356823, at *2 (Del. Ch. Feb.
15, 2005); see also Walton v. Beale, 2006 WL 265489, at *5 (Del. Ch. Jan. 30, 2006),
aff’d, 913 A.2d 569 (Del. 2006) (TABLE).
47
  See, e.g., Heckman v. Nero, 1999 WL 182570, at *4 (Del. Ch. Mar. 26, 1999) (“Even if
aspects of the agreement are obscure, the agreement will be enforceable if the Court is
able to ascertain the terms and conditions on which the parties intend to bind
themselves.” (citing 77 Am. Jur. 2d Vendor and Purchaser § 7)).
48
     77 Am. Jur. 2d Vendor and Purchaser § 4 (emphasis added).



                                              13
the agreement, the covered properties, and the retransfer price. 49 In my opinion, at least

two essential terms of the Friendly Agreement are not sufficiently definite to state a claim

for specific performance as alleged in the Complaint: (1) the Retransfer Conditions to

Boardwalk’s obligation to retransfer the Rehoboth Property to Sunview, and (2) the

timing of Boardwalk’s obligation to perform under the Friendly Agreement.

          The two Retransfer Conditions indisputably are essential terms of the Friendly

Agreement because they are the necessary conditions that Sunview must satisfy before

the Rehoboth Property could be retransferred. 50       But these essential terms are not

sufficiently definite in my view for two reasons.

          First, both the Financial Improvement Condition and the Paglianite Removal

Condition are dependent on a change in circumstances affecting the “Grotto Entities,”

i.e., “the improvement of the financial health of the Grotto Entities” and the “removal of

the interests of” Paglianite “from all Grotto Entities with the exception of Pizza Systems,

Inc.” 51 The Complaint, however, expressly defines “Grotto Entities” to include “other

Grotto related entities” that are not specified in the Complaint. 52 The fact that these

additional entities are not specified anywhere in the Complaint means that one cannot

know which entities must have improved financially to satisfy the Financial Improvement

49
     Def.’s Reply Br. 24-26; Def.’s Op. Br. 25-28.
50
     See 77 Am. Jur. 2d Vendor and Purchaser § 4.
51
     Compl. ¶ 17.
52
     Id. ¶ 12.



                                             14
Condition or from which entities Paglianite’s interests must have been removed to satisfy

the Paglianite Removal Condition.

         Second, the Financial Improvement Condition refers vaguely to the “improvement

of the financial health” of the Grotto Entities. In my view, the Complaints fails to

identify any sufficiently definite metric for any party to the Friendly Agreement, let alone

the Court, to discern what it means for the financial health of the Grotto Entities

(assuming one could determine which entities this term encompasses in the first place) to

have improved in order to conclude that this condition has been satisfied.

         Even if the Retransfer Conditions were sufficiently definite, a related yet distinct

essential term is not sufficiently definite: the timing of Boardwalk’s obligation to

perform. This is an essential term to the Friendly Agreement because it dictates when

Boardwalk must retransfer the Rehoboth Property to Sunview. 53 The Complaint alleges

that the Farnan-affiliated entities’ obligation to perform under the Friendly Agreement

arises “upon the happening” of the Retransfer Conditions. 54 This term is not sufficiently

definite because the Complaint does not specify what “upon the happening” means as a

general matter or with respect to the Rehoboth Property.

         For example, “upon the happening” could mean that Boardwalk was required to

perform automatically upon the satisfaction of the Retransfer Conditions or it could



53
     See 77 Am. Jur. 2d Vendor and Purchaser § 4.
54
     Compl. ¶ 17.



                                              15
mean, as Sunview contends in its opposition brief, 55 that Boardwalk was required to

perform only if Sunview first makes a demand that it do so. Thus, in my view, even

when viewing the well-pled allegations and all reasonable inferences from those

allegations most favorably to Sunview, the timing of Boardwalk’s obligation to retransfer

the Rehoboth Property is not sufficiently definite to establish that the Friendly Agreement

is an enforceable contract. 56

                                         *   *    *

       For the foregoing reasons, it is not reasonably conceivable in my opinion that

Sunview could prove by a preponderance of the evidence the existence of an enforceable

contract because, as alleged, essential terms of the Friendly Agreement are not

55
   See Pl.s’ Ans. Br. 10-12, 17, 37. Sunview concedes no such requirement is pled in the
Complaint. Tr. of Oral Arg. 44. It is procedurally improper for Sunview to attempt to
rewrite its Complaint in its brief. See MCG Capital Corp. v. Maginn, 2010 WL 1782271,
at *5 (Del. Ch. May 5, 2010) (“[The plaintiff] cannot supplement the complaint through
its brief.”). Still, its attempt to do so reinforces my conclusion that Sunview does not
know the essential terms of the contract for which it is now seeking specific performance.
56
   I also have doubts as to whether the price of the retransfer is sufficiently definite.
Sunview alleges that the Friendly Agreement provides for the retransfer of properties
from the Farnan-affiliated entities back to the Grotto Entities to be on a “dollar for dollar
basis” and Sunview seeks in Count I to have the Rehoboth Property retransferred to it for
$3.2 million, which is “the same amount, dollar for dollar, for which Boardwalk received
the property.” Compl. ¶¶ 17, 49. But, the Complaint alleges that the Dewey Beach
Property, which Sunview contends is evidence that the Friendly Agreement is binding
and enforceable, was transferred to KidFar (a Farnan-affiliated entity) for $2.8 million in
May 2003, and retransferred to Grotto Pizza Dewey, LLC for $3.1 million in January
2006. Id. ¶¶ 25, 32. According to the Complaint, the $300,000 increase accounted for
the “transactional costs.” Id. ¶ 32. The increase in the retransfer price for the Dewey
Beach Property to account for “transaction costs” suggests that the economic terms of the
Friendly Agreement were not sufficiently definite but instead contemplate further
negotiations.



                                             16
sufficiently definite. 57 Thus, a fortiori, I conclude that it is not reasonably conceivable

that Sunview could prove, by clear and convincing evidence, its claim for specific

performance of the Friendly Agreement with respect to the Rehoboth Property. 58

         C.     Count I also is Barred by the Rule Against Perpetuities or Laches

         Boardwalk alternatively asserts that Sunview’s claim for specific performance

must be dismissed under the rule against perpetuities or under laches, depending on

whether Boardwalk’s obligations under the Friendly Agreement were contingent on

Sunview demanding that Boardwalk perform under the agreement. Specifically,

assuming a demand of performance was required, Boardwalk argues that the Friendly

Agreement is void under the rule against perpetuities because Sunview could exercise its

option to repurchase the Rehoboth Property beyond the perpetuities period. 59

Conversely, assuming a demand of performance was not required, Boardwalk argues that

Count I is barred by laches because Sunview knew of Boardwalk’s failure to perform




57
   See Black Horse Capital, LP v. Xstelos Hldgs., Inc., 2014 WL 5025926, at *20 (Del.
Ch. Sept. 30, 2014) (“Because the essential terms of the Serenity Agreement have not
been alleged with sufficient definiteness to render that agreement enforceable, it is not
reasonably conceivable that the remedy of specific performance will be available in this
case.”).
58
   Given that the Complaint fails to demonstrate the existence of a valid contract, I do not
consider the sufficiency of the allegations of the Complaint concerning the other
requirements for specific performance, i.e., whether Sunview is ready, willing, and able
to perform and whether the balance of equities tips in its favor.
59
     Def.’s Reply Br. 13-18.



                                            17
more than eight years before it filed suit and unreasonably delayed in seeking an award of

specific performance. 60

         For the reasons discussed below, I conclude that Count I must be dismissed in

either scenario because the Friendly Agreement would violate the rule against

perpetuities if it did include such a requirement or, alternatively, would be barred under

the doctrine of laches if it did not.

                1.     Rule Against Perpetuities

         As the Delaware Supreme Court noted in Stuart Kingston, Inc. v. Robinson, 61 the

common law rule against perpetuities provides that “[n]o interest [in real property] is

good unless it vests, if at all, not later than twenty-one years after some life in being at the

creation of the interest.” 62 Although courts have shown a willingness to deviate from the

traditional perpetuities period in contracts governing commercial transactions,63

Delaware law nonetheless provides that “an indefinite time limitation to exercise a right




60
     Id. 8-9; Def.’s Op. Br. 13-16.
61
     596 A.2d 1378 (Del. 1991).
62
   Id. at 1383 (“The rule against perpetuities has long been accepted as part of the
common law of Delaware as a principle grounded in the public policy against restricting
the alienability of land and interests in land.”).
63
  See, e.g., Pathmark Stores, Inc. v. 3821 Assocs., L.P., 663 A.2d 1189, 1193 (Del. Ch.
1995) (“Commercial transactions . . . have absolutely no tie to either lives in being or
twenty-one years.”); see also JD Hldgs., L.L.C. v. Dowdy, 2014 WL 4980669, at *12
(Del. Ch. Oct. 1, 2014) (“[I]n a commercial transaction, a right will not violate the rule
against perpetuities if it will be exercised or lapse within a reasonable time.”).



                                              18
to a future interest, even in a commercial agreement, violates the Rule.” 64 “If there is any

possibility that the interest will vest beyond the period of the rule, then it is void ab

initio.” 65

          Sunview contends it possesses a “power of termination” or a “right of reentry” to

the Rehoboth Property that is not subject to the rule against perpetuities, 66 citing Welsh v.

Heritage Homes of DeLaWarr, Inc. 67 as its sole supporting authority. Sunview’s reliance

on Welsh is misplaced. Under Delaware law, where, as here, a contract for the sale of

real property provides that a grantor may regain title to the property by paying

consideration, the grantor possesses an option to repurchase the property, not a power of

termination or right of reentry that is created by a transfer of a fee simple subject to a

condition subsequent. 68 The Court’s interpretation of the contract at issue in Welsh

illustrates this precise point. There, the contract provided:

          Buyer agrees that in the event Buyer is unable to commence construction
          for any reason not attributed to Seller, Buyer agrees to-reconvey the subject
          lot at the same price as sold to Buyer, within 30 days of receipt of Seller’s
          request to re-convey. 69

64
  Cornell Glasgow, LLC v. LaGrange Props., LLC, 2012 WL 3157124, at *3 (Del.
Super. Aug. 1, 2012) (Slights, J.) (citing Stuart Kingston, 596 A.2d at 1384).
65
  Stuart Kingston, 596 A.2d at 1383 (citing Taylor v. Crosson, 98 A. 375, 377 (Del. Ch.
1916)).
66
     Pl.’s Ans. Br. 28-30.
67
     2008 WL 442549 (Del. Ch. Feb. 15, 2008, revised Feb. 19, 2008).
68
     Id. at *7.
69
     Id. at *4.



                                               19
Applying principles from the Restatement (First) of Property, which the Delaware

Supreme Court had cited with approval, 70 the Court in Welsh concluded that the contract

did not create a power of termination or right of reentry because the seller needed “to pay

consideration (the original purchase price) to the [buyer] in order to reclaim title.” 71

Further, the Court concluded that the language of the provision quoted above was “a

textbook example of an option in real property” because it could only be construed to

mean that the buyer “may repurchase the Property for a fixed price upon the occurrence

of [a condition], but in no event is it required to do so.” 72

         I find no meaningful distinction between the provision at issue in Welsh and the

Friendly Agreement. Here, assuming Sunview is required to demand performance, as it

contends in its brief, the alleged terms of the Friendly Agreement do not require Sunview

to do so. In other words, upon satisfaction of the Retransfer Conditions, Sunview has the

right, but not the obligation, to demand performance and thereby repurchase the

Rehoboth Property for the retransfer price. As in Welsh, I conclude that the consideration

that Sunview must pay to regain title to the Rehoboth Property means that the Friendly

Agreement did not grant to Sunview a power of termination or a right of reentry. Even if,

70
    See, e.g., Libeau v. Fox, 892 A.2d 1068, 1072 (Del. 2006) (“The trial court then
applied settled law, as articulated in . . . the Restatement (First) of Property § 406 (1944)
. . . . We affirm that holding on the basis of and for the reasons stated in the Court of
Chancery’s opinion.”).
71
  See Welsh, 2008 WL 442549, at *7 (citing Restatement (First) of Prop. § 394 cmt. c
(1944)).
72
     Id. (emphasis added).



                                               20
as Sunview argues, “[i]t is evident from the facts surrounding the transaction that

Sunview never intended to part permanently with the [Rehoboth Property],” 73 the long-

standing legal principles outlined in Welsh teach that the nature of a property interest

depends on the terms of the grant, not the subjective intent of the grantor. 74 The parties

could have structured this transaction differently to provide Sunview with a power of

termination or a right of reentry, but they did not. The way they structured the Friendly

Agreement was for Sunview to transfer the Rehoboth Property to Boardwalk in fee

simple and to receive an option to repurchase it. 75

         Because it is “regarded as having the effect of creating a future interest,” an option

to purchase real property, such as Sunview’s option to repurchase the Rehoboth Property,




73
     Pl.’s Ans. Br. 29.
74
   See, e.g., Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232 (Del.
1997) (“If a contract is unambiguous, extrinsic evidence may not be used to interpret the
intent of the parties, to vary the terms of the contract or to create an ambiguity.”);
Monigle v. Darlington, 81 A.2d 129, 131 (Del. Ch. 1951) (“The meaning of restrictive
words is governed by the intention of the grantor to be ascertained from the words
themselves, or from the particular words considered in the light of other words or
provisions in the deed.”).
75
   Sunview also argues that Welsh is distinguishable on equitable grounds because, unlike
the real estate developer in Welsh that “presum[ably] . . . had the assistance of legal
counsel in drafting the contract,” Pulieri “relied on the advice and representations of his
close friend, Farnan, who assured [him] that the [Rehoboth Property] would be returned
when [Pulieri] could afford to once again possess it.” Id. 29-30. In my view, the Court’s
analysis in Welsh cannot reasonably be read to turn on this point. Sunview, moreover,
has not offered any authority to support applying estoppel or similar equitable principles
in a rule against perpetuities analysis, and I decline to do so here.



                                               21
is subject to the rule against perpetuities. 76 “ ‘If it is possible that the option might not be

exercised within the limits of the time allowed by the Rule Against Perpetuities, the

option is void.’ ” 77

         Boardwalk contends that Sunview’s option is void under the rule against

perpetuities because Sunview, an entity with perpetual existence, could have exercised

that option to repurchase the Rehoboth Property from Boardwalk, another entity with

perpetual existence, at an indefinite time in the future. 78 I agree because I do not see how

the Financial Improvement Condition must be satisfied within a defined period of time.

There is no reasonable limitation of any kind on when Sunview must satisfy that

condition or, after satisfying both Retransfer Conditions, exercise its option.

         By way of example, Sunview might not satisfy the Financial Improvement

Condition (or thereafter exercise its option) until two days from now or two centuries

from now. The latter example may seem extreme, but it conclusively demonstrates that

the duration of Sunview’s option is indefinite. Accordingly, if the Friendly Agreement

required Sunview to demand Boardwalk’s performance, as Sunview contends, then Count

I must be dismissed under Court of Chancery Rule 12(b)(6) because Sunview’s option to

repurchase the Rehoboth Property would be void under the rule against perpetuities.

76
     See Emerson v. Campbell, 84 A.2d 148, 153 (Del. Ch. 1951).
77
  Heritage Homes of De La Warr, Inc. v. Alexander, 2005 WL 2173992, at *2 (Del. Ch.
Sept. 1, 2005) (quoting Emerson, 84 A.2d at 153), aff’d, 900 A.2d 100 (Del. 2006)
(TABLE).
78
     Def.’s Reply Br. 16-18.



                                               22
                2.     Laches

         The Delaware Supreme Court has defined laches generally as “an unreasonable

delay by the plaintiff in bringing suit after the plaintiff learned of an infringement of his

rights, thereby resulting in material prejudice to the defendant.” 79 Denying relief on the

grounds of laches typically requires the defendant to show three elements: “first,

knowledge by the claimant; second, unreasonable delay in bringing the claim; and third,

prejudice to the defendant.” 80

         Although this Court’s laches inquiry is fact-specific, 81 it is often guided (but not

necessarily dictated) by the analogous statute of limitations. 82 As Chief Justice, then-

Chancellor, Strine noted in In re Sirius XM Shareholder Litigation, 83 “laches may bar a

plaintiff in equity before the analogous statute of limitations has run, but a filing after the

analogous statute of limitations has run cannot be justified except in the ‘rare’ and

‘unusual’ circumstance that a recognized tolling doctrine excuses the late filing.” 84 This


79
     Reid v. Spazio, 970 A.2d 176, 182 (Del. 2009).
80
     Homestore, Inc. v. Tafeen, 888 A.2d 204, 210 (Del. 2005).
81
  See id. (“Whether or not these three elements [to demonstrate laches] exist is generally
determined by a fact-based inquiry.”).
82
   See Levey v. Brownstone Asset Mgmt., LP, 76 A.3d 764, 769 (Del. 2013) (“In
determining whether an action is barred by laches, the Court of Chancery will normally,
but not invariably, apply the period of limitations by analogy as a measure of the period
of time in which it is reasonable to file suit.”).
83
     2013 WL 5411268 (Del. Ch. Sept. 27, 2013).
84
 Id. at *4 (citations omitted); see also U.S. Cellular Inv. Co. of Allentown v. Bell Atl.
Mobile Sys., Inc., 677 A.2d 497, 502 (Del. 1996) (“Absent some unusual circumstances, a


                                              23
is because, as the Chief Justice continued, “[a]fter the statute of limitations has run,

defendants are entitled to repose and are exposed to prejudice as a matter of law by a suit

by a late-filing plaintiff who had a fair opportunity to file within the limitations period.” 85

         The three-year statute of limitations for contract claims starts to run when the

claim accrues, 86 and a breach of contract claim accrues “at the time of breach,” 87 “even if

the plaintiff is ignorant of the cause of action.” 88 A party asserting a claim for specific

performance in this Court, however, will typically need to act with even greater alacrity

than simply within the analogous limitations period. Chief Justice Strine summarized

this principle in CertainTeed Corp. v. Celotex Corp.: 89

         A claim for specific performance is a specialized request for a mandatory
         injunction, requiring a party to perform its contractual duties. Like any
         request for an injunction, such a claim necessarily invokes a stricter
         requirement for prompt action by the plaintiff, and a plaintiff may not wait
         the full period of three years set forth in [10 Del. C.] § 8106 to seek such
         relief. Laches, rather, will arise much earlier, if a plaintiff sits on its claim
         and does not demand prompt action. 90


court of equity will deny a plaintiff relief when suit is brought after the analogous
statutory period.”).
85
     Sirius XM, 2013 WL 5411268, at *4.
86
     10 Del. C. § 8106(a).
87
  Whittington v. Dragon Gp. L.L.C., 2008 WL 4419075, at *5 (Del. Ch. June 6, 2005,
revised Sept. 30, 2008).
88
     Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 319 (Del. 2004).
89
     2005 WL 217032 (Del. Ch. Jan. 24, 2005).
90
  Id. at *6; see also State ex rel. Brady v. Pettinaro Enters., 870 A.2d 513, 527 (Del. Ch.
2005) (“Remedies of this kind will only issue if the plaintiff acts with dispatch, and are


                                                24
          Here, Boardwalk describes Count I as “between four and ten years old.” 91 More

specifically, Boardwalk contends that Sunview’s claim for specific performance accrued:

(a) in fall 2004, when Pulieri was “ready, willing, and able” to repurchase the Dewey

Beach Property; 92 (b) in March 2006, when Sunview, “prior to dissolution, complied with

all terms of the Friendly Agreement”; 93 (c) in June 2009, when, as alleged in the Superior

Court action, Sunview first learned of the claim; 94 or (d) in May 2010, when, as Pulieri

swore in an affidavit submitted to the Superior Court, Sunview retained counsel to bring

a claim regarding the Rehoboth Property against Farnan and Farnan-affiliated entities. 95

In opposition, Sunview argues that its specific performance claim “accrued, at the

earliest, in the spring of 2013 when Pulieri first demanded the return [of] the [Rehoboth

Property]” and Boardwalk refused to perform. 96

          For purposes of Boardwalk’s motion to dismiss, I need not resolve precisely when

Sunview’s contract claim accrued.       In my opinion, Sunview’s claim—assuming the

Friendly Agreement did not require Sunview to demand performance—accrued no later

normally foreclosed to a plaintiff who sits on its hands until near the end of the analogous
limitations period.”).
91
     Def.’s Op. Br. 16.
92
     Compl. ¶ 31.
93
     Id. ¶ 47.
94
     Def.’s Ex. 1 ¶ 220.
95
     Def.’s Ex. 2 ¶ 19.
96
     Pl.’s Ans. Br. 10.



                                             25
than March 6, 2006, the date of Sunview’s dissolution. The fact that Boardwalk failed to

perform after Sunview—by its own admission—had satisfied the Retransfer Conditions

and complied with the other terms of the Friendly Agreement before it dissolved97

necessarily means, in my view, that Sunview had knowledge of its claim against

Boardwalk for breaching the Friendly Agreement no later than its dissolution in 2006.

       Accordingly, Count I would have been presumptively untimely had it been filed

after March 6, 2009, three years after the date of Sunview’s dissolution, let alone in July

2014. Notably, Sunview does not argue that a recognized tolling doctrine applies, 98 nor

does it offer any “unusual conditions or extraordinary circumstances” that, under

IAC/InterActiveCorp v. O’Brien, 99 may justify deviating from the three-year limitations

period.   From my independent analysis, none of the IAC factors (or equivalent

circumstances) is implicated here. In light of Sunview’s unexcused delay, I conclude that

Count I must be dismissed on laches grounds assuming that the Friendly Agreement did

not contain a demand requirement. For the reasons articulated by Chief Justice Strine in

CertainTeed, moreover, laches likely would have barred Count I even before the


97
   Compl. ¶ 47 (“Plaintiff Sunview, prior to dissolution, complied with all terms of the
Friendly Agreement.”).
98
   See Pettinaro, 870 A.2d at 525 (“A plaintiff asserting a tolling exception must plead
facts supporting the applicability of that exception.”); see also Krahmer v. Christie’s Inc.,
903 A.2d 773, 778 (Del. Ch. 2006) (“[T]olling exceptions include the doctrines of (1)
fraudulent concealment, (2) inherent[ly] unknowable injury, and (3) equitable tolling.”).
99
  26 A.3d 174, 178 (Del. 2011) (providing an illustrative, non-exhaustive list of factors
that could bear on this Court’s inquiry of when the analogous statute of limitations should
not apply).



                                             26
expiration of the analogous limitations period because Sunview failed to act with the

alacrity necessary to assert a claim seeking specific performance.

         Sunview attempts to salvage the timeliness of its claim by arguing that any delay

was the result of the “prolonged investigation and delay” of Pulieri’s lawyers at Duane

Morris. But, as recently as Levey v. Brownstone Asset Management, LP, 100 the Delaware

Supreme Court rejected this line of argument, concluding that the torpor of counsel

“cannot excuse” a plaintiff’s otherwise unreasonable delay because, under Delaware law,

a party “ ‘must be deemed bound by the acts of his lawyer-agent.’ ” 101 Thus, even if

“[t]he Superior Court complaint makes it abundantly clear that Pulieri made good faith

efforts to bring his and Sunview’s claims in a timely fashion,” 102 Pulieri bears

responsibility for his lawyers’ actions, including their delay.

         Finally, Sunview submits that Count I is analogous to the claim for specific

performance of an oral agreement found timely in Walton v. Beale. 103 I disagree. In

Walton, a series of delays extended the settlement date for an agreement to sell real

property that, under a draft (and unsigned) agreement of sale, the parties initially

contemplated would occur in November 1999. During those delays, according to the

Court’s post-trial findings of fact, “[n]one of the communications between the parties . . .

100
      76 A.3d 764 (Del. 2013).
101
      Id. at 769 (quoting Vance v. Irwin, 619 A.2d 1163, 1165 (Del. 1993)).
102
      Pl.’s Ans. Br. 12.
103
      2006 WL 265489 (Del. Ch. Jan. 30, 2006), aff’d, 913 A.2d 569 (Del. 2006) (TABLE).



                                              27
reasonably would have led [the buyer] to believe that the [sellers] would not sell him the

property.” 104 It was only in January 2002, when the sellers expressly informed the buyer

that they were revoking their offer to sell, that the buyer learned of the potential breach of

their agreement. Shortly thereafter, in July 2002, the seller filed suit seeking specific

performance. The Court concluded that the buyer’s claim was not barred by laches

because he did not have knowledge of the claim until January 2002 and because his July

2002 lawsuit was not an unreasonable delay. 105

            Sunview’s allegations stand in stark contrast to the facts of Walton, where the

buyer had no reason to know of the sellers’ breach until they expressly revoked their

offer. Here, assuming the Friendly Agreement required Boardwalk to retransfer the

Rehoboth Property automatically upon Sunview’s satisfaction of the Retransfer

Conditions and did not require Sunview to demand performance, Sunview had

knowledge of its claim by March 6, 2006, the date it dissolved. That is because Sunview

admits it had complied with all of the terms of the Friendly Agreement by that date and

Sunview inarguably must have known by that date that Boardwalk had not performed.

Unlike the reasonable delay of six months between notice of the claim and the lawsuit in

Walton, I conclude that Sunview’s delay of more than eight years from March 2006 until

the filing of the Complaint in this action in July 2014 was unreasonable and unjustified.


104
   Id. at *8 (“[E]ven when things became heated between the parties, the [sellers] never
told [the buyer] the deal was off.”).
105
      Id.



                                               28
          Sunview was on notice of its claim for specific performance in March 2006, and it

failed to act with the requisite alacrity to vindicate its rights. Thus, assuming the Friendly

Agreement did not require Sunview to demand performance by Boardwalk, Count I must

dismissed under Court of Chancery Rule 12(b)(6) on the grounds of laches. 106

          D.      Count II is Barred by Laches

          In Count II, an alternative claim for relief, Sunview alleges that Boardwalk is

liable for unjust enrichment because it was unfairly “enriched by the transfer of the

[Rehoboth Property] in a transaction that was not arms-length in which Boardwalk

unilaterally set the terms without consideration of the [Rehoboth Property’s] fair market

value.” 107 Sunview was proportionally impoverished “by the transfer of the [Rehoboth

Property] for an amount less than the property’s fair market value.” 108 Boardwalk, in

opposition, argues that Count II must be dismissed as untimely under laches. 109 I agree.

          “The elements of unjust enrichment are: (1) an enrichment, (2) an

impoverishment, (3) a relation between the enrichment and impoverishment, (4) the

absence of justification, and (5) the absence of a remedy provided by law.” 110 The




106
      In light of the above holdings, I do not reach Boardwalk’s Statute of Frauds argument.
107
      Compl. ¶ 60.
108
      Id. ¶ 61.
109
      Def.’s Reply Br. 28; Def.’s Op. Br. 30-31.
110
      Nemec v. Shrader, 991 A.2d 1120, 1130 (Del. 2010).



                                              29
analogous statute of limitations for a claim of unjust enrichment is three years, 111 and an

unjust enrichment claim accrues when the wrongful act causing the enrichment and

impoverishment occurred. 112

         According to the Complaint, the alleged enrichment and impoverishment occurred

on December 30, 2002, when Sunview transferred the Rehoboth Property to Boardwalk

for the below-market-value price of $3.2 million. 113 Thus, Count II, which was first

asserted in July 2014, more than eleven years after it accrued, is presumptively untimely

and subject to dismissal on laches grounds absent unusual or extraordinary circumstances

that warrant deviating from the analogous limitations period. 114

         Sunview contends that the laches period should be tolled under the inherently

unknowable injury doctrine because “Pulieri and Sunview could not know that

111
      10 Del. C. § 8106(a).
112
      See Vichi v. Koninklijke Philips Elecs. N.V., 62 A.3d 26, 42-43 (Del. Ch. 2012).
113
    Compl. ¶¶ 36, 60-62, Ex. F. Sunview contends that “[t]he Complaint does not support
the inference that the unjust enrichment occurred at the time of transfer” in December
2002. It argues instead that the enrichment occurred in 2013 when Boardwalk refused to
retransfer the Rehoboth Property after Sunview demanded performance. Pl.’s Ans. Br.
36-37. I disagree for two reasons. First, the only enrichment alleged is Sunview’s
transfer of the Rehoboth Property to Boardwalk in 2002. Compl. ¶ 60. Second, in my
view, the only basis for looking to Boardwalk’s retention of the Rehoboth Property in
2013 as the time when Sunview’s unjust enrichment claim accrued would be if the
Friendly Agreement was an enforceable contract that included a demand requirement.
But, if that were the case, Count II would fail to state a claim because “[a] claim for
unjust enrichment is not available if there is a contract that governs the relationship
between parties that gives rise to the unjust enrichment claim.” Kuroda v. SPJS Hldgs.,
L.L.C., 971 A.2d 872, 891 (Del. Ch. 2009).
114
      See Sirius XM, 2013 WL 5411268, at *4.



                                              30
Boardwalk had been unjustly enriched until their demand for performance was first met

with silence in the spring of 2013.” 115 The inherently unknowable injury tolling doctrine

provides that

         the statute will not run where it would be practically impossible for a
         plaintiff to discover the existence of a cause of action. No objective or
         observable factors may exist that might have put the plaintiff[] on notice of
         an injury, and the plaintiff[] bear[s] the burden to show that [it was]
         “blamelessly ignorant” of both the wrongful act and the resulting harm. 116

In my view, Sunview’s argument about tolling is based on a mistaken premise.

         As explained above, the unlawful conduct that forms the basis for the unjust

enrichment claim occurred at the time of Sunview’s below-market-value transfer of the

Rehoboth Property to Boardwalk in December 2002. 117 Given the nature of the alleged

enrichment, Sunview cannot, in my view, legitimately contend that it was impossible to

discover the facts giving rise to its claim because the price of the December 2002 transfer

was self-evident. Indeed, Sunview expressly admits in its Complaint that it was “willing

to sell the [Rehoboth Property] [at] below market value” to Boardwalk in 2002. 118 I also

do not see how Sunview could claim to be blamelessly ignorant that Boardwalk had

obtained the Rehoboth Property at a below-market-value price when, in addition to their

conceded willingness to sell at that price, the Complaint expressly acknowledges that
115
      Pl.’s Ans. Br. 37.
116
   In re Tyson Foods, Inc. Consol. S’holder Litig., 919 A.2d 563, 584-85 (Del. Ch.
2007); see also Morton v. Sky Nails, 884 A.2d 480, 482 (Del. 2005).
117
      Compl. ¶¶ 60-62.
118
      Id. ¶ 41 (emphasis added).



                                              31
“Pulieri and Sunview did not list the [Rehoboth Property] for sale on the market nor did

Pulieri engage an independent appraisal.” 119 The inherently unknowable injury tolling

doctrine is thus inapplicable.

          Because Sunview has not offered a persuasive justification to depart from the

analogous limitations period, I conclude that Count II, a presumptively untimely claim,

must be dismissed on laches grounds.

IV.       CONCLUSION

          For the foregoing reasons, Boardwalk’s motion to dismiss the Complaint under

Court of Chancery Rule 12(b)(6) is GRANTED. Under Court of Chancery Rule 15(aaa),

the dismissal is WITH PREJUDICE.

          IT IS SO ORDERED.




119
      Id. ¶ 39.



                                            32
