IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CAS'I`LE COUNTY

TERRY BRENNAN,

Plaintiff,
v. C.A. N0. CPU4-l4-0O0229

ANNE K. SEVERANCE,

Defendant.

\_/\\-.¢/\-_/H-_/H-_/‘-\-_/H-_/\\-_/\-_/\-_/\-_/

Submitted: September 13, 2014
Decided: October 3, 2014

Terry Brennan Anne K. Severance
1306 Painters Crossing 1033 Kendall Rd.
Chadds Ford, PA 19317 Wilmington, DE 19805
Plaz`nrzff pro se Defendant, pro se

DECISION AFTER 'I`RIAL

RENNIE, J.

INTRODUCTION
This is a breach of contract action arising from an alleged agreement to divide marital
property between Plaintiff Terry Brennan ("Brennan") and Defendant Anne K. Severance
("Severance"). Trial was held on September 3, 2014. This is the Court’s opinion on the relief
sought by Brennan.

FACTUAL BACKGROUND

Brennan and Severance were married for thirteen years until their separation in August
2012, following the death of their daughter ln connection with their divorce, the parties reached
an oral agreement in which Severance would retain ownership and possession of the house they
cohabited. In exchange, Severance agreed to pay Brennan $30,000.00 for his interest in the
parties’ assets. The agreement was referenced in an email that Severance sent to Brennan on
September 3, 2014.1 Additionally, the parties agreed that Brennan would relocate and take with
him specific items of personal property.z On October 26, 2013, Severance sent a letter to
Brennan in which she accused Brennan of removing property beyond their agreement.3
Severance asserts that Brennan agreed that he would only take the contents of two rooms: (1) the
master bedroom,‘l and (2) the family room.$ However, according to Severance, in addition to
taking the agreed-upon items, Brennan took additional property allegedly worth $37,400.00.6

Brennan has brought this lawsuit for breach of the agreement by Severance to pay him

$30,000.00. Severance admits that the parties entered into a verbal agreement to pay Brennan

‘see Pl.’s Ex. 1.

1 There is no documentation in the record that references which items Brennan was authorized to remove from the
house.

3 See Pl.’s Ex. 2.

4 The master bedroom consisted of a queen sized sleigh bed, with tempurpedic mattress and box spring; two night
stands, tall dresser, chest with mirror; and thirty-five inch flat screen te|evision. See Pl.’s Ex. 2.

5 The family room consisted of a couch, loveseat, two side tables, bookcase, forty-eight inch flat screen television,
surround sound system with speakers, pieces of wall art, and a large vase. .S'ee Pl.’s Ex. 2.

6 See Pl.’s Ex. 2. Plaintiff testified that the items he took were his personal items, or were items that he was still
paying for.

$30,000.00. I~Iowever, she alleges that the agreement was made under duress, because Brennan
refused to move out of the home otherwise. Although not raised as an affirmative defense in her
answer, Severance, for the first time at trial, requested that any judgment in favor of Brennan be
offset by the value of the extra property that he allegedly removed from the house without
permission.?

DISCUSSION

To prevail on a claim for breach of contract, the plaintiff must establish by a
preponderance of the evidence that: (l) a contract existed between the parties; (2) the defendant
breached an obligation imposed by the contract, and (3) the plaintiff suffered damages as a result
of that breach.s

As set forth below, Brennan has met his burden of proving that Severance breached the
contract between the parties. Severance concedes that the parties entered into an oral agreement
for a buyout of Brennan’s interest in their home as well as a division of personal property.
Severance, however, challenges the validity of the agreement on the ground that she entered the
agreement under duress.

In order to establish the defense of duress, Severance bears the burden of demonstrating
by a preponderance of the evidence that:

(l) the defendant was coerced to engage in the conduct charged by
the use of, or a threat to use force against the defendant or another
person, which a reasonable person in her situation would have
been unable to resist; and (2) that the defendant did not

intentionally or recklessly place herself in a situation in which it is
probable she would be subjected to duress.g

l Severance stated at trial that she is not pursuing a counterclaim

8 Gregory v. Frazer, 2010 WL 4262030, *l (Del. Com. Pl. Oct. 8, 2010); VLIW Technolog;v, LLC v. Hewlett-
Packara', Co., 840 A.Zd 606, 612 (Del. 2003).

° W@nnam v_ stare @foelaware, 942 A.zd 569, 577 (Del. 2007).

3

After considering the evidence presented at trial, it is clear that Severance failed to
establish the elements of legal duress through testimony or otherwise. There was no testimony
that Severance entered the agreement based on the use of force, or threat of use of force by
Brennan against her. Further, there was no evidence adduced at trial that Severance was deprived
of the free exercise of her will through threats from Brennan, or that she lacked an adequate legal
remedy to protect her interests. Instead, Severance testified that she entered into the agreement
because she was desperate to have Brennan leave the home. Such motivation by Severance does
not rise to the level of duress that would invalidate the parties’ contract.

In addition to Severance’s duress argument, she for the first time at trial raised the
affirmative defense of setoff. Specifically, she requested that any judgment in favor of Brennan
be set off against the value of the extra personal property allegedly taken by Brennan. This
defense fails for two reasons. First, Severance raised the defense for the first time at trial.
"Generally, an affirmative defense must be pled or the defense is waived.”w Severance’s failure
raise the defense of setoff as an affirmative defense in her answer to the complaint constitutes a
waiver of the defense. Second, even if the defense was timely, Severance presented no credible
evidence of the value of the items taken by Brennan. lt is well settled under Delaware law that
damages must be proven. “The law does not permit a recovery of damages which is merely
speculative or conjectural."'l Severance did not provide the Court with any basis to value the
items allegedly taken by Brennan without permission. Severance’s failure to timely raise the
affirmative defense of setoff, and her failure to present any evidence to establish the value of the
items to be setoff, leaves the Court with the evidence presented by Brennan. That evidence

establishes that Severance breached the parties’ enforceable agreement to pay Brennan

m See Tydings v. Loewenstein, 505 A.Zd 443, 446 (Del. Super. 1986); City of Wz`lmz`ngton v. Spencer, 391 A.2d 199,
203 (Del. Super. 1978).

" Lask@wsi: v. Wazh's, 205 A.zd szs, 326 (oei. 1964) (quoiing Henne v_ Baiick, 146 A_za 394 (Del. 1953)).
4

$30,000.00 for his interest in the home. Accordingly, the Court finds that Brennan has met his

burden of proving that Severance breached their contract.

CONCLUSION

For the foregoing reasons, the Court finds in favor of Terry Brennan and against Anne K.
Severance in the amount of $30,000.00 plus post-judgment inter t at the rate of 5.75% per year

until satisfied.

 
 
  

IT IS SO ()RDERED this 3rd day of October, 2014.

The H  Sheldon K. Rennie,
Judge

