      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY


DEERE & COMPANY, a Delaware                 )
corporation,                                )
                                            )
            Plaintiff,                      )
                                            )
       v.                                   )C.A. No. N13C-07-330 MMJ
                                            )CCLD
EXELON GENERATION                           )
ACQUISITIONS, LLC, a Delaware               )
limited liability company,                  )
                                            )
            Defendant.


                            Submitted: June 11, 2015
                             Decided: July 13, 2015

                Upon Deere & Company’s Motion for Reargument
                                GRANTED

                         MEMORANDUM OPINION

Peter J. Walsh, Jr., Esq. (argued), Matthew F. Davis, Esq., Jacob R. Kirlman,
Esq., Potter Anderson & Corroon, LLP, Attorneys for Plaintiff

Geoffrey A. Kahn, Esq. (argued), David J. Margules, Esq., Ballard Spahr, LLP,
Attorneys for Defendant




JOHNSTON, J.
                                 PRIOR RULINGS

      The Complaint of Deere & Company alleged breach of contract, breach of

the implied covenant of good faith and fair dealing, and unjust enrichment. The

dispute arises out of an August 30, 2010 purchase agreement (the “Agreement”).

Upon the motion of Defendant Exelon Generation Acquisitions, LLC, the Court

dismissed Deere’s breach of the implied covenant of good faith and fair dealing

and unjust enrichment claims. The Court ruled:

             Finally, Exelon moves to dismiss Deere’s claim for
             unjust enrichment. Exelon contends that Deere’s claim
             for unjust enrichment is barred because the Purchase
             Agreement governs the parties’ relationship and the
             matter in dispute. Unjust enrichment is “the unjust
             retention of a benefit to the loss of another, or the
             retention of money or property of another against the
             fundamental principles of justice or equity and good
             conscience.1 When an express, enforceable contract
             controls the parties’ relationship, a claim for unjust
             enrichment is not available because the contract itself is
             the measure of the parties’ rights.2

      Exelon asserted two counterclaims – recoupment and unjust enrichment.

Deere moved to dismiss both counterclaims.

      By opinion dated, November 10, 2014, this Court held:

             Deere relies upon Deere v. Exelon, this Court’s March 7,
             2014 opinion dismissing Deere’s unjust enrichment claim
             because the Agreement governed the parties’ relationship

1
  Kuroda v. SPJS Holdings, L.L.C., 971 A.2d 872, 891 (Del. Ch. 2009).
2
  Deere & Co. v. Exelon Generation Acquisitions, LLC, 2014 WL 904251, at *5 (Del. Super.)
(citing Kuroda, 971 A.2d at 891).
                                           2
              and the matter, the payment of the earn-out, in dispute.3
              Exelon’s claim for unjust enrichment is substantially
              different from Deere’s. In Deere, the matter in dispute
              was payment of the earn-out for completion of the
              Blissfield Wind Project.4 Payment of the earn-out is
              expressly addressed by the parties in Section 2.6(a)(iii) in
              the Agreement.5 Here, the matter in dispute, the offset of
              any recovery by the expense Exelon allegedly incurred to
              complete the wind project in Gratiot County, is not
              addressed in the Agreement. The Agreement does not
              contain a provision addressing the parties’ obligations in
              the event that the Blissfield Wind Project could not be
              developed in Lenawee County. I find that Exelon’s
              unjust enrichment claim has sufficient merit to survive a
              motion to dismiss.6

                             PARTIES CONTENTIONS

       Deere now moves for reargument.                Deere contends that the Court

misapprehended the facts underlying Exelon’s claim and the purpose of Section

2.6(b) of the Agreement. Deere argues that Section 2.6(b) of the Agreement places

the burden of continuing development of the Blissfield Wind Project, including the

risk of increased or unforeseen cost, on Exelon.             Therefore, the $10 million

expended by Exelon in relocating the Blissfield Wind Project to Gratiot County

was an expenditure contemplated by Section 2.6(b) and cannot be recovered under

an unjust enrichment theory.



3
  Deere, 2014 WL 904251, at *5.
4
  Id.
5
  Id. at *1.
6
  Deere & Co. v. Exelon Generation Acquisitions, LLC, 2014 WL 6674471, at *4 (Del. Super.).
                                             3
      Exelon argues that the Court was correct in denying Deere’s Motion to

Dismiss Exelon’s unjust enrichment claim. The Court found that the Agreement

does not address Exelon’s obligations in the event that the Blissfield Wind Project

was unable to be developed in Lenawee County. Exelon contends that it has a

viable claim for unjust enrichment. Exelon claims that the $14 million earn-out

provision triggered by Section 2.6(a) of the Purchase Agreement is subject to a set-

off for the $10 million Exelon spent relocating the Blissfield Wind Project to

Gratiot County.

                           REARGUMENT STANDARD

      The purpose of moving for reargument is to seek reconsideration of findings

of fact, conclusions of law, or judgment of law.7 Reargument usually will be

denied unless the moving party demonstrates that the Court overlooked a precedent

or legal principle that would have a controlling effect, or that it has

misapprehended the law or the facts in a manner affecting the outcome of the

decision. “A motion for reargument should not be used merely to rehash the

arguments already decided by the court.” 8




7
 Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (1969).
8
  Wilmington Trust Co. v. Nix, Del. Super., 2002 WL 356371, Witham, J. (Feb. 21, 2002);
Whitsett v. Capital School District, Del. Super., C.A. No. 97C-04-032 Vaughn, J. (Jan. 28,
1999); Monsanto Co. v. Aetna Casualty & Surety Co., Del. Super., C.A. No. 88-JA-118,
Ridgeley, P.J. (Jan. 14, 1994).
                                            4
                                     ANALYSIS

      In the March 7, 2014 Opinion, the Court ruled that if the Agreement governs

the payment of the disputed earn-out, the unjust enrichment cause of action cannot

stand. In the November 10, 2014 Opinion, the Court reasoned that Exelon’s unjust

enrichment claim should not be dismissed because the Agreement does not address

the parties’ obligations in the event that the Blissfield Wind Project could not be

developed in Lenawee County.

      Upon reconsideration, the Court finds that Deere was correct to call attention

to the inconsistency between the Court’s two opinions. Section 2.6(b) of the

Agreement provides that Exelon was required to use “commercially reasonable

efforts” to develop and complete the Blissfield Wind Project. Section 2.6(b) states

that “the details and manner of such development efforts and the schedule therfor

[sic] shall be within the sole discretion of [Exelon].”

      A determination must be made as to whether or not the Agreement applies to

development of the project, including relocation from Lenawee County to Gratiot

County. If the Agreement applies, the earn-out provision of Section 2.6(a) would

be triggered and Section 2.6(b) would govern the expenses incurred by Exelon in

relocating the Blissfield Wind Project to Gratiot County. If the Agreement does

not apply, the Section 2.6(a) earn-out provision would not be triggered, and




                                           5
therefore, Exelon’s unjust enrichment claim would not apply and would be

rendered irrelevant.

      THEREFORE, Plaintiff’s Motion for Reargument is hereby GRANTED.

Defendant’s Counterclaim for unjust enrichment is hereby DISMISSED.

      IT IS SO ORDERED.



                                             /s/ Mary M. Johnston__________
                                             The Honorable Mary M. Johnston




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