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

CRAIG SHEETS,                        )
        Plaintiff,                   )         C.A. NO. N14C-03-010 VLM
                                     )
                 v.                  )
                                     )
QUALITY ASSURED, Inc., d/b/a         )
SERVICE MASTER OF                    )
BRANDYWINE VALLEY, Inc.,             )
        Defendant,                   )

                        MEMORANDUM OPINION

                           Submitted: June 9, 2014
                         Decided: September 30, 2014

                  Upon Consideration of Defendant’s Motion
                  For Judgment on the Pleadings, DENIED




Kevin William Gibson, Esquire, Gibson & Perkins PC, Wilmington, DE, Attorney
for Plaintiff.

Joseph Scott Shannon, Esquire, and Artemio C. Aranilla Jr., Esquire, Marshall
Dennehey Warner Coleman & Goggin, Wilmington, DE, Attorneys for Defendant.




MEDINILLA, J.
                                 I.      INTRODUCTION


       This action, brought by Plaintiffs Craig and Valerie Sheets (“Plaintiffs”),

arises from a series of allegedly negligent events that began when Waterseal, Inc.

(“Waterseal”) applied mold and mildew retardant to their home.                        Defendant

Quality Assured, Inc. (“Defendant”) was hired by Plaintiffs’ homeowner’s

insurance to remediate the effects of the original Waterseal application. Alleging

that Defendant’s remediation efforts were negligent, plaintiffs filed suit. 1 The

parties entered into settlement negotiations.             Plaintiffs allege that the parties

reached a settlement on all claims, and brought suit to seek enforcement of said

agreement. In response, Defendant asserts that the alleged settlement agreement is

unenforceable as a matter of law and moves for Judgment on the Pleadings.

Because it is necessary to look outside the pleadings to resolve disputed issues in

this case, the motion is DENIED.


             II.     FACTUAL AND PROCEDUAL BACKGROUND


       In January 2006, Waterseal applied waterproofing to Plaintiffs’ home in an

allegedly negligent manner. Waterseal’s insurance carrier sub-contracted with

Defendant to remediate the effects of the purported damages caused by Waterseal.

Plaintiffs allege that Defendant’s efforts actually made the problem worse.

1
  For reasons that are not germane to the current motion, the Plaintiffs were unable to pursue
claims directly against Waterseal.
                                                1
      In March, 2012, Plaintiffs’ counsel instituted settlement negotiations with

Michael Spear (“Spear”), a claims representative for Defendant’s insurance carrier.

On September 19, 2012, following oral negotiations, the following email exchange

occurred between Spear and Plaintiffs’ counsel:


                    From: Spear, Michael
                    Sent: Wednesday, September 19, 2012 11:14 AM
                    To: Kevin Gibson
                    Subject:     Sheets
                    20k – offer good until COB on 9/26/12


                    From: Kevin Gibson
                    Sent: Thursday, September 20, 2012 3:08 PM
                    To: ‘Spear, Michael’
                    Subject:   RE: Sheets
                    Accepted. Do you want me to do the Release?


      Plaintiffs’ counsel drafted a release, which included signature blocks to

release the claims of Plaintiffs’ three children.     Spear responded and advised

Plaintiffs’ counsel that the Plaintiffs would need to file a Rule 133 petition in order

to enable the Court to approve the settlement of the minors’ claims. Plaintiffs’

counsel disagreed, stating that (1) the settlement agreement did not include the

children; and (2) Plaintiffs did not want to incur the additional expenses associated

with a Rule 133 Petition.


      On May 22, 2013, Plaintiffs filed an action against Defendant in the

Delaware Court of Chancery seeking specific enforcement of the settlement
                                          2
agreement. The Court of Chancery determined that the relief sought by Plaintiffs

was not equitable in nature and dismissed the action on February 26, 2014, with

leave for Plaintiffs to refile in this Court.


       On March 3, 2014, Plaintiffs initiated the instant action. On April 1, 2014,

Defendant filed an Answer and moved for Judgment on the Pleadings. After

consideration of the written and oral arguments of the parties, the Court finds that

Judgment on the Pleadings is not appropriate for the reasons set forth below.


                              III.   PARTIES’ CONTENTIONS


       Defendant argues that the email exchange between the parties was not a

contract because (1) it lacked the necessary material terms; (2) there was no

meeting of the minds, and (3) the contract was not supported by valid

consideration. Specifically, the “20k offer” stated in the e-mail was ambiguous as

to whether it covered the parents’ claims, the children’s claims, or both. 2 As such,

the parties never agreed upon what claims were covered by the “offer.” Defendant




2
  Defendant’s Opening Brief at 11 (citing Complaint at ¶17). Defendant notes that there are
inconsistencies in the Complaint and the Release drafted by Plaintiffs’ counsel. Defendant
asserts that settlement negotiations collapsed because of disagreement over whether the children
had viable personal injury claims. While the Complaint and Release purport to release
Defendant from liability for those potential claims, Plaintiffs concede that the children never
suffered personal injury, and that such a claim was never covered in the agreement. Because this
argument requires consideration of matters outside the pleadings, this Court reserves comment
until it is properly presented.
                                                3
argues that, absent those material terms, the email exchange cannot constitute a

bargained-for exchange of consideration reflecting a meeting of the minds.


       Plaintiffs claim that the e-mail exchange represents the parties’ agreement to

release Defendant of all liability with respect to the negligent mold remediation of

Plaintiffs’ home. Plaintiffs argue that the children’s claims were never at issue,

and thus never discussed during settlement negotiations. 3 Accordingly, no material

terms were lacking because the parties understood what “20k offer” meant at the

time of the email exchange. Plaintiffs therefore oppose the motion for Judgment

on the Pleadings and argue an enforceable agreement existed between the parties.


                            IV.    STANDARD OF REVIEW


       A party may move for judgment on the pleadings after the pleadings are

closed, but within such time as not to delay trial. 4 For purposes of considering a

motion for judgment on the pleadings, all facts and reasonable inferences must be

construed in favor of the non-moving party. 5 “A motion for judgment on the

pleadings should be granted if the movant establishes that, based on the pleadings,

there are no material issues of fact and that he is entitled to judgment as a matter of
3
  In support, Plaintiffs have submitted a letter from a doctor indicating that their children have
suffered no personal injury as a result of the negligent remediation. See Plaintiffs’ Response at
9. To the extent that extrinsic evidence must be considered before this Court decides the merits
of this case, consideration is reserved until the record is more fully developed on this issue.
4
  Del. Super. Ct. Civ. R. 12(c).
5
  Silver Lake Office Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at *6 (Del. Super.
Jan. 17, 2014).
                                                4
law.” 6 If the allegations in the pleadings show a dispute of material fact, the

motion should not be granted.7


                                     V.      DISCUSSION

          Under Delaware law, contract formation is a question of fact. 8                    Three

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

intent of the parties to be bound by it; (2) sufficiently definite terms; and (3)

consideration.9       Unless it falls within the ambit of the Statute of Frauds, an oral

agreement is perfectly enforceable so long as these elements are proven by a

preponderance of the evidence.10 A contract is formed when it is reasonable to

conclude, based on the objective manifestations of assent and the surrounding

circumstances, that the parties intended to be bound to their agreement on all

essential terms. 11         To determine whether a contract was formed, overt




6
  Wilmington Sav. Fund Soc., F.S.B. v. Meconi, C.A. 89L-MR-25-1-MT, 1989 WL 124888 (Del.
Super. Oct. 3, 1989) (citation omitted).
7
  Atlantic Millwork Corp. v. Harrington, 2002 WL 31045223, at *1 (Del. Super. Sept. 12, 2002).
8
  See Universal Products Co. v. Emerson, 179 A. 387 (Del. 1935) (charging the jury to find
whether a contract was formed based on the parties’ communications); Chrysler Corp. v.
Quimby, 144 A.2d 123, 132 adhered to on reh'g, 144 A.2d 885 (1958) (“[W]hether in any
particular case involving oral negotiations it is ‘clearly understood’ that the proposed contract is
tentative . . . is a question for the jury.”).
9
  Carlson v. Hallinan, 925 A.2d 506, 524 (Del. Ch. 2006) opinion clarified, CIV.A. 19808, 2006
WL 1510759 (Del. Ch. May 22, 2006) (citation omitted).
10
   Restatement (Second) of Contracts § 4 (1981).
11
     Schwartz v. Chase, 2010 WL 2601608 (Del. Ch. June 29, 2010) (internal citations omitted).
                                                 5
manifestations of assent, and not subjective intent, control the result. 12 When

construing the meaning of an oral contract, a Court must therefore look to

surrounding circumstances and the parties’ course of dealing in order to ascertain

their intent.13


       Viewing the facts in a light most favorable to Plaintiff as the non-moving

party, this Court finds that it is reasonable to conclude that the parties had come to

a mutual understanding about the resolution of Plaintiffs’ claims when Defendant

extended an email with the “20k offer.” The parties agree that the email was sent

after protracted settlement negotiations. It was specific enough to include a date

and time when the “offer” would lapse. There are material questions of fact as to

the context of the email exchange that require resolution before this Court can rule

on the enforceability of the contract as a matter of law.


       The parties’ briefing and oral argument focused heavily on the adequacy of

the email exchange as a complete integration of the alleged settlement agreement.

This Court notes that “an agreement to settle a lawsuit, voluntarily entered into, is




12
   Loppert v. WindsorTech, Inc., 865 A.2d 1282 (Del. Ch. 2004) aff'd sub nom. Windsortech, Inc.
v. Loppert, 867 A.2d 903 (Del. 2005).
13
   Carlson, 925 A.2d at 524.
                                               6
binding upon the parties, whether or not made in the presence of the court, and

even in the absence of a writing.”14 Under Delaware law,


          Where all the substantial terms of a contract have been agreed
          on, and there is nothing left for future settlement, the fact,
          alone, that it was the understanding that the contract should be
          formally drawn up and put in writing, did not leave the
          transaction incomplete and without binding force, in the
          absence of a positive agreement that it should not be binding
          until so reduced to writing and formally executed. 15

If material facts concerning the existence or terms of an agreement to settle are in

dispute, courts should not summarily enforce a settlement agreement absent an

evidentiary hearing.16


      In the instant case, whether an enforceable contract is a material question of

fact that, at this juncture, must be decided on the merits. While Defendant relied

solely on the email exchange between the parties, the pleadings give rise to a

reasonable inference that an oral agreement to settle their dispute existed between

them. Therefore, the email exchange was merely a partial integration of that

agreement.




14
   Rohm and Haas Elec. Materials, LLC v. Honeywell Intern., Inc., 2009 WL 1033651, at *4
(D.Del.2009) (quotations and citation omitted).
15
   Loppert v. WindsorTech, Inc., 865 A.2d 1282, 1287 (Del. Ch. 2004) aff'd sub nom.
Windsortech, Inc. v. Loppert, 867 A.2d 903 (Del. 2005)
16
   See Maya Swimwear Corp. v. Maya Swimwear, LLC, 855 F. Supp. 2d 229, 234 (D. Del. 2012)
(quoting Garabedian v. Allstates Eng'g Co., 811 F.2d 802, 803 (3d Cir.1987)).
                                            7
                            VI.   CONCLUSION

      Based on the foregoing reasons, Defendant’s Motion for Judgment on the

Pleadings is DENIED.

      IT IS SO ORDERED.
                                           /s/ Vivian L. Medinilla
                                           Judge Vivian L. Medinilla


cc: Prothonotary




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