       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


MILLCREEK SHOPPING CENTER, LLC, )
a Delaware limited liability company,   )
                                        )
                           Plaintiff,   )
                                        )
        v.                              ) C.A. No. N13C-11-145 PRW
                                        )
JENNER ENTERPRISES, INC.,               )
a Delaware corporation, MICHAEL P.      )
LEVITSKY and JANET LEVITSKY,            )
                                        )
                            Defendants. )


                               Submitted: July 15, 2016
                                Decided: July 19, 2016

                                       ORDER

         Upon Defendant Janet Levitsky’s Motion for Summary Judgment,
                                  DENIED.

      This 19th day of July, 2016, upon consideration of the Defendant Janet

Levitsky’s Motion for Summary Judgment (D.I. 80), the reponse thereto (D.I. 82),

movant’s reply (D.I. 84), the Commissioner’s Report and Recommendation that

Janet Levitsky’s Motion for Summary Judgment be DENIED (D.I. 85), and the

record in this case, it appears to the Court that:

      (1)    In this action Plaintiff Millcreek Shopping Center, LLC (“Millcreek”),

the Landlord, seeks damages against Jenner Enterprises, Inc. (“Jenner”), the

Tenant, for Jenner’s breach of contract involving a commercial real property lease
for an approximately 5,220 square foot rental suite in the Millcreek Shopping

Center located on Kirkwood Highway in Wilmington, Delaware (the “Rental

Unit”).

      (2)      A lease agreement was entered into on October 17, 2000, for the

Rental Unit (the “October 17, 2000 Lease Agreement”). As an inducement to the

Landlord to enter into the October 17, 2000 Lease Agreement, Defendants Michael

P. Levitsky and Janet Levitsky each executed a personal guaranty (“the Personal

Guaranty”) guaranteeing Jenner’s full and complete performance of the October

17, 2000 Lease Agreement. The Personal Guaranty was executed the same day as

the October 17, 2000 Lease Agreement and was attached to, and made a part of,

that lease agreement.

      (3)      Millcreek now seeks to hold each of these individuals liable under the

Personal Guaranty as a result of Jenner’s breach of contract.

      (4)      Following oral argument on Millcreek’s Motion for Summary

Judgment, 1 Millcreek and Defendants Jenner Enterprises and Michael Levitsky

agreed, and the Court ordered, that the amount of money damages incurred by

Millcreek as a result of Jenner’s breach of the lease would be decided by binding

arbitration.




1
      Pltf. Mot. for Summ. Judg. (D.I. 31)
                                             -2-
       (5)   In addition to the issue of the amount of damages due Millcreek, there

remained an issue raised during those summary judgment proceedings of

Defendant Janet Levitsky’s personal liability for those damages by virtue of the

Personal Guaranty found in the original October 17, 2000 Lease Agreement.2

Janet Levitsky opposed Millcreek’s application for summary judgment as to her

personally, claiming that she was due summary judgment on this issue. 3 Millcreek

claimed that Janet Levitsky is liable for any damages arising from the breach due

to her personal guaranty. 4

      (6)    The damages and personal liability issues were referred to Superior

Court Commissioner Lynne M. Parker for: (a) arbitration as to the damages; and

(b) in accordance with 10 Del. C. § 512(b) and Superior Court Civil Rule 132, for

proposed findings of fact, conclusions of law, and recommendations for the

disposition of the issue of Janet Levitsky’s personal liability. 5




2
      Exh. 2 to Pltf. Open. Brf. at 14 (D.I. 36).
3
      See Def. Janet Levitsky’s Opp. to Pltf. Mot. for Summ. Judg. (D.I. 41).
4
      See Pltf. Rep. Brf. at 8-15 (D.I. 44).
5
      Order Referring to Commissioner (D.I. 59). On March 1, 2016, Ms. Levitsky filed her
own summary judgment motion on the personal liability issue. Def. Janet Levitsky’s Mot. for
Summ. Judg. (D.I. 80).

                                               -3-
      (7)     The Commissioner filed her Report and Recommendation on June

30, 2016. The Commissioner recommended that the Court deny Ms. Levitsky’s

Motion for Summary Judgment. 6

      (8)     “Within 10 days after filing of a Commissioner’s proposed findings of

fact and recommendations . . . any party may serve and file written objections.” 7

Neither party has filed an objection to the Commissioner’s Report and

Recommendation.

      (9)     The     Court    accepts,   in     whole,   the   findings   of   fact   and

recommendations made by the Commissioner.8

      NOW THEREFORE, after careful and de novo review of the record in this

action, and for the reasons stated in the Commissioner’s Report and

Recommendation of June 30, 2016, Defendant Janet Levitsky’s Motion for

Summary Judgment is DENIED.

                                     SO ORDERED this 19th day of July, 2016.

                                /s/ Paul R. Wallace
                                PAUL R. WALLACE, JUDGE
cc:    All counsel via File & Serve

6
       Millcreek Shopping Center, LLC v. Jenner Enterprises, Inc., 2016 WL 3752382, at * 9
(Del. Super. Ct. June 30, 2016) (Comm. Rep. and Recommendation) (“Janet Levitsky, by her
own conduct in binding Jenner to the continuation/renewal of the October 17, 2000 Lease
Agreement, also bound herself on the Personal Guaranty guaranteeing the full performance
of Jenner's contractual obligations under that lease agreement.”).
7
      Super. Ct. Civ. R. 132(a)(4)(ii).
8
      Id. at 132(a)(4)(iv).
                                               -4-
