IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ROBERT DUNCAN, :
: Plaintiff, : K16C

- 12

- 020 JJC

: In and For Kent County

v. :

: STTCPL, LLC, SERVICE ENERGY, : LLC, and COASTAL PUMP AND : TANK, INC., :
: Defendants. :
:

Submitted: December 9, 2019 Decided: February 19 , 2020

MEMORANDUM OPINION & ORDER
Upon Defendants’ and Plaintiff’s Motion s for Summary Judgment

– GRANTED
Patrick C. Gallagher, Esquire, Jacobs & Crumplar, P.A.
, Wilmington , Delaware, Attorney for Plaintiff.

Mark F. Dunkle , Esquire, Elio Battista, Jr., Esquire, & Kyle F. Dunkle, Esquire, Parkowski, Guerke & Swayze, P.A., Wilmin gton, Delaware, Attorney for Defendant s Service Energy, LLC, and STTCPL, LLC

.
Kevin J. Connors , Esquire, Marshall D ennehey W arner C oleman & G oggin
, Wilmington, Delaware, Attorney for Defendant Coastal Pump and Tank, Inc

.

Clark, J.2

Before the Court are a motion for summary judgment filed by Defendants
STTCPL
, L.L.C and Service Energy
, L.L.C (hereinafter collectively “ Service Energy ”), 1 and a motion for summary judgment filed by Defendant Coastal Pump & Tank, Inc. (hereinafter “Coastal”) . Plaintiff Robert Duncan also files a cross

- moti on for partial summary ju dgment

. Combined, these motions turn on four principal
issues. First, they center on the enforceability of a 2009 Settlement Agreement and
Release of Claims ( the “2009 Agreement”) and its impact on who should pay for
environmental contamination at a Harrington gas station (the “Site”)

. Second, the y

turn o n whether Mr. Duncan
, or separately Service Energy in its counterclaim , have
identified sufficient evidence of record to support their competing damages claims

. Third, Mr. Duncan’s motion for partial summary judgment focuses on whether Mr. Duncan’s breach of the 2009 agreement excused Service Energy ’s payment of rent
due under a lease. Fourth, the parties ’ competing claims for attorneys’ fees require the Court to identify who was the prevailing party. On this record, s ummary judgment must be GRANTED in favor of Service Energy and against M r. Duncan with regard to his contract claims a nd direct claims for negligence

. Service Energy’s counterclaim for ind emnification under the 2009 Agreement also fails on this record because Service Energy i dentifies no evidence that supports its damages claim to a reasonable degree of certainty. Furthermore,
Coastal’ s motion for summary judgment regarding Mr. Duncan’s ne gligence claim
is GRANTED because Mr. Duncan presents no evidence of monetary damage. Finally, Mr. Duncan ’s breach of the 2009 Agreement did not excuse Service Energy’s obligation to pay rent under what is a separate contract

. As a result , Mr

. Duncan’s motion for partial summary judgment regarding rent due is also
GRANTED

. All parties must bear their own fees and costs.

1 Althoug h the Court collectively referred to these parties as “STTCPL” in its 2017 opinion, it now refers to them collectively as “ Service Energy. ”3 I. F acts of Record
The facts referenced herein are those of record

. Because there are cross

moti ons for summary judgment
, th e y are viewed in the light m ost favorable to the

non

- movant on each issue.
In 1994 , Mr. Duncan leased a gas station at the intersection of U.S. Route 13
and Delaware Route 14 in Harrington to New Dawn Energy (hereinafter “New Dawn”) 2 On January 4, 2000, Service Energy assumed New Dawn ’s lease. When doing so, Service Energy
, Mr. Duncan , and New Deal signed an Assignment and Lease Modification Agreement (herein after “the 2000 A greement”). In the 2000 Agreement, Mr. Duncan accepted responsibility for envi ronmental damage to the
Site prior to the start of Service Energy ’s tenancy in January 2000

. 3 On the other
hand , the orig ina l lease contained a provision that m ade Service Energy responsible
for an y environmental damage to the land after Service Energy became the tenant. 4 When assuming the lease, Service Energy purchased five existing underground

sto rage tanks (“USTs”) and gas dispensers from New Dawn

. In February 2000, Service Energy retrofitted the property. It removed le ftover petroleum from the USTs and replaced the lines running from the USTs to the dispensers. Service Energy’s contractor then sampled the soil surrounding the dispensers and the USTs. The sampling revealed release d petroleum

. Delaware ’s Department of Natural Resources and Environmental Control ( hereinafter

2 Pl. Opening Brief, Ex. A, at 8:13

– 9:11. 3 Def. Service Energy App’x to Opening Brief, at A0310

– 11 (providing “[t]he Landlord shall be responsible for and shall hold harmless STTCPL ... from any claims for environmental damage which has occurred prior to the time that they have become a tenant on the property.” ). 4 See Pl. App’x to Answering Brief, at B01089 ¶ 20 (providing that “[l]essee will indemnify and hold Lessor harmless against, all claims, demands and causes of action, including reasonable costs expenses and attorney fees of Lessor incident thereto, for injury to or death of any person or loss of or damage to any property arising from Lessee’s tenancy of the premises and not caused by the negligence omission, intentional act or breach of duty by Lessor or its agents”)4

“ DNREC ”) then opened Project K0009122 to investigate the S ite

. 5 Neither the parties n or DNREC further pursued Project K0009122 for seven years. After seven years of inactivity, DNREC sent Service Energy a le tter renewin g its demand that Service Energy investigate the petroleum release. Service Energy then performed a second UST retrofit in early 2008 after its testing showed that its cathode protection system needed replacement. Once again, Service Energy hired a contractor to take samples. T he results revealed
contamination. DNREC then opened a second investigation , Project K080403 6

. In

response, Service Energy hired contractors to re test the groundwater and soil . Those
results revealed the nature of the contamination . It included benzene, toluene, ethylbenzene, xylenes (“BTEX”), methyl tertiary butyl ether (“ MTBE ”) , and tertiary amyl methyl ether (“TAME”) in the groundwater, 6 benzene and MTBE at various depths in the soil, 7 and tetraeth yl lead (“ TEL”) in the soil
, which was a lead

- based fuel banned by the EPA in 1996. 8 At that point
, Service Energy sought indemnification from Mr. Duncan under the 2000 Agreement. It alleged that all contamination on the Site pre

- dated 2000

. With its demand , Service Energy provided Mr. Duncan a testing report from one of its contractors, Atlantic Hydrologic, Inc. 9 Initially, Mr. Dunc an disputed responsibility. In response to Service Energy’s
demand , h e hired his own attorney and his own environmenta l consultant. 10 After doing so, he chose to settle with Service Energy. The parties then executed the 2009 Agreement. 11

5 Id. at A0191

– 92. 6 Id. at A0026. 7 Id. at A0025. 8 Id. at A0264

– 67

. 9 Id. at A0321

– 23. 10 Id. at A0324

– 25. 11 Id. at A0001

– 05.5

T he 2009 Agreement recited Service Energy and Mr. Duncan’s disagreement regarding the “extent, timing of, and responsibility for, the a lleged damage at the [ Site ]

. ” 12 After referencing this dispute, Mr. Duncan accepted “ responsibility for all costs, fees and expenses from [May, 12, 2009] forward for the further investigation and/or remediation and monitoring required by DNREC

. ” 13 He also agreed to “release Service Energy from any such future costs, fees and expenses relating thereto[.]” 14 The parties agreed to a “full and final settlement of any and all claims . . . relating to the further investigation and/or remediation and monitoring required by DNREC (Project ID’s K0009122 and K0804036)[.]” 15 In a separate paragraph, the 2009 Agreement also limited Mr. Duncan’s responsibility , in part, to : solely those environmental matters currently identified by DNREC and the remediation required by DNREC in regard thereto (including both the remediation currently required by DNREC and any future DNREC required remediation as to the currently id entif ied environmental issues). 16

Mr. Duncan then hired Advantage Environmental Consultants (“AEC”)

. After AEC’s tests confirmed c ontamination, AEC recommended, and DNREC accepted, 17 monthly and quarterly groundwater monitoring. In the short term, Mr.
Duncan to ok no further steps . DNREC then wrote Mr. Duncan in February 2011
, but he still took no action

. 18 On January 23, 2012, DNREC issued a Notice of Violation (hereinafter “2012 NOV”) to Mr. Duncan and Service Energy for projects

12 Id. at A0001. 13 Id. 14 Id. 15 Id. at A0003. 16 Id. 17 Id. at A0333. 18 Id. at A0334

– 37.6

K0009122 and K0804036

. 19 In response, Mr. Duncan directed AEC to conduct groundwater monitoring from June 2013 to December 2013. 20 T he monitoring

re confirmed contamination

. 21 By December 2013, Service Energy’s lease ended and it decided to remove
its five USTs. To do so, it hired Coastal. On December 8, 2013, Coastal removed
them and some of the contaminated soil that surrounded them

. A DNREC UST Closure Report confirmed that, upon removal, the tanks had no holes or leaks that
could have caused new contamination

. 22 In other words, no gas had leaked from
them.
After remov ing the USTs , Coastal placed the contaminated soil taken from
the pit s back into the then

- empty pit s

. Coastal finished filling the pits with new
uncontaminated soil that it brought to the Site

. The parties dispute who directed that
action. Conflicting testimony of record includes that : (1) Mr. Duncan directed
Coastal to place the soil back into the pit s after DNREC provided him three options
for handling the soil ; (2) Service Energy directed Coastal to refill the pit s with the
contaminated soil ; (3) DNREC told Coastal to do it ; and (4) Coastal decided itself to return the soil to the pits. Regardless of who directed the action , Coastal returned the contaminated soil to the pit s

. DNREC then opened a third investigation, Pr oject K1401002, based upon sampling taken during the USTs ’ removal.
After continued delay, DNREC assumed control of the S ite and hired its own

contractor to remediate it

. It cost DNREC $562,014

. On June 6, 2014, Service Energy and DNREC executed a settlement agreement that required Service Energy

19 Id. at A0338

– 42 (acknowledging the 2009 Agreement, but explaining that no additional investigation had taken place and that Mr. Duncan and Service Energy were both responsible parties by statute)

. 20 Id. at A0460. 21 Id.

22 Id. at A0422.7

to (1) pay DNREC $70,000
, and (2) withdraw the appeal it had filed regarding the
2012 NOV. 23 In addition to resolving issues r egarding the Site, the settlement also
released DNREC’s claims against Service Energy for its environmental liabilit y at two other gas station s: the Milford Soda Center and Smyrna Soda Center

. 24
Over a two year period
, Service Energy withheld $48,000 in rent for the Site

. After doing so, Service Energy notified Mr. Duncan that it applied this $48,000 to its $70,000 settlement with DNREC. 25 Apart from the $70,000 that Service Energy paid DNREC
, Mr. Duncan paid DNREC $ 250,000 to resolve its claim against him
for the remaining $492, 014 in remediation costs

. 26

Mr. Duncan ’s then sued Service Energy and Coastal. He hired an
environmental expert to offer an opinion identifying the time of the contamin ation
and the effects of Coastal’s return of the soil to the UST pit s . In response, Service Energy counter

- claimed for indemnification. Service Energy and Coastal then jointly hired their ow n expert

. Mr. Duncan’s expert, Anthony Grow, opines that Service Energy worsened
the contamination. Also , he opines t hat between 2000 and 2008, Service Energy failed (1) to notify Mr. Dun can that it discovered a release, or (2) to conduct any follow up investigation. 27 He further opines that the source of the contamination
discovered afte r 2000 came from Service Energy’s modifications to its dispenser
lines

. 28 With regard to the 2013 UST removals , Mr. Grow opines that Coastal
violated State and Federal regulations by returning contaminated soil to the pit s

. 29

23 Id. at A0343

– 44. 24 Id. at A0344 (releasing Service Energy from all claims of environmental damage “on the referenced Smyrna Soda Center, Milford Soda Center and Harrington Soda Center properties and all adjoining properties”). 25 Pl. Opening Br., Ex. E, at 90:1

– 93:13. 26 Pl. App’x to Answering Brief, at B0507:10

– 18. 27 Def. Service Energy App’x to Opening Brief, at A0504. 28 Id. 29 Id. at A0505.8

He claims that comingling contaminated soil in the amount of the volume of the
tanks removed with new fill increased remediation costs

. 30 Finally
, he contends that the study that Mr. Duncan and Service Energy relied upon before they executed the 2009 Agreement was misleading

. Namely, he opines that the study wrongly induced
Mr. Duncan to believe that he was the responsible party. 31 Service Energy and Coastal’s expert, Paul Miller, provides contrary opinions

. Primarily, Mr. Miller opines that : (1) all gasoline spills or leaks at the S ite occurred

pr ior to the 2009 Agreement; (2) there has been no gasoline r elease since the 2009 Agreement; (3) Service Energy and Coastal did not make the decision to return th e contaminated soil to the pit s ; and (4) they are not responsible for costs necessary to

remove the soil. 32 He also notes the presence of MTBE in the samples and opines
that its presence demonstrate that any gasoline release s must have occurred between 1979 and 2006, thereby predating the 2009 Agreement. 33 Finally
, he notes the
absence of ethanol in the samples that he says further confirms that there were no gasoline releases after 2006. 34

II. The Parties’ Arguments
A. Service Energy’s Motion for Summary Judgment
In its motion
, Service Energy first argues that the 2009 Agreement bars Mr

. Duncan’s environmental damage claim s, both in contract and negligence. It argues
that the 2009 A greement makes Mr. Duncan financially responsible for the
environme ntal contamination because the remediat ion costs came from the two projects referenced in the 2009 Agreement ( Project s K0009122 and K0804036 )

.

30 Id. at A0505

– 06. 31 Id. 32 Id. at A0036

– 37. 33 Id. at A0035. 34 Id.9

According to it, there is no evidence of record demonstrating environmental damage
that was un related to the se two DNREC projects

. Furthermore, Service Energy argues that the 2012 NOV ( which references a t hird project identified as K1401002 )
resulted solely from the delay in addressing the two enumerated projects referenced
in the 2009 Agreement . Accordingly, it argues that addressi ng the third DNREC project is also Mr. Duncan’s responsibility

. Finally , Service Energy seeks
reimbursement from Mr. Duncan for the amount it paid DNREC

— $70,000 less the $48,000 it withheld in rent

. Service Energy separately seeks summary judgment regarding Mr. Duncan’s negligence claim involving Coastal’s 2013 actions. It argues that (1) there is no
evidence that Coastal acted negligently when it r eturn ed the contaminated soil to the pit s in 2013
, and (2) Coastal was not Service Energy’s agent for purposes of vicarious liability. Finally, Service Energy argues that (3) Mr. Duncan’s claims independently fail because he identifies no evidence regarding the cost necessary to remedy Coastal’s alleged negligence.
Mr. Duncan seeks to avoid the 2009 Ag reement entirely

. Without the 2009 Agreement, Service Energy’s obligations w ould fall back to those of the 1994 m aster lease and the 2000 Agreement. In seeking to avoid the 2009 Agreement ’ s terms , he claims that he signed it because Service Energy misrepresent ed that the
contamination on the Site predated the 2000 Agreement. In the alternative
, he

argues that a mutual mistake as to t hat fact voids the 2009 Agreement

. Furthermor e, Mr. Duncan argues that his claims regarding the third DNREC project, K1401002
, are not barred by the 2009 Agreement. Specifically, he argues
that the harm identified as Project K1401002 resulted f rom the 2013 tank removal,
which is different than the harm identified by the first two DNREC projects. Finally, he argues that there are genuine disputes of fact regarding whether Coastal was an agent of Service Energy when it removed the USTs.10 B. Coastal’s Motion for Summary Judgment
Coastal seeks summary judgment dismissing Mr. Duncan’s negligence claims regarding its removal of the USTs in 2013. It argues that it owed Mr. Dunca n no duty , and if it did, it did not breach that duty. It also maintains that returning the soil

to the pit s was a DNREC authorized option

. Finally, Coastal argues that Mr. Duncan
identifies no evidence of record supporting his damages claim because there is no evidence of record regarding an increase in remediation costs caused by Coastal ’s

return of the contaminated soil to the pit s

. I n response, Mr. Duncan cites regulations that he alleges create duties that Coastal minimize the spread of environmental contamination. He also argues that conflicting expert opinions create a n issue of fact regarding Coastal’s breach of those
duties . He further emphasizes the conflicting testimony regarding who told Coastal
to return the contaminated soil to the pit s . Finally, he concedes that although he has

no expert opinion quantifying damages
, Coastal directly
, and Service Energy vicariously, are liable for all environmental harm to the Site because the 2013 alleged injury is indivisible when considered with the pre

- 2009 contamination

.

C. Mr. Duncan’s Motion for Partial Summary Judgment Mr. Duncan seeks summary judgment regarding his claim against Service Energy for unpaid rent. The parties’ lease set rent at $2,000 a month. H e argues that Service Energy unjustifiably withheld this rent for two years

. He emphasizes
that the 2000 Agreement (that incorporates the 1994 master lease) and the 2009 Agreement are two separate cont r acts. Accordingly, he maintains that Service Energy’s obligation to pay rent is not dependent up on his performance of the 2009 Agreement.11

In response, Service Energy argues that Mr. Duncan ’s breach of the 2009 Agreement excused its obligation to pay rent for the Site

. In so arguing, Service Energy seeks what would be the commercial equivalent of a repair and deduction remedy

. 35 Part and parcel of its opposition to Mr. Duncan’s rent claim, Service Energy also seeks an additional $22,000 from Mr. Duncan under the 2009 Agreement’s indemnification provision . That amount represents the difference between the $70,000 Service Energy paid DNREC and the $48,000 of diverted rent.

III. Standard of Re view Summary judgment is appropriate only if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. 36 The Court must view the evidence in the light most favorable to the non

- moving party. 37 The burden of proof is initially on the moving party. 38 However, if the movant meets his or her initial burden, then the burden shifts to the non

- moving party to demonstrate the
existence of material issues of fact. 39 The non

- movant's evidence of material facts in dispute mu st be sufficient to withstand a motion for judgment as a matter of law and to support the verdict of a reasonable jury. 40 When parties file cross

- motions for summary judgment, the standard for

sum mary judgment is the same

. 41 In this regard , “ the existence of cross

- motions for summary judgment does not act per se as a concession that there is an absence of
factual issues.” 42 Instead
, “ a party moving for summary judgment concedes the

35 C.f. 25 Del. C. § 5307 (providing the tenant remedy of repair and deduction in the residential landlord

- tenant context) . There is no commercial landlord

- tenant statutory equivalent. 36 Super. Ct. Civ. R. 56(c); Moore v. Sizemore , 405 A.2d 679, 680 (Del. 1979). 37 Brozak a v. Olson , 668 A.2d 1355, 1364 (Del. 1995). 38 Super. Ct. Civ. R. 56(e); Moore , 405 A.2d at 680 (Del. 1979). 39 Moore
, 405 A.2d at 681 (citing Hurtt v. Goleburn , 330 A.2d 134 (Del. 1974)). 40 Lum v. Anderson , 2004 WL 772074, at *2 (Del. Super. Mar. 10, 2004). 41 Total Care Physicians, P.A. v. O'Hara , 798 A.2d 1043, 1050 (Del. Super. Mar. 23, 2001)

. 42 Id.12

absence of a factual issue and the truth of the nonmoving party's allegation s only for the purposes of its own moti on.” 43 The party “ does not waive its right to assert that there are disputed facts that preclude summary judgment in favor of the other party.” 44 Thus, “cross

- motions for summary judgment are not the procedural equiva lent of a stipulation for a decision on a ‘paper record.’ ” 45 Nevertheless
, pursuant to Superior Court Civil Rule 56(h), where the parties file cross

- motions and

“ have not presented argument to the Court that there is an issue of fact material to
the disposition of either motion, the Court shall deem the motions to be the equivalent of a stipulation for decision on the merits based on the record submitted
with the motions .” 46
IV. Discussion The parties’ cross

- motions require the Court to resolve four princi pal issues. First, the Court must determine if it can resolve
, at the summary judgment stage
, whether the 2009 Agreement is enforceable . I f it can resolve the issue at this stage
and if the 2009 Agreement is enforceable, t he Court must determine the extent to
which it bars Mr. Duncan’s claims

. Second, the Court must determine if either Mr. Duncan or Service Energy separately dem onstrate material issues of fact regarding an amount of damages. Finally, because Mr. Duncan and Service Ener gy both seek attorneys’ fees for successful ly enforcing the agreement , the Court must determine
whether either party , or both parties, may recover attorneys’ fees

.

43 Id. 44 Id. 45 Lukk v. State Farm Mut. Auto. Ins. Co. , 2014 WL 4247767, at *3 (Del. Super. Aug. 27, 2014) (quoting Empire of America Relocation Servs., Inc. v. Commercial Credit Co.
, 551 A.2d 433, 435 (Del. 1988) )

. 46 Super. Ct. Civ. R. 56(h); Food & Water Watch v. Delaware Dep't of Nat. Res. & Envtl. Control
, 2019 WL 6481888, at *2 (Del. Super. Nov. 27, 2019)

.13

A. There is no genuine dispute of fact regarding the 2009 Agreement’s enforceability; the agreement bars Mr. Duncan’s claims for contamination arising out of p rojects K0009122 and K0804036 and Mr. Duncan identifies no eviden ce of new contamination that is not related to thos e two projects

. The Court examined the 2009 Agreement when it denied Service Energy’s
motion to dismiss. 47 Mr. Duncan’s clai m survived that motion because he alleged
there was new contamination that the 2009 Agreement did not release. 48 In its decision, the Court alternatively reviewed the 2009 Agreement’s potentially conflicting p rovisions for ambiguity

. The now fully developed evidentiary re cord
, at the summary judgment stage
, provides necessary context. Given this re cord and

a further review of the agreement’s terms, Mr. Duncan’s environmental damages
claims do not survive summary judgment

. T he 2009 Agreement is un ambiguous
, and Mr. Duncan identifie s no evidence of new contamination apart from that for
which he assumed responsib ility

. Under Delaware law, courts “ adhere [] to the objective theory of contracts, i.e.,
a contract's construction should be that whic h would be understood by an objec tive, reasonable third party.” 49 When interpreting a contract, courts focus on the parties ’
intent as demonstrated by the agreement’s four corners: when doing so, it construes the contract as a whole, giving effect to all its provisions if possible

. 50 Namely, the

c ontract ’s terms control “ when a reasonable person in the parties’ position s would have no expectations inconsisten t with the contract language.” 51 The courts may use extrinsic evidence to interpret the intent of the parties only if the terms are

47 Duncan v. STTCPL, LLC , 2017 WL 816477, at *4 (Del. Super. Feb. 28, 2017)

. 48 Id. at *6. 49 Salamone v. Gorman , 106 A.3d 354, 367

– 68 (Del. 2014) (quoting Osborn ex rel. Osborn v. Kemp , 991 A.2d 1153, 1159 (Del. 2010)). 50 GMG Capital Inv., LLC. v. Athenian Venture Partners I, L.P. , 36 A.3d 776, 779 (Del. 2012). 51 Eagle Indus., Inc. v. DeVilbiss Health Care, Inc. , 702 A.2d 1228, 1232 (Del. 1997).14

ambiguous. 52 A dispute over a contract’s terms does not alone make a contract ambiguous. 53

F our paragraphs in the 2009 Agreement are primarily at issue

. They provide:

1. Duncan hereby assumes the responsibility for all further investigation and/or remediation and monitoring required by DNREC in connection with the alleged environment damage at t he Harrington location

.

. . . 3. Duncan hereby assumes the financial responsibility for all costs, fees and expenses relating to or arising out of all further required investigation and/or remediation and monitoring required by DNREC at the Harrington Location.

. . .
8. The parties hereby acknowledge that the terms of this Agreement have been completely read an d are fully understood and voluntarily accepted for the purpose of making a full and final settlement of any and all claims, demands, liabilities, attorneys’ fees, and/or costs which either party or his/her successors, heirs, and assigns may have had, may now have, or may in the future have relating to the further investigation and/or remediation and monitoring required by DNREC (Project ID’s K0009122 and K0804036) at the Harrington Location and for the express purpose of precluding forever any future or ad ditional claims arising out of the same except for those that may be related to the enforcement of this agreement.

. . .
9. The parties hereby acknowledge and agree that the responsibility and/or liability for environmental matters at the Harrington location assumed by Duncan under this Agreement is limited to solely those environmental matters currently identified by DNREC and the remediation required by DNREC in regard thereto (including both the remediation currently required by DNREC and any future DNREC

52 Id. 53 Town of Cheswold v. Cent. Del. Bus. Park , 188 A.3d 810, 820 (Del. 2018).15

required remediation as to the currently identified environmental issues ). 54

When giving eff

ect to all of these provision s , t he 2009 Agreement unambig uously released Mr. Duncan’s claims

. Namely
, he assumed responsibility
for DNREC identified matters as of the time he executed the 2009 Agreement . He
also accepted responsibility for any future investigation, remediation, or monitoring arising out of those same matters. 55 In other words, Mr. Duncan assumed full responsibility for all identified matters and future problems arising from the then

existing contamination. He retained only the right to seek indemnification for new contamination after 2009.
Mr. Duncan attacks the 2009 Agreement’s enforceability by alleging that
Service Energy induced him to sign it through misrepresentation. He also
alterna tively claims that he can avoid the 2009 Agreement because of the parties’

m utual mistake that the contami nation preceded the 2000 Agre ement. He amended his complaint to include these two c laims. Whe n doing so, he essentially raise d
affirmative defense s to Service Energy’s affirmative defense of release. With regard to misrepresentation , a contract is voidable if procured by misrepresentation, either fraudulent or innocent. 56 In order to avoid a contract on that basis , “ a party must demonstrate four elements: (1) that there was a misrepresentation; (2) that the misrepres entation was either fraudulent or material; (3) that the misrepresentation induced the recipient to enter into the contract; and (4)
that the recipient's reliance on the misrepresentation was reasonable. ” 57 Mr. Duncan
b ears the burden to demonstrate evidence sufficient to avoid the ef fects of the 2009

54 Def. Service Energy App ’x to Opening Brief, at A0002

– 03 (emphasis added)

. 55 Id. at A0003. 56 Alabi v. DHL Airways, Inc. , 583 A.2d 1358, 1361 (Del. Super. Aug. 1, 1990)

. 57 Id. at 1361

– 62 (citing 1 Restatement (Second) of Contracts, § 164) (emphasis added).16

Agreement

. He adequately demonstrates material issues of fact regarding the first

two elements of thi s claim. He does not , however, demonstrate a genuine issue of fact regarding the third or fourth el ement s

. For ease of reference, the Court will refer

to those two elements collectively as “reasonable reliance.” Here, no reasonable jury could find
, based on the evidence of record when considered in the light most favorable to Mr. Duncan
, that reliance upon Service Energy’s litigation position was reasonable. First, the alleged misrepresentation that
the contamination pre

- dated 2000 came in a settlement demand letter from Service Energy’s attorney. No reasonable person in Mr. Duncan’s position would ha ve blindly relied up on that representation

. In fact, he did not rely upon it. Rather , after
he received the letter, he hired his own env ironmental consultant and attorney who
reviewed the results that Service Energy provided . He had a full opportunity to
validate or contest those results

. Given such undisputed facts, no reasonable jury
could find that a person in Mr. Duncan’s position reasonably relied upon the
assertions made in a n attorney

- dra fted, one

- sided demand letter. Furthermore, the recitations in the 2009 Agreement also contradict Mr. Duncan’s assertion. It recites, in relevant pa r t, the following:
A. WHEREAS Duncan and Service Energy disagree as to the extent, time of, and responsibility for, the alleged environmental damage at the Harrington location . . .

. . . C

. WHER E AS Duncan and Service Energy wish to resolve their dispute concerning indemnification and respo nsibility. 58
This language in the 2009 Agreement directly contradicts Mr. Du ncan’s claim that he accepted and relied upon Service Energy’s testing and representation s that the contamination pre

- dated the 2000 Agreement. One doe s not re ly upon a statement that he or she disagrees with.

58 Def. Service Energy App’x to Opening Brief, at A0001.17

The sole evidence supporting Mr. Duncan’s misrepresentation claim is his

own testimony . It, however, is contradicted by all circumstances of record and the
terms of the 2009 Agreement. On balance, even if Mr. Duncan relied upon Service Energy’s position w hen deciding to settle in 2009 , no reasonable jury could find his
reliance to be reasonable

. In the alternative
, Mr. Duncan submits that he executed the 2009 Agreement
as the result of a mutual mistake

. A portion of the contract releases Mr. Duncan’s
claims. Although valid releases are generally upheld, “ a clear and unambiguous
release [may be set aside] where there is . . . [a] mutual mistake concerning the existence of a party's injuries .” 59 In order “[t] o establish a mutual mistake of fact, the plaintiff must show

. . . that (1) both parties were mistaken as to a basic assumption, (2) the mistake materially affects the agreed

- upon exchange of performances, and (3) the party adversely affected did not assume the risk of the
mistake. ” 60 The mutual mistake must exist at the time of contract formation, as well
as “ relate to a past or present fact material to the contract and not to an opinion respecting future conditions as a result of present facts .” 61

W ith regard to the efficacy of a release , if the party that asserts a mutual
mistake is aware of an “ indicia of injuries
, ” then a court will not i nvalidate the release because of a mistake regarding the nature or degree of injury

. 62 In other words, the m er e knowledge that an injury exists preclude s a finding of mutual
mistake in the context of a release’s enforceability

. 63 Furthermore
, “a mutual

59 Alvarez v. Castellon , 55 A.3d 352, 354 (Del. 2012) (citing Deuley v. DynCorp Int'l, Inc.
, 8 A.3d 1156, 1163 (Del. 2010) )

. 60 Hicks v. Sparks , 89 A.3d 476
, 2014 WL 1233698 , at *2 (Del. 2014) (TABLE). 61 Id. 62 Id. (describing the extent of a plaintiff’s knowledge necessary to preclude a mutual mistake claim in the personal injury and insurance context). 63 Hicks v. Doremus , 1990 WL 9542, at *2 (Del. Super. Jan. 8, 1990) (explaining that it is the knowledge of an injury’s existence that matters for a mutual mistake d efense, not knowledge of an injury’s extent or degree).18

mistake does not exist if the party assumed the risk of the mistake

. ” 64 A party

assume s the risk of the mistake when ( 1) the contract assigns the risk to the party
, or when (2) the party performs his or her obligations under the contract when aware of his or her limited knowledge with respect to the facts to which the mistake relates

. 65
Here, Mr. Duncan’s mutual mistake argument fails largely for the same reasons as his misrepresentation claim. Primarily, there can be no mutual mistake between the parties where they disagreed regarding the timing and ori gin of the
contamination . The 2009 Agreement specifi cally recognized the parties’ dispute . It represented a compromised resolution of that dispute. 66 If the parties disagree regarding a binary choice, such as whether contamination occurred before or after a
certain date , then only one of the parties is mis taken. In such an instance, there was

no mutual mistake. Furthermore, the undisputed record demonstrates Mr. Duncan’s knowledge of more than an “indicia of injuries” at the S ite. Although he may not have known the
extent of the contamination, the 2009 Agreement itself demonstrates that he knew
contamination was present and he nevertheless released Service Energy from responsibility for it. In this regard
, Mr. Duncan’s mutual mistake argument also fails
because he contractually assumed the risk for any such mistake. In fact, a primary purpose of the 2009 Agreement was to assign the risk to him.
Since neither misrepresentation n or mutual mistake invalidate the 2009 Agreement , it is enforceable

. 67 It released Mr. Duncan’s claims for all then

- existing
contamination and the future costs for remediating that contamination

.

64 Sparks
, 2014 WL 1233698, at *2

. 65 Id. (citing Restatement (Second) of Contracts § 154(a)

– (b) ). 66 See Def. Service Energy A pp’x to Opening Brief, at A0001 (providing that the parties “ disagree as to the extent, time of, and responsibility for, the alleged environmental damage at the Harrington location ” but “ wish to resolve their dispute concerning indemnification and responsibility ”).
67 Because the 2009 Agreement is enforceable, the Court need not ad dress Service Energy’s statute of limitation s argument.19

Accordingly, the Court must next turn to whether the evidence of record supports a reasonable inference that new contamination oc curred at the Site after 2009

. With regard to Service Energy’s prior motion to dismiss
, allegations in Mr. Duncan’s complaint that there was new contamination related to the 2012 NOV provided a conceivable basis for Mr. Duncan to recover at the Rule 12(b)( 6) stage

. 68 At the summary judgment stage, however, Service Energy now steps forward with
evidence that no new contamination occurred after 2009. The burden thus shifts to
Mr. Duncan to demonstrate a factual issue. In response, he identifies no facts of record that could support a reasonable jury’s finding that there was new
contamination.
Mr. Duncan claims that Coastal’s 2013 re

- filli ng of the pit s with the
contaminated soil constituted new contamination. The record, however, supports only a finding that all contaminants were on site prior to the 2009 Agreement

. T he
initial testing re sults from the Site prior to the 2009 Agreement revealed a deep, widespread petroleum release already present in the property’ s groundwater

. Furthermore , based upon chan ges in ch emical components and additives in gasoline, testing results support only an inference that the released gasoline was manufactured prior to 2009. Testing done after the 2009 Agreement and the 2012 NOV by Mr. Duncan, DNREC, and eventually BSTI, reflect the same conclusion

. Those results permit no inference of post

- 2009 environmental damage.
A lthough Mr. Duncan argues that the 2013 UST s removal constituted a new petroleum release requiring a new DNREC project, he identifies no evidence that the actual contaminants were anything other than those previously identified. Post

removal t esting of the USTs showed no holes or leaks in their structures that could

68 Duncan , 2017 WL 816477, at *6

.20

have permitted new petroleum release s

. 69 A lso, a s explained above, sampling results
from 2013 continued to show the presence of the same chemicals in the gasoline
, such as MTBE and TEL , which evidence its manufacture prior to 2009. In contrast
, there is no evidence of record that permits a reasonable inference th at an additional leak, spill, or release occurred during or after the 2013 UST s removal

. In summary, the record evidence does not support Mr. Duncan’s argument
that there was any new contamination at the Site that the 2009 Agreement did not
address

. E ven when viewed in the light most favorable t o Mr. Duncan, the facts provide only one reasonable inference : that Mr. Duncan released all contract claims
and direct negligence claims against Service Energy.

B. Although the 2009 Agreement provides a basis for Service Energy’s indemnification claim, Service Energy identifies no non - speculative evidence of damages spe cific to the Harrington Site

. Mr. Dunca n’s direct environmental damage claim s against Service Energy are barred by the 2009 Agreement as a matter of law. Given the agreement’s enforceability and its indemnification provision , Service Energy has the contractual right of indemnification for los ses that fall within the agreement’s sc ope. Accordingly , the Court must consider the merits of Service Energy’s
indemnification counterclaim. When doing so
, the claim fails on this record. In any breach of contract claim
, the party bringing the claim must demonstrate
that it suffered damages. 70 A party’s proof of damages cannot be speculative and must permit a jury to “assess damages to a reasonable degree of certainty.” 71 Service

69 Def. Service Energy A pp’x to Opening Brief, at A0036 (discussing DNREC’s documentation that during the USTs removal “there were no holes, corrosion, or ruptures in the tanks and piping removed in December 2013”). 70 Interim Healthcare, Inc. v. Spherion Corp. , 884 A.2d 513, 548 (Del . Super. Feb. 4, 2005), aff’d
, 886 A.2d 1278 (Del. 2005). 71 Town of Townsend v. Grassbusters, Inc. , 2019 WL 3493904, at *4 (Del. Super. Aug. 1, 2019). See also Interim Healthcare, Inc. , 88 4 A.2d at 571 (explaining that because the plaintiffs’ made21

Energy bases the damages element of its indemnification claim solely upon the

amount it paid to DNREC

— $70, 000. 72 Otherwise, it identifies no evidence of record

to meet its burden on summary judgment regarding its damages. The DNREC settlement agreement and payment alone do not provide a basis for a jury to quantify the harm suffered by Service Energy to a reasonable degree of certainty. Namely, t he settlement agreement with DNREC acknowledged that the payment related to more than just the Site. It released DNREC’s cl aims for “ the contamination of soils and groundwater and any other environmental dam age on the
referenced Smyrna Soda Center, Milford Soda Center and Harrington Soda Center properties and all adjoining properties .” 73 F or releasing its claims r egarding these three sites, DNREC required Service Energy to “make payment to [it] in the amount of Seventy Thousand Dollars ($70,000.00).” 74 Service Energy identifies nothing in the record that explains how the lump

sum $70,000 it paid to DNR EC wa s allocated among th ese three locations. Service Energy identifies no evidence spe cific to the Site

. On this record, a jury would be required to speculate regar ding the amount, if any, allocated to the Site as opposed
to the other two leased gas stations. Accordingly, Service Energy’s indemnification
claim does not survive summary judgment.

“ no effort to secure a breakdown or itemization of the specific claims ” or “ explain or justify the manner in which the . . . claims were settled ” that the “ damages [were] too speculative and [] not subject to ‘ a reasonable basis for computation ,’” so the indem nification claim failed). 72 See Def. Service Energy Resp

. to Amend. Compl

. ¶ 38 (claiming that “[a]s a result of Duncan’s failure to fulfill his obligations under the 2009 Release, Service Energy incurred $70,000.00 in damages paid to DNREC which amount ac crued to Duncan’s benefit”). 73 Def. Service Energy App’x to Opening Brief, at A0344 (emphasis added)

. 74 Id.22

C. Mr. Duncan i dentifies insufficient evidence to quantify the damages allegedly caused by any new negligent acts by Coastal in 2013

. Mr. Duncan sues Coastal for its alleged 2013 negligence . It also sues Serv ice Energy vicariously for Coastal’s negligence. T o prove negl igence, a plaintiff must

prove that the defendant owed plaintiff a duty , that the defendant breached that duty, and that the defendant’s negligent act proximately caused the plaintiff’s injury. 75 Here, conflicting expert testimony and disputes regard in g who directed Coastal
create issues of fact regarding duty and breach. Namely, Mr. Grow and Mr. Miller provide contrary opinions regarding Coastal’s duties

. Mr. Grow claims that Coastal
had the duties (1) to take reasonable care in disposing of the contaminated soil, and separately, (2) under Sta te and Federal UST regulations, to not return the contaminated soil to the pits. 76 In contrast, Mr. Mille r opines (1) that neither Coastal

nor Service Energy controlled the decision to refill the pit s wit h contaminated soil,
and thus (2) DNREC ’s direction that Coastal take that action means Coastal did not
violate the regulations. These competing expert opinions create genuine issues of
material fact regarding duty and breach. As to proximate cause
, Mr. Grow’s expert testimony creates an issue of fact regarding whether Coastal proximately caused some increased contamination

. 77 When considering a claim for negligence, the “negligent act is not in itself actionable, [ and it] only becomes the basis of an action where it results in injury to
another.” 78 Proving proximate cause of a harm is necessary but is not alone

75 Spencer v. Goodill , 17 A.3d 552, 554 (Del. 2011)

. 76 Def. Service Energy App’x to Open ing Brief, at A0505

. 77 Mr. Grow’s deposition testimony explains that filling the pits with contaminated soil and putting the contamination in the presence of non

- contaminated soil causes a migration and spread of the existing contamination. Pl. App’x to Answering Brief, at B0 69 5:15

– 96:7. This constitutes evidence that returning the soil to the pits was a but

- for cause of spreading the contaminants. 78 57A Am. Jur. 2d Negligence § 131.23

sufficient. Namely, “the mere existence of a wrong, without some identifiable damage, provides no basis for a cause of action.” 79 Without proo f of physical damage to property, there can be no recovery in negligence

. 80 Here, Duncan and Service Energy point to the lack of an expert opinion regarding the amount of money damages. In response, Mr. Duncan does not step forward with evidence of record
that supports the amount of the alleged harm.
When a claim involves harm to land, damages may include compensation for
the reasonable costs for past and future restoration. 81 If restoration costs are sought,
“the reaso nable cost of replacing the land in its original position is ordinarily allowable as the measure of recovery.” 82 A plaintiff can recover these damages “only by proving this with the same degree of certainty as that required in proving
the existence of the cause of action. ” 83 Namely, in negligence “the law does not permit a recovery of damages which is merely speculative or conjectural.” 84 While the need for certainty of damages is somewhat less in negligence than in contract,
“there [still] must be some rea sonable basis upon which a jury may estimate with a fair degree of certainty the probable loss.” 85 When a plaintiff fails to meet this burden, “the jury cannot supply the omission by speculation or conjecture.” 86 In claims involving harm to land, expert testimony is typically necessary

. 87 The Court recognizes , in accordance with Delaware Rule of Evidence 701, that a lay

79 Id. 80 22 Am. Jur. 2d Damages § 138 (explaining the availability of recovery for economic losses)

. 81 Restatement (Second) of Torts § 929. 82 Id. at cmt. on Subsection (1), Clause (a). 83 Restatement (Second) of Torts § 912, cmt. a. 84 Laskowski v. Wallis , 205 A.2d 825, 826 (Del. 1964) (quoting Henne v. Balick , 146 A.2d 394, 396 (Del. 1958)). 85 Id. (discussing the proof necessary for a “future consequence of a tortious injury”). 86 Id. 87 Restatement (Second) of Torts § 912, cmt. c.24

witness that is a record owner may testify to the harm caused to his or her property

. 88
This record owner rule permits personal a nd real property owners to estimate the value of their property. 89 Nevertheless
, “ the witness landowner must be familiar with the elements of the property and have knowledge of the value of the property in order to testify. ” 90 Moreover, “[i] f the owner's perceptions of property value are based on scientific or specialized knowledge or skill, then they will rise to the level of an expert witness and will not be permitted to testify without appropriate notice to the parties and Court .” 91 Here, an expert opinion would be necessary to quantify the remedial costs necessary to remedy the environmental harm that Costal allegedly
caused. Mr. Duncan proffers no expert testimony providing an y estimate of monetary
harm

. Furthermore, there is n o other evidence of record that could enable the trier
of fact to fix money damages to a reasonable certainty. Mr. Duncan merely seeks to
recover unidentified costs to remediate contamination that spread after Coastal’s
action s

. Under his theory of the ca se , his harm include s the costs (1) to again remove the contaminated soil from the pit s , (2) to remov e any new fill Coastal used to supplement the volume of the tanks in the pits , and (3) to address migrated
contaminants. He offers no expert testimony as to how much any of this would cost

. At best, Mr. Duncan’s expert estimated the size of the contamination as the volume of the tanks removed, without calculating that volume

. 92 Furthermore, he did not identify the degree of migrated contaminants. He recog nized that to do so would

88 PJ King Enterprises, LLC v. Ruello , 2008 WL 4120040, at *2 (Del. Super. July 1, 2008). 89 Id. (citing Atwell v. RHIS, Inc.
, 2007 WL 625277, *1 (Del. Super. Feb.14, 2007) and Wilson v. Pepper
, 1995 WL 562235, *5 (Del. Super. Aug. 21, 1995)). 90 Id. (citing Ea stern Shore Nat. Gas Co. v. Glasgow Shopping Ctr. Corp. , 2007 WL 3112476, at *2 (Del. Super. Oct. 3, 2007) ). 91 Id. 92 Def. Service Energy App’x to Opening Brief, at A0505

– 06.25

require additional sampling. 93 No additional sampling took place , or if it did
, Mr.
Grow did not consider the results when forming his opinion. 94 Mr. Duncan attempts to excuse his lack of damages evidence by arguing that
the initial contamination and Coastal’s alleged spread of the contamination caused one indivisible injury. Delaware law recognizes that “ when the negligent acts of two or more persons concur in producing a single indivisible injury, such persons are jointly a nd severally liable, though there was no common duty, common design,
or concerted action .” 95 The acts at issue may be “separated by time and space

. ” 96 Mr. Duncan argues that there is a genuine issue of fact concerning the injury’s indivisibility. In doing so, he references his expert ’s opinion that returning the soil

to the pits made the contamination worse . He also notes that DNREC identified a third project after the UST removal. Finally, he relies upon DNREC’s Rule 30(b)(6) testimony that beca use only the same contaminants were in volved in t he new project, the deponent could not apportion the contamination between events

. 97 If Mr. Duncan had identified an expert opinion that the total contamination at
the Site constituted an indivisi bl e injury, a factual issue may have exist ed

. 98 Mr. Grow’s expert report and deposition testimony provide no such evidence , however

. In fac t, they directly contradict Mr. Duncan’s indivisibility claim. Namely, Mr.
Grow wrote that the contamination that Co astal caused in 2013 were measurable

93 Pl. A pp’x to Answering Brief, at B0696

. 94 Id. at B0696

– 97. 95 Campbell v. Robinson , 2007 WL 1765558, at *2 (Del. Super. June 19, 2007) (quoting Leishman v. Brady
, 3 A.2d 118 (Del. Super. Dec. 20, 1928) and citing Sears, Roebuck & Co. v. Huang
, 652 A.2d 568, 573 (Del.1995) ). 96 Tull v. Friend , 2015 WL 1202531, at *3 (Del. Super. Mar. 10, 2015) (citing Stubbs v. Ringler
, 1998 WL 117284, at *3 (Del. Super. Oct. 6, 1998) )

. 97 Pl. Answering Br., at 51

– 52. 98 See Stubbs , 1988 WL 117284, at *3 (finding a factual issue existed “as to whether plaintiff’ s injuries are susceptible of division as between the defendant” where the evidence of record showed the damage to the plaintiff’s knees constituted “a single, indivisible injury, which is not susceptible of separation or apportionment”).26

and distinct , though he did not measure them or elaborate on how they were
distinct

. 99 Rather than support the premise that Mr. Duncan’s injury is indivisible and thus unquantifiable other than when viewed as a whole with the preexisting
contamination , Mr. Grow’s opinion and testimony supports the opposite . Namely, it provides that an amount and value could have been assigned had he or another expert conducted the necessary studies or investigation. On summary judgm ent, it is Mr. Duncan’s burden to identify facts supporting his damages. He has no expert opinion to support his claim that Coastal and Service Energy are liable for the whole of the damages at the Site because of their indivisibility

. Other than Mr. Grow’s opinion, Mr. Duncan cites only the amount that he settled with DNREC ($250,000) in support of his damages

. T he total settlement
amount between Mr. Duncan and DNREC for all of the investigation and
remedi ation at the Site provide s no certainty
, much less reasonable certainty, as to
how much of the $250,000 was caused by Coastal’s alleged 2013 negligence

. Mr.
Duncan does not identify a basis for a jury to assess damages other than through speculation or conjecture. In sum, although the record evidence supports a reasonable inference of as to
the elements of duty, breach, and causation of some harm
, it does not regarding the element of damages. His failure to demonstrate any quantifiable monetary damage

— an essential elemen t of a negl igence claim in our civil justice system

— requires summary judgment in favor of Coastal. It follows that his vicarious claim against Service Energy must also be dismissed. As a result, the Court need not
address Service Energy’s arguments regarding agency , or whether the 2009 Agreement ’s release would have separately barred Mr. Duncan’s agency based
claim against Service Energy.

99 See Pl. App’x to Answering Brief, at B0 1105 (quantifying the contaminated new soil as being a “volume equal to the size of the tanks removed” without specifying that volume)

.27

D. Partial summary judgment in favor of Mr. Duncan on his rent claim is appropriate

Mr. Duncan seeks partial summary judgment on his contract claim against Service Energy for unpaid rent. In the three

- party 2000 Agreement, New Dawn Energy assigned its existing 1994 master lease to Service Energy. Mr. Duncan
, as the existing landlord
, and Service Energy
, as the new tenant
, also exchanged further promises

. The lease required a $2,000 monthly rent payment in exchange for Service Energy ’s use of the Site. T here is no dispute of fact that Service Energy breached
the lease by withholding rent unless
, for some reason, its non

- payment was excused

. Service Energy argues that its duty to perform was excused because Mr. Duncan
first breached the 2009 Agreement

. In most cases, a party’s performance may only be excused when the other party first materially breached the con tract. 100 Furthermore
, it is a general rule that “the party first guilty of a material breach of contract cannot complain if the other party subsequently refuses to perform.” 101 To overcome this hurdle, plaintiffs must
show their “ freedom from fault with respect to performance of dependent promises,

counter promises or conditions precedent. ” 102 The i ntent of the parties controls w hen determining whether a promise is dependent or independent of another promise

. 103 Where the promises at issue are independent from one another, a plaintiff ’s breach does not estop him or her from prosecuting a breach of contract claim. 104

100 Daystar Const. Mgmt., Inc. v. Mitchell , 2006 WL 2053649, at *7 (Del. Super. July 12, 2006). 101 Hudson v. D & V Mason Contractors, Inc

. , 252 A.2d 166, 170 (Del. Super. Mar. 20, 1969) (citing 17 Am. Jur. 2d Contracts § 365). 102 Id. 103 17 Am. Jur . 2d Contracts §§ 670, 672. 104 See Allmand Associates, Inc. v. Hercules Inc. , 960 F. Supp. 1216, 1235 (E.D. Mich. 1997) (di stinguishing the holding in Hudson because it involved dependent promises, whereas the case at hand did not excuse performance because it involved independent promises).28

The payment of rent is an important aspect of a lease agreement between a landlord and tenant. Likewise, negotiated financial responsibility fol lowing a
settlement and release is essential to such an agreement’s purpose. Here, the matter
turns on whether Service Energy’s obligation to pay rent under the lease was dependent upon Mr. Duncan’s obligations under the 2009 Agreement. At the outset, t he parties’ respective breaches arise out of separate agreements. Service Energy assumed responsibility to pay rent for the Site in the 2000 Agreement. Mr. Duncan separately accepted responsibility for environmental damage in the 2009 Agreement. Service Energy identifies no evidence of record supporting that its promise to pay rent depended up on Mr. Duncan’s promise to accept financial responsibility for the environmental damage. Service Energy ’s strongest argument is that it may ha ve withheld rent based

upon a provision in the 2000 Agreement that provided that “[t]he Landlord shall be responsible for and shall hold harmless STTCPL, L.L.C., from any claims for environment damage which has occurred prior to the time that they have bec ome a tenant on the property.” 105 However, in its own briefing, Service Energy concedes
that the two agreements were separate and that it negotiated the 2009 Agreement because Mr. Duncan would not accept responsibility under the 2000 Agreement

. 106 In any event , the 2009 Agreement was a wholly separate agreement. 107

T he plain language of the two agreements demonstrate no dependency

. Namely, they (1) recite the parties’ intent that the agreements stand alone , and ( 2 )
include other terms that demonstrate non

- dependence.

105 Def. Service Energy App’x to Opening Brief, at A0310. 106 See Def. Serv ice Energy Answering Br ief , at 6 (explaining “when it appeared that negotiation was futile, [Service Energy] warned Duncan that it would suspend its performance under the 2000 Lease Agreement by redirecting rental payments towards the cost of DNREC complia nce”). 107 Id. (explaining that before it needed to fulfill its threat to suspend performance, the parties “reached a settlement” ).29

T he 1994 m aster l ease assumed by Service Energy provides : [a]ll rent and other payments fixed herein as to the amount and time of payment shall be paid without prior demand, and all rent and additional rent shall be paid without any set

- off, abatement, or deduction, except as expressly set forth in this Lease. 108
Furthermore , the 1994 master lease expressly prohibited Service E nergy from withholding rent under these circumstances. First, t he lease provides in paragr aph 7 that a right of setoff was “intentionally omitted.” 109 Furthermore, paragraph 10 in
the lease provides the following: [a]ll rent and other payments fixed herein as to amount and time of payment shall be paid without prior demand, and all rent and additional rent shall be paid without any set

- off, abatement, or deduction, except as expressly set forth in this Lease

. 110
Nowhere in the 1994 master lease are any of these remedies pre served. Service Energy assumed the 1994 master lease from New Dawn in 2000 , and the 2000 Agreement did not modify or alter the above cited provisions. Furthermore, w hile the 2009 Agreement references the 2000 Agreement in a whereas clause, it does not address the 2000 Agreement at any o ther location

. The 2009 Agreement recites only a dependency of terms internal to that agreement

. Namely, a ll internal citations to obligations in the 2009 Agreement address only “this Agreement.” In sum, where the parties’ failed to perform their respective obligations under
two separate agreements where the relevant promises did not depend upon one another, a party is not justified in breaching an independent obligation in the separate
agreement

. Accordingly, Mr. Duncan’s rent claim against Service Energy is not

es topped

. B ecause there are no genuine issues of material fact regarding this issue
,

108 Pl. App’x to Answering Brief, at B01085. 109 Id. at B01083. 110 Id. at B01085 (emphasis added).30

summary judgment must be granted in favor of Mr. Duncan for the $48,000 of
withheld rent.

E. O n balance, neither party was the prevailing party for purposes of attorneys’ fees.

Based on the cross

- motions for summary judgment, the Court will address the parties’ eligibility to recover attorneys’ fees. Delaware law follows the “American
Rule ,” which requires litigants to themselves defray the cost of being re presented by
counsel

. 111 Furthermore
, they are responsible for paying their own counsel fees in
the absence of either statutory authority or a contractual provision requiring it. 112 This general rule and its exceptions apply to actions at law ; they significantly limit

t he C ourt ’s authority t o order the payment of attorney s ’ fees as co sts

. 113

W here contract provisions contain language requiring one party to “prevail” to recover attorneys’ fees, the Court must permit their recovery after determining the provision’s intent. 114 The Court’s initial step is to interpret the agreement to execute the parties’ intent. 115 Namely, when reviewing contracts for “ prevailing party” type language, courts must dis cern whether the parties intended (1) an all or nothing or (2) a claim

- by

- claim recovery. 116 For a claim

- by

- claim recovery, parties must insert “language in the contract that would authorize the court to exercise discretion to

111 Chrysler Corp. v. Dann , 223 A.2d 384, 386 (Del. 1966)

. See also Dover Historical Soc., Inc. v. City of Dover Planning Comm'n , 902 A.2d 1084, 1090 (Del. 2006) (explaining that “[a] court of equity has jurisdiction to award counsel fees as part of costs in a proper case, but in an action at law, absent a statutory or contractual provision, a court may not ordinarily order the payment of attorneys' fees as costs to be paid by the losi ng party”). 112 Burge v. Fid. Bond & Mortgage Co. , 648 A.2d 414, 421 (Del. 1994) (citing Tandycrafts, Inc. v. Initio Partners
, 562 A.2d 1162, 1164 ( Del. 1989) )

. 113 Casson v. Nationwide Ins. Co. , 455 A.2d 361, 370 (Del. Super. Sept. 20, 1982). 114 Mrs. Fields Brand, Inc. v. Interbake Foods LLC , 2018 WL 300454, at *2 (Del. Ch. Jan. 5, 2018) (describing previous case law involving “prevailing party” contract provisions). 115 Brandin v. Gottlieb , 2000 WL 1005954, at *27

– 28 (Del. Ch. July 13, 2000). 116 Id. at *27.31

award less than ‘all’ the prev ailing party's fees in a case where the prevailing party had achieved a less than full victory.” 117 In the absence of language permitting a claim

- by

- claim recovery, the Court analyzes the “predominance in the litigation” to determine which party prevailed. 118 To establish predominance, the pa rty must prevail on the case’s chief issue. 119 T here are circumstances where “no party may be regarded as having prevailed.” 120 There
also can be more than one chief issue in a case. Where the parties split their success
in such circumstance s , the Court may find that neither party prevailed. 121 The relevant provision in the 2009 Agreement provides that: the parties agree that the rea sonable and actual out

- of

- pocket costs, fees and expenses i ncurred by either party in connection with the successful enforcement of this agreement, including all reasonable attorneys’ fees, are recoverable. 122 The provision does not include a term that permits the award of less than all of a partially prevailing p arty’s fees . Instead
, the provision provides for recovery of fees
incurred “in connection with the successful enforcement of [ the 2009 Agreement ]

. ” 123 Absent language in this provision permitting a claim

- by

- claim analysis
, a p redominance in the litigation analysis is appropriate. It must be all or nothing.

117 Id. at *28. 118 Mrs. Fields , 2018 WL 300454, at *2 (citing Brandin , 2000 WL 1005954, at *28). 119 2009 Caiola Family Tr. v. PWA, LLC , 2015 WL 6007596, a t *33 (Del. Ch. Oct. 14, 2015) (citing W. Willow

–

Bay Court, LLC v. Robino

– Bay Court Plaza, LLC
, 2009 WL 458779, at *9 (Del. Ch. Feb. 23, 2009) )

. 120 Vianix Delaware LLC v. Nuance Commc'ns, Inc. , 2010 WL 3221898, at *28 (Del. Ch. Aug. 13, 2010) (finding that because “each side prevailed on a number of issues,” including successful defenses and recovery for damages much less than claimed, there was no prevailing party and declining all requests for attorney s ’ fees). 121 Mrs. Fields , 2018 WL 300454, at *3. 122 Def. Service Ener gy App’x to Opening Brief, at A 0004. 123 Although the 2009 Agreement included the phrase “successful enforcement” rather than “prevailing party,” the Court finds no reason why this language shou ld require a different analysis.32

With regard to the litigation focused on the 2009 Agreement , the Court finds two chief issues: (1) Mr. Duncan’s environmental damages claim, and (2) Service Energy’s counter

- claim for indemnification. Considering the results of the parties’ summary judgment motions, the parties split their success. Namely, both parties succeeded as to one chief issue, but failed as to the other. Service Energy succeeded in its own summary j udgment motion
, defeating Mr. Duncan’s claims. Likewise, Mr. Duncan succeeded with regard to Service Energy’s indemnification claim. Because Service Energy and Mr. Duncan each won and lost a chief issue in this case, on balance, there can be no finding that either predominated in the litigation so as to be the “prevailing party.” Accordingly , neither party is entitled to attorneys’ fees

.

V. Conclusion For the reasons discussed, Service Energy’s Motion for Summary Judgment
must be GRANTED as to Mr. Duncan’s environmental damages claim

. Coastal’s Motion for Summary Judgment must also be GRANTED

. Mr. Duncan’s Motion for Partial Summary Judgment must be GRANTED with regard to the withheld rent
and with regard to Service Energy’s indemnification counte rclaim

. Accordingly, j udgment is hereby entered on behalf of Plaintiff Robert Duncan
and against Defendant S TTCPL, LLC (the signatory to the 2000 Agreement) in the
amount of $48,000

. J udgment is separately entered in favor of Defend ant Coastal Pump and Tank, Inc. and against Plaintiff Robert Duncan

. All parties shall bear their
own costs and attorneys’ fees.
IT IS SO ORDERED.
/s/Jeffrey J Clark Judge JJC:jb Via File & Serve Xpress