IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

HASTINGS FUNERAL HOME, INC. )

)

Plaintiff, )

)

v. ) C.A. No. 2021-0373-PWG

)

CHARLES W. HASTINGS, )

)

Defendant. )

MASTER’S REPORT

Date Submitted: August 22, 2022

Final Report: November 14, 2022

Scott G. Wilcox, Esquire, MOORE & RUTT, P.A., Wilmington, Delaware,

Attorney for Plaintiff Hastings Funeral Home, Inc.

David C. Hutt, Esquire, Michelle Bounds, Esquire, MORRIS JAMES LLP, 

Georgetown, Delaware, Attorneys for Defendant Charles W. Hastings

GRIFFIN, M.
1

Pending before me is a dispute about a lease purchase agreement for real 

properties used in the operation of a funeral home business in Selbyville, 

Delaware. The new owner of a funeral home business sought to exercise the 

option to purchase the properties from the former owner under the agreement and 

began the process specified in the agreement for establishing the properties’ sale

price. Disputes arose between the parties concerning the process and the sale

price. In its motion for summary judgment, the new owner seeks specific 

performance of the agreement to purchase the properties, damages, and attorneys’

fees. In his cross-motion for summary judgment, the former owner denies the new 

owner’s entitlement to specific performance or damages, arguing that the new 

owner is in material breach of the agreement, and seeks indemnification for his 

attorneys’ fees under the agreement. I find that the evidence shows that the new 

owner is entitled to specific performance of the agreement, and recommend that 

the Court grant the new owner’s motion for summary judgment, deny the former 

owner’s cross-motion for summary judgment, order the sale of the properties and

compensatory damages, and deny any award of attorneys’ fees. This is a final 

report.
2

I. BACKGROUND

A. Factual Background

On May 4, 2014, William Bryan Bishop, Jr. purchased all the shares and 

assets of Plaintiff Hastings Funeral Home, Inc. (“HFH”) from Defendant Charles 

W. Hastings (“Hastings”).

1

 On July 1, 2014, the parties entered into a separate 

lease purchase agreement (“Agreement”) for real property owned by Hastings and 

located at 19 South Main Street and 24 South Main Street, Selbyville, Delaware 

(“Properties”) out of which HFH operates the business.

2

 The Agreement’s initial 

five-year term ended on June 30, 2019, with HFH having the option to renew for 

two additional five-year terms.

3

 During the first and second terms, HFH had the 

option to purchase the Properties.4 The Agreement stated that HFH will purchase 

the Properties at their “then fair market value” to be agreed upon by HFH and 

Hastings.

5

 If the parties could not agree on the fair market value price, the 

Agreement provided a mechanism for determining fair market value (“Pricing 

Process”): 

1 Docket Item (“D.I.”) 1, ¶¶ 4-5. HFH was founded in 1896 and purchased by Hastings 

around 1980, who operated the funeral home business until May 4, 2014. D.I. 30, at 4.

2 D.I. 1, ¶ 6; D.I. 30, Ex. A. 

3 D.I. 30, Ex. A, art. 2; id., art. 20. 

4

Id., art. 21(b). At the end of each term, if HFH did not exercise the option to renew 

under the Agreement, it was obligated to purchase the Properties. Id., art. 21(a).
3

[T]he fair market value shall be determined by calculating the average 

fair market value based upon two appraisals commissioned 

independently by [HFH] and [Hastings] and prepared by MAI, 

Delaware Licensed Appraisers, provided that any difference between 

the value does not exceed ten (10%) percent. If such difference is 

greater than ten (10%), then [HFH] and [Hastings] shall instruct those

MAI, Delaware Licensed Appraisers to appoint a third MAI, 

Delaware Licensed Appraiser to prepare a third appraisal, the cost of 

which shall be born equally by [HFH] and [Hastings]. If the three 

MAI, Delaware Licensed Appraisers cannot agree on the fair market

value of the [Properties], then [Hastings] and [HFH] shall be bound by 

the appraisal of the mutually chosen third MAI, Delaware Licensed 

Appraiser. In the event that [HFH] exercises the option, [HFH] and 

[Hastings] shall have thirty (30) days after the giving of notice by 

[HFH] of its intention to exercise the option to obtain the appraisals at 

their own expense of their own MAI, Delaware Licensed Appraiser. 

The third appraisal, if necessary, shall be obtained within thirty (30) 

days thereafter.6

If HFH exercised its option to purchase the Properties during one of the renewal 

terms, it must notify Hastings in writing and the “purchase of the Propert[ies] shall 

then take place ninety (90) days after the exercise of the option (unless the parties 

mutually agree to an alternate date).”

7

The Agreement contains a time is of the essence clause.

8

 It also includes a 

default provision requiring that Hastings provide HFH with written notice of, and 

the opportunity to cure, any breach of a material term or condition of the 

Agreement, with HFH having 30 days to cure any default, unless the period was

5

Id., art. 21(d). 

6

Id.

7

Id., art. 21(b). 
4

reasonably extended.

9 The Agreement contains an indemnification clause 

(“Indemnification Clause”) providing that HFH indemnifies Hastings for claims

and expenses, including attorneys’ fees, in defense of claims or causes of action 

initiated against Hastings that arise “by, from or through [HFH’s] use, occupancy 

and possession of the Propert[ies].”

10

 It also includes a prevailing party provision

(“Prevailing Party Provision”) requiring that HFH reimburse Hastings for all 

expenses, including attorneys’ fees, arising from or in connection with a default by 

HFH, if Hastings is the prevailing party in the dispute.11

On January 10, 2019, prior to the end of the Agreement’s initial term, HFH 

exercised its option to renew for another five-year term.12 On May 13, 2019, 

Hastings responded regarding the rent increase for the second term, provided

notice that HFH had breached the Agreement by subletting a portion of the 

Properties, and asked HFH to pay him the rent collected to cure the default.

13

 On 

September 4, 2019, HFH notified Hastings that it was exercising its option to 

8

Id., art. 26(b), (d).

9

Id., art. 22. See id., art. 22(d) (providing that the cure period is reasonably extended “if

[HFH] has timely commenced and is diligently pursuing a cure of the default”).

10 Id., art. 15(e).

11 Id., art. 23(f).

12 Id., Ex. B.

13 Id., Ex. C.
5

purchase the Properties.

14

 Hastings responded, on September 12, 2019, that the 

purchase could not proceed because HFH had not cured the default nearly four 

months after Hastings provided notice of the default, but that, if HFH paid the rent

collected, Hastings “would be glad to discuss the sale of the [Properties].”

15

 HFH

made the requested payment on September 18, 2019, and indicated that the 30-day 

appraisal period should begin on that date.

16

 

On December 6, 2019, Hastings wrote to HFH, stating that he was “sorry it 

took so long,” but he was ready to sell the Properties for $950,000.00.17 HFH 

responded, on December 20, 2019, that it did not agree that $950,000.00 was the 

fair market value price and that the Pricing Process needed to be followed.18

HFH had obtained an appraisal on August 26, 2019 from Harold L. Carmean

(“Carmean”), who was a Delaware certified appraiser but not MAI-certified.

19

Carmean appraised the Properties at $637,500.00.20 HFH provided the Carmean 

appraisal to Hastings on February 27, 2020, and asked to receive a copy of 

Hastings’ appraisal “as soon as possible,” given the 30-day period to obtain 

14 Id., Ex. D.

15 Id., Ex. E.

16 Id., Ex. F.

17 Id., Ex. G.

18 Id., Ex. H.

19 Id., Ex. I.

20 Id.
6

appraisals in the Agreement.21 On March 3, 2020, Hastings responded that the 

appraiser he hired, William McCain (“McCain”), had completed his appraisal of

the Properties in October 2019 but did not provide a copy of the McCain appraisal 

to HFH.

22 On March 24, 2020, HFH again asked for a copy of the McCain 

appraisal, which Hastings mailed to HFH on March 27, 2020.23 McCain, who was

a MAI and Delaware certified appraiser, appraised the Properties at $925,000.00, 

as of October 3, 2019.

24 HFH communicated with Hastings by email on May 1, 

2020, indicating that, since the difference in the appraisals’ values exceeded ten

percent, the parties’ appraisers had agreed to Georgia Nichols (“Nichols”), a MAI 

and Delaware certified appraiser, as the third appraiser, and sought his approval,

and payment of one-half of the cost, to retain the third appraiser.

25

 Hastings agreed 

to retain Nichols and signed the engagement letter on May 15, 2020.26 Nichols

concluded, in her June 16, 2020 appraisal, that the market value of the Properties 

was $850,000.00 as of June 5, 2020.

27

 Hastings sent a June 19, 2020 email to HFH

21 Id.

22 Id., Ex. J. Hastings wrote HFH a week later indicating that he knew the appraised 

values weren’t “even close,” was asking his appraiser to review the Carmean appraisal,

and would provide a copy of the McCain appraisal after that review. Id., Ex. K.

23 D.I. 32, at 7; D.I. 30, Ex. O.

24 D.I. 30, Ex. N.

25 Id., Ex. R.

26 Id.; id., Ex. S, Addendum B.

27 Id., Ex. S, at 65.
7

stating that he will not move forward on the Properties’ sale until the other 

appraisers discuss the Nichols appraisal.

28

On July 9, 2020, Hastings wrote HFH stating that it has come to his attention 

that Carmean was not a MAI-certified appraiser as required by the Agreement so 

HFH was “going to have to start all over and hire an MAI Delaware appraiser to 

appraise the [Properties]” but, to avoid “gambling on the outcome of a new 

appraisal,” HFH can pay Hastings $900,000.00.29 HFH then hired a new MAIcertified appraiser, John Crognale (“Crognale”), who valued the properties at 

$615,000.00, as of October 19, 2020, in an appraisal dated November 2, 2020.30

On November 9, 2020, HFH sent the Crognale appraisal to Hastings, indicating 

that, although HFH believed that Hastings had waived his objection to Carmean’s 

lack of MAI certification, it had commissioned the Crognale appraisal and, since 

the value difference for the Properties still exceeded ten percent, it asked whether 

Hastings would agree to using the Nichols appraisal as the third appraisal or

wanted Crognale and McCain to select a new third appraiser.31

After HFH followed up with an email on December 28, 2020, Hastings 

replied, in a December 29, 2020 email, that he had not seen HFH’s November 9, 

28 Id., Ex. T.

29 Id., Ex. U.

30 Id., Ex. V.

31 Id.
8

2020 letter previously, questioned whether HFH was asking to use the Nichols 

appraisal as the third appraisal, and indicated that he would get back to HFH after 

consulting with his attorney and appraiser.32 HFH confirmed that it was asking 

whether the parties needed to hire a new third appraiser and set a response date of 

approximately ten days, to which Hastings responded that he will not make a 

decision by that date.33 Later on December 29, 2020, HFH responded that, if 

Hastings preferred, they could get the “the three appraisers [to] talk to see if they 

can come to a mutually agreed amount.”

34

 After HFH emailed Hastings on 

January 20, 2021 regarding his failure to respond to the December 29, 2020 

email,35 Hastings replied, on January 25, 2021, that HFH had breached a material 

term or condition in the Agreement because Carmean lacked MAI certification and

the Agreement did not provide for additional appraisals.36 He further stated that he 

had “fulfilled [his] obligation” under the Agreement and was “not required to 

recognize any redone appraisals or to spend any more money on appraisals,” and 

offered alternative price offers.

37

 

32 Id., Ex. T.

33 Id.

34 Id., Ex. W

35 Id.

36 Id., Ex. X (“the [Agreement] does not have a provision allowing for an appraisal 

redo”). 

37 Id.
9

HFH emailed Hastings on February 8, 2021 and on March 8, 2021, stating 

that the sale price was the Nichols appraisal’s value of $850,000.00, as set by the 

Pricing Process.

38

 Hastings responded in a March 9, 2021 email that he didn’t 

recall HFH’s “last offer,” and, on March 12, 2021, HFH reiterated the $850,000.00 

price.

39 On March 21, 2021, Hastings submitted additional price offers, which 

HFH rejected.

40

 Hastings’ March 26, 2021 letter reiterated that that the Agreement 

does not provide for a “do-over” since Carmean is not MAI-certified, and 

continued to provide alternative offers.

41

B. Procedural History

On April 29, 2021, HFH filed a complaint claiming Hastings breached the 

Agreement and seeking specific performance of the Agreement, damages 

representing rent paid by HFH during the dispute, and attorneys’ fees.

42

 Hastings 

filed a motion to dismiss on June 4, 2021, arguing that HFH was not entitled to 

specific performance or damages.

43

 HFH responded, on July 17, 2021, that it had 

38 D.I. 32, Ex. O; HFH’s February 8, 2021 email indicated that the Agreement provides 

for the use of the third appraiser’s value because the parties’ appraisers will not agree to

using the other’s value. Id.

39 Id.

40 Id.

41 D.I. 30, Ex. Z.

42 D.I. 1. HFH continues to pay rent under the Agreement. Id., ¶¶ 19, 20.

43 D.I. 5.
10

met its pleading burden for specific performance and damages.44 In a November 

29, 2021 final master’s report (“November 29, 2021 Master’s Report”), I denied 

the motion to dismiss.

45

 Hastings filed an answer and a counterclaim seeking 

indemnification under the Agreement for his attorneys’ fees defending this 

action.

46

 Discovery followed and, on June 23, 2022, HFH filed an answer to 

Hastings’ counterclaim.47 On July 22, 2022, HFH filed its opening brief in support 

of its motion for summary judgment (“Motion”),

48 and Hastings filed its motion for 

summary judgment and opening brief in support of its motion (“Cross-Motion”).49 

On August 22, 2022, HFH and Hastings filed their answering briefs in opposition 

to the other party’s motion for summary judgment.50

II. STANDARD OF REVIEW

Summary judgment is appropriate only where “the moving party 

demonstrates the absence of issues of material fact and that it is entitled to 

44 D.I. 9.

45 D.I. 12 (holding that the Agreement does not lack a sufficiently definite price term for 

the Properties; the Pricing Process is not a condition precedent to the obligation to 

purchase or sell the Properties under the Agreement; waiver and damages have been 

sufficiently pled by HFH; and it is reasonably conceivable that HFH can prove the 

balance of equities tips in its favor). The November 29, 2021 Master’s Report was 

adopted by the Chancellor on December 14, 2021. D.I. 13.

46 D.I. 14.

47 D.I. 27.

48 D.I. 30.

49 D.I. 31; D.I. 32.

50 D.I. 36; D.I. 37.
11

judgment as a matter of law.”51 Evidence must be viewed “in the light most 

favorable to the non-moving party.”52 “In evaluating the summary judgment 

record, a trial court shall not weigh the evidence or resolve conflicts presented by

pretrial discovery.”

53

 Summary judgment may not be granted when material issues 

of fact exist or if the Court determines that it “seems desirable to inquire more 

thoroughly into the facts in order to clarify the application of law to the 

circumstances.”54

When the Court is presented with cross-motions for summary judgment, the 

Court may “deem the motions to be the equivalent of a stipulation for decision,”

55

but “[t]he existence of cross-motions ... does [not] change the standard for 

summary judgment.”

56

 In evaluating cross-motions for summary judgment, the 

court examines each motion independently and only grants a motion for summary 

51 Wagamon v. Dolan, 2012 WL 1388847, at *2 (Del. Ch. Apr. 20, 2012); see also 

Cincinnati Bell Cellular Sys. Co. v. Ameritech Mobile Phone Serv. of Cincinnati, Inc., 

1996 WL 506906, at *2 (Del. Ch. Sept. 3, 1996), aff’d, 692 A.2d 411 (Del. 1997).

52 Williams v. Geier, 671 A.2d 1368, 1375-76 (Del. 1996) (citing Bershad v. CurtissWright Corp., 535 A.2d 840, 844 (Del. 1987)).

53 AeroGlobal Cap. Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428, 444 (Del. 2005).

54 In re Est. of Turner, 2004 WL 74473, at *4 (Del. Ch. Jan. 9, 2004) (quoting Holladay 

v. Patten, 1995 WL 54437, at *3 (Del. Ch. Jan. 4, 1993)) (internal quotation marks 

omitted); see also Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962). 

55 Ct. Ch. R. 56(h).

56 Bernstein v. Tact Manager, Inc., 953 A.2d 1003, 1007 (Del. Ch. 2007).
12

judgment to one of the parties when there is no disputed issue of material fact and 

that party is entitled to judgment as a matter of law.57 

III. ANALYSIS

The issues before me on summary judgment are whether HFH is entitled to 

specific performance of the Agreement to purchase the Properties, damages 

representing rent paid by HFH to Hastings, and an award of attorneys’ fees under 

the bad faith exception. In addition, I consider whether Hastings should be 

indemnified for his attorneys’ fees in this action under the Agreement. I address

each issue below.

A. HFH is Entitled to Specific Performance of the Agreement.

Hastings argues that specific performance of the Agreement cannot be 

granted because HFH’s failure to follow the Pricing Process (by not obtaining a 

MAI-certified appraiser initially and by not complying with the time periods 

specified for the process when the Agreement had a time is of the essence clause)

renders the Properties’ price indefinite, is a material breach of the Agreement, and

the equities tip in Hastings’ favor.58 In contrast, HFH asserts that Hastings waived

the applicable time requirements through his conduct and is equitably estopped 

57 See Empire of Am. Relocation Servs., Inc. v. Commercial Credit Co., 551 A.2d 433, 

435 (Del. 1988); Wimbledon Fund LP v. SV Special Situations LP, 2011 WL 378827, at 

*7 (Del. Ch. Feb. 4, 2011).

58 D.I. 32, at 13-26.
13

from enforcing those time periods.

59

 It claims that Hastings materially breached

the Agreement, and the equities heavily favor it.

60

With regard to the sale of the Properties, the Agreement provides that, after 

HFH exercises the option to purchase, the sale price is their fair market value at 

that time.61 If HFH and Hastings cannot agree on the fair market value of the 

Properties, the Agreement details a process for determining the sale price.

62 First,

HFH and Hastings commission independent appraisals of the Properties from

“MAI, Delaware Licensed Appraisers” (“MAI-Certification”).

63 They have 30 

days after HFH exercises the option to purchase to obtain those appraisals (“First 

Appraisals Period”).

64

 If the difference in those appraisals exceeds ten percent, a 

third appraisal is obtained from a MAI, Delaware licensed appraiser selected by the 

first two appraisers, within 30 days after that (“Third Appraisal Period”).65 If the 

three appraisers cannot agree on the sale price, then the parties are bound by the 

third appraisal.66 The Agreement provides that the purchase of the Properties takes 

place 90 days after the exercise of the option to purchase “unless the parties 

59 D.I. 36, at 5-13.

60 Id., at 13-15.

61 D.I. 30, Ex. A, art. 21(d).

62 Id.

63 Id.

64 Id.

65 Id.
14

mutually agree to an alternate date” (“Sale Period,” or collectively with the First 

Appraisals Period and the Third Appraisal Period, “Time Periods”).

67

A party seeking specific performance must establish, by clear and 

convincing evidence, that (1) an enforceable contractual obligation exists; (2) it has 

performed (or is ready, willing, and able to perform) its own obligations; and (3) 

that the balance of the equities tips in its favor.

68

 “Specific performance is a

remedy that is particularly suitable for land given its unique characteristics.”

69

“The party seeking specific performance has the burden of proving entitlement by 

clear and convincing evidence.”

70

1. The Agreement is Valid and Enforceable.

I first address whether the Agreement is sufficiently definite to be 

enforceable. “[S]pecific performance will only be granted when an agreement is 

clear and definite and a court does not need to supply essential contract terms.”71 

“A contract is sufficiently definite and certain to be enforceable if the court can ... 

ascertain what the parties have agreed to do.”

72

 The essential terms of a real estate 

66 Id.

67 Id., art. 21(b).

68 Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1158 (Del. 2010).

69 DeMarie v. Neff, 2005 WL 89403, at *4 (Del. Ch. Jan. 12, 2005).

70 Peden v. Gray, 886 A.2d 1278 (Del. 2005) (ORDER).

71 Osborn, 991 A.2d at 1159. 

72 Eagle Force Hldgs., LLC v. EF Invs., LLC, 187 A.3d 1209, 1232 (Del. 2018). 
15

contract are the names of the buyer and seller, description of the property to be 

sold, sales price or the means of determining the price, the terms and conditions of 

the sale, and the signature of the party to be charged.73 Hastings argues that HFH’s 

failure to comply with the Time Periods results in non-specific terms that renders

the Properties’ price indefinite.74 I disagree. In the November 29, 2021 Master’s 

Report, I concluded that the Agreement did not lack a sufficiently definite price 

term for the Properties since it provided a means of determining the price – the fair 

market value of the Properties at the time of sale – through the Pricing Process.

75

 I 

further held that “HFH’s failure to comply with all aspects of the [Pricing Process]

in the Agreement does not affect the parties’ intentions in making the Agreement

or whether the Agreement’s terms are definite.”

76 As discussed more fully below, 

the parties’ actions pertaining to the Agreement do not negate the Court’s ability to

ascertain the Properties’ sale price. 

2. HFH has Proven it is Ready, Willing and Able to Perform under the 

 Agreement.

I consider whether HFH is ready, willing and able to perform its obligations 

under the Agreement. First, I consider Hastings’ argument that HFH has failed to

73 Pulieri v. Boardwalk Properties, LLC, 2015 WL 691449, at *5 (Del. Ch. Feb. 18, 

2015). 

74 D.I. 32, at 13-16.

75 D.I. 12, at 9. 

76 Id.
16

meet its obligations under the Agreement and materially breached the Agreement

by failing to comply with the Time Periods and the time is of the essence clause.

77

 

HFH responds that Hastings waived enforcement of the Time Periods and breached 

the Agreement, by delaying, “continually fail[ing] to comply with any of the time 

periods,” and “at no time ... indicat[ing] or even appear[ing] to recognize the fact 

that the sale of the Propert[ies] was time sensitive.”

78

 As proof of Hastings’

waiver, it points to Hastings’ acceptance of the Carmean appraisal after the First 

Appraisals Period had elapsed, his continued price negotiation efforts beyond the

Sale Period, and his July 9, 2020 letter indicating that HFH could seek a new 

appraisal from a MAI-certified appraiser.

79

“Specific performance will not be granted to a party who is in default of a 

material obligation under the contract, unless that party is excused from 

performance of that obligation.”

80

“It is fundamental law that a party seeking a 

decree for specific performance of a contract must, himself, have performed within 

the time specified [for] his own obligations under the contract.”

81 However, “[i]t is 

well settled in Delaware that contractual requirements or conditions may be 

77 D.I. 32, at 13-24.

78 D.I. 36, at 6, 9-13.

79 Id., at 9.

80 Peden, 886 A.2d at 1278.

81 Wells v. Lee Builders, Inc., 99 A.2d 620, 621 (1953) (citations omitted).
17

waived.”82 “Waiver is the voluntary and intentional relinquishment of a known 

right.”83“A contractual requirement or condition may be waived where (1) there is 

a requirement or condition to be waived, (2) the waiving party must know of the 

requirement or condition, and (3) the waiving party must intend to waive that 

requirement or condition.”

84

“The standard for demonstrating waiver is ‘quite 

exacting;’ because waiver is redolent of forfeiture, ‘the facts relied upon to

demonstrate waiver must be unequivocal.’”

85

“Waiver may be shown by 

a course of conduct signifying a purpose not to stand on a right and leading, by a 

reasonable inference, to the conclusion that the right in question will not be 

insisted upon.”

86

 

Here, the evidence shows that adherence to the Time Periods was waived. 

Hastings’ first response after HFH exercised the option to purchase on September 

18, 2019 was to offer his position on the sale price on December 6, 2019 – almost 

80 days after HFH exercised the option to purchase.

87 HFH responded 14 days 

later that it did not agree with Hastings’ price, indicating that the appraisal process 

82 In re Coinmint, LLC, 261 A.3d 867, 893 (Del. Ch. 2021) (citations omitted).

83 AeroGlobal Cap. Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428, 444 (Del. 2005)

(citations omitted).

84 Id.

85 Simon-Mills II, LLC v. Kan Am USA XVI Ltd. P’ship, 2017 WL 1191061, at *34 (Del. 

Ch. Mar. 30, 2017) (citations omitted).

86 28 Am. Jur. 2d Estoppel and Waiver § 194.

87 See supra note 17 and accompanying text.
18

was triggered.

88 From the beginning of the Pricing Process, the Time Periods were

not followed because the parties had not determined they disagreed on the 

Properties’ fair market value until long after the First Appraisals Period had ended

on October 18, 2019 (or even after the Third Appraisal Period ended on November 

17, 2019). They had obtained the appraisals within the First Appraisals period,89

but did not share their appraisals with each other until February 2020 (HFH) and 

March 2020 (Hastings, after repeated requests from HFH).

90

 The next step in the 

Pricing Process – obtaining a third appraiser if the difference between the first two 

appraisals exceeded ten percent – was not implicated until that occurred.91 After 

HFH sought Hastings’ approval and payment for the third appraiser on May 1, 

2020, Hastings agreed to hiring the third appraiser, and signed her engagement 

letter, on May 15, 2020.92 The third appraiser completed the Nichols appraisal on 

88 See supra note 18 and accompanying text.

89 The evidence shows that HFH had obtained the Carmean appraisal on August 26, 2019

and Hastings had obtained the McCain appraisal on October 3, 2019, so they were in 

compliance with the plain language related to the First Appraisals Period. See supra notes 

19, 24 and accompanying text; D.I. 30, Ex. A, art. 21(d).

90 See supra notes 21, 23 and accompanying text.

91 See supra note 65 and accompanying text. Hastings would have known on February 

27, 2020 that the difference exceeded ten percent but took no steps towards obtaining a 

third appraisal. See supra notes 21, 22, 25 and accompanying text.

92 See supra note 26 and accompanying text.
19

June 16, 2020, which was far outside of the Third Appraisal Period, or the Sale 

Period, which ended on December 17, 2019.93 

The evidence shows that Hastings never expressed any concern that the 

Agreement’s time deadlines were not being met; instead he delayed and took 

ample time responding to HFH’s communications seeking to move the Pricing 

Process forward. By executing the third appraiser’s engagement letter on May 15, 

2020, he acknowledged, and approved, in writing that the third appraisal was 

occurring outside of the Third Appraisal Period. It appears the first time Hastings 

mentioned any concern about the lack of compliance with the Time Periods was in 

his motion to dismiss.94 

By executing the Agreement, Hastings knew of the Time Periods and the 

time is of the essence clause,

95 and was aware of the time passing while the Pricing 

Process progressed and that the Time Periods and the time is of the essence clause 

were not being followed. His conduct was unequivocal in signifying that the Time 

Periods and the time is of the essence clause were waived in this instance.96

93 See supra note 27 and accompanying text.

94 See D.I. 5, at 4-7.

95 See e.g., Sammons v. Andersen, 968 A.2d 492 (Del. 2009) (“It is well settled in 

Delaware that a person is bound by the details of a document he signed even if he failed 

to inform himself of the details.”).

96

“Delaware courts will generally give substantial weight to [time is of the essence]

provisions.” Twin Willows, LLC v. Pritzkur, Tr. for Gibbs, 2021 WL 3172828, at *4 (Del. 

Ch. July 27, 2021). Courts, however, look to the conduct of the parties to determine

whether time provisions in a contract, including a time is of the essence clause, are
20

Because of that waiver, I do not find that HFH materially breached the Agreement,

or failed to satisfy its obligations related to the Time Periods and the time is of the 

essence clause here. 

Next, I consider whether HFH’s initial failure to use a MAI-certified 

appraiser prevents HFH’s entitlement to specific performance of the Agreement. 

Hastings argues that HFH’s failure to use a MAI-certified appraiser constituted a 

material breach since the MAI-certification requirement was specified in the 

Agreement and imposed heightened industry standards to ensure the “appraisal 

process was legitimate and fair.”

97 HFH responds that it commissioned a new 

appraisal by a MAI-certified appraiser after Hastings complained about Carmean’s 

lack of MAI-certification.

98

 

The Pricing Process specifies that the appraisers be MAI-certified.99 

Carmean, who completed HFH’s initial appraisal, was not MAI-certified.100 After

controlling. See HomeOwners Expert Serv., Inc. v. Bobb, 1977 WL 5315, at *2 (Del. Ch. 

Mar. 15, 1977). Further, the language detailing the Sale Period specifically authorizes 

flexibility in the Sale Period, by allowing the parties to change the Sale Period if they 

“mutually agree to an alternate date.” D.I. 30, Ex. A, art. 21(b).

97 D.I. 32, at 15-16, 22.

98 D.I. 30, at 22.

99 Id., Ex. A, art. 21(d).

100 It appears that HFH may have been confused about Carmean’s MAI-Certification. 

The Carmean Appraisal identifies Carmean as Delaware certified but does not mention

MAI-certification. Id., Ex. I. HFH’s December 20, 2019 letter to Hastings identifies 

Carmean as MAI-certified, although other letters refer to using Delaware licensed 

appraisers. See id., Exs. H, I.
21

the Nichols appraisal was completed, on July 9, 2020, Hastings wrote HFH 

asserting the Carmean appraisal was invalid since Carmean lacked the required 

MAI-Certification.

101 He stated that “it would seem that [HFH] is going to have to 

start all over and hire an MAI Delaware appraiser to appraise the [Properties].”

102

 

I do not find that the MAI-Certification was waived by Hastings – the 

evidence does not show that Hastings intentionally relinquished that 

requirement.

103 Instead, I find the evidence shows that HFH cured any default of 

its use of a non-MAI-certified appraiser when it commissioned the Crognale

appraisal after receiving Hastings’ July 9, 2020 letter. In that letter, Hastings 

offered HFH the option to obtain an appraisal by a MAI-certified appraiser, which 

was, in effect, starting over.

104 The Agreement provides that HFH will not be 

considered to be in default if it fails to comply with a material term or condition of 

the Agreement until Hastings provides written notice of the default and HFH has 

30 days to cure, although the cure period is reasonably extended if HFH is 

diligently pursuing the cure.105 The approach to curing the default – starting over 

and obtaining a new appraisal by a MAI-certified appraiser – was proposed by 

101 Id., Ex. U.

102 Id.

103 Hastings asserts that he only discovered Carmean was not MAI-certified immediately 

before complaining about it in his July 9, 2020 letter. D.I. 32, at 8.

104 See id., Ex. U.

105 See id., Ex. A, art. 22(d). 
22

Hastings in his July 9, 2020 letter, and followed by HFH. Accordingly, I find that 

HFH cured any default regarding its failure to initially use a MAI-certified 

appraiser.

106

3. The Equities Favor HFH.

Finally, I consider whether the balance of equities tip in HFH’s favor to 

support its specific performance claim. Hastings argues that the equities tip in his

favor because HFH breached the terms of the Agreement.

107

 HFH responds that 

the equities weigh in its favor because it made every effort to complete the 

Agreement, in contrast to Hastings’ conduct in contravention of the Agreement.108 

In balancing the equities for specific performance, the Court must consider 

whether “specific enforcement of a validly formed contract would cause even 

greater harm than it would prevent.”109 I find that the equities tip in HFH’s favor

since it has not breached the Agreement, and I recognize that the funeral home

business it purchased from Hastings appears to have operated out of the Properties 

since before 1900.

110

106 HFH did not provide the new Crognale appraisal to Hastings until November 9, 2020,

but Hastings’ previous action regarding defaults (allowing HFH to cure the default four 

months after notice), and his failure to object to the Crognale appraisal because of timing,

indicate that the time for the Crognale appraisal was reasonably extended. See id., Ex. V.

107 D.I. 32, at 25-26.

108 D.I. 30, at 23-25.

109 Walton v. Beale, 2006 WL 265489, at *7 (Del. Ch. Jan. 30, 2006). 

110 See supra note 1.
23

In conclusion, I find that that HFH has shown, by clear and convincing 

evidence, that it is entitled to specific performance of the Agreement and that the 

sale price for the Properties is $850,000.00, which is the fair market value as 

determined by the third appraisal and the sale price under the Agreement.

111

 The 

sale of the Properties to HFH shall occur within 45 days after the order 

implementing this report is entered.

B. Compensatory Damages for the Delay in the Properties’ Transfer are Due.

HFH seeks the return of rent it paid to Hastings on the Properties beginning 

in August 2020 due to Hastings’ breach by preventing closing on the Properties 

within the Time Periods.

112 Hastings argues that HFH’s rent and specific 

performance claims fail for the same reasons, and rent is due until the sale is 

completed.113 

111 I recognize that my decision allows a gap in the Pricing Process – the step in which 

the three MAI-certified appraisers determine if they can mutually agree on the Properties’ 

sale price. Given the duration of this dispute and the large disparity among the MAIcertified appraisers’ valuations of the Properties across a relatively short time period –

McCain appraised the Properties at $925,000.00 (as of October 2019), Nichols at

$850,000.00 (as of June 2020), and Crognale at $615,000.00 (as of October 2020), I find 

that requiring the three MAI-certified appraisers to meet to determine if they can

mutually agree on the sale would be a useless exercise and do not require that they do so.

See, e.g., W. Air Lines, Inc. v. Allegheny Airlines, Inc., 313 A.2d 145, 154 (Del. Ch. 

1973). Therefore, the controlling provision in the Pricing Process compels the use the 

third appraisal to decide the sale price.

112 D.I. 30, at 25; D.I. 36, at 13-14.

113 D.I. 32, at 27; D.I. 37, at 22.
24

“Equity may, when its jurisdiction is invoked to obtain specific performance 

of a contract, award damages or pecuniary compensation along with specific 

performance when the decree as awarded does not give complete and full relief.”

114

In ordering specific performance, the Court will “adjust the equities of the parties 

in such a manner as to put them as nearly as possible in the same position as if the 

contract had been performed according to its terms.”

115

 

An order of specific performance ... will be so drawn as best to 

effectuate the purposes for which the contract was made and on such 

terms as justice so requires. As is the case here, an order of specific 

performance seldom results in performance within the time the 

contract requires. To that end, damages for the delay will usually be 

appropriate.116

“Where the delay is on the part of the [seller], the purchaser is entitled to 

the rents and profits from the time when, according to the terms of the contract, 

possession should have been delivered, and the [seller] is entitled to a credit for the 

interest earned by the purchaser on the unpaid purchase money.”

117

“[A] court of 

equity may award damages for what the purchasers have lost by reason of the 

seller’s delay in conveying the property.”

118

 And, “equity may require a party to 

pay interest on the purchase price as a condition to obtaining specific performance 

114 Tri State Mall Assocs. v. A. A. R. Realty Corp., 298 A.2d 368, 371 (Del. Ch. 1972). 

115 Id. at 371-72.

116 Snow Phipps Grp., LLC v. Kcake Acquisition, Inc., 2021 WL 1714202, at *55 (Del. 

Ch. Apr. 30, 2021) (internal quotation marks and citations omitted).

117 Tri State Mall Assocs., 298 A.2d at 371.
25

where one party would otherwise inequitably receive a windfall at the other’s 

expense.”

119

Here, the evidence shows that Hastings caused delay in the transfer of the

Properties to HFH. After HFH obtained the Crognale appraisal, it shared the 

appraisal with Hastings on November 9, 2020, and inquired whether Hastings 

agreed to using the Nichols appraisal, or desired to have a new third appraiser

selected.

120

 Hearing no response from Hastings, HFH offered, on December 29, 

2020, to have the three MAI-certified appraisers discuss the sale price.121 Hastings

did not respond to that offer either, but, on January 25, 2021, stated that he 

believed HFH had breached the MAI-Certification, he would not recognize “any 

redone appraisals,” and he would do “[n]othing more.”

122 Between January 25, 

2021 and his March 26, 2021 letter, Hastings’ communications with HFH 

contained varying sale price offers for the Properties that were not based on the 

Pricing Process.

123

 Throughout that time HFH remained steadfast in its position 

that, under the Agreement, the third appraisal set the sale price at $850,000.00.

124

 

118 Romero v. Killy, 1987 WL 13521, at *7 (Del. Ch. July 1, 1987).

119 Vaughan v. Creekside Homes, Inc., 1994 WL 586833, at *3 (Del. Ch. Oct. 7, 1994).

120 D.I. 30, Ex. V.

121 See supra note 34 and accompanying text.

122 See D.I. 30, Ex. X.

123 See supra notes 39-41 and accompanying text.

124 See supra notes 38-40 and accompanying text.
26

When asked about next steps under the Pricing Process, Hastings indicated he 

would not do anything else. He had an obligation to complete the Pricing Process 

and determine the sale price under the Agreement.

As of January 25, 2021, Hastings refused to move forward to complete the 

Pricing Process (although he continued to try to negotiate the sale price after that, 

he did so in contravention of the Pricing Process). On that date, the sale price 

could have been set at the third appraisal’s value (based on the final method for 

determining the sale price in the Agreement), and HFH’s purchase of the 

Properties could have occurred, under the Agreement. After the purchase, HFH 

would no longer owe rent on the Properties. So, to put the parties in as close as 

possible to the positions they would have been in if possession of the Properties 

had been delivered as of January 25, 2021, I find that rent paid on the Properties by 

HFH after that date should be credited against the sale price of $850,000.00.

125

 In

addition, if delivery had occurred, Hastings would have received the sale proceeds 

from HFH on January 25, 2021, and he is entitled to a credit for interest on the 

unpaid purchase money since January 25, 2021. Therefore, the rent paid by HFH 

to Hastings since January 25, 2021 should be deducted from the sale price, and 

pre-judgment interest at the legal rate on the $850,000.00 sale price should be 

added for the same period.
27

C. Attorneys’ Fees Should not be Awarded to Either Party.

First, I consider Hastings’ counterclaim that he is entitled to indemnification 

for his attorneys’ fees to defend this action under the Agreement.126 HFH refutes 

that the Indemnification Clause covers Hastings’ defense in this case.127 The

Indemnification Clause provides that HFH will indemnify Hastings for attorneys’ 

fees incurred “in defense” of actions initiated against him.

128 The Agreement also 

contains the Prevailing Party Provision, which requires HFH to reimburse Hastings 

for expenses, including attorneys’ fees, when Hastings is the prevailing party in an 

action related to HFH’s default under the Agreement.

129

“Delaware follows the ‘American Rule,’ which provides that each party is 

generally expected to pay its own attorneys’ fees regardless of the outcome of the 

litigation.”130 “One of the exceptions to the American Rule, however, is that 

parties may agree to shift fees contractually,” through using indemnification 

provisions.131 Indemnification clauses, however, “are presumed not to require 

125 HFH states that it has paid Hastings rent of $6,468.00 per month throughout this 

litigation. D.I. 30, at 16.

126 D.I. 32, at 28.

127 D.I. 30, at 32.

128 Id., Ex. A, art. 15(e).

129 Id., art. 23(f).

130 Shawe v. Elting, 157 A.3d 142, 149 (Del. 2017) (citation omitted); see also ATP Tour, 

Inc. v. Deutscher Tennis Bund, 91 A.3d 554, 558 (Del. 2014).

131 Paul Elton, LLC v. Rommel Delaware, LLC, 2022 WL 793126, at *1 (Del. Ch. Mar. 

16, 2022); see also Dittrick v. Chalfant, 2007 WL 1378346, at *1 (Del. Ch. May 8, 2007).
28

reimbursement for attorneys’ fees incurred as a result of substantive litigation 

between the parties to the agreement absent a clear and unequivocal articulation of 

that intent.”132“[P]urely contractual indemnification provisions only shift firstparty claims if the contract explicitly so provides.”

133

 “When a contract contains 

both an indemnification provision and a ‘prevailing party’ provision elsewhere in 

the contract, the courts of this state will not construe the indemnification provision 

to allow first-party fee-shifting.”

134 Here, the Agreement contains both the 

Prevailing Party Provision and the Indemnification Clause, which does not 

explicitly provide for first-party fee-shifting. As a result, I do not construe the 

Indemnification Clause as allowing for first-party fee-shifting, so Hastings’ 

indemnification claim fails, and I recommend that the Court deny Hastings’ claim 

for attorneys’ fees.

135

132 Paul Elton, LLC, 2022 WL 793126, at *1 (internal quotation marks and citation 

omitted); see also Deere & Co. v. Exelon Generation Acquisitions, LLC, 2016 WL 

6879525, at *1 (Del. Super. Nov. 22, 2016) (“Standard indemnity clauses are not 

presumed to apply to first-party claims.”).

133 Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 2020 WL 

7861336, at *5 (Del. Ch. Dec. 31, 2020), aff’d sub nom. Herzog v. Great Hill Equity

Partners IV, LP, 269 A.3d 983 (Del. 2021).

134 Paul Elton, LLC, 2022 WL 793126, at *2.

135 Assuming arguendo that the Indemnification Clause would control and allow firstparty fee-shifting, the Indemnification Clause provides for indemnification of 

“reasonably incurred attorneys fees,” I would not shift fees since reasonable attorneys’ 

fees are “related to the result achieved in the litigation” and HFH effectively prevails on 

all claims in this litigation. Great Hill Equity Partners IV, LP, 2020 WL 7861336, at *6.
29

Next, I consider HFH’s claim for attorneys’ fees under the bad faith

exception to the American Rule. It argues that Hastings’ conduct in delaying his 

responses to HFH’s communications and taking baseless positions related to this 

matter before and during the litigation justifies an attorneys’ fee award.136

Hastings refutes HFH’s claim that the bad faith exception applies.137

The bad faith exception to the American Rule applies only in “extraordinary 

cases” where the “losing party has ‘acted in bad faith, vexatiously, wantonly, or for 

oppressive reasons.’”138 To apply the bad faith exception to pre-litigation conduct, 

courts determine whether “the pre-litigation conduct of the losing party was so 

egregious as to justify an award of attorneys’ fees as an element of damages.”

139

Courts have found bad faith for the conduct of litigation “where parties have 

unnecessarily prolonged or delayed litigation, falsified records or knowingly 

asserted frivolous claims.”140 To find bad faith, a party must have acted in 

136 D.I. 30, at 28-31.

137 D.I. 37, at 25-29.

138 Brice v. State, Dep’t of Correction, 704 A.2d 1176, 1179 (Del. 1998) (citations 

omitted).

139 Hardy v. Hardy, 2014 WL 3736331, at *18 (Del. Ch. July 29, 2014).

140 Kaung v. Cole Nat. Corp., 884 A.2d 500, 506 (Del. 2005) (quoting Johnston v. 

Arbitrium (Cayman Islands) Handels AG, 720 A.2d 542, 546 (Del. 1998)) (internal 

quotation marks omitted); see also RBC Capital Markets, LLC v. Jervis, 129 A.3d 816, 

877 (Del. 2015) (citation omitted). 
30

subjective bad faith, which “involves a higher or more stringent standard of 

proof, i.e., ‘clear evidence.’”141

It is evident that Hastings feels strongly about the sale of the Properties,

142

but the evidence does not show that his actions prior to litigation were so egregious

as to justify awarding attorneys’ fees as damages,143 or that he acted for oppressive 

reasons, unnecessarily delayed the litigation, or knowingly asserted frivolous

contentions, during litigation. Thus, I conclude that the high standard for awarding 

attorneys’ fees for bad faith has not been met here and recommend that the Court 

decline to award attorneys’ fees to HFH in this matter.

IV. CONCLUSION

For the reasons stated above, I recommend that the Court grant Plaintiff 

Hastings Funeral Home, Inc.’s motion for summary judgment and deny Defendant 

Charles W. Hastings’ cross-motion for summary judgment, and direct that 

Defendant sell the Properties located at 19 South Main Street and 24 South Main 

Street, Selbyville, Delaware to Plaintiff. I recommend that the Court conclude that 

the sale price for the Properties is $850,000.00 and that, beginning as of January 

25, 2021, prejudgment interest at the legal rate should be added to the sale price,

141 Arbitrium (Cayman Islands) Handels AG v. Johnston, 705 A.2d 225, 232 (Del. Ch. 

1997), aff’d, 720 A.2d 542 (Del. 1998) (citations omitted).

142 See D.I. 30, Ex. J.

143 Hastings states that he was proceeding pro se prior to litigation. D.I. 37, at 28.
31

and the rent paid by HFH to Hastings on the Properties should be subtracted, to 

determine the final amount of sale proceeds to be exchanged for the transfer of the 

Properties between the parties. I further recommend that the Court decline to

award attorneys’ fees to either party. This is a final report, and exceptions may be 

taken under Court of Chancery Rule 144. The parties shall submit an 

implementing order (reflecting reductions for rent and additions for interest) within 

15 days of this report becoming final, and the sale of the Properties shall take place 

within 45 days after the implementing order is entered. 

/s/ Patricia W. Griffin 

Master Patricia W. Griffin