IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

HASTING S FUNERAL HOME, INC. ) ) Plaintiff , ) )
v. ) C.A. No. 202 1

- 0 373

- PWG ) CHARLES W. HASTINGS, ) ) Defendant. )

MASTER’S REPORT
Date Submitted: Aug u st 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, Esq uire, Michelle Bounds, Esquire, MORRIS JAMES LLP, Georgetown, Delaw a

re , A t t o rney s for Defendant C h arles 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 funer al home business in Selbyville,
Delaware

. The new owner of a funera l home business sought to exercise the option to purchase the properties from the former owner under the agre ement and
be gan the process specified in the agreement for establish ing the properties ’ sale

pr ice

. D isputes arose between the parties concerning t he process and the sale

pr i ce
. I n its motion for summary judgment, the new owner seeks s pecific performance of the agr eement to purchase the propert ies , damages , and attorneys ’
fees

. In his cross
- motion for summary judgment, the former owner d enies the n ew

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

owner is in material breach of the agreement , and see ks indemnif icati on for his
attorneys ’ fees under the agreement. I find that the evidence shows that the new

ow ne r is enti t led to specific performance of the agreement , and recommend that
the Court grant the new owner ’ s motion for summary judgment, deny the for mer

owne r ’ s c ross
- motion for summary judgment , order th e sale of the properties and
compensatory damages , and deny an y aw ard o f attorneys ’ fees. This is a final

rep o rt.2 I. BACKG ROUND
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 (“ Has ti n gs ” )

. 1 On July 1, 2014, t he parties entered into a s eparate lease p ur c hase agreement ( “ Agreement ” ) for real p roperty owned by Hastings and
located at 19 South Main Street and 24 South Main Street, Selbyvil le, Delaware ( “Properties”) out of which HFH oper a te s the business

. 2 The Agreement ’ s initial
fi ve
- year term end ed on Ju n e 30, 2019 , with H FH ha ving the option to r e new for

two additional five

- year terms

. 3 During the first and second terms, HFH ha d the option to purchase the Pr operties. 4 The Agreement s tate d th at HFH w ill purchase

t he Properties at their “ t hen fa ir market value ” to be agreed upon by HFH and Hastings

. 5 If the parties could not agree on the fair market value price, t he Agreement pr ovided a mechanism for determining fair market value ( “ Pr i cing
Pro cess ” ):

1 Docket Item (“D.I.”) 1 , ¶ ¶ 4

- 5

. HFH was found ed in 1896 and pu rcha sed by Hastings around 1980, who operated the funera l home bus iness until May 4, 201 4. D.I. 30, at 4.
2 D.I. 1 , ¶ 6 ; D.I . 30, Ex. A

. 3 D.I. 30, Ex. A, a rt. 2 ; id. , a rt

. 20

. 4 Id ., a rt. 21 (b)

. At the end of each term , if H FH did not e x er cise the option to renew under the Agreement, it was obligated to p urchase the Proper ties

. Id. , a rt. 2 1( a ).3

[T]he fai r market value shall be d eter mined by calcula ting the average fair market value based upon two ap praisals commissioned independently by [ HFH ] and [ Hastings ] and prepared by MAI , Delaware Licensed Appraisers , provided that any dif f erence b etwe en the value d oes not exceed ten (10%) perc ent. If such difference is greater than ten (10%), then [ HFH ] and [ Hastings ] shall instruct those MAI , Delaware Lice nsed Appraisers to appoint a third MAI , Delaware Licensed Appraiser to prepare a th i rd appra isal , the cost of which shall be born equal l y b y [ HFH ] and [ Hastings ]. If th e three MAI, Delaware Licensed Appraisers cannot agree on the fair market value of the [ Prope rties] , then [ Hastings ] and [ HFH ] shall be bound by the appraisal of the m utu a lly chos en t hird MAI, Dela ware Licensed App raiser. I n the event that [ HFH ] exercises t he op tion, [ HFH ] and [ Hastings ] shall h ave thirty (30) days af ter the giving of notice by [ HFH ] of its intention to exercise the op tion to obtain the appraisals at thei r own exp ense of th eir ow n MAI, Delaware Licensed Ap prai ser. The third appraisal, if necessary, shall be o btained within thirty (30) days thereafter. 6
If HFH e xercise d its option to purchase the Properties during one of the renewal
terms, it must notify H astings in writing and the “ purchase of the Propert[ies] shall then take place ninety (90) days after the exercise of the option (u nles s the parties mutually a gree to an alternate date)

. ” 7
The Agreeme nt contains a time is of the esse nce clause

. 8 It als o includes a default provision requiring that Hastings provide HFH with written notice of , and the opportunity to cure , any breach of a material term o r condition of the
A g reement , with HFH having 30 d ays to c ure any defau l t , unles s the period was

5 Id ., a rt. 21(d)

. 6 Id

. 7 Id ., a rt. 21(b).4

reasonably extend ed

. 9 The Agre ement contains a n indemnifi cation c lause ( “ Indem nification Clause ” ) providing that HFH indemnif ies Hastings for claims and expenses , including attorneys ’ fees, i n def ense of claims or c au ses of acti o n
initia ted 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

exp enses, includin g attorneys ’ fees, a risin g from or in connection with a default by
HFH , if H a stings is the prevailing party in the dispute. 11 On January 1 0, 2019, p rior to the end of the Agreement’s initia l ter m , HFH exercised its option to renew for another five

- year ter m. 12 On May 13, 2019, Hastings responded regarding the rent increase for the second term , provid ed
notice that HFH had breached the A g reement by subl ett in g a portion of the Properties , and asked H FH to pay him the rent collected to cure th e default

. 13 On September 4, 2019 , HFH notified Hastings that it was exercising its optio n to

8 Id ., a rt. 26 (b), (d).
9 Id. , art. 22

. S ee id. , art. 22 (d) (prov i di ng that the cure period is re asonably extend ed “ if [HFH] has timely commenced and is diligently pur s uing a cure of the default ”)

. 10 Id. , art. 15 (e)

. 11 Id. , art. 2 3(f)

. 12 Id. , Ex. B.
13 Id. , Ex. C.5

purchase the Properties

. 14 Hastings responded , on September 12, 2019 , tha t the purchase could not proceed bec ause HFH had not cured the default nearly four
months after Ha stings provided notice of the default, but that, if HFH paid the rent
collected , Hastings “ would be gla d to discuss the sale of the [Properties]. ” 15 HF H
made the r eques ted payment on September 18, 20 1 9 , a nd indicat ed that the 30

- day appraisal period should begin on that date

. 16
O n December 6, 2019 , Hastings wrote to HFH , stat ing that he was “ sorry it

t ook so long, ” but he was read y to sell the P roper ties for $950,00 0

. 00. 17 HFH responded, on December 20, 2 019, t hat it did not agree that $950,00 0.00 was the
f air mark e t value price and that the Pricing Process needed to be followed. 18

HFH had obtained an apprai sal on August 26, 2019 from Harold L . Carmean ( “ Ca rmean ” ) , who was a Delaw are certified apprais er b ut no t MAI

- certified

. 19 Carmean app rais ed the Properti es at $6 3 7, 5 00.00. 20 HFH provide d the Carmean appraisal to Hastings on February 27, 2020, and asked to receive a copy of
H astings ’ appraisal “ as soon as p ossible, ” 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

appra isals in the Agreement. 21 On March 3, 2020, Hastings respond ed that the appraiser he hired, William McCain ( “ McCain ” ) , had completed his appraisal o f the Properties in October 2019 but did not provide a cop y of the McCain appraisal
to HFH

. 22 On March 24, 2 020, HFH again asked for a c opy of the McCain apprais al , whi ch Hastings mailed to HFH on M arch 27, 2020. 23 M cCain , who wa s

a MAI and Delaware certified appraiser , appraised the Propert ies at $9 25 ,000. 00 ,

as of Octobe r 3, 2019

. 24 HFH co mmunicated with Hasti ngs by email on May 1, 2020, in dicating that , since t he diff er ence in the appraisals ’ value s exceeded ten
p ercent, the parties ’ appraisers had agreed to Georgia Nic hols ( “ Nichols ” ) , a M AI
and De laware certifi ed appraiser , as the third appraiser , and sought his appr oval , and payment of one
- half of the cost , t o retai n the third appraiser

. 25 H astings agreed
to retain Nichol s and signed the engagement letter on May 15, 2020. 26 Nichols
conclude d , in her June 16, 2020 appraisal, that the market value of the Prope rties

wa s $850,000.00 as of June 5, 2020

. 27 Hastings sent a Ju ne 19, 2020 email to HFH

21 Id.
22 Id ., Ex. J. H astings wrot e HF H a week later indicating that he knew the appraised values were n ’ t “ even c lose, ” was asking his appraiser to revi ew the Carmean appraisal , and would provide a copy of the McCain appraisal after that review. Id. , Ex. K.
23 D.I. 3 2 , at 7 ; D.I. 30, E x. O

. 24 D.I. 30, Ex. N.
25 Id. , Ex. R.
26 Id. ; id. , Ex. S, A dde ndum B.
27 Id. , Ex. S , at 65.7

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

appra isers d is cuss the Nicho ls appraisal

. 28
O n July 9 , 2020, Hastings wr o te HFH stating tha t it has c ome to his attention
that Carmean wa s not a MAI

- ce rt ified appraiser as required by t he Agreement so
HFH was “ going to have to start all over and hire an MAI Delaw are appra iser to apprai se the [Properties] ” but , to avoid “ gambling on the outcome o f a new appraisal, ” HFH can pa y Hastings $900,000.00. 29 H FH the n hired a new MAI

certified appraiser , Joh n Crognale ( “ Crognale ” ) , who valued the properties at $615,000.00 , a s of Octo ber 19, 2020, in a n appraisa l dated November 2, 2020. 30
On N o v ember 9, 2020 , HFH sent the Crognale appraisal to Hastings , indica ting

t hat , although HFH believe d that Hastings had waived his object ion to Carmean ’ s lack of MAI certification, it had commissio ne d the Crogna le appraisal and , since
the value diff

ere nce for the Properti es still exce ed ed ten percent, it asked whet her
Hasti ngs w o uld agree to us ing the Nichols appraisal as the third appraisal or
wanted Crognale and McCain to select a new th ird appra iser. 31
After HFH followed up with an email o n De cember 28, 2020, Hastings

r eplied , i n a December 29, 2020 email, that he had no t seen HF H ’ s November 9 ,

28 Id. , Ex. T.
29 Id. , Ex. U.
30 Id ., Ex. V

. 31 Id.8

202 0 letter previously , questioned whether HFH was ask ing to us e th e Nichols appraisal a s the third appraisal, and i ndicated that he would get back to HFH after consulting with his a ttor ney and apprais er. 32 HFH confirmed that it was as king

w het her the parties need ed to hire a new third ap praiser and set a r espon se d ate of approxi mately ten days, to which Hastings r esponded that he w ill not make a decision by that date. 33 Later o n Dece mber 29, 2020, HFH responded that , if Hastings pre fe r r ed, t hey could get the “ the three appraisers [to] talk to see if they
can come to a mutuall y agreed amount

. ” 34 After HFH emailed Hastings o n January 20, 2021 regarding his failure to respond to the Dece mber 29 , 2020 email, 35 Hastings replied , o n January 25 , 2021 , t ha t HFH had breached a m a terial

te rm or conditio n in the Agre ement because Carmean lack ed MAI certification and
the Agreement d id not provide for additional appraisals. 36 H e further stated that he
had “ fulfilled [his] obligation ” under the Agre eme nt and wa s “ not required to recognize any redone ap praisals or to spend any more mo ney on ap praisals , ” and
offe red alternative price offers

. 37

32 Id

. , Ex. T

. 33 Id.
34 Id

. , Ex. W
35 Id.
36 Id ., Ex. X ( “ the [Agreeme nt] does not have a provision allowing for an apprais al redo ” ).
37 Id.9

HFH email ed Hastings on February 8, 2021 and o n March 8, 2021 , s t ating that the sale price was the Nichols a ppra is al ’ s va lu e of $850,000.00, as set by the Pricing Process

. 38 Hastings respond ed in a March 9 , 2021 email that he didn ’ t
recall HFH ’ s “ last offer, ” and , on Marc h 12 , 2021, HF H r eiterated the $850,000.00 price

. 39 O n March 21, 2021, Hastings submitted ad ditional pric e of fers, which
HFH re jected

. 40 Hastings ’ March 26, 2021 letter reite r ated that that the A g ree ment does not provide for a “ do

- over ” since Carmean is not MAI

- certified, and
continued to provid e alternative offer s
. 41

B. Procedural Hist ory On April 29, 2021 , HFH fil ed a compla int cla iming Hastings breached the Agreement and seeking specific performance of the Ag reement , damages

repres enting rent paid by HF H during the dispute , and attorneys ’ fees

. 42 Hastin gs
filed a motio n to dismis s on June 4, 2021, arguing that HFH wa s not entitled to specific performance or damages

. 43 HFH responded , o n July 17, 2021 , that it had

38 D.I. 3 2 , Ex. O ; HFH ’ s Feb ruary 8, 2021 email indicated that the A g reement provides for t he use of the third appraiser ’ s value because the parties ’ ap pra isers will not agr ee to using the ot her ’ s value

. Id.
39 Id.
40 Id.
41 D.I. 30, Ex. Z.
42 D.I. 1

. HFH continue s to pay rent under the Agreement. Id. , ¶ ¶ 1 9, 20

. 43 D .I. 5.10

met its pleading burden for spec ific performance and damages. 44 In a November 29, 2021 final master ’ s report ( “ November 29, 2021 Mast er ’ s Report ” ) , I denied
the motion to dismiss

. 45 Ha stings filed an an swer and a counterclaim seeking
indemni fication under the Agreement for his attorneys ’ fees defend ing this
action

. 46 Discovery followed and , on Jun e 23, 202 2, HFH fi led an an swer to
H asti ngs ’ counterclaim. 47 On July 22, 2022, HFH filed its opening bri ef in support
of its motion for summary judgment ( “ Motion ” ) , 48 a n d Hastings filed its motion for summary judgment and opening brief in support of its mot ion ( “ Cro ss
- Motion ” ). 49
On Augu st 22 , 20 22, HFH and Hastings filed their answering br iefs in opposition
to the o ther party ’ s motion for summary judgment. 50

II. S TANDARD OF REVIEW
Su mmary judgment is appropriate only where “the movi ng party
demonstrates the abs ence of i ssues of materi al f act and that it is ent i tled to

44 D.I. 9.
45 D.I. 1 2 (holding that the Agreement does not l ack a sufficient ly d efini te price term for the Prop erties ; the Pricing Process is n ot a conditi on precedent to the obligation to purchase or sell the Properties under th e Agreement ; waive r an d damages have been sufficiently pled by HFH; and it is reasonably conceivabl e that H FH c a n prove the balance of equ ities tips in its favor ). The November 29, 2021 M aster ’ s R eport was adopted by the Ch ancellor 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 m ust be viewed “in the li ght most
favorable to the non

- moving party.” 52 “ In evaluating the summ ary judgment record, a trial court shall not weigh the eviden ce or res olve c onflicts pre s ented by

pre trial discovery. ” 53 Summa ry judgmen t may not be granted when material issue s
of fact exist or if the Court determines that it “seems desirable to inquir e m ore thoroughly into the facts in order to clarify the applica tion of l a w to the
circumst a nces.” 54
Whe n the Court is presented w ith cross

- motions for summary judgm ent, the
Court may “deem the motions to be the equivalent of a stipulation for decision , ” 55
b u t “ [t]he existence of cross

- motions ... does [not] change the st andard fo r

summ ary judgment

. ” 56 In e valu ating cross

- motions for su mmary j udgment, the
court examines each motion ind ependently and only grants a motion for summary

51 Wagamon v. Dola n , 2012 W L 1388847, at *2 (Del. Ch. Apr. 20, 2012); see also Cincinna ti Bell Cellula r Sys. Co. v. Amerit ech Mobile Phone Serv. of Cincinnati, Inc. , 1996 WL 506906, at * 2 (D el. Ch. Sept. 3, 1996), aff’d, 692 A.2d 411 (Del. 1997).
52 Wi lli ams v. Geier , 671 A. 2 d 1368, 1375

- 76 (Del. 1996) (citing Ber shad v. Curtiss

Wright Corp. , 535 A.2d 840 , 844 (Del. 1987)).
53 AeroGlobal Cap. Mgmt. , LLC v. Cirrus Indus., Inc. , 871 A.2d 428 , 44 4 (Del. 2005)

. 54 In re Est. of Turne r , 2004 WL 74473, at *4 (Del. Ch. Jan. 9, 2004) (quoting Holladay v. P atten , 1995 WL 544 37, at *3 (Del. Ch. Jan. 4, 1993)) (internal q uotation marks omitt e d) ; see also Eberso le v. Lowengrub , 180 A.2d 4 67, 470 (Del. 1 962)

. 55 Ct . Ch. R. 56(h).
56 Be rnstein v. Tact Manager, Inc. , 953 A.2d 1003, 1007 (Del. Ch. 2007 ).12

judgment to one of the partie s when there is no disputed issue of material fact and that par ty is ent it led to judgment a s a matt er o f law. 57
III. A NALYSIS
The issues before m e on summary judgment a re whether HFH is entitled to specific performance of the Agreement to purchase the Properties , damages

rep resenting rent paid by HFH to Hastings , and an aw ard of attorneys ’ fees und er
the ba d fa ith exception . In addit ion, I consider whether Hastings should be
indemn ified for his attorneys ’ fees in this action under the Agreement

. I address
each issue below

. A. HFH is Entitled to Specifi c Perform ance of t he Agreement

. Hastings argues t hat speci fic pe rformance of the Agreement cannot be granted because HFH ’ s failure to follow the Pricing Process (b y not obtaining a
MAI

- certified appraiser in itially and by not comp lyin g with the time period s specif i ed fo r the process when the Agreement ha d a time is o f the essence clause )

r e nders the Pr operties ’ p rice in definite , is a material breach of the A g reement, and
the equities tip in Hastings ’ favor. 58 In co ntrast, HFH asserts that Hastings waived
the app l icable time req uirements throu gh his co nd uct and is equitably est opped

57 See Empi re of Am. Relocati on Servs., Inc. v. Commer cial Credit Co. , 55 1 A .2d 433, 435 (Del. 1988); Wimbled on Fun d LP v. SV Special Situatio ns LP , 2011 WL 3788 27, at * 7 (Del. Ch. Feb. 4 , 2011).
58 D.I. 32, at 13

- 26.13

from enforcing th os e time periods

. 59 It claims that Hastings materially breached
the A g reeme nt , and the equities heavily favor it

. 60 With regard to the sale o f the Properties , the Agr e ement provide s that , after
HFH exercise s the o p tion to p urchase, the sale price is the ir fair market value at
that time. 61 I f HFH and Hastings cannot agree on the f air market value of the Properties , the Agreem en t details a process for determining the sale price

. 62 First , HFH and Hasti ngs commi ssion indepe nd ent appraisals of the Properties from

“ M AI, Delaware Licensed Appraisers ” ( “ MAI

- C ert ification ” )

. 63 They have 30 days after HFH exercises the o ption to p urchase to obtain th os e appr aisals ( “ First Appraisal s Period ” )

. 64 If the differen ce in tho se appraisals exceeds t en percent, a third appraisal is obtained from a MAI , Delaware licen sed appr aiser selected by the
firs t two appraisers , within 30 days after that ( “ Third Appraisal Period ” ). 65 If the
thr ee apprai sers cannot agree on the sale price, t hen th e partie s 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 o ption to p urchase “ u nless 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 agre e to an a lternate date ” ( “ Sale Period , ” or coll ectively with t he First Appraisals Period an d the Third Appraisal Period, “ Ti me Periods ” )

. 67 A party seeking specific perfo rmance must establish , by clea r and convincing evid ence, that (1) an enforceable contr actual ob li gat ion exi sts; (2) it has

p erf ormed (or is read y, willing, and able to perform) its ow n obligations; and (3)
that the balance of the equities tips in its favor

. 68 “ Specific perfo rmance is a remedy that is particularly suitable for land given its unique c haracteristics. ” 69

“ The party seeking s pecific perfor mance has the burden of proving entitlement by
cl ear and convincing evidence. ” 70
1. The Agreement is Valid a nd Enforceable

. I first address whether the Ag reement is sufficiently definite to be

e nforceabl e
. “[S]pecific performance w ill only be granted whe n an agreement i s clear and definite and a court does not need to supply es sential contract terms.” 71
“A co n tract is sufficie ntly de finite and certain to be en forceable if the c ourt can ...

ascerta in what t he parties have agreed to do. ” 72 The essential term s of a real esta te

66 Id.
67 Id

. , art. 21( b).
68 Osborn ex rel. Osborn v. Kemp , 991 A .2d 115 3, 1158 (Del. 2010).
69 DeMarie v. Neff

, 2005 WL 894 03 , at *4 (Del. Ch. Jan. 12, 2005)

. 70 Peden v. Gray , 886 A.2d 1278 (Del. 2005) (O RDER).
71 Osbo rn , 991 A.2d at 11 5 9

. 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, descri ption of the property to be sold, s ales price or the means of dete rmining the price, t he terms and condi tions of the sale, and the signature of the party to be charged. 73 Hasti ngs ar g u e s that HFH ’s
failure to comply with the T ime P eriods results in non
- specific te rm s that render s
the Properties ’ price indefinite. 74 I disagree. I n the November 29, 2021 Master ’s Report , I conc luded tha t t he Agreement d id not lac k a suffi cien tly definite price

term for the Properties si nce it provided a means of determi ning the price

– the fair market value of the Properties at the time of sale

– t hrough the Pricing Process

. 75 I
further held tha t “ HFH ’ s failure to comply with all aspec ts o f the [ Pricing Pr ocess ] in the Agreement does not affect the pa rties ’ intentions in m aking the Agree ment
or whether the Agreement ’ s terms are definite. ” 76 As discussed more fully below, the part ies ’ actions pertai ning to t he Agreement d o not negat e the Cou rt ’s ab ility to

as certain the Properties ’ sale price

. 2. HFH has Proven it is R eady, Willing and Able to Perform under the Agreement.
I consider w hether HFH is ready, willing and able to perform i ts obliga tions under the Agreement

. First, I consider Hastin gs ’ 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. 1 2, at 9

. 76 Id.16

meet its obligations under the A greement and materially breach ed the Agreement by failing to comply with the Time Periods and the time is of the essence clause

. 77

HFH r es p onds that Hastings wai ved enfor cement o f th e Time Periods and breached the Agreeme nt , by d elaying , “ continually fail [ ing ] to comply with any of the time periods, ” and “ a t no time

... indicat [ing] or even appear [ ing ] to recognize the fact
that the sale of the Propert[ies] was time sensiti v e. ” 78 As proof of Hastings ’ waiver, i t po ints to Hastings ’ acceptance of the Carm ean app raisal after the First Appraisals Period had elapsed, his continued price negotiation efforts beyo nd the
Sale Period , a nd his July 9, 2020 letter indicatin g th at HFH co uld seek a new

app raisa l 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

per formance of that obligation

. ” 80 “ I t is f und amental 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 sett l ed in Del aware that contrac tual r equire men ts or conditions ma y be

77 D. I

. 32, at 13

- 24.
78 D.I. 36, at 6, 9

- 1 3

. 79 Id. , at 9.
80 Peden , 886 A.2d at 1278

. 81 Wells v. Lee Builders, Inc. , 99 A.2d 6 20, 621 (1953 ) (citations omitted).17

waived.” 82 “Waiver is the voluntary and intentional relinquishme nt of a known right.” 83 “ A contractual requirement or condition may be waived where (1) there is a requirement or condition to b e waived, (2) the waiving p arty must kn o w of the requirement or condition, and (3) the waiving party must intend to waive that

re quirement or condition. ” 84 “ The standard for demonstrating waiver is ‘ quite exacting; ’ because waiver is redolent of forfeiture , ‘ the fa cts relied upon to
dem onstrate waiver must be unequi vocal. ’ ” 85 “ Waiver may be shown by

a course of co nduct 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 b e
insiste d upon. ” 86
Here, the e viden ce shows th at a dherence to the Time Periods was wa i v ed

. Hastings ’ firs t response after HFH exercised the o ption to p urchase on September 18, 2019 was to offer his position on the sale price on December 6, 2019

– a lmos t 80 day s after HFH exercised t he o ption to p urchas e
. 87 H FH r espo nded 14 days
later that it did not agree with Hastings ’ price , indicating t hat the appraisal process

82 In re Coinmint, LLC , 2 61 A. 3d 867, 893 (Del. Ch. 2021) (citations omitted).
83 AeroGlobal Cap. Mgmt., LLC v. Cirrus Indus., In c. , 871 A.2d 428, 444 (Del. 2005) (cit ations 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) (c itati ons omitted).
86 28 Am. Jur. 2d Estoppel and Waiver § 194

. 87 See supra note 17 and accompanying text.18

was triggered

. 88 Fr om the beginning of the Pricing Process , the Time Periods were
not foll owed beca use the parties had no t determi ne d th ey disagreed on the Properties ’ fair marke t value until long after th e First Appr aisal s Period ha d en ded on October 18, 2019 ( or even after the Third Apprai sal Period ended on November 17, 201 9)

. They had obta ined the appraisal s within the First App raisals perio d, 89
but di d not share their appraisal s with each other unti l February 2020 (HFH) and March 2020 ( Hastings , after repeated requests from HFH )

. 90 T he next step in the Pricing Process

– obtain ing a third ap praiser i f the difference be twe en the fi rst two appraisals ex ceeded ten percent

– w as not implicated until that occurred. 91 A fter
HFH sought Hasting s ’ approval and payment for the third appraiser on May 1, 2020, Hastings agreed to hiring the third appr aise r, and si gned her engagement
le tter , on May 15, 2020. 92 The t hird appraiser complet ed the Nichols a ppraisal on

88 See supra note 18 and accompanying t ext

. 89 T he evidence shows that H FH h ad obtained the Ca rmean a p prai sal on August 26, 2019 and Has tings had obtained the McCain a ppraisal on October 3, 201 9 , so they were in compliance with th e plain language related to the First Apprais al s Pe ri od

. Se e su pra no tes 19, 24 and accompanying text; D.I. 3 0, Ex. A, art. 2 1(d).
90 See su pra notes 21, 23 and ac companyi ng text.
91 See supra note 6 5 and accompanying text. Hastings would have known on Februa ry 27, 2020 that the difference exceed ed ten perc ent but took no st eps tow ards obtaining a th ird appr aisal. See supra notes 21, 22 , 25 and accompanying text

. 92 See supra note 26 and accompan yin g text.19

June 16, 2020 , which was far outside of the T h ird Appraisal Period , or the Sale Period, which ended on December 17, 2019. 93

T he evidence shows that Hast ings never expressed a ny concer n that th e Agreement ’ s tim e deadlines were not b eing met ; instead he delayed and took ample time responding to HFH ’ s communications seeking to mov e the Pricing
Process forward

. B y executin g the third appraiser ’ s eng agement l etter on Ma y 15 , 202 0, he ackno wledged , and approved , in writing that the third appraisal was occurring outside of the Third Appraisal Period

. It appea rs t he fi r st time Hastin gs
mention ed any c oncern about the lack of compl iance with the Time Per iods was in
his motion to dismi ss. 94

B y executing the Agree ment, Hastings knew of the T ime Periods and the
time is of the essence clause , 95 and was aware of the time passing wh ile the Pricing
Process pr o gressed and that the Time Periods and the time is of the esse nce clause
were not be ing follo wed

. His conduct was unequivocal in signifying that the Ti me
Periods and the time is of the essence clause wer e waived in this instanc e. 96

93 See supra n ote 27 and accompanyin g text.
94 See D.I . 5, at 4

- 7.
95 S ee e.g., S ammons v. Andersen , 968 A. 2d 492 ( Del. 2009) ( “ It is well settled in Dela ware that a person is b ound by the details of a document he sign ed even if he failed to inform him self of the details. ” ).
96 “ Delaware courts will generally give su bstantial weight to [time is of the essence] p ro visions. ” Twin W

illows, LLC v. Pritzkur, Tr. for Gibbs , 2021 WL 3172 828, at *4 (Del. Ch. July 27, 2021)

. C ou rt s , however, lo ok to the conduct of the parties to determine whether time provisions in a contract , including a time is of the essence clause , a re20

Because of that w a iver, I do not find that HFH material ly breach ed the Agree ment ,

or failed to satisfy its obligatio ns related to the Tim e Periods and the time is of the
essence clause here.
Next , I consider whether HFH ’ s in itial failure to use a MAI

- cer ti fied appraiser prevent s H FH ’ s entitlement to spe cific performance of the Agreement

. Hastings argues tha t HFH ’ s f ailure to use a MAI

- c ertified appraiser constituted a
material breach since th e MAI

- certification requirement was specif ied in the Agree ment and imposed heightened i ndustry standards to ensure the “ appraisal

process was legit imate and fair. ” 97 HFH responds that it commissione d a new appraisal by a MAI

- certified appraiser after Hastin gs compl ained about Carmean ’ s
lack of MAI

- certification

. 98 The Pricing Process spe cifies that the appraiser s be MAI

- certified. 99
Carmea n, who co mpleted HFH ’s initial appraisal , was not MAI

- certifi ed. 100 After

controll ing. Se e HomeOwners Expert Serv., Inc. v. Bobb , 1 977 WL 531 5, at *2 (Del. Ch. Mar. 15, 1977)

. Furth er, the language detailin g the Sal e Period spe cifically authorizes f lexibility in t he Sale Period, b y allowing the parties to chang e the Sale Per iod if th ey “mutu a lly agree to an alterna te 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 hav e been confused about Carmean ’ s MAI

- Certification. The Carmean A pp rais al ide ntifies Carmean as Dela ware cer tified but does not mention MAI

- certifi ca tion

. Id. , Ex. I

. HFH ’ s December 20, 2019 lett er to Hastings identifies Carmean as MAI

- certified , although other lett ers refer to using Delaware licensed appraisers

. See i d. , Ex s . H , I.21

the Nichols appraisal was complet ed , o n July 9 , 2 020, Hastings wr ote HFH asserting t he Carmean appraisal was invalid since Carmean l acked the required
MAI

- C ertification

. 101 He stat e d t hat “ it w ould seem that [HFH ] i s going t o have to
start all o ver and hire an MAI Delaware appr aise r to app raise the [Properties]

. ” 102
I do not find that the MAI

- Certification was waived by Hastings

– the evidence does not show that Hastings intentional ly reli n quished that requi remen t

. 103 Instead , I find t h e evidence sho ws th at HFH cured any default of
its use of a non
- M AI

- certified app raiser when it commissioned the Crognale appraisal after receivin g Hastings ’ July 9, 2020 letter . In that letter, Hastings
offe red HFH t he option t o obtain an appraisal by a MAI

- certified appraiser , which was, in effect, starting ov er
. 104 The Agreement provides that HFH will not be considered to be in default if it fails to comply with a material ter m or condition of the Agreement until Has tin gs prov ides wr it ten notice of the default and HFH has
3 0 days to cure, although the cure peri od is reasonably ex t ended if HFH is diligently purs uing the cure. 105 The approach to curing the default

– star ting over and obtaining a new appraisal by a MAI

- cer tified ap praiser

– wa s p roposed by

101 Id. , Ex. U.
102 Id.
103 Hastings asserts that h e only discovered Carmean was not MAI

- certified immediately before com plain ing about it in his Ju ly 9, 2020 lett er. D.I . 32, at 8.
104 See i d. , Ex. U

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

Hastings in his J uly 9, 202 0 letter , and followed by HFH

. Ac cordingly, I find that
HFH cured any default regarding its f ailure to initially use a MAI

- certified appraiser

. 106
3. The Equities Favor HFH

. Fin ally, I c onsider whether th e balance of equities tip in HFH ’s favor to support its s pecific performance c l aim. Hastings argues that the equities tip i n his
favor because HFH breached the terms of the Agre ement

. 107 H F H responds that the equ it ie s weigh in i ts favor bec ause it made e very effort to c om pl ete the Agreeme nt , in cont rast to Hastings ’ conduct in con t ravention of the Agreement. 108

In balancing the equit i es for speci fic performance , the Court must consider whether “specific enforcement of a validl y form ed contract would cause even
greater harm t han i t woul d pre vent.” 109 I find that the equit ies 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 operate d out of the Prope r ties
since before 1900

. 110

106 HFH did not provide the new Crognale appr aisal to Hastings until November 9, 2020, but Hastings ’ previous action regarding defaults ( allow ing H FH to c ure the default four months after notice), and his failure to object to the Crognal e appraisal because of timing , indicate that t he time for the C r ognale appraisal was reasonably extended

. See i d., Ex. V.
107 D.I

. 32, at 25

- 26.
108 D.I. 3 0 , at 23

- 25

. 109 Wal ton v. Be ale , 2006 WL 265489, a t *7 (Del. Ch. Jan. 30, 2006).
110 See supra note 1.23

In c onclusion, I fin d that th at HFH has s hown, by clear and convincing evidence, that it is en t itled to specific performance of the Agreement and that the sale price for the Properties i s $850,000.00, whi ch is the fair market value a s determined by the third apprai s al an d the sa le pric e under the Agreement

. 111 The
sale of the Properties to HFH shall occur within 45 days after th e order implementing th is report is entered

. B. Compensatory Damages for the D elay in the Proper ties ’ Transfer are Due

. HFH seeks the return o f rent it pa id to Has tings on the Properties beginning in August 2020 due to Hastings ’ breach by preventing closing on the Prope rties
within the Time Period s
. 112 Hastings argues that HFH ’ s ren t and specific

per formance c laim s fail for the same reasons , and rent is due until the sale is completed. 113

111 I re cognize that my decision allows a gap in the P ricing Process

– t he step in which the three MAI

- certified appraisers determine if they can mutually agree on the Properties ’ sal e p rice. Given the duration of this dispute and the large disp arity among the MAI

certified appraisers ’ valuations of the Pr op erties across a re latively short time period

– M cCain appr aised the Properties at $925,000.00 ( as of October 2019 ) , Nichols at $ 850, 00 0.00 ( as of June 20 20 ) , and Crognale at $ 615, 00 0.00 ( as of October 2020 ) , I find that requiring the three MAI

- cer tified ap praisers to meet t o determine if they can mutually a gree 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 p rovision in the Pr icing Process compels the use the third app raisal to decid e the sale pr ice

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

- 1 4

. 113 D.I. 3 2, at 27; D.I. 3 7, at 22.24

“ Equi ty 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 compl ete and full re lief. ” 114

I n 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 th e
contract had bee n performed a ccording to its terms. ” 115
An orde r of specific perform ance ... 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 t he case here, an order of s pecific performanc e seldom results in performance within the time the contract require s. 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 whe n, according to the terms of the contract,

poss ession should hav e be en 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 f or what the purcha sers have lost by reason of the
seller ’ s delay in conveying the prop erty. ” 118 And, “e quity may require a party to pay interest on the purchase price as a condition to obtaining specific performance

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

. 115 Id . at 371

- 7 2

. 116 Snow Phipps Grp., LLC v. Kcake Acquisition, Inc. , 2021 WL 1714202, at *55 (Del. Ch. Apr. 30, 2021) ( internal quo ta tion marks and citations omitted)

. 117 Tri S tate Mall Assocs. , 298 A.2d at 371

.25

where one party would otherwise inequitab ly receive a windf al l at the other ’ s
expense. ” 119
Here, the ev id ence shows that Hasti ngs caused delay in the transfer of the
P roperties to HFH. After HFH obtained the Crognale appraisal , it shared the appraisal with Hastings on November 9, 2020 , and inq uired whet her Hast ings agreed to using the Nichols appraisal, or desired to have a new third appraiser
selected

. 120 H earing no re sponse from Hastings , HFH offered , on Dec ember 29, 2020, to have the three MAI

- certified apprais ers discuss the sale p rice. 121 Hastings
did not respond to that offer either , but , on J anua ry 25, 202 1 , stated that he
believed HFH had breached the MAI

- Certification , he w ould not recognize “any redone appraisals , ” and he would do “[ n]othing more

. ” 122 Between J anuary 25,
2021 an d hi s March 26, 2021 letter , Hastings ’ communic ations with HFH

conta ined var ying sale price offer s for the Properties that were not ba sed on t he Pricing Process

. 123 Thr oughout that time HFH remained steadfast in its position
th at , under th e Agreement, the t hird apprais al set the sale price at $850,000.0 0

. 124

118 Romero v. Killy , 1987 WL 13521, at *7 (Del. Ch. July 1, 19 87)

. 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 accompany ing 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 nex t steps under the Pricing Process , Hastings indicated he would not do anythi ng else. He had an obl igation to complete the Pricing Proce ss and determine the sale pric e under the Agreem ent.
As of January 25, 2021, Hastings refuse d to move forward to complete the Pricing Process ( although he conti nued to try to negot iate the s ale price after that,
he did so in contravention of the Pricing Process). On that date , the sale price
could h ave been set a t the third apprais al ’s v a lue ( ba sed on the final me th od for determining the sale price in the Agreement) , and HFH ’s purc hase of the Properties could have occurred , under the Agreement

. After the purchase, HFH
would no long er owe rent on the Properties

. So, t o put the parties i n as clos e as
pos sible to the positions they would have been in if possession of the Proper ties
had been deli vered as of January 25, 2021, I find that rent paid on the Properties by
HFH after that dat e should be credit ed 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 cred it for interest on the

unp aid purc hase money since January 25, 2021

. Therefore, the rent paid by H F H to Hastings s i nce January 25, 2021 should be deduc ted from the sale price , and

pre
- judgment interest at the legal rate on the $850,000.00 sale price should be
added for the sam e period

.27

C

. Attorneys ’ F

ee s Should not be Aw arded to Either Party

. First, I consider Hasti ngs ’ counter claim that he is entitled to indem nification
for his attorneys ’ fees to defend this action under the Agreement. 126 HFH refutes
that the Indemnification Clause covers Hast ings ’ defe nse in this ca se. 127 T he
Indemnification Clause pro vid es that HFH will indemnify Hastings for attorneys ’
fees incurred “in defense ” of actions initiated agai nst him

. 128 The Agreement also

cont ains the Prevaili ng Party P rovision , which requires HFH to rei mbur se Hastings
for ex penses, including attorneys ’ fee s, when Hasting s is the prevailing party in an
action related to HFH ’s default under the Agreement

. 129

“ Del aware follows the ‘American Rule,’ which provides that each party is generally expected to pay i ts o wn attorneys’ fees regardless of the outc ome of th e litigation.” 130 “ One of the exceptions to the American Rule, ho wever, is that parties may agree to shift fees contrac tually , ” through using indemnification

pro visi ons. 131 Indem nifica tion c l au ses, however, “are pres umed not to req uire

125 HFH s tate s that it has p aid Hastings rent o f $6,468.00 per month thro ugh out 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 (D el. 2017) (citation omitted) ; see also ATP Tour, Inc. v. Deutscher Tennis Bund , 91 A.3d 554, 558 (Del. 2014).
131 Paul Elton, LL C v. Romm el Delaware, LLC , 2022 WL 79 3126, at *1 (Del. Ch. Mar. 16, 2022) ; see also Dittrick v. C halfant , 2007 WL 1378346, at *1 (Del. Ch. May 8, 2007)

.28

reimbursement for attorneys’ fees incurred as a result of substantive litigation
betwe en the parties to the agreement absent a clear and unequivocal articulation of
that intent.” 132 “ [P] urely cont ractual indemnification provisions only s hift first

part y claims if the contract explicitly so provides. ” 133 “ When a contract contains
both an indem nification provision and a ‘ prevailing party ’ provision elsewhere in the contract, the courts of this state will no t construe the indemnification prov ision
to allow first

- party fee

- shifting. ” 134 Here, the Agreement contains both th e
P revailing P arty P rovisio n and the Indemnification Clause , which does not
exp licitly provide fo r first

- party fee

- shifting

. As a re sult, I do not construe the
Indemnification Clause as allow ing 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 E lton, LL C , 2022 WL 793126, at *1 (intern al quotation marks and citation omitted ) ; see al so Deere & Co

. v. Exelon Generation Acquisitions, LLC , 201 6 WL 6879525, at *1 (De l. Super. Nov. 22, 2016) ( “ Standard indemnity cla uses are not presu med to apply to first

- party c laims. ”).
133 Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP , 2020 WL 786 1336, 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 Elto n, LL C , 2022 WL 79312 6, at * 2

. 135 Assu min g arguendo that the Indemnifica tion Clause would control and allow f irst

party fe e
- shifting, the Indemnification C lause provides for indemnif ication of “reasonably incurred attorneys fees, ” I wo uld not shift fees sin ce reasonable attorne ys ’ fees are “ related to the result achieved in the litigation ” and HFH effectively pre vails on all claims in this litigation

. Great Hill Equity Partners IV, LP , 2020 W L 7861336, at * 6.29

Next, I cons ider HFH ’s claim f or attorneys ’ fees under the bad faith exception to the American Rule. It arg ues that H astings ’ condu ct in delaying his
responses t o HFH ’s communi cations and takin g baseless positions related to this

matter b ef

ore and during the litigati on justifi e s an attorneys ’ fee awar d. 136 Hastings refu tes HFH ’s claim that the bad faith exceptio n ap plies. 137
The b ad faith exc eption to the American R ule applies on ly in “extraordinary

cases ” where the “losing party has ‘acted in bad faith, vexatiously, w antonly, or for oppressive reasons.’” 138 To apply the bad faith exception to pre

- litigation condu ct,

courts determi ne whether “ the pre

- litigation condu ct of the losin g 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 cond uct of l itigation “ where parties have unnecessarily prolonged or delay ed litigation, falsified records or knowingly

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

136 D.I. 30, at 28

- 31.
137 D.I. 3 7, at 25

- 29.
138 Bri ce v. State, Dep’t of Correct ion , 704 A.2d 1176, 1179 (Del. 1998) (citations omitted).
139 Hardy v. Hardy , 201 4 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. Arbi trium (Cayman Isla nds) Handels AG , 720 A.2d 542 , 546 (Del. 1998) ) (internal quotation marks omitted); see also RBC Capital Mar kets, 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 Ha stings feels strongly about the sale of the Proper t ies , 142
but the evidence does not show that his action s prior to litigation were so egregious as to justify awarding attorneys ’ fees as damages, 143 or that he acted for oppressive

reasons, un necessarily delaye d the litigation, or knowingly asser ted frivolous

c ontentions , during litigation. Thus, I conclude that th e high standard for awarding

attorn eys’ fees for bad faith has not been met here a nd recommend that the Court
decli n e to award atto rneys’ fees to HFH in this matter.
I V
. CO NCLUSION
For the reasons st ated above , I recommend tha t the Court grant Plaintiff Hastings Funeral Home, Inc. ’s motion for summary judgment and deny Defendant Charles W. Hastings ’ c ross
- motion for summary judgment , and direct that
D efendant sell the Properties located at 19 South Ma in Street and 24 South Main
Stree t , Selbyville, Delawar e to Plaintiff

. I recommend that the Court conclu de that

t h e sale price f

or the Properties is $850,000.00 and that , beginning as of January 25, 2021, prejudgment interest at the legal rate should be adde d to th e sale price ,

141 Arbi tr ium (Cayman Islands) Handels AG v. Johnston , 705 A.2d 225, 232 (Del . Ch. 1997), aff’d, 7 20 A.2d 542 (Del. 1998) (citations omitted).
142 See D.I. 30, Ex. J.
143 Hastings st ates 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 fina l amount of sale proceeds to be exchanged for t he transfer of the Properties between the partie s. I further recommend that the Court decline to

a ward attorneys ’ fees to eithe r party. This is a f inal r eport, and exceptions may be
taken und er Court of Chancery Rule 1 44

. The parties shall submit an implementing order ( ref

lect ing reductions for rent and additions for interest ) withi n 15 days of this report becoming final , and the sale of the Properti es shall take place
within 45 days after th e implementing order is entered

.
/s/ Patricia W. Griffin Mas te r Patri ci a W. G ri ffi n