COURT OF CHANCERY

OF THE

STATE OF DELAWARE

BONNIE W. DAVID

MAGISTRATE IN CHANCERY

COURT OF CHANCERY COURTHOUSE

34 THE CIRCLE

GEORGETOWN, DE 19947

April 10, 2024

Dean A. Campbell, Esquire

Law Office of Dean A. Campbell, P.A. 

703 Chestnut Street

Milton, Delaware 19968

David Carl Zerbato, Esquire

Morton, Valihura & Zerbato LLC

17527 Nassau Commons Boulevard

Suite 107

Lewes, Delaware 19958

RE: Donald E. Polk, Jr. v. Dennis R. Stewart, et al.,

C.A. No. 2021-1074-BWD

Dear Counsel:

As you know, on April 8, 2024, this action, which was previously assigned to 

Vice Chancellor Glasscock, was reassigned to me. See Dkt. 45. Since then, I have 

closely reviewed Defendants’ Motion for Summary Judgment (the “Motion”), the 

parties’ briefing, exhibits, and supplemental submissions in connection with the 

Motion, and the transcript of the oral argument during which the Court took the 

Motion under advisement. See Dkts. 33-34, 37, 39-42. For reasons explained below, 

the Motion is denied.

As alleged in his Complaint for Specific Performance (the “Complaint”), the 

plaintiff in this action, Donald E. Polk, Jr. (“Plaintiff”), entered into an installment 

contract with defendants Dennis R. Stewart and Joyce A. Stewart (“Defendants”) to 
Donald E. Polk, Jr. v. Dennis R. Stewart, et al.,

C.A. No. 2021-1074-BWD

April 10, 2024

Page 2 of 4

purchase property in Long Neck, Delaware (the “Property”) for $303,000. Compl. 

For Specific Performance [hereinafter, “Compl.”] ¶ 3, Dkt. 1. The contract required 

Plaintiff to pay monthly installments over a five-year period and then to pay the 

balance of the purchase price by June 30, 2020. Id. ¶¶ 3-4. The parties later extended 

the contract term until December 31, 2020. Id. ¶ 6. Plaintiff asserts that he made 

arrangements with his sister, Donna, to obtain financing but Defendants repudiated 

the contract and refused to sell the Property to Plaintiff. Id. ¶¶ 6-8. The Complaint

seeks an order compelling specific performance of the contract. Id. ¶¶ 14-21. 

In response to the Complaint, Defendants have asserted counterclaims for 

breach of contract and unjust enrichment. See Dkt. 21. If the Motion is granted, the 

counterclaims nevertheless will proceed to a trial, which is currently scheduled for

July 9 and 10, 2024. Dkt. 44. 

“[T]here is no absolute right to summary judgment, and it is within the 

discretion of the presiding judicial officer to require a developed record before 

rendering a decision on the merits.” Gerald N. & Myrna M. Smernoff Rev. Trs. v. 

King’s Grant Condo. Assn., 2022 WL 6331860, at *1 (Del. Ch. Oct. 10, 2022)

(footnote omitted). “Even where the facts are not in dispute, a court may decline to 

grant summary judgment where a more thorough exploration of the facts is needed 

to properly apply the law to the circumstances.” In re Tri-Star Pictures, Inc., Litig., 
Donald E. Polk, Jr. v. Dennis R. Stewart, et al.,

C.A. No. 2021-1074-BWD

April 10, 2024

Page 3 of 4

1995 WL 106520, at *5 (Del. Ch. Mar. 9, 1995); see also In re El Paso Pipeline 

P’rs, L.P. Deriv. Litig., 2014 WL 2768782, at *9 (Del. Ch. June 12, 2014) (“[T]he 

court may, in its discretion, deny summary judgment if it decides upon a preliminary 

examination of the facts presented that it is desirable to inquire into and develop the 

facts more thoroughly at trial in order to clarify the law or its application.”).

In support of the Motion, Defendants argue, among other things, that 

“Plaintiff was neither ready nor able to purchase the Property” in December 2020

and is still “unable to purchase the Property[]” today. Defs.’ Br. In Supp. Of Defs.’ 

Mot. For Summ. J. [hereinafter, “OB”] at 15, Dkt. 34. Plaintiff, on the other hand, 

says the evidence at trial will show that but for Defendants’ repudiation of the 

contract, Plaintiff would have been ready and able to perform, and remains so today. 

Pl.’s Ans. Br. To Def.’s Mot. For Summ. J. [hereinafter, “AB”] at 5-7, Dkt. 37. 

Defendants also contend that the equities weigh against an order of specific 

performance because Plaintiff has engaged in “inequitable, . . . disingenuous, 

vindictive and malicious” conduct. OB at 20. Plaintiff responds that “without a 

complete factual record, the Court cannot engage in a balance of the equities.” AB 

at 10-11. 

After careful review of the parties’ submissions, I have concluded that the 

Motion implicates fact questions that will be resolved most efficiently after trial, 
Donald E. Polk, Jr. v. Dennis R. Stewart, et al.,

C.A. No. 2021-1074-BWD

April 10, 2024

Page 4 of 4

which, regardless of the outcome of the Motion, is necessary to resolve Defendants’ 

counterclaims. The Motion is, therefore, denied. I will consider the arguments 

raised in connection with the Motion when rendering my post-trial final report. 

This is a final report pursuant to Court of Chancery Rule 144. In the interest 

of judicial and litigant economy, exceptions are stayed pending final resolution of 

this matter after trial.

Sincerely,

/s/ Bonnie W. David

Bonnie W. David

Magistrate in Chancery

cc: All counsel of record (by File & ServeXpress)