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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

AMERSCAPE, LLC,

Plaintiff,

v.

ACACIA COMMERCIAL 

SERVICES, INC., ACACIA 

FACILITIES SERVICES, LLC; 

ISAAC HOWELL, REBECCA 

HOWELL and EQUVEST LLC.

Defendants.

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) C.A. No. N21C-01-078 CLS

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Date Submitted: May 9, 2022

Date Decided: June 22, 2022

Upon Defendant’s Motion to Dismiss Count 4 of Plaintiff’s Amended Complaint.

DENIED.

ORDER

Charles J. Brown, III, Esquire, Gellert Scali Busenkell & Brown, LLC, 

Wilmington, Delaware, 19801, Attorney for Plaintiff, Amerscape, LLC. 

Artemio C. Aranilla, Esquire, MacElree Harvey, LTD., Hockessin, Delaware, 

19707, Attorney for Defendants, Acacia Commercial Services, Inc., Acacia 

Facilities Services, LLC, Isaac Howell, Rebecca Howell, and Equvest LLC.

SCOTT, J.
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INTRODUCTION

Before the Court is Defendants Acacia Commercial Services, Inc., Acacia 

Facilities Services, LLC, Isaac Howell, Rebecca Howell, and Equvest LLC’s

(“Defendants”) Motion to Dismiss (“Motion”) Count 4 of Plaintiff Amerscape 

LLC’s (“Amerscape”) Complaint. The Court has reviewed the Motion and 

Amerscape’s opposition. For the reasons below, Defendants’ Motion to Dismiss is 

DENIED.

ALLEGED FACTS

This cause of action arises out of a representation agreement (“Agreement”) 

between Defendants and Amerscape. According to the Amended Complaint, 

Defendant Isaac Howell along with his spouse Rebecca Howell own and control 

Acacia and Acacia Facility. Both Amerscape and Acacia were engaged in the 

business of providing landscape, property maintenance, and snow and ice removal 

services. Pursuant to the Agreement, Amerscape facilitated the transfer of both its

Landscaping and Snow clients to Acacia identified as the “Legacy Portfolio” and

agreed to refrain from engaging in any future business of landscape, property

maintenance and snow and ice removal services. Pursuant to the Agreement Acacia 

agreed to pay Amerscape a total of $300,000.00 with $50,000.00 due at the time that 

all of the Amerscape client’s identified as the Legacy Portfolio signed contracts as 

listed in the Agreement Exhibit A with Acacia and with Acacia paying the balance 
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of $250,000.00 based upon monthly payments of ten percent of the gross margin as 

defined in Agreement Paragraph 2 that Acacia received from the Amerscape snow 

removal clients listed in the Agreement Exhibit C who had signed contracts with 

Acacia.

The Agreement also provided that Acacia could but was not obligated to offer 

employment to certain employees of Amerscape as Acacia required those employees 

to pass drug and background checks prior to being hired. Acacia did hire some 

employees (“Amerscape Former Employees”) 

In or about September of 2019, Acacia began to terminate the Amerscape 

Former Employees. Amerscape alleges Defendants breached their obligations under 

the Agreement in that Acacia has failed to remit monthly payments to Amerscape 

required under the Agreement Paragraph 2 within 20 days of the following calendar 

month and Acacia has failed to provide Amerscape with the detailed calculations as 

required by contract for determining the gross profit margin. 

Further, Amerscape alleges after termination of the Amerscape Employees, 

Isaac Howell and Rebecca Howell and Equvest formed Acacia Facility in or about 

June of 2020. Amerscape further alleges Equvest, Isaac Howell and Rebecca Howell 

formed Acacia Facility for the purpose of shifting the Legacy accounts that 

Amerscape had transferred to Acacia to Acacia Facility.
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Upon information and belief, Acacia received no consideration from Acacia 

Facility for the transfer of former Amerscape Legacy accounts. Acacia, Acacia 

Facility, Equvest, Isaac Howell and Rebecca Howell failed to disclose to Amerscape 

that the former Amerscape accounts had been transferred from Acacia to Acacia 

Facility.

Equvest, Isaac Howell and Rebecca Howell transferred the former Amerscape 

accounts from Acacia into the name of Acacia Facility for the purposes of ensuring 

that Acacia would be unable to satisfy its obligations owed to Amerscape.

Equvest, Isaac Howell and Rebecca Howell transferred the former Amerscape 

accounts from Acacia into the name of Acacia Facility with the intent to hinder, 

delay or defraud Amerscape and remove assets from Amerscape’s reach. Equvest, 

Isaac Howell and Rebecca Howell transferred the former Amerscape accounts from 

Acacia into the name of Acacia Facility without fair consideration and at a time or 

times when Acacia was legally insolvent or rendered insolvent by the conveyances.

Equvest, Isaac Howell and Rebecca Howell transferred the former Amerscape 

accounts from Acacia into the name of Acacia Facility believing that Acacia would 

incur debts beyond its ability to payas they matured.

The transfer by Equvest, Isaac Howell and Rebecca Howell of the former 

Amerscape Legacy accounts from Acacia into the name of Acacia Facility were 
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fraudulent as to Amerscape who is a creditor of Acacia with a claim in excess of 

$250,000.00.

STANDARD OF REVIEW

In Delaware, “courts have consistently followed the standards of Superior 

Court Civil Rule 12(b)(6) when considering motions to dismiss writ of mandamus 

petitions.”1 The test for sufficiency of a complaint challenged by a Rule 12(b)(6) 

motion to dismiss is whether a plaintiff may recover under any reasonably 

conceivable set of circumstances susceptible of proof under the complaint.2 In 

making its determination, the Court must accept all well-pleaded allegations in the 

complaint as true and draw all reasonable factual inferences in favor of the nonmoving party.3

 The complaint must be without merit as a matter of fact or law to be 

dismissed.4 Therefore, if the plaintiff can recover under any conceivable set of 

circumstances susceptible of proof under the complaint, the motion to dismiss will 

not be granted.5

1 Allen v. Coupe, 2016 WL 676041, at *2 (Del. Super. Ct. Feb. 18, 2016).

2 Spence v. Funk, 396 A.2d 967, 968 (1978); see Cambium Ltd. v. Trilantic Capital 

Partners III L.P., 2012 WL 172844, at *1 (Del. Jan. 20, 2012)(citing Cent. Mortg. 

Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 537 (Del. 2011)).

3 Ramunno v. Cawley, 705 A.2d 1029, 1034-36 (Del. 1998); Nix v. Sawyer, 466 A.2d 

407, 410 (Del. Super. Ct.1983).

4 Diamond State Tel. Co. v. University of Delaware, 269 A.2d 52 (Del. 1970).

5 Ramunno, 705 A.2d at 1034; see Cambium, 2012 WL 172844, at *1 (citing Cent. 

Mortg., 27 A.3d at 537)).
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Delaware is a “notice pleading” state, and in most civil actions the rules of 

procedure require that the plaintiff simply provide a short and plain statement which 

gives the defendant “fair notice of a claim[.]”6 The plaintiff “need not plead 

evidence, but allege facts that, if true, state a claim upon which relief can be 

granted.”7 Superior Court Civil Rule 9(b) deviates from this general rule and imposes 

a heightened pleading standard for allegations of fraud.

Rule 9(b) states that “[i]n all averments of fraud, negligence or mistake, the 

circumstances constituting fraud, negligence or mistake shall be stated with 

particularity.”8“The factual circumstances that must be stated with particularity 

refer to the time, place, and contents of the false representations; the facts 

misrepresented; the identity of the person(s) making the misrepresentation; and what 

that person(s) gained from making the misrepresentation.”9Intent, knowledge, 

malice, and other states of mind may be averred generally.10 However, if the central 

facet of the claim of fraud is a “charge that the defendant knew something, there 

must be sufficient well-pled facts from which it can be reasonably inferred that this 

6 VLIW Technology, LLC v. Hewlett-Packard Co., 840 A.2d 606, 611 (Del. 2003) 

(citing Michelson v. Duncan, 407 A.2d 211, 217 (Del. 1979)).

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Id.

8 Super. Ct. Civ. R. 9(b).

9 Trenwick Am. Litig. Tr. v. Ernst & Young, L.L.P., 906 A.2d 168, 207-08 (Del. Ch. 

2006), aff'd sub nom. Trenwick Am. Litig. Tr. v. Billett, 931 A.2d 438 (Del. 2007).

10 Super. Ct. Civ. R. 9(b).
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something was knowable and that the defendant was in a position to know it.”11

Failure to plead with sufficient particularity can warrant dismissal of a fraud claim.

In most cases, when the Superior Court considers a 12(b)(6) motion, it limits 

analysis to the “universe of facts” within the complaint and any attached 

documents.12 This rule protects parties from the harm that may be caused by a lack 

of notice.13 The court, however, may consider documents outside the pleadings when 

“the document is integral to a plaintiff's claim and incorporated into the complaint,” 

or “when the document is not being relied upon to prove the truth of its contents.”14

11 Trenwick, 906 A.2d at 208.

12 In re General Motors (Hughes) S'holder Litig., 897 A.2d 162, 168 (Del. 2006) 

(citing Malpiede v. Townson, 780 A.2d 1075, 1082 (Del. 2001), In re Santa Fe 

Pac. Corp. S'holder Litig., 669 A.2d 59, 69 (Del. 1995),

13 In re Gardner Denver, Inc., 2014 WL 715705, at *2 (Del. Ch. Feb. 21, 2014) 

(citing In re Morton's Rest. Grp., Inc. S'holders Litig., 74 A.3d 656, 658 n.3 (Del. 

Ch. 2013) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 

2002)), and State ex rel. Brady v. Pettinaro Enters., 870 A.2d 513, 523 (Del. Ch. 

2005)); 5C Fed. Prac. & Proc. Civ. § 1366 (3d ed.) (In the federal context: 

“Generally, the harm to the plaintiff when a court considers material extraneous to 

a complaint on a Rule 12(b)(6) motion is the lack of notice that the material may 

be considered. Accordingly, when the plaintiff has actual notice of all the 

information in the movant's papers and has relied upon these documents in framing 

the complaint, the necessity of converting a Rule 12(b)(6) motion into one under 

Rule 56 is largely dissipated.”).

14 Vanderbilt Income & Growth Assoc., L.L.C. v. Arvida/JMB Managers, Inc., 691 

A.2d 609, 613 (Del. 1996) (citing In re Santa Fe, 669 A.2d at 69–70).
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Additionally, “[t]he trial court may also take judicial notice of matters that are not 

subject to reasonable dispute.”15

DISCUSSION

To establish a fraudulent transfer claim, a plaintiff must show either “actual 

intent to hinder, delay or defraud any creditor” or inadequate value received for a 

transfer, combined with either insufficient assets for business or at least 

constructive belief that the transferor would incur debts exceeding its ability to 

repay them as they come due.16 It is not enough to make conclusory allegations 

mirroring the elements in the fraudulent transfer statute.17 Claims for actual 

fraudulent transfer under Section 1304(a)(1) “must meet the heightened pleading 

standard of Superior Court Civil Rule 9(b).”18 Under Rule 9(b), Amerscape must 

include “specific supporting facts describing the circumstances of the transfer.”19

15 In re General Motors, 897 A.2d at 169 (citing D.R.E. 201(b)); see In re Gardner 

Denver, Inc., 2014 WL 715705, at *2 (Noting that this Court has recognized three 

occasions where a court may consider documents extraneous to a complaint: “(i) 

when the document is integral to a plaintiff's claim and incorporated into the 

complaint; (ii) when the document is not being relied upon to prove the truth of its 

contents; and (iii) when the document, or a portion thereof, is an adjudicative fact 

subject to judicial notice.”

16 6 Del. C. § 1304(a)(2).

17 See Hospitalists of Del., LLC v. Lutz, 2012 WL 3679219, at *13 (Del. Ch. Aug. 

28, 2012) (“[S]imply reciting the statutory or common law elements of an 

offense...is insufficient to state a claim upon which relief may be granted.”).

18 Ki-Poong Lee v. So, 2016 WL 6806247 at * 3 (Del. Super. Nov. 17, 2016).

19 Id. at *4.
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Allegations based “upon information and belief” are not enough to satisfy Rule 

9(b)’s requirements.20

Amerscape’s allegations satisfy Rule 9(b)’s particularity requirements. 

Under Section 1304(a), Amerscape must plead Defendants actually intended to 

hinder, delay, or defraud Amerscape.21 Amerscape’s allegations seem conclusory; 

however, Section 1304(b) provides otherwise.

One of the factors that may be given consideration when determining actual 

intent is whether the transfer was to an insider.22 Under Section 1301(7)(d), a 

person in control of a corporation or a partnership is an insider.23 Amerscape

alleges Isaac and Rebecca Howell own and operate Acacia and along with Equvest, 

they formed Acacia Facility for the purpose of transferring accounts. These 

relationships, at this stage of the proceedings, satisfy “insider” statutory definition 

under Section 1301(1) and, therefore, support Amerscape’s allegation that the

Defendants were “insiders.”24

In addition, Amerscape states that Defendants failed to disclose the transfer. 

Another factor to consider when determining actual intent is whether the transfer 

20 See id.

21 See 6 Del. C. § 1304(a).

22 See 6 Del. C. § 1304(b)(1).

23 See 6 Del. C. § 1301(7)(b)(3) and (c)(5).

24 6 Del. C. § 1304(d)(1).
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was concealed.25 Factual allegations regarding concealment and insider status are 

enough to satisfy Civil Rule 9.26

Amerscape alleges sufficient facts that show the Defendants were insolvent 

or became insolvent shortly after the transfer was made or the obligation was 

incurred.27 Under Section 1302(b), a “debtor who is generally not paying debts as 

they become due is presumed to be insolvent.”28 Amerscape alleges Defendants 

transferred the accounts so Defendants would not be able to satisfy its obligations 

owed to Amerscape and additionally alleges Defendants failed to remit monthly 

payments to Amerscape required under the Agreement. Accordingly, the Court 

finds that Amerscape alleged sufficient facts to show that the debtor was insolvent 

or became insolvent shortly after the transfer was made.

Finally, Amerscape also alleges sufficient facts to show that Defendants

retained possession or control of the property after the transfer. Amerscape alleges 

that Defendants, by virtue of its ownership interest and control in Acacia, retained 

possession or control of the property transferred even after the transfers. As such, 

Amerscape plead specific facts with sufficient particularity to support the 

25 6 Del. C. § 1304(d)(3).

26 CIBC Bank USA v. JH Portfolio Debt Equities, LLC, 2021 WL 2230976, at *10 

(Del. Super. Ct. June 2, 2021).

27 See 6 Del. C. § 1304(b)(9).

28 6 Del. C. § 1302(b).
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allegation that Defendants retained possession or control of the property after the 

transfer.

The Court finds that Amerscape has alleged facts to satisfy the statute as to 

actual intent. Moreover, Amerscape alleges with sufficient particularity that

Defendants became insolvent shortly after the transfer and that Defendants retained 

control of the distributions after the transfer. The Court finds that allegations of 

actual intent are sufficient for Amerscape's fraudulent transfer claim to survive. 

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED.

/s/ Calvin L. Scott

Judge Calvin L. Scott, Jr.