COURT OF CHANCERY

OF THE

STATE OF DELAWARE

BONNIE W. DAVID

MAGISTRATE IN CHANCERY

COURT OF CHANCERY COURTHOUSE

34 THE CIRCLE

GEORGETOWN, DE 19947

Date Submitted: October 27, 2023

Final Report: October 30, 2023

Stephen A. Spence, Esquire 

Meluney Alleman & Spence, LLC

1143 Savannah Rd., Suite 3-A

Lewes, Delaware 19958

Daniel C. Herr, Esquire

Law Office of Daniel C. Herr LLC

1225 N. King St., Suite 1000

Wilmington, Delaware 19801

RE: Schell Brothers, LLC v. Pickard,

C.A. No. 2022-0642-BWD

Dear Counsel:

In this action, Schell Brothers, LLC (“Schell Brothers”) and Reddenwood II 

(together, “Petitioners”) seek to enforce an addendum to a purchase agreement 

through which Shawn and Lori Pickard (“Respondents”) agreed to purchase, and 

Petitioners agreed to sell, a new construction home in Milton, Delaware. The 

addendum entitled Mr. Pickard, as a Schell Brothers employee, to an employee 

discount on the purchase price of the home. To retain that discount, however, the 

addendum required that Pickard remain employed by Schell Brothers for three years 

following the issuance of the home’s certificate of occupancy. Respondents agreed 

that if they failed to repay the discount within thirty days of Pickard’s termination, 

they would list the home for sale and, subject to Schell Brothers’ first option to 
Schell Brothers, LLC v. Pickard,

C.A. No. 2022-0642-BWD

October 30, 2023

Page 2 of 13

purchase the home, use the proceeds of a sale to reimburse Petitioners the amount of 

the discount.

Pickard was terminated from Schell Brothers less than three years after the 

certificate of occupancy was issued. Respondents did not repay the employee 

discount, and Petitioners initiated this action to enforce the purchase agreement

addendum. On March 21, 2023, I issued a final report denying Respondents’ motion 

to dismiss on the grounds that the addendum was illusory and unenforceable, holding

that the purchase agreement (including the addendum) was a valid and binding 

contract.

1

Petitioners now seek summary judgment on their claim for breach of contract 

and an award of specific performance. The March 21, 2023 final report determined 

that the addendum is valid and binding, and Petitioners undisputedly stand ready and 

willing to perform. In this final report, I conclude that the balance of the equities 

also favors an award of specific performance. Respondents no longer reside in the 

home and do not claim that an order of specific performance would harm them in 

any way; the parties contractually agreed that Petitioners are entitled to specific 

performance; and even if they had not, remedies available at law would not afford 

1 See Schell Bros., LLC v. Pickard, 2023 WL 2581711 (Del. Ch. Mar. 21, 2023).
Schell Brothers, LLC v. Pickard,

C.A. No. 2022-0642-BWD

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Petitioners full, fair, and complete relief. Accordingly, I recommend that the Court 

grant Petitioners’ motion for summary judgment and order Respondents to 

specifically perform their obligations under the purchase agreement and addendum.

I. FACTUAL BACKGROUND

The following facts are undisputed. Petitioner Schell Brothers, a Delaware 

limited liability company, is a homebuilding company based in Rehoboth Beach, 

Delaware. As a tool to recruit and retain employees, Schell Brothers offers 

employees an “Employee Discount” toward the purchase of a new construction 

home. In July 2019, Schell Brothers hired Respondent Shawn D. Pickard as a pilot 

for its corporate aircraft. Schell Brothers offered Pickard, as a new employee, the 

opportunity to apply the Employee Discount toward the purchase of a new 

construction home.

On July 1, 2019, Pickard and his wife, Respondent Lori D. Pickard, signed a 

Delaware Purchase Agreement (the “Purchase Agreement”), pursuant to which the 

Pickards agreed to purchase a new construction home in the Estates at Reddenwood 

Community in Milton, Delaware (the “Property”). Am. Pet., Ex. A [hereinafter, 

“Purchase Agreement”], Dkt. No. 12. Contemporaneous with the Purchase 

Agreement, the Pickards signed an addendum (the “Employee Addendum”), which 

states that to be eligible for an Employee Discount, the Pickards “must use the Home 
Schell Brothers, LLC v. Pickard,

C.A. No. 2022-0642-BWD

October 30, 2023

Page 4 of 13

as [their] primary residence.” Am. Pet., Ex. B [hereinafter, “Employee Addendum”] 

¶ 5. The Employee Addendum also provides that, “[s]hould [Pickard] voluntarily 

cease employment with Schell Brothers or be terminated within 3 years of the date 

a certificate of occupancy is issued for the Home,” the Pickards must reimburse the 

Employee Discount. Id. ¶ 7. Additionally,

In the event that Employee/Buyer does not reimburse Schell Brothers 

the full amount of the Employee Discount within 30 days, 

Employee/Buyer agrees to put the Home on the market for sale within 

60 days of the date Employee/Buyer ceases to be employed with Schell 

Brothers. Employee/Buyer shall notify Schell Brothers 15 days prior 

to listing or otherwise offering the Home for Sale. Schell Brothers has 

the first option to purchase the Home from the Employee/Buyer at the 

original cost calculated as the total “Sales Price” of the Home and/or 

lot as shown on the HUD1/ALTA documents. Should Schell Brothers 

choose not to exercise its right, Employee/Buyer shall notify Schell 

Brothers of the date on which the Home is listed or otherwise offered 

for sale. Employee/Buyer shall provide Schell Brothers with the 

ratified agreement of sale and use the proceeds of the sale to reimburse 

Schell Brothers the full amount of the Employee Discount within 30 

days of the date of the sale. If the proceeds from the sale of the Home 

are insufficient to fully reimburse Schell Brothers for the Employee 

Discount, Employee/Buyer shall still be obligated to reimburse Schell 

Brothers for the difference between the full amount of the Employee 

Discount and the amount provided to Schell Brothers from the sale of 

the Home.

Id. (emphasis added).

A certificate of occupancy was issued for the Property on May 28, 2020. Am. 

Pet., Ex. G. Less than three years later, on January 24, 2022, Schell Brothers 
Schell Brothers, LLC v. Pickard,

C.A. No. 2022-0642-BWD

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terminated Pickard’s employment, purportedly for cause. Following Mr. Pickard’s 

termination, Schell Brothers notified Respondents that, pursuant to the Employee 

Addendum, Respondents were required to reimburse Schell Brothers for the full 

amount of the Employee Discount—$237,812.00—within thirty days of termination 

or put the Property on the market within sixty days of termination. Am. Pet., Ex. J. 

When the Pickards failed to do so, Petitioners initiated this litigation, seeking, among 

other things, a declaration that Respondents breached the Employee Addendum, 

specific performance, and an equitable lien on the Property in the amount of the 

Employee Discount. Dkt. No. 1.

Respondents then moved to dismiss, arguing that the Purchase Agreement and 

the Employee Addendum must be viewed as separate agreements, and the Employee 

Addendum, standing alone, is an “illusory” contract unsupported by consideration. 

Dkt. No. 11. On March 21, 2023, I issued a final report (the “March 21 Final

Report”) recommending that the Court deny Respondents’ motion to dismiss, 

finding that the Purchase Agreement and the Employee Addendum are part of the 

same integrated agreement, are not illusory and are supported by consideration. Dkt. 

No. 24.

On May 31, 2023, Petitioners moved for summary judgment on their claim 

for breach of contract and request for specific performance (the “Motion”). Pet’rs’ 
Schell Brothers, LLC v. Pickard,

C.A. No. 2022-0642-BWD

October 30, 2023

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Mot. for Summ. J. On Count I [hereinafter, the “Mot.”], Dkt. No. 27. On July 20, 

2023, Respondents filed an opposition to the Motion, as well as motions to dismiss 

for lack of subject matter jurisdiction and to lift the lis pendens on the Property. 

Resp’ts’ Response In Opp’n To Pet’rs’ Mot., Resp’ts’ Mot. To Dismiss, & Resp’ts’ 

Mot. to Lift the Lis Pendens [hereinafter, “Resp’ts’ Opp’n”], Dkt. No. 31.2

II. ANALYSIS

Summary judgment will be granted if “there is no genuine issue as to any 

material fact and . . . the moving party is entitled to judgment as a matter of law.” 

Ct. Ch. R. 56(c). Under Court of Chancery Rule 56, “[t]he movants have the initial 

burden of demonstrating the absence of a material factual dispute. If the movants 

meet their burden, the burden shifts to the nonmovant to present some specific, 

admissible evidence that there is a genuine issue of fact for a trial.” Ogus v. 

SportTechie, Inc., 2023 WL 2746333, at *9 (Del. Ch. Apr. 3, 2023) (footnote and 

internal quotation marks omitted). At that point, “an adverse party may not rest upon 

2 On August 18, 2023, Petitioners filed a combined reply in further support of the Motion 

and opposition to Respondents’ motions. Pet’rs’ Reply In Supp. Of Their Mot. For Summ. 

J. On Count I & Opp’n To Resp’ts’ Mot. To Dismiss and Lift Lis Pendens [hereinafter, 

“Pet’rs’ Reply”], Dkt. No. 34. On September 25, 2023, Respondents filed their sur-reply 

in support of their motions to dismiss and to lift the lis pendens. Resp’ts’ Reply In Further 

Supp. Of Mot. To Dismiss Pursuant To R. 12(h)(3) & Mot. To Lift Lis Pendens

[hereinafter, “Sur-Reply”], Dkt. No. 37.
Schell Brothers, LLC v. Pickard,

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the mere allegations or denials of the adverse party’s pleading . . . .” Ct. Ch. R. 

56(e). 

Petitioners move for summary judgment on Count I of their Verified

Amended Petition, which claims that Respondents breached the Employee 

Addendum and seeks to enforce the Employee Addendum through an order of 

specific performance requiring the Pickards to list and sell the Property, subject to 

Schell Brothers’ first option to purchase the Property, to generate sufficient funds to 

reimburse Petitioners the full Employee Discount. Mot. at 7; Pet’rs’ Reply at 1. 

“Specific performance for the transfer of real property is an extraordinary remedy,” 

not to be awarded “lightly.” Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1158 

(Del. 2010). To establish entitlement to specific performance, the party seeking 

specific performance must demonstrate by clear and convincing evidence that “(1) 

a valid contract exists, (2) he is ready, willing, and able to perform, and (3) that the 

balance of equities tips in favor of the party seeking performance.” Id. Specific 

performance is available only if there is no adequate remedy at law. Id.

The March 21 Final Report determined that the parties entered a valid

contract. In opposing the Motion, Respondents do not dispute the validity of the 

Employee Addendum, or that Petitioners are ready, willing, and able to perform 

thereunder. Resp’ts’ Opp’n at 2. Instead, Respondents contend that the balance of 
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the equities disfavors an award of specific performance, and that Petitioners have an 

adequate remedy at law. Id. at 5-6.

“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.’” Hastings Funeral Home, Inc. v. Hastings, 2022 WL 

16921785, at *8 (Del. Ch. Nov. 14, 2022) (citation omitted). Here, the undisputed 

record demonstrates that specific enforcement of the Employee Addendum would 

prevent greater harm to Petitioners than it would impose on Respondents. The 

Pickards admit that they no longer reside at the Property,3and do not claim that an 

order of specific performance would harm them in any way. On the other hand, in 

the absence of specific performance, Petitioners will lose the benefit of their bargain 

under the contract. As Petitioners note, “Schell specifically bargained for the right 

to compel the listing and sale of the Property to generate funds to allow the Pickards 

3 For this reason, this case bears no resemblance to Morabito v. Harris, where the Court 

found that “[s]pecific performance of the contract w[ould] equate to homelessness for the 

[defendants].” 2002 WL 550117, at *3 (Del. Ch. Mar. 26, 2002).
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C.A. No. 2022-0642-BWD

October 30, 2023

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to pay back the employee discount if they breached the [Employee] Addendum.” 

Mot. at 9.4 

Respondents argue that Petitioners have a sufficient remedy at law because 

they can pursue a money damages award and initiate foreclosure proceedings in 

Superior Court. See Resp’ts’ Opp’n at 4 (arguing that “an award of $239,707.00 

would provide Petitioner complete justice regarding their claims” and “Petitioners 

may take advantage of post-judgment execution remedies (at law) such as imposing 

a lien on Respondents’ real property and causing a sheriff sale of the same”). 

I disagree that remedies available at law are adequate to afford Petitioners 

“full, fair and complete” relief. United BioSource v. Bracket Hldg. Corp., 2017 WL 

2256618, at *4 (“To be adequate, ‘a legal remedy must be available as a matter of 

right, be full, fair and complete, and be as practical to the ends of justice and to 

prompt administration as the remedy in equity.’” (quoting Clark v. Teeven Hldg. 

Co., Inc., 625 A.2d 869, 881 (Del. Ch. 1992))). First, the parties agreed in the 

Employee Addendum that “[i]f [Respondents] [are] required to sell the Home and 

refuse[] to do so within the prescribed time period, [Petitioners] . . . shall be entitled 

4 Respondents contend that the balance of the equities tips against Petitioners because they 

own a corporate aircraft. Resp’ts’ Opp’n at 6. I am aware of no authority factoring plane 

ownership into the balance of the equities.
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to specific performance and/or injunctive relief.” Employee Addendum ¶ 7. “Where 

parties have expressed their expectations through a specific contractual remedy, 

Delaware law favors enforcing that remedy.” In re Cellular Tel. P’ship Litig., 2021 

WL 4438046, at *72 (Del. Ch. Sept. 28, 2021); see also, e.g., Gildor v. Optical Sols., 

Inc., 2006 WL 4782348, at *11 (Del. Ch. June 5, 2006) (“Delaware courts do not 

lightly trump the freedom to contract and, in the absence of some countervailing 

public policy interest, courts should respect the parties’ bargain.”); Dover Assocs.

Joint Venture v. Ingram, 768 A.2d 971, 973-74 (Del. Ch. 2000) (granting “an 

equitable remedy to which the [defendants] agreed” where “the parties bargained for 

this remedy in the event of default,” explaining that “[e]quity must follow the law 

whenever the rights of the parties are clearly defined and established by a legal, 

contractual right”). The parties bargained for Petitioners’ right to specific 

performance in the event of breach. Delaware law favors enforcing that right.

Second, under the Employee Addendum, “Schell Brothers has the first option 

to purchase the Home” before it is listed for sale. Employee Addendum ¶ 7. A 

money damages award would not preserve that option. See Morris v. Martin, 1996 

WL 757279, at *4 (Del. Ch. Dec. 30, 1996) (specifically enforcing a “valid and 

legally effective” right of first refusal). 
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And third, even if Petitioners elect not to exercise their right of first refusal, 

Petitioners specifically bargained for the contractual right to compel the Pickards to 

list and sell the Property to recoup the Employee Discount. Petitioners explain that 

a foreclosure proceeding would not provide an adequate remedy because “sheriff’s 

sales rarely result in the winning bid paying close to market price,” and “[a]ny 

judgment obtained by Petitioners would be junior to [a first] mortgage, so a sale 

pursuant to that judgment would be subject to the buyer assuming the mortgage, 

further lessening the chance that a sheriff’s sale would produce proceeds sufficient 

to pay back the Employee Discount.” Pet’rs’ Reply at 13 n.5. In response, 

Respondents urge that the Court must hold an evidentiary hearing to determine 

whether a sheriff’s sale would, in fact, generate insufficient proceeds. I disagree. 

Petitioners bargained for a list-and-sell process because they believed that 

procedure, compared to other remedies, would likely maximize proceeds to ensure 

the Employee Discount could be repaid. Petitioners’ right to pursue their preferred 

procedure is itself a “bargained-for benefit that money cannot adequately 

compensate.” NAMA Hldgs., LLC v. Related World Mkt. Ctr., LLC, 922 A.2d 417, 

437 (Del. Ch. 2007).

5

5 Respondents also contend that Petitioners cannot demonstrate “irreparable harm” because 

they waited five months after demanding repayment of the Employee Discount to file this 
Schell Brothers, LLC v. Pickard,

C.A. No. 2022-0642-BWD

October 30, 2023

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To summarize, Petitioners have established their entitlement to an award of 

specific performance because the undisputed facts of record demonstrate (1) the

existence of a valid contract; (2) Petitioners are ready, willing, and able to perform;

and (3) the balance of the equities favors an award of specific performance. 

Petitioners have also established that they lack an adequate remedy at law. 

Therefore, summary judgment should be entered in Petitioners’ favor on Count I.

6

litigation, and did not seek to expedite the proceedings. Sur-Reply at 5-6. Petitioners’ 

purported delay in filing suit does not render an award of money damages an adequate 

remedy.

6 Separately, Respondents move to dismiss for lack of subject matter jurisdiction. This 

Court maintains subject matter jurisdiction over complaints requesting equitable remedies 

when there is no adequate remedy at law. Smith v. Scott, 2021 WL 1592463, at *14 (Del. 

Ch. Apr. 23, 2021). Because I have concluded that Petitioners are entitled to equitable 

relief, Respondents’ motion to dismiss should be denied. Respondents also move to lift 

the lis pendens on the Property because “the claim relating to the real estate is one which, 

if sustained, would entitle the party solely to recover money or money damages.” 25 Del. 

C. § 1606(3). Because Petitioners are entitled to equitable relief in the form of specific 

performance, that motion also should be denied.
Schell Brothers, LLC v. Pickard,

C.A. No. 2022-0642-BWD

October 30, 2023

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III. CONCLUSION

For the reasons explained above, I recommend that the Motion be granted. 

This is a final report pursuant to Court of Chancery Rule 144(d)(1).7

Sincerely,

/s/ Bonnie W. David

Bonnie W. David

Magistrate in Chancery

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

7 See Ct. Ch. R. 144(d)(1) (“In actions that are not summary in nature or in which the Court 

has not ordered expedited proceedings, any party taking exception shall file a notice of 

exceptions within eleven days of the date of the report.”).