IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 

IN AND FOR NEW CASTLE COUNTY

DEERE & COMPANY, a Delaware 

corporation,

 

 Plaintiff,

 

 v.

EXELON GENERATION 

ACQUISITIONS, LLC, a Delaware 

limited liability company, 

 

 Defendant.

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)C.A. No. N13C-07-330 MMJ

)CCLD 

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Submitted: June 11, 2015

Decided: July 13, 2015

Upon Deere & Company’s Motion for Reargument 

GRANTED

MEMORANDUM OPINION

Peter J. Walsh, Jr., Esq. (argued), Matthew F. Davis, Esq., Jacob R. Kirlman, 

Esq., Potter Anderson & Corroon, LLP, Attorneys for Plaintiff

Geoffrey A. Kahn, Esq. (argued), David J. Margules, Esq., Ballard Spahr, LLP, 

Attorneys for Defendant

JOHNSTON, J.
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PRIOR RULINGS

The Complaint of Deere & Company alleged breach of contract, breach of 

the implied covenant of good faith and fair dealing, and unjust enrichment. The 

dispute arises out of an August 30, 2010 purchase agreement (the “Agreement”). 

Upon the motion of Defendant Exelon Generation Acquisitions, LLC, the Court 

dismissed Deere’s breach of the implied covenant of good faith and fair dealing 

and unjust enrichment claims. The Court ruled:

Finally, Exelon moves to dismiss Deere’s claim for 

unjust enrichment. Exelon contends that Deere’s claim 

for unjust enrichment is barred because the Purchase 

Agreement governs the parties’ relationship and the 

matter in dispute. Unjust enrichment is “the unjust 

retention of a benefit to the loss of another, or the 

retention of money or property of another against the 

fundamental principles of justice or equity and good 

conscience.

1

 When an express, enforceable contract 

controls the parties’ relationship, a claim for unjust 

enrichment is not available because the contract itself is 

the measure of the parties’ rights.2

Exelon asserted two counterclaims – recoupment and unjust enrichment. 

Deere moved to dismiss both counterclaims.

By opinion dated, November 10, 2014, this Court held:

Deere relies upon Deere v. Exelon, this Court’s March 7, 

2014 opinion dismissing Deere’s unjust enrichment claim 

because the Agreement governed the parties’ relationship 

 1 Kuroda v. SPJS Holdings, L.L.C., 971 A.2d 872, 891 (Del. Ch. 2009).

2 Deere & Co. v. Exelon Generation Acquisitions, LLC, 2014 WL 904251, at *5 (Del. Super.) 

(citing Kuroda, 971 A.2d at 891).
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and the matter, the payment of the earn-out, in dispute.3

 

Exelon’s claim for unjust enrichment is substantially 

different from Deere’s. In Deere, the matter in dispute 

was payment of the earn-out for completion of the 

Blissfield Wind Project.4

 Payment of the earn-out is 

expressly addressed by the parties in Section 2.6(a)(iii) in 

the Agreement.5 Here, the matter in dispute, the offset of 

any recovery by the expense Exelon allegedly incurred to 

complete the wind project in Gratiot County, is not 

addressed in the Agreement. The Agreement does not 

contain a provision addressing the parties’ obligations in 

the event that the Blissfield Wind Project could not be 

developed in Lenawee County. I find that Exelon’s 

unjust enrichment claim has sufficient merit to survive a 

motion to dismiss.6

PARTIES CONTENTIONS

Deere now moves for reargument. Deere contends that the Court 

misapprehended the facts underlying Exelon’s claim and the purpose of Section 

2.6(b) of the Agreement. Deere argues that Section 2.6(b) of the Agreement places 

the burden of continuing development of the Blissfield Wind Project, including the 

risk of increased or unforeseen cost, on Exelon. Therefore, the $10 million 

expended by Exelon in relocating the Blissfield Wind Project to Gratiot County 

was an expenditure contemplated by Section 2.6(b) and cannot be recovered under 

an unjust enrichment theory. 

 3 Deere, 2014 WL 904251, at *5. 4 Id. 5 Id. at *1.

6 Deere & Co. v. Exelon Generation Acquisitions, LLC, 2014 WL 6674471, at *4 (Del. Super.).
4

Exelon argues that the Court was correct in denying Deere’s Motion to 

Dismiss Exelon’s unjust enrichment claim. The Court found that the Agreement 

does not address Exelon’s obligations in the event that the Blissfield Wind Project 

was unable to be developed in Lenawee County. Exelon contends that it has a 

viable claim for unjust enrichment. Exelon claims that the $14 million earn-out 

provision triggered by Section 2.6(a) of the Purchase Agreement is subject to a setoff for the $10 million Exelon spent relocating the Blissfield Wind Project to 

Gratiot County. 

REARGUMENT STANDARD

The purpose of moving for reargument is to seek reconsideration of findings 

of fact, conclusions of law, or judgment of law.7 Reargument usually will be 

denied unless the moving party demonstrates that the Court overlooked a precedent 

or legal principle that would have a controlling effect, or that it has 

misapprehended the law or the facts in a manner affecting the outcome of the 

decision. “A motion for reargument should not be used merely to rehash the 

arguments already decided by the court.”8

 7 Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (1969).

8 Wilmington Trust Co. v. Nix, Del. Super., 2002 WL 356371, Witham, J. (Feb. 21, 2002); 

Whitsett v. Capital School District, Del. Super., C.A. No. 97C-04-032 Vaughn, J. (Jan. 28, 

1999); Monsanto Co. v. Aetna Casualty & Surety Co., Del. Super., C.A. No. 88-JA-118, 

Ridgeley, P.J. (Jan. 14, 1994).
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ANALYSIS

In the March 7, 2014 Opinion, the Court ruled that if the Agreement governs 

the payment of the disputed earn-out, the unjust enrichment cause of action cannot 

stand. In the November 10, 2014 Opinion, the Court reasoned that Exelon’s unjust 

enrichment claim should not be dismissed because the Agreement does not address 

the parties’ obligations in the event that the Blissfield Wind Project could not be 

developed in Lenawee County. 

Upon reconsideration, the Court finds that Deere was correct to call attention 

to the inconsistency between the Court’s two opinions. Section 2.6(b) of the 

Agreement provides that Exelon was required to use “commercially reasonable 

efforts” to develop and complete the Blissfield Wind Project. Section 2.6(b) states 

that “the details and manner of such development efforts and the schedule therfor 

[sic] shall be within the sole discretion of [Exelon].” 

A determination must be made as to whether or not the Agreement applies to 

development of the project, including relocation from Lenawee County to Gratiot 

County. If the Agreement applies, the earn-out provision of Section 2.6(a) would 

be triggered and Section 2.6(b) would govern the expenses incurred by Exelon in 

relocating the Blissfield Wind Project to Gratiot County. If the Agreement does 

not apply, the Section 2.6(a) earn-out provision would not be triggered, and 
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therefore, Exelon’s unjust enrichment claim would not apply and would be

rendered irrelevant. 

THEREFORE, Plaintiff’s Motion for Reargument is hereby GRANTED. 

Defendant’s Counterclaim for unjust enrichment is hereby DISMISSED.

IT IS SO ORDERED.

/s/ Mary M. Johnston__________

The Honorable Mary M. Johnston