Clouser v. Marie

• Court: Superior Court of Delaware
• Decided: February 14, 2022
• Docket: N21C-03-166 FWW
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JEFFREY A. CLOUSER, ) ) Plaintiff, ) ) C.A. No. N21C-03-166 FWW v. ) ) LISA MARIE, ) ) Defendant. )

Submitted: February 3, 2022 Decided: February 14, 2022

Upon Defendant Lisa Marie’s Motion to Dismiss GRANTED.

MEMORANDUM OPINION

Jeffrey A. Clouser, 1332 Lovering Avenue, Wilmington, DE, 19806, Plaintiff, pro se.

Judy M. Jones, Esquire, PARKOWSKI, GUERKE & SWAYZE, P.A., 1105 North Market Street, 19th Floor, Wilmington, DE, 19801, Attorney for Defendant Lisa Marie.

WHARTON, J. I. INTRODUCTION

After an initial false start, pro se Plaintiff Jeffrey A. Clouser (“Clouser”) filed

an Amended Complaint (“AC”) enumerating six counts for which he seeks relief:

(1) Breach of Oral Contract (Count One); (2) Fraudulent Misrepresentation (Count

Two); (3) Tortious Interference with Prospective Business Relations (Count Three);

(4) Slander Per Se (Count Four) (5) Personal Injury of Mental Suffering and

Emotional Distress (Count Five); (5) Identifying Unknown Defendant (Count Six).1

The AC alleges, inter alia, that Marie, a licensed realtor, breached an “implied oral

contract” with Clouser to represent him in the purchase of a property at 227 Murphy

Road (“the Property”) in New Castle County.2 The other claims flow from, but are

collateral to, the alleged breach of the oral contract.3 The heart of the AC is that

Marie, after engaging with Clouser in March 2020 to explore his interest in

purchasing the Property abandoned him without notice. As a result, he was unable

to bid on the Property which ultimately sold about two months later.

Marie asks the Court to dismiss the AC pursuant to Superior Court Rules

12(b)(6) and/or 12(c).4 According to her, there was no oral contract between the

parties. She simply showed Clouser a few properties and because there was no

1 AC, D.I. 13. 2 Id. 3 Id. 4 Def.’s Mot. to Dismiss, D.I. 47. 2 written contract between them as required by law, she was free to disengage from

whatever relationship that existed between them at any time. Because she was free

to terminate the relationship at any time, the fraudulent misrepresentation claim fails

as well. Further, Clouser suffered no damages at all, much less the value of a

property he never owned. Next Marie argues that there are no facts alleged to

support the tortious interference with business claim, or his claim of mental

suffering. Finally, Marie argues that the AC alleges that Marie was the recipient of

slanderous comments about Clouser, not the one who made them.

After carefully reviewing the AC and the parties contentions, the Court

concludes for the reasons set out below that the AC fails to state a claim upon which

relief may be granted and/or Marie is entitled to judgment as a matter of law. The

factual allegations set out in the AC simply do not support Clouser’s contentions that

the parties entered into an enforceable oral contract, that Marie fraudulently

misrepresented herself, that she tortiously interfered with his business, that she

caused him compensable mental suffering, or that she slandered him. At best, the

AC describes a perceived slight when Marie, for whatever reason, ceased showing

Clouser potential properties to buy. It then alchemically attempts to transform that

slight into a viable lawsuit for money damages. Unfortunately for Clouser, there is

simply nothing compensable here.

3 II. FACTS AND PROCEDURAL HISTORY

On Friday, March 13, 2020 Clouser submitted his contact information to an

online real estate service expressing an interest in two properties on Murphy Road

in North Wilmington.5 Marie responded and the two met that same day to view the

properties.6 After viewing the properties, Marie suggested that Clouser might be

interested in seeing a third property located at 227 Murphy Road.7 Clouser agreed

and the two viewed the Property that same day.8 After viewing the Property, Clouser

told Marie that he was interested in buying it because it’s location suited his planned

transition to a home based business and asked if she would represent him in

purchasing it.9 She agreed and told Clouser she would research other potentially

suitable properties as well.10 Clouser then told Marie he would like his wife to view

the property as soon as possible, preferably within the next two days.11 Marie agreed

to schedule a weekend showing for Clouser and his wife, but failed to contact

Clouser to make arrangements.12

5 AC, at ⁋ 16, D.I.13. 6 Id., at ⁋⁋ 17-18. 7 Id., at ⁋ 19. 8 Id., at ⁋⁋ 20-23. 9 Id., at ⁋⁋ 25-26. 10 Id., at ⁋⁋ 27, 30. 11 Id., at ⁋ 32. 12 Id., at ⁋⁋ 32-34. 4 The parties then began communicating by text message. On Monday, March

16th, Clouser texted Marie and asked when she would be in North Wilmington.13

Marie responded that she would be back at work on Friday the 20 th.14 On March

19th, the Governor declared a state of emergency due to the COVID-19 pandemic

and closed many businesses.15 Although the Governor did not close the real estate

business, he did place restrictions on showing properties.16 The Property sold on

May 18, 2020, apparently without further communication between the parties.17

Clouser’s initial Complaint was filed on March 17, 2021, listing four “John

Doe” defendants in addition to Marie.18 The Court dismissed the Complaint only as

to the unnamed “John Doe” defendants on March 25th.19 On April 29, 2021, Clouser

filed the AC.20 Marie answered pro se on May 18th.21 After meeting with both

unrepresented parties on October 25, 2021, the Court issued a Trial Scheduling

Order.22 On December 8, 2021, counsel entered her appearance for Marie.23 Marie

13 Id., at ⁋ 36. 14 Id., at ⁋ 37. 15 Id., at ⁋ 39. 16 Id., at ⁋⁋ 40-41. 17 Id., at ⁋ 46. 18 Compl., D.I. 1. 19 D.I. 11. 20 AC, D.I. 13. 21 Ans., D.I. 19. 22 D.I. 22. 23 D.I. 35. 5 moved to dismiss on January 7, 202224 and Clouser responded in opposition on

February 3rd.25

III. THE PARTIES’ CONTENTIONS

In her Motion to Dismiss (the “Motion”), Marie argues that the AC does not

support the allegation of an oral contract between the parties – only that Marie

showed the property to Clouser one time, after which Marie had no further obligation

to maintain any agency relationship with him.26 According to Marie, at best, the AC

alleges that Clouser was “interested” in the property, that he “potentially” wanted to

purchase the property if his wife approved, and that Marie was going to show him

other commercial properties.27 The AC does not allege that Clouser instructed Marie

to make an offer for the property on his behalf, or even that he was prepared to make

one.28 Under 24 Del. C. § 2930(b), a buyer does not owe a fee to an agent absent a

written contract, and therefore there was no consideration for any implied oral

contract.29 Moreover, Marie contends that Clouser suffered no financial damages.

He did not expend any funds and should not receive the fair market value of a

property for free.30

24 Def.’s Mot. to Dismiss, D.I. 47. 25 Pl.’s Opp., D.I. 58. 26 Id. 27 Id., at ⁋ 7. 28 Id. 29 Id., at ⁋ 8. 30 Id., at ⁋ 9. 6 As to the remaining counts, Marie argues that Clouser fails to allege any false

representation she made upon which he detrimentally relied. Instead, he relies on

the assertion that Marie terminated an agreement to represent him.31 No specific

facts support his claims of tortious interference with prospective businesses relations

or mental suffering and emotional distress.32 The slander per se claim fails because

Clouser never alleges that Marie said anything slanderous, only that some unnamed

person said something slanderous to her.33

In response, Clouser argues that he has adequately pled the existence of an

oral contract with Marie for her to represent him as his agent in his effort to buy 227

Murphy Road.34 He maintains that the oral contract is evidenced both by the conduct

of the parties and Marie’s express agreement to represent him.35 Consideration was

to be Marie’s commission for Clouser’s purchase of the property.36 Regarding

damages, Clouser’s position is that he should not be punished financially for the loss

of an investment opportunity because of his reliance on Marie.37

31 Id., at ⁋ 11. 32 Id., at ⁋⁋ 12-14. 33 Id., at ⁋⁋ 15-18. 34 Pl.’s Opp., at ⁋ 4, D.I. 58. 35 Id., at ⁋⁋ 4-6. 36 Id., at ⁋ 7. 37 Id., at ⁋ 8. 7 Clouser argues that Marie fraudulently misrepresented herself as a real estate

agent acting in his best interests.38 Further, Marie’s text messages to him meet the

particularity requirement for pleading fraud.39 He responds to Marie’s argument that

no facts were pled supporting his claim of tortious interference with prospective

business relations by emphasizing that the AC alleges that Marie knew he planned

to use the property for commercial purposes.40 Regarding his slander per se claim,

Clouser argues that no reasonable realtor would abandon an “easy” commission. If

Marie engaged in conversations with third parties she is liable for slander per se.41

Finally, Clouser acknowledges he did not plead any specifics of his mental suffering

and emotional distress, but Marie is on sufficient notice of the claim and the basis

for it.42

IV. STANDARD OF REVIEW

A motion to dismiss for failure to state a claim pursuant to Superior Court

Rule 12(b)(6) will not be granted if the “plaintiff may recover under any reasonably

conceivable set of circumstances susceptible of proof under the complaint.”43 The

Court's review is limited to the well-pled allegations in the complaint.44 In ruling on

38 Id., at ⁋ 9. 39 Id. 40 Id., at ⁋⁋ 11-12. 41 Id., at ⁋ 13. 42 Id., at ⁋ 14. 43 Browne v. Robb, 583 A.2d 949, 950 (Del. 1990). 44 Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005). 8 a 12(b)(6) motion, the Court “must draw all reasonable factual inferences in favor

of the party opposing the motion.”45 Dismissal is warranted “only if it appears with

reasonable certainty that the plaintiff could not prove any set of facts that would

entitle him to relief.”46

Pursuant to Super. Ct. Civ. R. 12(c), “[a]fter the pleadings are closed but

within such time so as not to delay the trial, any party may move for judgment on

the pleadings.”47 Upon considering such a motion, the Court must accept all well-

pled facts as true and must construe all reasonable inferences in favor of the non-

moving party.48 The motion may only be granted where the Court is satisfied that

“no material issue of fact exists and the movant is entitled to judgment as a matter

of law.”49

V. DISCUSSION

In Section V.A. below, discussing Clouser’s breach of contract claim, the

Court finds that the AC fails to state a claim that Clouser and Marie entered into

binding oral contract. Some other claims allege and are premised to a greater or

lesser degree on the existence of an oral contract. The absence of a properly pled

45 Id. 46 Id. 47 Super. Ct. Civ. R. 12(c). 48 Silver Lake Office Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at *6 (Del. Super. Ct. Jan. 17, 2014). 49 Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund II, L.P., 624 A.2d 1199, 1205 (Del. 1993). 9 oral contract is fatal to those claims as well. Nevertheless, each of them fails

independently for the reasons set out in sections V.B., V.C., and V.E. below.

Section V.D. deals with Clouser’s slander per se claim and is independent from his

breach of contract claim. Further, because there appear to be no material issues of

fact (as opposed to Clouser’s incorrect legal conclusions) the Court finds that

Marie is entitled to judgment as a matter of law based on those facts.

A. Count One - Breach of Oral Contract Fails to Allege Necessary Elements of a Binding Oral Contract.

In the AC, Clouser appears to use the terms “oral contract” and “implied oral

contract” interchangeably, but they are not the same. “An implied contract is one

inferred from the conduct of the parties, though not expressed in words. The parties’

intent and mutual assent to an implied in-fact-contract is proved through conduct

rather than words.”50 An express contract is arrived at by language and an implied-

in-fact contract by the actions of the parties.51 Thus, the term “implied oral contract”

is an oxymoron. In order to state a claim, the AC must allege either an implied-in-

fact contract or an oral contract.

It is clear to the Court that the AC fails to state a claim for an implied-in-fact

contract. Just the opposite. The AC alleges that after initially showing Clouser the

50 Capital Management Co. v. Brown, 813 A.2d 1094, 1098 (Del. 2002). 51 Phillips v. Wilkes, Lukoff & Bracegirdle, LLC, 2014 WL 4930693, at *3 (Del. 2014). 10 Property, Marie abandoned any efforts on his behalf. That abandonment is the

gravamen of the AC. An allegation that Marie did nothing on Clouser’s behalf

cannot be evidence that her conduct infers her assent to an implied-in-fact contract

to so something on his behalf. Therefore, in order to state a claim, the AC must

allege a valid oral contract.

Of course, outside of the Statute of Frauds, which is inapplicable here, an oral

contract, is perfectly enforceable once established. “It is the blackest of black letter

law that an enforceable contract requires an offer, acceptance, and consideration.”52

Implicit in that formulation is a requirement that the terms of a contract be

sufficiently definite.53 As alleged in the AC, Marie verbally accepted Clouser’s offer

to retain her to represent him in his efforts to buy the Property.54 But, that agreement

appears to be the end of any progress the parties made toward entering into a

contract, either written or oral. The AC identifies no contract terms other than that

Marie would represent Clouser in his attempt to buy the Property. Clouser

acknowledges that he understood that Marie would prepare a written contract

formalizing their relationship.55 Indeed, pursuant to 24 Del. C. § 2930(a) Clouser

52 Cigna Health and Life Insurance Company v. Audax Health Solutions, Inc., 107 A.3d 1082, 1088 (Del. Ch. Nov. 14, 2014). 53 Handler Corporation v. West American Insurance Company, 2022 WL 175769 at *2 (Del. Super. Ct. Jan. 19, 2022). 54 Pl.’s Opp., at ⁋ 4, D.I. 58. 55 Id., at ⁋ 6. 11 had no obligation to pay compensation to Marie absent a written contract.56 That

section states, “Nothing in this chapter obligates a buyer…to pay compensation to a

broker…unless that party has entered into a written brokerage agreement with the

broker…specifying the compensation terms.” As a result, there was no

consideration for the putative oral contract, not even the speculative consideration

Clouser claims Marie would have received if he were able to buy the Property. At

most, the AC alleges a preliminary agreement on Marie’s part to assist Clouser in

buying the Property. Thus, it is clear from the AC that the parties (or certainly at

least Marie) understood that the terms of the proposed representation agreement

would be reduced to writing before it was complete and binding on them.

Because the Court has determined that no oral contract existed, it follows that

there was no breach of an oral contract. However, even if there was an oral contract

between Clouser and Marie, the breach of contract claim still would fail because

Clouser suffered no damages. The elements of a breach of contract claim are: (1) a

contract existed between the parties; (2) the defendant breached an obligation

imposed by the contract; and (3) the plaintiff suffered damages as a result of the

breach.57 As Marie points out in the Motion, Clouser did not expend any funds – he

56 24 Del. C. § 2930(a). 57 Levy Family Investors, LLC v. Oars + Alps LLC, 2022 WL 245543, at *9 (Del. Ch. Jan. 27, 2022). 12 did not lose a deposit, nor did he pay Marie anything to show him properties.58 At

most, Clouser lost the opportunity to make an offer to buy the Property. Whether

his offer would have been successful is unknown, as is the value of his missed

opportunity. Instead, Clouser claims damages in the amount of $305,000, which

apparently represents the sale price of the Murphy Road property, plus additional

compensation for the property’s appreciation. This damages claim is fanciful.

Clouser still possesses all of the funds he would have expended in purchasing the

Property. He has no out-of-pocket damages but seeks to be compensated in an

amount equal to the fair market value of a property he never owned. In effect,

Clouser wants to be paid for losing something he never had. Such windfall damages

are not an appropriate measure of a legitimate loss.

B. Count Two - Fraudulent Misrepresentation Fails to State a Claim.

To prevail at trial on a fraud claim, a plaintiff must prove by a preponderance

of the evidence that a defendant engaged in fraudulent conduct.59 “The general

elements of common law fraud under Delaware law are: (1) defendant's false

representation, usually of fact, (2) made either with knowledge or belief or with

reckless indifference to its falsity, (3) with an intent to induce the plaintiff to act or

refrain from acting, (4) the plaintiff's action or inaction resulted from a reasonable

58 Def.’s Mot. to Dismiss, at ⁋ 9, D.I. 48. 59 George v. A. C. & S. Co., 1988 WL 22365, at *1 (Del. Super. Ct. Feb. 16, 1988). 13 reliance on the representation, and (5) reliance damaged the [plaintiff].”60

Additionally, when alleging fraud, “the circumstances constituting fraud shall be

stated with particularity.”61

A fraud claim may not be an improperly “bootstrapped” breach of contract

claim, under the “Anti-Bootstrapping Rule.” What constitutes improper

bootstrapping is not entirely clear.62 However, a reasonable statement of the Rule is

that it generally applies when a plaintiff attempts to transmute a breach of contract

claim into a fraud claim by adding conclusory allegations to its breach of contract

claim.63 It bars a fraud claim where the plaintiff merely sprinkles the complaint with

terms like “fraudulently induced,” or alleges that the defendant never intended to

comply with the agreement at issue at the time the parties entered into it.64

Clouser alleges that Marie “fraudulently misrepresented herself as his realtor

when she unilaterally refrained from working on his behalf without notifying him of

her decision.”65 He also alleges that Marie’s agreement to represent him “was

afterwards unduly influenced by the slander per se of Plaintiff by, the as of yet,

Unknown Defendant(s) John Doe, when Defendant unilaterally refrained from

60 Browne v. Robb, 583 A.2d 949, 955 (Del. 1990). 61 Super. Ct. Civ. R. 9(c). 62 Levy, at *7. 63 Swipe Acquisition Corporation v. Krauss, et al., 2020 WL 5015863, at *11 (Del. Ch. Aug. 25, 2020). 64 Id., at 8 (internal quotes omitted). 65 AC, at ⁋ 96. 14 representing plaintiff as a buyer in a real estate transaction without informing

Plaintiff.”66 In other words, the AC alleges that sometime after Marie told Clouser

she would be his realtor she was induced by someone whose identity is unknown to

terminate her representation. It follows that Marie’s statement that she would be his

realtor was not false when she made it. Therefore, the allegations of the AC establish

that she did not fraudulently misrepresent herself.

Further, the fraudulent misrepresentation count is an improper attempt to

bootstrap a breach of contract allegation into a fraud claim. The fraudulent

misrepresentation claim really is nothing more than the breach of contract claim with

the term “fraudulent misrepresentation” thrown in a few times.

C. Count Three - Tortious Interference with Prospective Business Relations Fails to State a Claim.

A properly stated claim for tortious interference with prospective business

relations must allege: (1) a reasonable probability of a business opportunity; (2)

intentional interference by a defendant with that opportunity; (3) proximate

causation; and (4) damages.67 The allegations in the AC specific to this claim simply

repeat Clouser’s mantra the Marie breached an oral contract to represent him as his

realtor in his attempt to purchase the Property by abandoning any efforts on his

66 Id., at ⁋ 101. 67 Beard Research, Inc. v. Kates, 8 A.3d 573, 607-8 (Del. Ch. 2020) 15 behalf.68 Incorporating by reference the previous allegations in the AC only bolsters

the claim to the extent that Marie knew Clouser intended to use the Property for

business purposes. Nowhere does the AC identify a reasonable probability of any

specific business opportunity with which Marie allegedly intentionally interfered or

how her alleged breach of an oral contract was the proximate cause of the loss of

any specific prospective business opportunity. The AC also fails to allege any

damages particular to a specific business opportunity. The AC fails to allege any of

the elements of a tortious interference of a prospective business opportunity claim.

D. Count Four - Slander Per Se Fails to State a Claim.

At common law, defamation consists of the “twin torts” of libel and slander,

with libel being written defamation and slander being oral defamation.69 Clouser

alleges slander per se. The four types of slander per se are: (1) maligning one in a

trade, business, or profession; (2) imputing a crime; (3) implying one has a

loathsome disease; or (4) imputing unchastity to a woman.70 The AC generically

alleges the first three categories without specifying any specific slanderous

statement.71 More fundamentally, however, this count must be dismissed because

the AC alleges that some unknown person uttered the slanderous statement(s) to

68 AC, at ⁋⁋ 95-104. 69 Spence v. Funk, 396 A.2d 967, 970 (Del. 1978). 70 Optical Air Data Systems, LLC v. L-3 Communications Corporation, 2019 WL 328429, at *7 (Del. Super. Ct. Jan. 23, 2019). 71 AC, at ⁋⁋ 122-123. 16 Marie.72 Making the listener liable for the slander of the speaker turns the concept

of slander on its head.

E. Count Five - Personal Injury of Mental Suffering and Emotional Distress Count Fails to State a Claim.

Clouser alleges in this count that Marie caused him mental suffering and

emotional distress as a result of the conduct alleged in the preceding counts. Because

those counts fail to state claims upon which relief can be granted, this claim does as

well.73 To the extent Clouser is attempting to make out a claim of intentional

infliction of emotional distress, the AC fails. Such a claim requires that a defendant

“by extreme and outrageous conduct intentionally or recklessly causes severe

emotional distress to another.”74 The AC fails to allege any conduct that is close to

being extreme or outrageous.

F. Count Six – Identifying Unknown Defendant Fails to State a Claim.

This count seeks the identity of an unknown person whom Clouser alleges

dissuaded Marie from continuing to work with him by slandering him to her.75 To

the extent such person exists, Clouser had the opportunity through discovery to

72 The Count also is defective because it does not identify the slanderous statement(s). 73 AC, at ⁋⁋ 137-142. 74 Spence v. Cherian, 135 A. 3d 1282, 1288, 89 (Del. Super. Ct. 2016) (quoting the Restatement (Second) of Torts, § 46). 75 AC, at ⁋⁋ 146-154. 17 learn that person’s identity. Count Six does not state a valid claim form relief and

is not a proper vehicle for obtaining the information he seeks.

THEREFORE, for the reasons set forth above, Defendant Lisa Marie’s

Motion to Dismiss is GRANTED. The Amended Complaint is DISMISSED

PREJUDICE.

IT IS SO ORDERED.

/s/ Ferris W. Wharton Ferris W. Wharton, J.