NVR, Inc. v. Carter Farm LLC, and Chaptank Road, LLC

• Court: Court of Chancery of Delaware
• Decided: February 4, 2026
• Docket: 2024-1051-DG
• Status: Published

Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

NVR, INC., ) ) Plaintiff, ) ) v. ) C.A. No. 2024-1051-DG ) CARTER FARM, LLC and ) CHOPTANK ROAD, LLC, ) ) Defendants. )

REPORT GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT

Date Submitted: October 22, 2025 Date Decided: February 4, 2026

Scott G. Wilcox of GIORDANO, DELCOLLO, WERB & GAGENE, LLC, Wilmington, Delaware, Counsel for Plaintiff NVR, Inc.

Blake Rohrbacher, Katherine L. Mowery of RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware, Attorneys for Defendants Carter Farm, LLC and Choptank Road, LLC.

GIBBS, M. The plaintiff in this action seeks to enforce contracts to build a

residential housing development on 415 acres of real property in New Castle

County. The parties executed the contracts in 2009. They encountered

numerous obstacles, and the contemplated development never materialized.

In 2024, the plaintiff asked this Court to enforce the contracts.

In this report, I conclude that the plaintiff’s complaint must be

dismissed because its claims are time-barred under either the statute of

limitations or the doctrine of laches. The plaintiff has, at times, pleaded facts

that are conclusory and inconsistent with public facts of which I have taken

judicial notice. The plaintiff’s theory would require me to draw inferences

from the pleaded facts that are unreasonable. The suggestion that the plaintiff

was unaware of its claims, or at least of facts that would lead a reasonably

prudent person to investigate, until after March 4, 2022, is not credible. I

recommend that the Court dismiss the plaintiff’s complaint in its entirety.

–2– BACKGROUND 1

The following facts are drawn from Plaintiff’s Verified Complaint

(“Complaint”), the attached exhibits, the documents incorporated by reference

therein, and facts of which I have taken judicial notice. 2

I. The Parties Plaintiff NVR, Inc. is a Virginia corporation in the business of building

homes and mortgage banking. 3 NVR sells and constructs homes under the

Ryan Homes, NVHomes and Heartland Homes brands.4

Defendant Carter Farm, LLC, is a real estate development company

with its principal place of business in Wilmington, Delaware. 5 Carter Farm

was formed for the sole purpose of building a single-family residential

1 In this report, I cite to Pl.’s Verified Compl., Dkt. 1, as “Compl.,” Defs.’ Opening Brief, Dkt. 8, as “OB,” Pl.’s Answering Brief, Dkt. 30, as “AB,” Defs.’ Reply Brief, Dkt. 32, as “RB,” and the Tr. of Oral Argument on Defendants’ Motion to Dismiss and Cancel Lis Pendens, Dkt. 35, as “Tr.” 2 See D.R.E. 201–02; Windsor I, LLC v. CWCaptial Asset Mgmt. LLC, 238 A.3d 863, 874 (Del. 2020) (quoting In re General Motors, 897 A.2d 162, 169 (Del. 2006)). 3 NVR Inc., https://www.nvrinc.com/ (last visited Jan. 10, 2026). NVR is licensed to conduct business in Delaware and has an office in Bear. Compl. ¶ 2. 4 NVR Inc., Corporate Profile, https://nvri.gcs-web.com/corporate-profile (last visited Jan. 10, 2026). 5 Compl. ¶ 3; see Carter Farm, LLC v. New Castle Cty., 2014 WL 3555958, at *1 (Del. Ch. July 17, 2014) (“Carter Farm I”). development on the real property at issue in this litigation.6 Louis Capano, III,

is a member and the primary manager of Carter Farm.7 Defendant Choptank

Road, LLC is a Delaware limited liability company with its principal place of

business in Wilmington, Delaware.8 Capano is also a member and the

manager of Choptank Road. 9

II. The Property This litigation concerns approximately 415 acres of land located at

1240 Bethel Church Road in Middletown, Delaware (“Property”). 10 The

Property was originally comprised of seven parcels, bearing Tax Parcel

numbers 11-57.00-010, 11-57.00-012, 11-061.00-001, 11-061.00-005,

11-061.00-006, 11-061.00-007, 11-61.00-008 (“Original Parcels”). 11

6 See Compl. ¶ 3, Carter Farm, LLC v. New Castle Cty., C.A. No. 1641-VCG (Del. Ch.), Dkt. 1 (Sep. 19, 2005). 7 Compl. ¶ 3. 8 Id. ¶ 4. 9 Id. ¶ 4. 10 Id. ¶ 7; New Castle Cty., Parcel # 1106100001, PARCEL DETAILS, Deed History https://www3.newcastlede.gov/parcel/Details/Default.aspx?ParcelKey=12 5311 (last visited Dec. 3, 2025), hereinafter Parcel Records. The Court may take judicial notice of parcel records. See D.R.E 201(b)(2). 11 OB Ex. A at Representations ¶ 1; OB Ex. B at Representations ¶ 1.

–2– III. Activity predating Defendants’ contracts with NVR The Property was deeded to the Carter family in or before 1979.12 Early

plans to develop the Property did not bear fruit.13

On September 19, 2001, the Carter family submitted plans to develop

residential lots on the Property (“2001 Plan”) to New Castle County

(“County”).14 The Carter family worked in conjunction with Carter Farm to

seek approval for the subdivision. 15

On April 6, 2004, the Carter family conveyed the Property by deed to

Carter Farm.16 Carter Farm presented a revised 2001 Plan to the County for

12 See Parcel Records, Deed History at WR071887 (last visited Jan. 13, 2026). 13 See New Castle Cty., Project # 19970620, https://www3.newcastlede.gov/Proje ct/Details/Default.aspx?ProjectKey=540393 (last visited Jan. 13, 2026). Contra Carter Farm I, at *1 (“On September 10, 2001, the Plaintiff submitted a plan to New Castle County for a residential development . . . .”). See also Parcel Records (indicating that Project 19970620 is “Inactive”). 14 Carter Farm I, at *1; New Castle Cty., Project # 20011068, https://www3.newc astlede.gov/Project/Details/Default.aspx?ProjectKey=89787 (last visited Jan. 13, 2025); OB at 3; see also OB Ex. B 9(l) (“[A]ll of the Lots . . . are in compliance with . . . subdivision requirements[.]”). The Court’s Opinion in Carter Farm I states that Carter Farm submitted this plan, but the Carter family appears to have owned the Original Parcels at this time. Contrast Parcel Records, Project Filings with Carter Farm I at *1. 15 Id. at Records Relating to Proceedings, https://tinyurl.com/y8hy44f7 (last visited Jan. 13, 2026). 16 Compl. ¶ 8; New Castle Cty. Recorder of Deeds, Public Access, Search, Carter, Charles M. https://newcastle.dts-de.com/PaxWorld/views/search# (last visited Jan. 13, 2026).

–3– review at some point before June 21. 17 Around the same time, however, the

County opted to scale back its plans for a sewer system, which rendered the

2001 Plan untenable.18

On September 9, 2005, Carter Farm sued the County in this Court to

enjoin it from declaring that the 2001 Plan had “expired.”19 On May 31, 2007,

the Court entered a status quo order to that effect.20 In November 2007, Carter

Farm and the County reached a settlement, which provided that the County

would approve the construction of a sewer system on the Property and Carter

Farm would pay the County $24 million.21 Neither side executed the

settlement documents and Carter Farm did not dismiss the lawsuit.22

Nevertheless, Carter Farm and the County worked to implement the

17 New Castle Cty., Project # 20011068, Planning Review Reports, https://tinyurl. com/5baba882 (last visited Jan. 13, 2026). 18 Carter Farm I, at *1. 19 Carter Farm I, at * 1 (citing Verified Compl., Carter Farm LLC v. New Castle County, C.A. No. 1641-VCG (Del. Ch.), Dkt. 1 (Sep. 9, 2005)). The Court may take judicial notice of “the records of the court in which the action is pending and of any other court of” Delaware. D.R.E. 202(d)(1)(C). 20 OB at 4; Stipulated Status Quo Order, Carter Farm LLC v. New Castle County, C.A. No. 1641-VCG (Del. Ch.), Dkt. 11 (May 31, 2007). 21 Carter Farm I, at *1–2. 22 Carter Farm I, at *2.

–4– settlement’s terms. 23 On February 20, 2008, Carter Farm submitted a second

revised plan to the County (“Preliminary Plan”) for consideration.24

IV. Carter Farm agrees to sell the Property to NVR but runs into roadblocks with the County.

On May 8, 2009, Carter Farm and NVR entered into two lot purchase

agreements (“LPAs”) to sell the lots being developed on the Property.25 The

LPAs defined the lots as 214 “single family detached residential dwellings all

as authorized by the Record Plan” and 360 “single family residential

dwellings . . . all as authorized by the Record Plan.”26 At the time the LPAs

were executed, the “Record Plan” was defined as the Preliminary Plan, which

had been submitted in February 2008 and was then undergoing County

review. 27 The Preliminary Plan listed the Original Parcels and the recorded

2004 conveyance from the Carter family to Carter Farm in the land

description. 28

23 Carter Farm I, at *2. 24 See Appendix Tabs 5-10, Ex. 9, Carter Farm LLC v. New Castle County, C.A. No. 1641-VCG (Del. Ch.), Dkt. 39 (Feb. 12, 2014). 25 Compl. ¶ 11; OB Ex. A at 26–29 (signature pages dated May 8, 2009); OB Ex. B at 26–29 (signature pages). 26 OB Ex. A Recital ¶ 4; OB Ex. B Recital ¶ 4. 27 OB Ex. A at 31; OB Ex. B at 32. 28 See Appendix Tabs 5-10, Ex. 10 at Data Column No. 3–4, Carter Farm LLC v. New Castle County, C.A. No. 1641-VCG (Del. Ch.), Dkt. 39 (Feb. 12, 2014).

–5– Under the LPAs, NVR’s obligation to purchase the lots was

conditioned upon (1) the County’s grant of final approval of the subdivision

plan 29 and (2) completion by September 30, 2012 of the sewage and

wastewater system at the heart of Carter Farm’s 2005 lawsuit.30 NVR paid

Carter Farm a $500,000 deposit upon execution of the LPAs.31

The County approved the Preliminary Plan, with some modifications,

on June 30, 2009.32 Carter Farm submitted a proposed Record Major

Subdivision Plan (“LPA Record Plan”) to the County in September.33 The

LPA Record Plan listed the Original Parcels and the same conveyance record

number as the Preliminary Plan in the land description.34

By December of that year, however, Carter Farm believed that its

settlement terms with the County were no longer economically feasible, and

it proposed that the parties revise the settlement. 35 The County agreed.

Negotiations broke down over the wastewater system, which prevented

29 OB Ex. A §§ 3, 6(c), 7(b); OB Ex. B §§ 3, 6(c), 7(b). 30 OB Ex. A § 17(b); OB Ex. B § 17(b); Compl. ¶¶ 15–16. 31 Compl. ¶ 14. 32 OB at 5; see Appendix Tabs 16-26, Exs. 16–17, Carter Farm LLC v. New Castle County, C.A. No. 1641-VCG (Del. Ch.), Dkt. 41 (Feb. 12, 2014). 33 Appendix Tabs 16-26, Exs. 18, Carter Farm LLC v. New Castle County, C.A. No. 1641-VCG (Del. Ch.), Dkt. 41 (Feb. 12, 2014). 34 See OB Ex. D at Data Column Nos. 3–4 (Tax Parcel Number and Source of Title). 35 Carter Farm I, at *2; OB at 7.

–6– approval of the LPA Record Plan.36 While these negotiations were ongoing,

Carter Farm provided NVR status updates on the approval procedures 37 and

the County confirmed that the Court’s status quo order prevented the

expiration of the LPA Record Plan.38

V. The LPAs’ September 12 deadline passes.

The September 12, 2012, deadline for completing the sewage and

wastewater system for the Property passed with no ground having been broken

on the project. Carter Farm continued its talks with the County until the

County’s political administration changed in November 2012.39 NVR

maintains that, despite Carter Farm’s failure to meet the conditions under the

LPAs, NVR elected not to take action against Carter Farm; it decided to give

Carter Farm additional time to obtain the required approvals. 40 Carter Farm

continued to engage with the County through 2013, but to no avail.41

36 Carter Farm I, at *2. 37 Compl. ¶ 24. Pl.’s Ans. Br., Ex. 14, Carter Farm LLC v. New Castle County, C.A. No. 1641- 38

VCG (Del. Ch.), Dkt. 54 (Mar. 26, 2014). 39 OB at 7. 40 Compl. ¶ 23. 41 Carter Farm I, at *2.

–7– VI. The County moves to enforce its 2007 settlement with Carter Farm.

On February 12, 2014, the County filed a motion to enforce the 2007

settlement agreement against Carter Farm. This Court granted the County’s

motion in July.42 The Court’s decision resolved the litigation and terminated

the status quo order. 43 Carter Farm claims that it believed the LPA Record

Plan expired by operation of law upon dissolution of the status quo order. 44

VII. Carter Farm takes actions inconsistent with the plans for developing the Property under the LPAs. In 2015 and 2016, Carter Farm took actions inconsistent with the LPAs

and the LPA Record Plan. On October 15, 2015, it subdivided the Original

Parcels into three separate agricultural lots.45 This subdivision eliminated all

but three of the Original Parcels: 11-061.00-001, 11-061.00-005, and 11-

061.00-008. On February 15, 2016, Carter Farm submitted a plan to further

subdivide parcel no. 11-061.00-001 to the County for approval. 46 The County

42 Carter Farm I, at *2–5. 43 Carter Farm I, at *8–9; see Stipulated Status Quo Order ¶ 3, Carter Farm LLC v. New Castle County, C.A. No. 1641-VCG (Del. Ch.), Dkt. 11 (May 31, 2007) (stating that the order remained in effect until the matter is resolved). 44 OB at 8. Under the County code then in effect, a submitted record plan expires if it is not recorded within six months after the date of the first written decision issued by the County. New Castle Cty. C. § 40.31.490(A) (May 30, 2014). 45 See g OB Ex. E; accord Parcel Records, Deed History. 46 OB Exs. F–G.

–8– approved the plan, creating tax parcel no. 11-57.00-244 by carving out 2.8

acres from parcel 11-061.00-001.47 Those actions made constructing the lots

in accordance with the LPA Record Plan impossible.

In 2019, Carter Farm conveyed two of the subdivided lots to private

parties.48 NVR alleges it was still in communication with Carter Farm about

acquiring the Property at the time of the transfer.49

VIII. NVR’s allegations covering the years 2015 to 2019. After the Court enforced the County’s 2007 settlement with Carter

Farm, NVR alleges that it expressed an interest in revising the LPAs and

continued to discuss the Property with Carter Farm. 50 Specifically, NVR

alleges that on May 25, 2017, NVR sent Carter Farm a proposal to amend the

LPAs, which Carter Farm rejected. 51 NVR alleges that it continued to discuss

the Property with Carter Farm, hoping to reach an agreement. 52

47 Id.; accord New Castle Cty., Parcel Map, 1105700244, https://tinyurl.com/yc33 4r7h (last visited Jan. 13, 2026). 48 OB Ex. H. 49 Compl. ¶ 24. “The Property,” as defined in the LPAs, no longer existed. NVR does not allege that the parties discussed reversing the subdivisions and sales of land or believed that to be possible. Instead, NVR argues that it was not aware of Carter Farm’s actions. 50 Id. 51 Id. 52 Id. Because of the subdivisions in 2015 and 2016, “the Property,” as defined in the LPAs, no longer existed in 2017. Among the issues in this case is whether the Court may take judicial notice of developments impacting the Property after 2014,

–9– IX. Carter Farm’s 2021 RFP On January 13, 2021, Carter Farm sent a Request for Proposal (“RFP”)

to several builders to gauge their interest in purchasing lots “on the

Property.”53 The development contemplated in the RFP differed substantially

from the LPA Record Plan. For example, it contemplated several multi-

family apartments and a substantially different subdivision configuration.54

Carter Farm submitted an exploratory development plan to the County on May

6, 2021.55

NVR received a copy of the RFP. NVR alleges, conclusively, that this

was a mistake, and that Carter Farm never intended to share the RFP with

NVR. 56 At some point after receiving the RFP, NVR met with Carter Farm.

NVR argued that the LPAs were still in effect and Carter Farm could not sell

the lots to other developers. 57 NVR does not allege whether or how Carter

and whether NVR was or should have been aware of those developments. See AB at 17; RB at 11–15. 53 Compl. ¶ 25; OB at 9–10; OB Ex. I. 54 Contrast OB Ex. D (the LPA Record Plan) with OB Ex. I (the RFP). 55 OB at 10; OB Ex. J. 56 Compl. ¶ 25. 57 Id. ¶ 26.

– 10 – Farm responded, but it alleges that the parties continued to negotiate potential

amendments to the LPAs.58

X. Carter Farm conveys property to Choptank Road.

On March 4, 2022, NVR alleges, Carter Farm conveyed the Property to

Choptank Road. 59 NVR contends that it was in negotiations with Carter Farm

at the time and Carter Farm failed to inform NVR of the conveyance.60

Carter Farm submitted two more exploratory plans to the County in

2022. 61 NVR contends that it never saw or approved these plans before

submission, as required under the LPAs.62 Around the time of the 2022

submission, Carter Farm entered into several agreements with the County to

resolve their dispute over development of a sewage system.63

58 Id. 59 Id. ¶ 27. This was not possible because the seven Original Parcels were no longer intact. County records reveal that Carter Farm actually conveyed Parcel Nos. 11- 061.00-008, 11-061.00-005, and 11-061.00-001 to Choptank Road. New Castle Cty. Recorder of Deeds, Public Access, Search, Instrument Id 202203 080027184, https://newcastle.dts-de.com/PaxWorld/views/search# (last visited Feb. 1, 2026). Compare id. with OB Ex. Q (appearing to be identical). 60 Compl. ¶¶ 27, 29–31. 61 OB at 10; OB Exs. J–L. 62 Compl. ¶ 28. 63 OB at 11; OB Ex. N–O.

– 11 – XI. NVR stops bargaining and involves its lawyers. On September 27, 2023, Carter Farm contacted NVR to request

amended lot prices. 64 The next day, NVR rejected the proposal and informed

Carter Farm it would purchase the lots at the “prices previously provided.”65

NVR alleges that Carter Farm did not respond.66 At some point in this period,

NVR sent its proposal for a third time.67

Carter Farm submitted two proposed record plans to the County, on

October 25, 2023, and February 28, 2024, respectively.68 On April 23, 2024,

Carter Farm and NVR discussed the “amended pricing structure” of the LPAs

over the telephone, but Carter Farm did not commit to the terms NVR

proposed.69

64 Compl. ¶ 29. 65 See id. 66 Id. ¶ 30. 67 Id. 68 OB at 10; OB Exs. K–L. 69 Compl. ¶ 31

– 12 – On August 29, NVR determined that further negotiations with Carter

Farm would be futile. NVR sent a notice of default (“Notice”) to Carter Farm

as required by Section 8(e) of the LPAs.70 The Notice contained a

“chronology of [NVR and Carter Farm’s] relationship[,]” of Carter Farm’s

failures to perform under the LPAs, and of the actions that constitute defaults

under the LPAs, including Carter Farm’s retention of NVR’s $500,000

deposit.71 The Notice also states that Carter Farm repudiated the LPAs by

claiming they were “no longer valid and enforceable and by refusing to

develop and sell finished lots to NVR.” 72 NVR offered Carter Farm the

opportunity to cure the alleged defaults if Carter Farm would “cease and desist

from marketing the Property and/or entertaining offers from third parties” to

purchase the Property. 73 Carter Farm’s response to the Notice denies NVR’s

contentions and asserts that NVR may not enforce the LPAs. 74

70 See id. ¶ 32; OB Ex. A § 8(e); OB Ex. B § 8(e). The default liability provisions for each LPA are identical. Compare OB Ex. A § 8(e) with OB Ex. B § 8(e). 71 Compl. ¶ 32; OB Ex. R. 72 OB Ex. R. 73 Id. 74 Compl. ¶ 33 (erroneously numbered ¶ 36).

– 13 – On September 17, Carter Farm submitted a third proposed record plan

to the County. 75 Seven days later, the County issued a conditional approval

to Carter Farm and requested a supplemental record plan. 76

XII. Procedural History

NVR filed its Complaint with this Court on October 14, 2024. 77 All of

its counts stem from the LPAs executed in 2009. 78 NVR recorded a Lis

Pendens on the Property three days after filing the action.79

On November 6, Defendants filed a Motion to Dismiss the Complaint

and a Motion to Cancel Lis Pendens (“Motions”), accompanied by a

consolidated opening brief supporting the Motions.80

On December 19, the parties informed the Court that they were actively

engaged in settlement discussions and submitted a stipulation and proposed

order staying the litigation. 81 The Court granted the stay the next day. 82 The

parties continued to engage in settlement talks and eventually submitted a

75 OB at 10; OB Ex. L. 76 OB at 11; OB Ex. P. 77 See Dkt. 1. 78 See Compl. at Counts I–V. 79 See Defs.’ Mot. to Cancel Lis Pendens, Dkt. 7. 80 See Dkts. 6–8. 81 Dkt. 12. 82 Dkt. 13.

– 14 – further stipulation and proposed order staying the action indefinitely, which

the Court granted on March 21, 2025.83

On June 20, 2025, the parties asked the Court to lift the stay and

proposed a new briefing schedule on Defendants’ Motions. 84 The Court

scheduled oral argument for October 22.85

On August 15, NVR filed its Answering Brief. 86 On September 19,

Defendants filed their Reply Brief.87 On October 22, the Court heard

argument on the Motions and took the matter under advisement.88

ANALYSIS

Defendants moved to dismiss the Complaint pursuant to Court of

Chancery Rule 12(b)(6).89 Defendants contend that NVR’s claims are

time-barred, or, in the alternative, that NVR has failed to state a claim for

which relief may be granted.90 In conjunction with the Motion to Dismiss,

Defendants moved to cancel the Lis Pendens, arguing (1) it is not probable

83 See Dkts. 14–21. 84 Dkts. 23–24, 26–27. 85 Dkt. 25. 86 Dkt. 30. 87 Dkt. 32. 88 Dkt. 34. 89 Dkt. 6; OB at 13. 90 See generally OB; RB.

– 15 – that judgment will be entered in NVR’s favor, (2) NVR is not entitled to

equitable relief, and (3) NVR failed to comply with the statutory mailing

requirements. 91 In this report, I recommend that the Court dismiss the

Complaint and cancel the Lis Pendens because NVR’s claims are time-barred.

I. The Motion to Dismiss should be granted.

When reviewing a motion to dismiss under Rule 12(b)(6), Delaware

courts “(1) accept all well pleaded factual allegations as true[;] (2) accept even

vague allegations as ‘well-pleaded’ if they give the opposing party notice of

the claim; [and] (3) draw all reasonable inferences in favor of the non-moving

party[.]” 92 The Court “need not accept conclusory allegations unsupported by

specific facts, nor draw unreasonable inferences in Plaintiff[‘s] favor.” 93

“[T]he governing pleading standard in Delaware to survive a motion to

dismiss is reasonable ‘conceivability.’” 94 Delaware courts must “deny the

motion unless the plaintiff[s] could not recover under any reasonably

91 OB at 14–15 (citing 25 Del. C. §§ 1605–06, 1608). 92 Fitzgerald v. Fitzgerald Home Farm, LLC, 2024 WL 1071970, at *2 (Del. Ch. Mar. 12, 2024) (citing Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 27 A.3d 531, 535 (Del. 2011)). 93 Richardson v. New Res Mortg. Loan Tr. 2019RPL3, 2025 WL 2491199, at *4 (Del. Ch. Aug. 29, 2025) (citing Garfield ex rel. ODP Corp. v. Allen, 277 A.3d 296, 319 (Del. Ch. 2022)). 94 Cent. Mortg. Co., 27 A.3d at 537.

– 16 – conceivable set of circumstances.”95 Further, “because motions to dismiss are

limited to facts appearing on the face of the pleadings, ‘affirmative defenses,

such as laches, are not ordinarily well-suited for treatment on such a

motion.’” 96 “[D]ismissal on an affirmative defense like laches is

inappropriate ‘[u]nless it is clear from the face of the complaint that an

affirmative defense exists and that the plaintiff can prove no set of facts to

avoid it.’”97

Defendants argue that the Court should dismiss NVR’s claims for two

reasons. First, Defendants contend that NVR’s claims are time-barred by the

statute of limitations or the doctrine of laches. Alternatively, Defendants

assert that NVR has failed to state a claim for relief. Defendants submitted

multiple exhibits to support their arguments, but NVR argues that it would be

improper for me to consider them on a Motion to Dismiss.98 I address NVR’s

95 Richardson, 2025 WL 2491199, at *4 (quoting Cent. Mortg. Co., 27 A.3d at 536). 96 Otto Candies, LLC v. KPMG LLP, 2019 WL 994850, at *28 (Del. Ch. Feb. 28, 2019) (quoting Reid v. Spazio, 970 A.2d 176, 183–84 (Del. 2009)). 97 Otto Candies, 2019 WL 994850, at *28 (quoting Spazio, 970 A.2d at 183–84). See also In re General Motors (Hughes) S’holder Litig., 897 A.2d 162, 167–71 (Del. 2009) (affirming the Court of Chancery’s decision to take judicial notice of “publicly available facts” in a 10-Q filing when granting a 12(b)(6) motion to dismiss when plaintiff did not contest its authenticity). I note that NVR does not contest the authenticity of Defendants’ exhibits, it only argues their contents cannot be taken as true or that they are irrelevant. See, e.g., AB at 12 (“The details contained in these documents are often subject to differing interpretations . . . .”). 98 See AB at 9–13.

– 17 – arguments concerning Defendants’ exhibits before turning to the parties’

substantive arguments regarding dismissal.

A. The Court may properly take judicial notice of Defendants’ exhibits.

NVR asserts that Defendants improperly attached “external materials”

to their Motions and that the Court may not consider them. 99 Defendants

argue that the authority NVR cites does not support its arguments. 100 I concur

with Defendants.

Delaware Rules of Evidence 201 and 202 govern when this Court may

take judicial notice of adjudicative facts or of law. 101 Under Rule 201 the

Court may take judicial notice of facts that are not subject to reasonable

dispute because they are “generally known within the . . . [C]ourt’s territorial

jurisdiction” 102 or they “can be accurately and readily determined from

sources whose accuracy cannot reasonably be questioned.”103 Under Rule

202, the Court “must take judicial notice of the United States Constitution,

case law relating thereto, and the Constitution, common law, case law and

99 See AB at 9–10; Tr. 26:06–28:04. 100 See RB at 3–6. 101 See D.R.E. 201–02. 102 D.R.E. 201(b)(1). 103 D.R.E. 201(b)(2).

– 18 – statutes of” Delaware. 104 The Court may also take judicial notice of federal

law and the law of other states.105 Finally, the Court may, with or “without

request by a party,” take judicial notice of the “determinations of

governmental subdivisions” in Delaware,106 “the records of the court in which

the action is pending[,] and any other court” in Delaware.107

NVR argues that Defendants improperly relied on three categories of

evidence: (1) other pleadings and settlement agreements, (2) plans and county

reviews, and (3) negotiations between Carter Farm and the County. I address

each category below.

1. The Court may take judicial notice of the pleadings and settlement agreements. NVR argues that Defendants “reference pleadings, settlement

agreements, and amended complaints from” Carter Farm I, but that Rules

201(b) and 202(b) preclude the Court from considering them.108 Specifically,

NVR notes that “a fact may only be judicially noticed if it is generally known

or capable of accurate and ready determination by resorting to sources whose

104 D.R.E. 202(a). 105 See D.R.E. 202(a)(1). 106 D.R.E. 202(d)(1)(B). 107 D.R.E. 202(d)(1)(C). 108 AB at 10 (citing D.R.E. 201(b), 202(b)).

– 19 – accuracy cannot be reasonably questioned.” 109 NVR argues that the filings

Defendants cite fail to meet this standard because they “contain contested

facts” and that “judicial notice does not extend to legal pleadings and

settlement documents” because such documents “are naturally subject to

dispute, contain contested facts, and are not universally known or easily

verifiable.”110 NVR concludes that the accuracy of these documents is not

capable of being verified at the pleading stage, therefore, the Court may not

consider them when ruling on the Motions. NVR is incorrect.

To begin, Carter Farm I was litigated in the Court of Chancery; the

filings in the case are eligible for consideration under Rule 202(b).111 And,

although NVR is correct that the Court may not take judicial notice of court

filings “for the truth of their contents,” the Court may take judicial notice of

the filings for other purposes. These include “to discern when the document

was created, what was said therein, or what notice was provided thereby,” and

“‘to understand the nature and grounds for rulings made by the court in which

109 Id. 110 Id. at 10–11. 111 D.R.E. 202(b) (permitting Court to take judicial notice of “the records of the court in which the action is pending[.]”).

– 20 – the documents were filed.’”112 Defendants’ citations to Carter Farm I are

limited to the contents of Court’s orders, factual findings, and the evidence

upon which the Court relied to resolve the motion presented in Carter Farm

I. 113 I find that Defendants’ citations to the record in Carter Farm I may be

considered for the limited purpose of understanding the grounds for this

Court’s prior holding in a related action.

NVR also argues that the Court may not take judicial notice of the

settlement between Carter Farm and the County. NVR relies on the same

rationale it advanced in connection with Court records; namely, that judicial

notice does not apply to settlements because their contents are subject to

reasonable dispute. This argument lacks merit.

This Court enforced the settlement against Carter Farm and the County

in Carter Farm I. 114 The Court is required to take judicial notice of Carter

Farm I under Rule 202(a), which must include, at least, the fact that the

settlement exists and that the parties were bound by it.115 The Court may also

112 Indemnity Insur. Co., RRG v. Cohen, 2018 WL 487246, at *1 (Del. Ch. Jan. 18, 2018) (citing and quoting In re Rural Metro Corp. S’holders Litig., 2013 WL 6634009, at *7–9 (Del. Ch. Dec. 17, 2013)). 113 See, e.g., OB at 5 (citing to exhibits submitted to the Court for the pending motion to enforce a settlement). 114 See Carter Farm I at *1, *4–9. 115 “Every court in this State must take judicial notice of . . . [the] case law” of Delaware. D.R.E. 202(a).

– 21 – be able to take judicial notice of the settlement’s terms if they formed the basis

of the Court’s ruling and if, under the circumstances, the accuracy of the terms

“cannot be reasonably questioned.” The Court’s discussion of the settlement

may also be judicially noticed to discern what notice was provided to others

when the Court issued its ruling.116

The Court takes judicial notice of the factual findings and holdings of

Carter Farm I, and the underlying records the Court used to support its

conclusions to determine what notice may have been provided to NVR.

Specifically, the Court takes judicial notice of the date Carter Farm I was

decided and made publicly available, what the Court said in its ruling

regarding the settlement, the records used to support the Court’s findings of

fact and conclusions of law, and the contents of the settlement outlined in the

Court’s opinion.

2. The Court may take judicial notice of the submitted plans and County reviews.

NVR also asserts that the Court cannot consider the “exploratory plans,

preliminary plans, and decisions made by” the County. 117 NVR contends that

these documents are not “universally accepted facts that are capable judicial

116 See Indemnity Insur. Co., 2018 WL 487246, at *1 (citing Rural Metro Corp., 2013 WL 6634009, at *7–9). 117 AB at 11–12; Tr. 27:7–27:19.

– 22 – notice” and that they are not relevant evidence.118 Defendants dispute these

characterizations, arguing that they do not rely on the records for the truth of

their contents, but only to show that they were publicly available and when

NVR should be considered to have constructive notice.119

Documents may be judicially noticed to “discern when the document

was created, what was said therein, or what notice was provided thereby[.]”120

And “Delaware courts have taken judicial notice of publicly available

documents that ‘are required by law to be filed, and are actually filed, with

federal or state officials.’”121 Defendants cite to these records to support their

contention that NVR had notice of facts that reasonably should have prompted

it to investigate Carter Farm’s activities.122 This Court may take judicial

notice of records publicly recorded with Recorder of Deeds. 123 Defendants

do not, as NVR avers, ask the Court to accept the details of these records in

118 AB at 11–12; Tr. 27:1–27:22. 119 See RB at 4–5. Indemnity Insur. Co., 2018 WL 487246, at *1 (citing Rural Metro Corp., 2013 120

WL 6634009, at *7–9). 121 Rural Metro Corp., 2013 WL 6634009, at *7 122 See, e.g., OB at 8 (“With NVR’s Knowledge, Carter Farm Moves Ahead Alone . . . . This was no secret to NVR.”). 123 See, e.g., Talley v. Horn, 2022 WL 4963256, at *1 n.2 (Del. Ch. Oct. 4, 2022) (citing Sunrise Ventures, LLC v. Rehoboth Canal Ventures, LLC, 2010 WL 363845, at *10 n.58 (Del. Ch. Jan. 27, 2010)).

– 23 – their briefing. The information in County records is subject to judicial notice

under Rule 201 for the purpose of determining when the documents were filed

and what notice their contents may have provided to NVR.

The Court also finds these documents to be relevant. Evidence is

relevant if it has “any tendency to make a fact more or less probable” and “the

fact is of consequence in determining the action.”124 These documents are

relevant because they make the fact that NVR could have discovered its claims

sooner had it perceived these red flags more probable, and they relate directly

to the claims at issue—whether NVR waited too long to bring suit and whether

the Court can grant the relief NVR seeks. The Court takes judicial notice of

the submitted plans and County reviews for the limited purpose of

understanding when they were created or submitted, what was said therein,

and what notice they may have provided.

3. The Court may take judicial notice of Defendants’ negotiations with the County. Lastly, NVR objects to Defendants “cit[ing] their history of

negotiations” with the County “regarding a regional sewer system and other

development matters.” 125 NVR asserts that the “underlying facts and

124 D.R.E. 401. 125 AB at 12.

– 24 – positions of the parties in negotiations” are contested and “not appropriate for

judicial notice.” 126 The references to these negotiations in Defendants’ brief

are only used to establish that such negotiations occurred.127 NVR explicitly

concedes that those negotiations may be used to establish that there was a

dispute between Carter Farm and the County. 128 I, therefore, take judicial

notice of the fact that Carter Farm and the County engaged in negotiations for

the limited purposes of finding that a dispute existed, and the parties engaged

in discussions. I do not take as true the purported substance of the negotiations

or each side’s alleged positions and beliefs.

B. NVR’s claims should be dismissed as untimely. Defendants maintain that all of NVR’s claims should be barred by

laches, because claims arising from a contractual right must typically be

brought within three years of the alleged breach.129 Defendants assert that

NVR’s claims arose in 2014, when the status quo order dissolved, and the

126 Id. 127 See OB at 7–8. Also, as previously discussed, the Court may take judicial notice of this Court’s discussion of the negotiations in Carter Farm I to understand and evaluate its ruling. 128 See AB at 12 (“[T]he only ‘fact’ that such negotiations could establish was the existence of a dispute and that Defendants and [the] County resolved that dispute amicably.”). 129 OB at 16–18; RB at 6–8; Tr. 4:4–4:22.

– 25 – LPA Record Plan expired. 130 Defendants contend that NVR should have filed

this action by July 2017. 131 Alternatively, Defendants argue that NVR’s

claims accrued no later than the date of the final breach alleged in NVR’s

complaint, May 2021. 132 Even by that standard, Defendants argue, NVR’s

action is untimely.133

NVR vigorously disputes Defendants’ reasoning and argues that its

contractual claims are timely for four reasons. First, NVR maintains that the

LPAs did not expire in 2014. 134 Second, NVR argues that the LPAs are

“continuous contracts,” and the statute of limitations did not begin to run until

the parties’ contractual relationship terminated. 135 Third, NVR argues that the

statute of limitations was tolled until it became aware of Carter Farm’s

conveyance of “the Property” to Choptank, recorded on March 8, 2022.136

Fourth, and finally, NVR suggests that an equitable tolling doctrine should

apply to its breach of contract and tortious interference claims. 137

130 OB at 17. 131 OB at 18. 132 OB at 18. 133 Id. at 18–19; RB at 11–14. 134 AB at 18–22. 135 Id. at 23, 24–25. 136 Id. at 27. 137 Id. at 24–25.

– 26 – “For a court to grant a Rule 12(b)(6) motion on timeliness grounds, the

complaint's allegations must show that the claim was filed too late.”138

“Under Delaware law, there are two methods the [C]ourt uses to analyze the

timeliness of a claim: the statute of limitations and the doctrine of laches.”139

“When a plaintiff has advanced a legal claim and seeks a form of relief that is

available from a court at law, such as monetary damages, then the court will

apply the statute of limitations in the same manner as a law court.”140 “If a

plaintiff has presented a court of equity with an equitable claim or if the

plaintiff has sought equitable relief, then the court will apply the doctrine of

laches.” 141

“Although both laches and statutes of limitation operate to time-bar

suits, the limitations of actions applicable in a court of law are not controlling

in equity.”142 “Under ordinary circumstances, a suit in equity will not be

138 Lebanon Cty., 287 A.3d at 1193 (citing Kahn v. Seaboard Corp., 625 A.2d 269, 277 (Del. Ch. 1993)). Richardson, 2025 WL 2491199, at * 9 (citing Lebanon Cty. Emplys.’ Ret. Fund v. 139

Collis, 287 A.3d 1160, 1194 (Del. Ch. 2022)). Lebanon Cty., 287 A.3d at 1194 (citing Perkins v. Cartmell, 1845 WL 493, at *5 140

(Del. June 1845)). 141 Lebanon Cty., 287 A.3d at 1194 (citing Donald J. Wolfe & Michael A. Pittenger, Corporate and Commercial Practice in the Delaware Court of Chancery § 15.07[d] (T. Brad Davey et al., eds. 2d ed. 2024)). 142 Reid v. Spazio, 970 A.2d 176, 183 (Del. 2009) (citing Adams v. Jankouskas, 452 A.2d 148, 157 (Del. 1982)).

– 27 – stayed for laches before, and will be stayed after, the time fixed by the

analogous statute of limitations at law[.]” 143 The Court often applies the

statute of limitations by analogy in a laches analysis. 144 Therefore, “[a] filing

after the expiration of the analogous limitations period is presumptively an

unreasonable delay for purposes of laches.” 145

Because claims for breach of contract under a continuous contractual

obligation and a standard contractual obligation may ripen at different times,

I first determine whether NVR’s contractual claims fall under the continuing

breach exception. I then analyze the timeliness of NVR’s claims.

1. The continuing breach exception does not apply to NVR’s claims. “Statutes of limitations generally do not begin to run ‘until all of the

elements of the claim have occurred.’”146 “A cause of action for breach of

contract accrues when the contract is broken, not when actual damage results

143 Spazio, 970 A.2d at 183 (quoting Wright v. Scotton, 121 A. 69, 72–73 (Del. Jan. 16, 1923)). 144 See generally Kraft v. WisdomTree Invests., Inc., 145 A.3d 969, 978–93 (Del. Ch. 2016) (discussing the analytical framework of a laches claim). 145 Lebanon Cty., 287 A.3d at 1195 (quoting Levey v. Brownstone Asset Mgmt., LP, 76 A.3d 764, 769 (Del. 2013)). 146 AM Gen. Hldgs. LLC v. The Renco Gp., Inc., 2016 WL 4440476, at *11 (Del. Ch. Aug. 22, 2016) (quoting Price v. Wilm. Tr. Co., 1995 WL 317017, at *2 (Del. Ch. May 19, 1995)).

– 28 – or is ascertained.”147 Neither party disputes this. 148 NVR filed its complaint

on October 14, 2024. 149 Therefore, to avoid a time bar, NVR’s claims must

have accrued on or after October 14, 2021.150

Defendants assert that the LPAs expired or were abandoned in 2014

“when neither party could fulfill their obligations under the LPAs[.]” 151 At

the latest, Defendants argue, NVR’s claims accrued when Carter Farm filed

the last exploratory plan with the County, in May 2021.152 NVR contends that

the continuing breach exception should apply because the LPAs never expired

and they expressly “contemplate a continued obligation by Carter Farm to”

attempt to meet its obligations under the LPAs.153

147 Davis, Bowen & Friedel, Inc. v. Disabatino, 2016 WL 7469691, at *4 (Del. Super. Dec. 27, 2016) (citing Worrel v. Farmers Bank, 430 A.2d 469, 472 (Del. 1981)). OB at 16; AB at 23. See, e.g., AM Gen. Hldgs., 2016 WL 4440476, at *11 (citing 148

Smith v. Mattia, 2010 WL 412030, at *4 (Del. Ch. Feb. 1, 2010)). 149 See Dkt. 1. 150 See Dkt. 1; 10 Del. C. § 8106. Section 8106(c) does not apply in this instance because the LPAs do not contain a “period specified in” them that permits them to bring suit. 151 OB at 18; see also RB at 6–9; Tr. 9:3–11:13. 152 See OB at 18; Tr. 13:20–14:8. 153 AB at 16; see also AB at 24–28; Tr. 38:13–38:20 (arguing the LPAs express a continuing obligation).

– 29 – “If the continuing breach exception applies . . . the statute begins to run

the moment ‘full damages can be determined and recovered,’ which may not

happen until the contract terminates.”154 The continuing breach doctrine,

however, is typically “applied only in unusual situations.”155 It is NVR’s

burden to prove the doctrine applies in this case.156

“To determine whether a breach (or series of breaches) is ‘continuing,’

Delaware courts consider whether the breach(es) can be divided such that the

‘plaintiff could have alleged a prima facie case for breach of contract . . . after

a single incident.’” 157 “If such a case can be made, the contract is severable,

‘even when confronted with numerous repeated wrongs of similar, if not the

same, character over an extended period.’” 158

154 AM Gen. Hldgs., 2016 WL 4440476, at *11 (citations omitted). 155 Desimone v. Barrows, 924 A.2d 908, 924–25 (Del. Ch. 2007) (referred to as the “continuing wrong doctrine”). See, e.g., Davis, Bowen & Friedel, 2016 WL 7469691 at *4 (citing Fike v. Ruger, 156

754 A.2d 254, 261 (Del. Ch. 1999), aff’d, 752 A.2d 112 (Del. 200)). 157 AM Gen. Hldgs., 2016 WL 4440476, at * 12 (quoting Price, 1995 WL 317017, at *2). 158 Davis, Bowen & Friedel, 2016 WL 7469691, at *4 (quoting AM Gen. Hldgs., 2016 WL 4440476, at * 12).

– 30 – NVR’s claims arise from the LPAs. NVR alleges Carter Farm breached

the LPAs by transferring title of the Property to Choptank,159 submitting

record plans to the County that revised the LPA Record Plan without NVR’s

approval, 160 failing to perform its obligations under the LPAs,161 issuing the

RFP and seeking to sell the Property to third parties,162 and repudiating the

LPAs.163 Finally, NVR alleges Choptank tortiously interfered with NVR’s

rights under the LPAs.164 Several provisions of the LPAs bear on NVR’s

claims: Section 4,165 Section 6,166 Section 8, 167 Section 9,168 Section 12,169

and Section 17. 170

159 Compl. ¶¶ 34–35 (erroneously numbered 37–38). 160 Id. ¶¶ 42–45 (erroneously numbered 44–47). 161 Specifically, failing to perform development work to prepare the lots in accordance with the LPAs. See Compl. ¶ 55; OB Ex. A § 4 (requiring Carter Farm to clear and grade the Lots, complete base paving, and construct storm drainage structures). 162 Compl. ¶¶ 54 (56), 61 (63); OB Ex. A § 8(e); OB Ex. B § 8(e). 163 Compl. ¶¶ 54–55 (56–57), 61–64 (63–66). 164 Id. ¶¶ 67–70 (69–72). 165 Id. ¶¶ 15–16; OB Ex. A § 4; OB Ex. B § 4. 166 Compl. ¶ 17; OB Ex. A § 6; OB Ex. B § 6. 167 Compl. ¶ 20; OB Ex. A § 8; OB Ex. B § 8. 168 OB Ex. A § 9; OB Ex. B § 9. 169 OB Ex. A § 12; OB Ex. B § 12; see also Compl. ¶ 19. 170 Compl. ¶ 23; OB at 3–8; OB Ex. A § 17; OB Ex. B § 17.

– 31 – Section 4 lays out Carter Farm’s obligations to improve the lots on the

Property.171 Relevant to this dispute are subsections (d) and (j), which state,

respectively:

4(d) Water and Sewer Mains. [Carter Farm] shall install water and sewer mains in the street or in the rear of each Lot with laterals with the Lot lines and shall clearly mark the same. [Carter Farm] shall pay any allocation or, off-site charges. [Carter Farm] shall furnish written evidence of the paid fees and written evidence that such are transferable from [Carter Farm] to [NVR] at no cost to [NVR]. 172

4(j) Performance of Work. The development obligations provided for above, which are required for the issuance of building permits for [NVR]’s improvements shall be completed by September 30, 2012. Private utilities shall be installed be no later than September 30, 2021. In the event [Carter Farm] fails to meet any of the aforementioned dates, [NVR] shall have the right, in addition to any other remedies under this Agreement, to (i) terminate this Agreement and Seller shall return the Deposit to [NVR] withing five (5) days of such termination, or (ii) extend such dates for a reasonable period of time for [Carter Farm] to complete the required actions. 173

171 See OB Ex. A § 4; OB Ex. B § 4. 172 OB Ex. A § 4(d); OB Ex. B § 4(d). 173 OB Ex. A § 4(j)(emphasis added); OB Ex. B § 4(j).

– 32 – Section 6 lists conditions precedent to settlement. Under Section 6,

NVR would only be obligated to purchase the Property if all of the express

conditions were met. 174 One such condition to settlement was that

[Carter Farm] has completed its improvements as to the Lots including, but not limited to, base paving, such other matters as described in [Section] 4 and correction of the deficiencies listed on the Lot Inspection Report.175

Section 8 of the LPAs outlines each party’s liability in the event of

default. Section 8(e) specifies that

No failure(s) or default(s) by [NVR] or [Carter Farm], including failure to timely exercise options, shall result in the termination or limitation of any right hereunder or the exercise of any rights or remedies with respect to such failure(s) or default(s) unless and until [Carter Farm] or [NVR] shall have been notified in writing by a document specifically entitled “Notice of Default” and shall have failed to remedy the specified failure(s) or default(s) . . . . The scope of the breach or default and of the required cure shall be limited to the failure(s) or default(s) specifically stated in the Notice of Default, and any right to claim or pursue a breach of or default under this Agreement following any such failure to cure shall be limited to the specific failure(s) or defaults(s) stated in such Notice of Default.

Notwithstanding any of the foregoing in this Sub[section] 8(e), any attempt by [Carter Farm] to sell, offer the Property for sale, or to otherwise

174 OB Ex. A § 6; OB Ex. B § 6. 175 OB Ex. A § 6(b); OB Ex. B § 6(b).

– 33 – market the Property, to any third party shall constitute an immediate default for which there shall be no right to cure and for which [NVR] shall be entitled to immediately exercise its default remedies hereunder without notice to [Carter Farm]. 176

Section 9 required Carter Farm to obtain “all appropriate governmental

approvals . . . with respect to the Property.” 177

Section 12 contains miscellaneous provisions. Subsection (d) is

relevant here. It states that

[NVR] shall have the right to review and approve or disapprove any and all changes made to the proposed, submitted and/or approved development documents, including but not limited to, plans, designs, and drawings, including site plans, construction (all types), landscape improvements (trees, shrubs, fences and walls) and covenants, restrictions and easements of record. Any changes made without [NVR]’s approval shall at the election of [NVR] be a default by [Carter Farm] under this Agreement, without opportunity to cure. The parties agree that any revised Lot configuration and/or change in the Lot yield arising from any such revies development documents shall, if modifying the anticipated Record Plan, constitute the Lots that are the subject of this Agreement. [Carter Farm] shall meet and confer with [NVR] on a regular basis, but no less than every two (2) months, to

176 OB Ex. A § 8(e); OB Ex. B § 8(e). 177 OB Ex. A § 9(f); OB Ex. B § 8(f).

– 34 – review the anticipated schedule and sequence of development of the Property.178

Finally, Section 17 outlines additional costs that would be incorporated

into the final purchase price in the agreement. Section 17(b) states that

[Carter Farm] will construct on the Property a Wastewater Treatment Plant (“WTP”) to service both the Carter Farm and Country Club Estates communities. The WTP will be approved by both the Delaware Department of Natural Resources and Environmental Control (DNREC) and the County and subject to regulation by the Public Service Commission (PSC). [NVR] shall reimburse [Carter Farm] at the settlement of each Lot, [$9,815.00] per Lot representing the Capital Recover Fee for the WTP, paid by [Carter Farm] in advance to the County.179

Based on the allegations in the Complaint, I conclude that NVR could

have made a prima facie showing of breach or made a full assessment of its

damages at several different points. The first was after Carter Farm failed to

take any steps, such as returning NVR’s deposit, in response to the dissolution

of the status quo order and expiration of the LPA Record Plan in 2014.180

NVR’s allegation that Carter Farm “was not able to get approval” 181 from the

178 OB Ex. A § 12(d); OB Ex. B § 12(d). 179 OB Ex. A § 17(b); OB Ex. B § 17(b). 180 Carter Farm I, at *8–9; New Castle Cty. C. § 40.31.390. 181 Compl. ¶ 23.

– 35 – County and judicially noticeable facts indicate the LPA Record Plan expired

in 2014 when the Court issued Carter Farm I.

The County Code then in effect states that “[t]he expiration time limits

of a land use application decision contained in Table 40.31.390 shall

commence on the date of the first written decision within each stage of the

application review process.”182 Table 40.31.390 states that a “Record Plan

Submission” must be recorded six months after the County issues a written

decision on the submission, or else it expires.183 The County Recorder of

Deeds indicates no such plan was ever recorded. 184 Even if the LPA Record

Plan didn’t expire immediately after the status quo order was vacated, it would

need to be recorded by September 17, 2014—six months after the status quo

order was dissolved.185

182 New Castle Cty. C. § 40.31.390(A) (May 30, 2014). 183 Id. at Table (titled “Time Limits”). 184 See Parcel Records, Related Project Plans 20080150 (dated Sep. 18, 2009, status “Inactive”), 2016210285 (dated Feb. 5, 2016, status “Recorded”) (last visited Jan. 14, 2026). The records indicate that no other plans were submitted between these dates, and the submissions appear to be the exhibits Defendants submitted with their briefs. Compare Parcel Records, Related Project Plans 20080150 with OB Ex. D; compare Parcel Records, Related Project Plans 2016210285 with OB Ex. G. 185 See Carter Farm I (ruling the matter was settled by the parties); Stipulated Status Quo Order ¶ 7, Carter Farm LLC v. New Castle County, C.A. No. 1641-VCG (Del. Ch.), Dkt. 11 (May 31, 2007) (“The Order shall remain in effect until . . . the matter is otherwise resolved by the parties”).

– 36 – The second point at which NVR could have established a prima facie

case was when Carter Farm divided the Property, including the Original

Parcels listed in the LPAs,186 into agricultural subdivisions, in 2015.187 The

third point was when Carter Farm conveyed part of the Property to a third

party in 2019.188 The fourth was when Carter Farm marketed part of the

Property to third parties via the RFP in January 2021.189 The last was when

Carter Farm submitted a new subdivision plan to the County the following

May, after NVR was in possession of the RFP and was aware that Carter Farm

was actively marketing the remainder of the Property. 190

NVR is correct that the LPAs allow it to grant extensions of time to

Carter Farm to cure breaches of Section 4 that are “required for the issuance

of building permits[;]” violations outlined in Section 8(e) constitute

immediate breaches and allow no right to cure.191 Nowhere, however, does a

186 OB Ex. B at *1 (recitals section listing the parcels), Ex. A-1 (referring to the “First Recital” as the legal description of the Property). 187 OB Ex. E (dated Oct. 15, 2015). 188 OB Ex. H (recorded deed dated Apr. 10, 2019, evidencing the conveyance). 189 OB Ex. I. The RFP is integral to NVR’s allegations and is therefore incorporated into the complaint by reference. See Compl. ¶¶ 25–26, 54 (56), 61–62 (63–64). 190 Compl. ¶ 28. 191 See OB Ex. A § 4(j); OB Ex. B § 4(j).

– 37 – provision of the LPAs allow an extension beyond a “reasonable period.”192 In

my view, a “reasonable period” would be no longer than three years—the

statute of limitations period chosen by the legislature.193 The decade or more

that NVR waited in this case is not a “reasonable period.” During those years,

Carter Farm subdivided and conveyed pieces of the property to third parties;

they likely would not have done so if NVR had diligently enforced its

rights.194

At any of the points listed, NVR could have brought suit and pleaded a

prima facie case for breach of contract. To make its case, NVR would have

needed to adequately plead “(1) the existence of a contract; (2) that the

contract was breached; and (3) that damages were suffered as a result of the

breach.”195 Neither party disputes that a contract exists. Accepting,

arguendo, NVR’s argument that the LPA Record Plan did not expire, Carter

192 See OB Ex. A § 4(j); OB Ex. B § 4(j). “Unless there is ambiguity, Delaware courts interpret contract terms according to their plain, ordinary meaning.” Stream TV Networks, Inc. v. See Cubic, Inc., 279 A.3d 323, 336 (Del. 2022). 193 See 10 Del. C. § 8106; PXP Producing Co. LLC v. MitEnergy Upstream LLC, 342 A.3d 402, 408 (Del. Ch. 2025) (citing Kraft, 145 A.3d at 974–75) (“Statutes of limitations reflect a legislative determination that the claim must be timely pursued.”). See, e.g., OB Ex. H (Deed from Carter Farm to four individuals, dated April 10, 194

2019). LG Elecs. Inc. v. Invention Inv. Fund I, L.P., 2024 WL 4675050 (Del. Super. Ct. 195

Sept. 25, 2024).

– 38 – Farm breached the LPA when it failed to complete the improvements required

in Section 4 by the deadline, when it subdivided the Property NVR contracted

to purchase, and when it marketed and sold portions of the Property to other

parties. NVR suffered damages because it could not receive the full

consideration for which it contracted. Accordingly, I conclude that NVR has

failed to establish that the continuing breach exception applies.

2. Count IV is time-barred by the statute of limitations. Count IV of the complaint is a breach of contract claim for damages: a

legal claim seeking legal relief.196 “When a plaintiff has advanced a legal

claim and seeks relief that would be available from a court at law, then the

court will apply the statute of limitations in the same manner as a law

court.”197 “Determining whether a claim is time-barred by a statute of

limitations requires determining three things: (1) the date the cause of action

accrued, (2) whether the cause of action has been tolled, and (3) if the cause

of action has been tolled, whether and when Plaintiffs were placed on inquiry

196 Compl. ¶¶ 58–65 (60–67); Kraft, 145 A.3d at 975 (“Legal claims seeking legal relief—for instance, a breach of contract claim requesting money damages . . . .”). 197 West Palm Beach Firefighters’ Pension Fund v. Moelis & Co., 310 A.3d 985, 993 (Del. Ch. 2024) (citing Perkins v. Cartmell, 1845 WL 493, at *5 (Del. June 1845)).

– 39 – notice of their claims.” 198 As noted above, the latest date the cause of action

accrued was May 6, 2021, more than three years before NVR filed the

Complaint.

The parties dispute whether the statute of limitations was tolled.

Defendant generally argues that it took multiple, public acts and made public

filings that put NVR on constructive notice of its claims between 2014 and

2021. 199 NVR argues that none of the acts or public filings put NVR on notice

because the parties continued to have discussions that gave NVR comfort.200

NVR identifies three potential tolling doctrines in support of its

argument,201 but the theory NVR appears to rely upon is fraudulent

concealment.202 As Plaintiff argues: “To toll the statute of limitations under

fraudulent concealment, the plaintiff must allege some affirmative act by the

defendant ‘that either prevented the plaintiff from gaining knowledge of

material facts or led the plaintiff away from the truth.’” 203 If the statute of

198 Acme Mkts., Inc. v. Oekos Kirkwood, LLC, 2023 WL 4873317, at *4 (Del. Ch. July 31, 2023) (citation omitted). 199 See OB at 18–21. 200 See AB at 24 (“Although Carter Farm defaulted under the LPA numerous times over the years, NVR worked with it to continue negotiations and cure the defaults.”). 201 See AB at 24–28. 202 See AB at 17, 19, 24. 203 AB at 24 (quoting In re Tyson Foods, Inc. Consol. S’holders Litig., 919 A.2d 563, 585 (Del. Ch. 2007)).

– 40 – limitations was tolled, as NVR argues, it would have been so only until NVR

knew or should have known of the breach.204

“A [plaintiff] is on inquiry notice when they objectively are aware of

facts ‘sufficient to put a person of ordinary intelligence and prudence on

inquiry which, if pursued, would lead to the discovery’ of facts constituting

the basis of the cause of action.”205 “Inquiry notice does not require that a

plaintiff be aware ‘of all of the aspects of the alleged wrongful conduct.’”206

In essence, a plaintiff must be aware of facts that rise to the level of “red flags”

that would lead a prudent person of ordinary intelligence to investigate a

possible claim.207

I conclude that NVR was on inquiry notice of its claims no later than

January 2021, when it became aware of the RFP.208 Assuming, arguendo,

that the LPAs had not expired, Defendant’s issuance of the RFP constituted

204 Durkin Contracting, Inc. v. City of Newark, 2020 WL 2991778, at *8 (Del. Super. June 4, 2020) (collecting cases). 205 Ocimum Biosolutions (India) Ltd., v. AstraZeneca UK Ltd., 2019 WL 6726836, at *9 (Del Super. Dec. 4, 2019) (quoting Coleman v. Pricewaterhousecoopers, LLC, 854 A.2d 838, 842–43 (Del. Super 2004)). Ocimum, 2019 WL 6726836, at *9 (quoting In re DeanWitter P’rship Litig., 1998 206

WL 442456 (Del. Ch. July 17, 1998)). 207 Ocimum, 2019 WL 6726836, at *9–10 (collecting cases). 208 See Compl. ¶ 25; OB Ex. I (RFP dated Jan. 13, 2021).

– 41 – an incurable breach. 209 NVR concedes that was aware of this breach but

argues that the statute of limitations did not begin to run because Defendant

induced NVR to take no action to protect its rights by making “fraudulent

representations.”210

The allegations of the Complaint do not support NVR’s argument. The

Complaint alleges that “during a subsequent meeting” NVR told Carter Farm

that the LPAs remained in effect and that Carter Farm “could not sell the lots

to another builder.” The Complaint does not allege any response from Carter

Farm. Rather, the Complaint alleges: “This caused continued negotiations of

potential new terms on the LPAs.”211

On a motion to dismiss, the Court need not accept conclusory

allegations unsupported by specific facts. NVR’s claim of fraudulent

concealment following its receipt of the RFP is conclusory. “Claims of

fraudulent concealment are subject to a heightened pleading standard and

209 See OB, Ex. A § 8(e) (“any attempt by [Carter Farm] to sell . . . or otherwise market the Property to any third party shall constitute an immediate default for which there shall be no right to cure . . . .”). See also OB, Ex. B § 8(e) (containing identical language.) 210 AB at 26–27. 211 Compl. ¶ 26.

– 42 – must be ‘stated with particularity’” under Court of Chancery Rule 9(b).212 “To

satisfy Rule 9(b) and thus repel a 12(b)(6) dismissal motion, the claimant must

allege ‘(1) the time, place, and contents of the false representation; (2) the

identity of the person making the representation; and (3) what the person

intended to gain by making the representation.’” 213 NVR’s allegations do not

meet this standard. The Complaint does not allege a single representation

from Carter Farm. It alleges statements made by NVR followed by alleged

“negotiation of potential new terms.”214 This is insufficient to support a claim

for fraudulent concealment.

Even if I were permitted to assume that Carter Farm made statements

designed to deter NVR from taking legal action, I could not conclude that

NVR reasonably relied upon them. NVR claims to have been in negotiations

212 In re Côte d'Azur Est. Corp., 2022 WL 4392938, at *51 (Del. Ch. Sept. 19, 2022) (quoting In re Est. of Lambeth, 2018 WL 3239902, at *4 (Del. Ch. July 2, 2018)); Ct. Ch. R. 9(b). 213 E.g., Surf’s Up Legacy P’rs., LLC v. Virgin Fest, LLC, 2021 WL 117036, at *12 (Del. Super. Jan. 13, 2021) (quoting EZLinks Golf, LLC v. PCMS Datafit, Inc., 2017 WL 1312209, at *3 (Del. Super. Mar. 13, 2017)). See also Stone & Paper Invests., LLC v. Blanch, 2020 WL 3496694, at *8 (Del. Ch. June 29, 2020) (quoting GreenStar IH Rep, LLC v. Tutor Perini Corp., 2017 WL 5035567, at *10 (Del. Ch. Oct. 31, 2017)) (articulating an identical standard under Court of Chancery Rule 9(b)). 214 Id.

– 43 – with Carter Farm for a decade.215 Yet Carter Farm is alleged to have rejected

every set of amendments NVR proposed.216 Under these circumstances, any

reasonably prudent person of ordinary intelligence would have viewed the

RFP as a red flag and, even in the face of assurances,217 would have

undertaken additional investigation.

At a minimum, a reasonable, prudent person in NVR’s shoes would

have looked at sources of public records, where it would have seen (1) the

recorded agricultural subdivision that eliminated three of the Original Parcels,

(2) the recorded minor land development plan that created parcel 11-57.00-

244 from one of the surviving Original Parcels, and (3) the deed conveying

parcel 11-57.00-244 from Carter Farm to four other individuals. If NVR

believed the LPAs had not expired, any one of the foregoing acts would have

indicated that NVR had potential claims for breach of contract against Carter

Farm. I recommend that the Court dismiss Count IV of the complaint as

barred by the statute of limitations.

215 See, e.g., Compl. ¶ 24 (“Throughout the life of the project, including in 2024, the parties held numerous phone calls and in person meetings . . . .” (emphasis added)). 216 Id. ¶¶ 24–32. 217 “[T]he trusting plaintiff still must be reasonably attentive to [their] interests. . . . a plaintiff is on inquiry notice when the information underlying plaintiff's claim is readily available. . . . [The] [p]laintiffs were not entitled to sit idly by, blindly relying on [the] defendants' assurances . . . .” In re Dean Witter, 1998 WL 442456, at *8–9 (Del. Ch. July 17, 1998).

– 44 – 3. Counts I, II, III and V are barred by laches. 218

The remainder of NVR’s claims are equitable in nature or request

equitable relief, and I evaluate them under the doctrine of laches. 219 “‘Laches

is an affirmative defense that the plaintiff unreasonably delayed in bringing

suit after learning of an infringement of his or her rights.’ It consists of two

elements: ‘(i) unreasonable delay in bringing a claim by a plaintiff with

knowledge thereof, and (ii) resulting prejudice to the defendant.’” 220

“A filing after the expiration of the analogous limitations period is

presumptively an unreasonable delay for purposes of laches,” 221 and the

analogous statute of limitations applies absent “unusual conditions or

extraordinary circumstances.”222 “Laches is fundamentally concerned with

the prevention of inequity in permitting a claim to be enforced.”223 Therefore,

“[c]hange of position on the part of those affected by non-action, and the

218 These counts seek to rescind the Choptank transfer (Count I) and the record plan filed in 2022 (Count II), specific performance of the LPAs (Count III) and damages against Choptank for tortious interference with the LPAs (Count V). 219 See Donald J. Wolfe & Michael A. Pittenger, Corporate and Commercial Practice in the Delaware Court of Chancery § 2.03[b][i] (T. Brad Davey et al., eds. 2d ed. 2024) (listing equitable causes of actions). 220 West Palm Beach, 310 A.3d at 993 (quoting Levy v. Brownstone Asset Mgmt., L.P., 76 A.3d 764, 769 (Del. 2013)). 221 Levy, 76 A.3d at 769. 222 IAC/InterActiveCorp v. O'Brien, 26 A.3d 174, 178 (Del. 2011). 223 Ontario Provincial Council of Carpenters’ Pension Tr. Fund v. Walton, 294 A.3d 65, 98 (Del. Ch. 2023) (quotation omitted).

– 45 – intervention of rights are factors of supreme importance.”224 “Inequity

[(prejudice)] for this purpose arises where there occurs some change in the

condition or relation of the parties or the property involved in the pending

lawsuit.”225

Laches is fact dependent; sometimes even a short delay can be

unreasonable.226 “The temporal aspect of the delay is less critical than the

reasons for it.”227 Further, “[c]hange of position on the part of those affected

by non-action, and the intervention of rights are factors of supreme

importance.”228

In this case, I conclude that NVR had actual notice of its claims from

at least January of 2021, when it received a copy of Carter Farm’s RFP.229 In

light of the lack of progress on the project and Carter Farm’s rejection of

NVR’s proposed amendments in 2017, the RFP at least constituted a red flag

Hudak v. Procek, 727 A.2d 841, 843 (Del. 1999) (quoting Fed. United Corp. v. 224

Havender, 11 A.2d 331, 345 (Del. 1940)). 225 West Palm Beach, 310 A.3d at 1000 (quoting Donald J. Wolfe & Michael A. Pittenger, Corporate and Commercial Practice in the Delaware Court of Chancery § 15.07[c][4] (T. Brad Davey et al., eds. 2d ed. 2024). 226 See id. at 7–8 (“An unreasonable delay can range from as long as several years to as little as one month”). 227 Id. at 7. Hudak v. Procek, 727 A.2d 841, 843 (Del. 1999) (quoting Fed. United Corp. v. 228

Havender, 11 A.2d 331, 345 (Del. 1940)). 229 Compl. ¶ 25.

– 46 – that required further inquiry by NVR.230 Even under the most charitable

interpretation of the facts, NVR initiated this suit months after its claims

expired under the analogous statute of limitations.

In that time, Defendants invested time and resources in creating new

subdivision proposals and marketing these proposals to other developers.231

The Property had been subdivided and conveyed to third parties. 232 Carter

Farm pursued County approval of alternative development plans.233 Carter

Farm later conveyed the remainder of the Property to Choptank. 234 I conclude

that it would be inequitable to grant NVR any of the equitable relief it seeks

given its extended delay. I recommend Counts I, II, III and V be dismissed

under the doctrine of laches.

230 Id. ¶ 24. Id. ¶ 25; OB Ex. I (RFP addressed to a generic recipient and stating it is accepting 231

multiple “proposals”). 232 OB Exs. E, G, H. This was recorded in 2019. See New Castle Cty. Recorder of Deeds, Public Access, Search, Instrument Id 20151019 0053268, https://newcastl e.dts-de.com/PaxWorld/views/search# (last visited Feb. 1, 2026). 233 See generally OB Exs. I–L, N–P. 234 This was recorded in 2022. See Parcel Records, Deed History at 20220308 0027184 (last visited Jan. 25, 2026).

– 47 – CONCLUSION For the foregoing reasons, I recommend that Counts I, II, III and V be

dismissed as barred by laches, and that Count IV be dismissed as barred by

the statute of limitations. 235 Because I recommend that the complaint be

dismissed, I also recommend that the Lis Pendens be terminated.

This is a Final Report under Court of Chancery Rule 144. 236 Exceptions

may be taken pursuant to Rule 144(c)(2).237

235 Having found that all of NVR’s claims are untimely, I need not address Defendants’ other arguments: that NVR’s pleadings on Counts I and II (seeking equitable rescission of the Choptank transfer and the record plan filed in 2022, respectively) are defective, that NVR is not entitled to specific performance, and that NVR has not adequately pled a claim for tortious inference. 236 See Ct. Ch. R. 144(b)(2). 237 Ct. Ch. R. 144(c)(2).

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