Clouser v. Marie ( 2022 )


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  •       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.
    18