Alexis Stombaugh v. Ashburn Homes, Inc. and Sobrook, LLC

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE ALEXIS STOMBAUGH, Plaintiff, v. ASHBURN HOMES, INC. and SOBROOK, LLC, Defendants. ASHBURN HOMES, INC. and C.A. No. 2022-0076-CDW SOBROOK, LLC, Counterclaim Plaintiffs, v. ALEXIS STOMBAUGH, Counterclaim Defendant. POSTTRIAL REPORT Date Submitted: February 26, 2026 Date Decided: July 8, 2026 Gary R. Dodge, CURLEY, DODGE, FITZGERALD & FUNK, LLC, Dover, Delaware; Patrick C. Gallagher, JACOBS & CRUMPLAR, P.A., New Castle, Delaware; Counsel for Plaintiff and Counterclaim Defendant Alexis Stombaugh Peter K. Schaeffer, Jr., AVENUE LAW, Dover, Delaware; Counsel for Defendants and Counterclaim Plaintiffs Ashburn Homes, Inc. and Sobrook, LLC WRIGHT, M.  This is a case that should not have gone to trial. A buyer entered into a contract with a developer to buy a home that the developer would build. An executed addendum to the contract forbade the developer from escalating the purchase price of the property after breaking ground. The developer did it anyway. The buyer sought answers but received no response from the developer. Instead, the developer wrongly accused the buyer of breaching the contract and purported to terminate the contract unilaterally. Before, during, and after trial, the defendants dug in their heels. They dismissed any notion of responsibility and continued to maintain that everything they did was within their rights. Defendants’ owner, in an attempted “gotcha,” asserted that the wrongful escalation was retracted when it never was. He put this whole dispute at the feet of his counsel and the buyer. In this posttrial report, I conclude that the contracting defendant breached the contract between the parties without justification and the buyer is, therefore, entitled to specific performance. I further recommend that the buyer’s attorney fees be shifted to the defendants.  I. BACKGROUND These are the facts as the court finds them after trial. The facts are drawn from 54 trial exhibits (including two deposition transcripts) and live testimony from eight fact witnesses and two expert witnesses. 1 A. The Parties Plaintiff and counterclaim defendant Alexis Stombaugh (“Stombaugh”) is a Delaware resident who, in 2020, was looking to buy a home in Kent County. 2 Defendant and counterclaim plaintiff Ashburn Homes, Inc. (“Ashburn”) is a property-development company that builds homes in Kent County. 3 Defendant and counterclaim plaintiff Sobrook, LLC (“Sobrook”) is a holding company that owns the land in Riverview that Ashburn developed. 4 Nonparty Jordan Ashburn (“Mr. Ashburn”) is the owner of Ashburn and Sobrook’s managing member. 5 1 Volume I of the trial transcript (pages 1–272) is at Docket Number 65, and Volume II of the trial transcript (pages 273–382) is at Docket Number 80. Trial transcript citations are in the form of “Trial Tr. ___.” The parties did not submit a single set of joint trial exhibits, so trial exhibits are cited as “PX __” and “DX __.” 2 See Trial Tr. 13–16, 70–71. 3 See id. 153–155. 4 See id. 154, 303. 5 Id. 303. -2- B. Stombaugh Picks the Property Stombaugh focused her search for a home on the Riverview subdivision of Frederica, Delaware, where Ashburn was building homes.6 Ashburn worked with Rush Home Realty to list its Riverview homes for sale. 7 Ashburn only communicated to buyers of its homes through its realtors. 8 By mid-January 2021, Stombaugh had selected a lot in Riverside and a model home to be built on the lot (“Property”). 9 She worked with Rush Homes Realty, through its agents, Bert Ferguson (“Ferguson”) and Marcus Rush (“Rush”), to execute the sale of the lot and construction of the Property. 10 During this period, Ferguson requested information on specific “options, upgrades and other selections,” for the Property, including “tile selections for the master bathroom for the [Property].” 11 Stombaugh provided the requested information and, on January 28, selected tiling for the master bathroom. 12 6 Id. 15–16. 7 Id. 155, 158. 8 See id. 324. 9 See id. 17–18. 10 See id. 40. 11 Pl. Alexis Stombaugh’s Opening Post Trial Br. (“Pl.’s Opening Br.”), Dkt. 71 at 3 (citing Trial Tr. 18). 12 PX 21 at P-389. -3-  Stombaugh made her tiling selection by sending a picture of a different Ashburn home’s shower tiling to Ferguson. 13 She chose “the Calcutta tile, [a] white tile with gray veining.” 14 Ferguson confirmed that her tile selection would be reflected in the eventual contract for the Property.15 1. The Agreement of Sale On March 3, the parties executed the Agreement of Sale for the purchase of the Property (“Agreement”). 16 The Agreement reflects a base purchase price of $334,900 and a total price (including options and discounts) of $350,411. 17 The Agreement “emphasize[s] that time is of the essence for” two parts of the transaction: (1) Stombaugh’s mortgage application and commitment; and (2) Stombaugh’s option selections for the home.18 The Agreement requires options for the home to be selected “within 14 days” of the Agreement’s execution. 19 Stombaugh’s failure to comply with these deadlines constitutes a default on the agreement. 20 If Stombaugh defaults, the Agreement gives Ashburn the right to (1) cancel the transaction and retain Stombaugh’s deposit, 13 See Trial Tr. 19–20; see also PX 21. 14 See Trial Tr. 23, 42. 15 PX 21 at P-389. 16 PX 11 at P-332 to P-341. 17 Agreement ¶ 5. 18 Id. ¶ 7. 19 Id. ¶ 7(2). 20 Id. ¶¶ 15, 20. -4- (2) seek specific performance of the Agreement, and (3) exercise any other right or remedy available at law. 21 Additionally, the Agreement gives Ashburn discretion to terminate the contract in three situations: (1) “[Ashburn] determine[s] that [Stombaugh’s] Mortgage Approval: (a) does not meet the requirements of this Agreement; (b) was not obtained within the required time; (c) is conditional or non-binding; or (d) [Stombaugh] do[es] not make a reasonable effort to obtain a mortgage;” (2) “[Ashburn] determine[s] that for reasons beyond [its] control, [Ashburn] cannot achieve Substantial Completion within a reasonable period of time after the Estimated Date of Substantial Completion; or” (3) “[Ashburn] [is] not able to obtain all necessary public or private approvals and permits within a reasonable time.” 22 If Ashburn terminates the Agreement and Stombaugh is not at fault, Ashburn must return to Stombaugh whatever money she actually paid. 23 2. The Addendums The parties executed several addendums with the Agreement, three of which are important here. First, the parties executed the Addendum to Contract for Sale and Purchase, which reflected the options and selections Stombaugh 21 Id. ¶ 15. 22 Id. ¶ 16. 23 Id. -5- chose for the Property. 24 Second, the parties executed the “Selection Time Limit Addendum,” which gave the deadlines for Stombaugh’s selections in order “to eliminate any additional costs and to best meet completion schedules.” 25 The Selection Time Limit Addendum also reflects Ashburn’s commitment to scheduling four specific meetings with Stombaugh before settlement of the Property.26 These meetings included a pre-drywall meeting.27 Third, the parties executed the “Price Escalation Addendum.”28 This addendum explains that, although “an escalation charge may be added to [Stombaugh’s] purchase price prior to the start of construction . . . [,] [n]o additional escalation charges will be added once [Ashburn] ha[s] broken ground on the start of construction.” 29 As with the Agreement, the parties executed these addendums on March 3, 2021. 30 24 PX 11 at P-347. Stombaugh included an additional form, dated January 22, 2021, which reflects her tiling selection. PX 13. This form and the Addendum to Contract for Sale and Purchase describe Stombaugh’s tile section only as “4x6 tile.” They do not provide the color of the tiling or that the tiling is “Calcutta” tiling. See PX 11, 13. 25 PX 11 at P-342 to P-343. Relevant here, the addendum says “All options must be submitted within 14 days after the Agreement of Sale is ratified.” Id. at P-342. It essentially duplicates the 14-day options deadline language in the Agreement. See Agreement ¶ 7. 26 Selection Time Limit Addendum at P-342. 27 Id. 28 PX 12. 29 Price Escalation Addendum. 30 See Agreement at P-343, P-347; Price Escalation Addendum. -6- C. Stombaugh Prepares for Closing Stombaugh selected color options for the home on March 7, during a meeting with Ferguson. 31 At the meeting, Ferguson did not inform Stombaugh of any other options that she needed to make. 32 To Stombaugh, her transaction was proceeding as planned. Stombaugh obtained a mortgage commitment on March 10. 33 The mortgage bore an interest rate of 2.750% and was locked for the duration of the commitment, which expired on April 2, 2021. 34 Stombaugh timely submitted the mortgage commitment and nobody from Ashburn or Rush Home Realty notified her of any issues with the mortgage. 35 On August 17, Stombaugh met with Ferguson and Rush for a pre- construction meeting at the Property. 36 By then, Ashburn had broken ground on the Property. 37 At the meeting, Rush asked Stombaugh if she had met with nonparty L&L Tile Company (“L&L”) to make her carpeting and tile 31 Trial Tr. 37. 32 Id.This is consistent with testimony from Ashburn’s representative, Jacqueline McCann (“McCann”), who testified that selections like colors, trim, and tile are not covered by the 14-day deadline and simply need to be done by the preconstruction meeting. See Trial Tr. 163–64. McCann was the corporate officer who signed the Agreement for Ashburn. 33 PX 43. 34 Id. at P-461. 35 See Trial Tr. 80–81. 36 Id. 38–39. 37 See id. -7- selections. 38 Stombaugh—who had never before received notice of L&L’s participation in the options-selection process—said she had not. 39 This prompted Rush to contact McCann to ask her if L&L had ever contacted Stombaugh. 40 McCann responded that L&L had not, and stated: That was my fault. I didn’t send [Stombaugh’s] information to L&L. I just sent it to them. Give them a couple of days to get this into the system and they’ll reach out to [Stombaugh]. 41 McCann sent Stombaugh’s information to L&L by email and wrote: “I forgot to send this to your office. Can we get these buyer’s [sic] scheduled ASAP to make selections. Please see L&L contact sheet, house plans, colored flooring sheet, etc.” 42 L&L promptly contacted Stombaugh and scheduled an options-selection meeting with her for August 21, 2021. 43 1. The Tiling Selection At the options-selection meeting, Larry Mocadlo (“Mocadlo”) of L&L informed Stombaugh that the meeting was the time for Stombaugh to make upgrades to any selections for the Property. 44 Mocadlo and Stombaugh 38 Id. 39. 39 Id. 40 See id. 41 PX 26. 42 Id. 43 Trial Tr. 40. 44 Id. 41. -8- discussed Stombaugh’s tile selections. Mocadlo was unaware that Stombaugh had already selected the Calcutta tiling for her master shower because Ashburn did not include it in the paperwork that it sent to L&L. 45 He informed Stombaugh that the Calcutta tiling she chose in January would require an additional upgrade not reflected in the Agreement’s price.46 But Mocadlo could not give Stombaugh a specific upgrade price at that time. He told Stombaugh the upgrade price would need to be resolved before they could execute a formal option selection agreement.47 He also told Stombaugh they would proceed with selecting the rest of her options. 48 Between August and November 2021, Stombaugh wrote to Mocadlo numerous times to request an update on the tiling upgrade price. Mocadlo’s responses were minimal and vague. Stombaugh did not receive a specific estimate for the increased tile price until September, when Mocadlo informed her that the tiling upgrade would cost “almost $2000.” 49 After this, however, Mocadlo again became unresponsive. 45 Id. 41–42. 46 Id. 47 Id. 42. 48 Id. 49 PX 39 at P-451. -9-  On November 15, Mocadlo told Stombaugh that her desired tiling would require another escalation—this time, “an additional $416.00.” 50 Mocadlo added that, if Stombaugh desired floor-to-ceiling tiling, it “would cost an additional $395.00.” 51 On November 20, L&L sent to Stombaugh a formal selection agreement for the tiling. 52 Stombaugh signed the agreement on the same day. 53 2. The Property Price Escalation Separately, on October 22, McCann told Rush of a price escalation Ashburn sought to impose on the purchase of the Property. McCann acknowledged that Ashburn “started construction on this home without . . . providing the escalation charge to be added to the contract.” 54 She acknowledged that Ashburn “should not have started this home without . . . providing this information prior to the breaking of ground.” 55 But she explained to Rush that Ashburn needed to impose a $42,363 price escalation on 50 Id. at P-450. 51 Id. at P-451. 52 See PX 14. The agreement is dated “August 21, 2021.” Id. 53 Id. 54 PX 32 at P-431. 55 Id. - 10 - the sale. 56 At trial, McCann testified, under questioning from defendants’ counsel, “I’m sure I discussed it with [Mr. Ashburn], and I sent it.” 57 Ferguson informed Stombaugh of the requested price escalation. 58 Because Ashburn had already broken ground on the Property, Stombaugh was understandably confused about the escalation and asked to contact Ashburn directly to discuss it. 59 Stombaugh contacted McCann by phone and email on October 22, October 25, and October 26, but received no response each time. 60 Ferguson later informed Stombaugh that Ashburn was refusing to proceed with the Agreement until the parties resolved the attempted price escalation. 61 At trial, Mr. Ashburn conceded the Price Escalation Addendum unambiguously prohibited Ashburn from increasing costs after it broke ground on the Property. 62 He suggested sending this was a mistake, and that once Ashburn understood “after the fact” the price escalation was unenforceable, he 56 Id. 57 Trial Tr. 252. Mr. Ashburn, for his part, said he did not recall the conversation but McCann would have no reason to lie about it. Id. 340. 58 PX 33 at P-434. 59 Id. at P-435. 60 PX 34. Mr. Ashburn maintained at trial that the reason Ashburn ignored Stombaugh’s communications was because she had copied her counsel on emails so Ashburn would, in turn, only communicate with Stombaugh through its own counsel. See, e.g., Trial Tr. 347. 61 See Trial Tr. 74. 62 See id. 307, 338–39. - 11 - instructed counsel (defendants’ trial counsel here) to retract it. 63 Defendants did not offer any contemporaneous evidence to support this bare assertion and did not address it during posttrial briefing or at posttrial argument. 64 On October 29, defendants’ counsel wrote to Stombaugh’s counsel. Defendants’ counsel asserted that Stombaugh defaulted on the Agreement by purportedly failing to timely make options selections. 65 Defendants’ counsel insisted Ashburn had the right to terminate the Agreement and that Stombaugh’s purported failure entitled defendants to retain her deposit. 66 Defendants’ counsel told Stombaugh she could receive her deposit back if she agreed to terminate the Agreement. 67 Counsel for Stombaugh and Defendants traded correspondence on this issue into November. 68 In January 2022, still anticipating her purchase of the Property would close, Stombaugh obtained a new mortgage commitment, at a rate of 3.625%.69 Despite this, the parties’ dispute over the price escalation and Stombaugh’s 63 See id. 64 The court does not find this testimony to be credible. There was nothing accidental about what Ashburn did. McCann testified the price escalation notice was sent intentionally, knowing they had already broken ground, after she talked to Mr. Ashburn about it. Id. 252. 65 PX 16 at P-359. 66 Id. 67 Id. 68 Id. 69 Trial Tr. 365. - 12 - purported default led to the transaction stalling and construction on the Property stopping. Stombaugh testified that, because of this, the Property stayed “open to the elements” after November 2021, until the Property’s eventual completion in late 2024. 70 The parties never conducted the pre-drywall inspection of the Property and Stombaugh has yet to attend a final walkthrough. 71 D. Recent Developments Still in need of a home, in 2023, Stombaugh purchased a different property in Magnolia. 72 Stombaugh executed a mortgage for the home with Capital Bank Home Loans (“Capital Bank”), through its agent, Mr. Joe Gensoli. 73 She still wants to purchase the Property but now as an investment property—one that she can “rent . . . out and hopefully be able to have . . . as a passive income.” 74 Stombaugh testified that she could pay a down payment for the Property of up to $85,000.75 Stombaugh’s previous commitments for the Property have expired. In 2024, Capital Bank issued Stombaugh a mortgage preapproval letter for the 70 Id. 70. 71 See id. 73. 72 Id. 71. 73 See id. 97–98. 74 Id. 71. 75 See id. 72. - 13 - Property.76 The loan amount requires a 10% down payment and its principal bears an interest rate of 6.375%. 77 Capital Bank issued the 2024 preapproval letter to Stombaugh while it was still unclear whether she would use the Property as her primary residence.78 Since then, however, Stombaugh has chosen to use the Property for investment purposes. Accordingly, Capital Bank issued Stombaugh updated mortgage terms reflecting the Property’s investment purpose. The updated terms require a 20% down payment and would carry an interest rate of 7.5%. 79 Gensoli testified Capital Bank can issue the new mortgage within 21 days of this action’s resolution. 80 II. PROCEDURAL POSTURE On January 24, 2022, Stombaugh filed the original complaint. 81 On February 11, Stombaugh filed a notice of lis pendens in the Kent County Recorder of Deeds office. 82 On February 16, Stombaugh filed the amended 76 PX 44. Gensoli reviewed and prepared the letter but had his processor, Lisa Deal, sign the letter. Trial Tr. 102. Gensoli maintains this is Capital Bank’s standard practice. Id. 77 PX 44 at P-465. 78 See Trial Tr. 107–08. 79 See id. 112. 80 See id. 115. 81 Dkt. 1. 82 Notice of Filing of Lis Pendens Pursuant to 25 Del. C. § 1605, Dkt. 5. - 14 - complaint. 83 The amended complaint asserts defendants’ breach of the Agreement and seeks specific performance of the Agreement. 84 Stombaugh also seeks damages stemming from interest differential between her past and present mortgages. 85 On July 7, defendants filed their amended answer and counterclaim. 86 Defendants’ counterclaim asks the court to declare (1) Stombaugh “failed to make option selections within the required time” and (2) this purported failure “allows, at Defendant Ashburn’s election, to declare the Sales Agreement void, and in addition, allows forfeiture of Plaintiff’s deposits.” 87 On May 29, 2024, defendants filed the “Motion for Mandatory Cancellation of Lis Pendens Pursuant to 25 Del. C. § 1606, or in the alternative, for Settlement within Thirty (30) Days of 16 Douglas Drive, Frederica, Delaware 19946.” 88 As the name suggests, the motion generally requested either cancellation of the lis pendens on the Property or “an order requiring closing on the Property within thirty (30) days of the date of the Order[.]” 89 83 Verified Am. Compl. (“Am. Compl.”), Dkt. 4. 84 Id. ¶ 1. 85 See id., Req. for Relief ¶ 2. 86 Dkt. 8. 87 Id. at 23–24. 88 Dkt. 25. 89 Id., Req. for Relief ¶¶ A–B. - 15 - The parties briefed the motion and the court heard oral argument on July 18. 90 On July 19, the court denied the motion. 91 As for defendants’ requested order for prompt settlement, the court explained such a request “essentially asks the [c]ourt to force a piecemeal resolution without [Stombaugh]’s buy-in.” 92 On January 9, 2025, the court held the first day of trial on the parties’ claims. 93 On March 18, the court held a second day of trial to allow parties to finish examining their witnesses. 94 The parties filed posttrial briefs through September.95 On February 26, 2026, the court heard oral argument and took the matter under advisement. 96 III. ANALYSIS Stombaugh asserts a claim of breach of contract against defendants. She seeks (1) an order of specific performance requiring defendants to comply with the Agreement; (2) specific damages reflecting the interest differential between her past and present mortgages; and (3) an award of attorney fees. 97 Defendants, in turn, seek a declaration that Stombaugh failed to timely select 90 See Dkt. 33. 91 Dkt. 34. 92 Id. 93 Dkt. 63. 94 Id. 95 Dkts. 71–74. 96 Dkt. 79. 97 Pl.’s Opening Br. 58. - 16 - options and, as such, defendants can terminate the Agreement. 98 I begin with defendants’ counterclaim. A. The Counterclaim Defendants argue that Stombaugh breached the Agreement by failing to timely select her options through L&L. 99 Defendants point to the “time is of the essence” language in paragraph 7 of the Agreement, note that Delaware courts routinely enforce such language, and say it is fatal to Stombaugh’s claims here because she did not select her tile within 14 days. 100 Near the end of trial, defendants unveiled a new argument for why Stombaugh allegedly breached the Agreement’s “time is of the essence” clause: Stombaugh failed to maintain a valid mortgage commitment throughout the pendency of the parties’ dispute over the Property. 101 Both arguments fail. 1. The Purported 14-Day Options Deadline Defendants’ argument that Stombaugh breached the Agreement’s “time is of the essence” clause by not selecting her tile within 14 days fails for at least three reasons. 98 See Posttrial Opening Br./Answering Br. of Defs./Countercl. Pls. (“Defs.’ Opening Br.”), Dkt. 72 at 15. 99 See id. 33. 100 See Posttrial Reply Br. of Defs./Countercl. Pls. (“Defs.’ Reply Br.”), Dkt. 74 at 11, 27–33. 101 Trial Tr. 315–17; see also Defs.’ Opening Br. 15, 18–20. - 17 -  First, the argument fails because the 14-day options deadline did not apply to Stombaugh’s tile selection, as McCann, the Ashburn officer who signed the Agreement, testified. 102 Items like color, trim, and tile did not need to be done until the preconstruction meeting. 103 Second, even if Stombaugh needed to select tile within 14 days of signing the Agreement, she did. In fact, she selected tile before the Agreement was signed. 104 The Agreement says only that options (however defined) must be selected within 14 days; it does not say that any options, once selected, may never be changed.105 Defendants drafted the Agreement and the addendums,106 so ambiguities and gaps in their language must be construed against defendants: “If the contractual language at issue is ambiguous and if [one party] did not negotiate for the agreement’s terms, [Delaware courts] apply the contra proferentem principle and construe the ambiguous terms against the drafter.” If “the articulation of contract terms . . . appears to have been entirely within the control of one party . . . that party bears full responsibility for the effect of those terms.” This is because “[a]s the entity in control of 102 Trial Tr. 163–64. 103 Id. 104 PX 21 at P-388 to P-389. Defendants now concede Stombaugh made her initial tile selection by the time the parties signed the Agreement. See Defs.’ Opening Br. 7 (“Petitioner made her initial option[s] selections as to the bathroom at issue on March 3, 2021.”). 105 See Selection Time Limit Addendum at P-342.Structural changes, on the other hand, “will not be made after plans have been submitted for [the] construction permit[.]” Id. 106 See Trial Tr. 91–92, 252–53. - 18 -  the process of articulating the terms of the [agreements], it [is] incumbent on the [drafter] to make their terms clear.” Leo Invs. H.K. Ltd. v. Tomales Bay Cap. Anduril III, L.P., 342 A.3d 1166, 1209 (Del. Ch. 2025) (first quoting Norton v. K-Sea Transp. P’rs L.P., 67 A.3d 354, 360 (Del. 2013); then quoting SI Mgmt. L.P. v. Wininger, 707 A.2d 37, 43 (Del. 1998); and then quoting Juul Labs, Inc. v. Grove, 238 A.3d 904, 911 (Del. Ch. 2020)). Third, there is a heavy amount of inequity in defendants’ position that further counsels against accepting their self-serving interpretation of the Agreement and the addendums. Defendants concede Stombaugh made “initial options selections” on March 3, 2021, 107 but then insist that the only way Stombaugh could comply with the 14-day options deadline was by working with L&L. 108 This is dirty pool. The Agreement and the addendums do not mention L&L. 109 Defendants and their agents said nothing about L&L when the parties signed the Agreement,110 and they did not even remember to connect Stombaugh and L&L until months later. 111 There was no way for Stombaugh to know on March 3, 2021 that defendants believed she had 14 days to meet 107 Defs.’ Opening Br. 7. 108 Id. 15–16. 109 See generally PX 11. 110 See Trial Tr. 91–92. 111 See id. 39–40, 91–93, 167–74. - 19 - with L&L, because the only parties that knew L&L had a role to play— defendants and their agents—stayed silent. 112 Defendants having withheld the information from Stombaugh, it would be inequitable to allow them to profit from that withholding. Fourth, and finally, even if March 17, 2021 was Stombaugh’s deadline and even if she failed to meet it, defendants still lose. “Time is of the essence” clauses simply do not work the way defendants contend. They have approached this case as if violation of such a clause turns the contract into an open-ended option for the non-breaching party, who can continue to perform under the contract as long as it suits them, then declare the contract void and walk away as soon as it does not. But that is wrong. “[T]ime [is] of the essence may be waived by inconsistent conduct subsequent to the time fixed for performance.” Goldstein v. Buiano, 1962 WL 69603, at *1 (Del. Ch. Oct. 31, 1962). “After a contractual time limit has lapsed, a party may not, for months, act as if the contract remains in effect and then suddenly treat the time limit as critical and the contract as void when performance under the contract is not rendered as that party had hoped.” Keyser v. Curtis, 2012 WL 3115453, at *10 (Del. Ch. July 31, 2012). That is precisely what defendants did here. They 112 This assumes defendants actually held this view before they needed a defense to Stombaugh’s breach of contract claim. McCann’s trial testimony suggests otherwise. See id. 163–64. - 20 - have waived the “time is of the essence” clause even if Stombaugh triggered it by failing to make options selections with L&L by March 17, 2021. 113 In short, defendants cannot credibly maintain Stombaugh defaulted by failing to select her options and upgrades through L&L. Stombaugh first selected her tiling in January 2021 and Ferguson confirmed he would include her selections in the Agreement.114 Stombaugh then confirmed those selections with L&L in August, after Ashburn finally connected Stombaugh and L&L. 115 This is all that could reasonably be required of Stombaugh under circumstances where defendants knew they held the cards and did not show their hand. 2. Defendants’ Untimely Mortgage Commitment Argument As noted, on the second day of trial, months after discovery closed116 and the court granted the parties’ pretrial order, 117 defendants unveiled a new 113 Defendant’s reliance on the Agreement’s non-waiver clause does not help them here. See Agreement ¶ 24 (“The start of any activity by us in connection with the Property is not to be deemed a waiver of any of our rights under this Agreement[.]”); Defs.’ Opening Br. 24–25, 32–33; Defs.’ Reply Br. 15–16. “[T]he law is clear that non-waiver clauses are not iron-clad protections that preclude courts from holding [a party] responsible for their post-contracting behavior.” In re Coinmint, LLC, 261 A.3d 867, 899 (Del. Ch. 2021) (quoting Viking Pump, Inc. v. Liberty Mut. Ins. Co., 2007 WL 1207107, at *28 n.116 (Del. Ch. Apr. 2, 2007)); see also Rehoboth Mall L.P. v. NPC Int’l, Inc., 953 A.2d 702, 703 (Del. 2008) (“The landlord argues that the lease’s ‘no waiver’ provision allows the landlord to enforce the tenant’s past defaults at any time. We disagree. The no waiver provision allows the landlord to strictly enforce future defaults notwithstanding its acquiescence in past defaults.”). 114 See PX 21 at P-389. 115 See Trial Tr. 39–42. 116 See Dkt. 45 ¶ 1(c). - 21 - argument for why Stombaugh allegedly breached the Agreement’s “time is of the essence” clause: Stombaugh failed to maintain a valid mortgage commitment throughout the pendency of the parties’ dispute over the Property.118 I will not dwell long on this argument. Defendants raise the issue far too late for me to consider it. They should have raised it in their counterclaim, but did not. 119 They should have raised it during discovery, but did not. 120 They should have identified it in the pretrial order as an issue that remained to be litigated, but did not. 121 They could have questioned Stombaugh about it at 117 Dkt. 59. 118 Trial Tr. 315–17; see also Defs.’ Opening Br. 15, 18–20. 119 See Dkt. 8, Countercl. ¶¶ 1–4 (identifying as the basis for the counterclaim only “Plaintiff[‘s] fail[ure] to make option selections within the required time”). 120 Defendants did not raise the mortgage commitment letter in their responses to Stombaugh’s interrogatories. See PX 7; see also Marshall Fam. Props., LLC v. Fusco, 2026 WL 221459, at *4 (Del. Ch. Jan. 28, 2026) (“The Supreme Court ‘has long recognized the purpose of discovery is to advance issue formulation, to assist in fact revelation and to reduce the element of surprise at trial.’”) (quoting Levy v. Stern, 1996 WL 742818, at *2 (Del. Dec. 20, 1996) (ORDER)). 121 Defendants did not identify the validity of Stombaugh’s mortgage commitment as an issue to be tried in the pretrial order. See Dkt. 59 at 8–10; see also Zhou v. Deng, 2022 WL 1024809, at *2 (Del. Ch. Apr. 6, 2022) (finding waiver when parties failed to raise arguments in their pleadings or in the pretrial order and stating “[b]y that time, the opposing party has already shaped his trial plans, and it is simply too late and unfair to expect him meaningfully to confront the arguments so close to (or after) trial.”) (citations omitted); ABC Woodlands, L.L.C. v. Schreppler, 2012 WL 3711085, at *3 (Del. Ch. Aug. 15, 2012) (finding party waived an argument by not raising it in the pretrial order); New Start Hldgs., LLC v. Zhou, 2024 WL 4039440, at *16 n.250 (Del. Ch. Sept. 4, 2024) (“[T]he pretrial order is meant to be an ‘efficacious’ and ‘salutary’ aid for the Court ‘toward sifting the issues in order that the suit will go to trial only on questions involving honest disputes of fact or law.’”) (citations omitted). - 22 - trial, but did not. 122 Defendants waived this argument. 123 The court will not consider it now. 124 * * * For all of these reasons, I recommend judgment in favor of Stombaugh on defendants’ counterclaim. B. Breach of Contract “To prove a breach of contract, the plaintiffs must demonstrate (1) the existence of a contract, (2) the breach of an obligation imposed by the contract, and (3) resulting damages.” O’Connor v. Beachy Keen Servs., LLC, 2025 WL 801165, at *2 (Del. Ch. Mar. 13, 2025) (citing Kuroda v. SPJS Hldgs., L.L.C., 971 A.2d 872, 883 (Del. Ch. 2009)). Stombaugh has met each element. 1. The Existence of a Contract It is undisputed that the Agreement is a valid contract. In exchange for consideration of $350,411, Ashburn agreed to transfer to Stombaugh the deed 122 See Trial Tr. 74–82, 370. 123 The Agreement’s non-waiver clause does not help defendants here either. See supra note 113. 124 Not only did defendants engage in improper trial-by-ambush, their multi-year, unreasonable, and prejudicial delay in raising Stombaugh’s mortgage commitment as a defense means they are also guilty of laches. See Whittington v. Dragon Gp., LLC, 991 A.2d 1, 7 (Del. 2009) (“Laches is an unreasonable delay by a party, without any specific reference to duration, in the enforcement of a right, and resulting in prejudice to the adverse party.”). The court notes, also, that Stombaugh was told by Ferguson, the Rush Realty agent who served as the official go-between for Stombaugh and defendants, that her March 2021 mortgage commitment letter would remain valid throughout construction, and defendants never asked Stombaugh for an updated mortgage commitment. Trial Tr. 80–81, 366–67. - 23 - to the constructed Property.125 The Agreement obligated Ashburn to substantially complete the Property’s construction, “in any case, on or before two (2) years from the Agreement of Sale Date.” 126 Once substantial completion occurred, Ashburn must select and notify Stombaugh of the “date, time, and place for Settlement.” 127 Moreover, through the Selections Time Limit Addendum, Ashburn agreed to schedule a pre-drywall meeting for Stombaugh to attend. 128 And through the Price Escalation Addendum, Ashburn agreed not to escalate the purchase price after ground broke on the Property.129 2. The Breach Stombaugh argues defendants breached the Agreement by refusing to engage with her after Ashburn’s improper price escalation. 130 Stombaugh maintains defendants’ failure to schedule a pre-drywall meeting before drywall installation is further evidence of defendants’ breach. 131 I conclude Ashburn 125 See Agreement 2 (“SETTLEMENT”). 126 Id. ¶ 13. 127 Id. ¶ 12. 128 Id. at 11. 129 PX 12. 130 See Am. Compl. ¶ 71. 131 See Pl.’s Opening Br. 36. - 24 - breached the Agreement. Sobrook cannot have breached the Agreement because it was not part of it. 132 a. Ashburn Repudiated the Agreement “A repudiation of a contract is an outright refusal by a party to perform a contract or its conditions.” W. Willow Bay Ct., LLC v. Robino-Bay Ct. Plaza, LLC, 2009 WL 458779, at *5 (Del. Ch. Feb. 23, 2009) (quoting PAMI-LEMB I Inc. v. EMB-NHC, L.L.C., 857 A.2d 998, 1014 (Del. Ch. 2004)). “A party may repudiate an obligation through statements when its language, reasonably interpreted, indicates that it will not or cannot perform[.]” Id. (citations omitted). “An attempt to renegotiate terms will not constitute repudiation absent an unqualified refusal to perform unless the non-repudiating party accedes.” Id. (citing HIFN, Inc. v. Intel Corp., 2007 WL 1309376, at *12 (Del. Ch. May 2, 2007)) (emphasis added). The Price Escalation Addendum imposed on Ashburn the plain obligation to not add “additional escalation charges . . . once [Ashburn] ha[s] broken ground on the start of construction.” 133 The record is clear Ashburn 132 See, e.g., Wallace ex rel. Cencom Cable Income P’rs II, L.P. v. Wood, 752 A.2d 1175, 1180 (Del. Ch. 1999) (“It is a general principle of contract law that only a party to a contract may be sued for breach of that contract.”) (citing Crabtree v. Tristar Auto. Gp., Inc., 776 F. Supp. 155, 166 (S.D.N.Y. 1991)); see also Agreement 9 (signatures). Even though Sobrook is not a named party to the Agreement, Mr. Ashburn testified that specific performance of the Agreement would result in Sobrook directly transferring the Property to Stombaugh. See Trial Tr. 337. 133 PX 12. - 25 - knew of this obligation but nevertheless attempted to impose a price escalation after it broke ground on the Property, and thus breached the Agreement.134 Nor is there any tangible, credible evidence Ashburn ever retracted the escalation, just Mr. Ashburn’s self-serving trial testimony. 135 Ashburn repudiated the Agreement when, after its wrongful escalation, it (1) refused to engage with Stombaugh, (2) wrongfully declared her in default, and (3) threatened to retain her deposit if she chose not to terminate the Agreement herself. 136 b. Ashburn’s Other Breaches The Selections Time Limit Addendum imposed on Ashburn the plain obligation to schedule a pre-drywall meeting with Stombaugh. 137 Ashburn never did this. 138 If, as Mr. Ashburn insists, Ashburn has always been ready to perform the Agreement, 139 it failed to be here. Ashburn also failed to settle the Property with Stombaugh within the time the Agreement required. Although it appears conceded that, by 2024, 134 See Trial Tr. 338–39. 135 See id. 307, 339. 136 See PX 16 at P-360 (“Please let me know Ms. Stombaugh’s decision within five business days. Should there be no response within this time period, Ashburn will elect its contractual right to terminate the Sales Agreement and retain Ms. Stombaugh’s deposit(s).”); see also Trial Tr. 74. 137 Agreement 11. 138 See Trial Tr. 73. 139 See id. 310. - 26 - construction of the Property’s exterior was complete, 140 it may not be the case that the Property was substantially completed under the Agreement because, again, Ashburn failed to notify Stombaugh of an impending settlement of the Property.141 In more ways than one, Ashburn breached its obligations under the Agreement. The second element of Stombaugh’s breach claim is therefore established. c. Defendants Fail to Defend the Breaches Defendants defend their breach in two ways. As previously addressed, defendants argued Stombaugh’s own breach entitled them to terminate the Agreement. I have rejected that claim. Defendants’ other argument is that, under paragraph 25 of the Agreement, Ashburn was not bound by Ferguson’s stateme