Offit Kurman, P.A. v. Lillard

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

OFFIT KURMAN, P.A., )
)
Plaintiff, )
v. )
)
MARK LILLARD, IMC OF ) C.A. No. N25C-03-120 CLS
DELAWARE, LLC, FAIN AUTO )
SALES, LLC; CORDOVA AUTO )
GROUP, LLC, LILLARD LAND )
HOLDING, LLC, and SHIPPUDEN )
TRANSPORT, LLC, )
)
Defendants.

Date Submitted: September 29, 2025
Date Decided: December 11, 2025

Upon Defendant Mark Lillard’s Motion for Sanctions and Motion to Dismiss,
DENIED.

MEMORANDUM OPINION

Thomas Kramer, Esquire of OFFIT KURMAN, P.A., Attorney for Plaintiff.

Mark Lillard, Pro Se Defendant.

SCOTT, J.
This matter stems from the defendant’s failure to pay legal fees to the plaintiff

per a contract. The plaintiff brought this action alleging claims for breach of

contract, promissory estoppel, quantum meruit, and unjust enrichment. The

defendant now moves for sanctions and seeks dismissal for failure to state a claim

upon which relief can be granted. For the reasons stated below, the defendant’s

motion is DENIED.

FACTUAL AND PROCEDURAL BACKGROUND1

I. THE PARTIES

Offit Kurman, P.A. (“Plaintiff”), is a professional association organized in

Maryland and incorporated in Delaware.2

Mark Lillard (“Defendant”) is a resident of Delaware.3

II. FACTUAL AND PROCEDURAL BACKGROUND

The Complaint arises from Plaintiff’s legal representation of Defendant and

entities owned and operated by Defendant: IMC of Delaware, LLC, Fain Auto Sales,

LLC, Cordova Auto Group, LLC, Lillard Land Holding, LLC, and Shippuden

Transport, LLC (collectively, the “Defendant Entities”).4

1
The facts are drawn from the allegations in the Complaint. See generally Complaint, D.I. 1
(“Compl.”).
2
Compl. ¶ 1.
3
Id. ¶ 2.
4
Id. ¶¶ 2–9.
Between December 13, 2023 and December 29, 2023, Defendant and Plaintiff

“entered into a series of Engagement Letters[,]” which “were subject to the Terms

and Conditions of Representation” (collectively, the “Contracts”).5 Under the

Contracts, Plaintiff provided Defendant and the Defendant Entities with legal

services in various matters.6

The Contracts required Defendant to make a payment for the legal services

performed by Plaintiff within 30 days of any invoice issued.7 Plaintiff alleges that

after performing its obligations “in a competent and reasonable manner[,]”8

Defendant failed to render payment as provided by the terms of the Contracts.9

Paragraph 15 of the Complaint claims that Defendant (and the Defendant Entities)

“accepted the benefit of Plaintiff’s Services, and were required to make payment to

Plaintiff for said Services within [30] days of the date of each invoice” under the

Contracts.10 Further, Defendant had 30 days from the date of any invoice to raise

any questions or objections to the fees charged.11

According to the Complaint, Defendant and the Defendant Entities owe

Plaintiff $262,236.14 in outstanding legal fees.12 The Complaint asserts that the fees

5
Compl. ¶ 9, Ex. 1.
6
Id. ¶ 11.
7
Id. ¶ 15.
8
Id. ¶ 14.
9
Id. ¶¶ 10–20.
10
Id. ¶ 15, Ex. 1.
11
Id. ¶ 16.
12
Id. ¶ 18.
charged “were fair and reasonable given . . . the complexity of the matters, the skill

level required, and the time commitment that was required of Plaintiff.”13 Plaintiff

seeks to recover the outstanding legal fees plus interest and attorney’s fees and

costs.14

On March 10, 2025, Plaintiff filed the instant Complaint asserting four claims:

Count I for breach of contract, Count II for promissory estoppel, Count III for

quantum meruit, and Count IV for unjust enrichment.15 The Court granted

Defendant two enlargements of time to respond to the Complaint. Defendant then

filed a motion comprised of both a motion for sanctions and a motion to dismiss all

claims against him on May 20, 2025.16 Plaintiff opposes.17

The Court also notes that the parties have a related case pending in this Court.

There, Defendant is asserting claims for legal malpractice, breach of contract, breach

of fiduciary duty, and negligent supervision against Plaintiff.18 Because of the

common questions of fact in the instant action and the related case, the Court issued

an order on September 15, 2025, asking the parties why the case should not be

13
Compl. ¶ 19.
14
Id. ¶ 20.
15
See generally Compl.
16
See generally Defendant’s Motion to Dismiss and for Sanctions Under Rule 11, D.I. 15
(“MTD”).
17
See generally Plaintiff’s Opposition to Defendant’s Motion to Dismiss and for Sanctions Under
Rule 11, D.I. 16 (“Resp. to MTD).
18
Plaintiff’s Amended Complaint at 22, 34, 44, 52, Lillard v. Kurman, N24C-10-001 DJB (Del.
Super. Oct. 3, 2024).
consolidated under Superior Court Civil Rule 42(a).19 On September 29, 2025,

Plaintiff responded, arguing that consolidation of the cases would not serve the

purposes of Rule 42(a) at this juncture.20 Defendant did not respond. The Court

now issues its decision on the merits of Defendant’s motion to dismiss and motion

for sanctions.

STANDARD OF REVIEW

Upon a motion to dismiss under Superior Court Civil Rule 12(b)(6), the Court

(i) accepts all well-pled factual allegations as true, (ii) accepts even vague allegations

as well-pled if they give the opposing party notice of the claim, (iii) draws all

reasonable inferences in favor of the non-moving party, and (iv) only dismisses a

case where the plaintiff would not be entitled to recover under any reasonably

conceivable set of circumstances.21 The Court does not, however, accept

“conclusory allegations that lack specific supporting factual allegations.” 22 But “it

is appropriate . . . to give the pleader the benefit of all reasonable inferences that can

be drawn from the pleading.”23

19
Lillard v. Kurman, 2025 WL 2653163, at *1 (Del. Super. Sept. 15, 2025).
20
Plaintiff’s Response to the Court’s Order, D.I. 26.
21
ET Aggregator, LLC v. PFJE AssetCo Hldgs. LLC, 2023 WL 8535181, at *6 (Del. Super. Dec.
8, 2023).
22
Id. (quoting Ramunno v. Crawley, 705 A.2d 1029, 1034 (Del. 1998)).
23
TrueBlue Inc. v. Leeds Equity Partners IV, LP, 2015 WL 5968726, at *2 (Del. Super. Sept. 25,
2015) (quotation omitted).
Generally, when considering a Rule 12(b)(6) motion to dismiss, the Court

“may not consider matters outside the complaint”24 unless the documents “are

integral to or incorporated by reference[.]”25

DISCUSSION

Defendant asks the Court to impose sanctions against Plaintiff under Superior

Court Civil Rule 11, arguing that the Complaint violates Rule 11(b).26 Defendant

further moves to dismiss all claims against it, asserting various theories in support

of his argument.27 The Court first addresses Defendant’s motion to dismiss.

I. MOTION TO DISMISS

Defendant seeks dismissal of the Complaint, arguing that there is a lack of

contractual privity and improper joinder of the Defendant Entities; that Plaintiff fails

to state a claim for breach of contract; that Plaintiff is judicially estopped from

asserting a cause of action; and that the Complaint should be dismissed under Rule

12(b)(6) based on a host of affirmative defenses.28

24
ET Aggregator, LLC, 2023 WL 8535181, at *6 (quoting Super. Ct. Civ. R. 12(b)).
25
ET Aggregator, LLC, 2023 WL 8535181, at *6 (quoting In re Santa Fe Pac. Corp. S’Holder
Litig., 669 A.2d 59, 70 (Del. 1995)).
26
MTD at 8.
27
Id. at 17.
28
Id. at 17–32.
A. Defendant may not assert arguments on behalf of the Defendant Entities
as a non-lawyer.
Defendant first argues that Plaintiff fails to state a claim because the

Defendant Entities are not in privity with the Contracts and Plaintiff improperly

joined the Defendant Entities as parties.29 Under Delaware law, a business—i.e.,

“any legally recognized entity”—must be represented by counsel.30 Defendant is

not licensed to practice law and therefore cannot make arguments on behalf of the

Defendant Entities. Additionally, default judgment has been entered against the

Defendant Entities.31 Accordingly, the Court will not consider these arguments as

raised in Defendant’s motion to dismiss.32

B. Plaintiff states a claim for breach of contract.

Next, Defendant claims that the “documentary evidence attached” to his

motion to dismiss shows that the Complaint fails to allege facts sufficient to survive

a Rule 12(b)(6) motion because the “[g]ravamen of [Plaintiff’s] breach of contract

theory rests” on the allegation that Defendant’s “failure to object to an invoice within

30 days constitutes approval of the charges.”33 Defendant proffers that there is no

breach given that Defendant raised objections to the fees charges within the requisite

29
MTD at 17.
30
Transpolymer Indus., Inc. v. Chapel Main Corp., 582 A.2d 936, 1990 WL 168276, at *1 (Del.
Sept. 18, 1990) (TABLE) (internal citations omitted).
31
See D.I. 17–21.
32
See MTD at 17–26.
33
Id. at 26.
time period.34 Plaintiff argues that the Complaint sufficiently alleges a breach of

contract claim.35

Defendant’s argument misconstrues the standard applied by this Court when

ruling on a 12(b)(6) motion. “[T]o survive a motion to dismiss for failure to state a

breach of contract claim, the plaintiff must demonstrate: first, the existence of the

contract, whether express or implied; second, the breach of an obligation imposed

by that contract; and third, the resultant damage to the plaintiff.”36

Principally, although the Court may consider the Contracts as integral to and

incorporated by reference in assessing the sufficiency of the Complaint under Rule

12(b)(6), the same cannot be said of the evidence provided by Defendant in support

of his motion to dismiss. The evidence is considered a matter outside the pleadings,

and at this stage, is better reserved for discovery.

Nonetheless, the Court finds that Plaintiff states a claim for breach of contract

sufficient to survive a motion to dismiss. There is no dispute that the Complaint

alleges the existence of a contract and resultant damages. Defendant’s only

argument is that there was no breach because the evidence shows that the invoices

were disputed within 30 days as required by the Contracts. Under Delaware law, a

34
MTD at 26–27.
35
Resp. to MTD at 9.
36
VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 612 (Del. 2003) (internal citations
omitted).
contract is interpreted as a whole and “courts must read the specific provisions of

the contract in light of the entire contract.”37 For this reason, despite Defendant’s

contentions otherwise, it is reasonably conceivable that Defendant breached the

obligation to render payment to Plaintiff as imposed by the Contracts. When the

Contracts are read in their entirety, they do not state that disputing the invoices

relieves Defendant of his contractual obligations. Thus, the Court rejects

Defendant’s argument.

C. Plaintiff’s claims are not barred by judicial estoppel.
Finally, Defendant argues that Plaintiff’s claims are barred by the doctrine of

judicial estoppel because Plaintiff “cannot simultaneously maintain a defense to

malpractice by denying billing misconduct while prosecuting a fee recovery action

based on the same charges and practices.”38 The Court concludes that Defendant’s

argument lacks merit.

“Judicial estoppel applies when a litigant’s position ‘contradicts another

position that the litigant previously took and that the Court was successfully induced

to adopt in a judicial ruling.’”39

37
Weinberg v. Waystar, Inc., 294 A.3d 1039, 1044 (Del. 2023) (quoting Chicago Bridge & Iron
Co. N.V. v. Westinghouse Electric Co. LLC, 166 A.3d 912, 913–14 (Del. 2017)) (internal quotation
marks omitted).
38
MTD at 30.
39
Motors Liquidation Co. DIP Lenders Trust v. Allstate Insurance Company, 191 A.3d 1109, 2018
WL 3360976, at *4 (Del. July 10, 2018) (TABLE) (quoting Motorola Inc. v. Amkor Tech, Inc.,
958 A.2d 852, 859–60 (Del. 2008)).
Here, Plaintiff’s Complaint does not contradict any position taken in the

related case that is pending in this Court. Plaintiff can defend billing misconduct in

one action and file to recover unpaid legal fees in a separate action—these are not

inconsistent positions. Moreover, Plaintiff has not successfully induced this Court

to adopt any judicial ruling based on the alleged billing misconduct in the related

action. Therefore, Defendant’s argument that Plaintiff’s cause of action is judicially

estopped is unpersuasive.

D. The remainder of Defendant’s arguments are not suitable to address on
a motion to dismiss.
The remainder of Defendant’s arguments will not be considered at this stage

of litigation. Defendant argues that the Complaint should be dismissed because there

was a lack of mutual assent, “no personal guarantee,” a material misrepresentation,

violation of the doctrine of unclean hands, and abuse of process.40 The Court agrees

with Plaintiff that these are affirmative defenses unsuited for the pleading stage.

Because “the record is undeveloped as to an answer” the Court cannot properly

consider the merits of Defendant’s arguments and will not do so now.41

II. MOTION FOR SANCTIONS

Defendant claims that the Court should impose sanctions on Plaintiff for

asserting false allegations in Paragraphs 14, 15, and 19 in the Complaint.42 Plaintiff

40
MTD at 25, 27, 29, 30.
41
US Dominion v. Newsmax Media, Inc., 2022 WL 2208580, at *28 (Del. Super. June 16, 2022).
42
MTD at 8–17.
argues that Defendant’s argument lacks merit, procedurally and substantively.43

According to Plaintiff, Defendant fails to meet Rule 11’s procedural requirements

because there was no notice or 21-day safe harbor period provided to Plaintiff, and

Defendant “commingled” the Rule 11 motion with the motion to dismiss.44 In

addition, Plaintiff posits that Plaintiff’s “simple knowledge of Mr. Lillard’s dispute

of his bill” is not sanctionable under Delaware law.45

The Court agrees with Plaintiff. A Court may impose sanctions if a party

violates Rule 11(b). Rule 11(b) provides that,

By representing to the Court . . . a pleading, written motion, or other
paper, an attorney or unrepresented party is certifying to the best of the
person’s knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances,

(1) it is not being presented for any improper purpose, such as to harass
or to cause unnecessary delay or needless increase in the cost of
litigation;

(2) the claims, defenses, and other legal contentions therein are
warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the
establishment of new law;

(3) the allegations and other factual contentions have evidentiary
support or, if specifically so identified, are likely to have evidentiary
support after a reasonable opportunity for further investigation or
discovery; and

43
Resp. to MTD at 4–9.
44
Id. at 4–5.
45
Id. at 6–9.
(4) the denials of factual contentions are warranted on the evidence. Or
if specifically so identified, are reasonably based on a lack of
information or belief.
If the Court finds that there has been a Rule 11(b) violation, the Court may impose

sanctions provided certain procedural requirements are met by the moving party.46

Rule 11(c) requires that notice and a reasonable opportunity to respond is

provided to the non-moving party before seeking Court intervention. To comply

with the procedural requirements under Rule 11(c), the moving party must first move

for sanctions “separately from other motions or requests” and serve the opposing

party as provided in Rule 5.47 A Rule 11 motion “shall not be filed with or presented

to the Court unless, within 21 says after service of the motion . . ., the challenged

paper, claim, defense, contention, allegation, or denial is not withdrawn or

appropriately corrected.”48

Defendant’s motion for sanctions does not meet any of the procedural

requirements under Rule 11. As Plaintiff points out, Defendant “commingled his

Rule 11 motion with his [m]otion to [d]ismiss.”49 Additionally, Defendant did not

provide Plaintiff with notice or an opportunity to respond within the 21-day safe

harbor period before filing his motion with the Court. While the Court recognizes

that pro se litigants are not familiar with the law and court procedures, “[t]here is no

46
Super. Ct. Civ. R. 11(c).
47
Id. 11(c)(1)(A).
48
Id.
49
Resp. to MTD at 4.
different set of rules for pro se plaintiffs, and the trial court should not sacrifice the

orderly and efficient administration of justice to accommodate an unrepresented

plaintiff.”50 Therefore, Defendant’s procedural default, on its own, is sufficient to

dismiss the motion for sanctions. But the Court will also address Defendant’s motion

on the merits.

The Court concludes that imposing Rule 11 sanctions on this record is

inappropriate. In Anguilla RE, LLC v. Lubert-Adler Real Estate Fund, IV, L.P., this

Court cautioned that Delaware courts “rarely impose sanctions” as “[a]llegations of

violations of Rule 11’s ethical and professional obligations are extremely serious.”51

Consequently, “[s]anctions should be reserved for those instances where the Court

is reasonably confident that an attorney does not have an objective good faith belief

in the legitimacy of a claim or defense.”52

Defendant’s arguments concerning Plaintiff’s purported sanctionable conduct

are unpersuasive under the standard and purpose of Rule 11. As stated above, the

Complaint asserts a plausible and legitimate debt collection claim. Nothing on this

record suggests that Plaintiff’s allegations in Paragraphs 14, 15, and 19 of the

50
Draper v. Med. Ctr. of Delaware, 767 A.2d 796, 799 (Del. 2001).
51
2012 WL 5351229, at *7, *8 (Del. Super. Oct. 16 2012) (citing Sternberg v. Nanticoke Mem’l
Hosp., 2009 WL 2219287, at *1 (Del. Super. June 3, 2009); Wilson v. B&R. Transporters, Inc.,
1994 WL 381001, at *2 (Del. Super. June 10, 1994)).
52
Id. at *7 (quoting Smith v. Donald L. Mattia, Inc., 2012 WL 252271, at *5 (Del Ch. Jan. 13,
2012)).
Complaint amounts to egregious and abusive conduct.53 Even if Defendant raised

objections to invoices within 30 days, the Plaintiff’s knowledge of said objections is

not enough to warrant sanctions—especially given the stage of litigation. The Court

also cannot find that it is sanctionable for Plaintiff to allege that the legal services

and fees provided were competent and reasonable on the grounds that Defendant is

asserting the opposite in a separate action. The pleading stage is meant to give the

opposing party notice of the claims so that there is an opportunity to prepare a

defense against those claims. Defendant will have the opportunity to answer the

Complaint and assert the defenses raised here, but “the threat of asserting Rule 11

claims should never be used as a litigation strategy.”54

To conclude, the Court will not impose sanctions because Plaintiff formed a

Complaint that, as a whole, is likely to have evidentiary support after a reasonable

opportunity for further investigation or discovery and the record does not indicate

that Paragraphs 14, 15, and 19 “adversely affect the integrity of the proceeding.”55

The Complaint is otherwise not being presented for an improper purpose and is

warranted by existing law. Hence, the Court, in its discretion, concludes that

sanctions are not warranted.

53
Anguilla RE, LLC, 2012 WL 5351229, at *8.
54
Id. at *8.
55
Crumplar v. Superior Court ex rel. New Castle County, 56 A.3d 1000, 1010 (Del. 2012).
CONCLUSION

For the foregoing reasons, Defendant Mark Lillard’s Motion to Dismiss and

Motion for Sanctions is DENIED.

IT IS SO ORDERED.

/s/ Calvin Scott
Judge Calvin L. Scott, Jr.