This is аn appeal from a jury award of damages in the Superior Court arising from a failed enterprise for the sale and distribution of Lamborghini automobiles in the United Kingdom. The appellant, defendant-below, contends the Superior Court erred in permitting recovery on the theory of promissory estoppel. The ap-pellee has cross-appealed from rulings disallowing a claim for negligent misrepresentation and refusing an award of prejudgment interest. We find no error in the direct appeal and accordingly affirm the judgment and award of damages. We further conclude that the appellant is entitled to pre-judgment interest and reverse and remand as to that claim.
I.
In 1984, David Jolliffe (“Jolliffe”) and David Lаkeman (“Lakeman”) formed Chaplake Holdings, Ltd. (“Chaplake”) as equal shareholders. 2 Chaplake owned Vehiclise, Ltd. (“Vehiclise”) and Lamborghini London, Ltd. (“Lamborghini London”). In 1990, Lamborghini London transferred all of its assets and liabilities to Portman Lamborghini, Ltd. (“Port-man”), which was also owned by Chap-lake. 3
Vehiclise held an exclusive concession contract, dating back to 1984, with Auto-mobili Feruecio Lamborghini, S.p.A. (“Lamborghini”) to sell ultra-high end Lamborghini sports cars to consumers in the United Kingdom, Ireland and the Channel Islands. Portman operated an automobile dealership with rights to the Vehiclise concession agreement. Between
In 1987, Chrysler International, a wholly owned subsidiary of Chrysler Corporation (collectively, “Chrysler”), purchased all outstanding shares of Lamborghini and articulated plans to escalate production from 250 to roughly 5,000 units within five years (the “Expansion Plan”). The Expansion Plan included the production of a new model called the P140, intended as a high volume alternative to the Lamborghini Countach, and its successor model, the Diablo. Chrysler planned to continue production of the Diablo at a volume of approximately 500 per year with a retail price between $200,000 and $800,000. The vision for the P140 was to reach a broader segment of the populatiоn by initially producing roughly 2,500 cars per year and by attaching a more “modest” retail price tag of approximately $70,000.
Chrysler had absolute control of the Lamborghini Expansion Plan. Chrysler defined the duties of Lamborghini’s president, and it placed two of its top executives on Lamborghini’s board. One of these individuals, Anthony Richards (“Richards”), acknowledged that Chrysler’s then-Chairman, Lee Iacocca (“Iacocca”), had significant and direct input concerning Lamborghini. Indeed, at the time of Chrysler’s acquisition of Lamborghini, Ia-cocca stated that Chrysler purchased the sports car manufacturer with the intention of expanding its production. 4 The other Chrysler executive placed at Lamborghini, Robert Smith (“Smith”), was charged with reporting Lamborghini’s financial information back to Chrysler. Chrysler personnel were placed at Lamborghini and all moves relating to the Expansion Plan required Chrysler’s approval.
In May of 1987, Emile Novaro (“Nova-ro”), the President of Lamborghini, discussed the Expansion Plan with Jolliffe. Novaro was concerned that Portman, which at that point had been handling only about 30 cars per year, would be unable to accommodate the 300 Lamborghinis destined for its exclusive market once the Expansion Plan was implemented. Nevertheless, Novaro assured Jolliffe that Port-man’s exclusive concession deal with Lamborghini would remain intact as long as Portman expanded its dealership capacity to handle the influx of 270 additional cars per year. Jolliffe agreed to meet with his partner, Lakeman, to determine the feasibility of expanding Portman.
Novaro was injured in an automobile accident in July of 1987, and Richards assumed the role of President of Lamborghini until Novaro was able to return. Shortly thereafter, Richards met with Jol-liffe at Lamborghini’s factory and reiterated Novaro’s promise that Portman would retain its hold on the United Kingdom market if it expanded along with Lamborghini.
In the Fall of 1987, Chrysler assigned Carl Levy (“Levy”) as Vice President of Lamborghini. Richards described Levy as President Pro Tem of Lamborghini, and Levy told Lakeman that his jоb was to implement the Expansion Plan. Levy met with Jolliffe, Lakeman, and George Burk-hardt (“Burkhardt”), the head of Credit Suisse’s London office, and Levy confirmed the details of the Expansion Plan and expressed his satisfaction that Port-man was moving forward with its Plan in order to manage the increased volume.
In September 1988, Iacocca spoke to a gathering of Lamborghini dealers and confirmed the Expansion Plan, but extended the time period from five years to six years. Accordingly, Portman and Credit Suisse altered the Portman Plan to compensate for the delay. When Richards introduced Jolliffe to Iacocca, Jolliffe confirmed that Portman, and thus the United Kingdom market, was “on-board” with the Expansion Plan.
Credit Suisse extended Portman an increase in its overdraft facility to pay for the Portman Plan. Lakeman was required to provide a cash guaranty in the amount of £448,568.62 in order to secure the increased overdraft facility. Credit Suisse also requested that Portman hire Howard Mitchinson (“Mitchinson”) as an accountant. Once on board, Mitchinson met with representatives from Lamborghini, including Novaro. They confirmed the details of the Expansion Plan.
In 1989, Chrysler hired Dario Molaschi (“Molaschi”) to act as a representative to European dealers to assist the dealers in preparation for sales of the Lamborghini P140 model. In early 1990, Molaschi visited Portman and confirmed that the Portman Plan was consistent with the Expansion Plan. By this time, Portmаn had acquired the financing necessary for its Plan, hired additional staff, acquired facilities at a site called Brooklands, and built a new distribution center.
Chrysler’s internal documents also reflect its commitment to Portman. The documents demonstrate that the expected introduction of the P140 in 1991 would lead to the development of new dealers in every major European country except the United Kingdom and Ireland where Portman would remain as the exclusive dealer until at least 1993.
In January of 1990, Jolliffe and Lake-man met with Novaro to set allocation for
During a visit by Portman representatives to the Lamborghini plant in the Fall of 1991, Novaro assured the representatives that production for both the Diablo and the P140 was on schedule. Around this time, the Lamborghini factory sent Portman a prototype P140 for use in government crash tests. By August of 1991, Portman had spent £569,321 7 on its Plan. Also in 1991, Jolliffe sold sixty-percent of his interest in Chaplake to Sheik Mohammed Fahkry (“Fahkry”) for £500,000. Jolliffe proceeded to re-invest £462,686.47 of those funds into Chaplake. In turn, Chaplake loaned the money to Portman.
The dеlays in production at Lamborghini eventually eroded Portmaris profitability and success. Between June 1990 and June 1991, Lamborghini sent Portman no right-hand drive Diablos, nor any P140s. Lamborghini shipped four left-hand drive Diablos, but these units were of little use to Portman whose clientele almost exclusively demanded right-hand drive models.
As a result of the delays, Portmaris customers became impatient and demanded refunds on their deposits. Because of its loss of income, however, Portman was unable to repay the deposits. Lamborghini was also unwilling to refund the deposits that Portman had paid to the manufacturer because Chrysler used that money to pay for the Expansion Plan. Additionally, Portman was unable to service its debt to Credit Suisse, which the bank eventually called in March of 1992. At that time, the amount owed totaled £2,105,183.62.
Because Portman was unable to repay its debt, Credit Suisse invoked Lakeman’s guarantee of £448,568.62. When Lamborghini finally shipped the long awaited Diablos to Portman, the dealership was in an irretrievable state and it finally entered receivership in April of 1992.
In 1994, Chaplake, Portman (then in receivership) and Lakeman brought suit against Chrysler, in the Superior Court seeking recovery for damages sustained by each of them for alleged breach of implied contract and fraud. In separate rulings .in 1999, the Superior Court denied Chrysler’s motion for summary judgment on the breach of contract and fraud claims but permitted the Plaintiffs to add claims of negligent misrepresеntation and promissory estoppel.
In June, 2001 the matter proceeded to trial before a jury. Through a special verdict that jury found that Chrysler was hable under the doctrine of promissory estoppel, but not hable for fraud, neghgent misrepresentation or breach of imphed contract. Based on this finding, the jury awarded £569,321.45 to Portman for costs it incurred in implementing the Portman Plan. It also awarded £462,686.47 to Chap-lake in compensation for the amount Chap-
II
In this appeal, Chrysler argues that: (i) the trial court erred in submitting Port-man’s promissory estoppel claim to the jury; (ii) the trial court erred by ruling that Chrysler’s statute of frauds defense was precluded as a matter of law by the doctrine of part performance; (iii) that Portman and Chaplake failed as a matter of law to establish the promissory estoppel claims; (iv) Portman failed to establish proof of agency between those purportedly making the promises and Chrysler; and (v) Portman’s promissory estoppel claims were barred by the statute of limitations.
In its cross-appeal, Portman argues that: (i) the trial court erred in not granting a new trial on Portman’s negligent misrepresentation claim; and (ii) the trial court erred in its failure to award prejudgment interest to Portman. We address the myriad arguments advanced by the parties.
A.
Chrysler argues that the Superior Court erred in submitting Portman’s promissory estoppel claim to the jury because Portman’s primary theory of recovеry was based upon the purported existence of an enforceable contract, an antithetical concept. We review issues of law
de novo. City of Wilmington v. Parcel of Land,
In effect, Chrysler questions the propriety of Plaintiffs’ pleading in the alternative. Superior Court Civil Rule 8(e)(2) provides in the pertinent part:
A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When 2 or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency.
Here, Portman set forth distinct claims based upon contract principles and upon the doctrine of promissory estoppel. Both theories were submitted to the jury. The jury found for Chrysler on the contract claims, and in favor of Portman and Chap-lake on promissory estoppel. This is a logical outcome given that the doctrine of promissory estoppel is properly understood as a consideration substitute in cases where a contract has not been formed.
See Lord v. Souder,
The Delaware Suрerior Court Civil Rules expressly permit pleading in the alternative, and there was sufficient evidence to submit the promissory estoppel claim to the jury. Accordingly, the trial court did not err in submitting alternative theories of recovery to the jury.
B.
Next, Chrysler argues that the statute of frauds should have been applied to Port-man and Chaplake’s promissory estoppel claims. The trial court rejected both a motion for a new trial and a motion for judgment as a matter of law on this issue, concluding that Chrysler had waived the defense. We review for an abuse of dis
The Superior Court rejected Chrysler’s statute of frauds argument with respect to the promissory estoppel claims beсause Chrysler failed to submit a jury instruction thereon and failed to preserve its objection to the trial court’s instructions for the record. This failure to lodge an appropriate objection results in a waiver.
Riggins v. Mauriello,
Chrysler also argues that it referred to promissory estoppel in its proposed statute of frauds instruction for the contract claims. This passing reference to promissory estoppel is of no consequence, however, because Portman and Chaplake pleaded promissory estoppel as an affirmative cause of action. Chrysler wrongly assumes that promissory estoppel in this case was simply a defense to the statute of frauds within the context of the contract claim. Portman and Chaplake pled promissory estoppel as a separate, alternative cause of action. Chrysler faded to preserve the defense of statute of frauds as it related to the promissory estoppel claims, and as a result the defense is waived.
C.
Next, Chrysler contends the Superior Court erred in denying its motion for judgment as a matter of law, arguing that Portman and Chaplake faded to establish a legady sufficient claim for promissory es-toppel. “This Court reviews
de novo
the Superior Court’s decision to deny [Chrysler’s] ... post-trial motion for judgment as a matter of law.”
CitiSteel USA,
Under the doctrine of promissory estoppel, a plaintiff must demonstrate by clear and convincing evidence that:
(i) a promise was made;
(ii) it was the reasonable expectation of the promisor to induce action or forbearance on the part of the promisee;
(in) the promisee reasonably reded on the promisе and took action to his detriment; and
(iv) such promise is binding because injustice can be avoided only by enforcement of the promise.
Lord,
We recently affirmed the holding and rationale of the Court of Chancery in a case raising issues simdar to those presented here.
See King v. Limestone Valley Enterprises,
L.P., et al.,
The Court of Chancery concluded that the plaintiff believed that the Salon would not offer day spa services, a belief not based upon the terms of the Spa’s lease, but rather upon the promises made to her personally by the defendant. The Vice Chancellor applied the Lord test in order to determine whether, under the doctrine of promissory estoppel, the defendant was indeed bound by his self-imposed “non-compete” agreement. Id. at *5, 2002 Del. Lexis at *15-T6.
The court found that the defendant could have reasonably expected King to choose to locate in the shopрing center based upon his assurances to her, and that she did so to her eventual detriment. Id. Finally, the Court of Chancery concluded that injustice would result unless the defendant’s promises to plaintiff were enforced. Id.
The Salon by Dominic analysis finds ready application here. There were a series of promises made by Chrysler and its various representatives to Portman, Chaplake and their representatives. First, the comments of then-chairman Iacocca upon the acquisition of Lamborghini made clear Chrysler’s plans to expand production over a period of five to six years. More importantly, between 1987 and 1991, Novaro, Richards, Molaschi and Levy made similar statements promising that the Lamborghini line would exрand tenfold, and that Portman would retain its exclusivity deal only if it expanded its operational capacity. By making these promises, Chrysler should have expected that Portman and Chaplake would be induced to expand its operations in accordance with the promised expansion of the Lamborghini line of automobiles.
Portman and Chaplake reasonably relied upon the promises made by Chrysler, and took action to their detriment. Over a period of several years, Portman and Chaplake were regularly updated regarding the progress of the Expansion Plan. Portman would not have implemented the Portman Plan in the absence of these promises. The reasonableness of Portman and Chaplake’s reliance is bolstered by the fact that the promises emanated from many of the most senior officers involved with the Expansion Plan.
Lakeman and Jolliffe were sophisticated businessmen in their own right, and in crafting the Portman Plan they employed the services of highly sophisticated advis-ors. Nevertheless, the record establishes that all of the Chrysler/Lamborghini executives with whom Lakeman, Jolliffe, and their advisors came in contact provided the same message: Chrysler is committed to the Expansion Plan, and in order for Port-man to retain its exclusivity in the U.K. market, it must expand its operational capacity accordingly. Therefore, it was not unreasonable for Lakeman and Jolliffe to rely upon the promises made by these executives.
Chrysler also argues that the existing written contracts between the parties governed the relationship, and therefore promissory estoppel is inapplicable. Here, Portman and Chaplake relied on promises from Chrysler executives. Those promises induced them to increase operational ca-
We review
de novo
the trial court’s decision to issue a challenged jury instruction.
Corbitt v. Tatagari,
The
Lord
standard applies to all promissory estoppel claims, not merely those cases dealing with employment matters. In its instructions to the jury, the Superior Court omitted the fourth
Lord
element: that the “promise is binding because injustice can be avoided only by enforcement of the promise.”
Lord,
The prevention of injustice is the “fundamental idea” underlying the doctrine of promissory estoppel.
See Chrysler v. Quimby,
D.
Chrysler also appeals the Superior Court’s denial of a motion for judgment as a matter of law, arguing that Portmаn’s proof of agency was legally insufficient. This Court reviews the Superi- or Court’s denial of the motion for a judgment as a matter of law to determine
In the parent-subsidiary context, it is appropriate to consider the extent of control exercised by the parent over the subsidiary in order to determine the scope of the agency relationship.
J.E. Rhoads & Sons, Inc. v. Ammerall, Inc.,
1988 Del.Super. LEXIS 116, *11-12 (March 30, 1988). “Under the agency theory, the court may attribute the actions of a subsidiary company to its parent where the subsidiary acts on the parent’s behalf or at the parent’s direction.”
C.R. Bard, Inc. v. Guidant Corp.,
In this case, there is no doubt that the Lamborghini executives who made the promises to Portman were acting at the behest of, or at the very least with the tacit approval of, Chrysler. Chrysler’s then-chairman, Iacocca, announced to a trade publication that Lamborghini would expand ten-fold over the years to follow. Iacocca also spoke to Jolliffe directly at the 1988 gathering of dealers and knew that Portman was “on-board” with the Expansion Plan. Richards, one of two high-ranking Chrysler employees appointed to the Lamborghini board, also acknowledged the major influence Iacocca had with respect to Lamborghini, going so far as to cab him “God.”
Due to Navaro’s absence, Chrysler hired Levy to pilot the Expansion Plan at Lamborghini. Levy was affihated with Chrysler when he made representations concerning the Expansion Plan to both Portman and its advisors. Additionally, all the funding for the Expansion Plan flowed directly from Chrysler. Finаlly, although Novaro was President of Lamborghini, and thus not a Chrysler employee, his representations concerning the Expansion Plan were at the direction of Chrysler, since Chrysler executives were the architects of the Expansion Plan. Therefore, an agency relationship existed between Chrysler, its employees, and those at Lamborghini who made promises regarding Portman’s role in the Expansion Plan.
E.
Chrysler also appeals the Superior Court’s post-trial ruling that agreed with the jury’s finding that the statute of limitations did not bar recovery under the doctrine of promissory estoppel. Title 10, Section 8106 of the Delaware Code provides a three-year limitation for an action based on a promise. 10
Del. C.
§ 8106. Portman and Chaplake commenced this action in April of 1994. Chrysler claims that the promises giving rise to the doctrine of promissory estoppel were broken no later than September 1990, when Lamborghini failed to deliver the Diablos required by January 1990 agreement. Port-man argues that the Diablos were merely a small part of the much larger Expansion Plan, and that Portman could not, and did
As previously noted, we review the denial of the motion for a judgment as a matter of law to determine “whether the evidence and all reasonable inferences that can be drawn therefrom, taken in a light most favorable to the non-moving party, raise an issue of material fact for consideration by the jury.”
Mazda Motor Corp.,
The three year statute of limitations provided by Section 8106 did not begin to run until 1992, and thus Port-man’s promissory estoppel claim, which was advanced in 1994, was not time barred. The crux of the promises made by Chrysler to Portman involved a ten-fold expansion of Lamborghini’s yearly production, based principally on the development of the P140, a car designed and priced for greater mass appeal.
The promises concerning the Expansion Plan began in 1987 and continued for many years. In the fall of 1991, Novaro assured representatives from Portman that the production of Diablos and P140s was on schedule. It was not until 1992 when disgruntled customers sought the return of their deposits from Portman, and when Credit Suisse called Portman’s debt obligations that Portman was on notice that the Expansion Plan was an illusion. Those events, which precipitated Port-man’s collapse into receivership, occurred because Lamborghini had not shipped the higher volume of automobiles in accordance with the Expansion Plan. It was not until 1992 that it became clear that there would be no increase in volume, and that the promise of the Expansion Plan would never be realized, and thus it was at that point that the statute of limitations began to run.
Ill
A.
Portman cross-appeals the Superior Court’s denial of its requested instruction on negligent concealment, as well as the court’s decision not to answer a question posed by the jury concerning an element of negligent misrepresentation. We review a jury instruction challenged on appeal to determine “whether the instruction correctly stated the law and enabled the jury to perform its duty.”
Russell v. K-Mart Corp.,
Portman also argues that the trial court’s refusal to answer the jury’s question — “Can false be defined as ‘lack of information in these elements?” — compels the necessity for a new trial. Specifically, Portman requested that the court read a passage from
Norton v. Poplos,
Under Delaware law there is a distinction drawn between fraud or misrepresentation actions brought at law versus those commenced in equity.
Gaffin v. Teledyne, Inc.,
B.
Portman and Chaplake also appeal the Superior Court’s denial of their motion for pre-judgment interest. This claim is also reviewed
de novo. Wilmington Country Club v. Cowee,
Delaware law recognizes the right to collect pre-judgment interest on a debt.
See, e.g., Moskowitz v. Mayor and Council of Wilmington,
The Superior Court, in a post-trial ruling, rejected Portman’s claim for pre-judgment interest because it had not been “specifically requested” and was thus waived. Portman contends that it sought that element of damages generally in the “Certificate of Value” filed with the Complaint but, more specifically, by including in the Pretrial Stipulation as an issue of fact to be litigated the question. “What is the amount of pre-judgment [sic] due and owing to Plaintiffs.” Portman also includеs pre-judgment interest calculations in reports prepared by their expert witnesses presented during hearing and responded to by Chrysler.
In
Delaware Electric Cooperative, Inc. v. Duphily,
In this case, the pretrial stipulation executed by Chrysler, which became an Order of the Court pursuant to Superi- or Court Civil Rule 16, served to amend the pleadings to include Portman and Chaplake’s request for pre-judgment interest. Although the pretrial stipulation’s question — “What is the amount of prejudgment [sic] due and owing the plaintiffs”— appears to omit the word “interest,” this typographical error should not serve to forfeit recovery on a claim which the parties apparently believed was at issue. Under the circumstances, the Superior Court’s ruling that the claim for pre-judgment interest was waived is not supported by the record and is reversed.
IV.
For the foregoing reasons, with respect to all of the issues raised by Chrysler on appeal, we AFFIRM the holding of the Superior Court and the findings of the jury. As to Portman’s cross-appeal, we AFFIRM the trial court’s denial of Port-man’s motion for a new trial on the negligent misrepresentation claim, and we REVERSE and REMAND for further proceedings consistent with this opinion with respect to the request for award of pre-judgment interest.
Pursuant to Supreme Court Rule 18, the time within which a motion for reargument may be filed in this matter is shortened to seven days from the date of this opinion.
Notes
. Chaplake was a United Kingdom company.
.Fоr convenience, the Appellants in this case — Chaplake, Portman, and Lakeman, individually — will be collectively referred to as Portman unless the difference is germane to the discussion.
. As Iacocca told an industry newspaper in May 1987, "[Chrysler] can go to 500 for openers and later on with some expansion go to 1,000. That’s a lot. The market for $100,000 cars gets rather slim. We certainly wouldn't stay at 250 or we wouldn’t have bought it. We’ll expand [Lamborghini]. I don’t know how long that will take.” In that same article, Robert Lutz, a Chrysler Executive Vice President, who was responsible for intema-tional operations stated that "[Chrysler is] better off with a few highly qualified [dealers] who know how to sell and service [Lambor-ghinis] and have access to that type of customer.” Lutz also reported Chrysler’s plans to expand production to 5,000 within 5 years, and reported that "[i]f and when we get to 3,000 a year” then Chrysler might consider expanding its existing dealer network.
. Right hand drive models have the steering wheel on the right hand side of the driver’s compartment and are manufactured as such at the factory, not retrofitted at a later date. No less than sixty countries in the world drive on the left side of the road and require right hand drive models. These countries include not only the United Kingdom, Ireland and the Channel Islands, but also Japan and Australia.
. In fact, as early as 1989, Chrysler began to contemplate an exit strategy from the Expansion Plan, including either ceasing development of the PI40 or selling Lаmborghini outright. Toward that end, Chrysler engaged J.P. Morgan to canvass the "universe” of parties with potential interest in an acquisition of Lamborghini. Those efforts bore no fruit, however, and thus Chrysler opted instead to cease funding for the Expansion Plan.
. The source of this funding was loans from Credit Suisse and Barclay’s Bank.
. After the Spa opened, plaintiff and her landlord executed an addendum to her lease that gave the Spa exclusive rights in the shopping center to certain types of day spa services. The terms in the addendum, however, did not apply to existing tenants, including defendant.
King,
. Chrysler also argues that Chaplake was not a real party in interest because any relief to which Chaplake is entitled should have bеen sought as a creditor within the context of Portman’s receivership. We agree with the trial judge, however, and adopt his analysis on that issue.
. The passage advanced by Portman provides in pertinent part:
A misrepresentation need not be in the form of written or spoken words. Statedsimply, a misrepresentation is merely an "assertion not in accordance with the facts,” Restatement 2d of Contracts, § 159, and such an assertion may be made by conduct as well as words. Id. Comment a. And although a statement or assertion may be facially true, it may constitute an actionable misrepresentation if it causes a false impression as to the true state of affairs, and the actor fails to provide qualifying information to cure the mistaken belief.
Norton,