Charles F. Alexander v. Edwin J. Alexander, Edward L. Alexander, and William F. Alexander

• Court: Court of Chancery of Delaware
• Decided: April 19, 2017
• Docket: CA 12587-MA
• Status: Published

Opinion

COURT OF CHANCERY OF THE STATE OF DELAWARE KIM E. AYVAZIAN CHANCERY COURTHOUSE MASTER IN CHANCERY 34 The Circle GEORGETOWN, DELAWARE 19947 AND LEONARD L. WILLIAMS JUSTICE CENTER 500 NORTH KING STREET, SUITE 11400 WILMINGTON, DELAWARE 19980-3734

April 19, 2017

Aaron C. Baker, Esquire Baird Mandalas Brockstedt, LLC 6 South State Street Dover, DE 19901

Gary R. Dodge, Esquire Curley Dodge & Funk, LLC 250 Beiser Boulevard, Sutie 202 Dover, DE 19904

RE: Charles F. Alexander v. Edwin J. Alexander, Edward L. Alexander, and William F. Alexander C.A. No. 12587-MA

Dear Counsel:

Pending before me is a motion for judgment on the pleadings filed by

Petitioner Charles F. Alexander (“Charles”) in this Verified Petition to Demand

Accounting and Distribution of Revocable Trust.1 For the reasons that follow, I

recommend that it be granted in part and denied in part.

Petitioner is one of four beneficiaries and Co-Trustees of the Revocable

Trust Agreement of Irvan Fletcher Alexander and Helen Marie Alexander (“the

1 I use first names only to avoid repetition or confusion, and intend no disrespect by this practice. Page 1 of 5 Trust Agreement” or “the Trust”) that was settled by Petitioner’s parents (“the

Grantors”). The other beneficiaries and Co-Trustees are Petitioner’s three

brothers, Respondents Edwin J. Alexander (“Edwin”), Edward L. Alexander

(“Edward”), and William F. Alexander (“William”). The Trust Agreement was

executed by the Grantors and Co-Trustees on March 14, 2007.2 Sometime

thereafter, Helen passed away. On April 11, 2012, Irvan died. According to

Charles’s petition, his brothers have failed to keep him informed as to the Trust’s

accounting and activity since early 2012, and have refused him access to materials

that would enable Charles to value the Trust. Petitioner is now seeking an

accounting of all Trust activity from January 1, 2012 to the present, an immediate

distribution of the Trust res, and an award of attorney’s fees and costs.

The record shows that the Verified Petition was filed on July 22, 2016. 3 The

Sheriff’s returns, filed on August 11, 2016, indicate that Edwin, Edward, and

William were personally served at their respective residences in Kent County on

August 3, 2016.4 On August 30th, Charles moved for entry of a default judgment.5

He withdrew his motion, however, after Respondents filed their Answer and their

response to the default judgment motion on September 6, 2016.6 In their Answer,

2 Motion for Judgment on the Pleadings, Ex. A. Docket Item (“DI”) 10. 3 DI 1. 4 DI 3. Motion for Judgment on the Pleadings, Exs. B, C, and D. DI 10. 5 DI 4. 6 DI 5-6, 8. Page 2 of 5 Respondents do not dispute that Charles is entitled to an accounting nor do they

object to a final distribution of the trust assets. However, they allege as an

affirmative defense that Edward and William were not personally served with

copies of the summons and complaint and, therefore, service of process was

defective as to these two Respondents.

Thereafter, on November 28, 2016, Charles moved for judgment on the

pleadings,7 arguing that Respondents admitted or conceded in their Answer that he

is entitled to the relief he requested in the Verified Petition. In this motion, Charles

also argues that Respondents were properly served, citing the Sheriff’s returns as

“‘prima facie proof of proper service.’”8 In response, Respondents argue that

Charles’s motion is premature, and only Edwin was served by the Sheriff’s office,

but not personally since Edwin’s son accepted service of process at his home in his

absence. Respondents argue that Edward and William were never served, and

have attached several affidavits to that effect, including the affidavit of Nicholas

Guittari, Chief Deputy Sheriff for Kent County, who averred that on August 3,

2016, he had delivered copies of the Summons and Complaint to Edwin’s son, who

accepted service in his father’s absence, but that he had not served Edward or

William at their residences on August 3rd or on any other date.

7 Ct.Ch.R. 12(c). 8 Motion for Judgment on the Pleadings, at 5 (quoting Alston v. Dipasquale, 2001 WL 34083824, at 1 (Del. Super. Oct. 19, 2001)). Page 3 of 5 Respondents also oppose the motion for judgment on the pleadings on the

ground that it is unnecessary, dilatory, and wasteful of judicial resources.

Respondents state that: (1) they are in the process of supplying Charles with

complete records of all activity in the Trust bank account as the records become

available; (2) they made a recent offer of $215,000 to purchase Charles’s interest

in the Trust’s real property; and (3) they had agreed to make $5,000 distributions

from the crop income at the end of December 2016. Respondents contend that

they have made good faith attempts to come to a mutually satisfactory resolution

with Charles who, they claim, has chosen instead to escalate the dispute with the

current motion rather than compromise.

According to the Trust Agreement, the Trust was to be distributed in equal

shares to Grantors’ surviving children following the Grantors’ death.9 Five years

have passed since the death of the last surviving Grantor. Five years is more than

enough time to wind up a trust. Based on the record before me, I recommend that

a judgment on the pleadings be approved in part as to Edwin since Edwin has

conceded that he was properly served. Therefore, I recommend that the Court

issue an order requiring Edwin to provide an accounting of the assets of the Trust

since January 1, 2012 and, after the accounting, to distribute the Trust assets in

equal shares to the parties. I also recommend that the Court award Charles’s

9 Motion for Judgment on the Pleadings, Ex. A at Sec. 1(B). Page 4 of 5 reasonable attorneys’ fees be paid from the Trust since his litigation has conferred

a benefit to the Trust by breaking the apparent deadlock among the Co-Trustees

which was impeding the proper administration of the Trust and its timely

termination.10

Finally, if the Court has to decide whether service of process was, in fact,

defective as to Edward and William, this litigation will be prolonged unnecessarily

and will be wasteful of judicial resources. Furthermore, it would be an exercise in

futility since all Charles would have to do is re-serve Edward and William and re-

file his motion for judgment on the pleadings. Therefore, I urge the parties to put

aside their differences and work together to wind up the Trust and distribute the

Trust assets.

To eliminate any further delay, I am waiving the issuance of a draft report. I

refer the parties to Court of Chancery Rule 144 for the process of taking exception

to a Master’s Final Report.

Respectfully,

/s/ Kim E. Ayvazian

Kim E. Ayvazian Master in Chancery

KEA/kekz 10 See 12 Del. C. § 3584. See also IMO Trust for Grandchildren of Gore, 2013 WL 771900, at *3 (Del. Ch. Feb. 27, 2013). Page 5 of 5