Diane Presley v. Rory Talamini

• Court: Court of Chancery of Delaware
• Decided: August 20, 2025
• Docket: C.A. No. 2025-0555-SEM
• Status: Published

Opinion

COURT OF CHANCERY OF THE STATE OF DELAWARE SELENA E. MOLINA LEONARD L. WILLIAMS JUSTICE CENTER SENIOR MAGISTRATE IN CHANCERY 500 NORTH KING STREET, SUITE 11400 WILMINGTON, DE 19801-3734

August 20, 2025

Dean A. Campbell, Esquire Kristen S. Swift, Esquire Law Office of Dean A. Campbell, PA Thomas Wallace, Esquire 703 Chestnut Street Kaufman Dolowich LLP Milton, DE 19968 222 Delaware Ave., Suite 720 Wilmington, DE 19801

RE: Diane Pressley, Ida Terry and Kenneth Phillips v. Rory Talamini, Dan Mawn and W. Ventures, Inc., d/b/a REMAX Assoc., C.A. No. 2025-0555-SEM

Dear Counsel:

This expedited action began on May 19, 2025 as a petition to enforce the

purported election of Diane Pressley, Ida Terry, and Kenneth Phillips (the

“Petitioners”) to the board of Riverside Homeowners Association, Inc. (the

“Association”). That election purportedly occurred on or about February 20, 2025,

and the Petitioners seek court enforcement under 8 Del. C. § 225.

By minute order on June 6, 2025, I expedited these proceedings, and we have

locked in a September 12, 2025 trial date. Pending before me are two pleading-stage

motions brought by Rory Talamini, Dan Mawn, and W. Ventures, Inc. d/b/a RE-

Max Associates (the “Respondents”). They are both hereby DENIED. This matter

will be tried, on the merits, as scheduled. C.A. No. 2025-0555-SEM August 20, 2025 Page 2

I. The motion to dismiss is denied.

Rory Talamini and Dan Mawn (the “Individual Respondents”) ask that the

claims against them be dismissed under Court of Chancery Rule 12(b)(6) “because

the [Petitioners] plead[] no facts which could implicate personal liability for either.”

They also argue that Mr. Mawn was acting in his employment capacity at all relevant

times, and that he is shielded from personal liability because he has no contractual

relationship with the Petitioners, and that any potential tort claims against him are

barred by the doctrines of vicarious liability and respondeat superior. As to Ms.

Talamini, the Individual Respondents contend she was acting as a board member

and cannot be subject to personal liability.

Under Court of Chancery Rule 12(b)(6) “the court (i) accepts as true all well-

pleaded factual allegations in the complaint, (ii) credits vague allegations if they give

the opposing party notice of the claim, and (iii) draws all reasonable inferences in

favor of the plaintiff.”1 Dismissal is not appropriate “unless the plaintiff would not

be entitled to recover under any reasonably conceivable set of circumstances

susceptible of proof.”2

1 Delawareans for Educ. Opportunity v. Carney, 2018 WL 4849935, at *9 (Del. Ch. Oct. 5, 2018). 2 Id. (citation modified). C.A. No. 2025-0555-SEM August 20, 2025 Page 3

The Individual Respondents have failed to demonstrate a basis on which they

should be dismissed. The sole claim for relief in this case arises under 8 Del. C. §

225. Under Section 225(a), “the Court of Chancery may hear and determine the

validity of any election, appointment, removal or resignation of any director or

officer of any corporation[.]”3 As most recently recognized by Vice Chancellor

Cook, “[a] Section 225 action is a form of in rem proceeding where the defendants

are before the court not individually, but rather, as respondents being invited to

litigate their claims to the res . . . or forever be barred from doing so.”4 That is what

we have here—a dispute regarding whether the Petitioners or the Individual

Respondents are the true stewards of the Association. The Petitioners rightly brought

all interested parties before me, so that they may be heard as I determine the validity

of the purported election.5 The motion to dismiss the Individual Respondents is,

therefore, denied.

3 8 Del. C. § 225(a). 4 Nazarian v. Sassouni, 2025 WL 1913182, at *5 (Del. Ch. July 11, 2025) (citation modified). 5 The Petitioners included in their petition a second count seeking recovery of their fees and costs from the Respondents or the Association. This is not a claim for relief, but rather an articulation of some of the recovery sought. As explained in VTB Bank v. Navitron Projects Corp., 2014 WL 1691250, at *6 (Del. Ch. Apr. 28, 2014), “[t]his Court has recognized that a party may, on rare occasions, mistakenly plead a remedy as an enumerated cause of action. In these situations, this Court has tended to permit the remedial claims to remain in the complaint, but it has generally excluded them from its analysis at the motion to dismiss stage. In effect, this Court treats remedial claims not as independent causes of action but instead as having been included in the prayer for relief.” (citation C.A. No. 2025-0555-SEM August 20, 2025 Page 4

II. The motion to strike is denied.

The Respondents have also moved to strike Paragraph 13 in, and Exhibit B to,

the petition, and all references therein, under Court of Chancery Rule 12(f). They

argue these portions are scandalous and impertinent because they reference an

“email communication [that] was fabricated by a third party[.]”6 To prove as much,

the Respondents provided an affidavit from Mr. Mawn disputing the authenticity of

the email communications. The Respondents also argue that because the

Association’s bylaws require a plurality of votes to elect board members, the

suggestion of a majority requirement in those sections is incorrect. Even if these

arguments win, they fail to justify striking any portion of, or attachments to, the

petition.

Under Court of Chancery Rule 12(f), “[a] party may move to strike from a

pleading any insufficient defense or any material that is redundant, scandalous,

immaterial, or not pertinent. The party must move either before responding to the

pleading or, if a response is not allowed, within 20 days after being served with the

pleading.” To quote from Vice Chancellor Glasscock: “Motions to strike are granted

modified). I do so here and treat the action before me as a straightforward Section 225. To the extent the Petitioners attempted to plead additional causes of action, I agree with the Respondents that such purported add-ons are not well-pled, and I will not be inclined to expand the scope of this summary, expedited proceeding beyond the well-pled claim. 6 D.I. 26 ¶ 1. C.A. No. 2025-0555-SEM August 20, 2025 Page 5

sparingly and only when clearly warranted with all doubt being resolved in the

nonmoving party’s favor. When deciding whether to grant such a motion, the Court

considers: (1) whether the challenged averments are relevant to an issue in the case

and (2) whether they are unduly prejudicial.”7

Here, the Respondents ask me to accept their affidavit over the averments and

attachments to the petition. That would be improper at the pleading stage, on a

motion to strike. Further, their quibble about the votes needed for elections goes to

the merits of the sole issue before me. These issues will be tried on their merits at

which time I will hear all relevant evidence and rule on a fully developed record.

The request to strike and preclude further inquiry into the contested allegations and

attachments is denied.8

7 Buttonwood Tree Value P’rs, L.P. v. R. L. Polk & Co., 2023 WL 9053173, at *12 (Del. Ch. Dec. 29, 2023) (citation modified). 8 Although I deny the motion on its merits, I note it was also untimely; it was not filed before the Respondents responded to the petition, as required. The Respondents’ request for fee shifting can be renewed if they prevail on the merits and, for example, demonstrate that the averments and attachments were manufactured or otherwise support a finding of bad faith litigation sufficient to shift fees. C.A. No. 2025-0555-SEM August 20, 2025 Page 6

* * *

This magistrate’s report resolves all pending motions, and this matter will be

tried on September 12, 2025. Exceptions under Court of Chancery Rule 144 are

stayed until my final ruling on the merits.

Respectfully, /s/ Selena E. Molina Senior Magistrate in Chancery