Jay Kevin Green v. Lewis Curt Green, Sr.

• Court: Court of Chancery of Delaware
• Decided: May 4, 2023
• Docket: CA No. 2019-0787-SG
• Status: Published

Opinion

COURT OF CHANCERY OF THE SAM GLASSCOCK III STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE VICE CHANCELLOR 34 THE CIRCLE GEORGETOWN, DELAWARE 19947

Date Submitted: April 21, 20231 Date Decided: May 4, 2023

David C. Hutt, Esquire Richard E. Berl, Jr., Esquire R. Eric Hacker, Esquire Hudson, Jones, Jaywork & Fisher, LLC Michelle G. Bounds, Esquire 34382 Carpenter’s Way, Suite 3 Morris James LLP Lewes, Delaware 19958 107 West Market Street P.O. Box 690 Georgetown, Delaware 19947

Re: Green et al. v. Green et al., C.A. No. 2019-0787-SG

Dear Counsel:

Before me are exceptions to the Master’s Final Report issued on November

23, 2022 (the “Report”) in this partition action.2 The litigants are four siblings who

own the Green family farm near Greenwood as tenants in common, having inherited

through their mother. I will not relate the full litigation history; it is sufficient to

state that Jay3 and Rene sought partition while Lewis and Lawrence are the

Respondents. The parties ultimately agreed to a partition in kind;4 the cumbersome

1 This matter was briefed while I was on medical leave. The parties have not requested argument and, upon reviewing the briefing on exceptions on April 21, 2023, I determined that no argument was required. I consider the matter submitted as of that date. 2 Master’s Final Report, Dkt. No. 53 (the “Final Report”). 3 Because many of the litigants share the Green surname, I use first names to avoid confusion and mean no disrespect thereby. 4 Letter from Richard Berl to Master Griffin Regarding Scheduling Hr’g, Dkt. No. 19. and antiquated statutory commission was employed;5 and the Commissioners

returned a recommendation that subdivided the property into four parcels of equal

value, each with frontage on a public road.6 The Petitioners objected to the

Commissioners return, based in part on ex parte communications between the

Commissioners and the Respondents, which Petitioners believe influenced the

Commissioners’ recommendation as to the assignment of each of the lots to a

particular sibling.7

The Master held an evidentiary hearing on Petitioners’ objections to the

Commissioners’ Return.8 In her Report, the Master found that the evidence

demonstrated that the lots were of equal value, and that equity required that clean-

up and demolition expenses be shared by the siblings.9 Accordingly, the Master

accepted the Commissioners’ proposed partition but, based on the parties’ testimony,

found it equitable that the lot assignments be altered.10 At both the evidentiary

hearing and in briefing before the Master, Respondents expressly stated that they

would accept being assigned lots 3 and 4;11 those are the lots they received in the

5 See Revised Order Appointing Commissioners, Dkt. No. 24. 6 Return of Partition Commissioners Received 03-16-22, Dkt. No. 25. 7 Pet’rs’ Notice of Obj. to the Commissioners’ Return, Dkt. No. 31. 8 Tr. of 10-19-2022 Evid. Hr’g (“Evid. Hr’g”), Dkt. No. 52. 9 Final Report at 9-12. 10 Id. 11 Evid. Hr’g at 246:21-247:23, 256:1-17; Resp’ts’ Closing Arg. 4, Dkt. No. 50. 2 Report.12 Nonetheless, the Respondents have taken exceptions to the Report.13 They

now demand lots 1 and 2.14 Equity so requires, per Respondents, because farming

those lots will be more convenient to them, as one of them owns acreage adjacent to

lot 1.

I review exceptions to Master’s reports de novo.15 At the hearing leading to

the Report, as the Master found, the evidence showed that the four lots were equal

in value. Both the Petitioners, in their objections to the Commissioners’ Return, and

the Respondents, in their current exceptions to the Report, have expressed a

preference for receiving lots 1 and 2. Respondents, however, testified at the hearing

that they were willing to accept lots 3 and 4.16 The Master specifically relied on

these statements in reaching her decisions in the Report.17 As the Petitioners pointed

out in briefing on these exceptions, the Respondents are judicially estopped18 from

arguing here that equity requires that they not be assigned lots 3 and 4.19 The

12 Final Report at 11-12. 13 Resp’ts’ Exceptions to Master’s Final Report, Dkt. No. 54. 14 Resp’ts’ Opening Br. in Supp. of Exceptions to the Master’s Final Report 14, Dkt. No. 58. 15 DiGiacobbe v. Sestak, 743 A.2d 180, 184 (Del. 1999). 16 Evid. Hr’g at 246:21-247:23, 256:1-17. 17 Final Report at 11. 18 Judicial estoppel operates where (1) a litigant takes a position that contradicts a position previously taken by that litigant and (2) the Court adopted that previous position in a judicial ruling. Motorola Inc. v. Amkor Tech., Inc., 958 A.2d 852, 859–60 (Del. 2008). 19 Pet’rs’ Answering Br. in Opp. of Resp’ts’ Exceptions to the Master’s Final Report 21-23, Dkt. No. 59. 3 Respondents chose to waive a reply brief, and accordingly have waived any

objection to application of judicial estoppel.20

In any event, having reviewed the hearing testimony and the Master’s findings

of fact, as well as the application of law and equity, I find that Master Griffin got it

exactly right. I come out precisely the same way. The exceptions, to my mind,

border on the frivolous. For the foregoing reasons, the Respondents’ exceptions to

the Report are DENIED. IT IS SO ORDERED.

Since Master Griffin has retired during the exceptions period, I recommend to

the Chancellor that I retain jurisdiction to administer any remaining issues in this

partition action.

Sincerely,

/s/ Sam Glasscock III Vice Chancellor

cc: The Honorable Kathaleen St. J. McCormick All Counsel of Record (by File & Serve Xpress)

20 Letter from Richard Berl to Vice Chancellor Glasscock, Dkt. No. 61; see, e.g., Jung v. El Tinieblo Int’l, Inc., 2022 WL 16557663, at *9-10 (Del. Ch. Oct. 31, 2022) (holding that issues not addressed in briefing are deemed waived). 4