Joan F. Appleby v. Mark Batty and Cynthia H. Batty

• Court: Court of Chancery of Delaware
• Decided: March 5, 2025
• Docket: C.A. No. 2023-1039-LM
• Status: Published

Opinion

COURT OF CHANCERY OF THE STATE OF DELAWARE LOREN MITCHELL LEONARD L. WILLIAMS JUSTICE CENTER MAGISTRATE IN CHANCERY 500 N. KING STREET, SUITE 11400 WILMINGTON, DELAWARE 19801-3734

March 5, 2025

Josiah R. Wolcott, Esquire William B. Larson, Jr., Esquire Connolly Gallagher LLP Manning Gross + Massenburg LLP 267 E. Main Street 1007 N. Orange Street, Suite 711 Newark, Delaware 19711 Wilmington, DE 19801

RE: Joan F. Appleby v. Mark Batty and Cynthia H. Batty, C.A. No. 2023-1039-LM

Dear Counsel:

Pending before me is the Plaintiff’s motion for summary judgment in her

action requesting for the Court to find the Defendants violated a deed restriction that

prohibits the extension or enlargement of the home, and to enter an order for

injunctive relief. Briefing on the motion concluded on November 25, 2024. A

telephonic oral argument on the motion was held on January 17, 2025. For the

reasons explained below, I find the deed restriction to be unenforceable on its face

and recommend the Plaintiff’s motion for summary judgment be denied and for

judgment to be entered in favor of the Defendants. C.A. No. 2023-1039-LM March 5, 2025 Page 2 of 25

I. FACTUAL BACKGROUND 1

By way of background, Plaintiff, Joan F. Appleby, and her now deceased

husband, Robert Appleby, purchased the property that is the subject of this action,

18 East Third Street, New Castle, Delaware 19720 (hereinafter, the “Property”), on

June 12, 1967.2 The Property is in the New Castle County Historic District and was

built circa 1798. 3 The home as it stands today consists of the original brick structure,

an addition to the original structure that was built by the Appleby’s in 1968 with an

attached screened in porch, and then, the most recent addition, the elevator shaft that

was built by the Batty’s onto the side of the structure in the summer of 2023. 4

A. The Execution of the Deed Restriction and the Sale of the Property

The Declaration of Restrictions (hereinafter “Deed Restriction”) was executed

on January 16, 2015, and was promptly recorded on January 22, 2015.5 The Deed

Restriction states in relevant part, “No extension or enlargement of the existing

structures or erection of any additional permanent structures shall be permitted on

1 Citations to the Docket, and if needed, the exhibits attached thereto are cited in the form of “D.I. __, Ex. #”. Deposition transcripts are cited as “[Last Name] Dep.”. 2 D.I. 21, Ex. 2. 3 Id.; Appleby Dep. 13:21-14:4. 4 D.I. 21, Ex. 1; Appleby Dep. 13:21-14:23. 5 D.I. 20, Ex. E; Appleby Dep. 55:16-20. C.A. No. 2023-1039-LM March 5, 2025 Page 3 of 25

the Property without the prior written approval of the [Applebys], or their heirs,

personal representatives, successors and assigns[.]”6

The Defendants here, Mark Batty and Cynthia H. Batty (collectively, the

“Battys”), purchased the Property from Mr. and Mrs. Appleby on December 18,

2015. 7 On September 13, 2015, before their purchase, the Battys received a seller’s

disclosure, which indicated the existence of the Deed Restriction on the Property.8

On September 20, 2015, the Battys met with the Plaintiff’s real estate agent, Laura

Greeley, with a representative of their own real estate agent, Nancy Morris, after

having prepared and provided a list of questions specifically referencing more

information on the Deed Restriction on the property.9 The Defendants claim the

Appleby’s real estate agent informed them at this meeting that the Deed Restriction

had not yet been recorded. 10 The parties dispute whether the documentation

regarding the Deed Restriction was provided to the Defendants at the time of

closing.11

6 D.I. 20, Ex. E. 7 D.I. 21, Ex. 4. 8 D.I. 21, Ex. 6 at ¶5; D.I. 20, Ex. C. 9 D.I. 21. Ex. 6 at ¶6-8. 10 Id. at ¶8. 11 Id. at ¶11-12; D.I. 24 at 21, n.68. C.A. No. 2023-1039-LM March 5, 2025 Page 4 of 25

B. The Construction of the Elevator Shaft

In July 2021, after owning the property for approximately seven years, Mr.

Batty suffered a stroke, brain hemorrhage, and seizure that required him to take

intensive medication that made it difficult for him to walk and keep his balance.12

Due to Mr. Batty’s mobility issues, and because of the fall risk posed with their

bedroom being on the second floor, the Defendants began to build an elevator shaft

onto the rear section of the property that was made up of the addition built by the

Applebys in 1968.13

As part of the construction, the Battys hired an architectural firm to make a

specific design made to harmonize any renovations with the surrounding New Castle

County Historical District and comply with regulations created to preserve the

historical nature of the area.14 The design for the elevator shaft was approved by the

City of New Castle Historic Area Commission in late 2022, and the City of New

Castle approved the permit for the installation of the elevator shaft on April 4,

2023. 15

12 D.I. 21, Ex. 6 at ¶28-29. 13 Id. at ¶30-31. 14 D.I. 20, Ex. D at NO. 1(A)-(B). 15 D.I. 21, Ex. 6 at ¶33; D.I. 20, Ex. D at NO. 1(B)-(C). C.A. No. 2023-1039-LM March 5, 2025 Page 5 of 25

On April 5, 2023, Mr. Batty suffered another stroke that resulted in

hospitalization and increased mobility issues.16 This event prompted the immediate

start of the elevator construction in the summer of 2023.17

The Plaintiff claims to have first learned of the construction of the elevator

shaft in early July 2023 from a neighbor and first saw the elevator shaft on July 22,

2023. 18 After reviewing the language of the Deed Restriction, Ms. Appleby

concluded that the elevator shaft was in violation of the Deed Restriction because it

extended beyond the original footprint of the home, and because it “took away from

the historical integrity of the original building.”19 Plaintiff then reached out to a city

official to inform him about the Deed Restriction in relation to the elevator shaft.20

On August 7, 2023, near the completion of the construction of the elevator

shaft, the Batty’s were approached by Jeffery A. Bergstrom, Building Official & Fire

Marshal of the City of New Castle, who informed them of the Deed Restriction on

the property and near this time they discovered that Ms. Appleby had been speaking

with many city agencies regarding her objection to the installation of the elevator

16 D.I. 21, Ex. 6 at ¶34. 17 Id. at ¶34-35. 18 Appleby Dep. 111:8-14; D.I. 20 at 8. 19 Appleby Dep. 115:10-22; 64:6-65:18. 20 Id. at 121:2-10. C.A. No. 2023-1039-LM March 5, 2025 Page 6 of 25

shaft.21 This prompted the Defendants to send a cease-and-desist letter to the

Plaintiff on August 23, 2023, asking that she make no further attempts at stopping

the already approved construction.22 The elevator shaft construction was completed

in early October 2023 but currently sits without an installed elevator due to the

Plaintiff filing her complaint in mid-October of 2023.23

C. Procedural Posture

Plaintiff, Joan F. Appleby, filed the complaint in this action on October 16,

2023, requesting that the Court grant a declaratory judgment that Defendants are

subject to the Deed Restriction and violated the Deed Restriction with the

construction of the elevator shaft onto the subject property.24 The Plaintiff requests

that the Court enter relief in the form of a permanent injunction requiring the

Defendants to remove the elevator shaft at their own expense. 25 On November 13,

2023, the Defendants answered Plaintiff’s complaint and filed a counterclaim

seeking a declaration that the Deed Restriction is unenforceable and no longer

21 D.I. 21, Ex. 6 at ¶35; D.I. 20, Ex. D at NO. 2. 22 D.I. 21, Ex. 6 at ¶36. 23 Id. at ¶37. 24 D.I. 1. 25 Id. C.A. No. 2023-1039-LM March 5, 2025 Page 7 of 25

encumber the Property.26 The Defendants’ answer asserted affirmative defenses

including, but not limited to, failure to state a claim, estoppel, waiver, unclean hands,

and laches.27 On December 8, 2023, the Plaintiff moved to dismiss Defendants’

counterclaim pursuant to Court of Chancery Rule 12(b)(6), 28 which the Court

granted on May 8, 2024, ordering that the Defendants’ counterclaim that seeks a

declaration that the Deed Restriction is unenforceable are to be dismissed without

prejudice.29 On September 30, 2024, the Plaintiff moved for summary judgment.30

The Defendants filed the answering brief in opposition to Plaintiff’s motion for

summary judgment on October 28, 2024, 31 and the Plaintiff’s reply brief was filed

on November 15, 2024. 32 A telephonic oral argument was held on January 17, 2025,

after which I took the matter under advisement. 33

26 D.I. 2. 27 Id. 28 D.I. 3. 29 D.I. 15 at 4-5. 30 D.I. 20. 31 D.I. 21. 32 D.I. 24. 33 D.I. 26. C.A. No. 2023-1039-LM March 5, 2025 Page 8 of 25

II. ANALYSIS

A motion for summary judgment will be granted if “there is no genuine issue

as to any material fact and … the moving party is entitled to judgment as a matter of

law.” 34 “In deciding a motion for summary judgment, the facts must be viewed in

the light most favorable to the nonmoving party and the moving party has the burden

of demonstrating that there is no material question of fact.”35 When the moving party

has met this burden, the responsibility then shifts onto, “the non-moving party [to]

‘adduce some evidence of a dispute of material fact.’”36

A. There are no genuine issues of material fact as to the enforceability of the Deed Restriction.

In the circumstance where both parties to the action present “conflicting

evidence such that there is an issue of material fact, summary judgment must be

34 Ct. Ch. R. 56(c). 35 Senior Tour Players 207 Mgmt. Co. LLC v. Golftown 207 Hldg. Co., 853 A.2d 124, 126 (Del. Ch. 2004) (citing Tanzer v. Int’l Gen. Inds., Inc., 402 A.2d 382, 385 (Del. Ch. 1979)). 36 In re El Paso Pipeline P’rs, L.P. Deriv. Litig., 2014 WL 2768782, at *8 (Del. Ch. June 12, 2014) (quoting Metcap Sec. LLC v. Pearl Senior care, Inc., 2009 WL 513756, at *3 (Del. Ch. Feb. 27, 2009), aff’d, 977 A.2d 899 (Del. 2009)). C.A. No. 2023-1039-LM March 5, 2025 Page 9 of 25

denied.”37 A material fact is one that “might affect the outcome of the suit under

governing law.”38

Here, there are no genuine issues of fact that are dispositive to whether the

Deed Restriction is enforceable on its face. Although the parties disagree on whether

the Deed Restriction is legally enforceable, within their briefing, they agree there are

no genuine issues of material fact as to the issue of the enforceability of the Deed

Restriction as written. 39

Defendants contend that there are two genuine issues of material fact that

preclude an entry of summary judgment in Plaintiff’s favor. 40 One is to their defense

of laches, and the second is to their argument that they lacked sufficient notice to

render the restriction enforceable.41 I do not find there to be any issues of material

fact as to the issue of notice, a conclusion I have discussed the reasoning behind

further below.

37 Deloitte LLP v. Flanagan, 2009 WL 5200657, at *3 (Del. Ch. Dec. 29, 2009). 38 Id. (internal quotation marks omitted) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986)). 39 Plaintiff argues that no issues of material fact exist. D.I. 20 at 12 (“The underlying facts are undisputed.”). Defendants argue the Deed Restriction is unenforceable as a matter of law arguing only that there remain issues of material fact as to the issues of notice and laches. D.I. 21 at 29, 32. 40 D. I. 21 at 29. 41 Id. at 29, 32. C.A. No. 2023-1039-LM March 5, 2025 Page 10 of 25

1. The Defendants had sufficient notice to bind them to the Deed Restriction because the Deed Restriction had been recorded and they received actual notice through the seller’s disclosure.

“Actual notice suggests the purchaser is aware of the deed restriction, while

constructive notice suggests there is a properly recorded deed or other instrument

that includes details of the restriction, and which is readily accessible via routine title

search.”42 “Constructive notice cannot relieve a party of the consequences of a

fraudulent representation or concealment of material fact[,]” however a party with

actual notice of the existence of the Deed Restriction and the reasonable means to

obtain more information as to the contents are not able to circumvent that notice

through a showing of fraud or concealment. 43

The Plaintiff asserts that notice, both actual and constructive, are proven on

the non-disputed facts that the Deed Restriction was executed and recorded in

January of 2015 and that the Seller’s Disclosure that was provided to the Defendants

42 New Castle County v. Pike Creek Recreational Servs., LLC, 82 A.3d 731, 746 n.112 (Del. Ch. Dec. 30, 2013) (citing Greylag 4 Maint. Corp. v. Lynch-James, 2004 WL 2694905, at *5 (Del. Ch. Oct. 6, 2004)). 43 Heron Bay Prop. Owners Ass’n, Inc. v. CooterSunrise, LLC, 2013 WL 3871432, at *9 (Del. Ch. June 27, 2013) (holding that although fraudulent representation or concealment of material fact overcomes any finding of constructive notice, it will not assist parties placed on actual notice of a restriction, even when they were unaware of its specific contents). C.A. No. 2023-1039-LM March 5, 2025 Page 11 of 25

in September of 2015 identifies the existence of the Deed Restriction.44 The

Defendants argue that the motion for summary judgment should be denied because

the question of whether they had notice, whether actual or constructive, of the Deed

Restriction at the time of purchase is an issue of material fact. 45 The Battys claim

they were misled by the Plaintiff’s realtor, who had told them that the Deed

Restriction had yet to be executed and although they had been informed of the

existence of the Restriction on the property through the seller’s disclosure, the

conversation had left them with the understanding it had yet to be put into place.46

The Parties also dispute whether the deed restriction was contained in any of the

settlement paperwork provided to the Battys at closing.47

The Defendants have identified issues of fact that would be relevant to the

question of constructive notice, however these details are not determinative to the

Court’s consideration of the issue of actual notice, which is established here by the

parties’ undisputed facts that the Battys received, read, and acknowledged the notice

of the Deed Restriction in the seller’s disclosure. 48 The Deed Restriction had been

44 D.I. 21, Ex. 6 at ¶5; D.I. 20, Ex. E. 45 D.I. 21 at 32. 46 Id. at 3-4; Ex. 6 at ¶5-10. 47 D.I. 21, Ex. 6 at ¶11-12; D.I. 24 at 21 n.68. 48 D.I. 21, Ex. 6 at ¶5. C.A. No. 2023-1039-LM March 5, 2025 Page 12 of 25

recorded and available for the Battys to find through a title search at the time they

had received the seller’s disclosure. 49 Once they were placed on actual notice of the

Deed Restriction through the disclosure and during the time leading up to closing

when they themselves claim they were unsure of the status of execution of the

restriction, the responsibility was placed on them and their agents to determine its

status which was available to the public upon its recording in January 2015.50 The

Battys had actual notice of the existence of the Deed Restriction at the time of sale.

2. The Defendants’ laches argument does not create a material issue of fact.

Defendants argue there are issues of fact related to the laches defense.51

“Laches is an affirmative defense that the plaintiff unreasonably delayed in bringing

suit after learning of an infringement of his or her rights.”52 “[L]aches generally

requires proof of three elements: ‘first, knowledge by the claimant; second,

49 D.I. 21, Ex. 5; D.I. 20, Ex. D. 50 See Heron Bay Prop. owners Ass’n, Inc. v. CooterSunrise, LLC, 2013 WL 3871432, at *9 (Del. Ch. June 27, 2013) (finding that the Defendant had actual notice of a restriction because the restrictions were recorded and referenced in the contract of sale and the deed). 51 D.I. 21 at 29. 52 Levey v. Brownstone Asset Mgmt., LP, 76 A.3d 764, 769 (Del. 2013). C.A. No. 2023-1039-LM March 5, 2025 Page 13 of 25

unreasonable delay in bringing the claim; and third, resulting prejudice to the

defendant.’”53

As to the issue of laches in this case, the parties dispute exactly when the

Plaintiff became aware of the construction of the elevator and dispute the

reasonableness of the time the Plaintiff waited to act to enforce the Restriction.

Plaintiff argues only three months elapsed since she learned of the impending

violation and when she filed suit, while Defendants argue that Plaintiff was placed

on constructive notice on March 10, 2022 when their application to construct the

addition was approved by the Historic Area Commission. 54 The Plaintiff first raised

the potential Deed Restriction violation with a city official.55 Upon learning that

Plaintiff contacted the city official, the Defendants sent her a cease and desists letter

in August of 2023, and Plaintiff filed this lawsuit two months later.56

“When applying the doctrine of laches, ‘[w]hat constitutes unreasonable delay

and prejudice are questions of fact that depend upon the totality of the

53 Whittington v. Dragon Gp., LLC 991 A.2d 1, 8 (Del. 2009) (quotation marks omitted) (quoting Reid v. Spazio, 970 A.2d 176, 182-83 (Del. 2009)). 54 D.I. 21 at 31; D.I. 24 at 16-17. 55 Appleby Dep. 121:2-10. 56 D.I. 21, Ex. 6 at ¶36. C.A. No. 2023-1039-LM March 5, 2025 Page 14 of 25

circumstances.’”57 “An unreasonable delay can range from as long as several years

to as little as one month.”58 “The temporal aspect of the delay is less critical than the

reasons for it.”59 Although the question of what constitutes an unreasonable delay

and prejudice to the defendant are issues of fact, I find them not material here. Given

my finding below that the Deed Restriction is unenforceable as written, the issues of

fact of the Defendants’ laches defense are not material because they are not outcome

determinative and are therefore not material to the ultimate judgment of the case.

B. The Deed Restriction is unenforceable.

1. The Deed Restriction is unenforceable for its unreasonableness.

Restrictive covenants and deed restrictions are enforceable under Delaware

law where the intent of the parties is clear, and the restrictions are reasonable.60

“Restrictive Covenants may be enforced against a purchaser only if he or she has

57 Lebanon County Employees’ Ret. Fund v. Collis, 287 A.3d 1160, 1209 (Del. Ch. 2022) (quoting Hudak v. Procek, 806 A.2d 140, 153 (Del. 2002). 58 Whittington, 991 A.2d at 7-8 (citing Cooch v. Grier, 59 A.2d 282, 287-88 (Del. Ch. 1948) and Stengel v. Rotman, 2001 WL 221512, at *7 (Del. Ch. Feb. 26, 2001)). 59 Id. at 8. 60 Mendenhall Village Single Homes Ass’n v. Harrington, 1993 WL 257377, at *2 (Del. Ch. June 16, 1993). C.A. No. 2023-1039-LM March 5, 2025 Page 15 of 25

notice, either actual or constructive, of their existence.”61 “[A]s a general rule the

party advocating for the land use restriction bears the burden of demonstrating the

restriction is valid and enforceable.”62 Plaintiff, citing to the cases Bagley and Dover

Historical Society, appears to argue that historical preservation restrictions for the

construction of additions and new structures are reasonable.63 Disregarding the fact

that Bagley was decided by a court outside of the State of Delaware, both of these

cases deal with restrictions prohibiting new construction without the approval of

some sort of local historical committee and therefore inherently have baked into

them the implied standard of historical preservation. 64 Here, not only have the

Battys gained the approval of the governing historical association, 65 but the Deed

Restriction as written says nothing of historical preservation. 66

Plaintiff also cited the facts in Tusi, claiming the approved restriction therein

prohibiting construction of a detached garage was comparable to the present

61 New Castle County v. Pike Creek Recreational Servs., LLC, 82 A.3d 731, 746 (Del. Ch. 2013) (quotation marks omitted). 62 Id. 63 D.I. 20 at 15; Dover Hist. Soc. v. City of Dover Plan. Comm’n, 838 A.2d 1103 (Del. 2003); Bagley v. Found. for Pres. of Hist. Georgetown, 647 A.2d 1110 (D.C. 1994). 64 Dover Hist. Soc., 838 A.2d at 1107; Bagley, 647 A.2d at 1111. 65 Appleby Tr. 113:14-114:22. 66 D.I. 20, Ex. E. C.A. No. 2023-1039-LM March 5, 2025 Page 16 of 25

restriction at hand.67 The restriction approved by the Court in Tusi differs from the

restriction here in that the Tusi restriction establishes clear parameters that only

allow the construction of “a private garage for not more than two cars,” 68 whereas

here, the Plaintiff placed a prohibition on all construction without the standardless

approval of the Plaintiff and her progeny. I cannot agree with Plaintiff’s argument

that restrictive covenants that prohibit construction of new structures and additions

without the permission of a third party are generally reasonable because Delaware

law requires a clear and precise permissions mechanism that prevents “arbitrary,

capricious, and therefore unreasonable” application from the approving party.69

2. The Deed Restriction is unenforceable on its face because it lacks a fixed standard of review that would prevent inconsistent and arbitrary application from the party tasked with approval.

Restrictions on land use are historically disfavored at law and limitations

made by private individuals in particular “are construed narrowly in favor of the

67 Tusi v. Mruz, 2002 WL 31499312 (Del. Ch. Oct. 31, 2002). 68 Id. at *3 (holding that the defendant was in violation of the restriction when they built a garage that was for three cars with an attached office). 69 Wild Quail Golf & Country Club Homeowners Ass’n, Inc. v. Babbitt, 2022 WL 211648, at *3 (Del. Ch. Jan. 11, 2022). C.A. No. 2023-1039-LM March 5, 2025 Page 17 of 25

landowner.” 70 Deed restrictions that require prior approval “must not be

impermissibly vague, imprecise or unclear[,]” and “any doubts as to its

reasonableness [must] be resolved in favor of landowners.” 71 The restriction must

contain fixed standards to “constrain subjectivity and promote even-handed

application.” 72 “Covenants restricting use … may [not] be applied if vague or

otherwise permissive of arbitrary enforcement.” 73

Deed restrictions are contracts and will be governed as such under the same

principals of contract law. 74 In pursuit of deciphering the intent of the parties, the

Court must use the plain and ordinary language of the restriction and may only use

extrinsic evidence to deduce the true intent of the parties if that language is deemed

ambiguous such that it is “reasonably or fairly susceptible of different interpretations

70 Wilmington Friends School, Inc. v. Alapocas Maintenance Corp., 2022 WL 2134679, at *1 (Del. Ch. June 14, 2022). 71 Dawejko v. Grunewald, 1988 WL 140225, at *4 (Del. Ch. Dec. 27, 1988); see also Dolan v. Vill. of Clearwater Homeowner’s Ass’n, Inc., 2005 WL 2810724, at *3 (Del. Ch. Oct. 21, 2005). Lawhon v. Winding Ridge Homeowners Ass’n, Inc., 2008 WL 5459246, at *5 (Del. Ch. 72

Dec. 31, 2008). 73 Wilmington Friends School, Inc., 2022 WL at *1. 74 Benner v. Couns. of Narrows Ass’n of Owners, 2014 WL 7269740, at *8 (Del. Ch. Dec. 22, 2014) (citing Goss v. Coffee Run Condo. Counc., 2003 WL 2185388, at *7 (Del. Ch. Apr. 30, 2003)). C.A. No. 2023-1039-LM March 5, 2025 Page 18 of 25

or may have two or more different meanings.” 75 The lack of clear, precise and fixed

standards in the plain language of a deed restriction will “render[] that portion of the

deed restriction as unenforceable, not ambiguous,” meaning extrinsic evidence

would not be admissible for the Court to consider the intended standard the parties

meant to imbed within the deed restriction.76

In the present instance the Deed Restriction language reads, in relevant part,

as follows: “No extension or enlargement of the existing structures or erection of

any permanent structures shall be permitted on the Property without the prior written

approval of the Declarants, or their heirs, personal representatives, successors and

assigns[.]”77 Unlike many cases described above, the Deed Restriction does not

require the approval of a review board or a home owners association, but by an

individual and her heirs seemingly into perpetuity. Nevertheless, this restriction that

requires prior approval for any extensions or enlargement of the existing buildings

or construction of new structures onto the property, whether approved by a

committee or by a private individual, should still be reviewed as an architectural

review covenant.

75 Id. (citing Kaiser Aluminum Corp. v. Matheson, 681 A.2d 392, 395 (Del. 1996). 76 Benner, 2014 WL at *8. 77 D.I. 20, Ex. E. C.A. No. 2023-1039-LM March 5, 2025 Page 19 of 25

The Plaintiff attempts to argue the restriction is clear, reasonable, and

incapable of arbitrary application by pointing to evidence that would state the intent

of the Applebys when creating the Deed Restriction. The Plaintiff points to the

extrinsic facts of the home’s location in the historic district, the Applebys past efforts

to restore and maintain the property in a specific way, and the Plaintiff’s statements

during her deposition of her perception that the elevator shaft lacks symmetry in a

way that would not align with the specific historical style of the building and the

community surrounding it.78 Due to a lack of a written standard of review within the

restriction,79 the Plaintiff suggests that external evidence should be considered for

the Court to determine Ms. Appleby’s intent to interpret a fixed application standard

from the writing of the restriction. However, the lack of a clear and precise standard

within the writing alone is cause for the Court to consider the restriction

unenforceable, not ambiguous and up for interpretation, so the extrinsic evidence the

Plaintiff attempts to use to insert a standard where there is none are inadmissible.80

The Plaintiff also argues that the Deed Restriction is clear in its application

because it specifically restricts the construction of extensions onto the home and the

78 Appleby Tr. 115:15-22; D.I. 20 at 13-14. 79 Id. at 70:18-71:8. 80 Benner, 2014 WL at *8. C.A. No. 2023-1039-LM March 5, 2025 Page 20 of 25

building of additional permanent structures. Plaintiff claims that the language

provides a sufficient standard to avoid arbitrary enforcement.81 I disagree. First, the

description requiring preapproval for any “extension or enlargement of the existing

structures or erection of any additional permanent structures” is overly broad and

imprecise such that it would apply for what is essentially any permanent construction

on the property. 82 Secondly, the description is phrased with the condition of gaining

prior approval, indicating that the broad category of all construction of permanent

structures onto the land is not a guideline for those tasked with granting or denying

approval, but a qualifier for the requirement to seek approval. Finally, the suggestion

that the sole guideline for approval is a determination of whether the construction of

the new permanent structure is outside the property’s original footprint is

contradicted by the plaintiff’s own deposition testimony and supporting briefing

indicating that it was the elevator shaft’s lack of symmetry and historical inaccuracy

that led her to the conclusion that the Defendants violated the Deed Restriction,

suggesting that without those issues she may have approved construction. 83

81 D.I. 20 at 13-16. 82 D.I. 20, Ex. E. 83 D.I. 20 at 14; Appleby Tr. 115:15-22. C.A. No. 2023-1039-LM March 5, 2025 Page 21 of 25

At oral argument, Plaintiff argued that the Court could revise the restriction

in accordance with the Yu case. Disregarding the fact that Yu is currently stayed amid

the exceptions process, the facts therein differ greatly from those before me today.

In Yu, the Court found that while one portion of the Deed Restriction was

unenforceable, another section was enforceable.84 Plaintiff asks that I simply

disregard any portion that is unenforceable, such as the portion that requires “the

prior written approval of the Declarants….” 85 Plaintiff argues that the Deed

Restriction clearly shows that Plaintiff did not want an “extension or enlargement of

the existing structure or an erection of an additional permanent structure on the

premises.” Plaintiff believes the Yu case directs that this Court should simply strike

the portion of the restriction that is unenforceable. However, this case is

distinguishable from Yu because here, the Plaintiff is referring to revising a sentence

to fit the Plaintiff’s argument, while in Yu, the Court looked at two different sections

84 Yu v. Cahill, 2024 WL 4100859, at *6 (Del. Ch. Sep. 6, 2024). 85 D.I. 21, Ex. E. C.A. No. 2023-1039-LM March 5, 2025 Page 22 of 25

of a deed restriction. 86 Moreover, in Yu, the Court indicated the deed restrictions

must be read “as a whole, giving effect to each term and provision.”87

The Deed Restriction contains no standard of enforcement to guide those

engaging in the approval process to ensure uniform and non-arbitrary enforcement

of the restriction, and I decline to revise the language of the Deed Restriction to fit

Plaintiff’s argument that she now wants to remove the approval process. For the

reasons stated herein, the Deed Restriction is unenforceable on its face and must be

deemed invalid.

C. Injunctive relief is not warranted.

The Plaintiff seeks injunctive relief, requiring the Defendants to remove the

elevator shaft at their own cost in compliance with the Deed Restriction. To obtain

a permanent injunction, a plaintiff must show by a preponderance of the evidence:

“(1) actual success on the merits of the claims; (2) that the plaintiff will suffer

irreparable harm if injunctive relief is not granted; and (3) that the harm to the

plaintiff outweighs the harm to the defendant if an injunction is granted.” 88 Although

86 Yu, 2024 WL at *6 (“Section 2’s unenforceability does not negate my separate review of Section 7.”). 87 Id. (Del. Ch. Sep. 6, 2024) (quoting Centene Corp. v. Accellion, Inc., 2022 WL 898206, at *5 (Del. Ch. Mar. 28, 2022)). 88 Benner v. Counsel of Narrows Ass’n of Owners, 2014 WL 7269740, at *11 (Del. Ch. Dec. 22, 2014) (citing Examen, Inc. v. VantagePoint Venture P’rs 1996, 2005 WL C.A. No. 2023-1039-LM March 5, 2025 Page 23 of 25

the Defendants were under sufficient notice to be bound by the Deed Restriction, the

Plaintiff is not entitled to judgment in the form of permanent injunction as a matter

of law because she cannot prove by a preponderance of the evidence actual success

on the merits of the claim that the Deed Restriction is enforceable on its face. To

demonstrate actual success, the Plaintiff needed to establish that the Deed Restriction

is enforceable and was breached by the Defendants. For the reasons previously

explained on why the Deed Restriction is unenforceable, the Plaintiff’s claim for

injunctive relief would fail because she is not able to demonstrate actual success on

the merits.

D. The record has been sufficiently developed for the Court to make a final judgment on the viability of the Deed Restriction on its face.

“When a party moves for summary judgment under Chancery Court Rule 56,

and the court concludes that the moving party is not entitled to summary judgment,

and the state of the record is such that the nonmoving party clearly is entitled to such

relief, the judge may grant final judgment in favor of the nonmoving party. The

1653959, at *2 (Del. Ch. July 7, 2005)); see also Civ. Ass’n of Surrey Park v. Riegel, 2022 WL 1597452, at *9 (Del. Ch. May 19, 2022) (“The burden of proof for these claims and defenses is by a preponderance of the evidence.”). C.A. No. 2023-1039-LM March 5, 2025 Page 24 of 25

form of the pleadings should not place a limitation upon the court’s ability to do

justice.”89

The record, consisting of the Deed Restriction submitted within both parties’

briefing and the non-disputed agreed upon facts, is sufficiently developed for the

Court to enter judgment for the nonmoving party, the Defendants.90 With a finding

that the Deed Restriction is unenforceable, this matter can be resolved at this juncture

without proceeding to trial.

III. CONCLUSION

For the reasons detailed above, I find that the Plaintiff’s motion for summary

judgment must be denied and deem it appropriate to enter judgment in favor of the

Defendants. Although there are no issues of material fact in dispute, the Plaintiffs

are not entitled to judgment as a matter of law. Based on the sufficiently developed

record I find the Deed Restriction to be unenforceable on its face and must enter

judgment in favor of the Defendants.

89 Perik v. Student Resource Ctr., LLC, 2024 WL 181848, at *6 n.50 (Del. Ch. Jan. 17, 2024) (quoting Bank of Del. v. Claymont Fire Co. No. 1, 528 A.2d 1196, 1199 (Del. 1987)). 90 D.I. 20, Ex. E; D.I. 21, Ex. 5. C.A. No. 2023-1039-LM March 5, 2025 Page 25 of 25

This is my final report, and exceptions may be filed under Court of Chancery

Rule 144. 91 Absent timely exceptions, the parties shall file a proposed implementing

order within fourteen days that includes a notification to the Recorder of Deeds about

the Deed Restriction.

Respectfully submitted,

/s/ Loren Mitchell

Magistrate in Chancery

91 See Ct. Ch. R. 144(d)(1) (In “[a]ctions that are not summary or expedited… [a] party taking exceptions must file a notice of exceptions within 11 days of the date of the Final report or Draft Report.”).