Joan N. Narvesen v. John Anthony Palmer

• Court: Court of Chancery of Delaware
• Decided: March 18, 2025
• Docket: C.A. No. 2022-0531-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

Date Submitted: January 31, 2025 Date Decided: March 18, 2025

Donald L. Gouge, Jr., Esquire William J. Rhodunda, Jr., Esquire Donald L. Gouge, Jr., LLC Rhodunda, Williams and 800 N. King Street, Suite 303 Kondraschow Wilmington, DE 19801 1521 Concord Pike, Suite 205 Wilmington, DE 19803

RE: Joan N. Narvesen, et al. v. John Anthony Palmer, et al., C.A. No. 2022-0531-LM

Dear Counsel:

This letter resolves the Defendants’ motion for summary judgment. For

reasons that follow, I find that there remains issues of material fact that require the

motion for summary judgment to be denied.

By way of background, there has been a dispute over the shared driveway

sitting at the border of the parties’ properties for well over 15 years. Even after

entering into a settlement agreement in 2009, that should have been the catalyst that

ended the dispute over the driveway, this new case contains familiar conflicts in C.A. No. 2022-0531-LM March 18, 2025 Page 2 of 12

which the parties now allege breach of settlement agreement, trespass, intrusion

upon seclusion, and intentional infliction of emotional distress.1

The parties live in Tip Top Farms, a subdivision in Newark, Delaware.2

Plaintiffs, Edwin and Joan Narvesen, reside at 1102 Virginia Avenue (hereinafter,

“Plaintiffs’ Property”) and Defendants, John Anthony Palmer and Jennifer M.

Barker reside at 23 Virginia Place (hereinafter, “Defendants’ Property”). 3 Plaintiffs’

Property and Defendants’ Property are next to one another separated by a road, that

is the primary subject of dispute in this action, identified as and referred to herein as

“Virginia Place.” 4

In 2008, the Defendants and Genevieve Narvesen, the previous owner of

Plaintiffs Property, had a dispute over Virginia Place that came before then Master

Kim E. Ayvazyan. 5 The parties in that action underwent mediation and eventually

entered into a settlement agreement that was filed with the Court on June 12, 2009

1 Docket Item (“D.I.”) 1; D.I. 6. 2 D.I. 33 at ¶1; D.I. 37 at ¶1. 3 D.I. 33 at ¶1-3; D.I. 37 at ¶1. 4 D.I. 1, Ex A at ¶9; D.I. 33, Ex. A. 5 The complaint in the related action, identified as John Anthony Palmer and Jennifer Barker v. Genevieve Narvesen, C.A. No. 3641-MA, was filed by the Defendants to the present case on March 21, 2008, against the predecessor in interest to Plaintiffs’ Property, in which they seek equitable relief to enforce the easement and declaratory judgment on the rights of the parties regarding the easement. C.A. No. 2022-0531-LM March 18, 2025 Page 3 of 12

(hereinafter, the “Settlement Agreement”). 6 The Settlement Agreement, which states

it runs with the land, specifies that Mr. Palmer and Ms. Barker have a right of access

to their property over Virginia Place and specifies that the Plaintiffs have an

obligation to trim the vegetation along Virginia Place to a height of 15 feet twice a

year in May and November.7

Today, the parties to this action continue to dispute the use of Virginia Place

and Plaintiffs claim that Defendants are in breach of the Settlement Agreement. The

Defendants have trimmed the vegetation along Virginia Place, 8 and the Plaintiffs

claim this constitutes trespass and breach of the Settlement Agreement because the

Defendants were not granted the authority to trim the vegetation on Plaintiffs’

Property.9 The Plaintiffs complaint also alleges that the Defendants have blown

debris onto their property, removed a portion of the paved driveway making up

Virginia Place and installed a concrete drain, installed a surveillance camera that is

aimed at the Plaintiffs’ Property, and called the police informing them that the

Plaintiffs have trespassed on their property. 10 The Defendants at some point posted

6 C.A. No. 3641, D.I. 19. This settlement order was also filed as Exhibit A to the Plaintiffs’ complaint. D.I 1, Ex. A. 7 D.I. 1, Ex. A at ¶1-3. 8 D.I. 6 at ¶26. 9 D.I. 1 at ¶25, 42. 10 D.I. 1 at ¶27-33. C.A. No. 2022-0531-LM March 18, 2025 Page 4 of 12

a sign briefly on the fence of their property making reference to the Settlement

Agreement. 11 The Defendants have also posted a sign that announces the area is

under 24 hour surveillance.12

The Parties dispute the issue of who is the true owner of Virginia Place. The

Plaintiffs argue they own the road while the Defendants have an easement for the

use of the road for access to their own property. 13 The Defendants argue that

Virginia Place is a public right-of-way owned by the State of Delaware (hereinafter,

the “State”) and maintained by Delaware Department of Transportation (hereinafter,

“DelDOT”).14 The Defendants argue that according to the 1961 Declaration and

Covenants, the property owners of Tip Top Farms are the beneficiaries of all

“[e]asements and right of ways for the purpose of ingress, egress, regress and giving

access to the land covered by the deed….” 15 They further argue that this provision

proves Virginia Place could never have been transferred to the private owners, the

Plaintiffs’ predecessors in interest, without the permission of the other 30 owners in

11 D.I. 1, Ex. E; D.I. 6 at ¶38. 12 D.I. 1, Ex. D; D.I. 6 at ¶39. 13 D.I. 37 at ¶15-19. 14 D.I. 33 at ¶8-16. 15 D.I. 33. Ex. B at 2. C.A. No. 2022-0531-LM March 18, 2025 Page 5 of 12

the community. 16 Defendants cite to a deed from 1998 that transfers both Virginia

Avenue and Virginia Place to “the public and to any State, County, or other local

government authority having jurisdiction over the subject matter.” 17 The Plaintiffs

cite to a 2001 transfer to the Plaintiffs’ predecessor in interest, Genevieve Narvesen,

which includes the transfer of Virginia Place, and also cite to New Castle County

parcel records that they claim indicate that Virginia Place is privately owned and not

publicly owned.18

On June 21, 2022, the Plaintiffs filed a complaint alleging trespass, invasion

of privacy and intrusion upon seclusion, breach of settlement agreement, and

intentional infliction of emotional distress. 19 The Defendants filed their answer with

affirmative defenses and counterclaims including but not limited to, breach of

settlement agreement and intentional infliction of emotional distress on August 1,

2022. 20 Plaintiffs filed their answer to Defendants’ counterclaims on August 17,

16 D.I. 33 at ¶23; D.I. 33, Ex. B. 17 D.I. 33, Ex. F. 18 D.I. 33, Ex. G; D.I. 37, Ex. A. 19 D.I. 1. 20 D.I. 6. C.A. No. 2022-0531-LM March 18, 2025 Page 6 of 12

2022. 21 A scheduling order stipulated to by the parties, identified December 31, 2025

as the discovery cutoff. 22

On January 3, 2025, Defendants filed the motion for summary judgment

presently before me. 23 The Plaintiffs’ response to Defendants’ motion for summary

judgment was filed on January 31, 2025.24 On February 28, 2025, Plaintiffs filed a

letter along with supplemental information from the Delaware Department of

Transportation that Plaintiffs received after briefing for the motion for summary

judgment was completed. 25 The Court issued a minute order on March 3, 2025,

informing the parties that the Defendants may file a response to the Plaintiffs’

supplemental documentation no later than March 10, 2025. 26 The Defendants filed

a letter in response on March 10, 2025 arguing primarily that the supplemental

evidence filed should not be considered by the Court because it was filed well past

the discovery cutoff agreed to by the parties in their stipulated scheduling order.27 A

two-day Trial is presently scheduled in this matter for April 1, 2025 and April 2,

21 D.I. 7. 22 D.I. 22 at ¶1. 23 D.I. 33. Defendants attached exhibits to this motion labeled A-K. 24 D.I. 37. Plaintiffs also attached exhibits to their response labeled A and B. 25 D.I. 42. 26 D.I. 43. 27 D.I. 46. C.A. No. 2022-0531-LM March 18, 2025 Page 7 of 12

2025, with a status conference scheduled for March 19, 2025, and pretrial conference

scheduled for March 26, 2025. 28

As a preliminary matter, this letter does not consider the exhibits filed by the

Plaintiff on February 28, 2025 after close of briefing on the motion for summary

judgment on January 31, 2025, because they were filed outside of the stipulated

deadline. 29

I. 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.” 30 “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.”31 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.’”32

28 D.I. 22; D.I. 41. 29 D.I. 22 at ¶4. 30 Ct. Ch. R. 56(c). 31 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)). 32 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. 2022-0531-LM March 18, 2025 Page 8 of 12

The Defendants primarily argue they are entitled to summary judgment

because the Plaintiffs do not own the right of way that is the subject of the claim,

that the rightful owner of the 40 foot right of way is the State or alternatively should

be reinstated as a public right of way owned by the State, and additionally argue they

are entitled to summary judgment due to Plaintiffs’ failure to join the State as an

indispensable party.

A. There remain issues of material fact.

If parties each present “conflicting evidence such that there is an issue of

material fact, summary judgment must be denied.”33 A genuine issue of material fact

is found where “the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” 34 The Court is tasked with answering the question of

“whether or not there is any evidence supporting a favorable conclusion to the

nonmoving party.”35 Additionally, “there is no absolute right to summary judgment,

33 Deloitte LLP v. Flanagan, 2009 WL 5200657, at *3 (Del. Ch. Dec. 29, 2009) (citation omitted). 34 Id. (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986)). 35 Continental Oil Co. v. Pauley Petroleum, Inc., 251 A.2d 824, 826 (Del. 1969) (citation omitted). C.A. No. 2022-0531-LM March 18, 2025 Page 9 of 12

and it is within the discretion of the presiding judicial officer to require a developed

record before rendering a decision on the merits.” 36

Presently there remain before me facts in dispute that are material to the

claims and counterclaims brought by both parties, relating to the legal issues of

breach of Settlement Agreement and the question of the ownership status of Virginia

Place. Plaintiffs claim to own Virginia Place and claim Defendants have an easement

for ingress and egress to their property through the right-of-way.37 Defendants claim

that Virginia place was never a part of Plaintiffs’ Property.38 The Parties have each

presented conflicting exhibits to their points on this issue of whether Virginia Place

is privately or publicly owned which is material to all other claims brought in this

case.39 The parties remain in dispute as to how they each came into ownership of

their properties and as to the ownership status of Virginia Place. Therefore, with the

competing evidence provided by each party as to the status of the true owner of the

right of way, which are facts material to the outcome of this action, I cannot enter

summary judgment in favor of the Defendants.

36 Gerald N. & Myrna M. Smernoff Rev. Trs. v. King’s Grant Condo. Ass’n., 2022 WL 6331860, at *1 (Del. Ch. Oct. 10, 2022) (footnote omitted). 37 D.I. 37 at ¶15-19. 38 D.I. 33 at ¶18-23. 39 See, generally D.I. 33, Ex. A-K; D.I. 37, Ex. A-B. C.A. No. 2022-0531-LM March 18, 2025 Page 10 of 12

B. The State is not an indispensable party to this case.

Under Court of Chancery Rule 12(b)(7) and Court of Chancery Rule 19, a

party can assert a defense of failure to join a necessary party. Rule 19(a) identifies

that a person is a necessary party if “in that person’s absence, the Court cannot

accord complete relief among existing parties [,]” 40 or “that disposition in the case

will injure their rights or subject them to substantial risk of multiple or inconsistent

obligations related to that interest.”41 A necessary party’s interest in the controversy

“must be such that a final decree cannot be made which will neither touch upon the

party’s interest nor leave the controversy in such a state that the final determination

would be inconsistent with equity and good conscience.” 42

If the Court determines that a party is a necessary one, but determines that

party’s actual joinder is not feasible, “the Court must determine in equity and good

40 Ct. Ch. R. 19(a)(1)(A). 41 Mooney v. Geriatric Services of Delaware, Inc., 2020 WL 7695643, at *3 (Del. Ch. Dec. 28, 2020) (citing Ct. Ch. R. 19(a)). 42 NAMA Holdings, LLC v. Related World Market Center, LLC, 922 A.2d 417, 436 (Del. Ch. 2007) (internal quotation marks omitted); see also National Education Corp v. Bell & Howell Co, 1983 WL 8946, at *3 (Del. Ch. Dec. 13, 1983) (“a case is not dismissed under Rule 19(b) because of the failure of the plaintiff to have joined an indispensable party, but rather it is dismissed only in the event that the Court determines on the particular circumstances of the case that in equity and good conscience the suit should not be permitted to go forward in the absence of those persons who have an interest in the matter as defined in [Rule 19(a)]”). C.A. No. 2022-0531-LM March 18, 2025 Page 11 of 12

conscience if the action should proceed among the parties before it should be

dismissed due to the absence of an indispensable party.” 43

The factors to be considered in making this determination are (1) the extent to which a judgment entered in the person's absence might be prejudicial to him or those already parties; (2) the extent to which any such prejudice may be lessened or avoided by the shaping of relief or protective provisions in a judgment; (3) whether a judgment rendered in the person's absence will be adequate; and (4) whether Plaintiffs will have an adequate remedy if the action is dismissed for nonjoinder.44

It may very well be that it would be appropriate to name the State as a party

to this action based on Defendants’ argument regarding the true ownership of

Virginia Place, however I find joining the State on the eve of trial to be infeasible

because it would be unreasonably prejudicial to the parties currently in the action as

it may risk unnecessary delay to trial. I also find it unnecessary to dismiss for failure

to join when all the while the Court can lessen or avoid the prejudice of nonjoinder

by adequately shaping the decision with narrowly tailored relief so as not to affect

the State’s interest, if any, in Virginia Place.

I do not find summary judgment, or dismissal, to be appropriate for Plaintiffs’

nonjoinder of the State as a party to this action where Defendants are able to

43 Hunt v. DelCollo, 317 A.2d 545, 551 (Del. Ch. 1974). 44 Id. C.A. No. 2022-0531-LM March 18, 2025 Page 12 of 12

adequately represent any interest they allege the State may have. The Court is able

to avoid, through narrowly tailored relief, prejudice to the party not joined, and I find

there is a greater risk of prejudice toward the present parties in the action if trial were

to be delayed, to join the State if ultimately feasible, or to dismiss the case, if joinder

is ultimately infeasible.

II. CONCLUSION

For the reasons explained above, Defendants’ motion for summary judgment

is denied as material facts remain that would benefit from the illuminating effect of

trial. I do however find that the State is not an indispensable party that is required to

be joined for the Court to be able to provide full and final judgment in this action.

Trial will move forward as scheduled on April 1, 2025 and April 2, 2025.

This is a Magistrate’s Report under Court of Chancery Rule 144 and

exceptions are stayed until I have issued a final decision on the merits of the claims.

Respectfully submitted,

/s/ Loren Mitchell

Magistrate in Chancery