COURT OF CHANCERY OF THE STATE OF DELAWARE KIM E. AYVAZIAN CHANCERY COURTHOUSE MASTER IN CHANCERY 34 The Circle GEORGETOWN, DELAWARE 19947 AND NEW CASTLE COUNTY COURTHOUSE 500 NORTH KING STREET, SUITE 11400 WILMINGTON, DELAWARE 19980-3734
August 8, 2016
Dean A. Campbell, Esq. 401 North Bedford Street PO Box 568 Georgetown, DE 19947
David N. Rutt, Esquire Moore & Rutt, P.A. 122 West Market Street P.O. Box 554 Georgetown, DE 19947
RE: John Haldeman, v. Marjorie Lee Worrell et al. C.A. No. 8282-MA
Dear Counsel:
I have reviewed Plaintiff John Haldeman’s Motion to Re-Open Record filed
on July 13, 2016,1 and the response of Defendants Marjorie Lee Worrell and the
Estate of Marjorie L. Tyson, by and through its Executrix, Marjorie L. Worrell,
filed on July 26, 2016.2 For the reasons that follow, I recommend that the motion
be denied.
1 Docket Item (“DI”) 66. 2 DI 69. Page 1 of 7 Plaintiff seeks to re-open the record of this case to admit copies of (a) a letter
allegedly written by Paul D. Nelson, an attorney in Media, Pennsylvania,
concerning a telephone conversation that took place on February 19, 2016 with
Plaintiff’s attorney, (b) three checks allegedly signed by Mrs. Tyson in 2007 and
2008 and provided to Mr. Nelson by Mid-Atlantic Bank, and (c) two pages of
handwritten notes allegedly provided to Mr. Nelson by Mrs. Tyson listing loans or
monetary gifts to her stepson Johnnie Ray Tyson, Jr. from April 2, 1993 to June
27, 2008, and a schedule of Johnnie Ray’s repayments of a $9,600 loan during
2002 and 2003.3 Plaintiff would like an opportunity to explain that he had no
knowledge of the depth of Johnnie Ray’s relationship with Mrs. Tyson or of these
loans and gifts. Defendants oppose this motion, arguing that the relationship
between Mrs. Tyson and her stepson is irrelevant to the issues before the Court.
Furthermore, Defendants argue that the checks are not newly discovered evidence
because they were faxed to Nelson in May 2010, two months prior to Nelson’s
written correspondence with Plaintiff.4 These documents were in existence and,
therefore, available to Plaintiff prior to trial had he wished to introduce them into
the record.
3 Motion to Re-Open Record, Ex. A. DI 66. 4 See Letter dated July 28, 2010 from Paul D. Nelson, Esq. to Marjorie Tyson and John Haldeman, Attorney-in Fact. JX 9. Page 2 of 7 There has been no final judgment in this case because the Court is
conducting a de novo review of a Master’s Final Report.5 Plaintiff had the
opportunity to fully and completely present his evidence during the course of a
three-day trial and to make his arguments in post-trial briefings before a Master.
Nevertheless, this Court will reopen the evidentiary record before entry of a final
judgment when “‘doing so serves the interest of fairness and substantial justice.’”6
The factors to consider when deciding whether to grant a motion to reopen include:
(1)whether the evidence has come to the moving party’s knowledge since the trial; (2) whether the exercise of reasonable diligence would have caused the moving party to discover the evidence for use at trial; (3) whether the evidence is so material and relevant that it will likely change the outcome; (4) whether the evidence is material and not merely cumulative; (5) whether the moving party has made a timely motion; (6) whether undue prejudice will inure to the nonmoving party; and (7) considerations of judicial economy.7
I conclude that it would not serve the interests of fairness or justice to allow
Plaintiff to supplement the record. The relationship between Mrs. Tyson and her
stepson was incidental to the issues before me. That Mrs. Tyson had enjoyed a
close relationship with her stepson despite the circumstances of his birth merely
provided additional factual support for my characterization of Mrs. Tyson as a
generous and warm-hearted person. At issue was whether Plaintiff could void
5 See Court of Chancery Rule 144(a). 6 Whittington v. Dragon Group, LLC, 2012 WL 3089861, at *3 (Del. Ch. July 20, 2012) (quoting Lola Cars Int’l Ltd. v. Krohn Racing, LLC, 2010 WL 1818907, at *1 (Del. Ch. Apr. 23, 2010)). Page 3 of 7 Mrs. Tyson’s estate planning documents, i.e., Mrs. Tyson’s 2012 Last Will and
Testament leaving her estate to her niece Defendant Worrell and the 2012
Assignment of Lease conveying Mrs. Tyson’s one-half interest in the Lewes Beach
house to Defendant Worrell. Plaintiff argued that he was entitled to rescission of
these documents due to fraud, misrepresentation, and undue influence by
Defendant Worrell, lack of testamentary capacity and the capacity to execute a
deed, and equitable estoppel. Defendants, on the other hand, accused Plaintiff of
breaching his fiduciary duty to Mrs. Tyson. My recommendation to deny
Plaintiff’s requested relief was based primarily on financial records from 2011 to
2012 and eyewitness testimony concerning Mrs. Tyson’s life after she was moved
to Lewes in August 2011. My recommendation to order an accounting from
Plaintiff was predicated on, among other factors, Plaintiff being listed as a power
of attorney on Mrs. Tyson’s credit union accounts, his commingling of his own
funds with Mrs. Tyson’s funds, and his failure to keep adequate records of Mrs.
Tyson’s bills and his use of Mrs. Tyson’s funds.
The record shows that sometime in 2007 or 2008, Plaintiff’s son moved into
Mrs. Tyson’s Boothwyn residence, ostensibly for the purpose of helping to care for
his great-aunt, who had Parkinson’s disease and was undergoing medical treatment
for cancer. From approximately 2008 until August 2011 when she was moved to
7 Id. (footnotes omitted). Page 4 of 7 Lewes Beach, Mrs. Tyson’s world appeared to consist of Plaintiff, Plaintiff’s adult
son and daughter, Mrs. Tyson’s cleaning lady and handyman, and Pennsylvania
hospice workers. Although Plaintiff now claims that Johnnie Ray lived near Mrs.
Tyson during this time period, and presumably had access both to his stepmother
and her ATM card, this is pure speculation on his part. On the other hand, the
record is clear that not only did Plaintiff’s son reside with Mrs. Tyson, but Plaintiff
himself drove from Millsboro, Delaware to Boothwyn, Pennsylvania every two
weeks to visit Mrs. Tyson. Even if I were to reopen the record to include the three
checks and list of loans and gifts to Johnnie Ray from Mr. Tyson and/or Mrs.
Tyson, this evidence is not so material and relevant that it would likely change the
outcome of the Master’s Final Report, which dealt with the relationship between
Mrs. Tyson and Plaintiff, who was her nephew and her power of attorney.8
Furthermore, it appears that Plaintiff may have been aware of this evidence
for some time. Although Nelson’s letter is dated February 22, 2016,9 in it, Nelson
refers to two pages that had been given to him by Mrs. Tyson. Since Mrs. Tyson
was moved to Lewes Beach in August 2011, Nelson must have obtained these
pages from Mrs. Tyson sometime before then. Nelson may even have obtained
the pages in 2010 when he was engaged by Plaintiff and Mrs. Tyson to obtain a
8 I do note, however, that the checks dated 2007 and 2008 might be relevant to an accounting if the Court adopts the recommendations in the Master’s Final Report. Page 5 of 7 title search of the Boothwyn residence and investigate Johnnie Ray’s alleged
misrepresentation and trickery that led to the Boothwyn residence being titled in
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF CHANCERY OF THE STATE OF DELAWARE KIM E. AYVAZIAN CHANCERY COURTHOUSE MASTER IN CHANCERY 34 The Circle GEORGETOWN, DELAWARE 19947 AND NEW CASTLE COUNTY COURTHOUSE 500 NORTH KING STREET, SUITE 11400 WILMINGTON, DELAWARE 19980-3734
August 8, 2016
Dean A. Campbell, Esq. 401 North Bedford Street PO Box 568 Georgetown, DE 19947
David N. Rutt, Esquire Moore & Rutt, P.A. 122 West Market Street P.O. Box 554 Georgetown, DE 19947
RE: John Haldeman, v. Marjorie Lee Worrell et al. C.A. No. 8282-MA
Dear Counsel:
I have reviewed Plaintiff John Haldeman’s Motion to Re-Open Record filed
on July 13, 2016,1 and the response of Defendants Marjorie Lee Worrell and the
Estate of Marjorie L. Tyson, by and through its Executrix, Marjorie L. Worrell,
filed on July 26, 2016.2 For the reasons that follow, I recommend that the motion
be denied.
1 Docket Item (“DI”) 66. 2 DI 69. Page 1 of 7 Plaintiff seeks to re-open the record of this case to admit copies of (a) a letter
allegedly written by Paul D. Nelson, an attorney in Media, Pennsylvania,
concerning a telephone conversation that took place on February 19, 2016 with
Plaintiff’s attorney, (b) three checks allegedly signed by Mrs. Tyson in 2007 and
2008 and provided to Mr. Nelson by Mid-Atlantic Bank, and (c) two pages of
handwritten notes allegedly provided to Mr. Nelson by Mrs. Tyson listing loans or
monetary gifts to her stepson Johnnie Ray Tyson, Jr. from April 2, 1993 to June
27, 2008, and a schedule of Johnnie Ray’s repayments of a $9,600 loan during
2002 and 2003.3 Plaintiff would like an opportunity to explain that he had no
knowledge of the depth of Johnnie Ray’s relationship with Mrs. Tyson or of these
loans and gifts. Defendants oppose this motion, arguing that the relationship
between Mrs. Tyson and her stepson is irrelevant to the issues before the Court.
Furthermore, Defendants argue that the checks are not newly discovered evidence
because they were faxed to Nelson in May 2010, two months prior to Nelson’s
written correspondence with Plaintiff.4 These documents were in existence and,
therefore, available to Plaintiff prior to trial had he wished to introduce them into
the record.
3 Motion to Re-Open Record, Ex. A. DI 66. 4 See Letter dated July 28, 2010 from Paul D. Nelson, Esq. to Marjorie Tyson and John Haldeman, Attorney-in Fact. JX 9. Page 2 of 7 There has been no final judgment in this case because the Court is
conducting a de novo review of a Master’s Final Report.5 Plaintiff had the
opportunity to fully and completely present his evidence during the course of a
three-day trial and to make his arguments in post-trial briefings before a Master.
Nevertheless, this Court will reopen the evidentiary record before entry of a final
judgment when “‘doing so serves the interest of fairness and substantial justice.’”6
The factors to consider when deciding whether to grant a motion to reopen include:
(1)whether the evidence has come to the moving party’s knowledge since the trial; (2) whether the exercise of reasonable diligence would have caused the moving party to discover the evidence for use at trial; (3) whether the evidence is so material and relevant that it will likely change the outcome; (4) whether the evidence is material and not merely cumulative; (5) whether the moving party has made a timely motion; (6) whether undue prejudice will inure to the nonmoving party; and (7) considerations of judicial economy.7
I conclude that it would not serve the interests of fairness or justice to allow
Plaintiff to supplement the record. The relationship between Mrs. Tyson and her
stepson was incidental to the issues before me. That Mrs. Tyson had enjoyed a
close relationship with her stepson despite the circumstances of his birth merely
provided additional factual support for my characterization of Mrs. Tyson as a
generous and warm-hearted person. At issue was whether Plaintiff could void
5 See Court of Chancery Rule 144(a). 6 Whittington v. Dragon Group, LLC, 2012 WL 3089861, at *3 (Del. Ch. July 20, 2012) (quoting Lola Cars Int’l Ltd. v. Krohn Racing, LLC, 2010 WL 1818907, at *1 (Del. Ch. Apr. 23, 2010)). Page 3 of 7 Mrs. Tyson’s estate planning documents, i.e., Mrs. Tyson’s 2012 Last Will and
Testament leaving her estate to her niece Defendant Worrell and the 2012
Assignment of Lease conveying Mrs. Tyson’s one-half interest in the Lewes Beach
house to Defendant Worrell. Plaintiff argued that he was entitled to rescission of
these documents due to fraud, misrepresentation, and undue influence by
Defendant Worrell, lack of testamentary capacity and the capacity to execute a
deed, and equitable estoppel. Defendants, on the other hand, accused Plaintiff of
breaching his fiduciary duty to Mrs. Tyson. My recommendation to deny
Plaintiff’s requested relief was based primarily on financial records from 2011 to
2012 and eyewitness testimony concerning Mrs. Tyson’s life after she was moved
to Lewes in August 2011. My recommendation to order an accounting from
Plaintiff was predicated on, among other factors, Plaintiff being listed as a power
of attorney on Mrs. Tyson’s credit union accounts, his commingling of his own
funds with Mrs. Tyson’s funds, and his failure to keep adequate records of Mrs.
Tyson’s bills and his use of Mrs. Tyson’s funds.
The record shows that sometime in 2007 or 2008, Plaintiff’s son moved into
Mrs. Tyson’s Boothwyn residence, ostensibly for the purpose of helping to care for
his great-aunt, who had Parkinson’s disease and was undergoing medical treatment
for cancer. From approximately 2008 until August 2011 when she was moved to
7 Id. (footnotes omitted). Page 4 of 7 Lewes Beach, Mrs. Tyson’s world appeared to consist of Plaintiff, Plaintiff’s adult
son and daughter, Mrs. Tyson’s cleaning lady and handyman, and Pennsylvania
hospice workers. Although Plaintiff now claims that Johnnie Ray lived near Mrs.
Tyson during this time period, and presumably had access both to his stepmother
and her ATM card, this is pure speculation on his part. On the other hand, the
record is clear that not only did Plaintiff’s son reside with Mrs. Tyson, but Plaintiff
himself drove from Millsboro, Delaware to Boothwyn, Pennsylvania every two
weeks to visit Mrs. Tyson. Even if I were to reopen the record to include the three
checks and list of loans and gifts to Johnnie Ray from Mr. Tyson and/or Mrs.
Tyson, this evidence is not so material and relevant that it would likely change the
outcome of the Master’s Final Report, which dealt with the relationship between
Mrs. Tyson and Plaintiff, who was her nephew and her power of attorney.8
Furthermore, it appears that Plaintiff may have been aware of this evidence
for some time. Although Nelson’s letter is dated February 22, 2016,9 in it, Nelson
refers to two pages that had been given to him by Mrs. Tyson. Since Mrs. Tyson
was moved to Lewes Beach in August 2011, Nelson must have obtained these
pages from Mrs. Tyson sometime before then. Nelson may even have obtained
the pages in 2010 when he was engaged by Plaintiff and Mrs. Tyson to obtain a
8 I do note, however, that the checks dated 2007 and 2008 might be relevant to an accounting if the Court adopts the recommendations in the Master’s Final Report. Page 5 of 7 title search of the Boothwyn residence and investigate Johnnie Ray’s alleged
misrepresentation and trickery that led to the Boothwyn residence being titled in
Johnnie Ray’s sole name. In addition, the copies of three checks which Plaintiff
seeks to admit appear to have been printed in May and October 2010, and faxed to
Nelson by Mid-Atlantic Bank on October 28, 2010, three months after Plaintiff’s
telephone communication with Nelson.10 Even if Plaintiff was unaware of the
existence of these documents prior to trial, he could have discovered them with the
exercise of reasonable diligence.
Trial in this matter took place over several days in March 2015.11 The
Master’s Draft Report was issued on December 31, 2015.12 Plaintiff apparently
obtained these documents from Nelson in late February 2016. Plaintiff fails to
provide any reason for waiting to file this motion until after the issuance of the
Master’s Final Report on June 16, 2016.13 Although the analysis and
recommendation would not have been different if Plaintiff had filed his motion
sooner, at least it would have avoided any disruption to the process of taking
exception to a Master’s Final Report, which has been stayed during the pendency
9 Motion to Re-Open Record, Ex. A (Letter to Dean Campbell, Esq. dated February 22, 2016). Docket Item (“DI”) 66. 10 See JX 9. 11 DI 38. 12 DI 51. 13 DI 58. Page 6 of 7 of this motion.14 As it stands, judicial economy has not been served by this
process, and would not be served by re-opening the record to explore irrelevant
matters concerning the relationship between Mrs. Tyson and her stepson.
In the interest of moving this case along, I am waiving a draft report and
issuing my recommendation to deny the motion to reopen the record as a Master’s
Final Report. The parties are referred to 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
14 DI 70. Page 7 of 7