Pullin v. Davis

• Court: Court of Chancery of Delaware
• Decided: September 7, 2016
• Docket: C.A. No. 11829-VCG
• 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: June 27, 2016 Date Decided: September 7, 2016

Richard E. Berl, Jr., Esquire Michael S. Davis Berl & Feinberg, LLP Debra L. Davis 34382 Carpenter’s Way, Suite 3 1297 North Bend Road Lewes, DE 19958 Jarrettsville, MD 21084

Re: Pullin v. Davis, C.A. No. 11829-VCG

Dear Counsel and Mr. and Mrs. Davis:

This matter involves two adjacent lots in Linn Woods development, a housing

development near Dagsboro in Sussex County, Delaware. The Plaintiffs own Lot 1

and the Defendants own Lot 2. Lot 2, according to the Plaintiffs, is burdened by

either an express or implied easement, which serves as a septic field for Lot 1. The

easement was created by a common predecessor in title to Lots 1 and 2, which were

in common ownership but nonetheless already subdivided at the time the alleged

easement was created. When the Defendants bought Lot 2, they discovered the

septic field and later plugged it, rendering the septic field unusable to the Plaintiffs.

The Plaintiffs have sued to vindicate the easement and for damages. The Defendants, who are pro se, filed a letter asking me to dismiss this action,

which I deemed to be a speaking motion for judgment on the pleadings. An

answering and a reply brief have been filed. In considering a motion for judgment

on the pleadings, I view the facts pleaded and the reasonable inferences to be drawn

therefrom in a light most favorable to the non-moving party. I must grant such a

motion only where no material issue of fact exists and where the movant, here the

Defendants, are entitled to a judgment as a matter of law.1

Here, there is a dispute as to whether the predecessor in title complied with

County regulations in locating the septic field and in recording the easement

burdening Lot 2. Also awaiting a developed record is whether the predecessor in

title created an implied easement that burdens the Defendants’ lot. Therefore, the

motion to dismiss/motion for judgment on the pleadings is denied. The parties

should consult and inform me within two weeks whether they are willing to have

this case assigned to a Master for mediation. It is a matter that surely should be

settled between reasonable neighbors. If this matter does not go to mediation or

settle by September 21, 2016, I will impose a hearing date and a pretrial schedule

that will move this matter quickly to a resolution. Although the Defendants have the

right to represent themselves, I note that it is in their interests to consult an attorney

1 Fiat N. Am. LLC v. UAW Retiree Med. Benefits Trust, 2013 WL 3963684, at *7 (Del. Ch. July 30, 2013) (“A motion for judgment on the pleadings will be granted if no material issue of fact exists and the moving party is entitled to judgment as a matter of law.”).

2 in this matter. To the extent that the foregoing requires an order to take effect, IT IS

SO ORDERED.

Sincerely,

/s/ Sam Glasscock III

Sam Glasscock III