Gerald N. and Myra M. Smernoff Rev. Trusts v. The King's Grant Condominium Association ( 2022 )

COURT OF CHANCERY
OF THE
SAM GLASSCOCK III
VICE CHANCELLOR
STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE
34 THE CIRCLE
GEORGETOWN, DELAWARE 19947
Date Submitted: October 10, 2022
Date Decided: October 10, 2022
John A. Sergovic, Jr., Esquire Mary R. Schrider-Fox, Esquire
Sergovic Carmean Weidman McCartney & Steen, Waehler & Schrider-Fox, LLC
Owens, P.A. P.O. Box 1398
P.O. Box 751 92 Atlantic Avenue, Unit B
25 Chestnut Street Ocean View, DE 19970
Georgetown, DE 19947
Re: Gerald N. and Myrna M. Smernoff Rev. Trusts v. The King's
Grant Condominium Assn., C.A. No. 2020-0798-PWG
Dear Counsel:
This matter is before me on exceptions to the Master’s Report of June 15,
2022, denying cross-motions for summary judgement. The Plaintiffs are trustees
for a trust (the “Owners”) owning a condominium unit (the “Unit”) in a
condominium, King’s Grant, for which the Defendant is the Condominium
Association.1 The Owners seek specific performance of purported obligations in
the condominium’s governing documents, the “Code of Regulations”2 and the
“Declaration of Condominium”3 encompassing the King’s Grant declaration plan
(collectively, the “Contracts”). The Contracts are subject to the Unit Property Act
1
There are two Defendants, the Association and its Council. I refer to both as “Defendant.”
2
Verified Compl., Ex. 3, Dkt. No. 1 [the “Regulations”].
3
Verified Compl., Ex. 1, Dkt. No. 1 [the “Declaration”].
(the “UPA”). 4 At issue is whether the Owners or the Defendant are liable under
the Contracts and the UPA to replace a window on the Unit. There are ancillary
issues as well, such as the style and specifications of any replacement window and
whether attorney’s fees should be shifted. The Master found that ambiguities lurk
in the Contracts, and that a full record would be advisable before a ruling on the
merits.
Under our Supreme Court’s holding in DiGiaccobe v. Sestak, 5 I must
perform a de novo review of any issue to which exceptions to a Master’ Final
Report are taken, regarding findings of both fact and law. I have done so here.
The pertinent issue is the denial of summary judgement. The parties agree with
one another that the Contracts are unambiguous, but each argues for a different
interpretation. I note that portions of the Contracts assign liability for window
replacement to the Owners,6 and other portions assign such liability (for common
elements, including the window in question) to the Defendant.7 The Master
correctly found that ambiguity resides in the interpretation of the Contracts.
Fundamentally, I also note, there is no right absolute right to summary judgement, 8
and it is within the discretion of the presiding judicial officer to require a
4
25 Del. C. § 2201 et seq.
5
743 A.2d 180 (Del. 1999).
6
Declaration § 11.03(e).
7
Regulations § 6.8(d); see generally Declaration § 4.05 (defining “common elements”).
8
AeroGlobal Capital Mgmt., LLC v. Cirrus Indus., Inc, 871 A.2d 428, 443 (Del. 2005) (citing
Cross v. Hair, 258 A.2d 277 (Del. 1969)).
2
developed record before rendering a decision on the merits.9 The cross-exceptions
are therefore denied, accordingly.
This litigation was filed more than two years ago. Wise parties would
consider settling litigation concerning replacement of a window. The same wise
heads, if they could not bear to compromise, might seek to submit the matter to the
Master for decision on a stipulated record, and avail themselves of a stipulation
under Rule144(h) to permit the Master to act as a final arbiter of their controversy.
In any event, given the issues at stake, piecemeal exceptions are neither efficient
nor desirable. Any further exceptions shall be preserved for review following a
final decision of the Master on all remaining issues.
For the foregoing reasons, the Parties’ Cross Exceptions are DENIED. To
the extent the foregoing requires an order to take effect, IT IS SO ORDERED.
Sincerely,
/s/ Sam Glasscock III
Vice Chancellor
9
See generally Del. Ct. Ch. R. 136 (providing power of Master to conduct the litigation).
3