Gerald N. Smernoff, Trustee Under the Gerald N. Smernoff Revocable Trust Dated May 24, 2000 and Myrna M. Smernoff, Trustee Under the Myrna M. Smernoff ( 2022 )


Menu:
  •                               COURT OF CHANCERY
    OF THE
    STATE OF DELAWARE
    PATRICIA W. GRIFFIN                                                  CHANCERY COURTHOUSE
    MASTER IN CHANCERY                                                        34 The Circle
    GEORGETOWN, DELAWARE 19947
    Date Submitted:    September 28, 2021
    Draft Report:      January 2, 2022
    Final Report:      June 15, 2022
    John A. Sergovic, Jr., Esquire
    Sergovic Carmean Weidman McCartney & Owens, P.A.
    25 Chestnut Street
    P.O. Box 751
    Georgetown, Delaware 19947
    Mary R. Schrider-Fox, Esquire
    Steen, Waehler & Shrider-Fox, LLC
    92 Atlantic Avenue, Unit B
    P.O. Box 1398
    Ocean View, Delaware 19970
    RE:      Gerald N. Smernoff, Trustee Under the Gerald N. Smernoff Revocable Trust
    Dated May 24, 2000 and Myrna M. Smernoff, Trustee Under the Myrna M.
    Smernoff Revocable Trust Dated May 24, 2000 v. The King’s Grant
    Condominium Association, Inc. and Council of King’s Grant Condominium
    C.A. No. 2020-0798-PWG
    Dear Counsel:
    Pending before me is a dispute between owners of a condominium unit and
    the condominium association regarding who is responsible for repairing and/or
    replacing water damaged exterior windows, doors and walls in the owners’ unit.
    The owners argue that the exterior windows, doors and walls are common elements
    and the obligation to repair and/or replace them falls on the association, while the
    association contends that the condominium’s governing documents assign the duty
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    to repair or replace all windows and doors on the owners. First, I address the issue
    of whether this Court has subject matter jurisdiction over this matter and conclude
    that it does. Next, I consider the parties’ cross-motions for summary judgment and
    recommend that the Court deny both motions, because I find that material issues
    exist concerning whether exterior windows and doors are common elements and
    that it is desirable to inquire more fully into the facts to apply the law to the
    circumstances in the case. This is a final report.
    I.      BACKGROUND
    A.       Factual Background
    Plaintiffs Gerald Smernoff and Myrna Smernoff, Trustees under the Gerald
    N. Smernoff and Myrna M. Smernoff Revocable Trusts dated May 24, 2000
    (“Smernoffs”), own Unit 15 of Building C (“Unit 15”) at the King’s Grant
    Condominium (“Condominium”), located at 15 King’s Grant, Fenwick Island,
    Delaware.1 The Smernoffs bought Unit 15 in June of 1994.2 The Condominium
    was created in the mid-1980s.3                   Defendants, the King’s Grant Condominium
    Association, Inc. and the Council of King’s Grant Condominium (collectively,
    “HOA”), are the Condominium’s unit owners association and the board of
    individuals tasked with managing the Condominium’s business operations and
    1
    Docket Item (“D.I.”) 1, ¶¶ 1-2; D.I. 14, ¶ 10; D.I. 16, ¶ 4.
    2
    D.I. 16, Ex. A, ¶ 1.
    2
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    affairs on behalf of the unit owners.4 The Condominium’s governing documents
    include the Code of Regulations for King’s Grant Condominium Documents
    (“COR”) and the Declaration of Condominium Submitting Real Property to
    Provisions of the Unit Property Act, 25 Del. C. Section 2201, et seq. King’s Grant
    Condominium (“Declaration”), which incorporates the Declaration Plan for King’s
    Grant Condominium (“Declaration Plan”) (collectively, “Governing Documents”).5
    The HOA operates under the Governing Documents, which specifically submit the
    Condominium to the Unit Property Act (“UPA”), 25 Del. C. §2201, et seq.6
    On November 14, 2014, George, Miles & Buhr, LLC performed a water test
    on the north entry door and glass wall of Unit 15 (“Window”) and found, in a
    report dated January 28, 2015, that there was water leakage around the Window
    and recommended replacing the sealant around the Window.7
    The Smernoffs requested that the HOA repair or replace the Window,
    asserting that it is a common element and the HOA’s responsibility to repair under
    3
    Id., ¶ 5; D.I. 1, Ex. 1 [hereinafter “Decl.”].
    4
    D.I. 16, ¶ 1; see also D.I. 1, Ex. 3 [hereinafter “COR”], §3.2.
    5
    See Decl., §§3.01(G), 4.07, 22.01; D.I. 1, Ex. 2; COR.
    6
    D.I. 16, ¶ 1; Decl., §1.01; COR, §1.1.
    7
    D.I. 1, Ex. 4. The Report indicated that a “longer lasting solution would be to install sill
    plans beneath the base of each window, however that would involve the removal and
    reinstallation of each window.” Id.
    3
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    the Governing Documents.8 The HOA took the position that it is the Smernoffs’
    duty to repair or replace the Window under the Declaration.9                     This dispute
    escalated, and settlement efforts were unsuccessful.10
    B.        Procedural Background
    The Smernoffs filed the Complaint on September 18, 2020, seeking specific
    performance of the HOA’s duty to repair under the Governing Documents and a
    declaratory judgment establishing that the exterior windows, doors and walls of
    Unit 15 and all similar units within the Condominium are common elements under
    the Declaration and required to be repaired or replaced by the HOA.11 The HOA
    answered on October 20, 2020, disputing that it was obligated to repair or replace
    the Window.12
    On April 9, 2021, the Smernoffs moved for summary judgment (“Motion”),
    arguing that the Declaration unambiguously denotes exterior-facing windows and
    doors as common elements and they are entitled to judgment as a matter of law.13
    On May 10, 2021, the HOA opposed the Motion and filed a cross-motion for
    summary judgment (“Cross-Motion”), arguing that the Declaration was
    8
    D.I. 7, ¶ 14.
    9
    D.I. 1, Ex. 5.
    10
    See id., Ex. 5.
    11
    D.I. 1.
    12
    D.I. 7.
    4
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    unambiguous in favor of the HOA and it was entitled to judgment as a matter of
    law.14 On May 25, 2021, the Smernoffs filed their Reply, opposing the Cross-
    Motion.15
    On August 12, 2021, the Court raised sua sponte the issue of its subject
    matter jurisdiction, citing a similar dispute requesting specific performance against
    a homeowner’s association.16                 On September 13, 2021, the parties submitted
    simultaneous statements on the issue of subject matter jurisdiction.17                On
    September 28, 2021, the Smernoffs filed a statement of supplemental authority,
    citing recent legislative changes to the Delaware Uniform Common Interest
    Ownership Act (“DUCIOA”).18
    On January 2, 2022, I issued a draft master’s report (“Draft Report”), in
    which I concluded, based upon a stipulation by the parties that the Window was a
    common element under the Declaration, that the HOA was responsible for the
    maintenance and replacement of the Window as a common expense.19 Both parties
    13
    D.I. 14.
    14
    D.I. 16.
    15
    D.I. 17.
    D.I. 18 (citing Bennett v. Plantations E. Condo. Ass’n [hereinafter “Bennett”], 2010
    
    16 WL 3065228
     (Del. Ch. July 22, 2010)).
    17
    D.I. 19; D.I. 20.
    18
    D.I. 21.
    19
    D.I. 22.
    5
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    filed exceptions to my Draft Report.20 In their exceptions, the HOA argued that I
    improperly interpreted the Governing Documents to place the burden on the HOA
    to maintain and replace the Window and that the Declaration intended the unit
    owner to be responsible for exterior windows attached to their unit.21                 The
    Smernoffs asserted that the HOA should be required to replace the Window in the
    original architectural style, and asked that their request for attorneys’ fees be
    considered at this juncture.22
    II.     ANALYSIS
    A.       This Court has Jurisdiction Over All Claims23
    The Court raised sua sponte the issue of subject matter jurisdiction, citing to
    Bennett v. Plantations East Condominium Association (“Bennett”),24 in which the
    Court dismissed for lack of subject matter jurisdiction a dispute between a property
    owner and a homeowner’s association regarding who should make repairs related
    to a water leak.25
    20
    D.I. 23; D.I. 24.
    21
    D.I. 28; D.I. 29.
    22
    D.I. 27; D.I. 31.
    23
    No exceptions were taken to this subject matter jurisdiction analysis in the draft report,
    and I adopt this analysis as my final report with minor changes.
    24
    
    2010 WL 3065228
     (Del. Ch. July 22, 2010).
    25
    D.I. 18.
    6
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    “The Court has a duty to determine whether it has subject matter jurisdiction
    over a plaintiff’s claims and can raise the issue sua sponte.”26 “The burden is on
    the plaintiff to prove subject matter jurisdiction exists.”27                    “As Delaware’s
    Constitutional court of equity, the Court of Chancery can acquire subject matter
    jurisdiction over a cause in only three ways, namely, if: (1) one or more of the
    plaintiff’s claims for relief is equitable in character, (2) the plaintiff requests relief
    that is equitable in nature, or (3) subject matter jurisdiction is conferred by
    statute.”28 “In deciding whether or not equitable jurisdiction exists, the Court must
    look beyond the remedies nominally being sought, and focus upon the allegations
    of the complaint in light of what the plaintiff really seeks to gain by bringing his or
    her claim.”29 “The analysis requires a realistic assessment of the nature of the
    wrong alleged and the remedy available in order to determine whether a legal
    remedy is available or fully adequate.”30 Where the plaintiff has pled a traditional
    26
    Crown Castle Fiber LLC v. City of Wilmington, 
    2021 WL 2838425
    , at *3-4 (Del. Ch.
    July 8, 2021) (citations omitted); see also Ct. Ch. R. 12(h)(3); Envo, Inc. v. Walters, 
    2009 WL 5173807
    , at *4 n. 10 (Del. Ch. Dec. 30, 2009), aff’d, 
    2013 WL 1283533
     (Del. Mar.
    28, 2013).
    27
    Sun Life Assurance Co. of Canada - U.S. Operations Hldgs., Inc. v. Grp. One
    Thousand One, LLC, 
    206 A.3d 261
    , 265 (Del. Super. 2019).
    28
    Endowment Rsch. Grp., LLC v. Wildcat Venture Partners, LLC, 
    2021 WL 841049
    , at
    *6 (Del. Ch. Mar. 5, 2021) (internal quotation marks and citations omitted).
    29
    Candlewood Timber Grp., LLC v. Pan Am. Energy, LLC, 
    859 A.2d 989
    , 997 (Del.
    2004) (citations omitted).
    30
    Endowment Rsch. Grp., LLC, 
    2021 WL 841049
    , at *6 (internal quotation marks and
    citation omitted).
    7
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    basis for equitable jurisdiction, such as specific performance, equitable jurisdiction
    will be found “only if the complaint, objectively viewed, discloses a genuine need
    for such equitable relief.”31
    The Smernoffs argue that this Court has subject matter jurisdiction and that
    Bennett is distinguishable because the Bennett plaintiffs were primarily seeking
    money for property damage not involving a common element and did not raise
    specific performance as a possible remedy in its pleadings.32                    The Smernoffs
    further assert that their declaratory judgment claim involves the adjudication of
    rights that are cognizable in this Court.33 The HOA contends that Bennett is on
    point.34 It argues that, like the homeowner’s association in Bennett, it has no
    “special expertise” that would make the Smernoffs entitled to specific performance
    and, if a breach is found, that damages will make the Smernoffs whole.35 The
    HOA acknowledges that the declaratory judgment claim may fall within this
    31
    Candlewood Timber Grp., LLC, 
    859 A.2d at 997
    ; see also Crown Castle Fiber LLC,
    
    2021 WL 2838425
    , at *4; Athene Life & Annuity, 
    2019 WL 3451376
    , *4 (Del. Ch. July
    31, 2019).
    32
    D.I. 19, at 2-3 (citing Bennett, 
    2010 WL 3065228
    , at *2 (Del. Ch. July 22, 2010)).
    33
    Id., at 5. The Smernoffs also argue that this Court has jurisdiction based on the HOA’s
    breach of its fiduciary duty to repair or replace the Window. Id., at 7-9. Because I find
    that subject matter jurisdiction exists on other grounds, I do not address that argument.
    34
    D.I. 20, at 1-2.
    35
    Id., at 2.
    8
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    Court’s jurisdiction, but alleges there is no pending controversy related to the
    declaratory judgment claim.36
    I find this Court has subject matter jurisdiction over these claims. The
    Smernoffs seek specific performance, an equitable remedy, based on the HOA’s
    alleged duty to repair the Window.37 Although the Bennett Court dismissed a
    similar claim based upon a duty to repair found in deed restrictions, the Bennett
    plaintiffs did not plead equitable relief.38 Instead, they sought monetary damages
    and only argued the possibility of specific performance in summary judgment
    briefs.39 Here, the Smernoffs’ specific performance claim, unlike in Bennett,40 is
    not merely a façade to confer equitable jurisdiction, and falls within this Court’s
    subject matter jurisdiction.
    Additionally, the declaratory judgment claim provides a basis for this
    Court’s jurisdiction.           “[D]eclaratory judgment actions involving the validity,
    applicability, and interpretation of land use restrictions are normally cognizable in
    36
    Id., at 3-4 (citation omitted).
    37
    D.I. 1, ¶¶ 31-39.
    38
    Bennett, 
    2010 WL 3065228
    , at *2 (Del. Ch. July 22, 2010)).
    39
    
    Id.
    40
    
    Id.,
     
    2010 WL 3065228
    , at *2 (“Therefore, the [plaintiffs’] suggestion at oral argument
    that specific performance is available as a jurisdictional ‘hook’ is unpersuasive.”).
    9
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    this Court.”41 This action seeks an interpretation of the Governing Documents, and
    is cognizable in this Court.                The HOA, though, argues that there is no real
    controversy because it has admitted that the exterior windows, doors, and walls of
    all units in the Condominium are common elements.42 For an actual controversy to
    exist, four elements must be satisfied:
    (1) It must be a controversy involving the rights or other legal
    relations of the party seeking declaratory relief; (2) it must be a
    controversy in which the claim of right or other legal interest is
    asserted against one who has an interest in contesting the claim; (3)
    the controversy must be between parties whose interests are real and
    adverse; (4) the issue involved in the controversy must be ripe for
    judicial determination.43
    The first and second prongs are satisfied because the declaratory judgment claim
    here seeks an interpretation of the Governing Documents, to which the Smernoffs
    and the HOA are bound.44 The third prong is met because the Smernoffs and the
    HOA have taken adverse positions whether the duty to repair common elements
    contained within the Governing Documents applies to the Window and what that
    41
    Heathergreen Commons Condo. Ass’n v. Paul, 
    503 A.2d 636
    , 645 (Del. Ch. 1985); see
    also Capano v. Draper Subdivision Ass’n, Inc., 
    2019 WL 3938704
    , at *9 n. 113 (Del. Ch.
    Aug. 20, 2019).
    42
    D.I. 20, at 4.
    43
    XI Specialty Ins. Co. v. WMI Liquidating Tr., 
    93 A.3d 1208
    , 1217 (Del. 2014) (citation
    omitted).
    44
    D.I. 1, ¶¶ 41-47.
    10
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    duty entails.45 The final prong of this analysis is satisfied because there is also a
    claim of a breach of that duty,46 making this controversy more than “advisory or
    hypothetical.”47 Thus, the declaratory judgment claim falls within this Court’s
    subject matter jurisdiction.
    B.       The Parties’ Cross-Motions for Summary Judgment are Denied
    1. Standard of Review
    Under Court of Chancery Rule 56, the Court may grant a motion for
    summary judgment when “the moving party demonstrates the absence of issues of
    material fact and that it is entitled to a judgment as a matter of law.”48 The moving
    party bears the burden of demonstrating that no material issues of fact are in
    dispute and that it is entitled to judgment as a matter of law.49 Evidence must be
    45
    Compare D.I. 16, ¶¶ 22-32 (HOA’s position that the language in §11.03(e) of the
    Declaration requires that the Smernoffs are responsible for their own window and door
    repairs even if those windows and doors are common elements) with D.I. 14, ¶¶ 33-38
    (Smernoffs’ position that the Window is a common element and the HOA is bound to
    repair and/or replace common elements).
    46
    D.I. 1, ¶¶ 31-39.
    47
    XI Specialty Ins. Co., 
    93 A.3d at 1217
     (citation omitted); see also Stroud v. Milliken
    Enterprises, Inc., 
    552 A.2d 476
    , 480 (Del. 1989).
    48
    Wagamon v. Dolan, 
    2012 WL 1388847
    , at *2 (Del. Ch. Apr. 20, 2012); see also
    Cincinnati Bell Cellular Sys. Co. v. Ameritech Mobile Phone Serv. of Cincinnati, Inc.,
    
    1996 WL 506906
    , at *2 (Del. Ch. Sept. 3, 1996), aff’d 
    692 A.2d 411
     (Del. 1997).
    49
    Wagamon, 
    2012 WL 1388847
    , at *2; Ludeen v. Pricewaterhousecoopers, LLC, 
    2006 WL 2559855
    , at *2 (Del. Super. Aug. 31, 2006).
    11
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    viewed “in the light most favorable to the non-moving party.”50                  Summary
    judgment may not be granted when material issues of fact exist or if the Court
    determines that it “seems desirable to inquire more thoroughly into the facts in
    order to clarify the application of law to the circumstances.”51 When the Court is
    presented with cross-motions for summary judgment, the Court may “deem the
    motions to be the equivalent of a stipulation for decision.”52
    2. Contentions
    The Smernoffs argue that there is no material factual dispute and they are
    entitled to judgment as a matter of law because the HOA has admitted that exterior
    windows, doors and walls are common elements, and the Governing Documents
    and the UPA compel the HOA to maintain, repair and replace common elements.53
    The HOA responds that Section 11.03(e) of the Declaration controls and requires
    unit owners to repair, replace, and maintain “windows and door [sic] in such
    unit.”54 It asserts that, in the Condominium’s history, there has been a consistent
    understanding that Section 11.03(e) of the Declaration required unit owners to
    50
    Williams v. Geier, 
    671 A.2d 1368
    , 1375-76 (Del. 1996) (citing Bershad v. Curtiss-
    Wright Corp., 
    535 A.2d 8401
    , 844 (Del. 1987)).
    51
    Id., at 1388-89; see also Ebersole v. Lowengrub, 
    180 A.2d 467
    , 470 (Del. 1962); In re
    Estate of Turner, 
    2004 WL 74473
    , at *4 (Del. Ch. Jan. 9, 2004) (citation omitted).
    52
    Ct. Ch. R. 56(h).
    53
    D.I, 14, ¶¶ 29-38; see also D.I. 17, ¶¶ 12-14.
    54
    D.I. 16, ¶¶ 26-32.
    12
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    repair, replace, and maintain the exterior windows and doors of their respective
    units.55 The HOA further argues that the Delaware Supreme Court’s decision in
    Council of Dorset Condominium Apartments v. Gordon (“Dorset”),56 is controlling
    based on that Court’s conclusion that similar language made individual unit owners
    responsible for repairing, replacing, and maintaining exterior doors and windows.57
    In reply, the Smernoffs contend that Dorset is not on point because, in that dispute,
    the exterior windows were not common elements under that condominium’s
    declaration.58
    3. Applicability of the Unit Property Act
    I begin the analysis with the UPA.59 The UPA has been described as
    “generally an enabling statute, allowing the allocation of rights and obligations
    within the condominium community.”60 Its provisions must be followed by a
    property submitted under it, like the Condominium, since the UPA “establishes the
    55
    Id., ¶ 22; see also D.I. 7, at 22.
    56
    
    801 A.2d 1
     (Del. 2002).
    57
    D.I. 16, ¶¶ 19-21.
    58
    D.I. 17, ¶ 12.
    59
    See Goss v. Coffee Run Condo. Council, 
    2003 WL 21085388
    , at *9 (Del. Ch. Apr. 30,
    2003) (citing Council of Unit Owners of Pilot Point Condo. v. Realty Growth Investors,
    
    436 A.2d 1268
    , 1278 (Del. Ch. 1981), aff’d in part, 
    453 A.2d 450
     (Del. 1982)).
    60
    Id., at *8.
    13
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    rights and interests that govern th[ose] propert[ies].”61                        The UPA defines a
    “Common Expense” to include “[e]xpenses of administration, maintenance, repair
    and replacement of the common elements.”62 The UPA further places the burden
    of “[t]he maintenance, repair and replacement of the common elements” on the
    HOA.63           First, I consider whether the Window is a common element.64 Section
    61
    Id., at *9 n. 42 (quoting Council of Unit Owners of Pilot Point Condo., 
    436 A.2d at 1278
    ); see also Decl. §1.01; COR, §1.1 (submitting the Condominium under the UPA);
    id., §15.06 (“This Code of Regulations shall, to all reasonable extent be deemed to be
    consistent with and supplementary to the provisions of the [Unit Property] Act.”). I
    consider briefly whether the UPA or DUCIOA controls for the Condominium. The
    Condominium is a pre-existing community under DUCOIA, since it was submitted to the
    UPA in 1985. See Decl.; 25 Del. C. §81-116. And, recent amendments to DUCOIA
    make clear that for all pre-existing communities, “existing provisions of those
    declarations, bylaws, codes of regulations, declaration plans, plats or plans … not in
    conflict with the UPA (Chapter 22 of this title), shall be controlling in the event of any
    express conflict between those existing provisions (as duly amended) and the provisions
    of this chapter.” 25 Del. C. §81-119. So, this matter is properly considered under the
    UPA and not DUCOIA.
    62
    25 Del. C. §2202(4)(a).
    63
    25 Del. C. §2211(1).
    64
    In my Draft Report, I relied upon the parties’ apparent stipulation that the Window was
    a common element in concluding that, as a common element, the maintenance and
    replacement of the Window was the HOA’s responsibility and a common expense under
    the UPA. See D.I. 22, at 14-20; see also D.I. 1, ¶14; D.I. 14, ¶ 30; D.I. 16, ¶¶ 10, 23; D.I.
    20, at 4. Upon further review, although the parties apparently stipulated that the Window
    was a common element, I find that I need not accept this as a judicial admission because
    it is a legal conclusion. “Voluntary and knowing concessions of fact made by a party
    during judicial proceedings …. are termed ‘judicial admissions.’” Merritt v. United
    Parcel Serv., 
    956 A.2d 1196
    , 1201 (Del. 2008); see also Cox Commc’ns, Inc. v. T-Mobile
    US, Inc., 
    2022 WL 619700
    , at *10 (Del. Mar. 3, 2022), reargument denied (Mar. 22,
    2022) (“[The judicial admission] doctrine does not apply to admitted legal conclusions.”).
    But, “[w]hen counsel speaks of legal principles he makes no judicial admission which
    would prevent the court from applying the facts disclosed by proof.” Blinder, Robinson &
    Co. v. Burton, 
    552 A.2d 466
    , 474 (Del. 1989) (cleaned up); see also BE & K Eng’g Co.,
    14
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    2202(3) of the UPA does not clearly specify whether the Window is a common
    element.65       To determine whether the Window falls “within the category of
    common elements or [is] otherwise covered as a common expense, [the Court]
    must look to the language of the [Governing Documents].”66 When analyzing the
    Governing Documents, I apply the principles of contract interpretation to ascertain
    the parties’ intent.67           “The proper construction of [a contract] … is purely a
    question of law, as is the proper interpretation of specific contractual language.” 68
    Contracts are read “as a whole …, so as not to render any part of the contract mere
    LLC v. RockTenn CP, LLC, 
    2014 WL 186835
    , at *7 (Del. Ch. Jan. 15, 2014), aff’d, 
    103 A.3d 512
     (Del. 2014) (Mem.). Here, the issue of whether the Window is a common
    element under the Governing Documents is a matter of contract interpretation and a
    question of law. OSI Sys., Inc. v. Interumentarium Corp., 
    892 A.2d 1086
    , 1090 (Del. Ch.
    2006) (“Under Delaware law, the proper interpretation of language in a contract, while
    analytically a question of fact, is treated as a question of law.”) (cleaned up). Therefore,
    the Court may reject the parties’ apparent stipulation that the Window is a common
    element and conduct a contract interpretation analysis. See Lillis v. AT&T Corp., 
    896 A.2d 871
    , 877 n. 10 (Del. Ch. 2005).
    65
    25 Del. C. §2202(3).
    66
    
    801 A.2d 1
    , 5 (Del. 2002).
    67
    See Goss v. Coffee Run Condo. Council, 
    2003 WL 21085388
    , at *7 (Del. Ch. Apr. 30,
    2003); see also Lorillard Tobacco Co. v. Am. Legacy Found., 
    903 A.2d 728
    , 739 (Del.
    2006) (“When interpreting a contract, the role of a court is to effectuate the parties’
    intent.”).
    68
    Wenske v. Blue Bell Creameries, Inc., 
    2018 WL 3337531
    , at *10 (Del. Ch. July 6,
    2018) (internal quotation marks and citations omitted) (ellipses in original), reh’g denied,
    
    2018 WL 5994971
     (Del. Ch. Nov. 13, 2018).
    15
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    surplusage” or to “render a provision or term ‘meaningless or illusory.’”69 The
    Court “ascribes to the words their common or ordinary meaning, and interprets
    them as would an objectively reasonable third-party observer.”70 And, “a court is
    precluded from resorting to extrinsic evidence to interpret contractual language
    which is plain and clear on its face.”71
    The Declaration defines what is a common element and what is part of an
    individual unit.72 The Declaration defines the “Unit” as:
    The vertical boundaries of each unit are that the lowermost elevation
    is the top surface of the lowermost subfloor and the uppermost
    elevation is the interior side of the roof ridge at the highest point of
    the roof. The highest point of the unit is the lower surface of the
    highest roof rafters or trusses. The horizontal boundaries of each unit
    as to depth and width are the space between the interior face of the
    wall studs.73
    “Common Elements shall consist of all portions of the Property except the Units,”
    including structures and installations “outside of the unit boundaries.74 However,
    Section 11.03(e) of the Declaration places the responsibility on the unit owner “to
    69
    Osborn ex rel. Osborn v. Kemp, 
    991 A.2d 1153
    , 1159 (Del. 2010) (internal quotation
    marks and citations omitted); see also Ray Beyond Corp. v. Trimaran Fund Mgmt., LLC,
    
    2019 WL 366614
    , at *5 n. 62 (Del. Ch. Jan. 29, 2019).
    Lawhon v. Winding Ridge Homeowners Ass’n, Inc., 
    2008 WL 5459246
    , at *6 (Del. Ch.
    70
    Dec. 31, 2008) (internal quotation marks and citations omitted).
    71
    Goss, 
    2003 WL 21085388
    , at *7 (citation omitted).
    72
    See also 25 Del. C. §2219(5).
    73
    Decl., §3.01(O).
    16
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    maintain, repair, and replace ... all non-load bearing interior walls, floors and
    partitions and windows and door in such unit.”75
    Based on the summary judgment record, a question remains whether the
    Window falls within the Declaration’s definition of “Unit.”76 Further, I find there
    is ambiguity whether the Window is a common element, since the Governing
    Documents can be interpreted as showing that windows are a common element or,
    in the alternative, as evidencing an intent that windows attached to a unit be treated
    as part of the unit and not as part of the common elements.77 The Declaration
    gives unit owners’ responsibility for maintaining and repairing “windows ... in
    such unit.”78 If the windows in a unit are common elements, then the phrase “in
    such unit” is potentially rendered meaningless because the Declaration defines
    “common element” and “unit” as exclusive of the other.79 Because I find that
    material issues exist concerning whether the Window is a common element and it
    is desirable for the Court to inquire more fully into the facts to clarify how to apply
    74
    Decl., §4.05(I). The Declaration also lists various features that fall within this
    definition “[w]ithout limited the generality” of the definition. Id.
    75
    Decl., §11.03(e).
    76
    See Decl., §3.01(O).
    77
    The Smernoffs argued in their exceptions brief that the Declaration Plan clearly
    classifies exterior windows, like the Window, as common elements. D.I. 31, at 7. I do
    not find the Declaration Plan’s common element designation clear as it applies to exterior
    windows since it does not depict windows separately.
    78
    Decl., §11.03(e).
    17
    Gerald N. Smernoff, et al. v. The King’s Grant Condominium Association, et al.
    Case No. 2020-0798-PWG
    June 15, 2022
    the law in this case, I conclude that summary judgment is not appropriate, and
    recommend that this matter proceed to trial on these issues.80
    III.     CONCLUSION
    For the reasons set forth above, I find that this Court has subject matter
    jurisdiction over the claims in this case. I recommend that the Court DENY the
    Motion and Cross-Motion and that this matter proceed to trial. This is a final
    master’s report, and exceptions may be taken under Court of Chancery Rule 144.
    Sincerely,
    /s/ Patricia W. Griffin
    Master Patricia W. Griffin
    79
    Decl., §4.05(I).
    80
    Because I conclude that summary judgment is not appropriate, I need not reach the
    remedies issues that I discussed in the Draft Report and the remainder of the issues
    discussed by the parties in the exceptions briefs.
    18