In the Matter of Tax Parcel No.s WD-00-063-00-01-01.00-00001 ( 2020 )

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
PATRICIA W. GRIFFIN CHANCERY COURTHOUSE
MASTER IN CHANCERY 34 The Circle
GEORGETOWN, DELAWARE 19947
Final Report: March 31, 2020
Draft Report:
Date Submitted: February 14, 2020
Nicole M. Faries, Esquire
Baird Mandalas Brockstedt, LLC
Little Falls Centre One
2711 Centerville Road, Suite 401
Wilmington, DE 19808
Gary R. Dodge, Esquire
Curley Dodge Fitzgerald & Funk, LLC
250 Beiser Blvd., Suite 202
Dover, DE 19901
RE: In the Matter of Tax Parcel Nos. WD-00-063-00-01-01.00-00001 and
WD-00-063-00-01-34.00-000
C.A. No. 2018-0733-PWG
Dear Counsel:
Pending before me is an action by a landowner seeking to quiet title to 13.55
acres of land that joins her two separate properties. She also seeks to establish title
to the land by adverse possession. The property dispute arises because she and
neighboring landowners have competing claims for ownership of 3.6 acres
encompassed within the 13.55 acre parcel. The landowner claiming rights to the
In the Matter of Tax Parcel Nos. WD-00-063-00-01-01.00-00001 and
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C.A. No. 2018-0733-PWG
March 31, 2020
13.55 acre parcel filed a motion for summary judgment arguing that recorded
deeds and boundary markers show her ownership of the entire parcel, including the
3.6 acres. The neighboring landowners oppose summary judgment, alleging that
disputed material factual issues exist concerning ownership of the 3.6 acre parcel.
I recommend the Court deny the motion for summary judgment because material
factual issues exist. This is a final report.
I. Background
At the center of this dispute is a 3.6 acre, landlocked wooded parcel of land
(“Disputed Parcel”), located in Kent County, Delaware. The Disputed Parcel is the
hub between two neighbors’ separate parcels of farmland: Petitioner Janet
Szelestei (“Szelestei”), acting individually and as Trustee of the Steve Szelestei, Jr.
Revocable Trust (“Trust”), owns properties to the north of the Disputed Parcel, on
Ford’s Corner Road, and to the south of it, on Butterpat Road. Respondents James
and Nancy Melville (“the Melvilles”) own properties to the east of the Disputed
Parcel, also fronting on Ford’s Corner Road, and to the west, on Butterpat Road.
The importance of the Disputed Parcel to both parties arises from its unique
location – Szelestei uses the Disputed Parcel to cross between her north and south
properties, and it also permits the Melvilles to cross between their east and west
properties.
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Szelestei’s petition, filed on October 11, 2018, seeks to quiet title on a 13.55
acre parcel [hereinafter “Gibbs parcel”], including the Disputed Parcel. Szelestei
claims to have obtained title to the Gibbs parcel from the Estate of William Gibbs
(“Gibbs Estate”) through a deed executed on June 26, 1992 (“1992 Deed”).1 She
contends that William Gibbs (“Gibbs”) obtained title to the Gibbs parcel from
Thomas Victor Clark (“Clark”) on September 12, 1907. She seeks to reform the
1992 Deed and a subsequent deed on December 8, 2009 (“2009 Deed”)2 to (1)
correct errors in the description of the Gibbs parcel, which was described as “11
acres, more or less” instead of 13.55 acres, which she asserts is the correct acreage
according to a 1993 survey, and (2) eliminate the incorrect statement that the Gibbs
parcel was originally a part of 112 acres of land deeded from William S. H. Davis
(“Davis”) to Louis and Susan Portas on September 8, 1910 (“Portas Deed”), since
she claims its title was conveyed separately from Clark to Gibbs. Szelestei also
asserts that her family has used and adversely possessed the entire Gibbs parcel
since at least 1992, by permitting persons to hunt on that parcel and maintaining a
1
The 1992 Deed, which was recorded on July 6, 1992, was a quitclaim deed from
Rachael Brown, sole heir of Esther Mordecai, who was an heir of William Gibbs, to
Szelestei and her husband, Steve Szelestei, Jr., conveying the Gibbs parcel. Docket Item
(“D.I.”) 21, at A-017 - A-018.
2
The 2009 Deed conveys the Gibbs parcel from Szelestei and Steve Szelestei, Jr., to
Steve Szelestei, Jr., as Trustee of the Trust. Id., at A-015 - A-016.
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path over the Disputed Parcel connecting her two properties. Further, she asks for
attorneys’ fees under the bad faith exception.
In the Melvilles’ November 13, 2018 answer and counterclaim, they deny
Szelestei’s ownership claims, argue that they have good title to the Disputed Parcel
through the Portas Deed, and seek attorneys’ fees.
Following discovery, Szelestei filed a motion for summary judgment
(“Motion”), on December 31, 2019, seeking invalidation of the Melvilles’
quitclaim deed and reformation of the 1992 and 2009 Deeds. She claims that the
recorded deeds and historical property boundary markers show that she is the
owner of the Gibbs parcel, which includes the Disputed Parcel.3
The Melvilles, in their January 31, 2020 answering brief, argue that they
own the Disputed Parcel through the Portas chain of title, and that the surveys and
monuments do not support Szelestei’s claims.
3
Initially, Szelestei moved in the summary judgment for an award of attorneys’ fees,
arguing that fee shifting is appropriate because the Melvilles acted in bad faith by
intentionally disregarding signs of her ownership, by inserting a wooden stake on the
Gibbs Parcel, and by recording a January 10, 2013 quitclaim deed conveying the
Disputed Parcel from National Enterprises, Inc. to them. Id., at 27-30. The Melvilles deny
any bad faith on their part or any notice of Szelestei’s claim to the Disputed Parcel prior
to their recordation of the 2013 quitclaim deed, since the 1992 and 2009 Deeds did not
provide a description with metes and bounds or monuments, and described 11 (not 13.55)
acres. In Szelestei’s reply, however, she asks to reserve the bad faith claim for argument
at trial, if the matter proceeds past summary judgment, or reserves further argument, if
summary judgment is granted. D.I. 25, at 12. Both Szelestei’s bad faith claim and the
Melvilles’ attorneys’ fees claim in their counterclaim will be decided after trial.
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II. Standard of Review
Under Court of Chancery Rule 56, the court grants 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.”4 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. 5 Once the moving party has
satisfied that burden, it falls on the non-moving party to show that there are factual
disputes. Evidence must be viewed “in the light most favorable to the non-moving
party.”6 Summary judgment may not be granted if there is a “reasonable indication
that a material fact is in dispute,” or if the Court determines that it “seems desirable
4
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).
5
Wagamon, 2012 WL 1388847, at *2; Lundeen v. Pricewaterhousecoopers, LLC, 2006
WL 2559855, at *5 (Del. Super. Aug. 31, 2006).
6
Will. v. Geier, 671 A.2d 1368, 1389 (Del. 1996) (citing Merrill v. Crothall-
American, Inc., 606 A.2d 96, 99 (Del. 1992)); CelestialRX Investments, LLC v. Krivulka,
2017 WL 416990, at *12 (Del. Ch. Jan. 31, 2017) (citation omitted); Erickson v.
Centennial Beauregard Cellular, LLC, 2003 WL 1878583, at *2 (Del. Ch. Apr. 11,
2003).
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to inquire more thoroughly into the facts in order to clarify the application of law
to the circumstances.”7
III. Analysis
To grant Szelestei’s Motion, I consider whether she is entitled to judgment
as a matter of law and whether material factual issues exist. Although Szelestei’s
claim pertains to the entire Gibbs parcel, at its core, this action addresses
Szelestei’s and the Melvilles’ competing claims for ownership of the Disputed
Parcel.
Parties “seeking to remove a cloud on title must prevail on the strength of
their own titles and may not rely on the weakness of another’s title.”8 In a dispute
involving deeds, the “construction of a deed is a question of law upon which the
court must rule.”9 “The fundamental rule in construing a deed is to ascertain and
give effect to the intent of the parties as reflected in the language they selected.” 10
The “scope and extent of a grant [of land] contained in a deed depends upon the
7
Cf. Williams, 671 A.2d at 1388-89 (citing Ebersole v. Lowengrub, 180 A.2d 467, 470
(Del. 1962)); Hendry v. Hendry, 2006 WL 1565254, at *7 (Del. Ch. May 26, 2006)
(citation omitted); In re Estate of Turner, 2004 WL 74473, at *4 (Del. Ch. Jan. 9, 2004)
(citation omitted).
8
Smith & H. v. Smith, 622 A.2d 642, 646 (Del. 1993); see also State v. Sweetwater Point, LLC
[hereinafter Sweetwater Point], 2017 WL 2257377, at *8 (Del. Ch. May 23, 2017).
9
Rohner v. Niemann, 380 A.2d 549, 552 (Del. 1977); see also Smith, 622 A.2d at 645.
10
Smith, 622 A.2d at 646; see also Phillips v. State, ex rel. Dep’t of Nat. Res. & Envtl.
Control, 449 A.2d 250, 253 (Del. 1982); Sweetwater Point, 2017 WL 2257377, at *8.
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meaning of the language of the deed, and where that language contains ambiguities
the deed must be read in the light of the intent of the parties as determined by the
facts and circumstances surrounding the transaction.” 11 Ambiguities are resolved
“in favor of the grantee so long as such a construction does not violate any
apparent intention of the parties to the transaction.” 12 However, a “grantor can
convey only such title and interest in land that he actually owns.”13 In construing
deed language, there is an order of preference involving various factors: calls “to
natural monuments take the first priority, then to artificial monuments, then to
courses of distances, then to acreage. Calls to adjoiners [or adjoining properties]
are akin to calls to artificial monuments.”14 However, this order of preference is
not “absolute” but a tool to be used in ascertaining the grantor’s intent. 15
11
Rohner, 380 A.2d at 552.
12
Smith, 622 A.2d at 646 (citing Rohner, 380 A.2d at 552); Richard Paul, Inc. v. Union
Imp. Co., 91 A.2d 49, 53 (Del. Ch. 1952).
13
Scureman v. Judge, 626 A.2d 5, 16 (Del. Ch. 1992), aff’d sub nom. Wilmington Tr. Co.
v. Judge, 628 A.2d 85 (Del. 1993); see also ABC Woodlands, LLC v. Schreppler, 2012
WL 3711085, at *4 (Del. Ch. Aug. 15, 2012).
14
Sweetwater Point, 2017 WL 2257377, at *8; see also McCabe v. Wilson, 1986 WL
15429, at *10 (Del. Super. Dec. 10, 1986) (“primary [preference] for re-establishing the
location of the lands that are the subject matter of a deed or survey is a natural
monument. The next item of preference are monuments other than natural monuments,
such as permanently located stakes or manmade markers. . . . Monuments, including calls
to adjacent boundaries, take precedence over distances and direction calls in a deed”).
15
Sweetwater Point, 2017 WL 2257377, at *8.
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To begin the analysis, I review the relevant deeds in the chains of title. Many
of the deeds are old and unclear, and their descriptions of the land being transferred
use references to adjoining properties. The relevant deeds start with a conveyance
of 149 acres “more or less” from Nathaniel Williams to Clark (“Clark property”),
in a deed recorded on January 9, 1906. 16 Clark transferred 10 acres of that land to
Warner Vanderveldt (“Vanderveldt parcel”) in a deed recorded on February 19,
1907,17 and the remainder – described as 149 acres more or less in the deed – to
Frank Shakespeare (“Shakespeare”) in a deed recorded on May 2, 1909.18
Shakespeare then conveyed his interest in the property to Davis in a deed recorded
on June 18, 1909.19 The next conveyance is critical to this action – Davis
conveyed 112 acres “more or less” of all the lands that were conveyed to him by
Shakespeare to Louis and Susan Portas (“Portas property”), with the following
limitation:
excepting a small lot of land contracted for by Samuel E. Harris on
September 23, 1907 containing fifteen acres . . . and also a small lot
contracted to be sold to Williams Gibbs on September 12, 1907
containing eleven (11) acres, and also a small lot of ten (10) acres sold
16
D.I. 21, at A-036 - A-037.
17
Id., at A-038 - A-039.
18
Id., at A-040 - A-041. Since a grantor cannot convey more than he owns, the land
Shakespeare received from Clark could not include the land previously conveyed by
Clark to Vanderveldt. Therefore, the acreage conveyed to Shakespeare would be reduced
by the amount of land conveyed to Vanderveldt.
19
Id., at A-042 - A-044.
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and conveyed by Thomas V. Clark to Warner Vanderveldt which deed
is dated the eighth day of January A.D. 1907 and of record in the
Recorder’s Office at Dover . . .20
So, the Portas Deed, recorded on January 2, 1910, transferred 112 acres “more or
less” to the Portases, which consisted of all of Davis’ rights to the 149 acres “more
or less” he received from Shakespeare minus 10 acres previously sold by Clark to
Vanderveldt, 15 acres contracted to be sold to Samuel E. Harris (“Harris”) in 1907,
and 11 acres contracted to be sold to Gibbs.
Subsequently, Davis conveyed 18 acres “more or less” to Harris and his wife
in a deed recorded on May 5, 1911 (“Harris parcel”).21 The Melvilles contend the
Harris parcel was purchased by National Enterprises, Inc. (“N.E.”) in a monitions
sale in 1968,22 and was subdivided into three smaller parcels.23
20
Id., at A-045 - A-047.
21
D.I. 24, at B-002 - B-003.
22
Id., at 8. The deed executing the transfer to N.E. due to the monitions sale leaves some
unanswered questions. Although the deed refers to 18 acres (which was the size of the
Harris parcel) and an erroneous description in a deed from Davis to Harris related to the
property, the sale proceeded because of unpaid taxes assessed against “Henry Gibbs and
Mattie Mae Gibbs, his wife,” not Harris. Id., at B-004 - B-006. And it states that “prior
deeds to this property may be found in the Office for the Recording of Deeds, at Dover,
Kent County, Delaware in Deed Record Book L, Volume 20, Page 97,” which does not
appear to be where the Harris Deed is located. Id., at B-005.
23
N.E. sold 2.8429 acres to Robert and Dorothy Wilkie in 1986, which is land that the
Melvilles argue constitute a part of the Harris parcel, because of the metes and bounds
description for that parcel, and the description of that land as a part of the Portas property
in the deed was erroneous. See D.I. 21, at A-056 - A-057; D.I. 24, at 8.
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There appears to be no deed of record between Davis and Gibbs evidencing
the transfer of land pursuant to their contract in 1907, nor any record of subsequent
conveyances of the Gibbs parcel until a quitclaim deed, recorded on July 11, 1992,
was executed by Rachel Brown, an heir of Gibbs, which conveyed 11 acres “more
or less” that was described in the Portas Deed as “contracted to be sold to Williams
Gibbs on September 12, 1907.”24
Over the intervening years, ownership in the Portas property passed through
several hands before N.E. purchased it in 1967 and sold it to the Melvilles in three
separate conveyances of 13.35 acres “more or less” in 1973, 92.08 “+/-” acres in
2012, and 3.6 acres “more or less” in 2013.25
Here, Szelestei claims title to the Gibbs parcel, which encompasses the
Disputed Parcel, through the 1992 deed. She asserts that Gibbs obtained
ownership of the Gibbs parcel in 1907 from Clark. Although she acknowledges
there is no deed of record conveying the Gibbs parcel between Clark and Gibbs,
she relies on the reference to “this conveyance” in the Portas Deed, as well as the
24
D.I. 21, at A-017 - A-018.
25
D.I. 7, Ex. 4, Ex. 1. The 2013 transfer occurred after Kent County advised that in
mapping the parcel the Melvilles purchased in 2012 for tax purposes, a landlocked parcel
of 3.6 acres remained (which the Melvilles assert corresponds in location with the
Disputed Parcel). D.I. 24, at 12-13. N.E. then executed a quitclaim deed to the Melvilles,
which was recorded on January 24, 2013, for 3.6 acres “more or less” to reflect that N.E.
intended to convey its entire ownership interest to the Melvilles. Id. at 13.
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monuments and markers, and its different physical attributes (including the size of
the trees on the Gibbs parcel) from the adjoining parcels, to support her claim. She
further asserts that the Portas Deed shows that the Gibbs parcel was separate from,
and not included in, the Portas property, so the Melvilles have no ownership claim
to the Gibbs parcel. 26
The Melvilles respond that they obtained title to the Disputed Parcel through
the Portas chain of title and, since there is no evidence that the sale of property
between Clark and Gibbs was ever completed, Szelestei has no rights to the
Disputed Parcel. They assert, even if the sale occurred, the Gibbs parcel was
limited to 11 acres by the deed (the acreage was not termed “more or less”) so the
Disputed Parcel’s “extra” 3.6 acres would be conveyed to them through the Portas
chain of title, which encompassed 112 acres “more or less.” And, they conclude
that Szelestei incorrectly relies on stone monuments to show corner boundaries of
the Gibbs parcel.
To grant Szelestei’s motion for summary judgment, I must find that she is
entitled to judgment as a matter of law and that there are no material issues of fact
in dispute. After reviewing the arguments and materials provided by the parties, I
find that ownership in the Disputed Parcel, at this juncture, is, as the saying goes,
26
D.I. 21, at 28-29.
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“clear as mud.” The purpose of this action is to determine ownership of the Gibbs
parcel, which incorporates the Disputed Parcel. To do so, I look at the strength of
Szelestei’s title to the Gibbs parcel overall and, because of Szelestei’s and the
Melvilles’ competing ownership claims for the Disputed Parcel, at the strength of
each party’s title to the Disputed Parcel.
The uncertainty starts with the lack of clear evidence concerning the
conveyance of the Gibbs parcel from Clark to Gibbs. Szelestei points to a
reference to a contract between Clark and Gibbs for the sale of the Gibbs parcel in
the Portas Deed, but that deed transfers ownership of a different piece of property
and does not portend to convey any rights to the Gibbs parcel. That language in
the Portas Deed does show Clark’s intent to sell the Gibbs parcel to Gibbs under
the contract previously entered into, but there is no evidence before me indicating
that the Gibbs parcel was eventually sold to Gibbs. The Portas Deed, through its
language excepting the Gibbs parcel from lands transferred to the Portases,
eliminates any claim that those in the Portas chain of title, including the Melvilles,
have to the Gibbs parcel. Szelestei relies on the 1992 deed conveying the Gibbs
parcel to her from the Gibbs Estate to demonstrate her ownership of the Gibbs
parcel. The problem is that the Gibbs Estate can only convey what land it owned
12
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and there must be sufficient evidence of its ownership of the Gibbs parcel for it to
convey good title.
The Melvilles argue that the Gibbs parcel was never conveyed to Gibbs.
But, they claim, more importantly, the Disputed Parcel was not part of the Gibbs
parcel but was unassigned land (which they learned about in 2012 through the tax
mapping process performed by Kent County), that flowed to them through the
Portas Deed. They base their claim, in part, on a recent survey and through their
review of the relevant deed descriptions. The Portas Deed transferred all of
Clark’s property, except for three parcels of land that were excepted (the
Vanderveldt, Gibbs and Harris parcels), to the Portases. The Portas property was
described as 112 acres “more or less,” while the descriptions of the parcels that
were excepted referred to a specific acreage only (did not include the language
“more or less.” So, the Melvilles conclude the unassigned 3.6 acres were not
included in the other parcels because their size was defined without flexibility, and
they fell within the Portases’ acreage.27 This argument runs contrary to Szelestei’s
claim that the 1992 Deed needs to be reformed to reflect that, according to her
1993 survey, the Gibbs parcel was actually 13.55 acres, not 11 acres. And, without
27
See generally Pryde v. Delmarva Power & Light Co., 2009 WL 388942, at *4 (Feb. 17,
2009) (“When employed in a grant or deed to modify a quantity term, the phrase “more
or less” will account for only minor inaccuracies in measurement.”).
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further discussion, it does not address the discrepancy in the acreage eventually
conveyed to Harris, which was 18 acres and not 15 as described in the Portas Deed.
There is a lack of clarity in the deed descriptions for the Gibbs parcel and
other neighboring properties, with calls based primarily on adjoiners until
relatively recently, and the competing parties relying on differing theories to
support their claims of ownership.28 I find that, at this stage of the proceedings,
there are unresolved material issues about the ownership of the Gibbs parcel and
the Disputed Parcel, and further inquiry into the facts is warranted, in order to
clarify the application of law to the circumstances.
Further, Szelestei alleges that monuments (two stones, a pipe and an axle),
as depicted in her 1993 survey, show the corner boundaries of her property, the
Gibbs parcel. The Melvilles dispute Szelestei’s conclusions, arguing that the stone
monuments Szelestei claims show two corner boundaries of the Gibbs Parcel were,
instead, intended to depict deviations in course of the Melvilles’ adjoining
28
The first deed of any neighboring property to include a description based on courses
and distances (from a survey) was the 1973 conveyance of 13.55 acres between N.E. and
the Melvilles. See D.I. 7, Ex. 4. The first survey of the Gibbs parcel showed monuments
and courses and distances, and was completed in 1993; however, the recorded deeds of
the Gibbs parcel and the Disputed Parcel depict calls only to adjoiners, acreage, and, in
2013, by reference to a tax parcel number. Id., at A-022; A-017 - A-018; A-032 - A-033.
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properties. Many ambiguities remain, based upon the relevant deeds, and claims as
to the significance of monuments, which are not included in the relevant deeds.29
IV. Conclusion
Based upon the reasons set forth above, I find that Szelestei has not met her
burden of demonstrating that no material issues of fact are in dispute and that she is
entitled to judgment as a matter of law, and that it is desirable to inquire more
thoroughly into the facts in this matter. Accordingly, I recommend that the Court
deny Szelestei’s motion for summary judgment. This is a Master’s final report and
exceptions may be taken under Court of Chancery Rule 144.
Respectfully,
/s/ Patricia W. Griffin
Patricia W. Griffin
Master in Chancery
29
In their answering brief, the Melvilles discuss considerations presented in a December
17, 2010 surveyor’s report by William A. Elliott (“Elliott”). Szelestei has filed a motion
in limine to preclude Elliott’s report and testimony at trial. I will address that motion
separately, and did not rely on findings in that report in making this decision.
15