Sussex County v. Patricia Arost, Juliet Tate, Samantha Aros, Martha Ann Parries and Leslie Freeman, Jr. ( 2024 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
SUSSEX COUNTY, )
)
Plaintiff, )
)
v. ) C.A. No. 2021-0226-BWD
)
PATRICIA AROST, JULIET TATE, )
SAMANTHA AROST, MARTHA )
ANN PARRIES and LESLIE )
FREEMAN, JR., )
)
Defendants. )
ORDER RESOLVING MOTION TO COMPEL
WHEREAS:
A. On March 16, 2021, plaintiff Sussex County (“Plaintiff”) initiated this
action through the filing of a Verified Complaint (the “Complaint”). The Complaint
alleges that defendants Patricia Arost, Juliet Arost, Samantha Arost, Martha Ann
Parries, and Leslie Freeman, Jr. (collectively, “Defendants”) have violated the
Sussex County Code by storing unregistered, inoperable vehicles on six parcels of
land in Lincoln, Delaware. Verified Compl. [hereinafter, “Compl.”] ¶ 10, Dkt. 1.
According to the Complaint, beginning in the 1950s, three of those six parcels—the
“Old State Road Properties”—“were the home to Freeman Auto Salvage and
received nonconforming recognition when zoning ordinances were adopted in the
future years[,]” but “at some point several years ago, Defendants discontinued using
the property as a business but continue to store inoperable, dismantled, wrecked, and
unregistered vehicles on the property.” Compl. ¶ 16. Three other parcels—the
“Fleatown Road Properties”—are zoned for residential use and “[t]here is no history
of a business or other activity . . . that would make [them] exempt to the current
zoning laws,” yet “over 23 inoperable vehicles” have accumulated on the properties
in violation of the Sussex County Code. Id. ¶¶ 24-25. Premised on those allegations,
the Complaint asserts claims for public nuisance and violations of the Sussex County
Code. Id. ¶¶ 30-61. Plaintiff seeks an order directing Defendants to remediate the
alleged violations or, if Defendants fail to do so, permitting Plaintiff to hire a
contractor to perform the remediation and charge Defendants for the cost of the
work. Id. ¶¶ 11, 47-48, 59-60. Plaintiff also seeks to enjoin Defendants from
operating the properties “with active nuisance conditions after they are remediated.”
Id. ¶ 61.
B. On November 19, 2021, Defendant Leslie Freeman, Jr. filed an Answer
and Affirmative Defense[s] to the Complaint (the “Answer”). Defs.’ Ans. to Pl.’s
Compl. and Affirmative Defenses [hereinafter, “Ans.”], Dkt. 24. The Answer raises
as an affirmative defense that “Freeman’s Auto Salvage is conducting lawful
business under a current State of Delaware business license and is designated as
nonconforming because of its operational longevity within Sussex County.” Id. at
10; see also id. at 1 (asserting that Freeman Auto Salvage “has been maintained and
operational” from the 1950s “to present” and that “Freemans’ Auto Salvage falls
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under the umbrella of nonconforming” use). The Answer also raises as an
affirmative defense that the “Sussex County Code Department is actively practicing
disparate code enforcement directed negatively toward minority business owners.”
Id. at 9; see also id. at 1 (asserting that Plaintiff has engaged in a “repeated disparate
practice” of enforcing Code violations against “minority-owned businesses in
Sussex County while nearby non-minority owned properties continue to operate
under even more deplorable conditions”).
C. On June 2, 2022, Plaintiff served its First Set of Document Requests to
Defendants (the “Document Requests”) and its First Set of Interrogatories to
Defendants (the “Interrogatories”). Dkts. 31-32.1
D. On July 26, 2022, Plaintiff filed a Motion to Compel Responses to
Discovery (the “Motion”). Pl.’s Mot. To Compel Resps. To Disc. [hereinafter,
“Mot.”], Dkt. 34. Defendants have not filed an opposition to the Motion.
E. On July 28, 2022, Vice Chancellor Glasscock appointed Tasha Stevens-
Gueh, Esquire (the “Special Master”) to act as a Special Master for the purposes of
“(1) reporting to the Court regarding current conditions at the subject properties as
compared to the allegations in the Complaint and (2) recommending a decision on
the Motion.” Dkt. 36 ¶ 1. On December 20, 2022, the Special Master filed a report
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The Document Requests and the Interrogatories are attached as Exhibit A to the Motion.
Each request in the Document Requests is cited herein as “Document Request No. __” and
each interrogatory in the Interrogatories is cited herein as “Interrogatory No. __”.
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addressing the condition of the properties and the Motion. Dkt. 39. On July 25,
2023, Plaintiff filed a letter responding to the Special Master’s report. Dkt. 42.
F. This action was reassigned to me on January 19, 2024. Dkt. 43. On
January 22, 2024, I directed the parties to “confirm whether (1) the Motion is still
pending in all respects, or if any aspect of the Motion has been resolved or otherwise
mooted; and (2) any party requests oral argument, or if I should consider the Motion
submitted for resolution.” Dkt. 44.
G. On January 26, 2024, Plaintiff filed a letter requesting a ruling on the
Motion without oral argument. Dkt. 45 at 2. On January 29, 2024, Defendant Leslie
Freeman, Jr. filed a letter asking the Court to review Defendants’ prior
correspondence with the Special Master. Dkt. 46.
H. Court of Chancery Rule 26(b) provides that “[p]arties may obtain
discovery regarding any non-privileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case . . . .” Ct. Ch. R. 26(a). “The
threshold issue under Rule 26(b) is relevance.” In re Côte d’Azur Est. Corp., 2022
WL 17574747, at *8 (Del. Ch. Dec. 12, 2022). “Although the scope of discovery is
broad, it is not limitless. This court ‘may exercise its sound discretion in delineating
the appropriate scope of discovery.’” Brown v. Matterport, Inc., 2023 WL 3830501,
at *1 (Del. Ch. June 5, 2023) (citation omitted). The Court may limit discovery
“upon its own initiative after reasonable notice . . . .” Ct. Ch. R. 26(b)(1).
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NOW, THEREFORE, IT IS HEREBY ORDERED, this 31st day of January,
2024, as follows:
1. Document Request Nos. 1, 23, 24, and 25 2 and Interrogatory Nos. 1, 2,
16, and 17 3 seek basic information concerning the identity of individuals with
information relevant to the action and trial preparation. The Motion is GRANTED
as to these requests.
2
See Document Request No. 1 (“All documents referred to, relied upon or referenced in
Your Answer.”); Document Request No. 23 (“All documents you intend to rely upon at
trial or in any briefs to be filed in this case.”); Document Request No. 24 (“All documents
relied upon by Your expert(s) in drafting their report(s) submitted in this case.”); Document
Request No. 25 (“All other documents referring, relating or referencing any of the matters
alleged in the Complaint and Answer that have not been requested.”).
3
See Interrogatory No. 1 (“Identify each person who provided information or otherwise
consulted or assisted you in connection with providing answers to these interrogatories,
including an identification of the specific interrogatories for which each person supplied
information or consulted or assisted, the nature of any such consultation or assistance, and
whether the information supplied was based on personal knowledge.”); Interrogatory No.
2 (“Identify each person who provided information or otherwise consulted or assisted you
in connection with providing information used in the Answer, including an identification
of the specific paragraph of the Answer for which each person supplied information or
consulted or assisted, the nature of any such consultation or assistance, and whether the
information supplied was based on personal knowledge.”); Interrogatory No. 16 (“Please
identify all witnesses you intend to call at trial in this case.”).
Interrogatory No. 17 asks that Defendants “identify any expert witness you have consulted
with or intend to call at trial in this case.” Defendants must identify any expert they expect
to call as an expert witness at trial, but they are not required to identify any expert witness
they have consulted. See Ct. Ch. R. 26(b)(4)(A)(i) (“A party may through interrogatories
require any other party to identify each person whom the other party expects to call as an
expert witness at trial, to state the subject matter on which the expert is expected to testify,
and to state the substance of the facts and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion.”).
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2. Document Request Nos. 15, 18, and 21 4 seek information relevant to
Plaintiff’s claims that Defendants have violated the Sussex County Code at the
subject properties. The Motion is GRANTED as to these requests.
3. Document Request Nos. 9 through 13 and 22 5 and Interrogatory Nos. 9
through 11 6 seek information relevant to Defendants’ defense that Plaintiff is
selectively enforcing Sussex County Code violations. Document Request Nos. 2, 3,
4
See Document Request No. 15 (“All documents referring, reflecting or relied upon to
support your position in the Answer that you have responded to Sussex County requests
regarding the Properties.”); Document Request No. 18 (“All documents showing Your
efforts to remediate the Properties.”); Document Request No. 21 (“All photographs,
drawings, diagrams or other graphic illustrations of the Properties in their current
condition.”).
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See Document Request No. 9 (“All documents or other proof you have that supports Your
claim in the Answer that ‘this is a repeated disparate practice applied to minority-owned
business in Sussex County.’”); Document Request No. 10 (“All documents or other proof
you have that supports Your claim in the Answer that ‘non-minority owned properties
continue to operate under even more deplorable conditions.’”); Document Request No. 11
(“All documents supporting Your contention in the Answer that Sussex County shut down
another minority owned auto salvage business.”); Document Request No. 12 (“All
documents supporting Your contention in the Answer that Sussex County is trying to close
down a minority owned boat yard and another repair shop.”); Document Request No. 13
(“All documents referring, reflecting or relying upon to support Your suggestions in the
Answer that Sussex County’s ‘investigation and prosecutions are disparate and perpetuate
institutional racism.’”); Document Request No. 22 (“All documents supporting Your
defenses asserted in this case.”).
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See Interrogatory No. 9 (“Please identify the names of the non-minority owned properties
that you claim continue to operate under even more deplorable conditions than the
Properties.”); Interrogatory No. 10 (“Please identify the name of the minority owned auto
salvage business You claim in the Answer that Sussex County has attempted to or has shut
down.”); Interrogatory No. 11 (“Please identify the name of the minority owned boat yard
and another repair shop that you contend Sussex County tried to close down.”).
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7, 8, 14, 16, 19, and 20 7 and Interrogatory Nos. 3 and 7 8 seek information relevant
to Defendants’ defense that they are conducting a business with a nonconforming
use. The Motion is GRANTED as to these requests.
4. Document Request Nos. 4 through 6 and 17 9 also seek information that
is marginally relevant to Defendants’ defense that they are conducting a business
with a nonconforming use. However, to the extent these requests are not duplicative
7
See Document Request No. 2 (“Copies of any business licenses issued by the State of
Delaware and any County or municipality for the Properties.”); Document Request No. 3
(“Copies of all other documents you are relying upon to show you have been operating an
auto salvage business since the early 1950s as stated in Your Answer.”); Document
Request No. 7 (“All documents You are relying upon or reference Your claim in the
Answer that you have maintained a nonconforming use on the Properties.”); Document
Request No. 8 (“All documents that refer to or reflect your claim in your Answer that ‘Code
Enforcement repeatedly wrongfully cites Residential Codes to our nonconforming licensed
Auto Salvage Business.’”); Document Request No. 14 (“All written communication
(letters, emails, text messages, etc.) between You and anyone representing Sussex County
regarding the use of the Properties in the past five (5) years.”); Document Request No. 16
(“All documents You intend to rely upon in this case demonstrating that the auto salvage
business is ‘operational’ as stated in the Answer.”); Document Request No. 19 (“All
documents referring, reflecting or relating to Your claim in the Answer that the auto
salvage business ‘has been and continues to be in legal operation.’”); Document Request
No. 20 (“All other documents providing that the Properties are not in violation of the
Sussex County Code.”).
8
See Interrogatory No. 3 (“Please identify all years over the past ten (10) years that you
have held a business licenses issued by the State of Delaware and any County or
municipality for the Properties.”); Interrogatory No. 7 (“Please state the total revenue you
obtained from operating an auto salvage business over the past ten (10) years on the
Properties.”).
9
See Document Request No. 4 (“All financial documents for the operating of the business
on the Properties for the past 10 years.”); Document Request No. 5 (“A list of all clients of
the auto salvage business over the past ten (10) years.”); Document Request No. 6 (“Copies
of financial ledgers for the operation of the auto salvage business on the Properties over
the past ten (10) years.”); Document Request No. 17 (“Copies of all registrations for the
vehicles stored on the Properties.”).
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of other requests, they are overbroad and would impose a burden on Defendants that
is not proportional to the needs of this case. The Motion is DENIED as to these
requests.
5. Interrogatory Nos. 4 through 6 and 12 through 15 10 seek information
that is relevant to the claims and defenses in this action but would impose a burden
on Defendants that is not proportional to the needs of this case. In addition,
Interrogatory No. 8 11 is awkwardly drafted and confusing. Under the circumstances,
the subject matter of these requests can be explored more efficiently through
depositions. The Motion is DENIED as to these requests.
6. It appears from correspondence submitted with the Motion that Mr.
Freeman believes a two-year statute of limitations bars Plaintiff’s request for
10
See Interrogatory No. 4 (“Please explain in detail the daily operation of the auto salvage
business on the Properties.”); Interrogatory No. 5 (“Please provide the name and address
of all clients over the past three (3) years.”); Interrogatory No. 6 (“Please provide a list of
all clients of the auto salvage business over the past five (5) years.”); Interrogatory No. 12
(“Please explain in detail Your suggestions in the Answer that Sussex County’s
‘investigation and prosecutions are disparate and perpetuate institutional racism.’”);
Interrogatory No. 13 (“Please explain in detail the basis for your allegation in the Answer
that non-minority businesses and residential properties do not appear to endure the same
threats, citations, and prosecution from Sussex County Code Enforcement to comply or
have their lands taken from them.”); Interrogatory No. 14 (“Please explain in detail the
basis for Your allegation in the Answer Sussex County Code Enforcement is disparate and
perpetuate institutional racism.”); Interrogatory No. 15 (“Please explain all of the defenses
asserted in the Answer.”).
11
See Interrogatory No. 8 (“Please identify the dates of all documents from Sussex County
Code Enforcement which you claim repeatedly, wrongfully cites Residential Codes to our
non-conforming licensed Auto Salvage Business.”).
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documents that are more than two years old. See Mot., Ex. G. A statute of
limitations bars legal claims asserted after a specified period; it has no bearing on
the time frame for the discovery sought here. The time periods identified in
Plaintiff’s discovery requests are reasonable.
7. Within thirty days of the date of this Order, Defendants shall produce
documents in response to the Document Requests and provide substantive responses
to the Interrogatories for which the Motion has been granted.
8. The parties are directed to meet and confer on a case schedule and to
contact chambers for potential trial dates.
9. This Order is a final report under Court of Chancery Rules 143 and 144.
In the interest of judicial and litigant economy, exceptions are stayed pursuant to
Court of Chancery Rule 144(f).
/s/ Bonnie W. David
Bonnie W. David
Magistrate in Chancery
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