CTC East, LLC v. Steven Goldstein and Barry N. Lipsy

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN THE MATTER OF THE REAL )
ESTATE OF: )
)
CTC EAST, LLC, A DELAWARE )
LIMITED LIABILITY COMPANY, ) C.A. No. 2019-0916-SEM
)
Petitioner, )
)
v. )
)
STEVEN GOLDSTEIN and BARRY N. )
LIPSY, Personal Representative of the )
Estate of Karen Lipsy and Trustee of The )
Karen G. Lipsy Revocable Trust, U/A/D )
November 11, 2019, )
)
Respondents. )
MASTER’S FINAL POST-TRIAL REPORT
Final Report: September 30, 2022
Date Submitted: June 16, 2022
Phillip A. Giordano, Charles P. O’Brien, and Madeline Silverman, GORDON
FOURNARIS & MAMARELLA, P.A., Wilmington, Delaware; Counsel for
Petitioner.
Charles J. Brown, GELLERT SCALI BUSENKELL & BROWN, LLC,
Wilmington, Delaware; Counsel for Respondent Steven Goldstein.
Scott G. Wilcox, MOORE & RUTT, P.A., Wilmington, Delaware; Counsel for
Respondent Barry N. Lipsy.
MOLINA, M.
Wedged between the Christiana Town Center and the Christiana Mall, sits an
undeveloped parcel of commercial property. Owned by the late Jacob Goldstein, the
parcel was passed down to his family, who held it as a potentially lucrative
investment. Three have recently “cashed in” on their investment by selling their
interests to the owner and developer of adjoining land. Through this action that
developer seeks to partition the property to break its co-ownership with the
remaining co-owners. The developer advocates for partition in-kind, a physical
division of the land into a 60/40 split. One co-owner has no objection; the other
argues that division in kind would be determinantal to the co-owners’ interests and
requests partition by sale. After a two-day trial, for the reasons provided herein, I
find the property should be partitioned in kind.
I. BACKGROUND1
The contested property is an undeveloped 3.65-acre tract of land located at
701 W. Main Street, Newark, Delaware (the “Property”).2 The Property, currently,
1
The facts in this report reflect my findings based on the record developed at trial on March
1 and March 2, 2022. See Docket Items (“D.I.”) 55-56. I grant the evidence the weight
and credibility I find it deserves. Citations to the trial transcripts are in the form “Tr. #.”
D.I. 55-56. The parties’ jointly submitted exhibits are cited as “JX--” As explained at the
conclusion of trial JX1-7 and 12-15 were admitted, JX10-11 were admitted only for the
limited purposes used at trial, and JX8-9 were not admitted. Tr. 228:11-16.
2
D.I. 50, III. ¶ 7.
“is a flat vacant piece of land covered with weeds and high grass.”3 But it was not
always that way. Initially “[t]here was woodland and ravines in it, and it could only
be accessed through little roads from adjoining residential neighborhoods.”4 But
“[s]tarting in the late 1990s, Frank Acierno, . . . cleared all the land. He filled it in
with fill and increased the level of the land about 5 feet and closed off the access . .
. through the adjacent residential neighborhood.”5 Mr. Acierno also “asked the
County to rezone” the Property to commercial.6 But even with the rezoning, the
Property contains some areas that are not developable. These areas include a riparian
buffer, with prohibitive slopes and precautionary slopes.7
3
Tr. 34:18-21. See also Tr. 7:18-20 (“It’s just a field.”).
4
Tr. 35:22-36:2.
5
Tr. 37:1-6. See also Acierno v. Goldstein, 2004 WL 1488673, at *6 (Del. Ch. June 25,
2004) (quoting Mr. Acierno’s statements regarding clearing the Property). The Delaware
Uniform Rules of Evidence allow the Court to take judicial notice of “the records of the
court in which the action is pending and of any other court of this State or federal court
sitting in or for this State.” D.R.E. 202(d)(1)(C).
6
Tr. 37:11-13. See also Tr. 24:22-24, Tr. 95:17-19.
7
Tr. 88:8-17. See also Tr. 202:12-203:1. As explained by expert witness Dev Sitaram, a
riparian buffer “is a buffer next to a floodplain and wetlands.” Tr. 88:10-12. Mr. Sitaram
further explained that prohibitive and precautionary slopes are regulated by New Castle
County, with prohibitive slopes “100 percent not developable[,]” but “precautionary slopes
have some development potential, meaning some of the precautionary could be disturbed.”
Tr. 88:12-17.
2
As depicted below in Figure A, the Property sits in the middle of a heavily
developed area which boasts the Christiana Mall, the Christiana Town Center, and
Christiana Fashion Center.8
Figure A, JX4, p.17 (emphasis added).
In Figure A, the Property is the area highlighted in yellow. Directly above the
Property is another undeveloped parcel, which is owned by CTC East, LLC
8
See Tr. 10:18-11:1. As further explained by expert witness John J. Coyle, the Property “is
contained within the larger Christiana Town Center. The Christiana Town Center is a +/-
67.66 acre, 456,000 square foot retail facility anchored by Boscov’s, Albi, Buy Buy Baby,
Planet Fitness, Joann Fabrics, Bed Bath & Beyond and Old Navy. The center includes a
Bertucci’s Restaurant, Famous Dave’s Barbeque, and Red Robin Restaurant.” JX4, p.3.
3
(“CTC”).9 That parcel and the Property sit on West Main Street, which provides
access to Route 273.10 West Main Street is a private road owned by Christiana Town
Center, LLC, an affiliate of CTC, which “has not been completed”; once completed,
it will join Eagle Run Road and Route 7 and become a public thoroughfare.11
A. Historical ownership of the Property
The Property was owned by the late Jacob Goldstein who passed on October
3, 1979, and willed the Property to his five nieces and nephews (the “Family
Owners”).12 One of the Family Owners, Steven Goldstein (“Goldstein”), explained
that the Property “was a long-term investment for all of [the Family Owners].”13
When he inherited the Property, “Interstate 95 was only a few years old at the
time[,]” and “[t]here was talk about . . . Christiana Mall being built.”14
But around 2000, Mr. Acierno filed an action in this Court contesting the
Family Owners’ interests and asserting a claim to the Property by way of adverse
9
See Tr. 91:1-8.
10
Tr. 12:8-21.
11
Tr. 12:22-13:15. See also Tr. 96:7-16, 104:13-24.
12
See Tr. 34:10-17; In re Goldstein, 74651 (“ROW”), D.I. 4, 6. Arot v. Lardani, 2018 WL
5430297, at *1 n.6 (Del. Ch. Oct. 29, 2018) (citing 12 Del. C. § 2501; Del. R. Evid.
202(d)(1)(C)) (“Because the Register of Wills is a Clerk of the Court of Chancery, filings
with the Register of Wills are subject to judicial notice.”). But see Tr. 34:24 (Goldstein)
(testifying that his uncle died in 1970).
13
Tr. 35:12-16.
14
Tr. 35:16-20.
4
possession.15 The Family Owners counterclaimed for “trespass to land, to chattels,
and to timber, and for conversion, ejectment, a mandatory injunction compelling
Acierno to return the property to its original condition and a declaratory judgment
quieting title.”16 Mr. Acierno’s attempt to dismiss the counterclaims, for judgment
on the pleadings, and for summary judgment failed and the matter was set for trial.17
But “[a] few weeks before trial,” Mr. Acierno “moved to dismiss his claim for
adverse possession.”18 Vice Chancellor Parsons granted the motion and pushed
forward with trial on October 28 and 29, 2004, to determine:
(1) whether [the Family Owners] [we]re entitled to attorneys’ fees
under the bad faith exception to the American Rule for having to defend
against [Mr.] Acierno’s adverse possession claim; (2) what, if any,
damages [the Family Owners] [we]re entitled to for [Mr.] Acierno’s
trespass to timber on the [Property]; (3) whether [the Family Owners]
[we]re entitled to either (a) a declaratory judgment restoring access to
15
Tr. 38:3-5. See generally Acierno v. Goldstein, 2004 WL 1488673, at *1. This was not
the first time the Property was addressed in this Court; as recognized by Vice Chancellor
Parsons, one of the Family Owners filed a partition action on April 8, 1998. Id. at *2. The
outcome of such action is unclear. Mr. Goldstein also testified that Mr. Acierno contacted
some of the Family Owners “[s]everal years before” his lawsuit “to acquire the [P]roperty.
And when he was rejected that’s when he started his adverse possession claim.” Tr. 39:12-
17.
At trial, CTC objected to the relevance of the 2005 action and Mr. Acierno’s
connection to the Property or CTC. Tr. 20:13-21:11. I overruled the objection and find this
background helpful in understanding the composition of the Property, the access easement,
and the parties’ respective interests. My holding, however, is not otherwise swayed or
informed by the 2005 action or Mr. Acierno’s involvement.
16
Acierno v. Goldstein, 2004 WL 1488673, at *1.
17
See generally id.; Acierno v. Goldstein, 2005 WL 3111993, at *1 (Del. Ch. Nov. 16,
2005).
18
Acierno v. Goldstein, 2005 WL 3111993, at *1. See also Tr. 38:3-19.
5
[the Property] or (b) an easement by necessity over [Mr.] Acierno’s
land because [the Property was] landlocked; and (4) whether [Mr.]
Acierno [was] entitled to attorneys’ fees under the bad faith exception
to the American Rule for having to defend against [the Family Owners’]
counterclaims.19
After careful analysis, Vice Chancellor Parsons answered those questions as follows:
(1) yes, in part (25%), because of misrepresentations Mr. Acierno made in his
complaint and discovery responses,20 (2) none, because the claims were time-barred
and the Family Owners failed to prove damages;21 (3) no to restoration but yes to an
easement over “the proposed relief route connector” (now known as West Main
Street);22 and (4) no. Altogether, Vice Chancellor Parsons quieted title in favor of
the Family Owners, ordered Mr. Acierno to vacate the Property, and enjoined future
trespasses.23
At the time of Vice Chancellor Parsons’ decision, the Family Owners
consisted of Ronald Goldstein, Steven Goldstein, Karen Lipsy, Barbara Goldstein,
and Lawrence Goldstein, each with equal 20% shares.24 After that case concluded,
on July 12, 2013, Barbara Goldstein passed intestate, leaving her 20% share to
19
Acierno v. Goldstein, 2005 WL 3111993, at *2.
20
Id. at *3-*4.
21
Id. at *4-*7.
22
Id. at *11-*12.
23
Id. at *13.
24
Id. at *1.
6
Lawrence Goldstein (bringing his interest to 40%).25 Then on September 22, 2017,
Lawrence Goldstein and Ronald Goldstein sold their shares (40% and 20%,
respectively) to CTC.26
CTC is a Delaware limited liability company affiliated with Mr. Acierno.27
James Oeste, the Vice President of Real Estate for CTC testified that the Acierno
family was involved in the decision making to purchase an interest in the Property.28
Mr. Oeste further explained that CTC owns or is affiliated with the owners of the
parcels surrounding the Property.29 Mr. Oeste explained CTC “want[s] to continue
[its] development through the rest of [its] property[,]” and, thus, purchased a 60%
interest in the Property “to finish the project.”30
25
See D.I. 3, ¶ 8.
26
D.I. 50, III. ¶ 14.
27
D.I. 50, III. ¶ 1; Tr. 20:9-10.
28
Tr. 22:12-19.
29
JX3, p.8. Mr. Oeste explained he is also Vice President of Real Estate for Allied
Properties, an affiliate of CTC, and identified some other affiliates as Christiana Town
Center, LLC and Christiana Fashion Center. Tr. 5:19-22, 11:2-8.
30
Tr. 11:9-19. Mr. Oeste testified that only 60% was available for sale. Tr. 11:20-23.
Goldstein, however, appears to disagree. He testified that there were only two times when
inquiries were made to purchase his share of the Property: “Several years before Mr.
Acierno asserted his adverse possession, he contacted [the Family Owners]” and “starting
about ten years ago, [Goldstein] got phone calls from a real estate agent in Wilmington
representing CTC to purchase the [P]roperty.” Tr. 39:9-21. Goldstein explained that both
times the Family Owners “weren’t ready to sell” but “were still willing to take offers if
they wanted to make any.” Tr. 39:22-40:4. But since then, including during this litigation,
Goldstein testified that CTC has not offered to buy his or the Trust’s shares. Tr. 46:22-
47:12.
7
With the 2017 conveyance, CTC acquired and has since enjoyed a 60% share
of the Property.31 Later, on January 3, 2020, Karen Lipsy passed and willed her
interest in the Property to the Karen G. Lipsy Revocable Trust U/A/D November 11,
2019 (the “Trust”, together with Goldstein, the “Respondents”).32 Thus, the
remaining 40% is held in equal shares by Goldstein and the Trust.33 Such is how the
Property presented in this action—with CTC, the 60% owner, seeking partition of
the Property in kind, to separate its joint interests with Goldstein and the Trust. The
Trust does not oppose the request; Goldstein contends partition in kind would be
detrimental to the co-owners’ interests and the Property should be sold at auction
31
D.I. 50, III. ¶ 14.
32
D.I. 50, III. ¶ 4-5.
33
D.I. 50, III. ¶ 5-6. Although the record is not abundantly clear, there appears to be a
dispute regarding the Trust’s interest in the Property. Per Goldstein, “it’s been claimed that
[he has] a right” to buy the Trust’s interest in the Property arising from “the trust documents
of [his sister],” but he has not seen the trust documents to confirm. Tr. 47:19-23. Goldstein
explained that he learned of his potential interest “six, seven months after” his sister passed.
Tr. 73:19-23. But his “brother-in-law, the trustee, has refused to show [him] the trust
document, which purportedly gives [him] rights under [the Trust].” Tr. 74:15-18. Although
still unclear, Goldstein is trying to exercise his rights to purchase the Trust’s share. Tr.
47:24-48:2. He filed a lawsuit in Maryland to keep the trustee of the Trust “from selling
[the Property] to anyone else before [Goldstein] can exercise whatever rights [he has] under
[the Trust.]” Tr. 48:22-49:7. Goldstein makes reference to a “TRO, which [he] obtained
from the Maryland court[,]” but otherwise it is unclear to me where this matter currently
stands. Tr. 49:6-7.
8
instead.34 Specifically, Goldstein is concerned that the partitioned parcels would not
be as valuable as the Property as a whole.35
B. Posture
CTC filed its petition for partition on November 14, 2019, which was
amended on June 10, 2020 to reflect the Trust’s inherited interest.36 The
Respondents answered, and Goldstein counterclaimed for unjust enrichment on July
24, 2020 (the “Counterclaim”).37 On March 29, 2021, I issued an order dismissing
the Counterclaim finding Goldstein failed to plead a reasonably conceivable claim
for unjust enrichment.38 No exceptions were filed.
34
Goldstein explained that he is “not a developer[,]” and wants “to have the [P]roperty sold
to a developer for the most value that [the Respondents] can get for it.” Tr. 44:2-6. See
also Tr. 50:11-16 (“I’m a lawyer. I don’t develop real estate, commercial shopping
centers.”). But Goldstein testified that “there’s only one potential purchaser” of the
Property: CTC. Tr. 35:8-11, 44:22-45:7 No one other than CTC has ever offered to
purchase the Property from Goldstein. Tr. 40:5-8.
35
Goldstein was not forthcoming with the entire basis for his objection. In response to an
interrogatory asking him whether he objected to a partition in-kind, he answered:
“[Goldstein] does object to the Property being portioned in kind. [Goldstein] has concerns
that if the Property were to be portioned, the portion of the Property that [Goldstein] would
receive would be unable to be developed and would be rendered essentially valueless.” See
Tr. 51:23-52:12; JX1, p.8-9. He confirmed his answer at his deposition. See Tr. 54:16-55:6,
56:19-58:4. But see Tr: 77:1-7 (quoting and referencing deposition testimony that
Goldstein gave explaining his interrogatory responses did not include details from
documents submitted thereafter). But at trial he testified that he “wouldn’t say that’s the
only reason. That’s kind of a narrow—a narrow reason. You can make it a lot broader
answer.” Tr. 51:2-8. Yet Goldstein never did provide his “broader answer” during trial.
36
D.I. 1, 3.
37
D.I. 4.
38
D.I. 22.
9
On September 23, 2021, I issued a scheduling order for this matter to be heard
starting March 1, 2022.39 The two-day trial concluded on March 2, 2022, and post-
trial briefing was completed on June 16, 2022, at which time the matter was
submitted for my consideration.40 This is my final report.
39
D.I. 31.
40
D.I. 62. At trial, the parties presented three (3) expert witnesses: Dev Sitaram, Ted C.
Williams, and John J. Coyle. See also JX3-6 (expert reports). Each expert was well
qualified and impressive.
Mr. Sitaram has “a bachelor’s in civil engineering and a master’s in civil
engineering as well as a master’s in business administration.” Tr. 81:2-4. He is a registered
professional engineer in Delaware, Pennsylvania, and Maryland, and the president and
principal of Karins and Associates. Tr. 81:14-16, 82:6-12. Mr. Sitaram has “been in land
development and land use matters pretty much from the start of [his] career.” Tr. 83:5-7.
He and his company specialize in land development and subdivision engineering. Tr. 83:8-
9. In that capacity, he has worked on various projects including retail, commercial,
residential, and industrial. Tr. 83:19-23. He has worked on “between ten and a hundred”
restaurant-related projects and is “very familiar with the land development process and the
New Castle County Code, which regulates the development of land in New Castle County.”
Tr. 84:2-5, 12-15. He is also familiar with “regulations of the State of Delaware for land
development.” Tr. 84:16-19. Mr. Sitaram also has experience in this Court. He was
appointed by Vice Chancellor Laster to serve as an expert witness in Zdeb v. Walker, C.A.
No. 2018-0604-JTL, an in-kind partition action. Tr. 86:7-12. See also Zdeb v. Walker,
2020 WL 7185640, at *2 (Del. Ch. Dec. 4, 2020) (ordering partition in kind in accordance
with Mr. Sitaram’s plan); Zdeb v. Walker, 2021 WL 979534, at *1 (Del. Ch. Mar. 12, 2021)
(adopting metes and bounds descriptions prepared by Mr. Sitaram).
Mr. Williams has “a bachelor of science degree from Drexel University in civil
engineering.” Tr. 142:17-18. He is a registered engineer in Delaware and Maryland and
has been “working in the engineering field since 1977.” Tr. 143:4-10. He is currently the
president and chairman of Landmark Science and Engineering. Tr. 143:11-16. In his
career, he has been involved in a number of commercial center developments that included
pad site restaurants. Tr. 147:20-24. And, in 2020, he was awarded the honor of engineer
of the year by the Delaware Engineering Society. Tr. 144:10-14.
Mr. Coyle has a “bachelor of science degree in business administration from St.
Joseph’s University of Philadelphia, Pennsylvania[,]” and “a master of science degree in
real estate and urban development planning from the American University in Washington,
D.C.” Tr. 168:16-21. He “grew up in the real estate business[,]” is a licensed real estate
10
II. ANALYSIS
Despite the long, contentious history of the Property, the question presented
here is narrow: is partition in kind “detrimental to the interests of the parties” under
25 Del. C. § 729, such that the Property should be partitioned by sale? I find the
partition in kind is not detrimental to the parties’ interests and CTC’s proposed
partition is fair and equitable. Thus, I recommend judgment be entered in favor of
CTC, and the Property partitioned as proposed by CTC.
A. Goldstein has failed to overcome the statutory presumption in
favor of partition in kind.
“The Delaware partition statute recognizes the common law equitable right
to sever concurrent ownership interests in the same real property.”41 Because of the
unique nature of real property, “the Delaware statute continues the common law
preference for a physical, in kind, division of the real property that makes ‘a just and
broker and “certified general real estate appraiser” in Pennsylvania, Delaware, New Jersey,
New York, Colorado, and Texas. Tr. 169:8-18. Currently, he is the president and owner
of Coyle, Lynch & Company, an appraisal business, and the co-owner of the Henderson
Group, a real estate development group. Tr. 173:14-21. His appraisal company has an
office in Media, Pennsylvania, but he and his staff often work in New Castle County,
Delaware. Tr. 171:5-18. They value various types of properties ranging from small tracts
of land, to single-family dwellings, office buildings, shopping centers, and refinery-related
assets. Tr. 171:20-172:10.
41
Peters v. Robinson, 636 A.2d 926, 929 (Del. 1994). See also Kuck v. Cropper, 1978 WL
22465, at *3 (Del. Ch. Dec. 5, 1978) (“It is [a] well-established principle that the right of
partition between cotenants is an absolute right.”) (emphasis in original). “This absolute
right, however, is subject to some limitations.” Id.11
fair partition thereof amongst the parties.’”42 Thus, under 25 Del. C. § 729, partition
by sale may only be granted “if it is shown otherwise to the Court that partition of
the premises will be detrimental to the interests of the parties entitled[.]”43 The party
seeking a sale, rather than in-kind division, (here, Goldstein) bears the burden of
proving such detriment.44
Partition may be detrimental where, for example, “the co-owners would lose
a substantial portion of their current market value if the property were
divided in kind” or “the small size and nature of the property makes it physically
impracticable to divide that property into portions.”45
These principles were demonstrated in In re Real Estate of Jamies’s LLC,
2006 WL 644473, at *4 (Del. Ch. Mar. 1, 2006). There, an expert witness testified
“that the highest-value use of the [p]roperty [was] as commercial property and that
the [p]roperty [was] too small to be subdivided into two commercial parcels. Thus,
the [expert] explained the aggregate value of the [p]roperty subdivided [was] less
than the value as a single unit.”46 Relying on this unchallenged testimony, the master
42
Peters, 636 A.2d at 929 (citations omitted).
43
25 Del. C. § 729.
44
In re Wapniarek, 1986 WL 9611, at *3 (Del. Ch. Sept. 2, 1986) (citations omitted).
45
Chase v. Chase, 2021 WL 3930443, at *5 (Del. Ch. Aug. 30, 2021), adopted (Del. Ch.
2021) (citations omitted).
46
In re Real Est. of Jamies’s LLC, 2006 WL 644473, at *3.
12
held and then-Vice Chancellor Strine affirmed “that a partition in kind would fail to
achieve an equitable division and would harm the parties entitled to the [p]roperty
by failing to maximize the value of the [p]roperty.”47 Thus, the property was
partitioned by sale.48
Similarly in In re Wapniarek, 1986 WL 9611, at *3 (Del. Ch. Sept. 2, 1986),
then-Vice Chancellor Berger found “that partition in kind would be detrimental to
the interests of the cotenants[,]” where “[t]he parcels [we]re irregular in shape,
[we]re not contiguous and [we]re not susceptible to a six way division that would
provide each cotenant with his or her fractional share of the parcels’ value.
Moreover, if the parcels were partitioned, they would lose a substantial portion of
their current market value.”49 In making this holding, then-Vice Chancellor Berger
relied on unrebutted expert testimony that the property as a whole would be more
valuable than as subdivided, and that the highest and best use would be rezoning and
developing the property as a whole.50
47
Id. at *4.
48
Id.
49
Wapniarek, 1986 WL 9611, at *3.
50
Id. See also Wingate v. Walker, 2004 WL 74474, at *2 (Del. Ch. Jan. 12, 2004) (ordering
partition by sale because “the two small residential lots in question cannot be partitioned
physically into ten pieces with independent value, in the aggregate, equal to the value of
the lots”).
Goldstein cites a case from the Supreme Court of Georgia, Chaney v. Upchurch,
278 Ga. 515 (Ga. 2004), in support of a partition by sale. In some ways, Chaney is
comparable. The 101.7-acre property at issue passed through intestacy to several family
13
I find Jamies’s LLC and Wapniarek distinguishable. Unlike the parties
seeking a sale in Jamies’s LLC or Wapniarek, Goldstein has not presented
affirmative evidence supporting a finding that the aggregate value of the Property
subdivided is less than the value as a single unit. Such was Goldstein’s burden and
he failed to adduce evidence to meet it. Goldstein’s only expert witness, Ted C.
Williams, is not an expert in appraising real estate and did not offer any opinion
regarding the value of the Property, as a whole or based on the proposed partition.51
member owners, some of whose interests were acquired over time by a non-family
member. Id. at 515. Ultimately, the non-family member acquired 43% and sought partition
of the tract of land. Id. But unlike here, the non-family member owner wanted partition by
sale and the family members wanted, instead, an in-kind division. Id. Complicating the
matter was that the property was zone agricultural, which required, in part, each parcel to
be “at least five acres in size with a minimum of 50 feet of frontage on a public road[.]” Id.An expert surveyor concluded that an in-kind division would not be approved by the county
because it would result in lots that were too small and had inadequate frontage. Id. The trial
court accepted this as unchallenged expert opinion and found that “division in kind would
result in fractional owners with devalued property” making an in-kind partition less “just
and equitable.” Id. The Supreme Court of Georgia affirmed that trial court ruling and
ordered that the property be sold. Id. Unlike Chaney, however, there are no such bars to
developing the Property; as discussed herein, Mr. Sitaram presented potential development
plans, which have not been rebutted, and Goldstein has failed to present any affirmative
evidence that the Property as partitioned would be less valuable than as a whole.
51
Tr. 155:12-24. See also Tr. 61:10-13. Yet, Goldstein testified that he based his objections
to the proposed partition on Mr. Williams’ expert report. Tr. 65:3-66:9. Mr. Williams also
prepared a concept plan for the Property as whole. See Tr. 152:24-153:10; JX10-11. Mr.
Williams prepared one plan featuring a large retail space and another plan featuring two
separate pad site restaurants. JX10 (featuring the large retail space); JX11 (featuring the
two separate pad site restaurants). Mr. Williams confirmed, however, that he was not
offering any expert testimony on how the Property could be developed; he was providing
“[j]ust a review of a report prepared by Mr. Sitaram.” Tr. 154:24-155:5.
14
CTC, conversely, presented persuasive testimony from their expert witness
John J. Coyle.52 Like Mr. Williams, Mr. Coyle did not value the Property either as
a whole or in subdivided parcels.53 Rather, he concluded “it would be better to look
at what the dynamics are that would affect how such an estimate would be
developed” and compare whether those dynamics would affect the Property
differently as a whole or in 60/40 parts.54 Ultimately, Mr. Coyle concluded that the
52
Goldstein belatedly sought to exclude Mr. Coyle’s expert testimony through his post-
trial brief. D.I. 60. Therein he argues “Mr. Coyle’s report and testimony omit any valid
reasoning or reliable methodology” and “Mr. Coyle’s analysis not only is devoid of the
data that one would need to test his conclusions, but his analysis is at odds with common
sense as well.” Id. at p.22. But this challenge is untimely. Under my September 23, 2021
schedule, any motions in limine were due by January 14, 2022; no motion was filed to
exclude Mr. Coyle’s report or preclude his anticipated testimony. See D.I. 31. Goldstein
also had an opportunity to identify evidentiary issues in the pretrial order but failed to
identify any concerns with Mr. Coyle’s report or anticipated testimony. D.I. 46. And,
finally, Goldstein failed to object at trial. Having remained silent at these three crucial
moments, Goldstein cannot now challenge the admissibility of Mr. Coyle’s expert
opinions. See Beard Rsch., Inc. v. Kates, 8 A.3d 573, 593 (Del. Ch. 2010), aff’d sub
nom. ASDI, Inc. v. Beard Rsch., Inc., 11 A.3d 749 (Del. 2010) (finding that defendant’s
challenge to expert testimony was not timely because it was not raised in the pretrial
proceeding or the trial itself.). Goldstein’s objections will, however, be addressed to the
extent they go to weight rather than admissibility. See Perry v. Berkley, 996 A.2d 1262,
1271 (Del. 2010) (“We recognize that, as a general rule, the factual basis of
an expert opinion goes to the credibility of the testimony, not the admissibility, and it is for
the opposing party to challenge the factual basis of the expert opinion on cross-
examination.”).
53
See Tr. 176:19-177:3.
54
See Tr. 177:7-18.
15
aggregate value and utility of the proposed subdivided parcels is the same as the
value and utility of the Property as a whole.55
Goldstein takes issue with Mr. Coyle’s opinions. Initially, Goldstein argues
that Mr. Coyle’s inability to appraise the Property in the traditional sense supports a
forced sale. But in doing so, Goldstein attempts to shift his burden of proof to CTC.
And the case he cites in support, Pruitt v. Pruitt, 298 S.C. 411 (S.C. 1989), is neither
binding nor persuasive.56
Goldstein’s strongest argument that partition in kind would be detrimental to
the co-owners’ interests is that the smaller proposed parcel would not be large
enough for certain types of development, namely commercial lodging and heavy
retail, which would arguably be permissible if the Property were not partitioned in
55
Tr. 203:23-204:9. He did so after personally inspecting the Property and surrounding
areas, reviewing the New Castle County Unified Development Code (the “UDC”), the New
Castle County comprehensive plan, and Mr. Sitaram’s plans, and then applying that
information to the factors that drive the value of a property. Tr. 181:8-183:11, 186:16-23.
Mr. Coyle looked at the factors of utility, scarcity, desire, and effective purchasing power
and the principles of anticipation, change, supply and demand, substitution, balance, and
externalities in reaching his conclusion. Tr. 186:16-188:15, 190:2-4, 8-14.
56
In Pruitt v. Pruitt, the South Carolina Court of Appeals ordered partition by sale because
there was “disparate testimony as to the value of the subject property[.]” 298 S.C. at 415.
Here, only one person testified regarding valuation—Mr. Coyle. Goldstein may disagree
with his expert opinions but has presented nothing in rebuttal. Goldstein also argues that
Mr. Coyle failed to consider the additional benefit to CTC and adjoining property through
the proposed partition. But I struggle to appreciate why such would be a relevant inquiry.
The question is whether partition in kind would be detrimental to the co-owners of the
Property vis-à-vis their interests in the Property.
16
kind.57 But even assuming these uses are available to the Property as a whole,
Goldstein has failed to present evidence showing that the loss of such uses through
partition is “detrimental” under Delaware law.
Rather, I find persuasive Mr. Coyle’s testimony that such loss is not
detrimental. Based on his analysis, Mr. Coyle opined that “commercial use that’s
consistent with the balance of the CTC center” would be the highest and best use of
the Property.58 Thus, Mr. Coyle testified there would be no diminution in value to
the proposed 40% parcel in being unable to develop heavy retail and service or
commercial lodging.59 In Mr. Coyle’s opinion, “those uses are not truly the highest
57
Tr.128:15-129:12. There appears to be some dispute about whether commercial lodging
would be an available use for the Property as a whole. See Tr. 217:5-24. But I decline to
address it as irrelevant to my ultimate findings and recommendation.
58
Tr. 190:20-21. Mr. Coyle’s analysis of highest and best use “consider[ed] alternative
programs of utilization which are: [l]egally permissible, and in compliance with zoning
and other land use controls, deed restrictions, or other similar constraints; [p]hysically
possible, based on the adaptability and utility of the land and improvements proposed or
actually in place; and [e]conomically feasible, and fulfilling an identifiable demand in the
market.” JX4, p.4.
59
See Tr. 193:12-23, 195:12-22. Mr. Coyle testified “not having two acres, in my opinion,
is not an impediment to the reasonableness of this distribution.” Mr. Coyle found “to a
reasonable degree of professional certainty within the field of real estate valuation and land
development that the proposed partition of the [Property] does not diminish the pro rata
share of either of the 60% interest or the 40% interest.” JX4, p.7. Stated another way, per
Mr. Coyle “the aggregate value and utility of the 1.477 acre site and the 2.173 acre site is
the same as the value and utility of the 3.650 acre site as a single property.” JX4, p.8.
17
and best use” of the Property and “those uses, in [his] opinion, could detract from
the value of the entirety.”60
Goldstein also appears to argue that equitable considerations weigh in favor
of partition by sale. In support he quotes from Zimmerman v. Marsh, 365 S.C. 383(S.C. 2005), a decision from the Supreme Court of South Carolina. There, the
appellate court found that partition by sale was not warranted and that partition by
allotment should have been granted instead.61 In so holding, the court noted “[w]e
find it troublesome that [one side] purchased their interest [in the property] with the
knowledge that [their co-owner] would be unwilling to sell the property and with the
apparent intention to seek an immediate partition of the property.”62 This note
reflected one of the equitable considerations relevant to the court’s decision whether,
under a South Carolina statute, “partition in kind or by allotment [could] be fairly
60
Tr. 194:17-20. Specifically, Mr. Coyle testified that heavy retail included a fuel dealer
or automobile service center, which he believes may negatively affect the balance of the
overall area. Tr. 210:7-211:15. See also Tr. 219:6-9 (Coyle) (“If you start leasing to some
of these tenants that are listed under the heavy commercial, I think you’re going to demean
the quality of the center.”). He also concluded that the Property would not be a “good site
for a hotel” because it is too “far off the main highway” and there are twenty (20) hotels in
a three-mile radius, plus “two additional proposed hotels for the area.” Tr. 198:3-24. I find
Goldstein’s attempts to rebut Mr. Coyle’s hotel conclusions through his post-trial brief
unpersuasive. See D.I. 60, p.22-23.
61
The dissenting justice in Zimmerman explained that partition by allotment means “to
‘allot’ a portion of the property to one of the owners, with the remainder held jointly by the
other owners or sold with the proceeds divided among the owners.” Zimmerman, 365 S.C.
at 389 (citing Few v. Few, 242 S.C. 433, 440 (S.C. 1963); Bennett v. Floyd, 237 S.C. 64,
73 (S.C. 1960)).
62
Id. at 387.
18
and impartially made . . . without injury to any of the parties in interest[.]”63
Ultimately, the court found that partition by allotment was “the most equitable
result[,]” and ordered on remand that the property be valued so that one side could
buy out the other.64 In doing so, the dissenting justice in Zimmerman characterizes
the court as effectively ordering “a private rather than a public sale” of the property.65
Zimmerman is distinguishable in numerous ways. First, unlike the South
Carolina statute, Delaware’s statutory scheme for partitions does not expressly
permit, let alone prioritize, partition by allotment.66 Second, the court used the
equitable considerations of the new co-owners’ motivations to allow a co-owner to
retain the property. Here, Goldstein seeks to avoid the statutory presumption in
Delaware of an in-kind distribution and force a sale (the opposite result). Third, and
63
S.C. CODE ANN. § 15-61-50.
64
Zimmerman, 365 S.C. at 388.
65
Id. at 390.
66
It appears, rather, that partition by allotment is not an available remedy in Delaware
because the statutory scheme contemplates only two options: first, a preference for in-kind
distribution and second, if the first would be detrimental, a sale at “public vendue.” 25 Del.
C. § 729. But see In re 3818 Eunice Ave., Wilm., Del., 19808 Tax Parcel No. 08-038.40-
360, 2022 WL 3696806, at *1 (Del. Ch. Jan. 27, 2022) (“the partition statute does not,
however, exclude the equitable remedy of owelty”); E. C. D. v. R. D. T., 2019 WL 7370411,
at *3 (Del. Fam. Apr. 15, 2019) (finding case “to be among those rare cases where it is
appropriate to dispense with the requirement of sale of the property” and ordering one co-
owner to quitclaim their interest to the other).
19
finally, Goldstein has not pled an equitable exception to statutory partition that might
render equitable considerations relevant.67
Goldstein objected to in-kind partition and, as such, bore the burden of
proving partition in kind would be detrimental to the co-owners’ interests. He failed
to meet that burden. As such, under Delaware law, the Property should be
partitioned in kind to separate CTC’s 60% share.
B. CTC’s proposed partition in kind should be adopted as a just and
fair partition.
Under 25 Del. C. § 724, a decree for partition in kind shall state the shares to
be allotted to each co-owner, respectively. “The Court may then direct that a
commission be issued, directed to 3 freeholders of the county to be appointed in the
decree as commissioners, authorizing and directing them, after being duly sworn or
affirmed, according to the best of their skill and judgment, to go upon the premises
and make a just and fair partition thereof amongst the parties in the proportions
mentioned in the commission.”68 This Court has recognized, however, that
67
See Oldham v. Taylor, 2003 WL 21786217, at *6 (Del. Ch. Aug. 4, 2003)
(acknowledging the availability of equitable defenses but noting none had been raised). Cf.
Chalfant v. Cornett, 1996 WL 162262, at *4 (Del. Ch. Mar. 25, 1996) (concluding “that
there are times when a court of equity will exercise its equitable powers to deny a request
to partition real estate”).
68
25 Del. C. § 724.
20
appointment of a commission is not mandatory.69 For example, in Zdeb v. Walker,
C.A. No. 2018-0604-JTL, Vice Chancellor Laster declined to appoint a commission
in favor of a panel of experts.70
I likewise recommend that a commission not be appointed. Initially, neither
side has advocated for the appointment of a commission. Rather, CTC seeks
approval of its proposed partition, and Goldstein seeks, instead, a partition by sale.71
Thus, the parties have effectively waived any argument for the appointment of a
commission.72 And I find the appointment of a commission at this stage, after a full
trial on the merits which included expert testimony on an equitable division of the
Property, would serve only to delay.73
Rather, I find CTC’s proposed partition should be adopted. I review CTC’s
proposal as I would review one from a commission—to determine if it is just and
69
See, e.g., Peters v. Robinson, 636 A.2d at 929 (noting that the co-owners waived the
appointment of a commission).
70
Zdeb v. Walker, C.A. No. 2018-0604-JTL, D.I. 20. See also 25 Del. C. § 751. But see In
re Real Est. of Roth, 1987 WL 9370, at *2 (Del. Ch. Mar. 16, 1987) (“I do not see the
statutory authority to dispense with commissioners, in the absence of agreement by all
interested parties.”).
71
But see D.I. 3, p.6.
72
See Emerald P’rs v. Berlin, 2003 WL 21003437, at *43 (Del. Ch. Apr. 28, 2003) (“It is
settled Delaware law that a party waives an argument by not including it in its brief.”).
73
See Zdeb v. Walker, C.A. No. 2018-0604-JTL, D.I. 15 (discussing the time and expense
involved in the commission process).
21
fair.74 In my review I must consider not only whether the division matches the co-
owners’ respective interests but also the unique attributes of the subdivided parcels
and the “equitable principles of fairness in approving an assignment of a particular
parcel” to co-owners.75
Then-Master Glasscock demonstrated such review in Lynch v. Thompson,
2009 WL 707637, at *1 (Del. Ch. Mar. 5, 2009). In Lynch, the commission
recommend in-kind partition through a 50/50 split of the property, creating an
eastern parcel and a western parcel.76 Although “equal in size and physical
attributes,” the court recognized “the western parcel [would] have a special attribute-
the eligibility for annexation into the City of Milford-that the eastern parcel [would]
not.”77 The party to whom the commission allocated the eastern parcel contested the
allocation.78
Then-Master Glasscock assumed the annexation eligibility added “some
value” or advantage to the western parcel.79 But he found that advantage was
illusory because annexation could be denied and if annexation were granted, the
74
See Lynch v. Thompson, 2009 WL 707637, at *1 (Del. Ch. Mar. 5, 2009).
75
Roth, 1987 WL 9370, at *1.
76
Lynch, 2009 WL 707637, at *1.
77
Id.78
Id.79
Id. at *2.
22
eastern parcel would then be eligible for annexation as “contiguous with the City of
Milford.”80 This assumed, however, that the party allocated the western parcel
would pursue annexation in good faith. To ensure a fair and just partition, thus, then-
Master Glasscock approved the allocation with two strings: (1) that the parties
retaining the western parcel be required to “seek at their sole expense, and make a
good faith effort to obtain, annexation of the western parcel within 12 months from
the date of partition, to insure that the attribute of amenability to annexation
(assuming it exists) shall be available” to all parties and (2) that the deed to the
western parcel include a provision “indicating that the owners thereof, and their
successors and assigns, shall not oppose annexation of the [other] parcel.”81
80
Id.
81
Id.
23
Here, CTC’s expert witness Dev Sitaram has prepared and presented a
proposed partition as reflected below in Figure B, showing the Respondents’
proposed 40% share as the shaded area in the middle.
Figure B, JX3, p.9.
Mr. Sitaram explained that CTC directed him to prepare a 60/40 partition in-
kind proposal.82 In doing so, his “goal was to assure that the 40 percent that was
partitioned on behalf of the [R]espondents was going to be fully utilized or fully
82
Tr. 87:19-20. Mr. Sitaram was not asked to propose a partition of 60-20-20. Id. See also
Tr. 26:7-14 (Oeste) (explaining that he did not know of “any consideration of attempting
to partition 60/20/20). Mr. Sitaram confirmed that he has been working with CTC since
“the early 2000s” in developing CTC’s adjacent parcel. Tr. 124:7-18.
24
developable.”83 Thus, he determined to include any undevelopable portions of the
Property in the 60% portion for CTC.84 With these goals in mind, Mr. Sitaram
prepared the proposed partition of the Property in Figure B, which would allocate to
the Respondents 40.48% of the Property and the remaining 59.52% to CTC.85 The
areas of the Property that are not developable are entirely on CTC’s proposed
parcel.86 The completion of West Main Street would also be within CTC’s proposed
parcel.87 Conversely, the 40.48% of the Property allocated to the Respondents would
be fully developable.88
Here there can be no dispute that CTC’s proposed partition fairly reflects the
parties’ respective ownership interest. Goldstein appears to fault the proposed
partition for reflecting a split of 60/40 rather than 60/20/20, arguing that the
relationship between the Respondents is dysfunctional and a partition that retains
83
Tr. 87:23-88:1.
84
Tr. 88:1-4.
85
JX3. Mr. Oeste testified that under CTC’s proposed partition West Main Street would
be completed and provide “additional traffic capacity between [Route] 273 and Route 7.”
Tr. 15:15-24. Completing the road, per Mr. Oeste, is what DelDOT expects from CTC as
part of the overall development of the area; DelDOT “still desire[s] it to be finished in order
to assist with the reduction of traffic in the Village of Christiana itself.” Tr. 16:7-11.
86
Tr. 88:18-23. The undevelopable areas include wetlands, which Mr. Oeste explained
would require West Main Street to include a crossover bridge. Tr. 17:6-8.
87
Tr. 91:12-20. See also Tr. 17:9-13, 18:11-13.
88
See Tr. 18:17-19. Mr. Sitaram contends that taking into account the undevelopable
portions of CTC’s proposed share, the partition is closer to 50/50. Tr. 108:6-15. Per Mr.
Sitaram, the Respondents would have 1.5 acres of fully developable land; CTC would only
have 1.48. Id.
25
their joint ownership would be inequitable. In support, Goldstein cites a decision by
the Supreme Court of North Dakota, Schmidt v. Wittinger, 687 N.W.2d 479 (N.D.
2004). There, the co-owned property was active farmland and a partition in kind
would require coordination of fencing among co-owners with a history of hostility
toward each other.89 The subdivided parcels would also have unequal access to
water supply, and disparate burdens imposed by a meandering river.90 Thus, the trial
court held, and the appellate court affirmed, that in-kind partition would work great
prejudice and, as such, North Dakota law required a partition by sale.91
Schmidt is distinguishable. The Property does not have similar limitations
and, rather, the portion to be allocated to the Respondents is fully developable.
Second, the Respondents had the chance to propose a 60/20/20 split and failed to do
so. They cannot foist that failure onto CTC who prosecuted this action for the
purpose of removing their 60% share.92 And, as recognized in Chase v. Chase,
“[a]lthough partition is often seen as presenting a binary choice—in kind or by
89
Schmidt v. Wittinger, 687 N.W.2d at 482.
90
Id.
91
Id. at 484.
92
D.I. 3-4. Goldstein’s answer does not include a counterclaim seeking partition of the
remaining 40% of the Property. D.I. 4. Cf. Real Est. of 299 Assocs., LLC v. Rutkoske, 2000
WL 1805388, at *2 (Del. Ch. Nov. 9, 2000) (finding that a one-sixth owner was entitled to
partition and holding that “absent an application to supplement the record to demonstrate
that a partition of [the property] into two pieces (one of one-sixth and one of five-sixths of
the total value) would be detrimental to the interest of the parties, a partition in kind shall
take place”).
26
sale—the statute ‘does contemplate a partition in kind and a sale in the same partition
action.’”93 Thus, if the Respondents seek to separate their 40% interests, something
that has not been requested thus far, and they agree or demonstrate that in-kind
division would be detrimental to their interests, a partition by sale may be available.94
Further, I find CTC’s proposed partition is otherwise just and fair. Goldstein’s
primary concern about the proposed partition relates to the Respondents’ ability to
develop the remaining parcel. But Mr. Sitaram included two potential development
plans for the Respondents’ parcel, one featuring a 10,000 square foot retail space
and another featuring a 6,300 square foot restaurant.95 Goldstein’s expert witness,
Mr. Williams agrees that Mr. Sitaram’s plans are technically feasible and meet the
requirements under the UDC.96 And I find Mr. Williams’ attempts to cast doubt on
93
Chase v. Chase, 2021 WL 3930443, at *5 (quoting Roth, 1987 WL 9370, at *1).
94
See Chase, 2021 WL 3930443, at *5-*6.
95
JX3, p.9-10. Mr. Sitaram explained that he prepared these “to show that the
[R]espondents could develop the [P]roperty independent of what is going on around them,
and that they could . . . make full use of the land once it’s partitioned the way [he is]
recommending it be partitioned.” Tr. 94:4-10. He further testified that his two proposals
are not the only options for the Respondents. Tr. 94:11-16. Mr. Coyle identified other
types of facilities that could be developed including “brank banks, opticians, shoe stores,
other kinds of personal service shops—a beauty shop or something like that”. Tr. 221:22-
222:9. And Mr. Oeste affirmed that CTC does not “have an opinion on what the
[R]espondents plan to do with [their] 40 percent[.]” Tr. 31:17-19.
96
Tr. 146:14-24. JX5. Mr. Coyle agreed with Mr. Sitaram, “to a reasonable degree of
professional certainty within the field of real estate valuation and land development, that
the proposed partitioning of the 3.650 acre site into a 1.477 acre site and a 2.173 acre site
represents an equitable division of the [P]roperty among the 40% interest and 60% interest
therein.” JX4, p.8.
27
the proposals were largely driven by personal preferences and other factors
irrelevant to whether the partition is just and fair.97
97
In Mr. Williams’ report, he identified seven points of response to Mr. Sitaram’s report.
JX5. But Mr. Williams only testified to five (5): (1) the size of the restaurant, (2) the
amount of parking, (3) the traffic flow, (4) the unusual angles of the subdivided parcel, and
(5) stormwater management. Tr. 147:12-152:10.
Regarding (1) and (2), Mr. Williams testified that “the projects [his company has]
been involved in, a typical dinner house type restaurant,” which appears to be proposed by
Mr. Sitaram, “would be closer to 7,000 square feet.” Tr. 147:16-19. Mr. Williams further
explained that Mr. Sitaram’s plan provides more parking than required under the UDC but
his company has “found that restaurant users are demanding quite a bit more parking for
their uses, versus what the UDC requires or what is shown on” Mr. Sitaram’s plan. Tr.
148:4-12. Mr. Sitaram testified that, in his opinion, “the restaurants are getting smaller.”
Tr. 117:15-19. Out of thirteen restaurant projects in his company’s files, “there were only
four that were in the 7,000 or anywhere close to the 7,000 square foot range. Most of them
are below the 6300 square feet” that Mr. Sitaram used in his plan. Tr. 117:23-118:3.
Regarding (3) Mr. Williams explained: “retailers are looking for a volume of traffic
along the frontage of the property before they’ll sign leases. And based upon [Mr. Sitaram’s
plan], it does not appear there would be sufficient traffic going along the front of the
property.” Tr. 149:7-17. But Mr. Williams acknowledged that “[t]he only reason [he]
thought traffic would be minimal for the proposed retail store is because [West Main Street]
had not been built yet[.]” Tr. 160:7-10. He still contends there needs to be “reasonable
traffic” but “without doing a traffic analysis to determine what the volume of traffic would
be on that road, you can’t provide an answer on is that volume sufficient for a typical
retailer.” Tr. 150:3-11. Mr. Sitaram responds that West Main Street “will have significant
high volumes because . . . it is considered the Christiana bypass. So it’s a bypass around
the Village of Christiana, and the intent is to connect Route 273 and the retail developments
that are on the westerly side of Route 273[.]” Tr. 115:19-116:1.
Regarding (4), Mr. Williams testified that the parcels have “some unusual angles . .
. that limit how development can occur.” Tr. 151:2-3. Mr. Sitaram testified “[t]here is
nothing that prohibits the shape of the parcel or the size of the parcel”, “[i]t is a fair partition
and a fair land development”, and the 40% parcel “is self-sufficient, [and] reasonably can
be developed the way” he has presented. Tr. 122:1-8. Mr. Coyle also rejected the idea that
the shape of the proposed subdivided parcels would diminish their value. He explained
“non-rectangularly shaped parcels are a very, very common element in commercial real
estate[,]” and “provided the shape of the parcel does not diminish the potential density of
development of the parcel, the irregular configuration of the parcel is not an issue.” Tr.
200:13-20.
28
Also unpersuasive is Goldstein’s argument that the proposed partition is
inequitable because it also benefits the surrounding properties, which are owned by
CTC or its affiliates. The premise is correct—Mr. Sitaram admitted that the
proposed partition would also benefit CTC’s affiliates and other properties.98 For
example, the proposed partition would permit CTC to expand West Main Street for
the benefit of the Christiana Town Center, Christiana Fashion Center, and Christiana
Mall.99 But Goldstein has failed to demonstrate how and why such shared benefit
renders the requested partition unjust or unfair to the co-owners of the Property vis-
à-vis their interests in the Property.
Goldstein also argues that because CTC does not “need to immediately build”
the rest of West Main Street, “the promise that the proposed [40%] parcel would
have the benefit of frontage along a road that connects to the Christiana Mall is
Regarding (5), Mr. Williams identified that the plans did not appear to have surface-
type stormwater management and that underground storage “would add additional cost to
the development.” Tr. 151:14-152:10. Mr. Sitaram did not disagree but explained “it is a
matter of economics whether portions of the stormwater management facility are
underground or above-ground. It’s all directly dependent on how much of the
[Respondents’] property they desire to be developed and the intensity of development that
they desire within . . . the 1.48 acres.” Tr. 114:11-17.
98
Tr. 115:17-116:14. Mr. Oeste agreed that the proposed partition would benefit the other
properties owned by CTC and its affiliates. Tr. 26:15-18.
99
Tr. 131:5-20. See also Tr. 27:2-12. Mr. Oeste agreed that CTC “would not be able to
develop the expansion of the Christiana Town Center” as contemplated without its interest
in the Property. Tr. 30:10-16.
29
highly speculative”.100 I disagree. Mr. Oeste testified that the Delaware Department
of Transportation (“DelDOT”) “still desire[s the road] to be finished in order to assist
with the reduction of traffic in the Village of Christiana itself.”101 Mr. Sitaram
agreed that DelDOT would require the road to be built when the Property was
developed, regardless of the outcome of this partition action.102 Thus, the future
construction of West Main Street, over which the Respondents already maintain an
easement,103 is not speculative such that the proposed partition is unjust or unfair.
Under the proposed partition, Goldstein and the Trust would retain slightly
more than their 40% interest in the Property, all of which could be developed. CTC
would bear the loss of the areas that are not developable, as well as the area that
would be lost to complete West Main Street. With these losses, CTC is arguably
allocated less than its fair share. Goldstein and the Trust, on the other hand, will be
allocated a parcel with no environmental limitations, which is fully developable. As
such, I find that the proposed partition is an equitable division of the Property.
100
D.I. 60 p.24.
101
Tr. 16:7-11.
102
Tr. 134:14-22.
103
Acierno v. Goldstein, 2005 WL 3111993, at *12.
30
C. Conclusion
For the foregoing reasons, I find that the Property should be partitioned in
kind as proposed by CTC. Goldstein failed to meet his burden to prove partition in
kind would be detrimental to the parties’ interests and I find CTC’s proposed
partition is just and fair and should be adopted.
This is my final report and exceptions may be filed under Court of Chancery
Rule 144.
Respectfully submitted,
/s/ Selena E. Molina
Master in Chancery
31