IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN THE MATTER OF THE REAL

ESTATE OF ALVIN DAVID SMITH, JR.,

DECEASED

- AND

CARLA COWAN

, Petitioner,

v.

JAMES E. FURLOW

, Respondent. )

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) C.A. No. 2019

- 1038

- SEM (JRS)

C .A. No. 2018

- 0915

- SEM (JRS)

ORDER OVERRULING EXCEPTIONS AND

AFFIRMING MASTER’S ORDER

WHEREAS, on December 27, 2019, a Petition for Permission to Sell Real

Estate to Pay Debts of Decedent (the “Petition”) was filed by James Furlow, Personal

Representative of the Estate of Alvin Dav id Smith, Jr. (the “Estate”) (D.I. 1) 1 ;

1 References to Docket Items refer to docket entries in 2019

- 1038

- SEM, unless otherwise

indicated.2

WHEREAS, a hearing on the Petition was held before a Master of this court

on September 3, 2020 (D.I. 33) ;

WHEREAS, the Master issued an Order on March 19, 2021, granting with

modifications the Petition (the “ Master’s Or der ” ) (D.I. 61) ;

WHEREAS, on April 14, 2021, Carla Cowan (“Ms. Cowan”) , an heir to the

Estate , filed a Notice of A ppeal with the Supreme Court of Delaware ;

WHEREAS, on June 4, 2021, the Supreme Court issued its Order dismissing

the appeal for lack of jur isdiction , and issued its Mandate on June 22, 2021 ( D.I. 76 );

WHEREAS, on June 17, 2021, Ms. Cowan efiled a Request for Review of

Final Order, which the Court will treat as Ms. Cowan’s Notice of Exceptions to the

Master’s Order (the “Exceptions”) (D.I. 75 ) ;

WHEREAS, following a briefing schedule entered by this Court (D.I. 80) , the

Exceptions were submitted for decision on September 10, 2021 (D.I. 91)

.

NOW, THEREFORE, this 3r d day of December , 2021, it appears to the Court

that :

1. The Court has reviewed the record and determined that it is possible to

conduct a de novo review without a trial of the case or conducting an evidentiary3

hearing. 2 The E xceptions do not turn on dispositive credibility determinations that

would require th e Court to view the witnesses. 3

2. By Order dated March 19, 2021

, the Master authorized the sale of real

property located at 406 South Gerald Avenue, Newark, Delaware once owned by

Calvin David Smith, Jr. (the “Real Property”) (D.I. 61)

. The R eal P roperty was sold

on April 9, 2021, as evidenced in a Return of Sale efiled with this Court on May 4,

2021 (D.I. 71). The Master ordered the sale after determining, as per 12 Del. C.

§ 2701, that the sale was required to allow the Estate to meet its financial

obligations. 4 Specifically, t he Master received competent evidence that the Estate’s

liabilities ( ̃$20,087.34) exceeded its assets ( ̃$18,510.53), and that the sale of the

Real Property, as requested by the Estate’s personal representative, was necessary to

allow the Estate to meet its obligations. This determination was free from legal error

and supported by the factual record. “Believing the Master to have dealt with the

2 See DiGiacobbe v. Sestak

, 743 A.2d 180, 184 (Del. 1999).

3 See id. ; accord Lynch v. City of Rehoboth Beach

, 2005 WL 2000774, at *1 (Del. Ch.

Aug. 16, 2005) (“When the parties except to one or more of the Master’s findings from

the evidence in the case, the Court can read the record that is relevant to the exceptions

raised and draw its own factual conclusions.”).

4 See 12 Del. C. § 2701(a) (“W hen the personal estate of a decedent is not sufficient to pay

the decedent’s debts, the decedent’s executor or administrator may present to the Court of

Chancery of the county in which there is any real estate of the decedent a petition outlining

such fac ts, and praying for an order for sale of the whole, or such part thereof, if the

personal estate is not sufficient for that purpose.)4

issues in a proper manner and having articulated the reasons for her dec ision well,

there is no need for me to repeat her analysis.” 5

3. Ms. Cowan raises several issues in her Exceptions, none of which have

merit. As a threshold matter, I note that the Exceptions were not timely filed. Court

of Chancery Rule 144(d) requires that exceptions to final reports of Masters be filed

“within ele ven days of the report.” 6 Here, the Master’s Order was filed on March 9,

2021, 7 but Ms. Cowan did not file her Exceptions until June 17, 2021. 8 This, alone,

would be ground to overrule the Exceptions. 9

4. Ms. Cowan’s argument that she was denied due p rocess in connection

with the hearing on the Petition is summarily rejected. The Master gave Ms. Cowan

a full and fair opportunity to present her opposition to the Petition, but ultimately

rejected her arguments. There was no denial of due process.

5. Ms. Cowan’s objection that the Master’s Order is somehow invalid

because the Estate purportedly was opened in the wrong name is likewise rejected.

5 In re Erdman

, 2011 WL 2191680, at * 1 (Del. Ch. May 26, 2011).

6 Del. Ct. Ch. R. 144(d).

7 D.I. 61.

8 D.I. 75.

9 Del

. Ct. Ch. R. 144(b) (“Any party failing to file a notice of exception within the period

prescribed by this rule shall be deemed to have waived the right to review the report

. . . . ”).5

The Estate’s assets and liabilities were clearly and correctly identified during the

hearing on the Petition, a nd, regardless of whether or not Mr. Smith was a “Jr.,” there

is no basis to conclude that the Master erred in accepting the evidence regarding the

Estate’s ability to meet its obligations absent a sale of the Real Property.

6. Ms. Cowan’s argument that the Master erred by declining to accept her

testimony that she and other heirs of the Estate could pay off debts is not supported

by the record. Ms. Cowan presented no supporting evidence to corroborate that

claim and the Master did not err in rejecting it.

7. Finally, the suggestion that the personal representative, his counsel (and

the Master) engaged in criminal misconduct by presenting (and accepting) false

information related to the Petition is frivolous.

8. After de novo re view, I am satisfied that the E xceptions to the Master’s

Order should be overruled, and that the Master’s Order must be adopted and

affirmed.

9. The personal representative has requested counsel fees under the bad

faith exception to the American Rule. Whi le I concur that several of Ms. Cowan’s

Exceptions are frivolous, I am not satisfied that this is the “rare” case where a

litigant’s conduct should be deemed so “egregious” that it merits fee

- shifting,6

particularly given Ms. Cowan’s pro se status. 10 With that said, Ms. Cowan is on

notice that continued unfounded allegations of misconduct, including judicial

misconduct, or frivolous and wasteful litigation tactics, will likely subject her to

sanctions including, but not limited to, fee shifting.

IT IS SO ORDERED.

/s/ Joseph R. Slights III

Vice Chancellor

10 Cantor Fitzgerald, L.P. v. Cantor

, 2000 WL 307370, at * (Del. Ch. Mar. 13, 2000)

( “To constitute bad faith, the [litigant’s] actions must arise to a high level of

egregiousness.”) (citation omitted).