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COURT OF CHANCERY

OF THE

STATE OF DELAWARE

KIM E. AYVAZIAN

MASTER IN CHANCERY

CHANCERY COURTHOUSE

34 The Circle

GEORGETOWN, DELAWARE 19947

AND

NEW CASTLE COUNTY COURTHOUSE

500 NORTH KING STREET, SUITE 11400

WILMINGTON, DELAWARE 19980-3734

June 27, 2016

John A. Sergovic, Esquire

Sergovic Carmean Weidman McCartney & Owens, P.A.

142 East Market Street

P.O. Box 751

Georgetown, DE 19947

Dean A. Campbell, Esquire

Law Office of Dean A. Campbell, LLC

Georgetown Professional Park

20175 Office Circle

P.O. Box 568

Georgetown, DE 19947

RE: O’Marrow v. Roles

C.A. No. 6808-MA

Dear Counsel:

This letter is in response to the April 4, 2016 Order of Vice-Chancellor 

Tamika Montgomery-Reeves, which directed the issue of shifting reasonable 

attorney’s fees to be presented to and resolved by the Master in the first instance. 

By way of background, in my Draft Report dated March 31, 2015, I failed to 

address the post-trial request of Defendant Dean P. Roles, Jr. for reimbursement of 

his reasonable attorney’s fees under the provisions of 10 Del. C. § 348. Defendant 
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took exception to this omission and asked me to modify my Draft Report to award 

him reasonable attorney’s fees as the successful party in this action based upon 

Paragraph 24 of the restrictive covenants contained in Plaintiff’s deed and 

Defendant’s chain of title. After I failed to address this issue in my Final Report 

dated September 30, 2015, Defendant took exception to my Final Report on the 

same ground. In truth, I cannot explain how I overlooked this issue a second time, 

and I regret any inconvenience that I may have caused the Court and the parties.

I have reviewed the parties’ briefs in support of and opposition to 

Defendant’s exception to my Final Report, which previously had been presented to 

the Vice-Chancellor. In his exception to my Final Report, Defendant argued that 

he was entitled to reasonable attorney’s fees as the successful party under 

Paragraph 24 of the restrictive covenants. Plaintiff Garnet O’Marrow opposed the 

proposed shifting of attorney’s fees, arguing that it would be unfair to him since 

Defendant never relied on the restrictive covenant in his pleadings or in the parties’ 

pretrial stipulation. Plaintiff argued that he had been denied notice that Defendant 

would seek to shift fees in this manner and, therefore, Defendant had waived his 

right to make this argument.

In response, Defendant argued that he already had given clear notice to 

Plaintiff that he would be seeking reasonable attorney’s fees under 10 Del. C. § 

348 or equitable relief. Defendant argued that it would be within the Court’s 
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discretion and equitable to allow an award of fees to the successful party under 

Paragraph 24 of the reciprocal covenants because the Court had concluded that 

both parties were bound by Paragraph 19 of these covenants.

In 2011, Plaintiff filed a complaint in this Court seeking to enjoin 

Defendant’s expansion of his equestrian training and boarding business as a 

violation of the restrictive covenants of Heritage Farms.1 From the start,

Defendant’s primary argument against Defendant’s complaint was that his property 

was not subject to any deed restrictions.

2

 According to Defendant, Heritage Farms 

was not a legally created subdivision and lacked uniform restrictive covenants in 

the deeds of the six properties that made up the neighborhood known as Heritage 

Farms. In the alternative, Defendant argued that any deed restrictions that applied 

to his property had been waived or were unenforceable. Initially, Defendant even 

denied that 10 Del. C. § 348 applied to this case, although at the same time he did 

seek costs and reasonable attorney’s fees, which may be awarded to prevailing 

parties under this statute.3 

 

1 Verified Complaint Pursuant to 10 Del.C. §348, Docket Item (“DI”)1.

2

 Answer to Complaint, DI 4. 

3 Answer to Amended Complaint, ¶ 47 & prayer for relief, DI 16. 10 Del. C.

§348(e) provides: “The nonprevailing party at a trial held pursuant to the 

provisions of this section must pay the prevailing party’s attorney fees and court 

costs, unless the court finds that enforcing this subsection would result in an unfair, 

unreasonable, or harsh outcome.” 
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In my Draft Report, I rejected Defendant’s argument that his property was 

not bound by the deed restrictions, finding that the restrictions recited in Plaintiff’s 

deed and Defendant’s chain of title were reciprocal in nature and bound both 

properties. However, I also concluded that Paragraph 19 of the deed restrictions 

was too vague and ambiguous to be enforceable by Plaintiff. Perhaps in light of 

this outcome, Defendant then chose to rely exclusively on Paragraph 24 of the 

restrictive covenants as the basis for shifting attorney’s fees in this case. 

Defendant’s new posture has left Plaintiff crying foul. 

I do not find Defendant’s request so surprising or unfair to Plaintiff as to 

create a waiver. From the start of this litigation, each party was aware that the 

other would seek to shift attorney’s fees if he prevailed. Plaintiff relied on Section 

348 and Paragraph 24 of the deed restrictions when requesting this relief in both 

his original and amended pleadings while Defendant initially relied on Section 348 

and equity in his pleadings. Now Defendant is relying on Paragraph 24 of the deed 

restrictions. Both Section 348 and Paragraph 24 are exceptions to the so-called 

American Rule where each party is responsible for its own legal fees.

4

 Section 348

governs fee shifting in cases involving residential subdivisions in Delaware where 

individual properties are reciprocally bound by restrictive covenants in recorded 

 

4

The Cove on Herring Creek Homeowners’ Ass’n, Inc. v. Riggs, 2005 WL 

1252399, at *1 (Del. Ch. May 19, 2005). 
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deeds. Likewise, Paragraph 24 governs fee shifting in cases where the properties 

in Heritage Farms are reciprocally bound by restrictive covenants in their deeds. 

Nevertheless, the fee shifting requested by Defendant is not available to him 

because as I read the plain language of Paragraph 24, it does not allow just any

prevailing party to shift reasonable attorney’s fees to the non-prevailing party. 

Paragraph 24 applies only to a plaintiff who succeeds in preventing violations of 

the deed restrictions governing Heritage Farms.5 Paragraph 24 states: 

Any parcel owners to whose benefit these Restrictions insure [sic] 

may proceed at law or in equity to prevent the occurrence, continuation, or 

violation of any of these Restrictions and the Court in any such action may 

award the successful party reasonable attorney’s fee. The remedies specified 

herein are cumulative and a specification of them shall not be taken to 

preclude any aggrieved party from resorting to any other remedy at law or in 

equity of [sic] under any other statute. No delay or failure on the part of the 

aggrieved party to invoke an available remedy in respect to a violation of 

any of these Restrictions shall be held to be a waiver of that party or an 

estoppel of that party to assert any right available to him upon the 

reoccurrence of [sic] the continuation of such violation or the occurrence of 

a different violation.6

In this case, it was Plaintiff who, as a parcel owner in Heritage Farms, sought to 

stop the construction of a barn that he believed was being erected in violation of 

Paragraph 19 of the deed restrictions. Plaintiff did not succeed on the merits 

because I found the deed restriction on which he relied to be unenforceable. To 

 

5

See Benner v. Council of the Narrows Ass’n of Owners, 2014 WL 7269740, at 

*12 (Del. Ch. Dec. 22, 2014) (Master’s Final Report), adopted as a decision of the 

Court in 2015 WL 1206724 (Del. Ch. Mar. 16, 2015) (Trial Order). 
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shift Defendant’s reasonable attorney’s fees onto Plaintiff in this case would be 

contrary to Paragraph 24 because Defendant was not a parcel owner seeking to 

prevent “the occurrence, continuation, or violation of any of these Restrictions.”

7

 

For the reasons stated above, I recommend that the Court deny Defendant’s 

request for an award of reasonable attorney’s fees under Paragraph 24 of the deed 

restrictions binding the parties’ properties. In order not to prolong this matter any 

further, I am waiving a draft report and issuing this recommendation as my final 

report. The parties are referred to Court of Chancery Rule 144 for the process of 

taking exception to a Master’s Final Report.

Respectfully,

/s/ Kim E. Ayvazian

Kim E. Ayvazian

Master in Chancery

KEA/kekz

 

6

JX 11.

7

Id. Compare Jackson’s Ridge Homeowners Ass’n v. May, 2007 WL 4179310 at 

*7 & n. 42 (Del. Ch. Nov. 20, 2007) (“In the event that a legal proceeding is 

commenced for the abatement of such violation or for damages resulting from such 

violation, the owner of each lot that is the site of the violation shall be jointly and 

severally liable for the costs of such action, including attorney’s fees ...”); The 

Cove on Herring Creek Homeowners’ Ass’n, Inc., 2005 WL 1252399, at *1 

(“Enforcement of covenants ... contained herein shall be by a proceeding at law or 

in equity against any persons ... violating or attempting to violate same and/or 

against the property subject hereto to enforce any lien created by this Declaration 

.... The cost of any such litigation shall be borne by the Owner in violation, 

provided that such proceeding results in a finding that such Owner was in violation 

of the covenants ....”)