IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

GREGORY CHURCH, JR. )

)

Plaintiff, )

)

v. ) Case No.: N22C-08-453 FJJ

)

SHANIKKA HARMON, )

MICHELLE QUAILES-CHURCH, )

BANK OF AMERICA, N.A., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Upon Consideration of Defendant’s Motion to Dismiss for Lack of Subject Matter 

Jurisdiction:

DEFERRED

Upon Consideration of Defendant’s Motion to Dismiss for Failure to State a Claim 

Upon Which Relief Can Be Granted:

DENIED

Submitted: February 21, 2023

Decided: February 27, 2023

David E. Matlusky, Esquire, of THE MATLUSKY FIRM, Wilmington, Delaware, Attorney 

for Plaintiff Gregory Church, Jr.

Evan Rassman, Esquire, and Emily Letcher, Esquire, of COHEN, SEGLIAS, PALLAS,

GREENHALL & FURMAN, P.C., Attorneys for Defendants Shanikka Harmon, Michelle 

Quailes-Church, and Bank of America, N.A.

JONES, J.
2

INTRODUCTION

Concerned with encumbrances on a property he hopes to soon inherit, Gregory 

Church, Jr. (“Gregory Jr.”) has sued three defendants through a petition that seeks both 

equitable and legal relief. Two of the defendants, Bank of America (“BOA”) and 

Shanikka Harmon, have moved to dismiss the petition under Superior Court Civil Rules 

12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim 

upon which relief may be granted. This is the decision on that motion.

In summary, the Court will allow this action to go forward, for the most part. For 

now, the Court is simply deciding if it retains jurisdiction over Gregory Jr.’s claims and, 

by the same token, whether they could conceivably merit relief. So, for the reasons set 

forth below, the Court’s decision on the motion to dismiss based on jurisdictional 

grounds will be DEFERRED, subject to the conditions stated herein. The motion to 

dismiss based on failure to state a claim is DENIED. 

FACTUAL AND PROCEDURAL OVERVIEW

Gregory Church, Sr. (“Gregory Sr.”) purchased the real property known as 3404 

Broom Place, Wilmington, Delaware (the “Property”) in June of 1982.1 He owned the 

Property until he died intestate in September of 1996.2 

After Gregory Sr.’s death, the Property passed to his wife, Michelle QuailesChurch, as a statutory life estate.3

 And, upon the passing of Ms. Quailes-Church (who 

1 Pl.’s Compl. ¶ 5.

2

Id. ¶ 6.

3

Id. ¶¶ 7, 9. Gregory Sr.’s probate filings are on record with the New Castle County Register of Wills as Will 

Record No. 112896. See also 12 Del. C. §502(4) (“The intestate share of the surviving spouse is ... [i]f there are 

surviving issue, one or more of whom are not issue of the surviving spouse, one half of the intestate personal estate, 

plus a life estate in the intestate real estate.”). Id.
3

is currently alive and well), the Property is to transfer to Gregory Jr., Ms. QuailesChurch’s stepson and Gregory Sr.’s only child.4

On September 3, 2021, however, Ms. Quailes-Church sold her interest in the 

Property to Ms. Harmon.5 Typically, such a transaction would not be notable, but Ms. 

Quailes-Church conveyed the interest to Ms. Harmon via General Warranty Deed (the 

“Deed”).

6

 The Deed was not a life estate deed, and did not limit the interest passed from 

Ms. Quailes-Church to her life estate interest.7 Gregory Jr. was not a party to the transfer, 

and did not consent to, or sign-off on, the sale.8

On the same day as the sale, BOA granted Ms. Harmon a thirty-year mortgage 

secured by the Property.9 Neither Gregory Jr. nor Ms. Quailes-Church were parties to 

the Mortgage.10 The Mortgage does not reference Ms. Harmon’s interest as being 

limited to the life of Ms. Quailes-Church, and contains no language to suggest Gregory 

Jr.’s interest will be unencumbered by the Mortgage when he takes possession of the 

Property following Ms. Quailes-Church’s death.11

Gregory Jr. then filed this, the Amended Petition for Declaratory Judgment and 

Waste presently before the Court.

12

 Through his petition, Gregory Jr. seeks a declaration

that: (1) Ms. Harmon possesses only a life estate interest in the Property, which is 

4

Id. ¶¶ 8-9.

5

Id. ¶ 10.

6

Id.

7

Id. ¶ 11.

8

Id. ¶ 13.

9

Id. ¶ 15. Ms. Harmon recorded her newly-acquired interest that month. The Mortgage was recorded in the New 

Castle County Recorder of Deeds as Instrument No. 20210916-0107605.

10 Id. ¶¶ 16-17. Ms. Quailes-Church’s name does not appear anywhere within the four corners of the mortgage 

document.

11 Id. ¶ 18.

12 D.I. 12.
4

controlled by Ms. Quailes-Church’s statutory life estate interest; (2) the Mortgage only 

encumbers the actual interest of Ms. Harmon; and (3) he is entitled to recover his interest 

in the Property, as well as double damages.13 He also requests the Court issue an 

injunction to restrain waste upon the Property and an order returning possession of the 

Property to him.

14

 

BOA and Ms. Harmon have jointly moved to dismiss the petition on jurisdictional 

grounds, arguing the Court of Chancery, and not this Court, is the proper forum to hear 

these claims.

15

 And, even if this Court were the proper forum, BOA and Ms. Harmon 

submit Gregory Jr. has failed to state a claim upon which relief may be granted.

16

 The 

parties’ positions have been fully briefed and the matter is now ripe for review.

STANDARD OF REVIEW

A. Superior Court Civil Rule 12(b)(1)

Because this Court’s jurisdiction lies in matters of law,17 as opposed to the Court 

of Chancery’s jurisdiction, which lies in equity,18 the Superior Court will grant dismissal 

“pursuant to Superior Court Civil Rule 12(b)(1) when it lacks jurisdiction over the 

subject matter” of the complaint.19 If the record, which may include evidence outside of 

the pleadings, indicates the Court does not have subject matter jurisdiction over the 

plaintiff’s claim, then the Court will dismiss the action under Rule 12(b)(1).

20 “When 

13 Pl.’s Compl. ¶¶ 28-29, 35.

14 Id. ¶ 36.

15 D.I. 27.

16 D.I. 15.

17 DEL. CONST. art. IV, §7; 10 Del. C. §541.

18 10 Del. C. §§341, 342; McMahon v. New Castle Assoc., 532 A.2d 601, 602 (Del. Ch. 1987).

19 Smith v. Dep’t of Pub. Safety of the State of Del., 1999 WL 1225250, at *5 (Del. Super. Oct. 26, 1999), aff’d, 765 

A.2d 953 (Del. 2000).

20 K&K Screw Prod., L.L.C. v. Emerick Cap. Invs., 2011 WL 3505354, at *6 (Del. Ch. Aug 9, 2011).
5

considering a motion to dismiss under Rule 12(b)(1) for lack of subject matter 

jurisdiction, the Court must take the allegations in the complaint as true and construe all 

reasonable inferences in the non-movant’s favor.”21 “The burden of establishing the 

Court’s subject matter jurisdiction rests with the party seeking the Court’s 

intervention.”22

B. Superior Court Civil Rule 12(b)(6)

Standards regarding the less-forgiving Rule 12(b)(6) motion to dismiss are wellsettled. Delaware law requires courts to accept all well-pled allegations as true. 23

 Then, 

the Court must apply a broad sufficiency test to determine whether a plaintiff may 

recover under any “reasonably conceivable set of circumstances susceptible of proof 

under the complaint.”24 If the complaint “gives general notice as to the nature of the 

claim asserted against the defendant,” Delaware law disallows dismissal.25 A complaint 

is not dismissed “unless it is clearly without merit, which may be either a matter of law 

or fact.”26 Further, a complaint’s “[v]agueness or lack of detail,” alone, is insufficient to 

grant dismissal.27 Thus, if there is a basis upon which the plaintiff may recover, the 

motion must be denied.28

21 Schwaber v. Margalit, 2022 WL 2719952, at *2 (Del. Ch. July 13, 2022).

22 Ropp v. King, 2007 WL 2719952, at *2 (Del. Ch. July 13, 2022).

23 Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 27 A.3d 531, 535 (Del. 2011). 

24 See id. at 535.

25 Diamond State Tel. Co. v. Univ. of Del., 269 A.2d 52, 58 (Del. 1970).

26 Id.

27 Id.

28 See id.
6

ANALYSIS

Through their motion, BOA and Ms. Harmon contend Gregory Jr.’s amended 

petition solely (and improperly) seeks equitable relief.29 Unsurprisingly, Gregory Jr. 

disagrees. The Court takes each claim in turn below.

A. The Court Lacks Jurisdiction to Hear Gregory Jr.’s Equitable Claims.

The Court first addresses Gregory Jr.’s requests for (1) injunctive relief as part of 

his broader waste claim, and (2) the Property to be returned to him.

30

 At the outset, the 

Court notes these requests sound in equity and fall outside the jurisdiction of the Superior

Court.31 But, in an attempt to plead around this fact, Gregory Jr. maintains the equitable

claims are merely the result of the waste action pursuant to 25 Del. C. §909 and would

protect his remainder interest by preventing further encumbrances on the Property.

The Court lauds the creative tactics at play in constructing this argument, but it 

rejects them all the same. While Delaware’s waste statute does provide for injunctive 

relief, it clearly does not equip the Superior Court with the power to grant it.32 And to 

the extent Gregory Jr. seeks broad affirmative relief through a writ of estrepement 

pursuant to 25 Del. C. §910,33 that relief is beyond the function of the writ as described 

29 As described above, the petition seeks a judgment declaring Ms. Harmon owns only a life estate interest in the 

Property, an injunction to restrain waste on the Property, and an order granting Gregory Jr. recovery of the Property.

30 Pl.’s Compl. ¶ 36.

31 Martin v. Widener Univ. Law School, 1992 WL 153540, at *5 (Del. Super. June 4, 1992).

32 25 Del. C. §901 et seq.

33 The statute provides in toto: 

During the pendency of an action of ejectment or of an action of waste to recover the place wasted, 

the court in which the action is pending may award a writ of estrepement to prevent waste being 

committed on the premises which are the subject of such action. 

25 Del. C. §910. A party seeking injunctive relief through a waste action must bring the lawsuit in the Court of 

Chancery. Voss v. Green, 389 A.2d 273, 275 (Del. Super. 1978).
7

in the statute.34 

Put simply, the Court’s proverbial hands are tied. It is without the statutory power 

to grant Gregory Jr. possession of the Property, and, for the same reasons, cannot enjoin 

Ms. Harmon’s interference with that possession.35 

B. The Court Retains Jurisdiction to Hear Gregory Jr.’s Legal Claims.

On the other hand, Gregory Jr.’s remaining claims for declaratory relief, which 

task the Court with determining the parties’ rights and obligations under the Deed and 

the Mortgage in light of their respective interests in the Property, seek a remedy at law 

and fall squarely within the jurisdiction of the Superior Court.36 

The Court echoes former-Judge Taylor’s remarks in Voss v. Green: “It is 

regrettable that litigants cannot be afforded appropriate relief in a single Court, but this 

is the product of the bifurcated judicial system [] in effect in Delaware.”37 So, in light 

of the present status of the case, Gregory Jr. now has a choice. If he desires to pursue 

equitable relief, then he must dismiss this matter and re-file it in the Court of Chancery. 

Or, he can abandon his equitable claims and remain in this Court. If he chooses 

this option, then he must file an amended petition absent the claims that sound in equity. 

Either way, Gregory Jr. must take action within fifteen days of the date of this 

order. The Court will dismiss the entire matter without prejudice due to lack of subject 

matter jurisdiction if he fails to act in this timeframe. 

34 Voss, 389 A.2d 273 at 275.

35 Id.

36 See Kusumi v. Sproesser, 2021 WL 4059960, at *2 (Del. Ch. Apr. 7, 2021) (“The Superior Court and the Court 

of Chancery have concurrent jurisdiction over declaratory judgment actions; where an adequate remedy at law 

exists through declaratory relief, the Superior Court has subject matter jurisdiction.”) (internal citations omitted).

37 Voss, 389 A.2d at 275.
8

C. Gregory Jr. Has Stated a Prima Facie Claim for Waste.

The heart of Gregory Jr.’s petition is a claim for waste. As defined by Judge 

Taylor in Voss, waste is the “spoil or destruction in lands, houses, trees, or other 

corporeal hereditaments committed or permitted.”38 Or, as the Court of Chancery 

recently observed in less florid terms, waste is committed when a tenant “causes 

substantial injury to [a piece of] property.”

39

The law of waste exists to protect owners of future interests in property from 

depredations by the present possessor.40 And while a life tenant of a possessory estate 

has the right to undisturbed possession of the land, the tenant’s use and enjoyment of the 

premises is necessarily limited by the law of waste.41 Indeed, the tenant is under a duty 

to refrain from any act which will diminish the value of the property if such act is, under 

the circumstances, an unreasonable use of the premises.42 

Here, Gregory Jr. contends that Ms. Harmon encroached upon his future interest 

in the Property by obligating the entire interest of the Property to the Mortgage without 

his consent. To review, Gregory Jr.’s pleadings state: (1) Ms. Harmon and Ms. QuailesChurch did not specify that the transferred interest in the Deed was only a life estate; (2) 

the Mortgage does not specify it is just for Ms. Quailes-Church’s life estate interest; and 

(3) Ms. Harmon did not inform, advise, or obtain the consent of Gregory Jr. before 

obtaining the Mortgage.43

38 Id. at 274 (quoting 2 WOOLLEY ON DELAWARE PRACTICE 1063, §1565 (1985)).

39 Ponder v. Willey, 2020 WL 6735715, at *5 (Del. Ch. Nov. 17, 2020) (internal citations omitted).

40 DAVID A. THOMAS, THOMPSON ON REAL PROPERTY §70.02 (2nd ed. 2005); ANNE REYNOLDS COPPS, POWELL ON 

REAL PROPERTY §P6.05 (Michael Allan Wolf 8th ed. 2002).

41 Id.

42 Matter of Estate of Bates, 1994 WL 586822, at *3 (Del. Ch. Sep. 23, 1994) (internal citations omitted).

43 D.I. 22.
9

Based on the above, as a matter of record, the Court is satisfied the Mortgage 

encumbers the Property. Whether the Mortgage causes substantial injury to Gregory 

Jr.’s interest in the Property will turn on the question of whether the Mortgage is bound 

to his interest. The answer to that question may be found in a more developed record, 

but dismissal is premature at this stage. Gregory Jr. has pled a prima facie claim for 

waste. The motion to dismiss this claim is DENIED.

CONCLUSION

For the foregoing reasons, the Court’s decision on the motion to dismiss based on 

lack of subject matter jurisdiction is DEFERRED. The motion to dismiss based on 

failure to state a claim upon which relief can be granted is DENIED. As discussed 

above, Gregory Jr. has fifteen days from the date of this order to either dismiss this action 

and re-file it in the Court of Chancery, or re-file an amended petition in this Court without 

the equitable claims. Failure to take action will result in the Court entering an order 

dismissing the entire matter without prejudice.

IT IS SO ORDERED.

/s/ Francis J. Jones, Jr.

Francis J. Jones, Jr., Judge

File & ServeXpress