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 2 7

, 2023

David E. Matlusky, Esquire, of T HE M ATLUSKY F IRM , Wilmington, Delaware, Attorney for Plaintiff Gregory Church, Jr

. Evan R a ssman, Esquire , and Emily Letcher, Esquire, of C OHEN , S EGLIAS , P ALLAS , G REENHALL & F URMAN , P.C. , Attorneys for Defendant s Shanikka Harmon, Michelle Quailes

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

J ONES , 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”) a nd

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 su mmary, 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 , f or the reasons set
forth below , the Court’s decision on the motion to dismiss based on jurisdictional grounds will be DEFERRED , subject to the condition s 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 a s 3404 Broom Place, Wilmington, Delaware (the “Property”) in June of 1982. 1 He owned the Property until h e died intestate in September of 1996. 2 After Gregory Sr.’s death , the Property passed to his wife, Michelle Quailes

Church, as a statutory life estate. 3 And , u pon 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 intes tate personal estate, plus a life estate in the intestate real estate.”). Id.3

is currently alive and well), the Property i s to transfer to Gregory Jr. , Ms. Quailes

Church’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, s uch 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. Har mon 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 jo intly 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 t o state a claim upon which relief may be granted

. 16 The parties’ positions have been fully briefed and t he matter is now ripe for review.

S TANDARD 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 I f the record, whi ch may include evidence outside of the pleadings, indicates the Court does not have subject matter jurisdiction over the

p laintiff ’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 D EL

. C ONST

. a rt . 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 th e 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 well

settled. 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 ci rcumstances 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 AN ALYSIS 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 request s for (1) injunctive relief as part of
his broader waste claim, a nd (2) the P roperty to be returned to him

. 30 At the outset, the

Court notes these request s sound in equity and fall outside the jurisdiction of th e Superior

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

claim s are merely the result of the w aste 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

p ursuant 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 Ma rtin 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 acti on.
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 Retain s 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’ righ ts 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 : “ I t 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 Cour t. If he chooses

t his 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

. T he Court will dismiss the entire matter without prejudice due to lack of subject matter jurisdiction if he fails to act in th is timeframe

.

34 Voss , 389 A.2d 273 at 275

. 35 Id. 36 See Kusumi v. Sproesser , 2021 WL 4 059960, 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 ju risdiction.”) ( i nternal 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 p remises. 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. Quailes

Church 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 conse nt of Gregory Jr. before obtaining the Mortgage. 43

38 Id. at 274 (quoting 2 W OOLLEY ON D ELAWARE P RACTICE 1063, § 1565 (1985)). 39 Ponder v

. Willey, 2020 WL 6735715 , at *5 (Del

. Ch . Nov. 17, 2020) (internal citations omitted). 40 D AVID A. T HOMAS , T HOMPSON ON R EAL P ROPERTY § 70.02 ( 2nd ed . 2005 ); A NNE R EYNOLDS C OPPS , P OWELL ON R EAL P ROPERTY § P6.05 ( Michael Allan Wolf 8th e d. 2002 ). 41 Id. 42 Matter of Estate of Bates , 1994 WL 586822 , at *3 (Del. Ch. S ep. 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 dismi ss 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 r e

- file an amended petition in this Court without the equitable claims. F ailure to take action will result in the Court entering an order dismissing the entire matter without prejudice.

IT IS SO ORDERED. 

### /s/ F rancis J. Jon

es, Jr. Francis J. Jones, Jr., Judge

Fi le & Se rveXpress