COURT OF CHANCERY OF THE S AM G LASS C OCK III V ICE C HANCELLOR STATE OF DELAWARE C OURT OF C HANCERY C OURTHOUSE 34 T HE C IRCLE G EORGETOWN , D ELAWARE 19947 Date Submitted: April 21, 2023 1 Date Decided: May 4, 2023
David C. Hutt, Esquire R. Eric Hacker, Esquire Michelle G. Bounds, Esquire Morris James LLP 107 West Market Street P.O. Box 690 Georgetown, Delaware 19947 Richard E. Berl, Jr. , Esquire Hudson, Jones, Jaywork & Fisher, LLC 34382 Carpenter’s Way , Suite 3 Lewes, Dela ware 19958

Re: Green et al. v. Green et al. , C.A. No. 2019

- 0787

- SG
Dear Counsel: Before me are exceptions to the Master’s Final Report issued on November 23, 2022 (the “Report”) in this partition action. 2 The litigants are four siblings who own the Green family farm near Greenwood as tenants in common, having inherited through their m other. I will not relate the full litigation history; it is sufficient to state that Jay 3 and Rene sought partition while Lewis and Lawrence are the
R espondents. The parties ultimately agreed to a partition in kind ; 4 the cumbersome

1 This matter was briefed while I was on medical leave. The parties have not requested argument and, upon reviewing the briefing on exceptions on April 21, 2023, I determined that no argument was required. I consider the matter submitted as of that date. 2 Master’s Final Report, Dkt. No. 53 (the “Final Report”). 3 Because many of the litigants share the Green surname, I use first names to avoid confusion and mean no disrespect thereby. 4 Letter from Richard Berl to Master Griffin Regarding Scheduling Hr’g , Dkt. No. 19.2

and antiquated statutory commission was employed ; 5 and the Commissioners returned a recommendation that subdivided the property into four parc els of equal value, each with frontage on a public road. 6 The Petitioners objected to the Commissioners return, based in part on ex parte communications between the
Commissioners and the R espondents , which Petitioners believe influenced the
Commissioners ’ recommendation as to the assignment of each of the lots to a particular sibling. 7
The Master held a n evidentiary hearing on Petitioners’ objections to the
Commissioners’ Return. 8 In her Report, the Master found that the evidence demonstrated that the lots were of equal value, and that equity required that clean

up and demolition expenses be shared by the siblings. 9 Accordingly, the Master accepted the Commissioners’ proposed partition but , based on the p arties’ testimony, found it equitable that the lot assignments be altered. 10 At both the evidentiary hearing and in briefing before the Master , R espondents expressly stated that they would accept being assigned lots 3 and 4; 11 those are the lots they rece ived in the

5 See Revised Order Appointing Commissioners, Dkt. No. 24. 6 Return of Partition Commissioners Received 03

- 16

- 22, Dkt. No. 25. 7 Pet’ r s ’ Notice of Obj. to the Commissioners’ Return, Dkt. No. 31. 8 Tr. of 10

- 19

- 2022 Evid. Hr’g (“Evid. Hr’g”) , Dkt. No. 52. 9 Final Report at 9

- 12. 10 Id. 11 Evid. Hr’g at 246:21

- 247:23, 256:1

- 17; Resp’ts’ Closing Arg. 4, Dkt. No. 50.3

Report. 12 Nonetheless, the Respondents have taken exception s to the Report

. 13 They
now demand lots 1 and 2

. 14 Equity so requires, per Respondents, because farming
those lots will be more convenient to them, as one of them owns acreage adjace nt to
lot 1

. I review exceptions to Master’s reports de novo

. 15 At the hearing leading to
the R eport, as the Master found, the evidence showed that the four lots were equal in value. Both the Petitioners, in their objections to the Commissioners’ Return, and the Respondents, in the ir current e xceptions to the Report , have expressed a preference for receiving lots 1 and 2. Respondents, however, testified at the hearing that they were willing to accept lots 3 and 4. 16 The Master specifically relied on these statements in reaching her decisions in the Report. 17 As the Petitioners pointed
out in brie fing on these e xceptions, the Respondents are judicially estopped 18 from arguing here that equity require s that they not be assigned lots 3 and 4. 19 The

12 Final Report at 11

- 12. 13 Resp’ts’ Exceptions to Master’s Final Report, Dkt. No. 54. 14 Resp’ts’ Opening Br. in Supp. of Exceptions to the Master’s Final Report 14, Dkt. No. 58. 15 DiGiacobbe v. Sestak , 743 A.2d 180, 184 (Del. 1999). 16 Evid. Hr’g at 246:21

- 247:23, 256:1

- 17. 17 Final Report at 11. 18 Judicial estoppel operates where (1) a litigant takes a position that contradicts a position previously taken by that litigant and (2) the Court adopted that previous position in a judicial ruling. Motorola Inc. v. Amkor Tech., Inc. , 958 A.2d 852, 859

– 60 (Del. 2008)

. 19 Pet’rs ’ Answering Br. in Opp. of Resp’ts’ Exceptions to the Master’s Final Report 21

- 23, Dkt. No. 59

.4

Respondents chose to waive a reply brief, and accordingly have waived any objection to application of judicial estoppel. 20 In any event, having reviewed the hearing testimony and the Master’s findings
of fact , as well as the application of law and equity , I find that Master Griffin got it exactly right. I come out precisely the same way. The exceptions, to my mind , border on the frivolous. For the for e going reasons, the Respondents’ e xceptions to the Report are DENIED. IT IS SO ORDERED. Since Master Griffin has retired during the exceptions period, I recommend to the Chancellor that I retain jurisdiction to administer any remaining issues in this

p artition action

. Sincerely , /s/ Sam Glasscock III Vice Chancellor

cc : The Honor able Kathaleen St. J. McCormick All Counsel of Record (by File & Serve Xpress)

20 Letter from Richard Berl to Vice Chancellor Glasscock, Dkt. No. 61 ; s ee, e.g., Jung v. El Tinieblo Int ’ l, Inc. , 2022 WL 16557663, at *9

- 10 (Del. Ch. Oct. 3 1, 2022) (holding that issues not addressed in briefing are deemed waived).