COURT OF CHANCERY

OF THE

SAM GLASSCOCK III

VICE CHANCELLOR

STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE

34 THE CIRCLE

GEORGETOWN, DELAWARE 19947

Date Submitted: April 21, 20231

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, Delaware 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 mother. I will not relate the full litigation history; it is sufficient to 

state that Jay3and Rene sought partition while Lewis and Lawrence are the 

Respondents. 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 parcels 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 Respondents, which Petitioners believe influenced the 

Commissioners’ recommendation as to the assignment of each of the lots to a 

particular sibling.7

The Master held an 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 cleanup and demolition expenses be shared by the siblings.9

 Accordingly, the Master

accepted the Commissioners’ proposed partition but, based on the parties’ testimony, 

found it equitable that the lot assignments be altered.10 At both the evidentiary 

hearing and in briefing before the Master, Respondents expressly stated that they 

would accept being assigned lots 3 and 4;11 those are the lots they received 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’rs’ 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 exceptions 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 adjacent to 

lot 1.

I review exceptions to Master’s reports de novo.

15

 At the hearing leading to 

the Report, 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 their current exceptions 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 briefing on these exceptions, the Respondents are judicially estopped18 from 

arguing here that equity requires 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.
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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 foregoing reasons, the Respondents’ exceptions 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 

partition action.

Sincerely,

/s/ Sam Glasscock III

Vice Chancellor

cc: The Honorable Kathaleen St. J. McCormick

 All Counsel of Record (by File & Serve Xpress)

20 Letter from Richard Berl to Vice Chancellor Glasscock, Dkt. No. 61; see, e.g., Jung v. El 

Tinieblo Int’l, Inc., 2022 WL 16557663, at *9-10 (Del. Ch. Oct. 31, 2022) (holding that issues 

not addressed in briefing are deemed waived).