                                     COURT OF CHANCERY
                                           OF THE
                                     STATE OF DELAWARE
KIM E. AYVAZIAN                                                             CHANCERY COURTHOUSE
MASTER IN CHANCERY                                                                34 The Circle
                                                                         GEORGETOWN, DELAWARE 19947
                                                                                      AND
                                                                        NEW CASTLE COUNTY COURTHOUSE
                                                                       500 NORTH KING STREET, SUITE 11400
                                                                        WILMINGTON, DELAWARE 19980-3734



                                                      August 8, 2016


Dean A. Campbell, Esq.
401 North Bedford Street
PO Box 568
Georgetown, DE 19947

David N. Rutt, Esquire
Moore & Rutt, P.A.
122 West Market Street
P.O. Box 554
Georgetown, DE 19947

         RE:         John Haldeman, v. Marjorie Lee Worrell et al.
                     C.A. No. 8282-MA

Dear Counsel:

         I have reviewed Plaintiff John Haldeman’s Motion to Re-Open Record filed

on July 13, 2016,1 and the response of Defendants Marjorie Lee Worrell and the

Estate of Marjorie L. Tyson, by and through its Executrix, Marjorie L. Worrell,

filed on July 26, 2016.2 For the reasons that follow, I recommend that the motion

be denied.




1
    Docket Item (“DI”) 66.
2
    DI 69.
                                             Page 1 of 7
      Plaintiff seeks to re-open the record of this case to admit copies of (a) a letter

allegedly written by Paul D. Nelson, an attorney in Media, Pennsylvania,

concerning a telephone conversation that took place on February 19, 2016 with

Plaintiff’s attorney, (b) three checks allegedly signed by Mrs. Tyson in 2007 and

2008 and provided to Mr. Nelson by Mid-Atlantic Bank, and (c) two pages of

handwritten notes allegedly provided to Mr. Nelson by Mrs. Tyson listing loans or

monetary gifts to her stepson Johnnie Ray Tyson, Jr. from April 2, 1993 to June

27, 2008, and a schedule of Johnnie Ray’s repayments of a $9,600 loan during

2002 and 2003.3 Plaintiff would like an opportunity to explain that he had no

knowledge of the depth of Johnnie Ray’s relationship with Mrs. Tyson or of these

loans and gifts. Defendants oppose this motion, arguing that the relationship

between Mrs. Tyson and her stepson is irrelevant to the issues before the Court.

Furthermore, Defendants argue that the checks are not newly discovered evidence

because they were faxed to Nelson in May 2010, two months prior to Nelson’s

written correspondence with Plaintiff.4 These documents were in existence and,

therefore, available to Plaintiff prior to trial had he wished to introduce them into

the record.




3
 Motion to Re-Open Record, Ex. A. DI 66.
4
 See Letter dated July 28, 2010 from Paul D. Nelson, Esq. to Marjorie Tyson and
John Haldeman, Attorney-in Fact. JX 9.
                                       Page 2 of 7
      There has been no final judgment in this case because the Court is

conducting a de novo review of a Master’s Final Report.5           Plaintiff had the

opportunity to fully and completely present his evidence during the course of a

three-day trial and to make his arguments in post-trial briefings before a Master.

Nevertheless, this Court will reopen the evidentiary record before entry of a final

judgment when “‘doing so serves the interest of fairness and substantial justice.’”6

The factors to consider when deciding whether to grant a motion to reopen include:

      (1)whether the evidence has come to the moving party’s knowledge since
      the trial; (2) whether the exercise of reasonable diligence would have caused
      the moving party to discover the evidence for use at trial; (3) whether the
      evidence is so material and relevant that it will likely change the outcome;
      (4) whether the evidence is material and not merely cumulative; (5) whether
      the moving party has made a timely motion; (6) whether undue prejudice
      will inure to the nonmoving party; and (7) considerations of judicial
      economy.7

      I conclude that it would not serve the interests of fairness or justice to allow

Plaintiff to supplement the record. The relationship between Mrs. Tyson and her

stepson was incidental to the issues before me. That Mrs. Tyson had enjoyed a

close relationship with her stepson despite the circumstances of his birth merely

provided additional factual support for my characterization of Mrs. Tyson as a

generous and warm-hearted person. At issue was whether Plaintiff could void


5
 See Court of Chancery Rule 144(a).
6
 Whittington v. Dragon Group, LLC, 2012 WL 3089861, at *3 (Del. Ch. July 20,
2012) (quoting Lola Cars Int’l Ltd. v. Krohn Racing, LLC, 2010 WL 1818907, at
*1 (Del. Ch. Apr. 23, 2010)).
                                      Page 3 of 7
Mrs. Tyson’s estate planning documents, i.e., Mrs. Tyson’s 2012 Last Will and

Testament leaving her estate to her niece Defendant Worrell and the 2012

Assignment of Lease conveying Mrs. Tyson’s one-half interest in the Lewes Beach

house to Defendant Worrell. Plaintiff argued that he was entitled to rescission of

these documents due to fraud, misrepresentation, and undue influence by

Defendant Worrell, lack of testamentary capacity and the capacity to execute a

deed, and equitable estoppel. Defendants, on the other hand, accused Plaintiff of

breaching his fiduciary duty to Mrs. Tyson.          My recommendation to deny

Plaintiff’s requested relief was based primarily on financial records from 2011 to

2012 and eyewitness testimony concerning Mrs. Tyson’s life after she was moved

to Lewes in August 2011. My recommendation to order an accounting from

Plaintiff was predicated on, among other factors, Plaintiff being listed as a power

of attorney on Mrs. Tyson’s credit union accounts, his commingling of his own

funds with Mrs. Tyson’s funds, and his failure to keep adequate records of Mrs.

Tyson’s bills and his use of Mrs. Tyson’s funds.

         The record shows that sometime in 2007 or 2008, Plaintiff’s son moved into

Mrs. Tyson’s Boothwyn residence, ostensibly for the purpose of helping to care for

his great-aunt, who had Parkinson’s disease and was undergoing medical treatment

for cancer. From approximately 2008 until August 2011 when she was moved to


7
    Id. (footnotes omitted).
                                       Page 4 of 7
Lewes Beach, Mrs. Tyson’s world appeared to consist of Plaintiff, Plaintiff’s adult

son and daughter, Mrs. Tyson’s cleaning lady and handyman, and Pennsylvania

hospice workers. Although Plaintiff now claims that Johnnie Ray lived near Mrs.

Tyson during this time period, and presumably had access both to his stepmother

and her ATM card, this is pure speculation on his part. On the other hand, the

record is clear that not only did Plaintiff’s son reside with Mrs. Tyson, but Plaintiff

himself drove from Millsboro, Delaware to Boothwyn, Pennsylvania every two

weeks to visit Mrs. Tyson. Even if I were to reopen the record to include the three

checks and list of loans and gifts to Johnnie Ray from Mr. Tyson and/or Mrs.

Tyson, this evidence is not so material and relevant that it would likely change the

outcome of the Master’s Final Report, which dealt with the relationship between

Mrs. Tyson and Plaintiff, who was her nephew and her power of attorney.8

      Furthermore, it appears that Plaintiff may have been aware of this evidence

for some time. Although Nelson’s letter is dated February 22, 2016,9 in it, Nelson

refers to two pages that had been given to him by Mrs. Tyson. Since Mrs. Tyson

was moved to Lewes Beach in August 2011, Nelson must have obtained these

pages from Mrs. Tyson sometime before then.          Nelson may even have obtained

the pages in 2010 when he was engaged by Plaintiff and Mrs. Tyson to obtain a



8
 I do note, however, that the checks dated 2007 and 2008 might be relevant to an
accounting if the Court adopts the recommendations in the Master’s Final Report.
                                       Page 5 of 7
title search of the Boothwyn residence and investigate Johnnie Ray’s alleged

misrepresentation and trickery that led to the Boothwyn residence being titled in

Johnnie Ray’s sole name. In addition, the copies of three checks which Plaintiff

seeks to admit appear to have been printed in May and October 2010, and faxed to

Nelson by Mid-Atlantic Bank on October 28, 2010, three months after Plaintiff’s

telephone communication with Nelson.10         Even if Plaintiff was unaware of the

existence of these documents prior to trial, he could have discovered them with the

exercise of reasonable diligence.

      Trial in this matter took place over several days in March 2015.11 The

Master’s Draft Report was issued on December 31, 2015.12 Plaintiff apparently

obtained these documents from Nelson in late February 2016.        Plaintiff fails to

provide any reason for waiting to file this motion until after the issuance of the

Master’s Final Report on June 16, 2016.13              Although the analysis and

recommendation would not have been different if Plaintiff had filed his motion

sooner, at least it would have avoided any disruption to the process of taking

exception to a Master’s Final Report, which has been stayed during the pendency


9
  Motion to Re-Open Record, Ex. A (Letter to Dean Campbell, Esq. dated February
22, 2016). Docket Item (“DI”) 66.
10
   See JX 9.
11
   DI 38.
12
   DI 51.
13
   DI 58.
                                     Page 6 of 7
of this motion.14 As it stands, judicial economy has not been served by this

process, and would not be served by re-opening the record to explore irrelevant

matters concerning the relationship between Mrs. Tyson and her stepson.

        In the interest of moving this case along, I am waiving a draft report and

issuing my recommendation to deny the motion to reopen the record as a Master’s

Final Report. The parties are referred to 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




14
     DI 70.
                                        Page 7 of 7
