                               COURT OF CHANCERY
                                     OF THE
                               STATE OF DELAWARE
PATRICIA W. GRIFFIN                                                   CHANCERY COURTHOUSE
MASTER IN CHANCERY                                                         34 The Circle
                                                                   GEORGETOWN, DELAWARE 19947




                           Final Report:     December 19, 2018
                           Date Submitted:   September 11, 2018


Jason C. Powell, Esquire                     Thomas Uebler, Esquire
The Powell Firm, LLC                         Kerry Porter, Esquire
1201 N. Orange Street, Suite 500             McCollom D’Emilio Smith & Uebler
PO Box 289                                   2751 Centerville Road #401
Wilmington, DE 19899                         Wilmington, DE 19808

David J. Ferry, Jr., Esquire
Rick S. Miller, Esquire
James Gaspero, Esquire
Ferry Joseph, P.A.
824 N. Market Street, Suite 1000
PO Box 1351
Wilmington, DE 19899

RE:      Christine Muirhead v. Perry Mace
         C.A. No. 2017-0569-PWG

Dear Counsel:

         Pending before me is a motion to intervene in an action post-judgment. The

original petition in this case was filed by the potential intervenor (“intervenor”)’s

sister against her uncle, individually and as executor of their grandfather’s estate,

seeking to invalidate a 2014 will and durable power of attorney executed by their

grandfather because of his alleged lack of testamentary capacity, and of undue
Christine Murihead v. Perry Mace
C.A. No. 2017-0569-PWG
December 19, 2018

influence, at the time he executed those documents. The petition also sought to

invalidate a restatement of trust subsequently signed by the intervenor’s uncle as

the grandfather’s agent, which allegedly made the trust payable to the uncle and

eliminated the intervenor and sister’s interests in the trust. Based upon the parties’

agreement, the case was dismissed by the Court with prejudice. Five months

following the dismissal, the intervenor filed his motion to intervene. Because the

motion to intervene is untimely, I recommend that the Court deny the motion. This

is a final report.

    I.   Background

         Christine Muirhead (“Christine”) filed, on August 8, 2017, a petition against

Perry Mace (“Perry”), individually and as executor of the estate of Herbert B.

Mace (“Herbert”), and as trustee of Herbert B. Mace Revocable Trust and of

Josephine M. Mace (“Josephine”) Revocable Trust, for review of proof of will, to

invalidate restatement of trust, to invalidate durable power of attorney (“POA”), to

declare rights under trust and for related equitable relief.1                 In that petition,

Christine claimed that Herbert’s 2014 will and 2014 POA were invalid because he

lacked testamentary capacity and was unduly influenced by Perry when those

documents were executed, that the 2016 restatement of Herbert’s Revocable Trust

was also invalid because it was executed by Perry pursuant to the invalid POA, and

1
    I use first names in pursuit of clarity and intend no familiarity or disrespect.
                                                 2
Christine Murihead v. Perry Mace
C.A. No. 2017-0569-PWG
December 19, 2018

that Christine is entitled to an interest in real property under Josephine’s Revocable

Trust. She asserts, based upon the trusts and wills in effect before the invalid

changes, she is entitled to a 25% interest in Rehoboth Beach property owned by the

trusts, which she owns as tenant-in-common with Perry and Jason Calvetti

(“Jason”), her brother. On September 19, 2017, a waiver of service by Jason was

filed, in which he acknowledged receiving a copy of the petition on September 11,

2017 and waived formal service.2 The parties stipulated to an extension of time for

Perry to respond to the petition and on February 6, 2018, the parties’ stipulation

and dismissal of the case with prejudice was ordered by the Court.3 On July 23,

2018, Jason filed a motion to intervene (“Motion”) in the action, which was

opposed by Perry on August 24, 2018, and briefing on the Motion followed.

II.      Analysis

         The issue is whether Jason is entitled to intervene in this action under Court

of Chancery Rule 24(a) or (b). Jason argues that he is entitled to intervene under

Court of Chancery Rule 24(a) because he has an interest in the property at issue in

the action and he did not intervene in the action at an earlier time because his

interest was adequately represented by Christine, who was entitled to the same

relief as he was. He claims that he had no reason to intervene in the action until


2
    Docket Item (“D.I.”) 8.
3
    D.I. 10.
                                            3
Christine Murihead v. Perry Mace
C.A. No. 2017-0569-PWG
December 19, 2018

Christine settled her claim against Perry and no longer adequately represented his

interests.4 When he learned about her actions, “he sought independent counsel to

continue litigation against [Perry].”5 Alternatively, Jason asserts that the Court

should permit him to intervene under Rule 24(b) because his claims have common

questions of law and fact with this action, intervention will not unduly delay or

prejudice the adjudication of the original parties’ rights. He also argues that his

motion is timely.         Perry opposes Jason’s intervention, claiming the motion is

untimely since Jason has known about this case since September of 2017 and failed

to seek to intervene at an earlier stage in the case. He also claims that the prejudice

to him outweighs any prejudice to Jason, because the estate has been closed, estate

assets distributed, and he may have to defend time-barred claims.6 Also, Perry

argues there are no unusual circumstances that would justify intervention following

dismissal of the action, such as evidence of collusion or fraud between the parties

which prejudiced Jason’s rights.


4
    D.I. 11, ¶ 23.
5
    Id., ¶ 24.
6
  Perry argues that Jason seeks to “end-run the six-month statutory limitations period that
he missed to challenge [Herbert]’s will,” and that Jason’s claim to review the proof of
will would not relate back to the date that Christine filed the action, since 12 Del. C. §
1309 is a statute of repose. D.I. 15, at 6-7. Jason responds that considerations of equity
permit his claim to relate back, similar to equitable considerations under Court of
Chancery Rule 15(c) and there is no prejudice. D.I. 17, at 9-10. I do not address that
issue related to this Motion.

                                            4
Christine Murihead v. Perry Mace
C.A. No. 2017-0569-PWG
December 19, 2018

         Rule 24 provides that, for timely applications to intervene, (a) a person has a

right to intervene in an action if he claims an interest in the property which is the

subject of the action and denial of his intervention may impair or impede his ability

to protect that interest, unless his interest is adequately represented by existing

parties; and (b) intervention may be permitted if the claim has a common question

of law or fact with the main action and the intervention will not unduly delay or

prejudice the existing parties.7

         Timeliness is a fundamental requirement for intervention and a “flexible

concept, requiring consideration of all the circumstances of a particular case.”8

The timeliness analysis “rests in the sound discretion of the trial court.”9 Post-

judgment intervention, as is sought in this case, is “unusual and infrequently

granted.”10      It is not automatically denied but “courts have required a strong

showing that the circumstances justify the intervention due to concerns about



7
    Ct. Ch. R. 24(a), (b).
8
  Dugan v. Dineen, 1990 WL 82719, at *5 (Del. Ch. June 12, 1990); see also Shawe v.
Elting, 2015 WL 5167835, at *2 (Del. Ch. Sept. 2, 2015) (“[A]s a prerequisite to
intervening under either [Court of Chancery] Rule 24(a) or (b), the proposed intervenor
must make timely application.”) (citation omitted); Sutherland v. Sutherland, 2015 WL
894968, at *4 (Del. Ch. Feb. 27, 2015); Carlyle Inv. Mgmt. L.L.C. v. Moonmouth Co.
S.A., 2015 WL 778846, at *4 (Del. Ch. Feb. 24, 2015) (“[t]ardiness in moving to
intervene can be a valid reason to deny a motion for intervention”) (citations omitted).
9
 Great Am. Leasing Corp. v. Republic Bank, 2003 WL 22389464, at *1 (Del. Ch. Oct. 3,
2003).
10
     Dugan, 1990 WL 82719, at *5.
                                            5
Christine Murihead v. Perry Mace
C.A. No. 2017-0569-PWG
December 19, 2018

prejudice and judicial order.”11 Factors that courts have considered in determining

timeliness for purposes of intervention include: “(1) the length of time the movant

knew or reasonably should have known of [his] interest before [he] petitioned to

intervene; (2) prejudice to the existing parties due to failure to petition for

intervention earlier; (3) the prejudice the movant would suffer if not allowed to

intervene; and (4) the existence of unusual circumstances weighing either for or

against intervention.”12           There is no “bright-line rule” in determining when a

motion to intervene is untimely, and cases “finding untimeliness or expressing

serious concern about unwarranted delay involved delays of between five and

twelve months.”13

        A key factor in determining timeliness is when the potential intervenor

knew or reasonably should have known about the need to intervene, or whether he

“was in a position to seek intervention at an earlier stage in the case.”14 Courts


11
   Sutherland, 2015 WL 894968, at *4; Shanghai Power Co. v. Delaware Tr. Co., 1975
WL 4181, at *2 (Del. Ch. July 11, 1975) (acknowledging courts’ reluctance “to allow
intervention after the action has gone to judgment and to require that a strong showing be
made by a post-judgment applicant for intervention, even where intervention is of right
rather than permissive”).
12
  Shawe, 2015 WL 5167835, at *2 (analyzing factors identified for determining the
analogous timely application requirements in Rule 24 of the Federal Rules of Civil
Procedure).
13
  Carlyle Inv. Mgmt. L.L.C. v. Moonmouth Co. S.A., 2015 WL 778846, at *5 (Del. Ch.
Feb. 24, 2015) (citations omitted).
14
 See Shawe, 2015 WL 5167835, at *2; Great Am. Leasing Corp. v. Republic Bank, 2003
WL 22389464, at *1 (Del. Ch. Oct. 3, 2003).
                                                6
Christine Murihead v. Perry Mace
C.A. No. 2017-0569-PWG
December 19, 2018

have “generally been reluctant to allow intervention when the applicant appears to

have been aware of the litigation but has delayed unduly in seeking to intervene.”15

Here, Jason had actual notice about the case by, at least, September of 2017, when

his consent to waive service of the petition was filed. The litigation itself moved

relatively quickly – the petition was filed in August of 2017 and a stipulated order

of dismissal was entered by the Court in February of 2018. Jason filed this Motion

in July of 2018 – five months following the dismissal. Jason’s justification is that

his interests were the same as Christine.16             And he thought Christine was

representing his interests until he “discovered” the case was dismissed after

Christine and Perry “entered into a settlement agreement that awarded [Christine] a

particular sum of money in return for withdrawing her Petition.”17 He alleges he

was not informed of the settlement by the parties, even though they were aware of

his interest in the matter; and when he received knowledge about the settlement, he

sought independent counsel to continue litigation against Perry.18 Jason has not

provided information detailing exactly when he learned about the dismissal, which



15
     Great Am. Leasing Corp., 2003 WL 22389464, at *1.
16
   Christine stated in her petition that the “only other person having a potential interest in
this review proceeding is [her] brother, Jason,” and that “Jason’s rights . . . are the same
as [hers].” D.I. 1, ¶ 24.
17
     D.I. 11, ¶ 18.
18
     D.I. 17, at 8; D.I. 11, ¶ 24.
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Christine Murihead v. Perry Mace
C.A. No. 2017-0569-PWG
December 19, 2018

could explain whether his delay after learning about the dismissal was significantly

shorter than is evident from the information provided.

        And, whether motivated by misplaced trust in Christine’s loyalty in

representing his interests – or the desire to “sit back” while Christine undertook the

cost and burden of litigation, Jason was aware of the case and chose not to

intervene earlier in the proceedings.19          Given his decision to “stand on the

sidelines” in this case, it is reasonable to expect that he monitor progress in the

case to protect his own interests. Given these considerations, he reasonably should

have known about the need to intervene in the case much earlier.

        Other factors to consider in determining timeliness for intervention include

whether permitting Jason to intervene would cause prejudice to the original parties

and whether Jason will be prejudiced if intervention is denied. Christine has not

responded concerning Jason’s Motion or claimed any prejudice to her if Jason is

allowed to intervene. Perry’s opposition to the Motion focuses on the burden on

him if he, as executor, is required to litigate “time-barred” claims related to

Herbert’s estate, which is closed.20 Undoubtedly, reopening this matter would be


19
   Jason may have thought that Christine would be motivated by sibling loyalty to
represent his interests, but that did not occur and there is no evidence that Christine owed
Jason a fiduciary duty or other legal obligation to represent his interests in this matter.
20
   This relates to the argument that Jason’s intervention would relate back to the time the
petition was filed, bringing him into compliance with the six-month limitation in 12 Del.
C. § 1309 for contesting the validity of a will. See n. 6 supra.
                                             8
Christine Murihead v. Perry Mace
C.A. No. 2017-0569-PWG
December 19, 2018

burdensome to the parties, particularly considering the parties’ efforts negotiating

their settlement which might be upset through the intervention. And Jason will

also suffer prejudice because, without being allowed to intervene, his ability to

contest Herbert’s will is likely foreclosed. Intervention will cause both parties to

suffer prejudice in some form.

         The final factor related to the timeliness to intervene considers any “unusual

circumstances weighing for or against intervention.”21            I consider that post-

judgment intervention requires a strong showing of entitlement because of the

tension between the “hazards of upsetting final judgments” and the concern that an

intervenor “will be bound by a judgment” when he has not had “an opportunity to

protect” his interests.22 Judgment occurred in this case in February of 2018 and

Jason failed to seek intervention until five months later – and 10 months from

when the court record shows he had notice of the action.          Here, it appears Jason

“stood on the sidelines” in the action, expecting that his sister’s sibling loyalty

would cause her to act in his best interests, in addition to her own. That assumed

reliance on her fidelity – without any apparent legal duty to do so – was, sadly,

misplaced. And, there is no allegation that Christine or Perry colluded or acted

fraudulently – such as by giving Jason false information regarding the status of the


21
     Shawe v. Elting, 2015 WL 5167835, at *3 (Del. Ch. Sept. 2, 2015).
22
     Dugan v. Dineen, 1990 WL 82719, at *5 (Del. Ch. June 12, 1990).
                                             9
Christine Murihead v. Perry Mace
C.A. No. 2017-0569-PWG
December 19, 2018

litigation – Jason only asserts that they didn’t inform him when the matter settled.

Jason knew the case was proceeding and failed to make an effort to determine what

was happening in the case, apparently for extended periods of time. His delay in

filing the Motion may have resulted from inattention but were inexcusable, given

the circumstances. Weighing all of the factors pertaining to timeliness discussed

above, I find the circumstances, when considered as a whole, weigh against

permitting Jason to intervene at this late date. Jason has not made the strong

showing necessary to justify intervention in this case.

   III.     Conclusion

        For the reasons set forth above, I recommend that the Court deny Jason’s

motion to intervene. This is a final report and exceptions may be taken under

Court of Chancery Rule 144.

                                       Sincerely yours,

                                       /s/ Patricia W. Griffin

                                       Patricia W. Griffin
                                       Master in Chancery
PWG/kekz




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