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




                            Final Report: May 29, 2019
                            Draft Report:
                            Date Submitted: April 11, 2019


 David J. Ferry, Jr., Esquire                   Gary E. Junge, Esquire
 James Gaspero, Jr., Esquire                    Schmittinger & Rodriguez, P.A.
 Ferry Joseph, P.A.                             414 South State Street
 824 Market Street, Suite 1000                  PO Box 497
 PO Box 1351                                    Dover, DE 19903
 Wilmington, DE 19899

 RE:      IMO: The Real Estate of Robert F. Markiewicz v. Elizabeth Christian, et al.
          C.A. No. 2018-0814-PWG

 Dear Counsel:

          The issue before me is whether to grant Respondents Elizabeth Christian

 (“Christian”), Jacquelyn Shannon, and Jean Rickards (together referred to as

 “Respondents”)’s March 19, 2019 motion for leave to file a counterclaim

 (“Motion”). I recommend that the Court deny Respondents’ Motion, without

 prejudice. This is my final report.

I.        Background

          Petitioner Robert Markiewicz (“Petitioner”) filed a petition for partition on

 November 8, 2018 seeking to partition by sale property (“Property”) located at

 30829 Piney Lane, Piney Point, Ocean View, Delaware. Respondents filed a
RE: IMO: The Real Estate of Robert F. Markiewicz v. Elizabeth Christian, et al.
C.A. No. 2018-0814-PWG
May 28, 2019

response on December 21, 2018 in opposition to the partition action, claiming that

the right to partition has been waived because the purpose of deeding the Property

to joint tenants with a right of survivorship was to ensure that the Property stayed

within the family and that partition in kind is an available remedy. Following

discovery, Respondents filed the Motion at issue, in which they seek to add a

counterclaim asking for the imposition of a constructive trust on Petitioner’s

interest in the Property and for the conveyance of Petitioner’s interest to them.

They allege that the Property was conveyed, in part, through a gratuitous transfer

in 1986 to Respondents and their other siblings (together referred to as “the

siblings”), as well as Petitioner, the spouse of a sibling, by the siblings’ parents.1

They assert the remaining interest in the Property was purchased from other

relatives by the siblings.2 On October 30, 2003, Respondent Christian was added

as an owner by quitclaim deed, in which all owners took the property as joint

tenants with a right of survivorship and not as tenants in common.3 The co-owners

listed on the 2003 deed are Petitioner and the siblings, including Cheryl

Markiewicz (Petitioner’s spouse), Colleen Smith, Jean Rickards, Jacquelyn




1
    Docket Item (“D.I.”) 19, Ex. A, ¶ 6.
2
    Id., ¶ 8.
3
    D.I. 1, Ex. A.

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RE: IMO: The Real Estate of Robert F. Markiewicz v. Elizabeth Christian, et al.
C.A. No. 2018-0814-PWG
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Shannon, Michael Shannon, and Christian.4              In their proposed counterclaim

(“Counterclaim”), Respondents assert that title to the Property was held as joint

tenants with right to survivorship to ensure that it would always be owned by a

sibling or “remain in the family,” and the siblings have paid all costs associated

with the Property’s purchase, improvements and maintenance, without contribution

from Petitioner, resulting in Petitioner’s unjust enrichment.5 They claim that the

siblings agreed that Christian’s name would be added to the deed after a mortgage

on the Property was paid off, and “Petitioner’s name would be removed because no

other spouses were in title, as spouses were not to have an interest in the

Property.”6 They also allege Petitioner has always been aware that the Property

was to remain in the family, has not participated in activities related to the

management and ownership of the Property, and has abused his confidential

relationship by refusing to remove his name from the deed of the Property and by

filing the partition action.7

          On March 28, 2019, Petitioner opposed the Motion as futile, because

Respondents have not shown wrongful conduct by Petitioner, which is required for


4
 Colleen Smith, Michael Shannon and Cheryl Markiewicz passed away in 2009, 2013,
and 2018, respectively, leaving Petitioner and Respondents as the remaining Property
owners.
5
    D.I. 19, Ex. A, ¶¶ 12-18.
6
    Id., ¶ 11.

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  RE: IMO: The Real Estate of Robert F. Markiewicz v. Elizabeth Christian, et al.
  C.A. No. 2018-0814-PWG
  May 28, 2019

  a constructive trust, their claim based on an oral promise to transfer the Property is

  barred by the Statute of Frauds, and their assertion of Petitioner’s abuse of a

  confidential relationship is barred by the applicable statute of limitations. 8 In their

  April 11, 2019 Reply, Respondents argue that Petitioner knew the deed was

  supposed to be in the names of the siblings only and that the siblings had an

  expectation that he would remove himself from the deed at some point and he

  would not interfere with the siblings’ ability to keep the Property in the family. 9

  They also claim there was part performance of the oral agreement through

  Petitioner’s “[n]ot participating in the annual meetings [held related to the

  Property] and not contributing to the upkeep fund or paying additional amounts

  when required.”10 Finally, they allege the breach of the confidential relationship

  did not occur until Petitioner “affirmatively asserted his right to ownership,” so

  that the statute of limitations or laches doesn’t prevent the claim.11

II.     Analysis

             Respondents seek to assert a counterclaim against Petitioner under Court of

  Chancery Rule 13(f), which provides that “[w]hen a pleader fails to set up a

  7
      Id., ¶¶ 21-26.
  8
      D.I. 21.
  9
      D.I. 23, at 2.
  10
       Id.
  11
       Id., at 2-3.

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RE: IMO: The Real Estate of Robert F. Markiewicz v. Elizabeth Christian, et al.
C.A. No. 2018-0814-PWG
May 28, 2019

counterclaim through oversight, inadvertence, or excusable neglect, or when

justice requires, the pleader may by leave of court set up the counterclaim by

amendment.”12 To amend a pleading after a responsive pleading has been served,

the Court determines whether the amendment is permitted under Court of

Chancery Rule 15(a). Leave to amend “shall be freely given when justice so

requires.”13 Motions to amend a pleading are committed to the sound discretion of

the judge.14 “In exercising that discretion, the Court considers certain factors,

which include bad faith, undue delay, dilatory motive, repeated failures to cure by

prior amendment, undue prejudice, and futility of amendment.”15 A court will not

grant a motion to amend if the amendment would be futile.16 And, “[t]he standard

for assessing the legal sufficiency of a proposed counterclaim is the same standard

applicable to a motion to dismiss” under Rule 12(b)(6).17 For a motion to amend,

as with a motion to dismiss, all well-pled allegations in the counterclaim are




12
     Ct. Ch. R. 13(f).
13
     Ct. Ch. R. 15(a).
14
  Cf. Ross Holding & Mgmt. Co. v. Advance Realty Grp., LLC, 2010 WL 3448227, at *2
(Del. Ch. Sept. 2, 2010); Fields v. Kent Cty., 2006 WL 345014, at *4 (Del. Ch. Feb. 2,
2006).
15
  Fields, 2006 WL 345014, at *4; see also Ross Holding & Mgmt. Co., 2010 WL
3448227, at *2.
16
  Clark v. State Farm Mut. Auto. Ins. Co., 131 A.3d 806, 811 (Del. 2016); Cartanza v.
Lebeau, 2006 WL 903541, at *2 (Del. Ch. Apr. 3, 2006).

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assumed to be true and the moving party receives the benefit of all reasonable

inferences.18    Conclusions in the counterclaim are not accepted as true without

allegations of facts to support them.19 The court considers whether it appears with

a reasonable certainty that the party seeking the amendment would be entitled to

the relief sought under the facts contained in the proposed counterclaim.20 If not,

the moving party has failed to state a claim for relief, and the motion for the

amendment should be denied because the counterclaim would be futile.

       To determine whether Respondents’ amendment should be permitted, I

address whether Respondents’ claims in the Counterclaim are futile. Assuming

that all well-pled facts in the Counterclaim are true, I determine whether

Respondents would be entitled to recover under any reasonably conceivable set of

circumstances inferred from the Counterclaim. Respondents argue two grounds

upon which the Court should impose a constructive trust.                First, they claim


17
  King Const., Inc. v. Plaza Four Realty, LLC, 2012 WL 3518125, at *3 (Del. Super.
Aug. 7, 2012); see also Clark, 131 A.3d at 811-12; Ross Holding & Mgmt. Co., 2010 WL
3448227, at *2; Cartanza, 2006 WL 903541, at *2.
18
  See Prairie Capital III, L.P. v. Double E Holding Corp., 132 A.3d 35, 49 (Del. Ch.
2015); Litman v. Prudential-Bache Properties, Inc., 1994 WL 30529, at *2 (Del. Ch. Jan.
14, 1994), aff’d, 642 A.2d 837 (Del. 1994); King Const., Inc. v. Plaza Four Realty, LLC,
2012 WL 3518125, at *3.
19
 Cf. In re Tri-Star Pictures, Inc., Litig., 634 A.2d 319, 326 (Del. 1993); Cartanza, 2006
WL 903541, at *2; Litman, 1994 WL 30529, at *3.
20
  Ross Holding & Mgmt. Co., 2010 WL 3448227, at *2; Cartanza, 2006 WL 903541, at
*2.

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RE: IMO: The Real Estate of Robert F. Markiewicz v. Elizabeth Christian, et al.
C.A. No. 2018-0814-PWG
May 28, 2019

Petitioner’s conduct, by failing to remove his name when he knew the siblings’

intention was for the Property to remain in the family, or to make any monetary

contributions towards the Property while retaining title in the Property, is

unconscionable, an abuse of his confidential relationship, and would result in his

unjust enrichment if he is allowed to remain as an owner of the Property. Second,

Respondents allege that their purported oral agreement with the Petitioner to

remove his name from the title was partially performed and justifies the imposition

of a constructive trust on his interest in the Property.

       A constructive trust “does not arise from the presumed intent of the parties,

but is imposed when a defendant’s fraudulent, unfair or unconscionable conduct

causes him to be unjustly enriched at the expense of another to whom he owed

some duty.”21      Evidence of “[s]ome fraudulent or unfair and unconscionable

conduct is essential.”22 “Delaware courts have recognized that, where there is such

trust between family members that a confidential relationship is created, the court



21
   Adams v. Jankouskas, 452 A.2d 148, 152 (Del. 1982); see also Quill v. Malizia, 2005
WL 578975, at *8 (Del. Ch. Mar. 4, 2005) (“a constructive trust does not hinge on the
intent of the parties, but rather on a finding of fraud, violation of fiduciary duty, or some
other unconscionable act by one of the parties that requires equitable intervention to
prevent unjust enrichment”); Elliott v. Holladay, 2003 WL 1240497, at *5 (Del. Ch. Mar.
7, 2003) (citing Wagner v. Hendry, 2000 WL 238009, at *7 (Del. Ch. Feb. 23, 2000)).
Conversely, a resulting trust, which is not plead here, “arises from the presumed
intentions of the parties and upon the circumstances surrounding the particular
transaction.” Adams, 452 A.2d at 152.

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RE: IMO: The Real Estate of Robert F. Markiewicz v. Elizabeth Christian, et al.
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can grant equitable relief to remedy inequitable conduct of a family member who

was unjustly enriched by their actions.”23

         Here, Respondents must first show Petitioner had a confidential or fiduciary

duty to them that he breached by refusing to remove his name from the deed. The

question is whether the factual inferences contained in the Counterclaim show the

existence of a confidential relationship between Petitioner and Respondents, such

that Petitioner owed fiduciary duties to Respondents. A confidential, or special,

relationship may arise where “one party places a special trust in another and relies

on that trust or where a special duty exists for one party to protect the interests of

another.”24 “This special trust is often found in the family context, where one



22
     Greenly v. Greenly, 49 A.2d 126, 129 (1946).
23
  In re Tr. FBO duPont Under Tr. Agreement Dated Aug. 4, 1936, 2018 WL 4610766, at
*13 (Del. Ch. Sept. 25, 2018).
24
   In re Wilbert L., 2010 WL 3565489, at *5 (Del. Ch. Sept. 1, 2010) (citing Goodrich v.
E.F. Hutton Grp., Inc., 1991 WL 101367, at *2 (Del. Ch. June 7, 1991)); see generally
Bird’s Const. v. Milton Equestrian Ctr., 2001 WL 1528956, at *4 (Del. Ch. Nov. 16,
2001) (“Delaware law has acknowledged various relationships as proper fiduciary
relationships, for example: attorney and client, general partners, administrators or
executors, guardians, and principals and their agents.”); Wagner, 2000 WL 238009, at *7
(finding that the daughter-in-law “reasonably placed faith in [her father-in-law] and
regarded him as family”); McMahon v. New Castle Assocs., 532 A.2d 601, 604 (Del. Ch.
1987) (“attention must be paid to the word ‘special’ lest the statement be thought to
describe too broadly chancery's concerns with relationships where an element of trust, as
commonly understood, is present”); Carey v. Carey, 1982 WL 117003, at *3 (Del. Ch.
Aug. 11, 1982) (the imposition of a constructive trust was possible where daughters
placed their trust in their mother and brother “based apparently on the confidential and
familial relationships between them”).

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RE: IMO: The Real Estate of Robert F. Markiewicz v. Elizabeth Christian, et al.
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justifiably places her trust in a close relative.”25 Or, could possibly be found where

family members are involved in a partnership or a joint venture, such that fiduciary

duties arise related to the business relationships.26 Here, Respondents infer that

Petitioner is not “family” since they seek that he relinquish his interest in the

Property because the Property was to “remain in the family.” But, he was the

spouse of a deceased sibling and the joint ownership of the Property could be

considered a loose partnership or joint venture.           However, even if I assume

arguendo that a confidential relationship has been established, Respondents have

not shown inequitable or unconscionable conduct by Petitioner to justify the

imposition of a constructive trust with regard to the Property to prevent his unjust

enrichment.      There are no allegations that Petitioner obtained his title in the

Property in an unconscionable manner – the Counterclaim asserts he received his

interest in the Property originally in 1986 along with his spouse and her other

siblings. Or that Petitioner fraudulently or unconscionably tricked the siblings into

keeping him on the deed – when an additional sibling was added to the deed in

2003, he could have been taken off the deed at that time, but was not. Further,

Respondents point to no actions taken by Petitioner but rely on his inaction – his

failure to have paid towards the purchase, improvement or maintenance of the

25
     In re Wilbert L., 2010 WL 3565489, at *5.
26
     See Quill v. Malizia, 2005 WL 578975, at *11-*12 (Del. Ch. Mar. 4, 2005).

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RE: IMO: The Real Estate of Robert F. Markiewicz v. Elizabeth Christian, et al.
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Property or to have attended meetings regarding the Property and his refusal to

remove his name from the deed – to show that he acted inequitably with regard to

the Property. The Counterclaim addresses that the siblings contributed towards the

upkeep and other costs associated with the Property, which, I would presume,

included Petitioner’s spouse. And it claims that, as the siblings passed away,

“remaining siblings paid a greater share of the expenses,” and that the siblings’

parents contributed significantly.       But, it does not allege what Petitioner’s

obligations regarding the Property were – from which it could be deduced that his

inaction was unfair or breached some duty.27 Further, the Counterclaim does not

assert that Petitioner ever promised to remove his name – it claims that all of the

siblings agreed he should be removed from the title, but it does not indicate that he

agreed to such an action. Accordingly, I find Respondents have failed to state a

claim for relief to support the imposition of a constructive trust based upon

Petitioner’s inequitable conduct.

       And, a constructive trust based upon an oral contract to convey land is

essentially “the equivalent of specific performance of a contract to convey an



27
   Respondents are not without a remedy to address their claims for Petitioner’s alleged
failure to make his share of contributions towards the Property or unjust enrichment. As
a part of the process to divide proceeds from the partition sale, all joint owners may
submit claims to the Court for consideration as contributions they have made towards, or
benefits they have received from, the Property.

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RE: IMO: The Real Estate of Robert F. Markiewicz v. Elizabeth Christian, et al.
C.A. No. 2018-0814-PWG
May 28, 2019

interest in land.”28 To be enforced in equity, such a contract must be proven to

exist.29 Consistent with the Statute of Frauds, contracts to convey land are usually

in writing.30 However, there is a well-established exception to the Statute of

Frauds that partial performance of an oral contract may be enforced by specific

performance.31 The actual part performance must be “a joint act, or an act which

‘clearly indicates mutual assent’ of the parties to the oral contract.”32 Courts have

generally found that taking possession of the land, making partial or full payment

for the land, rendering services that were agreed to be exchanged for the land, or

making valuable improvements on the land in reliance on the oral contract

generally demonstrate part performance.33

           Here, the Counterclaim does not allege that Petitioner agreed to remove his

name and convey his interest in the Property to the other owners, or that he,

directly, took any actions indicating his mutual assent to such an agreement that


28
     Gebler v. Gall, 1986 WL 11108, at *3 (Del. Ch. Sept. 23, 1986).
29
     Id.
30
   The Statute of Frauds provides that actions cannot be brought to enforce the sale of
lands “unless the contract is reduced to writing, or some memorandum, or notes thereof,
are signed by the person to be charged therewith. . . .” 6 Del. C. § 2714(a).
31
  Walton v. Beale, 2006 WL 265489, at *4 (Del. Ch. Jan. 30, 2006); Heckman v. Nero,
1999 WL 182570, at *3 (Del. Ch. Mar. 26, 1999).
32
  Walton, 2006 WL 265489, at *4; Sargent v. Schneller, 2005 WL 1863382, at *5 (Del.
Ch. Aug. 2, 2005).
33
     Walton, 2006 WL 265489, at *4; Sargent, 2005 WL 1863382, at *5.

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   RE: IMO: The Real Estate of Robert F. Markiewicz v. Elizabeth Christian, et al.
   C.A. No. 2018-0814-PWG
   May 28, 2019

   would constitute part performance. I find Respondents have also failed to state a

   claim for relief that would survive a Rule 12(b)(6) motion related to the imposition

   of a constructive trust based upon an alleged oral contract with Petitioner to convey

   his interest in the Property.

III.      Conclusion

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

   Respondents’ motion for leave to file a counterclaim without prejudice, because

   their proposed counterclaim is futile since they have failed to state a claim for

   relief related to the imposition of a constructive trust based on Petitioner’s

   inequitable conduct or on an alleged oral contract with Petitioner to convey his

   interest in the Property to them. This is a final report and exceptions may be taken

   pursuant to Court of Chancery Rule 144.

                                                    Respectfully,

                                                    /s/ Patricia W. Griffin

                                                    Patricia W. Griffin
                                                    Master in Chancery




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