                                         COURT OF CHANCERY
                                                 OF THE
                                          STATE OF DELAWARE
SELENA E MOLINA
MASTER IN CHANCERY                                                             LEONARD L. WILLIAMS JUSTICE CENTER
                                                                                500 NORTH KING STREET, SUITE 11400
                                                                                  WILMINGTON, DE 19801-3734

                                   Final Report: June 15, 2020
                                   Draft Report: May 29, 2020
                                Date Submitted: February 20, 2020


     Daniel C. Herr, Esquire                              Dean A. Campbell, Esquire
     Law Office of Daniel C. Herr, Esquire                Law Office of Dean A. Campbell, P.A.
     1225 N. King Street, Suite 1000                      Georgetown Professional Park
     Wilmington, DE 19801                                 20175 Office Circle
                                                          Georgetown, DE 19947

     Kashif I. Chowdry, Esquire                           R. Eric Hacker, Esquire
     Parkowski, Guerke & Swayze, P.A                      Morris James LLP
     116 Water Street                                     500 Delaware Avenue
     P.O. Box 598                                         P.O. Box 2306
     Dover, DE 19903                                      Wilmington, DE 19899


               Re:   Jerita Hill, et al. v. Judy L. Myers, et al.
                     C.A. No. 2018-0160-SEM

     Dear Counsel:

               Family members of the late G. Robert Dickerson initiated this matter alleging

     breaches of fiduciary duties and undue influence by the decedent’s close friend,

     confidant, and attorney-in-fact during the decedent’s final, most vulnerable years.

     The alleged offender moved to dismiss the complaint, in part, for lack of standing

     and failure to state a claim under Court of Chancery Rule 12(b)(6). For the following

     reasons, I recommend that the motion to dismiss be denied.
C.A. No. 2018-0160-SEM
June 15, 2020
Page 2




       I.      Background

       The allegations in this action are troubling. Plaintiffs Jerita Hill, Tammera

Ward, Michael Dickerson, Pamela Dunn, Judy Northam, William Campbell, and

Dean Campbell (collectively, “Plaintiffs”) allege that Judy Myers (“Defendant”)

breached duties she owed to, and unduly influenced, G. Robert Dickerson (the

“Decedent”), in the years leading up to his death on January 23, 2018. 1 Also alleged

is that Defendant acted in concert with or was assisted by Tracey Hill and Angela

Hill (together, the “Non-Moving Defendants”) in effectuating transactions on behalf

of the Decedent that the Decedent did not, could not, or would not have approved. 2

       Specifically, Plaintiffs allege that the Non-Moving Defendants indicated

interest in buying the Decedent’s family farm (the “Property”) but, time and again,

the Decedent refused. 3 In line with his refusal, the Decedent provided for the

Property in his Last Will and Testament executed on or about June 30, 1999 (the

“Will”); 4 in short: the value of the Property was to pass to Plaintiffs. But, once the

Decedent was hospitalized,5 and only after Defendant was granted power of attorney


1
  Unless otherwise noted, the facts recited herein are taken from the operative pleading, the Second
Amended Complaint. Docket Item (“D.I.”) 41.
2
  Id. ¶ 93.
3
  Id. ¶¶ 20, 80.
4
  Id. ¶ 13. See also D.I. 41, Ex. A.
5
  D.I. 41 ¶ 17.
C.A. No. 2018-0160-SEM
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over the Decedent’s affairs,6 Defendant caused the Property to be sold to the Non-

Moving Defendants at what Plaintiffs describe as a “fire-sale price.” 7

        Plaintiffs filed their initial complaint on March 8, 2018, their first amended

complaint on September 10, 2018, and the operative complaint, the Second

Amended Complaint, on June 11, 2019. 8 The Second Amended Complaint contains

eight counts: Count I – Breach of Fiduciary Duty by Defendant, Count II – Undue

Influence and Lack of Capacity to Appoint Defendant as Attorney-In-Fact, Count

III – Declaratory Judgment, Count IV – Accounting, Count V – Undue Influence to

Invalidate the Will, Count VI – Breach of Fiduciary Duty and Self-Dealing by one

of the Non-Moving Defendants, Count VII – Aiding and Abetting A Breach of

Fiduciary Duty and Conspiracy to Breach of Fiduciary Duty, and Count VIII –

Rescission of Deed for the Property.

        On June 28, 2019, Defendant filed a motion to dismiss seeking dismissal of

Count I for lack of standing and failure to state a claim and Counts II and III for




6
  Id. ¶ 57.
7
  Id. ¶¶ 29, 30.
8
  D.I. 1, 30, 41.
C.A. No. 2018-0160-SEM
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Page 4

failure to state a claim (the “Motion”). 9 The Motion was briefed and argument was

held on February 20, 2020. 10 This is my final report.11

       II.     Analysis

       Defendant frames the Motion under Rule 12(b)(6) arguing both failure to state

a claim and lack of standing.12 The standards governing a motion to dismiss for

failure to state a claim are settled:

       (i) all well-pleaded factual allegations are accepted as true; (ii) even
       vague allegations are “well-pleaded” if they give the opposing party
       notice of the claim; (iii) the Court must draw all reasonable inferences
       in favor of the non-moving party; and ([iv]) dismissal is inappropriate
       unless the plaintiff would not be entitled to recover under any
       reasonably conceivable set of circumstances susceptible of proof. 13

       Likewise, standing in the attorney-in-fact context was recently addressed by

Vice Chancellor Zurn in In Re Corbett v. Corbett 14 where she recognized in the

estate context,



9
  D.I. 44. Defendant initially sought to dismiss Count IV, as well, but that request is no longer
pending. See D.I. 60 (granting in part and denying in part the Motion regarding Count IV such
that “[s]hould Plaintiffs prevail on their Second Amended Complaint Count V, Plaintiffs may
continue to pursue their Second Amended Complaint Count IV”).
10
   See D.I. 57.
11
   This report makes the same substantive findings and recommendations as my May 29, 2020
draft report to which no exceptions were filed.
12
   Plaintiffs submitted information outside the operative complaint with their answering brief and
begged conversion of the Motion to one for summary judgment. See D.I. 51 at 8-9. I find such
conversion is unnecessary and inappropriate and consider the Motion as one to dismiss on the
pleadings, without consideration of the discovery materials.
13
   Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002) (quotation marks and citations
omitted).
14
   2019 WL 6841432 (Del. Ch. Dec. 12, 2019).
C.A. No. 2018-0160-SEM
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       [a] petitioner has standing to challenge a fiduciary’s actions taken to the
       detriment of a decedent’s estate where the petitioner has standing to
       challenge the decedent’s will. In the context of a will challenge or
       caveat, standing depends on whether the petitioner is an “interested
       person” whose “interest must be pecuniary and one detrimentally
       affected by the will, and not a mere sentimental interest.” A beneficiary
       named under the decedent’s current or prior will has standing to bring
       a caveat challenging the validity of a will before it is admitted to
       probate. And where the decedent’s current and prior wills disinherit
       the petitioner, the petitioner is an interested person with standing to
       challenge a will if she would be an intestate beneficiary. 15

With these standards in mind, I address each count in turn.

              A. Plaintiffs Have Adequately Pled A Breach of Fiduciary Duty Claim
                 And Their Standing to Pursue It.

       Count I is titled Breach of Fiduciary Duty and is aimed at Defendant for the

role she played in the Decedent’s final years and alleged improper conduct in that

regard. “A claim for breach of fiduciary duty is an equitable tort. It has only two

formal elements: (i) the existence of a fiduciary duty and (ii) a breach of that duty.” 16

In the attorney-in-fact context, the “attorney-in-fact serves as a fiduciary for his

principal.”17 The Delaware Supreme Court has likened this common-law fiduciary

relationship to the relationship created by a trust. Thus, like a trustee, an attorney-

in-fact owes a duty of loyalty and “always has the obligation to act in the best interest




15
   Id. at *4 (Del. Ch. Dec. 12, 2019) (citations omitted).
16
   HOMF II Inv. Corp. v. Altenberg, 2020 WL 2529806, at *43 (Del. Ch. May 19, 2020).
17
   Pennewill v. Harris, 2011 WL 691618, at *3 (Del. Ch. Feb. 4, 2011).
C.A. No. 2018-0160-SEM
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of the principal unless the principal voluntarily consents to the attorney-in-fact

engaging in an interested transaction after full disclosure[.]” 18

         Defendant concedes in her opening brief that she owed fiduciary duties to the

Decedent but argues that she did not breach those duties or, even if we assume she

did, Plaintiffs lack standing. Plaintiffs disagree, emphasizing the allegations in the

Second Amended Complaint that Defendant sold and conveyed the Property “at a

fire-sale price,” which was “financially unreasonable and unnecessary for

Decedent’s benefit” but benefitted Defendant against the Decedent’s wishes and to

the detriment of Plaintiffs.19 I agree with Plaintiffs that the pleading states a

cognizable claim for breach of fiduciary duty that Plaintiffs have standing to pursue.

         The Second Amended Complaint sets forth detailed factual allegations

painting a questionable, at best, picture of Defendant’s conduct. Per the Second

Amended Complaint, Defendant used her position of trust and confidence to sell the

Property against the Decedent’s wishes, needs, and interests at a reduced value and

in a way that ensured the proceeds of the sale flowed to Defendant and her family.

Although Defendant may ultimately be able to prove that the sale was appropriate,

construing the facts in a light most favorable to Plaintiffs, I find Count I states a




18
     Schock v. Nash, 732 A.2d 217, 225 (Del. 1999).
19
     D.I. 41, ¶¶ 32-39.
C.A. No. 2018-0160-SEM
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cognizable claim for breach of fiduciary duty. 20 Likewise, I find Plaintiffs have met

their burden to plead standing to pursue this claim. Plaintiffs are the intestate heirs

of the Decedent’s estate and the intended beneficiaries of the Property under the

Will; both positions grant them standing to pursue claims against Defendant for her

role in allegedly thwarting their interests.

              B. Count II States A Cognizable Claim of Undue Influence.

       Defendant seeks dismissal of the undue influence claim in Count II. An undue

influence claim must be supported by well-pleaded facts substantiating four

elements: “(1) a person who is subject to undue influence; (2) an opportunity to exert

influence; (3) a disposition to exert such influence; and (4) a result indicating the

presence of undue influence.” 21 Defendant contends the last element is unsupported

and, as such, Count II must be dismissed. Specifically, Defendant argues that the

only “result” pled is the sale of the Property and that sale, “in and of itself” does not

indicate the presence of undue influence. Defendant, in support, points to reasons

why she believes the sale was appropriate (e.g., the Decedent was no longer residing

at the Property and it did not make sense for him to continue to maintain it).


20
   Defendant cites Hodgson for Hodgson v. Gibson, 2017 WL 758959 (Del. Ch. Feb. 24, 2017) as
support for the propriety of her actions. The deep factual analysis conducted in Hodgson
undermines, however, the need for further factual development of the fiduciary-duty claim. The
utility of Hodgson will be best understood later in this action, such as on a motion for summary
judgment or pre- or post-trial briefing.
21
   McAllister v. Schettler, 521 A.2d 617, 623 n.4 (Del. Ch. Dec. 2, 1986).
C.A. No. 2018-0160-SEM
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Plaintiffs respond that Defendant is ignoring the “reality of the facts as they existed

and the equities involved[,]” emphasizing that the Decedent had sufficient assets

without selling the Property and the timing and nature of the sale shows “no urgency

– only opportunity.” 22 I tend to agree, at least at this pleading stage.

          Although Defendant may well be able to prove, after discovery, that the sale

of the Property was appropriate, the Second Amended Complaint, nonetheless,

pleads a cognizable claim of undue influence. The Second Amended Complaint

avers that the Decedent consistently resisted a pre-death sale of the Property and

indicated an interest in keeping it (or, at least, its value) “in the family.” Consistent

with that refusal, he set forth in the Will what was to become of the Property upon

his death (it would be sold at auction with proceeds going to Plaintiffs). Yet, after

the Decedent was hospitalized, Defendant effectuated the previously-rejected sale,

which converted real property, bequeathed to Plaintiffs under the Will, into a liquid

asset that would, instead, pass to Defendant and her family. Defendant argues that

the transaction was in line with the Decedent’s wishes; the Second Amended

Complaint adequately alleges otherwise; only after full discovery can the dispute be

resolved. Plaintiffs have pled a cognizable claim for undue influence and the

Motion, as it relates to Count II, should be denied.



22
     D.I. 51 at 16-17.
C.A. No. 2018-0160-SEM
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              C. Count III States A Claim for Declaratory Judgment.

       Count III is titled Declaratory Judgment and seeks a declaration that the lack

of a residuary clause in the Will should be interpreted such that the residue passes to

Plaintiffs by intestate succession. Defendant argues that the Will does have a

residuary clause, namely paragraph four; it provides, in pertinent part:

       property left in the house is to be sold along with the rest of my personal
       property including all farm machinery- cars and truck, tools, will be
       sold at auction. The money from that sale will be put in my estate
       consisting of CD’s, stocks, bonds, checking, saving, IRA, and credit
       union life insurance to be equally divided to Judy Meyers, Craig
       Meyers, Aaron Meyers, Cheryl Meyers and Tina Jobes.23

       Determining whether paragraph four is a residuary clause and, if not, how the

residue should pass, requires appropriate interpretation and construction of the Will.

“In this Court’s interpretation of the language of a will or trust, the testator’s or

settlor’s intent controls, considering ‘his or her dominant purpose.’” 24 In reviewing

a will, two principles guide this Court: “1) where the language of a will is

unambiguous, the court must enforce its terms as written and 2) where the language

used in a will is ambiguous, the court must give the language that meaning which




23
  D.I. 41, Ex. A.
24
 In re Will of Fleitas, 2010 WL 4925819, at *4 (Del. Ch. Nov. 30, 2010) (citations and quotations
omitted).
C.A. No. 2018-0160-SEM
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will effectuate the intent of the testator.”25 When the language is unambiguous, and

rather “clear and readily understandable, extrinsic evidence is not considered.”26

“Ambiguity exists when the terms in question are reasonable or fairly susceptible of

different interpretations or may have two or more different meanings. And, if a

mistake was made in writing a will, the Court of Chancery does not have the power

to correct a mistake, and it cannot, by introduction of parol evidence, rewrite the

[will].” 27

       Ultimately, I find paragraph four ambiguous. I cannot say with any certainty

whether paragraph four is a bequest of all of the Decedent’s remaining property to

the named beneficiaries (i.e., a residuary clause), as Defendant contends, or one of

only the sale proceeds, as argued by Plaintiffs. 28 On the current record, I find either

interpretation of this ambiguous provision is reasonable. “At the motion to dismiss

stage, [I] cannot choose between two differing reasonable interpretations of


25
    Id. (citations and quotations omitted).
26
   In re Brans, 2017 WL 7048673, at *3 (Del. Ch. Dec. 1, 2017), adopted (Del. Ch. 2018) (citations
and quotations omitted).
27
   Id. (citations and quotations omitted).
28
   The former construction would allay concerns about surplusage (i.e., why would the testator
take time to identify that his estate consists of CD’s, stocks, bonds, etc. but make no provision for
that property under the Will). See Hodgson, 2017 WL 758959, at *3 (“it is a basic rule of
construction that a court will prefer an interpretation that gives effect to each term of an agreement
and avoids rendering language superfluous or uselessly repetitive”). Although the latter is,
arguably, a more precise reading of the second sentence, as written (the sentence begins by
identifying the subject as the proceeds from the sale contemplated in the preceding sentence and
then explains what shall happen to the proceeds: they go into the full estate and then they (meaning
the proceeds) are to be equally divided among the named beneficiaries).
C.A. No. 2018-0160-SEM
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ambiguous provisions. Dismissal is appropriate on a Rule 12(b)(6) motion only if

the [Defendant’s] interpretation is the only reasonable construction as a matter of

law.” 29 It is not and, as such, the Motion, as it relates to Count III, should be denied.

Denial at this stage serves a dual purpose of avoiding unnecessary construction of

the Will while a request to invalidate it in full remains pending.

             D. Fee Shifting Is Not Warranted.

      Plaintiffs ask that I shift fees and expenses incurred in responding to the

Motion, which Plaintiffs contend was “frivolous” and “ridiculous.” I disagree.

Although ultimately unsuccessful, the Motion was narrowly tailored to only three

(3) of the eight (8) counts in the Second Amended Complaint and presented

reasoned, non-frivolous, and good faith arguments. Fees should not be shifted. 30

      III.   Conclusion

      For the foregoing reasons, I find that Plaintiffs have pled a cognizable claim

for breach of fiduciary duty and have standing to pursue it as either beneficiaries

under the Will or intestate heirs. Likewise, Counts II and III state reasonably

conceivable claims for undue influence and declaratory judgment, respectively, and



29
   Paul Elton, LLC v. Rommel Del., LLC, 2020 WL 2203708, at *5 (Del. Ch. May 7, 2020)
(addressing contract interpretation) (citations and quotation marks omitted).
30
   See Univ. of Del. v. Warrington, 1993 WL 410417, at *4 (Del. Ch. Oct. 6, 1993) (“Under
Delaware law, attorney fees may be awarded when a party acts in bad faith, vexatiously,
frivolously, wantonly, fraudulently, or oppressively.”).
C.A. No. 2018-0160-SEM
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should move to merits-based discovery. Accordingly, I recommend the Motion be

denied. I further recommend that the request for fee-shifting be denied because it is

not warranted under the circumstances. This is my final report in this matter and

exceptions should be taken in accordance with Rule 144.

                                       Respectfully,

                                       /s/ Selena E. Molina

                                       Master in Chancery
