   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

LEE ALAN ROBINSON and MARY )
LEE ROBINSON,                      )
                                   )
              Plaintiffs,          )
                                   )
     v.                            ) C.A. No. 10154-VCG
                                   )
OAKWOOD       VILLAGE,        LLC, )
ENVIRONMENTAL CONSULTANTS )
INTERNATIONAL CORPORATION, )
GEORGE & LYNCH, INC., G&L )
HOLDINGS,     LLC       OAKWOOD )
VILLAGE AT LEWES, LLC, JOHN )
PAUL JONES, JR., GARY CUPPELS, )
BRIAN     LESSARD,        LESSARD )
BUILDERS,     INC.,       LESSARD )
BUILDERS AT OAKWOOD VILLAGE, )
INC.                               )
                                   )
              Defendants.          )

                          MEMORANDUM OPINION

                        Date Submitted: January 13, 2017
                         Date Decided: April 28, 2017

Charles J. Brown, III, Shannon Dougherty Humiston of GELLERT SCALI
BUSENKELL & BROWN, LLC, Wilmington, Delaware, Attorneys for Plaintiffs.

Marc S. Casarino, Nicholas R. Wynn of WHITE AND WILLIAMS LLP,
Wilmington, Delaware, Attorneys for Defendants, George & Lynch, Inc., Oakwood
Village at Lewes, LLC, and G&L Holdings, Inc.

Mary E. Sherlock of WEBER GALLAGHER SIMPSON STAPLETON FIRES &
NEWBY, LLP, Wilmington, Delaware, Attorney for Defendants, Brian Lessard,
John P. Jones, Jr., Lessard Builders, Inc. Lessard Builders at Oakwood Village, Inc.

GLASSCOCK, Vice Chancellor
      Delaware, I was taught in the long-ago days of my youth, has no natural lakes.

A related geological figure exists, however, scattered across the southern parts of

this state and to the south; Delmarva (or Carolina) “bays,” features known locally as

whale-wallows in those same long-ago and perhaps more poetic times. These are

generally elliptical depressions of unknown origin, which have no natural drainage.

As a result, many are vernal pools—that is, areas of vegetated wetland soils that fill

with water in wet seasons, but are dry much of the year. This case involves such

sumps or sinks, in a 63-acre tract of Sussex-County wooded land occupied by the

Plaintiffs, Lee and Mary Robinson.       The construction of a suburban housing

development on land adjacent to the Robinson property has increased surface

stormwater discharge, and converted the low areas from vernal pools to more-or-

less permanent ponds. The resulting standing water has killed mature timber

standing in these low areas—referred to in this record as “sumps”—and has limited

the Robinsons’ enjoyment of their property.

      The Robinsons brought this action seeking damages and injunctive relief

against the owners of the neighboring development, known as Oakwood Village, as

well as those allegedly involved in the design and construction of the Oakwood

Village stormwater system. The case went to trial; what follows is my post-trial

Memorandum Opinion. The matter has been the subject of intense litigation effort,

and as the six-day trial foreshadowed to the litigants and the presiding judge—and


                                          1
as the reader will discover by weary experience—the resulting record is factually

dense. The Plaintiffs have raised numerous legal grounds on which they seek relief.

At its heart, however, this dispute is a simple one. It is an action in tort, sounding in

nuisance or trespass. The Oakwood Village property in its natural state drains, in

part, onto the Robinson property. Development of Oakwood Village has increased

the volume of water subject to such drainage. In Delaware, an upstream owner may

increase drainage onto his non-consenting neighbor without incurring liability

thereby, but only so long as the increase is reasonable—the analysis of which

requires a factual inquiry. The issue here is whether the increased drainage, in light

of its consequences, is reasonable. I find that it is not, and for the reasons that follow,

I find that the Robinsons are entitled to relief.

       This Memorandum Opinion concerns itself only with liability, and not the

resulting damages or equitable relief. While the trial addressed damages, the

injunctive relief the Robinsons seek will necessarily affect homeowners in Oakwood

Village who are not parties here. I cannot fully balance the equites, as required

before crafting injunctive relief, without a record upon which to consider their

interests. Obviously, the type of equitable relief ordered will have a direct impact

on the permanency of the damage to the Robinsons’ real property, and thus the

quantum of damages to which they are entitled. I note that equitable relief here could

include many options to alleviate the problems caused by the drainage, in addition


                                            2
to an injunction to halt the unreasonable discharge of water. In other words, this is

a matter especially suited to a negotiated solution, rather than judicial fiat. I have

long encouraged the parties in this regard, without success; it is my hope that, with

this decision, the parties will have sufficient information as to the likely result of

further litigation to settle the remaining matter instead of pursuing that litigation.

                                           I. FACTS

       The following are the background facts as I find them by a preponderance of

the evidence following a six-day trial.1

       A. The Current and Former Parties

       The Plaintiffs, Lee Alan Robinson and Mary Lee Robinson (together the

“Robinsons”), own an approximately 63-acre parcel of land in Sussex County, near

Conley’s Chapel outside of Lewes (the “Robinson Property”). The area is in

transition from rural to suburban. The Robinsons live on the Robinson Property, the

bulk of which is undeveloped woodland. The Robinson Property is identified in

Sussex County Tax Map No. 234-11.00 as Parcels 40.00, 40.01, 40.02, 40.03, and

41.00.2 The Plaintiffs have owned and resided on their property since 1982.3




1
  Additional factual findings, to the extent they are needed, are discussed in the relevant analysis
sections. The findings herein are by a preponderance of the evidence as shown at trial, and
referenced in the parties’ post-trial submissions.
2
  Pretrial Stip. 5.
3
  See id.

                                                 3
      There were a substantial number of Defendants in this action, some of which

have been dismissed. Each remaining Defendant and certain former Defendants are

described below.

      Defendant Oakwood Village at Lewes, LLC (“Oakwood Village LLC”) is a

Delaware limited liability company initially formed by Defendant Brian Lessard and

his brother, Colin Lessard (Colin is not a party to this litigation).4 Brian Lessard and

his brother were the original members of Oakwood Village LLC, forming the entity

on March 10, 2005.5 Oakwood Village LLC has been primarily responsible for

developing the Oakwood Village community (I will refer to the property on which

the development was created as the “Oakwood Village Site”). The Oakwood Village

Site, formerly the “Mocci Property,” is an approximately 63-acre parcel adjacent to

the Robinson Property. Oakwood Village LLC purchased the Oakwood Village Site

in January 2006 and at all relevant times has owned the Site.6 On July 2, 2007,

Lewes Property Development, LLC acquired a 50% membership interest and the

Lessard brothers’ stake in Oakwood Village LLC was reduced to 35% for Brian

Lessard, and 15% for Colin Lessard.7 By November 7, 2012, Lewes Property




4
  Trial Tr. 1152:5–11 (B. Lessard).
5
  Pretrial Stip. 11.
6
  See JX156; JX157. I note that ownership stakes in the entity Oakwood Village LLC have
changed several times since formation.
7
  Pretrial Stip. 19.

                                           4
Development, LLC became the sole member of Oakwood Village LLC.8 Brian and

Colin Lessard were no longer members after this date.9

       Defendant George & Lynch, Inc. (“George & Lynch,” and together with

Oakwood Village LLC, the “Oakwood Village Defendants”) is a contractor for the

development, Oakwood Village LLC.10 George & Lynch never directly held an

ownership stake in the Oakwood Village Site.11 In the course of its site work George

& Lynch received several notices about deficiencies in the construction process of

the stormwater ponds.12 That is, the Oakwood Village Site and work on stormwater

facilities was, at various times, “out of compliance.”13 The Department of Natural

Resources and Environmental Control (“DNREC”) directly notified two principals

of George & Lynch of “violations” on the Oakwood Village Site in 2014, including

discharge of sediment-laden water, and failure to monitor and repair erosion and

sediment controls.14

       Defendant Lessard Builders, Inc. (“Lessard Builders”) is a construction

business controlled by the Lessard family, and was involved in the development of




8
  Id. at 20.
9
  Id.
10
   See JX002 ¶ 4.
11
   Trial Tr. 1153:3–16 (B. Lessard).
12
   See, e.g., JX206; JX207; JX235.
13
   See, e.g., JX235 at 1.
14
   See JX237 at 1. See also JX235 at 4 (identifying Messrs. McGuigan and Dinger as George &
Lynch representatives).

                                            5
the Oakwood Village Site.15 Lessard Builders actively but unsuccessfully pursued

purchasing the Robinson Property for upwards of $4 million.16

       Defendant Brian Lessard formed Defendant Oakwood Village LLC in 2005.17

He formed Oakwood Village LLC prior to acquiring the Oakwood Village Site.

Brian Lessard is also the president and an owner of Lessard Builders and has been

at all relevant times.18 Brian Lessard, through his positions, oversaw the initial

development of the Oakwood Village Site.19

       Defendant J. Paul Jones, Jr. is a professional engineer with experience in water

resources, and was the project manager for Lessard Builders in the development of

the Oakwood Village Site.20 He worked for Lessard Builders from June 2004

through May 2011.21 He did not design the stormwater management system for the

Oakwood Village Site.22 He was never an owner of Lessard Builders nor Oakwood

Village LLC.23 Jones did, however, communicate with the Robinsons in his role at

Lessard Builders.24 Specifically, he presented the Robinsons with a letter in 2006


15
   See JX176 (listing Lessard Builders on a May 2005 permit application for Oakwood Village). I
note a former Defendant with a similar name, Lessard Builders at Oakwood Village Inc., has since
been dismissed. See Trial Tr. 1155:21–24 (B. Lessard). That entity is not a valid corporation. See
id.
16
   See Pretrial Stip. 9, 12. The sale never materialized.
17
   See Trial Tr. 1152:5–8 (B. Lessard).
18
   See id. at 1110:21–1111:8 (B. Lessard).
19
   See id. at 1112:21–24 (B. Lessard); id. at 1118:1–6 (B. Lessard).
20
   See id. at 1179:12–20 (Jones); id. at 1170:5–1173:22 (Jones); JX176 at 1–2.
21
   Trial Tr. 1167:7–12 (Jones).
22
   See id. at 1216:24–1217:3 (Jones).
23
   Pretrial Stip. 9.
24
   See Trial Tr. 1181:4–6 (Jones).

                                                6
that indicated that the discharge rates would not change upon the development of the

Oakwood Village Site.25 I refer here to Jones, together with Lessard Builders and

Brian Lessard, as the “Lessard Defendants.”

       Dismissed Defendant Environmental Consultants International Corporation

(“ECI”) is the entity that primarily developed and engineered a stormwater

management plan (the “Stormwater Management Plan” and as built the “Stormwater

Management System”) for the Oakwood Village Site on behalf of the developers

Lessard Builders and Oakwood Village LLC.26 ECI ceased operations in 2007,27

and was dismissed from this action on November 29, 2016 along with Gary Cupples.

       Dismissed Defendant Gary Cupples was an officer at ECI, holding at one

point, the title of President.28 He continued to consult on the Oakwood Village Site

project after ECI ceased operations.29 Cupples is both a professional engineer, and

a land surveyor and was involved in facilitating certain studies necessary for

receiving approval of the Stormwater Management Plan.30




25
   Id. at 1188:22–1190:7 (Jones). See id. at 1219:9–23 (Jones); JX160.
26
   See, e.g., JX155; JX161.
27
   Trial Tr. 1282:7–13 (Cupples).
28
   Id. at 1271:24–1272:1 (Cupples).
29
   See id. at 1282:7–23 (Cupples).
30
   See id. at 1287:20–22 (Cupples); id. at 1264:1–11 (Cupples).

                                               7
      B. The Relevant Properties and Events

             1. The Robinson Property

      The Robinsons own a 63-acre homestead near Conley’s Chapel outside of

Lewes where they have lived since 1982. The northeast corner of the Robinson

Property abuts the southwest border of the Oakwood Village Site. The Robinson

Property is roughly displayed in figure 1 below, oriented with north at the top.31




31
  The map below can be found at JX265 Ex. 7. It is attached to orient the readers to the
complicated description of the various “Sumps.”

                                           8
Figure 1




   9
       The Robinson Property is primarily undeveloped forest but contains certain

“jurisdictional” and non-jurisdictional wetlands.32 Before development of Oakwood

Village, certain portions of the Robinson Property were seasonally wet, and ponding

would, at times, occur naturally.33 Long-lasting standing water on the property was

historically rare, however. An expert retained by the Robinsons testified that

seasonal ponding was the result of typically wet conditions in the fall/winter

seasons.34

       The lowest point on the Robinson Property is at an elevation of eighteen feet

above sea-level, whereas the highest point is at thirty-four feet.35 The Robinsons

created a walking trail circling the property in approximately 2006, and the

Robinsons, particularly Mrs. Robinson, enjoyed walking the property.36                       Mrs.

Robinson would occasionally walk up to the Oakwood Village Site and observed

increases in ponding beginning in 2014.37




32
   See JX262 at 14. The distinction between a jurisdictional and non-jurisdictional wetland appears
to be that wetlands subject to Army Corp of Engineering oversight are “jurisdictional wetlands.”
See, e.g., JX121.
33
   See Trial Tr. 60:15–21 (Philipp).
34
   See id. at 73:10–16 (Philipp).
35
   Pretrial Stip. 6.
36
   See Trial Tr. 1029:14–1030:21 (M. Robinson). Mrs. Robinson further testified that while water
would occasionally pond it would not last long, and “[i]t never was to the extent that we have
seen since 2014. It was never a question of wearing hip boots and waders before.” See id. at
1031:6–17. (M. Robinson).
37
   See id. at 1029:14–1030:21 (M. Robinson).

                                                10
       Mr. Robinson, who I found credible, testified that in his hundreds of hours

walking the property prior to the development of the Oakwood Village Site, he

“never saw water flow over the ground.”38        Certain portions of the property,

however, would fill with ponded water, periodically. An area referred to as “Sump

A” located in the north-central portion of the property would periodically contain

water in the event of major storms or seasonally.39

       A photo taken by the Robinsons’ daughter on December 21, 200840—that is,

before the Oakwood Village Stormwater Management System was completed—

shows what such water accumulations in Sump A-3 or the “main basin,”41 would

look like.42 The photo is reproduced in figure 2 below.43




38
   Id. at 925:6–10 (L. Robinson).
39
   See id. at 916:16–22 (L. Robinson).
40
   JX349.
41
   Trial Tr. 876:12–877:4 (J. Robinson).
42
   See JX220.
43
   See id.

                                           11
                                           Figure 2




       The water appears, at most, about one foot deep, and the photo shows a steady-

cover of dry, undisturbed, leaves surrounding the ponded area—thus the leaves that

had fallen that fall were not saturated and the photo shows the maximum water level

as of that date for the fall/winter season.44 However, the photo also shows higher

water marks on the trees evincing that at some previous time, prior to the trees losing

their leaves in the fall of 2008, the ponded area had temporarily reach a depth of

approximately two to three feet.45 The record reflects that the same area in the

photograph above was “dry” with “no water” by the spring of 2009.46 An area



44
   See JX220; Trial Tr. 74:22–76:14 (Philipp).
45
   See JX220.
46
   See id.

                                                 12
referred to as “Sump B” would not historically have water pooled on it. 47

Specifically, the Robinsons had a shooting range constructed in the area of Sump B

that they would frequent over the years, and they did not previously encounter

standing water in that area for any appreciable time.48

       In the course of development of Oakwood Village, as mentioned above, there

was a proposal to acquire the Robinson Property by Brian Lessard for $4 million.49

Even though Brian Lessard made a $2,000 deposit, the sale ultimately fell through,

because, in part, of the way Lessard proposed to structure the deal.50 During the

period in which the sale appeared promising, the Robinsons cooperated with and

signed off on certain steps needed to develop Oakwood Village.51

       The Robinson Property has a well for drinking water, installed at an unknown

date.52 The well has not been replaced nor has maintenance been performed on the

well since the Robinsons purchased the property in 1982.53 The well is forty-four

feet deep, however, DNREC currently recommends wells for potable water be a




47
   See, e.g., Trial Tr. 872:4–873:12 (J. Robinson).
48
   Id. at 872:12–873:12 (J. Robinson).
49
   Id. at 919:2–8 (L. Robinson).
50
   Id. at 923:6–924:2 (L. Robinson).
51
   See, e.g., id. at 924:3–925:10 (L. Robinson) (testifying regarding a February 14, 2006 letter
(JX160) that there “were a lot of papers flying around at the time, and it looks like something that
I would sign”). Mr. Robinson, however disputes signing certain documents—specifically a March
9, 2006 letter (JX168). See Trial Tr. 925:11–928:11 (L. Robinson).
52
   Pretrial Stip. 6.
53
   Id.

                                                13
depth of at least one hundred feet.54 Additionally, the Plaintiffs’ septic field is less

than one hundred feet from their well.55 The Plaintiffs allege in this litigation that

runoff from Oakwood Village has degraded their well water, causing it to smell of

rotten eggs, and necessitating the purchase of bottled water.56

             2. Development of Oakwood Village

      Oakwood Village LLC purchased the Oakwood Village Site in January

2006.57 At all times relevant to liability Oakwood Village LLC has owned the

Oakwood Village Site. Prior to development the 63-acre Oakwood Village Site was

mostly wooded.58 The Oakwood Village Site is identified in “Sussex County Tax

Map No. 234-6 as Parcels 22 and 23.”59 Actual development of the site started in

2007, and no homes were built prior to 2007. From July 2007 to May 2015

approximately seventy homes were built at the Oakwood Village Site, with 115

single-family homes expected upon completion of the development.60 Below, the

evolution of the development is reviewed.




54
   Id. at 7.
55
   Id.
56
   See Pls’ Post-Trial Opening Br. 61.
57
   JX156; JX157. The purchase was financed via a $4.325 million mortgage from Wilmington
Trust. See id.
58
   See JX359.
59
   Pretrial Stip. 7.
60
   See id.; JX260; JX265.

                                          14
                       a. Pre-Development Negotiations and Early Development

          In June 2004, Lessard Builders retained ECI to perform professional

engineering and surveying services.61 ECI was tasked with, among other things,

“designing and preparing a Stormwater Management Plan for the Oakwood Village

Site.”62 As part of this process ECI was to secure approval of the site’s Stormwater

Management Plan from the Sussex Conservation District.63 ECI, via Gary Cuppels,

worked with and ultimately retained Environmental Resources, Inc. (“ERI”) to assist

in evaluation of the Oakwood Village Site’s wetlands.64 ERI provided a preliminary

Wetland Delineation Report to ECI on August 12, 2004, for the Oakwood Village

Site.65

          Soil investigation by Atlantic Resource Management Inc. (“ARM”) of the

Oakwood Village Site to assess waste water issues began as early as June 22, 2004.66

Mr. Jones of Lessard sent information regarding the Robinson Property to ARM in

August of 2004,67 and on September 10, 2004, Mr. Jones accompanied an ARM

employee on a site visit to the Robinson Property “to evaluate the Robinsons’

Property for potential waste water disposal areas.”68


61
   See JX109.
62
   Pretrial Stip. 8.
63
   Id.
64
   See id. at 8–9.
65
   See JX112.
66
   Pretrial Stip. 8.
67
   JX114.
68
   Pretrial Stip. 9.

                                          15
       By November 3, 2004, ECI via Mr. Cupples submitted a request for regulatory

review known as a “PLUS Review Request” to the State of Delaware proposing a

116 lot development on the Oakwood Village Site.69             Shortly thereafter, on

November 12, 2004, Lessard Builders submitted a written proposal, signed by Brian

Lessard, to acquire the Robinson Property for $4 million.70 The same day as the

written proposal, Lessard Builders made an initial deposit of $2,000.00 on the

Robinson Property.71 The offer, however, was contingent on a feasibility study.

       After this initial offer, due diligence work on both the Oakwood Village Site

and the Robinson Property continued. At a December 1, 2004 “project review

meeting,” attended by Cupples of ECI, “various state agencies considered the PLUS

Report” that ECI had submitted for the development of the Oakwood Village Site.72

       On December 7, 2004, Cupples sent a memorandum concerning cost over-

runs to Jones of Lessard Builders, which stated

       [w]ith regard to concept stormwater management; this issue speaks for
       itself in that the Mocci [Oakwood Village] site is difficult to address in
       terms of stormwater management and an effort to address the
       stormwater management issues up front, was made by our firm so as to
       assure the client that a workable stormwater management system could
       be affected [sic] for the project site. The costs overruns on this issue,
       again, based upon estimated fees, were extended due to site conditions
       that could not be anticipated at the time that the proposal was
       prepared.73
69
   Id.
70
   Id.
71
   Id.
72
   Id. at 10; JX136.
73
   JX117 at 2 (emphasis added).

                                          16
       Also on December 7, 2004, ECI officially retained ERI to assess the Robinson

Property.74 Mr. Launay of ERI provided a preliminary delineation map of the

wetlands on the Robinson Property to Cupples in December, 2004.75 The December

2004 ERI map and report indicated there were approximately ten total acres of

wetland property on the Robinson Property.76 Also in December 2004, the State of

Delaware Office of State Planning Coordination wrote Mr. Cupples a letter to follow

up on the PLUS Report he submitted, and the December 1, 2004 meeting.77 Under

the DNREC comment portion of the letter, DNREC indicated that “[t]his project

should not be approved without significant changes.”78 The DNREC comment

continued that “[e]ach stormwater management facility should have an adequate

outlet for release of stormwater.”79

       In January 2005 “ARM installed three groundwater observation wells on the

Robinsons’ Property.”80 Communications reflect that Jones, Cupples, and Brian

Lessard discussed “creating a storm water disposal easement” on the Robinson




74
   See JX118. During this time frame, on December 10, 2004, ARM submitted letters to federal
and state agencies requesting such agencies review the Robinson Property. Pretrial Stip. 10.
75
   See JX121; Pretrial Stip. 10.
76
   JX121. Only half of such wetlands were identified at the time as subject to Army Corp of
Engineering oversight—as so called jurisdictional wetlands. See id.
77
   JX122.
78
   Id. at 3.
79
   Id. at 6.
80
   Pretrial Stip. 10.

                                            17
Property in January 2005 as well.81 Diligence work continued by various contractors

and on May 6, 2005, Mr. Jones prepared a letter for the Robinsons regarding Lessard

Builders’ proposal to purchase their land.82 However, Lessard Builders amended its

purchase proposal from the terms previously presented to the Robinsons.83

Specifically, they now proposed that the $4 million purchase of the Robinson

Property would be conducted in two phases.84             The Robinsons ultimately

determined, after consultation with counsel, “that a two phased approach to

purchasing their property was not in their best interest,” and no sale of the property

occurred.85

        Field work continued on the Robinson Property through 2005 and 2006.

Various contractors from ECI and ARM performed soil tests and collected data on

the Robinson Property in the fall of 2005.86 On May 17, 2005, ARM informed ECI

that there were some problematic soil conditions on the Oakwood Village Site and

that due to the high water table, previously-contemplated infiltration ponds—which

discharge stormwater into the ground—were “generally not suitable.”87 Further,

ARM stated the seasonally-high water table, often at depths of less than thirty inches



81
   JX126.
82
   JX130.
83
   See Pretrial Stip. 12.
84
   Id.
85
   Id.
86
   Id. at 13.
87
   JX131.

                                         18
beneath the soil surface, was “problematic for siting stormwater management

structures when no outlet/outfall structure is available.”88     A May 24, 2005

memorandum by ECI indicated the Stormwater Management Plan, as of that time

“[a]ssume[d] outlet to wetland, no detention.”89 Shortly thereafter, a change work

order was prepared which indicated that ECI would now expand the Oakwood

Village Site research to include the Robinson Property.90 By mid-June 2005,

Lessard Builders submitted to the Robinsons amended purchase contracts laying out

the two-phase purchase which, as described above, the Robinsons later rejected.91

As of this time, however, the Robinsons remained active participants in pursuing the

development.92 The Robinsons retained ECI and ARM to conduct soil tests on their

property to facilitate the feasibility study regarding a potential sale to Lessard

Builders.93     Certain fees for such diligence work were paid directly by the

Robinsons.94

       In the fall of 2005, Brian Lessard submitted a Sediment and Stormwater

Management Plan to the Sussex Conservation District for the Oakwood Village

Site.95 The narrative section indicated that an area called “sub-catchment 1S,”


88
   Id.
89
   JX133.
90
   JX134.
91
   See, e.g., JX135; JX141.
92
   See id.
93
   See JX141; JX142; Pretrial Stip. 13.
94
   See, e.g., JX172 at 2.
95
   JX147.

                                          19
located in the northern part of the Oakwood Village Site, drained northwest away

from the Robinson Property, but that the bulk of the Site “generally drains to the

south.”96 Additionally, the submitted plan stated that a “[c]opy of [a] recorded

permanent easement when stormwater facility or outfall is located outside of

property boundary” was “n[ot] a[pplicable].”97       This is despite Mr. Cupples

informing Lessard Builders, specifically Brian Lessard and Mr. Jones, that there was

a need to obtain a formal easement from the Robinsons.98 Finally, this initial plan

indicated that development would result in a decrease in the peak discharge rate

from the Oakwood Village Site for 2-year and 10-year storms.99

       The Sussex Conservation District responded on December 9, 2005, pointing

out numerous problems with the Stormwater Management Plan, including the

inability to verify soil classifications and certain elevation/contour issues.100 ECI

subsequently submitted a formal addendum in January 2006.101            The Sussex

Conservation District, via Edward Bender, a “Stormwater Engineer,” informed ECI

that certain changes would need to be made to the Stormwater Management Plan.102

Specifically, Bender indicated that the plan improperly summed the discharges from



96
   Id. at Narrative 1, 3.
97
   Id. at Checklist.
98
   Trial Tr. 1287:8–19 (Cupples).
99
   JX147 at Narrative 6.
100
    See JX151.
101
    JX155.
102
    See JX158.

                                         20
two different points to indicate a net decrease in flow, without indicating how point

discharge itself would be affected.103 Bender also asked certain follow up questions

including whether there were existing water courses that could safely convey a 100

year storm discharge, and where runoff from the Oakwood Village Site would

“eventually discharge.”104

        In January 2006, Oakwood Village LLC formally acquired the Oakwood

Village Site.105 Throughout the spring of 2006 diligence work continued on both the

Robinson Property and the Oakwood Village Site.106 On February 14, 2006, Mr.

Robinson signed a letter to the Sussex Conservation District that was drafted by ECI,

who the Robinsons had formally retained that same day for further soil and water

studies.107 The letter signed by Mr. Robinson was sent to the Sussex Conservation

District in support of the Oakwood Village Site development, and the Stormwater

Management Plan.108 The letter stated that Mr. Robinson was aware that water

would discharge from a retention pond onto his property but that discharges “will be




103
    See id.
104
    See id.
105
    See JX156; JX157.
106
    See Pretrial Stip. 16.
107
    See JX159; JX160.
108
    See JX160.

                                         21
no greater than the existing discharges that currently flow to the west.”109 The letter

further indicated that “only the discharge point (not the discharge)” will change.110

       On February 20, 2006, ECI responded to Mr. Bender of the Sussex

Conservation District to address the concerns that he raised earlier that month.111

ECI indicated again that there would be a decrease in discharge onto the Robinson

Property when the point of analysis is moved and observed that there are no defined

watercourses directly downstream from the Oakwood Village Site.112

       On March 9, 2006, Bender wrote ECI to follow up on information “concerning

drainage patterns along the west and southwest boundaries of the proposed

development” and thanked ECI “for the letter dated 2/14/06 from Lee Robinson.”113

The letter Bender was referencing was that signed by Mr. Robinson, indicating that

the discharge point, but not the total discharge would change.114 The March 9, 2006

Bender letter from the Sussex Conservation District conveys detailed information

regarding discharge rates.115          Specifically, the letter states that “[t]he District

requests that you clarify with Mr. Robinson that the discharge from Pond 4 will

increase at the Robinson property boundary from 0.02 cfs (pre) to 0.47 cfs (post)


109
    Id. (emphasis added).
110
    Id. Mr. Robinson testified that he probably signed this letter, but does specifically recall. Trial
Tr. 924:8–925:10. (L. Robinson).
111
    JX162.
112
    Id. at 1–2.
113
    JX163.
114
    See JX160.
115
    JX163.

                                                 22
during the 2 year storm and up to 4.31 cfs from 0.61 cfs during the 10 year storm.”116

The letter continues that if the point of analysis is moved 500 feet onto the Robinson

Property and that when reductions from other flows from an adjacent property are

factored in—the cumulative “discharge” would slightly decrease.117          Bender’s

March 9, 2006 letter instructs ECI to “[p]lease confirm that Mr. Robinson is aware

of the above information” and indicates that “[i]f he is agreeable, this stormwater

submittal can be recommended for approval.”118 Mr. Bender testified that his intent

in sending this letter was to confirm that Mr. Robinson was aware of the facts

concerning the discharge.119

       On March 16, 2006 ECI responded to Bender at Sussex Conservation

District.120 Bruce Horne of ECI121 informed Bender that ECI “presented [the March

9, 2006] letter to Mr. Robinson and he signed it to indicate he read it and understood

its contents.”122 Attached to ECI’s response was a copy of the March 9, 2006 letter

with a signature at the bottom margin (the “March 9 Signature”).123 The March 9

Signature appears to be Mr. Robinson’s signature;124 however, there is a dispute as



116
    Id. (emphasis added).
117
    Id.
118
    Id.
119
    Trial Tr. 1067:14–1068:8 (Bender).
120
    JX168.
121
    Who is deceased.
122
    JX168.
123
    Id. at 3.
124
    See Trial Tr. 952:19–954:8 (L. Robinson).

                                                23
to whether the signature was copied or forged onto the document. I note that the

executed version of the March 9 Signature is on a document that had been faxed at

least twice—with one such fax leaving an office of a business owned by Lessard.125

Mr. Robinson disputes signing the document, however no other signatures produced

in this litigation appear to match precisely the March 9 Signature, cutting against

any supposed copying and pasting it onto the document.126 While I trust that Mr.

Robinson does not remember signing the letter, I note this was during a period of

time where it appeared his property was going to be purchased by Lessard

Builders.127 The signature appears authentic, and while certain circumstances create

some doubt, there has been an insufficient showing for me to conclude it was, in fact,

forged. I find, however, that the signature on this document falls well short of

demonstrating a knowing waiver of the Robinsons’ right to object to an unreasonable

discharge from Oakwood Village, as discussed below.

       Following an addendum, and clarification on factual issues from Mr. Cupples

and ECI, the Sussex Conservation District approved the Stormwater Management

Plan for the Oakwood Village Site on March 23, 2006.128 Oakwood Village had not



125
    See JX168 at 3.
126
    See, e.g., Post-Trial Brief on Behalf of Oakwood Village at Lewes, LLC and George & Lynch
Inc. (“OVAL Post-Trial Answering Br.”) 25 (collecting signatures).
127
    See, e.g., Trial Tr. 1213:1–1214:23 (Jones) (testifying the feasibility study period had not yet
run at the time of the March 9 Signature and Lessard Builders had not informed the Robinsons that
they would not purchase the property).
128
    Pretrial Stip. 16.

                                                24
at the time obtained a stormwater easement from the Robinsons. While Mr. Cupples

testified that he informed Brian Lessard and Mr. Jones that such an easement was

needed; no such easement was ever secured.129

       William Schab, Esquire, contacted Lessard Builders’ attorney on behalf of the

Robinsons on April 4, 2006.130 Schab was retained by the Robinsons to counsel

them on a transaction with Lessard Builders, and negotiate on their behalf for the

purchase of their property. Schab indicated that his clients “are anxious to finalize

the process” and asked Schab “to get involved and to respond to [Lessard Builders’]

most recent proposed contract” and sought a $500,000 deposit within the next

sixteen months.131 Later in 2006, Brian Lessard presented a utility easement to the

Robinsons regarding treatment of wastewater—not the stormwater at issue here—

for the Oakwood Village Site, which the Robinsons never executed.132 A final

Stormwater Management Plan was submitted back to Sussex Conservation District

over Brian Lessard’s signature on December 14, 2006, with an affirmation that the

property would be developed consistent with the submitted plan.133

       Before construction began, Oakwood Village LLC underwent an ownership

shift—Lewes Property Development, LLC acquired a 50% membership interest and



129
    See Trial Tr. 1286:22–1287:19 (Cupples).
130
    JX172.
131
    Id.
132
    Pretrial Stip. 18.
133
    Id.

                                               25
the Lessard brothers stake was reduced to 35% for Brian Lessard, and 15% for Colin

Lessard.134

                         b. Oakwood Village Construction

       Construction started in the Summer of 2007. On July 9, 2007, George &

Lynch sent the Sussex Conservation District a “revised sequence of construction”

which indicated that pond 4 is “the only outlet for the project.”135 In other words,

the Stormwater Management System for the entire Oakwood Village Site would

discharge all stormwater that entered the system, absent evaporation or infiltration,

from pond 4, which is directly adjacent to the Robinson Property. In August 2007,

George & Lynch began site work on the Oakwood Village Site.136 Also in August

2007 Jones of Lessard Builders acknowledged in an email regarding stormwater

pond issues that there is “no existing confined ditch or stream that leaves the site.”137

Shortly thereafter, ARM circulated a memorandum to Lessard Builders indicating

that all of the ponds collecting stormwater runoff for the Site “are connected by pipes

and discharge to the surface near the Robinson property line since there is no natural

outfall (ditch, stream, etc.) at the site.”138




134
    See id. at 19.
135
    See JX199 at 1–2.
136
    Pretrial Stip. 19.
137
    JX204.
138
    JX205.

                                             26
       By July 31, 2008 the stormwater retention basins for the Oakwood Village

Site were generally installed, but not yet fully functional.139 The system is designed

as a series of interconnected basins to collect water and sediment along with an

attempt to control discharge. Precipitation from the entire Oakwood Village Site

that is not otherwise absorbed into pervious surfaces is captured in the stormwater

system, and stored in ponds to dissipate without outlets to any watercourse or

drainage ditch. When these storage basins overflow, as they have with some

frequency, they do so onto the ground near the Robinson boundary, and the water

then flows in sheets overland to the low areas of the Robinson Property.

       Brian Lessard transferred responsibility for the Oakwood Village Site from

Lessard Builders to Oakwood Village LLC effective as of August 7, 2008.140

Photographs and videos in the record reflect that as late as 2014 construction and

site work was occurring on the portion of Oakwood Village abutting the Robinson

Property.141 Further, George & Lynch posted photographs on Facebook in 2013

showing earth-moving site work that it was performing at Oakwood Village.142

Aerial photos show Oakwood pond 4 dry as late as March 2012.143




139
    See Pretrial Stip. 19; JX353.
140
    Id. at 20.
141
    See generally JX251; JX251A.
142
    See JX377.
143
    JX353.

                                         27
               3. Flooding and Run-off Increases

       On December 21, 2008, the Plaintiffs’ daughter took the photograph of

ponding water in the north-central portion of Plaintiffs’ property, displayed above.144

The lines on the trees depict the maximum flood height at “historic flood levels.”145

Standing water on the Robinson Property in 2008, however, was seasonal and

contained in certain limited areas.

       In the summer of 2014, several significant rain storms passed through

southern Delaware—specifically, in July and August several multi-inch rains

occurred.146 The Robinsons initiated this action in September 2014.

       Prior to the start of this action, on July 11, 2014, Jason Wardrup, the

Robinsons’ son-in-law, walked the Robinson Property with Jim Elliot from the

Sussex Conservation District.147 Wardrup testified that he witnessed large amounts

of sediment-laden water flowing off the Oakwood Village Site onto the Robinson

Property.148 Photos taken that day demonstrate water overwhelming a silt-fence, and

flowing in sheets onto the Robinson Property, past healthy trees.149 The water

flowed with sufficient force to cut trenches and swales into the ground.150 Water has



144
    See JX220; Figure 2.
145
    See Trial Tr. 894:24–895:10 (J. Robinson).
146
    See Pretrial Stip. 21.
147
    Trial Tr. 778:21–781:18 (J. Wardrup).
148
    See id.
149
    See, e.g., id.; JX251 at July 11, 2014 photographs.
150
    See JX251 at July 14, 2014 photograph.

                                                28
discharged from the Oakwood Village Stormwater Management System with

sufficient force, and at sufficient depths to, on at least one occasion, sweep a medium

sized fish onto the central portions of the Robinson Property.151

       DNREC issued several notices that the Oakwood Village Site was “out of

compliance” throughout the summer and fall of 2014, and included in certain reports

photos of the trenches created by stormwater in berms on the Oakwood Village

Site.152 By February 25, 2016 DNREC fined Oakwood Village LLC for violating

sediment and stormwater regulations, and regulations governing the control of water

pollution.153 Specifically, DNREC determined that Oakwood Village LLC failed

“to report the discharge of sediment-laden water;” failed “to timely stabilize a

stormwater conveyance swale;” failed to “conduct inspections of erosion and

sediment controls and stormwater maintenance practices” after rainfall; failed “to

maintain the written records for erosion and sediment control review on the site;”

and finally violated the administrative code by “blatantly compromising sediment

controls permitting sediment-laden water to flow off the premises to an adjacent

property and failing to timely repair an overwhelmed perimeter silt fence.”154 The

basis for these findings included on-site visits as well as prior reports that detailed




151
    See id. at Oct. 22, 2014 photographs; Trial Tr. 798:4–799:3 (J. Wardrup).
152
    See, e.g., JX235. See also JX236; JX237; JX241.
153
    See JX250.
154
    Id. at 3.

                                               29
problems that remained uncorrected.155 Due to DNREC’s conclusion that Oakwood

Village LLC violated several “statutory and regulatory provisions,” DNREC issued

an administrative penalty of $36,900, along with costs incurred in the investigation

of $5,535.156

       Aerial photos show the progress of the development of the Oakwood Village

Site.157 The ponds closest to the Robinson Property line were still empty in 2012.158

By contrast, the Oakwood Village Site stormwater system in the winters of 2014 and

2015 discharged near the Robinson boundary almost continuously—even when

there was little precipitation.159         Water discharges from pond 4 into a small

catchment basin, pond 4A,160 the pond closest to the Robinson-Oakwood property

line.161 While all the ponds are connected, there is only one positive outfall, from

4A. The discharged water moves across the property line, not in a defined channel,

but rather in “sheets of water moving across the ground.”162 The water then enters

the sump areas on the Robinson Property and ponds.




155
    Id. at 2–3.
156
    Id. at 3.
157
    Compare JX358; JX359 (pre-development) with JX352; JX353 (post-development).
158
    See JX353.
159
    Trial Tr. 829:18–830:15 (J. Wardrup).
160
    A smaller pond directly adjacent to the larger pond 4, and the closest stormwater facility to the
Robinson Property—nearly abutting it. See Figure 1.
161
    See Trial Tr. 913:6–16 (L. Robinson); JX251; JX251A.
162
    Trial Tr. 913:6–16 (L. Robinson).

                                                30
       The expert testimony regarding flow onto the Robinson Property is

voluminous, and often conflicting. To the extent expert testimony is needed to

resolve the reasonableness of the discharge onto the Robinson Property, I find

particularly helpful the work performed by Plaintiffs’ expert, Mr. Launay. Launay

had the opportunity to observe the Robinsons Property closely in 2004 and 2005,

prior to the alleged damages from the Oakwood Village Site, and again upon the

start of this litigation following the alleged changes. Launay, who I found credible

on this point, testified that conditions were “dramatically different” when he returned

to the site in 2015 following the completion of the Oakwood Village Stormwater

Management System.163 Launay further testified to observing water discharging

from pond 4A, adjacent to the Robinson Property line, “in a shallow spread of water

flowing at the surface, and there was quite a bit of evidence in terms of disturbance

of leaf litter and disturbance of the forest floor, different things that would denote to

me that significant volumes of water had gone . . . across the Robinsons' property

and discharged towards sump A.”164               I note that the Defendants’ expert, Mr.

Christenbury, also testified to certain volumetric increases in discharge onto the

Robinsons Property.165




163
    See id. at 236:11–238:2 (Launay).
164
    Id.
165
    See, e.g., id. at 475:10–476:21 (Christenbury).

                                                31
                               II. PROCEDURAL HISTORY

       The procedural history of this matter is rather winding. The following

summary is sufficient to the remaining issues before me.

       By stipulation of the parties, there are several Counts that remain to be decided

against five Defendants.166 The remaining Counts are for trespass or nuisance,

timber trespass, negligence, and fraud.167 Each remaining Count is alleged against

all remaining Defendants, except for the fraud claim that was not brought against

George & Lynch.168 This post-trial Memorandum Opinion addresses the remaining

Counts on the issue of liability only.169

                                         III. ANALYSIS

       The Plaintiffs bear the burden of proving each element of their claims,

including damages, by a preponderance of the evidence.170                             “Proof by a

preponderance of the evidence means proof that something is more likely than

not.”171

       A. Liability


166
    Dkt. No. 285.
167
    Id. I note that at conclusion of post-trial oral argument I found that the unjust enrichment
allegations pled in this action are properly considered subsumed within the trespass allegations.
See id. at 2–3; Draft Nov. 29, 2016 Oral Argument Tr. at 96–102.
168
    Dkt. No. 285.
169
    I note that at closing argument the Plaintiffs agreed that the only actionable issue present in this
case is the discharge of water onto their property. Draft Nov. 29, 2016 Oral Argument Tr. at 14–
15.
170
    See Revolution Retail Sys., LLC v. Sentinel Techs., Inc., 2015 WL 6611601, at *9 (Del. Ch. Oct.
30, 2015).
171
    Id. (citation omitted).

                                                  32
       The Robinsons contend that they have been harmed by the discharge of water

from Oakwood Village. They seek recovery for this harm via tort—nuisance and

trespass—and statute, alleging a “timber trespass.” I address the common-law

theories first.

       Conceptually, cases involving wrongful discharge of water onto a neighboring

property can be looked at as a trespass—a wrongful invasion of real property—or a

private nuisance—a wrongful deprivation of the quiet enjoyment of real property.172

The Plaintiffs have proceeded under both theories, and it makes little difference

which is operative here. Much of the Oakwood Village Site drains naturally onto

the Robinson Property. Because Delaware law recognizes the general right for an

upper landowner to drain water by means of its natural flow,173 neither theory of

recovery is tenable absent a showing of unreasonable use; that is, that the increase

in discharge is unreasonable under the circumstances. Thus, I start with a reasonable

use analysis. I find, following a balancing of the relevant factors, that the Oakwood

Village Site’s use is unreasonable and that liability attaches for a trespass.

              1. The Reasonable Use Doctrine

       The Oakwood Village Defendants argue that “because the Development’s

excess discharge is justified under the reasonable use standard the Court must find

172
    See, e.g., Beckrich Holdings, LLC v. Bishop, 2005 WL 1413305, at *11 (Del. Ch. June 9, 2005)
(finding “this flow of water constitutes a continuing nuisance and trespass.”)
173
    See generally Weldin Farms, Inc. v. Glassman, 414 A.2d 500 (Del. 1980) (adopting the
“reasonable user” standard).

                                              33
that the additional water directed onto the Plaintiffs’ Property falls well within the

acceptable parameters of the reasonable use doctrine.”174 Delaware law recognizes

that “[a]n upper landowner unquestionably has the right to drain water by means of

its natural flow toward downstream properties.”175 However, “Delaware follows the

‘reasonable user’ rule to assess the actions of an upper landowner who artificially

increases the flow of its storm water downstream.” 176 An upper landowner will be

liable for the development of her property where she “artificially alters the course of

waters flowing downstream so as to increase their volume, acceleration, or

concentrated output onto downstream properties in ways that cause material

injury.”177 Whether the use is reasonable depends on a fact-specific balancing of

“the utility derived by the upper landowner from his development against the amount

and foreseeability of harm that he created by altering the flow of surface waters

toward downstream property.”178 Further, in assessing the reasonableness of the use,

“courts consider the social value of improving land through development.”179



174
    OVAL Post-Trial Answering Br. 48. See id. at 42 (arguing that Plaintiffs’ trespass and nuisance
claims fail under the reasonable use analysis).
175
    Quereguan v. New Castle Cty., 2010 WL 4241583, at *5 (Del. Ch. Oct. 22, 2010) (citing Weldin
Farms, 414 A.2d at 502).
176
    Trustees of Vill. of Arden v. Unity Const. Co., 2009 WL 1530711, at *2 (Del. Ch. May 27, 2009)
(citations omitted).
177
    Quereguan, 2010 WL 4241583, at *5 (citation omitted).
178
    Id. (citation omitted).
179
    Id. (citation omitted). In the damages context, it is difficult to understand the utility of the
“reasonable use” test, since assuming social utility outweighs damages, development would occur
even if the upstream user were strictly liable, and the market, rather than the Court, would make
the determination.

                                                34
       I find this Court’s decision in Trustees of Village of Arden v. Unity

Construction Company (“Arden II”),180 and its application of the reasonable user

standard, most instructive to the facts and legal issues before me in this matter.

Arden II involved three general parcels of land. The highest in elevation was a pre-

existing suburban development.181 That parcel drained onto a newer development,

“Buckingham Greene”—the homeowners’ association of which was the defendant

in the action.182 The third and lowest point was “Sherwood Forest,” a wooded and

“beautiful natural setting.”183 Sherwood Forest was located on a slope and water

would flow through it naturally from the Buckingham Greene site, historically,

without major erosion.184 The plaintiff, Village of Arden, served as trustee to

Sherwood Forest, and brought the action following “significant erosion” in

Sherwood Forest.185

       Prior to the development of Buckingham Greene, water from the suburban

development situated above it would flow onto Buckingham Greene and “over its

then-undeveloped farmland or meadows.”186 Thus, the stormwater’s descent “was




180
    2009 WL 1530711 (Del. Ch. May 27, 2009).
181
    Id. at *1.
182
    Id.
183
    Id.
184
    See id.
185
    Id. While the names evoke the Olde England of Shakespeare and legend, the parcels are located
in New Castle County, Delaware.
186
    Id.

                                               35
slowed by the [Buckingham] site’s vegetation until it reached Sherwood Forest.”187

Developers of Buckingham Greene faced two stormwater challenges—the existing

discharges which flowed across the land from the higher situated, already developed

land, and the new discharges that would be generated from within the new

Buckingham Greene development from, among other things, “roofs, driveways, and

roads.”188 The stormwater management plan for Buckingham Greene was “designed

competently and in accordance with prevailing engineering practices,” and approved

by the county and constructed in accordance with all plans and permits.189 In sum,

that system included a “splash pool” designed to reduce velocity of the flow and

avoid erosion in the lower situated Sherwood Forest.        However, Buckingham

Greene’s splash pool and stormwater plan did not function as expected. The effluent

from Buckingham Greene caused extensive erosion within Sherwood Forest

immediately adjacent to the discharge point, carving a ditch of approximately three

to five feet deep, and five to ten feet wide, placing in jeopardy “[t]rees and other

flora.”190 The “harm” occurred “primarily during significant weather events” and

the question of why an otherwise “prudently engineered” system was causing

damage was not entirely clear.191 The Court posited several possibilities, including



187
    Id.
188
    Id.
189
    Id.
190
    Id.
191
    Id. at *1–2.

                                        36
greater than anticipated volume and velocity of water flows, and the nature of the

soils in Sherwood Forest.192 The Court concluded that by focusing an increased

volume to a single discharge point, “the development of Buckingham Greene was

the proximate cause of the large scale erosion in Sherwood Forest.”193

        The Court in Arden II applied the reasonable user test. The Court found the

harm to Sherwood Forest via the development’s discharge “palpable and severe.”194

Further, even though Sherwood Forest was vacant, a focus on that fact was

inappropriate because such “a view would unfairly demean the stewardship

responsibilities regarding pristine natural areas—especially as surrounded by

widespread development.”195 Rather, the Court credited “[t]he uniqueness, beauty,

and natural heritage of the Sherwood Forest . . . .”196

        Against the above, the Court balanced the following facts: Buckingham

Greene did not foresee the harm, adhered to appropriate design plans, and its conduct

in designing and building the stormwater system did “not even approach . . .

negligence.”197 Further, the use of the Buckingham Greene site to provide housing

for many families was “a matter of significant social utility.”198 Ultimately, the



192
    Id. at *2.
193
    Id.
194
    Id.
195
    Id.
196
    Id.
197
    Id.
198
    Id.

                                          37
Court concluded that the “balance, however, tends to favor the [plaintiffs], although

not by a wide margin, because of the scope of the harm and because the harm is so

directly traceable to actions of [Buckingham Greene]. In short, it is unreasonable

for Sherwood Forest to bear the burden imposed by [Buckingham Greene].”199 In

light of its finding—that the use was unreasonable, but that the balance was close—

the court employed a further reasonableness discussion in determining the proper

remedy.200

          Here, it is obvious that the development of Oakwood Village has created

social utility by providing homes and increasing the value of real property. It has

also created downstream damage. The Robinson Property, similar to Sherwood

Forest in Arden II, includes certain unique natural features that an upstream user may

not freely diminish or impair simply because the land is undeveloped or because the

damage is not to a particular business or enterprise. As with the erosion in Arden II,

the present harm of increased depth and frequency of ponding is directly traceable

to an adjacent development’s discharges. While the damage is different from and

not as dramatic as that in Arden II, neither are the equitable factors as favorable to

the upstream property owner. Here, it was foreseeable that the point discharge across

the property boundary near pond 4 would increase. Here, there was no natural



199
      Id. (emphasis added).
200
      Id. at *3.

                                         38
watercourse available to convey the discharge, and Oakwood Village’s developers

were aware of the need to purchase a stormwater easement from the Robinsons.

Here, the developers were aware of non-draining sumps on the Robinson Property,

downhill from the discharge point. While the Defendants may not have foreseen the

specific damage that has resulted, these or similar consequences of their actions

should have been foreseeable. For these reasons, and the additional circumstances

below, I find that the balance tips in favor of the Robinsons.

      At the encouragement of the parties, I walked the relevant sites during this

litigation, in the summer dry season. The harm from the increased discharge was

readily apparent. Water was standing in the sumps, preventing the Robinsons’ use

and enjoyment of portions of their property. Mature trees standing in this water were

leafless and, apparently, dead, in contrast to the trees on higher ground, which were

leafed-out and apparently healthy. It does not take an expert to observe that mature

trees do not grow to size in the same conditions that kill them.

      Nonetheless, the record contains evidence corroborating my observations,

both expert and lay, sufficient in its own right to support my finding that the

Robinsons have suffered material damage from the run-off attributable to the

development of Oakwood Village. Testimony concerning the overland flow of

water onto the property, the correspondence of that flow with the development and

operation of the Stormwater Management System in Oakwood Village, the resulting


                                         39
increase in the depth and duration of standing water in the sumps, and expert

testimony about the effect on trees in those sumps, 201 support a finding that

development of Oakwood Village and the operation of its Stormwater Management

System are the proximate cause of the ponding and the dead trees on the Robinson

Property.202

       I find by a preponderance of the evidence, including the correspondence of

the healthy and dead trees to the extent of standing water, that damage to the trees

was caused by the increased discharge. I also find that the Robinsons’ ability to use

and enjoy their property has been diminished by the increased discharge. I find that

the Robinson Property is being damaged such that Oakwood Village’s increase in

discharge is not reasonable under the circumstances present here. That is, as in

Arden II, it is inappropriate for the Robinson Property to bear the burden imposed

by the development of the Oakwood Village Site.

       There is no debate that an artificial increase in surface waters has occurred

due to the development of what was once wooded land203 into a suburban subdivision

with corresponding impervious surfaces. While the Defendants have a right to

develop the Oakwood Village Site, the documentary record adequately reflects that




201
    See Trial Tr. 294:1–24 (Carlson); id. at 306:23–307:15 (Carlson).
202
    I have omitted comprehensive citation to the record here, because comprehensive review of the
evidence will occur in the damages opinion to follow.
203
    See, e.g., JX359.

                                               40
the changes resulting from that development have caused an increase of surface

waters currently entering the Robinson Property, and that such increase is harming

the Robinson Property in a material way.

       I note that unlike certain other cases in this area of the law,204 the discharged

water here is not going into a defined preexisting stream or channel. Rather, it is

discharging across the land, in sheets, with enough force to create erosion. That is,

the discharge is, at times, causing minor channelization, but this is not a case where

an upstream owner is simply increasing discharge of water into an existing stream

or channel. As recited above, the developers were well aware of the lack of a channel

to carry off effluent.205 Following the development of Oakwood Village, water exits

that site at the southwest-corner in sheets flowing across the land, in sufficient depths

and at sufficient volumes to carry away the soil and cause erosion into the earth, and

to deposit silt and debris on the Robinson Property. Thoreau famously wrote of “a

trout in the milk” as strong circumstantial evidence:206 here, photographic evidence

shows a good-sized fish washed down-slope into the Robinsons’ woods, similarly

convincing circumstantial evidence of heavy flow from Oakwood Village into the



204
    See, e.g., Weldin Farms, 414 A.2d at 501, 503 (invoking the reasonable use doctrine where the
increase in flow was to “Turkey Run,” a stream which runs through and alongside the plaintiff’s
property, which after additional upstream development would overflow its banks with more
frequency).
205
    See Chorman v. Queen Anne's R. Co., 54 A. 687 (Del. Super. Ct. 1901) (indicating liability
where increased discharge onto plaintiff’s field damaged standing crops).
206
    Henry David Thoreau, Journal, Nov. 11, 1850.

                                               41
Robinson Property.207 The central portion of the Robinson Property contains a

relatively low-lying depression that was historically seasonally wet and occasionally

ponded. The record indicates this feature is now ponding at higher levels and with

materially greater frequency. The fact that the sumps were historically wet does not

mean that the changes attributable to the development of Oakwood Village are

reasonable or less than material.208 In other words, the existence of wet-but-useable

features on the Robinson Property is no license to adjoining property owners to

utilize that feature as a part of their stormwater system, without an easement. I note

the record reflects an awareness by certain Defendants of the need to acquire a

stormwater disposal easement: such private ordering should have been the

mechanism for avoiding this dispute.209

       The Defendants also have certain factors balancing in their favor, as mandated

in the reasonable-use analysis. As stated above, there is social value to development

of real property. The stormwater system here, while the subject of several non-


207
    This fish was surely no trout—it seems to have been a small bass. See JX251 at Oct. 22, 2014
photographs. See also Draft Nov. 29, 2016 Oral Argument Tr. at 60–62 (arguing bass may have
been dropped in the woods by a wayward and poorly-coordinated eagle).
208
    See McCarthy v. Abe, 1993 WL 93373, at *1 (Del. Ch. Mar. 3, 1993) (finding that certain
defendants were not reasonable users—even though not all the water that accumulated on the
plaintiff’s land was a result of the new users pumping water into a ditch—where those new users
caused a “substantial increase” over what otherwise might be present). See also id. (noting that
“[t]he Court has little doubt that the land in question is not very suitable for residential use but as
long as the County and State permit developers to sell water logged timberland as home sites,
drainage problems such as these will arise”).
209
    I note, in this sense, the Defendants have preferred to roll the dice; they have directed discharge
on a neighbor, and then argued that the resulting damages are within the reasonable use doctrine
or do not support injunctive relief.

                                                 42
compliance citations and a five-figure DNREC fine, has otherwise been constructed

pursuant to valid permits and County approval. I note, however, in light of the record

developed at trial, and outlined in this Opinion, I have serious doubts that the

approval of the plans for this community and its stormwater system were as pristine

as the process in Arden II. That is, in Arden II, there was a model planning,

permitting, and construction process. Nonetheless, when the system operated in an

unexpected way, the fact that stormwater system was properly permitted and

approved was not enough to relieve the defendant of liability for the harm caused by

the discharges. Certainly, the permitting and construction process here—with its

questionable revision and deficiencies—is not more helpful in equity to the

Defendants than the process in Arden II. In light of the foregoing, I find that the

balance of the reasonable use analysis favors the Robinsons.

             2. Trespass and Nuisance

      The tort of “[t]respass is a strict liability offense, the elements of which are

entry onto real property without the permission of the owner.”210 Further, as this

Court has explained, “[a]ny entry on land in the peaceable possession of another is

deemed a trespass whether the defendant acted intentionally or not.”211 Prior cases

in this Court involving the flow of water have found that “the instrumentality which


210
    Fairthorne Maint. Corp. v. Ramunno, 2007 WL 2214318, at *5 (Del. Ch. July 20, 2007)
(quoting Beckrich Holdings, 2005 WL 1413305, at *9).
211
    See Alfieri v. State, 1984 WL 478437, at *3 (Del. Ch. Aug. 8, 1984) (citation omitted).

                                            43
constitutes the means for the trespass may take any intrusive form, including water

from an improperly constructed [artificial structure].”212 That is, a “trespass then

may be said to consist of the intrusion of water from a condition created by the

[defendant] which interferes with plaintiffs' use of their property.”213 As noted

above, reasonable use is a defense to the discharge of water in a trespass action, 214

but I have found the discharge here to be unreasonable.

       Through the factual record developed at trial, and my experience walking the

site, it is clear that water via artificial conditions on the Oakwood Village Site is

discharging at an increased rate onto the real property of the Robinsons. In fact, that

is how the stormwater system is designed to operate, as the only positive outfall is

directly pointed at the Robinsons Property. I find, therefore, the Plaintiffs have

shown a trespass by the preponderance of the evidence.215

       The Plaintiffs have also pursued a claim for nuisance. “A private nuisance

generally is defined to be anything that results in harm, inconvenience or damage,



212
    Id. at *3 (emphasis added). While I do not make a finding here that the stormwater retention
ponds were in fact improperly constructed, I do conclude the water that they are discharging can
be the basis for a trespass action.
213
    Id. See Beckrich Holdings, 2005 WL 1413305, at *9 (quoting Alfieri, 1984 WL 478437, at *3).
214
    I note that the Defendants have also raised what amounts to a “ditch defense.” Specifically,
that if the purported “ditches” on the Robinson Property were, per the Defendants, better
maintained, they would not currently be facing substantial water ponding problems. Without
commenting on the viability of such a defense, I note that there has been an insufficient showing
made factually to consider it here. The Defendants have failed to show that historical ditches
drained the Robinson Property in a way that could accommodate the runoff from Oakwood
Village.
215
    The acquiescence defense is discussed in more detail infra.

                                               44
or which materially interferes with the enjoyment of rights or property of a particular

entity.”216 Here there has been harm that materially interferes with the Robinsons’

right to enjoy their property. I find that the conditions described above support a

finding of nuisance. Such a finding is consistent with prior decisions in this Court

that recognize that an ongoing flow of water can constitute both a trespass and a

nuisance.217 I need not dwell on this theory, since under the circumstances, the

damages and equitable relief available are the same under either theory.

       I have found the discharge of water onto the Robinson Property to be tortious.

The remaining question is which Defendants (or Defendant) are liable in tort. The

Plaintiffs have attempted to implicate any Defendant that played any role in

developing the stormwater system in question.218 I find Plaintiffs’ theory difficult

to comprehend. They have provided me with no applicable precedent for such a

widespread finding of liability for trespass.219 The owner of the property at all times


216
    Beckrich Holdings, 2005 WL 1413305, at *9 (citation omitted).
217
    See id. at *11 (finding “this flow of water constitutes a continuing nuisance and trespass”). See
also Restatement (Second) of Torts § 821D cmt e (1979) (noting “the flooding of the plaintiff's
land, which is a trespass, is also a nuisance if it is repeated or of long duration”).
218
    See, e.g., Pls’ Post-Trial Opening Br. 47 (arguing “[a]ll of the Defendants played a role and are
responsible for setting in motion the stormwater discharge that resulted in the trespass); Draft Nov.
29, 2016 Oral Argument Tr. at 12 (arguing “[i]f you participate in the tort, anyone who participates
in that tort is liable”).
219
    But see Trustees of Vill. of Arden v. Unity Const. Co., 2000 WL 130627, at *3 (Del. Ch. Jan.
26, 2000) (stating “[t]his Court has broadly held that ‘[a]ll those who participate in the creation
or maintenance of a nuisance are generally liable to third persons for injuries suffered therefrom.’”)
(quoting Keeley v. Manor Park Apts., Sec. I, 99 A.2d 248 (Del. Ch. 1953)) (emphasis supplied by
Court of Chancery in Arden). While this language has been repeated by our Court on several
occasions, the citations trace their root back to the Keely case cited above. In Keely the Court of
Chancery was faced with a summary judgment motion where the moving defendant had previously

                                                 45
during which a trespass or nuisance has occurred is the current owner of the

development and stormwater ponds,220 Oakwood Village LLC. Oakwood Village

LLC’s stormwater system is causing the ongoing trespass and nuisance to the

Plaintiffs’ property. Oakwood Village LLC is the entity liable to the Robinsons in

tort. The Plaintiffs seek various damages purportedly arising for these torts—

including the temporal loss and enjoyment of certain portions of their property,

compensation for the killed trees, compensation for the spoilage of their drinking

water allegedly caused by the discharge, and compensation for “mental anguish.”221



owned and designed a development, and dedicated the streets for use by the general public. Keeley,
99 A.2d at 248–49. The plaintiffs sued the moving defendants seeking injunctive relief for water
draining onto their property. Id. The defendants sought dismissal on the ground that they no
longer owned the property from which the nuisance emanated; evidence in the record, however,
indicated that the moving defendants had demanded the construction of the water drainage conduit
which was causing the harm, that they owned portions of the conduit, and that water from other
lands they owned was draining into the conduit and flowing onto the plaintiff’s land. Id. at 249–
50. The defendants, according to the plaintiffs, also retained the fee to the streets, and had caused
the contractor to construct the conduit “according to their specifications.” Id. at 250. The Court
observed that “[o]ne who erects a nuisance will sometimes be liable for its continuance after he
has parted with the possession of the land, particularly where he conveys the property with
covenants for the continuance of the nuisance or otherwise derives benefit therefrom.” Id.
(citations omitted) (emphasis added). The Keely court denied the defendants’ summary judgment
motion for, among other reasons, the presence of a genuine dispute of material fact regarding
whether the defendants “contributed to or participated in to a substantial degree the laying out of
the streets or the laying out of the conduit, or both, to the damage of plaintiffs.” Id. (emphasis
added). I note the circumstances of Keely, are distinguishable from the position of the Defendants
here. The Defendant that is equivalent to the defendant in Keely who lost the motion for summary
judgment is Oakwood Village LLC, the owner of the fee at all relevant times. Later decisions of
this Court have recognized that “[t]he non-property owner's participation [in the nuisance] must be
substantial, however, for his conduct to constitute the legal cause of the harm.” See Hazlett v.
Fletcher, 1985 WL 149636, at *2 (Del. Ch. Mar. 1, 1985) (emphasis added). Here, I find
insufficient evidence on which to extend liability beyond the fee owner during the periods relevant
to trespass and nuisance liability—Oakwood Village LLC.
220
    As represented by the parties.
221
    See Pls’ Post-Trial Opening Br. 60–63.

                                                46
I find that the Plaintiffs have failed to show by a preponderance of the evidence that

they are entitled to recovery for damages to their well-water or for mental anguish.

The quantum of damages for damage to timber and loss of use await further

proceedings, as discussed below.222

          The Robinsons variously allege that other Defendants participated in creation

of an improper stormwater system design, under contract to the developers of

Oakwood Village. This may give rise to contract liability to Oakwood Village LLC,

but the Plaintiffs have failed to show that the other Defendants are liable under

theories of nuisance or trespass.

                 3. Timber Trespass

          The Plaintiffs seek a determination that the death of standing timber on their

property caused by increased discharge from the Oakwood Village Site entitles them

to triple damages and attorney’s fees under 25 Del. C. § 1401 (the “Timber Trespass

Statute” or “Section 1401”). At common law, damage was compensable for torts,

including conversion or trespass, in the amount of the actual damages; that is, the

tortfeasor’s victim could be made whole for his loss. As for attorney’s fees,

Delaware follows the American Rule, under which each party bears her own fees.




222
      See infra Section IV.

                                            47
       In derogation of the common law, the General Assembly has provided treble

damages and fees for the willful conversion of timber.223 In case of an unintentional

trespass, the Timber Trespass Statute provides fees but otherwise preserves the

common law; damage or conversion of timber is compensable, but treble damages

are not available.224 “Willful” conversion of timber is treated differently. The

Timber Trespass Statute provides:

       (a) Whoever wilfully, negligently or maliciously cuts down or fells or
       causes to be cut down or felled a tree or trees growing upon the land of
       another, without the consent of the owner, shall be liable for damages
       as set forth in subsection (b) of this section.
       (b) In civil actions brought for an act of timber trespass the court shall
       have the authority to determine whether such trespass was unintentional
       or wilful and award damages accordingly. If the plaintiff shall satisfy
       the court that the metes and bounds of that plaintiff’s property at the
       place of the trespass were appropriately established and marked by
       reasonably permanent and visible markers, or establish that the
       trespasser was on notice that the rights of the plaintiff were in jeopardy,
       the court shall find that the trespass was wilful and shall award
       exemplary damages equal to triple the fair value of the trees removed
       plus the cost of litigation. If, however, the court shall find that the
       trespass was unintentional, the court may award the plaintiff damages
       equal to the conversion value of the trees taken or damaged plus cost of
       litigation.225

       In other words, knowingly entering the lands of another, and removing the

timber, results in the shifting of fees and an award of “triple the fair value of the trees




223
    See 25 Del. C. § 1401.
224
    See id.
225
    Id. (emphasis added).

                                            48
removed.”226 The reason for this statute, which exists in other forms in other

jurisdictions,227 is not difficult to discern. Standing timber is a valuable asset.

Unlike most other such assets, it is difficult to safeguard. It cannot be kept under

lock and key. It takes many years to create, yet is readily removed. Most saliently,

it exists often in remote areas that even a careful owner cannot be expected to

continuously monitor. Thus, the Legislature increased the disincentive to willful

conversion by applying treble damages for the taking of timber by trespass.

       The Plaintiffs urge me to find a willful timber trespass on the facts of this case.

They ask me to apply treble damages for the value of trees killed or damaged by the

increased discharge onto the Robinson Property. This is a novel interpretation of the

statute. No trees have been removed from the property by the Defendants; in fact,

the Robinsons also seek damages for the cost of felling and removing dead and dying

trees occasioned by the increase in effluence. The Plaintiffs argue that the entry here

was intentional, or at least foreseeable, but there certainly was no will on the

Defendants’ part to kill, let alone “remove,” the Robinsons’ trees. The matter before

me is not the scenario to which the statute is addressed. More important to my

decision, however, is that the statute is in derogation of the common law, and must


226
    Id. (emphasis added).
227
    See, e.g., Jongeward v. BNSF R. Co., 278 P.3d 157, 160 (Wash. 2012) (observing that one
purpose of the Washington State statute protecting timber is to “discourage persons from carelessly
or intentionally removing another's merchantable shrubs or trees on the gamble that the enterprise
will be profitable if actual damages only are incurred”) (citation omitted).


                                                49
be read strictly.228 The plain language of the statute prevents a finding that a timber

trespass has taken place here.

       First, the statute provides for a remedy against those who, while trespassing,

“cut down or fell” trees.229 Here, no one has cut a single Robinson tree, although I

have found by a preponderance of the evidence that the actions of certain Defendants

have caused ponding which has damaged or killed trees on the Robinson Property.

The Plaintiffs argue that the trees have been “felled.” They argue that the statute

should be construed to avoid redundancy; that “fell” must thus mean something other

than “cut down,” and therefore that “fell” here means damage or kill.230 But this is

a non sequitur. There are other ways to remove trees than “cutting,” and fell need

not mean “damage” to avoid redundancy. The treble damage provision of Section

1401 is directed to “removal,” and standing timber cannot be removed unless it is

cut down or felled.231

       The verb “fell” is defined in Webster’s Third New International Dictionary as

“to cut, beat, or knock down or bring down, . . . [as fell] a tree. . . . ”232 The Plaintiffs

point out that fell can have a second meaning, kill, as in “a final attack of pneumonia

[felled] him.”233 But this usage is limited to animals or humans who are thus taken


228
    See Higgins v. Walls, 901 A.2d 122, 131 (Del. Super. Ct. 2005).
229
    25 Del. C. § 1401.
230
    See Pls’ Post-Trial Opening Br. 48–49.
231
    See 25 Del. C. § 1401(b).
232
    WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 836 (3rd ed. 2002) (emphasis added).
233
    Id.

                                             50
down—a speaker of standard English would not refer to girdling a tree, or otherwise

damaging or killing it, as having felled the tree while it still stood. In any event, the

statute is in derogation of the common law, and must be read strictly “against the

party seeking its protection.”234 The statute applies only to timber cut down or felled.

Further, in order to evoke the treble damages provision of Section 1401(b), the

timber must be cut down or felled, and “removed” from the property.235 Since none

of those things has happened, the statute is inapplicable, and the Plaintiffs are limited

to their common-law remedy.236

       I note our Supreme Court has, on at least one occasion, addressed Delaware’s

Timber Trespass Statute.237 The Plaintiffs cite to that decision, J.S.F. Properties,

LLC v. McCann,238 as supportive of their position.239 The Court in J.S.F., however,

did not engage in a statutory construction helpful to the issues before me here,

regarding whether these Defendants “felled” trees—rather it affirmed the lower

court based on the lower court’s finding of an intentional trespass.240 The defendant

there admitted to destroying timber and vegetation on the plaintiff’s property, and



234
    Higgins, 901 A.2d at 131 (citing State v. Brown, 195 A.2d 379, 383 (Del. 1963) (“It is true that
statutes in derogation of common law must be strictly construed.”)).
235
    See 25 Del. C. § 1401(b).
236
    I note that a decision that construed “fell” so broadly as to impose liability in derogation of the
common law in these circumstances would be a fell ruling, indeed.
237
    J.S.F. Properties, LLC v. McCann, 2009 WL 4301625 (Del. Dec. 1, 2009).
238
    Id.
239
    See Pls’ Post-Trial Opening Br. 49–50.
240
    J.S.F. Properties, LLC, 2009 WL 4301625 at *2.

                                                 51
admitted to observing stakes and boundaries placed by the plaintiff’s surveyors

before they entered the land.241 Further, the defendant’s principal was orally advised

regarding the boundary by the plaintiff, and the defendant actually performed

landscaping and construction damaging the plaintiff’s property.242 On appeal the

defendant argued that the Superior Court improperly found a timber trespass.243 The

Supreme Court, without analyzing the specifics of the statute, found that the record

supported a “factual finding” of timber trespass “by an intentional trespass.”244 The

J.S.F. analysis sheds little light on the issues present in this litigation.

       Because the plain meaning of the statute does not evoke its application under

the circumstances present here, I cannot find an intentional timber trespass, and the

corresponding treble damages and fee shifting are unavailable.

              4. Negligence

       The Plaintiffs also assert a negligence action, advancing two theories for

negligence recovery—common law negligence and negligence per se.245                    The

Plaintiffs pursued these theories while conceding that “the negligence is largely

subsumed with everything else.”246 A prima facie claim for the tort of negligence


241
    Id. at *1–2.
242
    Id.
243
    See id. at *1.
244
    Id. at *2.
245
    See New Haverford P'ship v. Stroot, 772 A.2d 792, 798 (Del. 2001) (observing that “[t]he
phrase ‘common law’ negligence is sometimes used . . . to differentiate between ordinary
negligence and negligence per se”).
246
    Draft Nov. 29, 2016 Oral Argument Tr. at 17.

                                            52
requires a showing of “duty, breach, causation, and harm.”247 Therefore, “[t]o

prevail in a claim for negligence, a plaintiff must establish that: 1) the defendant

owed the plaintiff a duty of care; 2) the defendant breached that duty; 3) the plaintiff

was injured; and 4) the defendant's breach was the proximate cause of the plaintiff's

injury.”248 The Plaintiffs argue that the Defendants owed them the duty to behave

as ordinary, prudent people, that they breached that duty by failing to protect from

unreasonable risks of harm to others via stormwater discharges, and that such alleged

breach was the proximate cause of the Robinsons’ injuries.249

       The Plaintiffs must prove each element of a negligence claim by a

preponderance of the evidence. Here, as the Defendants have observed, there has

been a failure of proof regarding the applicable standard of care against which a

breach must be measured.250 While the ordinary standard of care is that of a prudent

person, Delaware law recognizes that “[a]s a general rule the standard of care

applicable to a professional can only be established through expert testimony.”251

Conceptually, this must be the rule—an injured brain surgery patient cannot come

before the trier of fact and simply allege some harm occurred, therefore the doctor

must have been negligent; conversely, a prudent man would not attempt brain



247
    Hudson v. Old Guard Ins. Co., 3 A.3d 246, 250 (Del. 2010).
248
    Campbell v. DiSabatino, 947 A.2d 1116, 1117 (Del. 2008).
249
    See Pls’ Post-Trial Opening Br. 60.
250
    See OVAL Post-Trial Answering Br. 37.
251
    See Weaver v. Lukoff, 1986 WL 17121, at *1 (Del. July 1, 1986).

                                              53
surgery absent special training. In such a case, in addition to proving the other

elements of the tort of negligence, the successful plaintiff must establish the

professional standard of care, and that it was violated. Thus, when the situation from

which the harm arises includes a professional performing her job in an area outside

of a lay persons’ ordinary understanding, including—pursuant to our case law—

harm arising from construction projects, an expert is needed to establish the

appropriate standard of care.252           Here, the Defendants argued in the various

answering briefs that Plaintiffs’ claims fail for lack of expert testimony on the issue

of the necessary standard of care in design and construction of a stormwater

system.253 The Plaintiffs have failed to respond. I note that the Plaintiffs fail to

identify any testimony establishing the relevant standard of care, nor do they

effectively dispute that the object of the alleged negligence here—a multi-pond

professionally-designed and -engineered stormwater system—is of a nature that

requires establishment of the standard of care by expert testimony. Here, because

there has been no evidence regarding the standard of care for a large-scale

stormwater project, I find that the Plaintiffs have failed to make out the required



252
    See Roberts v. Daystar Sills, Inc., 2008 WL 8203205, at *3 (Del. Super. Ct. Dec. 8, 2008)
(finding in a personal injury action which occurred on a construction site that “[w]ithout an expert
to explain the routine practices and acceptable conditions at a closed construction site, where trade
persons are trained to work in and around precarious conditions, the jury would be left to speculate
as to the standard of care”). See also Robinson v. J.C. Penney Co., 2009 WL 2158106 (Del. July
21, 2009).
253
    See, e.g., OVAL Post-Trial Answering Br. 37.

                                                54
elements of a common law negligence action based on the design or construction of

that system.

       Alternatively, the Plaintiffs attempt to rely on the concept of negligence per

se. Negligence per se essentially merges the duty and breach analyses of a common

law negligence claim. As our Supreme Court has recently stated, “[n]egligence per

se requires the defendant to have committed an unexcused violation of a statute or

regulation that the trial judge adopts as the standard of care.”254 Thus, the statute

provides the duty and the violation is the breach of that duty; the plaintiff still must

prove causation and injury. Negligence per se, however, is only applicable in certain

circumstances. Specifically, negligence per se requires showing the “violation of a

Delaware statute enacted for the safety of others.”255

       The Plaintiffs point to various administrative “out of compliance” findings

and a later administrative penalty for violations of stormwater regulations, imposed

on Oakwood Village LLC, issued by DNREC. The Plaintiffs argue that

       [t]he Stormwater Regulations are designed, inter alia, to protect
       members of the community from the adverse effects of stormwater.
       Plaintiffs are residents of the State of Delaware. Accordingly, Plaintiffs
       are members of the Stormwater Regulations’ protected class.
       Moreover, Plaintiffs’ damages are directly related to the discharge of
       stormwater from [the Oakwood Village Site]. Accordingly, the harm



254
   Hudson, 3 A.3d at 250 (citation omitted) (emphasis added).
255
   See Lechliter v. Del. Dept. of Nat’l Res. & Envir. Ctl., 2015 WL 9591587, at *17 (Del. Ch. Dec.
31, 2015) (citation omitted).

                                               55
       suffered by Plaintiffs is the type of harm that the Stormwater
       Regulations were designed [to] protect.256

Considering this, the Plaintiffs conclude that “[u]nder the standard of care

promulgated by the Stormwater Regulations, the Defendants are liable for

negligence per se for the violations that DNREC identified.”257

       The Defendants, for their part, argue that the stormwater regulations are not

health and safety statutes that can trigger a finding of negligence per se.258 They

point out the technical nature of such regulations and suggest they are not suited to

a negligence per se-type analysis. The issue appears to be of first impression. The

Plaintiffs cite to a Georgia case but not Delaware case law.259 I need not decide the

issue here, however.

       The Plaintiffs allege, and I have found by a preponderance of the evidence,

that the stormwater system as approved and constructed is causing a continuous

trespass and nuisance, resulting in damages.                They have not attempted to

demonstrate or quantify causation or damages specific to the violations of

stormwater regulations upon which they seek to rely in their negligence allegations.


256
    Pls’ Post-Trial Opening Br. 59 (internal citations omitted).
257
    Id. at 60.
258
    See OVAL Defs’ Answering Br. 37 (citing Lechliter, 2015 WL 9591587, at *17). The Lessard
Defendants also argue that there has been no showing of sufficient involvement by any of them to
establish they violated any statute—the citations were issued after they no longer held ownership
in Oakwood Village LLC, and were issued for site work performed by George & Lynch. See
Lessard Defs’ Post-Trial Answering Br. 53.
259
    Pls’ Post-Trial Reply Br. 31 (citing Pulte Home Corp. v. Simerly, 746 S.E. 2d 173 (Ga. App.
2013)).

                                               56
I have no basis to assess damages for any of these violations—for example, failure

to repair a silt fence—apart from the overall damages suffered, nor is there any

indication that such damages, if proven, would not be subsumed within the damage

framework of the trespass and nuisance torts which I have found. Since proof of

causation and damages are required elements of negligence,260 the Plaintiffs have

failed to show entitlement to relief on the basis of any Defendants’ negligence per

se.

              5. Fraud

       The fraud claim here arises from the pre-development negotiations between

the Plaintiffs and representatives of Lessard Builders, and from certain stormwater-

related submissions by certain Defendants to the Sussex Conservation District.

Additionally, the Plaintiffs point to the March 9, 2006 letter written by Bender, the

Stormwater Engineer for the Sussex Conservation District, asking Lessard to explain

the anticipated stormwater discharge to the Robinsons. The Plaintiffs assert that

some Defendant forged the signature of Mr. Robinson on the letter before returning

it to the Sussex Conservation District as part of the stormwater approval process.

       Under Delaware law, the elements of a fraud claim are well established. The

Plaintiff must show:

       1) a false representation, usually one of fact, made by the defendant;
260
    See Lechliter, 2015 WL 9591587, at *17 (noting that in a claim for negligence per se “the
plaintiff must demonstrate that the defendant's violation proximately caused his injury”).


                                             57
          2) the defendant's knowledge or belief that the representation was false,
          or was made with reckless indifference to the truth;
          3) an intent to induce the plaintiff to act or to refrain from acting;
          4) the plaintiff's action or inaction taken in justifiable reliance upon the
          representation; and
          5) damage to the plaintiff as a result of such reliance.261

          The Plaintiffs have produced some evidence supporting an inference that the

March 9 Letter was not signed by Mr. Robinson. They have fallen well short of

proving by a preponderance of the evidence that it was a forgery, however. Mr.

Robinson’s signature on the letter, I note, did not indicate authorship. It was meant,

presumably, to indicate that he had read the letter, which involved stormwater

discharge onto his property. I find most likely that, at a time when he was

cooperating in the development of Oakwood Village in anticipation of a sale of his

own property, Robinson was asked to sign, did, and fails to remember.

          Similarly, the Plaintiffs have created some conflict in the record as to the

accuracy of certain regulatory submissions, primarily including representations

about the water flow from subarea 1S, in the stormwater addendum upon which the

County based its regulatory approvals. The Plaintiffs note that, initially, drainage

studies showed a portion of the Oakwood Village Site drained to the north, and argue

that this information was omitted or inaccurately represented in some submissions

to the County in the approval process.262 I find, however, that the Plaintiffs have


261
      Lord v. Souder, 748 A.2d 393, 402 (Del. 2000) (citation omitted).
262
      See Pls’ Post-Trial Opening Br. 55–58.

                                                 58
failed to make an adequate showing of each element of the tort of fraud.263 That is,

the evidence is insufficient to demonstrate to me that a representation by any

Defendant was knowingly false, or that the Plaintiffs (as opposed to third parties)

were intended to or did act in reliance thereon. The Plaintiffs have failed to meet

their burden of proof with respect to fraud.

       B. The Affirmative Defenses

       The Defendants assert two affirmative defenses.                 The defenses are that

Plaintiffs’ claims are time barred, and that the doctrine of acquiescence similarly

bars Plaintiffs’ claims. I find for the reasons reviewed below that neither is

persuasive.

               1. Acquiescence

       The Oakwood Village Defendants assert that the “Plaintiffs acquiesced to the

increased discharge” from the Stormwater Management System, thus they “cannot

be heard now to complain about that which they agreed to accept.” 264                         The

Defendants rely on Mr. Robinson’s disputed signature on the March 9 letter from

Mr. Bender of the Sussex Conservation District, which indicated an increase in

runoff would occur at the Robinson Property boundary as a result of the Oakwood

development, contrary to what the Defendants had identified was their—and the



263
    I note that the alleged fraudulent actions all occurred in the 2006-time period, and timeliness
issues may also be problematic for recovery.
264
    OVAL Defs’ Answering Br. 28.

                                                59
Robinsons’—prior understanding. However, the same document disclosed that, if

the point of analysis was moved five hundred feet onto the Robinson Property and

the discharges from pond 4 were summed with reductions from other flows, there

would be an overall slight decrease.265 Bender asked that this matter be explained

to the Robinsons. The Defendants point out that Mr. Robinson signed the letter,

which to them indicates that he understood it and acquiesced to any resulting

discharge onto his property. I have found by a preponderance of the evidence that

Mr. Robinson’s signature is genuine, despite his inability to remember signing.

       At a general level, the operation of the doctrine of acquiescence “effectively

works an estoppel: where a plaintiff has remained silent with knowledge of her

rights, and the defendant has knowledge of the plaintiff's silence and relies on that

silence to the defendant's detriment, the plaintiff will be estopped from seeking

protection of those rights.”266 The doctrine “focuses on the defendant's knowledge

of and reliance on the plaintiff's behavior (or lack thereof), and why the plaintiff

must be adjudged complicit in the very breach for which she seeks damages.”267 Our

Supreme Court has explained that a Plaintiff

       is deemed to have acquiesced in a complained-of act where he: has full
       knowledge of his rights and the material facts and (1) remains inactive
       for a considerable time; or (2) freely does what amounts to recognition

265
    See JX168 at 3.
266
    Lehman Bros. Holdings Inc. v. Spanish Broad. Sys., Inc., 2014 WL 718430, at *9 (Del. Ch.
Feb. 25, 2014) (citation omitted).
267
    Id. (emphasis in original).

                                            60
       of the complained of act; or (3) acts in a manner inconsistent with the
       subsequent repudiation, which leads the other party to believe the act
       has been approved.268

Further, “[f]or the defense of acquiescence to apply, conscious intent to approve the

act is not required, nor is a change of position or resulting prejudice.”269

       Mr. Robinson’s signature falls far short of working an acquiescence or

estoppel here. There has been no showing that Mr. Robinson, despite his signature,

understood the letter, and certainly, no evidence has been submitted that any

Defendant explained it to him. Moreover, the letter itself does not describe the

conditions that the Robinsons have suffered. It describes an increase in discharge at

the property boundary, but explains that in sum the total discharge was expected to

slightly decrease. Assuming, therefore, Mr. Robinson fully understood the letter

and its implications, and signed to indicate such, he cannot be said on that basis to

have acquiesced to what has actually occurred, nor could any Defendant

misapprehend that he had so consented. Finally, I assume that this property is held

by the entireties, and there is no indication that Mrs. Robinson consented to or

acquiesced in an ongoing trespass to the property. I do not find the Robinsons

complicit in the wrong for which they are presently seeking relief, and the

affirmative defenses of acquiescence or estoppel are inapplicable.


268
    Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1047 (Del. 2014) (citations omitted) (emphasis
added).
269
    Id. (citations and footnotes omitted).

                                               61
              2. Timeliness of this Litigation

       The Defendants assert that this litigation is untimely and should be dismissed

under the doctrine of laches or the statute of limitations. This defense can be quickly

dispensed with. Laches is an equitable doctrine that applies to litigants who slumber

on their rights.270 This Court typically applies the legal statute of limitations, by

analogy via the doctrine of laches, to equitable claims, and directly with respect to

requests for legal relief.

       Here, I have found liability only for trespass and nuisance, conditions that

continued, periodically, through the time of trial.          Further, the factual record

demonstrates that this trespass did not arise upon the initial development in 2006,

but rather more recently.271 In fact, the stormwater pond closest to the Robinson

Property that is the discharge point for the system was empty as of 2012.272 The

tortious discharge began, obviously, sometime later. The Defendants allege that the

analogous statute of limitations applicable here is three years.273 This litigation

began in 2014. There is no basis to apply laches or a limitation defense here.




270
    See TrustCo Bank v. Mathews, 2015 WL 295373, at *5 (Del. Ch. Jan. 22, 2015) (“Laches will
prevent someone who slumbers on her rights and delays unreasonably in filing suit from being
permitted to prosecute her claims.”).
271
    See, e.g., Trial Tr. 1029:14–1030:21 (M. Robinson).
272
    See JX353.
273
    OVAL Defs’ Post-Trial Answering Br. 29.

                                             62
          C. Gary Cupples’ Request for Fees

          Mr. Cupples, who represented himself in the majority of the filings in this

action, has requested “attorney’s fees” and other litigation-related costs arising from

his involvement in this matter. To the extent Cupples incurred attorney’s fees, he

must bear them himself, absent some exception to the American Rule that obtains in

this jurisdiction. I find no such exception, and his request is denied.

                                          IV. RELIEF

          I find the Plaintiffs have shown they are entitled to damages for the trespass

of water,274 by a preponderance of the evidence. They have suffered damages to

trees and lost the of use of a portion of their property. The appropriate injunctive

relief awaits further litigation. Should the parties agree to settle the request for

equitable relief, they should so inform me. Once equitable relief is in place, I can

determine damages from the parties’ citation to the record as it now exists.

                                        V. CONCLUSION

          For the foregoing reasons Oakwood Village LLC is responsible for a trespass

and nuisance on the Robinson Property. The parties should confer about how to

efficiently present the issue of the appropriate equitable relief.




274
      And the corresponding nuisance.

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