IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MARGARET DAYTON and )
EVERETT JONES, )
)

Plaintiffs, )

y C.A. No. N17C-08-100 CLS

)

WILLIAM COLLISON, )
)

Defendant. )

Date Submitted: April 10, 2020
Date Decided: June 22, 2020

MEMORANDUM OPINION
Decision after Bench Trial
Verdict for Plaintiffs in part.
Verdict for Defendant in part.

Teresa J. Tabah, Esquire, Newark, Delaware, Attorney for Plaintiffs.

Donald L. Gouge, Jr., Esquire, Donald L. Gouge, Jr., LLC, Wilmington, Delaware,
Attorney for Defendant.

SCOTT, J.
Rebellious subjects, enemies to peace,
Profaners of this neighbour-stained steel,—
Will they not hear?!

I. INTRODUCTION
This is the Court’s decision following a three-day bench trial regarding a
dispute between neighbors. As with most disputes between neighbors, the facts of
this case demonstrate that both parties have conducted themselves in a manner that
can be described as: “anything but neighborly.” Between the parties are allegations
of trespass, destruction of property, invasion of privacy, intentional infliction of

emotional distress, malicious prosecution, and abuse of process.

II. FINDINGS OF FACT

Margaret Dayton and Everett Jones (“Plaintiffs”) own 18 Squirrel Lane in
Newark, Delaware. Plaintiffs have resided at 18 Squirrel Lane since 2004. William
Collison (“Defendant”) owns 19 Squirrel Lane in Newark, Delaware. Defendant has
resided at 19 Squirrel Lane since 2009. The properties at 18 and 19 Squirrel Lane
are located next to one another.

Although the parties lived next to one another peacefully for several years, the
relationship between Plaintiffs and Defendant soured in 2017. From that point

forward a petty feud has consumed the once peaceful cul-de-sac on Squirrel Lane.

 

' William Shakespeare, Romeo and Juliet Act 1 Sc.1, Ins. 101-103.

2
Both parties have antagonized one another, photographed one another, and used

profane language with one another. Neither party’s hands are clean.

A. City of Newark Parkland and Code Violations

The rear boundaries of both Plaintiffs’ and Defendant’s properties abut City
of Newark parkland (“Parkland”). The Parkland contains a hiking trail and a creek.
It sits in a FEMA floodplain area and the riparian buffer for this floodplain area
encroaches onto 18 and 19 Squirrel! Lane. Tom Zaleski, superintendent for the City
of Newark Parks and Recreation Department, explained the City’s policies for
maintaining the Parkland area. In general, the owners of private property abutting
the Parkland are not responsible for landscaping in the Parkland. In April 2017,
Plaintiff Jones contacted the City for the first time to report that contractors in the
Parkland had piled logs behind 18 Squirrel Lane. As Mr. Zaleski explained, the logs
should have been spread throughout the Parkland rather than stacked up in a pile.
Defendant did not hire this contractor, but Plaintiff Jones believes Defendant told
the contractors to pile the logs behind 18 Squirrel Lane.

After April 2017, Plaintiff Jones began contacting the City frequently to
complain about Defendant. Over the span of a year and a half, Plaintiff Jones made
between 10 and 15 complaints to the City about Defendant; these complaints alleged

a broad range of activities supposedly carried out by Defendant: damaging the
Parkland; hanging toilet seats that faced Plaintiffs’ property; severing a drainage
line; and filling a drain box.

A number of employees from the City of Newark have visited 18 and 19
Squirrel Lane in response to Plaintiff Jones’ complaints. Aaron Mueller, a utility
inspector for the City of Newark, visited the properties over two dozen times to
address drainage issues. Ethan Robinson, the deputy director of Public Works and
Water Resources for the City of Newark, also visited the properties to address
drainage issues. Finally, Tom Zaleski, superintendent for the City of Newark Parks
and Recreation Department, visited the properties in response to Plaintiff Jones’
complaints about activity in the Parkland.

Plaintiff Jones believes that each of his complaints about Defendant were
based on actual violations of the City Code. And although City officials advised
Plaintiff Jones that it is the City who determines if the Code has been violated,”
Plaintiff Jones has been displeased with the City’s response. Rather than issue
violations to Defendant, the City has issued warnings to Defendant for the various
conditions about which Plaintiff Jones complained. Plaintiff Jones has sent hundreds

of emails’? to the City of Newark urging a more serious response to—in Plaintiff

 

2 See Def.’s Ex. 3 (Letter to Plaintiff Jones from Max Walton); Trial Transcript at
130:1-13, Dayton v. Collison, N17C-08-100 CLS (Del. Super. Nov. 6, 2019)

(cross-examination of Plaintiff Jones).
3 At trial, the Court asked the parties to agree on the number of emails that Plaintiff
Jones has sent to the City; the parties never presented a number to the Court.

4
Jones’ view-—Defendant’s alleged violations of the City Code. Some of these emails
contained threats to involve the media if the City did not respond in a stronger
manner. For example, Plaintiff Jones once threatened to make a video “go viral” if
the City did not respond to his email within five minutes. On another occasion,
Plaintiff Jones threatened to go to the News Journal or ABC News. Although
Plaintiff Jones acknowledged at trial that Defendant has remedied most of the
complained-of conditions, Plaintiff Jones still wants the City hold Defendant

accountable for Defendant’s actions.

B. Draining 18 and 19 Squirrel Lane

Ronald Kraatz owned 19 Squirrel Lane before he sold the property to
Defendant. In 2007, after obtaining Mr. Kraatz’s approval, Plaintiff Jones
reconfigured the drainage system for the water runoff of both 18 and 19 Squirrel
Lane. Plaintiff Jones installed a drain box underground where the drain lines for 18
and 19 Squirrel Lane met. Plaintiffs and Defendant agree that this drain box was
almost entirely on 19 Squirrel Lane.

At some point, Defendant removed the drain box. After removing the drain
box, Defendant filled the resulting hole with a variety of substances—dirt, bricks,

and a concrete slab——and created a berm. This berm and the drainage issues caused

 

Plaintiffs have not disputed the representation that Plaintiff Jones sent “hundreds”
of emails to the City. Therefore, the Court finds that Plaintiff Jones sent hundreds

of emails to the City.
by the removal of the drain box were the subject of many visits to 18 and 19 Squirrel

Lane by officials of the City of Newark.

C. The Maple Tree

The parties agree that the trunk of a large maple tree (“Maple Tree’) sits on
the front corner of Plaintiffs’ property. Because of the tree’s massive size, some of
the Maple Tree’s branches were hanging over Defendant’s driveway. Defendant
wanted to trim the Maple Tree so that its branches no longer hung over his driveway
because Defendant believed that the Maple Tree was dropping objects—like acorns
and small branches—that were damaging his vehicles.

In June 2017, while Plaintiffs were on vacation, Defendant hired Mitsdarfer
Brothers Tree Service (“Mitsdarfer Brothers”) to trim the Maple Tree so that its
branches no longer hung over Defendant’s driveway. Defendant knew from his
contact with a City of Newark employee that he could prune the Maple Tree up to
the property line. Accordingly, Defendant advised Mitsdarfer Brothers not to cross
the property line and to trim the Maple Tree up to the property line; this instruction
was corroborated by the testimony of Fred and Matthew Mitsdarfer and an invoice
for the tree cutting provided by Mitsdarfer Brothers. Defendant was present when
Mitsdarfer Brothers trimmed the Maple Tree. Although he watched Mitsdarfer
Brothers trim the Maple Tree, Defendant did not decide which branches should be

cut, where the branches should be cut, or what type of apparatus should be used for
cutting the branches; employees of Mitsdarfer Brothers independently made these
decisions.

Fred Mitsdarfer, owner of Mitsdarfer Brothers, stated that, when trimming a
tree between two properties, it his usual practice to: 1) keep his employees off of
the neighboring property; 2) use a bucket truck when cutting the branches so that no
employee needs to walk onto the neighboring property; and 3) trim boundary-
crossing trees up to six inches away from the actual property line. Because
Defendant gave Mitsdarfer Brothers clear instructions to stay off of Plaintiffs’
property, Mitsdarfer Brothers followed its usual practice and trimmed the Maple
Tree to six inches from what it believed to be the property line and used a bucket
truck to reach the branches. The employees of Mitsdarfer Brothers used visual cues
to estimate the location of the property line. The Court finds that employees of
Mitsdarfer Brothers did not enter Plaintiffs’ property when they cut the Maple Tree.

According to Russell Carlson, an arborist, Mitsdarfer Brothers pruned
approximately forty percent of the Maple Tree’s crown. Instead of properly cutting
the branches back to a crotch, Mitsdarfer Brothers made “heading cuts” to the Maple
Tree. As Mr. Carlson explained, these “heading cuts” will cause long-term damage
to the Maple Tree because a heading cut introduces decay into a tree limb and can
structurally weaken the tree limb. Over time, the Maple Tree will try to sprout new

limbs; per Mr. Carlson, if these new limbs are attached to rotting wood, then there
is a risk that the new limbs will fall off of the Maple Tree. According to Mr. Carlson,
the manner in which the Maple Tree was pruned caused $4,890 in damages to the

Maple Tree and shortened its lifespan.

D. Boundary between 18 and 19 Squirrel Lane

At some point in time, Plaintiffs hired a land survey company to mark the
boundaries of 18 Squirrel Lane. The land survey company put wooden stakes in the
ground to mark the boundaries. By his own admission, Plaintiff Jones moved the
wooden stakes after the land survey company left. It is unclear whether Plaintiff
Jones moved the wooden stakes to put them back in their previous location after
someone else moved them or to correct the land survey company’s mistake, but it is
clear that Plaintiff Jones moved the wooden stakes. After the wooden stakes were
placed, Defendant ran a string between the properties to give himself an estimate of
where the property line was located. No company has surveyed both 18 and 19
Squirrel Lane.

On November 2, 2018, Corporal Walker of the Newark Police Department
responded to a trespassing complaint at 18 Squirrel Lane. After some investigation,
Corporal Walker decided not to issue a charge for criminal trespassing. Corporal
Walker testified that the boundary between 18 and 19 Squirrel Lane was unclear.

Plaintiffs’ Exhibits 8 and GG show a man standing on Plaintiffs’ property.

Plaintiff Jones did not know the man’s identity but knew that the man worked for
Mitsdarfer Brothers. Fred Mitsdarfer also could not identify the man, but he also
knew that the man was one of his employees because the man appeared to be helping

lower a tree branch from one of the trees in Defendant’s backyard.

E. Relationship between Plaintiffs and Defendant

It is clear that Plaintiffs and Defendant are not on good terms. Each party has
acted in an antagonistic manner towards the other. Although Plaintiffs and
Defendant have not been involved in a physical altercation, the two have had a
number of heated exchanges.

1, Plaintiff Jones’ Conduct

The Court received testimony about threatening statements Plaintiff Jones has
allegedly made to Defendant. Although the Court is not convinced of the truth of
all of these allegations, the Court believes that Plaintiff Jones did not choose his
words carefully when speaking to Defendant. The Court finds that Plaintiff Jones
threatened Defendant with litigation and has, on several occasions, cursed at
Defendant.

Additionally, Plaintiff Jones threatened contractors hired by Defendant. Matt
Mitsdarfer, son of Fred Mitsdarfer and an employee at Mitsdarfer Brothers, testified

that, when he was cutting the Maple Tree in 2018,* Plaintiff Jones aggressively told

 

4 Although Matt Mitsdarfer testified that this incident with Plaintiff Jones
happened in 2017, the Court believes that Matt Mitsdarfer got his dates confused.

9
Matt to get off of his property, cursed at Matt, and threatened Mitsdarfer Brothers’s
license. After Plaintiff Jones threatened Matt Mitsdarfer, Defendant confronted
Plaintiff Jones, and the two men raised their voices at each other. According to Matt
Mitsdarfer, it seemed like the City of Newark would always appear whenever
Mitsdarfer Brothers was doing work for Defendant. On another occasion, Plaintiff
Jones told employees of Mitsdarfer Brothers that they could not park in the street.
Matt Mitsdarfer witnessed Plaintiff Jones take photographs of him and other
Mitsdarfer Brothers employees while they were doing work for Defendant.

Plaintiff Jones has also contacted employees of the City of Newark multiple
times to report Defendant’s actions. Plaintiff Jones contacted the City about
Defendant’s actions in 2017 and also about construction projects that Defendant
undertook prior to 2017. Based on responses to his FOJA requests, Plaintiff Jones
believed Defendant did not have the necessary permits when he: installed a hot tub
between 2013 and 2015; expanded his driveway in 2009; and installed double
casement windows in 2009. Plaintiff Jones did not contact the City about these
permits until at least 2017. The Court received no evidence about whether or not
these projects were permitted; the status of these projects is irrelevant here.

On November 2, 2018, Plaintiff Jones called the Newark Police Department
to report Defendant for trespassing. Plaintiff Jones showed the responding officer,

Corporal Walker, a video depicting—according to Plaintiff Jones—Defendant

10
standing on Plaintiffs’ property. After speaking with both parties, Corporal Walker
decided not to charge Defendant with criminal trespassing because the property lines
were not clear and Defendant’s alleged incursion onto Plaintiffs’ property was not
enough for a criminal trespassing charge. It was Corporal Walker’s understanding
that Plaintiff Jones did not want to press charges against Defendant; instead, Plaintiff
Jones wanted Corporal Walker to give Defendant a warning about his conduct.

In July 2017, Plaintiffs installed a motion-activated video camera on their
property because they were concerned about Defendant’s conduct. The video
camera faces the right side of Plaintiffs’ property—the side of the property which
abuts 19 Squirrel Lane—and the rear of Plaintiffs’ property. Plaintiffs installed this
video camera so that it would face the area between 18 and 19 Squirrel Lane where
the drain box was located; as a result, the video camera also captures the back-left
corner of 19 Squirrel Lane and the Parkland behind the properties. Since Plaintiffs
installed this camera, it has captured hundreds of videos of Defendant and his
fiancée, Nancy Ellicot. The camera captures video and audio. In the videos admitted
into evidence from this camera, Defendant can be heard speaking to Ms. Ellicot and
other individuals; Plaintiffs were not a party to the conversations in these videos.

Defendant and Ms. Ellicot are aware of Plaintiffs’ video camera. Plaintiffs’
Exhibits GG, YY, and AAA show Defendant taking photographs of Plaintiffs’ video

camera. Additionally, Ms. Ellicot overheard Plaintiff Jones tell Defendant that

1]
Plaintiff Jones has been filming Defendant for the past seven years. In November
2018, Plaintiffs installed another camera that faces south. Ms. Ellicot believes that
this second camera points directly at Defendant’s front and back doors.

Finally, Plaintiff Jones placed four or five “No Trespassing” signs’ on his
property. All of these signs were placed along the property line between 18 and 19
Squirrel Lane. Plaintiff Jones eventually moved one of these “No Trespassing” signs
back into his flower bed because the sign might have been on Defendant’s property.
Additionally, after Defendant removed the drain box, Plaintiffs installed new drain
pipes on their property. These pipes connect to Plaintiffs’ gutters and expel water
towards 19 Squirrel Lane.

2. Defendant’s Conduct

The Court received testimony about statements Defendant has allegedly made
to Plaintiff Jones. Like the allegations against Plaintiff Jones, the Court is not
convinced of the truth of a// of these allegations. However, the Court finds that

Defendant has, on at least one occasion, cursed and raised his voice at Plaintiff Jones.

 

> Both parties introduced into evidence photos of these so-called “No Trespassing”
signs. Pls.’ Ex. 5; Def.’s Ex. 9. Although the signs in the photos in evidence clearly
say “POSTED,” the remaining text on the sign is not clear. Because both parties
agree that these signs are “No Trespassing” signs, the Court will also refer to these
signs as “No Trespassing” signs. See Trial Transcript at 99:8-23, 100:1-3, Dayton
v. Collison, N17C-08-100 CLS (Del. Super. Nov. 8, 2019).

12
Defendant’s actions caused drainage issues for both 18 and 19 Squirrel Lane.
Defendant removed the drain box where the drain lines for both 18 and 19 Squirrel
Lane converged. Additionally, Defendant tried—several times—to build a berm
between the properties. Defendant’s removal of the drain box and addition of a berm
caused drainage issues for 18 and 19 Squirrel Lane.

Between two trees on his own property, Defendant hung several toilet seats
facing Plaintiffs’ property. Defendant strung the toilet seats up in a row and drew
frowning and smiling faces on them. At least a week passed before Defendant took
the toilet seats down. Additionally, Defendant has, at some point, also installed a
camera on his property. Plaintiff Jones believes that this camera is aimed at

Plaintiffs’ library doors.

F. Defendant’s Health and Well-Being

Beginning in 2017 and continuing throughout this litigation, Defendant’s
physical health and mental well-being have declined. First, Defendant’s diabetes
has worsened. Defendant was diagnosed with diabetes in 2012. On June 3, 2016,
Defendant’s family physician, Dr. Sarah Mullins, characterized Defendant’s
diabetes as “under control.” At that time, Defendant was taking Invokana to control
his diabetes. In August 2017, Defendant began having trouble sleeping, panic
attacks, and anxiety; Defendant continued to experience anxiety and high levels of

stress between 2017 and 2019. By 2018, Defendant’s diabetes was deemed

13
“yncontrolled.” On June 3, 2019, Dr. Mullins prescribed Defendant insulin
injections to control Defendant’s diabetes because the anti-diabetes pills were no
longer sufficient.

Defendant’s mental well-being has also declined. On August 23, 2017,
Defendant informed Dr. Mullins that he was experiencing anxiety, trouble sleeping,
and panic attacks. According to Dr. Mullins, this was the first time Defendant had
complained of these issues; Dr. Mullins noted that Defendant’s face was flushed and
that he was upset and angry. Defendant explained to Dr. Mullins that he was upset
about events at home because he was being sued by his neighbor and he was having
verbal conflicts with this neighbor. Defendant also informed Dr. Mullins that he
was afraid to leave his home because he felt that he was being filmed by his neighbor.
On December 17, 2017, Dr. Mullins diagnosed Defendant with acute anxiety. On
June 7, 2018, Dr. Mullins noted that Defendant’s distress was daily and his stress
was unrelenting; Defendant was unable to leave the house to take walks. Defendant
informed Dr. Mullins that he was overwhelmed by the stress of the lawsuit,
upcoming depositions and court events, and confrontations with his neighbor. On
December 27, 2018, Dr. Mullins recorded that Defendant was misusing alcohol as a
coping mechanism. Defendant informed Dr. Mullins that he felt extremely stressed
about the litigation and that he was worried about litigation costs, damage to his

property, and confrontations with his neighbor. On June 3, 2019, Dr. Mullins

14
recorded that Defendant’s alcohol misuse was in remission and diagnosed Defendant
with major depressive disorder. Defendant informed Dr. Mullins that he continued
to experience stress because of the litigation.

In Dr. Mullins’ opinion, Defendant’s anxiety, stress, and depression were
caused by Plaintiffs’ actions. Dr. Mullins did not differentiate Plaintiffs’ act of filing
this lawsuit from Plaintiff Jones’ verbal confrontations with and filming of
Defendant. However, it is clear that Dr. Mullins concluded that Plaintiffs’ acts, in
the aggregate, caused Defendant’s anxiety, stress, and depression.

In addition, Defendant’s anxiety and his problems with Plaintiffs worsened
Defendant’s physical health. Dr. Mullins concluded that, because of Defendant’s
anxiety and problems with Plaintiffs, Defendant’s diabetes worsened. Additionally,
Dr. Mullins concluded that Defendant’s anxiety and his problems with Plaintiffs
elevated Defendant’s blood pressure. Between 2011 and 2019, however,
Defendant’s blood pressure fluctuated: sometimes it would be high and sometimes
it would be low. Even before litigation began in 2017, Defendant’s high blood
pressure was a concern for Dr. Mullins—especially because Defendant was taking
medicine to lower his blood pressure.

G. __ Litigation
On August 8, 2017, Plaintiffs filed their Complaint in this matter; Plaintiffs

alleged claims of Continuing Nuisance, Destruction of Property, Prescriptive

15
Easement, and Slander and sought injunctive relief and compensatory and punitive
damages. On August 18, 2017, the New Castle County Sheriff served Defendant
with process. On January 24, 2018, the Court dismissed Plaintiffs’ equitable claims
against Defendant for lack of jurisdiction. The Court advised Plaintiffs that the
Court of Chancery has jurisdiction over equitable claims.°

On December 11, 2018, the Court granted Plaintiffs leave to file an Amended
Complaint; Plaintiffs filed their Amended Complaint on that same day. Plaintiffs’
Amended Complaint alleged claims of Continuing Nuisance, Destruction of
Property, Trespass, and Slander and sought compensatory and punitive damages
from Defendant. In their Amended Complaint, Plaintiffs alleged that Defendant:
removed trees and partially deforested the Parkland; impeded the drainage of 18
Squirrel Lane into the Parkland; installed an unpermitted underground storage tank;
removed a drain pipe and clogged the remaining pipe; altered the grade of
Defendant’s property; destroyed certain trees on Plaintiffs’ property, failed to

respect the property boundaries; and cleared the Parkland of naturally growing

plants.

On December 24, 2018, Defendant filed his Amended Answer and

Counterclaims. Defendant alleged claims of Trespass to Timber, Trespass to Land,

 

6 Subsequent to trial, Plaintiffs filed a complaint with the Court of Chancery
seeking equitable relief. Verified Complaint, Jones v. Collison, No. 2020-0149-—
(Del. Ch. Mar. 31, 2020).

16
Defamation, Invasion of Privacy, Malicious Prosecution/Abuse of Process,
Emotional Distress and Harassment and sought punitive, compensatory, and special
damages from Plaintiffs. In support of his counterclaims, Defendant alleged that
Plaintiffs: removed bushes from Defendant’s property; trespassed onto Defendant’s
property and installed a drain box; directed water onto Defendant’s property; made
false statements about Defendant to City officials; and maliciously instituted these
legal proceedings. Plaintiffs filed their Answer to the Amended Counterclaim on
November 5, 2019. Defendant withdrew his trespass to timber and defamation
counterclaims before trial.

After the Court partially granted Defendant’s Motion for Summary Judgment
on September 24, 2019, Plaintiffs’ case was limited to two claims: 1) Destruction
of Property with regard to the Maple Tree, and 2) Trespass to Land. This Court held
that Plaintiffs lacked standing to bring a claim for public nuisance for Defendant’s
alleged violations of the City of Newark Code because the City has sole authority
over these violations. The Court also held that Plaintiffs failed to provide sufficient
evidence to support their claim of private nuisance and most of their claims of
destruction of property. Additionally, the Court found that Plaintiffs did not meet
the statutory requirements for treble damages under 25 Del. C. § 1401, Timber
Trespass. Plaintiffs withdrew their claim for Slander at oral argument on June 19,

2019.

17
A three-day bench trial in this matter took place on November 6, 2019. In lieu

of closing arguments, the Court requested Post-Trial Briefs from the parties.

Ill. DISCUSSION

By the time of the trial, Plaintiffs’ claims were limited to destruction of
property in relation to the Maple Tree and trespass to land. Defendant dropped his
timber trespass and defamation counterclaims prior to trial. At trial, Defendant
pursued his counterclaims for trespass to land, invasion of privacy, intentional
infliction of emotional distress, malicious prosecution, and abuse of process. The

Court will address each claim in turn.

A. Trespass Claims

Plaintiffs allege that Defendant trespassed on their property by physically
entering their property, blocking the flow of natural water from Plaintiffs’ property
to Defendant’s property, and building a berm partially on Plaintiffs’ property.
Plaintiffs further allege that Mitsdarfer Brothers trespassed when pruning the Maple
Tree. As a remedy, Plaintiffs seek compensatory damages for Defendant’s causing
water and debris to stand on Plaintiffs’ property when he removed the drain box;
Plaintiffs also seek nominal damages and punitive damages for Defendant’s trespass,
which Plaintiffs argue was intentional and retributive. In response, Defendant
argues that Plaintiffs’ trespass claim should fail because the property boundary is

not clear and, alternatively, Plaintiffs were not actually damaged by any trespass that

18
occurred. Defendant also argues that the Court should not award compensatory
damages or punitive damages because neither type of damages are warranted based
on the evidence presented at trial.

Defendant alleges that Plaintiffs trespassed on his property when Plaintiffs
entered Defendant’s property without permission, installed a drain box on
Defendant’s property, and tampered with Defendant’s hot tub. Further, Defendant
alleges that Plaintiffs trespassed on his property when they directed their drain pipe
towards Defendant’s property. Defendant acknowledges that he sustained no actual
damages from Plaintiffs’ trespass and asks this Court to award nominal damages. In
response, Plaintiffs argue that Defendant’s trespass claims are not supported by any
physical evidence and instead are based on Defendant’s speculation about what
occurred while Defendant was on vacation in Florida.

In Delaware, to prove an intentional trespass to land claim the claimant must
show: 1) that the claimant has lawful possession of the land; 2) that the opposing
party entered the claimant’s land without consent or privilege; and 3) damages.’
Entry onto the claimant’s property must be intentional, but the claimant does not

need to prove any wrongful intent.* It is sufficient for the claimant to show that the

 

7 Williams v. Manning, 2009 WL 960670, at *8 (Del. Super. Mar. 13, 2009) (citing
Cochran v. City of Wilmington, 77 A. 963, 963-64 (Del. Super. 1909)).

8 Newark Square, LLC v. Ladutko, 2017 WL 544606, at *2 (Del. Super. Feb. 10,
2017).

19
actor intended to be upon the particular piece of land in question, regardless of
whether the actor intended to trespass.”

At the outset, the Court notes that it did not receive any evidence about
Defendant’s actions causing water and debris to stand on Plaintiffs’ property nor did
the Court receive evidence about the “natural flow” of water between 18 and 19
Squirrel Lane; accordingly, the Court did not consider these allegations when
rendering its decision. Plaintiffs allege that Defendant trespassed on their property
numerous times in 2017 when Defendant built the berm between the properties.
Defendant allegedly set foot onto 18 Squirrel Lane, placed some dirt on 18 Squirrel
Lane, and crossed onto 18 Squirrel Lane with his wheelbarrow. Defendant’s alleged
incursions on Plaintiffs’ property are—at most—several inches. Plaintiffs produced
photographic evidence in support of their claims. These photos show Defendant
standing to the right of a lone post from an old split rail fence on Plaintiffs’ property.

In contrast, Defendant produced no photographic evidence in support of his
claim that Plaintiffs trespassed on his property to install a drain box and to tamper
with his hot tub. Defendant’s allegations rely solely on the testimony of Defendant
and Ms. Ellicot. Defendant presented no evidence to corroborate his trespass claim;
Defendant and Ms. Ellicot simply stated that these acts occurred and named Plaintiff

Jones as the suspected actor. By itself, the speculative testimony of Defendant and

 

° Manning, 2009 WL 960670, at *8.

20
Ms. Ellicot is not sufficient to support Defendant’s trespass claim. Thus,
Defendant’s counterclaim for trespass must fail.

Although the Court received much testimony about trespass, neither party has
proven where the boundary line between the properties is located by a preponderance
of the evidence. When, as is the case here, the parties are alleging an incursion onto
their property within “inches” of the property line, it is imperative for the Court to
have a clear understanding of the properties’ boundaries. The boundary line between
18 and 19 Squirrel Lane is not clear. After visiting both properties, even Corporal
Walker could not identify the boundary line between 18 and 19 Squirrel Lane.
Additionally, Plaintiff Jones moved boundary stakes that were placed by a survey
company after the survey company left; thus, the survey stakes are not a reliable
marker of the boundary line. Without a clear understanding of the location of the
boundary line between 18 and 19 Squirrel Lane, the Court is left to speculate as to
whether Defendant or Plaintiffs actually entered the other party’s property. The
Court will not so speculate.

Finally, this Court received into evidence a photograph of a Mitsdarfer
Brothers’ employee on Plaintiffs’ property.'° Unlike the other evidence before the
Court, this photograph shows that the employee was substantially within Plaintiffs’

property boundary because the man is standing to the left of the lone split rail fence

 

10 Pls.’ Ex. 8, GG.

21
post. The Court and the parties do not know this man’s identity, but the Court does
know that this man was not a party to the instant action. Plaintiffs argue that
Defendant should be vicariously liable for any Mitsdarfer Brothers’ employee that
trespassed on their property; as discussed more fully below, Defendant is not
vicariously liable for the actions of any employee of Mitsdarfer Brothers.

Neither Plaintiffs or Defendant have proven the first and second elements of
their trespass claim: that they possessed the land that the opposing party unlawfully

entered. Accordingly, both Plaintiffs’ and Defendants’ trespass claims must fail.

B. Plaintiffs’ Destruction of Property Claim

Plaintiffs allege that Defendant destroyed their property when Defendant
hired Mitsdarfer Brothers to trim the Maple Tree. Plaintiffs contend that Defendant
is vicariously liable for Mitsdarfer Brothers actions because Mitsdarfer Brothers was
Defendant’s agent. As a remedy, Plaintiff asks this Court to award compensatory
and punitive damages. In response, Defendant argues that he is not vicariously liable
for the actions of Mitsdarfer Brothers because he did not exert the requisite amount
of control over Mitsdarfer Brothers’s actions. In the alternative, Defendant argues
that he had a right to trim the Maple Tree up to the property line and that any alleged
trespass by Mitsdarfer Brothers when trimming the Maple Tree was de minimis.

When a plaintiff claims that a defendant is vicariously liable for the actions of

a third-party, the plaintiff must show that the defendant and the third-party are ina

22
principal/agent relationship.'' One common type of principal/agent relationship is
the master/servant relationship; in a master/servant relationship, the servant is the
agent of the principal (the master) and is subject to physical control by the
principal.'? Determining whether an agency relationship exists depends on the
particular facts of a case.'? The Delaware Supreme Court has recognized Section
220 of the Restatement (Second) of Agency as authoritative guidance for whether an
actor is a servant or an independent contractor.'* To determine if an actor is a servant
or an independent contractor, a court should consider the following “matters of fact”:

(a) the extent of control which, by the agreement, the master may
exercise over the details of the work; (b) whether or not the one
employed is engaged in a distinct occupation or business; (c) the kind
of occupation, with reference to whether, in the locality, the work is
usually done under the direction of the employer or by a specialist
without supervision; (d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities,
tools, and the place of work for the person doing the work; (f) the length
of time for which the person is employed; (g) the method of payment,
whether by the time or by the job; (h) whether or not the work is a part
of the regular business of the employer; (i) whether or not the parties
believe they are creating the relation of master and servant; and (j)
whether the principal is or is not in business.'°

If, after considering the applicable “matters of fact,” the court finds that the actor is

an independent contractor, the court must then determine if the actor is an agent-

 

1 Fisher v. Townsends, Inc., 695 A.2d 53, 57 (Del. 1997).

12 Td. at 58.
3 Murphy v. Bayhealth, Inc., 2005 WL 578823, at *3 (Del. Super. Feb. 4, 2005).

'4 Fisher, 695 A.2d at 59.
15 Restatement (Second) of Agency § 220(2) (Am. Law Inst. 2019).

23
independent contractor or a non-agent independent contractor.'® The general rule is
that an independent contractor is not an agent of the contractee.!’ However, if the
contractee’s control or direction dominates the manner or means of the work
performed, then the independent contractor will be considered an agent of the
contractee.'®

In the instant case, Defendant hired Mitsdarfer Brothers to trim back the
branches of the Maple Tree so that the branches no longer hung over Defendant’s
driveway. Defendant instructed Mitsdarfer Brothers not to enter Plaintiffs’ property.
Other than Defendant directing Mitsdarfer Brothers to trim the Maple Tree up the
property line, Defendant did not control any aspects of Mitsdarfer Brothers’ work.
Mitsdarfer Brothers is in the business of trimming trees and have established
practices on how to trim trees that are between two properties. Fred Mitsdarfer
instructed his employees to use a bucket truck to trim the Maple Tree because that
was his practice when trimming trees near a property boundary. Mitsdarfer Brothers

brought their own tools and used their own equipment to trim the Maple Tree. Only

 

'© In Fisher, the Delaware Supreme Court recognized that there are non-agent
independent contractors and agent-independent contractors. Fisher, 695 A.2d at 58.
17 See El. Du Pont De Nemours & Co. v. L.D. Griffith, Inc., 130 A.2d 783, 784 (“A
requirement that the work be performed according to standards and specifications
imposed by the owner is not sufficient to establish the degree of control necessary
to make a presumably independent contractor the agent of the owner.”).

18 Fisher, 695 A.2d at 61; Randazzo v. Cochran, 2018 WL 1037455, at *3 (Del.

Super. Feb. 22, 2018).

24
the employees of Mitsdarfer Brothers trimmed the Maple Tree and cleared away the
branches that fell to the ground. Defendant paid Mitsdarfer Brothers for performing
the job of trimming the Maple Tree. Defendant did not control the manner and
means by which Mitsdarfer Brothers trimmed the Maple Tree. For example,
Defendant did not tell Mitsdarfer Brothers how to cut the branches or where to cut
each branch; these decisions were made solely by Mitsdarfer Brothers. Based on all
of the facts presented to the Court, the Court finds that Mitsdarfer Brothers was an
independent contractor and not Defendant’s agent.

Mitsdarfer Brothers is not Defendant’s agent. Thus, Defendant is not
vicariously liable for any damage Mitsdarfer Brothers may have caused to the Maple
Tree. Plaintiffs have offered no evidence that Defendant destroyed the Maple Tree.

Therefore, Plaintiffs’ claim of destruction of property must fail.

C.  Defendant’s Invasion of Privacy Counterclaim
Defendant alleges that Plaintiffs invaded his privacy when they audio and
visually recorded Defendant without his consent via a motion-activated camera.
Defendant contends that Plaintiffs’ filming of Defendant constituted a violation of
11 Del. C. § 2402(a). As a remedy, Defendant seeks damages for harm to his
privacy, for his mental distress, and for his other injuries; Defendant also seeks
punitive damages. In response, Plaintiffs argue that 11 Del. C. § 2402(a) prohibits

intentionally taping a two party conversation and not incidentally taping a two party

25
conversation using a motion-activated camera. Plaintiffs further argue that
Defendant did not have an expectation of privacy along the property line outside of
his home and thus any intrusion the camera may have made cannot be considered
highly offensive. Plaintiffs also maintain that it is Defendant who has acted in a
highly offensive manner because Defendant’s camera points directly into their
library while Plaintiffs’ camera does not point at Defendant’s home at all.

Delaware has adopted the four invasion of privacy torts outlined by Professor
Prosser: 1) intrusion upon seclusion; 2) publication of private facts; 3) false light;
and 4) misappropriation of physical likeness.'!? Defendant’s counterclaim properly
sits within the realm of the first privacy tort—intrusion upon seclusion. To prove a
claim of intrusion upon seclusion, Defendant must show that Plaintiffs intentionally
intruded, physically or otherwise, upon his solitude or seclusion or his private affairs
or concerns in a manner that would be highly offensive to a reasonable person.”°
The key element of this tort is intrusion; namely, Defendant must show that Plaintiffs
intruded into a private place or otherwise intended to invade a private seclusion that

Defendant has “thrown about his person or affairs.””!

 

'° Barker v. Huang, 610 A.2d 1341, 1349 (Del. 1992).

20 Td. at 1350.
*! Lee ex rel. B.L. v. Picture People, Inc., 2012 WL 1415471, at *3 (Del. Super.

Mar. 19, 2012).

26
Under 11 Del. C. § 2402(a)(1), it is illegal for a person to “intentionally
intercept, endeavor to intercept, or procure any other person to intercept or endeavor
to intercept any wire, oral or electronic communication.””? Section 2402 is part of
Delaware’s wiretap statute. Because a wiretap is an “intrusion into [an] individual’s
constitutionally recognized right of privacy,” the meaning of § 2402 should be
strictly construed.?> As defined by statute, the term “intercept” means the
“acquisition of... the contents of any... oral... communication through the use
of any electronic, mechanical or other device.”*4 An “oral communication” is an
“oral communication uttered by a person made while exhibiting an expectation that
such communication is not subject to interception and under circumstances
justifying such expectation.”*°

Based on the evidence presented at trial, Plaintiffs intercepted at least three of
Defendant’s oral communications. Of the four videos Plaintiffs entered into
evidence, three were captured by Plaintiffs’ motion-activated camera. All three of
the videos contain audio and visual content. One video shows Defendant using a

wheelbarrow to place bricks and speaking with someone off-camera. The next video

shows Defendant speaking with workers on his property. The final video shows

 

2211 Del. C. § 2402(a)(1)

3 State v. Jock, 404 A.2d 518, 520 (Del. Super. 1979).
2411 Del. C. § 2401(10).

5 fd. § 2401(13).

27
Defendant and Ms. Ellicot looking and pointing at something on Plaintiffs’ property
from 19 Squirrel Lane. In all three videos, the camera recorded Defendant’s
conversation with another person. Defendant did not consent to these recordings.
All of these communications occurred between individuals who were on
Defendant’s property, and Plaintiffs were not a party to any of these conversations.

Plaintiffs acted intentionally. Even though the camera is motion-activated,
this does not mean that Plaintiffs’ recordings were unintentional. Plaintiffs
intentionally purchased a motion-activated camera with both audio and visual
capabilities. Plaintiffs intended for the camera to record Defendant because they
purchased the camera in response to Defendant’s alleged acts of trespassing and
property damage. Plaintiffs already had a still-motion camera on their property that
they used to photograph deer in the Parkland; Plaintiffs’ sole intention for the
motion-activated video camera was to record Defendant.

Plaintiffs violated § 2402 by intentionally intercepting oral communications
of Defendant with their motion-activated video camera. This violation of § 2402
constitutes an “intrusion” of Defendant’s privacy.”° Although Defendant did not
have these conversations inside his home, he had these conversations with

individuals on his own property. Defendant spoke at a normal volume; he did not

 

26 See Jock, 404 A.2d at 520 (“Wiretap statutes, implicating as they do an intrusion
into the individual’s constitutionally recognized right of privacy, should generally
be strictly construed.”).

28
invite others to listen to his conversations by shouting. Moreover, Defendant was in
his backyard, rather than his front yard, when he had these conversations. Based on
these facts it is clear that Plaintiffs recorded Defendant’s private conversations
without his permission: this is an intrusion.?’

In addition to the violation of § 2402, Plaintiffs also took a substantial number
of photographs and videos of Defendant. Defendant alleged that Plaintiffs took 2000
photographs of Defendant and 250 videos of Defendant. Plaintiffs clarified that they
produced all of the photographs from their still camera-—-which was installed in
2007—in discovery and that between 200 and 400 of these photographs were of
activities in the Parkland. Only a dozen of the photographs showed Defendant
allegedly trespassing on Plaintiffs’ property. It is clear that Plaintiffs have a large
cache of videos and photographs of Defendant. Between the motion-activated still
camera, the motion-activated video camera, and the Plaintiffs’ own personal
cameras, Plaintiffs have utilized several devices to capture Defendant’s actions.
Plaintiffs have filed, at most, 15 complaints with the City about Defendant’s actions;
Plaintiffs have also filed this lawsuit. The number of photographs and videos that
Plaintiffs have of Defendant is disproportionate to the number of actual allegations

against Defendant. Although Plaintiffs may have initially set out to capture

 

27 See Beckett v. Trice, 1994 WL 710874, at *6 (Del. Super. Nov. 4, 1994) (“To
intrude means to enter without invitation or welcome.”).

29
Defendant engaging in unlawful conduct, at some point Plaintiffs’ actions became
more akin to surveillance of Defendant. The Court finds that, in addition to the
violation of § 2402, the unconsented-to surveillance of Defendant carrying out
lawful activities on his own property also constitutes an intrusion into Defendant’s
privacy.

All the aforementioned intrusions into Defendant’s privacy were intentional.
As discussed above, Plaintiffs intentionally purchased a motion-activated video
camera to capture Defendant as he engaged in allegedly destructive activity.
Plaintiffs also intentionally took photographs and videos of Defendant with their
mobile devices. Plaintiffs intended to record Defendant while Defendant carried out
lawful activities on his own property.

The Court finds that Plaintiffs intruded into Defendant’s solitude. Although
Defendant was not inside his home when Plaintiffs photographed and videotaped
him, Defendant was still on his own property in a majority of those images.
Furthermore, Defendant was in his backyard when he was photographed,
videotaped, and recorded. Unlike a front yard, which is visible to the public and in
which there exists a limited license to enter and walk to the front door, a backyard is
more private; typically, only homeowners and their guests are permitted to enter a
backyard. Defendant did not expect to have individuals who he did not invite onto

his property to see into his backyard and to hear conversations which he carried out

30
in a normal voice with people who he had invited onto his property. Although
Plaintiff Jones has suggested that anyone walking the Rittenhouse Trail”* can see
Defendant’s entire backyard, the Court has not received sufficient evidence to
support this claim. Accordingly, the Court finds that Defendant’s backyard is an
area of solitude.

Finally, the Court finds that Plaintiffs’ intrusion into Defendant’s privacy was
in a manner that would be highly offensive to a reasonable person. Because
Plaintiffs’ camera is motion-activated, the camera recorded Defendant each time
Defendant walked along his property within the range of the camera. This camera
recorded Defendant’s movements and conversations whenever he was on a specific
portion of his own property. The camera did not differentiate between lawful and
unlawful actions; instead, the camera recorded all types of activities and
conversations. Furthermore, the sheer number of images Plaintiffs have of
Defendant on his own property is intrusive. The Court finds that a reasonable person
would be highly offended if their neighbor trained a motion-activated camera at a

portion of their property for the sole purpose of recording their activities. This

reasonable person would be even more offended if this camera captured over a

 

28 The Rittenhouse Trail is a public hiking trail that runs through the Parkland area
behind 18 and 19 Squirrel Lane. The Court does not know the distance between
the Rittenhouse Trail and 18 and 19 Squirrel Lane nor does the Court know the
visibility conditions from the trail.

31
hundred images of them. In addition, a reasonable person would be highly offended
if this motion-activated camera also recorded their private conversations with people
on their own property—an act which has even been criminalized by the Delaware

legislature.??

Based on the evidence presented at trial, the Court finds by a preponderance
of the evidence that Plaintiffs intentionally intruded upon Defendant’s seclusion in
a manner that would be highly offensive to a reasonable person. Therefore,
Defendant has proven his counterclaim of invasion of privacy. Plaintiffs damaged
Defendant by intruding into his privacy. Plaintiffs also damaged Defendant by
causing Defendant mental distress, as demonstrated by Dr. Mullins’ testimony that
Defendant was afraid to leave his home because he did not want to be filmed by his
neighbor and that Defendant developed depression and anxiety because of Plaintiffs’
conduct.

D. Defendant’s Intentional Infliction of Emotional Distress
Counterclaim

Defendant alleges that Plaintiffs intentionally inflicted emotional distress
upon him by constantly reporting Defendant to the City, filming Defendant, and
threatening Defendant physically and with litigation. Defendant alleges that

Plaintiffs’ conduct caused him severe emotional distress. As a remedy, Defendant

 

2911 Del. C. § 2402(a)(1).

32
ask this Court to award damages to compensate him for his emotional distress and
for the monetary expenses which he has incurred. In response, Plaintiffs argue that
Dr. Mullins’ testimony and diagnosis is unreliable because Dr. Mullins based her
medical opinion on information that she received from Defendant only. Plaintiffs
contend that Defendant’s anxiety could have been caused by the “litany” of other
ailments from which Defendant suffered. Plaintiffs also argue that they did not
harass Defendant by complaining to the City because all of their concerns were
legitimate. According to Plaintiffs, Defendant was the aggressor.

In Delaware, an individual is liable for intentional infliction of emotional
distress if that individual intentionally or recklessly engages in extreme and
outrageous conduct that causes another to suffer severe emotional distress.°°
Liability will be found only where the “conduct is so outrageous and extreme in
degree that it exceeds the bounds of decency and is regarded as intolerable in a
civilized community.”?! Extreme and outrageous conduct is more than mere insults,

indignities, threats, and annoyances.** Liability attaches only when an individual

 

30 Adams y. Aidoo, 2012 WL 1408878, at *9 (Del. Super. Mar. 29, 2012); Mattern
v. Hudson, 532 A.2d 85, 85 (Del. Super. 1987).

31 Tekstrom, Inc. v. Savla, 2006 WL 2338050, at *12 (Del. Super. July 31, 2006);
see also Restatement (Second) of Torts § 46 cmt. d (Am. Law Inst. 2019)
(““Generally, the case is one in which the recitation of the facts to an average
member of the community would arouse his resentment against the actor, and lead
him to exclaim, ‘Outrageous!’”).

32 Mattern, 532 A.2d at 86.

33
suffers severe emotional distress; in other words, “the law intervenes only where the
distress inflicted is so severe that no reasonable man could be expected to endure
it.733

Plaintiffs’ conduct was not extreme and outrageous. Plaintiffs filmed and
photographed Defendant, had a few verbal confrontations with Defendant,
threatened Defendant with litigation, contacted the City about Defendant, and filed
the instant case against Defendant. Even when considered together, these acts do
not “go beyond all possible bounds of decency” nor are these actions “utterly
intolerable in a civilized community.”*+ Although these actions can be considered
indignities, threats, or annoyances, they are not “atrocious” or “intolerable.’?>

Because the Court finds that Plaintiffs’ conduct was not extreme and outrageous,

Defendant’s counterclaim of intentional infliction of emotional distress must fail.

E.  Defendant’s Malicious Prosecution Counterclaim
Defendant alleges that Plaintiffs maliciously prosecuted him when Plaintiffs
initiated the instant legal proceedings. Defendant points out that Plaintiffs’ original

complaint sought remedies which the Superior Court cannot award—injunctive and

 

3 Id.

34 Restatement (Second) of Torts § 46 cmt. d.

3° Farmer v. Wilson, 1992 WL 331450, at *5 (Del. Super. Sept. 29, 1992) (“The
tort [of ITED] does not exist to provide a cause of action against someone who
exercises poor judgment. It exists to hold accountable someone who does
something atrocious and intolerable.”).

34
equitable relief—and that Plaintiffs’ Amended Complaint raised issues that were
within the sole authority of the City of Newark. Defendant argues that he prevailed
on the claims for equitable relief because the Court dismissed these claims.
Defendant further argues that he prevailed on the claims that were within the City’s
jurisdiction because the Court granted summary judgment for Defendant on those
claims. Finally, Defendant argues that Plaintiffs’ actions were with malice because
Plaintiff Jones “had it out for” Defendant. As a remedy, Defendant asks this Court
to award damages for his emotional distress and legal fees. In response, Plaintiffs
argue that the action has not resolved in Defendant’s favor and that Defendant’s
medical records show an improvement in his health, not a deterioration. Plaintiffs
further argue that they would have never filed this lawsuit if Defendant had not acted
improperly.

Delaware courts disfavor claims of malicious prosecution; thus, such claims
are assessed with careful scrutiny.*° A claimant alleging malicious prosecution must
show: 1) institution of civil proceedings; 2) without probable cause; 3) with malice;
4) termination of the proceedings in the claimant’s favor; and 5) damages which
were inflicted upon the claimant.?” When evaluating a malicious prosecution claim,

a court examines a litigant’s intent at the initiation of the legal action.*®

 

36 Nix v. Sawyer, 466 A.2d 407, 411 (Del. Super. 1983).
37 Aidoo, 2012 WL 1408878, at *13; Nix, 466 A.2d at 411.
38 4idoo, 2012 WL 1408878, at *13.

35
The Court finds that Plaintiffs did not institute the action against Defendant
with malice. “Malice requires evidence that the action was taken by [Plaintiffs] with
a wrongful or improper motive or with wanton disregard of [Defendant’s] rights.’””°?
Plaintiffs’ motives were not wrongful, even if some of Plaintiffs’ claims were
misplaced. Throughout trial, Plaintiff Jones maintained that his complaints to the
City were borne of a desire to spur the City to take action against Defendant and of
a desire to make Defendant stop trespassing and damaging the Parkland. Even
though Plaintiffs should have sued the City for allegedly failing to take proper action
against Defendant, Plaintiffs sued Defendant because they wanted Defendant to
stop; this is not an improper purpose. Furthermore, to obtain the equitable relief that
they sought, Plaintiffs should have filed their claims in the Court of Chancery.
Although the Superior Court could not provide Plaintiffs with the equitable relief
which they sought, Plaintiffs’ purpose in filing the action was proper: they wanted
Defendant to stop trespassing. Finally, it is clear that there is bad blood between
Plaintiffs and Defendant. However, “there is authority that if [Plaintiffs’] purpose
was otherwise a proper one the addition of the incidental fact that he felt indignation

or resentment toward [Defendant] will not make [Plaintiffs] liable.”*° Therefore,

Plaintiffs did not institute the instant proceedings with malice.

 

39 Scott v. Moffit, 2019 WL 3976068, at *6 (Del. Super. Aug. 20, 2019).
40 Nix y. Sawyer, 466 A.2d 407, 412 (Del. Super. 1983) (citing Kaye v. Pantone,
Inc., 395 A.2d 369, 372 (Del. Ch. 1978)).

36
Because the Court finds that Plaintiffs did not institute the present civil
proceedings maliciously, Defendant’s counterclaim for malicious prosecution must
fail.

F. Defendant’s Abuse of Process Counterclaim

Defendant alleges that Plaintiffs abused the legal process when they allowed
Plaintiff Jones to testify to matters that were not before the Court and called
witnesses whose testimony had nothing to do with Plaintiffs’ case-in-chief.
Defendant contends that Plaintiffs brought this lawsuit out of a desire to punish
Defendant. As a remedy, Defendant asks this Court to award damages for his
emotional distress, monetary losses, and legal fees. In response, Plaintiffs argue that
a claim of abuse of process requires coercion, which—according to Plaintiffs—was
not present in the instant case. Plaintiffs further argue that it is Defendant’s fault
that they filed the instant case because Defendant acted improperly and,
subsequently, refused to remedy those improper actions.

Unlike malicious prosecution claims, which focus on a party’s initiation of
the legal process, abuse of process concerns perversions of the legal process after it
has been issued.*! The elements for a claim of abuse of process are: 1) an ulterior

motive; and 2) a willful act in the use of the legal process that is not proper in the

 

41 BRP Hold Ox, LLC v. Chilian, 2018 WL 573648, at *6 (Del. Super. Oct. 31,
2018).

37
regular conduct of the proceedings.*? A claimant alleging abuse of process must
show “some definite act or threat not authorized by the process, or aimed at an
objective not legitimate in the use of the process.”*? Some form of coercion to obtain
a collateral advantage, not properly involved in the proceeding itself, must be shown;
in other words, a form of extortion is required.**

The Court finds that Plaintiffs did not have an ulterior motive when they filed
the lawsuit or when Plaintiff Jones testified at trial. As discussed above, Plaintiffs
had a proper purpose in filing the lawsuit: to have Defendant stop his allegedly
damaging activities. Plaintiffs were not using this lawsuit to seek to obtain a
collateral advantage. There was no extortion or coercion. Plaintiffs filed the lawsuit
and permissibly proceeded with the case through trial. Although Plaintiff Jones did
testify about certain matters that were outside the scope of this litigation, the Court
notes that counsel for Defendant also elicited testimony from Plaintiff Jones about
that which Defendant now claims was “outside the scope” of the litigation.** For
example, on cross-examination, counsel for Defendant questioned Plaintiff Jones at

some length about an underground storage tank on Defendant’s property, a matter

 

2 Aidoo, 2012 WL 1408878, at *13; Nix, 466 A.2d at 412.

3 Aidoo, 2012 WL 1408878, at *13; Nix, 466 A.2d at 412.

4 Chilian, 2018 WL 573648, at *6.

45 See Def.’s Post-Trial Answering Br. 22 (identifying the underground storage
tank as one example of Plaintiff Jones testifying to matters not before the Court).

38
which Defendant now argues was outside the scope of this litigation.*© Plaintiff
Jones had not testified about the tank prior to Defendant’s questions. Because
Plaintiffs did not have an ulterior motive in filing the lawsuit or when Plaintiff Jones

testified at trial, Defendant’s counterclaim for abuse of process must fail.

IV. CONCLUSION

Defendant has proven his invasion of privacy counterclaim by a
preponderance of the evidence. The following claims were not proven by a
preponderance of the evidence: Plaintiffs’ trespass and destruction of property
claims, and Defendant’s trespass, intentional infliction of emotional distress,
malicious prosecution, and abuse of process counterclaims. Accordingly, the Court
issues a verdict partially in Plaintiffs’ favor and partially in Defendant’s favor. It is
hereby ORDERED:

1. The court enters a verdict in favor of Defendant on Plaintiffs’ trespass
claim.

2. The court enters a verdict in favor of Defendant on Plaintiffs’
destruction of property claim.

3. The court enters a verdict in favor of Plaintiffs on Defendant’s

trespass counterclaim.

 

“6 Td.

39
The court enters a verdict in favor of Defendant on Defendant’s
invasion of privacy counterclaim. Plaintiffs must pay Defendant
$5,000 for damaging Defendant’s privacy and causing Defendant

mental distress.

The court enters a verdict in favor of Plaintiffs on Defendant’s
intentional infliction of emotional distress counterclaim.

The court enters a verdict in favor of Plaintiffs on Defendant’s

malicious prosecution counterclaim.

The court enters a verdict in favor of Plaintiffs on Defendant’s abuse

of process counterclaim.

a,

The Honorable @4lvin L. Scott, Jr.

40
