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




                       Final Report: September 19, 2019
                                 Draft Report:
                      Date Submitted: September 13, 2019


Edward J. Fornias, III, Esquire
Law Office of EJ Fornias, P.A.
615 W. 18th Street, Lower Level
Wilmington, DE 19802

William J. Rhodunda, Jr., Esquire
Rhodunda Williams & Kondraschow
Brandywine Plaza West
1521 Concord Pike, Suite 205
Wilmington, DE 19803

RE:   Newells Creek Homeowners Association v. Tami Wygant and Mark Wygant
      C.A. No. 12558-MG
Dear Counsel:

         Pending before me is a motion for summary judgment filed by a

homeowners’ association in an action seeking a declaratory judgment that a

property in the community is subject to covenants or deed restrictions, and must

pay annual assessments imposed by the association, under the common plan

doctrine. The association argues that the property owners had constructive notice

of the covenants, paid assessments for years, or that one of the owners served on

the association’s board of directors. The property owners respond by denying that
Newells Creek Homeowners Association v. Tami Wygant and Mark Wygant
C.A. No. 12558-MG
September 19, 2019

their property is bound by the covenants, and that there is a common plan in the

community that encompasses their property.             They claim any payments of

assessments were made in error and the owner did not serve on the board. I

recommend that the Court deny the motion for summary judgment because there

are material issues of fact in dispute. This is a final report.

        I.   Background

          On August 29, 2003, Newell’s Creek Developers, LLC purchased lands

constituting the lots in Phase 1 of the Newell’s Creek Subdivision (“Newell’s

Creek” or “development”), which is located in Camden-Wyoming, Delaware.1 On

May 24, 2004, Newell’s Creek Developers and Ryland Group, Inc. (collectively,

“Developers”) executed and recorded a Declaration of Restrictions (“Declaration”)

for Newell’s Creek, which specifically included only the Phase 1 lots for the

development.2 Those lots, along with lots in Phases 2 and 3 of the development,

were shown on the Record Subdivision Plan for Newell’s Creek (“Plan”), which

was recorded on January 10, 2002.3 The Declaration provided that it binds all lots

owned by the Developers on the date the Declaration was recorded and all other

lots in Newell’s Creek “as to which the owners thereof have joined by separate


1
    Docket Item (“D.I.”) 18, Ex. 4.
2
    Id., Ex. 5.
3
    Id., Ex. 3.

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Newells Creek Homeowners Association v. Tami Wygant and Mark Wygant
C.A. No. 12558-MG
September 19, 2019

writing.”4 On March 11, 2005, Newell’s Creek Developers purchased the lots for

Phase 2 of Newell’s Creek, and on November 1, 2005, it deeded those lots to

Ryland Group.5           On March 13, 2006, Defendants Mark and Tami Wygant

(collectively, “Wygants”) purchased lot #116 in Newell’s Creek, or 278 Newells

Creek Drive, which was part of Phase 2 of Newell’s Creek, from Ryland Group.6

Their deed did not indicate that the property was conveyed subject to covenants in

the Declaration.

          Plaintiff Newell’s Creek Homeowners Association, Inc. (“Association”)7

levied annual assessments on Newell’s Creek properties, which the Wygants paid

from 2006 through 2012. Beginning in 2013, the Wygants refused to pay the

annual assessments levied by the Association, claiming that their property is not

bound by the Declaration, they are not members of the Association and are not

obligated to pay the assessments.

          This matter has a long history in several Delaware courts. On April 26,

2013, the Association filed a debt action in the Justice of the Peace (“JP”) Court

against the Wygants seeking to collect the unpaid annual assessment.8 On August

4
    Id., Ex. 5, Art. VIII.
5
    Id., Ex. 6; D.I. 25, Ex. 28.
6
    D.I. 18, Ex. 2.
7
    The Association was incorporated on January 22, 2007. Id., Ex. 1.
8
    D.I. 25, Ex. 2.

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Newells Creek Homeowners Association v. Tami Wygant and Mark Wygant
C.A. No. 12558-MG
September 19, 2019

1, 2013, after trial, the JP Court found in favor of the Association and ordered the

Wygants to pay the assessment.9 The JP Court decision was appealed to the Court

of Common Pleas (“CCP”) on August 14, 2013 and, eventually, CCP determined,

on May 18, 2016, that it lacked jurisdiction to dispose of the equitable issues in the

case and ordered the case transferred to this Court under 10 Del. C. § 1902.10

          On July 14, 2016, the Association filed a complaint in this Court seeking a

permanent injunction and declaratory judgment that the Wygants’ property is

bound by the Declaration; that the Wygants be ordered to pay $184.36 for the 2013

annual assessment, interest, fees and costs related to the JP Court action; and that

the Wygants are liable to the Association in quantum meruit.11

          On September 2, 2016, the Wygants filed an answer and counterclaim.12

They argue that the Declaration is applicable only to the lots in Phase 1 of the

Newell’s Creek development; deny that the Wygants had actual or constructive

notice that the property was subject to the Declaration or that the common plan

9
  The JP Court found that, by purchasing a home in Newell’s Creek with knowledge that
their lot was included in the Plan, the Wygants had constructive notice through the
common plan doctrine that they would be required to adhere to the covenants in the
Declaration, despite the fact that their deed did not contain language relating to the Plan.
Id., Ex. 6. The JP Court order was amended on August 8, 2013, to add attorney’s fees to
the judgment amount. Id., Ex. 8.
10
     Id., Ex. 10, 26.
11
  D.I. 1. The complaint filed in this Court does not indicate the case is being transferred
under 10 Del. C. § 1902.
12
     D.I. 4.
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Newells Creek Homeowners Association v. Tami Wygant and Mark Wygant
C.A. No. 12558-MG
September 19, 2019

doctrine applies; and claim that the Wygants paid any assessment by mistake,

under duress, threat of a sheriff’s sale, and a reservation of rights, and that the

Wygants’ property is not under the auspices of the Association so it has received

no benefit. In their counterclaim, the Wygants seek a declaratory judgment that the

Declaration does not apply to their property, and that the Association has

deliberately asserted bad faith claims and used the Declaration to extort

assessments from the Wygants.

          The Association denies the assertions in the counterclaim, claiming that

Tami Wygant served on the board of directors for Newells Creek and her conduct

– in enforcing the Declaration as a board member – estops the Wygants from

asserting they are not members of the Association and are not subject to the

Declaration.13 Following discovery,14 there was no activity in the case between

April of 2018 and April of 2019.15 On April 15, 2019, the Association filed a

motion for summary judgment (“Motion”) arguing that there are no material facts

in dispute and the case can be decided as a matter of law under the common plan



13
     D.I. 9, ¶ 21.
14
   On October 10, 2017, the Association moved to compel the Wygants’ attendance at
their depositions. D.I. 10. The Court ordered the Wygants to make themselves available
to be deposed and, when they failed to appear on the scheduled date, the Association filed
a motion for sanctions. D.I. 14. Receiving no response to the motion from the Wygants,
the Court ordered the Wygants to make themselves available for the depositions and pay
attorneys’ fees and costs. D.I. 15.

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Newells Creek Homeowners Association v. Tami Wygant and Mark Wygant
C.A. No. 12558-MG
September 19, 2019

doctrine, since a general and uniform plan existed prior to the development, and

the Wygants had constructive notice of the existence of a general building plan

schedule prior to purchasing their lot.16         Further, the Association claims the

Wygants paid all assessments from 2006 (when they took possession) until 2013,

and that Tami Wygant’s claim that she was not a board member is unsupported by

the evidence.17

          The Wygants’ May 29, 2019 response to the Motion denies that the common

plan doctrine applies and asserts that the clear and unambiguous language of the

Declaration provides that, if a Newell’s Creek lot is not specifically bound by the

Declaration, then it is only bound if the owners join the Declaration by separate

writing.18 And, there is no writing that subjects the Wygants’ property to the

Declaration. Accordingly, it is improper to consider extrinsic evidence of the

Developers’ intent. And even if the Association’s evidence is considered, it does

not show the Developers’ intent.

          In its June 13, 2019 reply, the Association reiterates that the common plan

doctrine, the Developers’ intent to build out all of the lots as evidenced by the Plan,


15
   The Court issued a Rule 41(e) letter on April 2, 2019, indicating that the case will be
dismissed for lack of prosecution unless a status report was filed within 15 days. D.I. 17.
16
     D.I. 18.
17
     Id., ¶¶ 15, 16.
18
     D.I. 22.

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Newells Creek Homeowners Association v. Tami Wygant and Mark Wygant
C.A. No. 12558-MG
September 19, 2019

and equity, support the enforcement of the Declaration against the Wygants.19

Additional information was requested from the Association and submitted on

September 13, 2019.

      II.       Standard for Review

         Under Court of Chancery Rule 56, the court grants a motion for summary

judgment when “the moving party demonstrates the absence of issues of material

fact and that it is entitled to a judgment as a matter of law.”20 The moving party

bears the burden of demonstrating that no material issues of fact are in dispute and

that it is entitled to judgment as a matter of law. 21 Once the moving party has

satisfied that burden, it falls on the non-moving party to show that there are factual

disputes. Evidence must be viewed “in the light most favorable to the non-moving

party.”22 Summary judgment may not be granted when material issues of fact exist




19
     D.I. 23.
20
  Wagamon v. Dolan, 2012 WL 1388847, at *2 (Del. Ch. Apr. 20, 2012); see also
Cincinnati Bell Cellular Sys. Co. v. Ameritech Mobile Phone Serv. of Cincinnati, Inc.,
1996 WL 506906, at *2 (Del. Ch. Sept. 3, 1996), aff’d, 692 A.2d 411 (Del. 1997).
21
 Wagamon, 2012 WL 1388847, at *2; Lundeen v. Pricewaterhousecoopers, LLC, 2006
WL 2559855, at *5 (Del. Super. Aug. 31, 2006).
22
  Williams v. Geier, 671 A.2d 1368, 1389 (Del. 1996) (citing Merrill v. Crothall-
American, Inc., 606 A.2d 96, 99 (Del. 1992)).

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Newells Creek Homeowners Association v. Tami Wygant and Mark Wygant
C.A. No. 12558-MG
September 19, 2019

or if the Court determines that it “seems desirable to inquire more thoroughly into

the facts in order to clarify the application of law to the circumstances.”23

         III.    Analysis

         The issue I consider is whether the covenants contained in the Declaration

bind the Wygants’ property under the common plan doctrine, as a matter of law.

“[W]hile the law favors the free use of land and frowns on restrictive covenants,

they are recognized and enforced . . . where the parties’ intent is clear and the

restrictions are reasonable.”24 A restrictive covenant can be established either “by

explicit written language of the intent of the grantor and the grantee to create a

restrictive covenant in the deed of conveyance or another recorded document, e.g.,

a declaration of restrictions,” or by implication, which is “usually ascertained from

a common plan of development.25 To determine the parties’ intent, the Court

“look[s] to the plain meaning of the restrictive covenant.” 26             “[C]ovenants

restricting the free use of property must be strictly construed.” 27 They “may be


23
  Williams, 671 A.2d at 1388-89 (citing Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del.
1962)); In re Estate of Turner, 2004 WL 74473, at *4 (Del. Ch. Jan. 9, 2004) (citation
omitted).
24
  Greylag 4 Maint. Corp. v. Lynch-James (“Greylag”), 2004 WL 2694905, at *5 (Del.
Ch. Oct. 6, 2004) (citation omitted).
25
     Weiner & Assocs., Inc. v. Krapf (“Weiner”), 623 A.2d 1085, 1088 (Del. 1993).
26
  New Castle Cty. v. Pike Creek Recreational Servs. LLC, 82 A.3d 731, 745 (Del. Ch.
2013), aff’d, 105 A.3d 990 (Del. 2014) (citation omitted).
27
     Id., at 745-46 (citation omitted).

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Newells Creek Homeowners Association v. Tami Wygant and Mark Wygant
C.A. No. 12558-MG
September 19, 2019

enforced against a purchaser only if he or she had notice, either actual or

constructive, of their existence.”28 Actual notice is “an awareness of the alleged

restriction by the purchaser at the time of purchase.”29 Constructive notice is

“normally established by properly recording the instrument that contains the

alleged restriction.”30

           The common plan doctrine uses the general plan of development (which

Courts have also referred to as the substantially uniform residential plan) as a

“proxy for constructive notice.”31 Since implied covenants involve a “relaxation of

the writing requirement,” they are disfavored.32 The party asserting the common

plan doctrine must show a common plan exists, by clear and convincing evidence,

for an implied covenant to be found to burden all of the land in the plan area.33

The existence of a common plan is “an issue of fact, to be determined from the

circumstances of each case.”34 And, the factual determination of the parties’ intent


28
     Id., at 746; Greylag, 2004 WL 2694905, at *5 (citation omitted).
29
  Penn Mart Supermarkets, Inc. v. New Castle Shopping LLC, 2005 WL 3502054, at *8
(Del. Ch. Dec. 15, 2005) (citing Greylag, 2004 WL 2694905, at *5).
30
     Id.
31
     See Greylag, 2004 WL 2694905, at *5.
32
  Capano v. Draper Subdivision Ass’n, Inc., 2019 WL 3938704, at *10 (Del. Ch. Aug.
20, 2019); Greylag, 2004 WL 2694905, at *5 (citation omitted).
33
     Weiner, 623 A.2d at 1088, 1092; Greylag, 2004 WL 2694905, at *5.
34
   Greylag, 2004 WL 2694905, at *5 (citing Weiner, 623 A.2d at 1089); Jackson v.
Richards, 27 A.2d 857, 859 (1942) (“Whether [there was] a general and uniform plan of
                                              9
Newells Creek Homeowners Association v. Tami Wygant and Mark Wygant
C.A. No. 12558-MG
September 19, 2019

“to implicitly impose a general plan of development must begin, necessarily, at the

time the subdivision was first recorded and, thereafter, as lots were sold.”35 Courts

consider whether similar covenants are inserted in all, or most, of the deeds as

“strong evidence of the grantor’s intent.”36

         To grant summary judgment in this instance, I must find that there are no

material issues of fact and, as a matter of law, the Association has shown, by clear

and convincing evidence, the existence of a common plan making the Declaration

enforceable against the Wygants’ property. In other words, I must conclude that

the Wygants either had actual notice of the covenants, or that the general plan of

development served as a substitute for constructive notice, when they purchased

their property.

         I first look to the recorded documents, such as the Declaration, the Plan and

the deeds, for evidence of the grantors’ intent regarding the covenants.                The

“whereas” section of the Declaration addresses the Developers’ intention to

acquire the remaining lots on the Plan and their desire to subject all of Newell’s



sale, pursuant to which the complainant’s lot was sold, is ordinarily, a question of fact, to
be determined from the circumstances.”)
35
     Greylag, 2004 WL 2694905, at *6 (citing Weiner, 623 A.2d at 1089).
36
   Jackson, 27 A.2d at 859. See also Capano, 2019 WL 3938704, at *10 (“The doctrine
of implied covenants applies in limited circumstances ‘to enforce the express scope of a
written restriction which has been unintentionally omitted from one of several similarly-
situated deeds.’”) (citation omitted).

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Newells Creek Homeowners Association v. Tami Wygant and Mark Wygant
C.A. No. 12558-MG
September 19, 2019

Creek to the covenants in the Declaration. The Plan, which was recorded prior to

the Declaration, lays out all of the numbered lots in the Newell’s Creek

development, including the Wygants’ property, but offers no evidence that the lots

will be bound by future covenants. Article VIII of the Declaration provides that it

binds all lots owned by Developers at the time the Declaration was recorded, and

all other lots in Newell’s Creek “as to which the owners thereof have joined by

separate writing.”37 Article VI states that the Developers expressly agree to amend

the Declaration to subject the remaining lots on the Plan to the Declaration, so long

as one of the Developers signs an amendment indicating their consent to the

amendment.38

          The Declaration specifically names the lots in Phase 1 of the development,

making the covenants enforceable against those lots. But the Wygants’ property

was not included, since it was developed in Phase 2 of the development. The

precatory “whereas” language evidences the desire that all Newell’s Creek lots be

bound by the Declaration. However, that language must be read in conjunction

with Articles VI and VIII, which require that a pre-condition occur – that there be a

separate writing evidencing consent for additional properties to be bound – before

other lots in Newell’s Creek become subject to the Declaration.

37
     D.I. 18, Ex. 5, Art. VIII.
38
     Id., Art. VI.

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Newells Creek Homeowners Association v. Tami Wygant and Mark Wygant
C.A. No. 12558-MG
September 19, 2019

         Next, I consider whether there is language in the Wygants’ deed, or in other

deeds, that would show they had constructive notice that their property would be

subject to the Declaration. The Wygants’ deed provides that the property was

conveyed subject to restrictions, setbacks, easements and conditions on the Plan, as

well as to the restrictive covenants in the Stormwater Management Maintenance

Declaration for Camden Town Center and Newell’s Creek (“Stormwater

Declaration.”).39 The Wygants’ deed, however, does not show that the property

was transferred subject to the covenants in the Declaration.

         And, none of the prior deeds in the chain of title, such as the deed between

the original property owners and Newell’s Creek Developer, which was recorded

on March 14, 2005, and the deed between Newell’s Creek Developer and Ryland

Group, which was recorded on November 1, 2005, shows that the land where the

Wygants’ lot was later developed was being conveyed subject to the Declaration.40

The parties agree there is no separate writing joining the lots in Phases 2 and 3 of




39
  D.I. 18, Ex. 2. The Stormwater Declaration provides that all owners of lots on the Plan
are obligated to pay annual assessments levied by the corporation organized to maintain
and pay for maintenance of the stormwater infrastructure and pond located in Newell’s
Creek. D.I. 22, Ex. D. Assessments under the Stormwater Declaration would apply to the
Wygants. The record is unclear whether there is any relationship between the
assessments levied by the Association and the assessments for stormwater maintenance
authorized under the Stormwater Declaration.
40
     D.I. 18, Ex. 6; D.I. 25, Ex. 28.

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Newells Creek Homeowners Association v. Tami Wygant and Mark Wygant
C.A. No. 12558-MG
September 19, 2019

the development to the Declaration, although the record does not contain any other

deeds conveying Newell’s Creek property for the Court to consider.41

          Common plans for developments can be created in several ways, including

where covenants are inserted in all (or many) of the deeds in the common

development; or, if property is sold based upon representations to individual

purchasers that covenants similar to the ones in their deeds will be inserted in the

seller’s deeds to others; or, where the seller’s course of conduct indicates a

common plan and leads purchasers to assume the plan will be followed by all

owners.42 Establishing the existence of a common plan is a fact-intensive inquiry.

The Association appears to rely primarily on the Plan to show the existence of a

common plan making the Declaration enforceable against the Wygants. Other

recorded documents, however, do not justify such a conclusion, without additional

evidence. And, there was some evidence presented on the Wygants’ knowledge of

the Plan at the time they purchased their property, but there is a material factual

dispute whether the Wygants understood the property to be bound by covenants at

that time.43         There are additional disputed issues concerning whether some




41
     D.I. 18, ¶ 5.
42
     See Jackson v. Richards, 27 A.2d 857, 860 (1942).
43
     See D.I. 18, ¶ 8; D.I. 22, ¶ 7.

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Newells Creek Homeowners Association v. Tami Wygant and Mark Wygant
C.A. No. 12558-MG
September 19, 2019

properties in Newells’ Creek are subject to different covenants,44 the effect of the

Wygants’ prior payments of annual assessments, and whether Tami Wygant served

as a member of the Association’s board of directors. Accordingly, because of the

fact-intensive nature of the inquiry to determine whether the common plan doctrine

should apply in this case, I find it necessary to inquire more thoroughly into the

facts to clarify the application of law to the circumstances, and recommend that the

Court deny the Association’s motion for summary judgment.

      IV.    Conclusion

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

Association’s motion for summary judgment because a more developed record is

needed and material questions of fact exist. This is a final report and exceptions

may be taken under Court of Chancery Rule 144.


                                              Respectfully,

                                              /s/ Patricia W. Griffin

                                              Patricia W. Griffin
                                              Master in Chancery

44
  The Wygants allege that Newell’s Creek includes a townhouse development that is not
under the auspices of the Association. D.I. 22, ¶ 8. The Association responds that the
association governing the townhomes “has since merged with [the Association] thereby
bringing the townhomes under the auspices of the [Association].” D.I. 23, ¶ 5. The
question remains whether certain properties – as exemplified by the townhomes – were
bound by different covenants than those in the Declaration, which could affect whether
there was the intent to create a common plan.

                                         14
