Opinion
Civil Action No. 7914-MA
12-19-2012
RE: Elizabeth T. Burkett v. Jason L. Ward
Michael F. McGroerty, Esquire Dean A. Campbell, Esquire
MASTER IN CHANCERY
Michael F. McGroerty, Esquire Dean A. Campbell, Esquire Dear Counsel:
Petitioner Elizabeth T. Burkett filed a petition for partition under 25 Del. C. § 721, seeking partition of a mobile home with improvements located on Lot 525 Pot Nets Bayside, Sussex County, Delaware. Burkett and Respondent Jason L. Ward own the mobile home as tenants in common. Burkett alleges that she paid $12,345 for the mobile home and an additional $10,000 to improve the property, and that Ward has locked her out of the property. Ward filed an answer and an "alternative counterclaim." Ward alleges as an affirmative defense that Burkett waived all rights to the property when she abandoned it in 2010 and, therefore, he seeks to have Burkett's petition dismissed. In his counterclaim, Ward alleges that he contributed equally to the purchase and maintenance of the mobile home from 1999 until 2010, when Burkett abandoned the property leaving all maintenance, carrying costs, and property taxes to Ward for payment. If partition is ordered, Ward seeks an order decreeing distribution in his favor to compensate him for his expenditures related to the mobile home.
Pending before me is Burkett's motion to strike Ward's "alternative counterclaim" because it violates Chancery Court Rule 9(g). According to Burkett, the counterclaim claims special damages but they are not specifically stated, and Ward has failed to identify the maintenance or carrying costs he claims to have paid. For the reasons that follow in this draft report, I recommend that the motion to strike be denied.
Ward has responded to the motion to strike, arguing that his claim is not for special damages, i.e., damages that are the actual result of the injury complained of, citing Pharmaceutical Product Development v. TVM Life Science Ventures, LLC, 2011 WL 549163 (Del. Ch. Feb. 16, 2011), but rather his counterclaim goes to the heart of the distribution of proceeds following the partition sale. According to Ward, he is simply seeking an equitable distribution of the sale proceeds which recognizes his contributions to the property as exceeding those of Burkett.
"[E]quity courts have historical upheld the right of a tenant in common to seek partition of personal property." JLF, Inc. v. NJE Aircraft Corp., 1988 WL 130641 (Del. Ch. Dec. 5, 1988) (citing Carridin v. Carridin, 1980 WL 10015 (Del. Ch. Jan. 31, 1980)). Burkett is seeking a court-ordered partition sale of the mobile home and the division of net sale proceeds between the parties under 25 Del. C. § 733. Under Section 733, a Court will, as a matter of equity, take into consideration improvements made by one cotenant and, to the extent those improvements have enhanced the value of the property, the improving tenant will be compensated proportionally out of the proceeds of the sale. See Wilson v. Lank, 107 A. 772, 773 (Del. Ch. 1919). In the counterclaim, Ward is, in effect, claiming that he is entitled to a larger share of the proceeds because he paid Burkett's half of the maintenance, carrying costs, and property taxes after Burkett abandoned the property in 2010. What Ward is seeking is an accounting of the partition sale proceeds, which often is incidental to a petition for partition. Carridin, mem. op. at *3, supra. See generally Chancery Court Rule 183(c)(11).
For the above reasons, therefore, I recommend that Burkett's motion to strike on the ground that the counterclaim violates Chancery Court Rule 9(g) be denied.
Very truly yours,
Kim E. Ayvazian
Master In Chancery
KEA/kekz cc: Register in Chancery