Angelo v. Southerness Maint. Corp., C.A. No: CPU4-19-004547

CourtCourt of Common Pleas of Delaware
Writing for the CourtHORTON, J.
Docket NumberC.A. No: CPU4-19-004547
Decision Date13 January 2021

ROSEMARY ANGELO, TRUSTEE, et al., Appellants,

C.A. No: CPU4-19-004547


Reserved: November 17, 2020
Amended: January 15, 20211
January 13, 2021

Ronald and Rosemary Angelo
611 Southerness Drive
Townsend, DE 19734

Chad J. Toms, Esquire
Quinn T. Griffith, Esquire
Whiteford Taylor Preston LLC
The Renaissance Centre
405 North King Street, Suite 500
Wilmington, DE 19801
Attorneys for Plaintiff-Below/Appellee


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Since November 15, 2015, Ronald Angelo and Rosemary Angelo (Appellants/Defendants-Below-the "Angelos") have served as co-trustees under a revocable trust that holds title to 611 Southerness Drive, Townsend, Delaware (the "Property"). The Property is located within Legacy at Odessa National, a common-interest, 55-year and older community (the "Community") in which Southerness Maintenance Corporation operates (Appellee/Plaintiff-Below - "Southerness"). Southerness is not the developer of the Community. Rather, Southerness maintains and manages the common areas and amenities within the Community, and in return, charges assessments to pay for those functions.

In 2017, the Angelos began deducting a certain amount each month from the full amount of their assessments. On July 18, 2019, Southerness filed an action in the Justice of the Peace Court against the Angelos for unpaid assessments in the amount of $2,576.00, from January 1, 2017, through July 1, 2019. The Justice of the Peace Court held a trial and, on November 15, 2019, ordered judgment in Southerness' favor in the amount of $2,567.00 in unpaid assessments, plus costs and attorney's fees. On November 26, 2019, the Angelos filed an appeal to this Court. In accordance with Ct. Com. Pl. Civ. R. 72.3, Southerness filed a Complaint upon appeal alleging that the Angelos are personally obligated to pay assessments levied

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by Southerness and asking for this Court to affirm the judgment of the Justice of the Peace Court.

In their Answer, the Angelos allege that the action is based on violations of the law. The Angelos contend that Southerness illegally passed on its fiduciary responsibility to the members of the Community and, by charging fees for Open Space and Common Area that cannot be accessed by a mobility disabled person, is in violation of federal laws protecting the disabled.


On November 17, 2020, a bench trial was held. Ronald Angelo appeared pro se on behalf of himself and the trust. Mr. Angelo indicated that his wife, Rosemary Angelo, did not appear for medical reasons. Prior to opening statements, the Court held a Pre-Trial Conference to streamline the issues to be litigated at trial. Ultimately, the Court emphasized that the focus would be whether or not Southerness is entitled to the assessments it seeks from the Angelos.

David Crane ("Crane")2 testified on behalf of Southerness. Crane indicated that he is familiar with Southerness's books and records, as well as how it operates within the Community. In support of his position, he discussed the First Amended and Restated Bylaws for Southerness ("Bylaws") that set forth the obligation of owners in the Community to pay assessments and explains the legal actions available

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to Southerness to collect those that have been unpaid.3 Next, Crane testified about the Maintenance Declaration (the "Declaration") that imbued Southerness with the power to assess homeowners and also delineated the homeowners' obligations to pay the monthly assessments.4 The Declaration specifies that any unpaid assessments shall be considered delinquent. The Declaration further explains that no owner may waive assessments by non-use of the open space or common facilities. The Declaration also explicitly references the applicability of the Bylaws.

Southerness presented four separate deeds of the Property that trace ownership of the property from Mrs. Angelo, originally, to the Angelos, jointly, in a revocable trust.5 Crane testified that each deed was recorded and each, by their terms, are subject to the terms of the Declaration. Crane further testified that, according to Southerness' ledger statement regarding the Angelos' account from January 1, 2017 through July 8, 2019, $2,576.00 of unpaid assessments are outstanding.6 Finally, Southerness introduced the Justice of the Peace Court's final order rendering judgment in its favor.7

During his case in chief8, Mr. Angelo argued that it was unlawful for Southerness to assess charges because the developer violated state, federal and

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county laws related to the construction of the Community. In support of his argument, Mr. Angelo introduced photos of the Community, expense reports from Southerness, Legacy at Odessa National budget reports from 2016, and excerpts from several code sections including: UDC 40.27.420, UDC 40.27.440, UDC 40.27.510, and Delaware Title 25.9 Mr. Angelo asserts that because of these violations that he decided to offset the assessments and pay only what he thought was an appropriate amount. Mr. Angelo did not describe or provide any evidence as to how he arrived at the offset amount. At one point, Southerness stipulated that violations of the law may have occurred within the Community, but emphasized that any...

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