Clymer v. DeGirolano
| Docket Number | C. A. 2021-0004-SEM |
| Decision Date | 05 July 2023 |
| Parties | DON T. CLYMER and BEATRICE C. CLYMER Petitioners, v. NANCY C. DeGIROLANO and JOSEPH DeGIROLANO Respondents |
| Court | Court of Chancery of Delaware |
Date Submitted: March 22, 2023
David J. Weidman, SERGOVIC CARMEAN WEIDMAN MCCARTNEY &OWENS PA Georgetown, Delaware; Counsel for Petitioners.
Richard L. Abbott, ABBOTT LAW FIRM, LLC, Wilmington Delaware; Counsel for Respondents.
MOLINA, M.
This case is a property dispute, complicated by the underlying family dynamics. Formerly close family members dispute whether the matriarch of the family transferred, gifted, or promised to gift a portion of her property to her daughter and son-in-law over 25 years ago. If so, the daughter and son-in-law argue that the matriarch's transfer of that same property to her son in 2020 was invalid and the parties to that transfer should be held liable for their inequitable conduct.
Ownership is hotly contested not just because the land is family property but because the property has commercial value-it has been the site of a roadside fruit stand for over 12 years. The daughter and son-in-law wish to continue operating that stand; the matriarch wants the growing business off her front lawn.
In this final report and on the record developed during a four-day trial, I find the daughter and son-in-law, at most, had a license to operate their business on the matriarch's property. That license was revoked, and the daughter and son-in-law do not have an enforceable future interest in the property. They are entitled, however, to reimbursement for improvements made to the property after 2009. That reimbursement should be offset, however, by the reasonable rent owed to the new property owner, up to the amount of the injunction bond. I recommend the parties meet and confer regarding the rent/reimbursement offset and propose an appropriate form of order to bring this matter, and their disputes, to a close.
The property at issue is located at 32861 Long Neck Road, Millsboro Delaware (the "Property") and is adjacent to a 70-acre farm with a farmhouse (the "Farmhouse").[2] The Property is a four-acre parcel with a residence on the back two-acres and a block building on the front two-acres (the "Front Acres").[3] Ownership of the Front Acres is in dispute.
Before I get into the ownership and use of the Property, I pause to identify the key players in this litigation. The above-referenced matriarch is Nancy DeGirolano ("Nancy"). Nancy and her husband Anthony DeGirolano ("Anthony") had six children, four boys (Gene DeGirolano ("Gene"), Anthony DeGirolano Jr. ("Tony"), James DeGirolano ("Jimmy"), and Joseph DeGirolano ("Joseph")) and two girls (Diana DeGirolano ("Diana") and Beatrice Clymer ("Beatrice")).[4] Beatrice and her husband Don Clymer ("Don," and together with Beatrice, the "Clymers") initiated this action seeking ownership of the Front Acres.[5]
I address the historical ownership and use of the Property, with the relevant family dynamics, in chronological order.
On February 6, 1975, Nancy inherited the Property from her aunt, Radie K. Moore.[6] She did not, however, immediately use the Property. Rather, Nancy and her husband, Anthony, continued to live in their home at 341 Salem Church Road in Newark, Delaware (the "Newark Property") until the late 1980s or early 1990s.[7] While her parents lived at the Newark Property, Beatrice would "pick strawberries and other produce" and sell it off the Newark Property.[8]
Sometime before 1990, per Nancy, the State took the Newark Property and she and Anthony decided to build a new home on the Property in 1990 or 1991.[9]After a few years in their new home, Beatrice asked her parents if she could sell produce off the Front Acres, like she had done at the Newark Property.[10] Beatrice testified that Anthony "was all for it" and that Nancy "didn't say she wasn't."[11] With that tacit approval, in or about the summer of 1996, the Clymers began selling produce on the Front Acres.[12]
The setup, at first, was minimal. The Clymers used a wagon and had tarps to protect the produce when it rained.[13] At some time, according to Nancy, the Clymers were selling out of "a little shed . . . on there" that used to store the produce.[14] But "closer to the fall, the winds got real bad."[15] Wind would knock over the carts and rain was damaging the produce.[16] According to Don, Anthony suggested the idea of constructing a block building on the Front Acres "so [the Clymers] wouldn't have an issue with everything getting blown around."[17]
Before any building was constructed, however, the Clymers contend that their interest in the Front Acres was memorialized. It happened in 1997, while the Clymers were living in the Farmhouse, adjacent to the Property.[18] As close family and neighbors, the Clymers would regularly enjoy morning coffee with Nancy and Anthony at the Property.[19] According to Nancy, the Clymers were "always" at her house when they lived at the Farmhouse.[20]
On the morning of March 1, 1997, the Clymers went to the Property, much like any other day.[21] But on that morning, per the Clymers, five people were present when they arrived: Ron Simpler, Sr. ("Ron Sr."), Ron Simpler, Jr. ("Ron Jr."), Anthony, and Nancy.[22] Nancy denies being present.[23] And Nancy's son, Gene, testified that he was present, not Ron Jr.[24] Gene also testified that Nancy "wasn't home at the time."[25] Conversely, the Clymers deny that Gene was present.[26]
Per the Clymers, they walked into the group of five reviewing a document in the center of kitchen table.[27] The document was a single-page, type-written text purporting to transfer the Front Acres of the Property to the Clymers (the "Agreement"). It provided:
None of the witnesses who testified at trial seem to know how this mystery document came to be. Don testified that he did not know who created the Agreement and he did not own a typewriter in 1997.[29] Beatrice also denied knowing where the Agreement came from and testified that she did not own a typewriter in 1997.[30]Nancy was also unaware of how the Agreement was created and was unsure if the Clymers or Simplers had access to typewriters or computers.[31]
The parties also dispute who signed the Agreement that morning. At the bottom of the Agreement are signatures purporting to be from Anthony, Nancy, Don, and Beatrice, with Ron Sr. and Ron Jr. as witnesses.[32] Nancy testified that she "didn't know nothing about it and that wasn't [her] signature."[33] She unequivocally denies signing the Agreement.[34] Don testified that [35]
Gene tells a different story. He recalls everybody was seated at the table with the Agreement sitting in front of Ron Sr.[36] "[Anthony] asked [him] to come into the kitchen."[37] Gene admitted that he had forged his mother's checks as a teenager and, because he was "good at forging [Nancy's] checks" his father, Anthony, asked if he would "forge... her name on [the Agreement]."[38] Gene refused and all he "remember[s] is [his] mom's name being signed."[39] Gene testified to "watch[ing] Ron [Sr.] sign the paper."[40] During the 15-20 minutes that Gene was in the kitchen, however, he did not witness Ron Sr. practice Nancy's signature.[41]
After he witnessed Ron Sr. sign, Gene left through the back door, where he encountered Nancy returning from the grocery store.[42] Gene did not inform Nancy of Anthony's request of him or that he witnessed Ron Sr. forge her signature.[43] Per Nancy, she asked Gene as he was leaving "What's going on here?", Gene replied "[a]sk them."[44]
When Nancy walked into her kitchen, "Don, Bea[trice], Ron [Sr.]" were "drinking coffee, as [they] always did" and "everything got quiet."[45] Despite her son's ominous warning, Nancy did not pry and it appears the parties never discussed the Agreement again, until this litigation. Don testified that after it was signed, "[the Agreement] went in the file box with the rest of the receipts."[46] Beatrice also testified to finding the Agreement with the "business receipts that [the Clymers] had on the building."[47]
After the Agreement was signed, the parties went on with their days and construction on the building began shortly thereafter. The contemplated block building was constructed between March and May of 1997 (the "Building").[48]Before the construction or seeking permits for the build, Don personally made concept drawings of the Building.[49] He envisioned and captured a three-walled structure with the "open side" facing the parking lot which affronts Long Neck Road.[50] Don estimated the Building to be 24 by 24 feet.[51] With that vision, on March 20, 1997, Don applied for a building permit with Sussex County.[52] The permit listed the cost of improvements at $7,488.00 and reflected Nancy as the property owner.[53] Once the permit was approved, construction began. The parties quibble over who did the bulk of the work. The Clymers' testimony was consistent...
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