Paul E. Weber
Charles J. Weber, Jr.
Gary A. Bryde, Esquire.
Dear Counsel and Mr. Weber:
Pending before me are Defendant Charles J. Weber, Jr.'s Motion for Summary Judgment and Plaintiff Paul E. Weber's Motions for Partial Summary Judgment, to Suppress Deposition, and to Amend and/or Bifurcate. For the reasons that follow, I recommend that all motions be denied, and this case be rescheduled for trial.
Charles and Paul are the two surviving children of the late Margaret M. Weber (hereinafter "the decedent"), who died on December 23, 2009, a resident of Delaware. In her Last Will and Testament dated March 19, 2004 (the "2004 Will"), the decedent left her entire estate, including real property located at 14 Winnwood Road, in Newark, to her oldest son, Charles. The 2004 Will was admitted to probate by the Register of Wills in and for New Castle County on January 11, 2010. Paul subsequently filed a Statement of Claim at the Register of Wills for $528, 000.00. This amount included three separate claims: (a) $163, 800.00 for care services Paul had provided to decedent; (b) $85, 000.00 for a promise of decedent to pay for Paul's legal costs; and (c) $280, 000 for a promise of decedent to give the property at 14 Winnwood Road to Paul. Paul's Statement of Claim was rejected by Charles and, on March 16, 2011, Paul filed a complaint in this Court under 12 Del. C. § 2102,  seeking approval of his claims. On November 9, 2012, Paul's action was dismissed without prejudice for lack of prosecution under Court of Chancery Rule 41(e).
On January 14, 2013, Paul filed his current complaint against Charles, seeking specific performance of an oral contract to share their mother's estate. On February 17, 2014, I approved a case scheduling order that, among other things, set a discovery deadline of July 7, 2014, gave the parties until August 11, 2014 to file any motions, and scheduled a two-day trial to commence on January 13, 2015.On August 11, 2014, Charles filed a motion for summary judgment. After a briefing schedule was established, both parties subsequently requested, and were granted, extensions of time to file their briefs. On November 5, 2014, Paul not only filed his Answering Brief in opposition to Charles' Motion for Summary Judgment, but Paul also filed the other three motions that are now pending before me.
In his complaint, Paul alleges that their mother had wanted to renounce the 2004 Will and create a new will leaving Paul the family home and 50 percent of her remaining estate; however, she was prevented by Charles from doing so. After their mother's death, Paul confronted Charles about his actions, and Charles agreed to honor their mother's wishes and share her estate with Paul in exchange for Paul's agreement not to contest the 2004 Will.
In seeking summary judgment, Charles raises the following arguments: (1) Paul's claim is barred by the doctrines of res judicata and collateral estoppel; (2) the alleged contract between Paul and Charles was not supported by consideration; (3) Michael is not a proper party; (4) this action is actually a petition for review of the 2004 Will, which is time-barred by 12 Del. C. § 1309; and (5) Paul's complaint is barred by the doctrine of unclean hands because he breached the agreement when he filed his Statement of Claim in the Register of Wills Office and then filed suit in C.A. No. No. 6284-MA. In his motion for partial summary judgment, Paul is seeking a judgment of $86, 000.00, which he claims was the amount of money set aside in a legal defense fund for his benefit by his mother, and an order excluding this amount from the decedent's estate when calculating Paul's one-half share of the estate.
Under Court of Chancery Rule 56, summary judgment will be granted where the moving party demonstrates that there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. In performing this review, I must review all evidence in the light most favorable to the non-moving party.
The doctrine of res judicata, on which Charles primarily relies, is designed to prevent unnecessary and burdensome litigation about facts and theories that have been or should have been litigated previously. There are five elements that must be satisfied in order to establish res judicata,  but I need only cite the one element relevant in this case, i.e., the prior adjudication must be final. The prior action, C.A. No. 6284-MA, was dismissed without prejudice. A dismissal without prejudice, while otherwise a final judgment, does not operate as a res judicata bar to preclude a subsequent suit on the same cause of action.
Similar to the doctrine of res judicata, collateral estoppel is designed to prevent a party who litigated an issue in one court from later relitigating that same issue in another court. The elements of collateral estoppel are: (1) the same issue is presented in both actions; (2) the issue was litigated and decided in the first action; and (3) the determination was essential to the prior judgment. Collateral estoppel does not apply here because no issues were ever litigated and decided in C.A. No. 6284-MA. That action was simply dismissed by the Court for lack of prosecution.
Charles' contention that the contract was not supported by any consideration is based on the following excerpts from Paul's deposition. In response to counsel's question, Paul agreed that the deal was to split everything equally, but that Charles was going to sell the house and buy a smaller house for Paul and, after subtracting the cost of that smaller house from Paul's half of the estate, pay the remainder of Paul's half in cash to Paul. When asked if that was the "whole agreement, " Paul said, "Yes." Charles now argues that since Paul did not mention during his deposition what actions he would or would not take, the most Paul would be able to show is an oral promise unsupported by consideration, which would be unenforceable.
Paul argues that this exchange during the deposition is being taken out of context, and does not reflect an accurate description of the contract between the parties. Paul now moves to suppress the deposition, arguing that it does not conform to the Court's rules because he never had the opportunity to examine a transcript of his deposition or make any changes, and he never accepted the deposition. Charles responds by arguing that it was Paul's responsibility as a party to coordinate with the court reporter for his reading of the transcript and completion of an errata sheet. In addition, Charles argues that this motion is untimely because the deadline for filing all motions including discovery was August 11, 2014.
The verified complaint contains allegations that Charles coerced his mother into signing the 2004 Will and, after she voiced regret over her actions and renounced the will orally to family and friends, Charles then threatened and emotionally abused his mother to keep her under his control. Paragraph 13 of the complaint, which contains numerous hearsay statements, alleges that inquiries by law firms and an investigative agency uncovered the decedent's intention for Paul to inherit the family home and half of the remaining estate, Charles' emotional abuse of the decedent, and his hatred of Paul, among other "facts." In Paragraph 14, Paul alleges:
14. Paul confronted Charles with many of the aforementioned facts as set for [sic] in ¶ 13. Charles acquiesced to the probability of a successful challenge of the 2004 will. Charles then agreed to honor his Mother's wishes and share her estate with Paul and, by ...