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Plaintiff v. Brosman

Superior Court of Delaware

October 29, 2019

MARY KATHERINE WEBSTER Plaintiff,
v.
DR. MICHAEL BROSMAN and VICTORIA BROSMAN, Defendants.

          Submitted: September 26, 2019

         Upon Defendants' Motion to Dismiss

          Samuel D. Pratcher, III, Esquire, Pratcher Krayer LLC, Wilmington, Delaware, Willie E. Gary, Esquire, Larry A. Strauss, Esquire, Gary, Williams, Parenti, Watson & Gary, PLLC, Stuart, Florida, Attorneys for Plaintiff.

          David J. Ferry, Jr., Esquire, Thomas R. Riggs, Esquire, James Gaspero, Jr., Esquire, Ferry Joseph PA, Wilmington, Delaware, Attorneys for Defendants.

          MEMORANDUM OPINION

          The Honorable Andrea L. Rocanelli

         This case involves a dispute regarding the property of Judith Webster ("Judith"). Judith was the mother of Plaintiff Mary Katherine Webster ("Plaintiff") and Defendant Victoria Brosman ("Victoria"). Defendant Michael Brosman ("Michael") is Victoria's husband. Plaintiff filed this action on April 17, 2019. Plaintiff alleges that Victoria and Michael (collectively, "Defendants") wrongfully took and sold Judith's property prior to Judith's death and thus deprived Plaintiff of her rights to the property under Judith's Will. Plaintiff's Complaint sets forth four counts against Defendants: conversion, fraud, fraudulent concealment, and accounting.

         Defendants move to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted, arguing that all four counts are time-barred by Delaware's three-year statute of limitations. Defendants further argue that even if Plaintiff's claims are not time-barred, Plaintiff's claims are premised solely on Plaintiff's status as a beneficiary to Judith's Will and should therefore be brought against Judith's estate. Plaintiff opposes Defendants' motion. The Court heard oral argument on September 26, 2019.

         LEGAL STANDARD

         In deciding a motion to dismiss for failure to state a claim upon which relief can be granted under Superior Court Rule of Civil Procedure 12(b)(6), the Court shall accept all well-pleaded allegations as true and make all reasonable inferences in favor of the non-moving party.[1] Factual allegations, even if vague, are well pleaded if they provide notice of the claim to the other party.[2] The Court should deny the motion if the claimant "may recover under any reasonably conceivable set of circumstances susceptible of proof."[3]

         "The Court may raise the issue of subject matter jurisdiction sua sponte."[4]Because the parties may not waive subject matter jurisdiction, the Court is independently obligated to ensure that it has jurisdiction over the parties' claims if any doubt exists.[5] Superior Court Rule of Civil Procedure 12(h)(3) mandates the Court to dismiss a claim if it appears from the record that the Court does not have jurisdiction over the claim.[6]

         PLAINTIFF'S ALLEGATIONS

         The Complaint sets forth the following allegations which the Court accepts as true in analyzing Defendants' Motion to Dismiss. Judith was a Canadian citizen who resided in Toronto, Canada for 55 years. In 2006, Judith executed several estate-planning documents, including two Powers of Attorney ("2006 POAs") designating Defendants as her exclusive attorneys for personal care and property and a Last Will and Testament naming Defendants as her exclusive co-executors and co-trustees and devising her entire estate to Victoria ("2006 Will").

         On November 7, 2012, Defendants moved Judith from her home in Toronto to Defendants' residence in Wilmington, Delaware. Judith remained at Defendants' residence until June 2013.[7] On June 20, 2013, Judith left Defendants' residence. Plaintiff makes a variety of claims regarding improper disposition of assets during the time period that Judith resided in Delaware with Defendants about which Plaintiff learned after Judith left Defendants' residence.[8]

         In October 2013, Judith updated her estate planning documents. First, Judith executed two Powers of Attorney revoking the 2006 POAs and designating Plaintiff and Plaintiff's sister, Elizabeth Arathoon Webster Surkin ("Elizabeth"), as Judith's exclusive attorneys for personal care and property ("2013 POAs"). Next, Judith executed a Last Will and Testament revoking the 2006 Will and naming Plaintiff and Elizabeth as exclusive trustees and sole beneficiaries of Judith's estate ("2013 Will"). In July 2016, Judith executed a final Power of Attorney designating Elizabeth as Judith's exclusive attorney for property ("2016 POA"). Judith died on May 11, 2017, at which time the 2016 POA and 2013 Will controlled.

         DISCUSSION

         I.Plaintiff's Claims for Conversion, Fraud, and Fraudulent ...


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