October 23, 2019.
Closed December 19, 2019.
decision has been designated as "Table of Decisions
Without Published Opinions." in the Atlantic Reporter.
Below— Court of Chancery of the State of Delaware. C.A.
SEITZ, Chief Justice; VAUGHN, and TRAYNOR, Justices.
F. Traynor, Justice.
3rd day of December 2019, after careful consideration of the
parties' briefs and the record on appeal, it appears to
the Court that the March 26, 2019 letter opinion of the Court
of Chancery awarding Appellees the recoverable expenses they
incurred in connection with a motion to compel discovery
under Court of Chancery Rule 37(a)(4)(C) should be
affirmed on the basis of and for the reasons stated in the
The underlying dispute concerned a fence. Appellees James W.
Owen, Jr. and Jana L. Owen (" Appellees" or the
" Owens" ) purchased a home in the Tavistock
Community, a deed-restricted community in which " [no] .
. . fence shall be commenced, erected or maintained"
unless approved in writing by Appellant Tavistock Civic
Association, Inc. (" Appellant" or "
Tavistock" ). According to Tavistock, before the
Owens purchased their home, they asked the Tavistock board
whether they could erect a six-foot tall stockade privacy
fence on the property. Tavistock's board said no, and the
Owens purchased the property anyway. Nevertheless, on January
25, 2017, the Owens submitted an application to the Tavistock
board seeking permission to build the six-foot tall privacy
fence they had previously inquired about. Tavistock's
board denied the Owens' application, explaining that
Tavistock had a " long standing practice" of
allowing only certain types of fences, and those only up to
four feet tall, in order to " preserve the open feel of
the community."  As litigation progressed, Tavistock
continued to maintain that it had " uniformly upheld the
deed restrictions regarding fences from April 9, 1984, to the
Accordingly, the Owens sought discovery dating back to 1984,
including identification and production of " all
documents that reference or relate in any way to all requests
by residents of Tavistock . . . for a fence on their
property."  Tavistock responded to the discovery
requests with the specific objection that the requests sought
" information without any limitation to the time period
relevant to [the] matter"  and offered to "
produce documents created, received or obtained only within
three (3) years of the filing of the Complaint."
The Owens filed a motion to compel under Court of
Chancery Rule 37 (the " Motion to Compel" or
the " Motion" ), requesting that the Court of
Chancery order Tavistock to " conduct a complete and
thorough search of all its records and documents, whether in
the custody of current Board Members or past Board Members,
or elsewhere."  The Owens also requested
attorneys' fees in connection with the Motion.
The Court of Chancery granted in part and denied in part the
Motion to Compel, and denied attorneys' fees without
prejudice, noting that " fees and costs will be handled
pursuant to 10 Del. C. § 348(e) at the conclusion of this
action."  The Court found that, because
Tavistock, in its defense, asserted that it had consistently
enforced the deed restriction on fences since April 9, 1984,
discovery was appropriate going back to that date. But the
court also found that certain interrogatories that the Owens
had propounded and that were the subject of the Motion to
Compel were protected by privilege.
Shortly after the Court of Chancery's order was entered,
Tavistock's board decided to moot the Owens'
complaint in order to avoid discovery costs by amending the
board's fence policy and approving the Owens'
The Owens then petitioned for all of their costs and legal
fees. After a hearing, the Court of
Chancery granted attorneys' fees in the amount of
$5,000.00 in connection with the Motion to Compel ...