Pleasant Hill Homeowners Assoc., Inc. Valerie Quillen

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
SELENA E. MOLINA LEONARD L. WILLIAMS JUSTICE CENTER
SENIOR MAGISTRATE IN CHANCERY 500 NORTH KING STREET, SUITE 11400
WILMINGTON, DE 19801-3734

Final Report: January 3, 2025
Date Submitted: September 11, 2024

Alicia A. Porter, Esquire Peter K. Schaeffer, Jr., Esquire
Benton & Shockley Law, P.A. Avenue Law
306 South State Street 1073 South Governors Avenue
Dover, Delaware 19904 Dover, Delaware 19904

Re: Pleasant Hill Homeowners Association, Inc. v. Valerie
Quillen, and James R. Munsey III, C.A. No. 2023-1091-SEM

Dear Counsel,

Through this action, a homeowners association seeks to enforce deed

restrictions against homeowners. For the reasons I will explain, I find in favor of the

association and recommend that injunctive relief be issued to remedy the

homeowners’ noncompliance with the applicable restrictions. I further recommend

the petitioner be awarded the court costs it incurred in this matter. This is my final

post-trial report.
C.A. No. 2023-1091-SEM
January 3, 2025
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I. BACKGROUND 1

This action was brought by Pleasant Hill Homeowners Association, Inc. (the

“Petitioner”), against Dr. Valerie Quillen and James R. Munsey, III (the

“Respondents” and, together with the Petitioner, the “Parties”). The Petitioner seeks

a mandatory injunction to remove or bring into compliance a fence on real property

located at 177 Exchange Drive, in Camden-Wyoming, Delaware, within the Pleasant

Hill common interest residential community (“Pleasant Hill”). Per the Petitioner, the

fence violates a deed restriction, more fully described below, which binds the

property at issue (the “Restriction”). I begin with some background on the

community, before turning to the Restriction, the Parties, and the dispute before me.

A. Pleasant Hill

Pleasant Hill is a community of 90 homes. 2 Through its board, the Petitioner

is tasked with, among other things, “the enforcement of the covenants, conditions

and restrictions of [Pleasant Hill.]”3 Pleasant Hill’s board consists of three total

1
The facts in this report reflect my findings based on the record developed at trial on
September 11, 2024, as well as those agreed upon by the parties in the joint pretrial
stipulation. See Docket Item (“D.I.”) 43 (“Pretrial Order”), 48 (trial transcript). Citations
to the trial transcript are in the form “[Last name] Tr.” referring to the testimony, statement,
or objection of the identified person. The Petitioner’s exhibits are cited as “PX__,” and the
Respondents’ exhibits are cited as “RX__.” I grant the evidence the weight and credibility
I find it deserves.
2
Rogers Tr. 14:22–23.
3
PXD at 18.
C.A. No. 2023-1091-SEM
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members. Those members, both now and at the relevant time, are Dr. Larry Ward,

Alicia Porter, Esq., and Veronica Rogers. 4 Ms. Rogers is the board’s president, Ms.

Porter is its vice president, treasurer, and attorney, and Dr. Ward is its secretary. 5

Ms. Rogers moved into Pleasant Hill in 2011 6 and, at the time of trial, had been a

member of the board for the past three years. 7 Ms. Porter has been on the board even

longer than Ms. Rogers,8 whereas Dr. Ward moved to Pleasant Hill in 2021 9 and

served on the board for nearly two years by the time of trial.10 Respondent Dr.

Quillen was also a member of the Petitioner’s board briefly in 2014.11

During the relevant time, the Petitioner arranged for HPS to be Pleasant Hill’s

community management company.12 As management company, HPS was tasked

4
Rogers Tr. 33:10–14.
5
See id. at 35:1–2; RXB at 2.
6
Rogers Tr. 31:2–3.
7
Id. at 82:12–19, 154:19–24.
8
Id. at 33:15–21.
9
Ward Tr. 140:9–11. I note that the Respondents objected at trial to Dr. Ward’s testimony
because the Petitioner did not identify him as a witness in the Pretrial Order. Schaeffer Tr.
139:10–14. I preserved the objection but allowed Dr. Ward to testify. Court Tr. 139:22–
24. The Respondents did not pursue the objection post-trial, and thus the issue has been
waived. See Emerald P’rs v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (“Issues not briefed
are deemed waived.”).
10
See Ward Tr. 143:1–4.
11
Quillen Tr. 92:10–12.
12
Rogers Tr. 14:24–15:18.
C.A. No. 2023-1091-SEM
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with riding through Pleasant Hill monthly, reporting violations to the board for

approval of violations and fines, and sending out violation notification letters.13 In

addition to HPS notifications, violations were also reported directly to board

members.14

B. The Restriction

Properties within Pleasant Hill are governed by the Declaration of Covenants,

Conditions and Restrictions for Pleasant Hill Farms (the “Declaration”), updated as

of July 24, 2006, which is recorded in the Office of the Recorder of Deeds in and for

Kent County. 15 This action requires my review of three sections in the Declaration:

Article IV, Section 5 (the Restriction); Article V, Section 6; and Article V, Section

7. I will briefly address each in turn.

13
Id. at 15:19–16:2. Although HPS was technically supposed to conduct monthly ride-
throughs, they typically did so every six to eight weeks. Id. at 16:3–10.
14
Id. at 16:20–17:5.
15
Pretrial Order at II(1); D.I. 1 (“Compl.”), Ex. A. A fence height resolution (the
“Resolution”) pertaining to the Restriction was purportedly adopted at a board meeting on
January 25, 2024. See RXB at 2. The Resolution lists both an adoption and effective date
of January 5, 2024, and was attested to by Dr. Ward in his capacity as the board’s secretary
on March 25, 2024. Id. The board met telephonically and agreed on the Resolution on
January 5, 2024. Rogers Tr. 29:1–4, 29:12–13. The March 25, 2024 date apparently
indicates the point in time in which the Resolution language actually came together. Id. at
29:21–30:1. The Resolution purports to “clarify the [Restriction]” and explains, among
other things, that “the height restriction for fences is exclusive of a topper.” RXB at 1. I do
not consider the Resolution dispositive to my analysis of the Restriction, which, as
explained below, I address through contract principles.
C.A. No. 2023-1091-SEM
January 3, 2025
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The Restriction provides:

No fence, wall, hedge, or mass planting shall be erected or permitted
except to the rear of the main house structure and such fence, wall,
hedge, or mass planting shall not be permitted to be over four feet in
height; EXPRESSLY EXCEPTION [sic] HOWEVER, there may be
erected at the perimeter boundary line of Pleasant Hill Farms
Development (either by Declarant or individual property owners) a
perimeter boundary fence to the maximum height allowed by the
applicable zoning authority at any given time (the purpose of such fence
being to provide privacy and security for the development and/or
individual lots from public roads and other lands adjoining the Pleasant
Hill Farms Development).

Article V, Section 6 constitutes a non-waiver clause, providing:

Non-waiver. Failure of the Declarant or any Owner or their respective
legal representatives, heirs, successors and assigns, to enforce any
[r]estrictions contained in this Declaration shall in no event be
considered a waiver of the right to do so thereafter, as to the same
violation or breach or as to such violation or breach occurring prior or
subsequent thereto.

Finally, Article V, Section 7 states:

Construction and Interpretation. The Association, to the extent
provided herein, may adopt and promulgate reasonable rules and
regulations regarding the administration, and interpretation and the
enforcement of the provisions of this Declaration. In so adopting and
promulgating such rules and regulations and in making any finding,
determination, ruling or order or in carrying out any directive contained
herein relating to the issuance of permits, authorizations, approvals,
rules or regulations, the Association shall take into consideration the
best interest of the Owners to the end that Property shall be preserved
and maintained as a viable community. 16

16
PXD at 21–22, 24.
C.A. No. 2023-1091-SEM
January 3, 2025
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C. The Fences

This action revolves around the fence the Respondents constructed in late

2023. But, in defending their conduct, the Respondents have highlighted several

other fences in Pleasant Hill. I address these in turn.

The record is sparse regarding the Respondents’ decision to build a fence and

their thinking behind the height therefor. What is undisputed is that the Respondents

did not ask for the board’s permission before purchasing or moving forward with

construction of their fence. Rather, Dr. Quillen felt she did not need to. 17 Despite not

seeking board approval to install the fence, per her own recollection, Dr. Quillen

spoke to multiple other homeowners to ask “if they filed an application, received

push back from [the association] or received any violation letters or fines/fees.” 18

Dr. Quillen recalled that “[a]ll of them stated ‘no.’” 19

Ultimately, the Respondents moved forward with their fence without seeking

approval from the Petitioner. They worked with Forrest Fencing. On or around

17
See Quillen Tr. 117:22–23. Despite this, in July 2023, the former board president spoke
with Ms. Porter about what Dr. Quillen “had to send in” when making other aesthetic and
structural changes to her home. PXC at 12–14; Rogers Tr. 24:10–15. Though Ms. Rogers’s
testimony suggests that Dr. Quillen submitted an “application” in relation to those
alterations, this is unsupported by the record.
18
PXF. Although the Respondents objected to PXF on the basis of relevance, this objection
is overruled. See infra note 39.
19
PXF.
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September 11, 2023, sales representative Cody Davis prepared a contract and

invoice for the Respondents for the installation of a six-foot fence. 20 Thereafter, in

or around October 2023, the Respondents had their five-feet-tall fence with a one-

foot topper installed (the “Fence”).21

But the Fence is not the only one in the community falling out of

compliance.22 There are other fences in Pleasant Hill, some of which are four feet

tall with a one-foot topper, bringing the total height to five feet, and at least one is

indisputably presumed to be at least six feet tall in total, plainly violating the

Restriction.23 As to the four-foot fences with one-foot toppers, the board has not

taken any action because it elected to define the term “fence” in the Restriction “as

a four foot [fence] with a 12-inch topper to be more inclusive of the neighbors, who

may have had older fences . . . . to be inclusive of everybody and . . . grandfather[]

20
PXA at 1–2; Davis Tr. 6:24–7:1, 7:23–8:10. Although Forrest Fencing handles obtaining
permits with the applicable county for fence installations, the customer is in charge of
handling any homeowners association approvals. Id. at 10:6–12. I pay no mind to the fact
that the Respondents did not execute the “Agreement of [N]o Liability or Fault” waiver
dated November 30, 2023 from Forrest Fencing. PXA at 8.
21
See Davis Tr. 8:9–10; Quillen Tr. 118:6–13.
22
The Respondents presented evidence regarding other unapproved and non-compliant
structures and alterations within Pleasant Hill. See, e.g., DXA at 18 (photograph of trees).
I find this evidence largely irrelevant and consider only fence height violations for purposes
of rendering this decision.
23
Rogers Tr. 30:7–31:11.
C.A. No. 2023-1091-SEM
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[them in to compliance.]” 24 The presumed six-foot fence has been present for many

years, since at least 2011, and may be the only fence greater than five feet in total.25

This year, another Pleasant Hill homeowner submitted an application to the board

seeking a six-foot fence, which was repeatedly denied for being “too high.”26

D. Procedural Posture

The Petitioner initiated this action on October 27, 2023, through a petition

seeking a declaratory judgment and injunctive relief.27 I ordered expedited

mandatory mediation under Title 10, Section 348 of the Delaware Code, on

November 16, 2023.28 The Respondents’ counsel informed me at a teleconference

on January 12, 2024 that mediation occurred and a stipulation would be filed, which

I received and granted on January 26, 2024. 29 The stipulation was for a stay to allow

the Parties to explore “Alternate Relief.” 30 Thus, I vacated the remaining schedule

24
Id. at 26:9–27:7.
25
See id. at 30:12–31:6.
26
Id. at 25:6–19.
27
Compl.
28
D. I. 3–5.
29
D.I. 11–14.
30
D.I. 13.
C.A. No. 2023-1091-SEM
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and removed the April 2024 pretrial conference and trial dates from the Court’s

calendar. 31

Then on April 15, 2024, the Respondents requested a teleconference to discuss

what they alleged to be the Petitioner’s non-compliance with the Parties’ settlement

agreement apparently reached at mediation.32 The next day, the Respondents noticed

the deposition of both Ms. Porter (who is also the Petitioner’s counsel in this action),

and of HPS’s record keeper.33 Following some back and forth briefing on a motion

to quash and for a protective order,34 the stay was lifted and this matter geared toward

litigation.

On June 26, 2024, I granted a new case schedule setting trial for September

11, 2024.35 The attempted deposition of Ms. Porter then reared itself again before

becoming a subpoena ad testificandum, leading to another motion to quash and a

motion for continuance. 36 I directed the parties to meet and confer in hopes that they

31
D.I. 14.
32
D.I. 15.
33
D.I. 16, 19.
34
D.I. 20–21.
35
D.I. 27.
36
D.I. 28–29, 32–35.
C.A. No. 2023-1091-SEM
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could resolve the issue without me,37 but unfortunately my judicial intervention was

needed. I granted the motion to quash, mooting the request for a continuance.38

Trial was ultimately held on September 11, 2024, at which point I took the

matter under advisement.39

II. ANALYSIS

The Petitioner seeks an injunction which would require the Respondents to

either take down the Fence or bring it into compliance, and court costs.40 As further

37
D.I. 36.
38
D.I. 39–41.
39
D.I. 45. After trial, the Petitioner responded to objections made against several exhibits
it introduced at trial. D.I. 46–47. Specifically, the Respondents objected to the Petitioner’s
trial exhibits F, G, H, and I. Although the Respondents represented by letter that they
objected to the exhibits “on the basis of unfair prejudice as [the Petitioner] did not disclose
same upon [the Respondent’s] discovery request[,]” D.I. 46, Exhibit F was actually
objected to on the basis of relevance insofar as Mr. Schaeffer was “just reserv[ing] the right
to redirect [the witness] on it[.]” Schaeffer Tr. 116:22–117:12. Putting this all aside, what
Dr. Quillen did or did not know almost ten years ago when she sat on the board is not
important to me. But even so, Dr. Quillen testified that “there were fence violations then.”
Quillen Tr. 92:10–14. Instead, because I find that both she and Mr. Munsey were, at
bottom, on record notice of the Declaration and Restriction therein, their actual knowledge
bears no importance. Indeed, Dr. Quillen’s own “violation material” contained a note that
“[p]rior to installing [her] fence, [she] spoke to . . . homeowners . . . [about] if they filed an
application, received push back from HOA or received any violation letters or fines/fees.”
PXF. Those alleged homeowners did not testify, and I do not have enough information to
determine the note’s veracity. Nevertheless, I find these objections go to weight rather than
admissibility and they are, as such, overruled; I give these exhibits the weight and
credibility I find they deserve.
40
The Petitioner does not have any attorneys’ fees because Ms. Porter did not charge any,
and the “action was brought . . . to be able to afford both the [Petitioner] the opportunity to
be able to pursue the charges without the fees, but also for the [Respondents] to not have
to pay attorneys’ fees should the [Petitioner] prevail.” Porter Tr. 172:18–23.
C.A. No. 2023-1091-SEM
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explained herein, I find injunctive relief warranted because the Restriction is

enforceable, was breached, and the equities weigh in favor of the Petitioner. I also

find that court costs should be shifted in the Petitioner’s favor. 41

A. Injunctive relief should be awarded.

The Petitioner seeks injunctive relief, requiring the Respondents to either

remove the fence or bring it into compliance with Pleasant Hill’s restrictions. 42 To

41
In so holding, I reject the Respondents’ competing request for fee shifting under Title
10, Section 348 of the Delaware Code; the Respondents are not the prevailing parties. The
Petitioner further waived any request for Section 348 fee shifting by failing to include such
request in the pretrial stipulation, wherein the Petitioner conditionally sought fee shifting
only “[i]f the case is continued and co-counsel is sought . . . .” D.I. 43. See also Emerald
P'rs v. Berlin, 726 A.2d at 1224 (“Issues not briefed are deemed waived.”).
42
I note that in the complaint, the relief sought by the Petitioner differed from what was
listed in the Pretrial Order. Compare Compl. at 6 (seeking “a declaratory judgment in favor
of the Association and against [the Respondents] which declares the Six-Foot Fence
prohibited by the Declaration; . . . a permanent injunction to enjoin [the Respondents] from
maintaining the Six-Foot Fence on the home; . . . an order that the [Respondents] remove
the Six-Foot Fence and if the [Respondents] fail to do so, granting the Association
permission the power of self-help [sic] to cause the removal of the Six-Foot Fence at [the
Respondents’] cost; . . . an award of legal damages to the Association in an amount to be
determined at trial for any and all economic injuries sustained by the Association; an award
of attorneys’ fees and court costs to the Association; and . . . any other relief this Court
deems equitable and just”), with Pretrial Order at 4–5 (seeking “[the Respondents] to
enjoined [sic] to lower the height of their fence to be in compliance with the Declaration
and the [R]esolution[;] . . . [the Respondents] to reimburse [the Petitioner] for all associated
court costs[;] . . . [and] [i]f the case is continued and co-counsel is sought by [the
Petitioner], [the Petitioner] will be seeking any related attorneys’ fees”). Because the
Pretrial Order offers the Respondents the ability to bring the Fence into compliance, I, too,
offer them that option.
I appreciate that the direction to “bring the Fence into compliance” is less than
precise, particularly given the Resolution and the uncertainty it brings with it.
Unfortunately, the enforceability of the Resolution is not an issue pending before me and I
decline to stray outside the appropriate bounds of this action to address it. If the
C.A. No. 2023-1091-SEM
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obtain that relief, the Petitioner must prove, by a preponderance of the evidence: “(1)

actual success on the merits of the claims; (2) that the [Petitioner] will suffer

irreparable harm if injunctive relief is not granted; and (3) that the harm to the

[Petitioner] outweighs the harm to the [Respondents] if an injunction is granted.”43

I find that the Petitioner met its burden, and thus injunctive relief should be awarded.

1. The Petitioner has demonstrated actual success on the
merits.

To demonstrate actual success, the Petitioner needed to establish that the

Restriction is enforceable and was breached by the Respondents. It met this burden,

and I reject the Respondents’ argument that the Petitioner’s enforcement right has

been waived.

The Petitioner contends the Respondents violated the Restriction. Although

the Respondents point me to a string of cases pertaining to architectural review

Respondents opt for compliance, I encourage the Parties to meet and confer before
remediation efforts begin to ensure a mutually acceptable resolution.
43
Benner v. Council of Narrows Ass’n of Owners, 2014 WL 7269740, at *11 (Del. Ch.
Dec. 22, 2014) (citing Examen, Inc. v. VantagePoint Venture P’rs 1996, 2005 WL
1653959, at *2 (Del. Ch. July 7, 2005)); see also Civic Ass’n of Surrey Park v. Riegel, 2022
WL 1597452, at *9 (Del. Ch. May 19, 2022) (“The burden of proof . . . is by a
preponderance of the evidence. Proof by a preponderance of the evidence means proof that
something is more likely than not. It means that certain evidence, when compared to the
evidence opposed to it, has the more convincing force and makes you believe that
something is more likely true than not.”) (citation and quotation marks omitted).
C.A. No. 2023-1091-SEM
January 3, 2025
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covenants, I do not deem the Restriction to be an architectural review covenant.44

Instead, as a basic deed restriction, its interpretation is simply “a matter of contract

interpretation” under Delaware contract law. 45

44
In the Complaint the Petitioner alleges that, under Article V, Section 7, through which
the homeowners association “may adopt and promulgate reasonable rules and regulations
regarding the administration, and interpretation and the enforcement of the provisions of
the Declaration[,]” the association “adopted and implemented the Application for Exterior
Alteration . . . for owners to submit and obtain approval prior to commencing exterior
alterations.” Compl. at 3. The board appears to be of the belief that it can require residents
to submit a form to obtain approval before commencing exterior alterations. See, e.g.,
Rogers Tr. 46:16–20 (Q: “Does the [D]eclaration say . . . homeowners have to apply for
preapproval before doing anything with their residence?” A: “[Y]es, they do. They do have
to apply through the portal.”); Pretrial Order at 1 (“In addition, [the Respondents] failed to
request permission to erect the fence[.]”). I disagree. Instead, as I understand it,
homeowners are submitting their plans for alterations to the association to ensure they are
in compliance with the Declaration, and the use of the form is the board’s way of
administering and enforcing those provisions. See Porter Tr. 160:17–21 (“[T]he purpose of
having that application is to put everyone on notice that this board is going to enforce the
rules. And so if you have a question as to whether or not you are going to be in violation
of the rules, you are to ask permission.”). Thus, I find the Application for Exterior
Alteration does not transform the Restriction into an architectural review covenant.
Even if it did, the Restriction “present[ed] clear, precise, and fixed standards of
application” and was not arbitrarily applied. See Lawhon v. Winding Ridge Homeowners
Ass’n, Inc., 2008 WL 5459246, at *5 (Del. Ch. Dec. 31, 2008). This distinguishes the
matter at hand from cases like Seabreak Homeowners’ Ass’n, Inc. v. Gresser, 517 A.2d
263, 265 (Del. Ch. 1986), wherein the time of plan submission under an architectural
review covenant “marked the first occasion that the [architectural review committee] had
formally adopted [the] restriction and had given notice to anyone, including the
[defendants,] that such a restriction had been adopted.”
I am also not swayed by any potential argument pertaining to the Resolution and its
propriety. Even if I were to consider the Resolution, as in Welshire Civic Association Inc.
v. Stiles, 1993 WL 488244 (Del. Ch. Nov. 19, 1993), the board appears to have interpreted
the Restriction uniformly across the board, giving grace most openly to one home greater
than five feet total in height at 104 Kingston which has had its fence up for many years.
Rogers Tr. 30:7–31:6. Although Dr. Quillen directs me to other fences which purportedly
exceed the bounds set forth under the Resolution, see, e.g., RXA at 11, the board was only
C.A. No. 2023-1091-SEM
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a. The Restriction is enforceable.

The Restriction is clear and unambiguous. It provides in relevant part: “No

fence . . . shall be erected or permitted except to the rear of the main house structure

and such fence . . . shall not be permitted to be over four feet in height” within

Pleasant Hill. This provision provides notice to all those within the community as to

what is permitted (a four-foot or shorter fence on the rear of the main house on each

property), is enforceable as written, and requires no further interpretation.

b. The Respondents violated the Restriction, and
their waiver argument should fail.

The Respondents do not dispute that they violated the Restriction by installing

a fence that is greater than four feet in height. But the Respondents argue that the

Petitioner waived its ability to enforce the Restriction. I disagree. I further find the

Petitioner’s attempt to enforce the Restriction against the Respondents is not

arbitrary or capricious. Thus, I find no bar to the Petitioner’s ability to enforce the

Restriction in this action.

aware of one fence over five feet total. Rogers Tr. 31:4–6. I also decline to give much
weight to RXA, Dr. Quillen’s submission of photos and descriptions of alleged Declaration
violations, the bulk of which I find largely unconvincing. See Rogers Tr. 155:15–156:7
(disproving Dr. Quillen’s allegation that a fence (identified in RXA at 23), was six feet
tall).
45
Wild Quail Golf & Country Club Homeowners’ Ass’n, Inc. v. Babbitt, 2021 WL
2324660, at *3 (Del. Ch. June 3, 2021), adopted, (Del. Ch. June 17, 2021).
C.A. No. 2023-1091-SEM
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I begin with waiver. To prove waiver, the Respondents would need to show

that the association had not enforced the Restriction “to such an extent that it would

be unfair for it to enforce the [Restriction] against [them.]” 46 This burden is even

greater when the covenants which bind the community contain a non-waiver

provision, a provision this Court recognizes as a contractual right. Such provisions

require the challenger to “demonstrate, by a preponderance of the evidence, that the

presence of [violations] is pervasive . . . and [the association’s] allowance of [these

violations] reflects a total and absolute abandonment of [the association’s] right” to

enforcement.47

Here, the Respondents have not articulated any basis on which to overcome

the Declaration’s non-waiver provision. This Court has enforced similar non-waiver

provisions in the past, 48 and the Respondents have not given me reason to depart

from this precedent. Furthermore, the Respondents failed to present evidence

showing that “more likely that not” the Petitioner knowingly waived its enforcement

rights. Rather, the board applied the Restriction based on its interpretation of the

term “fence.” Additionally, the board denied a six-foot fence application brought

46
Quail Vill. Homeowners Ass’n, Inc. v. Rossell, 2018 WL 6534456, at *10 (Del. Ch. Dec.
10, 2018).
47
E.g., Surrey Park, 2022 WL 1597452, at *11.
48
See, e.g., Brandywine Hills Cmty. Ass’n v. T. Bruce Wilmoth Constr. Co., 1995 WL
767336, at *9 (Del. Ch. Dec. 21, 1995).
C.A. No. 2023-1091-SEM
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before it in 2024 multiple times, and ultimately approved a four-foot fence with a

one-foot topper for those same applicants. 49 Even if the Respondents could find a

way around the non-waiver language of the Declaration, they fall short of meeting

their burden to prove waiver or to establish that the Petitioner’s enforcement efforts

in this action should be rejected as arbitrary and capricious.50

49
Rogers Tr. 25:6–26:4. This to me indicates consistency in enforcement of the Restriction,
cutting against the Respondents’ allegation of arbitrary and capricious enforcement. Cf.
Welshire, 1993 WL 488244.
50
See Quail Vill., 2018 WL 6534456, at *10 (“A waiver of deed restrictions usually
involves a failure to object to other violations of the same or similar restriction such that it
would be unfair to allow the claimant to enforce the [restriction] against the current
violation. . . . [The Respondents] bear[] the burden of proof on [their] affirmative defense
of waiver[.]”) (citation and quotation marks omitted). As I explained, I find that the
permitted twelve-inch topper on a four-foot fence is the board’s uniform interpretation of
the Restriction. Whether or not that interpretation is correct is not the issue at hand.
I also direct the parties to Civic Association of Surrey Park v. Riegel, 2022 WL
1597452 (Del. Ch. May 19, 2022). As in Surrey Park, I decline to find these circumstances
“so pervasive or systemic that it is more like than not [the board] has totally and absolutely
abandoned” its enforcement rights. 2022 WL 1597452, at *11. For similar reasons, I find
the Respondents’ argument that the settlement in Pleasant Hill Homeowners Association,
Inc. v. Massuli, C.A. No. 2021-0407-PWG shows arbitrary and capricious enforcement of
deed restrictions by the Petitioner to be meritless, particularly because the circumvention
of the restrictions at issue there may have come “only after repeated attempts out of court
to try and settle it.” Quillen Tr. 121:4–5; cf. Brandywine Hills, 1995 WL 767336, at *10
(explaining that “prior failure to enforce in good faith does not preclude future enforcement
of the same restrictive covenant”).
C.A. No. 2023-1091-SEM
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2. The Petitioner will suffer irreparable harm absent injunctive
relief, and balancing the harms favors the Petitioner.

The second element in a request for a permanent injunction is that the moving

party will suffer irreparable harm absent relief. In deed restriction cases, irreparable

harm is essentially presumed. As then-Vice Chancellor Steele explained:

The [homeowners within a community with deed restrictions]
knowingly enter into a social contract with the other lot owners when
purchasing their land. This contract includes adhering to the
[r]estrictions’ restrictive covenants. . . . Once a restriction is breached,
the [homeowners association] can never again regain the sanctity of the
covenant. 51

Thus, I find the irreparable harm element easily established, and no evidence has

been presented to me suggesting anything to the contrary.

The third element requires me to balance the harms against the parties.

Although injunctive relief may be jarring, and even extreme at times, it is appropriate

to address a deed restriction breach when, as here, there would not be “substantial

economic harm” to the noncompliant homeowners.52 This is because “[e]quity will

not reward a knowing breach of restrictions.” 53 I find Vice Chancellor Noble’s

51
Slaughter v. Rotan, 1994 WL 514873, at *3 (Del. Ch. Sept. 14, 1994).
52
Cove on Herring Creek Homeowners’ Ass’n, Inc. v. Riggs, 2003 WL 1903472, at *6
(Del. Ch. Apr. 9, 2003).
53
Quail Vill., 2018 WL 6534456, at *3; Plantation Park Ass’n, Inc. v. George, 2007 WL
316391, at *3 (Del. Ch. Jan. 25, 2007) (explaining this Court may “discount harm resulting
for the knowing breach of the covenant” in its balancing analysis).
C.A. No. 2023-1091-SEM
January 3, 2025
Page 18 of 19

decision in Cove on Herring Creek Homeowners’ Association, Inc. v. Riggs

instructive on this point. Therein, Vice Chancellor Noble ordered injunctive relief,

mandating the removal of unapproved sheds. Because the homeowners failed to

make any showing of “substantial economic harm if they [we]re required to remove

their sheds[,]” the Vice Chancellor granted injunctive relief.

I recommend the same here. The Respondents, despite notice of the

Declaration, which includes the Restriction, knowingly violated the unequivocal bar

on fences greater than four feet tall. The harm to the Petitioner is evident from the

breached social contract. The Respondents, on the other hand, have failed to

demonstrate that if injunctive relief were to be granted there would be any substantial

economic harm to them that would outweigh the harm they caused.54 Accordingly,

injunctive relief should be issued directing the Respondents to either remove the

Fence or bring it into compliance with the Restriction.

54
In total, the Fence invoice reflects a cost of $16,000.00. PXA at 2. A proposal that Mr.
Davis gave Dr. Quillen on November 27, 2023, indicates that it would cost $5,500.00 to
cut the Fence down to four feet, with the caveat that estimates are only “[g]ood for 7 days.”
PXA at 3–4. Per email correspondence between Mr. Davis and Dr. Quillen, to remove the
fence entirely would cost $1,500.00, PXA at 6, though presumably that estimate was also
only good for 7 days once made. Nonetheless, these costs are largely of the Respondents’
own making. Cf. Tusi v. Mruz, 2002 WL 31499312, at *5 (Oct. 31, 2002) (acknowledging
the “draconian nature of relief requiring demolition of [a] [g]arage” and, nonetheless,
ordering same); Christine Manor Civic Ass’n v. Gullo, 2007 WL 3301024, at *3, *4 (Del.
Ch. Nov. 2, 2007) (finding “[t]he only equitable and viable remedy available to the Court”
where the homeowner built a structure without approval and “at her risk” was “removal of
the structure”).
C.A. No. 2023-1091-SEM
January 3, 2025
Page 19 of 19

B. The Petitioner is entitled to court costs.

Having found in favor of the Petitioner, I turn to the Petitioner’s final request

for relief—costs. 55 As the prevailing party, the Petitioner is entitled to costs under

Court of Chancery Rule 54(d); I find no basis to direct otherwise.

III. CONCLUSION

For the reasons stated herein, I find in favor of the Petitioner. This Court

should issue a permanent injunction requiring the Respondents to either remove the

Fence or bring it into compliance with the Restriction. The Respondents should also

bear the Petitioner’s court costs incurred in this action.

This is my final report, and exceptions may be filed under Court of Chancery

Rule 144.

Respectfully submitted,

/s/ Selena E. Molina

Senior Magistrate in Chancery

The Petitioner initially sought to recoup its attorneys’ fees in addition to court costs, see
55

Compl. ¶ 25, but ultimately abandoned that request because it did not incur any fees. See
RXD.