Joseph W.C. Murray, Jr. v. Nikola Preradovic

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
LOREN MITCHELL LEONARD L. WILLIAMS JUSTICE CENTER
MAGISTRATE IN CHANCERY 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734

Date Submitted: November 14, 2023
Date Decided: May 2, 2024

Josiah R. Wolcott, Esquire Nikola Preradovic
Connolly Gallaher LLP 234 S. Dillwyn Road
267 East Main Street Newark, DE 19711
Newark, Delaware 19711

Rade Preradovic
5 Withams Road
Newark, DE 19711

RE: Joseph W.C. Murray, Jr., et al. v. Nikola Preradovic, et al.,
C.A. No. 2023-0601-LM

Dear Counsel and Parties:

Plaintiffs Joseph Murray and Danielle Murray move to enforce a contract.

Plaintiffs allege the Defendants, Nikola Preradovic and Rade Preradovic, agreed to

sell the portion of land at issue in this adverse possession claim. In the interim,

Plaintiffs move to compel specific performance of the signed agreement. At the

heart of the issue is the parties’ disagreement about the bounds of the land to be

purchased. For the reasons explained below, I find that the Plaintiffs failed to prove

that the parties entered into an enforceable agreement because Defendants were

mistaken as to the bounds of the lands described in the agreement of sale.
Joseph W.C. Murray, Jr., et al. v. Nikola Preradovic, et al.,
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I. BACKGROUND 1

A. The Fence
In December of 2022, the Preradovices purchased the property at 234 South

Dilwyn in Newark, Delaware (the “Property”) which was in in pretty “bad shape”. 2

As a part of the purchase, they had a survey done to identify the boundaries of the

land they were purchasing.3 A few days before settlement on the property, the

Preradovices received the survey which identified that a portion of the Murray’s

fence encroached on the property. 4 Their agent contacted the previous owners of

the property and told them that the neighbors, the Murrays, had the fence installed a

year prior.5 Despite the information, the Preradovices proceeded with the sale and

engaged the attorney conducting the settlement, Vance Funk, who contacted the

Murrays about the issue in a letter dated December 21, 2022.6

1
For the purposes of this motion, the referenced facts are drawn from the complaint,
answer, and briefing in this matter. I grant the evidence the weight and credibility I find
it deserves in accordance with the standard set forth herein. Citations to the record are in
the form of Docket Item (“D. I.”) and identified by their entry number.
2
D. I. 7; It took the Preradovices approximately four (4) months to prepare the property
and for Nikola to move in. Id.
3
Id.
4
Id.
5
Id.
6
Id.
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The December 21st letter put the Plaintiffs on notice about the encroaching

fence and offered three options to cure.7 First, it gave the option for the Murrays to

leave the fence as it was and purchase the land from the Preradovices for $30,000

plus any cost for the subdivision to be started on February 1, 2023.8 Second, the

letter suggested the Murrays could move the fence to the property line by April 30,

2023. 9 Third, the letter suggested the Murrays could remove the fence altogether to

be completed by March 31, 2023. 10 Defendants requested a response by February

1, 2023.11

The Murrays officially responded to the December 21st letter in a subsequent

letter dated January 15, 2023.12 The response informed the Defendants that the fence

predated their ownership and had been in place since the year 1980, and included

several surveys purporting to support their claim.13 The Murrays counter-offered

the following solutions:

7
D. I. 10 (Exhibit 1); D. I. 23 (Exhibit A).
8
Id.
9
Id.
10
Id.
11
Id.
12
D. I. 11 (Exhibit 2); D. I. 23 (Exhibit B).
13
Id.
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1. [They] would pay a surveyor and fees to New Castle
County to have the property line redrawn to include the
disputed area of the fence and landscaping beside it up to
the street line; or
2. For a one-time payment of $3,000 [the
Preradovices] grant us [the Murrays] a permanent
easement of this area in perpetuity; or
3. [The Murrays] would file suit to acquire the
disputed land via adverse possession. 14

The letter requested a reply by February 15, 2023.15

On February 1, 2023, the Preradovices responded to the Murray’s

counteroffer by letter. 16 The Preradovices reiterated the desire to reach a mutually

agreeable solution but also stated that they were “open to have conversations

regarding the sale price of the land.”17 They explained that redrawing the property

lines would not be acceptable without “compensation to the land owner.”18 As per

the suggestion of an easement, the Preradovices rejected the idea, saying that it

would “significantly decrease” the value of the land and deter future buyers.19 As

14
Id.
15
Id.
16
D. I. 26 (Exhibit A).
17
Id.
18
Id.
19
Id.
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to the adverse possession claim, the Preradovices requested the contact information

for the Plaintiffs’ counsel to discuss. 20

B. Email Exchanges

Between February 2023 and July 2023, when the agreement was signed, the

parties engaged in a series of email exchanges regarding the encroachment. In a

March 27, 2023 email, the Preradovices confirmed to the Murray’s attorney that they

would be moving forward without an attorney. 21 In a subsequent email to Rade

Preradovic on March 31st, the Murrays’ attorney, confirmed that the Murrays would

like to purchase the “sliver of land at issue” directly from the Preradovices as

opposed to obtaining an easement. 22 He asked what Rade’s position on “a proposal

like that” would be. 23 On March 31, 2023 at 5:36pm, Nikola Preradovic offered to

sell the land to the Murrays for $10,000 or for them to rent it at $1,500 annually.24

On April 3, 2023, counsel for the Murrays responded to Nikola, informing

him that the Murrays were meeting with a surveyor to determine the “‘metes and

20
Id.
21
D. I. 14 at pg. 1.
22
Id. at pg. 2-1; the emails submitted to the Court do not flow chronologically, as such, I
read the email at the bottom of page 2 to be continued at the top of page 1.
23
Id.
24
D. I. 23 (Exhibit C); D. I. 14.
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bounds’ or property description of the sliver of land” at issue. 25 He also mentioned

that the process could take several weeks. 26 Plaintiffs’ counsel went on to confirm

that the Murrays were willing to purchase the “sliver of property” for the price of

$10,000. 27 He said that the Murrays were willing to pay for the “surveyor to create

the property description[,]” and proposed that the parties “share the cost of a deed

that will describe the transaction and describe the property as determined by the

surveyor.”28

On April 26, 2023 Plaintiffs’ counsel emailed Nikola Preradovic informing

him that the Preradovic’s settlement attorney, Vance Funk, was working on a draft

agreement of sale for the “sliver of land.”29 He told Nikola that the sale would be

contingent on New Castle County approving the “‘Property Line Adjustment’” and

that the Murrays had already hired a surveyor that was taking care of the process.30

He asked the Preradovics to be patient.31 A few days later, on April 28, 2023

25
Id.
26
Id.
27
Id.
28
Id.
29
Id.
30
D. I. 14 at pg. 4.
31
Id.
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Plaintiffs’ counsel sent Nikola Preradovic the proposed agreement of sale which

included a legal description of the property to be sold.32

On May 3, 2023 Rade Preradovic responded to Plaintiffs’ counsel with some

“comments/edits” for the agreement of sale. 33 He requested the following changes:

(1) a clause in the contract ensuring that if the purchase doesn’t go through for any

reason, the $1,000 deposit will be released to the seller; (2) a clause ensuring if the

purchase transaction doesn’t happen for any reason, the seller would build a new

fence on his property based on the original property lines; (3) that the full transfer

tax would be paid by the buyer.; and finally he asked:

(4) “Please explain to me how I know what piece of
property the description is for? I need some additional
information to agree that this is the piece of land that we
have been discussing. I can’t decipher the survey jargon
provided therefore I need whomever [sic] wrote up the
paragraph to explain what piece of land is described.”34

On May 5, 2023 Plaintiffs’ counsel provided comments to each of Rade’s

comments “in order as follows:” (1) as to the $1,000 deposit, he explained that the

agreement contained a provision where if the Buyer defaults, the Seller gets his

32
D. I. 23 (Exhibit C).
33
D. I. 26 (Exhibit A).
34
Id.
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deposit back and if the Seller defaults, then the Buyer receives the deposit.35 If both

parties go to closing, then the deposit is applied to the sale price and if the County

denies the property line adjustment, then the deposit would go back to the Buyer.

He assured Rade that this was all “very typical.”36 As to the possibility of Rade

building a new fence, Plaintiffs’ counsel warned that his clients would “seek, among

other things, compensation for any damages” he caused.37 He noted that the issue

did not need to be included in the agreement. 38 As to the transfer tax he said

“[t]ypically, the transfer tax is split evenly between the parties.” 39 He ensured Mr.

Preradovic that he would inquire about the amount of the transfer tax from the

settlement attorney but made no promises about payment.40 As to the confusion with

the legal description of the land, he said he would set up a meeting between he, Rade,

and the surveyor to “make clear what the property is to be purchased.” 41

35
Id.
36
Id.
37
Id.
38
Id.
39
Id.
40
Id.
41
Id.
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Later that day on May 5, 2023, Rade responded and stressed three points.

First, he felt the security deposit should go to him in the event the County did not

approve the transfer because he felt he deserved compensation for the harassment

and delay to his own projects due to the threat of litigation from the Murrays. 42 The

other point he made was that he was unwilling to pay any additional fees for the land

transfer because they weren’t asking to sell their land, he said, “if [the Murrays] want

to buy the property, we are willing to sell it without any additional expense.”43

Lastly, he directed, “[i]instead of setting up the meeting with the surveyor and [Mr.

Wolcott], we would rather see the newly proposed survey.”44

Plaintiffs’ counsel responded on May 12, 2023, but the full email was not

provided to the court.45 Then on May 19, 2023, Rade writes to Plaintiffs’ counsel

making him aware that he and Mr. Murray “had a friendly conversation.” He states

that Murrays made him aware that he and the petitioners had been working on

another proposed agreement; he acknowledged that he was willing to proceed with

42
Id.
43
Id.
44
Id.
45
Id.
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the transaction if the County approved it. 46 He mentioned that he and the Murrays

had discussed placing a temporary easement while they wait for the County to

respond. 47 He further stated, “[t]he options that we were in agreement with from

day one are the only options that we’ll agree to. . . either buy from us or they have

to move their fence to their boundary line.”

On May 26, 2023, Plaintiffs’ counsel sent a draft agreement of sale for Rade’s

review. 48 He informed Rade that the Murrays had decided not to move forward with

the temporary easement to avoid extra paperwork. He ensured him that he would

still receive a non-refundable deposit of $1,000, which will be used for the purchase

price of the land if the County approves the new line. 49 Rade responded later that

day in agreement with the temporary easement position. He noted that they would

not sign the agreement unless it specified that all tax transfer expenses would be

covered by the buyer. He also reiterated his request for the language to be added to

the agreement to say that if the County does not approve the transfer, the Murrays

46
Id.
47
Id.
48
Id.
49
Id.
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would have 15 days to move the fence to their boundary line. He said they would

not sign the agreement “unless those two things were addressed.” 50

C. The Agreement of Sale and Survey

On June 2, 2023, Plaintiffs’ counsel sent a revised version of the agreement

of sale to the Preradovices.51 This version said that the Murrays would pay the entire

transfer tax amount.52 In addition, the email indicated that the Murrays would

provide confirmation when the property line adjustment application had been

submitted to the County and provide the Preradovices with a copy of the proposed

survey.53 After some additional correspondence, the Plaintiffs signed the agreement

of sale on July 13, 2023 and the Defendants signed on July 18, 2023. 54 As part of

the agreement of sale, the Plaintiffs provided the Defendants with the $1,000 non-

refundable deposit that was discussed during negotiations. 55

50
Id.
51
Id.
52
Id.
53
Id.
54
D.I. 23 (Exhibit C).
55
Id. (Section 8 and 11 of Agreement of Sale).
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The signed agreement of sale incorporates by reference an “attached legal

description” of the land to be sold.56 The attachment describes the property as:

Being part of Lot 321. . . [b]eginning at a point on
the westerly side of Halifax Road (50 feet wide), said point
being further located North 05 degrees 49 minutes 23
seconds West, 58.36 feet from the northerly end of a
twenty (20) feet radius junction curve joining said
westerly side of Halifax Road with the northerly ride of
South Dilwyn Road (50’ wide);

Thence from said point of Beginning, leaving said
westerly side of Halifax Road, and by a line running
through said Lot 321, North 83 degrees 40 minutes 54
seconds West, 102.93 feet to a corner in common for herin
described lands with Lot 351;

Thence on a common line with lands of said Lot
351, North 88 degrees 17 minutes 41 seconds East, 101.41
feet to said westerly side of Halifax Road;

Thence, thereby, Southerly, along a 200.00 feet
radius curve to the left, said curve having a chord bearing
of South 03 degrees 45 minutes 51 seconds East and a
chord distance of 14.34 feet, an arc distance of 14.38 feet
to the point and place of Beginning.

Containing within said described metes and bounds
727 square feet of land, be the same more or less. 57

56
D. I. 23 (Exhibit D, Signed Agreement of Sale).
57
Id.
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On July 19, 2023, Jill Myers, the surveyor, provided a “draft of the survey and

lot line adjustment proposal” to counsel for the Plaintiffs and indicated “if all parties

agree to this submission after review, the next step will be a submission to NCC for

review.” 58 The draft survey was provided to the Defendants on July 26, 2023, for

review. 59 Rade Preradovic responded asking why the “newly proposed survey line

is not the same as the fence line?”60 Counsel for the Plaintiffs responded that he

would confirm with the surveyor, but believed the line used is the same as what “is

identified in the property description that was attached to the agreement of sale []

signed last week.”61 Defendant Rade Prepradovic’s response indicated continued

confusion between the property description and the survey, noting that from his

perspective the “discussion from the beginning was for the new line to be the fence

line.” He stated that they were “not willing to give up more of [their] property” and

“[couldn’t] move forward” until the matter was resolved.62

58
D.I. 23 (Exhibits D & F).
59
D.I. 23 (Exhibits F).
60
Id.
61
Id.
62
Id.
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On August 7, 2023, Defendant Rade Preradovic sent a follow up email asking

for “confirm[ation] that the survey will be adjusted to the fence line…”63 On August

14, 2023, counsel for Plaintiffs responded that he had “discussed in length” the

possibility of redrawing the lot line.64 He informed the Preradovices that the

Murrays would “only be willing to discuss any changes to the proposed lot line if

[the Preradovices agreed] . . . .” to assume the costs for any changes.65 As such, he

gave them three choices: (1) sign the current version of the survey based on the

property description that is included; (2) agree to pay any additional costs by the

surveyor in changing the lot line; (3) refuse to move forward with the agreement and

re-start the litigation. Rade Preradovic replied to the email 4 hours later on August

14, 2023, asking to know what the additional cost would be.66 Counsel for Plaintiffs

responded on August 15, 2023, by giving them the contact information for Jill

Meyers, the surveyor. 67 He stated that they would need to contact her directly, but

noted that his clients would “ultimately need to agree on position [sic] of the new lot

63
D.I. 23 (Exhibit G).
64
Id.
65
Id.
66
Id.
67
Id.
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line” and amend the agreement of sale.68 Further, he provided something from the

County which supported his claim that “it is recommended that fences be placed

away from the property line . . . because they would not be able to maintain the

[opposite side] of the fence facing [his] property.”

Later, on the 15th, Rade responded to Plaintiffs’ counsel indicating that “[t]he

fence line [was] the only line [they] ever considered . . ..” On August 17, 2023,

Plaintiffs’ counsel communicated his position that, under Delaware law, the

placement of the adjusted property line was “evidenced in [the Murrays’] January

15, 2023 letter” and “defined in the complaint. . ..” The parties went back and forth

until August 21, 2023, when Rade Preradovic reached out to Plaintiffs’ counsel

suggesting a 50/50 split for the cost of having the survey adjusted. 69 In an August

25, 2023 email, it was confirmed that the Murrays’ were not willing to split the

additional costs. 70 About fifteen (15) minutes later Defendants responded to

Plaintiffs’ counsel telling him to “move on with litigation.”71

68
Id.
69
Id.
70
Id.
71
Id.
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D. Procedural History

Plaintiffs filed this Complaint accompanied by a Temporary Restraining Order

(“TRO”) and Motion to Expedite, on June 7, 2023, seeking adverse possession, or

alternatively, a prescriptive easement or an easement by necessity regarding a strip

of land “bound by the straight lines connecting three pipes located at the north end

of 2334 S. Dillwyn, to which Plaintiffs claimed to have already adversely

possessed. 72 The motion to expedite and TRO were granted at a telephonic oral

argument on June 26, 2023.73

On September 18, 2023, Plaintiffs filed a Motion to Enforce a Settlement

agreement (the “Motion”) between the parties and a Motion for Contempt. 74 On

September 21, 2023, Defendants responded to the motions.75 Plaintiffs replied on

October 9, 2023.76 Following oral argument on the Motion to Enforce Settlement

Agreement and the Motion for Contempt, I denied the Motion for Contempt and

took the Enforcement motion under advisement. 77 This is my final report.

72
D. I. 1.
73
D. I. 17.
74
D. I. 23-24.
75
D. I. 26.
76
D. I. 29-30.
77
D. I. 36.
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II. ANALYSIS

A. The Agreement of Sale is Unenforceable
A settlement is an agreement to resolve a disputed issue and is designed to

prevent or end litigation. 78 “Delaware law favors settlements and treats them as

binding contracts.”79 Procedurally, “[t]he burden of proving that a valid contract

existed—and its terms—is on the party seeking to enforce the contract, as well as

the burden to convince this Court that specific performance is equitably

warranted.” 80 The standard is a preponderance of the evidence. 81 “No contract

‘results [w]hen there has been no meeting of the minds on the [essential terms] of an

agreement.’ ”82

Before me is a signed agreement that purports to sell the land at issue in this

action and effectively settle this matter. Plaintiffs argue that the contract is

78
15A C.J.S. Compromise & Settlement § 2.
79
Alston v. Pritchett, 2015 WL 849689, at *2 (Del. Feb. 26, 2015) (citation omitted); see
also Loppert v. Windsortech, Inc., 865 A.2d 1282, 1285 (Del. Ch. 2004); Rowe v. Rowe,
2002 WL 1271679, at*3 (Del. Ch. May 28, 2002).
80
United Health All., LLC v. United Med., LLC, 2013 WL 6383026, at *7 (Del. Ch. 2013).
81
Id.
82
Rust v. Rust, 2023 WL 3120545, at *7 (Del. Ch. Apr. 27, 2023), reargument denied, 2023
WL 3476501 (Del. Ch. May 16, 2023) (quoting Creech v. Melnik, 495 S.E. 2d 907, 912
(1998)).
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enforceable because it is unambiguous.83 The Agreement of Sale contains a legal

description of the land to be sold and the pro se Defendants argue that the agreement

should not be enforced because they did not agree to a material term, the description

of the land to be sold. 84 In their reply, Plaintiffs liken Defendants’ response to the

defense of unilateral mistake and say that Defendants can’t meet their burden for

reformation of the contract because Defendants can’t satisfy the heightened standard

and prove by clear and convincing evidence that the agreement should not be

performed.85 Plaintiffs also correctly note that the Defendants haven’t actually

requested reformation of the contract. 86

However, as I see it, Defendants have called into question whether the parties

had a meeting of the minds as to an essential term of the contract—the land to be

sold. This calls into question whether the parties ever had a settlement and

ultimately, whether the Agreement of Sale is enforceable.

It is Plaintiffs burden to prove that the signed agreement before me properly

memorializes the agreement between the parties, yet the evidence submitted shows

83
D. I. 23 at ⁋13.
84
D. I. 26 at ⁋5.
85
D. I. 30 at ⁋5.
86
D. I. 30 at ⁋5.
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that at the time the agreement was signed by the Defendants, on July 18, 2023, the

only description of the land available was the attachment provided with the

agreement. The description is not one easily understood by a lay person. Because

of this, Plaintiffs’ counsel, in his May 5, 2023 email, offered to meet with the

Defendants and the land surveyor to explain. An offer to which, was rejected by the

Defendants. Instead, the Defendants reiterated that they only agreed to a boundary

line of the fence, not beyond it.

The agreement also incorporates by reference the property line adjustment

plan (the “line adjustment plan”) conducted by Jill Meyers. The line adjustment plan

was created and furnished to the Defendants a week after they signed the agreement,

on July 26, 2023.87 After signing the agreement, when the Preradovices saw the line

adjustment plan, of which they did understand—unlike the legal description, they

immediately repudiated the agreement. They informed Plaintiffs’ counsel that the

line adjustment plan did not depict their understanding of the original agreement

between the parties.88

87
D. I. 30 at 5.
88
D. I. 23 (Exhibit D).
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The line adjustment plan shows the adjusted property line going through two

tree stubs currently behind the Murrays’ fence.89 Tree stubs that were created after

Plaintiffs filed this action and after the Preradovices had the trees cut down.90 The

Plaintiffs maintain that the Defendants were aware of where the line would be

because it’s the same line drawn in the complaint for this litigation and the same line

in the marked up version of the AESM plan that Plaintiffs provided in January

2023. 91 The Plaintiffs also note that the Defendants could have hired a professional

to explain what the property description says.92

The Preradovices have consistently maintained that they were only willing to

adjust their property line to the fence, and wanted payment for the land they were

already missing from their property due to the Murrays’ fence. Still willing to settle

this matter, they requested to have the property line plan adjusted, and even agreed

to pay for half of the $1200.00 fee to redraw the line. 93

89
D. I. 23 (Exhibit E).
90
D. I. 14.
91
D. I. 23 (Pl’s. Motion to Enforce at 16).
92
Id.
93
D. I. 23 at Exhibit G.
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Plaintiffs argue that they’ve always maintained the same description of the

Land, and Defendants continue to stress their willingness to sell only that land

encroached by the Murrays’ fence. Consistently, even with the signed agreement,

nothing has changed. It is clear to me that Defendants had not agreed to Plaintiffs’

description of the land at the time they signed the agreement and certainly

Defendants did not agree to sell all the land Plaintiffs requested in the Complaint. If

it were so, there would be no dispute.

Plaintiffs suggest that Defendants are hiding behind their legal ignorance.94

However from the evidence presented, it appears both parties believed they had an

agreement, for one reason or the other. Almost immediately after signing the

agreement, Defendants made it known that they did not understand the legal

description 95, but signed the agreement based on their understanding of the

agreement between the parties 96.

As for the material term of the land to be sold, the Plaintiffs have not

established by a preponderance of the evidence that the Defendants agreed to the

description as it is written or to the metes and bounds of the land originally depicted

94
D. I. 29.
95
D.I. 23 (Exhibits F).
96
D.I. 30 (Exhibits A).
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in the Complaint. Accordingly, there has been no meeting of the minds with respect

to the specific lang to be sold, and the settlement agreement is unenforceable.

i. Specific Performance of the Agreement

Plaintiffs alternatively request specific performance of the agreement. Under

Delaware law, among other things, specific performance should be granted where a

valid contract exists.97 Because I find no valid contract exists, specific performance

is unavailable here.

ii. Attorney’s Fees

To the extent the Plaintiffs seek attorney’s fees under the bad faith exception to

the American Rule, I find no bad faith and decline to award attorney’s fees.

III. CONCLUSION

For the foregoing reasons I deny Plaintiffs request to enforce the agreement

of sale, for specific performance, and for attorney’s fees. With no agreement

between the parties, the $1,000 deposit should be returned to the Plaintiffs.

97
DeMarie v. Neff, 2005 WL 89403, at *4 (Del. Ch. 2005) (quotation omitted).
Joseph W.C. Murray, Jr., et al. v. Nikola Preradovic, et al.,
C.A. No. 2023-0601-LM
May 2, 2024
Page 23 of 23

This is a final report under Court of Chancery Rule 143 and exceptions may

be filed under Court of Chancery Rule 144.

IT IS SO ORDERED.

Respectfully submitted,

/s/ Loren Mitchell

Magistrate in Chancery