Mishoe v. City of Dover Planning Commission

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WILMA MISHOE and THE :
APARTMENTS AT MISHOE COVE, :
LLC, : C.A. No.: K23A-07-002 JJC
:
Petitioners, :
:
v. :
:
CITY OF DOVER PLANNING :
COMMISSION, CITY OF DOVER, :
PATEL COLLEGE PROPERTIES, :
LLC, PATEL EXCESS COLLEGE :
ROAD, LLC, and :
JEMM INVESTORS, :
:
Respondents. :

Submitted: December 19, 2024
Decided: March 12, 2025

MEMORANDUM OPINION & ORDER

John A. Sergovic, Esquire, and Tyler J. Friedman, Esquire, Sergovic Carmean
Weidman McCartney Owens, Georgetown, Delaware, Attorneys for the Petitioners.

Glenn C. Mandalas, Esquire, Alex C. Burns, Esquire, and Luke W. Mette, Esquire,
Brockstedt Mandalas Federico, LLC, Lewes, Delaware, Attorneys for the
Respondents City of Dover Planning Commission and City of Dover.

Nicholas G. Kondraschow, Esquire, Rhodunda, Williams & Kondraschow, LLC,
Wilmington, Delaware, Attorney for the Respondent Patel College Properties, LLC,
and Respondent Excess College Road, LLC.

CLARK, R.J.
Petitioners Wilma Mishoe and the Apartments at Mishoe Cove, LLC
(collectively the “Mishoes”) filed a two-count amended petition that is the subject
of a motion to dismiss. In their filing, the Mishoes seek (1) certiorari review of a
land use decision, and (2) a declaratory judgment confirming their status as owners
of a parcel of land.
In Count I, they challenge a site development plan (the “Plan”) approved by
the City of Dover Planning Commission (the “DPC”). There, the Mishoes contend
that the DPC wrongly included their land in the Plan (the “Disputed Land”). More
specifically, the Mishoes contend the DPC erred when it approved the Plan because
(1) the Mishoes owned the Disputed Land, (2) the Disputed Land was never lawfully
dedicated to the City of Dover, and (3) the City unlawfully annexed the parcel.
Patel College Properties, LLC, and Patel Excess College Road, LLC
(collectively, the “Patels”) successfully applied for the Plan from the DPC. The
Mishoes, however, chose not to name the Patels as respondents in their original
petition. Presently, they seek to remedy that defect with an amended petition that
adds the Patels and the City of Dover as respondents.
The DPC and the City of Dover (collectively the “City Respondents”), and
the Patels, now move to dismiss Count I. They contend that the Patels are
indispensable parties whom the Mishoes cannot add to the suit because the
applicable statute of repose has expired. Furthermore, the City Respondents seek
dismissal of Count I in its entirety because the Mishoes cannot now add them as
indispensable parties.1

1
The City of Dover is also arguably a necessary, and perhaps indispensable party, because the
Mishoes contest the Disputed Land’s dedication to the City. That allegedly lawful dedication, and
the subsequent alleged annexation, provided the DPC justification to include the Disputed Land in
the Plan for access purposes. For the balance of this Memorandum Opinion, the Court will focus
only on the non-inclusion of the Patels because the parties focused primarily on them and their
omission from the claim is ultimately dispositive. The Court offers no opinion on the necessity or
2
For the reasons below, the Mishoes failed to include indispensable parties
within the time prescribed in the applicable statute of repose. Their claims also do
not relate back to the date of the original filing. Thus, the Mishoes are unable to
include the Patels as indispensable parties to Count I which must be dismissed with
prejudice.
Turning to Count II, the Mishoes request a declaration that they own the
Disputed Land by deed and record title. Alternatively, they claim ownership through
adverse possession. The City Respondents and the Patels move to dismiss that count
because (1) the Mishoes have interjected extrinsic evidence into the matter to support
their claim, and (2) it is self-apparent under the circumstances that a court will need
to consider extrinsic evidence to resolve the dispute. Those circumstances, they
assert, convert Count II to a quiet title action. That, they claim, divests the Superior
Court of subject matter jurisdiction.
For the reasons that follow, a court will need to consider extrinsic evidence
beyond the deeds that the Mishoes offer to support their claim. As a result, resolution
of the dispute is possible only through a quiet title action which falls outside the
Superior Court’s subject matter jurisdiction. Accordingly, Count II must be
dismissed without prejudice for potential transfer to the Court of Chancery.
I. PROCEDURAL AND FACTUAL BACKGROUND
The Mishoes have filed three separate civil actions to challenge the DPC’s
approval of the Plan and the procedural history is extremely complex as a result.
While the three actions challenge the same result, they attack that result from
different angles in scattered fashion.
The motions to dismiss the Mishoes’ first action, (hereinafter the “DPC
Action”) are the subject of this Opinion. In the DPC Action, the Mishoes seek (1)

indispensability of the City of Dover as a party in Count I or whether the Mishoes’ original
inclusion of the DPC as a party satisfied any such concerns as far as the City is concerned.
3
certiorari review of the DPC’s decision to approve the Plan, and (2) a declaratory
judgment confirming their ownership of the Disputed Land.2
The Mishoes’ second filed action challenged the City of Dover Board of
Adjustment’s refusal to hear an appeal below (hereinafter the “BOA Appeal”).
Below, the Mishoes attempted to appeal the DPC’s decision approving the Plan to
the BOA. The BOA, however, refused to hear it.3 In response, the Mishoes filed
the BOA Appeal in this Court.4
The Mishoes’ third action is styled as a suit under 42 U.S.C. § 1983
(hereinafter the “1983 Action”). 5 In the 1983 Action, they sue several City of Dover
officials and entities. The Mishoes contend that those persons and bodies acted in
concert to deprive them of their constitutional rights when they approved the Plan
over their objection.

2
C.A. No. K23A-07-002 JJC.
3
C.A. No. K23A-10-001 JJC. The Mishoes’ primary claim in the BOA Appeal was an
administrative appeal. Alternatively, they requested certiorari review.
4
As background on the municipal entities involved, the Dover Planning Commission and the City
of Dover Board of Adjustment each govern distinct areas of land use planning. The DPC is
primarily tasked with approving or denying conditional land uses, site development plans, and
other architectural or developmental applications. See generally DOVER, DEL., CODE OF
ORDINANCES app’x. B, art. 10, §§ 1–4 (2011). When approving or denying any such use,
application, or plan, the DPC “shall take into consideration the public health, safety and welfare,
[and] the comfort and convenience of the public in general and of the residents of the immediate
neighborhood in particular.” Id. § 1. Separate and apart, the BOA primarily oversees the granting
of variances—i.e., “a license or official authorization to depart from a zoning law.” See generally
DOVER, DEL., CODE OF ORDINANCES app’x. B, art. 9, §§ 1–3 (2010); VARIANCE, Black’s Law
Dictionary (12th ed. 2024). The BOA has the authority to grant “variances from provisions of the
zoning ordinance that are not contrary to public interest where the board determines that a literal
interpretation of the zoning ordinance would result in undue hardship or exceptional practical
difficulties to the applicant.” Id. § 2.1. When doing so, the BOA determines whether “the spirit
of the zoning ordinance is observed and substantial justice [is] done.” Id. The BOA also has
certain appellate authority under 22 Del. C. §324 and a corresponding City ordinance. As the
Court explained in an earlier oral decision, the BOA’s authority to hear appeals is limited to appeals
of decisions of “administrative officers” of the City which will be addressed in the discussion to
follow. There was no right of appeal from the DPC to the BOA for the issues arising in this case.
5
C.A. No. K23C-12-014 JJC.
4
The following facts are those alleged in the amended petition in the DPC
Action. In addition, some facts that follow derive from the somewhat expanded
record necessary to evaluate subject matter jurisdiction. Those included for the latter
purpose are considered only for that limited purpose.
Turning to the core dispute, on June 20, 2023, the DPC approved the Plan as
submitted by the Patels, with certain adjustments.6 The DPC then published its
approval of the Plan on July 28, 2023.7 The Plan provides for the construction of
two six-story mid-rise apartment buildings by the Patels, to be known as the College
Road Apartments, located “north of, but not adjacent to College Road, and east of
Railroad corridor in the vicinity of Raymond Street, Railroad Avenue, and Grove
Street.”8
The Mishoes, who currently own and operate an apartment complex next to
the Patels’ proposed apartments, opposed the Plan before the DPC. They contended
below, and still contend, that the DPC unlawfully swept their property into the Plan
to provide an access road for the Patels’ proposed apartments.9 The Mishoes also
contended before the DPC that the Disputed Land had never been lawfully dedicated
to the City of Dover. The Mishoes further asserted that the Disputed Land was never
properly annexed by the City.10
Regarding the issue of ownership between the Mishoes and the City of Dover,
Dover’s Solicitor had opined that the Disputed Land was dedicated to the City by

6
Am. Pet. for Writ of Cert. at ¶ 1 (D.I. 46). The date of publishing becomes the anchor date for
the Rule 12(b)(6) portion of the Court’s analysis.
7
Mot. to Dismiss, Ex. B (D.I. 21)
8
The parcel identification numbers for the Patels’ property are ED-05-067.00-02-53.00-000, ED-
05-067.00-02-54.00-000, ED-05-067.00-02-55.00-000, and ED-05-067.00-02-56.00-000. Id.
9
The parcel identification number for the Mishoes’ property is 2-00-067.00-01-17.00/000. Id. at
¶ 2. Kent County Tax Mapping also identifies this property as “Parcel 17.” Id.
10
Id. at ¶ 8.
5
operation of law more than one hundred years ago.11 In a letter preceding the DPC’s
decision regarding the Plan, the Solicitor provided the following opinion:
[t]he portions of these streets subject to the annexation referendum,
were laid out in a recorded plot of the College Settlement Company
plotted and recorded in 1899. By recording the plot these streets
automatically became dedicated to public use, and ownership would
have been transferred to the City of Dover confirmed by prior
annexations from 1973 to 2006.12
Pursuant to City of Dover Ordinance No. 2021-23, the City of Dover amended its
zoning map to include the Disputed Land prior to the entry of the Plan.13
At a public hearing, the DPC considered the Solicitor’s opinion, the
assumption that the land was within City limits, and the DPC attorney’s opinion that
the DPC had no jurisdiction to resolve the ownership dispute. It then approved the
Plan over the Mishoes’ objections.14
Almost immediately after the DPC issued its decision, the Mishoes attempted
to appeal the decision to the City of Dover Board of Adjustment (hereinafter the
“BOA”) under 22 Del. C. § 324.15 With the appeal to the BOA pending for one day,
the Mishoes filed their first action in Superior Court—the DPC Action.16 In the DPC

11
Id. at ¶ 7; Stipulated R., Subfolder 6, DPC Meeting 4-17-23, S-23-06.
12
Compl., Ex. C (D.I. 1 in K23C-12-014).
13
See DOVER, DEL., ORDINANCE No. 2021-23 (Dec. 13, 2021) (providing “[t]hat from and after
the passage and approval of this ordinance the Zoning Map of the City of Dover have been
amended by including Improved and Unimproved Right-of-Way on that property located at
Raymond Street (aka Jason Street), Railroad Avenue, and Grove Street (Right-of-Way located
northeast of the intersection of College Road and the Lands of Delmarva Railroad) consisting of
1.6791 acres”).
14
Stipulated R., Subfolder 7, DPC Meeting 6-20-23, S-23-06.
15
Notice of Appeal (D.I. 1 in K23A-10-001 JJC). 22 Del. C. § 324 provides that “[a]ppeals to the
board of adjustment may be taken by any person aggrieved or by any officer, department, board or
bureau of the municipality affected by any decision of the administrative officer. Such appeal shall
be taken within a reasonable time as provided by the rules of the board by filing with the officer
from whom the appeal is taken and with the board a notice of appeal specifying the grounds
thereof.”
16
Pet. for Writ of Cert. (D.I. 1).
6
Action, the Mishoes seek to (1) reverse the DPC’s approval of the Plan via a writ of
certiorari,17 and (2) obtain a declaratory judgment confirming that they own the
Disputed Land by record deed, or alternatively through adverse possession.
The Mishoes, however, named only DPC and JEMM Investors (hereinafter
“JEMM”) as respondents in their original petition in the DPC Action. There, the
Mishoes alleged JEMM to be the prior owner of the Disputed Land and included
them as a party for that reason. JEMM is listed as a grantor, along with Eastern
Disposal, Inc., in a 1980 quitclaim deed covering the Disputed Land, with the
grantees being Luna I. and Hattie B. Mishoe.18 The Mishoes contend that their title
derives from a later recorded 1994 deed that grants them title to the Disputed Land.
The Mishoes concede in their amended petition, however, that their title derives
more remotely from the 1980 quitclaim deed. To that end, they allege in their
petition that “[i]t is unclear whether [Luna and Hattie] Mishoe or JEMM had proper
title to the [Disputed Land].”19 That 1980 quitclaim deed, although obviously not
an original deed in any chain of title, was nevertheless presented as such for purposes
of Count II.
Even though the Patels presented the Plan that the Mishoes now challenge,
the Mishoes did not initially include the Patels in the DPC Action. As a result, the
DPC moved to dismiss Count I because the Mishoes did not include them. The DPC
also moved to dismiss Count II in the original petition because the DPC contended
that the Court had no subject matter jurisdiction over the claim.

17
Under 10 Del. C. § 562, “[t]he Superior Court may frame and issue all remedial writs, including
writs of habeas corpus and certiorari, or other process, necessary for bringing the actions in that
Court to trial and for carrying the judgments of the Court into execution.” The Superior Court has
concomitant common law jurisdiction to do so, as well.
18
Mot. for Entry of Default J., Ex. A (D.I. 35).
19
D.I. 1, at ¶ 17.
7
The Mishoes then filed their second action in the Superior Court—the BOA
Appeal.20 While the DPC Action pended in this Court, the BOA refused to accept
the Mishoes’ appeal from the DPC. In response, the Mishoes filed the BOA Appeal
to challenge that refusal. As a remedy, the Mishoes asked the Court to remand the
matter to the BOA and to direct it to consider their appeal.
The overlap and potential for inconsistency between the DPC Action and the
newly filed BOA Appeal became immediately apparent. For that reason, the Court
held an office conference to discuss the most sensible way to order the two actions.
Shortly thereafter, the Court approved the parties’ stipulation to address the BOA
Appeal before considering the DPC Action.21
Third and finally, the Mishoes filed the 1983 Action. In the 1983 Action, they
sue the DPC, Dover City Council, and others, alleging that they deprived them of
their property rights when approving the Plan.22 The parties then stipulated to
staying the 1983 Action as well. 23 As a result, the order of the litigation settled upon
resolving the BOA Appeal first, the DPC Action second, and the Section 1983 Action
third.
With the order set, the Court considered the BOA Appeal and dismissed it by
oral decision after briefing and argument.24 The Court explained in its decision why
the BOA had no jurisdiction to hear the Mishoes’ appeal and why a common law
writ of certiorari in the Superior Court would be the only mechanism available to
review the DPC’s decision.25 An administrative appeal was unavailable in that case

20
D.I. 46, at ¶ 4; see C.A. No. K23A-10-001 JJC (wherein the Mishoes appealed the BOA’s
decision and requested that the Court either remand the matter to the BOA or order the BOA to
reverse the DPC’s approval of the Plan).
21
Tr. at 9:4–10 (D.I. 42 in K23C-10-001 JJC).
22
See C.A. No. K23C-12-014 JJC.
23
Stipulation to Stay Proceedings (D.I 27 in K23C-12-014 JJC).
24
Order Dismissing Appeal (D.I. 39 in K23C-10-001 JJC).
25
Tr. at 8:3–6 (D.I. 42 in K23C-10-001 JJC).
8
because an administrative agency, such as the BOA, has no power to hear an appeal
from another municipal agency absent legislative authorization to do so.26 Thus, the
BOA committed no error of law by refusing to accept the appeal because there was
no such legislative authorization.27 The Court then dismissed the BOA Appeal.28
The Court then turned to the DPC Action. It considered the motion to dismiss
the petition in its original form—that is, before the Mishoes’ current attempt to add
the Patels and the City of Dover as respondents. The DPC asked the Court to dismiss
Count I in the original petition because it did not include the Patels. When doing so,
the DPC emphasized that the Patels will benefit from the Plan and should have been
included in any appeal challenging its final disposition. The Mishoes countered that
they believed they owned the Disputed Land, which was the subject of the dispute,
and need not have included the Patels in the claim because they were not the
“landowners.” In other words, the Mishoes contended that only they and the DPC
were necessary parties.
In a second oral decision, the Court explained why the Patels were necessary
parties and should have been included as respondents.29 Given that defect, and the
fact that the relevant statute of repose had long since lapsed,30 the focus turned to
whether an amendment to include the Patels would be futile. After considering the

26
Id. Pursuant to the plain language of 22 Del. C. § 324, the DPC, a wholly distinct municipal
decision-making body, is not an administrative officer. Accordingly, absent legislative intent to
the contrary (meaning from the General Assembly or perhaps the Dover City Council), the BOA
does not possess jurisdiction to hear an appeal from a decision of the DPC.
27
Tr. at 8:7–12 (D.I. 42 in K23C-10-001 JJC).
28
D.I. 39 in K23C-10-001 JJC.
29
Tr. at 4:16–5:16 (D.I. 45).
30
Pursuant to 10 Del. C. § 8126(b), “[n]o action, suit or proceeding in any court, whether in law
or equity or otherwise, in which the legality of any action of the appropriate county or municipal
body finally granting or denying approval of a final or record plan submitted under the subdivision
and land development regulations of such county or municipality is challenged . . . shall be brought
after the expiration of 60 days from the date of publication in a newspaper of general circulation
in the county or municipality in which such action occurred, of notice of such final approval or
denial of such final or record plan.”
9
parties’ positions, the Court declined to find futility at that point because of Superior
Court Rule 15’s relation back mechanism.31 In the interests of judicial economy, and
to mitigate delay, the Court provided the Mishoes thirty days to amend their petition
to add necessary parties, but emphasized that Count I would be dismissed with
prejudice if they did not.32 The Court also expressly recognized that any party who
the Mishoes might add by amendment would retain the right to oppose the
amendment’s relation back.33
DPC further moved to dismiss Count II of the original petition for lack of
subject matter jurisdiction. To that end, DPC contended that Count II inescapably
implicated the need to examine extrinsic evidence. That, DPC contended, made the
claim a quiet title action cognizable only in equity. In response, the Mishoes relied
upon the preference of Delaware courts to adjudicate title disputes at law, rather than
in equity. They also rested on the remedies at law they had requested in Count II—
a declaration that they own the Disputed Land because they possessed clear title, or
in the alternative, adversely possessed it.
After the Court considered DPC’s motion to dismiss Count II, the Court
declined to find that it had no subject matter jurisdiction over the claim because the
Mishoes pled two remedies at law.34 As a result, the Court denied DPC’s motion to
dismiss Count II with the qualification that the Court would lack jurisdiction if the
need to rely upon extrinsic evidence became apparent.35
The Mishoes then filed an amended petition. In it, they added the Patels and
the City of Dover as respondents.36 Now, the newly added parties move to dismiss

31
D.I. 45, at 11:5–12.
32
Id. at 14:9–15:3.
33
Id. at 8:11–16.
34
Id. at 13:9–14.
35
Id. at 13:1–8.
36
D.I. 46.
10
the claims against them. They contend that the claims against them in Count I are
untimely under the statute of repose because they do not relate back to the original
filing. They also contend, as the DPC did during its motion to dismiss the original
petition, that the Superior Court has no subject matter jurisdiction over Count II.
On December 9th and 19th of 2024, the Court held oral argument on the
motions to dismiss the amended petition. By then, the inquiry had settled upon (1)
whether the attempt to add the Patels as respondents related back to the initial filing
of more than one year prior; and (2) whether the Court had subject matter jurisdiction
over Count II because (a) the deeds relied upon by the Mishoes do not alone
demonstrate clear title to the Disputed Land, and (b) the Mishoes have already
interjected significant extrinsic evidence into the inquiry.
As a final procedural matter, the Mishoes moved for default judgment against
JEMM while the Court navigated the above-mentioned filings.37 In their motion for
default judgment, the Mishoes seek a declaratory judgment against JEMM clarifying
that they own the land based upon a clear chain of title, or alternatively through
adverse possession. All responding parties oppose the entry of judgment by default.
In part, they allege possible self-dealing between the Mishoes and JEMM. They
further contend that the entry of judgment against JEMM, who is a possible prior
owner of the property, would unfairly prejudice their ability to present extrinsic
evidence as to ownership. That effect, they assert, would unfairly prejudice their
attempt to defend the Plan’s lawfulness.
II. APPLICABLE STANDARDS
The City Respondents and the Patels move to dismiss Count I of the amended
petition on two bases: (1) the Patels are indispensable parties to certiorari review,
and (2) it is impossible to include the Patels because the applicable statute of repose

37
D.I. 35.
11
bars the Mishoes from doing so. The City Respondents and the Patels also move to
dismiss Count II for lack of subject matter jurisdiction. The following standards—
which are placed in the context of the current motions and addressed in the order
they are discussed—control the Court’s decision.38
On a Rule 12(b)(7) motion to dismiss for failure to join a party under Rule 19,
the Court must determine whether the joinder of missing parties is needed for just
adjudication. That inquiry is threefold.
First, the Court must determine whether the missing party who the petitioner
seeks to join is a “necessary party.”39 A party is regarded as necessary if:
(1) in the person’s absence complete relief cannot be accorded among
those already parties, or (2) the person claims an interest relating to the
subject of the action and is so situated that the disposition of the action
in the person's absence may (i) as a practical matter impair or impede
the person's ability to protect that interest or (ii) leave any of the persons
already parties subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations by reason of the claimed
interest.40
Second, Rule 19(b) requires the Court to determine if the necessary party can
now be added to the action. Rule 12(b)(6) becomes relevant to this part of the
analysis because of the statute of repose. Namely, the Court has no power to consider
challenges to the actions of an agency or governmental subdivision after the statutory
period for seeking review has expired.41 In that way, an applicable statute of repose

38
The Court notes that when applying these standards, the scope of the Court’s review is at times
expanded for Superior Court Civil Rule 12(b)(1) purposes and at other times constrained under
Rule 12(b)(6) and 12(b)(7).
39
Super. Ct. Civ. R. 19(a).
40
Id.
41
A statute of repose “bar[s] any suit that is brought after a specified time since the defendant
acted, even if this period ends before the plaintiff has suffered a resulting injury.” STATUTE OF
REPOSE, Black’s Law Dictionary (12th ed. 2024). “[T]he period contained in a statute of repose
begins when a specific event occurs, regardless of whether a cause of action has accrued or whether
any injury has resulted.” 54 C.J.S. Limitations of Actions § 4, at 20–21 (1987) (emphasis added).
12
limits the time by which an appeal or challenge can be filed. In other words, a
petitioner does not state a claim upon which relief may be granted after that period
has passed.
Third and finally, if a statute of repose precludes adding a party, the Court
must determine if the missing party is needed for just adjudication. If the party is a
necessary one and joinder is not possible, the final focus becomes whether the action
can proceed in that party’s absence. Put differently, is the party indispensable? To
answer that question, the Court must consider “whether in equity and good
conscience the action should proceed among the parties before it, or should be
dismissed, the absent person being thus regarded as indispensable.”42
The question of indispensability is answered after considering the four factors
enumerated in Rule 19(b). Those factors include:
[f]irst, to what extent a judgment rendered in the person’s absence
might be prejudicial to the person or those already parties; second, the
extent to which, by protective provisions in the judgment, by the
shaping of relief, or other measures, the prejudice can be lessened or
avoided; third, whether a judgment rendered in the person’s absence
will be adequate; [and] fourth, whether the plaintiff will have an
adequate remedy if the action is dismissed for nonjoinder.43
After applying the factors, if the claim cannot continue without the necessary party,
then it must be dismissed.
Finally, the Respondents’ challenges to Count II based upon subject matter
jurisdiction fall under Superior Court Civil Rule 12(b)(1). It is axiomatic that
“because subject matter jurisdiction is non-waivable, courts have an independent
obligation to satisfy themselves of jurisdiction if it is in doubt.” 44 As the controller

42
Super. Ct. Civ. R. 19(b).
43
Id.
44
Appriva S’holder Litig. Co., LLC v. EV3, Inc., 937 A.2d 1275, 1284 (Del. 2007) (quoting Nesbit
v. Gears Unlimited, Inc., 347 F.3d 72, 76–77 (3d. Cir.2003)).
13
of a complaint or a petition, the plaintiffs—or here, the petitioners—bear the burden
of demonstrating subject matter jurisdiction.45 When reviewing the Court’s subject
matter jurisdiction over Count II, the Court may consider facts and documents
beyond the pleadings.46
III. ANALYSIS
As explained below, the Patels are necessary parties to Count I. Here, the
Mishoes (1) failed to include them within the time provided in the statute of repose
for challenging land use and planning decisions, (2) the attempted amendment to add
them now does not relate back, and (3) the original claim against the DPC in Count
I cannot proceed in equity and good conscience without the Patels. As a result,
Count I must be dismissed with prejudice.
As to Count II, the deeds the Mishoes rely upon do not demonstrate ownership
by clear title through any reasonable set of circumstances susceptible of proof.
Furthermore, the Mishoes have attached significant extrinsic evidence to their
petition, their amended petition, the briefing, and their motion for default judgment
against JEMM. In combination, their pleadings and exhibits demonstrate the need
for a court to consider extrinsic evidence to determine who owns the Disputed Land.
While the Mishoes’ may later be determined to be the owners of the Disputed Land,
they can neither prevail, nor fail to prevail, based upon a facial review of the deeds
they identify as supporting their claim. Only a quiet title action heard in the Court
of Chancery can resolve the dispute.
Finally, as also explained below, the Mishoes alternative claim for adverse
possession falls within the Court of Chancery’s ancillary jurisdiction. That claim

45
FeraDyne Outdoors, LLC v. Reaser, 2023 WL 9094423, at *5 (Del. Super. Dec. 20,
2023) (citing Hurtt v. Del Frisco’s Rest. Grp., 2019 WL 2516763, at *2 (Del. Super. June 18,
2019)).
46
Agahi v. Kelly, 2024 WL 1134048, at *3 (Del. Super. Mar. 15, 2024) (citing FeraDyne Outdoors,
LLC, 2023 WL 9094423, at *5).
14
will implicate much of the same evidence necessary in a quiet title action and cannot
practically be severed under the circumstances of this case. As a result, Count II
must be dismissed in its entirety to avoid possible inconsistent and incompatible
results.
A. Count I must be dismissed because the Patels are indispensable parties
who cannot feasibly be joined.
The City Respondents and the Patels seek to dismiss Count I of the Mishoes’
amended petition for failure to join indispensable parties. They rely on the premise
that a landowner who is directly affected by an appellate ruling on the merits is a
necessary party to that appellate action.47 Here, they emphasize that the Mishoes did
not attempt to add the Patels to the action until almost a year after the statute of
repose expired. In response, the Mishoes emphasize that they believe themselves to
be the only relevant landowners because they, not the Patels, own the Disputed Land.
At the highest level, the Mishoes view is too narrow because it fails to
acknowledge that the Patels are landowners who benefitted from the Plan that the
Mishoes now challenge. More granularly, their view is too narrow for two specific
reasons: controlling authority has already considered the issue, and a straightforward
application of Superior Court Civil Rule 19(a)(2) demonstrates that the Patels are
necessary parties.
First, the Delaware Supreme Court directs that “all parties to the litigation,
who would be directly affected by a ruling on the merits of an appeal, should be

47
It is well settled in Delaware that any party to an appeal who would be directly affected by an
appellate ruling should be made a party thereto. Covey v. Cnty. Bd. of Adjustment of Sussex Cnty.,
2002 WL 970469, at *2 (Del. Super. May 7, 2002) (citing State Personnel Comm'n v. Howard, 420
A.2d 135, 137 (Del.1980)). The Court has no discretion to disregard this rule because it “is a
fundamental question of jurisdiction, which cannot be waived by the parties or disregarded by the
appellate court, and the latter has no power to hear and determine a case unless all the parties
directly affected by the judgment . . . are brought before it.” Sussex Med. Invs., L.P. v. Delaware
Health Res. Bd., 1997 WL 524065, at *2 (Del. Super. Apr. 8, 1997) (quoting 4 C.J.S. Appeal and
Error § 232 (1993)).
15
made party to the appellate proceedings.”48 Given that recognition, “the failure to
name an indispensable party to an appeal from an administrative agency to the
Superior Court is not an amendable defect.”49 Granted, a petition for a common law
writ of certiorari differs in many respects from an appeal. Nevertheless, the
beneficiary of that successful land use application must be included in a certiorari
action for the same reason he or she must be included in an appeal.50 For that reason,
the question of whether it was necessary to include the Patels in this appeal can be
answered through a shorthand analysis—that is, a successful applicant for a land
use application must have the opportunity to participate in an appeal or petition for
writ of certiorari seeking to overturn that approval. Due process guarantees no less.
Second, an independent application of Rule 19(a)(2) compels the same result.
Namely, the omission of the Patels—the successful applicants—from the amended
petition would not merely impair their ability to protect their interest in the approved
Plan. It would preclude their ability to do so. For that reason, the Patels are
necessary parties to the action. Based upon mandatory authority and a

48
CCS Inv’rs., LLC v. Brown, 977 A.2d 301, 322 (Del. 2009) (citations omitted); see also Preston
v. Bd. of Adjustment of New Castle Cnty., 772 A.2d 787, 789–90 (Del. 2001).
49
Hackett v. Bd. of Adjustment of City of Rehoboth Beach, 794 A.2d 596, 598 (Del. 2002); see
Allmaras v. Bd. of Adjustment of Sussex Cnty., 248 A.3d 105, 107 (Del. Super. 2019), aff’d, 238
A.3d 142 (Del. 2020) (recognizing that “Delaware courts [have] routinely held that the failure to
timely join the landowner is a fatal jurisdictional defect”); Schlosser and Dennis, LLC v. City of
Newark, 2016 WL 2766119, at *4 (Del. Super. May 9. 2016) (explaining that “[t]he notice of
appeal cannot be amended to add a party after the appeal period has lapsed because the time period
for perfecting an appeal is jurisdictional”). Because the Superior Court and Supreme Court
decisions in Allmaras will be addressed herein, for ease of reference, the Court will designate the
former as “Allmaras I” and the latter as “Allmaras II.”
50
See Hackett, 794 A.2d at 598 (affirming the Superior Court’s ruling that “the failure to name the
property owner was a fatal defect in the appellate review process . . .”); CCS Inv’rs, LLC, 977 A.2d
at 322 (holding that “the owner of land that is the subject of a decision of a municipal board of
adjustment is a necessary party that must be joined in an appeal of that decision”).
16
straightforward application of Rule 19(a)(2), the Patels must be made parties and
joined if feasible.51
The next relevant inquiry becomes whether the Patels, as necessary parties,
can now be joined by amendment. Section 8126 of Title 10 of the Delaware Code
provides the statute of repose that prescribes the time limit during which county and
municipal zoning and planning actions may be challenged. Specifically, subsection
(b) of Section 8126 prescribes a sixty-day period for challenging municipal actions,
such as the approval of a development plan.52 That sixty-day period begins on the
day the municipality publishes the result—here, July 28, 2023.53
In this case, the Mishoes filed their initial petition in the DPC Action on July
19, 2023. That occurred before the DPC published its decision and demonstrates
that they had actual notice of the decision even before publication. The Mishoes,
however, did not file their amended petition to add the Patels as respondents until
July 2024. That occurred more than nine months after the statutory period had
passed.
Consequently, the Patels may only be joined at this juncture if the claims in
the amended petition relate back to the original filing. Under appropriate
circumstances, Superior Court Civil Rule 15 permits amended pleadings to “relate
back” to the original filing date to satisfy an applicable statute of repose or
limitations.54 Germanely, Rule 15(c)’s relation back principles apply to amendments

51
See also D.I. 45 (providing the Court’s earlier oral decision explaining why the Patels must be
joined if feasible).
52
10 Del. C. § 8126(b).
53
Mot. to Dismiss, Ex. B (D.I. 21).
54
Id.
17
of all pleadings, including petitions for writs of certiorari filed to challenge land use
decisions.55
Under Superior Court Civil Rule 15(c)(3), an amended pleading that adds a
party relates back to the original filing date when three requirements are satisfied:
(i) the claim or defense asserted in the amended pleading arose out of
the conduct, transaction, or occurrence set forth or attempted to be set
forth in the original pleading;
(ii) the party to be brought in by amendment has received such notice
of the pending action, within 120 days of the expiration of the statutory
period, that the party will not be prejudiced in maintaining a defense on
the merits; and
(iii) the party to be brought in by amendment knew or should have
known that, but for a mistake concerning the identity of the proper
party, the action would have been brought against the party.56
Here, the claims against the Patels meet the first and second requirements.57
The parties disagree, however, regarding whether the Mishoes meet Rule
15(c)(3)’s reference in the third requirement to “a mistake concerning the identity of
the proper party.” The Patels contend that the Mishoes knew exactly who they were.
They frame the Mishoes mistake as a misunderstanding about who they should have
included in the first instance.58 To this end, the Patels contest the relation back
because they insist Rule 15(c)(3)(B) does not countenance such a mistake.59 The

55
See Super. Ct. Civ. R. 15(c) (“[a]n amendment of a pleading relates back”); see also Brown v.
City of Wilmington Zoning Bd. of Adjustment, 2007 WL 1828261 (Del. Super. June 25, 2007)
(recognizing that the relation back principles of Rule 15(c) apply to petitions for certiorari review).
56
Allmaras II, 2020 WL 4669008, at *2 (Del. Aug. 7, 2020) (citing Super. Ct. Civ. R. 15(c)).
57
The Patels did not dispute the first requirement. While they dispute the second, they do not
contest that their attorney, who represented them in the application before the DPC and whose law
firm acted as their registered agent, received a copy of the original petition from the Mishoes within
120 days of the expiration of the statutory period, on August 17, 2023. Accordingly, the Mishoes
demonstrate, for Rule 12(b)(6) purposes, that they provided notice of their petition for writ of
certiorari to the Patels, care of their registered agent, Parkway Law, within 120 days of the
expiration of the statute of repose. Answering Br. at 27 (D.I. 72).
58
D.I. 66, at 16.
59
Id.
18
Mishoes counter with the admission that they misunderstood which landowner
should have been included in the original petition. That is, they believed themselves
to be the only relevant landowner necessary for the action.60 Such a mistake, they
argue, is countenanced by the Rule.
There is a divergence of authority nationally regarding the nature of a mistake
necessary to satisfy this requirement.61 Some jurisdictions, including the federal
system, take a lenient approach and focus on whether the defendant knew or should
have known there was a mistake.62 That more lenient approach also applies a
broader definition of what is considered a mistake. It includes any “error,
misconception, or misunderstanding, [or] erroneous belief.”63 In the federal system,
the United States Supreme Court held in Krupski v. Costa Crociere S.p.A. that when
a plaintiff sues the wrong party based on her own mistake, she has made a “mistake
concerning the proper party’s identity” even if she had full knowledge that the
relevant potential defendant existed. Under the approach articulated in Krupski, the
reasonableness of the mistake has no relevance.64 Frankly, were the Court to apply
the Krupski decision’s approach in this case, the Mishoes’ amendment would relate
back.
Other jurisdictions apply a much stricter approach. They focus solely on the
state of mind of the plaintiff. They further interpret their version of Rule 15(c) to

60
D.I. 72, at 31.
61
See 6A Charles Alan Wright, et al., Federal Practice and Procedure § 1498.3 (3d ed.)
(recognizing that the “mistake concerning the proper party’s identity” requirement has caused
problems amongst courts because “not all mistakes by plaintiffs are covered by the rule”); see also
61B Am. Jur. 2d Pleading § 754 (2025) (recognizing that within the Federal Rule 15 context, the
term “mistake” has been the source of jurisdictional conflict regarding the type of mistake
contemplated).
62
Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 548 (2010).
63
Id. (quoting Black’s Law Dictionary 1092 (9th ed. 2009)).
64
See Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 549 (2010) (explaining that under Federal
Rule 15(c)(1)(C)(ii), which the Delaware Rules of Civil Procedure mirror, “[t]he reasonableness
of the mistake is not itself at issue”).
19
apply only to circumstances where the plaintiff misunderstood the proper party’s true
identity, as opposed to situations where the plaintiff knew the proper party existed
but mistakenly chose not to include that party.65
Delaware courts have consistently applied the stricter approach.66 In fact, the
Delaware Supreme Court reaffirmed Delaware’s commitment to this approach even
after the United States Supreme Court issued its decision in Krupski. At first, the
Delaware Supreme Court declined the opportunity to revisit Delaware’s approach to
the issue in DiFebo v. Board of Adjustment of New Castle County.67 It did so there
because the parties failed to timely raise the issue.68 In DiFebo, however, the Court
nevertheless expressed its willingness to reconsider the matter, in light of Krupski,
if properly raised in a future proceeding.69
More recently, the Delaware Supreme Court declined to change Delaware’s
approach when presented the opportunity in an appeal from the Superior Court.
Namely, in Allmaras v. BOA (“Allmaras I”), the Superior Court considered a
challenge to the Sussex County Board of Adjustment’s approval of an application

65
See 61B Am. Jur. 2d Pleading § 754 (2025) (explaining that in rejecting the more lenient
approach, the stricter rule followed by other jurisdictions holds that “an amendment will not relate
back where the plaintiff made no mistake concerning the defendant's identity, but merely chose the
wrong party to sue, or sued a nonexistent person”); see e.g., Wilson v. U.S. Gov’t, 23 F.3d 559, 563
(1st Cir. 1994) (finding that an amended pleading did not relate back because Rule 15(c)(3)
“permits an amendment to relate back only where there has been an error made concerning the
identity of the proper party and where that party is chargeable with knowledge of the mistake, but
it does not permit relation back where, as here, there is a lack of knowledge of the proper party”
(citation omitted)); Manildra Mill. Corp. v. Ogilvie Mills, Inc., 746 F. Supp. 40 (D. Kan. 1990)
(holding that relation back did not apply because the plaintiff was aware of the potential defendant,
but “simply unsure about that party’s potential liability”).
66
See e.g., CCS Inv’rs, LLC, 977 A.2d at 313 (explaining that Delaware follows the strict approach
to Rule 15(c)’s mistaken identity requirement); Brown, 2007 WL 1828261, at *11 (stating
“Delaware courts follow the strict approach”).
67
132 A.3d 1154 (Del. 2016).
68
Id. at 1159.
69
Id.
20
for a special use exception to operate a convalescent home.70 There, the Board
granted the application.71 An aggrieved party, who opposed the application below,
filed a petition for writ of certiorari in the Superior Court, but named only the Board
as a respondent.72
The Board then moved to dismiss the petition. It contended that the Superior
Court had no jurisdiction over the matter because the petitioners failed to name the
landowner, who was the successful applicant below. In response, the petitioner
sought leave to amend their petition to remedy the defect by naming the landowner
and have it “relate-back” as a timely filing under Rule 15(c).73
The Superior Court then considered whether the petitioner knew the
landowner’s identity. The court relied on the Delaware Supreme Court’s holding in
DiFebo for the proper framework.74 In that way, the court applied longstanding
Delaware precedent—the “strict approach”—to what constitutes a mistake under
Rule 15(c). Specifically,
a mistake occurs when the petitioner makes a true mistake as to the
identity or name of the proper party as opposed to where the plaintiff
merely chose the wrong party to sue. That is, Delaware courts generally
decline to find a mistake when the plaintiff cannot demonstrate an intent
to include the unnamed party before the limitations period expired but
will find a mistake if the plaintiff intended to sue certain parties but was
misled as to the identity of those parties.75
The court in Allmaras I then found that the petitioners had made no mistake
regarding the landowner’s identity.76 As in the Mishoes’ case, the Allmaras
petitioners had “made a mistake as to whether or not the clearly identified

70
248 A.3d 105, 107 (Del. Super. 2019), aff’d, 238 A.3d 142 (Del. 2020).
71
Id.
72
Id.
73
Id.
74
Id. at 109.
75
DiFebo, 132 A.3d at 1158 (quoting CCS Inv’rs, LLC, 977 A.2d at 313).
76
Allmaras I, 248 A.3d at 110.
21
[l]andowner had to be named as a party in the first instance.”77 As a result, the court
denied the petitioners’ motion to amend and granted the Board’s motion to dismiss
because the movant failed to satisfy the “mistaken identity” requirement of Rule
15(c)(3)(B).78
In Allmaras II, the Delaware Supreme Court affirmed the lower court’s
application of the strict requirement.79 When it did, it expressly declined to apply
Krupski in a manner that changed Delaware’s approach.80 That settles the matter as
to whether the Krupski decision regarding the parallel federal rule changes
Delaware’s position. It does not. The nature of relevant mistakes under Rule
15(c)(3)(B) is limited in the strictest sense to mistakes regarding the identity of the
proper party, as opposed to mistakes where a plaintiff misunderstood who he should
have sued.81
In this case, the Mishoes knew the Patels’ identity well before they filed the
DPC Action. At the outset, the Mishoes appeared adversely to the Patels before the
DPC.82 The Mishoes’ original petition further demonstrates that they harbored no
mistake about the Patels’ identity. There, they alleged that: “[p]etitioners are the
persons aggrieved by a decision of the City of Dover Planning Commission under a
resolution voted upon on June 20, 2023 . . . which decision allegedly approved the
application of Patel College Properties, LLC and Patel Excess College Road, LLC

77
Id.; see also Vondrasek v. Board of Adjustment of the City of Wilmington, 2017 WL 1735402
(Del. Super. May 1, 2017) (holding, under a similar set of facts as in DiFebo, that appellants’
petition for writ of certiorari did not relate back because “the mistake of not naming the
[land]owner was not a mistake recognized under Rule 15 in Delaware”).
78
Allmaras I, 248 A.3d at 110.
79
Allmaras II, 2020 WL 4669008, at *2
80
Id.
81
Id.
82
See D.I. 72, at 3, 30–31 (admitting that since the initiation of this action, the Mishoes “have not
opposed [the Patels’] use of [their] own property” and that the Patels “would certainly have an
interest in the outcome of this litigation”). Such statements indicate knowledge of the Patels’
respective position within this litigation.
22
for a Site Development Plan.”83 Furthermore, the Mishoes admitted in their initial
response to DPC’s motion to dismiss that they had experienced a “pleading
dilemma” as to whether the Patels should be named in the caption, or not.84 That
dilemma does not qualify as a mistake regarding the Patel’s identity under the
mandatory authority of DiFebo and Allmaras II. As a result, the Mishoes do not
meet their burden of demonstrating a countenanced mistake and the Patels cannot
now be added as parties.
The final question settles on what the Court must do in the Patel’s absence.
The answer to that depends on whether the Court can “in equity and good
conscience” proceed with the parties presently before it. 85 In other words, are the
Patels indispensable parties to the action?
While Rule 19(b) includes four factors relevant to the inquiry, controlling
authority simplifies the analysis. Namely, the Delaware Supreme Court’s rulings in
Hackett v. BOA and CCS Investors, LLC v. Brown provide that when a party fails to
name an affected landowner in a land use decision challenge, the Court has no
jurisdiction to consider the challenge.86 Such an omission deprives the Court of
jurisdiction which cannot be overcome through a Rule 19(b) balancing test.87
Applying the four factors in Rule 19(b) would nevertheless compel the same
result in this case. Here, (1) the Patels will unquestionably be prejudiced if they are
precluded from participating in a challenge seeking to invalidate their Plan, (2) no
severance of portions of the petition for certiorari or the subsequent shaping of relief
can remedy that prejudice; (3) there can be no adequate resolution in their absence,

83
D.I. 1, at 1–2 (emphasis added).
84
Pet’r’s Resp. to Mot. to Dismiss at ¶ 7 (D.I. 25).
85
Super. Ct. Civ. R. 19(b).
86
794 A.2d 596, 598 (Del. 2002); 977 A.2d 301, 322 (Del. 2009).
87
Schlosser and Dennis, LLC, 2016 WL 2766119, at *7 (expressly recognizing that the Delaware
Supreme Court’s holdings in Hackett and CCS Investors, LLC stand for this proposition).
23
and (4) they will have no alternative means to challenge this Court’s decision if they
are precluded from participating in the matter.88
On balance, this certiorari action cannot proceed without the participation of
the adjacent landowner who benefits from the very site development plan challenged
by the action. Count I of the Mishoes amended petition for a writ of certiorari must
therefore be dismissed with prejudice.
B. The Superior Court does not have subject matter jurisdiction over
Count II because it implicates extrinsic evidence beyond record title and
the adverse possession claim is too intertwined to separate from the
primary claim.
In Count II, the Mishoes seek to confirm ownership by clear title, or in the
alternative, by adverse possession. The City Respondents and the Patels move to
dismiss those claims for lack of subject matter jurisdiction. They contend that the
claims will require the Court to consider extrinsic evidence, which in turn, converts
Count II to a quiet title claim. That, they emphasize can only be entertained in the
Court of Chancery.89
The Mishoes counter with the contention that the Court could resolve Count
II by reviewing the 1994 deed, along with prior and subsequent deeds in the chain
of title. They further posit that the Court would separately remain free to consider
extrinsic evidence under their alternative adverse possession theory.

88
See Super. Ct. Civ. R. 19(b) (providing that, “[t]he factors to be considered by the Court include:
First, to what extent a judgment rendered in the person's absence might be prejudicial to the person
or those already parties; second, the extent to which, by protective provisions in the judgment, by
the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a
judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have
an adequate remedy if the action is dismissed for nonjoinder”).
89
“It is settled in this state that the Court of Chancery has subject matter jurisdiction over those
quiet title actions where the alleged cloud may be cleared only by the examination of extrinsic
evidence.” Cedar Lane Farms, Inc. v. Taylor, 1992 WL 111210, at *2 (Del. Ch. May 18, 1992)
(citing Wilkes v. State ex rel. State Highway Dep’t, 265 A.2d 421, 424 (Del. 1970)).
24
At the outset, Delaware courts maintain a strong preference for determining
title at law.90 Such controversies include situations where a chain of title
demonstrates clear ownership or lack thereof, on its face. When neither is the case,
the dispute can only be resolved in equity.91 The primary dispute, therefore, distills
to whether the deeds in this case can resolve the ownership issue without the need
to consider extrinsic evidence.
The controlling authority explaining which land ownership disputes belong in
equity and which at law is the Delaware Supreme Court’s decision in Wilkes v. State
ex rel. Highway Department.92 The Wilkes decision explains both (1) equity’s
jurisdiction over quiet title actions, and (2) provides appropriate parameters for when
Chancery’s ancillary jurisdiction requires that court to resolve the entire matter.
In Wilkes, the parties, the State among them, litigated ownership rights where
there were conflicting claims based upon separate chains of title.93 There, the Court
of Chancery had assumed jurisdiction after recognizing that “extrinsic evidence
would be required in order to determine the nature of the cloud upon [the State’s]
title.”94 The appellant had contested Chancery’s jurisdiction below and renewed its
challenge to it on appeal. The Supreme Court, with particular reliance on Court of

90
See e.g., Davenport Servs., Inc. v. Five N. Corp., 2003 WL 21739066, at *5 (Del. Super. May
19, 2003) (“Delaware courts strongly favor a determination of title at law”); Burris v. Cross, 583
A.2d 1364, 1377 (Del. Super. 1990) (“[n]ormally actions to determine title to land are actions at
law”); Green v. Cowgill, 61 A.2d 410, 411 (Del. Ch. 1948) (“decisions in this state indicate a
decided preference for a legal determination of title disputes”).
91
4 JOHN N. POMEROY, EQUITY JURISPRUDENCE § 1399 (5th ed. 1941) (“if the defect appears upon
its face, and a resort to extrinsic evidence is unnecessary, the reason for equitable interference does
not exist, for it cannot be said that any cloud whatever is cast upon the title”); see also Davenport
Servs., Inc., 2003 WL 21739066 (“equity jurisdiction does not exist in an action to remove a cloud
if the instrument or proceeding is invalid on its face . . . [because] [i]n those instances . . . the
facially invalid instrument or proceeding is not a ‘cloud’ on title”).
92
265 A.2d 421 (Del. 1970).
93
Id. at 423.
94
Id. at 422.
25
Chancery decisions such as Suplee v. Eckert,95 explained that “if an alleged cloud
involves disputes which can be resolved only by extrinsic evidence lying outside the
record, or if the invalidity of a recorded instrument must be established by matters
outside the record, then equity has jurisdiction to try the cause.”96 Accordingly, only
Chancery has subject matter jurisdiction over a quiet title action.
When turning to the appropriate parameters of Chancery’s ancillary
jurisdiction, the Wilkes Court recognized that where a question of legal title is
intertwined with other aspects of the controversy, which themselves require the
exercise of equitable jurisdiction, “the legal matters should be regarded as ancillary
and equity should take and retain jurisdiction over the entire matter.”97
A more recent Superior Court decision in Cook v. Deep Hole Creek
Associates98 is also helpful when applying these principles. In Cook, the plaintiffs
sought a judgment to declare ownership based upon what was alleged to be a clear
chain of title reflected in the deeds.99 There, the plaintiffs traced their alleged title
to the disputed property through reference to several recorded deeds.100 Critically,

95
Suplee v. Eckert, 120 A.2d 718 (1956). Suplee involved a dispute concerning matters of record
in which the plaintiffs claimed title through a sheriff’s deed, and the defendants through a tax deed.
Id. at 430. The defendants moved to dismiss, inter alia, on the ground that the Court of Chancery
could not “properly try an action to remove a cloud where the plaintiff has an adequate remedy at
law.” Id. In explaining the bases for equitable jurisdiction, the court reiterated longstanding
Delaware jurisprudence recognizing “[e]quity’s jurisdiction over actions to remove a cloud on the
title to real estate.” Id. In contrast, the court in Suplee also recognized that “it is true in Delaware
that when the alleged cloud arises from a matter of record as opposed to a circumstance which
must be proved by extrinsic evidence, equity will leave the plaintiff to his law action, unless some
other basis of equity jurisdiction appears.” Id. (citing Murphy v. City of Wilmington, 11 Del. 108,
134–37 (1880)).
96
Wilkes, 265 A.2d at 424.
97
Id. at 425. (citing 4 JOHN N. POMEROY, EQUITY JURISPRUDENCE § 1399 (5th ed. 1941); Sears v.
Scranton Trust Co., 77 A. 423 (1910)).
98
2021 WL 1561410 (Del. Super. Apr. 21, 2021)
99
Id. at *5. The plaintiffs in Cook described their claim as one to quiet title but the recitation of
facts in the decision demonstrates that they attempted to establish ownership by only referring to
deeds evidencing the chain of title.
100
Id. at *5.
26
their complaint discussed matters beyond the record, however, which raised both
doubts about their ownership claims and demonstrated the need for the court to
consider extrinsic evidence.101 As a result, the court granted the defendant’s motion
to dismiss for lack of subject matter jurisdiction. When doing so, it reiterated the
rule that the Court of Chancery “has subject matter jurisdiction over those quiet title
actions where the alleged cloud [upon title] may be cleared only by the examination
of extrinsic evidence.”102
Here, a court will need to examine extrinsic evidence to resolve count II. Four
circumstances compel that finding.
First, the Mishoes’ amended petition itself demonstrates the need. The
Mishoes’ claim of record ownership revolves around a 1994 deed under which Hattie
B. Mishoe purportedly conveyed title to the Disputed Land to the Mishoe Trust.103
Other deeds followed with a purported conveyance to the Mishoes who now assert
ownership and are the parties to this action.104 Yet, the Mishoes concede in their
amended petition that “[i]t is unclear which of [sic] L&H Mishoe or JEMM had
proper title to the portion of paper Raymond/Jason Street at issue” prior to the 1994
deed.105 Their pleading facially demonstrates the need to examine extrinsic evidence
to resolve the claim.
Second, the deeds the Mishoes rely upon are facially insufficient to resolve
the dispute. Namely, the Mishoes reference several deeds in the chain of title during
oral argument and provided them as exhibits in their various filings. Critically, the
original deed they proffered, from which the others derive, is merely a stand-alone

101
Id.
102
Id. (quoting Cedar Lane Farms, Inc. v. Taylor, 1992 WL 111210, *2 (Del. Ch. May 18, 1992).
103
D.I. 46, at ¶ 19.
104
See D.I. 35, Ex. A.
105
D.I. 46, at ¶ 19.
27
quitclaim deed with no recital clause to confirm what it conveys.106 That, alone, in
the absence of any preceding deeds in the chain of title, demonstrates a potential
defect. Extrinsic evidence will be necessary to resolve the matter.
Third, the Mishoes themselves have interjected a significant amount of
extrinsic evidence into the matter. Their exhibits include surveys, correspondence,
and other materials apart from the record deeds. Many of those exhibits are
“extrinsic.”
Fourth and finally, the complexity of this matter requires extrinsic evidence to
resolve significant competing claims and crosscurrents regarding ownership.
Namely, the City of Dover claims to own the Disputed Land through dedication by
operation of law in the 1800s. No deed will accompany that. Furthermore, the
complexity in this case is amplified because of the dispute regarding the legality of
the annexation of the Disputed Land. In this case, it will be impossible to adjudicate
ownership without sifting through these issues and considering extrinsic evidence.
For these reasons, the primary relief requested in Count II sounds in equity.
That leaves the final question as to what should be done with the Mishoes’ alternative
adverse possession claim. That is, should it be severed and decided in this Court, or
should it be dismissed for potential resolution in Chancery as an ancillary matter?
An adverse possession claim could admittedly be decided at law when
considered in a vacuum.107 As the Delaware Supreme Court recognized in the Wilkes
decision, however, where “the question of legal title to . . . the tract in controversy
[is] so intertwined with other elements of the controversy, which call for the exercise

106
None of the deeds the Mishoes rely upon, including the operative 1994 deed, were attached as
exhibits to their petition. These deeds were instead provided to the Court in an exhibit to their
motion for entry of default judgment. See D.I. 35, Ex. A.
107
See e.g., Davenport Servs., Inc., 2003 WL 21739066 (holding that a suit to determine title based
upon adverse possession may be maintained in the Superior Court); Banks v. Schrock, 2023 WL
1488204 (Del. Super. Feb. 2, 2023) (declaring ownership upon a showing by a preponderance of
the evidence that each of the elements of adverse possession had been satisfied).
28
of equitable jurisdiction or relief, then the legal matters should be regarded as
ancillary and equity should take and retain jurisdiction over the entire matter.”108
In this case, there is no meaningful way to sever the Mishoes’ alternative claim
from Count II and retain jurisdiction over it without risking inconsistent findings.
Moreover, one cannot acquire ownership rights against a governmental body such
as the City of Dover through adverse possession. 109 That premise, by itself,
marginalizes a significant portion of the Mishoes’ adverse possession claim and cuts
against it being considered independently of any quiet title action. The question
regarding annexation also bears upon the propriety of the alleged dedication to the
City and adds further complexity to the matter. In this case, trying a quiet title claim
in one court while simultaneously trying an accompanying adverse possession claim
in another would produce a substantial risk of inconsistent factual findings and
results. That risk makes it appropriate, and necessary, for a reviewing court to
consider the quiet title action and adverse possession claims together.110

108
Wilkes, 265 A.2d at 425.
109
In Kempner v. Aetna Hose, Hook & Ladder Co., the Court of Chancery recognized that
prescriptive rights may not be acquired in the property of a municipal corporation where that
property is devoted to public use. 394 A.2d 238, 240 (Del. Ch. 1978). The court stated this to be
the majority rule in this country and that “nothing is more solidly established than the rule that title
to property held by a municipal corporation in its governmental capacity, for a public use, cannot
be acquired by adverse possession.” Id. (quoting Siejack v. City of Baltimore, 313 A.2d 843, 846
(Md. 1974)). Furthermore, the court explained that is immaterial whether the property is owned
by the state at large, by a county, or by a municipal department or other official body. Id. at 241.
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Historically, the Court of Chancery has adjudicated adverse possession claims on many
occasions even in the absence of such concerns. A recurring theme when recognizing equitable
jurisdiction over the claims has been the complexity of the matters which generates in large part
the potential need to consider extrinsic evidence. See e.g., Tumulty v. Schreppler, 132 A.3d 4 (Del.
Ch. 2015) (holding that a defendant had established title to property by adverse possession);
Acierno v. Goldstein, 2004 WL 1488673 (Del. Ch. June 25, 2004) (deciding a request for a
declaratory judgment to quiet title to land based on a claim of adverse possession); Marvel v. Barley
Mill Rd. Homes, 104 A.2d 908 (Del. Ch. 1954) (holding that plaintiffs had established ownership
by adverse possession); c.f. Futcher v. Dodd, 1978 WL 22442, at *3 (Del. Ch. June 21, 1978)
(refusing jurisdiction in Chancery where (1) a plaintiff is out of possession, (2) has no record title,
and (3) where there are no complex circumstances prohibiting complete resolution of the issues at
law).
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As a final matter, the Mishoes’ motion for entry of default judgment in Count
II against JEMM remains pending.111 Like the adverse possession claim, the
Mishoes’ default judgment motion seeks a declaration by default that they own the
property through clear title, or through adverse possession against JEMM. Under
the circumstances of this case, the interests of judicial economy and the risk for
unfair prejudice to the remaining respondents require deferral of the motion.
Namely, because the gravamen of Count II is a quiet title claim, the Mishoes cannot
obtain a default judgment against JEMM in the absence of subject matter jurisdiction
over that claim. A judgement by default in favor of the Mishoes and against JEMM
based upon adverse possession would likewise be inappropriate. That claim against
JEMM is so intertwined with the balance of the controversy that it would be
premature under the circumstances to grant it.
For these reasons, Count II must be dismissed in its entirety without prejudice.
The Mishoes may seek transfer of the claims in Count II to the Court of Chancery
under 10 Del. C. §1902.112
IV. CONCLUSION
For the aforementioned reasons, Count I of the Mishoes’ amended petition
must be dismissed because the Mishoes are unable to include the Patels as
respondents. Furthermore, the Superior Court lacks jurisdiction over the gravamen
of Count II. The remaining theories raised in that Count are too intertwined,
complex, and related for the Court to sever and to retain jurisdiction over a part of

111
D.I. 35.
112
Pursuant to 10 Del. C. §1902, “[n]o civil action, suit or other proceeding brought in any court
of this State shall be dismissed solely on the ground that such court is without jurisdiction of the
subject matter, either in the original proceeding or on appeal. Such proceeding may be transferred
to an appropriate court for hearing and determination.”

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them. As a result, Count II is dismissed in its entirety, without prejudice, subject to
10 Del. C. §1902.
IT IS SO ORDERED.

/s/Jeffrey J Clark
Resident Judge

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