August 2022

Posted August 12, 2022

Cowan v. Furlow, C.A. No. 2018-0915-SEM; IMO Real Estate of Alvin David Smith, Jr., deceased, C.A. No. 2019-1038-SEM (May13, 2022)

In this case, the Master took the somewhat unusual step of recommending fee shifting against a pro se petitioner but it is noteworthy that the petitioner’s relevant frivolous motion came after being earlier expressly and pointedly warned by the Court against making future frivolous filings. The underlying action arose from the administration of an estate. The Petitioner sought the removal of the Respondent as personal representative. Later, the Respondent filed a second action seeking to sell property owned by the estate.

The Petitioner moved to recuse both the assigned Master in Chancery and the Respondent’s legal counsel. This was the Petitioner’s second request to recuse the Master. The purported bases were that the Master harbored a personal bias towards the Respondent or his counsel and that the Master refused to consider the Petitioner’s “evidence.”  A Vice Chancellor reviewed the contentions de novo and found them frivolous. The Vice Chancellor also warned Petitioner about future frivolous and wasteful filings. Included in that warning was that such actions, if they occur again, would likely subject the Petitioner to fee shifting.

Appropriately, the Master noted that the Petitioner’s “failure to heed [the Vice Chancellor’s] warning should have consequences.” Thus, when the Petitioner repeated the same frivolous arguments in a new motion, the Master recommended a departure from the American Rule and, on the basis of Petitioner’s bad faith, the Master concluded that the Petitioner should pay Respondent’s reasonable fees incurred in responding to the Motion.