IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

NEWARK SHOPPING CENTER
OWNER, LLC,

Plaintiff,

 C.A. N0. N16C-O1-053 JRJ
PIZZA UNIVERSITY OF
DELAWARE, INC. D/B/A/ PIZZA
UNIVERSITY and WILLIAM
KEENEY and MARCIA HEPPS,

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Defendants..-,

 

AND NOW TO WIT, this 14th day of July, 2016, upon consideration of
Defendants William Keeney and Marcia Hepps’ Motion to Dismissl and P1aintiff
Newark Shopping Center’s response,z IT APPEARS THAT:

l. On November 6, 2004, Defendant Pizza University of Delaware, Inc.
("Pizza University") entered into a commercial lease agreement ("Lease") with
FW-Newark, LLC for 628 Newark Shopping Center, Newark, Delaware (the

"Property").3 In connection with the Lease, William Keeney and Marcia Hepps

- '__=;.

1 Individual Defendants’ Motion to Dismiss ("Defs.’ Mot. Dismiss") (Trans. ID. 58701339);

Individual Defendants’ Reply in Support of Their Motion to Dismiss ("Defs.’ Reply") (Trans.
ID. 58926430).

2 Plaintiff’ s Response to Individua1 Defendants’ Motion to Dismiss ("NSC Resp. Mot. Dismiss")
(Trans. ID. 58867011).

3 Compl.W 4-5 (Trans. ID. 58701339); Compl., Ex. A (the "Lease").

(the "Individual Defendants") entered into a "Guaranty of Lease."4 On May 30,
2008, FW-Newark, LLC assigned its interests in the Property to Plaintiff Newark
Shopping Center Owner, LLC ("NSC").S

2. On June 26, 2012, NSC filed an action against Defendant Pizza
University and the Individual Defendants in the Justice of the Peace Court, No. 13
("JP Court Action").6 In the JP Court Action, NSC sought summary possession of
the Property as well as damages for Defendant Pizza University’s failure to remain
open as required by Section 8.3 of the Lease.7 NSC claimed damages in excess of
$60,000.00 at the time of the JP Court Action, but sought only SIS,OO0.00_the
jurisdictional limit of the JP Court.S The JP Court entered judgment against
Defendant Pizza University for possession of the Property, $15,000.00 in damages,

9 The claim against the Individual Defendants was dismissed because

and costs.
NSC’s right the enforce Section 8.3 of the Lease was waived when Defendant
Marcia Hepps was given permission to renovate the property.l°

3. On January 25, 2013, NSC obtained possession of the Property." NSC

appealed the JP Court judgment, and a trial de novo on the issue of damages was

" 1a 11 4.
5 1a 11 5.
6 Id. 11 9; Defs.’ Mot. Dismiss, Ex. A ("JP Court Action Compl.")_-.-,
7 JP Court Action Compl.

8 1¢1.; 10 Del. C. § 9301.

° Compl. 11 12.

10 Defs.’ Mot. Dismiss, Ex. B.

ll Compl.1] 13.

held in the JP Court before a three judge panel.lz On March 13, 2013, the panel

entered judgment against Defendant Pizza University and the Individual

Defendants for $15,000.00 and costs.”
4. NSC filed the instant action (the "Superior Court Action") on January 8,
2016, seeking to recover "outstanding damages, liquidated damages, costs,

attomey’s fees, other fees, and interest arising from Defendants’ breach of [the

9914

Lease]. The damages NSC seeks to recover in Superior Court include

"deficiency" damages that NSC could not recover in the JP Court due to the JP
Court’s $15,000.00 jurisdictional limit.l$ The Individual Defendants move to
dismiss, arguing that the doctrine of res judicata bars any recovery.

5. Res judicata bars a claim where:

(l) the original court had jurisdiction over the subject matter and the
parties; (2) the parties to the original action were the same as those
parties, or in privity, in the case at bar; (3) the original cause of action
or the issues decided was the same as the case at bar; (4) the issues in
the prior action must have been decided adversely to [the plaintiff] in
the case at bar; and (5) the decree in the prior action was a final
decree.lé

 

2()06) (citing Bailey v. City of Wilmington, 766 A.2d 477, 481 (Del. 2()01)).
3

"Res judicata exists to provide a definite end to litigation, prevent vexatious
litigation and promote judicial economy."" Stated differently, "the doctrine of res
judicata serves to prevent a multiplicity of needless litigation of issues by limiting

parties to one fair trial of an issue or cause of action which has been raised or

should have been raised in a court of competent jurisdiction."lg

6. Delaware follows a transactional approach to res judicata.w Thus,
"[u]nder Delaware law, res judicata bars litigation between the same parties if the

claims in the later litigation arose from the same transaction that forms the basis of

))ZO

the previous adjudication. "Generally, a contract is considered to be a single

‘transaction’ for the purpose of claim preclusion."zl However, "[c]ontractual rights
that are triggered and pursued after the initial action is filed [] are not barred by res

judicata because a prior judgment ‘cannot be given the effect of extinguishing

claims which did not even then exist."’zz

7. An action for summary possession under 25 Del. C. § 5701 is a statutory

proceeding to resolve a dispute between a landlord and a tenant over the right of

17 LaPoint v. AmerisourceBergen Corp., 970 A.2d 185, 191 (Del. 2009) (f`irst citing Maldonado
v. Flynn, 417 A.2d 378, 381 (Del. Ch. 1980); then citing Playtex Farnily Prods., Inc. v. St. Paul
Surplus Lines Ins. C0., 564 A.2d 681, 683 (Del. Super. 1989)).

18 Id. at 192 (quoting Tay10r v. Desmond, 1990 WL 18366, at *2 (Del. Super. Jan. 25, 1990),
aj"d, 1990 WL 168243 (Del. Aug. 31, 1990)).

19 Id. at 193 (f`irst citing Kossol v. Ashton Condominium Ass’rt, 1994 WL 10861, at *2 (Del. Jan.
6, 1994); then citing Maldonado, 417 A.2d at 38l).

2° Kosset, 1994 wL 10861, at *2 (citing Mata@nad@, 417 A.2d @1¢382-83).

21 LaPoint, 970 A.2d at 194 (citing Petromartagemertt Corp. v. Acme-Th0mas Joint Venture, 835
F.2d1329, 1336 (10th Cir. l988)).

22 Id. (citing Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 328 (1955)).

4

possession,” and the JP Court has exclusive jurisdiction over actions fo_r summary
possession.24 Because the JP Court is a court of limited jurisdiction, it will not

always be possible for a litigant seeking summary possession to receive complete

5

relief in the JP Court for all claims relating to the transaction(s) at issue.z In

Bomba’s Restaurant & Cocktaz`l Lounge, Inc. v. Lord De La Warr Hotel, Inc., the
Delaware Supreme Court held that Delaware law permits a litigant seeking
summary possession to split his or her cause of action and try the action for

summary possession in the JP Court while maintaining "a plenary action between

the same parties over the same lease in another court."%

8. In Jezyk v. Brumbaugh, this Court considered whether res judicata barred
a defendant-landlord’s counterclaim for delinquent rental payments when the
landlord previously sought summary possession and back-rent in the JP Court.27

Similar to this case, in Jezyk, at `the time the landlord sought summary possession,

:1»-:11_-  - 1_¢

23 Bomba ’s Restaurant & Cocktail Lounge, Inc. v. Lora' De La Warr Hotel, Inc., 389 A.2d 766,

770 (Del. 1978).

24 25 Dez. C. § 5701.

25 Bomba ’s, 389 A.2d at 770 ("There is nothing in the summary possession statute which in any
way reflects a legislative intention to enlarge the jurisdictional limits of [the JP Court]"); cf
Mells v. Billops, 482 A.2d 759, 76l (Del. Super. l984) (holding that res judicata barred the
plaintiff from maintaining a second suit in the Superior Court for a personal injury claim when
the plaintiff "voluntarily chose to split his claim and obtained a judgment for property damage in
the Justice of the Peace Court, which has no jurisdiction to address personal injury claims.").

26 Bomba ’s, 389 A.2d at 770; cf Maldonado, 417 A.2d at 382 ("The rule against claim splitting
is an aspect of the doctrine of res judicata and is based on the belief that it is fairer to require a
plaintiff to present in one action all of his theories of recovery relating to a transaction, and all of
the evidence relating to those theories, than to permit him to prosecute overlapping or repetitive
actions in different courts or at different times.").

27 Jezyk, 1995 wL 264555, ar *11_

the landlord also claimed damages in excess of the JP Court’s jurisdictional limit.zg
In Jezyk, the Court held that because the landlord could have-but did not-split

29 44

his cause of action at the time summary possession was sought, well-settled

principles of res judicata dictate that . . . [the landlord is] barred from recovering

arrearages existing at the time of the JP Court proceeding but not recovered in that

action due to the JP Court’s [] jurisdictional 1imit."3°

9. NSC argues that res judicata does not bar the Superior Court Action
because: (l) actions seeking summary possession of property against a tenant can
only be brought in the JP Court; (2) the jurisdictional limit in the JP Court is
$15,000.00; and (3) in the JP Court Action Complaint, NSC "specifically[] and
explicitly reserved its right to file a deficiency action in a court of competent

’31 NSC further argues that res judicata cannot completely bar its

jurisdiction.’
recovery because in addition to "deficiency" damages arising from Defendant
Pizza University’s failure to remain open as required by Section 8.3, NSC is

seeking to enforce Defendant Pizza University’s obligation under Section l9.2 to

pay rent throughout the tenn of the Lease,_fz

28 Id. In Jezyk, the landlord’s claim for delinquent rent "include[d] arrearages which existed at
the time of the JP Court proceeding but which were not recovered in that action due to the JP
Court’s [] ja bnal limit.’§§-.§Hi

29 1a ar *12-.:§@§@§ B@mba ’s, A.zd at 770).

30 Id. (first citing Mells, 482 A.2d at 76l; then citing Restatement (Second) of Judgments § 24
cmt. g (1982)).

31 NSC Resp. Mot. Dismiss 11 l (emphasis omitted).

32 1¢1.1112.

6

lO. Under Section 19.2, following termination of Pizza University’s right of
possession, Pizza University "shall be liable for additional damages," including the
option of "Minimum Rent, Percentage Rent (if applicable) and additional rent
which would have become due during the remainder of the Lease Ter1n, less the
amount of rental, if any, which the Landlord receives . . . from others to whom the
Premises may be rented."” Until the Lease term ended "effective March 31,
20l5," the total "amount of rental" NSC received from another tenant remained
unknown.34 Thus, NSC argues the damages it seeks under Section 19.2 accrued
after, and independent from, the July 2011 to April 26, 20l3, breach of Section 8.3
that was adjudicated in the JP Court Action.35

ll. In opposition, the Individual Defendants argue that Section l9.2 was
triggered by the breach of Section 8.3, and therefore, NCS’s Section 19.2 claim
was part of same transaction litigated in the JP Court Action.% According to the
Individual Defendants, NSC could have, but did not, split its cause of action at the
time of the JP Court Action, and had NSC split its cause of action, it could have

recovered the full amount of damages in the Superior Court. Thus, the Individual

33 1',-¢'@3_»;»»§ 19.2 (emphasis added).
34 ~f§"é:»;xz;_z_l- ll 8-

35 

33 Defs.’ Reply 1111 7-8.

Defendants maintain that res j`udicata bars NSC from seeking recovery in the
Superior Court Action.37

l2. The basis of the JP Court Action was Defendant Pizza University’s
default under Section 8.3 of the Lease. In connection with that claim, NSC sought
"rent or fees which accrue between the time of filing of this Complaint and trial"
but not "additional damages" provided for in Section 19.2.38 Consistent with
Jezyk, res judicata bars NSC from seeking damages relating to the breach of
Section 8.3 because NSC could have, but did not, split its Section 8.3 claim at the
time of the JP Court Action. However, res judicata does not bar NSC’s claim for
Defendant Pizza University’s alleged failure to fulfill its obligation under Section
19.2 to pay rent throughout the term of the Lease because that claim was not ripe at
the time of the JP Court Action.

WHEREFORE, for the foregoing reasons, Defendants William Keeney and
Marcia Hepps’ Motion _to Dismiss is GRANTED in part, and DENIED in part.

IT IS SO ORDERED.

37 ld.
38 JP Court Action Compl.

 

