 

 

IN THE COURT OF COMl\/ION PLEAS FOR THE STATE OP DELAWARE
IN AND FOR NEW CASTLE COUNTY

ISAAK SOMERSHEIN,
PIamtiff-Below/Appe]lant,
C.A. No. CPU4-16~OO1 996

V.

I-IOl\/[E DEPOT and
BOUCHELLE BUILDERS,

Defendants-13eloxv/Appellees.

\_/\/\/\_/\/\/\'/\'/\/VV

Submitted: November 18, 2016
D€Cid€d; Dec€mb@r 13, 2016

Thomas Marconi, Esq. Robert D. Cecil, Esq.

Geena Khomenko George, Esq. Tybout, Redfearn, & Pell

Losco & Marconi, P.A. 750 Shipyard Drive

1813 North Franklin Street Suite 400

P.O. Box 1677 Wilmington, DE 19899

\WHmngton, DE 19899 Az‘z‘om@rforAppe//ee Home De]bof
Alz‘om§ysjbrA_}bpe//anf

DECISION ON MOTION TO I)ISMISS

SMALLS, C.J.

 

;~'

This is a Motion to Dismiss an Appeal for violation of the Mirror image Rule. 'I`he
underlying matter is a dispute between lsaak Somershein (“Somershein”) against Appellees
Hotne Depot (“Home Depot”) and Bouchelle Builders (“Bouchelle”). Follo\ving dismissal
from the justice of the Peace Court 15, Somershein appealed to this Court. Home Depot
filed the instant Motion to Dismiss, alleging the Appeal violates the Mirror Image Rule. A
hearing on the Motion \Vas convened on November 18, 2016. At the conclusion of the
hearing, the Court reserved decision

FACTS AND PROCEDURAL HISTORY

On April 7, 2016, Somershein initiated an action in Justice of the Peace Court 13,
naming Home Depot and Bouchelle as defendants The Complaint Was as follows: “ an
27th put in standup shower done Wrong has to be redone $6,000 damage to dining room
Wood floor 9000.” NotablyJ Somershein did not check a box for \vhat type of action he Was
bringing ln his Bill Ot` Particulars, Someshein stated, infer a/z`¢z, that he needed c‘copies of
Bouchelle Builders license and how he was vetted[.]”

A trial \vas held at the ]ustice of the Peace Court On July 20, 2016, With the Court
entering a directed Verdict in favor of Home Depot and Bouchelle. According to the
Court’s Order, Somershein “established he received the name of Bouchelle Builders from
Home Depot and he contracted With Defendant Bouchelle Builders to have a shower
installed in his home.” Ho\vever, because Somershein \vas unable to produce evidence
regarding Who caused the damage and \vhat the cost of repairs would be, the Court found in

favor of Home Depot and Bouchelle.

l\)

 

 

On july 29, 2016, Somershein timely filed an Appeal with this Court. According to

the Complaint on Appeal, Somershein entered into a contract with Bouchelle for the
installation of a standup shower stall. Somershein also alleges he was referred to Bouchelle
by Home Depot; Somershein contends he had never before heard of Bouchelle and would
not have hired Bouchelle but for the referral The Complaint concludes by alleging
Bouchelle breached the Contract.

On October 31, 2016, Home Depot Eled the instant l\/Iotion to Dismiss, alleging the
Complaint on Appeal violates the Mirror Image Rule. Specifically, Home Depot argues the
underlying action was solely for breach of contract, and that Somershein is now attempting
to introduce a cause of action against Home Depor for “negligent referral.” Home Depot
argues this constitutes an additional claim, in violation of the l\/Iirror Image Rule, and
therefore the Appeal must be dismissed Home Depot further argues that, even if this Court
were to allow the appeal to proceed, Somershein has failed to plead negligence with
particularity and has failed to state a claim.

On November 11, 2016, Somershein responded to the Motion, arguing the justice of
the Peace Complaint was initiated and drafted by Somershein, acting pro Je, and that it was
merely Somershein’s lack of legal acumen that resulted in the unartful wording of the
Complaint. After the justice of the Peace action was decided against Somershein,
Somershein obtained counsel, and it was counsel who merely corrected the formulation of
the allegations Somershein contends that the underlying claim against Home Depot is, and

always was, one sounding in common law negligence, rather than breach of contract or

negligent referral lt is Somershein’s position that he should not be punished for his lack of

 

 

 

legal expertise Somershein also requests leave to amend the Complaint on Appeal if

necessary.

DISCUSSION
Delaware law is well settled on the matter of the l\/lirror Image Rule. c‘[T_|he prime
tenet of the venerable ‘mirror image rule’ is that it is a rule of jurisdiction, and not of
procedure . . . [and isj . . . satisfied if the complaint on appeal presents no parties or issues

other than those presented by the original complaint below.”1 Furthermore,

\With respect to raising identical issues, Delaware courts have provided that
“when the complaint on appeal sets forth more speci€cally the causes of
action that were raised below but does not alter the subject matter of the case
below, there is no mirror image violation.” . . . “Generally, so long as the
requested remedy does not change the nature of the claim asserted below,
there is no mirror image violation.” Further, courts have found that the
complaint on appeal cannot “eXpand the issues raised in the original
complaint,” however, it may “state the original issues with more legal clarity
and specificity.’32

Concerning the method of determining whether a violation of the l\/lirror Image Rule

has occurred,

lt should be noted that the plain language CCP Cz':). R 72.3@ does not contain
any language that strictly limits the Court to only consider the pleadings when
analyzing a mirror image rule claim. . . . l~listorically, this Court has
determined whether a party has complied with the mirror image rule and Rule
72.3@ by comparing the complaint in the court below with the complaint on
appeal . . . Thus, the determination of issues that were before z‘/ye court below
should take into account more than simply the complaint below.3

 

1 fz`/z)ewz`ew Fam, Im'. 1/. I_zzm/y§y, 2006 \\'/L 1112911, *4 (Del. Com. Pl. Apr. 26, 2006).

2 ll/fczz'n .S`z‘reez‘ Coun‘, LLC 1/. Kz`erzm/z, 2015 WL 4041171, at *4 (Del. Com. Pl. jul. 2, 2015) (internal citations
Omitted).

3 Id. at 7.

 

_¢~:

 

ln the case .rz//)jzzdz'¢‘e, the Complaint in the justice of the Peace Court was skeletal at
best. Accordingly, l End the Bill of Particulars and the written Order from the justice of the
Peace Court to be instructive in determining the nature of the issues raised in the Court
below. While the Order is itself succinct, it does state that Somershein established a referral
by Home Depot and a contract with Bouchclle. Lil;ewise, Somershein’s Bill of Particulars
references an issue of how l-iomc Dcpot vetted Bouchelle. These issues, if properly
explored and presented at trial, could provide a basis for establishing negligence

Until filing the instant Appeal, Somershein was self-represented \While pro re litigants
are expected to comply with the Rules of Court, they are not lawyers, and they are not held
to the same standards of artful construction of pleadings 'I`his Court is permitted to look
beyond the bare language of the Cornplaint and into the subject matter. l-laving done so, l
find the justice of the Peace action involved a colorable claim for common law negligence
against Home DepotJ and that it was only Somershein’s legal inexperience that created any
ambiguity of the nature of the claim. Accordingly, Somershein’s refinement of his claim in
the Complaint on Appeal does not violate the Mirror Image Rule. The allegations in the
Complaint on Appeal merely set forth the same issues with additional clarity.

ln considering motions to dismiss filed pursuant to CCP Civil Rule 12(b)(6), the
Court must assume that all well~pleaded facts in the complaint are true.4 'l`he complaint
should not be dismissed unless “the plaintiff would not be entitled to recover under any
reasonably conceivable set of circumstances susceptible to proof." l find that Somershein

has adequately stated a claim under the standards of Rule 12(b)(6). l also find Somershein

 

4 Ba£tista v. Ch)j)sle)' Co)'p., 454 A.2d 286, 287 (Del. Super. 1982).

 

 

has pled negligence with sufficient particularity to meet the standards of Rule 9(b).5
l-lowever, because Home Depot has expressed some confusion over the precise details of
the allegations, Somershein shall within twenty (20) days hereof submit any amendments to
the Complaint.6
CONCLUSION

F‘or all the foregoing reasons, Appellee Home Depot’s Motion to Dismiss is hereby
DENIED. Appellant Somershein may amend the Complaint on Appeal subject to the
Rules of this Court.

IT IS SO OR_DERED.

7a aaa

Alex U/ Sma]ls
Chief judge

 

5 “In requiring a plaintiff to plead with particulariry, Rule 9(b) operates to: (1) provide defendants with
enough notice to prepare a defense; (2) prevent plaintiffs from using complaints as fishing expeditious `to
unearth wrongs about which they had no prior knowledge; and (3) preserve a defendants reputation and
goodwill against baseless claims.” Ra/mm¢m v. ].C. penny Co)j)., lm'., 2016 \\'/L 2616375, at *2 (Del. Super. May
4, 2016) (internal citations omitted).

6 Because of Delaware’s strong policy for adjudicating matters on the mcrits, and absent a showing of actual
prejudice, l do not find it appropriate to dismiss the appeal, and instead find it reasonable to allow
Somershein to amend.

