IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KIM MCMANUS, )
)
Plainu'ff, )
)
V. _) C.A. NO. Nl4A-O6-OOZ JRJ
)
EAST POINTE APARTMENTS, )
D/B/A EAST POINTE )
ASSOCIATION and DONNA )
CLEMENTONI, )
)
Defendants. )
OPINION

Date Submitted: February 13, 2017
Date Decided: April 17, 2017

Upon Appealfrom the Decl`sl`on of the Court ofCommon Pleas: REVERSED.

K11n McManus, P.O. Box 43, Claymont, DE. Pro se Plaintiff-Below, Appellant.

Michael P Morton, Esquire, Nicole M Far1es Esquire, Michael P. Morton, P..A,
Greenville Professional Center, 3704 Kennett Pike, Suite 200 Greenville, DE
Attorneys for Defendants- Below, Appellees

Jurden, P.J.

I. INTRODUCTION
Plaintiff-Below, Appellant Kim McManus has appealed the Court of
Common Pleas’ bench ruling granting Defendants-Below, Appellees’ Motion to
DiSmiss the Compla1nt. For the reasons set forth below, the bench ruling of the
Court of Common Pleas is REVERSED.
II. BACKGROUND
This appeal arises from a dispute between Plaintiff-Below, Appellant Kim
McManus (“McManus”) and Defendants-Below, Appellees East Pointe
Apartments (“East Pointe”) and Donna Clementoni (collectively, “Appellees”).
McManus filed a Complaint in the Court of Common Pleas alleging that
Appellees’ negligence caused her to sustain eye 1njuries.l After oral argument on
Appellees’ Motion to D1sm1ss McManus’ Complaint, the Court of Common Pleas
dismissed the case on the basis of resjua’l`cata.2
A. Alleged Infestations
McManus, a tenant in East Pointe, alleges that after a maintenance Worker
replaced the base of her kitchen sink, “swarms of various types of bugs” began to

enter her apartment and she noticed “severe mold” on the floor and Wall under the

 

1 Complete Record from Court of Common Pleas (“Court of Common Pleas Record”),1

Complaint (“Compl.") (Trans. ID. 6031?424).
2 May 16, 2014 Transcript of Civil l\/Iotion Proceedings at 18:16-20:3; 2518-9 (“Tr.”) (Trans. ID.

5963 7963).
2

base of her kitchen sink.3 McManus claims that she was stung by one of the bugs
which caused an allergic reaction in her right eye, rendering it “large, swollen,
imflammated [sic], bulging,” and weakening her vision in that eye.4 As a result,
McManus sought treatment from an ophthalmologist5

McManus alleges that she contacted the former manager of East Pointe,
Donna Clementoni (“Clementoni”), in writing to request that a pest control
company come to her apartment to inspect for insect infestations.6 Clementoni
called McManus twice to inform her that a pest control company was scheduled to
inspect her apartment7 On June l4, 2013, a young man who McManus claims was
pretending to be an exterminator showed up at McManus’ apartment8 McManus
alleges that he came in and “simply looked around and said, ‘l don’t see any
termites, if you see any more termites let us know.”79 McManus claims that this
same young man returned to her apartment on July 5, 2013.10 Due to her
suspicions after her interaction with him in June, McManus demanded to see his

photo identification and/or a business card that stated what company he worked

 

3 Compl. 11 l.

: /u'. 11 2. McManus alleges the bug that stung her “ha[d] venom.” Ia'.
M.

6 Id. 11 3.

7 1a

8 1a

9 1a

10 1a

1 Because he could not provide her with identification or a business card,

for.
McManus refused to let him into her apartment, and told him to come back when
he was able to produce proof of identification12 According to McManus, the
young man never returned13

McManus alleges that on July 9, 2013, Mid Atlantic Pest Services treated
only the exterior of her apartment building for termites,14 and that East Pointe
never addressed the mold issue in her apartment15

McManus claims that because of\ the injuries to her right eye, she is now
insecure with her appearance and has been unable to seek employment16 For her
alleged pain and suffering, medical expenses related to her eye, loss of income, and
expected future medical expenses and income loss, McManus seeks monetary

relief in the amount of $32,433.60.17

B. Previous Summary Possession Litigation Between McManus and
East Pointe

On June 24, 2013, East Pointe filed a summary possession action (the “First

Action”) against McManus in the Justice of the Peace Court (“.TP Court”),18

 

111d.

11 Id.

13 1a

:: !d_ 11 4.

16 jj 11 l'

17 1a 11 5.

18 This case is referred to in the Court of Common Pleas Record as JPl3-l3-007849. See Court
of Common Pleas Record, Motion of Defendants, East Pointe Apartments - DBA East Pointe

4

19 On September 12, 2013, a three-judge panel

seeking unpaid rent and late fees.
entered judgment for East Pointe for rent and late fees through August 31, 2013.20
At that hearing, McManus asserted a counterclaim that East Pointe’s eviction
action was retaliatory, spurred by her complaints about termites and mold.21 The
three-judge panel rejected McManus’ retaliation counterclaim22

On October 23, 2013, East Pointe filed a second summary possession action
(the “Second Action”) against McManus, attempting to proceed against McManus
as a holdover tenant.23 On December 9, 2013, the JP Court heard argument on the
Second Action.24 On December 12, 2013, the JP Court dismissed East Pointe’s

Second Action without prejudice,25 determining the Second Action was:

procedurally infirm as it include[d] an incorrect rent due as of the date
of filing and also include[d] late fees for the months of April, May,

 

Associates and Donna Clementoni, to Dismiss Plaintiff’s Complaint (“Defs.’ Motion to
Dismiss”) Ex. C, JP Court’s March 12, 2014 Order (“March 12, 2014 Order”); see also Tr. at
521-3.

19 See Del`s.` Motion to Dismiss Ex. C, March 12, 2014 Order; see also Tr. at 5:1-3.

20 Defs.’ l\/lotion to Dismiss Ex. C, March 12, 2014 Order. The record is unclear as to the
outcome regarding summary possession, as McManus’ tenancy continued through April of 2014_
See McManus v. Justice Of the Peace Court #13, 2014 WL 2200498, at *l (Del. Super. Apr. 30,
2014) (1‘1/11,»11/1¢»1¢.¢.§- r’ )_

21 De.’r`s.’ Motion to Dismiss Ex. C, March 12, 2014 Order.

n /d. Ex_ C, March 12, 2014 Order. The JP Court"s September 12, 2013 judgment has not been
provided to the Court. As such, the Court is relying on supplementary documentation, including
later JP Court orders that refer to the September 12, 2013 judgment, in order to analyze the
issues before it.

23 This case is referred to in the Court of Common Pleas Record as JP-13-l3-014076. Id. Ex. B_,
IP Couit’s December 12_, 20|3 Order {"December 12, 2013 Order”).

1110 Ex. 131 December 12, 2013 order.

25 M. Ex. B, December 12, 2013 Orcler. The Second Action was dismissed without prejudice to
East Pointe’s “right to properly re-file a Complaint relating to the alleged issues of any rent due
after August 31, 2013 or ‘hold-over’ status.” Id. Ex. B, December 12, 2013 Order.

5

and June 2013. lt appears that the Complaint filed is exactly the same
as the Complaint previously filed . . . for which Plaintiff has already
received a judgment26

The JP Court in the Second Action also dismissed McManus’ retaliation

counterclaim with prejudice:

ln regard to the Defendant’s counterclaim relating to allegations of
retaliation, Defendant asserts that the Plaintiff’ s action in filing for
summary possession represents retaliation for her written request for
remediation of a termite problem sent to the landlord in June 2013.
The Court notes that the Defendant raised the same issue during the de
novo hearing in the matter of JP-l3-l2-007849 and was found to be
unable to meet her burden of proof relating to the issue.
Consequently, the matter is considered to be Res Jua’l`cata, which
means the issue has already been legally determined and'may not be
subject of [sic] further legal review.27

McManus appealed the dismissal of her counterclaim28 On February 28,
2014, the JP Court held a de novo hearing before a three-judge panel.29 On March
12, 2014, the panel issued an Order affirming the JP Court’s December 12, 2013
dismissal30 As to McManus’ counterclaim, the panel held:

Defendant McManus’ counterclaim alleging retaliatory acts by the
landlord is barred by the doctrine of resjudl`cata. In the previous case
(JPl3-l3-007849) McManus argued that the landlord’s sole reason for
attempting to terminate her lease was because she had complained
about tennites in and around her unit. The previous panel rejected
McManus’ argument, concluding the landlord’s demand for unpaid
rent and subsequent filing of a summary possession case was not

 

1111.<1_13><_ 13, December 12` 2013 order
271.:)'. Ex. 131 December 121 2013 Order.
111 1a Ex_ C, March 121 2014 order_
1”1¢/. Ex. C` March 12, 2014 orderl
w fci.’. Ex. C, March |21 2014 Order.

retaliatory Defendant now raises the same argument in the instant
case. McManus still references her complaints about termites as the
reason the landlord is terminating her lease. This issue was fully
litigated in the previous case. Defendant may not agree with the
Court’s finding, but she cannot re-litigate this issue . . . Defendant’s
counterclaim for retaliation by the landlord due to complaints by the
tenant of termite infestation is dismissed gm prejudice3 '

Additional summary possession proceedings that are related to, but do not
bear on, the instant personal injury case ensued after the issuance of the March 12,

2014 order.32

 

31161. Ex. C, March l2, 2014 Order.

32 Given the number of courts, cases, and counterclaims involved, the procedural history is
somewhat confusing The Court has done its best to glean the following procedural history from
the record:

On December 167 2013, East Pointe filed a new case for summary possession Id. Ex. C, March
12, 2014 Order. It appears that on March 27, 2014, the JP Court found for East Pointe in a
separate summary possession action McManus I, 2014 WL 2200498, at * l. This action appears
to have been identified as JPl3-l3-016266. Appellant’s Opening Brief at 12 (“Appellant’s
Opening Br.”) (Trans. ID. 60094468). On April 2, 2014, McManus filed either a Notice of
Appeal or a petition for a writ of certiorari in the Superior Court. Id.; McManus v. Justz`ce Qf
Peace Court No. 13, 2014 WL 4922487, at *1 (Del. Sept. 29, 2014) (“McManus II”). The record
is inconsistent regarding the title of the April 2, 2014 filing See McManus I, 2014 WL 2200498,
at *l;McManus I[, 2014 WL 4922487, at *l.

On April 14, 2014, a three-judge panel issued a writ of possession for East Pointe. McManus I,
2014 WL 2200498, at *l. East Pointe served McManus with an eviction notice on April 21,
2014, requiring her to vacate by the following day. Id. On April 23, 2014, the Superior Court
issued an order granting McManus’ in forma pauperis request, denying an emergency stay which
McManus had apparently requested, and dismissing McManus’ appeal for lack of jurisdiction
Id. On April 29, 2014, McManus “filed a paper that might be viewed as a motion for re-argument
of the April 23, 2014 order.” ]d. On April 30, 2014, the Superior Court entered a Final Order of
Dismissal. Id. Referencing Reise v. Board ofBul'lding Appeals of Cin QfNewa/'k, 746 A.2d 271,
274 (Del. 2000), the Final Order of Dismissal noted that the Superior Court’s “jurisdiction to
review a three[-judge] Justice of the Peace [Court] panel decision is extraordinarily limited” and
“[t]he review may only consider errors of law.” McManus I, 2014 WL 2200498, at *l.

McManus appealed the Superior Court’s Final Order of Dismissal to the Delaware Supreme
Court. McManus II, 2014 WL 4922487, at *l. The Delaware Supreme Court affirmed the

7

C. The Personal Injury Action on Appeal

On February 28, 2014, McManus filed the instant personal injury action in
the Court of Common Pleas. ln response, Appellees moved to dismiss7 arguing
that the issues alleged in the Complaint are barred by the doctrine of resjudl'cata.33
The Court of Common Pleas heard oral argument on May 16, 2014, and found in
favor of Appellees, concluding that McManus’ “claim with respect to termites”34
had been decided on the merits by the JP Court in the First Action when McManus
effectively asserted it as a counterclaim35 Consequently, the Court of Common
Pleas dismissed the case based on res judicata.36 On June 6, 2014, McManus
timely appealed the Court of Common Pleas’ decision to this Court.37

III. PARTIES’ CONTENTIONS
McManus argues that her retaliation counterclaim was improperly dismissed

because she was never afforded the opportunity to present evidence or documents

 

Superior Court’s Final Order of Dismissal. Ia’. On October 14, 2014, McManus then moved for
a rehearing en Banc, which the Supreme Court denied on October 16, 2014. Letter Requesting
Vacation of Briefing Schedule (“Letter Req. Vacation of Br. Sched.”) Ex. D (Trans. ID.
60107299). McManus filed a petition for writ of certiorari to the United States Supreme Court,
which was denied Mcr’trcr)ms v. Jusl:`r,'e ofthe Peace Court #13, 135 S. Ct. 2382 (2015).

33 ners.’ Moiion to Dismiss; Tr. at 3;10-1?_

34 Tr. ar 19;4-6.

331d. at 18;16-20;3.

36 Id. a120;2_3_; 25;8-9.

37 Notice of Appeal (Trans. ID, 5555273 8)_ The Court recognizes that there has been a
significant delay in these proceedings The Court of Common Pleas Record was not filed in this
Court until April 14, 2016, and the May 16, 2014 Transcript was not filed in this Court until
October 3, 2016. The Court conveyed a briefing schedule to the parties on December 22, 2016,
ordering all briefing to be completed by February 14, 2017. Briefing Schedule (Trans. lD.
59989_736). Given that the docket now contains all of the necessary filings, this case is ripe for
decision

8

related to the counterclaim when she asserted it in the JP Court during the First
Action38 Therefore, McManus argues, the instant personal injury claim is not
barred by res judicata and should not have been dismissed by the Court of
Common Pleas.39

Appellees argue that because McManus continues to “challenge the
underlying facts” of the summary possession cases_-Which have been “finally
decided”_through allegations of retaliation and personal injury, the Court of
Common Pleas properly dismissed McManus’ personal injury claim under the
doctrine of res jaa’l'caz‘a.40

IV. STANDARD OF REVIEW

When this Court reviews a decision of the Court of Common Pleas, “the
Court has an obligation to correct errors of law and to review findings of fact ‘to
determine if they are sufficiently supported by the record and are the product of an
orderly and logical deductive process.”’41 Whether to grant a motion to dismiss

under Court of Common Pleas Civil Rule 12(b)(6) is a question of law subject to

 

:: E.g., Appellant’s Reply Brief at 4 (“Appellant’s Reply Br.”) (Trans. ID. 60204845).
Ia'.
40 Letter Req. Vacation of Br. Sched. This Letter also incorrectly asserts that “Plaintiff is
seeking to have the final judgment of the Justice of the Peace Court set aside so that she can
return to the rental unit from which she was evicted.” Id. The Court notes that this statement
misconstrues the request for reliefin McManus’ Complaint
41 Srare 11. ./1111.1<31'.\'011, 2010 WL 45130291 at *4 (De|. Super. Nov. 1, 2010) (quoting J.S.F. Pro;)s.,
1,1',1_.‘1»_11-11.-1‘111111,2009 WL 11034<)4,31 *1 (Dei Super. Apr. 30,2.000)),1;;;"11121 A.3d 52(De1_
2011).

9

a'e novo review.42
Delaware courts afford pro se litigants additional consideration, given their
lack of familiarity with the law and court procedures:43
The Court may . . . interpret a pro se Plaintiff’ s filings and pleadings if
this can be done reasonably, in order to alleviate the technical
inaccuracies typical in many pro se legal arguments While procedural
requirements are not relaxed for any type of litigant (barring
extraordinary circumstances or to prevent substantial injustice), the
Court may grant pro se litigants some accommodations that do not
affect the substantive rights of those parties involved in the case at

bar. The Court may construe the pleading in a way to do justice to all
concerned44

V. DISCUSSION
The Court of Common Pleas dismissed McManus’ personal injury claim
based on the doctrine of res judicata Under the doctrine of res judicata, “a final
judgment upon the merits rendered by a court of competent jurisdiction may, in the
absence of fraud or collusion, be raised as an absolute bar to the maintenance of a
second suit in a different court upon the same matter by the same party, or his
privies.’745 Thus, a plaintiff cannot split claims arising out of the same

transaction(s) by seeking recovery in different courts, even when the substantive

 

42 Howell v. Per.rmr.s', 2012 WL `14142061 at *`l (Del. Super. Feb, 8, 2012).

43 pmpa v. Mar. ('.‘11-. a;‘oeaarara 202 A_2d 796, 798 (Del, 2001).

44 A lrrm-1 v. §.l)’ate, 2002 WL 184247. at *l (Del‘ Super_ Jan_ 28, 2002)_; see also Tsl`pouras v.
1 'z-mrrl)clak, 2012 WL 14 | 4096, at *1 (Del‘ Super. Apr, 5, 2012), aj}`"'a', 58 A.3d 984 (Del. 2012).
45 Perm.\;_vli.tmia Mfrs. A.s's `11 Irzs. Co. v. flame lns. Co.7 584 A.2d 1209, 1213 (Del. 1990) (quoting
Epstez'n v. Chaz‘ham Park, Inc., 153 A.2d 180, 184 (Del. Super. 1959)).

10

theory of recovery is different, “unless there [is] a valid reason for the splitting.”46
As explained by the Court of Chancery in Maldonado v. Flynn;

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.47

The Court uses a five-pronged test to determine whether a claim is barred by
res judicata:

First, the original court must have had jurisdiction over the subject

matter and the parties. Second, the parties to the original action must

be the same as those parties, or their privies, in the current case. Third,

the original cause of action, or the issues decided, must be the same in

both cases. Fourth, the issues in the earlier action must have been

decided adversely to the current plaintiff Fifth, the decree in the
earlier action was a final decree.48

The JP Court is a court of limited jurisdiction Pursuant to 10 Del C. § 9301,
the JP Court has civil jurisdiction over: contractual disputes where the amount in
controversy does not exceed $15,000; replevin actions where the amount in
controversy does not exceed $15,000; negligence cases, not including personal

injury, where the amount in controversy does not exceed $15,000; and landlord-

 

46 417 A.2d 378, 382(1)@1. Ch. 1930).

47 Id. As such, “all claims arising out of an incident, accident or transaction [must] be presented
at one time in a court having proper jurisdiction over all claims.” Jankus v. Peiroleum Equip.,
Inc., 1996 W`l. 453321), ar *1 (Del. Super. May 16, 1096]‘

43 Mon r.-. sara 49 A,sd 1186, 1189 (Dei 2012), as carr-acted (Aug. 1, 2012) (citing Epsiem,

153 A.2d at 183).

11

tenant cases and appeals, including actions for summary possession49 The JP
Courts’ jurisdiction over summary possession actions is exclusive.50

Because of the JP Courts’ limited jurisdiction, “it is not always possible for a
litigant seeking summary possession to receive complete relief in the Justice of the
Peace Court for all claims relating to the transaction(s) at issue.”51 ln Bomba ’s
Restaurant & Cockrail Lounge, Inc. v. Lord De La Warr Hotel, lnc., the Delaware
Supreme Court held that a plaintiff seeking summary possession is permitted to
split his or her cause of action and pursue the summary possession action in the JP
Court while maintaining “a plenary action between the same parties over the same

”52 However, if a plaintiff does not split his or her claims at

lease in another court.
the time he or she brings the summary possession action, he or she will thereafter
be barred from later bringing a different claim arising out of the same transaction

OI` OCCI,lI`I`€IlC€.53

ln contrast, defendants in the JP Court who wish to bring counterclaims

 

49 Notably, the Delaware Courts’ website expressly notes that personal injury claims are
exempted from tire matters over which the JP Courts have jurisdiction

311251.')1»1. i'. § 5201,

"' Newarlr iS'lrr)pplng (.`1‘)‘. Owner, LLC v. Pi:za tlniv. of`£)elaware. lnc., 2016 WL 3951719, at *2
(Del. Super. July 14, 2016) (citing Bomba’s Restaurant &. Cocktail Lounge, Inc. v. Lora' De La
Warr Hotel, Inc., 389 A.2d 766, 770 (Del. 1978) (“There is nothing in the summary possession
statute which in any way reflects a legislative intention to enlarge the jurisdictional limits of [the
Justice of the Peace Court]")); c_'/.` Mells' v. Brllops, 482 A.2d 759, 761 (Del. Super. 1984)
(lio[ding that re.r_,imlfcara 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 claiins.").

33 sam/m '.s», 339 A.2d ar 770;.1-1»2»@1§-11 stewart shopping Czr., 2010 wL 3951719, at *2.

33.)1»;1»1.' 1». 111-111111)arrgh, 1995 WL 264555‘ ar *11 (Del. super Apr, 19, 1995).

12

outside of the JP Courts’ jurisdiction and arising out of the same transaction or
occurrence are not barred by res judicata from later bringing those claims in a
court of competent jurisdiction ln Jankus v. Petroleurn Equipment, Inc.,54 the
plaintiff filed a debt action in the JP Court. ln response, the defendant asserted a
personal injury counterclaim, which was properly dismissed by the JP Court for
lack of jurisdiction5 5 When the defendant subsequently brought the personal
injury claim in Superior Court, the plaintiff moved to dismiss the claim on the
basis of res judicata56 The Superior Court in Jankus rejected the plaintiffs
argument, based on the following reasoning:
[R]es judicata will bar [the plaintiff] from bringing another claim
[arising out of the same incident, accident, or transaction] in another
court. But there is a difference if you are a defendant As a
defendant, you are forced into court and have no say in the forum
selection Thus, the risk of loss of a potential claim under res judicata
should not be applied in this situation57
Neither party brought Jankus to the attention of the Court of Common Pleas during
the hearing on East Pointe’s Motion to Dismiss.
Here, McManus’ personal injury claim arises out of the same transaction as

her retaliation counterclaim in the First Action. Had McManus simply reasserted

her retaliation claim here, the Court of Common Pleas’ holding Would have been

 

34Jankus, 1996 wL 453329, at *1.
55
Id.
36 1a
33 Id.

13

appropriate However, McManus now asserts a claim based on a theory of
personal injury. Therefore, the Superior Court’s holding in Jankus is applicable to
the instant case. Even though McManus’ counterclaim arises out of the same set of
facts and circumstances as those which gave rise to East Pointe’s summary
possession claims against her, her personal injury claim is not barred by res
judicata because McManus was the defendant in the summary possession cases
and the JP Court does riot have jurisdiction over personal injury claims. Jankus
makes clear that McManus is entitled to have her personal injury claim fully and
fairly heard by a court of competent jurisdiction58

Under 10 Del C. § 9301, while the JP Court had jurisdiction to consider
McManus’ retaliation counterclaim, it did not have jurisdiction to consider a
personal injury claim arising out of the same transaction Therefore, the JP Court’s
determination that McManus’ retaliation claim had no merit has no res judicata

effect on her personal injury claim.

 

33 See Jankus, 1996 wL 4532»29'1 ar *1.
14

VI. CONCLUSION
F or the foregoing reasons, upon careful and de novo review, the decision of
the Court of Common Pleas is REVERSED.

IT IS SO ORDERED.

    

 

President Judge

15

