    IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
                     IN AND FOR KENT COUNTY


JENNIFER A. LEIPOLD and                      )
DOUGLAS C. MANGELS ,                         )
                                             )
       Defendants-Below/Appellants,         )
                                             )
               v.                            )      C.A. No.: CPU4-13-000349
                                             )
CARRIE HUBBELL MELGAREJO,                    )
                                             )
       Plaintiff-Below/Appellee.             )


                              Submitted: February 17, 2014
                                 Decided: April 30, 2014

James J. Haley, Jr. Esq.                                    Donald L. Gouge, Jr., Esq.
1716 Wawaset St.                                            800 N. King St., Suite 303
Wilmington, DE 19806                                        Wilmington, DE 19801
Attorney for                                                Attorney for
Defendants-Below/Appellants                                 Plaintiff-Below/Appellee


                              DECISION AFTER TRIAL

       Defendants-Below/Appellants Jennifer A. Leipold and Douglas C. Mangels

(collectively as “Tenants”) bring this de novo appeal from the Justice of the Peace

Court pursuant to 10 Del. C. 9570, et seq. entered on January 15, 2013. In the

complaint on appeal, filed on May 7, 2013, Plaintiff-Below/Appellee Carrie Hubbell

Melgarejo (“Landlord”) alleges that, pursuant to a written lease agreement between

the parties, Tenants rented real property (the “Property”) from Landlord.1 Landlord


1
 The court docket shows that this matter was originally captioned as “Jennifer A. Leipold
and Douglas Mangels v. Big Dog Properties, LLC.” On February 12, 2014, the parties filed
a stipulation to correct the caption of this matter as shown.
alleges that, due to actions of Tenants, the property sustained damages which

required repairs beyond normal wear and tear.            Landlord seeks damages in the

amount $2,865.21.

         Trial de novo was held on February 4, 2014. The Court heard testimony from

four witnesses and documentary evidence was submitted by both parties.2 At the

conclusion of trial, the Court reserved decision and the parties were permitted to

submit supplemental briefing. This is the Court’s final decision after trial.

                                          FACTS

         Tenants rented the Property from Landlord, pursuant to a written lease (the

“Lease”), commencing on October 31, 2010.                Landlord agreed to let Tenants

terminate the Lease early, and Tenants vacated the premises on or around May 20,

2011.

         At the trial on February 4, 2014, the Court heard testimony from four

witnesses called by Landlord: Michael Henning, Dominique Frederique, Jennifer

Leipold, and Robbin Hubbell-Kusami. Jennifer Leipold was the sole witness to

testify for Tenants. Documentary evidence was submitted by both parties.3 Michael

Henning (“Mr. Henning”) was the first witness to testify during Landlord’s case-in-

chief.    Mr. Henning works in hardwood flooring, specializing in installation,

refinishing, and repair. The second witness to testify was Dominique Frederique

(“Mr. Frederique”), a licensed general contractor who performed work on the


2
 List evidence
3
  Plaintiff’s exhibits 1 through 13 were received into evidence. Defendants’ exhibits 1
through11 were received into evidence.
                                              2
property after the Tenants vacated. Jennifer Leipold (“Ms. Leipold”), one of the two

tenants and named defendant in this action, testified during Landlord’s case-in-chief.

Ms. Leipold was also the only witness to testify for the defense. Finally, Robin

Hubbell-Kusami, co-owner of the property, testified on behalf of Landlord.

         The testimony at the hearing indicates that during the tenancy, Tenants hung a

number of items in the walls and ceilings of the property, despite a prohibition in the

lease against placing nails or other fasteners in the walls. Tenants also replaced a

shower rod in one of the bathrooms and took down cabinet doors in one of the

bedrooms. At Tenants’ request and with permission, the Landlord removed the

existing washer and dryer so that Tenants could install their own washer and dryer.

Tenants also attached plastic to the windows, secured by tape to minimize cold air

draft.

         December, 2010, Tenants had furniture delivered, and when the items were

brought in the dwelling, it scratched and dented the hardwood floors on the stairs, on

the second floor hallway and in the master bedroom.

         After the Tenant vacated the property, the Landlord in June 2011 sent an

itemized list of damages to Tenants to the property, which was allegedly caused by

Tenants. Based upon this calculation, Landlord demands damages in the amount of

$2,865.21.4




4 In the letter, Landlord listed the total cost of damages to the Property as $4,977.21. To
reach the final outstanding balance of $2,865.21, Landlord subtracted from the total a rent
credit of $462.00; a security deposit of $1,250.00, and a pet deposit of $400.00
                                              3
       Specifically, Landlord seeks to recover the following:

    1. Outstanding Water Bill                                                  $38.22, $32
    2. Returned Check Fee                                                      $45.00
    3. Outstanding Mowing and Hauling                                          $65.00
    4. Patch/repair nail and screw holes throughout house                      $150.00
    5. Repaint bathroom 2 door                                                 $65.00
    6. Repair water in kitchen corner                                          $0.00
    7. Replace damaged screen door                                             $81.99
    8. Reinstall mailbox                                                       $15.00
    9. Remove plastic on window frames/kitchen door                            $0.00
    10. Remove glue from window plastic and repaint                            $630.00
    11. Remove glue from door plastic and repaint                              $65.00
    12. Repaint nail damaged wall                                              $75.00
    13. Remove water stains on heater register covers and repaint              $195.00
    14. Repair dining room molding damage                                      $15.00
    15. Repair and repaint kitchen ceiling                                     $170.00
    16. Repair hole in solid surface kitchen counter                           $150.00
    17. Repair wall and floor damage from laundry room                         $70.00
    18. Install missing laundry room light bulb/fixture cover                  $0.00
    19. Reinstall hall light fixture cover                                     $0.00
    20. Repair second floor hall wall and repaint                              $175.00
    21. Repair second floor hardwood floors                                    $1,900.00
    22. Repair staircase and landing                                           $790.00
    23. Repair bathroom 2 cabinet doors and built-in base                      $250.005

    The amount which Landlord seeks of $2,865.21, is calculated to give a credit in

the amount of $462.00; a security deposit in the amount of $1,250.00; and, a pet

deposit in the amount of $400.00.

    Tenants denied they damaged the property and takes the position that the alleged

damage to the property, with the exception of scratches to the second floor

hardwood floors, existed prior to their possession of the property or was the result of

normal wear and tear. As to the alleged damage to the hardwood floors, Tenants

5
 Landlord originally sought to recover $32.00 for an estimated water bill, however, at trial
Landlord stated that it was no longer pursuing that charge.
                                               4
concede that certain scratches to the second floor hardwood occurred during their

tenancy, however, Tenants maintain that such damage was covered by insurance.

                                       DISCUSSION

    In a landlord-tenant action for damages, the burden is on the plaintiff to prove

the alleged damages by a preponderance of the evidence.6 To prevail on a claim for

damages, the plaintiff must establish that the damages are beyond normal wear and

tear.7 Normal wear and tear consists of damage that may “be corrected by painting

and ordinary cleaning.”8 If the landlord proves that damages could only be remedied

by repairs above and beyond normal wear and tear, landlord can use the security

deposit to cover the costs associated with repairs of such actual damages,9 where it

followed the statutory notice provisions in 25 Del. C. § 5514.

    The Court will address in chronological order each item which Landlord seeks to

recover. All relevant testimony will be discussed in the context of the listed item of

damage. Those items for which Landlord seeks no monetary recovery are omitted as

moot.

    1. Outstanding Water Bill         $38.22 and $32.00

    The Lease required Tenants to pay any water charges in excess of the City of

Wilmington’s base price.10        Ms. Hubbell-Kusami testified that the City of

Wilmington’s base price is $80.48, and that water bills in excess of that amount


6
  BRG, LLC v. Brinsfield, 2010 WL 1413004, at *2 (Del. Com. Pl. March 4, 2010).
7
  See Id.
8
  25 Del. C. § 5514(c)(1)).
9
  Id.
10
   Pl.’s Ex. 4 at ¶ 12.
                                             5
remain unpaid by Tenants, the sum of which totals $38.22 and $32.00. In support of

its position, Landlord submitted two quarterly statements, both of which bore a

balance of over $80.48.11 Ms. Leipold, on the other hand, testified that she had no

knowledge of any outstanding water bill, despite daily communication with Landlord.

     The Court finds that Landlord has proven, by a preponderance of the evidence,

that Tenants are responsible for the excess water bills in the amounts of $38.22 and

$32.00 respectively.

     2. Returned Check Fee                    $45.00

     The Lease provides that a fee of $45.00 for each returned check.12 Landlord

contends that it is entitled to payment of $45.00 for a check from Tenants dated May

19, 2011, which was returned due to a stop payment. Ms. Leipold testified that, upon

receiving notice that the bill the check was intended to cover remained outstanding,

Tenants stopped payment on the check, notified Landlord of the stopped payment,

and hand-delivered a check to Landlord’s legal counsel.

     The Court finds the testimony of Ms. Leipold to be credible. Landlord was on

notice that payment on the check had been stopped, and a replacement check was

provided. Thus, the Court finds that Landlord is not entitled to recover for the

returned check fee of $45.00.

     3.   Outstanding Mowing and Hauling               $65.00


11
   Pl.’s Ex. 8. The first quarterly statement, dated December 15, 2010, shows a balance of
$93.22, which is $12.74 over the base price according to Landlord. The second quarterly
statement, dated March 18, 2011, shows a balance of $105.96, which is $25.48 over the
purported base price.
12
   Pl. Ex. 4 at ¶ 2.
                                              6
     Under the Lease, the Tenants were required to keep the grounds “in a reasonable

and prudent manner” including “cutting the grass, [and] keeping the area free of litter

and weeds.”13 Ms. Hubbell-Kusami testified that the grass was so high a ticket was

issued. Landlord submitted into evidence copies of a check in the amount of $65.00

issued to Clean Slate for lawn services.14 Tenants offered nothing to rebut the

evidence of the damages incurred for lawn services.

     The Court finds that Landlord has proven, by a preponderance of the evidence,

that Landlord is entitled to recover the amount of $65.00 for lawn services.

     4. Patch/repair nail and screw holes throughout house                 $150.00

     The Lease prohibited “placing any nails or other wall fasteners on the walls.”15

Ms. Leipold testified that Landlord explained that this provision did not apply to

Tenants. Furthermore, Ms. Leipold testified that she did not further consider the

prohibition against hanging items because she considered such a rule to be an unusual

term of a residential lease. Ms. Leipold testified that she did hang a few items,

including curtains, a pots and pans rack, a picture, and a mirror.

     Ms. Leipold testified that Tenants patched the minimal number of holes created

with spackle prior to vacating the property.         Tenants submitted into evidence

photographs of the areas patched by Tenants.16



13
   Pl. Ex. 4 at ¶ 13.
14
   Pl. Ex. 10.
15
   Pl. Ex. 4 at ¶ 14.
16
   Defs. Exhibits 2 through 10 are photographs of the Property. Ms. Leipold testified that
Defs. Ex. 5 showed the walls where nail hole damage was made and subsequently patched by
Tenants.
                                            7
     Ms. Hubbell-Kusami, on the other hand, testified that she did not give Tenants

permission to hang items in the Property. Ms. Hubbell-Kusami testified that there

were a total of 30 nail and screw holes in the property that required repair.

     Mr. Frederique testified that he sanded, plastered, primed, and painted nail holes

throughout the property. The documentary evidence submitted by Landlord shows

that Mr. Frederique billed Landlord $150.00 for these repairs.17

        The Court finds that, based on the testimony and the evidence the amount

demanded here comes within what would be considered normal wear and tear;

therefore, not subject to recovery,18 because there is no indication the holes exceeded

which was reasonable.

     5. Repaint bathroom 2 door             $65.00

     The Landlord Tenant Code identifies normal wear and tear to be damage that

may “be corrected by painting and ordinary cleaning.”19 There is nothing in the

record to suggest that the repainting of “bathroom 2 door” required more than mere

painting. Thus, repainting of the door is not damage beyond normal wear and tear,

and the Court finds that Landlord cannot recover for the costs associated therewith.

     6. Replace damaged screen door         $81.99

     No testimony identified the nature of the alleged damage to the screen door. It is

the uncontroverted testimony of Ms. Leipold that the screen door was old and dirty

when they moved into the property. The Court finds that Landlord has failed to


17
   Pl. Ex. 2.
18
   Def. Ex. 5.
19
   25 Del. C. § 5514(c)(1).
                                            8
prove, by a preponderance of the evidence, that the screen door sustained any

damage and thus, Landlord is not entitled to recovery for the screen door.

       7. Reinstall mailbox $15.00

       Mr. Frederique testified that he did not repair the mailbox. The invoice submitted

by Mr. Frederique for the work performed at the property shows a charge of $0.00

for reinstalling the mailbox.20 Landlord offered no further testimony in support of its

position that it incurred damages in the amount of $15.00 for reinstallation of the

mailbox.          Accordingly, the Court finds no basis for an award of damages for

reinstalling the mailbox.

       8. Remove glue from window plastic and repaint              $630.00

       Ms. Leipold testified that she used tape purchased from Home Depot to attach

plastic to the windows as a means of keeping out cold air. Mr. Frederique likewise

testified that some people tape the windows to keep cold air out. Mr. Frederique

testified that he had to remove the tape and plastic from the window, then sand and

paint the area with lead blocker paint.

       Landlord failed to establish that the damage to the window plastic was beyond

normal wear and tear. Mr. Frederique was familiar with the practice of taping the

windows for climate control. It appears, based on the testimony presented, that such

a practice is not uncommon or beyond the normal wear. To the extent that painting

of the window plastic was required, such repair is precisely the type of normal wear

and tear contemplated under the Landlord Tenant Code. Further, I fail to see a basis


20
     Pl. Ex. 2.
                                             9
for recovery when the window was deficient in keeping cold air from entering the

unit.

   The Court finds that Landlord has failed to prove, by a preponderance of the

evidence, that the damage to the window plastic exceeded normal wear. Accordingly,

Landlord is not entitled to recover for damages thereto.

   9. Remove glue from door plastic and repaint            $65.00

        Ms. Leipold testified that tape to adhere the plastic to the door because it was

cracked, however, there is no evidence how the door was damaged or when this

occurred. Landlord failed to establish that the crack in the door is attributable to

Tenants. Therefore, I find no basis to award this amount, and it is denied.

   10. Repaint nail damaged wall             $75.00

   To the extent that this request for damages includes the painting of certain areas

set forth in item four, a second award for painting nail-damaged areas would

constitute double recovery. To the extent that Landlord seeks to recover painting the

entire wall, as opposed to the limited area where plaster was required, the Court finds

that such damage constitutes normal wear and tear.

    As set forth in the Landlord Tenant Code, damage that can be repaired by simply

painting is considered normal wear and tear. Thus, the Court finds that Landlord is

not entitled to recover for repainting of the wall.

   11. Remove water stains on heater register covers and repaint $195.00

        Landlord seeks to recover for damage to three radiator covers.              Mr.

Frederique testified that the radiator covers bore marks from cups or plant pots,


                                           10
which required sanding and repainting. Ms. Hubbell-Kusami testified that Tenants

had placed a plant on one of the radiator covers in the living room. Ms. Leipold

conceded that one plant was placed on a radiator cover, but she maintains that the

only one plant was so placed. To the extent that this required sanding and repainting

to address the stains on the radiator cover, it does not come within normal wear and

tear.

        The Court finds that Landlord proved by a preponderance of the evidence

that the damage to the radiator covers is attributable to Tenants therefore the sum of

$195.00 is awarded.

    12. Repair dining room molding damage $15.00

        The testimony does not support that Tenants engaged in any activity which

indicated they damaged the molding or that it was not damaged prior to their

occupancy. The Court finds that Landlord failed to prove that Tenants caused any

damage to the dining room molding beyond normal wear and tear. Accordingly, the

Court awards no damages to Landlord for repair to the dining room molding.

    13. Repair and repaint kitchen ceiling               $170.00

    The testimony indicates Tenants installed a rack to hang pots and pans on the

kitchen ceiling. This required the Landlord to repair the ceiling which is beyond

normal wear and tear. Thus, the Court awards damages to Landlord for repair and

repainting of the kitchen ceiling.

    14. Repair hole in solid surface kitchen counter            $150.00




                                         11
   Ms. Hubbell-Kusami testified that, due to a hole that could not be repaired, a

portion of the kitchen countertop had to be replaced. Ms. Leipold testified that the

small hole in the kitchen counter existed prior to Tenants taking possession.

However, Mr. Frederique, the general contractor testified he did work to the counter

to correct an attempted repair which was not completed properly.

   Thus, I find that the Landlord has proven damages by a preponderance of the

evidence.

   15. Repair wall and floor damage from laundry room                  $70.00

   The Court finds that Landlord failed to prove that any damage to the wall and

floor of the laundry room, the testimony does not support that this exceeded normal

wear and tear. Thus, Landlord cannot recover for the repair of the wall and floor of

the laundry room.

   16. Repair second floor hall wall and repaint                $175.00

   There was no testimony presented at trial which suggests that there was damage

to the walls of the second floor beyond that created by the nail holes as discussed in

item four. To the extent that Landlord seeks to recover painting the entire wall, as

opposed to the limited area where plaster was required, the Court finds that such

damage constitutes normal wear and tear. Thus, the Court finds that Landlord is not

entitled to recover for repainting of the second floor wall.

   17. Repair second floor hardwood floors          $1,900.00
             and
   18. Repair staircase and landing                 $790.00




                                           12
     Mr. Henning testified that he was hired by Nationwide Insurance to provide an

estimate for the cost of repairing the hardwood floors in the property. On March 28,

2011, Mr. Henning visited the property and recorded the damage observed therein.

Mr. Henning testified that one of the tenants showed him the damage caused by

furniture. Mr. Henning testified that he observed scratches in the wood on the

second floor as well as dents in two stairs and in the hallway. Mr. Henning testified

that other scratches were present throughout, which were the result of normal wear

and tear.

     On June 2, 2011, Mr. Henning repaired the hardwood floors, at a total cost of

$2,690.00.21   The area repaired exceeded the area actually damaged by Tenant’s

moving of furniture; three bedrooms, the stairs, and the landing were all sanded and

refinished. Mr. Henning testified that typically, when one section of a floor requires

repair, the entire area is re-done so that the flooring looks consistent throughout.

     Mr. Henning testified that he worked on the first floor of the property roughly a

year prior; however, he only did work on the first floor at that time. Mr. Henning

testified that, although hired by Nationwide Insurance for the repair estimate, he was

not paid by Nationwide Insurance.22

        Ms. Leipold conceded that the delivery of furniture caused some scratches to

the hardwood floors; however, she argues that the minimal damage caused by

Tenants did not warrant redoing the entire second floor, stairs, and landing.


21
 Pl. Ex. 1.
22
 Pl. Ex. 1 shows a check was issued from the account of Robin Kusami to Hennings
Hardwood Floors on June 14, 2011, in the amount of $2,690.00.
                                           13
        At the conclusion of the trial, the parties were ordered to submit supplemental

briefing regarding the damage to the hardwood floors. The Court ordered the parties

to address whether, “where there is damage to rental property and repair requires the

landlord to enhance other areas, can a tenant can be held liable for the entire cost

where the repair increases the value of the property.”

        In their written submissions, the parties concede there is no case law on point

to address this issue. Tenants argue that to award Landlord the full cost of the repair

would constitute unjust enrichment. Tenants maintain that the Court should offset

any award to Landlord for refinishing the stairway, landing, and second floor of the

property by the value of the refinishing job attributable to the undamaged bedrooms

and the undamaged stairs. Landlord counters that the Tenants cannot establish the

elements of unjust enrichment because they admittedly caused the damage to the

floors thereby requiring the repairs. Landlord contends that it had not planned to

repair the hardwood floors and, but for the acts of the Tenants, the repair work

would not have been necessary.

        Tenant’s unjust enrichment argument is without merit. To prevail on an

unjust enrichment theory, Tenants must prove the following elements: (1) an

enrichment; (2) an impoverishment; (3) a relation between the enrichment and

impoverishment; (4) the absence of justification; and (5) the absence of a remedy

provided by law.23



23
  Nemec, 991 A.2d at 1129, see Jackson Nat. Life Ins. Co. v. Kennedy, 741 A.2d 377, 394 (Del. Ch.
1999).
                                               14
           The Court finds that there is sufficient justification because Tenants caused

the underlying damage that required repair. Furthermore, a legal remedy exists in the

form of damages as outlined in contract law. Due to the nature of the claim, an

adequate legal remedy may be found in the form of damages based upon contract

law. In contract law, “[o]ne who is injured by the breach of a contract is entitled to

compensation for the injury received. The compensation should be such as will place

him in the same position that he would have been in if the contract had been

performed. The measure of damages is the loss actually sustained as a result of the

breach of the contract.”24

           Tenants breached the contract by damaging the floors.                  But-for Tenants

breach, repairs would not have been required. To return Landlord to the position it

would have been in had the contract not been breached, refinishing the entire second

floor, stairs, and landing was necessary. Thus, unjust enrichment does not apply, and

Landlord is entitled to recover the damages incurred. The Court finds that Landlord

may recover the full cost of repairs to the damaged floors in the amount of $2,690.00.


      19. Repair bathroom 2 cabinet doors and built-in base                          $250.00

      Ms. Leipold testified that Tenants did remove the cabinet doors from the

bathroom; however, she maintained that the doors were re-hung prior to leaving the

property. Ms. Hubbell-Kusami testified that the cabinet doors in the bathroom were

removed and not replaced.



24
     J.J. White, Inc. v. Metropolitan Merchandise Mart, 107 A.2d 892, 894 (Del. Super. 1954).
                                                   15
     The Court finds that the testimony is sufficient to prove that Tenants caused any

damage to the bathroom cabinet doors and base beyond normal wear and tear. Thus,

Landlord is entitled to recovery to re-hang the doors, but the amount claimed is

excessive and the sum of $50.00 is awarded.25



                                      CONCLUSION

     For the foregoing reasons, the Court finds that Landlord is entitled to damages in

the amount of $3,396.22. Pursuant to 25 Del. C. § 5511(c), damages are offset by the

security deposit of $1,650.0026 and rent credit of $462.00.27 Therefore, judgment is

entered for Landlord in the amount of $1,284.22, costs and post-judgment interest at

5.75% until paid. Each party shall bear its own costs.

     IT IS SO ORDERED this 30th day of April, 2014.



                                              _________________________________
                                              Alex Smalls, Chief Judge.




25
   To the extent that the cabinet doors were removed and not re-hung, which was likewise
proven by a preponderance of evidence, the Court finds that the damages sought in relation
thereto are reasonable.
26
   This figure represents the sum of the “pet deposit” of $400.00 and the “security deposit”
of $1,250.00. Pl. Ex. 3 and Defs. Ex. 1.
27
   Pl. Ex. 3 and Defs. Ex. 1.
                                             16
