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Kathleen Morgan and Turkeys, Inc. v. Limestone Valley Enterprises, LLC

Superior Court of Delaware, New Castle

February 18, 2015

KATHLEEN MORGAN and TURKEYS, INC., Plaintiffs/Petitioners/Appellants,
v.
LIMESTONE VALLEY ENTERPRISES, LLC, Defendant/Respondent/Appellee.

ORDER

John A. Parkins, Jr. Judge.

1. Petitioners ask this court to issue a writ of certiorari reviewing an adverse holding of a three judge panel of the Justice of the Peace Court. Petitioner Morgan's check for the payment of filing fees in this court was returned for lack of sufficient funds. Consequently, petitioners have added a request for leave to proceed in forma pauperis. This court previously struck the petition of Turkeys Inc. because it was not signed by a member of this court. At the same time it ordered petitioner Morgan to show cause why her claim should not be dismissed for lack of standing. Petitioners have responded to that order, and this is the court's final judgment in this matter. It has not previously acted on the request to proceed in forma pauperis because that application was only recently filed.

Facts and Procedural History

2. Turkeys Inc. was at one time a franchisee of Capriotti's, Inc. and operated a sandwich shop using the Capriotti's name in the Lantana Square Shopping Center. Petitioner Morgan was the sole stockholder and officer of Turkeys. It appears that Morgan personally guaranteed at least some of Turkeys' financial obligations.

3. For reasons which are not clear, Turkeys apparently fell into financial trouble. One creditor, Geoffrey Scott, brought suit in this court against Turkeys and Morgan, who was the guarantor of Turkeys' debt to Scott. He ultimately obtained a judgment against both for $298, 000 and in 2013 he began to levy on the goods and chattels at the sandwich shop.

4. Limestone Valley Enterprises, LLC owned the premises which Turkeys used as the sandwich shop. Limestone and Turkeys entered into the lease in 2008 and Turkeys began operation soon thereafter. A few weeks after he obtained his judgment, Scott served a writ of attachment on Limestone seeking to attach Turkeys' interest in the Limestone-Turkeys lease. The issuance of the writ of attachment constituted an event of default by Turkeys under the lease. In May 2014 Limestone notified Turkeys of the default and, without waiving its rights, allowed Turkeys time to cure the default by having the attachment vacated.

5. Turkeys did not cure the default, so in August 2014 Limestone filed an action against Turkeys for a writ of possession in the Justice of the Peace Court. Limestone sought no monetary relief against Turkeys and, accordingly, Morgan was not named as a defendant. Turkeys demanded a jury trial, which Limestone opposed on the basis that Turkeys waived any right to a jury trial in its lease with Limestone. The matter was tried before a single Justice of the Peace, who found in favor of Limestone. Turkeys appealed to a three judge panel of that court.

6. On October 20, 2014, the three judge panel found in favor of Limestone. In doing so it rejected Turkeys' request for a jury trial because of the waiver in the lease. The court found that Turkeys was in violation of its lease.

7. On November 17, 2014, Morgan and Turkeys filed a petition for a writ of certiorari in this court. No attorney entered an appearance on behalf of Turkeys.

8. Shortly thereafter this court entered an order which in pertinent part:

(a) struck Turkeys' petition because it was not signed by a member of the Bar of the Supreme Court of Delaware, and
(b) directed Morgan to explain why her petition should not be dismissed because she lacked standing since she was not entitled under the lease to possession of the premises.

Morgan timely responded to this court's order.

9. In response to this court's decision to strike Turkeys' petition because it was not signed by an attorney, Morgan asks this court to appoint an attorney to represent it. There is no basis for the court to appoint an attorney here. ...


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