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McManus v. East Pointe Apartments

Superior Court of Delaware

April 17, 2017

KIM MCMANUS, Plaintiff,

          Submitted: February 13, 2017

         Upon Appeal from the Decision of the Court of Common Pleas: REVERSED.

          Kim McManus, Pro se Plaintiff-Below, Appellant.

          Michael P. Morton, Esquire, Nicole M. Faries, Esquire, Michael P. Morton, P.A., Attorneys for Defendants-Below, Appellees.


          Jan R. Jurden, President Judge


         Plaintiff-Below, Appellant Kim McManus has appealed the Court of Common Pleas' bench ruling granting Defendants-Below, Appellees' Motion to Dismiss the Complaint. For the reasons set forth below, the bench ruling of the Court of Common Pleas is REVERSED.


         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 injuries.[1] After oral argument on Appellees' Motion to Dismiss McManus' Complaint, the Court of Common Pleas dismissed the case on the basis of res judicata.[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 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 ophthalmologist.[5]

         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 apartment.[7] On June 14, 2013, a young man who McManus claims was pretending to be an exterminator showed up at McManus' apartment.[8] McManus alleges that he came in and "simply looked around and said, 'I don't see any termites, if you see any more termites let us know.'"[9] 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 for.[11] Because he could not provide her with identification or a business card, McManus refused to let him into her apartment, and told him to come back when he was able to produce proof of identification.[12] According to McManus, the young man never returned.[13]

         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 apartment.[15]

         McManus claims that because of the injuries to her right eye, she is now insecure with her appearance and has been unable to seek employment.[16] 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 ("JP Court"), [18] seeking unpaid rent and late fees.[19] On September 12, 2013, a three-judge panel 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 counterclaim.[22]

         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, and June 2013. It appears that the Complaint filed is exactly the same as the Complaint previously filed ... for which Plaintiff has already received a judgment.[26]

         The JP Court in the Second Action also dismissed McManus' retaliation counterclaim with prejudice:

In regard to the Defendant's counterclaim relating to allegations of retaliation, Defendant asserts that the Plaintiffs 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-13-12-007849 and was found to be unable to meet her burden of proof relating to the issue. Consequently, the matter is considered to be Res Judicata, 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 counterclaim.[28] 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 dismissal.[30] As to McManus' counterclaim, the panel held:

Defendant McManus' counterclaim alleging retaliatory acts by the landlord is barred by the doctrine of res judicata. In the previous case (JP13-13-007849) McManus argued that the landlord's sole reason for attempting to terminate her lease was because she had complained about termites 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 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 with prejudice.[31]

         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]

         C. The Personal Injury Action on Appeal

         On February 28, 2014, McManus filed the instant personal injury action in the Court of Common Pleas. In response, Appellees moved to dismiss, arguing that the issues alleged in the Complaint are barred by the doctrine of res judicata, [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 counterclaim.[35] 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 related to the counterclaim when she asserted it in the JP Court during the First Action.[38] 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 judicata[40]


         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 de 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 Plaintiffs 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 concerned.[44]

         V. ...

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