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Papadopoulos v. WBCMT 2006-C29 NC Office, LLC

Superior Court of Delaware

October 1, 2018

NICOLE PAPADOPOULOS, Plaintiff,
v.
WBCMT 2006-C29 NC OFFICE, LLC, LANARD & AXILBUND, LLC d/b/a COLLIERS INTERNATIONAL, COLLIERS INTERNATIONAL USA, LLC, 15 READ'S WAY LLC, THE COMMONWEALTH GROUP LTD and ELITE CLEANING CO., INC. d/b/a ELITE BUILDING SERVICES, Defendants.

          Date Submitted: June 26, 2018

         On WBCMT, LLC's Motion to Dismiss. Granted.

          Ryan S. Zavodnick, Esquire, Zavodnick, Zavodnick, and Lasky, LLC, Attorney for Plaintiff.

          Matthew G. Summers, Esquire, Ballard Spahr LLP, Attorney for Defendant WBCMT.

          Sarah B. Cole, Esquire, Marshall Dennehey Warner Coleman & Goggin, Attorney for Defendants Read's, LLC and The Commonwealth Group, LLC.

          OPINION

          Calvin L. Scott, Jr. Judge.

         Background

         Delaware common law holds individuals in occupation and control of land liable for harm caused to invitees by known dangers upon the property. Plaintiff was injured on a commercial property that was in foreclosure where a receiver pendente lite had been appointed by the Court of Chancery for the benefit of the lender.

         Defendant WBCMT was the mortgage holder of the commercial property located at 11, 13, & 15 Reads Way prior to December 2013 when it filed a complaint in Scire Facias Sur Mortgage against co-Defendant to the immediate action, Reads, LLC (Reads). In July 2015, prior to a final judgment in the mortgage action WBCMT filed a complaint for appointment of a Receiver Pendente Lite against Read's in the Court of Chancery. The Court of Chancery granted WBCMT and Read's stipulated and proposed order for the appointment of a receiver on December 17, 2015.

         On January 8, 2016 Plaintiff was allegedly injured when an aerosol can ejected from a wall mounted aerosol dispenser in the women's restroom of the property known as 11 Reads Way. Plaintiff filed this action against the various defendants in December 2017.

         Defendants Read's, LLC and The Commonwealth Group, LLC's cross claimed for contribution and/or indemnification from the other named Defendants. Defendant WBCMT filed this motion to dismiss on March 8, 2018. Defendants Read's and The Commonwealth Group oppose the motion.

         Parties Assertions

         WBCMT argues several theories that they argue prevent a finding of liability on their part. WBCMT argues they did not own, possess, manage, or operate the property, and the "for the benefit of the lender" language in the Order does not impose liability for the receiver's actions. WBCMT states any interpretation of the Receivership Order falls within the exclusive jurisdiction of the Court of Chancery. Additionally, WBCMT asserts they cannot be sued as the entity has been wrapped up and no longer exists and that there was no contractual relationship between the receiver and WBCMT at the time of the incident that would impose liability.

         Commonwealth argues dismissal is premature and further discovery is needed to determine the level of possession and control WBCMT exerted over the property in question. Commonwealth states the Receivership Order grants some possession and control to WBCMT while displacing Commonwealth from that distinction. Next, Commonwealth states the Delaware LLC Act permits a dissolved LLC to be held liable when obligations are known to the LLC at the time of dissolution. ...


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