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Tigani v. C.I.P. Management, LLC

Superior Court of Delaware

July 24, 2019

CHRISTOPHER J. TIGANI, SR., Trustee and Individually, Plaintiff,
v.
C.I.P. MANAGEMENT, LLC, a Delaware Limited Liability Company, Defendant.

          MEMORANDUM ORDER GRANTING MOTION TO DISMISS

          Eric M. Davis, Judge.

         This is a civil action arising from a commercial lease agreement (the "Lease Agreement") between Defendant C.I.P. Associates, LLC ("CIP"), [1] acting as a landlord, and tenant World Class Wholesale, LLC ("WCW") for property located at 230 Cornell Drive, Suite C1, Wilmington, DE (the "Property"). Plaintiff Christopher J. Tigani, Sr. is the manager of WCW and entered into a surety agreement (the "Surety Agreement") with CIP in which Mr. Tigani promised to perform the obligations of WCW in the Lease Agreement. WCW was evicted from the Property for overdue rent.

         On December 18, 2018, Mr. Tigani filed a complaint (the "Complaint") against CIP alleging (i) conversion and (ii) replevin of his personal property from the Property. Mr. Tigani is representing himself pro se. CIP filed Defendant's Motion to Dismiss (the "Motion") on January 24, 2019. Mr. Tigani filed a response to the Motion ("Response") on February 26, 2019. After a hearing, the Court asked for some additional briefing. Mr. Tigani filed a supplemental brief on April 22, 2019. CIP responded to that filing on April 25, 2019. On April 26, 2019, Mr. Tigani submitted a letter responding to CIP's April 25 filing. Thereafter, on April 28, 2019, CIP found it necessary to respond to Mr. Tigani's April 26 letter.

         For the reasons set forth below, the Court will GRANT the Motion.

         I. BACKGROUND

         The Lease Agreement

         The relationship between the parties is one involving a commercial rental space-the Property. The Lease Agreement is dated November 14, 2017. The parties to the Lease Agreement are C.I.P. and WCW. The Surety Agreement is separate agreement that was entered into at the same time as the Lease Agreement. The parties to the Surety Agreement are Mr. Tigani and CIP.

         Section 12.1 of the Lease Agreement addresses a default by the tenant,

Tenant will be in default of this Lease if any payment is received after it is due. Tenant will be in default if Tenant fails to observe or perform any non-monetary agreement or obligation herein if Tenant fails to begin and diligently pursue curing the same within ten (10) days of Landlord giving notice of the violation.

         Section 12.1 continues that the "Landlord shall have all rights and remedies available to Landlord provided by law or equity even if not expressly set forth in this Lease." Section 10 of the Lease Agreement discusses abandonment of the tenant's personal property,

Landlord may, but need not, deem abandoned any personal property (including but not limited to fixtures, trade fixtures, supplies and equipment) remaining in the Leased Premises at the expiration or earlier termination of this Lease and Landlord may without notice remove and dispose of the same in any manner Landlord desires and may repair and restore any damage caused thereby, all at Tenant's sole cost and without liability to Tenant.

         The Lease Agreement specifies that Section 10 survives the termination of the Lease. Section 28 of the Lease Agreement regarding notices states,

LANDLORD MAY SEND NOTICES OF TENANT DEFAULT SOLELY TO THE LEASE PREMISES VIA ORDINARY U.S. EMAIL OR VIA PERSONAL DELIVERY TO THE LEASED PREMISES. A NOTICE WILL BE DEEMED GIVEN ON THE DATE IT WAS RECEIVED BY THE ADDRESSEE AS EVIDENCED BY PERSONAL DELIVERY TO THE LEASED PREMISES (OR POSTING THERON), RETURN RECEIPT, OR IF A REQUESTED RETURNED IS NOT SIGNED, NOTICE WILL BE DEEMED GIVEN TWO DAYS AFTER MAILING OF THE NOTICE.

         Finally, Section 31 of the Lease Agreement states that the parties waive their rights to a trial by jury. Despite this, Mr. Tigani has requested a jury trial in this case.

         In the Surety Agreement dated November 14, 2017, Mr. Tigani agreed to become a surety for the obligations of WCW under the Lease Agreement. In Section 4 of the Surety Agreement, the parties agreed to

THE SURETY [MR. TIGANI] HEREBY IRREVOCABLY WAIVES AND RELEASES ANY AND ALL RIGHTS IT MAY HAVE AT ANY TIME (WHETHER ARISING DIRECTLY OR INDIRECTLY, BY OPERATION OF LAW, CONTRACT OR OTHERWISE): (A) TO ASSERT ANY CLAIM AGAINST TENANT OR ANY OTHER PERSON, OR AGAINST ANY DIRECT OR INDIRECT SECURITY, ON ACCOUNT OF PAYMENTS MADE OR OBLIGATIONS PERFORMED UNDER OR PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY AND ALL RIGHTS OF SUBROGATION, REIMBURSEMENT, EXONERATION, CONTRIBUTION OR INDEMNITY . . . .

         The JP Court Action[2]

         On March 29, 2018, CIP filed a complaint, under 25 Del. C. § 5704, in the Justice of the Peace Court of the State of Delaware in and for New Castle County, Court No. 13 (the "JP Court"). The case named WCW and Mr. Tigani as defendants and was captioned CIP Associates, LLC v. World Class Wholesale, LLC and Christopher Tigani (Surety), JP13-18-004018 (the "JP Court Action"). Through the suit, CIP sought possession of the Property and overdue rent.

         On May 8, 2018, the JP Court held a hearing on CIP's complaint. WCW and Mr. Tigani failed to appear at a hearing for the case. As such, CIP asked for a default judgment in the amount of $15, 041.50.

         On July 9, 2018, the Justice of the Peace Court issued a notice and order of default judgment (the "Notice"). The Notice was mailed to WCW and Mr. Tigani. A Justice of the Peace signed the Notice. The Notice states that judgment has been entered "[b]ecause [WCW and Mr. Tigani], after receiving proper service of process, have failed to timely file an answer or appear for a scheduled trial…."

         WCW and/or Mr. Tigani failed to (i) appeal the default judgment, or (ii) to move to vacate the debt by July 19, 2018. In addition, Mr. Tigani and/or WCW did not seek any remedy under 25 Del. C. § 5711(b). As stated in the Notice, CIP had "30 days from this signed Order to file a Writ of Possession."

         On July 26, 2018, CIP requested, under 25 Del. C. § 5715, the issuance of a Writ of Possession (the "Writ Request"). CIP sent notice of the Writ Request to WCW and Mr. Tigani. On August 1, 2018, the JP Court entered a notice and order of eviction (the "Eviction Notice"). The Constable posted the Eviction Notice on the Property on August 2, 2018. WCW and/or Mr. Tigani did not respond to the Writ Request or the Eviction Notice.

         Then, on August 3, 2018, CIP gained possession of the Property, and completed WCW's eviction by August 6, 2018.

         WCW and/or Mr. Tigani did not seek to say the JP Court action under 25 Del. C. § 5716. In addition, neither WCW nor Mr. Tigani sought to stay the JP Court action under 25 Del. C. § 5717. No appeal has ever been filed with respect to the JP Court's judgment in the JP Court Action.

         On August 8, 2018, CIP sent a letter (the "Notice of Disposal Letter") to WCW care of Mr. Tigani. The Notice of Disposal Letter provides a history of the JP Court Action. In addition, CIP notes that it has "discovered numerous items of Tenant's personal property remained in the Premises (collectively, the "Property"). CIP expressly provides:

Notice is hereby given that unless you make immediate arrangements with the Landlord for removal of the Property at your cost, including but not limited to payment of the sum of Four Hundred and Twenty-Four and 26/100 Dollars ($424.26) as and for Landlord's cost of storing the Property during the period of August 3, 2018 through August 10, 2018, Landlord intends to dispose of all such personal property as it deems necessary or desirable. If you intend to remove the Property, you must contact the property manager….

         CIP sent the Notice of Disposal Letter by certified mail, return receipt requested to 1140 Presidential Drive, Greenville, DE 19807. The U.S. Postal Service attempted to deliver the Notice of Disposal Letter on August 10, 2018, August 16, 2018 and August 25, 2018. The U.S. Postal Service returned the Notice of Disposal Letter to CIP as unclaimed.

         CIP disposed of personal property at the Property on August 13, 2018.

         The ...


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