CHRISTOPHER J. TIGANI, SR., Trustee and Individually, Plaintiff,
C.I.P. MANAGEMENT, LLC, a Delaware Limited Liability Company, Defendant.
MEMORANDUM ORDER GRANTING MOTION TO DISMISS
M. Davis, Judge.
a civil action arising from a commercial lease agreement (the
"Lease Agreement") between Defendant C.I.P.
Associates, LLC ("CIP"),  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
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.
reasons set forth below, the Court will
GRANT the Motion.
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
12.1 of the Lease Agreement addresses a default by the
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.
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.
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.
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.
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
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 . . . .
JP Court Action
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.
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.
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…."
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
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.
on August 3, 2018, CIP gained possession of the Property, and
completed WCW's eviction by August 6, 2018.
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
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
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….
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.
disposed of personal property at the Property on August 13,