Opinion
C.A. No. 09C-11-008 WLW.
Submitted: May 10, 2011.
Decided: June 13, 2011.
Upon Defendants Anderson's Motion to Dismiss.
Denied.
Richard E. Berl, Jr., Esquire of Smith O'Donnell Feinberg Berl, LLP, Georgetown, Delaware; attorneys for Plaintiff Halpern Family Property Investment, L.P.
Gary R. Dodge, Esquire of Gary R. Dodge, P.A., Dover, Delaware; attorneys for Defendants/Counterclaim Plaintiffs Tolando and Cathy Anderson.
Roy S. Shiels, Esquire and John E. O'Brien, Esquire of Brown Shiels O'Brien, LLC, Dover, Delaware; attorneys for Defendant Brown, Shiels O'Brien.
ORDER
ISSUE
Whether Mr. O'Brien is a necessary and indispensable party — such that the action must be dismissed in his absence.
FACTS
Halpern Investments ("Halpern") bought real property from Tolano and Cathy Anderson ("the Andersons") in February 2009. According to the complaint, there was an undisclosed $400,000 mortgage on the property. Halpern was represented during the transaction by John E. O'Brien, esq. of the law firm Brown, Shiels, and O'Brien, L.L.C. ("BSO"). Mr. O'Brien allegedly failed to identify the undisclosed mortgage during his title search.
Halpern sued the Andersons for breach of warranty, breach of contract, and fraud. Halpern later brought a separate action (now consolidated) against BSO for malpractice and breach of contract. The Andersons filed a counterclaim that suggests that Halpern (through BSO) knew or should have known of the existence of the mortgage. The Andersons subsequently filed a motion to add Mr. O'Brien and his partners as third party defendants. The Court denied the motion for joinder in an order dated January 26, 2011. The Andersons now move for dismissal on the grounds that Mr. O'Brien is a necessary and indispensable party. The motion is before the Court.
DISCUSSION
It is axiomatic that a plaintiff is the master of his complaint. Arguendo, Plaintiff might have sued Mr. O'Brien for malpractice and/or sued the Andersons (Defendant) for breach of warranty and associated causes of action. Plaintiff has chosen to proceed only against Defendant, and it is his right to do so. Defendant has tried to bring Mr. O'Brien into the case as a third party defendant. The Court declined to permit the joinder of that third party claim in its order dated January 26, 2011.
Now, Defendant argues that the case must be dismissed because Mr. O'Brien is a necessary party. A party is indispensable when complete relief cannot be accorded among the parties in the person's absence, or when the person to be joined claims an interest relating to the litigation that may be impaired by his absence or lead to multiple or inconsistent obligations.
Superior Court Civ. R. 19.
Defendant does not explain why the absence of Mr. O'Brien would render it impossible for the jury to determine whether or not Defendant sold a home with an undisclosed mortgage. Rather, the suggestion is that Plaintiff ought to have sued Mr. O'Brien rather than Defendant because, in Defendant's opinion, Mr. O'Brien is chiefly responsible for the damages at issue in this case. The argument fails because Mr. O'Brien's alleged contribution to the tortious injury would not make him an indispensable party. It may make him a joint tortfeasor, but it is well established that joint tortfeasors are not necessary parties. A plaintiff can chose to sue one or all joint tortfeasors, each of whom are jointly and severally liable for the damages. Thereafter, the tortfeasors may work out their proportionate liability through a contribution action.
Roberts v. Delmarva Power and Light, 2007 WL 2319761, at *3 (Del. Super Aug. 6, 2007).
Defendant's motion expresses Defendant's concern he could not pursue Mr. O'Brien in a contribution action because Mr. O'Brien owed no direct duty to Defendant. The argument betrays a misunderstanding of the law. A defendant may seek contribution from a party or nonparty who may be liable to the plaintiff on the underlying claim for which the defendant is being tried. Lutz v. Boltz, 100 A.2d 647, 648 (Del. 1953). Thus, Mr. O'Brien's liability in a contribution action would be predicated on his breach of duty to Plaintiff, not Defendant.
CONCLUSION
For the foregoing reasons, the Andersons' Motion to Dismiss is DENIED.IT IS SO ORDERED.