Opinion
C. A. No. 96C-02-019.
April 27, 2007.
Edward C. Gill, Esquire, DE 19947.
Craig Karsnitz, Esquire, DE 19947.
Eugene H. Bayard, DE 19947.
Dear Counsel:
It has been brought to my attention that there were two typographical errors in my decision of August 7, 1997 in this matter. Therefore, I am enclosing a corrected copy of that decision.
I call your attention to the last paragraph on page 4 where it states ". . . that the defendants' appeal was dismissed . . ." . That should read and now reads "that the plaintiffs' appeal was dismissed. . .". (emphasis added).
Also, in the last paragraph on page 5, it states ". . .but that thiscan be done in a trial de novo appeal". That should read and now reads ". . . but that this cannot be done in a trial de novo appeal". (emphasis added).
I have highlighted these 2 sections on the copy enclosed.
Dear Counsel:
On June 12, 1997, I issued a decision denying defendants' motion to dismiss. Defendants filed a timely motion to reargue and plaintiff responded to same. I granted reargument and after additional research, I am satisfied that my reliance on Court of Common Pleas' Civil Rule 19 was wrong. I hereby vacate the June 12, 1997 decision and issue this decision in its place.
FACTS AND PROCEDURAL HISTORY
This case is about a dispute over the ownership of a Great Dane named Harley. Plaintiff Tacia McIlvaine ("McIlvaine") filed an action in replevin in the Justice of the Peace Court No. 17 on November 6, 1995 against D. Vance Morris ("Morris") seeking the return of the Great Dane. Prior to trial, plaintiff, while 2 represented by counsel, amended her complaint. On December 21, 1995, a trial was held and on December 22, 1995, the Justice of the Peace awarded McIlvaine a judgment of $100 plus $45 in costs and ordered that Morris retain ownership of the dog. On January 2, 1996, McIlvaine filed an appeal of this decision in the Court of Common Pleas, pursuant to 10 Del. C. § 9571 and Court of Common Pleas Civil Rule 72.3. On February 20, 1996, while the appeal to the Court of Common Pleas was still pending, McIlvaine filed a complaint in this Court, individually and as next friend of her son, Preston McIlvaine III, against Defendant Paul Townsend ("Townsend") and Defendant Elizabeth Morris, the wife of D. Vance Morris. The Complaint alleges that Townsend, without permission, gave away the Plaintiffs' dog to Elizabeth Morris and her husband. Count I of the complaint seeks a writ of replevin against Elizabeth Morris. Count II of the complaint asserts that the Defendants' actions constitute theft and misappropriation of Plaintiffs' property. Count III alleges that the Defendants' actions constitute intentional and/or negligent infliction of emotional harm.
D. Vance Morris was not initially a party to the present action in this Court. Plaintiffs have filed a Motion to Amend their complaint to add Mr. Morris as a defendant.
Defendants filed a motion to strike and dismiss the complaint on March 22, 1996. On April 19, 1996, this Court heard Defendants' motion and decided to stay the case in Superior Court until the appeal in the Court of Common Pleas was resolved. On January 3, 1997, the Court of Common Please dismissed McIlvaine's appeal. The order of dismissal did not state whether the dismissal was with or without prejudice. On February 14, 1997, the Defendantsfiled a motion to lift the stay and renewed their motions to dismiss.
In their motion to dismiss, the Defendants assert that because the Court of Common Pleas dismissed McIlvaine's appeal, and McIlvaine did not appeal that order of dismissal, the Justice of the Peace judgment, which ordered that D. Vance Morris retain ownership of the dog, remains in effect and is a final judgment to which res judicata attached. Therefore, Defendants assert that Plaintiffs' new replevin action in Superior Court is barred by res judicata and the complaint must be dismissed. Plaintiffs reply that the Court of Common Pleas appeal was dismissed based on a failure to join an indispensable party, Preston McIlvaine, and therefore, pursuant to Court of Common Pleas Civil Rule 41 (b), the dismissal was without prejudice and not an adjudication upon the merits. Plaintiffs claim that McIlvaine could not join Preston as a plaintiff in the appeal, because Delaware law requires actions on appeal from the Justice of the Peace to involve the same parties and the same causes of action. Plaintiffs contend that because the Court of Common Pleas appeal is a trial de novo and the case was dismissed for a failure to join all owners of the dog as plaintiffs, that the matter has not been decided upon the merits and now should by heard in this Court.
DISCUSSION
"It is well settled that a plaintiff who receives a decision on the merits of a controversy from a court of competent jurisdiction is precluded thereafter by the doctrine of res judicata from bringing a subsequent action in another court based on the same matter." Townsend v. Chasnov, Del. Supr., Hartnett, J. No. 129, 1995 (October 11, 1995) (Order), at 2. Res judicata precludes a second attempt to litigate the same cause of action on all theories which were litigated or which could have been litigated in the earlier proceeding. Trans World Airlines, Inc. v. Hughes, Del. Ch., 317 A.2d 114, 118 (1974), aff'd, Hughes v. Trans World Airlines, Inc., Del. Supr., 336 A.2d 572 (1975), cert. denied, 423 U.S.841.
The applicability of res judicata and collateral estoppel hinges on whether the Justice of the Peace judgment is a final decision.
After obtaining a judgment in the Justice of the Peace Court, the plaintiff appealed the decision. Then she filed a new action in Superior Court, naming additional parties, and additional causes of action, but the new action has its roots in the original Justice of the Peace complaint.
Defendants moved to dismiss the Court of Common Pleas trial de novo appeal arguing that plaintiff did not have all of the parties necessary to bring the replevin action in that Court. A review of the Court of Common Pleas' transcript evidences that the plaintiffs' appeal was dismissed because an indispensable party was not included in the litigation. In a de novo appeal from the Justice of the Peace Court, the parties must be exactly the same as in the Justice of the Peace Court. Any variance from the lower proceedings strips the Court of jurisdiction. Dzedzej v. Prusinski, Del. Super., 259 A.2d 384 (1969);Cooper's Home Furnishings, Inc. v. Smith, Del. Super., 250 A.2d 507 (1969); Sulla v. Quillen, Del. Super., C. A. No. 86C-DE-18, Ridgely, J. (September 24, 1987).
Therefore, McIlvaine could not join her son as a co-plaintiff in the Court of Common Pleas' appeal because he was not a party in the Justice of the Peace Court action and doing so would deprive the Court of Common Pleas of its jurisdiction.
McIlvaine argues that because the Court of Common Pleas' dismissal was based on a failure to join an indispensable party pursuant to Court of Common Pleas Civil Rule 19, it could not be with prejudice due to Court of Common Pleas Civil Rule 19, it could not be with prejudice due to Court of Common Pleas Civil Rule 41(b) which states in pertinent part:
Unless the Court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this Rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication on the merits.
I accepted plaintiff's argument in my June 12, 1997 decision. Having reviewed Wilmington Trust Company v. Gesullo, Del. Super., C. A. No. 77C-SE-48, O'Hara, J. (March 14, 1980), I am convinced that I was wrong. Since a trial de novo must necessarily track the original action in the Justice of the Peace Court, not all of the Court rules are applicable to a trial de novo. For example, the rules allow for the addition of parties or the amendment of the complaint but that this cannot be done in a trial de novo appeal. In Wilmington Trust Company v. Gesullo,supra, Judge O'Hara noted the rule requiring identical parties in the original action below in a de novo appeal from the Justice of the Peace Court and then ruled that if an obligor of a note were to be joined as a party in the appeal, the Court would be deprived of appellant subject matter jurisdiction. Thus, he concluded joinder under Rule 19(a) is not feasible in a appeal de novo. Returning to our present case, I conclude that abased upon Judge O'Hara's decision, it was error for the Court of Common Pleas to have dismissed plaintiff's appeal for her failure to join a party. Plaintiff chose to abandon that case and jump to the recently filed case in Superior Court. What plaintiff should have done was to have appealed the Court of Common Pleas' decision. Because she did not appeal, the dismissal order became the final order in the case. The Justice of the Peace Court judgment is a valid and final order.
I also note that my initial decision allowed the plaintiff to circumvent the long standing case law requiring the same parties and cause of action in the appeal, i.e., the appeal must mirror the Justice of the Peace Court case. The purpose of having civil jurisdiction in Justice of the Peace Court and the rules governing the procedures before that Court are to foster the resolution of claims between the parties within the jurisdiction of that Court in one proceeding without the delay and expense occasioned by elaborate pretrial discovery and other procedures. Panzer Management Company v. Farrall, Del. Super., C. A. No. 85C-DE-5, O'Hara, J. (March 3, 1987) (citing Wilmington Trust Company v. Malcolm, Del. Super., 405 A.2d 701, 704 (1979)). It was plaintiff that chose to file suit originally in the Justice of the Peace Court. Prior to that trial, plaintiff successfully amended her complaint in that court. Having chosen her jurisdiction, plaintiff was obligated to pursue any adverse rulings through final appeal.
If she had done so, by the holding of this case, she would have ultimately had her trial in the Court of Common Pleas. That is all she was entitled to.
In Dzedzel J. Prusinski, supra, the Court dismissed an appeal from the Justice of the Peace Court because the appellant failed to include a party on appeal who had been dismissed in the Justice of the Peace Court. The case law stands for the proposition that you must get it right the first time when you use the Justice of the Peace Court. By allowing plaintiff to pursue the present Superior Court action, plaintiff would successfully circumvent the long standing case law aforementioned and be rewarded for not prosecuting the initial action by way of an appeal.
For the aforesaid reasons, defendants' motion to dismiss is granted.
IT IS SO ORDERED.