IN THE COURT OF COMl\/ION PLEAS FOR THE STATE OP DELAWARE IN AND FOR NEW CASTLE COUNTY
ISAAK SOMERSHEIN, PIamtiff-Below/Appe]lant, C.A. No. CPU4-16~OO1 996
V.
I-IOl\/[E DEPOT and BOUCHELLE BUILDERS,
Defendants-13eloxv/Appellees.
\_/\/\/\_/\/\/\'/\'/\/VV
Submitted: November 18, 2016 D€Cid€d; Dec€mb@r 13, 2016
Thomas Marconi, Esq. Robert D. Cecil, Esq.
Geena Khomenko George, Esq. Tybout, Redfearn, & Pell
Losco & Marconi, P.A. 750 Shipyard Drive
1813 North Franklin Street Suite 400
P.O. Box 1677 Wilmington, DE 19899
\WHmngton, DE 19899 Az‘z‘om@rforAppe//ee Home De]bof Alz‘om§ysjbrA_}bpe//anf
DECISION ON MOTION TO I)ISMISS
SMALLS, C.J.
;~'
This is a Motion to Dismiss an Appeal for violation of the Mirror image Rule. 'I`he underlying matter is a dispute between lsaak Somershein (“Somershein”) against Appellees Hotne Depot (“Home Depot”) and Bouchelle Builders (“Bouchelle”). Follo\ving dismissal from the justice of the Peace Court 15, Somershein appealed to this Court. Home Depot filed the instant Motion to Dismiss, alleging the Appeal violates the Mirror Image Rule. A hearing on the Motion \Vas convened on November 18, 2016. At the conclusion of the hearing, the Court reserved decision
FACTS AND PROCEDURAL HISTORY
On April 7, 2016, Somershein initiated an action in Justice of the Peace Court 13, naming Home Depot and Bouchelle as defendants The Complaint Was as follows: “ an 27th put in standup shower done Wrong has to be redone $6,000 damage to dining room Wood floor 9000.” NotablyJ Somershein did not check a box for \vhat type of action he Was bringing ln his Bill Ot` Particulars, Someshein stated, infer a/z`¢z, that he needed c‘copies of Bouchelle Builders license and how he was vetted[.]”
A trial \vas held at the ]ustice of the Peace Court On July 20, 2016, With the Court entering a directed Verdict in favor of Home Depot and Bouchelle. According to the Court’s Order, Somershein “established he received the name of Bouchelle Builders from Home Depot and he contracted With Defendant Bouchelle Builders to have a shower installed in his home.” Ho\vever, because Somershein \vas unable to produce evidence regarding Who caused the damage and \vhat the cost of repairs would be, the Court found in
favor of Home Depot and Bouchelle.
l\)
On july 29, 2016, Somershein timely filed an Appeal with this Court. According to
the Complaint on Appeal, Somershein entered into a contract with Bouchelle for the installation of a standup shower stall. Somershein also alleges he was referred to Bouchelle by Home Depot; Somershein contends he had never before heard of Bouchelle and would not have hired Bouchelle but for the referral The Complaint concludes by alleging Bouchelle breached the Contract.
On October 31, 2016, Home Depot Eled the instant l\/Iotion to Dismiss, alleging the Complaint on Appeal violates the Mirror Image Rule. Specifically, Home Depot argues the underlying action was solely for breach of contract, and that Somershein is now attempting to introduce a cause of action against Home Depor for “negligent referral.” Home Depot argues this constitutes an additional claim, in violation of the l\/Iirror Image Rule, and therefore the Appeal must be dismissed Home Depot further argues that, even if this Court were to allow the appeal to proceed, Somershein has failed to plead negligence with particularity and has failed to state a claim.
On November 11, 2016, Somershein responded to the Motion, arguing the justice of the Peace Complaint was initiated and drafted by Somershein, acting pro Je, and that it was merely Somershein’s lack of legal acumen that resulted in the unartful wording of the Complaint. After the justice of the Peace action was decided against Somershein, Somershein obtained counsel, and it was counsel who merely corrected the formulation of the allegations Somershein contends that the underlying claim against Home Depot is, and
always was, one sounding in common law negligence, rather than breach of contract or
negligent referral lt is Somershein’s position that he should not be punished for his lack of
legal expertise Somershein also requests leave to amend the Complaint on Appeal if
necessary.
DISCUSSION Delaware law is well settled on the matter of the l\/lirror Image Rule. c‘[T_|he prime tenet of the venerable ‘mirror image rule’ is that it is a rule of jurisdiction, and not of procedure . . . [and isj . . . satisfied if the complaint on appeal presents no parties or issues
other than those presented by the original complaint below.”1 Furthermore,
\With respect to raising identical issues, Delaware courts have provided that “when the complaint on appeal sets forth more speci€cally the causes of action that were raised below but does not alter the subject matter of the case below, there is no mirror image violation.” . . . “Generally, so long as the requested remedy does not change the nature of the claim asserted below, there is no mirror image violation.” Further, courts have found that the complaint on appeal cannot “eXpand the issues raised in the original complaint,” however, it may “state the original issues with more legal clarity and specificity.’32
Concerning the method of determining whether a violation of the l\/lirror Image Rule
has occurred,
lt should be noted that the plain language CCP Cz':). R 72.3@ does not contain any language that strictly limits the Court to only consider the pleadings when analyzing a mirror image rule claim. . . . l~listorically, this Court has determined whether a party has complied with the mirror image rule and Rule 72.3@ by comparing the complaint in the court below with the complaint on appeal . . . Thus, the determination of issues that were before z‘/ye court below should take into account more than simply the complaint below.3
1 fz`/z)ewz`ew Fam, Im'. 1/. I_zzm/y§y, 2006 \\'/L 1112911, *4 (Del. Com. Pl. Apr. 26, 2006).
2 ll/fczz'n .S`z‘reez‘ Coun‘, LLC 1/. Kz`erzm/z, 2015 WL 4041171, at *4 (Del. Com. Pl. jul. 2, 2015) (internal citations Omitted).
3 Id. at 7.
_¢~:
ln the case .rz//)jzzdz'¢‘e, the Complaint in the justice of the Peace Court was skeletal at best. Accordingly, l End the Bill of Particulars and the written Order from the justice of the Peace Court to be instructive in determining the nature of the issues raised in the Court below. While the Order is itself succinct, it does state that Somershein established a referral by Home Depot and a contract with Bouchclle. Lil;ewise, Somershein’s Bill of Particulars references an issue of how l-iomc Dcpot vetted Bouchelle. These issues, if properly explored and presented at trial, could provide a basis for establishing negligence
Until filing the instant Appeal, Somershein was self-represented \While pro re litigants are expected to comply with the Rules of Court, they are not lawyers, and they are not held to the same standards of artful construction of pleadings 'I`his Court is permitted to look beyond the bare language of the Cornplaint and into the subject matter. l-laving done so, l find the justice of the Peace action involved a colorable claim for common law negligence against Home DepotJ and that it was only Somershein’s legal inexperience that created any ambiguity of the nature of the claim. Accordingly, Somershein’s refinement of his claim in the Complaint on Appeal does not violate the Mirror Image Rule. The allegations in the Complaint on Appeal merely set forth the same issues with additional clarity.
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IN THE COURT OF COMl\/ION PLEAS FOR THE STATE OP DELAWARE IN AND FOR NEW CASTLE COUNTY
ISAAK SOMERSHEIN, PIamtiff-Below/Appe]lant, C.A. No. CPU4-16~OO1 996
V.
I-IOl\/[E DEPOT and BOUCHELLE BUILDERS,
Defendants-13eloxv/Appellees.
\_/\/\/\_/\/\/\'/\'/\/VV
Submitted: November 18, 2016 D€Cid€d; Dec€mb@r 13, 2016
Thomas Marconi, Esq. Robert D. Cecil, Esq.
Geena Khomenko George, Esq. Tybout, Redfearn, & Pell
Losco & Marconi, P.A. 750 Shipyard Drive
1813 North Franklin Street Suite 400
P.O. Box 1677 Wilmington, DE 19899
\WHmngton, DE 19899 Az‘z‘om@rforAppe//ee Home De]bof Alz‘om§ysjbrA_}bpe//anf
DECISION ON MOTION TO I)ISMISS
SMALLS, C.J.
;~'
This is a Motion to Dismiss an Appeal for violation of the Mirror image Rule. 'I`he underlying matter is a dispute between lsaak Somershein (“Somershein”) against Appellees Hotne Depot (“Home Depot”) and Bouchelle Builders (“Bouchelle”). Follo\ving dismissal from the justice of the Peace Court 15, Somershein appealed to this Court. Home Depot filed the instant Motion to Dismiss, alleging the Appeal violates the Mirror Image Rule. A hearing on the Motion \Vas convened on November 18, 2016. At the conclusion of the hearing, the Court reserved decision
FACTS AND PROCEDURAL HISTORY
On April 7, 2016, Somershein initiated an action in Justice of the Peace Court 13, naming Home Depot and Bouchelle as defendants The Complaint Was as follows: “ an 27th put in standup shower done Wrong has to be redone $6,000 damage to dining room Wood floor 9000.” NotablyJ Somershein did not check a box for \vhat type of action he Was bringing ln his Bill Ot` Particulars, Someshein stated, infer a/z`¢z, that he needed c‘copies of Bouchelle Builders license and how he was vetted[.]”
A trial \vas held at the ]ustice of the Peace Court On July 20, 2016, With the Court entering a directed Verdict in favor of Home Depot and Bouchelle. According to the Court’s Order, Somershein “established he received the name of Bouchelle Builders from Home Depot and he contracted With Defendant Bouchelle Builders to have a shower installed in his home.” Ho\vever, because Somershein \vas unable to produce evidence regarding Who caused the damage and \vhat the cost of repairs would be, the Court found in
favor of Home Depot and Bouchelle.
l\)
On july 29, 2016, Somershein timely filed an Appeal with this Court. According to
the Complaint on Appeal, Somershein entered into a contract with Bouchelle for the installation of a standup shower stall. Somershein also alleges he was referred to Bouchelle by Home Depot; Somershein contends he had never before heard of Bouchelle and would not have hired Bouchelle but for the referral The Complaint concludes by alleging Bouchelle breached the Contract.
On October 31, 2016, Home Depot Eled the instant l\/Iotion to Dismiss, alleging the Complaint on Appeal violates the Mirror Image Rule. Specifically, Home Depot argues the underlying action was solely for breach of contract, and that Somershein is now attempting to introduce a cause of action against Home Depor for “negligent referral.” Home Depot argues this constitutes an additional claim, in violation of the l\/Iirror Image Rule, and therefore the Appeal must be dismissed Home Depot further argues that, even if this Court were to allow the appeal to proceed, Somershein has failed to plead negligence with particularity and has failed to state a claim.
On November 11, 2016, Somershein responded to the Motion, arguing the justice of the Peace Complaint was initiated and drafted by Somershein, acting pro Je, and that it was merely Somershein’s lack of legal acumen that resulted in the unartful wording of the Complaint. After the justice of the Peace action was decided against Somershein, Somershein obtained counsel, and it was counsel who merely corrected the formulation of the allegations Somershein contends that the underlying claim against Home Depot is, and
always was, one sounding in common law negligence, rather than breach of contract or
negligent referral lt is Somershein’s position that he should not be punished for his lack of
legal expertise Somershein also requests leave to amend the Complaint on Appeal if
necessary.
DISCUSSION Delaware law is well settled on the matter of the l\/lirror Image Rule. c‘[T_|he prime tenet of the venerable ‘mirror image rule’ is that it is a rule of jurisdiction, and not of procedure . . . [and isj . . . satisfied if the complaint on appeal presents no parties or issues
other than those presented by the original complaint below.”1 Furthermore,
\With respect to raising identical issues, Delaware courts have provided that “when the complaint on appeal sets forth more speci€cally the causes of action that were raised below but does not alter the subject matter of the case below, there is no mirror image violation.” . . . “Generally, so long as the requested remedy does not change the nature of the claim asserted below, there is no mirror image violation.” Further, courts have found that the complaint on appeal cannot “eXpand the issues raised in the original complaint,” however, it may “state the original issues with more legal clarity and specificity.’32
Concerning the method of determining whether a violation of the l\/lirror Image Rule
has occurred,
lt should be noted that the plain language CCP Cz':). R 72.3@ does not contain any language that strictly limits the Court to only consider the pleadings when analyzing a mirror image rule claim. . . . l~listorically, this Court has determined whether a party has complied with the mirror image rule and Rule 72.3@ by comparing the complaint in the court below with the complaint on appeal . . . Thus, the determination of issues that were before z‘/ye court below should take into account more than simply the complaint below.3
1 fz`/z)ewz`ew Fam, Im'. 1/. I_zzm/y§y, 2006 \\'/L 1112911, *4 (Del. Com. Pl. Apr. 26, 2006).
2 ll/fczz'n .S`z‘reez‘ Coun‘, LLC 1/. Kz`erzm/z, 2015 WL 4041171, at *4 (Del. Com. Pl. jul. 2, 2015) (internal citations Omitted).
3 Id. at 7.
_¢~:
ln the case .rz//)jzzdz'¢‘e, the Complaint in the justice of the Peace Court was skeletal at best. Accordingly, l End the Bill of Particulars and the written Order from the justice of the Peace Court to be instructive in determining the nature of the issues raised in the Court below. While the Order is itself succinct, it does state that Somershein established a referral by Home Depot and a contract with Bouchclle. Lil;ewise, Somershein’s Bill of Particulars references an issue of how l-iomc Dcpot vetted Bouchelle. These issues, if properly explored and presented at trial, could provide a basis for establishing negligence
Until filing the instant Appeal, Somershein was self-represented \While pro re litigants are expected to comply with the Rules of Court, they are not lawyers, and they are not held to the same standards of artful construction of pleadings 'I`his Court is permitted to look beyond the bare language of the Cornplaint and into the subject matter. l-laving done so, l find the justice of the Peace action involved a colorable claim for common law negligence against Home DepotJ and that it was only Somershein’s legal inexperience that created any ambiguity of the nature of the claim. Accordingly, Somershein’s refinement of his claim in the Complaint on Appeal does not violate the Mirror Image Rule. The allegations in the Complaint on Appeal merely set forth the same issues with additional clarity.
ln considering motions to dismiss filed pursuant to CCP Civil Rule 12(b)(6), the Court must assume that all well~pleaded facts in the complaint are true.4 'l`he complaint should not be dismissed unless “the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible to proof." l find that Somershein
has adequately stated a claim under the standards of Rule 12(b)(6). l also find Somershein
4 Ba£tista v. Ch)j)sle)' Co)'p., 454 A.2d 286, 287 (Del. Super. 1982).
has pled negligence with sufficient particularity to meet the standards of Rule 9(b).5 l-lowever, because Home Depot has expressed some confusion over the precise details of the allegations, Somershein shall within twenty (20) days hereof submit any amendments to the Complaint.6 CONCLUSION
F‘or all the foregoing reasons, Appellee Home Depot’s Motion to Dismiss is hereby DENIED. Appellant Somershein may amend the Complaint on Appeal subject to the Rules of this Court.
IT IS SO OR_DERED.
7a aaa
Alex U/ Sma]ls Chief judge
5 “In requiring a plaintiff to plead with particulariry, Rule 9(b) operates to: (1) provide defendants with enough notice to prepare a defense; (2) prevent plaintiffs from using complaints as fishing expeditious `to unearth wrongs about which they had no prior knowledge; and (3) preserve a defendants reputation and goodwill against baseless claims.” Ra/mm¢m v. ].C. penny Co)j)., lm'., 2016 \\'/L 2616375, at *2 (Del. Super. May 4, 2016) (internal citations omitted).
6 Because of Delaware’s strong policy for adjudicating matters on the mcrits, and absent a showing of actual prejudice, l do not find it appropriate to dismiss the appeal, and instead find it reasonable to allow Somershein to amend.