John K. Welch Judge
John K. Welch Judge Mr. Rob Westmoreland
910 Wawaset Street
Wilmington, DE 19806
Defendant-Below/Appellant Mr. Paul Barry
306 West 23rd Street
Wilmington, DE 19802
Plaintiff-Below/Appellee MEMORANDUM OPINION AND ORDER Dear Mr. Westmoreland and Mr. Barry,
This is an Appeal DeNovo brought pursuant to 10 Del. C. §9570 et seq.
Trial in the above captioned matter took place on Wednesday, July 13, 2016 in the Court of Common Pleas, New Castle County, State of Delaware. Following the receipt of documentary evidence and sworn testimony, the Court reserved decision.
I. Introduction.
The pro-se Complaint on its face does not invoke any statute in the Delaware Code or Landlord Tenant Code provision of the Delaware Code. Plaintiff, Paul Barry (hereinafter "Barry") in his pro-se Complaint, after the Notice of Appeal was filed in this Court, alleges defendant, Rob Westmoreland (hereinafter "Westmoreland") took possession of his apartment on August 2, 2015 and took items from his apartment that included, but not limited to clothing, collectibles, daughter's toys, bedroom dresser, kitchen materials, and allegedly threw them out. Barry also pled in his Complaint that the Defendant had "no legal right" to throw these items out or otherwise discard them. Barry does not assert specific pled sum-certain damages in his complaint or a prima facie claim such as negligence, tort, breach of contract or even replevin. The Court must therefore liberally construes his pro-se Complaint to either be a debt action or breach of contract.
Apparently on his praecipe he did state a nominal sum.
II. The Facts.
Barry testified at trial as follows. He did not pay rent in June 2015 because the Magistrate Below in the Justice of the Peace Court found that Westmoreland did not provide him a five (5) day letter and a sixty (60) day eviction notice pursuant to the Landlord-Tenant Code. Barry claims on August 1, 2015 and or August 3, 2015 all of his property was removed from his leased premises by the defendant, including the items previously set forth in his pro-se Complaint. Barry claims defendant had no right to seize his property and denies that he moved out from the leased premises when the defendant took and seized and threw out his subject property.
On cross-examination, the plaintiff was questioned about use of drugs and/or notice defendant claims that Barry moved out of the leased premises and therefore vacated the premises notwithstanding the deficient five (5) day notice under the Landlord Tenant Code.
On re-direct, Westmoreland testified in trial in his case-in-chief that in May 2015 he gave the plaintiff a sixty (60) day notice and that there was no damaged property. Nor was there property that was seized or removed from the leased premises. Defendant contends that plaintiff had already vacated the property and sixty (60) days had expired, notwithstanding the five (5) day Summary Eviction Letter that the Court below deemed was deficient.
Westmoreland testified he came into the leased premises and indicated it "was a mess". His air conditioner unit was missing and the defendant had already been on the subject property for two (2) days, vacated the premises, and otherwise moved out and vacated the leased property. Westmoreland claims Barry had already cleaned out the necessary items that were allegedly pled in the complaint and there was no property left.
On cross-examination Westmoreland agreed that the new air conditioner unit was a replacement by Barry because the first one broke. He agrees that the five (5) day notice was defective but claims Barry had already vacated the lease property and the issue is moot.
Andrew Ribiero ("hereinafter "Ribiero") was sworn in and testified on behalf of the defendant. Ribiero testified that Barry had already moved out of the leased premises. He saw the defendant remove all of the items from the subject property during a two (2) hour visit before the defendant vacated the premises. Ribiero also claims that another landlord had told him and Westmoreland that Barry had already leased a new property and intended not to come back to the leased premises.
III. Final Order.
The sole dispositive issue following trial in this proceeding is whether at trial Barry offered into evidence any receipts, photographs, documentary evidence or invoices to prove damages for a negligence claim or a debt action. It is clear from his pro-se Complaint Barry did not plead a sum certain and at trial, in this matter, Barry did not offer a scintilla of evidence into the trial record on the issue of damages. Hence, liberally construing plaintiff's pro-se Complaint as either a debt action or breach of contract, the Court finds that damages were not proven by a preponderance of evidence of trial and this Court must therefore enter judgment in favor of Westmoreland. Each party shall bear their own costs.
IT IS SO ORDERED this 2nd day of August, 2016.
See Wirt v. Matthews, 2002 C.P. Lexis 16 (April 9, 2002). (Welch, J.). --------
/s/_________
John K. Welch, Judge /jb
cc: Ms. Tamu White, Civil Case Supervisor