Opinion
C.A. No. N10C-05-041 PLA.
Submitted: April 14, 2011.
Decided: April 18, 2011.
ON DEFENDANTS' APPLICATION TO LIFT STAY GRANTED.
ON DEFENDANTS' MOTION TO DISMISS GRANTED.
This 18th day of April, 2011, it appears to the Court that:
1. This is the second case to arise out of the death of Plaintiffs' seven-year-old son, Damond Emory. Damond died while attending a pool party hosted by Defendant Tiera Brown for her young daughter at a residential pool owned by the Browns' family friends, Anita and Andre Urquhart. Plaintiffs filed suit in 2008 ("the 2008 action") against Tiera Brown, Tiera's mother Tracy Brown, the Urquharts, the Urquharts' adult daughter, and Damond's babysitter, who brought him to the party. The Browns each filed for summary judgment in the 2008 action on the basis that Plaintiffs could not demonstrate that they breached any cognizable legal duties. In response to the Browns' summary judgment motion, Plaintiffs raised an argument that the Browns were de facto landowners subject to the duties imposed upon premises occupiers, and that the doctrine of attractive nuisance would therefore apply against them. As the Court explained in its opinion in the 2008 action, Plaintiffs also filed the Complaint in this case to advance this theory of de facto landowner status:
Counts III and IV of the Second Amended Complaint [in the 2008 action], which contain the Plaintiffs' claims against Tracy and Tiera Brown, make no reference to the premises (other than mentioning that the Urquharts' residence had a pool), to premise occupiers' duties, or to attractive nuisance liability. Premises liability and attractive nuisance doctrine are referenced explicitly in Count I, which names only Andre and Anita Urquhart. Because each count of the Complaint incorporates by reference all of the preceding paragraphs, Plaintiffs argue that they have sufficiently pled premises liability and attractive nuisance.
Perhaps concerned about the strength of this position, Plaintiffs filed a separate suit against Bass and the Browns while supplemental briefing on the motions for summary judgment was outstanding. The Complaint in this second action explicitly alleges theories of premises liability and attractive nuisance [against the Browns].
Wilson v. Urquhart, 2010 WL 2683031, at *10-11 (Del. Super. July 6, 2010) (footnote omitted), aff'd, 2011 WL 1434666 (Del. Apr. 14, 2011). On September 20, 2010, Plaintiffs filed an Amended Complaint in this action to remove Tappitchar Bass, Damond's babysitter, as a defendant.
2. While the Browns' summary judgment motions remained under consideration, Plaintiffs sought to have this case consolidated with the 2008 action. The Court denied the motion to consolidate, on the grounds that all discovery and dispositive motion deadlines in the 2008 action had passed, and that the Browns had not been on notice during the discovery or motion practice phases of the first-filed case that Plaintiffs intended to proceed against them on a theory of de facto premises owner or occupier status. Rather than dismiss the 2008 action in favor of litigating this case to be certain their de facto landowner theory was preserved, Plaintiffs elected to proceed with both cases simultaneously.
Id. at *11.
3. Subsequently, the Court granted the Browns' motions for summary judgment in the 2008 action without considering the merits of Plaintiffs' de facto landowner theory, which it held was not properly pled against the Browns. Plaintiffs appealed the Court's decision to the Delaware Supreme Court. During the pendency of that appeal, Defendants moved to dismiss this action. Plaintiffs moved for a stay of this case while their appeal in the 2008 action was pending. The Court determined that a stay was appropriate, as "a decision in Plaintiffs' favor on the pending appeal could have the effect of permitting Plaintiffs to proceed on their de facto landowner theory without raising res judicata issues, while an affirmance on appeal would likely clarify and simplify Defendants' claim-splitting argument."
Wilson v. Brown, 2011 WL 55953, at *2 (Del. Super. Jan. 3, 2011).
4. On April 14, 2011, the Supreme Court summarily affirmed this Court's opinion granting summary judgment for the Browns in the 2008 action. The Browns now seek to have the Court's stay lifted so that its motion to dismiss this case can be considered. Defendants argue that both this case and the 2008 action arise from the same underlying transaction or incident, and that there was no impediment to Plaintiffs' proceeding with all of their claims in a single case. Plaintiffs have indicated an intent to rely upon their original response to the motion to dismiss, which focused primarily upon requesting the stay. However, Plaintiffs further argued that res judicata should not apply to this case, because they "could not pursue a consolidated action as the Court indicated that [they] did not comply with the Court's Scheduling Order [in the 2008 action,] which provided that amendments to the Complaint must be made on or before April 30, 2009, which was prior to the depositions of the Defendants."
Pls.' Opp'n to Defs.' Pre-Answer Mot. to Dismiss ¶ 6.
5. To protect both judicial economy and the interests of defendants in avoiding a multiplicity of actions, res judicata precludes plaintiffs from splitting claims and "seeking the same relief in subsequent litigation under a different substantive theory." This rule against claim-splitting "bars litigation between the same parties if the claims in the later litigation arose from the same transaction that forms the basis of the previous adjudication." Dismissal is appropriate "when the second action is based on the same transaction as the first," regardless of whether the subsequent lawsuit presents a different substantive theory of recovery. A defendant seeking dismissal on the grounds of res judicata must establish that the same transaction forms the basis of the prior and subsequent suits, and that the plaintiff "neglected or failed to assert claims which in fairness should have been asserted in the first action." If the defendant makes the appropriate showing, the plaintiff must demonstrate that "there was some impediment to the presentation of the entire claim for relief in the prior forum" in order to avoid dismissal.
LaPoint v. AmerisourceBergen Corp., 970 A.2d 185, 196 (Del. 2009).
Kossol v. Ashton Condo. Ass'n, Inc., 637 A.2d 827, 1994 WL 10861, at *2 (Del. Jan. 6, 1994) (TABLE).
Id.
Id. (citing Coca-Cola Co. v. Pepsi-Cola Co., 172 A. 260, 262 (Del. Super. 1934)).
Id.
6. Defendants' description of this case as a "classic attempt" to split causes of action is entirely apt. Both this case and the 2008 action arose out of the same "transaction," Damond's tragic death at the pool party hosted by Tiera Brown. Contrary to Plaintiffs' present assertions, the fact that the deadline for amendments in the 2008 action occurred prior to the defendants' deposition does not excuse Plaintiffs' failure to properly plead the landowner theory against the Browns, nor did it constitute an "impediment" to presenting that theory in the earlier case. When Plaintiffs filed their Second Amended Complaint on April 27, 2009, they included allegations that the Browns had hosted the pool party at a residence they did not own, which are the circumstances underpinning Plaintiffs' de facto landowner theory. Thus, there is no apparent reason Plaintiffs should not have properly pled and pursued that theory of liability against the Browns in the first-filed 2008 action, which would have enabled both Plaintiffs and the Browns to conduct appropriate discovery and research regarding the viability of Plaintiffs' claim. Moreover, upon denying the motion to consolidate this case into the 2008 action, the Court suggested that Plaintiffs consider proceeding in this case rather than the first-filed action, thereby sacrificing their existing trial date in favor of the certainty that all of their theories of liability against the Browns would be presented in one case. Plaintiffs declined to take this route, and instead pursued both cases. Plaintiffs' decision resulted in a splitting of their claims, and Defendants cannot be subjected to a second suit to save Plaintiffs from the consequences of that choice.
Defs.' Pre-Answer Mot. to Dismiss ¶ 5.
7. Accordingly, Defendants' Application to Lift the Stay in this action is GRANTED. As res judicata bars Plaintiffs' claims in this suit, Defendants' Motion to Dismiss must also be GRANTED.
IT IS SO ORDERED.