Michael Davis v. Kevin Pullin ( 2020 )

COURT OF CHANCERY
OF THE
SAM GLASSCOCK III STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE
VICE CHANCELLOR 34 THE CIRCLE
GEORGETOWN, DELAWARE 19947
July 22, 2020
Michael S. Davis Miranda Clifton, Esq.
1297 N. Bend Road Young & McNelis
Jarretsville, MD 20184-1339 300 South State Street
Dover, DE 19901
Colin Shalk, Esq.
Casarino Christman Shalk Ransom &
Doss, P.A.
1007 N. Orange Street, Suite 1100
Wilmington, DE 19899
Re: Michael Davis v. Kevin Pullin, et al.; C.A. No. 2019-0496-SG; Motions
to Dismiss
Dear Litigants:
This matter involves a septic system designed for the use of Lot 1 in the Linn
Woods development along Vines Creek in eastern Sussex County. The system was
placed on Lot 2, currently owned by Michael and Debra Davis. Mr. Davis blocked
the system, causing it to fail in 2015. The owners of Lot 1, Kevin and Joann Pullin,
sued in a matter captioned Pullin v. Davis,1 alleging that an easement existed over
the Davises’ property to maintain and use a septic system, seeking injunctive relief
1
Civil Action No. 11829–VCG.
that the Davises cease interfering with the system, and damages. After a one-day
trial on January 24, 2018, I issued a bench ruling, finding that an easement by
implication existed, and that the Davises were liable for damages for interfering with
the easement. I noted, however, that in the interim, the septic system had failed, and
that further use absent repair would exceed the scope of the easement; thus, I denied
injunctive relief. I memorialized this ruling in a written Letter Opinion of February
22, 2018, set out in full below. 2 That decision was affirmed by the Supreme Court
2
Pullin v. Davis, 2018 WL 1023157 (Del. Ch. Feb. 22, 2018), aff’d, 201 A.3d 523 (Del. 2018).
The text of the Letter Order contained six substantive paragraphs, as follows:
1. An implied easement exists burdening the Davis property in favor of the Pullin
property. The easement is for the use and maintenance of a septic line, tank and
field for the benefit of a single-family house on the Pullin property, located on the
Davis property. The easement includes reasonable access to maintain and repair
the line, tank and field. The easement runs with the land.
2. Mr. Davis is liable for wrongfully blocking the septic line and interfering with
the easement during the time when the record indicates the septic system was
operating properly, in the amount of FOUR THOUSAND TWO HUNDRED
THIRTY DOLLARS ($4,230.00).
3. I find by a preponderance of the evidence that the septic system currently is not
functioning properly and, as a result, use of the septic system would exceed the
scope of the easement. Therefore, Mr. Davis is not liable for the current blocking
of the easement.
4. Because use of the septic system in its current condition would exceed the scope
of the easement, the Plaintiff’s request for an injunction barring Mr. Davis from
interfering with the use of the system and directing him to unblock the system is
DENIED.
5. Because the Plaintiff established the easement by implication by evidence which
I found clear and convincing, the request for a declaratory judgment as to the
easement is GRANTED.
6. This Order is final.
7. Nothing in this Order prevents the Pullins or their successors in title from
demonstrating that the septic system has been restored to operating condition, and
seeking injunctive relief against Mr. Davis or his successors in title to restore use,
via a subsequent action.
Id. at *1.
2
on November 30, 2018.3 Subsequently, the Pullins have installed a new septic
system entirely within their property, Lot 1, and have abandoned the easement on
the Davises’ lot.
The Davises did not file a counterclaim during the pendency of Pullin, in
which they were represented by Delaware counsel. 4 Mr. Davis filed the complaint
in this action (the “Complaint”) on June 26, 2019, pro se, seeking to re-litigate the
issues decided in Pullin. Davis seeks an injunction requiring the Pullins to remove
the septic system, 5 as well as damages against the Pullins and their septic contractor,
B. Brittingham Complete Septic Service (“B. Brittingham”), and its principle, Ms.
Sharon Rickards, under what appears to be a trespass theory.
Each of the Defendants has moved to dismiss based on principles of issue and
claim preclusion.
To be candid, I find the Complaint difficult to understand. It seeks damages
relating to the Pullins’ use of the now-abandoned septic system and easement, and
states that Davis is “entering this to the Chancery Court of Delaware for a retrial” of
the matters adjudicated in Pullin.6 At oral argument on the Motions to Dismiss, Mr.
3
Davis v. Pullin, 201 A.3d 523 (Del. 2018), reargument denied (Jan. 14, 2019).
4
After representing the Davises through trial, that Delaware counsel withdrew appearance prior
to my written decision. See Pullin v. Davis, C.A. No. 11829-VCG, Docket Item 55, Mot. to
Withdraw as Counsel for Defs.
5
Counsel for the Pullins made clear at oral argument that they have abandoned the easement.
Nothing, therefore, prevents Davis from removing those parts of the Pullins’ abandoned septic
system that remain on his property.
6
Verified Compl. For Injunctive and Other Relief, Docket Item (“D.I.”) 1 (“Compl.”), at 2.
3
Davis made extensive complaints that, in the trial of Pullin, his counsel was
incompetent, and as a result evidence helpful to him was omitted from trial; that
witnesses gave erroneous and incompetent testimony or perjured themselves; and
generally that I got my decision wrong because of these failures of justice. The
Davises have not moved for relief in Pullin under Chancery Court Rule 60(b),
however.7 Mr. Davis simply seeks the re-litigation of the issues already decided, or
available to be addressed, in Pullin.
Where a matter has been litigated to a judgment, the doctrine of res judicata
requires that it not be re-litigated, else litigation would be endless.8 Here, Davis’s
paramount claim is that no easement existed that permitted the placement and
operation of the Pullins’ septic system—that precise issue was resolved to the
contrary in Pullin. Moreover, where, as here, litigants choose to forgo claims known
to them directly relating to the subject matter at hand, those issues are precluded
from further litigation as well.9
7
See Ch. Ct. R. 60(b) (describing “[r]elief from judgment or order” due to “[m]istake; inadvertence;
excusable neglect; newly discovered evidence; fraud, etc.”).
8
Levinhar v. MDG Med., Inc., 2009 WL 4263211, at *7 (Del. Ch. Nov. 24, 2009) (“The doctrine
of res judicata forecloses a party from ‘bringing a second suit based on the same cause of action
after a judgment has been entered in a prior suit involving the same parties.’” (quoting Betts v.
Townsends, 765 A.2d 531, 534 (Del. 2000))).
9
MHS Capital LLC v. Goggin, 2018 WL 2149718, at *17 (Del. Ch. May 10, 2018) (“Res judicata
encompasses all claims that were litigated or which could have been litigated in the earlier
proceeding. For res judicata to bar an unasserted claim, the underlying facts must have been known
or capable of being known at the time of the first action.” (quoting Aveta Inc. v. Bengoa, 986 A.2d
1166, 1185 (Del. Ch. 2009))) (internal quotation marks omitted).
4
In the Pullin matter, the Pullins sought a declaration that an easement existed
over the Davises’ property for their septic system; damages resulting from Davis’s
blocking of the septic system; and an injunction to prevent Davis from interfering
with the system in the future. The Davises attempted to demonstrate at trial that no
valid easement applied to the location where the septic system existed, that the
operation of the septic system had caused effluent to contaminate the Davises’
property and that if unblocked, such contamination would resume, precluding
injunctive relief. The Davises lost as to the easement and damages, but prevailed on
showing that the system had failed and that effluvium had entered their property; as
a result, I denied the Pullins’ request for an injunction against Davis.
A counterclaim for damages by the Davises against the Pullins, relating to the
placement and operation of the septic system—a part of the matter Davis seeks to
litigate here—would have arisen directly out of the occurrence that was the subject
matter of the claim in Pullin; such a counterclaim for trespass or nuisance was
compulsory in Pullin, therefore.10 Having foregone that claim for damages in Pullin,
Davis cannot bring it now, and it is barred as res judicata. 11 Here, Mr. Davis has
merely filed the case he believes he should have pursued in Pullin, absent bad legal
10
Ch. Ct. R. 13(a) (“A pleading shall state as a counterclaim any claim, which at the time of serving
the pleading the pleader has against any opposing party, if it arises out of the transaction or
occurrence that is the subject matter of the opposing party’s claim and does not require for its
adjudication the presence of third parties of whom the Court cannot acquire jurisdiction.”).
11
See, e.g., Mott v. State, 49 A.3d 1186, 1189–90 (Del. 2012).
5
advice and the mendacity of witnesses. But that is precisely the evil—serial
litigation hoping for a different outcome—that the doctrines of issue and claim
preclusion are designed to prevent.12 Accordingly, the Pullins’ motion is granted
and the matter is dismissed as to them.
Defendants Sharon Rickards and B. Brittingham, I note, were not parties in
the previous action. They have moved to dismiss under the doctrines of res judicata
and collateral estoppel. I do not consider those arguments here. That is because
there is a more fundamental problem with Davis’s claim against Rickards and B.
Brittingham; now that I have dismissed the case against the Pullins for injunctive
relief, there is no basis for equitable jurisdiction. This Court’s jurisdiction is limited
to matters in equity, except where that jurisdiction has been enlarged by statute, a
consideration not applicable here.13 “[W]hen addressing a common-law tort, this
Court may act only if equity is required in remedy, due to an insufficiency of
remedies at law.”14 Davis’s Complaint attempts to state a claim in tort for trespass
or nuisance against Rickards and B. Brittingham, asserting resulting contamination
of his property, Lot 2, and seeking damages as the sole remedy. 15 To the extent that
Davis has legal claims for damages against Rickards or B. Brittingham, therefore,
12
Levinhar, 2009 WL 4263211, at *7 (“The public’s interest in promoting judicial efficiency and
protecting defendants from repetitious litigation is the reasoning behind the doctrine.”) (citing
Malone Freight Lines, Inc. v. Johnson Motor Lines, Inc., 148 A.2d 770, 775 (Del. 1959)).
13
10 Del. C. § 342; Medek v. Medek, 2008 WL 4261017, at *3 (Del. Ch. Sep. 10, 2008).
14
Preston Hollow Capital, LLC v. Nuveen LLC, 216 A.3d 1, 4 (Del. Ch. 2019).
15
See Compl., at 5–7.
6
this action is dismissed unless Davis chooses to file an election to transfer to the
Superior Court, which election must be filed with this Court in writing within sixty
days. 16
This ruling is without prejudice to Davis’s right to move for relief from the
judgment in Pullin under Chancery Court Rule 60(b), 17 subject, of course, to
applicable defenses. While Davis has the right to proceed pro se, he would find
representation by Delaware counsel helpful, I think, if he decides to proceed under
that Rule.
An appropriate order is attached.
Sincerely,
/s/ Sam Glasscock III
Vice Chancellor
16
10 Del. C. § 1902.
17
Chancery Court Rule 60(b) preserves the common-law action for relief from judgement. See
Johnson v. Preferred Prof’l Ins. Co., 91 A.3d 994, 1005 (Del. Super. 2014) (citing Moore’s
Federal Practice, § 60.21[2]). I note that the action before me is manifestly not such an action,
which must demonstrate that equity requires that the prior action be vacated.
7
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
MICHAEL S. DAVIS, )
)
Plaintiff, )
)
v. ) C.A. No. 2019-0496-SG
)
KEVIN PULLIN and JOANN PULLIN, )
SHARON RICKARDS and B. )
BRITTINGHAM COMPLETE SEPTIC )
SERVICE, )
)
Defendants. )
ORDER
AND NOW, this 22nd day of July, 2020, for the reasons set forth
contemporaneously in the attached Letter Opinion dated July 22, 2020, IT IS
HEREBY ORDERED that Defendants Kevin and Joann Pullin’s Motion to Dismiss
is granted, and that the Plaintiff’s Complaint against Defendants Sharon Rickards
and B. Brittingham Complete Septic Service shall be dismissed sua sponte unless
the Plaintiff elects to transfer to Superior Court pursuant to 10 Del. C. § 1902.
IT IS SO ORDERED.
/s/ Sam Glasscock III
Vice Chancellor