ROS Rentals LLC v. Gutierrez, C.A. No. JP13-19-012715

CourtCourt of Justice of Peace Court of Delaware
Writing for the CourtChristopher R. Portante, Justice of the Peace Susan E. Ufberg, Justice of the Peace Thomas P. Brown, Justice of the Peace
PartiesROS RENTALS LLC Plaintiff Below, Appellee v. JESUS GUTIERREZ, MARIA GONZALEZ, YOMAIRACELYS GARCIA-GONZALEZ, and JOSE GARCIA Defendants Below, Appellants
Docket NumberC.A. No. JP13-19-012715
Decision Date27 February 2020

ROS RENTALS LLC Plaintiff Below, Appellee
v.
JESUS GUTIERREZ, MARIA GONZALEZ,
YOMAIRACELYS GARCIA-GONZALEZ,
and JOSE GARCIA Defendants Below, Appellants

C.A. No. JP13-19-012715

JUSTICE OF THE PEACE COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY COURT NO. 13

Submitted: February 26, 2020
February 27, 2020


TRIAL DE NOVO

APPEARANCES:
Plaintiff/Appellant ROS Rentals LLC, represented by Form 50 Agent John Ormsby
Brian L. Kasprzak, Esquire, Attorney for Defendants
Laurie Lane, Certified Court Interpreter (Spanish)

THE PANEL:
Christopher R. Portante, Justice of the Peace
Susan E. Ufberg, Justice of the Peace
Thomas P. Brown, Justice of the Peace

Page 2

ORDER ON TRIAL DE NOVO

PROCEDURAL HISTORY

On October 25, 2019, ROS Rentals, LLC brought the above-captioned summary possession action against Defendants Jesus Gutierrez, Maria Gonzalez, Yomairacelys Garcia-Gonzalez, and Jose Garcia based on a claim of Defendants' failure to pay rent, pursuant to 25 Del. C. § 5502. The court below heard testimony on November 11, 2019 and found in favor of Plaintiff for possession, as well as rent due and owing. Judgment was formally issued on November 15, 2019. Subsequently, on November 21, 2019, Defendants appealed the decision to a three-judge panel.

On February 26, 2020, a three-judge panel consisting of Judges Christopher Portante, Thomas Brown, and Susan Ufberg ("the Panel'') was convened to hear the trial de novo. Plaintiff was represented by Form 50 Agent John Ormsby. Defendants were represented by Brian L. Kasprzak, Esquire. Defendants, themselves, failed to appear.

MISJOINDER OF PARTY

Pursuant to Justice of the Peace Court Civil Rule 21, Jesus Gutierrez was dropped as a defendant by the Panel, as he had been at the court below, due to the fact that he was not a party to the lease at issue. Plaintiff acknowledged that there had been an agreement between Plaintiff and Defendants to have Mr. Gutierrez removed by executing a new lease so that the other tenants could obtain utility services in their names.

DEFENDANTS' MOTION TO DISMISS

Defendants' counsel raised a pre-trial motion ("Motion") for dismissal based on deficiencies in the five-day notice and service of said notice. Namely, Mr. Kasprzak identified two issues: (1) that the five-day notice sent to Defendants on September 23, 2019 ("Notice") contained illegal language; and (2) that Plaintiff failed to serve all tenants separately with the Notice.

Illegal Language in Five-Day Notice

The Notice Plaintiff sent Defendants is headed with the phrase "Delaware 5 Day Notice to Pay Rent or Quit". A five-day letter cannot require the tenant to quit the premises, move out, or deliver up possession to the landlord except under color of a valid court order. This Court has consistently held

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