IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR SUSSEX COUNTY ORDER

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1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR SUSSEX COUNTY MICHELE A. RODGERS RUSSO, Plaintiff, v. C.A. No. 01C JOSEPH W. NELSON, Defendant. ORDER Michele Rodgers Russo ( Plaintiff filed an action in ejectment with this Court against Joseph W. Nelson ( Defendant on August 2, Defendant filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction on September 12, Plaintiff filed an answer to Defendant s motion as well as a Motion to Strike certain portions of Defendant s Motion to Dismiss on December 18, This is the Court s decision with respect to both the Motion to Strike and the Motion to Dismiss. Factual Background Plaintiff and Defendant each own a condominium unit in a three-unit townhouse complex known as Oceanside Townhouses located in Dewey Beach, Delaware. Pursuant to a recorded Condominium Declaration, each condominium unit owner owns a proportionate, undivided interest in the common elements of the complex property. The common elements consist of all portions of the complex property except the condominium units themselves. In the spring of 2000, Defendant enclosed the deck adjoining his condominium. Plaintiff alleges that the enclosure effectively ousted her from the benefits of common ownership of the common element air space. Plaintiff filed a Complaint in ejectment pursuant to 10 Del. C requesting that the Court [r]estor[e] common

2 ownership and use to the air space that constitutes part of the common element rights of Plaintiff such that the obstruction to the common element air rights be removed by the removal of enclosures made by Defendant; and that the Court eject Defendant s improvement from the common element space which improvements obstruct the common element air space. Complaint at 8. In the alternative, Plaintiff seeks damages for the loss of value to her condominium unit as a result of Defendant s trespass. Motion to Strike Plaintiff posits that Defendant has improperly presented to the Court evidence additional to that contained in the pleadings. Accordingly, Plaintiff argues that this evidence should be stricken from the record. Although this Court does not favor motions to strike and grants them sparingly, Pack & Process, Inc. v. Celotex Corp., 503 A.2d 646, 660 (Del. Super. 1985, it may order stricken from any pleading any redundant, immaterial, impertinent or scandalous matter. SUPER. CT. CIV. R. 12(f. Generally, facts outside the pleadings should not be considered in ruling on a motion to dismiss. In re Santa Fe Pacific Corp. Shareholder Litigation, 669 A.2d 59, 68 (Del If the moving party wishes to introduce additional evidence, the motion to dismiss is treated as a motion for summary judgment. See Brown v. Colonial Chevrolet Co., 249 A.2d 439, 441 (Del. Super Additional evidence may be in the form of sworn affidavits or deposition excerpts. See id. at ; SUPER. CT. CIV. R. 56. Defendant has failed to support the facts asserted in his Motion to Dismiss with either affidavits or deposition testimony. The only evidence properly before this Court is that set forth in the Plaintiff s Complaint. Accordingly, Plaintiff s Motion to Strike is granted. 2

3 Motion to Dismiss Plaintiff contends that she seeks to have Defendant ejected from the property which she and Defendant share as tenants in common, and, therefore, this Court has jurisdiction over the dispute pursuant to 10 Del. C Defendant counters that, although Plaintiff has filed the present complaint under the guise of an ejectment action, in reality, this Court may not grant the remedy Plaintiff seeks; that is, an injunction. When the Court considers the issue of subject matter jurisdiction, the critical inquiry is whether the plaintiff has an adequate remedy at law. See Monsato Co. v. Aetna Cas. & Sur. Co., Del. Super., C.A. No. 88C-JA-118, Martin, J. (Sept. 29, 1989 (ORDER; Wilmington Fraternal Order of Police Lodge # 1 v. Bostrom, Del. Ch., C.A. No , Jacobs, V.C. (Jan. 22, 1999 (Mem. Op.. In so deciding, the Court must undertake a practical analysis of the adequacy of any legal remedy, where the pertinent inquiry is not whether a remedy at law is preferable, but whether it is truly adequate; that is, whether the legal remedy would afford the plaintiffs a full and complete remedy. Bostrom at (internal quotation marks and citations omitted. Subject matter jurisdiction analysis must rely on the plaintiff s complaint and the Court must assume as true all material factual allegations made within the complaint. Bostrom at 12. However, [i]n reviewing the allegations of the complaint, the Court may go beyond the facade of prayers and look to the true nature of the relief sought. Id. (citation omitted. In this vein, the Court must make a realistic assessment of the nature of the wrong alleged and the remedy available before concluding that a legal remedy is available and fully adequate. McMahon v. New Castle Assocs., 532 A.2d 601, 603 (Del. Ch An adequate remedy at law is one which is complete, practical and as efficient to the ends of justice 3

4 as the remedy in equity and is obtainable as of right. City of Rehoboth Beach v. Capasso, Del. Ch., C.A. No. 992, Allen, C. (Sept. 22, 1986, Order at 9. Plaintiff and Defendant are co-tenants in common with respect to the common elements at Oceanside Townhouses. This fact is conceded by Defendant in his Reply Brief: Indeed, Plaintiff is the owner of a proportionate undivided interest totaling 33-1/3% in all of the common elements, pursuant to the Condominium Declaration. Therefore, in point of fact, on the face of Plaintiff s Complaint, there is no dispute as to the ownership of the common elements at the condominium complex.... [I]n point of fact, there is no legal issue as to Plaintiff s legal rights in the common element space, because Plaintiff correctly states that she is the owner of 33-1/3% of the common element space in the Complaint itself. Reply Br. at 6 (emphasis in original. An action in ejectment lies between a tenant in common against a co-tenant. Knight v. Knight, 89 A. 595 (Del. Ch When one co-tenant repudiates the rights of his co-tenant(s and claims sole ownership of the property owned in co-tenancy, an ouster has occurred and an action in ejectment will lie in favor of the excluded tenant(s. In re the Estate of Margery Gedling, Del. Ch., No , Kiger, M. (Feb. 29, 2000 (citation omitted. Plaintiff has pled this matter as an action in ejectment by one co-tenant against another. She repeatedly has emphasized that she does not seek injunctive relief from this Court. Under the facts presented, Plaintiff may bring an action in ejectment against Defendant if she so desires. Of course, the denial of Defendant s Motion to Dismiss is not intended to suggest, one way or another, the ultimate resolution of the action in ejectment. 4

5 Conclusion Therefore, this 11th day of April, 2002, for the reasons set forth herein, it is hereby ordered that Plaintiff s Motion to Strike is granted and Defendant s Motion to Dismiss for Lack of Subject Matter Jurisdiction is denied. IT IS SO ORDERED. E. Scott Bradley cc: John A. Sergovic, Jr., Esq. David J. Weidman, Esq. 5