City of Wilmington, Corp. v. Janeve Co.
| Decision Date | 13 June 2014 |
| Docket Number | C.A. N12J-03901 PRW,C.A. N12J-03922 PRW,C.A. N12J-03974 PRW |
| Court | Delaware Superior Court |
| Parties | THE CITY OF WILMINGTON, a Municipal Corporation of the State of Delaware, Plaintiff, v. JANEVE CO., INC. AND TAX PARCEL NO. 26-028.20-054, Defendants, AND THE CITY OF WILMINGTON, a Municipal Corporation of the State of Delaware, Plaintiff, v. READWAY, INC. AND TAX PARCEL NO. 26-013.30-183, Defendants, AND THE CITY OF WILMINGTON, a Municipal Corporation of the State of Delaware, Plaintiffs, v. THE REVOCABLE TRUST OF WALTER LOWICIKI DATED AUGUST 18, 1999, STANLEY C. LOWICKI, UNKNOWN HEIRS OF WALTER LOWICKI AND TAX PARCEL NO. 26-055.40-022, Defendants. |
Upon Defendants' Motion for Reconsideration of Commissioner's Orders
Upon Plaintiff, City of Wilmington's, Motion to Lift Stay of
Thomas P. Carney, Esquire, City of Wilmington Law Department, Wilmington, Delaware, Assistant City Solicitor, Attorney for Plaintiff City of Wilmington.
John R. Weaver, Jr., Esquire, Stark & Stark, PC, Wilmington, Delaware, Attorney for Defendants.
Before the Court are cross-motions: Defendants'—Janeve Co., Inc., Readway, Inc., and the Revocable Trust of Walter Lowicki, Stanley C. Lowicki, and Unknown Heirs of Walter Lowicki (collectively "Defendants")—Motion for Reconsideration, challenging case-dispositive and non-dispositive determinations made by a Superior Court Commissioner;1 and Plaintiff City of Wilmington's ("the City") Motion to Lift the Stay of Sheriff Sale. For the reasons stated below, Defendants' Motion is denied, and the City's Motion is granted.
The facts underlying this matter are not in dispute and arise from a long chain of litigation from the City's efforts to secure payment of vacant property fees for properties owned by Defendants. For approximately a decade, Defendants have failed to pay fees assessed by the City. When the City has attempted to collect these unpaid fees through monition actions, Defendants have vigorously challenged the collection efforts in court. Each year, when presented with a writ of monition, Defendants have brought suit in this Court, often sought reargument when their claims invariably failed, and appealed to the Supreme Court where their challenges were consistentlyrebuffed. This process would repeat when the next year's vacant property fees became due.
In the present action, Plaintiff City of Wilmington filed three Writs of Monition pursuant to City of Wilmington Code ("the Code") § 4-1812 on September 4, 2012. The three writs were based on unpaid vacant property registration fees assessed under § 4-27 of the Code.3 The three actions are consolidated for the purpose of this appeal. The properties in question are:
Defendant
Property Address
Tax Parcel Number
Janeve Co., Inc.
1309 West Street Wilmington, Delaware
26-028.20-054
Readway, Inc.
1309 Lincoln Street Wilmington, Delaware
26-013.30-183
Lowicki Trust
2600 West 18th Street Wilmington, Delaware
Defendants filed an answer in each monition action. As the answers presented no worthy defense, the City filed three writs of venditioni exponas, directing the Sheriff to sell the named properties. Defendants then filed a motion to set aside the monitions and quash the sheriff's sales, which the City opposed. A hearing on Defendants' motion was heard by aCommissioner of this Court, at which the Commissioner noted a potential conflict of interest, granted a stay of the sheriff's sales, and sought reassignment of the matter to another Commissioner.
On February 26, 2013, the second Commissioner conducted a hearing on Defendants' motion. Defendants alleged three grounds for relief: (1) for the Readway property, the writ of monition should be dismissed pursuant to Superior Court Civil Rule 41(a) as precluded by the doctrine of res judicata; (2) the City's actions were untimely under 10 Del. C. § 8106's three-year statute of limitation; and (3) Defendants were entitled a jury trial. The Commissioner denied Defendants' claims, noting that the Defendants' systematic attempts to challenge the City's fee collections efforts on an annual basis—including pro forma appeals to this Court and our Supreme Court—were the cause of delayed adjudication.4 When the following year's vacant property fees became due, and subsequently were not paid, the Citywould then be required to file a new writ of monition reflecting the up-to-date fee amounts owed.
The Commissioner reasoned that Superior Court Civil Rule 41(a) is only triggered if an action is dismissed without order of the court, and then later re-filed. As the City had sought the Court's permission to vacate an earlier writ of monition before re-filing the writ with the current fee amounts owed, the current action was not barred under Rule 41(a). Examining Defendants' pattern of purposefully delaying the City's collection efforts, the Commissioner further found that any delay suffered by Defendants was attributable to their own actions. Consequently, they neither proved nor could they argue that they suffered prejudice from the delay. And the statute of limitations did not bar the present action. Finally, the Commissioner found that, as the action for monition arises from a statutory provision,5 Defendants have no right to a trial by jury because the cause of action did not exist at common law.6 Defendants filed a motion to reargue the Commissioner's Order which the Commissioner subsequently denied.
Defendants now seek reconsideration of the Commissioner's Orders on the following grounds: (1) as for Defendant Readway, the "two dismissal" rule has been satisfied, and the present action should be barred under the doctrine of res judicata; (2) for all Defendants, the three-year statute of limitations found in 10 Del. C. § 8106 bars the City's claims as untimely; and (3) for all Defendants, the City's claims are simple debt actions—which existed at common law—and therefore the defendants are entitled to a trial by jury.
Under Superior Court Civil Rule 132,7 Commissioners have the power to conduct both dispositive and non-dispositive hearings and to make certain pre-trial determinations and recommendations.8 The fundamental nature of the subject matter under review—dispositive or non-dispositive—dictates the degree of deference a judge must give to such a determination.9 Upon review of a Commissioner's case-dispositive determination, a judgeengages in a de novo review.10 For such case-dispositive determinations, therefore, the Commissioner's disposition acts as proposed findings of fact and recommendations and the judge makes a de novo determination of those specified portions, proposed findings of fact, or recommendations to which an objection is made.11 For non case-dispositive matters, by contrast, the Commissioner's order is reconsidered by a judge only "where [it] has been shown on the record" that the order is "based upon findings of fact that are clearly erroneous, or [] contrary to law, or [] an abuse of discretion."12
The Commissioner's opinion contains both case-dispositive and non-dispositive determinations, the Court will apply the appropriate standard of review for each determination.
Defendant Readway contends that the City's voluntary dismissal of the prior writ of monition triggers the "two dismissal" rule as it is articulated by the Delaware Bankruptcy Court in In re Chi-Chi's Inc.13 In Readway's view, the doctrine of res judicata should bar the City's present writ. But because the prior dismissal of the writ was done with leave of the Court, and because the necessity of filing such multiple writs occurred in large part due to Readway's purposeful delay of the City's collection efforts, the subsequent writ is not barred by Rule 41(a).
In alleging that a claim is barred under res judicata, a party must show:
(1) the court making the prior adjudication must have had jurisdiction; (2) the parties to the second action must be the same or be privy to those in the first action; (3) the cause of action must be the same in both cases or the second action must arise from the same transaction that formed the basis of the prior adjudication; (4) the issues in the prior action were decided adversely to the contentions of the plaintiff(s) in the pending case; and (5) the prior decree must be final.14
Superior Court Civil Rule 41(a)(1) provides:
[A]n action may be dismissed by the plaintiff without order of the court . . . Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.15
An action that was voluntarily dismissed by a plaintiff may, therefore, be an "adjudication" for the purpose of res judicata analysis, if the dismissal occurred "without order of the court."16 Readway concedes that the City dismissed the prior writ pursuant to an order of the Court, and therefore Rule 41(a) would appear not to preclude the present writ.
Readway contends, however, that the Court should not except Rule 41(a) dismissals, even those granted by the court, when applying the "two dismissal" rule articulated in In re Chi-Chi's Inc. Not so. The purpose of the "two dismissal" rule is "to prevent unreasonable abuse and harassment" by a plaintiff attempting to "secur[e] numerous dismissals withoutprejudice."17 A court may apply the "two dismissal" rule to avoid prejudice to a defendant from a plaintiff's bad faith conduct, or...
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