Shellburne, Inc. v. Roberts

• Decision Date: 14 December 1967
• Citation: 43 Del.Ch. 485,238 A.2d 331
• Parties: SHELLBURNE, INC., a corporation of the State of Delaware, Plaintiff Below, Appellant, v. Harry B. ROBERTS, Jr., et al., Defendants Below, Appellees.
• Court: United States State Supreme Court of Delaware

Page 331

238 A.2d 331

43 Del.Ch. 485

SHELLBURNE, INC., a corporation of the State of Delaware Plaintiff Below, Appellant, v. Harry B. ROBERTS, Jr., et al., Defendants Below, Appellees.

Supreme Court of Delaware.

Dec. 14, 1967.

Upon Petition for Special Mandate Jan. 18, 1968.

Donald W. Booker, of Booker, Leshem, Green & Shaffer, Wilmington, for plaintiff below, appellant.

Harvey B. Rubenstein and Clarence W. Taylor, Wilmington, for defendants below, appellees.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

HERRMANN, Justice:

This appeal arises in an action for injunctive relief and for money damages brought by the plaintiff, Shellburne, Inc., a Delaware corporation (hereinafter 'Shellburne') against the defendants, the Levy Court of New Castle County, its members individually, the Building Inspector, the Zoning Commission of New Castle County, and others. The suit involves attempts to rezone certain lands owned by Shellburne in New Castle County, presently zoned commercial, located near the residential developments known as Shellburne, Welshire, and Liftwood.

The following determinative facts are undisputed: On December 22, 1965, a building permit was issued to Shellburne for the construction of a commercial building on the land here involved. The parcel had been zoned commercial since 1954. Earlier attempts by Shellburne to begin construction had been delayed, particularly during 1964 and 1965, by unsuccessful attempts of the owners of nearby properties to initiate the rezoning of the subject tract. The last such attempt culminated in an Order of the Chancery Court in Shellburne's favor on December 22, 1965.

On January 11, 1966, the three Commissioners of the Levy Court adopted a Resolution requesting the Zoning Commission 'to hold a Public Hearing and to make its recommendation to the Levy Court upon the matter of the rezoning' of the subject parcel of land 'from C--1 to R--1--C classification.' ¹ On the same date, the Building Inspector received a letter from the defendant Joseph F. Dayton, one of the Levy Court Commissioners, directing the Building Inspector to stop all work on the subject tract under the outstanding building permit. Such order was issued to Shellburne by the Building Inspector forthwith. Neither of the other Levy Court Commissioners, the defendants John D. Daniello and Harry B. Roberts, Jr., had prior knowledge of the instructions issued by Dayton to the Building Inspector. This action followed.

In its complaint, Shellburne alleged Inter alia that the 'principal source of agitation over the last two years' for the rezoning was a Church located across from the parcel in question; that Daniello was a member of the Church involved; that Dayton was a member of the same faith although of a different parish. By this suit, Shellburne sought (1) to restrain the Levy Court and the Zoning Commission from 'entertaining any petition for rezoning' the subject land 'from its present classification of C--1 to R--1--C and/or from conducting any proceedings concerning such rezoning'; (2) to restrain the Building Inspector 'from stopping any work under the valid and legal existing building permit or from refusing to issue any additional permits where proper regulations and requirements are fulfilled'; (3) to restrain the Levy Court and all defendants 'from interfering in any way with the orderly, proper, and normal issuance of building permits or the work under the present permits'; and (4) to recover damages from 'individuals where their office has been wrongfully used.'

By its Order dated February 23, 1966, the Chancery Court decreed:

'* * * until final determination of this action that the Defendants, their agents, employees and successors, are hereby enjoined from holding zoning hearings or in any way acting upon the resolution of the Levy Court dated January 11, 1966 * * * and that the Defendants, their agents, employees and successors are hereby further enjoined from interfering in any way with the work under the existing Building Permit No. 37313, or from revoking or attempting to revoke the present permit; provided that this temporary injunction order shall only issue on condition that plaintiff agree not to perform any further work at the scene until final determination of this action.'

In due course, certain questions were certified to this Court regarding the power of the Levy Court to initiate zoning changes. We held that such power existed. See Shellburne, Inc. v. Roberts, Del., 224 A.2d 250 (1966). Thereafter, by Order dated December 28, 1966, the Chancery Court granted summary judgment in favor of the defendants Dayton and Daniello absolving then from personal liability for damages arising from the Resolution of January 11, 1966 or from the stoppage of work by the Building Inspector. Shellburne appeals from that Order.

Subsequently, on January 3, 1967, as the result of the New Castle County Reorganization Act, 9 Del.C. Chap. 11, the newly-elected County Council of New Castle County replaced the dissolved Levy Court. At the first business meeting of the Council held January 9, 1967, Ordinance No. 67--2 was introduced providing for the rezoning of the subject property from C-1 to R-1-C classification. At the same meeting, Ordinance No. 67--3 was introduced providing that no building permit shall issue as to any land with respect to which a rezoning ordinance has been introduced, until adoption or rejection of the ordinance, or the expiration of 90 days from the date of introduction of the ordinance, whichever first occurs. Ordinance No. 67--3 was approved at the Council meeting of January 25, 1967. At the Council meeting of January 30, 1967, Ordinance No. 67--2 was withdrawn, for some reason unexplained in this record, and an identical ordinance, being No. 67--5, was introduced which would rezone the subject parcel. The latter ordinance remains pending.

Thereafter Shellburne moved for a contempt attachment against the members of the County Council, asserting violation of the Chancery Court's injunctive order of February 23, 1966. That motion was denied by Order dated March 1, 1967 and Shellburne appeals.

Shellburne also moved for leave to join the members of the County Council as parties defendant in this action and to amend the complaint to include the activities of the Council in the premises. That motion was denied by Order dated March 1, 1967 and Shellburne appeals.

Finally, the defendants moved to dismiss the action. That motion was granted by Order dated March 1, 1967 and Shellburne appeals.

I.

Dismissal of the appeal is sought by the defendants as to the Order of December 28, 1966, which granted the summary judgment in favor of the defendants Dayton and Daniello individually as to their personal liability. The ground upon which the dismissal of the appeal is sought is that the appeal from the Order of December 28, 1966 was not taken until April 28, 1967, when the appeal was taken from the other Orders, all dated March 1, 1967; that, therefore, the appeal from the Order of December 28, 1966 is barred by the 60 day limitation of 10 Del.C. § 145 ² and Supreme Court Rule 23, Del.C.Ann. ³

Shellburne contends that the appeal is not barred by the 60 day limitation because the Order of December 28, 1966 was an interlocutory order; and it claims the benefit of 10 Del.C. § 144 ⁴ which permits the withholding of an appeal from an interlocutory order until final judgment has been entered.

We dispose of the motion on the basis of Chancery Rule 54(b): ⁵ The Order of December 28, 1966 lacked 'an express determination that there is no just reason for delay' and 'an express direction for the entry of judgment' upon the claim for money damages against Dayton and Daniello individually. Under Rule 54(b), a final judgment is not deemed entered in a multiple claim case in the absence of such express determination and direction. See 6 Moore's Federal Practice 54.28(2); Sears Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956).

Accordingly, as was apparently conceded by the defendants ultimately, the Order of December 28, 1966 must be considered to be an interlocutory order properly included in this appeal by virtue of 10 Del.C. § 144. Therefore, the motion to dismiss the appeal is denied.

II.

As to Shellburne's motion for leave to amend its complaint and to add the members of the new County Council as parties defendant, we cannot say that the Chancery Court abused its discretion in the denial of that motion. Compare Bellanca Corporation v. Bellanca, 3 Storey 378, 169 A.2d 620 (1961).

The motion to amend the complaint and to add parties was based upon the premise that the County Council was the 'successor' of the Levy Court; that the actions of the Council in January 1967 were 'part of the same scheme and plan' as that in which the Levy Court Resolution of January 11, 1966 figured. The premise is faulty. The Levy Court of New Castle County and the office of Levy Court Commissioner were abolished by the New Castle County Reorganization Act, 9 Del.C. § 1141(b); and the two incumbent Levy Court Commissioners thereby became members at large of the County Council, temporarily consisting of nine members. Thus, the Councilmen did not become 'successors' to the Levy Court Commissioners as newly elected Levy Court Commissioners might have been. In the exercise of its discretion, the Chancery Court would have been warranted in concluding that the Council and its actions were not sufficiently related to the Levy Court and its actions to justify blanketing them all within the same cause of action. Any grievance that Shellburne may have against the County Council may be the subject of a separate cause of action--witness the fact that Shellburne had filed such separate action against the County Council before the hearing on this appeal.

Accordingly, the denial of Shellburne's motion to amend the complaint and add parties defendant is affirmed.

III.

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