BROWN v. WILMINGTON BD OF ADJST, 06A-10-005 (JRS) (Del.Super. 7-23-2007)

DAVID H. BROWN, P. JAMES HAHN, KATHRYN A. PINCUS, and SUSAN W. SOLTYS Petitioners, v. CITY OF WILMINGTON ZONING BOARD OF ADJUSTMENT, being DAVID BLANKENSHIP, HAROLD LINDSAY and MARK PILNICK CCS INVESTORS, LLC, Respondents.

C.A. No. 06A-10-005 (JRS).Superior Court of Delaware, New Castle County.
July 23, 2007.

JOSEPH R. SLIGHTS, III, Judge

ORDER REFUSING CERTIFICATION OF APPEAL FROM INTERLOCUTORY ORDER
This 23rd day of July, 2007, Respondent, City of Wilmington Zoning Board of Adjustment (“ZBA”), having filed an application for Certification of Interlocutory Appeal (“the Application”) of this Court’s decision, dated June 25, 2007 (and corrected without substantive change on June 26, 2007), wherein this Court denied the ZBA’s motion to dismiss a petition for writ o certiorari (“the Petition”), and granted Petitioners’ motion to amend the caption of the Petition to add a necessary party, it appears to the Court that:

(1) David H. Brown, P. James Hahn, Kathryn A. Pincus, and Susan W.

Page 2

Soltys (“Petitioners”) filed the Petition seeking review of a decision of the ZBA granting a zoning variance to CCS Investors, LLC (“CCS”) to develop a property (“the Estate”) owned by Preservation Delaware, Inc. (“PDI”). The Petition named the ZBA in the caption; it did not name CCS or PDI. The ZBA contended that the Petition must be dismissed for failure to join two necessary parties, PDI and CCS. Specifically, by motion to dismiss, the ZBA argued that pursuant to Superior Court Civil Rule 19 (“Rule 19”)[1] and Hackett v. Board of Adjustment of Rehoboth Beach,[2] Petitioners’ failure to name CCS and PDI in the caption created an incurable jurisdictional defect. The Court addressed several questions in its decision: (1) whether the Court must apply the lenient test set forth in the Supreme Court’s decision in State Personnel Commission v. Howard or Superior Court Civil Rules 15 and 19 to determine whether an appellant may amend a notice of appeal from a ZBA decision to include an unnamed party after the limitations period has expired;[3] (2) whether CCS and PDI were necessary parties under Rule 19(a); and, if so, (3) whether Petitioners’ proffered amendment of the Petition was permissible under the “relation

Page 3

back” principle embodied in Superior Court Civil Rule 15(c) (“Rule 15(c)”).

(2) The Court considered the parties’ written submissions and heard oral arguments at a hearing on February 26, 2007. In its decision, the Court applied Rules 15 and 19 to determine whether Petitioners could amend the Petition to add CCS and PDI, the legal standard urged by the ZBA. The Court then considered the record regarding the failure to name CCS and PDI in the Petition against settled principles of Delaware law to determine whether Petitioners’ proposed amendment comported with the Superior Court Civil Rules. Ultimately, in a lengthy written opinion, the Court determined that PDI was not a necessary party to the Petition, CCS was a necessary party, and Petitioners could amend the Petition to add CCS as a party because the amendment satisfied the relation back test set forth in Rule 15(c).

(3) The standard for determining the appealability of an interlocutory order is well-settled: the Order must have determined a substantial issue and established a legal right.[4] Additionally, the interlocutory appeal must satisfy one of the five criteria listed in Delaware Supreme Court Rule 42(b) (“Rule 42(b)”).[5]

(4) In the Application, the ZBA maintains that the Court decided two substantial issues and established a legal right. The first substantial issue implicated

Page 4

in the Court’s decision, according to the ZBA, is “whether a property owner who obtains a variance is a necessary party to an appeal of that variance.”[6] The second substantial issue, and the established legal right, is that “an aggrieved party in a zoning appeal is excused from joining all necessary parties within the appeal deadline if the appellant was unaware that the parties were necessary.”[7] The ZBA posits that the Application satisfies Supreme Court Rule 42(b)(i) and 41(b)(ii)[8] because the Court’s decision conflicts with the prior decisions of this court in Riedinger v. Board of Adjustment[9] an Sussex Medical Investors, L.P. v. Delaware Health Resources Board
(“Sussex Medical“).[10] Lastly, the ZBA maintains that the Application satisfies Rule 42(b)(ii) because the Court’s decision gave rise to controverted jurisdiction.[11] The ZBA claims that the Court now lacks jurisdiction over CCS because it allowed Petitioners to join CCS after the time for appeal of the ZBA decision expired.

Page 5

(5) The Court is satisfied that the first substantial issue identified by the ZBA — that the Court improperly concluded that PDI was not a necessary party — does not meet the standard set by Rule 42(a). First, it appears to the Court that the issue may be moot. On July 16, 2007, Petitioners supplemented the record with a letter sent by PDI to the Delaware Secretary of State, Division of Historical and Cultural Affairs on June 20, 2007.[12] The letter “constitute[d] written notice of the transfer of PDI’s interest in the [Estate] to CCS, LLC, and/or its designated affiliate, said transfer to occur on or about July 20, 2007.”[13] Whether PDI is a necessary party to this appeal based on its ownership of the Estate appears now to be moot because apparently PDI no longer owns the Estate and therefore has no interest in the outcome of this appeal.[14] Moreover, as the Court noted in its opinion, PDI was not a party in the underlying ZBA proceeding and, under the circumstances presented here, was not a necessary party in the appeal of the ZBA decision.

Page 6

(6) The Court is also satisfied that the second substantial issue raised by the ZBA was not implicated by the Court’s decision. The Court’s decision did not, as ZBA suggests, establish a legal right that an appellant may amend an appeal to add a party after the appeals deadline has passed if the appellant was unaware that the party sought to be added was necessary before the deadline. To the contrary, the Court required, inter alia, that the appellant bring forth evidence of an intent to name the necessary party prior to the end of the limitations period in order to satisfy Rule 15(c). The Court’s decision focused heavily on evidence that Petitioners were aware that CCS was a necessary party to their appeal of the ZBA decision, Petitioners intended to name CCS in the appeal, CCS knew of Petitioners intent, and CCS received notice of the appeal within the limitations period. In stating that there was notice to CCS of Petitioners’ intent to appeal the ZBA decision, the Court concluded that notice to Ms. Wendie Stabler, counsel for CCS at the ZBA hearing, was adequate notice to CCS because there was evidence that CCS had an ongoing attorney-client relationship with Ms. Stabler and that such evidence was communicated to Petitioners prior to the filing of the Petition. The Court then relied upon an email from Petitioners’ counsel to Ms. Stabler attaching the Petition to find that CCS received

Page 7

timely notice of the appeal.[15]

(7) The Court also examined Petitioners’ intent to make CCS a party to the appeal prior to the expiration of the limitations period and found that Petitioner made a mistake under Rule 15(c)(3)(B). The Court considered the email to Ms. Stabler, the naming of CCS in Petitioners’ praecipe, and the references in the Petition to CCS’ interest in the outcome of the appeal to conclude that Petitioners were indeed aware that CCS was a necessary party to the appeal and intended to name CCS as a party. Likewise, the Court was satisfied that CCS knew of Petitioners’ intent to make CCS a party to the appeal. Ms. Stabler received a copy of the Petition via email and refused Sheriff’s service of the Petition upon CCS as directed in the praecipe. Based upon the Court’s extensive analysis of the facts and circumstances of this case under Rules 15 and 19, the Court was justified in allowing Petitioners to amend the Petition because the Superior Court’s misleading forms led Petitioner’s counsel reasonably to believe that, despite h is intent to name CCS as a party to the appeal, he only needed

Page 8

to name the ZBA in the caption of the Petition. This was not the determination of a substantial issue or the establishment of a legal right. It was a very fact intensive application of the settled relation back standard set forth in Rule 15(c). Accordingly, the Court concludes that the application does not satisfy the criteria set forth in Delaware Supreme Court Rule 42(a).[16]

(8) Even if the Application overcame the threshold inquiries of Rule 42(a), the Application still does not satisfy the criteria of Rule 42(b). The Court’s decision did not conflict with other decisions of this court, but rather found factual distinctions in those decisions that dictated a different outcome here. Assuming PDI has an interest in the appeal from the ZBA decision, the ZBA’s reliance o Riedinger for the proposition that property owners are indispensable parties to a zoning appeal is misplaced. There, this court stated that “[p]roperty owners who receive a favorable ruling at the Board level are generally considered necessary parties to an appeal brought by an aggrieved party. . . . [h]owever, it is not an automatic reason for dismissal, the facts and circumstance of the particular case dictate whether a party is indispensable.“[17] Unlike the property owners i Riedinger, who were also the

Page 9

variance applicants, this Court stated in its decision that PDI is not a necessary party because PDI was not an applicant for the variance, it did not participate in the ZBA hearing, and the ZBA’s written decision awards the variance to CCS alone. The Court’s decision here comports with Riedinger because the Court found that the facts and circumstances of this case do not dictate that PDI is a necessary party to this appeal.

(9) In addition, the ZBA claims that “this Court’s Opinion holds that CCS’s attorney’s knowledge of the Petitioners’ appeal and opportunity to intervene in that appeal are sufficient to join CCS as a party,”[18]
and therefore contradicts this court’s decision in Sussex Medical. There, the court stated “[j]oinder as a party, rather than knowledge of a lawsuit and an opportunity to intervene is the method by which potential parties are subjected to the jurisdiction of the court and bound by the judgment of decree.”[19] This statement, according to the ZBA, signified that “mere notice” to a necessary party is not sufficient to effect joinder. ZBA’s reading of Sussex Medical is accurate as far as it goes. The Court’s decision in this case does not, however, in any way contradict the holding of Sussex Medical. The Court did not allow CCS to be joined as a party solely because it found that Ms. Stabler had

Page 10

notice of the Petition on behalf of CCS and an opportunity to intervene. Rather, the Court engaged in a thorough analysis of each aspect of Rule 15(c) to conclude that joinder of CCS was feasible. In addition to notice, the Court found that the proposed amendment related to the same transaction or occurrence of the original Petition, that CCS knew that Petitioners intended to prosecute this appeal, and that CCS “knew or should have known” that Petitioners made a mistake in the manner in which they filed their appeal.[20] The Court neither stated nor implied that the amendment was justified because CCS had the opportunity to intervene. The ZBA’s reliance on Sussex Medical to satisfy the criteria in Rule 42(b)(i) is therefore not persuasive.

(10) Turning to the ZBA’s claim that the Court’s decision gives rise to controverted jurisdiction over CCS, the Court is not satisfied that the Application in this regard meets the criteria of Rule 42(b)(ii). The Court’s jurisdiction over CCS is not controverted because the Petitioners followed this Court’s rules of procedure and the applicable statutory provisions regarding the filing of this appeal. Respondents have not and cannot meaningfully challenge this fact.[21] Moreover, the Court’s

Page 11

decision to allow Petitioners to amend the caption of the appeal complies with the Superior Court Civil Rules and settled Delaware case law.[22] The Court is satisfied that it has properly exercised its jurisdiction in this case.

Based on the foregoing, the ZBA’s application for certification of interlocutory appeal is REFUSED.
IT IS SO ORDERED.

[1] See SUPER. CT . CIV. R. 19 (“Rule 19”) (governing joinder of persons needed for just adjudication).
[2] Hackett v. Board of Adjustment of Rehoboth Beach, 794 A.2d 596
(Del. 2002).
[3] State Personnel Comm’n v. Howard, 420 A.2d 135, 137 (Del. 1980) See also SUPER. CT. CIV. R. 15 (“Rule 15”) (concerning amendments to pleadings).
[4] SUPR. CT. R. 42(a); Castaldo v. Pittsburgh-Des Moines Steel Co., Inc., 301 A.2d 87 (Del. 1973).
[5] SUPR. CT. R. 42(b)(i)-(v).
[6] Docket Item (“D.I.”) 22 at 4.
[7] Id.
[8] See SUPR. CT. R. 42(b)(i) (“Any of the criteria applicable to proceedings for certification of questions of law set forth in Rule 41” will satisfy Rule 42(b)). See also SUPR. CT. R. 41(b)(ii) (providing for certification of questions of law when “[t]he decisions of the trial courts are conflicting upon the question of law”).
[9] 2000 WL 33114345 (Del.Super.Ct. Sept. 26, 2000).
[10] 1997 WL 524065 (Del.Super.Ct. Apr. 8, 1997).
[11] See SUPR. CT. R. 42(b)(ii) (providing for interlocutory review when “[t]he interlocutory order has sustained the controverted jurisdiction of the trial court”).
[12] D.I. 24, Tab 1.
[13] Id.
[14] The Court notes that the ZBA objects to supplementing the record with the letter because it is not a deed, and is therefore not evidence of transfer of ownership. D.I. 25. The ZBA’s objection goes solely to the weight the Court should give to this letter. The Court recognizes that the letter is not definitive evidence of ownership in the Estate. It is, however, significant in that it provides the Court a reasonable basis to conclude that a sale is imminent and that the first substantial issue raised by the ZBA is moot.
[15] In addition to the notice identified by the Court, CCS also received notice in a letter from Petitioners’ counsel to Ms. Stabler dated September 14, 2007 wherein Petitioners’ counsel stated “Candidly, the current sentiment of the core group [Petitioners] is to pursue an appeal[.]” D.I. 12, Tab 3. The Court also notes that its decision states that the Petitioners’ praecipe directing the Sheriff to serve the Petition upon the ZBA and CCS was filed on October 27, 2006. A further review of the docket reveals that Petitioners filed the praecipe within the statutory period for appeals on October 12, 2006 and the Prothonotary issued the summons to the Sheriff for service on October 27, 2006. (D.I. 2). On November 6, 2006, CCS, through Ms. Stabler, would have received the praecipe with the attached Petition. D.I. 18.
[16] See Levinson v. Conlon, 385 A.2d 717, 719 (Del. 1978) (stating that an interlocutory order may not be appealed unless the trial court’s determined a substantial issue and established a legal right).
[17] Riedinger, 2000 WL 33114343, at *3 (emphasis supplied).
[18] D.I. 22 at 5.
[19] Sussex Medical, 1997 WL 524065, at *12 (citations omitted).
[20] See Rule 15(c).
[21] See 22 Del. C. § 328 (conferring jurisdiction upon the Superior Court to review decisions issued by the ZBA); SUPER. CT . CIV. R. 72(a) (stating that rule applies to appeals from the ZBA to the Superior Court). See also Preston v. Bd. of Adjustment of New Castle County, 772 A.2d 787, 791 (Del. 2001) (noting that compliance with the relevan certiorari statute “is sufficient to invoke the jurisdiction of the Superior Court.”).
[22] See Rules 15; 19. See also Hackett, 794 A.2d at 598 (establishing that the Court must follow Rule 15 and 19 and when notice of appeal may be effected through a party’s counsel at the ZBA hearing); Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258, 263 (Del. 1993) (holding that notice under Rule 15 need not be formal); Sussex Medical, 1997 WL 524065 (outlining analysis under Rules 15 and 19); Marro v. Gopez, 1993 WL 138997 (Del.Super.Ct. Mar. 31, 1993) (discussing concept of “mistake” under Rule 15(c)(3)(B)).

Page 1