IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

EMILY BALDWIN, )
)
Plaintiff, )
) C.A. No. N19C-03-037 MMJ
v. )
)
NEW CASTLE COUNTY, )
)
Defendant. )

Submitted: October 21, 2019
Decided: January 13, 2020

On Defendant’s Motion to Dismiss
GRANTED

OPINION
Emily Baldwin, Plaintiff Pro Se

Nicholas J. Brannick, Esq., (Argued), Jordan S. Perry, Esq., New Castle County
Government Center, New Castle, Delaware, Attorneys for Defendant

JOHNSTON, J.

FACTUAL AND PROCEDURAL CONTEXT
Plaintiff owned real property located at 316 Wildel Avenue, New Castle,
19720, Parcel No. 10-010.10-039 (the “Property”).! In 2017, a fire occurred in the
House (the “House”) on the Property, and Plaintiff vacated the House.” The fire

damaged the rear porch addition and an exterior wall of the House.

 

' Amended Compl. § 1; Ex. 1.
2 14.927.
On June 7, 2017, Defendant New Castle County, through the New Castle
County Department of Land Use (the “Department”), issued to Plaintiff
Demolition Permit 201705869 to remove the damaged addition to the House and
the deck on which it was built.2 On November 28, 2017, the Department issued a
Certificate of Completion for Demolition Permit 201705869.*

On March 2, 2018, the Department issued to Plaintiff Building Permit
201802459, authorizing Plaintiff to rebuild an exterior wall damaged by fire.” Four
days later, on March 6, 2018, a second fire occurred in the House.® The
Department conducted an inspection of the Property on March 7, 2018,’ and as a
result, issued a violation notice the following day.®

Plaintiff failed to appear for the Rule to Show Cause Hearing (“RTSC”) held
on March 14, 2018.’ On the same day, the Department directed Plaintiff to obtain
permits by April 13, 2018.!° The directive provided that Plaintiff would incur a

$100 fine for every day after April 15, 2018 that Plaintiff did not obtain the

 

3 Def.’s Br. Ex. 2 (Jul. 12, 2019); Amended Compl. Ex. H.
* Amended Compl. Ex. A.

Id.

6 Pl.’s Rep. Br. 4 3 (Jul. 30, 2019).

7 Def.’s Br. Ex. 3 (Jul. 12, 2019).

8 Id.; see also Amended Compl. 37.

” Id.

10 Id.
necessary permits.'! Plaintiff did not appeal the decision to the Board of License,
Inspection and Review.

The Department emailed Plaintiff on April 11, 2018 with a reminder of the
impending deadline. On April 16, 2018, the Department issued to Plaintiff
Demolition Permit 201804419.!2 On May 9, 2018, Plaintiff's latest Building
Permit was revised to address the repairs made necessary by the second fire.’ The
Department then issued an abatement fee to Plaintiff on May 10, 2018, and a Lien
Recovery fee on May 22, 2018."

On June 21, 2018, the Department conducted an inspection, and
subsequently issued a Stop Work Notice pursuant to NCC Code §
6.12.002(C)(2).!° The Department issued the Stop Work Notice on the grounds
that the work being done exceeded the scope of Plaintiff's permits. The
Department also claimed that Plaintiff misrepresented both the date her permits
were issued and that she occupied the House at the time in question. The Plaintiff

had vacated the House following the 2017 fire.!®

 

11 Id.

'2 Amended Compl. Ex. B.

'3 Td. Ex. A.

'4 Amended Compl. { Ex. “Page 1.”
'S Td, Ex. C.

16 Amended Compl. §§ 27 & 32.
On June 29, 2019, Plaintiff appeared at a RSTC hearing.'’ The RTSC
decision dated July 5, 2018, directed Plaintiff to correct the violations described in
the June 21, 2018 Stop Work Notice. Plaintiff was directed to make these
corrections no later than July 16, 2018. Plaintiff again did not file an appeal. The
Department issued additional related fees to Plaintiff.'* Also on June 29, 2018, the
Department issued another violation notice to Plaintiff.’

On July 9, 2018, a RTSC penalty was issued for Plaintiffs failure to comply
with the March 14, 2018 directive.”° A third RTSC hearing was held regarding the
June 29, 2018 violation, on July 18, 2018.7! Plaintiff again failed to appear. The
Department issued a directive that Plaintiff correct all violations by August 20,
2018. This directive included a warning that Plaintiff's failure to comply could
result in demolition of the House. Plaintiff did not appeal this decision.

Plaintiff requested, and the Department agreed to, a meeting with Plaintiff.””
The two-hour meeting held on July 26, 2019, resulted in the Department’s revision
of its RTSC decision issued following the July 18, 2018 hearing. On July 31, the

Department revised its decision to allow Plaintiff until August 31, 2018 to provide

 

" Def.’s Br. Ex. 4 (Jul. 12, 2019).
18 Amended Compl. Ex. “Page 1.”
9 Def’s Br. Ex. 4 (Jul. 12, 2019).
20 Td. Ex. 5.
2! Id. Ex. 6.
22 Td. Ex. 7.
construction drawings to the Department and until October 31, 2018 to complete
the construction.”? Plaintiff did not appeal the Department’s amended decision.

On January 29, 2019, the Department assessed and issued a RTSC penalty
for Plaintiff's failure to comply with the revised July 31, 2018 directive. The
Department held the RTSC hearing on February 11, 2019, at which Plaintiff
appeared. The Department directed Plaintiff to correct all violations by March 15,
2019. The Department notified Plaintiff that her failure to make corrections could
result in demolition. Plaintiff did not appeal the Department’s decision.

Plaintiff filed her original Complaint on March 6, 2019, seeking removal of
all fines and liens against the Property, and damages for breach of contract. On
March 12, 2019, Plaintiff transferred the Property to her daughter, Cheri Black.”
On April 22, 2019, a third fire destroyed the House. Plaintiff filed her Amended
Complaint on June 28, 2019. New Castle County filed this Motion to Dismiss on
July 12, 2019. Plaintiff answered on July 30, 2019. After hearing oral argument
on August 22, 2019, the parties agreed to attempt to resolve the matter before the
Court made a ruling on New Castle County’s Motion to Dismiss. On October 21,

New Castle County reported to the Court that the parties were unable to settle.

 

23 Id.
4 Amended Comp. § 1; Def.’s Br. Ex. 1 (Jul. 12, 2019).

5
STANDARD OF REVIEW

In a Rule 12(b)(6) Motion to Dismiss, the Court must determine whether the
claimant “may recover under any reasonably conceivable set of circumstances
susceptible of proof.”*> The Court must accept as true all well-pleaded
allegations.”° Every reasonable factual inference will be drawn in the non-moving
party’s favor.”’ If the claimant may recover under that standard of review, the
Court must deny the Motion to Dismiss.”8

ANALYSIS

New Castle County raises two grounds for dismissing Plaintiffs claim: (1)
Plaintiff lacks standing; and (2) Plaintiff has failed to state a claim for which relief
can be granted.

Standing
New Castle County argues that Plaintiff lacks standing because: (1) Plaintiff

conveyed the property; and (2) Plaintiff failed to exhaust her administrative

remedies.

 

25 Snence v. Funk, 396 A.2d 967, 968 (Del. 1978).

26 Id

27 Wilmington Sav. Fund Soc’y, F.S.B. v. Anderson, 2009 WL 597268, at *2 (Del. Super.) (citing
Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005)).

28 Snence, 396 A.2d at 968.
Conveyance

First, New Castle County contends that Plaintiff's conveyance of the
Property to her daughter divested Plaintiff of any interest in the Property. Thus,
New Castle County asserts Plaintiff no longer has standing to sue. Plaintiff argues
that she has standing because the fees were imposed prior to conveyance.

New Castle County issued the notices of its fees and liens to Plaintiff, but
asserts that the administrative penalties and RTSC fees are liens against the
Property. Thus, New Castle County argues that Plaintiff lacks standing to
challenge these liens because she conveyed the Property to another person.

Administrative penalties and RTSC fees constitute liens against the
Property.”° Because the liens are attached to the property, not the person, *° the
previous owner forfeits her standing to challenge the liens upon conveyance of the
property.

The Court finds that upon Plaintiff's conveyance of the Property on March
12, 2019, Plaintiffs entire interest in the Property transferred to another person.
This means that all liens, including the administrative penalties and RTSC fines—

which are only against property—also were transferred. The liens are not personal

 

229 Del. C. § 2907(b); 25 Del. C. §§ 2901(a)(1)(#), (g), G) &(a)(3); N.C.C. Code § 6.12.02(C)(8)
& App. 2.

3° City of Wilm. V. Javene Co., Inc., 2014 WL 2895228, at *5 (Del. Super.), aff'd, 128 A.3d 992
(Del. 2015).

7
liabilities of Plaintiff. Therefore, Plaintiff does not have standing to pursue
recovery of the fines and fees New Castle County issued against the Property.
Therefore, Defendant’s motion to dismiss Plaintiff's challenges to the fines and
liens attached to the property is hereby GRANTED.
Exhaustion of Administrative Remedies

Defendants also argue that Plaintiff has not exhausted her administrative
remedies. Defendants assert that Plaintiff failed to file appeals from Board
decisions, and therefore has no standing to pursue a claim in this Court.*!

During the August 22, 2019 hearing, Plaintiff informed the Court that she
had attempted to file an appeal as required by the New Castle County Code, but
could not afford the $200 fee associated with the appeal form.*” Plaintiff stated
that she tried to appeal the decision in forma pauperis, but was denied the
opportunity. Plaintiff told the Court that the Prothonotary informed Plaintiff that in
order to file the appeal, she must pay the $200 with the form.*? Without paying
$200, Plaintiff would not be allowed to appeal.*4

This information, purportedly provided by the Prothonotary, is incorrect.

There is no fee for filing in forma pauperis. It is unclear whether Plaintiff had the

 

31 See Miller v. New Castle Cty., 2016 WL 229542, at *2 (Del. Super.), rearg. den., 2016 WL
270531, at *2 (Del. Super.).

32 Transcript of Hearing (Aug. 22, 2019).

33 Id. at 6-9.

34 Td.
opportunity to demonstrate in forma pauperis qualification.*> Therefore, at this
motion to dismiss stage, a question remains as to whether Plaintiff exhausted her
administrative remedies. Because Plaintiff may have been denied the right to
proceed in forma pauperis, the Court cannot dismiss as a matter of law on the basis
of failure to exhaust administrative remedies.

Failure to State a Claim

Plaintiff claims that New Castle County’s issuance of the Building Permit
created a contract between Plaintiff and New Castle County.*® Plaintiff asserts that
New Castle County breached that contract when it issued a subsequent Stop Work
Order.>”

New Castle County asserts that the issuance of a building permit does not
create a contract. In support of its argument, New Castle County cites Willis v.
City of Rehoboth Beach.*® In Willis, the defendant-city issued a building permit to
the plaintiffs, but subsequently issued a stop work order upon discovering that the
building permit was issued illegally, in violation of the zoning code. The plaintiffs
raised a breach of contract claim on the grounds that the building permit

constituted a contract, and defendant’s actions amounted to a breach. This Court

 

35 Td. at 7.

36 See Amended Compl. § 3-7 & 25-26.
37 Id.

38 2005 WL 1953028, at *5—6 (Del. Super.).
dismissed plaintiff's contract claim, noting that “a permit issued and revoked is the
exercise of the City’s police power creates no contractual rights in the parties.”2?

Viewing the facts in the light most favorable to Plaintiff, the Court finds that
Plaintiff has not established a prima facie case for breach of contract sufficient to
survive Defendant’s Motion to Dismiss. The Building Permit does not constitute a
contract. Consequently, the Stop Work Order cannot constitute breach of contract.
Thus, Plaintiff has failed to state a claim upon which relief can be granted pursuant
to Rule 12(b)(6). Therefore, Plaintiff's breach of contract claim is dismissed, and
New Castle County’s Motion to Dismiss is hereby GRANTED.

CONCLUSION

The Court finds that upon Plaintiff's conveyance of the Property on March
12, 2019, Plaintiff's entire interest in the Property was transferred to her daughter.
All liens, including the administrative penalties and RTSC fines—which are only
against property—also were transferred. The liens are not personal liabilities of
Plaintiff. Therefore, Plaintiff does not have standing to pursue recovery of the
fines and fees New Castle County issued against the Property. THEREFORE,

Defendant’s motion to dismiss Plaintiff’s challenges to the fines and liens attached

to the property is hereby GRANTED.

 

39 Id.; see also Fliptop, Ltd. v. New Castle Cty., 1983 WL 473056, at *1 (Del. Super.)
(“[I]ssuance of a building permit would not create a contract between the parties.”).

10
It is unclear whether Plaintiff had the opportunity to demonstrate in forma
pauperis qualification.*” Therefore, at this motion to dismiss stage, a question
remains as to whether Plaintiff exhausted her administrative remedies. Because
Plaintiff may have been denied the right to proceed in forma pauperis, the Court
cannot dismiss as a matter of law on the basis of failure to exhaust administrative
remedies.

Nevertheless, viewing the facts in the light most favorable to Plaintiff, the
Court finds that Plaintiff has not established a prima facie case for breach of
contract. The Building Permit does not constitute a contract. Consequently, the
Stop Work Order cannot constitute breach of contract. Plaintiff has failed to state a
claim upon which relief can be granted pursuant to Rule 12(b)(6). THEREFORE,
Plaintiff's breach of contract claim is dismissed, and New Castle County’s Motion
to Dismiss is hereby GRANTED.

The Amended Complaint is hereby DISMISSED IN ITS ENTIRETY

 

 

WITH PREJUDICE.
IT IS SO ORDERED.
The f, ary M. Johnston
“° Id. at 7.

11
