         IN THE SUPREME COURT OF THE STATE OF DELAWARE

CHARLES POTTER, JR. and               §
VELDA C. JONES-POTTER,                §
                                      §
             Plaintiffs Below,        §       No. 265, 2018
             Appellants,              §
                                      §       Court Below—Superior Court
      v.                              §       of the State of Delaware
                                      §
CITY OF WILMINGTON, a Municipal §
corporation of the State of Delaware, §
CITY OF WILMINGTON                    §
DEPARTMENT OF LICENSES AND §
INSPECTIONS, a department of the      §
City of Wilmington, and               §
JEFFREY J. STARKEY, Commissioner §
of Wilmington Department of Licenses §
and Inspections,                      §
                                      §
             Defendants Below,        §
             Appellees.               §

                          Submitted: December 5, 2018
                          Decided:   January 7, 2019

Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

                                     ORDER

      This 7th day of January, 2019, after careful consideration of the parties’ briefs

and the record on appeal, it appears to the Court that that the judgment of the

Superior Court should be affirmed on the basis of and for the reasons stated in the

Superior Court’s April 16, 2018 bench ruling.
       (1)    Charles Potter, Jr. and Velda Jones-Potter (“the Potters”) contracted

SC&A Construction (“SC&A”) to repair damage to the roof of their house in

Wilmington, Delaware after a tree fell on it in late September 2010.

       (2)    After a number of changes1 and delays, the Potters contacted the City

of Wilmington’s Department of Licenses and Inspections (“L&I”). L&I conducted

an inspection and issued a notice of violation in 2012 (the “2012 Notice”), finding

that SC&A failed to obtain required permits and inspections and requiring that

SC&A to obtain those permits and inspections.2 SC&A appealed the 2012 Notice to

the L&I Review Board, which ultimately affirmed the 2012 Notice on November

12, 2014 (the “2014 Board Decision.”). In 2017, the Potters again contacted L&I

and requested another inspection.3 L&I did so and issued a letter of findings in July

2017 (the “July 2017 Letter”), noting several Wilmington building-code violations.4

       (3)    The Potters and SC&A were also engaged in arbitration and litigation

between themselves regarding their respective obligations under the roof-repair

contract that ultimately ended with a mechanics’ lien judgment in SC&A’s favor and

against the Potters, who paid the mechanics’ lien to avoid a sheriff’s sale.




1
  App. to Answering Br. B81–82 (“B__” hereafter). The scope of the work on the Potters’ house
expanded to include removing the roof, reframing the attic, installing a new roof, and
considerable other interior and exterior work. Id.
2
  App. to Op. Br. at A19 (“A__” hereafter); B79.
3
  B85.
4
  A21–22.

                                              2
       (4)    With proceedings against SC&A going poorly for the Potters, they also

filed an action in Superior Court against the City of Wilmington seeking a writ of

mandamus commanding the City to enforce the 2014 Board Decision and the July

2017 Letter by requiring SC&A to secure the proper permits and inspections that

L&I identified in the 2012 Notice and to conduct any necessary remedial work at

SC&A’s expense. The Superior Court dismissed the Potters’ mandamus action on

the pleadings in a bench ruling that was later incorporated into a written order.5

       (5)    Mandamus is an “exceptional remedy,”6 and courts issue writs of

mandamus only when the duty sought to be enforced is ministerial rather than

discretionary and where there is no other adequate remedy. 7 Even then, mandamus

“is issuable not as a matter of right, but only in the exercise of sound judicial

discretion.”8 We therefore review for abuse of discretion.

       (6)    The     Potters     contend     that    Wilmington       had    a    ministerial,

nondiscretionary duty to enforce the 2014 Board Decision and July 2017 Letter and

to order SC&A to obtain any permits and inspections and conduct the remedial work.

We disagree. In our view, the Superior Court correctly determined that the City has




5
  A89–90; see Order, Potter v. City of Wilmington, N17M-11-233 (Del. Super. Apr. 24, 2018)
Dkt. No. 17 (granting Wilmington’s motion to dismiss for “the reasons stated in open court and
on the record at argument on April 16, 2018”).
6
  Brittingham v. Town of Georgetown, 113 A.3d 519, 524 (Del. 2015).
7
  Id.
8
  Petition of State, 616 A.2d 292, 293 (Del. 1992).

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discretionary authority to choose the manner in which it will enforce its building

code. Therefore, the remedy of mandamus is not available.

       (7)     Furthermore, a plaintiff seeking mandamus must also lack an

alternative remedy before a court may issue the writ. The Potters, however, have

several other remedies, at least one of which they already exercised. They filed a

lawsuit against SC&A that resulted in a judgment—affirmed by this Court—in favor

of SC&A. The Superior Court correctly concluded that the Potters did not lack an

alternative remedy for mandamus purposes simply because the Potters’ lawsuit did

not go the way they wanted it to go.9

       (8)     We see no error in the Superior Court’s ruling and do not believe that it

abused its discretion when it declined to issue a writ of mandamus.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                             BY THE COURT:


                                             /s/ Gary F. Traynor
                                             Justice




9
 A90; see In re Allen, 82 A.3d 729 (Del. 2013) (“As a condition precedent to the issuance of a
writ of mandamus, a petitioner must demonstrate that . . . no other remedy is, or was, available.
This Court will not allow the extraordinary writ process to be distorted into a substitute for
appellate review.”) (emphasis added); In re Johnson, 41 A.3d 430 (Del. 2012) (declining to grant
writ of mandamus where petitioner had unsuccessfully appealed a Superior Court decision).

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