IN THE SUPREME COURT OF THE STATE OF DELAWARE

RUSSELL E. WALKER,
No. 183, 2015
Plaintiff Below,
Appellant, Court Below—Superior Court of
the State of Delaware in and for
v. New Castle County

CITY OF NEW CASTLE and JOHN
LLOYD,

CA. No. N13C-09-152

Defendants Below,
Appellees.

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Submitted: October 16, 2015
Decided: December 31, 2015

Before HOLLAND, VAUGHN and SEITZ, Justices.
O R D E R

This 31St day of December 2015, upon consideration of the parties’
briefs and the Superior Court record, it appears to the Court that:

(1) On March 24, 2015, the Superior Court entered an amended
order dismissing two cases: Walker v. New Castle County, CA. No. N13C-
03-281, and Walker v. City of New Castle, CA. No. N13C—09-152
(collectively, “the Cases”). This appeal is ﬁom the dismissal of Walker v.
City of New Castle. Under all the circumstances as described below, we
conclude that, in Walker v. City of New Castle only, the Superior Court’s

judgment must be reversed and the matter remanded for further proceedings.

(2) The pro se appellant, Russell Walker, is the former owner of
two residential properties in Wilmington. In his complaint ﬁled in Walker v.
City of New Castle, Walker averred that he bought the properties in 2005
and operated them as for-proﬁt group homes for mentally disabled
individuals and “other minorities” until the properties were sold at sheriff‘s
sales in 2011 and 2013.

(3) Walker ﬁled the complaint in Walker 12. New Castle County in
March 2013, naming “New Castle County Code Enforcement/Customer
Relations, Department of Land Use” and others as the defendants
(hereinafter “the County Case”).I Walker ﬁled the complaint in Walker v.
City of New Castle in September 2013, naming the City of New Castle and
John Lloyd as the defendants (hereinafter “the City Case”).2

(4) Both the County Case and the City Case were assigned to the
same Superior Court Trial Judge. Although the Trial Judge may have
intended to consolidate the Cases, the record reﬂects that an order of
consolidation was never issued, and it does not appear that any of the parties

requested consolidation.

' The Court has taken judicial notice of the Superior Court docket and pleadings in the
County Case, namely Walker v. New Castle County, CA. No. NI3C-03-281.

2 John Lloyd is a code enforcement ofﬁcer for the City of New Castle.
2

(5) The dockets in the Cases reﬂect that, in early September, the
parties in the City Case were engaged in discovery, and the parties in the
County Case were preparing for a hearing on the defendants’ motion to
strike and motion for a more deﬁnite statement. On September 12, 2014, at
the request of the Trial Judge, a Superior Court Commissioner scheduled a
joint status conference in the Cases. The conference notice was sent to
Walker, counsel for the defendants in the County Case, and counsel for the
defendants in the City Case. Walker and both counsel attended the status
conference on October 15, 2014.

(6) It appears that the transcript of the October 15 status conference
was prepared and ﬁled in the County Case on December 8, 2014. The
transcript was not ﬁled in the City Case. It appears from the transcript that
at the outset of the conference, counsel in the City Case explained to the
Commissioner that the Cases were not consolidated.3 The transcript also
reﬂects that with one exception, the Commissioner directed the discussion
and all of his questions to counsel in the County Case and to Walker, about
the County Case. The one exchange between the Commissioner and counsel

in the City Case occurred halfway through the conference, as follows:

3 Status Conference Tr. at 6-7 (Oct. 15, 2014).
3

Commissioner: I assume Mr. Walker doesn’t hold

all of the disabled peOple in the City of New
Castle?

Counsel: In New Castle County?
Commissioner: City, County.

Counsel: I wouldn’t say that seems a little
farfetched.4

(7) The transcript reﬂects that near the end of the status conference,
the Commissioner stated: “[The Trial Judge] is looking for a more deﬁnite
statement. There’s nothing new here. I would recommend he dismiss the
case. There’s nothing here.”5 The Commissioner then asked counsel in the
County Case, “What’s the County’s position? Would you stand in the way
of the judge dismissing the case? Do you have any reason to try to settle the
case?"6 The Commissioner did not ask the same question of counsel in the
City Case. At the conclusion of the conference the Commissioner again
stated, “My recommendation is . . . to dismiss this case.”7

(8) Following the status conference, a judicial action form was

jointly ﬁled in the Cases. Although the form stated “COMMISSIONER

RECOMMENDS DISMISSAL OF CASE,” it does not appear that, at any

4 Id. at 13-19.
5 1d. at 27.
6 Id. at 28.
7 1d. at 32.

'll"

time thereafter, the Commissioner submitted proposed ﬁndings of fact and
recommendations for dismissal, of either or both of the Cases, under
Superior Court Civil Rule 132.8

(9) After the status conference, Walker ﬁled a motion for summary
judgment in the County Case followed by a “motion for voluntary
withdrawal,” which sought to voluntarily dismiss the County Case “without

”

prejudice. A hearing on the motions was scheduled for March 18, 2015.
Several days before the hearing, Walker filed a letter in the County Case
indicating that he would not be able to attend the hearing, but that the
“motion to withdraw [the County Case] still stands.”9

(10) The hearing on Walker’s summary judgment and voluntary
withdrawal motions proceeded as scheduled on March 18, 2015. Counsel in
the County Case appeared at the hearing. Walker did not. At the conclusion
of the hearing, the Trial Judge indicated that he would issue an order
dismissing the County Case with prejudice.”

(11) By amended order dated March 24, 2015, the Trial Judge

dismissed both the County Case and the City Case with prejudice. This

a See Del. Super. Ct. Civ. R. l32(a)(4) (requiring that Commissioner submit proposed
ﬁndings of fact and recommendations of any case-dispositive matter to a Judge and mail
copies of the proposed ﬁndings of fact and recommendations to the parties).

9 Walker explained that he could not attend the hearing because he was “seriously injured
in an accident” on February 25, 2015, and was “still recovering from this accident.”

‘0 Hr’g Tr. at 6 (Mar. 13, 2015).

appeal followed. On appeal, Walker contends that the Superior Court erred

when dismissing the City Case.

(12) Having reviewed the record and the parties’ briefs on appeal,
we conclude that the Trial Judge erred when dismissing the City Case
following the March 18 hearing in the County Case. The Court ﬁnds that
Walker did not receive notice that the March 18 hearing could result in a
dismissal of the City Case. As noted in the answering brief on appeal, the
March 18 hearing was noticed for, and concerned only, Walker’s summary
judgment and voluntary withdrawal motions in the County Case. Neither of
those motions was ﬁled or referenced in any way in the City Case. Counsel
in the City Case did not attend the March 18 hearing, and the City Case was
not discussed at the hearing.

(13) The Court also ﬁnds that the City Case cannot be dismissed on
the basis of the Commissioner’s recommendation at the conclusion of the
October 15, 2014 status conference. The transcript reﬂects that the
conference’s focus was on the County Case, not the City Case, and neither
the transcript nor the joint judicial action form suggests that the
Commissioner’s recommendation “to dismiss this case” was intended to

include the City Case.

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(14) Finally, although the March 24 amended order refers to and
relies on a “report and recommendation” for dismissal issued by the
Commissioner after the October 15 status conference, such a report does not
appear on the docket or in the record in either of the Cases, and neither party
has referred to such a report in the briefs on appeal. In the apparent absence
of a written report of proposed ﬁndings and recommendations sent to the
parties and the opportunity to ﬁle objections, the Commissioner’s
recommendation “to dismiss this case” has no effect.ll

NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment
of the Superior Court is REVERSED. This matter is REMANDED to the
Superior Court for further proceedings consistent with this Order.
Jurisdiction is not retained.

BY THE COURT: ,

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” Franklin v. State, 855 A.2d 274 (Del. 2004) (citing 10 Del. C. § 512(b)(l)b and
DiGiacobbe v. Sestak, 743 A.2d 180, 183 (Del. 1999)). Compare Del. Super. Ct. Civ. R.
132(a)(4) (requiring that Commissioner submit proposed ﬁndings of fact and
recommendations of any case-dispositive matter to a Judge and mail copies of the
proposed ﬁndings of fact and recommendations to the parties) and Del. Super. Ct. Civ. R.
132(a)(3) (requiring that Commissioner ﬁle an order in a non-case-dispositive matter
with the Prothonotary and mail copies of the order to the parties and providing that
proposed ﬁndings of fact and recommendations are not necessary in a Commissioner’s
order in a non-case-diSpositive matter).

7

