Opinion
Civil Action No. 1469-N.
Submitted: September 14, 2006.
Decided: October 12, 2006.
Jerome M. Capone, Wilmington, DE.
Ms. Deborah Hirt, Wilmington, DE.
Ms. Sarah DeLagostti, Wilmington, DE.
Jeffrey M. Weiner, Wilmington, DE.
Dear Counsel and Parties:
After carefully considering the arguments put forward in materials submitted by all parties, I grant plaintiffs' motion for summary judgment in its entirety. As I describe below, defendants' actions constitute a nuisance as a matter of law and their counterclaims cannot be sustained.
I. PROCEDURAL BACKGROUND
A party will be successful in a motion for summary judgment if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." In reviewing the record, all facts must be viewed in the light most favorable to the non-moving party. Similarly, any reasonable inferences that can be drawn from those facts must be made in favor of the non-moving party. The non-moving party does bear one burden: "In the face of a properly supported motion for summary judgment, the nonmoving party must produce evidence that creates a triable issue of fact or suffer the entry of summary judgment against it." Where a defendant has failed to produce any evidence in opposition, I must accept the facts provided by plaintiff.
Ct. Ch. R. 56(c). I pause to note that defendants have provided this Court with very little guidance regarding this motion for summary judgment. After defendants' legal counsel withdrew on March 1, 2006, I have received only two communications from defendants: an ex parte communication from Susan DeLogostti dated May 7, 2006 and a letter from counsel for Christine Winslow requesting that she be excluded from pre-trial proceedings. Defendants have not sought further advice of counsel and ignored my scheduling order regarding this motion, issued on August 22, 2006, that required defendants to file an answering brief by September 29, 2006.
Rule 56 requires me to consider "pleadings, depositions, answers to interrogatories and admissions on file, together with . . . affidavits. . . ." Ms. DeLogostti's letter of May 7 falls into none of these categories. It is an unsworn and wholly ex parte communication and thus provides no grounds on which I may base my decision.
Lions Gate Entm't Corp. v. Image Entm't, Inc., 2006 WL 1668051, at *4 (Del.Ch. June 5, 2006).
McGowan v. Ferro, 859 A.2d 1012, 1027 (Del.Ch. 2004).
Plaintiffs move for summary judgment on three issues. First, that the defendants are maintaining a nuisance at two separate properties. Second, that this nuisance interferes with plaintiffs' use and enjoyment of their own property, entitling plaintiffs to equitable and compensatory damages. Finally, plaintiffs urge me to find that defendants have put forward no facts supporting their various counterclaims. I find plaintiffs to be entitled to summary judgment on all three issues on the basis of the facts and legal conclusions outlined below.
II. FACTUAL BACKGROUND
Put simply, plaintiffs wish me to find that defendants are in a hole and that they should stop digging. The hole in question sits gaping in the back yard of a vacant house at 514 West 23rd Street, next door to plaintiffs' residence at number 512. Much of the earth that once filled the back lot of 514 lies in an unceremonious mound behind the house on lot 510. Six years have passed since plaintiffs first noticed the gaping pit to the right of their rear deck and the pile of dirt to the left. Defendants Deborah Hirt and Christine Winslow hold title to 514, while 510 belongs to defendant Two Girls Remodeling Co., a business owned by defendants Deborah Hirt and Sarah DeLagostti. Defendants removed the earth from behind the house at 514 West 23rd Street because they wished to build an addition to the kitchen.
All parties agree that Ms. Winslow is not responsible for the nuisance conditions at issue in this lawsuit. Plaintiffs have included her as a defendant because the disposition of this suit could adversely affect her title to 514 West 23rd Street.
The parties disagree as to why construction has ground to a halt. All parties agree, however, that on December 6, 2005, defendants were ordered by Justice of the Peace Court 20 in Wilmington to either fill the hole within one month or to obtain a building permit and complete the work by January 2006. No one disputes that the project remains unfinished and the hole unfilled.
Plaintiffs have provided undisputed photographic evidence of the unsightly construction area. They have provided unrebutted affidavits from their own contractor regarding damage to their house resulting from defendants' construction (or lack thereof), as well as sworn statements from city officials attesting to violations of local building ordinances. Defendants have put forward no evidence to present a triable issue of material fact as to these allegations.
III. LEGAL ANALYSIS
A nuisance is "anything from which results harm, inconvenience or damage, or which materially interferes with the enjoyment of rights and property." Private nuisances — "a civil wrong arising from an unreasonable, unwarranted or unlawful use of one's property producing material annoyance, inconvenience, discomfort or hurt to another in the use of his property" — may be addressed by a civil action against those who create the nuisance. All those who participate in creating the nuisance may be liable to third parties who suffer as a result.
Cunningham, et al. v. Wilmington Ice Mfg. Co., et al., 121 A.2d 654, 654 (1923).
Keeley v. Manor Park Apartments, 99 A.2d 248, 250 (Del. Ch. 1953).
Given the undisputed facts, there can be no doubt that plaintiffs are entitled to a judgment that the hole in the back of 514 West 26th Street and the pile of dirt in the rear yard of 510 West 26th Street constitute nuisances. Both backyards are long-standing unsightly eyesores. Even if the aesthetics of the situation were somehow in question, defendants' actions have caused water damage to the interior of plaintiffs' house. Plaintiffs' enjoyment of their own property has been unlawfully hindered, and they have every right to expect relief from this Court.
As to defendants' counterclaims, they fail for lack of evidentiary or legal support. Defendants have put forward no evidence beyond the bare assertions in their answer that the delays in construction at 514 West 26th Street are the result of harassment by plaintiffs. And they offer no answer to the undisputed evidence offered by City inspection officials regarding the eyesore at 510 and 514 West 26th Street.
IV. CONCLUSION
Therefore, plaintiffs' motion for summary judgment is granted. Six years should have been sufficient time for defendants to remedy this problem. Defendants are required to fill and grade the excavation behind 514 West 26th Street and remove the dirt and related material from behind 510 West 26th Street within sixty days of this opinion. Defendants' counterclaims are dismissed with prejudice.
An Order has been entered in accordance with this decision.