Opinion
C.A. No. 05A-08-001.
Date Submitted: June 12, 2006.
Decided: July 27, 2006.
David C. Hutt, Esquire, Wilson, Halbrook Bayard, Georgetown, DE.
Glenn C. Mandalas, Esquire, Prickett, Jones Elliott, P.A., Dover, DE.
Eugene Bayard, Esquire, Wilson, Halbrook Bayard, Georgetown, DE.
Craig A. Karsnitz, Esquire, Young, Conaway, Stargatt Taylor, LLP, Georgetown, DE.
Dear Counsel:
This is the Court's ruling on Todd Heller's appeal from the decision of the Board of Adjustment of the City of Rehoboth.
Statement of Facts
On March 18, 2004, a building inspector for the City of Rehoboth Beach discovered that Todd Heller, Appellant, was renovating the third-floor attic of his home. The Appellant did not seek approval from the City's Building and Licensing Department prior to beginning this renovation. On October 28, 2004, Appellant filed an application for a variance with the Board of Adjustment for the City of Rehoboth Beach (Board). On December 17, 2004, the Board considered Appellant's variance application and issued its written decision on March 1, 2005, denying the variance. On March 10, 2005, Appellant filed a Motion for Rehearing before the Board because he alleges that he was not afforded due process at the hearing. Appellant claimed that he was deprived of due process because the City's building inspector submitted a memorandum to the Board and he did not receive a copy of this memorandum until approximately halfway through his variance hearing. Further, Appellant requested that he be allowed to review the memorandum at that time, but the Board denied his request, even though the Board acknowledged that in all subsequent hearings applicants should be provided with any copies by the time the meeting begins.
The hearing on Appellant's Motion for Rehearing was held on May 23, 2005. The Board issued its decision denying Appellant's motion on August 5, 2005. Appellant appealed that decision to this Court on August 30, 2005. A certified copy of the record of the proceedings below was not provided by the City as required by Superior Court Civil Rule 72 (e). Many months passed with no action on this appeal. On March 6, 2006, this Court sent a letter to Walter W. Speakman, Esquire, the former City solicitor, requesting an explanation by March 24, 2006, as to why this Court should not grant the relief sought by the Appellant, based upon the City's failure to submit the record of the proceedings below. Mr. Speakman did not respond to this letter. On March 20, 2006, Glenn C. Mandalas became the new City solicitor. On April 12, 2006, a conference was held in Chambers. This Court informed the parties that relief would be granted in favor of the Appellant because of the City's failure to submit the record of the proceedings below. The question remained as to what relief this Court could grant. The parties were asked to submit letters describing the relief sought. The City submitted the record of the proceedings below after this conference.
Discussion
The Appellant argues that this Court should reverse the Board's decision and grant the requested variance. The Appellant states that this Court has the authority to grant such relief based on 22 Del. C. § 328 (c).
The Appellant also wants this Court to require that the Board pay all costs of this proceeding on appeal, even though 22 Del. C. § 331 states that "[t]he cost of a transcript of the hearing appealed from is the responsibility of the person appealing the decision, unless the cost is awarded against the Board as provided in § 332 of this title." The Board will be liable for costs only if this Court finds that the Board "acted with gross negligence, in bad faith, or with malice in making the decision appealed from." The Board filed the record on appeal after April 12, 2006, when the Court ruled that relief would be granted for the Appellant. On April 13, 2006, the Board forwarded an invoice to the Appellant requesting payment for the expedited production of the transcript. The Appellant argues that the transcript was unnecessary since this Court had ruled.
The Board argues that this Court lacks the authority to grant the Appellant relief pursuant to Superior Court Civil Rule 72. It argues that Rule 72 (e) is procedural in nature and the deadlines provided in the rule may be extended by the Court. The Board states that the issue of whether this Court has the authority to grant relief to an appellant when an appellee has not complied with Rule 72 (e) has been addressed only three times.
The first case provided by the Board is Gorrell v. Division of Vocational Rehab. and Unemp. Ins. App. Bd. In Gorrell, the appellant moved for a default judgment when the Board failed to timely submit the record on appeal. The record on appeal was provided one week late. The Court ruled that a default judgment is not appropriate for an appeal from an administrative agency decision. The Court explained that dismissing the action is the only relief allowed by Rule 72 (i), and if the appeal is dismissed, the appellant is precluded from having the matter reviewed. The Court accepted the Board's explanation for the one-week delay in submitting the record and denied the motion for default judgment.
1996 WL 453356 (Del.Super.) aff'd 693 A.2d 1082 (Del. 1997) (table).
Id. at *2.
Id.
Id.
Id.
The two other cases discussed by the Board involve the case of Hunter v. First USA. In the first Hunter case, the appellant moved for default judgment because appellee failed to timely file its answering brief. The Court denied the motion because the notices were not sent to the appellee's correct address. The Court agreed with the Gorrell decision that a default judgment is not appropriate for an appeal from an administrative agency's decision.
2004 WL 249578 (Del.Super.) and 2004 WL 8387 15 (Del.Super.).
Hunter, 2004 WL 249578 at *2.
Id. at *4.
Id.
In the second Hunter case, the appellee still did not file an answering brief. The Court stated that Rule 72 (i) "does not fully address those instances when the adverse, or accountable party, is the appellee." The Court decided that reading Rules 72 (i) and 107 (e) together "provides the Court with the most appropriate remedy to address a non-responsive appellee." The Court held that "Rule 107 (e) inextricably vests in the Court the power to reverse the Board's decision for failure of the appellee to file" "any brief, memorandum, deposition, affidavit, or any other paper which is or should be a part of a case pending in this Court". The Court overturned the Board's decision even though substantial evidence existed to support the Board's decision, because the appellee failed to satisfy Rule 107 (e).
Hunter, 2004 W L 8387 15 at *4.
Id.
Id.
Super. Ct. Civ. Rule 107 (e).
Hunter, 2004 WL 838715 at *5-*6.
Based on the above cases, the Board states that it does not appear that this Court has the authority to grant the requested relief to the Appellant. It states that the second Hunter case is distinguishable from the present case because an answering brief was not filed instead of the record of appeal not being filed. It goes on to state that failure to file the record on appeal is not listed as an offense warranting dismissal under Rule 72 (i). Additionally, the Board points out that the Appellant has not filed a motion to dismiss. Therefore, the Board states that an entry of default is not appropriate in this case.
The Board argues that even if this Court has the authority to grant relief to the Appellant, any such relief must be limited to the relief requested in the appeal, specifically a rehearing. The Board points out that the Appellant appealed the August 5, 2005, decision denying his Motion for Rehearing. The Board states that, pursuant to 22 Del. C. § 328(c), this Court is limited to reversing, affirming, or modifying the decision brought up for review, which is the August 5, 2005, decision denying Appellant's Motion for Rehearing. Thus, the Board argues that if any relief is to be granted to the Appellant, it should be limited to the August 5, 2005, decision.
Finally, the Board argues that the Appellant is not entitled to costs from the Board because there is no evidence that the Board "acted with gross negligence, in bad faith, or with malice in making the decision appealed from." Additionally, the Board states that such an award is especially unwarranted here because the Appellant acted in bad faith and unclean hands in undertaking the construction that started the present dispute. The Board relies on 22 Del C. § 331, which states that the appealing party is responsible for the cost of the transcript as authority for why it is not responsible for the cost of the transcript.
This Court has the power to grant relief in this situation. In the second Hunter case, the Court clearly established that based on Rules 72 and 107, it has the power to reverse a Board decision when it fails to file a necessary document with this Court. Here, the Board failed to provide to this Court with the record on appeal. The Court communicated with the Board's counsel as to why relief should not be granted to the Appellant. There was no response. In Hunter, the Board failed to file an answering brief. However, this is of no consequence here because Rule 107 (e) includes "any other paper which is or should be a part of a case pending in this Court," along with briefs, memorandums, depositions, or affidavits. The transcript of the record on appeal qualifies as a paper which should be part of the case pending, because an appeal cannot go forward without the record on appeal.
Hunter, 2004 WL 838715 at *4.
Super. Ct. Civ. Rule 107 (e).
This Court will not dismiss this appeal based on the logic of Gorrell because if this appeal is dismissed the Appellant's claim will not be heard and he will be disadvantaged. While Appellant would like this Court to grant his variance, I find it would be jurisdictionally improper to grant greater relief than was prayed for in the appeal. It may sound inviting and would truly send a message, but the issue on appeal was procedural due process, not the substantive merits of the variance. Therefore, the Court reverses the Board's decision below for failure to file the record and grants the Appellant's Motion for a Rehearing on his variance application.
Gorrell, 1996 WL 453356 at *2.
This Court will not award the Appellant costs because there is no evidence that the Board acted with gross negligence, in bad faith, or with malice in making the decision appealed from." But the Appellant should not have to pay for a transcript filed after the office conference in which the Board was made aware that the transcript was then unnecessary.
22 Del. C. § 332.
Conclusion
For the above stated reasons, this Court reverses the decision of the Board below denying the Appellant's Motion for Rehearing, and grants the Appellant a new hearing as to his variance petition.