May 22, 2013
CITY OF WILMINGTON, Appellant, Defendant Below,
LIONELL M. FLAMER, Appellee, Plaintiff Below
Submitted: February 25, 2013
On Appeal from the Court of Common Pleas Decision
Martin C. Meltzer, Esquire, Wilmington, Delaware, Attorney for Appellant.
Lionell M. Flamer, Wilmington, Delaware, Pro Se Appellee.
Eric M. Davis Judge
This is an appeal from a decision of the Court of Common Pleas awarding Appellee-Plaintiff Below Lionell M. Flamer a judgment against Appellant-Defendant Below City of Wilmington (the "City") in the amount of $400.00. The $400.00 represents amounts Mr. Flamer paid to the City for purported parking violations. The Court of Common Pleas based its determination on a finding that the city's enforcement of its parking regulations for guest permits is confusing and not reasonable. The City appeals from the Court of Common Pleas' decision on several grounds. For the reasons set forth below, the decision of the Court of Common Pleas is AFFIRMED.
Mr. Flamer commenced suit against the City by filing a Complaint with Justice of the Peace Court Number 13 ("J.P. Court 13") for reimbursement of debts arising from parking ticket fines and damage caused to Mr. Flamer's vehicle as a result of booting and towing. During a hearing held on June 1, 2011, J.P. Court 13 dismissed the Complaint without prejudice on the basis that Justice of the Peace Court Number 20 had jurisdiction over city parking violations. J.P. Court 13 advised Mr. Flamer to file an action to vacate the parking tickets in Justice of the Peace Court Number 20.
On June 9, 2011, Mr. Flamer filed a Complaint and Summons on Appeal with the Court of Common Pleas. The City was served with the Complaint and Summons on Appeal on December 19, 2011.
On August 9, 2012, the Court of Common Pleas heard Mr. Flamer's appeal from the J.P. Court action. The Court of Common Pleas denied a pre-trial motion to dismiss brought by the City and then held a trial on the merits. At the conclusion of the trial, the Court of Common Pleas entered a judgment in favor of Mr. Flamer for $400.00.
The City filed its Notice of Appeal with the Court of Common Pleas on August 24, 2012. The Court of Common Pleas issued writs for service on September 20, 2012. This Court issued a briefing schedule on December 18, 2012. The City filed its Opening Brief on January 7, 2013. Mr. Flamer filed his Answering Brief on February 1, 2013. The City filed its Reply Brief on February 7, 2013. This Court received transcripts from the Court of Common Pleas on February 19, 2013. This matter was assigned to this Judge on February 25, 2013.
The City issued tickets against Mr. Flamer for parking in a residential area without a parking permit on the dates of February 2, 3, 22, 23 and 25 and March 1, 2, 4, 5 and 8 in 2010. The violations resulted in a fine of $1100.00, which Mr. Flamer paid. Mr. Flamer properly protested the violations, claiming he had a valid temporary guest parking pass. Carolyn Martin-Pettaway, the City of Wilmington Civil Appeals Director, reviewed Mr. Flamer's protests and denied them. Ms. Martin-Pettaway testified at trial that she sends a certain letter to individuals whose protests are denied, including Mr. Flamer. According to the City, that letter states –
If you wish to protest further, please fill out and return the enclosed form in its entirety and return it within ten days. When your hearing date has been scheduled, you will receive a written notification from the State of Delaware's Justice of the Peace Court No. 20.
Mr. Flamer did not return the form and denies that he received it.
Seeking assistance about how to protest Ms. Martin-Pettaway's determination, Mr. Flamer contacted his City Counsel representative, Paul Ignudo. Ms. Martin-Pettaway reviewed Mr. Flamer's case at Mr. Ignudo's request and found that Mr. Flamer did have a valid permit, although there was no evidence the permit was displayed correctly. She did not find the permit in the system initially because Mr. Flamer provided her an inaccurate name for the purchaser of the guest pass, identifying his grandmother instead of his grandfather as the purchaser. Ms. Martin-Pettaway refunded Mr. Flamer $700.00, representing seven consecutive days that his vehicle was lawfully parked. Subsequently, Mr. Flamer filed the J.P. Court action, seeking $3, 785.40, an amount which represented $400.00 in parking fines and costs for damages his vehicle incurred during booting and towing.
The Decision of the Court of Common Pleas
Before conducting a trial de novo on the merits, the Court of Common Pleas addressed a pre-trial motion to dismiss brought by the City. The City contended that it was served outside the 120-day period of time allowed for service under Court of Common Pleas Civil Rule 4(j). The City also contended that the J.P. Court 13 lacked jurisdiction over city parking violations, and therefore the Court of Common Pleas lacked jurisdiction over the appeal and Mr. Flamer's appeal failed to state a claim for which relief could be granted. Finally, the City contended Swift Towing & Recovery, Inc. ("Swift Towing") was an indispensable party to the action.
The Court of Common Pleas denied the City's motion to dismiss in full. The court denied the motion on the basis of the Rule 4(j) argument in favor of resolving the matter on the merits. The Court of Common Pleas held that J.P. Court 13 had jurisdiction over Mr. Flamer's claim for damages to his vehicle. The Court of Common Pleas denied the motion on the basis that Swift Towing was an indispensible party based on its finding that Swift Towing acted as an agent for the city.
The Court of Common Pleas proceeded to hold a trial de novo on the merits. The Court of Common Pleas heard evidence on the period for which a guest parking permit is valid and the City's method of enforcing the parking permit period. The City presented that Mr. Flamer's valid guest permit "gave him seven consecutive days to park." When the City issues guest permits, the City does not also issue a copy of its enforcement regulations. Ms. Martin-Pettaway testified that parking enforcement officers issue tickets Monday through Friday each week. The seven consecutive day period would not be interrupted if a vehicle parked in a spot that violates the City's regulations on Friday left that spot on a Saturday or a Sunday and was observed parked in a violating spot on Monday. The City did not present evidence at trial to show that Mr. Flamer's vehicle was parked without a valid guest permit for more than seven consecutive days.
The Court of Common Pleas dismissed Mr. Flamer's claims for damage to his vehicle because he presented no evidence at trial to support those claims. For the remaining claim for debts for payment of parking tickets, the Court of Common Pleas awarded Mr. Flamer a verdict in the amount of $400.00 with interest on the basis that the City's method of enforcing the guest permit parking regulations was unreasonable. Specifically, the Court of Common Pleas ruled:
That leaves the Court then with the claim in number five which is the $1, 100. The testimony in the record is that the City has paid the plaintiff as of this date $700 so the amount in question is $400. The City maintains that that is an amount outside of guest parking of which the plaintiff was not permitted to park. The regulation for which the City based its argument is very complicated and there is no indication it was disclosed to the party  which they hold responsible.
Reading any regulation one would think that seven days means seven days. But, for the City it is calculated in a different method. That to the Court is not reasonable. It may be reasonable to the City, but it is not reasonable if not communicated effectively to the persons who are residents of the City or those who are expected to visit. Therefore, I do not find that it is sufficient basis to deny recovery by the plaintiff.
Therefore, I find that by the preponderance of the evidence, the plaintiff has proven that the City is liable to him for $1, 100. It is offset by the payment of the $700.
Therefore, judgment is hereby entered for the plaintiff in the amount of $400, cost of this proceeding, post judgment interest at the legal rate until paid in full. It is so ordered.
The City contends that the Court of Common Pleas erred and abused its discretion in not dismissing the action and instead conducting a trial de novo. The City argues that the Court of Common Pleas should have dismissed the action for Mr. Flamer's failure to serve the City the Complaint and Summons on Appeal within 120 days of filing without a showing of good cause.
The City further contends that the Court of Common Pleas abused its discretion in making several evidentiary rulings. The City argues that the Court abused its discretion by permitting Mr. Flamer to enter evidence during trial that was not listed in Mr. Flamer's pretrial submissions; by not permitting the City to review the newly admitted evidence with its witness; by permitting hearsay over the City's objections; and by rendering a decision that was based on facts not in evidence and was contrary to the evidence. More specifically, the City argues that the Court of Common Pleas improperly considered evidence that parking regulation enforcement officers only work five days a week to conclude that Mr. Flamer could not have violated parking regulations for seven consecutive days.
Mr. Flamer maintains he possessed and displayed a valid parking permit and that none of the tickets issued to him by the City were valid. Mr. Flamer attached several exhibits to his Answering Brief. The Court cannot consider those exhibits because the Court's review is limited to the record of the proceeding below.
Standard of Review
"In an appeal from the Court of Common Pleas to the Superior Court, the standard of review is whether there is legal error and whether the factual findings made by the trial judge are sufficiently supported by the record and are the product of an orderly and logical deductive process." This Court must accept findings of the Court of Common Pleas that are supported by the record, even if this Court would have made contrary findings. The Superior Court may "'review de novo questions of law involved in the case.'"
The Superior Court reviews evidentiary rulings by the Court of Common Pleas under an abuse of discretion standard. "'An abuse of discretion occurs when 'a court has . . . exceeded the bounds of reason in view of the circumstances, ' [or] . . . so ignored recognized rules of law or practice . . . as to produce injustice.'" The Court should only reverse a lower court's evidentiary decision where there was a clear abuse of discretion. If the Court determines that the lower court abused its discretion, the Court should assess whether the act resulted in significant prejudice.
A. The Court of Common Pleas did not commit legal error or abuse its discretion in not dismissing the appeal for insufficient service pursuant to CCP Civil Rule 4(j).
Court of Common Pleas Civil Rule 4(j) governs the time for service of a summons and complaint. It provides that an action shall be dismissed if "service of the summons and complaint is not made upon a defendant within 120 days of filing the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period."
The Delaware Supreme Court set forth a Rule 4(j) analysis in the context of a Superior Court action in the case of Dolan v. Williams. The Court stated:
Under the rule, unless a plaintiff makes a showing of good cause, an action will be dismissed without prejudice if service of the summons and the complaint are not made within 120 days after the filing of the complaint. The rule is not absolutely inflexible, however. By allowing the trial court discretion to permit service beyond the 120 day limit for good cause, the rule seeks to balance the need for speedy, just and efficient litigation with a desire to provide litigants their right to a day in court. In Delaware, public policy favors permitting a litigant a right to a day in court.
While "good cause" is not defined within the rule, it has been interpreted by Federal Courts to require a showing of excusable neglect, by a "demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules." That is, by showing "neglect which might have been the act of a reasonably prudent person under the circumstances."
Although "[t]here is no different set of rules for pro se plaintiffs, and the trial court should not sacrifice the orderly and efficient administration of justice to accommodate an unrepresented plaintiff, " Delaware courts afford pro se litigants a degree of leniency. For example, the courts typically look to the substance of pro se litigants' filings rather than rejecting them for formal defects. Furthermore, Delaware courts have expressed a preference for matters to proceed on their merits rather than dismiss those matters on technical grounds.
In this case, Mr. Flamer served the City on December 19, 2011—well past the deadline of 120 days from June 9, 2011, when he filed his Complaint and Summons on Appeal. At the Court of Common Pleas hearing on August 9, 2012, the City moved to dismiss for insufficient service of process. Mr. Flamer offered that he delivered all filings necessary for service of process when he filed his appeal on June 9, 2011, and the City "did not receive it until December for whatever reason." The Court of Common Pleas declined to dismiss Mr. Flamer's appeal on the basis that the Court of Common Pleas grants pro se litigants flexibility to ensure the parties are able to have their claims heard by the court.
The Court finds that the Court of Common Pleas did not err in adhering to Delaware's decisional law and policies of permitting pro se litigants flexibility and allowing for matters to be tried on their merits. Clearly, the Court of Common Pleas found that good cause existed for Mr. Flamer's delay in serving his Complaint and Summons on Appeal upon the City. And, nothing in the record demonstrates that the Court of Common Pleas' determination constituted legal error or an abuse of discretion. The record shows that Mr. Flamer provided a good faith basis (or "good cause") for his failure to serve the City, as he submitted all necessary filings to appeal the J.P. Court 13 decision three days after the J.P. Court hearing dismissing the matter. Accordingly, the Court of Common Pleas did not commit legal error or abuse its discretion in hearing Mr. Flamer's appeal despite that the City received service of process outside the 120 days permitted by Court of Common Pleas Civil Rule 4(j).
B. The decision of the Court of Common Pleas to conduct a trial de novo, and not to remand the matter back to J.P. Court 13, was not legal error and is supported by statute.
A party may appeal a judgment issued without a trial by a Justice of the Peace Court to the Court of Common Pleas. Pursuant to 10 Del. C. § 9571, the Court of Common Pleas conducts a trial de novo on an appeal of any "final order, ruling, decision or judgment" in a civil action.
To support the argument that the Court of Common Pleas did not have jurisdiction to conduct a trial de novo, the City cites the case of Ney v. Polite,  which established that, where a litigant appealed from a magistrate's denial of an application to vacate a nonsuit and a default judgment, "the appeal permits only review of the magistrate's order denying relief and not of the nonsuit and default judgments themselves." The Court observed that "[t]he denial of an application to vacate default judgment possesses all the attributes of finality, and thus is subject to appeal." Notably, the version of 10 Del. C. § 9571 in effect when Ney was decided did not provide for the Court of Common Pleas to conduct a trial de novo.
The Court finds that Ney is inapplicable to the circumstances of this case. The holding of Ney is limited to an appeal of a denial of a motion (or application) to vacate. Mr. Flamer's appeal to the Court of Common Pleas in this case was an appeal of a final judgment – a dismissal without prejudice, while not having preclusive effects, is final. Thus, that decision (a final judgment) is subject to a trial de novo in the Court of Common Pleas. The Court of Common Pleas properly exercised jurisdiction over Mr. Flamer's appeal pursuant to 10 Del. C. § 9571. Therefore, the Court of Common Pleas did not commit legal error in conducting a trial de novo and not remanding the matter to J.P. Court 13.
C. The Court of Common Pleas rendered a decision supported by the record and consistent with record evidence.
The City contests the Court of Common Pleas' decision in favor of Mr. Flamer on several evidentiary bases, the first of which is that the court permitted Mr. Flamer to present evidence not listed in the parties' completed Civil Case Management Orders. The City points to the Court of Common Pleas' consideration of the fact that parking regulation enforcement officers work five days a week without accounting for the fact that the Wilmington Police work seven days a week and have the authority to disseminate parking tickets. The City also argues that the Court of Common Pleas reached its decision without reference to the ordinance governing guest parking permits. The City asserts that the Court of Common Pleas injected facts into the record to find in Mr. Flamer's favor. Additionally, the City argues that the Court abused its discretion in admitting certain evidence over the City's hearsay objections.
As stated above, this Court reviews decisions by the Court of Common Pleas to admit or exclude evidence for abuse of discretion. This Court will not predicate error upon a ruling admitting or excluding evidence "unless a substantial right of the party is affected" and an objection was placed or an offer of proof was made, or both. A party that does not object to admission of evidence at trial is deemed to have waived such objection for the purposes of an appeal. A court hearing a bench trial may relax the rules of evidence to err on the side of admissibility, "as jury confusion in that context is not a concern."
The record before the Court contains Civil Case Management Orders ("CCMO") completed and signed by each party. Mr. Flamer's CCMO indicates in the summary of his position, that Mr. Flamer sought recovery of fines he paid for multiple parking tickets on the basis that he had a valid permit. While Mr. Flamer did not indicate in his CCMO that he intended to demonstrate that he did not receive notice of or understand the City's seven-day policy for guest parking permits and the City's enforcement of that policy, testimony evidence of the same arose during Mr. Flamer's cross-examination of Ms. Martin-Pettaway. Mr. Flamer asked Ms. Martin-Pettaway whether she had proof that his vehicle was parked without a guest permit for seven consecutive days,  and whether it was true that she could only show his vehicle was parked without a guest permit for a maximum of five consecutive days. After redirect examination by counsel for the City, the trial judge asked Ms. Martin-Pettaway related questions on how the City determines whether a vehicle is unlawfully parked for seven consecutive days although parking enforcement officers only work five days a week. During its questioning, the Court ascertained that a seven sequential day period is not interrupted if a vehicle is not parked without a guest permit on Saturday or a Sunday. The Court based its decision upon that information.
This Court finds that the Court of Common Pleas did not abuse its discretion or commit legal error in admitting and considering evidence that parking enforcement officers only work and enforce parking regulations five days a week. The evidence was relevant to the issue of whether Mr. Flamer's vehicle was parked in violation of the City's guest parking regulation. The evidence was properly obtained through cross-examination by Mr. Flamer and questioning by the Court. The Court notes that the City did not object at trial when Mr. Flamer or the Court elicited evidence of parking enforcement officers' hours.
The Court further finds that the Court of Common Pleas did not abuse its discretion or commit legal error in failing to consider evidence that Wilmington Police work seven days a week and can issue parking tickets. There is no evidence in the record that the City or Mr. Flamer presented or introduced evidence of the authority and ability of the Wilmington Police to enforce parking regulations, either generally or as they relate to Mr. Flamer. Therefore, this Court cannot find that the Court of Common Pleas abused its discretion or erred in not considering such evidence.
The Court finds that the Court of Common Pleas did not abuse its discretion or commit legal error in permitting Paul Ignudo to testify as a witness despite the City's objection. Counsel for the City objected to Mr. Flamer presenting Mr. Ignudo as a witness on the bases that: he was not identified on the CCMOs; the City was not notified that Mr. Ignudo was served a subpoena; and presentation of Mr. Ignudo constituted trial by surprise. The Court of Common Pleas permitted Mr. Ignudo to testify because prior counsel for the City, who had resigned, would have received a subpoena for Mr. Ignudo's appearance. The Court of Common Pleas resolved it would permit Mr. Flamer "some leeway" by reserving decision on the City's motion. The City proceeded to move for an offer of proof, which the Court granted. Mr. Flamer stated that Mr. Ignudo was a facilitator between himself and the City. The trial judge stated he was not sure Mr. Flamer demonstrated that Mr. Ignudo's testimony would be relevant but granted Mr. Flamer leeway to proceed.
The City's argument that it lacked notice that Mr. Flamer would call Mr. Ignudo as a witness at trial fails because Mr. Ignudo is identified on Mr. Flamer's CCMO, which Mr. Flamer signed on February 16, 2012, and which was received by the Court of Common Pleas on February 22, 2012. Therefore, Mr. Ignudo's appearance at trial should not have been a surprise to the City.
Moreover, the Court finds that Mr. Ignudo's testimony did not result in prejudice to the City. While the City objected to Mr. Ignudo's testimony and elicited an offer of proof via a motion at trial, Mr. Ignudo did not attest to any information that was adverse to the City. In sum, Mr. Ignudo testified that he provided Mr. Flamer advice on how to handle his case with the City, and that the City, acting through Ms. Martin-Pettaway, addressed Mr. Flamer's case in what it thought to be an appropriate manner. The Court of Common Pleas did not base its verdict in favor of Mr. Flamer upon Mr. Ignudo's testimony. For these reasons, the Court finds the Court of Common Pleas did not abuse its discretion in admitting the testimony of Mr. Ignudo. Moreover, even if the Court of Common Pleas' act amounted to an abuse of discretion, the City fails to demonstrate any prejudice suffered through the testimony.
Similarly, the City objected to Mr. Flamer's admission of the physical permit that was hanging in his car when he received the parking tickets that were the subject of his action on the basis that Mr. Flamer did not identify the permit as an exhibit prior to trial. The Court of Common Pleas overruled the City's objection. Since the trial for this matter was a bench trial, the Court of Common Pleas was permitted to relax the rules of evidence in favor of admissibility because jury confusion was not a concern; the trial judge could discern admissible evidence from inadmissible evidence in formulating his holding. Additionally, the City did not suffer prejudice as a result of the Court of Common Pleas' admission of the parking permit, because the Court of Common Pleas did not base its decision upon the existence or validity of the parking permit; the Court of Common Pleas' decision is based upon the City's enforcement of its parking regulations.
Finally, the Court finds that the Court of Common Pleas did not abuse its discretion or commit legal error by admitting evidence the City objected to as hearsay. The City made three hearsay objections during Mr. Flamer's presentation of his case at trial. The City objected twice to Mr. Flamer's testimony that a representative from the City's parking division told Mr. Flamer over the phone shortly after he received his first ticket that he had a valid parking permit but that it was not in the computer. The City also objected to Mr. Flamer's admission of a cancelled check signed by Peggy Green, Mr. Flamer's grandmother, as proof that she paid for a parking permit.
This Court declines to find that the Court of Common Pleas abused its discretion or erred in admitting this evidence pursuant to trial courts' power to relax the rules of evidence during a bench trial. Furthermore, even if the Court of Common Pleas' admission of the evidence constitutes an abuse of discretion, the City did not suffer prejudice resulting from admission of the evidence. Again, the Court of Common Pleas did not base its findings upon the validity of Mr. Flamer's parking permit; the Court of Common Pleas' determination was based on the City's enforcement of its parking regulations.
For the reasons stated above, the Court of Common Pleas decision awarding Mr. Flamer $400.00 is free from legal error. Additionally, its factual findings are supported by the record and are the product of an orderly and logical deductive process. Therefore, the decision of the Court of Common Pleas is AFFIRMED.
IT IS SO ORDERED.