THE CITY OF WILMINGTON, a Municipal Corporation of the State of Delaware, Plaintiff,
JANEVE CO., INC. and TAX PARCEL NO. 26-028.20-054, Defendants. And THE CITY OF WILMINGTON, a Municipal Corporation of the State of Delaware, Plaintiff,
READWAY, INC. and TAX PARCEL NO. 26-013.30-183, Defendants. And THE CITY OF WILMINGTON, a Municipal Corporation of the State of Delaware, Plaintiff,
THE REVOCABLE TRUST OF WALTER LOWICKI DATED AUGUST 18, 1999, STANLEY C. LOWICKI, UNKNOWN HEIRS OF WALTER LOWICKI and TAX PARCEL NO. 26-005.40-022, Defendants.
Prothonotary (civil) Thomas P. Carney, Esquire John R. Weaver, Esquire
OPINION AND ORDER
Lynne M. Parker Commissioner of the Superior Court
The City of Wilmington filed a Writ of Monition in each of the three above captioned cases in order to recover the vacant property fees assessed against each of the referenced three properties.
Defendants' Motion to Set Aside the Monition Actions
Defendants filed a motion seeking to set aside the monition in each of the three cases. In their motion to set aside the monition, Defendants raised a number of contentions. Defendants contended that the monition actions were procedurally deficient, that a monition action was not the proper process for the City of Wilmington to use to recover the vacant property fees assessed against the properties at issue, and that the statute of limitations should operate to limit or reduce the City of Wilmington's entitlement to recover the vacant property fees assessed. Defendants also contended that the monition actions should be dismissed pursuant to Superior Court Civil Rule 41(a).
On February 26, 2013, a hearing was held on Defendants' motion to set aside the monitions. At the February 26, 2013 hearing, the court detailed on the record the basis for the denial of Defendants' motion. Following the February 26, 2013 hearing, two issues remained outstanding.
The first issue was that before proceeding with the monition actions, the City of Wilmington was required to file a supplemental/amended Affidavit in each of the actions. Following the hearing of February 26, 2013, the City of Wilmington filed a supplemental/amended Affidavit in each of the three cases and this issue is now moot.
Consequently, there is only one issue that remained outstanding. Defendants contended that Superior Court Civil Rule 41(a) operates to preclude the City of Wilmington from proceeding with the monition actions at issue. Rule 41(a) is triggered in those instances in which a plaintiff has voluntarily dismissed the same case on more than one prior occasion (at least twice) without order of the court.
Defendants requested an opportunity to determine whether any of the actions at issue had been dismissed at least two times previously and an opportunity to file supplemental briefing on this issue if any of the pending actions fell within this parameter. The court granted Defendants request to address this issue if any of the pending actions had been dismissed at least twice before the commencement of the present action.
Defendants subsequently advised the court that only one of the three pending cases, the action involving Defendant, Readway, Inc., had been dismissed twice before by the City of Wilmington. Thus, for the reasons set forth at the hearing on February 26 2013, all of Defendants' contentions against the other two defendants are without merit and the Writ of Monition for each of those cases shall issue immediately.
Monition Action is the Proper Process to Recover Vacant Property Fees Assessed
To recap briefly, these Defendants have unsuccessfully challenged the ability of the City of Wilmington to assess vacant property fees and its entitlement to enforce those assessments on numerous prior occasions. Vacant property fees are assessed annually by the City of Wilmington.
It appears that each and every year the vacant property fees are assessed, these Defendants challenge the entitlement of the City of Wilmington to assess the fees and thereafter challenge the City of Wilmington's entitlement to collect the fees assessed. Defendants have never been successful in any challenge yet they relentlessly persist in their efforts. Each year, the Defendants challenge the fees assessed for that year, when they are unsuccessful in their challenge, they then seek reargument, and when their reargument is denied, they appeal to the Delaware Supreme Court. When the Defendants lose their challenge in the Delaware Supreme Court, as they always have, they begin again with their challenges for the next year's assessment.
Although Defendants' legal challenges have never been successful, the practical effect of their continuous legal challenges has been to delay the ability of the City of Wilmington to proceed with their collection of the fees assessed through the monition process. The collection efforts are stayed for all intents and purposes during Defendants' legal challenges and when the ...