James P. Sharp, Esquire Moore & Rutt, P.A.
Elizabeth C. Fillingame, Esquire Grady & Hampton, P.A.
KIM E. AYVAZIAN MASTER IN CHANCERY
On September 17, 2013, Plaintiff Sussex County filed a complaint for injunctive relief against Defendants Jeanne Sisk and Beulah McQueen concerning an illegal shed located on their lot in a mobile home park in Rehoboth Beach. Pending before me are Plaintiffs Motion for Summary Judgment under Court of Chancery Rule 56 and Motion to Dismiss under Rule 12(b)(6), both of which are opposed by Defendants. For the reasons below, I recommend that the Court grant Plaintiffs motion for summary judgment because Defendants are barred under the doctrine of res judicata from re-litigating the issue of the legality of their shed. I also recommend that the Court dismiss Defendants' counterclaims for abuse of process for their failure to state a claim upon which relief can be granted.
The defendants are a daughter and mother who lease Lot A-16 in Sea Air Mobile City in Rehoboth Beach, Delaware. They own a manufactured home that is located on Lot A-16, and have resided there for nearly 40 years. This is the second time that Sussex County has sought injunctive relief against these Defendants concerning a non-conforming shed on Lot A-16. In 2008, Sisk placed an 8' x 10' shed on the property and, on January 28, 2009, Defendants were sent notice by a Sussex County building official that they were in violation of the rear yard and side yard setback requirements, the separation requirements for structures in a mobile home park, and the requirement to obtain a building permit for the shed. On June 9, 2009, Plaintiff filed a verified complaint for injunctive relief in this Court, requesting the Court find Defendants in violation of the Sussex County Code, permanently enjoin Defendants from continued use of the property in violation of the Code, and require Defendants to bring the property into compliance within 30 days or else Sussex County would undertake removal or demolition of the illegally placed structure at Defendants' expense. This action was stayed on December 14, 2010,  pending Defendant Sisk's appeal to Superior Court from the denials of her appeal and application for a variance by the Sussex County Board of Adjustment (the "Board"), and ultimately dismissed by stipulation of the parties on April 20, 2011,  after Sisk lost her appeal in Superior Court.
As recited in the decision of the Superior Court, there were three 8' x 10' sheds placed on Lot A-l 6 over the nearly 40 years Defendants leased this property. The first shed was placed on a concrete pad behind the mobile home in 1969 by Sisk's stepfather. In the 1990s, Sisk replaced the first shed with another shed of the same size without obtaining a building permit. In 2007, Sussex County put a moratorium on applications for building and placement permits for Sea Air because many of the structures in this old mobile home park were in violation of the current zoning code. On May 30, 2007, Sussex County entered into an agreement with Sea Air whereby Sussex County would treat existing structures in Sea Air as non-conforming structures and not issue any zoning violations for them, but any replacement or new structures would be subject to the current zoning code. In order to place a new structure or replace an existing structure on a lot, a tenant would have to obtain Sea Air's prior written approval, and obtain a survey showing the proposed location of the new or replacement structure. If necessary, the tenant would have to submit an application for a variance to the Board of Adjustment, together with the survey, for the approval.
In 2008, Sisk replaced her second shed with a third 8' x 10' shed without obtaining a building permit or Sea Air's approval, as a result of which the Sussex County building official issued a violation notice to McQueen and Sisk. When the violation was not corrected, Sussex County filed its first suit against McQueen and Sisk in this Court on June 9, 2009. Shortly thereafter, on June 25, 2009, Sisk filed an appeal of the violation notice and an application for a variance with the Board of Adjustment.
Sisk's appeal and application were originally rejected as untimely and incomplete because her application for a variance did not include a survey, but the Board relented and accepted an amended appeal and application on July 29, 2010.After a hearing, the Board denied Sisk's appeal as untimely and rejected her application for a variance because without a survey the Board could not make an informed decision.
Sisk appealed the decisions of the Board of Adjustment to the Superior Court, which upheld those decisions, ruling in part: "Sisk's second shed was never a lawful non-conforming structure. She acknowledged that it was built without a building permit. ... Replacing an unlawful non-conforming structure with another unlawful non-conforming structure does not cleanse the original unlawfulness." After Sisk lost her Superior Court appeal, Defendants removed their shed from Lot A-16, and the shed remained off the property for approximately one year. In 2012, Defendants returned the shed to Lot A-16 and placed it in the same location on their lot.
On January 7, 2014, Defendants filed an amended answer to the Plaintiffs second petition for injunctive relief, alleging that the shed was not in violation of the Sussex County Code because a building permit had been issued in 1969 for the construction of an 8' x 10' shed on Lot A-16. Defendants also counterclaimed that the Sea Air homeowners, in general, and Sisk, individually, had been subjected to abuse of process by Sussex County.
Plaintiff now argues that Defendants are barred by the doctrines of res judicata and collateral estoppel from re-litigating the issue of the illegality of the shed and from claiming abuse of process. Defendants counter that these doctrines do not apply because Defendant McQueen was not a party to the 2010 Superior Court appeal, and McQueen was the only person at that time with knowledge of the existence of the 1969 building permit. Defendants also argue that Defendant Sisk was a pro se litigant and did not possess the knowledge necessary to make an abuse of process claim during the 2010 litigation. Furthermore, they contend that additional facts regarding this claim have been discovered since the 2010 litigation, i.e., either Sussex County made a mistake in denying the existence of the 1969 permit or else the County deliberately defrauded the court in denying the existence of the permit.
At my request, the parties submitted memoranda on the issue of whether, under the doctrine of res judicata, McQueen was privy to the Superior Court appeal that was brought by Sisk. Defendants contend that McQueen should not be bound by the 2011 Superior Court ruling because she was not a named party to the action nor was she privy to the details surrounding the litigation. McQueen admits in an affidavit that she knew of the litigation about the shed between her daughter and Sussex County, but she was not aware that the existence of a building permit was at issue. If McQueen had known that the existence of the building permit was disputed, she would have come forward with the information that a building permit had been obtained in 1969 for both the addition to her home and the construction of a shed. Sisk admits in her affidavit that she purposely kept her mother out of the Superior Court appeal and did not discuss the case with her because of her age and poor health. Plaintiff nevertheless argues that McQueen should be bound by the Superior Court ruling because mother and daughter clearly had a close relationship and their interests were sufficiently aligned as tenants in maintaining a shed on their property.
The doctrine of res judicata is designed to prevent unnecessary and burdensome litigation about facts and theories that have been or should have been litigated previously. The five ...