CHARLES POTTER, JR. and VELDA C. JONES-POTTER, Plaintiffs Below, Appellants,
CITY OF WILMINGTON, a Municipal corporation of the State of Delaware, CITY OF WILMINGTON DEPARTMENT OF LICENSES AND INSPECTIONS, a department of the City of Wilmington, and JEFFREY J. STARKEY, Commissioner of Wilmington Department of Licenses and Inspections, Defendants Below, Appellees.
Submitted: December 5, 2018
Below-Superior Court of the State of Delaware
VA LIHURA, VAUGHN, and TRAYNOR, Justices.
F. TRAYNOR JUSTICE
7th day of January, 2019, after careful consideration of the
parties' briefs and the record on appeal, it appears to
the Court that that the judgment of the Superior Court should
be affirmed on the basis of and for the reasons stated in the
Superior Court's April 16, 2018 bench ruling.
Charles Potter, Jr. and Velda Jones-Potter ("the
Potters") contracted SC&A Construction
("SC&A") to repair damage to the roof of their
house in Wilmington, Delaware after a tree fell on it in late
After a number of changes and delays, the Potters contacted the
City of Wilmington's Department of Licenses and
Inspections ("L&I"). L&I conducted an
inspection and issued a notice of violation in 2012 (the
"2012 Notice"), finding that SC&A failed to
obtain required permits and inspections and requiring that
SC&A to obtain those permits and
inspections. SC&A appealed the 2012 Notice to the
L&I Review Board, which ultimately affirmed the 2012
Notice on November 12, 2014 (the "2014 Board
Decision."). In 2017, the Potters again contacted
L&I and requested another inspection. L&I did so
and issued a letter of findings in July 2017 (the "July
2017 Letter"), noting several Wilmington building-code
Potters and SC&A were also engaged in arbitration and
litigation between themselves regarding their respective
obligations under the roof-repair contract that ultimately
ended with a mechanics' lien judgment in SC&A's
favor and against the Potters, who paid the mechanics'
lien to avoid a sheriff's sale.
With proceedings against SC&A going poorly for the
Potters, they also filed an action in Superior Court against
the City of Wilmington seeking a writ of mandamus
commanding the City to enforce the 2014 Board Decision and
the July 2017 Letter by requiring SC&A to secure the
proper permits and inspections that L&I identified in the
2012 Notice and to conduct any necessary remedial work at
SC&A's expense. The Superior Court dismissed the
Potters' mandamus action on the pleadings in a
bench ruling that was later incorporated into a written
Mandamus is an "exceptional remedy,
" and courts issue writs of
mandamus only when the duty sought to be enforced is
ministerial rather than discretionary and where there is no
other adequate remedy. Even then, mandamus "is
issuable not as a matter of right, but only in the exercise
of sound judicial discretion." We therefore review for
abuse of discretion.
Potters contend that Wilmington had a ministerial,
nondiscretionary duty to enforce the 2014 Board Decision and
July 2017 Letter and to order SC&A to obtain any permits
and inspections and conduct the remedial work. We disagree.
In our view, the Superior Court correctly determined that the
City has discretionary authority to choose the manner in
which it will enforce its building code. Therefore, the
remedy of mandamus is not available.
Furthermore, a plaintiff seeking mandamus must also
lack an alternative remedy before a court may issue the writ.
The Potters, however, have several other remedies, at least
one of which they already exercised. They filed a lawsuit
against SC&A that resulted in a judgment-affirmed by this
Court-in favor of SC&A. The Superior Court correctly
concluded that the Potters did not lack an alternative remedy
for mandamus purposes simply because the
Potters' lawsuit did not go the way they wanted it to
see no error in the Superior Court's ruling and do not
believe that it abused its discretion when it ...