Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Harmon v. Sussex County

United States District Court, D. Delaware

September 12, 2019

SANDRA HARMON, Plaintiff,
v.
SUSSEX COUNTY, State of Delaware Administration, et al., Defendants.

          Sandra Harmon, Hartsville, South Carolina. Pro Se Plaintiff.

          Kevin J. Connors, Esquire, and Artemio C. Aranilla, II, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, Wilmington, Delaware. Counsel for Defendants.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Plaintiff Sandra Harmon appears pro se. She commenced this lawsuit to protect her private property and preserve her right to restore her home located in Rehoboth Beach, Delaware.[1] (D.I. 1; D.I. 1-1 at p.8). Plaintiff alleges violations of her rights under the First and Fourteenth Amendments to peaceful enjoyment of the property, and unlawful tactics by Sussex County government officials. Plaintiff alleges jurisdiction by reason of diversity pursuant to 28 U.S.C. § 1332. (D.I. 1 at 1). Before the Court are the parties' cross-motions for summary judgment. (D.I. 59, 61). Also before the Court is Plaintiffs motion to strike Defendants' reply brief.[2] (D.I. 73). The matters have been fully briefed.

         I. BACKGROUND

         Plaintiff commenced this action in the United States District Court for the District of South Carolina. All issues relate to real property located at 37533 Oyster House Road in Rehoboth Beach, Delaware, that is owned by the "Leroy William Harmon Heirs," who include Plaintiff and Lefton Harmon. (D.I. 1 at 2-3). The matter was transferred to this Court on December 19, 2017. (D.I. 13, D.I. 14).

         On April 7, 2017, Sussex County Constable Ryan W. Stuart prepared a field inspection report and found the property non-compliant with the Sussex County Housing Code as "unfit for human occupancy" with an "unsafe structure" following an inspection that found the property had been damaged due to fire. (D.I. 60-1 at 2-7). A demolition order issued that provided the owners were to "raze" the structure by June 24, 2017. (Id. at 9). If they failed to comply with the demolition order, the Sussex County Code Office would have the structure razed and removed, the costs of razing and removal would be charged against the real estate upon which the structure was located, and a lien would be placed upon the real estate as provided in the Sussex County Code. (Id.). A copy of the demolition order was sent by certified mail to the "Leroy William Harmon Heirs and Sandra Harmon" at the address of record in New Castle, Delaware. (D.I. 60-1 at 11). Lefton Harmon signed the return receipt. (Id.). Plaintiff alleges that she became aware of the demolition order on June 23, 2017 when Lefton Harmon read the contents of the notice to her. (D.I. 1 at 2, 3).

         Plaintiff filed a case in the Superior Court of the State of Delaware in and for Sussex County against Sussex County and Mike Castello, Harmon v. Sussex County, Civ. A. No. S17C-06-035 ESB (Del. Super.) and sought an emergency injunction against the demolition order for the Oyster House Road property. The parties entered into a dismissal agreement that no action would be taken to demolish the property until disposition of the matter by the Sussex County Board of Appeals. (D.I. 55 at 10). The stipulation of dismissal states, "In the event [that] Sandra Harmon or any other owner of the subject property fails to file an appeal with the Sussex County Board of Appeals pursuant to Article III, Section 71-31(D) on or before August 15, 2017, Sussex County may proceed to enforce the Demolition Order." (Id.).

         In the meantime, on July 25, 2017, the owners of the property received a Sussex County violation from Defendant Kelly R. Passwater following an inspection that found a shed on the property was illegally located and illegally being used as a dwelling. (D.I. 1- 1 at 8-9). The owners were given an August 18, 2017 violation correction date. (Id. at 9).

         On or about August 31, 2017, Plaintiff was notified via email by Defendant Michael Costello, Government Affairs Manager, Sussex County Administrative Building, that the demolition appeal hearing was set for September 20, 2017, and that there was a $600 application fee for the hearing. (D.I. 1-1 at 1-2). On August 31, 2017, Plaintiff sought a fee waiver due to financial hardship. (Id. at 3). Costello's email, dated September6, 2017, advised Plaintiff that the Board of Appeals had no process to waive the fee and should it not be received by September 13, 2017, the September 20, 2017 hearing would be canceled. (Id. at 2).

         On September 9, 2017, Plaintiff emailed Costello and other Sussex County employees stating that she had advised Costello on August 31, 2017 that she could not attend the September 20, 2017 hearing due to a previously scheduled doctor's appointment, and she asked Costello to reschedule the hearing and send her a waiver form as an indigent citizen. (Id. at 4). Plaintiff warned that she would seek an emergency injunction in federal court if the hearing proceeded without her. (Id.).

         Plaintiff received an email response the next day from attorney Jason Adkins, who told her:

[T]he scheduling is set based upon the next available date when the board of appeals members are available. This is the same procedure for any person requesting an appeal.... As was previously communicated, you are permitted to have someone appear on your behalf and represent your interests, even if you are unable to attend personally. The County does not have, or offer, indigent fee waivers. Any person who requests a similar appeal is required to pay the same fee being charged to you.

(Id. at 4). Plaintiff did not pay the required fee and was notified on September 14, 2017 that the hearing was canceled due to her failure to pay the fee and that Sussex County would resume its efforts to bring the property into compliance with the Sussex County Code in accordance with the demolition order that was originally served in April 2017. (Id. at 5). The Complaint alleges that demolition began on September 14, 2017. (D.I. 1 at 4).

         The Court takes judicial notice that on January 12, 2018, a little over three weeks after this case was transferred here, the Department of Finance of Sussex County filed a monitions suit against Plaintiff and the other owners for delinquent sewer and water bills and the demolition lien. See Department of Finance of Sussex County v. Harmon Heirs, Civ. A. No. S18T-01-002 (Del. Super.) at BL-1.[3] Monition was entered on January 18, 2018, and posted on the property on January 23, 2018. Id. at BL-6.

         Partnerships for Development, Inc. offered to purchase the property. (D.I. 62-6 at 1). Plaintiff rejected the offer on May 27, 2018. (Id. at 5). On May 30, 2018, a notice of the Sheriffs sale was posted at the physical entrance of the property and, on May 31, 2018, Plaintiff and the other property owners were notified by certified mail of a Sheriffs sale of the real estate to take place on June 19, 2018, at 9:30 a.m. See Civ. A. No. S18T-01-002 at BL-16, BL-17, BL-18. According to Plaintiff in her verified motion for injunctive relief dated June 5, 2018, she made multiple payments on the water and sewer bill and indicated it would be paid in full the month of June 2018. (D.I. 27 at ¶¶ 10-14). In addition, she stated that Sussex County never attempted to arrange for payments on the demolition and she "just began to pay monthly on the outstanding cost of demolition until the balance is paid in full." (Id. at ¶¶ 15-17). Other than the County sending Plaintiff "a bill of cost, nothing more was discussed about the demolition cost." (Id. at ¶16).

         On June 8, 2018, Harmon filed a motion to dismiss and motion for injunctive relief in the monition action, alleging violations of her constitutional rights. See Civ. A. No. S18T-01-002 at BL-10. On June 18, 2018, the Superior Court denied the motion and ordered that the sale could proceed as scheduled on June 19, 2018. Id. at BL-28. A notice of lis pendens was filed on June 19, 2018 and on June 21, 2018, Harmon filed a motion to invalidate and to dismiss. Id. at BL-30. On June 19, 2018, the property was sold for $113, 500 to Wayne D. Hudson, Robert J. Downes, and David R. Downes, the highest bidder and, in turn, Harmon filed an objection to the sale followed by an amended notice of objection. Id. at BL-35, BL-36, BL-44, BL-60.[4] On August 9, 2018, Harmon filed a motion to dismiss. Id. at BL-51.

         On November 7, 2018, the Superior Court stayed the matter while awaiting resolution of the related federal civil cases Plaintiff had filed, Civ. No. 18-1021-RGA and the instant case Civ. No. 17-1817-RGA. Id. at BL-51. Harmon then filed a petition for a writ of mandamus in the Delaware Supreme Court to compel the Superior Court judge to dismiss the monition action. Id. at BL-53, BL-56. The Delaware Supreme Court dismissed her petition on December 3, 2018. In re: Harmon, 2018 WL 6332269 (Del. Dec. 3, 2018).

         A telephone conference in the monition action was held on December 19, 2018 to discuss the wording in the Superior Court's June 18, 2018 order that denied Harmon's motion to dismiss and/or to transfer the monition action to federal court. (D.I. 62-2 at 1-2; D.I. 70-1 at 20-21; Civ. A. No. S18T-01-002 at BL-58). The order stated that the "monition sale sought by [Department of Finance of Sussex County] is premised upon the Defendants' (i.e., Harmon) alleged failure to pay sewer and water fees." (D.I. 62-2 at 1). Because Plaintiff had paid the water and sewer bill in full at the time the order was entered, she questioned why her motion was not granted and why the sale was allowed to proceed. (D.I. 70-1 at 20). During the telephone hearing, the Court stated that although the order states that the monition sale is premised upon the alleged failure to pay the water and sewer bill, that was not the intent of the order and the Court did not think that when the order was signed that the matter was limited solely to water and sewer. (Id.). The Court explained the order included the demolition assessment because the demolition assessment was "all part of the monition, and it was all part of the sales execution writ that proceeded." (Id.). The Court went on to explain that the wording of the order "did not in any way affect the ability of the County to seek to collect the demolition costs." (Id.). On June 19, 2019, an "affidavit of non-redemption" was filed in the monition case. It advised that: (1) the property had been sold; (2) Plaintiff and the other heirs had not redeemed the property by paying all taxes, interest, and costs within 60 days of the confirmation of the sale, as was permitted by Delaware law; (3) there had been no objections to the sale; and (4) "the sale was automatically confirmed as a matter of course." See Civ. A. No. S18T-01-002 at BL-59.

         Plaintiff claims: (1) Sussex County government officials intentionally violated her First Amendment right to the peaceful enjoyment of her private property without government interference; (2) Sussex County government officials engaged in unlawful tactics to displace African American families from their beach property via suspicious house fires during the owner's absence from his or her home; (3) Defendant intentionally cut off the water supply to Plaintiffs property and made it impossible for Plaintiff to stay in a shed on the property when she came for short vacations; and (4) Defendants sought to remove a shed on the property that had been in the same location for over ten years in an attempt to prevent Plaintiff from using the property. (D.I. 1 at 2).

         Defendants move for summary judgment on the grounds that: (1) Plaintiff has failed to adduce any evidence to support her claims; (2) the Sussex County Code addresses the issue of who is responsible for paying the demolition lien amount; (3) Plaintiff has failed to cite to supporting authority or adduce evidence to support her request for an order to reconstruct the home on the property; and (4) the challenge to the required payment of an appellate fee to the Sussex County Board of Appeals fails. Plaintiff moves for summary judgment on the grounds that: (1) she has provided proof that Defendants violated their own policies and procedures in failing to afford her a hearing on the demolition of her property; and (2) she has provided evidence that Defendants intentionally denied her the right to due process and equal protection of Sussex County policies.

         II. LEGAL STANDARDS

         "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). An assertion that a fact cannot be-or, alternatively, is-genuinely disputed must be supported either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials," or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B). When determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.