A.P. Croll & Son, Inc. v. Clark's General Contractors, Inc. ( 2014 )

SUPERIOR COURT
OF THE
STATE OF DELAWARE
RICHARD F. STOKES SUSSEX COU NTY C OUR THO USE
JUDGE 1 THE CIRCLE, SUITE 2
GEORGETOWN, DE 19947
TELEPHONE (302) 856-5264
November 7, 2014
Dean A. Campbell, Esquire
Law Office of Dean A. Campbell, LLC
P.O. Box 568
20175 Office Circle
Georgetown, DE 19947
Jeffrey J. Clark, Esquire
Schmittinger & Rodriguez, P.A.
P.O. Box 497
414 South State Street
Dover, DE 19903-0497
RE: A.P. Croll & Son, Inc., a Delaware Corporation vs. Clark’s
General Contractors, Inc., a Delaware Corporation
C.A. No.: S13C-07-022 RFS
Date Submitted: September 2, 2014
Dear Counsel:
The Motion for Summary Judgment filed by Plaintiff is denied. Material
facts are disputed, and judgment cannot be entered as a matter of law.
The verified answer provides support for material issues in dispute that
preclude summary judgment. There are details set forth in the verified answer and
the accompanying affidavit and documents that show potential timely responses to
demand(s), possible back charges, and plausible deductible payments to reduce
Plaintiff’s claim. Perhaps, the information in paragraphs 7 and 8 of the verified
answer should have been displayed differently to demonstrate a set off response.
However, sufficient notice was evident for modern pleading purposes. Plaintiff
knew these matters were in play and maintained the action. There is no waiver,
and Defendant may present evidence about the alleged deductions pled in
paragraphs 7 and 8.
The trial issues concern the scope of work, the course of performance
between the parties, the demand for releases of liens before payment, the
timeliness of objections to demand(s) and the applicability of the Construction
Prompt Payment Act (Act) under 6 Del.C. § 3506. Questions may arise
concerning reciprocal obligations of good faith and fair dealing. Should the Act
apply, the question of good faith is factually driven concerning alleged overdue
payments. DDP Roofing Services v. Indian River School District, 2010 WL
4657161 (Del.Super. Ct 2010); on reargument 2011 WL 61646; Rodman Const.
Co., Inc., v. BPG Prudential Partners V, LLC, 2013 WL 656176 (Del.Super.,
2013).
Plaintiff contends that Defendant’s default in answering requests of
admissions within the normal thirty day period requires the granting of summary
judgment. This is not correct. The Court’s Order of July 18, 2014 permitted the
later filing of responses. There was good cause to give relief given the health
problems of the defense counsel and other reasons that required Mr. Clark to
assume the defense. Default admissions are never appropriate for summary
judgment on ultimate issues. R.C. Fabricators, Inc. v. West Dover Professional
Park, LLC 2009 WL 5177150 (Del.Super., 2009). Nor has Defendant suffered any
prejudice.
At trial, the parties should be prepared to argue whether the Act includes
demolition projects. This is an unresolved legal question. Trial will start at 9:00
a.m. on Wednesday, November 19, 2014. By close of business Monday,
November 17, the parties shall submit a letter memorandum of no more than two
pages on the application of the Act. If more than one day is required for trial
please notify Alan Barraclough, our civil case manager, immediately.
IT IS SO ORDERED.
Very truly yours,
/s/ Richard F. Stokes
Richard F. Stokes
cc: Prothonotary
Alan Barraclough, Civil Dept.