Lost in Rehoboth v. Broadpoint Construction, LLC ( 2024 )

SUPERIOR COURT
OF THE
STATE OF DELAWARE
Sussex County Courthouse
MARK H. CONNER 1 The Circle, Suite 2
JUDGE Georgetown, DE 19947
May 15, 2024
Aaron E. Moore, Esq. Edward Seglias, Esq.
M. Claire McCudden, Esq. COHEN, SEGLIAS,
MARSHALL DENNEHEY, P.C. PALLAS, GREENHALL &
Wilmington, Delaware 19899 FURMAN, P.C.
Attorneys for Defendant Fisher Wilmington, Delaware 19801
Architecture, LLC. Attorney for Plaintiff Lost in
Rehoboth, LLC.
Eric Scott Thompson, Esq.
Franklin & Prokopik
800 Creek View Road, Suite 300
Newark, Delaware 19711
Attorney for Defendant Broadpoint
Construction, LLC
RE: Lost in Rehoboth, LLC v. Broadpoint Construction, LLC and Fisher
Architecture, LLC
C.A. No. S21C-03-021 MHC
Dear Counsel,
Before the Court are two motions that will each be addressed in turn. The first
motion is Defendant, Broadpoint Construction, LLC’s (“Broadpoint”), motion to
strike demands for a jury trial. The second motion is Defendant, Fisher Architecture,
LLC’s (“Fisher”), motion for leave to amend its answer and counterclaims.
Relevant Factual History
The relevant facts can be summarized as follows. Plaintiff, Lost in Rehoboth
(“LIR”), entered into a contract with Broadpoint for the construction of a restaurant
on Rehoboth Avenue. The LIR-Broadpoint contract contained a jury waiver
provision. Broadpoint subcontracted architectural work on the construction project
to Fisher. The Broadpoint-Fisher contract contained a clause indemnifying Fisher.
For reasons irrelevant to the present motion, LIR commenced legal action
against Broadpoint and Fisher with no demand for a jury. Fisher Architecture filed
its answer with no demand for a jury and no assertion of a crossclaim against
Broadpoint for common law contribution and indemnity. Broadpoint filed its answer
demanding a jury trial and asserting cross claims against Fisher. On May 28, 2021,
Broadpoint filed a Third-Party Complaint against Delaray Foundations (“Delaray”)
demanding a jury trial. On November 22, 2021, Delaray filed a motion to dismiss
demanding a jury trial. Broadpoint then filed a response in opposition to Delaray’s
Motion to Dismiss again demanding a jury trial on December 17, 2021.
Broadpoint’s Motion to Strike
The issue of a right to a jury trial was first raised when Broadpoint filed a
motion to strike demands for a jury trial on March 3, 2023. Delaray filed a response
in opposition on March 7, 2023. LIR also filed a response in opposition on March
9, 2023.
In the past 14 months much has changed in the posture of this matter. Delaray
is no longer a party to this litigation, discovery has commenced, and attempts at
mediation have failed to name a few. Therefore, I am requesting additional briefing
on the issue of a right to a jury trial considering the contractual provisions and
inconsistent positions of the parties. Please provide simultaneous briefing by June
28, 2024.
Fisher’s Motion for leave to Amend
On December 21, 2023, Fisher filed a motion for leave to amend its answer
and counterclaims. Fisher seeks to amend its answer to add a crossclaim for common
law contribution and indemnity against Broadpoint. Neither Broadpoint nor LIR
have responded to this motion.
Superior Court Civil Rule 15(a) provides that “leave shall be freely given
when justice so requires.”1 Absent prejudice to another party “the trial court is
required to exercise its discretion in favor of granting leave to amend.”2 Although
undue delay may be cause for denial of a motion to amend, it alone is insufficient to
deny amendment of pleadings.3 “In determining whether to grant a party's motion
for leave to amend, this Court will balance the hardship encountered by the moving
1
Del. Super. Ct. Civ. R. 15
2
Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258, 263 (Del. 1993) (citing Ikeda v.
Molock, Del.Supr., 603 A.2d 785 (1991)).
3
Parker v. State, 2003 WL 24011961, at *3 (Del. Super. Ct. Oct. 14, 2003).
party if such motion is denied against the prejudice suffered by the adverse party if
such motion is granted”.4
The absence of a response by any party, including Broadpoint, to this motion
is indicative of its potential prejudice. Therefore, given the courts wide latitude to
freely grant such motions for leave and the minimal prejudice that will befall the
other parties, namely Broadpoint, I hereby GRANT Fisher’s motion to amend. The
proposed Order supplied with the motion will be signed.
IT IS SO ORDERED.
/s/Mark H. Conner
Judge Mark H. Conner
via File & Serve
xc: Prothonotary
4
Wilson v. Wilson, 2005 WL 147942, at*1 (Del. Super. Ct. Jan. 14, 2005).