Submitted: October 21, 2013
Upon Consideration of Defendants' Motion to Dismiss DENIED
Philip Arcoria, Pro se.
Daniel F. Wolcott, Jr., Esquire, Potter Anderson & Carroon, LLP, Wilmington, Delaware for Defendant RCC Associates, Inc.
Richard L. Abbott, Esquire, Abbott Law Firm, Hockessin, Delaware for Defendant 3745 Holdings, LLC.
Robert B. Young, J.
Pursuant to Del. Super. Ct. Civ. R. 12 (b)(6), general contractor RCC Associates, Inc. ("Defendant RCC") moves the Court to dismiss the Complaint filed by Philip Arcoria ("Plaintiff"), President of subcontractor Rolling Co., Inc. ("Rolling"), that performed construction services for Defendant RCC. The Motion to Dismiss arises from an action by Plaintiff, a painting subcontractor, for breach of contract and foreclosure of a mechanics' lien as a result of nonpayment for construction services furnished. Defendant RCC argues that: 1) the assignment of the cause of action sued upon is tainted by champerty and maintenance; 2) the governing contract establishes Florida as the proper venue; and 3) Count I of Plaintiff's Complaint should be dismissed, because Plaintiff has not complied with the mechanics' lien statute. Defendant RCC's Motion to Dismiss is DENIED, because 1) Plaintiff maintains a legal interest in the subject matter of this litigation; 2) absent a demonstrated need by Defendant to transfer the venue in this action to Florida, venue in Delaware is proper; 3) the unperfected mechanics' has priority because Plaintiff is not a remote supplier; and 4) Plaintiff properly filed a Bill of Particulars with the mechanics' lien.
On September 18, Defendant RCC filed the instant Motion to Dismiss. On October 2, 2013, the owner of the premises upon which the construction services were performed, 3745 Holdings, LLC ("Defendant 3745"), filed a Partial Joinder to Defendant RCC's Motion to Dismiss. Defendant 3745 joined the portion of Defendant RCC's Motion that requests dismissal based upon the failure of Plaintiff's Complaint to allege properly that Defendant 3745 authorized the construction services to be performed, as required by the Mechanic's Lien statute at 25 Del. C. § 2722. Defendant 3745 also joined the portion of the Motion which seeks dismissal on the grounds of failure to set forth all necessary elements required by the Mechanics Lien statute in the Complaint and/or accompanying the Bill of Particulars.
STATEMENT OF FACTS
The painting subcontract in this matter was executed by and between Rolling and Defendant RCC. Plaintiff is the President of Rolling, the construction company that performed the services. Rolling is a licensed Maryland corporation and painting subcontractor. The real property that is the subject of this action and mechanic's lien is located at 4590 South Dupont Highway in Camden, Delaware ("Subject Property"). Defendant RCC is a Florida corporation, which, as a general contractor, hired Rolling to perform services in constructing Cheddar's Casual Café ("the Project") located at the Subject Property.
In performing construction services to the Subject Property during all relevant periods in Kent County, Delaware, Rolling, the Assignor, procured a Delaware non-resident contractor temporary license. The oral and written agreement as well as the causes of action in the Complaint were assigned to Plaintiff on May 21, 2013. Plaintiff alleges that the Delaware company, Defendant 3745, is the owner of the Subject Property. In addition, Plaintiff alleges that "Does" 1 through 20, unknown Defendants with fictitious names (herein "Defendant Owners"), have an ownership interest in the Subject Property. Defendant Owners purport to have an interest in the property, which is subordinate to Plaintiff's Mechanic's Lien.
On January 2, 2013, Rolling and Defendant RCC entered into an oral agreement whereby Rolling would perform construction painting services. In exchange, Defendant RCC would pay the base contract amount of $21, 866.00. Thereafter, representative Mark Fetting, project manager for Defendant RCC, both orally and in writing directed, consented to, and authorized additional change order work in the sum of $29, 496.00, which Rolling performed. Rolling supplied labor and materials to the Project, mainly in the form of painting and staining woodwork to both the ...