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First State Exteriors, LLC v. Schweiger

Superior Court of Delaware, New Castle

January 23, 2014

FIRST STATE EXTERIORS, LLC, a Delaware limited liability company, Plaintiff,
v.
FREDERICK W. SCHWEIGER and PAMELA SCHWEIGER, Defendants.

SCIRE FACIAS SUR MECHANICS LIEN

DECISION AFTER TRIAL

Eric M. Davis Judge, Superior Court

The Court held a three day trial in this civil action on September 23-25, 2013 (the "Trial"). The Court then had the parties submit their closing arguments in written form, receiving the final post-trial paper on October 16, 2013.

The case involves various claims and counterclaims between Plaintiff and Counterclaim Defendant First State Exteriors, LLC ("First State") and Defendants and Counterclaim Plaintiffs Frederick W. Schweiger and Pamela Schweiger. This is the Court's decision after trial, including the findings of fact and conclusions of law from the Trial.

BACKGROUND

Witnesses:

During the Trial, the Court heard from and considered testimony from the following witnesses:

Alan Mazzetti, an employee and part owner of First State; Brian Sorg, an employee of First State; Christopher Vidro, M&V Builders and a roofing subcontractor of First State; Peppe Longato, CEM Enterprises, Inc. and a vinyl siding subcontractor of First State;

Michael Fox, New Castle County Inspector; Larry Hughes, expert witness provided at trial by the Schweigers; Pamela Schweiger; and Frederick Schweiger ("Freddy Schweiger"), son of the Schweigers.

As an initial point, the Court finds that Freddy Schweiger was the most helpful and credible witness produced during the Trial. The Court makes this finding based on Freddy Schweiger's means of knowledge, strength of memory and opportunity to observe. The Court does find other witnesses to be credible – e.g., Mr. Fox and, to a lesser degree, Mr. Vidro, Mr. Longato and Ms. Schweiger, but not to the extent that Freddy Schweiger was during his testimony at the Trial. The Court understands that Freddy Schweiger has bias in favor of the Schweigers (his parents); however, the Court makes its finding and conclusion due to Freddy Schweigers' demeanor on the stand, the fact that he was the one witness who seemed to best remember the events and was the one witness who appeared present during most of the events relevant to this civil action.

Exhibits:

The parties entered numerous exhibits for the Court to consider in determining the various claims. First State had the following exhibits admitted:

Pl. Ex. 1 – NCC Board of Adjustment Drawing supporting variance request;

Pl. Ex. 2 – Open-End Mortgage dated Nov.29, 2011 with Frederick and Pamela Schweiger as mortgagors and Manufacturers & Traders Trust Company as mortgagee;

Pl. Ex. 3 – Agreement between the Schwigers and First State dated Oct. 18, 2011 (as amended on Nov. 25, 2011, the "Contract");

Pl. Ex. 4 – First State: Schweiger Job Notes;

Pl. Ex. 5 – First State "Amendment" dated Nov. 25, 2011;

Pl. Ex. 6 – NCC Dept. of Land Use Building Permit issued Nov. 30, 2011 (roofing);

Pl. Ex. 7 – NCC Dept. of Land Use Building Permit issued Dec. 6, 2011 (ramp);

Pl. Ex. 8 – First State Invoice dated Dec. 21, 2011;

Pl. Ex. 9 – Letter from William J. Rhodunda, Jr., Esq., to Alan Mazzetti dated Dec. 30, 2011;

Pl. Ex. 10 – omitted;

Pl. Ex. 11 – Letter from Sadie Killman, GAF Contractor Servs., to Frederick and Pamela Schweiger dated January 10, 2012;

Pl. Ex. 12 – E-mails between Phillip M. Finestrauss, Esq., and William J. Rhodunda, Jr., Esq.;

Pl. Ex. 13 – Letter from Tom Basso, Lancing Building Products, to Brian Sorg (facsimile date line of Feb. 17, 2012);

Pl. Ex. 14 – Letter, dated Jan. 1, 2012, from Peppe Longato, CEM Enterprise., Inc.;

Pl. Ex. 15 – NCC Dept. of Land Use Violation Notice issued to First State Contractors Inc. dated March 5, 2012;

Pl. Ex. 16 – Letter from Pamela G. Schweiger and Frederick W. Schweiger dated May 14, 2012;

Pl. Ex. 17 – Letter from George O. Haggerty, NCC Dept. of Land Use, to First State Contractors, Inc. and Frederick Schweiger dated June 15, 2012;

Pl. Ex. 18 – E-mail with attachment from Charles Hoppe to fschweiger1 dated June 25, 2012;

Pl. Ex. 19 – E-mail from Alan Mazzetti to "All" dated June 25, 2012;

Pl. Ex. 20 – E-mail from Michael Fox to numerous parties dated June 9, 2012;

Pl. Ex. 21 – E-mail from Michael Fox to numerous parties dated June 11, 2012;

Pl. Ex. 22 – E-mail from William J. Rhodunda, Jr., Esq., to Richard Abbott, Esq., dated July 17, 2012;

Pl. Ex. 23 – Letter from George O. Haggerty, NCC County of Land Use, to First State Contractors, Inc. and Frederick Schweiger dated July 18, 2012;

Pl. Ex. 24 – omitted;

Pl. Ex. 25 – Letter of Compliance from George O. Haggerty, NCC Dept. of Land Use, to Frederick Schweiger and First State Contractors, Inc. dated July 31, 2012;

Pl. Ex. 26 – omitted;

Pl. Ex. 27 – omitted;

Pl. Ex. 28 – Written notes of Pamela Schweiger regarding construction work;

Pl. Ex. 29 – NCC Cert. of Occupancy for Roofing Permit issued on Nov. 31, 2011 and final on Dec. 20, 2011 (First State Contractors, Inc.);

Pl. Ex. 30 – NCC Cert. of Occupancy for Ramp Permit issued Dec. 6, 2011 and final on Dec. 21, 2011 ...


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