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Carey's Home Construction, LLC v. Estate of Myers

Superior Court of Delaware, Sussex

April 16, 2014

Carey's Home Construction, LLC A Delaware Limited Liability Company
v.
Estate of David L. Myers and Arlene J. Myers

Submitted: January 17, 2014

Dean A. Campbell, Esq., Tasha M. Stevens, Esq.

Dear Counsel:

Before the Court is the Motion for Partial Summary Judgment of Defendants the Estate of David L. Myers and Arlene J. Myers ("Defendants") against Plaintiff Carey's Home Construction, LLC ("Plaintiff"). This Motion is DENIED.

Facts & Procedural Background

This is a breach of contract case involving Plaintiff's construction of a house for Defendants, the homeowners. The contract at issue is a nine-page document. On the first page read the words "Proposal for New Custom Home, " and "Submitted by: Richard B. Carey." On the bottom of that page reads "Carey's Custom Home Construction 26023 Broadkill Road Milton, DE 19968 302-684-3008."

The second page repeats the address of Carey's Custom Home Construction. It also reads "To: MR. David Myers, " is dated September 12, 2008, and states "We hereby propose to furnish labor and materials for new custom home per spec from M.R. DESIGN for the sum of . . . $246, 000.00." Additionally, it reads "in case of increase in material cost, it will be the responsibility of the homeowner to cover expenses." The page is signed by Richard B. Carey.

The third page is titled "Acceptance of Proposal, " contains language accepting the proposal, is dated September 14, 2008, and contains two lines with the word "Signature" before each. On the one line appears the signature of David L. Myers. ("Mr. Myers"). On the other appears the signature of Arlene J. Myers ("Mrs. Myers").

The fourth page contains the payment schedule for the work performed. There are eight installment payments in total, beginning with $30, 000.00 being due upon acceptance of the proposal, and ending with $16, 000.00 being due when the job is complete. The remaining pages of the document list the various materials to be used for the various parts of the construction.

Plaintiff began construction, for which Defendants paid the first six installments, totaling $200, 000.00. Plaintiff submitted a bill for the seventh installment, plus fees for extras, per the payment schedule. Defendants refused to pay this bill. Various communications passed between the parties. No further monies were paid to Plaintiff, who ceased work.

Plaintiff, as Carey's Home Construction, LLC, filed a complaint against Defendants for breach of contract on October 31, 2011. Plaintiff amended its complaint on February 9, 2012 to amend the name of the LLC and to add Richard B. Carey individually as a plaintiff. Defendants filed an answer and a counterclaim on April 20, 2012. Plaintiff answered the counterclaim on May 10, 2012.

In the amended complaint, Plaintiff avered that "Carey Home Construction, LLC also does business as Carey's Custom Home Construction, " and that "[o]n or around September 14th, 2008, Defendants entered into a contract with Richard B. Carey, either in his own behalf or on behalf of the LLC, for the construction of a new custom home . . . ." To the first statement, Defendants responded in its answer that they "lack[ed] any knowledge to admit or deny that Cary Home Construction, LLC does business as Carey's Custom Home Construction." Further, "[i]t appears that Plaintiff, whoever that may be, does business under multiple fictitious names. By further response, Defendants contracted with Richard B. Carey who was conducting business under an unregistered trade name at the time." To the second statement, Defendants "[a]dmitted that [they] entered into a contract with Richard B. Carey." However, they "[d]enied that [they] entered into a contract with Carey's Home Construction, LLC."

During discovery, Defendants submitted to Plaintiff requests for admissions under this Court's Civil Rule 36. On these requests, Defendants first asked for Plaintiff to admit that Richard B. Carey did not indicate that he signed the contract in his capacity as a member of the LLC, and that nowhere in the contract was the LLC identified. Plaintiff denied both of these requests, but then explained that it admitted that Richard B. Carey did not indicate that he signed the contract in his capacity as a member of the LLC, and that Richard B. Carey did not identify the LLC anywhere in the contract.

Defendants then asked for Plaintiff to "[p]lease admit that the proposal . . . constitutes a proposal by Richard Carey, and not by Carey's Home Construction LLC." Plaintiff denied this request. Defendants also asked for Plaintiff to "[p]lease admit that the proposal . . . constitutes a proposal by Carey's Home Construction, and not by Richard Carey." Plaintiff denied this request as well. To the former, Plaintiff explained that it "admit[ted] that the contract . . . was a proposal offered by Richard Carey and not on behalf of Carey's Home Construction, LLC, but on behalf of Carey Home Construction, LLC, the proper name of the LLC of which he is a sole member." To the latter, Plaintiff explained that "[t]he contract . ...


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