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

Superior Court of Delaware, Sussex

April 30, 2015

A.P. Croll & Son, Inc., Plaintiff
v.
Clark's General Contractors, Inc., Defendant

Submitted: January 6, 2015

Dean A. Campbell, Esquire, Law Office of Dean A. Campbell, LLC, Attorney for Plaintiff

Jeffrey J. Clark, Esquire, Schmittinger & Rodriguez, Attorney for Defendant

MEMORANDUM OPINION

RICHARD F. STOKES, JUDGE

Presently before the Court is a breach of contract action brought by subcontractor, A.P. Croll & Son, Inc., ("Croll"), against general contractor, Clark's General Contractors, Inc. ("Clark"). Croll seeks to recover losses sustained resulting from work related to site preparation and a paving subcontract related to the construction project for Royal Farms in Georgetown, Delaware. Croll alleges Clark failed to pay Croll for performance of its obligation in accordance with a written construction contract for the completion of highway reconstruction work. Croll seeks payment of $24, 188.54, plus interest and reasonable attorney's fees. Clark maintains Croll did not perform as contractually obligated and is not entitled to recover losses.

Following the bench trial and upon review of the parties' post-trial briefs, the Court finds Croll is entitled to recover losses sustained in the amount of $5, 489.57, plus costs and present and past interest.[1] This amount accounts for a deduction for back fill and top soil, affords set-offs for work performed on Gordy Street, the additional stone materials, and the difference between the interest paid and simple interest for payments made by Clark to a subcontractor on behalf of Croll.

FACTS AND PROCEDURAL POSTURE

In April 2012 Croll entered into a contract, prepared by Clark, in which Croll was to perform work related to highway reconstruction in and around Royal Farms located in Georgetown, Delaware.[2] The Royal Farms project required substantial highway reconstruction work at the intersection of U.S. Route 113 ("113") and Route 404 ("404").[3] Along 113, 404, and Gordy Street is where most of the work related to the present dispute took place.[4]

Emory Hill was hired to oversee the project and Clark was hired as a general contractor to construct the new store.[5] Clark subcontracted with Croll to complete roadwork, including site work within the right-of-way as defined by Delaware Department of Transportation ("Del Dot"), for the agreed upon amount of $298, 353.31.[6]

As work progressed, incremental payments were made by Clark to Croll.[7] A dispute arose after four applications were paid, totaling $192, 880.73, leaving an alleged balance of $105, 472.58 owed to Croll.[8] In July 2013, Croll filed a Complaint alleging Clark had breached their contract by failing to pay Croll for work performed.[9] Before trial, most of the disputes raised in the Complaint were resolved.

At this juncture, the parties' contentions center on a handful of transactions. First, Emory Hill paid Croll directly for work related to the back fill and top-soil on 404 and 113 and subtracted the amount due, $8, 884.50, to Clark.[10] Second, Clark paid $11, 870 to an alternative contractor, Stanley's Asphalt, to pave Gordy Street and $520.08 for additional stone material to complete work allegedly within Croll's responsibility under the contract.[11] Lastly, Croll disputes the payment Clark paid to Shea Concrete, LTD ("Shea"), a party subcontracted by Croll.[12]Croll contends Shea was not entitled to interest in the first instance, and in the alternative argues to reduce the amount of interest paid from $2, 914.96, calculated at a rate of twenty-four percent, to $339.35 in order to reflect interest calculated at the legal interest rate.[13]

Croll maintains Clark has breached the contract by failing to pay for work performed.[14] Defendant Clark asserts Croll failed to perform the work as contractually obligated resulting in a breach of contract.[15] As such, Clark asserts funds are not due to Croll, and in the alternative that set-offs are due to Clark.[16]

Following a bench trial held on November 19, 2014 the Court reserved decision pending ...


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