SC&A Construction, Inc.
Charles Potter, Jr. et al.
Submitted: July 13, 2017
L. Logan, Esquire Victoria K. Petrone, Esquire, Logan &
L. Guy, Esquire Samuel L. Guy, Attorney at Law.
Counsel, On June 26, 2017, the defendants, Charles Potter,
Jr. and Velda C. Jones-Potter (collectively, the
"Potters"), filed a Motion for a Stay of Execution
of Judgment Pending Appeal (the "Motion to Stay").
After nearly five years of litigation in multiple forums,
this Court entered judgment and a mechanic's lien in
favor of the plaintiff, SC&A Construction, Inc.
("SC&A"), and against the Potters'
property. The Potters are appealing that judgment and lien.
In my view, the Motion to Stay is not supported by the
analysis required by Kirpat, Inc. v. Delaware Alcoholic
Beverage Control Commission and I deny the stay on that
factual background of this case is set forth at length in my
Memorandum Opinion dated May 31, 2017 (the "May 2017
Opinion"), as well as in a previous decision of the
Court of Chancery. It will not be repeated here, except as
necessary for the pending Motion to Stay.
2017 Opinion granted SC&A's Motion to Enter
Arbitration Award as a Final Mechanic's Lien Judgment and
denied the Potters' request to amend their answer and
affidavit of defense. After denying the Potters' motion
for reargument, I entered an order (the "Mechanic's
Lien Order") on June 21, 2017, which entered judgment
in rem in the amount of $116, 364.00, plus
post-judgment interest, and placed a lien for that amount on
the Potters' house and land. It is execution of this
judgment and lien the Potters seek to stay pending resolution
of their appeal of the Mechanic's Lien
procedural history of the parties' dispute leading up to
this point is complicated and not directly related to the
Motion to Stay. Suffice to say, the Potters entered into a
contract with SC&A for improvements to the Potters'
home. Disputes arose regarding those improvements and
SC&A filed a mechanic's lien action in this Court.
The parties' disputes ultimately were resolved in
arbitration, pursuant to an arbitration clause in the
parties' contract. The mechanic's lien entered by the
Court relates to amounts the arbitrator determined the
Potters owed SC&A for improvements to the Potters'
addition to this litigation, the associated arbitration, and
proceedings in the Court of Chancery to confirm the
arbitration award, the Potters also have an ongoing dispute
with SC&A before the Department of Licenses and
Inspections of the City of Wilmington (the "L&I
Department"). In support of their Motion to Stay, the
Potters filed a recent letter the L&I Department issued,
purportedly identifying various deficiencies in the
construction of the Potters' roof. The Potters
contend these deficiencies are attributable to SC&A and
have affected both their property value and their ability to
post a bond in support of the Motion to Stay.
Supreme Court Rule 32 governs motions to stay pending
appeal.Such motions must be made to the trial
court in the first instance, which has discretion to grant
such a stay provided the appellant gives sufficient security
as required by the Delaware Constitution. In exercising its
discretion, the court considers four factors: (1) "a
preliminary assessment of likelihood of success on the merits
of the appeal"; (2) "whether the [movant] will
suffer irreparable injury if the stay is not granted";
(3) "whether any other interested party will suffer
substantial harm if the stay is granted"; and (4)
"whether the public interest will be harmed if the stay
Potters contend their arguments on appeal have a good
likelihood of success and that they will suffer irreparable
injury if the stay is not granted because "[t]he
judgment is a substantial sum which [the Potters] will not
likely be able to recover" if they prevail on
appeal. The Potters also argued at the hearing on
the Motion to Stay that, if forced to pay the judgment or
post a bond while the appeal is pending, they will be unable
to afford the repairs to their roof identified as necessary
by the L&I Department. If they do not pay the judgment,
they argue, they may face a sheriffs sale with the property
fetching less than full value due to the ongoing roof issues.
the possibility of harm a stay might cause SC&A, the
Potters argue SC&A does not face any substantial harm
because "[t]here is no indication that a stay will
detrimentally impact [SC&A's] economic
position." A stay, the Potters further contend, is
favored by public policy because the judgment already is
secured through the mechanic's lien,  and because
the L&I Department has ordered SC&A to obtain
necessary permits and complete an inspection, an order the
Potters contend SC&A has ignored.
Potters also argue that, if the Court stays execution pending
appeal, no additional security or bond should be required
because the mechanic's lien serves the purpose usually
served by a bond. The Potters, without citing any record
support, assert "[t]he value of properties in [the
Potters'] neighborhood far exceeds the value of the
mechanic[']s lien." Finally, the Potters urge, if
the Court concludes the mechanic's lien ...