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Delaware Building Supply, Inc. v. Integrity Builders, Inc.

Superior Court of Delaware

December 11, 2017

DELAWARE BUILDING SUPPLY, INC., Plaintiff
v.
INTEGRITY BUILDERS, INC. and GERALD WILLEY, Defendants.

          Date Submitted: November 20, 2017

         Upon Plaintiff's Motion for Summary Judgment. Denied.

          Patrick Scanlon, Esq. and Darlene Wyatt Blythe, Esq., Law Offices of Patrick Scanlon, P.A., Attorneys for Plaintiff.

          Peter K. Schaeffer, Esq., Attorney for Defendants.

          MEMORANDUM OPINION

          STOKES, J.

         I. INTRODUCTION

         This matter is presently before the Court on the motion of the Plaintiff, Delaware Building Supply, Inc. ("Plaintiff"), for summary judgment against Gerald Willey. The Defendant, Gerald Willey ("Defendant" or "Willey"), opposes the Motion. For the foregoing reasons, Plaintiff's Motion for Summary Judgment is DENIED.

         II. FACTS AND PARTIES' CONTENTIONS

         Defendants[1] are sued for non-payment on an open account for building supplies owned by Delaware Building Supply, Inc. The amounts claimed are the principal amount of $158, 894.03 as well as $13, 477.70 in pre-judgment interest with post-judgment interest at the rate of 6.25% per annum.

         On August 10, 2017, Plaintiff filed this Motion for Summary Judgment against Willey. The Motion argues that Willey signed a personal guaranty regarding the subject of this lawsuit and that he never notified Plaintiff that he was terminating the guaranty. Therefore, Plaintiff argues there is no issue of material fact. Willey filed his response on August 30, 2017, to which Plaintiff replied on September 8, 2017. On November 3, 2017, Willey requested oral argument on Plaintiff's Motion. His request was based on information received in Plaintiff's response to Defendant's discovery requests, which was produced after Plaintiff's final reply to this Motion. The Court requested additional information before making a decision regarding oral argument. Responses from the parties were received on November 8, 2017 and November 20, 2017.

         The Complaint refers to a credit application and guaranty dated November 20, 2006. However, in its discovery response Plaintiff provided a second application between the parties dated October 8, 2008. The second application was not signed by Willey, but by his son-in-law, Bryan Elliott, the President of Integrity Builders, Inc. While the first application contained a guaranty signed by Willey, the second one did not include a guaranty. Willey contends that the 2008 transaction was a novation of the first and that the personal guaranty contained in the first contract does not cover charges incurred after October 8, 2008.[2] Defendant also requested additional time to file a cross-motion for summary judgment against Plaintiff.

         Plaintiff argued that its Motion for Summary Judgment is supported by its affidavit and citations to Willey's deposition. Plaintiff further contends that novation is an affirmative defense, which was not pled in Defendant's Answer to the Complaint and is not supported by the facts of this case. Therefore, Plaintiff requests that the Motion be granted.

         III. STANDARD OF REVIEW

         The Court may grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law."[3] The moving party bears the initial burden of showing no material issues of fact are present.[4] If the moving party properly supports their motion, the burden then shifts to the non-moving party to rebut the contention that no material issues of fact exist.[5] In considering a motion for summary judgment, the Court must review ...


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