Submitted: November 20, 2017
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.
K. Schaeffer, Esq., Attorney for Defendants.
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
FACTS AND PARTIES' CONTENTIONS
Defendants 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
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.
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. Defendant also
requested additional time to file a cross-motion for summary
judgment against 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.
STANDARD OF REVIEW
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." The moving party bears the initial burden
of showing no material issues of fact are
present. 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. In considering a motion for summary
judgment, the Court must review ...