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Consol'd Beyond Building Inc. v. Fiss

Superior Court of Delaware

February 11, 2019

CONSOL'D Beyond Building, Inc. et al,
v.
Mark Fiss, et al.

          Douglas A. Shachtman, Esquire The Shachtman Law Firm 1200 Pennsylvania Avenue Suite 302 Wilmington, Delaware 19806

          Arthur D. Kuhl, Esquire Reger Rizzo & Darnall LLP Brandywine Plaza East 1523 Concord Pike, Suite 200 Wilmington, Delaware 19803

          Christopher H. Lee, Esquire Cooch and Taylor, P.A. The Brandywine Building 1000 West Street, 10th Floor Wilmington, Delaware 19801

          Vivian L. Medinilla Judge

         Dear Counsel:

         This is the Court's ruling on John E. Steele, Jr., Inc. ("Steele")'s Motion for Summary Judgment. For the reasons stated below, Steele's Motion is DENIED.

         Procedural and Factual Background

         This action arises from a consolidated case dealing with claims for a mechanics' lien and breaches of contract arising from a home renovation project. Mark Fiss and Marissa Schnelle ("Fiss" and "Schnelle" or collectively "Owners") hired Beyond Building, Inc. ("BBI") as the general contractor for the additions and renovations of their home at 108 Augustine Cut-off, Wilmington, Delaware 19803 ("Property"). The Owners and BBI entered into a contract and work began in October 2014.

         On or about September 16, 2015, BBI subcontracted with John E. Steele, Jr., Inc., for Steele to perform work at the Property, including the installation of roofing, gutters, and siding.[1] This contract provides "Payment: on completion of the above completed work."[2] On or about October 27, 2015, Steele and BBI modified the contract to change the type of gutters to be used for the project. Steele invoiced BBI in the amounts of $27, 090 and $6, 633, on April 1, 2016 and June 22, 2016, respectively, for work it performed under the contract.[3] BBI has not paid the invoices for the work Steele performed, which totals $33, 720.[4] Steele alleges BBI breached the contract by not paying for the roofing work it performed on the construction project.

         On August 18, 2016, Steele filed its Complaint in the Court of Common Pleas. On September 21, 2016, BBI filed its statement of Mechanics' Lien and Complaint for breach of contract claim against Owners. On October 21, 2016, Steele's Complaint against BBI was transferred from the Court of Common Pleas to the Superior Court. On March 24, 2017, the two cases were consolidated into this matter. On November 29, 2018, Steele filed its Motion for Summary Judgment.[5]The response and reply to this motion were filed by January 9, 2019. The Court held oral arguments on January 22, 2019 and it requested additional submissions from both parties regarding the applicability of 6 Del. C. § 3501 et seq.[6]On January 30, 2019, both parties filed their supplemental submissions and the matter is now ripe for review.

         Standard of Review

         The burden of proof on a motion for summary judgment falls on the moving party to demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."[7] If the moving party satisfies its initial burden, the non-moving party must sufficiently establish the "existence of one or more genuine issues of material fact."[8] Summary judgment will not be granted if there is a material fact in dispute or if "it seems desirable to inquire thoroughly into [the facts] in order to clarify the application of the law to the circumstances."[9] "All facts and reasonable inferences must be considered in a light most favorable to the non-moving party."[10]

         Discussion

         Steele argues that it is entitled to judgment as a matter of law based on breach of contract and the Construction Prompt Payment Act (the "Act"), 6 Del. C. § 3501 et seq.,[11] which is intended to protect contractors from owners or general contractors who fail to make timely payments.[12] Steele argues that under various provisions of 6 Del. C. § 3501 etseq., it is entitled to payment for the unpaid invoices plus interest, as well as reasonable attorney's fees.[13] Steele initially argued that 6 Del. C. §§3507, 3508, and 3509 apply to the case at bar.[14] In light of supplemental submissions from the parties, both sides agree that the "penalty and ...


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