Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

The Washington House Condominium, Association of Unit Owners v. Environmental Materials, LLC

Superior Court of Delaware

October 31, 2019

THE WASHINGTON HOUSE CONDOMINIUM, ASSOCIATION OF UNIT OWNERS, et al. Plaintiffs,
v.
ENVIRONMENTAL MATERIALS, LLC d/b/a ENVIRONMENTAL STONEWORKS, a Delaware Limited Liability Company, Defendant/Third-Party Plaintiff,
v.
DAYSTAR SILLS, INC., a Delaware Corporation, et al. Third-Party Defendants.

          Submitted: June 21, 2019

         Defendants' Architectural Concepts, P.C.'s and Avalon Associates of Maryland, Inc.'s Motions to Dismiss the Third-Party Complaint GRANTED IN PART - DENIED IN PART

          Elizabeth Wilburn Joyce, Esquire; Pinckney, Weidinger, Urban & Joyce LLC, Attorney for Plaintiffs The Washington House Condominium Association of Unit Owners and William and Tamara Montgomery.

          Susan List Hauske, Esquire; Tybout, Redfearn, & Pell, Attorney for Defendant/Third-Party Plaintiff, Environmental Materials, LLC d/b/a Environmental Stone Works.

          Andrew J. Connolly, Esquire; Post & Schell, P.C., Attorney for Defendant/Third-Party Plaintiff, Environmental Materials, LLC d/b/a Environmental Stone Works.

          Patrick M. McGrory, Esquire; Tighe & Cottrell, P.A., Attorney for Defendant Architectural Concepts, P.C.

          David L. Baumberger, Esquire; Chrissinger & Baumberger, Attorney for Defendant Avalon Associates of Maryland, Inc.

          MEMORANDUM OPINION

          William C. Carpenter, Jr., Judge

         Before the Court is Defendant Architectural Concepts, P.C.'s ("AC") Motion to Dismiss Environmental Materials, LLC d/b/a Environmental Stone Works' ("ESW") Third-Party Complaint. Defendant Avalon Associates of Maryland, Inc. ("Avalon") adopts and joins in AC's Motion to Dismiss for the same facts and grounds presented in AC's Motion, as they are in like position with regard to the Third-Party Complaint.

         For the reasons set forth in this Opinion, AC and Avalon's Motions to Dismiss the Third-Party Complaint are GRANTED IN PART AND DENIED IN PART.

         I. FACTUAL & PROCEDURAL BACKGROUND

         The Court has rehashed the factual background of this case several times in prior Opinions, and it will only provide a brief recitation of the facts most relevant to the pending Motions.[1] This litigation arises from the allegedly defective design and construction of Washington House Condominium ("Washington House") in Newark, Delaware.[2] On January 14, 2015, Washington House Condominium Association of Unit Owners ("Plaintiffs") filed a complaint (the "Complaint") against six defendants to recover more than $7 million in repair costs and related expenses arising from design and construction defects at Washington House.[3]

         Daystar Sills, Inc. ("Daystar") served as the developer, builder, and general contractor for the condominium project, and was one of the six defendants named in Plaintiffs' Complaint.[4] Daystar hired ESW to install the exterior masonry veneer, which is the primary construction issue, at Washington House.[5] ESW hired subcontractors AC and Avalon, among others, to perform the work done at the condominium project.[6]

         On January 30, 2009, ESW instituted a mechanics' lien action against Daystar because it had not been paid for its exterior work on the condominium.[7] In response, Daystar filed a counterclaim against ESW, alleging breach of contract, breach of express and implied warranties, and negligence.[8] The parties entered into arbitration to resolve their dispute, agreeing that it would serve as a final adjudication on the matter.[9] On January 6, 2012, the arbitrator entered a final order requiring ESW to pay $400, 000 to Daystar, which was satisfied on March 2, 2012.[10]

         A. Instant Litigation

         On January 14, 2015, Plaintiffs filed their Complaint and named ESW as one of the six defendants.[11] This Court initially dismissed Plaintiffs' Complaint against Defendant ESW on the basis of res judicata in its October 28, 2015 Opinion.[12]Plaintiffs executed settlement agreements with the Defendants, other than ESW, on October 27, 2017.[13] On November 13, 2018, this Court granted Plaintiffs' Motion for Revision of the Court's Interlocutory Order Dismissing Plaintiffs' Complaint Against ESW.[14] New evidence, which was not available to the Court at the time of its 2015 decision, refuted a finding of privity between Plaintiffs and Daystar for res judicata purposes.[15]

         On December 7, 2018, ESW filed a Third-Party Complaint against AC and Avalon, as well as other subcontractors. The Third-Party Complaint includes allegations of negligence, breach of contract, breach of warranties, and seeks contribution and indemnification.[16] AC filed a Motion to Dismiss the Third-Party Complaint on the basis of the release that was executed as part of their settlement agreement with the Plaintiffs. Avalon joined in AC's Motion to Dismiss for the same facts and grounds presented in AC's Motion, as they are in like position with regard to the Third-Party Complaint. This is the Court's decision on AC and Avalon's Motions to Dismiss.

         II. STANDARD OF REVIEW

         When considering a Rule 12(b)(6) motion to dismiss, the Court "must determine whether the claimant 'may recover under any reasonably conceivable set of circumstances susceptible of proof."'[17] It must also accept all well-pleaded allegations as true, and draw every reasonable factual inference in favor of the non-moving party.[18] At this preliminary stage, dismissal will be granted only when the claimant would not be entitled to relief under "any set of facts that could be proven to support the claims asserted" in the pleading.[19]

         III. DISCUSSION

         A. §6306(b) as a Bar to Independent Action for Contribution In Delaware, 10 Del. C. §6306 governs third-party practice. It provides:

         (b) A pleader may either:

(1) State as a cross-claim against a coparty any claim that the coparty is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant; or
(2) Move for judgment for contribution against any other joint judgment debtor, where in a single action a judgment has been entered against joint tortfeasors one of whom has discharged the judgment by payment or has paid more than his or her pro rata share thereof.
If relief can be obtained as provided in this subsection no independent action shall be maintained to enforce the claim for contribution.[20]

         AC and Avalon assert that the final sentence of §6306(b) prevents ESW from bringing an independent action for contribution.[21] They argue that ESW had the ability to obtain relief under one of the permissive alternatives presented by §6306(b), but failed to "file cross-claims in the underlying action when it had the ability to do so."[22] The Defendants contend that ESW "remained a co-party in the Plaintiffs' original action" and "could have filed a cross-claim at any point between January 2015 and March 2018."[23] By failing to do so, Defendants allege the claim is barred by the "mandatory aspect" of the last sentence of §6306(b).[24]

         In response, ESW maintains that the dismissal of Plaintiffs' claims against ESW in 2015 "prevented ESW from asserting any claims against other parties, including for indemnification and/or contribution."[25] It is ESW's position that it was not a co-party to the litigation after its dismissal and §6306(b) is not applicable.[26] As such, only upon this Court's 2018 revision of the interlocutory order dismissing ESW did the claims become ripe.[27] Accordingly, ESW argues its "only way to assert those claims" is through a third-party complaint.[28]

         The Court agrees with ESW. It was not a party to the litigation during the 2015-2018 time frame after it was dismissed from the suit on October 28, 2015. Until the revised order in November 2018, ESW was no longer involved in the litigation and could not have brought cross claims against the other parties. Within one week of filing its Answer to Plaintiffs' Complaint, ESW filed its Third-Party Complaint ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.