SUPERIOR COURT
oFTHE

STATE OF DELAWARE

E. SCOTT BRADLEY l The Circle, Suite 2

JUDGE GEORGETOWN, DE 19947
TELEPHONE (302) 856-5256

_,1
January 16, 2019 § §§

Ryan M. Ernst, Esquire John A. Sergovic, Jr., Esquire§ §§
O’Kelly Ernst & Joyce, LLC Sergovic Carmean Weidman § §§
Suite 1000 McCarthy & Owens, P.A. ]> §§
901 North Market Street 406 South Bedford Street § §§
wilmington DE 19802 P.o. BOX 751 m "<§
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Georgetown, DE 19947
Re: Think Architecture, LLC v. Cheer, Inc. and

Cheer Apartments, L.P.
Civil Action No. Sl SL-OS-OSO ESB

Dear Counsel:

This is my decision on the Motion for Judgrnent on the Pleadings filed by
Defendants Cheer, Inc. and Cheer Apartments, L.P. against Plaintiff Thinl<
Architecture, LLC in this mechanics’ lien action involving the unbuilt Cheer Life
Care Village in Georgetown, Delaware. Think Architecture is an architectural lirm.
Cheer, Inc. is the owner of 35 acres of land in Georgetown, Delaware. Cheer
Apartments is the owner of 6.2 1 43 acres of land in Georgetown, Delaware. The lands
owned by Cheer, Inc. and Cheer Apartments are contiguous to each other. The Cheer

Life Care Village is an unbuilt facility that would lie within the lands of both Cheer,

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Inc. and Cheer Apartments. Think Architecture alleges in its Complaint that Cheer,
Inc. and Cheer Apartments contracted with RRR, LLC for a development project _
presumably the Cheer Life Care Village - and that RRR, LLC in turn entered into a
subcontract with Think Architecture for architectural services. Think Architecture
further alleges that it prepared for RRR, LLC a Master Plan Design and Rendering
of the Cheer Life Care Village for $40,414.31. Think Architecture seeks a
mechanics’ lien in the amount of $40,414.31 on the Defendants’ lands. Think
Architecture is entitled to pursue a mechanics’ lien pursuant to 25 Del. C. §2702(b),
which allows architects to pursue a mechanics’ lien for “services rendered and labor
performed and materials furnished by” them.
STANDARD OF REVIEW

A party may move for judgment on the pleadings pursuant to Civil Rule 12(c).l
In determining a motion under Civil Rule 12(c) for judgment on the pleadings, the
Court is required to view the facts pleaded and the inferences to be drawn from such
facts in a light most favorable to the non-moving party.2 The Court must take the

well-pleaded facts alleged in the complaint as admitted3 When considering a motion

 

' Superior Court Civil Rule 12(c).

2 Desert Equities, Inc. v. Morgan Stanley Leveraged Equily Fund, II, L.P., 624 A.2d
1199, 1205 (Del. 1993).

3Ia'.

under Civil Rule 12(c), the Court also assumes the truthfulness of all well-plead
allegations of fact in the complaint.4 The Court must, therefore, accord plaintiffs
opposing a Rule 12(c) motion the same benefits as a plaintiff defending a motion
under Civil Rule 12(b)(6).5 The Court may grant a motion for judgment on the

pleadings only when no material issue of fact exists and the movant is entitled to

judgment as a matter of law.6

DISCUSSION
1. Improvements To Land Onl_v.
The Defendants argue that 25 Del. C. §2703 bars Think Architecture’s
Complaint for a mechanics’ lien. Section 2703 provides:

No lien shall attach in case the improvements are to the
land alone, unless a contract in writing, signed by the owner or
owners thereof, setting forth the names of all parties to the
contract and containing a description by the metes and bounds
of the land to be affected and by a statement of the general
character of the work to be done, and of the total amount to be
paid thereunder, and the amounts of the partial payments,
together with the time when such payments shall be due and
payable.

The Defendants argue that Think Architecture’s architectural services were

 

4 McMillan v. Intercargo Corp., 768 A.2d 492, 500 (Del. Ch. April 20, 2000).
5 Ia’.
6 Deserz‘ Equities, Inc., 624 A.2d at 1205.

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improvements to land alone and that there is no written contract between the
Defendants and Think Architecture. Think Architecture prepared a Master Plan
Design and Rendering of the Cheer Life Care Village. This is a drawing showing the
possible location of buildings, roads, parking lots, a lake, and storm water
management pond. However, none of this has been built. Thus, in a physical sense,
there have been no improvements to the Defendants’ lands. Given this, the
Defendants’ argument fails.

2. M.

The Defendants argue that Think Architecture did not file its Complaint in
time. 25 Del. C. §2711(b) requires a mechanics’ lien complaint to be filed within
“120 days from the date from the completion of the labor performed or from the last
delivery of materials furnished by them respectively.” Think Architecture filed its
Complaint on August 28, 2018. The Defendants allege that Think Architecture
completed its work on January 31, 2018. This allegation is based on the date of
Think Architecture’s invoice to RRR, LLC. The invoice is actually dated January
31, 2017. Regardless of whether it is 2017 or 2018, Think Architecture’s Complaint
would be untimely based on the invoice date. However, Think Architecture’s
Complaint alleges that it finished its work on May 4, 2018, making its Complaint

timely-filed. Given the conflict about the date of completion of Think Architecture’ s

work, I cannot rule on this argument at this time.
3. No Bill Of Particulars.

The Defendants argue that 25 Del. C. §2712(b)(4) required Think Architecture
to attach a bill of particulars to its Complaint. The Defendants argue further that
anyone filing a mechanics’ lien complaint must file a bill of particulars unless they
had a written contract directly with the owner of the structure In other words, the
Defendants argue that all subcontractors must file a bill of particulars Think
Architecture did not file a bill of particulars 1 do not read §2712 that way. Section
2712 (b)(l)-(b)(4) state as follows:

(b) The complaint and/or statement of claim
shall set forth:

(1) The name of the plaintiff or claimant;

(2) The name of the owner or reputed owner
of the structure;

(3) The name of the contractor and whether
the contract of the plaintiff-claimant was made with such
owner or his agent or with such contractor;

(4) The amount claimed to be due, and, if
the amount is not fixed by the contract, a statement of the
nature and kind of the labor done or materials furnished
with a bill of particulars annexed, showing the kind and
amount of labor done or materials furnished or
construction management services provided; provided,
that if the amount claimed to be due is fixed by the
contract, then a true and correct copy of such contract,

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including all modifications or amendments thereto, shall
be annexed;

Under (b)(3) you can have a contract between the owner of the structure and a
contractor and a contractor and subcontractor. The reference to “contract” in (b)(4)
is not specific to just the contract between the owner of the structure and the
contractor. Think Architecture complied with (b)(3) because it alleged in its
Complaint that its contract was with the contractor, which was RRR, LLC. Think
Architecture complied with (b)(4) because the amount due it from RRR, LLC was
fixed by its contract with RRR, LLC and Think Architecture attached that contract
to its Complaint. This interpretation of (b)(4) was followed inA&EDrywall Services,
LLC v. Eugene A. Delle Donne & Son, LP.7

4. Structures.

The Defendants argue that 25 Del. C. §2713 required Think Architecture to
allocate its mechanics’ lien claim across the “proposed” structures. Section 2713
states:

In every case in which 1 claim for labor or
materials is filed by the same person against 2 or more
structures owned by the same person for building,
altering or repairing 2 or more structures owned by the

same person, the claimant shall, at the time of filing such
joint claim, designate the amount which the claimant

 

7 2010 WL 4483233, at *4 (Del. Super. Oct. 29, 2010).
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claims to be due to that claimant on each of such
structures.

There are no structures on the property owned by the Defendants. There are
only drawings of structures Thus, there is no way for Think Architecture to allocate
its mechanics’ lien claim across non-existent structures.

5. Oua.lification 'l`o Do Business.

The Defendants argue that Think Architecture is not authorized to use the
Delaware courts because it was not qualified to do business in Delaware when it filed
its Complaint. Think Architecture is a Pennsylvania limited liability company. 6 Del.
C. §18-907(a) prohibits a foreign limited liability company from maintaining any
action, suit or proceeding until it has registered to do business in Delaware. Think
Architecture qualified to do business in Delaware on October 2, 2018. The
Defendants argue that this is not sufficient, reasoning that Think Architecture had to
qualify to do business within 120 days of completing its work. I disagree. The rule
is that a foreign company that was not qualified to do business in Delaware when it
filed suit may cure that defect by obtaining a current business license and complying

with §18-907(a).8 Think Architecture has done that.

 

8 Hudson Farms, Inc. v. McGrellis, III, 620 A.2d 215, 216 (Del. 1993).

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6. Allocation Across Parcels.

The Defendants argue that Think Architecture had to allocate its mechanics’
lien claim across the two parcels of land owned by the Defendants. I have concluded
that the Defendants’ argument does not recognize the unique realities of this case.
The two parcels of land owned by the Defendants would both be used for the Cheer
Life Care Village, which is an integrated facility. It appears that some of the
buildings are located on both parcels. Certainly, the roads, parking lots, lake and
storm water management pond are all shared. Put another way, the Cheer Life Care
Village is not two separate and distinct facilities located on two separate parcels of
land. Think Architecture alleges in its Complaint that it did work for one
development project that sits on two parcels of land. Given the Complaint’s
allegations and the manner in which the Cheer Life Care Village is proposed to be
built, any allocation of Think Architecture mechanics’ lien across the Defendants’
two parcels of land would be arbitrary.

This case is unusual in the sense that the services provided by Think
Architecture are just drawings and that nothing has been built on the Defendants’
lands. These drawings are typically used as a part of the land development process.
As such, they have many uses, ranging from being used for obtaining the required

government approvals to the actual construction of the proj ect. Thus, the bigger issue

seems to be whether Think Architecture has actually provided any services to the
Defendants that were, in the first instance, part of the alleged contract between the
Defendants and RRR, LLC. Think Architecture alleges that it has done so. Whether
it has done so and to what degree will have to be fleshed out through discovery.
C_OM)M

I have denied the Motion for Judgment on the Pleadings filed by Defendants
Cheer, Inc. and Cheer Apartments, L.P. against Plaintiff Think Architecture, LLC.

IT IS SO ORDERED.

Very truly yours,
/ ¢/

E. Scott Bradley
ESB :jwc

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