IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
SC&A CONSTRUCTION, INC.,

Petitioner,

v. C.A. No. 10528-VCG
CHARLES POTTER, JR. and VELDA
C. JONES-POTTER, husband and Wife
and residents of the State of Delaware,

Respondents.
MEMORANDUM OPINION

Date Subrnitted: February 25, 2019
Date Decided: March 5, 2019

Donald L. Logan and Victoria K. Petrone, of LOGAN & PETRONE, LLC, New
Castle, Delaware, Attorneysfor Petitioner.

Samuel L. Guy, Of SAMUEL L. GUY, ATTORNEY AT LAW, Wilmington,
DelaWare, Attorneyfor Respondents.

GLASSCOCK, Vice Chancellor

This matter originally came before me on the Petitioner’s request to confirm
an arbitrator’s award in favor of SC&A Construction, Inc. (“SC&A”) and against
Charles Potter, Jr. and Velda C. Jones-Potter (the “Potters”). That arbitration Was
pursuant to a construction contract for Work purportedly performed by SC&A on
the Potters’ home. The Final AWard of` Arbitrator (the “Arbitrator’s AWard”),
dated September 23, 2014, is attached as Exhibit “A” to this Memorandum
Opinion. I confirmed the Arbitrator’s AWard by Order of January 6, 2016. The
Potters appealed the matter, and our Supreme Court affirmed on September 7,
2016. Thereafter, this matter Was closed. By Order of August 2, 2018, I reopened
this matter at SC&A’s request, in order to hear its current motion to enter a
supplemental order. The form of supplemental order attached to the “Petitioner’s
Motion to Reopen the Case and For Entry of an Order Transferring Judgment to
the Superior Court” is attached as Exhibit “B” to this Memorandum Opinion.
Upon consideration, the Motion to Reopen the case Was improvidently granted,
and the balance of SC&A’s Motion is denied.

I. BACKGROUND

This matter is, l believe, among the most procedurally complex With Which I
have been involved in my years on the bench. What follows is the briefest of
adumbrations of the procedural history. As described above, SC&A entered a

contract With the Potters for construction Work on their home in Wilmington. The

Potters were dissatisfied with the work, and declined to make payments under the
contract. SC&A pursued contractual arbitration and obtained the Arbitrator’s
Award attached as EXhibit “A.” SC&A then sought a mechanic’s lien in Superior
Court. That matter was stayed while SC&A attempted to confirm the Arbitrator’s
Award in this Court. As described above, I confirmed the Arbitrator’s AWard by
Letter Order. The Potters appealed that final Order to the Supreme Court. SC&A
did not seek a clarification of my Order. Nor did they assert to the Supreme Court
that further motion practice in this Court and a modified order were necessary to
their purposes, and that the matter should therefore be dismissed as an
interlocutory appeal. The Supreme Court accepted the appeal as an appeal of a
final order, considered the matter on the parties’ briefs, and affirmed my
confirmation of the arbitration award.

SC&A then pursued its mechanic’s lien action, using the Arbitrator’s Award
as confirmed by my Order. SC&A obtained a judgment for the amount of the
principal (with interest) in the Arbitrator’s Award against the Potters, a judgment
that, according to the parties, has been satisfied

At some point thereafter, SC&A asserts that it attempted to reduce my
confirmation Order to a second judgment, for those parts of the Arbitration Award
that allowed SC&A its attorneys’ fees and procedural costs before the Arbitrator.

According to SC&A, these had not been appropriate subjects of the mechanic’s

lien action, and it therefore needed to pursue another judgment for the roughly
$14,000 in fees and costs awarded by the Arbitrator. SC&A alleges that the
Prothonotary refused to- reduce my confirmation of the Arbitrator’s Award to a
second judgment, because my Order did not break out the award into damages
amenable to the mechanic’s lien action, and other sums. At least, that is my
understanding of what SC&A has attempted to explain to me about the
Prothonotary’s position. As a result, SC&A requested that I reopen the case and
issue the supplemental order represented in Exhibit “B.”l

II. ANALYSIS

This matter came before me for a very limited purpose: to confirm an
arbitration award. My review of an arbitrator’s award is necessarily limited-
otherwise, binding arbitration itself would be of limited utility. On January 6,
2016, I issued an order confirming the Arbitrator’s AWard, attached at exhibit “A,”
in full. SC&A did not seek a clarification of that Letter Order, nor did it seek a
supplemental order specifically referring to components of the Arbitrator’s Award.
When the Potters appealed this matter, SC&A did not indicate to the Supreme

Court that the matter was interlocutory and that it would be seeking a final order in

 

l Again, this is the briefest of adumbrations of the procedural history of this matter, based on
Counsels’ explanation at Oral Argument. It omits proceedings described to me by counsel
outside of this Court except those necessary to understand this motion, including appeals of
Superior Court actions to the Supreme Court.

a form different from that under appeal.2 If it had, the Potters could have opposed
entry of` such an order before me, to the extent they found appropriate They could
have then made the same arguments to the Supreme Court on appeal. In actual
fact, however, both parties treated my Letter Order as a final order, as did
apparently the Supreme Court.

SC&A had initially sought recovery via a mechanic’s lien action in Superior
Court. It was at the direction of that Court, I presume, that the mechanic’s lien
matter was stayed while SC&A sought confirmation of the Arbitration Award.
After receiving my confirmation of that award, affirmed by the Supreme Court,
SC&A returned to the Superior Court and successfully prosecuted the mechanic’s
lien action to a judgment, which has been satisfied The question before me is,
having chosen to pursue the litigation in the manner it did, may SC&A
successfully request to reopen this matter and have a modified order issued, so that
it can proceed to reduce it to an in personam judgment in the Superior Court for its
legal fees and costs in the arbitration action? I think the answer is no. The form of
order sought by SC&A, attached at exhibit “B,” represents relief not requested
during the course of this litigation. The Potters strenuously opposed entry of the
order for a variety of reasons by, including that the parties intended the satisfaction

of judgment in the mechanic’s lien action to be in complete satisfaction of all

 

2 See Del. Sup. Ct. R. 42.

issues raised in connection with their contract with SC&A. l am unable, on this
record, to tell whether any of the Potters’ purported defenses have merit; l can tell,
however, that should I enter the order, due process would require them to be able
to test the order’s validity in a Supreme Court appeal. The parties, however,
implicitly represented to the Supreme Court in the 2016 appeal from my
confirmation of the Arbitration Award that the Order was final. l believe that l am
procedurally barred from making any substantive amendment to my Final Order of
January 6, 2016.3 To the extent I have discretion to do so, I decline to exercise it.

III. CONCLUSION

Piecemeal litigation in the manner pursued here is unfair to the litigants and
inimical to judicial efficiency. SC&A chose a litigation strategy and pursued it,
successfully. lt must, however, be bound to the strategy it chose. Either my Final
Order of January 26, 2016 was satisfactory to its purposes, or it was not. If the

latter, the time for challenging that Order has long past.4 Accordingly, the

 

3 For example, in an analogous situation, when faced with a motion for reargument, Vice
Chancellor Parsons found that the Court could not modify an order that the Supreme Court had
already affirmed in its entirety. Nevins v. Bryan, 2006 WL 205064, at * 3 (Del. Ch. Jan. 20,
2006) (“Shortly thereafter, the Supreme Court affirmed the May Order in its entirety, including
my decision denying Nevins' request for attorneys' fees. Therefore, the May Order that Plaintiff‘s
motion for reargument ultimately seeks to modify is now a final, nonappealable order binding
upon Nevins. This Court cannot modify that Order.”).

4 See Tracey v. Frankll`n, 70 A.2d 250, 513 (Del. 1949) (“It was then that he should have sought
permission [to] amend by alleging any other circumstances of which he was aware and which
might affect the ruling of that Court. Instead, plaintiff appealed at once. We regard this action of
the plaintiff as an election to be bound by the final decision upon those facts which Were before
the lower Court. . . . To permit him to amend now under the circumstances of this case would
tend unduly to protract the course of litigation, Without corresponding advantage or benefit. This

Petitioner’s Motion seeking entrance of the Order attached at EXhibit “B” is
denied.

An appropriate Order is attached.

 

plaintiff had an opportunity, immediately after the decision of the Court below, to bring before
that Court the matters he now wishes to introduce but, instead of doing so, he elected to appeal.
Public policy demands that there should be a finality of litigation.”).

6

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
SC&A CONSTRUCTION, INC.,

Petitioner,

v. C.A. No. 10528-VCG

CHARLES POTTER, JR. and, VELDA
C. JONES-POTTER, husband and wife
and residents of the State of Delaware,

Respondents.
ORDER

AND NOW, this 5th day of March, 2019,

The Court having considered Petitioner’s Motion to Reopen the Case and for
Entry of An Order Transferring Judgment to the Superior Court, and for the
reasons set forth in the Memorandum Opinion dated March 5, 2019, IT IS
HEREBY ORDERED that:

1. Petitioner’s Motion is DENIED.

SO ORDERED.

/s/ Sam Glasscock III

Vice Chancellor

EXHIB|TA
EFiled: Aug 21 2015 09: 429;;1»\=§_\$'

Transaction |D 57754112
Case No. 10528-VCG

AMERICAN ARBITRATION ASSOCIATION
Construction Arbitration Tribunal

 

ln the Matter of the Arbitration Between:

SC&A CONSTRUCTION, lNC.

CONS'[RUCTION
Regular Track
Clairnant
and
No. 14 527 00066 13/14-20-1300~0066
CHARLES & VELDA POTTER
Respondents

FINAL AWARD OF ARBITR_ATOR

I, THE UNDERSIGNED ARBITRA'TOR, having been designated in accordance With the
arbitration agreement between the above-named parties and dated May 12, 2011, and having
been duly sworn, and having'fully‘considered'the testimony, evidence and"documents presented
at the hearings held in this matter on May 13, 2014, May 14, 2014, May 16, 2014, May 20, 2014,
May 21, 2014, May 22, 2014, June 12, 2014 and June 13, 2014, and having observed existing
construction conditions at a project site visit on June 17, 2014, do hereby FIND and AWARD as

follows:

Cl_aimant represented by Donald Logan, Esq.
Respondents represented by Samuel Guy, Esq.

1. On Clairnant’s breach of contract claim against Respondents, I find in favor of
Claimant and against Respondents in the amount of $86,544.78, plus continuing interest @ 1.5%
per month from October 1, 2014 until receipt of final payment at 530.49 per day, which amount
has been computed as follows:

Contract Iterns

 

(1) Contract balance due (Exhibit C-lO $61,823.74
Payment Applications and Certificates for
Payment)

(2) Interest @ 1.5% per month (Agreement, $24,721.04
1[4.1.5) from July 10, 2012 (Agreement
1]4.1.3) to September 30, 2014

(3) Continuing interest @ 1.5% per month $30.49 per day
from October 1, 2014 until receipt of final
payment

 

 

 

 

 

 

 

 

14 527 00066 13/14~20-1300-(_)066 ' Page 1

 

 

2. On Respondents’ Counterclaims against Claimant, I find in favor of Clai_rnant and
against Respondents as follows:

 

 

 

 

 

 

(l) Roof replacement $ - 0 -

(2) Nullification of previously approved $ - 0 -
payments

(3) Sum.rnary table of damages $ - 0 -
($270,741.00) requested in Respondents’
closing brief

 

 

3. Claimant’s motion for attorney’s fees i`s GRANTED in the amount of$10,500.00.

4. All Other claims, defenses and counterclaims of the parties are DENIED.

Accordingly, I AWARD as follows:

(1) Respondents shall pay to Claimant the amount of
Eighty-Six Thousand Five Hundred Forty-Four Dollars

and Seventy Eight Cents ($86,544.78) plus continuing
interest @ 1.5% per month from October 1, 2014 until
receipt of final payment at $30.49 per day;

_(2) Respondents shall pay to Claimant attorney’s fees in the'
amount of $10,500.00.

5. Upon receipt of full and final payment of this Award, Claimant shall take all
necessary and appropriate steps to cause satisfaction and discharge of the Mechanics’ Lien Claim
filed against Respondents in the Superior Court in the State of Delaware in and for New Castle
County, Case No. N12L~09-0222 DCS (Exhibit C-l).

6. ` The administrative fees of the American Arbitration 'Association totaling
$7,925.00 and the compensation and expenses of the Arbitrator totaling $2_8,423.84 shall be
apportioned between the parties, 30% to the C_laimant and 70% to the Respondents, and paid as
directed by the Association. Therefore, Respondents shall reimburse Claimant the sum of
$4,582.26, representing that portion of said fees previously incurred and paid by Claimant.

This AWard is in full settlement of all claims and counterclaims submitted to this
Arbitration. All claims not expressly granted herein are hereby DENIED.

Date: 301 é_‘w …,fl

E. Gerald Donnelly,.lr. l )f/ l.f \ '
Arbitrator

 

~14 527 00066 13/14-20-1300-0066 - rage 2

 

 

 

EXH|B|T B

EFiled. Ju125 2018 04: 00ng er>`;"~
Transaction |D 62275044 ,'-_-,-.-.".`;# .. l
. “__. l _j

IN THE CoURT oF CHANCERY oF THE sTK$i§aN<_°)F i)sl§i'X%\§ARE *»/

SC&A CONSTRUCTION, INC.

a Delaware corporation, C.A. : 10528-VCG

Petitioner,
vs.

CHARLES POTTER, JR. and
VELDA C. JONES-POTTER, husband and )
wife and residents of the State of Delaware, )

)
Respondents. )
ORDER
AND NOW, this day of 2018, the Court

 

having issued its Letter Decision dated January 6, 2016, IT IS HEREBY

ORDERED that:
1. This case is re-opened; and
2. Judgment is entered in favor of SC&A Construction, Inc. and against

Charles Potter and Velda C. Jones-Potter, individually, in the amount of
$15,082.26 (representing attorney’s fees in the amount of $10,500.00 and
administrative fees in the amount of $4,582.26; the principal judgment amount of
$86,544.78 and interest having already been paid). The effective date of the
judgment shall be September 23, 2014. The judgment shall be transferred to the
Superior Court of New Castle County for execution.

IT IS SO ORDERED.

 

Vice Chancellor Sam Glasscock III

