IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

G. FEDALE GENERAL
CONTRACTORS, LLC, D/B/A,
G. FEDALE ROOFING AND
SIDING CONTRACTORS,

Plaintiffs

V.

    

ARTHUR SCOTT PRELLE,
NIAZ A. MALH<, AND
WELLS FARGO BANK, N.A,

¢4’

Defendants.

\_/\_/\/\_/\./\_/\/\_/\_/\_/\_/\_/\./\_/\/

C.A. No. CPU4-16-001553

Submitted: April 20, 2018
D€cid€d: August 28, 2018

George T. Lees HI, Esquire

On€ Corporate Commons

100 \X/. Commons Blvd., Suite 435
New Castle, DE 19720
/lzfomgyfor P/czz`mzjj§`

Arthur Scott Prelle
110 Regents COurt
Malvern, PA 19355
Pro 56 D€/endmz¢

Geoffrey G. Grivner, Esquire
Buchanan lngersoll & Rooney, P.C.
919 North Market Street, Suite 1500
Wilmington, DE 19801

AiloM@/for Dé]%nd¢ml We//J Fm;go

Niaz A. Malik

31 Berming Road
Claymorlt, DE 19703
Pro 56 Dz%mdanf

MEMORANDUM OPINION AND ORDER ON PLAINTIFF’S MOTION FOR
]UDGMENT ON THE PLEADINGS AND SUMMARY ]UDGMENT
AND MOTION FOR SANCTIONS

SMALLS, C.J.

FACTUAL AND PROCEDURAL HISTORY

This matter is back before the Court on G. Fedale Roofing and Siding Contractors
(“Plaintiff”) motion for ]udgment on the Pleadings pursuant to Court of Common Pleas
Civil Rule 12(c); Summary ]udgment pursuant to Court of Common Pleas Civil Rule 56; and
Sanctions pursuant to Court of Common Pleas Civil Rule 37, against Defendant Arthur
Scott Prelle (“Prelle”) for failure to comply with the Court’s several orders directing
responses to discovery by Plaintiff.

The facts that give rise to these proceedings indicate that Plaintiff contracted with
Prelle and American Holly, LLC. (“American Holly”) to install a roof and make certain
repairs on the property located at 149 Honeywell Drive in Claymont, Delaware. Plaintiff
was unaware that during the contract negotiations, Defendant Wells Fargo (“Wells Fargo”)
had initiated foreclosure proceedings and ultimately foreclosed on the property, which was
sold at sheriffs sale. Plaintiff continued working on the property after the new owner,
Defendant Niaz A. Malik (“Malik”) purchased the property at sheriffs sale. On September
3, 2015, Plaintiff submitted an invoice to Prelle and American Holly following the
completion of the work. Prelle and American Holly failed to pay the agreed contractual
amount of $15,483.00.

On June 3, 2016, Plaintiff initiated this action for breach of contract, Quantum
Meruit, and Fraud against Defendants Prelle, American Holly, Malik, and Wells Fargo
(collectively “Defendants”). Plaintiff seeks judgment in the amount of $15,483.00, interest,

attorney’s fees, and costs.

As of ]une 9, 2015, during the period when the property was owned by Prelle and
American Holly, the property was insured through Donegal lnsurance Group (“Donegal”).
The property was subsequently sold at sheriffs sale to Malik. During foreclosure
proceedings, Plaintiff alleges Prelle filed a claim with Donegal and insurance proceeds were
paid to Prelle and American Holly. Plaintiff avers the payments received from the insurer of
the property were intended to pay for the work performed by Plaintiff. Prelle endorsed,
deposited, and negotiated the checks from the insurer but failed to pay for the services
performed under the contract.

On June 28, 2016, Malik filed an Answer denying any knowledge of Plaintiff and / or
the contract to repair the roof. On August 4, 2016, Wells Fargo filed an Answer and Cross-
claim. Wells Fargo denied the substantive allegations, claiming it foreclosed Prelle’s property
in accordance with Delaware law, and otherwise acted reasonably. On its cross-claim, Wells
Fargo seek contribution and indemnification from American Holly in the event it is found
liable.

On January 26, 2017, Prelle filed a Motion to Dismiss for Lack of Personal
Jurisdiction, which was denied. On February 17, 2017, Malik filed a Motion to Dismiss,
arguing he was never a party to the original contract between Prelle and Plaintiff. Malik
maintains he purchased the house “as is” at a sheriff sale. Furthermore, Malik contends he
purchased the house after the roof was installed, and never saw anybody working on the
roof. Malik argued he is a blameless third party, and moves the Court dismiss him as a party

Defendant.

C)n February 28, 2017, Prelle filed an Answer on behalf of American Holly and
himself, denying all substantive allegations Prelle’s Answer states that ARTHUR SCOTT
PRELLE, a.k.a Arthur S Prelle, is a fictitious name, duly registered with a registration of
trade, business, and fictitious name that is publicly recorded with the prothonotary of the
Superior Court. Prelle also raised a number of affirmative defenses.

On March 3, 2017, the Court held a hearing on l\/lalik’s Motion to Dismiss. During
the hearing, counsel for Plaintiff stated that Prelle filed a motion to move the proceeding to
the Federal District Court for Delaware. As a result, this Court issued an order staying this
matter until May 19, 2017. On April 13, 2017, the District Court issued an order remanding
the case back to this Court holding that the Federal Court lack subject matter jurisdiction

On l\/lay 17, 2017, Plaintiff filed a Motion to Strike the Answer of American Holly on
the basis that the answer was filed by Prelle, who is not a licensed attorney, and as such may
not represent an artificial business entity.

On June 28, 2017, Prelle filed a response on behalf of American Holly and himself,
claiming “all persons who are capable of acting for themselves, and even those who are
disqualified from acting in their own capacity, infants of a proper age and femes converts,
may act as attorneys of others.”

Additionally, on ]une 28, 2017, American Holly, through Prelle, filed a response
opposing Plaintiff s Motion to Strike and a Motion to Intervene on behalf of American
Holly. In support of its motion, Prelle claimed that this action is a representative suit against
American Holly and because Prelle has a financial equitable interest in said action, he should

be able to intervene on behalf of American Holly. Prelle further argues that American Holly

is too impoverished to hire an attorney. Prelle attached a notarized Power of Attorney for
American Holly appointing Prelle to act as its agent.

Additionally, on ]une 28, 2017, Prelle filed a Motion to Compel, alleging he has not
been served with any of Malik’s documents filed with the Court. Prelle sought to compel
the production of these documents and reasonable attorney’s fees.

Further, Prelle filed several other motions labeled Objection to Misjoinder and Non-
Joinder of Parties, arguing that AMERICAN HOLLY, LLC does not exist as an entity, and
that AMERICAN HOLLY LLC was not joined as a proper party. Prelle argues that serving
the Secretary of the State of Delaware is not proper service for AMERICAN HOLLY LLC.
Prelle moves for leave to remove the non-existent “AMERICAN HOLLY, LLC” and join
“AMERICAN HOLLY LLC.” Further, Prelle seeks to join the C.E.O. of the State of
Delaware, claiming he is the agent or principal for AMERICAN HOLLY LLC. Prelle also
seeks to join the insurance company identified in the Complaint and the Secretary of State
for the United States of America.

Lastly on June 28, 2017, Prelle filed a Motion to Dismiss for Plaintiff s failure to state
a claim upon which relief can be granted. Prelle challenges the lawful definition of the “$”
symbol. Prelle argues Plaintiff cannot establish what the “$” symbol represents under the
constitution, and therefore did not specify any damage or lawful money owed. Furthermore,
Prelle, for the second time alleges that this court lacks jurisdiction over the artificial entity
‘ARTHUR SCOTT PRELLE,’ and the proper party is actually ‘Arthur Scott Prelle.’ Prelle
claims ‘ARTHUR SCOTT PRELLE’ is “a private trust owned by the United States to which

‘Arthur Scott Prelle’ possesses good title certified and guaranteed by the U.S. Departrnent of

State. Prelle argues the Court has no jurisdiction over the property of U.S. government, i.e.

‘ARTHUR SCOTT PRELLE’.

On September 1, 2017, the Court denied Malik’s Motion to dismiss him as a party

and set a new date to address the other motions. On September 15, 2017, Prelle filed a

Motion to Dismiss alleging prosecutorial misconduct which was immediately denied. On

October 17, 2017, following a hearing, the Court ordered as follows:

1)
2)

3)

4)

5)

6)

7)

As to Prelle’s Motion to Continue, the motion is MOOT;

As to Prelle’s Motion to Compel, the motion is GRANTED. Malik is
to provide copies of his Answer and the Motion to Dismiss to Prelle;
As to Prelle’s Motion for Misjoinder of American Holly, LLC., the
motion is DENIED. In Delaware, artificial entities are required to be
represented by an attorney and Prelle is not an attorney admitted to the
Delaware Bar. Further, the comma in American Holly, LLC. does not
raise a legal issue sufficient to support the motion;

As to Prelle’s Motion for Nonjoinder, the motion is DENIED.

Prelle’s motion to join the “CEO of the State of Delaware,” failed to
identify such actual person exist. In addition, there is no basis to join
the Insurance Company identified in the complaint in order to show
they provided two checks to Prelle since this is not an issue in this case.
Furthermore, Prelle failed to provide a valid reason why the Secretary
of State for the United States of American is a proper party subject to
joinder;

As to Prelle’s Motion to Dismiss for Failure to State a Claim, the
motion is DENIED. I find that under the totality of the
circumstances, the lack of definition for the “$” is not a basis to
dismiss the case for failure to state a claim for which relief can be
granted;

As to Prelle’s Motion to Dismiss for Lack of ]urisdiction, the motion is
DENIED. Prelle’s argument that he cannot be sued as a U.S. citizen
lacks merit and his conclusion that Prelle is not “the United States of
America,” is not supported;

As to Prelle’s Motion to Intervene on Behalf of American Holly, LLC.,
the motion is DENIED. Prelle is not a Delaware Licensed Attorney
and cannot represent an artificial entity in the Court of Common Pleas
under Delaware Law1 ; and

 

1 5 er Tmmpo@/mer Indm. Im‘., y. C/ya})e/ Maz'n ijb., 582 A.2d 936 (Del. 1990).

5

8) As to Fedale’s Motion to Strike the Answer of American Holly, the
motion is GRANTED. The answer filed by American Holly, LLC.
was not filed by a licensed Delaware Attorney. As an artificial entity,
American Holly, LLC. can only appear through an attorney. American
Holly, LLC was given twenty (20) days from the date of this order to
secure counsel and file a responsive pleading.

On October 18, 2017, Plaintiff served its fir_st Interrogatories, Requests for
Production, and Requests for Admission. Prelle objected via letter pursuant to CCP Civil
Rule 28 and 12 De/. C. § 3805, which are both improper objections.

On or about October 24, 2017, Prelle filed a “notice of objection to notice of
deposition” which purported to object to Plaintiffs lnterrogatories, Requests for Production
and Requests for Admission on the grounds that “he has a financial interest under Rule 28(c)
and 27 Laws, c. 279 §3805.” On November 20, 2017, Plaintiff filed a l\/[otion to Compel.
On November 29, 2017, Prelle filed amended Answers to Plaintiff s Interrogatories,
Productions, and Admissions but simply re-stated the improper objections with no legal
basis. On December 5, 2017, Plaintiff filed an Amended l\/Iotion to Compel requesting
attorney’s fees. On December 6, 2017, Prelle submitted his md Answer to Plaintiff s
Interrogatories, Productions, and Admissions, again his objection being based upon his deed
of trust and Rule 28(c).

On December 15, 2017, the Court entered a Default ]udgment against American
Holly, LLC., in the amount of 819,069.18 for failure to obtain an attorney and file a

responsive pleading as ordered by the Court and required by Court of Common Pleas Civil

Rule 12(a).2 ln addition, the Court concluded that Prelle’s pleadings in these pretrial matters

 

ZId.

were voluminous and they were not entered in the E-filing system, requiring the court to
perform such tasks. Therefore, any future filing by Prelle is to be processed with E-filing
costs paid.

ln addition, on December 15, 2017, this Court granted Plaintiff s Motion to Compel
ordering Prelle to provide complete answers to lnterrogatories and Responses to Requests
for Productions, without objection, within five (5) days. On December 27, 2017, Prelle sent
the Court his birth certificate as payment in full for the judgment against American Holly.

On December 22, 2017, Prelle filed his m Answer to Plaintiff s lnterrogatories,
Productions, and Admissions. This time Prelle objected by pleading his right not to testify
against himself under the Fifth Amendment to the Constitution of the United States.

On january 10, 2018, Prelle filed his M Answer to Plaintiff s First Set of Requests
for Production and Second set of Requests for Admission. Prelle’s objection claims Plaintiff
seeks information protected by the attorney-client privilege, the work-product privilege,
private trust privilege, or any other privilege under governing law. Prelle further objects that
the Interrogatories and Requests are overbroad, unduly burdensome, oppressive, and / or
seek information that is not relevant to the issues in this lawsuit. ln addition, Prelle claims
the requests are duplicative or obtainable from some other source that is more convenient,
less burdensome, or less expensive Furthermore, Prelle states “No documents are
responsive and relevant.” Again, Prelle pleads his right not to testify against itself under the
Fifth Amendment to the United States Constitution in his answers to Plaintiffs request for

approved check signatures

On ]anuary 17, 2018, Prelle filed his w Answer to Plaintiff s First Set of
Interrogatories and Requests for Production and Second Set of Requests for Admission.
Prelle claims Plaintiff has failed to mitigate damages by failing to collect from Defendants
Malik and \X/ells Fargo. Prelle also objects under §7 of the Privacy Act of the United States
and 8 De/. C. §145. In addition, Prelle claims he is “without sufficient knowledge to answer”
and “Plaintiff fails to state what specie to pay.” Ultimately, Prelle claims to have never
contracted with Plaintiff and he is without sufficient knowledge as to anyone who did. Prelle
declares at all times he was acting as an Agent for Arnerican Holly,

On January 29, 2018, Prelle filed an Amended Answer to Plaintiffs First Set of
Interrogatories and Requests for Production and Second Set of Requests for Admission.
Again, Prelle claims he is without sufficient knowledge to answer and reserves his right not
to testify against itself under the Fifth Amendment. Also, Prelle reiterates his prior answers.

On March 2, 2018, Plaintiff filed a Rule to Show Cause and Compel based upon
Prelle’s refusal to comply with the Court’s order to provide appropriate responses to
lnterrogatories, Requests for Production and Requests for Admission. On March 19, 2018,
the Court granted Plaintiff s Motion to Compel ordering Prelle to provide complete answers
within five (5) days. The order stated that if Prelle failed to comply, it shall result in the
Court finding him in contempt and he will not be permitted to introduce any evidence,
including witness testimony at the time of trial that relates to the work performed by
Plaintiff. In addition, Plaintiff submitted an order for Attorney’s fees which was also granted

in the amount of $5,545.00.

Cn l\/[arch 26, 2018, Prelle sent Plaintiff a seventh set of supplemental discovery

 

responses which again were not in compliance with the court order. On March 26, 2018,
Prelle sent Plaintiff lnterrogatories and Requests for Production.

On April 2, 2018, Plaintiff filed a second Motion for Rule to Show Cause against
Prelle and Motion for a Protective Order.3 Plaintiff moves for an order requiring Prelle to
Show Cause why he should not be held in contempt for his failure to abide by this Courts
order and why Default]udgment should not be entered against him. ln the alternative,
Plaintiff seeks Judgment on the Pleadings or Surnmary ]udgment.

On April 10, 2018, Prelle filed a response to Plaintiff s second Motion for Rule to
Show Cause and Motion for Protective Order claiming the discovery requests are
complicated and it is his first experience to answer/ respond to these requests. Prelle argues
he made a good faith effort in his responses and corrected any mistakes

On April 20, 2018, the Court conducted a hearing where Prelle attempted to pay
Plaintiffs attorney’s fees with his birth certificate An Amended Order for Attorney’s fees
was entered in the amount of $5,545.00 to be paid in United States Currency or Certified
Check within seven (7) days. At the conclusion of the hearing, the Court reserved decision
on Plaintiff's motions herein.

On May 3, 2018, Plaintiff filed a letter with the Court stating that the time for Prelle
to make payment for attorney’s fees pursuant to the April 20, 2018 amended order has

passed. Plaintiff requests Prelle be held in civil contempt and a capias be issued for his

 

3 Plaintiff"s Motion for a Protective Order states they should not be responsible to comply with Prelle’s
discovery requests since Prelle fails to comply with Court orders.

9

arrest. On l\/lay 10, 2018, Prelle filed a last attempt to avoid the Court rendering a decision
on judgment by requesting a hearing in response to Plaintiff s letter. Prelle alleges Plaintiff is
not a registered business nor able to contract in Delaware. The Court finds this argument
without merit and any request for a hearing is denied.
LEGAL STANDARD

Under Court of Common Pleas Civil Rule 37, a party may move for sanctions
following a Motion to Compel. When a Motion to Compel is granted, the Court may
require the party against whom the Motion to Compel was sought to pay the expenses of the
party obtaining the order, including reasonable attorney’s fees.4 CCP Civ. R. 37(b)(2)(C)
governs sanctions for failure to comply with Court ordered discovery and provides:

If a party . . . fails to obey an order to provide or permit discovery . . . the

Court may make such orders in regard to the failure as are just, and among

others the following: . . . (C) an order striking out pleadings or parts thereof,

or staying further proceedings until the order is obeyed, or dismissing the

action or proceeding or any part thereof, or rendering a judgment by default

against the disobedient party[.]5
Under this rule, the Court has the authority to dismiss an action or enter a default judgment
against a party for failure to comply with Court ordered discovery.6 However, Rule 37
provides a progressive scheme of available sanctions and as such, “entering judgment against
a party as a sanction fo_r discovery violations is an extreme remedy and generally requires

some element of willfulness or conscious disregard of a court order before the Court can

impose such a severe sanction.”7

 

4 566 CCP Civ. R. 37(a)(4)(A).

5 566 CCP Civ. R. 37(b)(2).

6 Le/an C¢zpz`l‘rz/ a Lojkznd ex )"6/. Ei‘z‘¢zle 0fM0nro6, 906 A.2d 122, 131 (Del. 2006).
7 Ia’.

10

Court of Common Pleas Civil Rule 56(c) provides in relevant part that “judgment
sought shall be rendered forthwith if the pleadings, dispositions, answers to interrogatories
and admissions on file together with the affidavits, if any, show that there is no genuine issue
as to a material fact and that the moving party is entitled to judgment as a matter of law.8 If
the record reveals that material facts are in dispute, or if the factual record has not been
developed thoroughly enough to allow the Court to apply the law to the factual record tab
/`61616'66, then summary judgment must be denied.9 In considering a motion for summary
judgment the court must view the facts in a light favorable to the non-moving party and
accept, as true, all undisputed factual assertions A motion for summary judgment will not
be granted where “a more thorough inquiry into the facts is desirable to clarify the
application of the law to the circumstances.”10

In reviewing a motion for summary judgment, the moving party bears the initial
burden to show the absence of any material factual issues. “Upon a proper showing, the
burden shifts to the non-moving party who may not rely solely upon her pleadings, but must
show a genuine material issue of fact in response to the motion.”11 Denials of another
party’s position can create material issues of fact when supported by affidavits and when
specific facts are offered to support the existence of a dispute; vague and general allegations

are insufficient to meet the standard of material facts under Rule 56.12

 

8 566 CCP Civ. R. 56(c).

9 Eb6750/6 6. I_.0w6n<gmb, 180 A.Zd 467 (Del. 1962).

10 Donm/§/ 6. finn/166 Ma6, 2015 WL 6739163, at *2 (Del. Com. Pl. Nov. 3, 2015) (internal citations omitted).

11 Ca})z'fa/ 066 B¢m/é:, l\l./l. a 5 6/)0611666;§6)", 2014 WL 1478900, at *1 (Del. Com. Pl. Apr. 1, 2014> (intemal citations
omitted).

12 566 161 at *2.

11

Pursuant to Court of Comrnon Pleas Civil Rule 12(c), “After the pleadings are closed
but with such time as to not to delay the trial, any party may move for judgment on the
pleadings.”13 On such a motion, the applicable standard is “almost identical” to the standard
for a motion to dismiss, and requires the Court to accept all of the well-pled facts in the
Complaint as true and construe all reasonable inferences in favor of the non-moving party.14
The Court will grant a motion for judgment on the pleadings when “no material issues of
fact exist and the moving party is entitled to judgment as a matter of law.”15 “[F]or purposes
of the motion, the moving party admits the allegations of the opposing party's pleading, but
contends that they are insufficient as a matter of law.”16

Courts will consider any attachment to the pleadings in making determinations based
on the pleadings; this includes such things as memoranda.17 “Where a document is integral
to the pleadings, the Court may consider it in deciding a Rule 12(c) motion without
converting it to one for summary judgrnent.”18 However, “Where matters outside the
pleadings are presented to and considered by the Court, the Court may convert the motion

for judgment on the pleadings to one for summary judgment under Rule 56.”19

 

13 CCP Civ. R. 12(c).

14 56`/666 112/66 Q[]fre* P/¢zza, LLC 6. Lamzm’ c'?°sz'/band, lm'., 2014 WL 595378, at *6 (Del. Super. jan. 17, 2014)
(quoting B/¢zm'o 6. AMVAC C/aem. Co)]b., 2012 WL 3194412, at *6 (Del. Super. Aug. 8, 2012)).

15 5 6/666’ 162/66 Oyj‘z`w P/aza, LLC at *6.

16 Gr66n 6. PNC Fz`mmz`a/ 5667/6`66; Grou}‘), Im'., 2015 WL 1236847, at *2 (Del. Com. Pl. Mar. 18, 2015) (internal
citations omitted).

17 566 561)/6//1/. Coaz`el/o, 2016 WL 3152567, fn. 1 (Del. Com. Pl. Mar. 8, 2016).

18 T/ye C/y6m0uri Compm@/ Tf, LLC 1/. ATI Tz'lam`m% LLC, 2016 WL 4054936, at *4 (Del. Super. Jul. 27, 2016)
(internal citations omitted).

19 L66 1). 5 0, 2016 WL 6806247, at *2 (Del. Super. Nov. 17, 2016) (internal citations omitted).

12

DISCUSSION

Plaintiff argues it is entitled to judgment on the pleadings because the Court
previously ruled that Prelle will not be permitted to testify or submit any evidence at the time
of trial because of his continued failure to provide “complete detailed discovery responses”
thus, Prelle cannot refute the claims against him.20 Plaintiff further argues that the complaint
and attachments evidence that Prelle received the December 30, 2014 estimate, agreed to
and accepted its terms, and directed that the work proceed as per the February 5, 2015 email
from Prelle.21

A review of the records indicate this Court has issued repeated orders directing Prelle
to comply with Plaintiff s discovery requests without compliance After being served with
discovery, Prelle continued to file non-responsive and frivolous answers. When Plaintiff
received additional records from Donegal lnsurance, they served a second set of discovery
to address Prelle’s insurance claim for the repairs and funds received.22 Again, Prelle filed
supplemental answers that provided no information to the discovery questions set forth.
Prelle has filed approximately eight (8) responses to discovery that fail to provide complete
responsive answers in accordance to the rules. He has also repeatedly failed to comply with
the Court’s orders to provide complete and responsive answers.

In accordance with Court of Common Pleas Civil Rule 37(a), this Court issued two

(2) orders to compel responses to discovery. On each occasion Prelle failed to comply with

 

2" Plaintiff April 2, 2018 Motion at 1133

21 Plaintiff Complaint filedjune 3, 2016, Ex. B.

22 Copies of the checks evidencing payment by the insurance company to Prelle are attached to Plaintiff’s
motion

13

the Court’s orders. Therefore, in accordance with Civil Rule 37(b)(2)(a)(A), the Court
entered an order that “the matters regarding which the order was made or any other
designated facts shall be taken to be established for the purposes of the action in accordance
with the claim of the party obtaining the order.”23 Plaintiff interrogatory question twenty-
one (21) asks Prelle if he contracted with Plaintiff to perform certain improvements to
Prelle’s residence, which is now hereby admitted.

Interrogatory question twenty-eight (28) through thirty (30), ask whether Prelle
and / or American Holly received insurance proceeds from Donegal to pay for the damage to
the property and necessary repairs. Plaintiff s attachments to his motion include a letter
from Donegal acknowledging a claim for damage to the property and the amount to be paid
by Donegal to American Holly. Thereafter, Plaintiff provides four (4) checks signed and
deposited by Prelle as an Agent to American Holly, LLC. There is no evidence that the
deposited check proceeds were used to pay Plaintiff for the work performed.24 Moreover,
amended interrogatory questions twenty-one through twenty-seven (21-27) refer to the
claims made to Donegal and the endorsed check payments received by Prelle from Donegal.
These checks were deposited and negotiated by Prelle, which are all now deemed admitted.
Finally, interrogatory twenty-eight (28) asking if Prelle failed to pay the insurance funds to
Plaintiff for the work performed, is admitted.

Since matters outside of the pleadings were not introduced, the Court need not reach

the motion for summary judgment under CCP Civil Rule 56. Based upon Prelle’s continued

 

23 CCP Civ. R. 37.
24 Copies of these checks are attached as Exhibit A, B, C, D, and E.

14

failure to provide complete discovery responses and the evidence provided thus far, Plaintiff
is entitled to Judgment on the Pleadings because the complaint, interrogatories and motion
attachments show Prelle contracted with Plaintiff for certain work performed at his
property; Plaintiff performed the work; Prelle made a claim for damage to the home and
accepted insurance proceeds for the repairs completed by Plaintiff; and failed to pay for the
work completed by Plaintiff. Further, l need not address the capias, contempt, and
Plaintiffs motion for a Protective Order.
C()bU:llJSICHN

For the reasons stated above, Plaintiff s Motion for Judgment on the Pleadings is
HEREBY GRANTED on Count 1 of the Complaint for Breach of Contract and Count ll
for Quantum Meruit. Judgment is entered for Plaintiff in the amount of $15,483.00, costs,
and pre- and post-judgment interest at the contractual rate of 2% per month. The issue of
attorney’s fees will be addressed upon presentation of an appropriate application

IT IS SO ORDERED.

 

‘ Aiex . snmiis

(Ilii ‘f]udge

15

