SUPER|OR COURT
oF THE

STATE OF DELAWARE

VlleN L. MEDlNlLLA LEoNARD L. WlLLlAl\/ls JusTlcE CENTER
JuDGE 500 NoRTH KlNG STREET, SulTE 10400

WlLMlNGToN, DE 19801-3733

TELEPHONE (302) 255-0626

February 11, 2019

Douglas A. Shachtman, Esquire Arthur D. Kuhl, Esquire

The Shachtman LaW Firrn Reger Rizzo & Darnall LLP
1200 Pennsylvania Avenue Brandywine Plaza East

Suite 302 1523 Concord Pike, Suite 200
Wilmington, Delaware 19806 Wilmington, Delaware 19803

Christopher H. Lee, Esquire
Cooch and Taylor, P.A.

The Brandywine Building
1000 West Street, 10th Floor
Wilrnington, Delaware 19801

Re: CONSOL’D Beyond Building, Inc. et al., v. Mark Fiss, et al.
C.A. No.: N16L-09-081 VLM

Dear Counsel:

This is the Court’s ruling on John E. Steele, Jr., Inc. (“Steele”)’s Motion for
Surnmary Judgment. For the reasons stated below, Steele’s Motion is DENIED.

Procedural and F actual 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 F iss 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.,
lnc., for Steele to perform Work at the Property, including the installation of roofing,
gutters, and siding.l 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 contract3 BBI has not paid the
invoices for the Work Steele performed, Which totals 51333,720.4 Steele alleges BBI
breached the contract by not paying for the roofing Work it performed on the
construction proj ect.

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

 

1 John E. Steele Jr., Inc.’s Mot. for Summ. J. 11 8 [hereinafter Steele Mot. for Summ. J.].

2 Steele Mot. for Summ. J. 11 8, at Ex. A.

3 Id. 11 9.

4 Id. 11 10.

5 The parties filed additional motions for summary judgment, including two filed by BBI and one
filed by Fiss and Schnelle. The Court ruled upon these other motions during oral arguments held
on January 22, 2019. The Court denied both of BBI’s motions for summary judgment, and Fiss
and Schnelle’s motion for partial summary judgment Was Withdrawn.

6 6 Del. C. § 3501 et seq.

7 super. Ct. Civ. R. 56(@).

“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. ,1‘ Which is intended to protect contractors from owners or general contractors
Who fail to make timely payments12 Steele argues that under various provisions of
6 Del. C. § 3501 et seq., 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 attorney’s fee provisions of §§
3507 and 3509 do not apply to this situation.”15 The Court Will not apply these
provisions to its analysis of Steele’s motion.

Steele argues relief is Warranted because BBI did not contest the invoices and
the Owners Were satisfied, after inspection, that Steele’s renovations Were done in a
Worl<manlike manner.16 The Owners, through signed affidavits, testified that they
paid BBI for Steele’s Work.17 Steele asserts that although certain sections of the Act
do not apply to this project, it is still entitled to payment in the amount of $33,723

 

8 Qualily Elec. C0., Inc. v. E. States Const. Serv., Inc., 663 A.2d 488, 1995 WL 379125, at *3-4
(Del. 1995). See also Rule 56(e); Moore v. Sizemore, 405 A.2d 679, 681 (Del. 1979).

9 Ebersole v_. Lowengrub, 180 A.2d 467, 469-70 (Del. 1962).

10 Nutt v. A.C. & S. C0., Inc., 517 A.2d 690, 692 (Del. Super. 1986) (citing Mechell v. Plamer, 343
A.2d 620, 621 (Del. 1975); Allstate Auto Leasing Co. v. Cala'well, 394 A.2d 748, 752 (Del. Super.
1978)).

116 Del. C. § 3501 et seq.

12 Steele Mot. for Summ. J. 11 1.

13 See generally id.

14 The Court requested additional information from the parties regarding the applicability of
these statutory provisions. These supplemental submissions Were filed by January 30, 2019.

15 See Supplemental Letter submitted on behalf of John E. Steele, Jr., Inc., dated January 30,
2019 [hereinafter Steele Letter]. See also Supplemental Letter submitted on behalf of Beyond
Building, lnc., dated January 30, 2019 [hereinafter BBI Letter].

16 Steele Mot. for Summ. J. 11 11.

17 ld., at EX. E.

plus 18% APR interest18 Steele further argues that BBI’s principals were at the
Property to inspect it, and did not then mention any deficiencies in Steele’s work.19
Finally, Steele maintains that it is entitled to reasonable attorney’s fees under 6 Del.
C. § 3506(e), arguing that BBI’s withholding payment demonstrates a lack of good
faith for a reasonable cause.20

Relying primarily on the application of §§ 3502, 3504, and 3506, this Court
finds there is no entitlement to damages or attorneys’ fees at this juncture because
there are still material issues of genuine fact regarding the breaches that occurred
with this contract, and whether Steele completed the project that would trigger
payments due under the Act. There are questions for the trier of fact regarding
whether Steele complied with the manufacturer’s recommendations and whether the
project was completed to require payment to Steele. In viewing the facts in the light
most favorable to BBI, Steele is not entitled to judgment as a matter of law for the
unpaid invoices, interest, and reasonable attorney’s fees.

Therefore, John E. Steele, Jr., Inc.’s Motion for Summary Judgment is
DENIED.

IT IS SO ORDERED.

  

. Vivian L. Medinilla
Judge

 

18 See Steele Letter.

19 Steele Mot. for Summ. J. 11 13. While not fully developed in the initial pleadings, this Court
will accept a renewed Motion for Summary Judgment for the reasons raised at the pre-trial
conference on February 11, 2019.

20 See Steele Letter.

