Opinion
C.A. No. 06L-06-122 MMJ.
Submitted: November 6, 2008.
Decided: November 25, 2008.
On Defendant's Motion for Judgment as a Matter of Law, DENIED.
R. Stokes Nolte, Esquire, Reilly, Janiczek McDevitt, P.C., Wilmington, DE, Attorney for Plaintiff.
Seth A. Niederman, Esquire, Sophia Siddiqui, Esquire, Fox Rothschild, LLP, Wilmington, DE, Attorneys for Defendant.
ORDER
1. On June 29, 2006, A.J. Bradbury filed a mechanics' lien action against Kamar Adeleke. Plaintiff alleged defendant failed to fully pay for labor and materials provided to renovate defendant's home.
2. On September 15, 2006, defendant filed an answer and counterclaim. Defendant asserted that all sums due under the parties' contract were paid in full. Defendant also raised nine separate affirmative defenses. Three of the affirmative defenses are: (1) the complaint was "barred and/or limited by the terms and conditions of the applicable statute of limitations;" (2) the complaint was "not supported by a sufficient affidavit as required by 25 Del. C. § 2712;" and (3) the complaint failed "to state the time when the doing of the labor or the furnishing of the material or the providing of the construction management services was finished." Defendant's counterclaim alleged breach of contract, negligent design and construction, breach of building codes, and negligence per se.
Defendant's nine affirmative defenses included: (1) the complaint failed to state a claim upon which relief can be granted; (2) the complaint was "barred and/or limited by the terms and conditions of the applicable statute of limitations;" (3) recovery was barred because the Plaintiff was negligent and failed to substantially complete the work under the parties' contract; (4) the complaint failed "to state 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;" (5) the complaint failed to "adequately plead the amount claimed to be due, the nature and kind of the labor done, or materials furnished;" (6) the complaint failed to adequately identify the structure; (7) the complaint "is not supported by a sufficient affidavit;" (8) the complaint failed to fully detail the existence of a first mortgage; and (9) the complaint failed "to state the time when the doing of the labor or the furnishing of the material or the providing of the construction management services was finished."
3. On November 3, 2008, the matter proceeded to trial. At the close of plaintiff's case, defendant moved for a directed verdict on the basis that plaintiff untimely filed his mechanics' lien action. The Court took defendant's motion under advisement and reserved decision.
4. On November 6, 2008, the jury returned a verdict in favor of plaintiff in the amount of $ 42,000.00. The jury found by a preponderance of the evidence that plaintiff had a mechanics' lien on defendant's home entitling plaintiff to damages. Additionally, the jury found plaintiff had not breached the contract or performed work in a negligent manner.
5. Prior to jury deliberations, defendant renewed his motion for a directed verdict. At that time, both parties submitted supporting letter memoranda. In his memorandum, defendant added two further bases for the motion for a directed verdict. In addition to asserting the mechanics' lien was filed untimely, defendant claims the affidavit in support of the mechanics' lien complaint was insufficient and the mechanics' lien is in violation of 25 Del. C. § 2712(b)(6). Pursuant to the Superior Court Rules of Civil Procedure, the Court will treat defendant's motion as a Motion for Judgment as a Matter of Law.
Defendant actually states that plaintiff is in violation of 25 Del. C. § 2712(b)(8), but cites the language of subsection (6). Thus, the Court presumes defendant intended to rely upon subsection (6). Section 2712(b)(6) provides that the complaint and/or statement of claim set forth: "[t]he time when the doing of the labor or the furnishing of the material or the providing of the construction management services was finished. . . ."
Super. Ct. Civ. R. 50.
6. Superior Court Civil Rule 50 specifically provides that "[i]f during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the Court may determine the issue against the party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue." The Court must view the evidence in the light most favorable to the non-moving party. The Court must determine whether under any reasonable view, the jury could find in favor of the non-moving party. "A jury's finding is not disturbed if there is ` any competent evidence upon which the verdict could reasonably be based.'"
Super. Ct. Civ. R. 50(a).
Mazda Motor Corp. v. Lindahl, 706 A.2d 526, 530 (Del. 1998).
Id.
Dennis v. State Farm Mut. Auto. Ins. Co., 2008 WL 4409436, at *2 (Del.Super.) (quoting Delaware Elec. Co-op., Inc. v. Pitts, 1993 WL 445474, at *1 (Del.)).
7. Before deciding the merits of defendant's motion, the Court first must determine whether any of defendant's arguments are procedurally barred. Affirmative defenses are waived where a defendant does not provide notice that the defendant will assert the defense at trial. One purpose of pretrial conferences and stipulations is to dispose of frivolous claims and defenses — an integral component of effective trial management. The Court will "not consider . . . an argument regarding an issue of law not earlier identified in the pretrial stipulation."
See Alexander v. Cahill, 829 A.2d 117, 129 (Del. 2003).
Gates v. Texaco, Inc., 2008 WL 1952165, at *8 (Del.Super.), aff'd, 2008 WL 4661610 (Del.) (quoting Jacob v. Harrison, 2002 WL 31840890, at *5 (Del.Super.)).
Sufficiency of Mechanics' Lien Affidavit
8. Defendant's argument, that the affidavit was insufficient to support the complaint, is procedurally barred. At the time of the pretrial conference, no facts were in dispute as to the content of the affidavit. The pretrial stipulation does not mention this issue. Defendant raised the issue in his answer, but failed to address it again until defendant's post-trial letter memorandum. Defendant did not challenge the sufficiency of the affidavit in his initial motion for directed verdict. Further, the content of the affidavit was not explored at trial. Thus, defendant's claim that the affidavit was insufficient is procedurally barred and will not be addressed.Timely Filing of Mechanics' Lien Action
9. Defendant argues that plaintiff's mechanics' lien was untimely filed. Defendant contends that the start date for the applicable statute of limitations is at issue because the testimony offered by plaintiff at trial as to the last date of work on the project contradicts the complaint. The Complaint alleged that the completion date was April 10, 2006. Defendant contends that the appropriate start date for the running of the statute of limitations was September 2006, when plaintiff testified he last physically worked on defendant's property. Additionally, defendant asserts that plaintiff "abandoned the job and did not perform the work required to obtain the certificate of occupancy" and, thus, should not be afforded the protections of 25 Del. C. § 2711(a)(2)(f).
10. Plaintiff contends that the mechanics' lien was timely filed and that plaintiff's testimony did not contradict the complaint. Plaintiff maintains that the statute of limitations did not begin to run until April 10, 2006, when plaintiff attended a hearing concerning the issuance of a certificate of occupancy for defendant's property. Plaintiff asserts that the statute's concept of "work" is not limited to physical labor, but also includes supervisory labor and management services. Plaintiff argues that "not only did he attend the County hearing in April 2006 but that his electrical subcontractor, Dave Stewart, went back to the house in March 2006 to [do] additional work so that a certificate of occupancy could be issued for the potting shed and garage."
11. The mechanics' lien statute is in derogation of the common law and must be strictly construed. However, the statute is "not to be construed in such a fashion as to produce an unreasonable or unwarranted construction."
Constr. Res. Mgmt. v. Littleton, 2008 WL 4117186, at *3 (Del.Super.) (quoting Kershaw Excavating Co., Inc. v. City Sys., Inc., 1989 WL 124434, at *3 (Del.Super.)).
12. A mechanics' lien is deemed timely if it is filed within 180 days of any one of several qualifying events listed in 25 Del. C. § 2711(a)(2). Subdivision (f) provides that a statement of claim filed "with respect to a structure for which a certificate of occupancy must be issued" is timely if filed within 180 days of "the date when such certificate is issued."
25 Del C. § 2711(a)(2) provides:
For purposes of this subsection, and without limitation, a statement of claim shall be deemed timely if it is filed within 180 days of any of the following:
a. The date of purported completion of all the work called for by the contract itself;
b. The date when the statute of limitations commences to run in relation to the particular phase or segment of work performed pursuant to the contract, to which phase or segment of work the statement of claim relates, where such date for such phase or segment has been specifically provided for in the contract itself;
c. The date when the statute of limitations commences to run in relation to the contract itself where such date has been specifically provided for in the contract itself;
d. The date when payment of 90% of the contract price, including the value of any work done pursuant to contract modifications or change orders, has been received by the contractor;
e. The date when the contractor submits his final invoice to the owner or reputed owner of such structure;
f. With respect to a structure for which a certificate of occupancy must be issued, the date when such certificate is issued;
g. The date when the structure has been accepted, as provided in the contract, by the owner or reputed owner;
h. The date when the engineer or architect retained by the owner or reputed owner, or such other representative designated by the owner or reputed owner for this purpose, issues a certificate of completion; or
i. The date when permanent financing for the structure is completed.
25 Del. C. § 2711(a)(2)(f); see also E.J. Deseta HVAC Svcs., Inc. v. Conaty, 2005 WL 1950799, at *2-3 (Del.Super.).
13. Viewing the facts in the light most favorable to the non-moving party, plaintiff filed his mechanics' lien action timely. Plaintiff testified that on April 10, 2006, he attended a County hearing concerning the issuance of a certificate of occupancy for defendant. Less than 180 days later, on June 29, 2006, plaintiff filed his mechanics' lien action. Further, plaintiff testified that in March of 2006, he directed his sub-contractor to perform work on defendant's property. Thus, the Court finds that plaintiff finished his work on defendant's property in March or April of 2006, and that the mechanics' lien action was timely filed.
25 Del. C. § 2712(b)(6) 14. Defendant also argues that the complaint is fatally flawed because it violates 25 Del. C. § 2712(b)(6). Section 2712(b)(6) requires that the complaint state the date on which plaintiff finished providing labor, materials or construction management services to defendant. Defendant alleges that plaintiff's testimony at trial contradicts the date stated in his complaint as to when he finished providing labor and materials to defendant. Specifically, defendant asserts that the "complaint states the work on the project was completed on April 10, 2006, however plaintiff's testimony at trial was that he was 100% done with the work required of him (labor and materials) the second week of September."15. The averment of the date of completion is essential to the existence of a mechanics' lien. The necessity of providing the exact date of completion is required as a matter of fairness to the opposing party. Exact dates of commencement and completion are akin to the requirement of pleading certain matters with particularity. However, the Court has held that even if the averments are proven untrue at trial, that does not make the complaint deficient, although it may affect the merits of the dispute. Thus, even if the completion date given by plaintiff were incorrect, that fact does not make the complaint deficient.
Poole v. Oak Lane Manor, 118 A.2d 925, 926 (Del.Super. 1955).
Ewing v. Bice, 2001 WL 880120, at *3 (Del.Super.) (denying motion to dismiss mechanics' lien claim alleging failure to comply with 25 Del. C. § 2712(b)(6) where an exact completion date was stated within the complaint, even though the date was allegedly incorrect).
Middle Streets Drywall, Inc. v. DMS Properties-First, Inc., 1996 WL 453418, at *15 (Del.Super.), aff'd, 692 A.2d 412 (Del. 1997).
16. Under the mechanics' lien statute, the term "labor" includes not only physical labor but also supervisory labor. No distinction is made between a contractor who performs manual labor and one who performs labor through supervising and directing.
See Constr. Res. Mgmt., 2008 WL 4117186, at *3.
17. At trial, plaintiff testified that he last performed physical work on the defendant's property in mid-September. However, he also testified that in March of 2006 he directed his sub-contractor to perform work on defendant's property and in April of 2006 he attended a County hearing concerning a certificate of occupancy for defendant's property. Thus, by stating the work was completed on or about April 10, 2006, plaintiff satisfied his obligations under 25 Del. C. § 2712(b)(6). THEREFORE, Defendant's Motion for Judgment as a Matter of Law is hereby DENIED.
IT IS SO ORDERED.