Opinion
C.A. Nos. 97L-06-016 — WLW, 98L-09-009 — JTV.
Submitted: April 6, 2000.
Decided: April 20, 2000.
Upon Consideration of Defendants Motion for Consolidation.
Laura A. Redding, Esq., Dover, Delaware. Attorney for Plaintiff/Third Party Defendant.
Constantine F. Malmberg, Esq., Dover, Delaware. Attorney for Plaintiff/ Claimant.
Gary S. Dodge, Esq., and Paul D. Sunshine, Esq., Dover, Delaware. Attorneys for Defendants/Owners/Third Party Plaintiffs.
DENIED
ORDER
Upon consideration of the defendants' motion to consolidate the above two civil actions, the plaintiffs' responses, and the record in this case, it appears that:
1. The defendants, Ronald W. Carter and Chyrl G. Carter, are the owners/developers of a subdivision in Milford Hundred, Kent County, Delaware, known as `Hummingbird Hills.' They are the defendants in two separate civil actions. In one civil action, plaintiff Earl Smith alleges that he is owed approximately $42,000 for surveying and other services related to the approval and development of the subdivision. The defendants have counterclaimed, seeking substantial damages which they allegedly incurred due primarily to unreasonable delay on Smith's part in the performance of his work. In the other civil action, plaintiff Richard D. Proud alleges that he is owed approximately $35,000 for site improvements which he did on the development. of the approximate $35,000, $6,600 of it is for alleged remedial or additional work which Proud had to do on ponds because of alleged defects in Smith's plans. These claims are all disputed. The Carter's have moved to consolidate the two actions. Both plaintiffs oppose the motion.
2. The decision to consolidate two civil actions is within the discretion of the trial court. Consolidation may be appropriate when the actions involve a common question of law or fact. Consolidation eliminates the need for the same evidence to be presented more than once. However, the presence of a common question does not require consolidation. For example, if the common issue is not central to either case, consolidation may be denied. Prejudice to a party is another factor to consider in determining whether or not to consolidate. Prejudice to a party can be found when each case presents factual differences which could tend to confuse the jury.
Super. Ct. Civ. R. 42(a); Union Mutual Life Ins. Co. v. Dewey. Del. Super. 270, A.2d 833 (1970).
Super. Ct. Civ. R. 42(a).
Lasher v. Sterwin Laboratories, Inc. and Sterwin Laboratories, Inc. v. Intervet Int'l, Del. Ch., C. A. Nos. 5924 (1979), 6000 (1979), Hartnett, V.C.(Letter Op).
9 Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 2383 (1995).
Id.
Fydenkevez v. Julian and Flowers v. Julian, Del. Super., Nos. 94C-01-55-CHT, 94C-01056-CHT, Toliver, J. (Nov. 13, 1997) (ORDER).
Id.
3. In these cases there does seem to be one common question of fact, namely, whether there were shortcomings in the Smith plans which necessitated remedial site work by Proud. However, this issue is only one limited part of each suit. It certainly does not appear to be a central issue in either action. Apart from this one element, there does not appear to be any overlap or connection between the parties or the issues. Unrelated issues predominate. It appears that most of the evidence in each case is not a duplication of the evidence in the other case. Therefore, except for the one area of potential overlap, a jury would be listening to two different cases in one trial. In the Court's view this poses some threat of prejudice to the plaintiffs in that each plaintiffs case will be a distraction to the other.
It is noted that whether there is truly a common question of fact is disputed since Smith claims that his plans were superceded by a subsequent surveyor/engineer's plans.
4. Mr. and Mrs. Carter argue that they will be prejudiced if consolidation is not granted because they may suffer inconsistent verdicts. For example, they argue that the jury in the Smith case may find that there was nothing wrong with Smith's plans, but the jury in the Proud case may find that a defect in Smith's plans justified the remedial work which Proud did and charged the Carter's for. While the Court acknowledges that there may be some possibility of some inconsistency of verdicts on this point, the Court is not persuaded that this justifies consolidating these mostly unrelated cases. As noted above, the Court also believes that consolidation would present some risk of prejudice to the plaintiffs. The defendants will no doubt be afforded an opportunity to present all of their evidence of defects in the Smith plans in the Smith trial. The Court is just not persuaded that having these cases heard separately exposes the defendants to an unreasonable risk of inconsistency of results.
5. After weighing the factors involved, I conclude that the cases should remain separate and proceed to trial accordingly.
THEREFORE, the motion to consolidate these separate complaints is denied.
IT IS SO ORDERED.