Opinion
C.A. No. 09C-08-167 PLA.
Submitted: February 9, 2010.
Decided: February 17, 2010.
UPON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT.
DENIEDMichael C. Hochman, Esquire, MONZACK, MERSKY, MCLAUGHLIN and BROWDER, P.A., Wilmington, Delaware, Attorney for Plaintiff.
Kevin W. Goldstein, Esquire, STRADLEY, RONON, STEVENS YOUNG, LLP, Wilmington, Delaware, Attorney for Defendant.
In this breach of contract action, Plaintiff Acadia Brandywine Town Center ("Acadia") seeks payment of unpaid rental fees and associated expenses pursuant to a guaranty of a lease into which Acadia entered with Delaware Home Furnishings d/b/a Drexel Heritage ("Drexel"). The Complaint alleges that Defendant Furniture Brands International, Inc. ("FBN") is liable as a guarantor of the lease between Acadia and Drexel. FBN has filed an Answer denying virtually all of the factual allegations in the Complaint that relate to Drexel's default and FBN's responsibility under the guaranty, and has also asserted numerous affirmative defenses.
Acadia has also filed a companion action against another guarantor, Christopher Cresswell, in which it similarly alleges a default by Drexel, and a guaranty of the lease by Creswell. Creswell has not only denied virtually all of the allegations of the Complaint, but has also filed an Amended Counterclaim and Third-Party Complaint wherein he alleges that FBN is the foremost guarantor and is thus primarily liable and that Cresswell is only secondarily responsible for any default under the lease.
As stated, this case involves the alleged breach of a lease between Acadia, the owner of the Brandywine Town Center, and one of its tenants, Drexel. Since the effective date of the lease on June 27, 2006, Drexel had occupied commercial space in the shopping center, but is no longer in possession of the premises, as it is currently the debtor in a Chapter 7 bankruptcy proceeding in the United States Bankruptcy Court for the District of Delaware. Acadia alleges that since December 7, 2009, Drexel has failed to make payments due for rent, as well as associated expenses such as common area management charges, real estate taxes, and building repair reconciliation fees. The only two items in the record evidencing default are an unauthenticated document titled "Delinquency Report" that was exclusively generated by Acadia, with no accompanying affidavits or deposition testimony, and a similarly unauthenticated Notice of Default, also generated by Acadia.
Since the contract action against Drexel has been stayed by virtue of the bankruptcy proceedings, Acadia is seeking to recoup alleged overdue rentals by this and the companion lawsuit against the lease guarantors, FNB and Cresswell.
Now before the Court is a Motion for Summary Judgment filed by Acadia wherein it claims that "it is undisputed" that Drexel breached the lease and that FNB made an unconditional guaranty of payment for the financial obligations of Drexel.
FNB opposes the Motion on the ground that there are remaining several disputed issues of material fact and law, and that the parties have yet to institute discovery to enable them to fully investigate Acadia's claims, as well as those asserted by Cresswell in the related action. FNB further submits that Acadia has failed to comply with the procedural requirements of Superior Court Civil Rule 56 in that there are no affidavits nor sworn or certified copies of any of the documents upon which it relies, which is particularly problematic since those documents are self-generated by the plaintiff itself.
When considering a motion for summary judgment, the Court examines the record to ascertain whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, demonstrate that there are genuine issues of material fact and to determine whether the moving party is entitled to judgment as a matter of law. Summary judgment will not be granted if, after viewing the evidence in the light most favorable to the non-moving party, there are material facts in dispute or if judgment as a matter of law is not appropriate. Furthermore, summary judgment is appropriate if the non-moving party, after an adequate time for discovery has passed, fails to make a sufficient showing on an essential element of the case with respect to which it has the burden of proof.
Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 879-80 (Del. Super. 2005).
Burkhart v. Davies, 602 A.2d 56, 60 (Del. 1991).
Because the Motion for Summary Judgment in this case fails to comply with Rule 56 of the Superior Court Civil Rules, incorrectly claims that issues of material fact are not in dispute when in actuality they are, and prematurely seeks the entry of judgment before discovery has even been initiated, let alone complete, the Motion is hereby denied.
I turn first to the question of whether genuine issues of material fact exist. Acadia has not submitted any affidavit or any certified copies of its own documents, so these items cannot be considered by the Court. The only items in the record at this stage are the Complaint and the Answer. Nowhere in that Answer does FNB admit any of the factual allegations of the Complaint. Without more, Acadia plainly misstates the record when it repeatedly asserts in its motion that the facts are "undisputed." The Answer contains denials of virtually all of the pertinent allegations of the Complaint, thereby squarely raising numerous issues of fact.
Since the documents are unauthenticated, the Court cannot at this stage determine the precise date of Drexel's alleged default, whether notice was proper and in conformity with the Lease and the Guaranty, or whether there may have been any other payments or terms negotiated between Acadia and Cresswell that could provide a defense or set-off to FNB. Even if the Court were to accept the unauthenticated documents as support for the motion, which it cannot, it is far from clear from these records (and hence not undisputed) whether Drexel had cured any delinquency or default. Acadia states that Drexel was in default as of December 7, 2009, but there is absolutely no additional evidence in the record supporting this blanket allegation. Nor does the Court have any information or understanding — as the issue has not been developed in the record — of the effect of the Bankruptcy Court's Order authorizing the Trustee to reject the lease and what effect, if any, that may have upon the date of default.
The nature and extent of the foregoing issues that are still disputed in this case clearly preclude summary judgment at this early stage. But there are additional complicating factors that make this matter not appropriate for summary judgment. Acadia's companion suit against Christopher Cresswell may have a direct impact upon the extent of FNB's liability, if any, as he has filed a Third-Party Complaint against FNB alleging that his guaranty is secondary to that of FNB, and he has also filed a counterclaim against Acadia wherein he asserts that the guaranty that he signed does not reflect the intent of the parties. If Drexel is ultimately determined to be in default, the rights and obligations of the parties under the two separate guaranties will need to be determined, but this will only be possible after significant discovery. Such issues will likely not be appropriate for summary decision by the Court.
Finally, as FNB points out in its Response, the precise amount of damages, if any, is far from undisputed. The amount claimed by Acadia is not supported by anything other than its own unauthenticated printout, but even the amounts on this "Aged Delinquency Report" do not conform to the hefty judgment Acadia asks the Court to enter here, nor do they resolve questions regarding potential set-offs in the event that Acadia mitigated its damages by re-leasing the premises.
All of the foregoing factual issues are far from settled, are plainly disputed, and should be the subject of extensive discovery, thereby making this Motion for Summary Judgment wholly inappropriate at this juncture. The motion is therefore denied.
While the Court regrets having to comment further in this case, it feels compelled to do so in order to prevent similar instances of abuse in the future. Summary judgment motions are time-consuming and costly. The Court is already inundated with a myriad of dispositive motions that do have legitimacy in the other three to four hundred civil cases assigned to each judge in New Castle County. Motions such as the one presented in this case tax the very limited resources of this Court and make the case more expensive for defendants to defend. They impose a needless and unnecessary burden on the Court's scare available time, taking its attention away from more pressing and legitimate matters. A motion for summary judgment filed before any discovery has commenced and which misstates the record — especially one as limited as this — is wasteful of the Court's time and unduly burdensome on the opposing party. Counsel would be well advised to refrain from filing dispositive motions when the basis for such relief is as weak or premature as in this case.
For the foregoing reasons, Acadia's Motion for Summary Judgment is hereby DENIED.
IT IS SO ORDERED.
Original to Prothonotary
cc: Michael C. Hochman, Esquire Kevin W. Goldstein, Esquire