Opinion
C.A. No. 00L-01-001
Date Submitted: December 15, 2000
Date of Decision: March 20, 2001
Donald L. Logan, Esquire, Richard E. Berl, Jr., Esquire.
Dear Counsel:
Schering-Plough Animal Health Corporations ("Defendant") has moved for summary judgment. Best Drywall, Inc. ("Best Drywall") filed a mechanics' lien against Defendants Jennings Churella Services, Inc., Schering-Plough Animal Heath Corp., and Mallinckrodt Veterinary, Inc. The complaint involves work done on a structure (hereinafter research facility) upon property owned by Mallinckrodt Veterinary Holdings, Inc. This Court is called upon to decide whether Best Drywall filed its complaint within ninety days from the date substantial performance was last rendered. This letter constitutes my decision in the matter.
FACTUAL STATEMENT
Best Drywall is a subcontractor to Jennings Churella, the general contractor. Best Drywall filed its mechanics' lien on January 12, 2000. Best Drywall is claiming $116,455.66 owed for its work performed at the research facility.
Defendant alleges that the research facility was substantially complete prior to October 11, 1999 and that work performed thereafter was limited to punch list work. Defendant relies on the Field Work Report of George, Miles Bulir, L.L.P. and the affidavit of William Cokeley, the Project Direction of Schering-Plough, attached to its motion as exhibits B and C to support its contention that any work after October 11, 1999 was trivial. Defendant is asking that its Motion for Summary Judgment be granted because Best Drywall failed to assert its claim within the statutory period. Defendant contends that Best Drywall's ninety-day period for filing its mechanics' lien commenced on October 11, 1999 and expired January 9, 2000. Defendant argues that Best Drywall's effort after October 11, 1999 was insignificant and did not enlarge the filing time.
The version of 25 Del. C. § 2711 in effect at this time provided:
(a) A contractor who (1) has made his contract directly with the owner or reputed owner of any structure and (2) has finished both labor and material in and for such structure shall file no statement of claim until after the expiration of 90 days from the completion of such structure contracted for by him; but such contractor, in order to avail himself of the benefits of this subchapter, shall file his statement of claim within 30 days after the expiration of the 90 day period.
(b) All other persons embraced within this chapter and entitled to avail themselves of the liens herein provided for shall file a statement of their respective claims within 90 days from the completion of the labor performed or from the last delivery of materials furnished by them respectively.
Defendant point out that Best Drywall filed its complaint prior to January 17, 2000 the date the amendments to 25 Del. C. § 2711 became effective. The amendment was effective January 16, 2000. It states in pertinent part: (b) All other persons embraced within this chapter and entitled to avail themselves of the liens herein provided shall file a statement of their respective claims within 120 days from the date from completion of the labor performed or from the last delivery of materials furnished by them respectively. For purposes of this subsection, and without limitation, a statement of claim on behalf of such person shall be deemed timely if it is filed within 120 days of either of the following: (1) The date final payment, including all retainage, is due to such person; or (2) The date final payment is made to the contractor: a. Who was contracted directly with the owner or reputed owner of any structure for the erection, alteration or repair of same; and b. With whom such person has a contract, express or implied, for the furnishing of labor or materials, or both, in connection with such erection, alteration or repair.
At oral argument on December 15, 2000, the parties agreed that the former law applies.
Responding to Defendant's motion, Best Drywall argues that Defendant's view of "substantially complete" for itself does not require the Court to conclude that each and every contractor was not still performing substantial project work. In its complaint, Best Drywall asserts that it was on the premises and working on the facility up to November 21, 1999. It is Best Drywall's contention that it spent a total of 153 man-hours at the Schering-Plough facility after October 11, 1999, with one hundred and one half of these hours performed in the week ending October 17, 1999. Best Drywall further argues that this work was substantial. Best Drywall attached an affidavit from its president to support is position that the nature of the work performed after October 11, 1999 was not trivial. Best Drywall argues that the fact that it was involved in finish work in terms of completion dates explains how it was still involved with construction-related work under its contract with Jennings Churella after October 11, 1999. Moreover, Best Drywall relates that in two other mechanics' lien actions filed against the same structure the last dates of work alleged were after October 11, 1999, the completion date asserted by Defendant. Since other subcontractors claim working beyond October 12, Best Drywall contends the affidavit of Defendant's representative is specious. Plaintiff argues that it followed the mechanics' lien statute and even should October 17, l999, be the last day of work, its complaint could have been filed by January 20, 2000.
H and A Electric Co. v. Jennings Churella, et al., Del. Super., C.A. No. 00L-03-005, was filed March 9, 2000 alleging that the last date labor was performed was November 12, 1999. Excel Coatings, Inc. v. Mallinckrodt Veterinary Holdings, Inc., Del. Super., C.A. No. 00L-01-022, was filed January 24, 2000 alleging that the last date of work was October 26, 1999.
The end of the week in which Best Drywall asserts it spent 101.5 man-hours at the Schering-Plough facility and within the filing period.
DISCUSSION
A. Summary Judgment Standard
Summary judgment may be granted only when no critical factual disputes exist, and, consequently, the moving party must show no material issues exist. Moore v. Sizemore, Del. Supr., 405 A.2d 679, 680 (1979). When established, the burden then shifts to the non-moving party to demonstrate the existence of material issues of fact. Id. at 681. Where the moving party produces sufficient supporting evidence, the opponent must next provide evidence showing a genuine issue of material fact for trial. Super. Ct. Civ. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If, after discovery, the non-moving party cannot show the essential elements of the case, then summary judgment must be granted. Burkhart v. Davies, Del. Supr., 602 A.2d 56, 59 (1991), cert. den., 112 S.Ct. 1946 (1992); Celotex Corp. v. Catrett, supra. Summary judgment is unavailable where material issues of fact or law remain. Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 470 (1962).
B. Definition of Substantial Performance
In Breeding v. Melson, Del. Supr., 143 A. 23, 26 (1927), the Supreme Court observed that the time for filing a mechanics' lien claim is "computed from the date when the last item of work, labor or materials is done, performed or furnished." The "work" must be required by the contract and performed in good faith to preclude the superficial extension of the filing time. This period cannot be extended by "the performance of labor or supply of materials of a trivial nature, not expressly provided for in the contract, and completed after the improvement itself had been substantially completed." Id.
In this regard, the Court has found that a plaintiff substantially completed a contract the date work on the punch list was finished. Such work is not necessarily trivial. Preston L. Mcllvaine Construction Co., Inc. v. Lawson, Del. Super., C.A. No. 84L-MY1, Lee, J. (February 26, 1998), affd, Del. Supr., 552 A.2d 858 (1988). In Breeding, the Court held that what constituted a substantial completion of the building must be determined from the evidence introduced at trial, shown by the record, and is normally a jury question. Breeding, 143 A. at 25.
Here, Defendant contends that October 11, 1999 is the date the work was completed, the time for filing commenced, and the claim was late. Defendant, the moving party, presented evidence sufficient to support its argument that October 11, 1999 was the last date any work of a substantial nature was performed. However, Best Drywall has provided sufficient evidence showing a genuine issue of material fact for trial. Best Drywall submitted an affidavit demonstrating that the work performed after October 11, 1999 was not trivial. Evidence of other claims casts doubt about the status of the project on October 11, 1999. The conflicting evidence about the date of substantial completion raises a jury situation.
CONCLUSION
Considering the foregoing, summary judgment is denied. Defendant's affidavit is probative that work ended on October 11, 1999, then triggering the time for filing a mechanics' lien. Nevertheless, Best Drywall carried its burden showing that the completion date was October 17th or later which started the filing period. Only a jury can resolve this matter.
IT IS SO ORDERED.