Opinion
C.A. No. 06L-09-001-RFS.
Submitted: April 2, 2007.
Decided: June 19, 2007.
Upon Plaintif's Motion for Summary Judgment. Denied.
Patrick Scanlon, Esquire, Milford, DE.
Dennis L. Schrader, Esquire, Georgetown, DE.
Dear Counsel:
Pending before the Court is Plaintiff, Carolina Builders Corporation's Motion for Summary Judgment. The Motion prays that an in rem judgment be entered against Joshua E. Littleton and Julia W. Littleton in the amount of $25,877.52, plus pre-judgment interest at the rate of 10.75% per annum, plus post-judgment interest at the rate of 10.75% per annum from the date of judgment, plus costs, all to be levied out of the premises described in the Complaint. For the reasons stated herein the Motion is denied.
STATEMENT OF FACTS
Carolina Builders Corporation (hereinafter "Plaintiff") allegedly entered into a contract with Pulse Construction, Inc. (hereinafter "Pulse") for labor and materials to be furnished on the credit of a structure located at 26993 Crest Drive, Seaford, DE 19973. The owners of the structure are Joshua E. Littleton and Julia W. Littleton (collectively referred to as "Littletons").Plaintiff has claimed that "$31,331.42, with interest at 10.75% from May 9, 2006 until paid plus cost for labor and building material furnished for and on account of [the aforementioned] structure" is the amount currently owed to them. Compl. at 2, ¶ 6. The Littletons deny that any portion of that amount is owed by them. The Littletons assert that they paid all amounts owed by them to Pulse and that Pulse misappropriated those funds. Consequently, the Littletons have stated that Pulse alone should be held liable. Plaintiff has demanded that a Mechanic's Lien be levied out of the said premises in the amount stated above.
Pursuant to Superior Court Civil Rule 16.1(a) an arbitration hearing was held on February 15, 2007. The Arbitrator's Order (hereinafter "Order") found that Plaintiff and Defendant Pulse had agreed to amend the Complaint to reflect the total amount due on the claim as $25,877.52.
Plaintiff has now moved for summary judgment based upon counsels' exchange during the arbitration hearing. In making its motion, Plaintiff relies on the following statement made by Defense counsel during arbitration: "[t]hen for the purposes of this arbitration, I'm going to concede that a mechanic's lien should continue in effect for $25,877.52." Transcript of Arbitration Hearing (hereinafter "TR") at 21, ll. 12-15.
STANDARD OF REVIEW
Summary judgment may be granted only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Once the moving party meets its burden, then the burden shifts to the non-moving party to establish the existence of material issues of fact. Id. at 681. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, then the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. Super. Ct. Civ. R. 56(3); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If material issues of fact exist, or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is inappropriate. Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).DISCUSSION
The sole rem edy fo r a pa rty s ubj ect to c ompuls ory arbitration under Superior Court Civil Rule 16.1 is the demand for a trial de novo. Del. Super. Ct. Civ. R. 16.1(k)(11)(D). "Upon a demand for a trial de novo, the case shall be placed upon the calendar . . . and treated for all purposes as if it had not been referred to arbitration." Id. at 16.1(k)(11)(D)(i). "At the trial de novo, the Court shall not admit evidence that there has been an arbitration proceeding, the nature or amount of the order, nor consider any other matter concerning the conduct or outcome of the arbitration proceeding, except recorded testimony taken at the arbitration hearing may be used in the same manner as testimony taken at a deposition."
During the arbitration, it was revealed that Plaintiff sued Pulse in a companion Court of Common Ple as ac tio n. T he at tor neys for Plaintiff and Pulse agreed that the amount due Plaintiff was $25,877.52 rather than the $31,331.42 previously claimed. With these developments, the parties did not find much need for the arbitration hearing nor did they accredit the arbitration with much significance. If the $25,877.52 had been paid by Pulse, Plaintiff's Mechanic's Lien action against the Littletons would have to be dismissed. Although Plaintiff and Pulse agreed that $25,877.52 was due, payment was yet to be made. In this background, the Littletons' counsel made the statement referenced above, together with an additional one, namely, "[w]e are only doing it [making a concession] for the purposes of this arbitration." TR at 22, ll.4-5.
Depending upon the context, the words used by lawyers may carry consequences. See Willey v. Willey, 2006 Del. Super. LEXIS 294 (Del.Super. July 31, 2006). However, in the instant matter, counsel merely sought to end the arbitration hearing and save the Littletons from needless expenses. It was reasonable to assume, from the exchange, that Plaintiff and Pulse had settled their differences with the likely satisfaction of the debt and dismissal of the Mechanic's Lien Complaint. Consequently, counsel's statements would have little, if any, probative value as party admissions. Cer tai nly, they cannot be given conclusive effect to eliminate the Littletons' defenses, including their making good faith payments to Pulse. Indeed, in a jury trial setting, the statements would not be admitted under DRE 403 given their inextricable connection to arbitration which cannot be referenced at a trial de novo. CONCLUSION
Considering the foregoing, Plaintiff's Motion for Summary Judgment is DENIED.
IT IS SO ORDERED