Opinion
C.A. No. 07L-08-256 PLA.
Submitted: October 8, 2008.
Decided: October 14, 2008.
UPON PLAINTIFF'S APPLICATION FOR CERTIFICATION OF INTERLOCUTORY APPEAL DENIED.
1. By opinion issued September 29, 2008, this Court dismissed a statement of claim for a mechanic's lien filed by plaintiff King Construction, Inc. ("King Construction") against property owned by defendant Plaza Four Realty, LLC. The Court determined that dismissal of King Construction's Statement of Claim was required on three grounds: (1) failure to plead the existence of prior written consent; (2) premature initiation of the claim under 25 Del. C. § 2711, because the Statement of Claim was filed before the provision of labor or delivery of materials was completed; and (3) failure to comply with 25 Del. C. § 2712(b)(2) in that the Statement of Claim did not plead a completion date. King Construction has now filed this application for certification of an interlocutory appeal from the Court's decision.
See King Construction, Inc. v. Plaza Four Realty, LLC, 2008 WL 4382798 (Del.Super. Sept. 29, 2008).
2. Under Supreme Court Rule 42, an interlocutory appeal will not be certified unless the trial court's order determines a substantial issue, establishes a legal right, and meets at least one of the five additional criteria set forth in the rule. King Construction argues that the Court's holdings that the Statement of Claim must be dismissed for failure to plead prior written consent and that the Statement of Claim was prematurely filed determined substantial issues and established a legal right. Furthermore, King Construction contends that the Court decided a previously unsettled question of law pertaining to statutory construction that has not been, but should be, determined by the Delaware Supreme Court and that review of the Court's decision may serve considerations of justice.
The five criteria provided under the rule are as follows:
(i) Same as Certified Question. Any of the criteria applicable to proceedings for certification of questions of law set forth in Rule 41; or (ii) Controverted Jurisdiction. The interlocutory order has sustained the controverted jurisdiction of the trial court; or (iii) Substantial Issue. An order of the trial court has reversed or set aside a prior decision of the court, a jury, or an administrative agency from which an appeal was taken to the trial court which had determined a substantial issue and established a legal right, and a review of the interlocutory order may terminate the litigation, substantially reduce further litigation, or otherwise serve considerations of justice; or (iv) Prior Judgment Opened. The interlocutory order has vacated or opened a judgment of the trial court; or (v) Case Dispositive Issue. A review of the interlocutory order may terminate the litigation or may otherwise serve considerations of justice.
Del. Supr. Ct. R. 42(b).
3. The Court will not certify an interlocutory appeal from its dismissal of King Construction's Statement of Claim, because its decision did not resolve a substantial issue or establish a legal right, nor did it meet the Rule 42(b) criteria. The Court emphasizes that its dismissal of the mechanic's lien Statement of Claim in this case does not prevent King Construction from proceeding with its damages claim. In addition, King Construction remains free to timely file a mechanic's lien action that conforms with the applicable pleading requirements if the limitations period is still open. Moreover, the Court's decision applied settled law reflected in earlier cases regarding the prior written consent pleading requirement and the timing requirements for filing a mechanic's lien statement of claim.
See Vepco of Del., Inc. v. Matassino, 604 A.2d 419, 1991 WL 247754 (Del. 1991) (TABLE) (refusing interlocutory appeal from dismissal of mechanic's lien for failure to comply with statutory pleading requirements).
See Lakewood Builders, Inc. v. Vitelli, 1987 WL 10533, at *1 (Del.Super. Apr. 29, 1987).
See E.J. Deseta HVAC Servs. v. Conaty, 2005 WL 1950799 (Del.Super. July 29, 2005).
4. Therefore, King Construction's application for certification of an interlocutory appeal is DENIED.
IT IS SO ORDERED.