Opinion
Civil Action Number 98L-08-028-JOH.
Submitted: September 20, 1999. Argued: September 23, 1999.
Decided: January 21, 2000.
Upon Motion for Summary Judgment of Defendants Deluca Enterprises, Inc., and ALS-Wynwood, Inc. — GRANTED
Bruce C. Herron, Esq., (argued) of Sawyer, Akin Herron, P.A., attorney for plaintiffs
Neal C. Belgam, Esq., of Blank, Rome, Comisky McCauley, LLP, (argued) and Richard P. Beck, Esq., and James E. Drnec, Esq., of Morris, James, Hitchens Williams, LLP, attorneys for defendants Deluca Enterprises, Inc. and ALS-Wynwood, Inc.
MEMORANDUM OPINION
Plaintiffs, collectively Local 626, filed a mechanics' lien and wage collection action in connection with the construction of a retirement facility near Newark, Delaware. The general contractor which Local 626 named, DeLuca Enterprises, Inc., has moved for summary judgment arguing it was not associated with this project. The property owner, ALS-Wynwood, Inc., has also moved for summary judgment contending Local 626 failed to name it as a party.
The Court has determined that Local 626 failed to comply with the statutory requirement for mechanics' lien actions. It did not name the correct general contractor and did not make ALS-Wynwood a party to the action. As to these parties, therefore, the actions will be dismissed and the lien created on the record is stricken.
FACTUAL BACKGROUND
Local 626 is an unincorporated association. It and the other plaintiffs have sued to obtain wages and other benefits due them by virtue of work on the project by the members of Local 626. The moving defendants do not challenge the standing of any plaintiff to bring suit for these claims.
Originally, these defendants moved to dismiss Local 626's action. But, matters outside the pleadings have now been presented. Their motions, therefore, became summary judgment motions. Such motions are granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. The facts will be viewed in a light most favorable to Local 626, as the non-moving party.
Chrysler Corp. v. Airtemp Corp., Del.Super., 426 A.2d 845, 847 (1980).
Wilson v. Joma, Inc., Del.Supr., 537 A.2d 187, 188 (1988).
Kysor Indus. Corp. v. Margaux, Inc., Del.Super., 674 A.2d 889, 894 (1996).
Of the two defendants moving for summary judgment, only one is named as a party in the caption and in the complaint, DeLuca. ALS-Wynwood was mentioned in the complaint but is was not named as a party nor served with the complaint. It was granted permission to intervene several months after Local 626 filed its current action. The record is undisputed that ALS-Wynwood is the owner of the property. Its ownership is a matter of public record. The contract for the construction of the building involved in this litigation is between ALS-Wynwood, as owner, and Continuing Care Concepts, Inc., as contractor. That much is also uncontradicted.
Local 626, however, points to other circumstances in the record either to show there is a genuine issue of material fact or that it named the proper parties. Joseph Durham, a trustee to many of the individual plaintiffs, and Local 626's business representative has provided an affidavit. He states that he visited the construction site. He says the sign for the project listed DeLuca as the contractor. Also, he says, the workers wore hard hats with DeLuca's name on them and that equipment on the site had DeLuca's name on it. Durham indicates the construction sign identified the owner as Wynwood of New Castle, one of the defendants Local 626 named. He also says the project name was Wynwood Care Facility, another defendant Local 626 named in its complaint. Finally, he states that when the superintendent for the general contractor contacted him, that superintendent identified himself as from DeLuca. Neither DeLuca nor ALS-Wynwood have presented any evidence that anything Durham has sworn to is in any way mistaken or incorrect.
Local 626 did name South Jersey Construction Group, Inc., a New Jersey corporation, as a defendant. Durham states South Jersey is a signatory to the collective bargaining agreement with Local 626 and is contractually obligated to make the payments of the kind it seeks in this action. Service on South Jersey has been made only through the Secretary of State. There has been no long-arm follow-up service nor has South Jersey filed an answer.
DISCUSSION
Mechanics' lien actions are of statutory creation. Such actions are in derogation of common law and must be strictly construed. The statutory scheme creating such actions contains specific requirements for a complaint or statement of claim. Among them are that the name of the owner or reputed owner of the structure and the name of the contractor must be stated.
25 Del. C. Ch. 27; Silverside Home Mart, Inc. v. Hall, Del.Super., 345 A.2d 427, 428 (1975).
Iannotti v. Kalmbacher, Del.Super., 156 A. 366 (1931).
25 Del. C. § 2712(b)(2) and (3).
With these requirements in mind, the Court will first examine the status of this action in the light of Local 626's failure to name as a defendant the actual owner, ALS-Wynwood. As noted, ALS-Wynwood is mentioned in the complaint as an owner but it is not named as a party nor was it served with the complaint. Should Local 626's mechanics' lien action be reduced to judgment, it becomes a lien against the structure and land which ALS-Wynwood owns. Further, the existence of even a potential mechanics' lien has substantive consequences on financing and financing arrangements.
The failure to name ALS-Wynwood as a party is a fatal flaw in Local 626's action. Local 626 seeks to avoid the circumstance by reference to the sign at the construction site and a brochure for the facility. That is not enough to avoid the consequences of the fatal flaw nor sufficient to create a genuine issue of material fact. It is undisputed that ALS-Wynwood is the owner and that fact is a matter of public record in the New Castle County Recorder of Deeds Office. The deed to ALS-Wynwood was recorded September 30, 1997. Local 626's claim is for work which began on February 2, 1998.
Electronics Methods Assocs., Inc. v. Wilmington Engineering, Inc., Del.Super., C.A. No. 4502, 1977, Christie, J. (November 21, 1977).
It is too late for Local 626 to amend its complaint to cure this defect. It is in the category of subcontractors, vendors and other persons/entities who have ninety days from the completion of their work or labor to bring a mechanics' lien action. Without contradiction, ALS-Wynwood was not made a party within that ninety-day window. It did not intervene until the window was closed. Therefore, assuming that an amendment to name the correct owner, if timely requested, could have been granted, any such amendment now is untimely and could not be permitted.
E.J. Hollingsworth Co. v. Continental Diamond Fiber Co., Del.Super., 175 A. 266 (1934).
Since the Court holds Local 626's mechanics' lien complaint is defective for failure to name the correct owner, it is unnecessary to discuss the other issues ALS-Wynwood and Local 626 raise.
In seeking dismissal of Local 626's action, DeLuca raises the same defense of failure to name the correct owner. It raises additional defenses particular to it. Unlike ALS-Wynwood, however, DeLuca was named as a party and sued. It claims, on the other hand, it was not a party to any contract in the construction project. Contrasted with ALS-Wynwood though is that the owner-general contractor contract is not a matter of public record. Whether anyone would have provided Local 626 with a copy, or even if it sought one prior to filing suit, is not a matter of record in this case.
The failure to name the proper owner in a mechanics' lien action is also a fatal defect in an action against the general contractor. Where, however, the correct owner has been named and sued in an action by a subcontractor but the general contractor was not, the Court has permitted follow-up action to bring in the general contractor. That result is clearly predictable because a mechanics' lien action is an in rem action. In Westinghouse Electric, the owner, against whose land the judgment lien could ultimately lie, was a named party. That is not our situation here. Local 626's mechanics' lien action against DeLuca failed to name the owner and its action must be dismissed.
Electronic Methods Assocs., supra.
Westinghouse Electric Supply Co. v. Franklin Institute of State of Pennsylvania for Promotion of Mechanic Arts, Del.Super., 21 A.2d 204 (1941).
But, the inquiry does not stop there. Often mechanics' lien actions are brought in the same complaint as a separate contract claim. So even if the lien action is dismissed, the contract action survives to be litigated. That circumstance exists in this case, too. Based on the ALS-Wynwood contract with Continuing Care and that DeLuca was not a contracting entity for this project, dismissal of the in personam contract action against DeLuca might seem justified. There is an additional wrinkle. The bill of particulars attached to the original complaint indicates the contractual relationship that Local 626 had was with South Jersey Construction, Inc. It is located in Collingswood, New Jersey.
In arguing to keep DeLuca in, Local 626 argues that DeLuca's address is the same as the actual contractor, Continuing Care. The record supports that statement. But, the address those two contractors share is in Newtown, Pennsylvania. In its complaint, Local 626 alleges South Jersey was the only party that was contractually obligated to pay the monies it seeks in this action. It has not made an independent contract claim against DeLuca or Continuing Care. There is a contractual claim against South Jersey. Service on it has been made through the Secretary of State but no further service has occurred nor has an answer been filed.
Durham's affidavit about all of the contacts with DeLuca and the DeLuca name on the site sign, the hard hats and equipment is directed at the argument that Local 626 had misidentified the general contractor in the mechanics' lien action. These uncontradicted statements, therefore, are only germane to the adequacy of that action. They would be relevant to any discussion of whether a genuine issue of material fact exists over who was the general contractor in that action. But, whoever the general contractor may have been is irrelevant to the alleged contractual liability of South Jersey.
Local 626's mechanics' lien action must be dismissed. Further, it has not offered any claim for wages or benefits against either ALS-Wynwood or DeLuca. Nor, for that matter, has it offered any claim for monies due against Continuing Care. Its contract action against South Jersey remains.
CONCLUSION
For the reasons stated herein, the motions for summary judgment of defendants ALS-Wynwood, Inc., and DeLuca Enterprises, Inc., are GRANTED. As to defendants Wynwood of New Castle a/k/a Wynwood Care Facility and South Jersey Construction Group, Inc., plaintiff has thirty days to perfect service or take other appropriate action.
IT IS SO ORDERED.