EXHIBIT "4"
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Case 1:05-cv-00300-JJF Document 164-6 Filed O1/31/2007 Page 2 of 4
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Not Reported in A.2d Page l
Not Reported in A.2d, 1997 VVL 720463 (Del.Super.)
(Cite as: Not Reported in A.2d)
Q Plaintiff and Builders entered into an oral contract
Gaivagua v_ Marty Miller Censtreetien, which provided that Plaintiff was to provide labor
l11C.D€l.SUper.,l997.0nly the Westlaw citation ig Bild lT13l£€1'l6.lS to the structure. rln eonnection
eerrently available- therewith, Plaintiff installed tile, which included a .
UNPUBLISHED Op]‘N‘lON_ CHECK CCURT decorative border defendant Robert W. Hall picked
RULES BEFORE ClTlNG_ out, in the portion of the structure known as
SupBl·•i0rC0urtOfDB1aW3rC_ American Health & Fitness Center. The amount
Stephen p_ GALVAGNA, T/AG&G Aeeiieatersr owed Plaintiff for labor and materials supplied is
plaintiff, $7,220.00. Builders has not paid Plaintiff.
_ v_ Furthermore, the Owners have not paid either
MARTY MHILER CONSTRUCTION, INC_, A Builders or Plaintiff the sums allegedly due and
Corporation ofthe stoto ofMaryland, tote Robert w. eruhe The phselpei ef Bhlieefst Mehr Mules
nan ooo Janet D. nan, nts wire, Derooaoots. esrees that Builders ewes Pieuhhff the sums ehesed
Ne_ CIV_ A_ g6L_01_{;15_ to be due and owing. However, he alleges that the
Owners have not paid him, and that is the reason why
Sept- ig! l997_ _ he has not paid Plaintiff The Owners argue they
had no contract with Plaintiff and Plaintiif should
seek to recover the sums due and owing it from
Iames F. Waehler, Esquire, Tunnel] & Raysor, Bmldam .
G ` DE, f i ` `ff . . .
R;(§igOVnln’ Bnnrml iamlgnnnnn End & rnnnn In the Court’s file on this action, there is a letter dated
GnOrgntn“,n DE` “r’nI_“ n` n" rnndnnts hnbnn W Hnn nn April 18, 1997, from the principal of Builders stating:
Inner D Han ’ ’ V I completed the building and the next day the Hal1's
M nny rerrrrnn B nrn n MD pm Sn [sic} were open and doing business. I have been `
’ ’ ’ ' forced to close my corporation due to no money
MEMORANDUM OPINION available. I have liquidated all assets to help pay off
GRAVES rr outstanding debts and legal fees and still have some
el This is nn nctrnn which nrarnnrr Stephen nl hemaining .... I have no money to hire- an attorney
Galvagua, t/a G & G Applicators (“Plaintiff’) has Bm
filed against Marty Miller Builders, Inc. ("Builders")
as well as Robert W. Hall and Janet D. Hall . _ _
(collectively referred te as ==the Oweers==)_ The The procedural aspects of this ease recluire review.-
eernelaint eeetains the reellewing elairest a Plaintiff has its in personam claims against Builders
moohootoa noo eatin; to at pmoaom claim agonist eee the Oujhers- The meehemes‘ heh ehum ¤s hehed
Builders eased eeen eeetraetr and an in persenern due to Plaintiffs failure to mciude in the complaint
elaire against the Ownars based enen enenrern the existence oi; and the time of recording of a frst
meruit, or unjust enrichment. Pending before the COFNTUCUOU m01Tg¤g€-
Court it tho motion gr the owoot-S to dismiss the - Buudershes
eeendlaint against there ee the ground that plaintiff asserted a counterclaim against Plaintiff and a cross-
has ee eaese efaetien against then-l_ claim against the Owners. An arbitrator heard this
matter, _ I-le entered a judgment in Plaintiffs favor
and against Builders on the in persormm claim. He
FACTS - also entered a judgment in the Owner‘s favor and
against Plaintiff in connection with Plaintiffs in
Builders, as general contractor, contracted with the ermnam Flalm agamstrthe Owners` _H€ ttttrtd
Ownnrs in buns n nnnnnnnnnnr Snnnnnn (anne judgment in the Owners favor and against Builders
Sn_nnnn_n,,) an the Ownnns nnnr Fenwick rnrnnd on Builders' cross-claim, and judgment in Plaintiffs .
Dnrnwnrn rrnn Snnnnnn in n nnnnnny Stnni · favor and against Builders on Builders‘ counterclaim.
aatatod building atvtaoo into three tsptato oats gggilg giijwj eeeeee he eel de Here which
containing approximately 10,000 square feet. After n _ _ _ '_ -
oem an Builders stmt into that roam, 2 P*e1¤¤tT·¤*e·me¤*» by eee mesh eeeeeeh
_ . © 2007 Tl1omsonfWest. No Claim to Orig. U.S. Govt. Works.
Case 1:05-cv-00300-JJF Document 164-6 Filed O1/31/2007 Page 3 of 4
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Not Reported in A.2d Page 2
Not Reported in A.2d, 1997 WL 720463 (Del.Super.) t
(Cite as: Net Reported in A.2d)
hereby requests a Trial de Novo in the above- L.Ed.2d 551 {1992); Celcrex Corp. v. Carrera supra. `
captioned action from the undated Arbitrator's Order IQ however, material issues of fact exist or if the
filed with the Court on November 12, 1996, with Court determines that it does not have sufficient facts
respect to the judgment entered in favor of to enable it to apply the law to the facts before it,then
defendants Hall and against Plaintiff-Claimant, if a summary judgment is inappropriate. Eberscle v.
request for a trial de novo can be made with respect Lcwengrub, Del.Supr., 180 A.2d 467, 470 { 1962 i.
to only a part of the Arbitrator's findings, or hom the
entire order entered in the above-captioned matter if In their motion, the Owners argue that because
so required. Plaintiff] a materialman, did not have a direct
. contract with them, then Plaintiff is not entitled to an
in perscnam judgment against them. Piaintiff argues
In their hiiaiiiig on the oondina snniniaty judgment that in this case, where the Owners would be unjustly .
motion, Plaintiff and Owners indicate that the only aariahad beeauae they rreVer haVe Paid anyaaa ter the
niattai remaining in this aotion is piaintit*t·s claim labor and materials Plaintiff supplied, then Plaintiff is
against the Owners. The indication is that the claims eutttted td raaatar Pursuaut ta theertes of quaarum -
of and involving, Builders are resolved. The meratt at restrtutreu-
general rule is that absent an agreement on the part of _
allparties otherwise, all claims in a case are subject *3 Altueugh Ptatuttrt has uet argued erttrttemeut td
to the trial de novo; i.e., the entire proceeding ree9Ver based uPeu att"urd·PartY banatiaiaor Status, I
eeulmies mea. In this ease, a pretrial scheduling will addraaa that iaaaa fast- Ia aaaattuatiaa {aattata
oonfoionoo was hotii whoi-o all tho nai-tias Wai-o the parties generally craft their contracts to lnsulate
present thereat, and a scheduling order wasnentered. tha ewuer fruru the subedutraeteri tha ewuer and
Thorn is no indication Eom that proceeding that tha general contractor deal with one another while the
oniy inattoi. on appeal is tho judgment in favor of tho general contractor and subcontractor deal with one
Ownoi-s anti against Plaintiff Consequently, tho another. Pierce Associates, Inc. v. Nemours
entire case is before the Court as a result of the
tiainanti for a ttiai de noVo_ However, tha Only cert. den., 42 U.S. 907, 109 S.Ct. 3218 §l989;. The
inattoi. which this Court now addresses is tho Ownoi-s· contracts generally do not allow for the subcontractor
pending motion toi. sinnniai-yintigtnont_ to be considered a third-party beneficiary of the
contract between the contractor and the owners. Id.
Only when the contract explicitly states that it intends
for the subcontractor to be a third-party beneficiary
DISCUSSION do the courts allow the subcontractor to sue the
Summary judgment may be granted may when no owner based upon a third-party beneficiary status.
issues of materiai fact exist, and the moving party M
?;;1;$B 0;.6SiggiishlnitgsrgotBX§;?;;;I;f A review of the contract submitted in this matter
Dans. 465 Au at ar?‘m t aaa that that it aa_taad·aaa baaaadad Stats
moving my meets is una, then the than shifts taaawad ada Ptaatat tha Paaaaat baeaaa
is as m-maug play to usual the existence of Bauas aaa as Owaas what ata It tha aaa ta
material issues of fact. Id at 681. Vlfhere the Seek aayaaat at Smeg due aaa area lt'
mating party produces an affidavit Ol are- anna Caaaaasaataa Praaatf IS mt a, thad·¤aa
Sunicifmt under Super. Ct. Civ. R, 56 in Support Of beneficiary of the contract between Builders and the
its motion and the burden shifts, then the non—moving OWn°1:S‘ Id For the $3196 r€aS°nS’ the Owners are
. · not third-party beneficiaries of the contract between E
party may not rest on 1ts own pleadmgs, but must . . .
provide evidence showing a genuine issue of material Builders and Ptamufi _1d‘ -
Ei; fc; trggtrgguggiii 1§a;_gg3)’io I now turn to the law addressing the issue of whether
2548, 91 1,.ua.2¤1 265 {1986). It] use discovery, the a S“t’°°“r“"°t‘¥r ma? bene a datm based “P°“
mmmcving pany cannot make a Susnclm Showing quantum marurt, or implied contract. In Cohen v.
of the existence of an essential element of his or her
ass, then mma judgment will be grass. wird? Cataa >» tha steam edatada-
. Burkhart V. Dutta ne1.supl~., 602 A.2r1 56, ss 3· A matir}a;ma"» is S“t?°°;‘tta°t°t· gay “°t ’*’.°°;’i_‘?r
t I a erscna. ju gmen agams a prope owner in e
1991 ’ Cem dem — 04 U'S` 912 H2 S"Ct` 1946 Hg abisence of a contract between them [Citations
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Case 1 :O5—cv-OO300—JJF Document 164-6 Filed O1/31/2007 Page 4 of 4
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· Not Reported in A.2d Page 3
Not Reported in A.2d, 1997 WL 720463 (Del.Super.)
(Cite as: Not Reported in A.2d) -
omitted.] Plaintiff is entitled to pursue against the Owners the
4. A matrialman who, as a subcontractor, furnishes . in personarn claim based upon quantum meruit.
materials upon the order and credit of a general
contractor or of another sub-contractor, cannot For the foregoing reasons, the Owners' motion for
recover in an action in personam against are owner summaryjudgment is denied.
upon the basis of implied contract arising hom the _ ‘
receipt and acceptance of the benefit ofthe materials IT IS SO ORDERED.
furnished. [Citations omitted.] · _
Del.Super.,l997.
. Galvagna v. Marty Miller Construction, Inc.
The Superior crrrrrr rrriiewrd this rule in rruzzrrm M Nvt R<=¤¤¤<=d in A·2
JA2, Graves, J. (May 1, l99l) (“Young "). The END OF DOCUMENT
Court held that based upon Cohen, the subcontractor
could not recover against the owners of the property
who hadpaid the general contractor. Plaintiff argues
that Young is distinguishable because in this case, the
Owners have not paid Builders, and the Owners
would be unjustly enriched if Plaintiff is not allowed
to pursue them.
Other pertinent caseslto examine are Chrysler Corp.
v. Airtemg Corg., Del.Super., 426 A.2d 845 (1980]
and Gilbane Building Company v. Nemours _
Foundation, D.Del., 606 F.Supp. 995 gl985). In the ·
case of Chrysler Corp. v. Afrremp Corp., 426 A.2d at `
853-36, the Superior Court held that it would not
consider a quantum meruir theory to find a third- - ‘
party beneficiary liable unless there existed an ‘
inability to recover under the underlying or express I
contract or it would be unconscionable for the third-
. party beneficiary to retain the benefits. Similarly, in
Gilbane Building Company v. Nemours Foundation,
606 F.Supp. at 1007-08, the Delaware District Court
granted the owner‘s summary judgment motion
against the subcontractors because there were no
allegations that the subcontractors would be unable to
recover from the general contractor on the express
contract or that the owner had failed to pay the
general contractor for the services the subcontractors .
rendered thereby unjustly enriching the owner. _
*4 Here, in light of the letter from Builders‘ principal 9
indicating Builders has closed down and liquidated
its assets, it may well be that Plaintiff cannot recover ’
from Builders. Furthermore, Plaintiff and Builders
have alleged that the Owners have not paid Builders
for the services and material Plaintiff supplied. The
Owners have not disputed this allegation, and it is -
accepted as true for summary judgment purposes.
Based upon what is before the Court in this summary P
judgment proceeding, it is reasonable to conclude ·
that the Owners may be unjustly enriched by the
labor and materials which Plaintiff provided.
Consequently, I hold that on the facts of this case, `
‘ © 2007 Thomson/W est. No Claim to Orig. U.S. Govt. Works.
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