Lost in Rehoboth v. Broadpoint Construction, LLC

• Court: Superior Court of Delaware
• Decided: May 15, 2024
• Docket: S21C-03-021 MHC
• Status: Published

Opinion

SUPERIOR COURT OF THE STATE OF DELAWARE

Sussex County Courthouse MARK H. CONNER 1 The Circle, Suite 2 JUDGE Georgetown, DE 19947

May 15, 2024 Aaron E. Moore, Esq. Edward Seglias, Esq. M. Claire McCudden, Esq. COHEN, SEGLIAS, MARSHALL DENNEHEY, P.C. PALLAS, GREENHALL & Wilmington, Delaware 19899 FURMAN, P.C. Attorneys for Defendant Fisher Wilmington, Delaware 19801 Architecture, LLC. Attorney for Plaintiff Lost in Rehoboth, LLC.

Eric Scott Thompson, Esq. Franklin & Prokopik 800 Creek View Road, Suite 300 Newark, Delaware 19711 Attorney for Defendant Broadpoint Construction, LLC

RE: Lost in Rehoboth, LLC v. Broadpoint Construction, LLC and Fisher Architecture, LLC C.A. No. S21C-03-021 MHC

Dear Counsel,

Before the Court are two motions that will each be addressed in turn. The first

motion is Defendant, Broadpoint Construction, LLC’s (“Broadpoint”), motion to

strike demands for a jury trial. The second motion is Defendant, Fisher Architecture,

LLC’s (“Fisher”), motion for leave to amend its answer and counterclaims. Relevant Factual History

The relevant facts can be summarized as follows. Plaintiff, Lost in Rehoboth

(“LIR”), entered into a contract with Broadpoint for the construction of a restaurant

on Rehoboth Avenue. The LIR-Broadpoint contract contained a jury waiver

provision. Broadpoint subcontracted architectural work on the construction project

to Fisher. The Broadpoint-Fisher contract contained a clause indemnifying Fisher.

For reasons irrelevant to the present motion, LIR commenced legal action

against Broadpoint and Fisher with no demand for a jury. Fisher Architecture filed

its answer with no demand for a jury and no assertion of a crossclaim against

Broadpoint for common law contribution and indemnity. Broadpoint filed its answer

demanding a jury trial and asserting cross claims against Fisher. On May 28, 2021,

Broadpoint filed a Third-Party Complaint against Delaray Foundations (“Delaray”)

demanding a jury trial. On November 22, 2021, Delaray filed a motion to dismiss

demanding a jury trial. Broadpoint then filed a response in opposition to Delaray’s

Motion to Dismiss again demanding a jury trial on December 17, 2021.

Broadpoint’s Motion to Strike

The issue of a right to a jury trial was first raised when Broadpoint filed a

motion to strike demands for a jury trial on March 3, 2023. Delaray filed a response

in opposition on March 7, 2023. LIR also filed a response in opposition on March

9, 2023. In the past 14 months much has changed in the posture of this matter. Delaray

is no longer a party to this litigation, discovery has commenced, and attempts at

mediation have failed to name a few. Therefore, I am requesting additional briefing

on the issue of a right to a jury trial considering the contractual provisions and

inconsistent positions of the parties. Please provide simultaneous briefing by June

28, 2024.

Fisher’s Motion for leave to Amend

On December 21, 2023, Fisher filed a motion for leave to amend its answer

and counterclaims. Fisher seeks to amend its answer to add a crossclaim for common

law contribution and indemnity against Broadpoint. Neither Broadpoint nor LIR

have responded to this motion.

Superior Court Civil Rule 15(a) provides that “leave shall be freely given

when justice so requires.”1 Absent prejudice to another party “the trial court is

required to exercise its discretion in favor of granting leave to amend.”2 Although

undue delay may be cause for denial of a motion to amend, it alone is insufficient to

deny amendment of pleadings.3 “In determining whether to grant a party's motion

for leave to amend, this Court will balance the hardship encountered by the moving

1 Del. Super. Ct. Civ. R. 15 2 Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258, 263 (Del. 1993) (citing Ikeda v. Molock, Del.Supr., 603 A.2d 785 (1991)). 3 Parker v. State, 2003 WL 24011961, at *3 (Del. Super. Ct. Oct. 14, 2003). party if such motion is denied against the prejudice suffered by the adverse party if

such motion is granted”.4

The absence of a response by any party, including Broadpoint, to this motion

is indicative of its potential prejudice. Therefore, given the courts wide latitude to

freely grant such motions for leave and the minimal prejudice that will befall the

other parties, namely Broadpoint, I hereby GRANT Fisher’s motion to amend. The

proposed Order supplied with the motion will be signed.

IT IS SO ORDERED.

/s/Mark H. Conner Judge Mark H. Conner

via File & Serve xc: Prothonotary

4 Wilson v. Wilson, 2005 WL 147942, at*1 (Del. Super. Ct. Jan. 14, 2005).