Browning-Ferris, Inc. v. Rockford Enterprises, Inc., BROWNING-FERRI

Decision Date08 April 1993
Docket NumberBROWNING-FERRI,INC,No. 91L-12-33,91L-12-33
Citation642 A.2d 820
CourtDelaware Superior Court
Parties, Plaintiff, v. ROCKFORD ENTERPRISES, INC., a Delaware corporation, Nason & Cullen, Inc., a Pennsylvania corporation, and Medical Center of Delaware, Inc., a Delaware corporation, owner or reputed owner, Defendants. C.A. . Submitted:
OPINION

COOCH, Judge.

Browning-Ferris, Inc. ("BFI") filed this action seeking a mechanics' lien against defendants Rockford Enterprises, Inc. ("Rockford"), Nason & Cullen, Inc. ("N & C") and the Medical Center of Delaware, Inc. ("Medical Center") and also seeking an in personam judgment against Rockford for the balance of payments allegedly owing under a contract between BFI and Rockford for the removal and disposal of demolition debris from Wilmington Hospital. BFI has moved for summary judgment on its mechanics' lien claim pursuant to Super.Ct.Civ.R. 56 on the grounds that there are no genuine issues of material fact and that it is entitled to a mechanics' lien as a matter of law. In response, N & C and Medical Center have filed cross motions for summary judgment, asserting that BFI is not entitled, as a matter of law, to a mechanics' lien for its demolition labor. N & C and Medical Center also aver that, if the Court should find BFI is entitled to a mechanics' lien, there are nevertheless genuine issues of material fact as to whether all the work claimed by BFI was actually performed at Wilmington Hospital.

For the reasons stated herein, the Court denies BFI's motion for summary judgment and grants summary judgment to N & C and the Medical Center on their cross motions for summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Wilmington Hospital, which is owned by Medical Center, is located generally at 12th and Washington Streets in Wilmington, Delaware. Wilmington Hospital is a multi-story building, portions of which have recently undergone renovation. Certain demolition and removal work done in conjunction with these renovations is the subject of the instant litigation.

On June 28, 1991, Medical Center and N & C entered into a contract for the renovation of certain areas of Wilmington Hospital. On July 8, 1991, N & C, general contractor on the project, entered into a contract with Rockford, a demolition company, pursuant to which Rockford would perform the demolition work necessary for the project. Rockford's portion of the project involved only the demolition and removal of certain internal portions of the hospital structure, not the hospital structure itself; Rockford did not contract to perform any construction on the project. Specifically, the contract between N & C and Rockford required Rockford to:

[P]rovide all labor, material, equipment and services necessary for all demolition work on the 1st, 5th, and 6th floors of the Wilmington Hospital per plans, specifications, and addendums listed in the Contract Documents in attached Exhibit "E."

On December 19, 1990, prior to the above contract with N & C, Rockford had entered into a contract with BFI in which BFI agreed to haul and dispose demolition debris on behalf of Rockford at sites designated by Rockford. In return, Rockford agreed to pay BFI a fee of $85 per haul, along with any disposal costs associated with depositing the debris in local landfills.

Pursuant to its contract with Rockford and at Rockford's direction, BFI began delivering dumpsters to the Wilmington Hospital site. Rockford employees filled the dumpsters with demolition debris from the hospital and hauled the debris from the Wilmington Hospital premises to local landfills and returned empty dumpsters to the site for future use.

Pursuant to the BFI-Rockford Contract, BFI sent Rockford weekly invoices for this service. However, many of the invoices went unpaid by Rockford, some or all of which were for work done at Wilmington Hospital. On January 14, 1992, BFI filed an amended complaint and statement of claim for a mechanics' lien against Rockford, Medical Center and N & C seeking a mechanics' lien and an in personam judgment against Rockford in the amount of $57,324.34.

On July 14, 1992, this Court, upon motion by BFI, ordered summary judgment entered against Rockford on Count II (the in personam claim) in the amount of $57,324.34, plus interest and attorneys' fees, and on August 26, 1992, the Court, upon motion by N & C and Medical Center, ordered the discharge of the mechanics' lien upon the entry of a security bond pursuant to 25 Del.C. § 2737.

BFI filed the instant motion for summary judgment against N & C and Medical Center on December 18, 1992 on the grounds that there are no genuine issues of material fact and that BFI's labor in connection with the removal of debris from Wilmington Hospital entitles it, as a matter of law, to a mechanics' lien under 25 Del.C. § 2702.

In response, N & C and Medical Center filed a joint cross motion for summary judgment denying that BFI is entitled to a mechanics' lien as a matter of law and further averring that, even if BFI were entitled to a mechanics' lien, that genuine issues of material fact exist as to whether the amount ($57,324.34) claimed by BFI actually represents work performed exclusively at Wilmington Hospital. N & C and Medical Center argue that 1) BFI is not entitled to a mechanics' lien as a matter of law for demolition work under 25 Del.C. § 2702; 2) BFI is not entitled to a mechanics' lien under 25 Del.C. § 2702 because BFI did not furnish either "labor" or "materials" but rather "leased" the dumpsters to Rockford; 3) BFI's claims are time-barred; 4) BFI is not entitled to a mechanics' lien because neither labor nor materials were furnished on the "credit of the structure"; and 5) BFI is not entitled to a mechanics' lien because it failed to "adequately describe the property" as required by 25 Del.C. § 2712(b)(7).

In reply, BFI argues that 1) demolition work is covered under 25 Del.C. § 2702; 2) BFI's lien is for "labor" as opposed to "equipment leased" and thus covered under the mechanics' lien statute; 3) BFI's claims are not time-barred; 4) BFI's labor was furnished on the "credit of the structure"; and 5) BFI's description of the property was adequate.

II. DISCUSSION

The question of whether demolition work is properly lienable under the Mechanics' Lien Act is a question of first impression in Delaware.

Upon a motion for summary judgment, the Court must view the facts and all reasonable inferences in a light most favorable to the non-moving party. Super.Ct.Civ.R. 56(c); In re Asbestos Litigation, Del.Super., 509 A.2d 1116, 1118 (1986), aff'd Nicolet, Inc. v. Nutt, Del.Supr., 525 A.2d 146 (1987). The Court will grant summary judgment only if the pleadings and the record show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. Super.Ct.Civ.R. 56(c); Moore v. Sizemore, Del.Supr., 405 A.2d 679, 680 (1979). Also, where the non-moving party bears the ultimate burden of proof, summary judgment may be granted if the moving party can demonstrate a "complete failure of proof" concerning an essential element of the non-moving party's case. Burkhart v. Davies, Del.Supr., 602 A.2d 56, 59 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)); Hammond v. Colt Industries Operating Corp., Del.Super., 565 A.2d 558, 561 (1989).

In a case involving cross motions for summary judgment, the parties implicitly concede the absence of material factual disputes and acknowledge the sufficiency of the record to support their respective motions. See Merrill v. Crothall-American, Inc., Del.Supr., 606 A.2d 96, 100 (1992) (stating that parties implicitly concede the non-existence of factual disputes upon their filing of cross motions for summary judgment, citing Fiduciary Trust Co. v. Fiduciary Trust Co., Del.Supr., 445 A.2d 927 (1982)). Thus, in the instant case, the parties have implicitly conceded the absence of any material factual disputes, except for the issue of whether BFI's claimed damages are for work exclusively at Wilmington Hospital.

Although the parties have raised other issues, the Court concludes, for the reasons stated herein, that the only issues necessary for determination are 1) whether work incident to demolition is lienable under § 2702 of the Delaware Mechanics' Lien Act and 2), if demolition work is not otherwise lienable, whether the Court should recognize an exception in this case because the demolition was done pursuant to a general plan of renovation.

A. Labor Incident to Demolition is Not Lienable Under 25 Del.C. § 2702

In 1861, the General Assembly enacted into law "[a]n Act securing to Mechanics and others payment for labor and materials in erecting or repairing any building or structure within the State of Delaware" (hereinafter "the Act"). 12 Del.Laws, c. 117, codified at 25 Del.C. §§ 2701-2737. The Act provides, inter alia, a statutorily created lien against an owner of property in favor of certain persons who performed labor or who provided materials "in or for" the property. 25 Del.C. § 2702. Section 2702 provides as follows:

*824s 2702. Persons entitled to obtain lien.

(a) It shall be lawful for any person having performed or furnished labor or material, or both, to an amount exceeding $25 in or for the erection, alteration, or repair of any structure, in pursuance of any contract, express or implied, with the owners of such structure or with the agent of such...

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