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ORDER
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Pursuant to Rule 561 and Rule 37,2 Day Star Sills, Inc (“Day Star”) seeks an
order entering partial summary judgment and sanctions based on a release executed
by D.W. Burt Concrete Construction, Inc (“Burt”), waiver by failing to address the
matters according to the contractual procedures, and failure to comply withcourt
ordered discovery requests. , ..
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Day Star retained Burt to provide concrete and other services. Burt executed
sworn releases, including a release executed on May 20, 2013 providing:' I I.
“...any and all causes of action suits, debts, accounts, "
damages, encumbrances, judgments, claims, liens, and ' "
demands whatsoever. . .which the undersigned. . .ever had
or now has against Daystar, the Owner of the Premises ..—..I
by reason of delivery of material and/or performance of
the work relating to the construction of the Project, for
materials delivered and work performed through the 25th
day of March, 2013.”3
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Day Star contends Burt is seeking payment from claims for work prior? to
that date. Specifically, two change orders dated December 16, 2012 and .February
28, 2013. These two charge orders have thus been waived in accordance with
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1 Super. Ct. Civ. R. 56.
2 Super. Ct. Civ. R. 37.
3 Def.’s Mot. for Summ. J. at 1] ,
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precedent from the Delaware Supreme Court.4 Thus, release is ordered on change
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orders 1 and 2 in the amount of $253,266.5
Additionally, Burt may not seek recovery for any of the change ordersfdue
to the failure to follow contractual notice provisions. The contract between Burt
"iii." .
and Day Star provided that all change order requests must be made with prior -.
written approval from Day Star.6 Moreover, all change orders should have
made within ten days after the first occurrence of the event giving rise to the claim,
and any change orders that were not submitted in accordance with this provision
are waived.7 As such, Burt has waived all of their change orders claims, Itotjalirng
$343,686.00, by failing to seek Day Star’s prior approval or producing evideri'ce of
Burt’s compliance with these provisionsigi
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Day Star sought discovery requests from Burt seeking a substantiation of
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Burt’s change order, ev1dence disprov1ng the1r untimely subm1ss1on, ev1dence1
suggesting the contract between Day Star and Burt may be invalid, and seeking
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4 Rive
rbend Cmty., LLC _v. Greer} Stone Er;g'g, LLC, 55 A.3d 330, 335 (Del. 2012) (upholding
-x_ Wei " " his”.
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8 ee generally, Millsboro Fire Co. v. Constr. Mgmt. Serv., Inc, 2009 WL 846614 (Del. Super.
Mar. 31, 2009) decision clarified on re-argumem‘, 2009 WL 4017766 (Del. Super. Nov. '12,
2009); Hartford Cas. Ins. Co. v. MDI Const., L.L.C., 2012 WL 4970210 (E.D. La. Oct_. 17,”.___.
2012); Weigand Const. Co., Inc. v. Stephens Fabrication, Inc., 929 N.E.2d 220 (Ind. 'Ct.'App.
2010); see also, Def.’s Mot. for Summ. J. at 11 3.
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1—. 1'1. "35b; _ .
expert disclosures.9 Burt did not respond.10 Day Star filed a motion to compel.“
Burt has not substantially complied with these requests because to date Burt has
only provided a list of experts with a generic opinion description.12
Burt has failed to comply with the discovery response deadline that'vvas'
stipulated to by court order.13 Nor has there been any compliance since the hearing
on February 27, 2015 and there has been no compliance with the Court’s order.
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Due to Burt’s failure to comply with discovery requests by Court order, the
Pair-2:1
Court orders the designated facts are taken to be established in accordance with the
claim of the party obtaining the order, Day Star, and Burt may not oppose the
designated defenses and is prohibited from introducing designated matters inl
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ev1dence.
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Burt may not oppose Defendants’ defenses including: (1) Burt’s svvorn a
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releases bar change order 1 and 2; (2) all change orders are barred due to Burt’s
failure to substantiate the claim and failure to give proper notice under the contract;
(3) the contract is the actual valid contract.15
9 Def.’s Mot. for Summ. J. at 11 5,5};
10 '
Id.
_ l l_ __ _ __ __ ._ ___ ihoodPlanningAdvisory Comm, Inc., 2003‘WL
908885, (Del. Super. Mar. 7, 2003) afi'd sub nom, Davis v. W. Ctr. City Neighborhood-ijhhing
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Also, Burt is precluded from offering expert testimony because of the failure
to disclose the substance of their expert opinions.16
Burt has not provided a justification for their failure to respond to the
discovery requests and summary judgment may be entered when a party fails to
answer discovery requests and there are no facts disputed based on the failure to
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produce ev1dence to counter the release and walver.
Considering the foregoing, after giving the parties an opportunity to respond,
the attached order has been signed.
IT IS SO ORDERED
Richard F. Stokes, Judge
cc: Prothonotary
Advisory Comm, 836 A.2d 513 (Del. 2003) (holding without a meaningful opportunity for
discovery defendant could not prepare a proper defense and thus the proper recourse is 37(d));
see also, Def.’s Mot. for Summ. J. at fl 7—8.
16Sammons v. Doctors for Emergency Servs., PA, 913 A.2d 519, 528 (Del. 2006) (affirming a
trial court order restricting expert testimony finding it is unreasonable for counsel to go on a
proverbial wild goose chase without the benefit of their scientific reasoning for those opinions);
see also, Def.’s Mot. for Summ. J. at 1] 9.
'7 Wilmington Sav. Fund Soc 'y, FSB v. SD Properties, LLC, 2012 WL 1664247, at *1 (Del.
Super. May 10, 2012); see also, Def.’s Mot. for Summ. J. at 11 10.
EFiled: Oct 29 2014 05:56P .
Transaction ID 56264942
Case No. S13L-10-043 RFS
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR SUSSEX COUNTY
D.W. BURT CONCRETE )
CONSTRUCTION, INC. ) CA. No.: Sl3L—10-043 RFS
Plaintiff, )
vs. )
DEWEY BEACH ENTERPRISES, INC., )
et al., )
Defendants. )
MB
Upon consideration of Defendants ’ Motion for Partial Summary Judgment and Sanctions
and any response thereto,
It is hereby ORDERED that:
A) Judgment is entered in favor of Defendants on Plaintiff’s Counts Ithrough IV
change order claims in totaling $343,686;
B) Plaintiff’s sworn releases bar Change Orders 1 and 2 and any other work/claim
which predate the date of the releases;
C) All of Plaintiff’s change orders are barred due to Plaintiff’s failure to substantiate
the claims and failure to give proper notice under the contract;
D) Exhibit C to the Motion is the contract agreement between Burt and Daystar;
E) Plaintiff is limited at trial to the evidence produced to date;
F) Plaintiff is barred from introducing expert testimony; and
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f in attorney’s fees.