A&D Complete Services & Landscaping, LLC v. Horsepower Property Maintenance LLC

SUPERIOR COURT
OF THE
STATE OF DELAWARE
KATHLEEN M. MILLER LEONARD L. WILLIAMS JUSTICE CENTER
JUDGE 500 NORTH KING STREET, SUITE 10501
WILMINGTON, DELAWARE 19801
TELEPHONE (302) 255-0669

January 22, 2026

G. Kevin Fasic, Esq. Sanjay K. Bhatnagar, Esq.
Offit Kurman, P.A. Sanjay K. Bhatnagar, Attorney at Law
222 Delaware Avenue, Suite 1105 1601 Concord Pike, Suite 100
Wilmington, DE 19801 Wilmington, DE 19803

L. Vincent Ramunno, Esq. John D. McLaughlin, Jr., Esq.
Ramunno & Ramunno, P.A. Ciardi, Ciardi, and Astin
903 North French Street 1204 North King Street
Wilmington, DE 19801 Wilmington, DE 19801

RE: A&D Complete Services & Landscaping, LLC v. Horsepower Property
Maintenance LLC
C.A. No.: N25C-06-233 KMM

Dear Counsel:

Third-party defendants each filed a Motion to Dismiss/Motion for Summary

Judgment, which are scheduled for oral argument later this month. The Court has

determined that oral argument is not necessary. This letter decision resolves the

pending motions.

Background

Plaintiff filed this debt action against Horsepower Property Maintenance LLC

(“Horsepower”) alleging that plaintiff performed landscaping, snow removal, and
January 22, 2026
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other services at a commercial shopping center in Middletown, where a Target store

is located. Horsepower paid some invoices, but failed to paid plaintiff in full.

Plaintiff seeks recovery for its unpaid invoices.

Horsepower filed a third-party complaint against Lenape Properties

Management, Inc. (“Lenape”) and Target Corporation (“Target”).1 This complaint

alleges that Lenape is the property manager for the shopping center. Lenape entered

into a Lawncare Maintenance Services Contract (the “Maintenance Agreement”) and

a Comprehensive Snow Removal Agreement (“Snow Removal Agreement”) with

Horsepower to perform maintenance and other services at the shopping center.2

Pursuant to the agreements, Lenape agreed to pay Horsepower $2,475 a month for

services under the Maintenance Agreement and $4,837.25 a month under the Snow

Removal Agreement.3 Both agreements authorized Horsepower to subcontract the

services.4

Pursuant to the agreements, Horsepower subcontracted the lawn maintenance

and snow removal services to plaintiff. Horsepower also subcontracted additional

services requested by Lenape. Specifically, Horsepower engaged plaintiff to power

1
D.I. 9.
2
Id. ¶¶ 11, 18.
3
Id. ¶¶ 17, 20.
4
Id. ¶¶ 16, 21.
2
January 22, 2026
Page 3

wash the Target store, paint yellow caution lines throughout the shopping center, and

mulch the shopping center.5

Lenape failed to pay all of Horsepower’s invoices, including invoices

covering services performed by plaintiff.6 In April 2025, Lenape began questioning

Horsepower about its licensing, demanded a W-9 (to be signed under oath), and

leveled allegations of embezzlement, RICO violations, and other crimes.7

Thereafter, Lenape threatened filing a civil action against Horsepower. As a result

of these exchanges, Horsepower terminated the agreements.8

The third-party complaint asserts breach of the Maintenance Agreement

against Lenape (Count I), breach of the Snow Removal Agreement against Lenape

(Count II), breach of the implied covenant of good faith and fair dealing against

Lenape (Count III), a claim for contribution/indemnification against Lenape (Count

IV), and a claim for quantum meruit against Target (Count V).

The Motions

Target and Lenape filed essentially the same Motion to Dismiss or

alternatively, Motion for Summary Judgment9 (collectively, the “Motion”). The

5
Id. ¶ 24.
6
Id. ¶¶ 24–25.
7
Id. ¶¶ 25–28.
8
Id. ¶ 28.
9
D.I. 12, 15.
3
January 22, 2026
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heart of the Motion is that the contracts,10 the invoices,11 notices to Target,12 and

communications13 with Lenape were with “HP Property Maintenance LLC” not

“Horsepower Property Maintenance LLC,” the third-party plaintiff. Lenape

contends that it paid HP Property Maintenance LLC, not Horsepower Property

Maintenance LLC.14 Thus, according to Lenape, the contract claims fail as a matter

of law because it did not contract with Horsepower Property Maintenance LLC.

Similarly, the quantum meruit claim fails because no services were provided by

Horsepower Property Maintenance LLC.

Lenape relies on a license application for a business license from the Town of

Middletown.15 The application references HP Property Maintenance LLC.

Horsepower Property Maintenance LLC does not hold such a license.16

Horsepower responds that “Horsepower Property Maintenance LLC” is the

proper party as this is the entity’s legal name.17 It states that it uses “HP Property

Maintenance LLC” as a trade name.18 Horsepower contends that the use of “HP”

10
D.I. 9 Exs. A–B.
11
Id. Ex. C.
12
Id. Ex. E.
13
Id. Ex. D.
14
Mot. Ex. III (sample check).
15
Id. Ex. I.
16
Id. Ex. II.
17
After the Motion was filed, Horsepower filed an amended answer to the complaint to add its
trade name. D.I. 17 (“Horsepower Property Maintenance, LLC, is also known as and operates
under the trade name HP Property Maintenance.”) (emphasis in original).
18
D.I. 21 (“Esposito Affidavit”). Esposito often uses “HP” as shorthand for Horsepower
Maintenance LLC. Id. ¶¶ 3–5.
4
January 22, 2026
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was an oversight and not intended to refer to a separate entity. It argues that

Horsepower Property Maintenance LLC performed the services, of which Lenape is

aware.19 The name on the Town of Middletown business license has since been

corrected to reflect Horsepower Property Maintenance LLC.20 Because there are

disputes of fact, it argues that the Motion must be denied. Horsepower also requests

leave to amend.21

In its reply, Lenape counters that use of HP cannot be an oversight because

the Middletown business license application (filed in April 2025) was filed in the

name of HP Property Maintenance LLC.22 Even if the HP name was not intended to

deceive, Lenape claims that use of HP Property Maintenance LLC was intended to

hide that a former Lenape employee (who was fired for cause), awarded the contract

to her boyfriend, Mark Esposito (“Esposito”).23

Lenape also argues that the contracts are signed by “HP Property Maintenance

LLC” and Horsepower is prohibited from relying on parol evidence to alter the terms

of these unambiguous contracts.24 Lenape points to the fact that HP uses “LLC” in

19
D.I. 21 (Answering Brief) at 8–9. Lenape referred to Horsepower eight times in the email
communications between the parties. Lenape also directly dealt with Esposito in connection with
the contracts and work performed. Id. at 6.
20
Esposito Affidavit ¶ 13.
21
D.I. 21 at 12–14.
22
D.I. 23 Ex. I.
23
Id. at 2.
24
Id. at 3–5.
5
January 22, 2026
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its name, indicating it is a separate entity and further, HP provided a W-9 using “HP

Property Maintenance LLC,” which also evidences that HP Property Maintenance

LLC is a separate entity.25

Finally, Lenape argues that the request to amend should be denied because

even if HP was used as a trade name, Horsepower failed to file a fictious name

certificate, as required by 6 Del. C. § 3101. Therefore, it is prohibited from doing

business in Delaware. As such, an amendment would be futile.

Standard of Review

When a party submits matters outside the complaint, a court may consider

those documents, but the court will then convert the motion to a motion for summary

judgment.26 Lenape relies on documents which are not referenced in or incorporated

into the third-party complaint, therefore, the Court will apply a summary judgment

standard.

Summary judgment is appropriate where “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.”27 The moving party bears the initial

25
Id. at 4.
26
Doe 30’s Mother v. Bradley, 58 A.3d 429, 443 (Del. Super. 2012).
27
Super. Ct. Civ. R. 56; Merrill v. Crothall-American, Inc., 606 A.2d 96, 99–100 (Del. 1992).
6
January 22, 2026
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burden of demonstrating that no material issues of fact are in dispute and that it is

entitled to judgment as a matter of law.28 The Court must view the record in a light

most favorable to the nonmoving party, drawing all reasonable inferences in its

favor.29

Analysis

Lenape is correct that typically, only a party to a contract has standing to

enforce it.30 But the third-party plaintiff alleges that it is the party that contracted

with Lenape, communicated with Lenape, and was paid by Lenape.

Further, Esposito testifies that the use of “HP” in the contracts (instead of

spelling out “Horsepower”) and the communications was an oversight, and not

meant to indicate that it was an entity separate from Horsepower Property

Maintenance LLC.

The April 2025 Town of Middletown application further supports

Horsepower’s position. Lenape relies on this application to show that the use of HP

was not an oversight, as the application was filed in the HP name. The application,

28
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
29
Merrill, 606 A.2d 96, 99–100.
30
See United Health Alliance, LLC v. United Medical, LLC, 2014 WL 6488659, at *3 (Del. Ch.
Nov. 20, 2014) (“Well-settled within precepts of contract law is recognition that non-parties to a
contract ordinarily have no rights under it.”).
7
January 22, 2026
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however, identifies the HP name as a “Trade Name of Business” and identifies the

services as landscaping and snow removal.31

Additionally, Lenape acknowledged in its email communications that the

checks payable to HP were deposited in Horsepower’s bank account and plaintiff

was paid by checks drawn on Horsepower’s bank account.32

Viewing the record in a light most favorable to Horsepower, as the Court must,

it is reasonable to infer that Horsepower Property Maintenance LLC and HP Property

Maintenance LLC is the same entity.33 Thus, a material dispute of fact exists.

Lenape and Target have not shown that they are entitled to judgment as a matter of

law.34 Accordingly, the Motion for Summary Judgment is DENIED.

Turning to Horsepower’s request to amend, the Court finds that it should be

granted. Amendments are governed by Rule 15(a), which provides that when justice

requires, amendments “shall be freely given.” “In the absence of prejudice to

another party, the trial court is required to exercise its discretion in favor of granting

31
D.I. 23, Ex. I.
32
D.I. 9, Ex. D (threatening to subpoena bank records for “Horsepower LLC” and stating, “we can
trace who took what and whoever took the most money out of Horsepower will be deemed the
criminal mastermind or principal.”).
33
Lenape argues that the Court cannot consider Esposito’s affidavit or other documents that
contradict the plain terms of the contracts; that is, the Court cannot consider any document or
argument that HP is a trade name for Horsepower as it constitutes impermissible parol evidence.
Again, drawing all reasonable inferences in Horsepower’s favor, it is reasonable to infer that it is
the same entity as HP and summary judgment would be denied.
34
See Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995) (Only “[i]f the facts permit reasonable
persons to draw from them but one inference, [then is] the question is ripe for summary
judgment.”).
8
January 22, 2026
Page 9

leave to amend.”35 A request to amend may be denied where it would be futile, “in

the sense that the legal insufficiency of the amendment is obvious on its face.”36

Lenape argues that amending the third-party complaint to include allegations

of HP being a trade name would not cure the deficiency in the third-party plaintiff’s

name. This is so, it argues, because having failed to file a fictitious name certificate,

Horsepower is prohibited from doing business in Delaware. Lenape relies on 6 Del.

C. § 3101. It cites no case law in support of its argument.

Section 3101 provides, in relevant part: “No person, firm or association shall

engage in, prosecute or transact any business within the limits of this State” using a

trade name without first filing a certificate disclosing the members of the firm or

association.37 The penalty for violating Section 3101 is a fine up to $100 or up to

three months in prison, or both.38

While an entity that fails to file a fictious name certificate may be subject to

penalties and may be precluded from raising certain rights, it does not preclude an

35
Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258, 263 (Del. 1993).
36
Doe for Doe v. Snap, Inc., 2025 WL 2926161, at *9 (Del. Super. Oct. 15, 2025) (quoting NACCO
Indus., Inc. v. Applica Inc., 2008 WL 2082145, at *1 (Del. Ch. May 7, 2008)).
37
6 Del. C. § 3101. The current version of Section 3101 is effective until February 2, 2026. 6
Del. C. § 3108, effective February 2, 2026, exempts limited liability companies from having to file
fictious name certificates. It provides: “A corporation or limited liability company transacting
business within the limits of this State under a trade name or title that does not disclose the legal
name of the corporation or limited liability company may, but is not required to, register the trade
name by filing a certificate…”) (emphasis added).
38
6 Del. C. § 3106.
9
January 22, 2026
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entity from contracting or deny it access to the courts.39 Accordingly, an amendment

to address Horsepower’s trade name is not futile. Horsepower’s request to amend

the third-party complaint is GRANTED.40 Horsepower shall file any amended

third-party complaint within 20 days of the date of this decision.

IT IS SO ORDERED.

/s/Kathleen M. Miller
Kathleen M. Miller, Judge

39
Carey v. Estate of Myers, at *18 (Del. Super. July 1, 2015) aff’d 132 A.3d 749 (Del. 2016).
When the General Assembly intended to limit standing for violation of certain statutory provisions,
it has expressly stated. See, Hudson Farms Inc. v. McGrellis, 620 A.2d 215 (Del. 1993)
(interpreting 8 Del. C. § 371 which prohibits a foreign corporation from doing business in
Delaware unless such entity files the mandated certificate with the Secretary of State and § 383
which prohibits an entity in violation of Section 371 from maintaining an action in Delaware
courts); B&B Financial Srvs., LLC, v. RFGV Festivals, LLC, 2019 WL 2006487, at *3-4 (Del.
Super. May 2, 2019) (interpreting 6 Del. C. §§ 18-907 and 18-1107 which prohibit a limited
liability company from maintaining an action while not in good standing).
40
Lenape asserts no prejudice from the proposed amendment, and it has no legal authority for its
futility argument. Under these circumstances, the more efficient (and appropriate) manner to
proceed would have been to stipulate to the amendment and file a motion if the complaint remained
deficient. Lenape and Target have used their opportunity to move for summary judgment. The
Court will not entertain any subsequent summary judgment motions on this issue.
10