SUPERIOR COURT

OF THE

STATE OF DELAWARE

PAUL R. WALLACE

JUDGE

NEW CASTLE COUNTY COURTHOUSE

500 N. KING STREET, SUITE 10400

WILMINGTON, DELAWARE 19801

(302) 255-0660

Date Submitted: May 15, 2020

Date Decided: July 2, 2020

Stephen B. Brauerman, Esquire

Elizabeth A. Powers, Esquire

600 North King Street, Suite 400 

Wilmington, Delaware 19801

Robert Mahoney 

Saleem Mawji 

Norris Mclaughlin, P.A. 

400 Crossing Boulevard, 8th Floor 

Bridgewater, New Jersey 08807

Kelly A. Green, Esquire

Smith, Katzenstein & Jenkins LLP

1000 West Street, Suite 1501 

Wilmington, Delaware 19801

Jeffrey Gans, Esquire

Pillsbury Winthrop Shaw Pittman LLP 

1200 Seventeenth Street NW 

Washington, DC 20036-3006

RE: Facchina Construction Litigations

 Civil Action No. N17C-09-163 PRW CCLD (Consolidated)

Dear Counsel:

This Letter Order addresses the Defendants’ ICATech and Empresas’

(together “ICATech”) pending Motion to Strike and for Further Relief (D.I. 170). 

For the reasons set forth briefly below, that Motion is GRANTED IN PART, and 

DENIED IN PART. 
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FACTUAL AND PROCEDURAL BACKGROUND

This matter is in the post-trial, pre-verdict phase and is the consolidation of 

two separate litigations. The current motion to strike is truly centered around an 

exhibit relevant only to the first of those two cases. So the Court will not recount 

the entirety of the pending claims, counterclaims, defenses, affirmative defenses, 

etc., in this consolidated matter. 

- THE FIRST ACTION - BROUGHT BY PAUL V. FACCHINA, SR.

The first case, Paul V. Facchina, Sr. v. ICATech Corporation and Empresas 

ICA, S.A.B. DE C.V., was filed in September 2017. It involves Paul V. Facchina, 

Sr.’s (“Mr. Facchina”) sale of his (various construction companies (“Facchina 

Companies”) to ICATech with Empresas as ICATech’s guarantor. ICATech is a 

Florida-based subsidiary of Empresas, a Mexican company. 

Mr. Facchina has alleged that the subject June 2013 Purchase Agreement 

projected that he would earn $35-40 million over the ensuing three to five years.1 

This figure represents about 40% of the consideration Mr. Facchina would receive 

from the sale.2 Additionally, ICATech would fund an Escrow Account with Wells 

 

1 Seller Representative Facchina’s Complaint (D.I. 1) ¶ 1.

2

Id.
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Fargo with $3.5 million for “payment of any outstanding indemnifications claims.”3 

Both Mr. Facchina and ICATech have requested the escrow funds; however, Wells 

Fargo will not release the funds without a court judgment or the parties’ consent.4 

Furthermore, $2.25 million was withheld “as part of the final working capital 

adjustments from the case that [Mr. Facchina] received at closing.”5

Finally, Mr. Facchina alleges that ICATech has only paid $4,352,491, $3.5 

million of which went to the Escrow Account and $852,491 went to Mr. Facchina, 

as opposed to the $35-40 anticipated in the Purchase Agreement.6 Mr. Facchina 

claims he contacted ICATech multiple times between 2015-2017 about the status of 

the Facchina Companies and the Earn-Out Payments, but received no response.7 

After not receiving a response, Mr. Facchina demanded an Acceleration Payment of 

$30,647,509 by September 5, 2017.8 ICATech did not respond to the request.9

 

3

Id. at ¶ 2 and 28.

4

Id. at ¶ 35.

5

Id. at ¶ 30.

6

Id. at ¶ 40-41.

7

Id. at ¶ 44-45.

8

Id. at ¶ 50.

9

Id. at ¶ 51.
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Mr. Facchina’s claims include: (1) a Breach of Contract claim against 

ICATech;

10 (2) a Legal Fraud claim against both ICATech and Empresas;11 (3) an 

Equitable Fraud claim against both ICATech and Empresas;

12 (4) a claim that 

ICATech and Empresas violated the Delaware Fraudulent Conveyance Act;

13 (5) a 

Breach of Implied Covenant of Good Faith and Fair Dealing claim against ICATech 

and Empresas;

14 and (6) an Enforcement of Guaranty claim against Empresas, as the 

parental guarantor.15

In addition to rights to the $3.5 million Escrow Account and $30,647,509 

payment, Mr. Facchina requests compensatory and punitive damages against 

ICATech and Empresas, pre-judgment interest, attorney fees and costs, and any 

other relief as the court deems just and proper.16

 

10 Id. at ¶ 55-56.

11 Id. at ¶ 57 (citing Id. at ¶ 40-51).

12 Id. at ¶ 59-60.

13 Id. at ¶ 61, 68.

14 Id. at ¶ 70-73.

15 Id. at ¶ 74-76.

16 Id. at ¶ E-I.
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In Answer, Defendants raised several affirmative defenses and brought a 

counterclaim accusing Mr. Facchina of fraud. They say he made fraudulent 

statements as to the projected value of upcoming projects of the Facchina Companies 

to induce Defendants to agree to the Purchase Agreements. Specifically, the 

counterclaim points to The Grove at Grand Bay project (a large Florida construction 

project) as one that Mr. Facchina allegedly had knowledge would face challenges, 

but did not disclose those challenges to Defendants. Among other judgments, 

Defendants are seeking an amount of $26 million from Mr. Facchina.

17

At issue here is the Mr. Facchina’s citation to an April 4, 2019 affidavit of 

Witness Jesus Vazquez in his post-trial reply brief.18 That affidavit’s contents and 

alleged relevance go to activity related to The Grove project. 

Mr. Vazquez’s affidavit was, during summary judgment proceedings, 

attached to Defendants ICATech and Empresas’ Brief in Opposition to Mr. 

Facchiana’s Motion for Partial Summary Judgment.19 And pretrial, ICATech 

suggested it be designated as Joint Exhibit 507. 

 

17 Def. Answer and Counterclaim (D.I. 7) at 8-11.

18 D.I. 166, at 9.

19 D.I. 81
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As ordered, each party lodged its pretrial objections to the exhibits proffered 

by the others. Mr. Facchina objected to ICATech’s trial use of Joint Exhibit 507 

asserting that it was inadmissible hearsay. ICATech conceded that Joint Exhibit 507 

was inadmissible hearsay. And so ICATech did not introduce Joint Exhibit 507 at 

trial, understood it could not use it in post-trial briefing, and did not use it in any way 

thereafter. 

Yet, notwithstanding his earlier objection to its admission, Mr. Facchina cited 

to the Vazquez affidavit in Section II (A)(1) of his own post-trial reply brief. That 

reference reads as follows: 

There is no credible evidence that Facchina of Florida (“FOF”) had 

an operational policy that it would not – without exception –

subcontract concrete work to more than one entity or that Vazquez 

violated a directive regarding subcontracting concrete in packages. 

(See SR PostTrial Ans. Br. ¶¶ 13, 14.) In fact, ICATech/Empresas’ 

ever evolving fraud theory directly contradicts Vazquez’s affidavit 

previously submitted to the Court by ICATech/Empresas, which 

states that he never deliberately disobeyed any instruction given to 

him by Mr. Facchina or Charles McPherson. (See 4/4/19 Affidavit 

of Jesus R. Vazquez [Trans. ID 63136243].)20

ICATech has filed the present motion to strike asking the Court “to enter an order 

striking section II (A)(1) of Mr. Facchina’s reply brief and granting ICATech five 

 

20 D.I. 166, at 9.
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business days to file a short (not more than 750 words) surreply responding to the 

argument based on evidence not admitted at trial.”21 

Mr. Facchina counters that “[t]he Affidavit was not referenced for the truth of 

the matter asserted therein, nor as a trial exhibit, nor as part of the trial record. It 

was referenced only to demonstrate how the allegations underlying ICATech’s fraud 

theory have changed.”22 He says he “reference[d] the Affidavit simply to highlight 

the difference between ICATech’s summary judgment and post-trial arguments.”23 

And he complains that “in no fewer than twenty instances throughout its three sets 

of post-trial briefs, ICATech cites directly from [Mr. Facchina]’s summary judgment 

briefs (using the docket transaction numbers), as if they were evidence and part of 

the trial record.”

24

 Thus, he has objected to what he believes are the numerous errant 

citations in ICATech’s post-trial briefing that reference the summary judgment 

pleadings.25 

 

21 D.I. 166, at 9.

22 D.I. 174, at ¶3.

23 Id. at ¶5.

24 Id. at ¶6.

25 Id. at ¶7 (“As argued in [Mr. Facchina]’s Post-Trial Answering Brief, statements made in 

summary judgment briefs are not evidentiary admissions. (See Seller Representative’s 

Answering Post-Trial Brief at 38-40).”).
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LEGAL ANALYSIS

No doubt, the parties well understood when the trial recessed that the primary 

purpose of the post-trial briefing here was to act as the parties’ closing arguments. 

And, no doubt, the rules of engagement for closing arguments and post-trial briefing 

in Delaware trial courts are expected to be honored by counsel and enforced by the 

judge without fail.26 

Under those rules, evidence that is not part of the trial record should not be 

argued in closing or cited to in post-trial briefing.27 Mr. Facchina posits that he 

referred to Mr. Vasquez’s affidavit that had been submitted only earlier in the case 

during summary judgment proceedings “not for the truth of the matter asserted

therein” but merely to demonstrate the evolution of ICATech’s arguments

 

26 See, e.g., Baker v. State, 906 A.2d 139, 151 (Del. 2006) (During closing argument in a 

criminal trial “judges have a continuing duty to intervene sua sponte, even in the absence 

of defense counsel’s objection, when a trial prosecutor steps out of bounds.”).

27 See generally Joseph v. Monroe, 419 A.2d 927, 930 (Del. 1980) (“[W]e agree, of course, 

that it is improper for counsel to comment on the credibility of witnesses from personal 

knowledge or from evidence not on the record.) (emphasis added); Spence v. State, 129

A.3d 212, 223 (Del. 2015) (“While prosecutors are given latitude in making closing 

arguments, his or her comments must be limited to properly admitted evidence and any 

reasonable inferences or conclusions that can be drawn therefrom.”); TruePosition Inc. v. 

Andrew Corp., 2008 WL 205305, at *2 (D. Del. Jan. 23, 2008) (striking evidence cited in 

a post-trial brief “because it was not part of ‘the factual record created at trial,’” and thus 

“was not permissibly included in defendant’s post-trial briefing”). 
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throughout the lawsuits. But in doing so, he expressly asks the Court to examine the 

substance of affirmative statements in a now unadmitted affidavit, i.e., he, in closing

argument, expressly references the statements of a witness that are not in the trial 

record and urges the Court to consider their substance. The Court finds this any easy 

call under Delaware’s well-established rules. That reference in Mr. Facchina’s 

argument is improper and properly cured by excision. 

Undaunted though, Mr. Facchina—by complaining that he does no worse than 

ICATech in its brief—seems to urge Court to apply the “invited response” or “invited 

reply” rule. That rule suggests that improper closing argument by one party may “open 

the door” to an otherwise impermissable rebuttal by the other.

28

 But the invited 

response doctrine has been strongly criticized, if not outright rejected, by the Delaware 

Supreme Court.

29

 And the Court could rest its rejection of Mr. Facchina’s invitation 

to excuse him by invoking the United States Supreme Court’s simple statement on 

invited response: “Clearly, two improper arguments-two apparent wrongs-do not make 

for a right result.”30 However, even where our state high court has indulged some resort 

 

28 Miller v. State, 2000 WL 313484, at *3-4 (Del. Feb. 16, 2000).

29 Id. 

30 United State v. Young, 470 U.s. 1, 11 (1985). 
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to the invited reply rule, it has made clear that the rebutting arguments may not be 

otherwise “improper” comments.

31

 To be sure, Mr. Facchina’s citation to a witness’s 

statement that Mr. Facchina affirmatively objected to and that was never admitted in 

the trial is improper argument. 

It is well-accepted in Delaware that instead a party must object to an improper 

closing argument; it must not take such argument as license to respond improperly.32 

Of course, such objections are only as effective as the trial judge’s willingness to take 

appropriate corrective action. And most often that corrective action is striking of the 

offending argument—which normally takes the form of an instruction to the factfinder 

to disregard such.

33

 

Here, Mr. Facchina did violate the well-established rule that only evidence 

admitted at trial should be used in closing arguments. So the Court will disregard just 

so much of Mr. Facchina’s argument as will cure that wrong. So too, the Court will 

 

31 See, e.g., Hooks v. State, 416 A.2d 189, 205 (Del. 1980); Dorman v. State, 608 A.2d 726 

(Del. 1992). 

32 Michael v. State, 529 A.2d 752, 763 (Del. 1987).

33 See Sammons v. Doctors for Emergency Services, P.A., 913 A.2d 519, 538-39 (Del. 2006); 

Tilson v. Luthern Senior Services, Inc., 2010 WL 6596959, at *4-5 (Del. Super. Ct. Dec. 

12, 2010); see also Chavin v. Cope, 243 A.2d 694, 696 (Del. 1968) (“Ordinarily, an 

appropriate instruction to disregard the statement is sufficient to avoid prejudice to the 

defendant . . . .”).
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consider the like objection Mr. Facchina has properly lodged to ICATech’s citation to 

the summary judgment briefing.

CONCLUSION

Accordingly, the Court GRANTS, in part, ICATech’s Motion. The Court 

shall strike only the offending portion of Section II (A)(1) of Mr. Facchina’s posttrial reply brief,

34 reading such section now as follows: 

There is no credible evidence that Facchina of Florida (“FOF”) had 

an operational policy that it would not – without exception –

subcontract concrete work to more than one entity or that Vazquez 

violated a directive regarding subcontracting concrete in packages. 

(See SR PostTrial Ans. Br. ¶¶ 13, 14.) In fact, ICATech/Empresas’ 

ever evolving fraud theory directly contradicts Vazquez’s affidavit 

previously submitted to the Court by ICATech/Empresas, which 

states that he never deliberately disobeyed any instruction given to 

him by Mr. Facchina or Charles McPherson. (See 4/4/19 Affidavit 

of Jesus R. Vazquez [Trans. ID 63136243].)

And the Court will not consider the contents of the Mr. Vazquez’s affidavit for any 

purpose in rendering its verdict. 

During its deliberation, the Court will also remain mindful of Mr. Facchina’s 

objection to ICATech’s alleged misuse of excerpts from or statements made in the 

 

34 D.I. 166, at 9.
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summary judgment briefing as if they were admissible trial evidence or evidentiary 

admissions made at trial.

The Court finds, therefore, that there is no reason for a further written posttrial submission “responding to [Mr. Facchina’s] argument based on evidence not 

admitted at trial.” So ICATech’s request for leave file a surreply is DENIED.

The matter is now considered fully submitted for deliberation and verdict on 

the evidence and arguments properly presented by the parties.

IT IS SO ORDERED.

/s/ Paul R. Wallace

Paul R. Wallace, Judge

Original to Prothonotary

cc: All Counsel via File and Serve