Opinion
C.A. No. 01C-10-021 WLW.
Submitted: July 2, 2003.
Decided: July 24, 2003.
Upon Defendant's Motion for Summary Judgment. Granted.
Nicholas H. Rodriguez, Esquire of Schmittinger Rodriguez, P.A., Dover, Delaware, attorneys for the Plaintiffs.
Jonathan Layton, Esquire of White and Williams, LLP, Wilmington, Delaware, and Gary A. Bryde, Esquire of Gary A. Bryde, P.A., Hockessin, Delaware, attorneys for the Defendant.
I. Introduction
Before this Court is Defendant's Motion for Summary Judgement based on a violation of the applicable statute of limitations. Having reviewed the submissions of the parties and heard oral arguments it appears to the Court that the motion should be granted.
II. Background
This case arose out of alleged defects in the new construction of 102 Quail Run. On May 31, 1995, Patrick and Carolyn Savini (Savini or Plaintiffs) entered into an agreement of sale with The Hamlet Corporation (Defendant) for a new semicustom designed home for a purchase price of $267,000. Settlement was held on August 15, 1995. Prior to and subsequent to settlement the Plaintiffs submitted complaint letters to the Defendant detailing numerous complaints with the construction of their new home. Plaintiffs registered severe complaints about water penetration and intrusion into the interior of the home coming from the roof, in the attic, and around the windows in both the home and the garage. In addition, Plaintiffs complained about snow infiltration into the attic to the point that it needed to be shoveled out. The Defendant attempted to make repairs which, according to the Plaintiffs, were merely cosmetic and temporary and did not solve the problems. The Plaintiffs had meetings with the Defendant on March 10, 1998 and in April of 2001. In May 2001, Defendant's representative completed more repair work on the Plaintiffs' home; however, this did not rectify all of the existing problems. On July 18, 2001, Plaintiffs received an engineer's report that explained the extent of the problems with the construction. The Plaintiffs claim that it was after reviewing the engineer's report that they learned for the fist time that the water leaks and penetration in the home were purportedly caused by construction mistakes and errors made by the Defendant in the construction of the home. Apparently, before this point, the Plaintiffs did not retain an attorney or contemplate lawsuit because according to Dr. Savini he did not want to sue the Defendant since the Defendant was attempting to rectify the problem. In August 2001, the Defendant stopped doing any work on the house. On October 10, 2001, this suit was initiated. The Complaint alleges the following four counts: (1) Breach of Contract; (2) Failure to Comply with the Provisions of the Buyer Property Protection Act; (3)Negligent and Unworkmanlike Construction; and (4) Consumer Fraud.
These complaints were made in the form of 90-day, 180-day, and 365-day complaint letters.
Defendant asserts two grounds for summary judgment: (1) Plaintiffs failed to timely file their Complaint within the three-year statute of limitations set forth in title 10, section 8106 of the Delaware Code, thus all claims are barred; and (2) Plaintiffs cannot show there is a genuine issue as to any material fact.
Plaintiffs assert two theories for determining the tolling of the statute of limitations either of which, according to the Plaintiffs, makes their Complaint timely: (1) under the "time of discovery rule" they did not know the cause of the problem until the engineer' s 2001 report; and (2) Defendant is estopped from asserting this defense because the Defendant acknowledged that the problems existed and continually tried to repair the problem until May 11, 2001. Plaintiffs contend that since both theories are fact dependant and those facts are in dispute, summary judgment is not appropriate.
III. Analysis A. Standards for Summary Judgement
Superior Court Rule 56(c) provides that judgment "shall be rendered forthwith if 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." The burden is on the moving party to show, with reasonable certainty, that no genuine issue of material fact exists and judgment as a matter of law is permitted. Summary judgment should only be granted when after viewing the record in a light most favorable to the non-moving party, there is no genuine issue of material fact. "If a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts, to clarify the application of the law, summary judgment is inappropriate. Moreover, if it appears to the Court that there is any reasonable hypothesis, by which the nonmoving party might recover, the motion will be denied." Summary judgment is also inappropriate when there is a "dispute as to the inferences which might be drawn" from the facts of the case."
Super. Ct. Civ. R. 56.
See Celotex Corp. v. Cattret, 477 U.S. 317 (1986); Martin v. Nealis Motors, Inc., 247 A.2d 831 (Del. 1968).
Oliver B. Connors Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del.Super. 1973); see also Christiana Marine Serv. Corp. v. Texaco Fuel Marine Mktg., C.A. No. 98C-02-217 WCC, *2 (Del.Super.Ct. 2002); McCall v. Villa Pizza, Inc., 636 A.2d 912 (Del. 1994).
Christiana Marine Serv. Corp., CA. No. 98C-02-217 WCC at *2 (emphasis added).
Schagrin v. Wilmington Med. Ctr., Inc., 304 A.2d 61, 63 (Del.Super.Ct. 1973) ( citing Vanaman v. Milford Mem'l Hosp., Inc., 272 A.2d 718 (Del. 1970)).
B. Statute of Limitations
According to title 10, section 8106 of the Delaware Code:
Actions subject to 3-year limitation No action to recover damages for trespass, no action to regain possession of personal chattels, no action to recover damages for the detention of personal chattels, no action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations no action based on a promise, no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant shall be brought after the expiration of 3 years from the accruing of the cause of such action; subject, however, to the provisions of §§ 8108-8110, 8119 and 8127 of this title.
The Plaintiffs contend that the Court should apply the time of discovery rule to this case. Plaintiffs further argue that they did not discover the root of the problem until the 2001 engineer's report; thus, the statute of limitations would not have tolled until after that report.
The Defendant argues that a cause of action for breach of contract accrues at the time of the breach while a cause of action in tort accrues at the time of the injury. Defendants contend that the time of discovery rule is not applicable to the instant facts. However, in the alternative the Defendant argues that the Plaintiffs had actual knowledge of the alleged defects in 1995. Hence, under the time of discovery rule Plaintiffs "discovered" the problem in 1995. Therefore, the Complaint is barred by the three year statute of limitation.
Nardo v. Guido De Ascanis Sons, Inc., 254 A.2d 254, 256 (Del. 1969) (declining to extend the time of discovery doctrine to contract cases); see also Kaufman v. C.L. McCabe Sons, Inc., 603 A.2d 831 (Del. 1992).
The Courts in Delaware have been somewhat reluctant to extend the time of discovery rule beyond medical malpractice suits. However, in at least one construction case, Pack Process, Inc. v. The Celotex Corp., the Superior Court has determined the "accruing of the cause of such action" language of section 8106 should be:
503 A.2d 646 (Del.Super.Ct. 1985).
construed to mean the date of discovery where the injury was inherently unknowable and the injured party had relied upon the professional expertise of the wrongdoer and was blamelessly ignorant. When these factual requisites are met, the limitations period commenced to run when the person had reason to know that a wrong had been committed.
Pack Process, Inc. v. Celotex Corp., 503 A.2d 646, 650 (Del.Super.Ct. 1985) (internal quotations omitted).
The Pack Process case is factually distinct from the case at bar. In the Pack Process case the determination as to whether or not there was an inherent defect in the plaintiffs roof was contractually entrusted to the defendant. The Court in Pack Process stated:
In representing to the plaintiff that the repairs were being made under the bond, the defendant implicitly concealed from the plaintiff that there may have been latent defects in the roofing material which might have alerted the plaintiff to the existence of a legal claim. Indeed, the undisputed allegation is that the defendant assured the plaintiff and the plaintiffs predecessor that the problems with the roof were caused by ordinary wear and tear and guaranteed that the problems were solved by the repairs. The nature of the contractual relationship between the parties was such that the existence of roof defects and the cause of the leaks was the responsibility of the defendant, and, as such, not a condition about which plaintiff should have been knowledgeable.
Id. at 650 — 51.
In the case at bar, the Defendant was not bonded to the Plaintiffs to determine the cause of the problem and fix it. Moreover, the Pack Process court found that the plaintiff was "blamelessly ignorant"because:
The bond specifically provided for an inspection service to wit: the defendant was to determine the cause and responsibility for repairs. In purchasing the bond, the plaintiff paid for this service. The plaintiff not only relied upon the defendant's expertise and assurances concerning the cause of repairs, but also relied upon the defendant to act in good faith.
Id. at 651.
Unlike the Pack and Process case, the Plaintiffs in this case were not misinformed as to the cause of the problem. In this case the Plaintiffs were keenly aware of the problem, and thoroughly documented the water infiltration. Moreover, Plaintiffs sent numerous letters to the Defendant documenting the continuing problems. The Plaintiffs were also aware that the Defendant would not or could not fix the problems. It is also apparent that the Plaintiffs at some point realized the Defendant was not going to fix the problem; therefore, the Plaintiffs retained an engineer to help them further investigate the water infiltration. Unfortunately, Plaintiffs waited too long to conduct their own investigation. It also should be noted that this is not a case of a hidden defect where the Plaintiffs would have no reason to investigate earlier. In this case the water infiltration was just as apparent in 1995 as it was in 2001 when the Plaintiffs finally decided to get the engineer's opinion concerning the infiltration. The statute of limitation in this matter is three (3) years, and the Plaintiffs waited six (6) years before bringing suit. It is a plaintiffs obligation in this circumstance to investigate their claims, assert their rights, and bring suit or lose their right to do so forever. It is most unfortunate that this process did not occur in a more timely manner to fall within the statute.
The Court further finds that Plaintiffs' estoppel argument likewise fails. The Plaintiffs did not provide this Court with any persuasive case law concerning the applicability of estoppel jurisprudence to cases such as the one at bar. Additionally, under the facts of this case, estoppel is not appropriate.
The three cases cited were not persuasive considering the facts of the instant case.
IV. Conclusion
For the foregoing reasons, the Defendant has meet its burden; thus, its Motion for Summary Judgment based on the applicability of the relevant statute of limitations is granted.