     IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SHANNON C. DIEHL-                 )
GUERRERO,                         )
                                  )
      Plaintiff,                  )
                                  )
             v.                   )    C.A. No. N16C-08-041 CLS
                                  )
HARDY BOYS                        )
CONSTRUCTION, LLC.,               )
RELIABLE HOME                     )
INSPECTION SERVICES, RHIS,        )
INC., and WELLS FARGO             )
HOME MORTGAGE, INC.,              )
                                  )
      Defendants.                 )
                                  )
                                  )
                                  )
                   Date Submitted: March 17, 2017
                    Date Decided: March 27, 2017

      On Plaintiff’s Application for Certification of Interlocutory Appeal
                      Pursuant to Supreme Court Rule 42.
                                   DENIED.


                                   ORDER


Gary W. Alderson, Esquire, Elzufon Austin Tarlov & Mondell, Wilmington,
Delaware, Attorney for Plaintiff.

Kathleen A. Murphy, Esquire, Buchanan Ingersoll & Rooney, Wilmington,
Delaware, Attorney for Defendant Wells Fargo Home Mortgage Inc.


SCOTT, J.
                                   Background

      On February 28, 2017 this Court entered an Order granting Defendant Wells

Fargo Home Mortgage’s (hereinafter “Wells Fargo”) Motion to Dismiss. The

Court’s ruling was based on the Plaintiff’s failure to state a claim for which relief

can be granted under a negligence theory against Wells Fargo. Plaintiff filed an

Application for Certification of an Interlocutory Appeal with the Court on March

9, 2017, and Wells Fargo filed a Response on March 17, 2017.

                               Parties’ Contentions

      Plaintiff contends that an Interlocutory Appeal is appropriate because this

Court “incorrectly interpreted Delaware law” by relying on Keith v. Sioris for

conclusion that, as a matter of law, a fiduciary duty does not exist between a

creditor and a debtor. Plaintiff claims that Keith v. Sioris is merely dicta and does

not support a finding that a fiduciary duty does not exist. Further, Plaintiff argues

that the Court disregarded Plaintiff’s argument that no Delaware case is on point as

to whether a mortgagee/mortgagor relationship gives rise to the existence of a duty.

Finally, Plaintiff also claims that the Court erred as matter of law when it made

factual determinations on an incomplete record. On the other hand, Wells Fargo

asserts that Plaintiff’s Application should be denied because it fails to meet the

criteria set forth in Supreme Court Rule 42(b) because the February 28 Order does

not decide a substantial issue of material importance that merits appellate review
before final judgment.         Wells Fargo argues that Plaintiff’s Application is

“essentially a motion for reargument characterized as an application for an

interlocutory appeal,” and Plaintiff missed the point of the Court’s February 28

ruling on Wells Fargo’s Motion to Dismiss.

                                       Discussion

        Delaware Supreme Court Rule 42 sets forth the criteria for certifying an

interlocutory appeal.1       The rule states that “[n]o interlocutory appeal will be

certified by the trial court or accepted by this Court unless the order of the trial

court decides a substantial issue of material importance that merits appellate

review before a final judgment.”2 Further, “[i]nterlocutory appeals should be

exceptional, not routine, because they disrupt the normal procession of litigation,

cause delay, and can threaten to exhaust scarce party and judicial resource.”3 The

trial court considers the following factors when deciding whether to certify an

interlocutory appeal:

        (A)     The interlocutory order involves a question of law resolved for
                the first time in this State;
        (B)     The decisions of the trial courts are conflicting upon the
                question of law;
        (C)     The question of law relates to the constitutionality,
                construction, or application of a statute of this State, which has
                not been, but should be, settled by this Court in advance of an
                appeal from a final order;

1
  See Supr. Ct. R. 42.
2
  Supr. Ct. R. 42 (b)(i).
3
  Supr. Ct. R. 42 (b)(ii).
          (D)     The interlocutory order has sustained the controverted
                  jurisdiction of the trial court;
          (E)     The interlocutory order has reversed or set aside a prior
                  decision of the trial court, a jury, or a administrative agency
                  from which an appeal was taken to the trial court which has
                  decided a significant issue and a review of the interlocutory
                  order may terminate the litigation, substantially reduce further
                  litigation, or otherwise serve considerations of justice;
          (F)     The interlocutory order has vacated or opened a judgment of the
                  trial court;
          (G)     Review of the interlocutory order may terminate the litigation;
                  or
          (H)     Review of the interlocutory order may serve considerations of
                  justice.4

Only after the trial court considers the above factors “and its own assessment of the

most efficient and just schedule to resolve the case, the trial court should identify

whether and why the likely benefits of the interlocutory review outweigh the

probable costs, such that interlocutory review is in the interests of justice. If the

balance is uncertain, the trial court should refuse to certify the interlocutory

appeal.”5

          This Court determines that Plaintiff’s Application should be denied. First,

the Court notes that Plaintiff’s Application is not based on arguments pursuant to

Delaware Supreme Court Rule 42. Rather, the Application argues that the Court

erred as a matter of law, and the Application is void of an analysis on any of the

factors listed under Rule 42(b). Plaintiff’s only argument pursuant to Rule 42 is


4
    Supr. Ct. R. 42 (b)(iii).
5
    Id.
that the issue before the Court is a substantial issue of material importance in this

case, which merits appellate review before a final judgment. Although Plaintiff

failed to address any of the criteria under Rule 42, the Court finds, after its

independent consideration of the factors, that Plaintiff’s Application should be

denied. The Court finds that none of the factors listed in Rule 42 (b)(iii) apply to

the present case.       Regarding the first factor listed in Rule 42, Plaintiff’s

Application does not involve a question of law resolved for the first time in this

State. This Application stemmed from Wells Fargo’s Motion to Dismiss. The

Court determined that Plaintiff failed to plead that Wells Fargo owed Plaintiff a

duty under a negligence theory. As the Court stated in the February 28 Order, duty

is determined by the Court because it is “entirely a question of law, to be

determined by reference to the body of statutes, rules, principles and precedents

which make up the law.”6 On a Motion to Dismiss the Court determines whether a

plaintiff may recover under any reasonably conceivable set of circumstances

susceptible of proof under the complaint.7 In making its determination, the Court

must accept all well-pleaded allegations in the complaint as true and draw all




6
  Pipher v. Parsell, 930 A.2d 890, 892 (Del. 2007)(citing Fritz v. Yeager, 790 A.2d 469, 471
(Del. 2002).
7
  Spence v. Funk, 396 A.2d 967, 968 (Del. 1978); see Cambium Ltd. v. Trilantic Capital Partners
III L.P., 2012 WL 172844, at *1 (Del. Jan. 20, 2012) (citing Cent. Mortg. Co. v. Morgan Stanley
Mortg. Capital Holdings LLC, 27 A.3d 531, 537 (Del. 2011)).
reasonable factual inferences in favor of the non-moving party.8 The Court agreed

with Wells Fargo, and held that the Plaintiff did not plead any facts that Wells

Fargo was involved in the selection of Mr. Kerrigan. The Complaint contained no

allegations, beyond Plaintiff’s assertion, that Wells Fargo owed Plaintiff a duty

regarding the selection of Mr. Kerrigan. Similarly, the Court found that to the

extent Plaintiff claimed a fiduciary relationship existed, as a matter of law no

fiduciary relationship exists between a debtor and a creditor. The Court cited to a

2007 Superior Court decision, Keith v. Sioris, stating that a creditor/debtor

relationship does not establish a fiduciary relationship.9 Plaintiff asserts that the

Court erred in this determination because this case was merely dicta, and the Court

ignored Plaintiffs argument that Delaware case law is silent on this issue.

Assuming the Court agrees with Plaintiff’s argument that Keith v. Sioris is dicta,

other cases reaffirmed the principle. The Third Circuit in Shahin v. Delaware

Federal Credit Union, noted that “the bank/customer relationship is one of a

creditor to debtor, which does not give rise to a fiduciary relationship.”10 The

Shahin court cites to Tharp v. St. Georges Trust Co., a Delaware Chancery Court

decision which noted that the “relation between a bank and a mere general

depositor of funds is that of debtor and creditor, and is in no sense of a fiduciary
8
   Ramunno v. Cawley, 705 A.2d 1029, 1034-36 (Del.1998); Nix v. Sawyer, 466 A.2d 407, 410
(Del. Super. Ct.1983).
9
  See Keith v. Sioris, 2007 WL 544039 (Del. Super. Ct. Jan. 10, 2007).
10
   Shahin v. Delaware Federal Credit Union, 602 Fed.Appx. 50, 53-54 (3d. Cir. 2015)(emphasis
added).
nature.”11 The theme behind the determination of these cases is that a fiduciary

relationship does not exist between a debtor and a creditor. Here, the relationship

between the parties is that of a debtor and creditor because the issue relates to a

loan agreement. Thus, as the Court determined in its February 28 Order, Plaintiff

failed to plead that Wells Fargo owed Plaintiff a duty, which is not a question of

law resolved for the first time in this State. Along the same lines, the factors B

through F are not applicable to the present case, nor does Plaintiff make an

argument that these factors apply.12

      To address Plaintiff’s claim in the Application, the Court emphasizes that

the Court’s determination in the February 28 Order was not based on facts outside

of the Complaint. Rather, the Court’s determination was centered on Plaintiff’s

failure to state a claim for which relief can be granted. Wells Fargo moved to

dismiss Plaintiff’s Complaint based on Plaintiff’s failure to plead that Wells Fargo

owed Plaintiff a duty under a negligence claim. “Whether a duty exists is entirely

a question of law, to be determined by reference to the body of statutes, rules,

principles and precedents which make up the law; and must be determined by the

court.”13 The discussion of the HUD information was included in the Order to

clarify issues brought up at oral argument and in post oral argument briefing

11
   Tharp v. St. Georges Trust Co., 34 A.2d 253, 255 (Del. Ch. 1943)(emphasis added).
12
   See Del. Supr. Ct. R. 42(b).
13
   Patton v. 24/7 Cable Company, LLC, 2016 WL 6272552, at *2 (Del. Super. Ct. Aug. 31,
2016)(citations omitted).
regarding the lender’s duty under a HUD agreement. For the aforementioned

reasons stated above, Plaintiff’s Application for Certification of Interlocutory

Appeal is hereby DENIED.

      IT IS SO ORDERED.              /s/ Calvin L. Scott
                                     The Honorable Calvin L. Scott, Jr.
