IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JENNIFER AUGUST,

Plaintiff,
Vv. : C.A. No. S19C-10-024 RFS

JOSE MANUEL HERNANDEZ and
HERNANDEZ CONTRACTOR, LLC,

Defendants.

ORDER

Submitted: 12/6/2019
Decided: 1/6/2020

Jennifer August, 2 Black Duck Reach, Rehoboth Beach, DE 19971, Pro Se Plaintiff.

Eric Scott Thompson, Esq., 500 Creekview Road, Suite 502, Newark, DE 19711,
Attorney for Defendants.

I. INTRODUCTION
Before the Court is Hernandez Contractor LLC (“Hernandez Contractor’’) and Jose
Manuel Hernandez’s (“Hernandez”) (collectively, the “Defendants”) Motion for Partial
Dismissal of Plaintiff Jennifer August’s (“Plaintiff”) Complaint. Plaintiff has also filed a motion
to amend the complaint.
For the reasons that follow, Defendants’ motion is denied. Plaintiff's motion to amend is

also denied.
Il. FACTUAL AND PROCEDURAL HISTORY

This action arises out of a contract entered into between Plaintiff and Defendants on or
about November 11, 2016. Plaintiff contracted with Defendants to replace a roof, install a
skylight, and re-flash five skylights at her residence. The contract provided how the work would
be performed. In addition, Plaintiff claims Hernandez agreed to be on the jobsite throughout the
job. Plaintiff chose Defendants because Hernandez claimed to have had a GAF certification!
credential that would allow Plaintiff to receive a lifetime warranty. Plaintiff later learned that
Hernandez did not actually have the credentials.

The work began on November 14, 2016. Plaintiff realized that the work being completed
was not being completed as specified in the contract. Furthermore, the work was not being
completed by Hernandez himself; rather, it was being completed by workers designated by
Hernandez. Plaintiff brought the inconsistencies to the workers’ attention, however, the work
continued to be completed contrary to the terms in the contract. Plaintiff attempted to contact
Hernandez during this time but was unable to get a response. On November 16, 2016, Hernandez
issued an invoice to Plaintiff for the roof installation. Plaintiff has not paid the invoice.

On November 19, 2016, Plaintiff hired a separate contractor. That contractor discovered
that the skylight was installed into a rotten wood frame. Plaintiff also claims that, beginning in
February, 2017, building inspectors and GAF roofing companies discovered that the roof was
concaved. Plaintiff alleges that Defendants’ acts and omissions have devalued her home. She
further claims that a current valuation to fulfill the terms of the contract would cost $24,635,

exclusive of a warranty.

 

' A certification held by contractors that undergo training and are up to the GAF standards. Such a certification
would allow Plaintiff to receive a lifetime warranty.
Plaintiff now seeks relief in this Court. Plaintiff filed her complaint on October 21, 2019
alleging (1) breach of contract, (2) negligence, (3) breach of express and implied warranty, and
(4) fraud, misrepresentation, deception, false pretense, false promise, inducement and
concealment against the Defendants. Defendants have moved to dismiss Count II for negligence
and Count III for breach of express and implied warranty. Defendants have also moved to
dismiss Hernandez from the suit.

II. DISCUSSION
A. Defendants’ Motion to Dismiss

Dismissal pursuant to Superior Court Civil Rule 12(b)(6) is appropriate where a plaintiff
would not be entitled to relief under any conceivable set of circumstances susceptible of proof
under the complaint.” The Court must view the record in a light most favorable to the non-moving
party and accept all well-pleaded allegations as true.* In considering a motion to dismiss, all well-
pleaded allegations in the complaint must be accepted as true.*

Defendants have moved to dismiss Count II ~— Negligence for being time-barred.
Defendants contend that 10 Del C. § 8107° applies and Plaintiff failed to bring her case within the
two years. Where a complaint alleges negligent repair, the applicable statute of limitations is 10
Del C. § 8106 which provides in part:

“.. [NJo action based on a promise ... 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....”®

 

2Spence v. Funk, 396 A.2d 967 (Del. 1978).

3 Washington House Condominum Ass'n of Unit Owners y. Daystar Sills, Inc.,2017 WL 3412079, at *8 (Del. Super.
Ct. Aug. 8, 2017).

4 American Ins. Co. v. Material Transit, Inc., 446 A.2d 1101 (Del. Super. Ct. 1982).

> This section provides that no action to recover damages for wrongful death or for injury to personal property shall
be brought after the expiration of 2 years from the accruing of the cause of such action. 10 Del. C. § 8107.

° 10 Del. C. § 8106. See also Ensminger v. Merritt Marine Const., Inc., 597 A.2d 854, 855 (Del. Super. Ct. 1988).

3
The alleged negligence occurred between November 14, 2016 and November 16, 2016.
Plaintiff filed the complaint October 10, 2019. Plaintiff filed this action within the statutory period
and therefore, dismissal of Count IT is not warranted.

Defendants also seek dismissal of Count III — Breach of Express and Implied Warranty.
Plaintiff argues that Defendants are in violation of 6 Del C. § 2-313.’ Plaintiff argues that
Defendants promised to use building methods so that Plaintiff would be eligible for the GAF
warranty.® Plaintiff asserts that Defendants failed to perform as promised, breaching the express
and implied warranties. Defendants contend that dismissal is appropriate because Article 2 does
not apply because this is not a transaction in goods.

Article 2 of the Delaware Uniform Commercial Code (“DUCC”) applies to transactions in
goods.” To determine whether the DUCC applies, “the Court must determine whether the
relationship of the plaintiff and defendant was that of a buyer-seller or a buyer-service provider.”!?
“Article 2 defines a ‘seller’ as a person who sells or contracts to sell goods; it dictates the warranties
and duties between parties transacting in goods but does not govern contracts providing services
or sales and services.”!! Here, Defendants were not selling goods to Plaintiff. Plaintiff purchased
the roofing materials and the skylight that would be installed by Defendants. Plaintiff contracted

with Defendants to install a roof.!* More specifically, the parties contracted to replace a roof, install

a skylight and re-flash other skylights at Plaintiff's residence.'? This is a contract for services,

 

? Section 2-313 addresses the creation of express warranties in the sale of goods. 6 Del. C. § 2-313.

’ The GAF Golden Pledge Warranty would have provided Plaintiff with 50 year warranty upon successful
completion of the roofing job. Pl.’s Comp. at 4 9.

° 6 Del. C. § 2-102.

10 Spaeder v. Univ. of Delaware, 2007 WL 3105100, at *2 (Del. Super. Ct. Oct. 17, 2007).

1 Flowers v. Huang, 1997 WL 34724064, at *1 (Del. Super. Ct. Aug. 20, 1997).

12 p].?s Comp. Ex. A.

3 P].’s Comp. at § 4.
therefore, Article 2 would be inapplicable. However, Plaintiff also alleges common law breach of
express and implied warranties.

The implied warranty of good quality and workmanship is available in Delaware.!4 “Where
a person holds himself out as a competent contractor to perform labor of a certain kind, the law
presumes that he possesses the requisite skill to perform such labor in a proper manner, and implies
as a part of his contract that the work shall be done in a skillful and workmanlike manner.”!> In
Bye, the implied warranty attached to a contract for the addition of concrete steps to an existing
building.’© The court in Bye provided that “where a person holds himself out as a competent
contractor to perform labor of a certain kind, the law presumes that he possess the requisite skill
to perform such labor in a proper manner, and implies as a part of his contract that the work shall
be done in a skillful and workmanlike manner.”!”

Here, Plaintiff is alleging Defendants failed to conform to the promises made as to the
building methods specified in the contract and at the skill Defendants held themselves out to
possess. Moreover, the contract expressly provided that “[a]ll work to be completed in a
workmanlike manner according to standard practices.”!® Viewing the facts in the light most
favorable to the Plaintiff, one could reasonably find that Defendants held themselves out as
competent contractors in the area of roofing. Therefore, summary judgment, as it relates to Count
III, would not be appropriate.

Defendants have also moved to have Hernandez dismissed from this action. Defendants

argue that the contract at issue was entered into between Plaintiff and Hernandez Contractor.

 

4 Council of Unit Owners of Breakwater House Condo. v. Simpler, 603 A.2d 792, 795 (Del. 1992).
'S Bye v. George W. McCaulley & Son Co., 76 A. 621, 622 (Del. Super. Ct. 1908).

16 Id.

" Id. at 622

'8 P}.’s Comp. Ex. A.
Hernandez is the owner of Hernandez Company, a corporate entity. Defendants argue that
Plaintiff has not alleged any facts to warrant piercing the corporate veil and making Hernandez
personally liable. “Piercing the corporate veil under the alter ego theory ‘requires that the
corporate structure cause fraud or similar injustice.’!? Effectively, the corporation must be a
sham and exist for no other purpose than as a vehicle for fraud.””°

Defendants contend that Plaintiff has failed to allege facts to warrant Hernandez to
remain in this suit and he should be dismissed from this case entirely. The Court disagrees.
Under the personal participation doctrine, a corporate official cannot shield himself behind a
corporation when he is an actual participant in the tort.?! It must be determined whether or not
Hernandez personally participated in the tortious conduct.” Plaintiff claims that Hernandez
misrepresented his credentials and did not abide by the contract. She argues that the contract was
predicated upon the credentials Hernandez held himself out to hold, perpetrating fraud and
inducement. Plaintiff further claims that Hernandez individually signed the contract.

“Personal participation doctrine can be triggered if an agent actively participates,
consents, or ratifies a tortious scheme.””* Furthermore, “the personal participation doctrine
attaches to corporate officers for torts in which they ‘commit, participate in, or inspire, even
though they are performed in the name of the corporation.’”*4 Viewing the record in a light most
favorable to Plaintiff, Plaintiff has alleged enough facts at this stage making dismissal

inappropriate.

 

9 Outokumpu Eng'g Enter., Inc. v. Kvaerner Enviropower, Inc., Del.Supr., 685 A.2d 724, 729 (1996).

20 Wallace ex rel. Cencom Cable Income Partners II, Inc., L.P. v. Wood, 752 A.2d 1175, 1184 (Del. Ch. 1999).
21 Sens Mech., Inc v. Dewey Beach Enterprises, Inc., 2015 WL 4498900, at *3 (Del. Super. Ct. June 23, 2015).
22 Id.

23 Td. ‘

4 Id. quoting Spanish Tiles, Ltd. v. Hensey, 2009 WL 86609, at *3 (Del. Super. Ct. Jan. 7, 2009).

6
Defendants also seek language to be stricken from Plaintiff's complaint. Plaintiff makes
several references to Hernandez Contractor’s insurance carrier. Defendants argue that this
language should be stricken because the insurance carrier is not a party to this litigation and is
improper. “Evidence that a person was or was not insured against liability is not admissible upon
the issue whether he acted negligently or otherwise wrongfully. This rule does not require the
exclusion of evidence of insurance against liability when offered for another purpose, such as
proof of agency, ownership or control, or bias or prejudice of a witness.””> Here, Plaintiff makes
reference to discussions with Hernandez Contractor’s insurance company, claiming that the
insurance company offered $3740 in exchange for a release of claims.”° The language at issue is
not being offered to establish another purpose outside of Defendants’ alleged negligence.”’
Therefore, Plaintiffs references to Hernandez Contractor’s insurance carrier will be stricken
from the complaint.

B. Plaintiff’s Motion to Amend

Plaintiff has moved to amend her complaint. “A motion for leave to amend is within the
sound discretion of the court and leave ‘shall be freely given when justice so requires.’””®
“However, a motion to amend must be denied if the amendment would be futile in the sense that
it would not survive a motion to dismiss under Rule 12(b)(6). The standard for assessing the

legal sufficiency of a proposed amended complaint is the same standard applicable to a motion to

dismiss.... and the proposed amendment will not be dismissed unless the plaintiff would not be

 

2—.R.E. 411.

6 Pl.’s Comp. at { 39-40.

27 Plaintiff adds that Hernandez Contractor’s insurer, Cincinnati Specialty Underwriters (“CinFin”), “[u]pon being
served with Plaintiff's August 2, 2019 Demand Letter, cc’d to the Defendants, as to all of the damage the insured
caused or made possible, CinFin, on August 16, 2019, again offered the $3740.00 in exchange for a release of all
claims, which Plaintiff declined as insufficient for her losses.”

28 EI. du Pont de Nemours & Co. v. Allstate Ins. Co., 2008 WL 555919, at *1 (Del. Super. Ct. Feb. 29, 2008) citing
Super. Ct. Civ. R. 15(a).
entitled to recover under any reasonably conceivable set of circumstances susceptible of
proof.””?

Plaintiff seeks leave to amend to add the Statute of Repose, 10 Del. C. § 8127.*° She
wishes to use the statute to add a statutory cause of action. The statute does not create a cause of
action. “The Statute affords protection to those performing or furnishing construction of such
improvement as well as those performing or furnishing any design, plan, supervision, or
observation of such improvement.”*! The Statute of Repose is a defense that relates to the
jurisdiction of the Court.*? It provides that “any failure to commence the action within the
applicable time period extinguishes the right itself and divests the ... court of any subject matter
jurisdiction which it might otherwise have.”*? After six years from substantial completion of
construction, no cause of action may be brought regardless of whether an action has accrued.** It
limits duration of liability for a defendant.*> Plaintiff is seeking to amend so all counts related to
the alleged deficiencies are time-preserved.*° The Statute of Repose will not accomplish this
goal. Granting Plaintiff's motion would be futile. Therefore, Plaintiff's motion to amend is

denied.

 

29 Id.

3° Section 8127 provides, in pertinent part, that any alleged deficiencies in the construction of improvements to real
property shall not be brought against any person after the expiration of six years. 10 Del. C. § 8127.

3! Cheswold Volunteer Fire Co. v. Lambertson Const. Co., 489 A.2d 413, 415 (Del. 1984).

32 Id. at 421.

33 Id.

34 Id.

35 Jd. at 417.

36 P].’s Mot. GI.
IV. CONCLUSION
Considering the foregoing, the complaint sets forth allegations sufficient to withstand a

motion to dismiss. Therefore, Defendants’ Motion is for Partial Dismissal is denied. Plaintiffs

Motion to Amend is denied.

IT IS SO ORDERED.

    

ichard F. Stokes, Judge

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