IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

RICHARD A. I-IUGHES and
H. KAREN HUGHES,

Plaintiffs,

V. C.A. No. Nl 8C-01-289 CEB
IMPERIAL HOME REMODELING
LLC and GIOVANNI ESPOSITO
a/l</a JOHN ESPOSITO,

Defendants.
Submitted: May l6, 2018
Decided: May 17, 2018
ORDER
I have before me a motion to dismiss filed by defendant Giovanni Esposito
a/k/a John Esposito (“Esposito”) in this matter. As briefly as it can be stated, this is
an action brought by Karen and Richard Hughes, homeowners in Newark, DE. Who
claim damages from Work done by Mr. Esposito’s company, Imperial Home
Remodeling, LLC (“Imperial”). The Hughes’ complaint Was filed in the Court of
Common Pleas, alleging damages of $49,000. Upon counsel for the defendants’
entry of appearance, the case Was transferred to this Court.
The motion to dismiss points out that the signed contract between the

Hughes’s and Esposito Was actually With Imperial and, since Esposito only signed

the contract on behalf of Imperial and not in his own capacity, there can be no
personal liability as to him and he therefore should be dismissed from the case.

The plaintiffs concede that two of their claims - for breach of contract and
breach of warranty -- are limited to the legal entity that signed the contract. Plaintiffs
argue, however, that their remaining counts, for negligence, consumer fraud, and
deceptive practices do not require dismissal because Esposito, even if acting as agent
for Imperial, may still be liable for his own conduct, regardless whether he was
acting as an agent for Imperial.

Support for plaintiff’ s position can be found in the Restatement (Third) of
Agency, §7.01, which states that “Unless an applicable statute provides otherwise,
an actor remains subject to liability although the actor acts as an agent or an
employee, with actual or apparent authority, or within the scope of employment.”

Thus, while the “corporate veil” may shield defendant Esposito from
individual liability for damages caused by his limited liability company, it does not
shield him from his own torts, whether committed in his individual capacity or as
agent for his limited liability company. For example, in State ex rel. Braa’y v.
Preferrea’ Florist Network, Inc.,l Vice Chancellor Lamb found the pleadings in a
consumer fraud complaint sufficient where the defendant, acting through a New

Jersey corporation, was alleged to have engaged in deceptive business practices,

 

1 791 A.2d 8, 21-22 (Dei. Ch. 2001).

saying the individual defendant would not be “shielded from liability simply because
he was acting in a corporate capacity when he allegedly participated in conduct
violative of the CFA and the UDTPA.”2

Defendant points the Court to the “fine print” of the Hughes/Imperial home
improvement contract and a provision that defendant calls an “Integration Clause”
that excluded reliance on representations not contained in the agreement The
Integration Clause may be given effect, but it may not. We see several cases that
have read such clauses quite narrowly.3 And while the exact nature of the
representations and defects are not fleshed out at this early stage of the case, we note
that defendants’ answer avers that the contract was not completed because Imperial
was “prevented from completing work by the City of Newarl<.”4 This is consistent
with the representations at oral argument that Imperial is not licensed to do business
in Newark, DE. That may, or may not, be relevant to the representations made at
the time of contracting, but it does demonstrate that dismissing defendant at this

stage would be inappropriate.

 

2 Id. at 22.

3 See generally Kronenberg v. Katz, 872 A.2d 568, 593 (Del. Ch. 2004); Alltrista
Plastics, LLC v. Rockline lna'ustries, Inc., 2013 WL 5210255 at *5 (Del. Super.
2013); Aviation West Charters, LLC v. Freer, 2015 WL 5138285 at 7-8 (Del. Super.
2015).

4 Answer 116, 8.

Whether all of this adds up to summary judgment in favor of either defendant
is too early to tell. The motion before the Court is to dismiss John Esposito in his
individual capacity, which the Court will do, as to the two contract counts, The
Court will not dismiss tort/misrepresentation counts as the parties must develop a
record upon which such claims can be examined. As to defendants’ integration
clause arguments, the Court cannot rule as a matter of law that the mere presence of
such a clause in a contract bars plaintiffs from presenting their evidence of fraud or
misrepresentation Defendants may raise their arguments again upon full discovery,
assuming there are by then no factual issues in dispute.

For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED as
to Counts 1 and 2 and DENIED as to the remaining Counts.

IT IS SO ORDERED.

 
 
    

_/ f-
/‘ /

Judge/Charles E. Butle_ru/

    

 

