      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY

                                        )
ROBERT AND ANN THOMAS,                  )
                                        )
                  Plaintiffs,           )
                                        )
            v.                          )
                                        )
CAPANO HOMES INC,                       )        C.A. No. N14C-11-074
                                        )
                  Defendant.            )


                                  OPINION

                        Date Submitted: January 7, 2015
                         Date Decided: April 2, 2015

      Upon Defendant Capano Homes Inc.’s Motion to Dismiss: DENIED.


Blake A. Bennett, Esquire, and Christopher H. Lee, Esquire, Cooch & Taylor P.A.,
1000 West Street, 10th Floor, Wilmington, DE 19801, Attorneys for Plaintiffs.

Jeffrey M. Weiner, Esquire, 1332 King Street, Wilmington, DE 19801, Attorney
for Defendant.




Jurden, P.J.
                               I. INTRODUCTION

      Before the Court is Defendant Capano Homes Inc.’s (“Capano”) Motion to

Dismiss. This case involves claims by the owners of a single family home against

the builder of that home. For the reasons that follow, Defendants’ Motion to

Dismiss is DENIED.

                                     II. FACTS

      On February 5, 1998, Plaintiffs Robert and Ann Thomas (“Plaintiffs”)

purchased a single family home from the original owner. 1 The original owner

purchased the property directly from Capano, the general contractor. 2 In 2014,

Plaintiffs learned of several instances of water infiltration affecting similar homes

with stucco facades.3 Thereafter, Plaintiffs hired a qualified expert to inspect their

home for water infiltration. 4 In August 2014, that expert determined “that the

Property suffers from serious, but hidden, design and construction defects that have

resulted and will result in severe water and moisture penetration, deterioration,

unattractiveness, loss of marketability and market value, structural and physical

instability, and other dangerous conditions.” 5




1
  Complaint ¶¶ 2–4 (Trans. ID 56311078); Plaintiffs’ Opposition to Capano Homes Inc.’s
Motion to Dismiss ¶ 1 (“Pls.’ Opp’n”) (Trans. ID 56564059).
2
  Pls.’ Opp’n ¶ 1.
3
  Compl. ¶ 5.
4
  Id.
5
  Id.


                                          2
      Plaintiffs filed a Complaint against Capano on November 7, 2014, asserting

a claim of negligent construction.

                            III. PARTIES’ CONTENTIONS

      Capano filed this Motion to Dismiss arguing that the Complaint must be

dismissed under Superior Court Civil Rule 12(b)(6) because it is time-barred. 6

According to Capano, Plaintiffs cannot rely on the Time of Discovery Rule to toll

the statute of limitations because problems with stucco in residential construction

have been well documented for many years prior to November 2014. 7 Thus,

Plaintiffs ignored the existence of facts sufficient to put a person of ordinary

intelligence and prudence on inquiry, which if pursued, would lead to the

discovery of such facts.8

      In opposition, Plaintiffs assert that the Complaint is timely because the

Complaint was filed in November 2014, promptly after they learned of the

construction defects from their home inspection expert in August 2014. 9 Plaintiffs

contend that they were not aware, nor should they have been aware, of any hidden

construction defects in their home prior to 2014 because “most homebuyers are not




6
   Capano Homes’ Motion to Dismiss Plaintiffs’ Complaint (“Mot. Dismiss”) (Trans. ID
56499487).
7
  Id. ¶¶ 7–9.
8
  Id.
9
  Pls.’ Opp’n ¶¶ 2–4.


                                         3
construction experts and are not expected to understand the complexities of

construction techniques or materials.” 10

                           IV. STANDARD OF REVIEW

       Through its Motion to Dismiss, Capano has submitted documents not relied

upon by the Plaintiffs in their Complaint. “[I]f a party a party presents documents

in support of its Rule 12(b)(6) motion and the court considers the documents, it

generally must treat the motion as one for summary judgment.” 11 Because the

Court is excluding from its consideration the documents attached to Capano’s

motion, the motion to dismiss remains preserved.

       On a motion to dismiss under Rule 12(b)(6), the Court will dismiss a

complaint only if it appears “with reasonable certainty that, under any set of facts

that could be proven to support the claims asserted, the plaintiff would not be

entitled to relief.” 12 The Court “accepts as true all well-pleaded allegations in the

complaint, and must view all inferences drawn from the facts plead in the light

most favorable to the plaintiff.” 13




10
   Id. ¶ 9.
11
   In re Santa Fe Pac. Corp. S’holder Litig., 669 A.2d 59, 69 (Del. 1995); Super. Ct. Civ. R.
12(b)(6).
12
   Clinton v. Enter. Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009).
13
   Savor, Inc. v. FMR Corp., 2001 WL 541484, at *2 (Del. Super. 2001) aff’d, 812 A.2d 894
(Del. 2002).


                                             4
                                    V. DISCUSSION

       Negligence claims are governed by 10 Del. C. §8106, which requires that a

plaintiff bring an action to recover damages within three years of the “accruing of

the cause of action.” 14 The statute of limitations may be tolled, however, under the

Time of Discovery Rule. 15 If the Time of Discovery Rule applies, the statute of

limitations “will begin to run only upon the discovery of facts constituting the basis

of the cause of action or the existence of facts sufficient to put a person of ordinary

intelligence and prudence on inquiry which, if pursued, would lead to the

discovery of such facts.” 16 For the limitations period to be tolled, the cause of

action must be inherently unknowable and the plaintiff must be blamelessly

ignorant of the cause of action. 17

       Here, the parties disagree as to when the statute of limitations began to

accrue. “[T]he Court will not adjudicate contested issues of fact on a motion to

dismiss, nor will it deem a pleading inadequate under Rule 12(b)(6) simply

because a defendant presents facts that appear to contradict those plead by the




14
   S&R Associates, L.P. v. Shell Oil Co., 725 A.2d 431, 439 (Del. Super. 1998); 10 Del. C.
§8106.
15
   See S&R Associates, 725 A.2d at 439; Lee v. Linmere Homes, Inc., 2008 WL 4444552, at *3
(Del. Super. 2008).
16
   Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 319 (Del. 2004) (citing Coleman v.
Pricewaterhousecoopers, LLC, 854 A.2d 838, 842 (Del. 2004)) (internal citations omitted).
17
   Morton v. Sky Nails, 884 A.2d 480, 481–82 (Del. 2005) (citing Layton v. Allen, 246 A.2d 794
(Del. 1968)).


                                              5
plaintiff.”18 It is premature for the Court to dismiss Plaintiffs’ claim as time-barred

because, without discovery, it is unclear when the statute of limitations began to

accrue, and whether the statue of limitations is tolled by the Time of Discovery

Rule. Under these circumstances, Capano is not entitled to dismissal.

                                     VI. CONCLUSION

         For the foregoing reason, Defendant’s Motion to Dismiss is DENIED. IT IS

SO ORDERED.




                                                     Jan R. Jurden, President Judge




18
     Doe 30’s Mother v. Bradley, 58 A.3d 429, 445 (Del. Super. 2012).


                                                 6
