IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TWO FARMS, INC.,
Plaintiff, C. A. No. K17C-09-010 NEP
V. In and For Kent County
DAVIS, BOWEN & FRIEDEL,
INC., and SILICATO-WOOD
PARTNERSHIP, LLC,

Defendants.

V`/VVVVVV

Submitted: December 15, 2017
Decided: December 26, 2017

MEMORANDUM OPINION
Upon Defendants’ Motions to Dismiss - GRANTED in part and DENIED in part

Shawn P. Tucker, Esquire, Law office of Drinker Biddle & Reath LLP,
Wilmington Delaware, Attomey for Plaintiff.

Richard L. Abbott, Esquire, Law office of Abbott Law Firm LLC,
Hockessin, Delaware, Attomey for Defendant Silicato-Wood Partnership, LLC.

Patrick M. McGrory, Esquire, Law office of Tighe & Cottrell, P.A.,
Wilmington, Delaware, Attomey for Defendant Davis, Bowen & Friedel, Inc.

Before the Court are Defendant Davis, Bowen & Friedel, Inc.’s (hereinalier
“DBF”) and Defendant Silicato-Wood Partnership, LLC’s (hereinafcer individually,
“Silicato,” and “Defendants,” collectively) motions to dismiss. Each motion requests
dismissal of the complaint filed by Plaintiff Two Farms, Inc. (hereinafter “Two

Farms”) that alleges that Defendants knowingly concealed certain facts about a

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property located in Milford, Delaware (hereinafcer the “Propeity”) that Silicato sold

to Two Farms. The facts recited here are those as alleged by Two Farms.l

I. FACTUAL BACKGROUND

In 2008, Silicato sought to develop the Property. DBF, acting as an agent for
Silicato, prepared a survey of the land and the related record plans. Silicato and DBF
submitted a building site plan (hereinafter the “Plan”) to Milford’s Development
Advisory Committee. At a December l, 2008 meeting, the Advisory Committee
made several comments, in which the Committee advised that the Plan required
certain adjustments The comment pertinent to this action concerned a direct access
entry point to the Property from Delaware Route l (hereinafter the “Entrance”). The
Advisory Committee stated “[a] note shall be added to the record plan stating that
this entrance may be modified or eliminated by [the Delaware Department of
Transportation] as future traffic conditions necessitate.” Neither DBF or Silicato
made the recommended change to the Plan.

In late 2010, Two Farms entered into a purchase agreement with Silicato for
the Property, contingent on Silicato receiving approval to use the Property as a
convenience store and gas station. Two Farms purchased the property on June l,
2011, having received all development approvals, including an entrance permit
issued by the Delaware Department of Transportation (hereinafcer “DelDOT”) for

the Entrance. This permit also did not indicate that the Entrance was temporary. The

 

1 On a motion to dismiss, all well-pleaded factual allegations are accepted as true. Savor, Inc. v.
FMR Corp., 812 A.2d 894, 896 (Del. 2002).

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final plan for construction on the Property was signed by Two Farms and DBF, and
did not indicate the temporary nature of the Entrance. In short, the temporary nature
of the Entrance was never disclosed to Two Farms by DBF or Silicato. On October
2, 2015, DelDOT informed Two F arms that the direct access from Delaware Route
l was temporary and Was to be removed. Two Farms then filed the instant suit

against Defendants, alleging fraud, negligence, and negligent misrepresentation

II. DISCUSSION

A. Silicato’s Motion to Dismiss

In its motion to dismiss, Silicato raises four grounds for dismissal: (1) Two
Farms’s sole remedy for the injury is a pending condemnation action; (2) Two
Farms’s claim is not yet ripe, as the entrance has not yet been closed; (3) Two Farms
has not pled causation and damages; and (4) Two Farms is barred from recovery by

the Statute of Repose.

1. Whether Two Farms’s Sole Remedy Is a Pending
Condemnation Action

Silicato’s first ground for dismissal argues that Two Farms “concedes that
when [Two Farms] purchased the Property from [Silicato] that the Entrance was
permanent Ll Delaware law establishes that the Entrance constitutes a vested
property right which may only be taken away by DelDOT if the payment of Just

Compensation is made . . . .”2

 

2 Silicato’s Motion to Dismiss at 3 (emphasis in original).

3

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This ground for dismissal is premised on factual assertions contrary to those
alleged by Two Farms. Two Farms’s complaint does not concede that the entrance
was perrnanent, but instead reads that “Silicato, the Delaware Department of
Transportation, and DBF all knew that th[e] entrance to the Property was temporary
in nature.” The complaint contains no indication of an admission to the contrary.
The Court must assume the truthfulness of the complaint’s well-pleaded allegations
when considering the motion to dismiss.3

Silicato’s motion correctly indicates that Two Farms might recover just
compensation for the taking of the Entrance. However, Silicato provides no authority
to support the proposition that such a recovery prevents the instant suit. In the
pending condemnation action, if the State of Delaware rescinds the right of access,
it may have to pay Two Farms the amount of the resulting reduction in the value of
the property from the original fair market value.4 However, Two Farrns is alleging
fraud against Silicato. The complaint, read as a whole, clearly implies that Silicato
fraudulently induced Two Farms to pay greater than fair market value for the
Property. The complaint reads that when Two F arms purchased the property for
approximately $2.5 million, it had “no notice nor knowledge” that the Entrance was
temporary.5 The complaint also reads that without the Entrance, the “fair market

value of the Property is significantly reduced.”6 While not explicitly stated, it is

 

3 Ladenburg Thalmann Financial Services, Inc. v. Ameriprise Financial, Inc., 2017 WL 685577
(Del. Super. Jan. 30, 2017).

4 See e.g., State v. Rehoboth Market Place Associates, 1992 WL 52154, at *3 (Del. Super. Feb.
26, 1992) (entrance permits constitute property rights, the deprivation of which is a taking
requiring just compensation); Brandywine Transmission Service, Inc. v. Justz'ce, 1990 WL 72591
at *l (Del. Apr. 16, 1990) (“Highway construction that drastically altered the accessibility of a
business establishment may impair business to such an extent as to require compensation.”).

5 Two Farrns Complaint 11 17.

6 Id. 11 28.

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reasonably implied that Two Farms paid more for the Property than it was worth, as
the risk of the Entrance’s elimination was not factored into the purchase price. This
Court must give Two Farms “the benefit of all reasonable inferences that can be
drawn from its pleading.”7 There is, therefore, a loss allegedly suffered that is greater
than and in addition to any recovery Two F arms might receive as a result of the

condemnation action, the outcome of which is yet unknown.

2. Whether Two Farms’s Claim Is Not Ripe

Silicato claims that the complaint is not yet ripe because “the Entrance has not
yet been closed.” Silicato alleges that Two Farms’s instant suit seeks damages “for
the future . . . [t]aking of the Entrance,” and that there is no actual case or controversy
unless and until the Delaware Department of Transportation “actually takes and
closes the Entrance and [Two Farms] can aver that it has not received Just
Compensation.”

Delaware courts decline to exercise jurisdiction over a case unless the
underlying controversy is ripe, i.e., has “matured to a point where judicial action is
appropriate.”8 A case is not considered ripe where “future events may obviate the
need” for judicial intervention.9

Here, Silicato misunderstands the injury the instant suit seeks to redress. Two
Farms seeks damages resulting from the alleged misrepresentation that the entrance

was permanent when it was in fact temporary_not the loss of the entrance, per se.

 

7 Solomon v. Pathe Commc'ns Corp., 672 A.2d 35, 38 (Del. 1996) (quoting USACafes, L.P.
Litig., 600 A.2d 43, 47 (Del. Ch. 1991)).

8 Stroud v. Milliken Enters., Inc., 552 A.2d 476, 480 (Del. 1989).

9 Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 872 A.2d 611, 631-32 (Del. Ch. 2005), aj"d in
relevant part, rev'd in part, 901 A.2d 106 (Del. 2006).

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The injury allegedly suffered as a result of misrepresentation was complete at the
time Two Farms purchased the Property: Two Farms alleges it paid more than fair
market value. Because the injury is complete and has already been suffered, judicial
action is presently appropriate. As stated supra in Section II. A. 1., the damages
compensable as a result of the instant fraud action are distinct from and potentially

greater than those that may be paid in the condemnation action,

3. Whether Two Farms Has Adequately Pled Causation and
Damages

Silicato’s third basis for dismissal is that DelDOT is the party actually causing
injury to Two Farms and will pay Two Farms “Just Compensation for [t]aking the
Entrance, precluding [Two Farms] from proving [d]amages against [Silicato].”

The Court’s decision here follows logically fi'om the holdings above. Two
Farms is not precluded from proving damages: the complaint alleges that Two Farms
paid more than fair market value for the property as a result of Defendants’ alleged
fraud. Such damages are distinct from any potential recovery from DelDOT for the

reduction in property value resulting from the removal of the Entrance.

4. Whether Two Farms’s Complaint is Barred
Silicato’s final ground for dismissal is that the Statute of Repose found at 10
Del. C. § 8127 (hereinafcer the “Builder’s Statute”) allegedly bars Two Farms’s
claims since they were brought more than six years after Work by DBF was

completed.

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Two Farms replies that the Builder’s Statute is inapplicable here, as it provides
a bar only to claims alleging injuries related to a “deficiency in the construction or
manner of construction of an improvement to real property and/or in the designing,
planning, supervision, and/or observation of any such construction or manner of
construction.”10

The Court agrees that the Builders Statute is inapplicable to the facts of this
case. Two Farms does not allege that the Entrance Was improperly built or designed.
Rather, the injury suffered relates to a misrepresentation regarding whether or not
the entrance was temporary or permanent. While Two Farms does allege that the
Plan failed to show that the Entrance was temporary, the complaint does not allege
a “deficiency in the construction or manner of construction of an improvement to
real property and/or in the designing, planning, supervision, and/or observation of
any such construction or manner of construction.” There is no allegation in this case

that the Entrance’s construction Was faulty, merely that its true status was not

indicated on the Plan.

B. DBF’s Motion to Dismiss

In its motion to dismiss, DBF raises the following grounds for dismissal: (l)
the complaint is barred by the Builder’s Statute, and (2) Two Farms’s third cause of
action, negligent misrepresentation, must be dismissed because this Court is without
subject matter jurisdiction to entertain a negligent misrepresentation claim. DBF
asserts that the Delaware Chancery Court has exclusive jurisdiction over negligent

misrepresentation claims. Only this second argument shall be addressed, as the first

 

1°101)¢1. C. § 8127.

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mirrors the argument raised by Silicato, and has been found without merit, as
explained above in section II. A. 4.

The jurisdictional issue is laid out by this Court’s decision in Radius Services,
LLC v. Jack Corrozi Const., Inc.:ll

If the plaintiff wishes to proceed with a claim in this Court, that
the defendants knowingly permitted the plaintiff to believe a false
representation, it may do so, but it cannot present a claim that the

defendants “should have known.” If, however, it wishes to include in

its claim that the defendants “should have known,” [that claim] should

be dismissed in this Court in whole, subject to transfer to the Court of

Chancery.

This Court therefore shall not hear a claim for negligent misrepresentation,
Two Farms points out certain cases where negligent misrepresentation claims were
heard by the Superior Court, but all were decided prior to a clearly reasoned opinion
issued by the Court of Chancery in Mark Fox Group, Inc. v. E.I. DuPont De Nemours
& Co.,12 Which illustrates that claims of negligent misrepresentation (sometimes
referred to as equitable fraud) are the exclusive jurisdiction of the Court of Chancery.

In this case, the jurisdictional deficiency with Plaintiff’s third cause of action
may be the result, in part, of inartful drafting. While Two Farms’s third cause of
action is labeled “Negligent Misrepresentation,” it specifically alleges that
Defendants “knew of the falsity of their representations.” However, it goes on to
state that Defendants “knew or should have known that the entrance could be

modified or eliminated by DelDOT,” and that “Defendants’ actions constitute

negligent misrepresentation.” In one sense, Two Farms’s third cause of action

 

11 2009 wL 3273509(De1. super. sept 30, 2009).
12 2003 WL 21524886 ar *5 (Del. ch. July 2, 2003).

8

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appears duplicative of the first cause of action for fraud, although it does contain
certain unique language concerning the factual allegations constituting fraud.
Plaintiff's counsel did concede at oral argument that Two Farms would not pursue
the “should have known” allegation and that this phrase could be stricken from the
complaint. However, because the third cause of action unequivocally asserts a claim
for negligent misrepresentation in paragraph 44, the Court cannot allow it to stand.
The Court will dismiss count three, with leave granted to Two Farms to amend its
complaint to include any allegations from that count that are properly within the
jurisdiction of this Court.

WHEREFORE, for the foregoing reasons, the Defendants’ motions to
dismiss are GRANTED only as to Two Farms’ third count, Negligent
Misrepresentation, and otherwise DENIED.

 

IT IS SO ORDERED.
_/s/ Noel Eason Primos
JUDGE
NEP/wj s
Via File & ServeXpress

oc: Prothonotary

cc: Shawn P. Tucker, Esquire
Richard L. Abbott, Esquire
Patrick McGrory, Esquire

