IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JAMIE C. ARMSTRONG

Plaintiff,

C.A. NO.: Nl6C-09-026 AML

V.

COUNCIL OF THE DEVON, AND
THE DEVON CONDOMINIUM,

Defendants.

Submitted: January 23, 2018
Decided: March 23, 2018

ORDER

Defendants’ Motion for Summary Judgment: Granted
Plaintiff’s Motion for Partial Summary Judgment: Moot

l. Plaintist claims in this case arise from cracks that developed in 2007
in her condominium unit’s ceiling Defendants are the Devon Condominium and
the condominium’s governing body, the Council of the Devon (collectively the
“Council”). Although Plaintiff repaired the cracks several times, they always
reappeared. Nine years after she alerted the Council to the issue, Plaintiff sued the
Council, claiming the cracks resulted from the building’s common elements and
therefore should have been repaired by the condominium Because Plaintist

claims are based on a defect that Was discoverable more than three years before she

filed her claims, the claims are untimely and the Council is entitled to summary
judgment

FACTUAL BACKGROUND

2. Jamie Armstrong (“Plaintiff’) purchased Unit #1615 of the Devon
Condominium (the “Unit”) from a family member in September 2007. In a letter
written to the Council on December l2, 2007, Plaintiff complained of a “large
crack in [her] living room ceiling . . .” (“Ceiling Cracks”) that “has expanded and
has dropped lower making the ceiling uneven.”l In that letter, Plaintiff explained
that her family members had repaired the cracks “a few times” with the cracks
returning each time.2 Plaintiff inquired in 2007 whether the Council was
responsible for repairing the Ceiling Cracks.

3. After the Council denied responsibility for the repairs, Plaintiff hired
contractors to fix the Ceiling Cracks. Although the repairs initially appeared to be
successful, the Ceiling Cracks reappeared, causing drywall to fall in the Unit.
Plaintiff had the ceiling repaired “multiple times,” but the Ceiling Cracks
continued to “resurface.”3 On September l6, 2013, Plaintiff wrote a second letter
to the Council, recounting how the “[l]ast time l wrote to you, you said it was my

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responsibility to fix [the Ceiling Cracks]. In the second letter, Plaintiff also

 

‘Ex. Ato D.I. 27 at 1.
21¢1.
3 Ex. B to D.I. 27 at 1.
41¢1.

claimed other unit-owners told her it was the Council’s responsibility to fix the
Ceiling Cracks.5

4. Between 2013 and 2014, Plaintiff listed the Unit for sale, but
allegedly could not sell it because of the Ceiling Cracks. In September 2015,
Plaintiff leased the Unit to a tenant, but the tenant terminated the lease due to
concerns related to the Ceiling Cracks. In August 2015, confronted with Plaintiffs
continued complaints and a similar issue in a nearby unit, the Council retained an
engineering firm, Jagiasi Engineers, to investigate the issue.6 After a “limited
visual inspection” of the Unit’s ceiling construction, performed by accessing the
“plenum space” through an access point in the Unit’s closet, Jagiasi concluded the
Ceiling Cracks were caused by deterioration in the joints between the drywall.7 In
2016, the Council repaired the Ceiling Cracks in a manner that appears to have
resolved the issue.

5. On September 2, 2016, Plaintiff brought this action against the
Council for trespass, negligence, and breach of contract. Plaintiff seeks to recover
damages suffered through the cost of the initial repair work, the lost rent from the
terminated lease, and fees and mortgage interest paid after Plaintiff’ s failed

attempts to sell the Unit. On November 15, 2017, the Council moved for summary

 

5 Id.
6 Ex. B to Pl.’s Answer Br.
7 Id. at 1-3.

judgment based on the statute of limitations The Council argues Plaintiff had
notice of the Ceiling Cracks in 2007, and her claims therefore are barred by the
three-year statute of limitations Plaintiff also moved for partial summary
judgment on the issue of Defendants’ liability.
ANALYSIS

6. Summary judgment should be awarded if “the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving

”8 When considering a motion for

party is entitled to a judgment as a matter of law.
summary judgment, the evidence and the inferences drawn from the evidence are
to be viewed in the light most favorable to the nonmoving party.9 The Court will
accept “as established all undisputed factual assertions . . . and accept the non-
movant’s version of any disputed facts. From those accepted facts[,] the [C]ourt
will draw all rational inferences which favor the non-moving party.”10 A party
seeking summary judgment bears the initial burden of showing that no genuine

issue of material fact exists.ll If the movant makes such a showing, the burden

then shifts to the non-moving party to submit sufficient evidence to show that a

 

8 Super. Ct. Civ. R. 56(c).

9 Brzo.s'ka v. Olson, 668 A.2d 1355, 1364 (Del. 1995); Judah v. Del. Trust Co., 378 A.2d 624,
632 (Dei. 1977).

10 Marro v. Gopez, 1994 WL 45338, at *1 (Dei. super. Jan 18, 1994) (citing Merrill v. Cro¢halz_
Am., lnc., 606 A.2d 96, 99-100 (Dei. 1992)).

11 Moore v. Sizemore, 405 A.2d 679, 680-81 (Dei. 1979).

4

genuine factual issue, material to the outcome of the case, precludes judgment
before trial.12
7. Plaintiff s complaint alleges three counts - trespass, negligence, and
breach of contract - all of which are governed by a three-year statute of limitations
under 10 Del. C. § 8106. 13 Importantly, “[t]he statute of limitations is calculated
from the time of the wrongful act even if plaintiff is ignorant of the cause of action
. .”14 Tort actions accrue at the time of injury, and the statute of limitations
begins to run at that time.15 The time of injury occurs when “the plaintiff has
reason to know that a wrong has been committed.”16 In Delaware, a breach of
contract claim accrues, and the statute of limitations begins to run, when the
contract is breached.]7
8. Plaintiff alleges the statute of limitations was tolled by (i) Defendants’
fraudulent concealment of the facts; (ii) principles of equitable tolling; or (iii) the

inherently unknowable nature of the Ceiling Cracks’ cause. All those tolling

theories, however, even if applicable to the facts of this case, only apply until a

 

12 Id.; see also Brzoska, 668 A.3d at 1363.

13 10 Del. C. § 8106 (“No action to recover damages for trespass . . . shall be brought after the
expiration of 3 years from the accruing of the cause of such action . . . .”). See Aronow Roofing
Co. v. Gilbane Bldg. C0., 902 F.2d 1127, 1128 (3d Cir. 2002) (“The claim is subject to Delaware
law which provides a three-year limitation for causes of action based upon contracts.”); Ontario
Hydro v. Zallea Sys., Inc., 569 F.Supp. 1261, 1268 (D. Del. 1983) (“The general and well-settled
law of Delaware is that tort actions accrue under 10 Del.C. § 8106 . . . .”).

14 Lincoln Nar’l Life lns. Co. v. Snyder, 722 F.supp.2d 546, 563 (D. Dei. 2010).

15 Cizy OfNewark v. Edward H. Richardson Assoc., lnc,, 375 A.2d 475, 476 (Dei. super. 1977).
16 Abdz v. NVR, lnc., 2007 WL 2363675, at *3 (Dei. super. Aug. i7, 2007).

17 In re Marvel Enrm ’¢ Grp., lnc., 273 B.R. 58, 80 (D. Del. 2002).

5

person is on inquiry notice of the facts supporting a claim18 “Inquiry notice”
means a person is aware of facts “sufficient to put a person of ordinary intelligence
and prudence on inquiry which, if pursued, would lead to the discovery.”19 Once a
person is on inquiry notice of an injury, the statute begins to run even if that person
is unaware of the cause of the injury.20

9. Here, all Plaintiff’ s claims accrued in 2007 when the Council denied
liability for the Ceiling Cracks. Plaintiff’ s claims are based on alleged intrusion
into the Unit from Common Elements and the Council’s failure to repair a problem
caused by Common Elements. Plaintiff’ s first letter to the Council in 2007,
however, reveals she was aware the Unit’s previous owners repaired the Ceiling
Cracks several times, but they continued to reappear and even worsen after repair.
Plaintiff argues she did not become aware of the cause of the Ceiling Cracks until
2015, when Jagiasi opined that the cracks likely were caused by structural

problems in the Common Elements above the Unit.21 Plaintiff’s argument,

 

18 Becker v. Hamaa'a, Inc., 455 A.2d 353, 356 (Del. 1982); Burrell v. AstraZeneca LP, 2010 WL
3706584, at *5-7 (Del. Super. Sept. 20, 2010); Weiss v. chmson, 948 A.2d 433, 451 (Del. Ch.
2008); Abdi, 2007 WL 2363675, at *3; In re Tyson Foods, lnc., 919 A.2d 563, 585 (Del. Ch.
2007).

19 Becker, 455 A.2d at 356; see also Burrell, 2010 WL 3706584, at *5.

20 McClements v. Kong, 820 A.2d 377, 380 (Del. Super. 2002); Abdi, 2007 WL 2363675, at *4.

21 At oral argument, the Council argued for the first time that the articles governing the Devon
(the “Declarations”) expressly define ceilings as a common element, and Plaintiff therefore was
on inquiry notice of the Council’s repair obligation because the Declarations are a matter of
public record. Plaintiff argued the Declarations are ambiguous and, in any event, the Council
waived the argument by failing to raise it in the briefs. Ironically, the parties’ respective
arguments on this point largely are inconsistent with their arguments relating to Plaintiff’s partial
summary judgment motion. In any event, because I conclude Plaintiff was on inquiry notice for

6

however, ignores settled law regarding tolling. The undisputed facts of record
show Plaintiff was aware in 2007 that the Ceiling Cracks existed and had persisted
for a number of years in spite of attempted repairs. By that date, Plaintiff was
aware of facts that, if pursued, would lead to the discovery of the claims alleged in
the complaint. Accordingly, even if Plaintiff could establish that any tolling
doctrine applies to her claims, the statute began to run, at the latest, in 2007, when
she was on inquiry notice of the claims.

10. The facts in this case are similar to those in Abdi v. NVR, Inc.22 and
Becker v. Hamada, Inc.23 In Aba’i, the plaintiffs suffered damages after a back-up
caused sewage to flood their basement through a toilet, shower, and sink.24 The
Abdi plaintiffs argued the limitations period was tolled because they did not know
the sewer back-up caused the flooding. The Court disagreed, holding that although
the plaintiffs in that case did not know the cause of the damage, the flooding put
them on inquiry notice that, if pursued, would have led them to discover the cause.

11. Similarly, in Becker, the plaintiff sued its roofing suppliers for
negligence after persistent leaks caused damages to plaintiff’s shopping mall.25

The Becker plaintiff brought its claim in 1980, six years after the leaks began, and

 

reasons unrelated to the language in the Declarations, I need not reach the merits of this alternate
argument

22 2007 WL 2363675 (Del. super. Aug. i7, 2007).

23 455 A.2d 353 (Dei. 1982).

24 Abdi, 2007 WL 2363675, at *4.

25 Becker, 455 A.2d at 356.

four years after the plaintiff hired contractors to fix the roof. The plaintiff argued
the leaks’ cause was “inherently unknowable” until 1979 when they attempted to
pinpoint the cause. The Supreme Court, however, held “the existence of a roof
defect was reasonably discoverable before 1976, even though [the plaintiff] did not
attempt to pinpoint the exact cause of the leaks until 1979.”26

12. Both the Abdi and Becker courts held plaintiffs were on inquiry notice
of defendants’ allegedly negligent actions because they had notice of the damages
that, if pursued, would have led both plaintiffs to discover the cause of the
damages Notice of the damages, however, may not amount to inquiry notice of a
claim if reasonably alternative causes or fraudulent concealment inhibit a person’s
ability to discover the cause of the damages

13. For example, in S&R Assoc., L.P. v. Shell Oz'l C0.,27 a case on which
Plaintiff relies, persistent plumbing leaks in an apartment complex were caused by
inherent defects in the plumbing materials Plaintiff initially thought the leaks
were caused by faulty installation.28 After discussing the problem with other
property managers, however, Plaintiff discovered the leaks may have occurred due
to inherent defects in the polybutylene piping system29 The Court denied

summary judgment for defendants because a factual dispute existed as to whether

 

26 ld-

27 725 A.2d 431 (Dei. 1998).
28 ld. at 439.

29 Id

plaintiff should or could have attributed the plumbing leaks to defective plumbing
materials instead of faulty installation.30

14. Unlike S&R, however, no fraudulent concealment or alternative
explanation inhibited Plaintiff from discovering the cause of the Ceiling Cracks in
this case. In fact, the cause of the Ceiling Cracks was discovered after a “limited
visual inspection” of the plenum space from an area accessible from Plaintiff’ s
Unit. Unlike S&R, there is no question that Plaintiff, had she exercised due
diligence, could have discovered the Ceiling Cracks’ cause. Accordingly, and
consistent with the Aba’i and Becker holdings, Plaintiff’s claim accrued in 2007 and

is now time-bared.

CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment is

GILANTED and Plaintiff’s Motion for Partial Summary Judgment is MOOT. IT

18 80 RD W 2 %/

\__/ -’ -/
Abigail M. LeGrow,

Original to Prothonotary
cc: Richard L. Abbott, Esquire
Kevin J. Connors, Esquire

 

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