                                         Superior Court
                                              of the
                                       State of Delaware

    Jan R. Jurden                                                    New Castle County Courthouse
     President Judge                                                500 North King Street, Suite 10400
                                                                    Wilmington, Delaware 19801-3733
                                                                           Telephone (302) 255-0665

                                         August 6, 2015

Jeffrey S. Cianciulli, Esq.
Weir & Partners, LLP
824 North Market Street, Suite 800
Wilmington, DE 19801.

Seth J. Reidenberg, Esq.
Tybout, Redfearn & Pell
750 Shipyard Drive, Suite 400
P.O. Box 2092
Wilmington, DE 19899

RE: Young & McPherson Funeral Home, Inc. v. Butler’s Home Improvement, LLC
a/k/a Butler’s Home Improvement, Inc. a/k/a Kevin Butler, C.A. No. N14C-08-234 JRJ

Dear Counsel:

        The Court is in receipt of Defendant’s Motion to Dismiss Plaintiff’s Amended
Complaint, Plaintiff’s Response to Defendant’s Motion to Dismiss Plaintiff’s Amended
Complaint, and Defendant’s Reply in Support of its Motion to Dismiss Plaintiff’s Amended
Complaint. Defendant’s Motion is GRANTED in part, DENIED in part, and DEFERRED in
part, as explained below.

        Defendant argues the Amended Complaint must be dismissed pursuant to Superior Court
Civil Rule 12(b)(6) for three reasons: (1) the claims are time-barred by the three-year statute of
limitations; (2) the claim for fraud is not stated with particularity as required under Rule 9(b);
and (3) the negligence claim is impermissibly bootstrapped to the breach of contract claims. 1

Statute of Limitations

        Plaintiff’s claims are governed by the three-year statute of limitations under 10 Del. C. §
8106. 2 On a motion to dismiss, “the defendant bears the burden of proving that a limitations


1
  Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint ¶¶ 10, 16–17 (Trans. ID.
57063017).
2
  10 Del. C. § 8106; Estate of Buonamici v. Morici, 2010 WL 2185966, at *3 (Del. Super. 2010);
S&R Assocs., L.P. v. Shell Oil Co., 725 A.2d 431, 439 (Del. Super. 1998).
                                                1
period has lapsed and that a claim is time-barred.” 3 However, “[w]hen a complaint asserts a
cause of action that on its face accrued outside the statute of limitations [ ] the plaintiff has the
burden of pleading facts leading to a reasonable inference that one of the tolling doctrines
adopted by Delaware courts applies.” 4 Assuming a tolling exception has been pleaded
adequately, the Court must then determine when the plaintiff was on inquiry notice of a claim
based on the allegations. 5

        The Amended Complaint asserts causes of action for breach of contract and negligence
that on their face accrued outside the statute of limitations.6 On March 5, 2010, Plaintiff and
Defendant entered into the Second Agreement. 7 The Amended Complaint states, “Plaintiff made
the requisite payment on March 5, 2010 and March 12, 2010, in the amount of $500.00 and
$3,000.00 to Defendant, respectively. Defendant then commenced work; however, Defendant
only worked for three (3) days before once again abandoning the Project.” 8 Viewing the facts in
a light most favorable to Plaintiff, the statute of limitations began to accrue on March 15, 2010,
when Defendant ceased work at the Funeral Home. 9 The Complaint was filed on August 28,
2014, outside the three-year statute of limitations. Because the Complaint asserts a cause of
action that on its face accrued outside the statute of limitations, the Court must determine
whether Plaintiff has pleaded sufficient facts to invoke a tolling doctrine.

        “The [T]ime of [D]iscovery rule provides that in certain cases, a cause of action does not
accrue until a party has reason to know that he or she has a cause of action.” 10 The Time of
Discovery rule “is narrowly confined in Delaware to injuries which are both: (a) inherently
unknowable; and (b) sustained by a blamelessly ignorant plaintiff.” 11 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.” 12 “These facts must usually be
observable or objective factors that would alert laymen to the problem.” 13



3
   Winner Acceptance Corp. v. Return on Capital Corp., 2008 WL 5352063, at *14 (Del. Ch.
2008).
4
  Id.
5
  Id.
6
  Under Delaware law, “[t]he statute of limitations begins to run when a plaintiff’s claim accrues,
which occurs at the moment of the wrongful act and not when the effects of the acts are felt.”
Van Lake v. Sorin CRM USA, Inc., 2013 WL 1087583, at *6 (Del. Super. 2013).
7
  Amended Complaint ¶ 14 (“Am. Compl.”) (Trans. ID 56940432).
8
  Id. ¶¶ 15–16.
9
  Id.
10
   S&R Assocs., 725 A.2d at 439.
11
   Farm Family Cas. Co. v. Cumberland Ins. Co., Inc., 2013 WL 5488656, at *5 (Del. Super.
2013) (internal quotations omitted).
12
   Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 319 (Del. 2004) (internal citations
omitted).
13
   Van Lake, 2013 WL 1087583, at *8 (quoting Island Farm, Inc. v. Master Sidlow & Assocs.,
P.A., 2007 WL 2758775, at * 2 (Del. Super. 2007)).
                                                 2
        For purposes of a motion to dismiss, Plaintiff has pleaded facts sufficient to justify tolling
the statute of limitations under the Time of Discovery rule for the allegations in Count I (Breach
of First Agreement), Count II (Breach of Second Agreement), and Count IV (Negligence)
relating to: (1) construction work in the interior of the walls, chimney, and roof; (2) failure to be
licensed in Delaware; and (3) failure to obtain the appropriate permits. Paragraph 18 of the
Complaint states that in early 2013 Plaintiff had discussions with the City of Milford Code
Enforcement and Inspections Department and discovered that “Defendant did not replace the
roof shingles and underlying damage as promised but instead just added additional tiles to hide
the deficiencies, never completed work on the chimney and rewired the building in a dangerous
fashion (if it was done at all).” Thus, Plaintiff was on notice of Defendant’s alleged wrongful
conduct after discussions with the Code Enforcement Department in 2013.

         Aside from the aforementioned allegations, however, it is clear from the face of the
Amended Complaint that the remaining averments in Count I, Count II, and Count IV are time-
barred by the statute of limitations. For example, Plaintiff alleges, “Defendant never completed
the work agreed to in the Agreement or Second Addendum, including without limitation
completing the kitchen or bathroom on the second floor, installing the doors, painting,
completing the cabinets and chimney work, installing carpet on the first floor, installing lights
throughout the first floor and installing tile in the morgue and bathroom.” 14 These are
observable factors “sufficient to put a person of ordinary intelligence and prudence on inquiry
which, if pursued, would lead to the discovery of such facts.” 15 Moreover, Plaintiff only alleges
blameless ignorance as to: (1) construction work in the interior of the walls and roof; (2) failure
to be licensed in Delaware; and (3) failure to obtain the appropriate permits. 16

        Finally, to the extent Plaintiff asserts Defendant breached the implied warranty of good
quality and workmanship, this claim is also time-barred by the three-year statute of limitations.17
Although “Delaware law recognizes an implied warranty of good quality and workmanship,” 18
the Time of Discovery rule does not apply to implied warranties, which arise as a matter of
law. 19




14
    Am. Compl. ¶ 17. As previously discussed, Plaintiff has pleaded sufficient facts to
demonstrate that Plaintiff was blamelessly ignorant and did not discover facts to put it on inquiry
or actual notice of Defendant’s wrongful conduct relating to the chimney work until 2013.
15
   See Van Lake, 2013 WL 1087583, at *8; Wal-Mart Stores, Inc., 860 A.2d at 319.
16
   See Am. Compl. ¶ 21 (“Plaintiff was blamelessly ignorant of the construction defects that
occurred in the interiors of the walls at the Funeral Home and on the roof until conversations
with the Code Enforcement and Inspections office.”); Id. ¶ 22 (“Plaintiff further had no reason to
doubt that Defendant was licensed and properly applied for permits until that time . . . .”).
17
   Id. ¶ 25 (“Pursuant to the terms of the Agreement, Defendant agreed to complete the work in
the Project in a satisfactory manner exercising the degree of skill, knowledge, care and judgment
that would normally be exercised in such circumstances by a general contractor.”).
18
   Bromwich v. Hanby, 2010 WL 8250796, at *3 (Del. Super. 2010).
19
   Marcucilli v. Boardwalk Builders, Inc., 2002 WL 1038818, at *4 (Del. Super. 2002).
                                                  3
         “[I]gnorance of the facts constituting a cause of action does not act as an obstacle to the
operation of the statute . . . .” 20 Consequently, Count I, Count II, and Count IV are time-barred
by the three-year statute of limitations except for the allegations relating to: (1) construction
work in the interior of the walls, chimney, and roof; (2) failure to be licensed in Delaware; and
(3) failure to obtain the appropriate permits.

Count III: Fraud

        Allegations of fraud are subject to a heightened pleading standard. Rule 9(b) requires
that “the circumstances constituting fraud . . . shall be stated with particularity.” The Court will
“disregard conclusory allegations unsubstantiated by specific factual details that would support a
rational inference that a particular defendant committed common law fraud.” 21

        Plaintiff’s allegation of fraud is wholly conclusory and unsubstantiated by any specific
factual details. Plaintiff alleges “Defendant repeatedly made misrepresentations to Plaintiff,
including that (a) Defendant was licensed in Delaware; (b) that Defendant was obtaining all the
necessary permits for the job; and (c) that Defendant was conducting quality work.” 22 Plaintiff
merely alleges that “implied in the Agreement was that Defendant was properly licensed and that
it would get all appropriate permits for the Project.” 23 Plaintiff does not allege Defendant made
any specific statements that Defendant was licensed in Delaware or that Defendant was obtaining
the necessary permits. Count IV must be dismissed because it is not pleaded with the requisite
particularity.

Count IV: Negligence

        To the extent the negligence claim is not time-barred by the statute of limitations, the
Court defers ruling on Defendant’s argument that the claim is impermissibly bootstrapped to the
breach of contract claims. In Plaintiff’s Response to Defendant’s Motion to Dismiss, Plaintiff
asserts, “Defendant breached more than just the duty it owed to Plaintiff pursuant to the
Agreements; Defendant also failed to exercise the degree of care and skill ordinarily exercised by
contractors in conducting repairs, obtaining licenses and obtaining permits.” 24 The Court
requires supplemental legal memoranda concerning Plaintiff’s argument that contractors have an
independent common law duty to exercise reasonable care in performing contractual obligations.
Plaintiff shall file a legal memorandum not to exceed 15 pages (limited to 7 pages) by August 26,
2015. Defendant’s response (also limited to 15 pages) shall be filed by September 8, 2015, and
Plaintiff’s reply (limited to 7 pages) shall be filled on September 15, 2015.

       IT IS SO ORDERED.

20
   Began v. Dixon, 547 A.2d 620, 623 (Del. Super. 1988).
21
   Metro Commc’n Corp. BVI v. Advanced MobileComm Techs. Inc., 854 A.2d 121, 144 (Del. Ch.
2004).
22
   Am. Compl. ¶ 37.
23
   Id. ¶ 9.
24
   Plaintiff’s Response to Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint, at 7–8
(Trans. ID. 57168368).
                                                 4
                     Very truly yours,



                     Jan R. Jurden, President Judge


cc:   Prothonotary




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