               IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

    MARK FANSLER and LINDA                         )
    GOLDSTEIN,                                     )
                                                   )
            Plaintiffs,                            )
                                                   )
    v.                                             )
                                                   )    C.A. No.: N17C-09-015 EMD
    NORTH AMERICAN TITLE                           )
    INSURANCE COMPANY, R.                          )
    MATTHEW LONGO, LONGO &                         )
    ASSOCIATES, L.P., RICHARD M.                   )
    LONGO, HILLCREST ASSOCIATES,                   )
    INC. and GLOBAL TITLE, INC.,                   )
                                                   )
            Defendants.                            )


    MEMORANDUM OPINION DENYING, IN PART, DEFENDANTS RICHARD M.
             LONGO AND HILLCREST ASSOCIATES, INC.’S
                MOTION FOR SUMMARY JUDGMENT

         Upon consideration of Defendants Richard M. Longo and Hillcrest Associates, Inc.’s

Motion for Summary Judgment (the “Motion”) filed by Defendants Richard M. Longo and

Hillcrest Associates, Inc. (collectively, “Surveyor”); Plaintiffs’ Opposition to Richard M. Longo

and Hillcrest Associates, Inc.’s Motion for Summary Judgment (the “Opposition”) filed by

Plaintiffs Mark Fansler and Linda Goldstein (collectively, “Plaintiffs”); the Second Amended

Complaint (the “Complaint”); and the entire record of this civil action, the Court will, for the

reasons set forth below, DENY, in part, the Motion. In addition, the Court is requiring further

briefing on Plaintiffs’ negligence per se argument.

                                              FACTS

         The Complaint states a single cause of action against the Surveyor. According to

Plaintiffs, the Surveyor acted negligently by failing to obtain the required written waiver from

Plaintiffs to not set corner markers on the property located at 1805 Walnut Street, Wilmington,
DE 19809 (the “Covered Premises”). Thereafter, Surveyor relied on improperly placed iron

pins. Surveyor then compounded this error by “…improperly rel[ying] upon the boundary

information taken from a deed of record recorded in the Office of Recorder of Deeds in and for

New Castle County.”1

           Plaintiffs allege that Surveyor and Matthew Longo, Esquire, worked together to obtain an

easement, develop a mortgage survey plan (“MSP”), a revised MSP, and a legal description that,

as of May 21, 2015, showed a twenty-foot easement for access and public utilities for the

Covered Premises. Surveyor and Mr. Longo completed this work on or about June 9, 2015.

Despite this, the Covered Premises remained landlocked because the easement obtained still did

not provide access. Plaintiffs contend that this result is based, in part, on the Surveyor’s

negligence in conducting his work on the Covered Premises.

           Plaintiffs filed the version of the Complaint applicable to the Surveyor on May 21, 2018.

                                    PARTIES’ CONTENTIONS

           SURVEYOR’S CONTENTIONS

           In the Motion, Surveyor contends he is entitled to summary judgment because: (i)

Plaintiffs’ claim is barred by the applicable statute of limitations; and (ii) Plaintiffs have not

provided evidence concerning Surveyor’s alleged negligence. Surveyor’s first argument

contends that Plaintiffs were aware of the access issues no later than August 25, 2014 and the

metes and bounds issue no later than January 7, 2015. Because the relevant filing date for

Surveyor is May 21, 2018, Surveyor claims that the applicable three-year statute of limitations

had already expired. 2




1
    2d Am. Compl. at ¶ 39.
2
    Mot. at ¶¶ 8-9.

                                                   2
          Surveyor next argues that Plaintiffs have failed to provide evidence that “any breach of

any duty owed by Surveyor[ ] caused the alleged damages.”3 Surveyor contends that Plaintiffs

have not demonstrated that Surveyor’s MSPs did not accurately reflect the actual state of the

Covered Premises. Moreover, Surveyor claims that Plaintiffs have no expert that will opine to

any breach of a relevant standard of care by Surveyor. Surveyor notes that Plaintiffs’ expert

report from Carmine F. Casper (Plaintiffs’ Expert) contains no criticism of Surveyor’s work or

an opinion that Surveyor’s purported negligence was the proximate cause of Plaintiffs’ injury.

          PLAINTIFFS’ CONTENTIONS

          Plaintiffs oppose the Motion. Plaintiffs argue that the applicable date for purposes of the

three-year statute of limitations is June 9, 2015—the date when Attorney and Surveyor

completed their work on the Covered Premises. 4 Plaintiffs focus their claim against the Surveyor

on conduct that took place on March 11, 2015, May 21, 2015 and June 9, 2015.5 The first date

relates to a time when Attorney directed Surveyor to revise the metes and bounds on the MSP to

show a ten-foot right of way. 6 Surveyor then worked with Attorney, creating a second MSP, to

record an easement with an adjacent property owner. 7 In neither instance did Surveyor set

corner markers. 8 Moreover, Surveyor did not obtain a waiver from Plaintiffs to forego setting

corner markers. 9 In the end, the MSPs and property descriptions were incorrect and no right of

access existed because, allegedly, the Surveyor completed the MSPs without setting corner

markers.




3
  Id. at ¶ 13.
4
  Opp. at ¶ 10.
5
  Id. at ¶¶ 5-7.
6
  Id. at ¶ 5.
7
  Id.
8
  Id. at ¶ 7.
9
  Id.

                                                   3
         Plaintiffs contend that their negligence claim is sustainable. Plaintiffs are relying on

negligence per se.10 Plaintiffs argue that Surveyor violated applicable rules and regulations

relating to professional surveyors pursuant to Chapter 27 of Title 24 of the Delaware Code. 11

Plaintiffs contend that Surveyor’s failure to obtain a waiver violated Regulation 12.7 of the

Regulations for the Board of Professional Land Surveyors. 12 Plaintiffs state that this violation

plus testimony from Mr. Fansler and Plaintiffs’ Expert is enough to show a breach of the

applicable standard of care, causation and damages.13

                                                   DISCUSSION

         LEGAL STANDARD

         The standard of review on a motion for summary judgment is well-settled. The Court’s

principal function when considering a motion for summary judgment is to examine the record to

determine whether genuine issues of material fact exist, “but not to decide such issues.”14

Summary judgment will be granted if, after viewing the record in a light most favorable to a

nonmoving party, no genuine issues of material fact exist and the moving party is entitled to

judgment as a matter of law.15 If, however, the record reveals that material facts are in dispute,

or if the factual record has not been developed thoroughly enough to allow the Court to apply the

law to the factual record, then summary judgment will not be granted. 16 The moving party bears




10
   Id. at ¶ 11.
11
   Id. at ¶¶ 12-13.
12
   Id. at ¶ 14.
13
   Id. at ¶ 15.
14
   Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992) (internal citations omitted); Oliver B. Cannon
& Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del. Super. 1973).
15
   Id.
16
   See Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); see also Cook v. City of Harrington, 1990 WL 35244
at *3 (Del. Super. Feb. 22, 1990) (citing Ebersole, 180 A.2d at 467) (“Summary judgment will not be granted under
any circumstances when the record indicates . . . that it is desirable to inquire more thoroughly into the facts in order
to clarify the application of law to the circumstances.”).

                                                           4
the initial burden of demonstrating that the undisputed facts support his claims or defenses. 17 If

the motion is properly supported, then the burden shifts to the non-moving party to demonstrate

that there are material issues of fact for the resolution by the ultimate fact-finder.18

           STATUTE OF LIMITATIONS

           The limitations period applicable to Plaintiffs’ negligence claim is governed by 10 Del.

C. §8106. Under Section 8106, Plaintiffs had three years to file a negligence claim against

Surveyor. Plaintiffs filed suit against Surveyor on May 21, 2018. Plaintiffs make no tolling

argument. Accordingly, Surveyor’s purported negligence will have had to accrue after May 22,

2015 for Plaintiffs’ claim to be timely.

           Surveyor focuses on the time when Plaintiffs had notice that the Covered Premises

suffered access issues. Surveyor contends that Plaintiffs had notice of the access problems and

metes and bounds issues no later than January 15, 2015.

           However, as plead, Plaintiffs’ negligence claim does not exclusively focus on events

prior to January 15, 2015. The Second Amended Complaint asserts a claim regarding actions

taken from March 11, 2015 through June 9, 2015. Plaintiffs contend that Surveyor’s revised

MSP in March 11, 2015 added a nonexistent easement. Thereafter, Attorney obtained an

easement signed by all necessary parties but, allegedly, Surveyor’s second revised MSP dated

May 20, 2015 and corrected deed dated May 21, 2015 included an easement that also turned out

to be defective. This problem was not discovered until sometime later when Plaintiffs’ Expert

conducted a survey and reset the property markers.




17
     See Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970) (citing Ebersole, 180 A.2d at 470).
18
     See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995).

                                                          5
        Specifically, Plaintiffs contend that Surveyor had a duty to obtain a waiver from Plaintiffs

“to not set corner markers.” 19 As a result of this breach of duty, Surveyor “failed to inform

[Plaintiffs] after the grant of the May 20, 2015 easement that the Covered Premises would

remain landlocked.” 20 Finally, Plaintiffs allege:

        During his field survey, Surveyor relied upon improperly place iron pins.
        Compounding the error, Surveyor improperly relied upon the boundary information
        taken from a deed of record recorded in the Office of Recorder of Deeds in and for
        New Castle County. (Instrument No. 20060403-0031442).21

        As presented, the Court finds that questions of fact remain regarding the limitations

period. Surveyor is characterizing Plaintiffs’ claim in a manner not consistent with the

Complaint. The Court, therefore, holds that there remain outstanding genuine issues of material

fact and that the Surveyor is not entitled to judgment as a matter of law.

        NEGLIGENCE PER SE

        Surveyor contends that Plaintiffs have no expert to opine as to Surveyor’s purported

breach of duty and proximate cause. 22 Plaintiffs disagree as to proximate cause but argue that no

expert testimony is necessary because Surveyor’s violation of Regulation 12.7 of the Regulations

for the Board of Professional Land Surveyors constitutes negligence per se. 23

        In Delaware, “the violation of a statute or ordinance enacted for the safety of others is

negligence in law or negligence per se.”24 Violations of mandated regulations by authorized

agencies have the force of law.25 “On a claim for negligence per se, a party must make a four-

part showing.”26 First, the party “must show that the statute in question was enacted for the


19
   2d Am. Compl. at ¶ 37.
20
   Id. at ¶ 38.
21
   Id. at ¶ 39.
22
   Mot. at ¶¶ 10-14.
23
   Opp. at ¶ 14.
24
   Sammons v. Ridgeway, 293 A.2d 547, 549 (Del. 1972).
25
   Id.
26
   NVF Co. v. Garrett Snuff Mills, Inc., 2002 WL 130536, at *2 (Del. Super. Jan. 30, 2002).

                                                         6
safety of others.”27 Next, the party “must demonstrate a causal connection between the statutory

violation and the injury, and, that [the party] was a member of the class of persons the statute set

out to protect.” 28 Then, the party “must show that the statute set forth a standard of conduct

which was designed to avoid the harm [the party] suffered.”29 Finally, the party “must show

that [the other party] violated the statute by failing to comply with that standard of conduct.”30

        The Court is not convinced that Plaintiffs can meet this four-part test—especially the part

of the test relating to this being a statute/regulation enacted for the safety of others. Moreover,

the Court does not believe the briefing and oral argument held on the Motion addressed this point

adequately. This is not the fault of the parties. The parties’ attorneys did a good job of

presenting and arguing issues to the Court. The Court failed to follow up on points regarding

negligence per se, focusing, instead, on matters relating to proximate cause and damages.

        The Court is aware that another motion for summary judgment has been filed by a co-

defendant and been briefed.31 The Court, therefore, orders Plaintiffs and Surveyor to submit

supplemental briefs no later than 4:00 p.m. on June 2, 2020 on the issue of negligence per se.

The briefs can be no longer than eight (8) pages and should address the four-part test set out

above. The parties should not address the issue of damages in the supplemental briefs.




27
   Id. (citing Sammons, 293 A.2d at 549).
28
   Id. (citing Sammons, 293 A.2d at 549.
29
   D’Amato v. Czajkjowsksi, 1995 WL 945562, at *2 (Del. Super. Oct. 26, 1995) (citing Wealth v. Renai, 114 A.2d
809, 810–11 (Del. Super. 1955)).
30
   NVF Co., 2002 WL 130536, at *2 (citing Carroll v. Getty Oil Co., 498 F.Supp. 409, 412–13 (D. Del. 1980)).
31
   D.I. Nos. 143, 144 and 145.

                                                       7
                                         CONCLUSION

       For the reasons set forth above, the Motion is DENIED as to Plaintiffs’ claim being

barred by the applicable statute of limitations. The Court is reserving judgment on the issue of

whether Plaintiffs can rely on negligence per se until after the supplemental briefing is complete.

IT IS SO ORDERED.

Dated: May 12, 2020
Wilmington, Delaware
                                             /s/ Eric M. Davis
                                             Eric M. Davis, Judge




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