The Council of the Pointe at Bethany Bay Condominiums, Plaintiff
Michele A. Higgins and Terrence S. Higgins, Defendants
Date Submitted: June 3, 2013
Draft Report: March 13, 2013
Pending before me is a motion for summary judgment filed by Plaintiff The Council for the Pointe at Bethany Bay Condominiums (hereinafter "the Council") in a case that involves a dispute between the Council and owners of a condominium unit in the Pointe at Bethany Bay Condominiums (hereinafter "The Pointe") over access to their unit. For the reasons set forth below, I recommend denial of the motion for summary judgment.
I. Procedural and Factual Background
On May 17, 2012, Plaintiff filed a verified complaint in this Court to enforce certain restrictions applicable to the property owned by Defendants Michele A. Higgins and Terrence S. Higgins. Defendants own Unit 3401 at The Pointe and, as owners of this condominium unit, are subject to the Condominium Documents governing The Pointe, including Articles 6 C and 6 F of the Declaration which provide:
C. The Council shall maintain, repair, replace, and manage, and make any additions or improvements to the Common Elements and Limited Common Elements as provided in the Code of Regulations;
F. The Council shall have an easement to enter any Unit at any time to make emergency repairs necessary to protect any part of the Property from damage or further damage, and shall have the right to enter any Unit on reasonable notice to the respective Owner to perform such routine maintenance or other action as may be necessary to preserve any part of the Property.
According to the complaint, Plaintiff undertook a repair and replacement project beginning in late fall of 2010 involving the outdoor siding and windows of the seven multi-level condominium buildings located at The Pointe. During the construction work, a number of units allegedly were found to have significant mold growth due to moisture infiltration on the outside wall sheathing under the siding adjacent to the units in the building. Where substantial mold growth was found on the outside adjacent to a unit, Plaintiff investigated whether mold had infiltrated into the inside of a unit by giving notice to the owner of the affected unit to obtain access and to have professionals test for mold growth. Where mold growth was discovered in the interior of any unit, Plaintiff again provided notice to the owner of such unit and obtained access for its professional contractors to undertake remediation and restoration work.
In its complaint, Plaintiff alleges that black mold was discovered on the outside sheathing walls adjacent to Defendants' unit, but that Defendants repeatedly refused Plaintiff access to their unit to test for mold. After several months had passed, and after Plaintiff had determined that mold existed in the units adjacent to Defendants' unit, Defendants allowed Plaintiffs professional mold expert to access their unit, whereupon the expert allegedly found mold in Defendants' unit at levels that, in the expert's opinion, require remediation. Defendants thus far have refused to grant access to their unit to Plaintiffs contractors in order for them to assess the amount of remediation work that is needed and to provide Plaintiff with a cost estimate.
In their Answer filed on July 16, 2012,  Defendants deny that they have violated the Declaration, deny that the individual who performed the mold testing in their unit qualifies as a professional mold expert, and deny that any data obtained during that inspection was collected in conformity with accepted scientific standards. Accordingly, Defendants deny that the findings of this alleged professional mold expert represent any mold issue in their unit or any surrounding units, and deny that mold remediation is necessary in their unit.
Before engaging in any discovery, on November 20, 2012, Plaintiff moved for summary judgment on Counts I and II of its complaint, and moved for sanctions against the Defendants. After briefing was completed on two these motions, on Plaintiffs subsequent motion to stay discovery, and on Defendants' subsequent motions to compel discovery and to supplement their answering brief in opposition to Plaintiffs motion for summary judgment, I issued a draft report on March 13, 2013, in which I recommended the denial of Plaintiffs motion for summary judgment, which would have the effect of rendering moot Plaintiffs motion to stay discovery and Defendants' motions to compel discovery and to supplement their answering brief. I reserved decision on Plaintiffs motion for sanctions because the allegations contained therein were disputed by Defendants, and because it was unclear to me on what legal basis Plaintiff was seeking sanctions at such a preliminary stage of this proceeding. Plaintiff took exceptions to my draft report. The exceptions have been briefed, and I have decided to withdraw my draft report and issue my final report as follows.
II. Standard of Review
Under Court of Chancery Rule 56, the Court may grant summary judgment when there are no material issues of fact and the moving party is entitled to judgment as a matter of law. The Cove on Herring Creek Homeowners' Association, Inc. v. Riggs, 2003 WL 1903472, at *3 (Del. Ch. April 9, 2003) (citing Brazen v. Bell Atl. Corp., 695 A.2d 43, 47 (Del. 1997); Vornado PS, L.L.C v. Primestone Inv. Partners, L.P., 2002 WL 31888349, at *11 (Del. Ch. 2002)). If the moving party can show that no genuine issue of material fact exists, then the burden shifts to the non-moving party to show that there are material issues of fact in dispute. See Sierra Club v. DNREC, 2006 WL 1716913, at *2 (Del. Ch. June 19, 2006) (citing Scureman v. Judge, 626 A.2d 5, 10 (Del.Ch. 1992), aff'd, Wilmington Trust co. v. Judge, 628 A.2d 85 (Del. 1993)(ORDER); Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995)). In reviewing a motion for summary judgment, the Court will look at all evidence in the light most favorable to the nonmoving party, but the non-moving party cannot rest on its pleadings, but must come forward with admissible evidence creating a triable issue of material fact or else risk summary judgment against it. See Sierra Club, letter op. at *2, supra (citing In re Gaylor Container Corp. S'holders Litig., 753 A.2d 462, 473 (Del. Ch. 2000); In re Liquidation of Nat'I Heritage Life Ins. Co., 728 A.2d 52, 56 (Del. Ch. 1998, aff'd, 723 A.2d 397 (Del. 1998)).
The record at this stage of the proceeding reveals the existence of genuine issues of material fact regarding Plaintiffs actions in this matter precluding resolution of this case through the entry of summary judgment. The only evidence supporting Plaintiffs motion for summary judgment consist of inadmissible hearsay in the form of reports from environmental consultants and the single affidavit of Ann Bryan, president of the Council. In opposition to the motion, Defendants have argued that the mold testing and extreme remediation plans for their unit are a form of harassment and retaliation by Council for Defendants' previous complaint against one of Council's contractors, and have supplied supporting admissible evidence in their own affidavits. Defendants also have presented an affidavit from an industrial hygienist with over 25 years of experience, averring that the test results and remediation recommendations of Plaintiffs mold inspector were not based ...