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Mozeik v. Seramone & Sons Home Improvements, Inc.

Superior Court of Delaware, New Castle

April 28, 2015

BRADLEY and CELESTE MOZEIK, Plaintiffs,
v.
SERAMONE & SONS HOME IMPROVEMENTS, INC., a Delaware Corporation, JOE SERAMONE, JR., and TRUBUILT CONSTRUCTION CO., a Maryland Corporation, Defendants.

Submitted: April 27, 2015

Victor F. Battaglia, Esquire, Biggs and Battaglia, Wilmington, Delaware, Attorney for Plaintiffs.

R. Karl Hill, Esquire, Seitz, Van Ogtrop & Green, P.A., Wilmington, Delaware, Attorney for Defendant.

MEMORANDUM OPINION AND ORDER

PAUL R. WALLACE, JUDGE

I. Introduction

Before the Court is Defendant Trubuilt Construction Company's ("Trubuilt") motion to dismiss. Plaintiffs Bradley and Celeste Mozeik (together the "Mozeiks") live in Earleville, Maryland. The Mozeiks hired Seramone & Sons Home Improvement ("Seramone") to complete renovations on their home, and Seramone hired Trubuilt to complete some of the construction. The Mozeiks now allege that the work Seramone and Trubuilt completed on their home was substandard and not done in a workmanlike manner.[1] As the Mozeiks have selected an appropriate forum for their action, the Court DENIES Trubuilt's motion to dismiss.

II. Factual Background

Mr. and Mrs. Mozeik hired Seramone, a company incorporated and based in Wilmington, Delaware, to complete renovations on their home in Earleville, Maryland in March 2014. Wilmington is approximately 35 miles from Plaintiffs' home in Cecil County, Maryland. These renovations included: a two-story addition containing two bathrooms (one newly constructed, the other an existing bathroom to be gutted and reconstructed); installation of heating, ventilation, and air-conditioning (HVAC); installation of a new roof on the addition; replacement of a cantilever deck; filling in a well; adding a closet to the living room; plumbing for a washer and dryer; and construction of a screened porch.[2]

Without consulting the Mozeiks, Seramone retained Trubuilt, a Maryland corporation headquartered in Rising Sun, Maryland, to complete parts of the renovation. The Mozeiks claim Trubuilt acted as an undisclosed agent of Seramone at all times. Trubuilt's headquarters in Maryland is approximately 39 miles from Wilmington.

Seramone assured the Mozeiks that at least one bathroom would be usable in June 2014. The Mozeiks claim that after almost ten weeks, there was little or no progress completed on the renovation.[3] In early July, the bathroom was not completed, and the Mozeiks denied Seramone additional time to complete the renovations.[4]

As a result of Seramone and Trubuilt's work, the Mozeiks claim they incurred at least six building violations from Cecil County's Department of Permits and Inspections.[5] They claim it cost approximately $100, 000 to fix the Defendants' work.[6] The Mozeiks also allege Seramone and Trubuilt forged their signatures on an application for a building permit, which is currently under investigation by the Maryland Home Improvement Commission, the Maryland Department of Labor Licensing and Regulation, and the Maryland Attorney General.[7] They have brought claims for Breach of Contract, Breach of the Implied Warranty of Good Quality and Worksmanship, and Negligent Construction against Seramone and Trubuilt.

III. Standard of Review

Unless a defendant can demonstrate a significant burden, a plaintiff's choice of forum "should rarely be disturbed."[8] A motion to dismiss based on forum non conveniens is "addressed to the trial court's sound discretion."[9] This Court's discretion is guided by the now-familiar Cryo-Maid factors:

(1) the relative ease of access to proof; (2) the availability of compulsory process for witnesses; (3) the possibility of the view of the premises; (4) whether the controversy is dependent upon the application of Delaware law which the courts of the State more properly should decide than those of another jurisdiction; (5) the pendency or non-pendency of a similar action or actions in another jurisdiction; and (6) ...

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