THE CREST CONDOMINIUM ASSOCIATION, on its own behalf and on behalf of multiple unit owners and JUDITH S. JEFFCOTT, individually, Plaintiffs
ROYAL PLUS, INC., a Maryland Corporation, K.B. COLDIRON, INC., a Delaware Corporation, SHORE MASONRY, INC., a Delaware Corporation, and GEORGE W. PLUMMER & SONS, INC., a Delaware Corporation, Defendants.
Submitted: September 19, 2017
Defendants' Motions for Summary Judgment. Deferred.
William J. Rhodunda, Jr., Esq. and Nicholas G. Kondraschow,
Esq., Rhodunda &Williams, Attorneys for Plaintiff
Nichols H. Rodriguez, Esq. and Dianna E. Louder, Esq,
Schmittinger & Rodriguez, P.A., Attorneys for Defendant
Royal Plus, Inc.
A. Adams III, Esq., Chrissinger & Baumberger, Attorney
for Defendant K.B. Coldiron, Inc.
P. Leff, Esq., Casarino Christman Shalk Ranson & Doss,
P.A., Attorney for Defendant Shore Masonry, Inc.
S. Naylor, Esq, Swartz Campbell, LLC, Attorney for Defendant
George W. Plummer & Sons, Inc.
matter is presently before the Court on the motions of the
Defendants, K.B. Coldiron, Inc. and Royal Plus, Inc.
(collectively "Defendants"), for summary
judgment. The legal arguments presented in the two
Motions are nearly identical, so the Court refer to the
Motions collectively as "the Motions" and will
address them jointly. The Plaintiffs, The Crest Condominium
Association and Judith S. Jeffcott (collectively
"Plaintiffs"), oppose the Motions. For the
foregoing reasons, Defendants' Motions for Summary
Judgment are DEFERRED.
summer of 2010, The Crest Condominiums located on Virginia
Avenue, Rehoboth Beach, Delaware ("The Crest") was
damaged by fire. As a result, three of the 15 balconies at
The Crest were damaged. The Crest Condominium Association
("Association") contracted with Defendant Royal
Plus, Inc. ("Royal Plus") for the company to
oversee, supervise, and/or direct the repairs of the fire
damage, including the three balconies. Soon after the
contract was entered into, the Association learned that all
of the 15 balconies had structural problems unrelated to the
fire. As a result, the Association contracted with Henry Howe
("Howe") of MAD Engineering, Inc. ("MAD")
to design and prepare a plan to repair the structural issues
with the balconies. Royal Plus separately undertook to
oversee, supervise, and/or direct the reconstruction of the
balconies in accordance with the MAD plan.
Coldiron, Inc. ("Coldiron") and Shore Masonry, Inc.
("Shore") were subcontractors for both the fire
remediation and balcony reconstruction projects. Work was
performed to complete both projects. On January 16, 2012,
Howe visited the work site and determined that the fascia had
not been properly installed in accordance with the MAD
specifications. On the same date, Howe sent a letter to Sam
Mabry ("Mabry") the President of the Association
informing him of the findings. In response, Mabry sent a
letter to Coldiron about Howe's findings on January 20,
2012. Howe's January 16 letter was attached to the letter
to Coldiron. On February 24, 2012, Mabry sent a follow up
letter to Coldiron stating that the company had not produced
a product that met the satisfaction of the Association. This
letter also stated that Plaintiffs and Coldiron had not been
able to come to an accommodation.
March 22, 2012, a representative from Coldiron, Howe, Mabry,
and Judy Jeffcott ("Jeffcott"), the Treasurer of
the Association and one of the Plaintiffs, met to discuss the
situation. Coldiron acknowledged that the fascia had not been
installed in accordance with the MAD plan and agreed to fix
the problem. On March 29, 2012, Mabry sent a third letter to
Coldiron expressing the belief that the company did not
adhere to the original terms of the contract. Subsequently, a
Coldiron work crew was sent out to work on the balconies.
When the job was completed on May 6, 2012, Coldiron
represented that the problem was fixed.
August 28, 2012, Plaintiffs received a letter from MAD
addressing the water infiltration problems at The Crest. The
letter stated that certain tiles on the balconies could have
caused the leaking into the lobby below.
thereafter, condo owners began to experience issues with
water intrusion and damage. On November 7, 2014, the
Association engaged Home Inspection Technologies, LLC
("Home Inspection") to investigate the problem. The
Home Inspection report was issued to the Association on
November 1, 2015. The report detailed numerous problems with
the balconies including, but not limited to, defects in
construction and repair, water intrusion, water damage, rot,
and mold. Soffits, ceilings, walls, floors, windows, and
doors had all sustained damage. To date, Plaintiffs have
spent approximately $187, 250.00 to repair the balconies.
and Royal Plus both argue that summary judgment is
appropriate at this time. Defendants point out that the
statute of limitations for claims alleging property damage is
three years. Under 10 Del. C. § 8106, the
cause of action accrues "at the time of the wrongful
act, even if the plaintiff is ignorant of the cause of
action." Therefore, according to Defendants, the
statute of limitations began to run, at the latest, on August
28, 2012. On that date, Plaintiffs received a letter from MAD
stating that the water infiltration problems seen at The
Crest may be caused by faulty tile placement on the
balconies. The Complaint was filed on October 27, 2016, more
than four years after the date given by Defendants as the
latest possible time the cause of action accrued. Thus, the
Complaint was filed far too long after the expiration of the
Plus also claims that the Complaint fails to state a claim
upon which relief can be granted. The Association initially
engaged Royal Plus to supervise the fire remediation project,
which did not include the balconies. After further
investigation, the Association discovered additional issues
pertaining to the balconies and requested an estimate to
expand the scope of the existing project to include the
balconies. The Association felt that the estimated price was
too high and chose to act as its own general contractor with
regard to the balcony repair project. However, the
Association did request that a Royal Plus supervisor unlock
the door to The Crest to allow workers to access the
building. No contract regarding the repair of the balconies
existed between the Association and Royal Plus. Thus,
according to Royal Plus, Plaintiffs have not stated a claim
upon which relief can be granted.
Plaintiffs claim that there are genuine issues of material
fact regarding when the statute of limitations began to run
on Plaintiffs' claims and whether the doctrines of
inherently unknowable injuries and fraudulent concealment
apply to toll the limitations period. Application of either
of these doctrines would toll the statute of limitations. If
the limitations period is tolled, it will not begin to run