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The Crest Condominium Association v. Royal Plus, Inc.

Superior Court of Delaware

December 7, 2017

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.

          Date Submitted: September 19, 2017

         Upon 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.

          Wade A. Adams III, Esq., Chrissinger & Baumberger, Attorney for Defendant K.B. Coldiron, Inc.

          Thomas P. Leff, Esq., Casarino Christman Shalk Ranson & Doss, P.A., Attorney for Defendant Shore Masonry, Inc.

          Joseph S. Naylor, Esq, Swartz Campbell, LLC, Attorney for Defendant George W. Plummer & Sons, Inc.


          STOKES, J.


         This 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.[1] 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.

         II. FACTS

         In the 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.

         K.B. 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.

         On 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.

         On 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.

         Sometime 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.


         Coldiron 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.[2] 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."[3] 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 limitations period.

         Royal 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.

         Conversely, 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 until ...

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