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Agostini v. Blenheim at Augustine Creek, LLC

Superior Court of Delaware

January 7, 2019

PAUL and SHARON AGOSTINI, Plaintiffs,
v.
BLENHEIM AT AUGUSTINE CREEK, LLC, Defendant.

          Date Submitted: November 1, 2018

          On Defendant Blenheim at Augustine Creek, LLC's Motion for Summary Judgment. Denied in part, and Granted in part.

          Dean R. Roland, Esquire, Cooch and Taylor P.A., Attorney for Plaintiff.

          Jeffrey M. Weiner, Esquire, Attorney for Defendant.

          Calvin L. Scott, Jr., Judge

         Background

         On October 10, 2006, Plaintiffs Paul and Sharon Agostini entered a Sales Agreement for the purchase of a home with Defendant Blenheim at Augustine Creek, LLC. The Agostinis settled on the home on May 25, 2007. Prior to 2014 the home suffered water and moisture penetration affecting various areas of the home, including damage to the façade of the home. In early 2014, at the direction of New Castle County, Blenheim repaired or replaced the exterior plaster.[1] Blenheim additionally installed new windowsills in the garage, living room, and dining room.[2]

         In June 2014, the Agostinis' home again began to experience moisture penetration and water damage. The Agostinis claim Blenheim has not undertaken to rectify the continued issues, and therefore this action was filed on June 20, 2016. The Agostinis grounds for relief are Negligent Repair, Negligent Supervision, and Breach of Implied Warranty.

         Parties Assertions

         Defendant Blenheim filed this Motion for Summary Judgment arguing the Agostinis' expert's opinion is not based on the fundamental facts in the case, and therefore is inadmissible. Blenheim argue that Plaintiff's expert opinion is based on an incorrect factual basis because the report does not state that a security system was installed in the home, the expert was unable to locate a building permit related to the 2014 repairs, and that the expert believes certain necessary elements are missing in the repair work. Blenheim further argues their undisputed expert's testimony regarding the causation warrants Summary Judgment in their favor.

         In the alternative, Blenheim sates they are entitled to Summary Judgment on the Agostinis' demand for a jury trial, and request for punitive damages.

         The Agostinis counter that their expert is aware of the necessary fundamental facts at issue in the case. The Agostinis argue the issuance of a permit, and an inspection does not prove the repairs were conducted according to the applicable standards of care, therefore the expert's observation that no permit was issued is immaterial. The Agostinis state their expert conducted his own inspection of the home in order to reach the conclusions outlined in his report, and that the rebuttal evidence offered by Blenheim's expert does not address all of the deficiencies discovered. Additionally, the Agostinis deny that the installation of the security system was the cause of holes observed by Defendant's expert, rather they were the result of invasive testing conducted by a different home inspector in 2016.

         In regards to the waiver of a jury trial, the Agostinis argue this action is based on the 2014 repairs, and not the 2006 Sales Agreement, therefore the terms of the agreement are not applicable. In the alternative, the Agostini's argue the waiver was not sufficiently conspicuous, and therefore not enforceable.

         Standard of Review

         The Court may grant Summary Judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law."[3] The moving party bears the initial burden of showing that no material issues of fact are present.[4] Once such a showing is made, the burden shifts to the non-moving party to demonstrate that there are material issues of fact in dispute.[5] In considering a Motion for Summary Judgment, the Court must view the record in a light most favorable to the non-moving ...


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