Submitted: November 1, 2018
Defendant Blenheim at Augustine Creek, LLC's Motion for
Summary Judgment. Denied in part, and Granted in part.
R. Roland, Esquire, Cooch and Taylor P.A., Attorney for
Jeffrey M. Weiner, Esquire, Attorney for Defendant.
L. Scott, Jr., Judge
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. Blenheim
additionally installed new windowsills in the garage, living
room, and dining room.
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.
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.
alternative, Blenheim sates they are entitled to Summary
Judgment on the Agostinis' demand for a jury trial, and
request for punitive damages.
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
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
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." The moving party bears the initial burden
of showing that no material issues of fact are
present. 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. In considering a Motion for
Summary Judgment, the Court must view the record in a light
most favorable to the non-moving ...