Jennifer August, Pro Se Plaintiff.
Scott Thompson, Esq., Attorney for Defendants.
RICHARD F. STOKES, JUDGE.
the Court is Hernandez Contractor LLC ("Hernandez
Contractor") and Jose Manuel Hernandez's
("Hernandez") (collectively, the
"Defendants") Motion for Partial Dismissal of
Plaintiff Jennifer August's ("Plaintiff) Complaint.
Plaintiff has also filed a motion to amend the complaint.
reasons that follow, Defendants' motion is denied.
Plaintiffs motion to amend is also denied.
FACTUAL AND PROCEDURAL HISTORY
action arises out of a contract entered into between
Plaintiff and Defendants on or about November 11, 2016.
Plaintiff contracted with Defendants to replace a roof,
install a skylight, and re-flash five skylights at her
residence. The contract provided how the work would be
performed. In addition, Plaintiff claims Hernandez agreed to
be on the jobsite throughout the job. Plaintiff chose
Defendants because Hernandez claimed to have had a GAF
certificationcredential that would allow Plaintiff to
receive a lifetime warranty. Plaintiff later learned that
Hernandez did not actually have the credentials.
work began on November 14, 2016. Plaintiff realized that the
work being completed was not being completed as specified in
the contract. Furthermore, the work was not being completed
by Hernandez himself; rather, it was being completed by
workers designated by Hernandez. Plaintiff brought the
inconsistencies to the workers' attention, however, the
work continued to be completed contrary to the terms in the
contract. Plaintiff attempted to contact Hernandez during
this time but was unable to get a response. On November 16,
2016, Hernandez issued an invoice to Plaintiff for the roof
installation. Plaintiff has not paid the invoice.
November 19, 2016, Plaintiff hired a separate contractor.
That contractor discovered that the skylight was installed
into a rotten wood frame. Plaintiff also claims that,
beginning in February, 2017, building inspectors and GAF
roofing companies discovered that the roof was concaved.
Plaintiff alleges that Defendants' acts and omissions
have devalued her home. She further claims that a current
valuation to fulfill the terms of the contract would cost
$24, 635, exclusive of a warranty.
now seeks relief in this Court. Plaintiff filed her complaint
on October 21, 2019 alleging (1) breach of contract, (2)
negligence, (3) breach of express and implied warranty, and
(4) fraud, misrepresentation, deception, false pretense,
false promise, inducement and concealment against the
Defendants. Defendants have moved to dismiss Count II for
negligence and Count III for breach of express and implied
warranty. Defendants have also moved to dismiss Hernandez
from the suit.
Defendants' Motion to Dismiss
pursuant to Superior Court Civil Rule 12(b)(6) is appropriate
where a plaintiff would not be entitled to relief under any
conceivable set of circumstances susceptible of proof under
the complaint. The Court must view the record in a light
most favorable to the non-moving party and accept all
well-pleaded allegations as true. In considering a motion to
dismiss, all well-pleaded allegations in the complaint must
be accepted as true.
have moved to dismiss Count II - Negligence for being
time-barred. Defendants contend that 10 Del C.
§ 8107 applies and Plaintiff failed to bring her
case within the two years. Where a complaint alleges
negligent repair, the applicable statute of limitations is 10
Del C. § 8106 which provides in part:
"... [N]o action based on a promise ... and no action to
recover damages caused by an injury unaccompanied with force
or resulting indirectly from the act of the defendant shall
be brought after the expiration of 3 years from the accruing
of the cause of such action...."
alleged negligence occurred between November 14, 2016 and
November 16, 2016. Plaintiff filed the complaint October 10,
2019. Plaintiff filed this action within the statutory period
and therefore, dismissal of Count II is not warranted.
also seek dismissal of Count III - Breach of Express and
Implied Warranty. Plaintiff argues that Defendants are in
violation of 6 Del C. § 2-313. Plaintiff argues
that Defendants promised to use building methods so that
Plaintiff would be eligible for the GAF
warranty. Plaintiff asserts that Defendants failed
to perform as promised, breaching the express and implied
warranties. Defendants contend that dismissal is appropriate
because Article 2 does not apply because this is not a
transaction in goods.
2 of the Delaware Uniform Commercial Code ("DUCC")
applies to transactions in goods. To determine whether the
DUCC applies, "the Court must determine whether the
relationship of the plaintiff and defendant was that of a
buyer-seller or a buyer-service provider.""Article
2 defines a 'seller' as a person who sells or
contracts to sell goods; it dictates the warranties and
duties between parties transacting in goods but does not
govern contracts providing services or sales and
services." Here, Defendants were not selling goods
to Plaintiff. Plaintiff purchased the roofing materials and
the skylight that would be installed by Defendants. Plaintiff
contracted with Defendants to install a roof. More
specifically, the parties contracted to replace a roof,
install a skylight and re-flash other skylights at Plaintiffs
residence. This is a contract for services,
therefore, Article 2 would be inapplicable. However,
Plaintiff also alleges common law breach of express and
implied warranty of good quality and workmanship is available
in Delaware. "Where a person holds himself out
as a competent contractor to perform labor of a certain kind,
the law presumes that he possesses the requisite skill to
perform such labor in a proper manner, and implies as a part
of his contract that the work shall be done in a skillful and
workmanlike manner." In Bye, the implied
warranty attached to a contract for the addition of concrete
steps to an existing building. The court in Bye
provided that "where a person holds himself out as a
competent contractor to perform labor of a certain kind, the
law presumes that he possess the ...