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August v. Hernandez

Superior Court of Delaware

January 6, 2020

JENNIFER AUGUST, Plaintiff,
v.
JOSE MANUEL HERNANDEZ and HERNANDEZ CONTRACTOR, LLC, Defendants.

          Submitted: 12/6/2019

          Jennifer August, Pro Se Plaintiff.

          Eric Scott Thompson, Esq., Attorney for Defendants.

          ORDER

          RICHARD F. STOKES, JUDGE.

         I. INTRODUCTION

         Before 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.

         For the reasons that follow, Defendants' motion is denied. Plaintiffs motion to amend is also denied.

         II. FACTUAL AND PROCEDURAL HISTORY

         This 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 certification[1]credential that would allow Plaintiff to receive a lifetime warranty. Plaintiff later learned that Hernandez did not actually have the credentials.

         The 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.

         On 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.

         Plaintiff 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.

         III. DISCUSSION

         A. Defendants' Motion to Dismiss

         Dismissal 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.[2] The Court must view the record in a light most favorable to the non-moving party and accept all well-pleaded allegations as true.[3] In considering a motion to dismiss, all well-pleaded allegations in the complaint must be accepted as true.[4]

         Defendants have moved to dismiss Count II - Negligence for being time-barred. Defendants contend that 10 Del C. § 8107[5] 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...."[6]

         The 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.

         Defendants 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.[7] Plaintiff argues that Defendants promised to use building methods so that Plaintiff would be eligible for the GAF warranty.[8] 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.

         Article 2 of the Delaware Uniform Commercial Code ("DUCC") applies to transactions in goods.[9] 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."[10]"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."[11] 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.[12] More specifically, the parties contracted to replace a roof, install a skylight and re-flash other skylights at Plaintiffs residence.[13] This is a contract for services, therefore, Article 2 would be inapplicable. However, Plaintiff also alleges common law breach of express and implied warranties.

         The implied warranty of good quality and workmanship is available in Delaware.[14] "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."[15] In Bye, the implied warranty attached to a contract for the addition of concrete steps to an existing building.[16] 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 ...


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