IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
RYAN and MARISA ALTENBAUCH,
: C.A. No. N19C-11-046 WLW
Plaintiffs, :
BENCHMARK BUILDERS, INC. and
DELAWARE ROOFING & SIDING
COMPANY, LLC,
Defendants.
Submitted: March 9, 2021
Decided: March 26, 2021
ORDER
Defendant Benchmark Builders, Inc.’s Motion
for Summary Judgment.
Granted.
Blake A. Bennett, Esquire and Deal R. Roland, Esquire of Cooch and Taylor, P.A.,
Wilmington, Delaware; attorneys for Plaintiffs.
Daniel F. McAllister, Esquire of Tarabicos Grosso, LLP, New Castle, Delaware;
attorney for Defendant Benchmark Builders, Inc.
Kiadii S. Harmon, Esquire of McGivney Kluger Clark & Intoccia, P.C.,
Wilmington, Delaware; attorney for Defendant Delaware Roofing & Siding
Company, LLC.
WITHAM, R.J.
Altenbaugh v. Benchmark Builders, Inc., et al.
C.A. No. N19C-11-046 WLW
March 26, 2021
This matter before the Court is a continuation of Defendant Benchmark
Builders Inc.’s' (hereafter “Benchmark”) Motion for Summary Judgment against
Plaintiffs’, Ryan and Marisa Altenbaugh (hereafter “Altenbaugh”), negligence
complaint. Benchmark argues that the complaint is time barred pursuant to 10 Del.
C. § 8106. After considering the Motion, Altenbaugh’s response, and the record of
this case, this Court GRANTS the Motion for the following reasons.
Factual and Procedural History
1. Altenbaugh filed a complaint on November 6, 2019, seeking recovery for
the damages to their house located at 835 Colorado Drive, Newark, Delaware
(hereafter “the property”). The basis for the complaint was one count of negligent
construction of Altenbaugh’s house which was purchased on March 31, 2008. The
defects were allegedly discovered sometime during August 2019.
2. On December 2, 2019, Benchmark filed a Motion to Dismiss or in the
Alternative for Summary Judgment on Superior Court Civil Rule 12(b)(1) and
12(b)(6) grounds.* Benchmark based its motion on the complaint being time
barred and on the grounds that the contract signed by Altenbaugh provided a
Limited Warranty mandating arbitration in case of disputes.
3. Attached to Benchmark’s Motion to Dismiss was a letter from
Altenbaugh to Benchmark, which Benchmark presented to show that Altenbaugh
was knowledgeable of the defective construction alleged in the complaint but
' Counsel for Delaware Roofing & Siding sent a letter to this Court requesting that the decision
on this matter be applied to them; however, Delaware Roofing & Siding has not filed a motion to
join the summary judgment. It would be the better practice for counsel to actually file a motion
to join with Benchmark.
? Def.’s Motion to Dismiss at 917.
Altenbaugh v. Benchmark Builders, Inc., et al.
C.A. No. N19C-11-046 WLW
March 26, 2021
failed to act within the statutory period to bring a claim. The letter was not
considered for the purposes of the Rule 12(b)(6) motion because “Delaware courts
generally do not consider documents outside the pleadings under rule 12(b)(6).”?
Instead, the Court allowed for further discovery along with additional memoranda
and converted the Motion to Dismiss into a Motion for Summary Judgment so that
the parties could “determine when the particular damage asserted was revealed and
whether [Altenbaugh] was blamelessly unaware of this damage.”* The parties
were given 60 days to submit additional pleadings for the Court’s consideration.°
4. Thereafter, Benchmark issued a series of interrogatories to Altenbaugh.
Altenbaugh’s answers to those interrogatories indicate that Altenbaugh knew of the
construction defect in January 2011.° On July 16, 2020, Altenbaugh was deposed
by Benchmark, and during this deposition Altenbaugh was questioned about when
he knew of any of the alleged construction defects to the property.’ Shortly after
the deposition, both parties submitted supplemental responses opposing the Motion
for Summary Judgment and supporting the Motion, respectively. Altenbaugh’s
supplemental response was filed with this Court on July 24, 2020, and Benchmark
filed its supplemental response on July 27, 2020.
Parties’ Contentions
5. Benchmark argues that Altenbaugh is barred from bringing the complaint
against it because the statutory limit has passed, and even when viewing the facts
* Altenbaugh v. Benchmark Builders, Inc., et. al., C.A. No. 19C-11-046, at 4 9 (Del. Super. May
27, 2020).
“Td. at J 11.
> Id.
° Def.’s Ex. A at Interrogatories 5 and 6.
7 Def.’s Ex. B.
Altenbaugh v. Benchmark Builders, Inc., et al.
C.A. No. N19C-11-046 WLW
March 26, 2021
in Altenbaugh’s favor, the “time of discovery rule” does not apply to him because
Altenbaugh was on notice of the injury based on acknowledgements made in 2011.
Altenbaugh counters that his knowledge in 2011 was limited as to the extent of the
injury and to what extent such defects had damaged the property. Altenbaugh
further argues that the statutory limit should be tolled to the date that he discovered
the “systemic water intrusion” which is sometime in August 2019.
Standard of Review
6. Summary Judgement should be granted only if the record shows that
there is no genuine issue as to any material fact, and the moving party is entitled to
judgment as a matter of law.® The facts must be viewed in the light most favorable
to the non-moving party, and all reasonable inferences must be drawn in favor of
the non-moving party.? Summary Judgment may not be granted if the record
indicates that a material fact is in dispute, or if it seems desirable to inquire more
thoroughly into the facts in order to clarify the application of the law to the
circumstances...The movant bears the burden of demonstrating that a genuine
issue of material fact does not exist.!?
7. Title 10 of the Delaware Code, section 8106, places the time limit for
filing a negligence claim at three (3) years from the accruing of the cause of
action.'! “A cause of action ‘accrues’ at the time of the alleged wrongful act, even
8 Balzereit v. Hocker 's Super Thrift, Inc., 2012 WL 3550495 at *1 (Del. Super. July 24, 2012)
(Citations omitted).
° Id.
0 Id,
'' Washington House Condominium Association of Unit Owners y. Daystar Sills, Inc., 2017 WL
3412079 at *17 (Del. Super. Aug. 8, 2017), citing 10 Del. C. § 8106.
4
Altenbaugh v. Benchmark Builders, Inc., et al.
C.A. No. NI9C-11-046 WLW
March 26, 2021
if the plaintiff is ignorant of the cause of action.”!? The limitation period may be
tolled if the plaintiff is blamelessly ignorant of an inherently unknowable cause of
3
action.'? The party claiming that tolling applies has the burden of showing that
there were “no observable or objective factors to alert them of the injury and that
they were blamelessly ignorant.”!4
Discussion
8. The underlying issue in this case is when Altenbaugh can be said to have
had knowledge of the water intrusion forming the basis for the Complaint.
Benchmark argues that Altenbaugh had knowledge of the injury in 2011; however,
Altenbaugh argues that his knowledge in 2011 was ignorant of the extent to which
the property was being damaged. In Altenbaugh’s Complaint—and as pointed out
by Benchmark in its Motion—the term used to describe the injury suffered is
915
“construction defect.”'? When bringing claims based on “negligence related to the
purchase of a home, the statute of limitations begins to run on the date of the
*I6 Tf the injured party can show “that there were no
settlement or closing.
observable or objective factors” indicating some defect that directly results in the
injury, then the plaintiff is said to be blamelessly ignorant of those defects and the
statutory limitation period begins to run from that moment.!’
2 Id.
3 Lee v, Linmere Homes, Inc., 2008 WL 4444552 at *3 (Del. Super. Oct. 1, 2008).
4 Id.
'S Def.’s Supplement for Motion for Summary Judgment, Trans. I.D. 65800785 at n. 1. In
Benchmark’s footnote, the places in Altenbaugh’s complaint where the phrase “construction
defect” is used to describe the injury are noted.
'6 Linmere Homes, Inc., 2008 WL 4444552 at *3.
"7 Id.
5
Altenbaugh v. Benchmark Builders, Inc., et al.
C.A. No. N19C-11-046 WLW
March 26, 2021
9. Here, Benchmark has shown that Altenbaugh was on notice of such
defects because Altenbaugh pointed them out in a letter to Benchmark dated
January 17, 2011, as well as notated them in “punch lists”!® dated January and
March 2009.'? In the January 17, 2011, letter, Altenbaugh described the discovery
of a “significant [amount of] water” in the basement of the property.”° Prior to the
2011 letter, Altenbaugh explicitly states that “[t]he middle of the kitchen windows
leaks (sic) when it rains.”*' Altenbaugh’s characterization of these two admissions
of knowledge as mere “limited leaks” does not correspond with the language used
in Altenbaugh’s complaint or in the January 2011 letter.
10. In the Complaint, Altenbaugh states that, after a structural report
supplied by another vendor, he became aware of “systemic and catastrophic water
intrusion” causing the injury that is attributed to Benchmark.” In the 2011 letter,
Altenbaugh’s use of “significant water on the inside of the walls” is comparable to
his use of “systemic and catastrophic water intrusion,” particularly when the 2011
letter describes the area affected by the water intrusion as “about 15 feet horizontal
and 4 feet vertical.”2 This is also evidenced by Altenbaugh’s responses to
Benchmark’s interrogatories where Altenbaugh stated “Plaintiff became aware of
'8 A “punch list” is a list of “minor defects” that the builder will correct as the “last event to occur
in a normal construction job.” See Gibbons v. Whalen, 2009 WL 3014325 at *5 (Del. Com. PI.
Sept. 21, 2009).
Def.’s Supplement for Motion for Summary Judgment, Trans. I.D. 65800785, Ex. D. See also,
Def.’s Motion to Dismiss, Trans. I.D. 64478081, Ex. A.
0 Def.’s Motion to Dismiss, Trans. I.D. 64478081, Ex. A.
*! Def.’s Supplement for Motion for Summary Judgment, Trans. I.D. 65800785, Ex. D.
22 Pl.’s Compl. at § 6.
3 Def.’s Motion to Dismiss, Trans. I.D. 64478081, Ex. A.
6
Altenbaugh v. Benchmark Builders, Inc., et al.
C.A. No. N19C-11-046 WLW
March 26, 2021
limited water intrusion on one portion of their basement wall in January 2011.”4
Altenbaugh’s use of “limited water intrusion” does nothing to diminish the fact that
there was knowledge of the water intrusion which was described as “significant”
when Altenbaugh alerted Benchmark to the problem in the 2011 letter. Benchmark
characterizes Altenbaugh’s attempts “to keep their claim alive” as “hardly subtle”
and, in that, the Court agrees.”> The adjectives used to characterize the injury is of
no consequence when determining when a plaintiff has discovered the cause of
action.*°
11. Finally, Altenbaugh argues that the notifications of “limited leaks
identified in a punch-list [do] not put a homeowner on notice of latent systemic
”27 Altenbaugh relies on Washington House to
issues with a property’s veneer.
make this assertion, but, as is rightly pointed out by Benchmark, the issue in
Washington House was not the individual homeowners’ knowledge of latent issues,
but rather, the knowledge of “the entity that was party to the litigation, which at the
time of the prior complaints [from unit owners] was controlled by the very party
asserting the statute of limitations defense.”?® As Benchmark explained, “it makes
perfect sense that the Washington House court (sic) held that the builder’s
assurances that the problems would be addressed tolled the statute of limitations—
4 Def.’s Supplement for Motion for Summary Judgment, Trans. I.D. 65800785, Ex. A.
5 Id. at | 8; see also /d. at n 1.
*6 Washington House Condominium Association of Unit Owners v. Daystar Sills, Inc., 2017 WL
341079 at *18 (Del. Super. Aug. 8, 2017).
27 Pl.’s Supplemental Response, Trans. I.D. 65793901, at J 16.
*8 Def.’s Supplement for Motion for Summary Judgment, Trans. I.D. 65800785, at § 11. See also,
Washington House Condominium Association of Unit Owners y. Daystar Sills, Inc., 2017 WL
341079 at *18 (Del. Super. Aug. 8, 2017).
7
Altenbaugh v. Benchmark Builders, Inc., et al.
C.A. No. N19C-11-046 WLW
March 26, 2021
the builder was acting as both builder and sole member of the condo association
itself.”??
Conclusion
12. Altenbaugh has presented nothing to this Court to lead to any other
conclusion that Altenbaugh possessed the requisite knowledge that there was an
injury that served as the basis of the complaint and that Altenbaugh possessed that
knowledge at least in 2011 when the 2011 letter was sent to Benchmark
complaining of “significant water” in the basement of the property. Furthermore,
this Court agrees with Benchmark’s distinguishing of the cases cited by
Altenbaugh and the facts in this case. Altenbaugh knew of water intrusions into
the property and failed to lodge the complaint now alleged within three (3) years of
becoming aware.
WHEREFORE, for the reasons stated above, this Court GRANTS
Defendant Benchmark Builders, Inc.’s Motion for Summary Judgement.
IT IS SO ORDERED.
/s/ William L. Witham, Jr.
Resident Judge
WLW/dmh
9 Id.