IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
)
KATHRYN LEEP, )
)
Appellant/Plaintiff, )
)
V. ) C.A. No. CPU4-16-003910
)
CLIFF WERLINE, )
)
Appellee /Defendant. )
Subrnitted: Novernber 8, 2017
Decided: january 3, 2018
Olga K. Beskrone, Esquire Brian T. Murray, Esquire
Community Legal Aid Society, Inc. Brian T. Murray, P.A.
100 W. 10th Street, Ste. 801 903 S. College Avenue
Wilmington, DE 19801 Newark, DE 19713
Al¢om@/jbrAppe//ant Al¢omgj/j@rAppe//ee
DECISION AFTER TRIAL
sMALLS, c.J.
This is an appeal from the Justice of the Peace Court concerning the purchase of real
estate. On December 21, 2016, the Plaintiff-below/Appellant, Kathryn Leep (“Appellant”),
filed an appeal from a judgment below awarded in favor of the Defendant-below/Appellee,
Cliff Werline (“Appellee”). On October 5, 2017, trial was convened in the Court of Common
Pleas and the Court reserved its decision. The Court heard testimony from Appellant; Hugh
Lindo, a Building Inspector with the License and lnspection Departrnent of the City of
Wilmington;]esse Walker, owner ofJ.R. Walker Roofing; and Appe]lee. In lieu of oral closing
arguments, the Court ordered written post-trial memoranda Supplemental briefing was
completed on November 8, 2017. This is the Court’s final decision after consideration of the
pleadings, oral and documentary evidence submitted at trial, arguments made at trial, post-trial
submissions, and the applicable law.
PROCEDURAL POSTURE
On December 21, 2016, Appellant filed her Notice of Appeal and Complaint on
Appeal in this Court as a pro fe litigant Appellant asserted that she purchased 224 W. 20th
Street, Wilmington, Delaware 19802 (the “Property”) from Appellee in August 2013.
Appellant further asserted that Appellee indicated in the Seller’s Disclosure of Real Property
Condition Report (“Seller’s Disclosure”) that a “new roof had been installed in about 2010.”1
Appellant argued that this indication was factually inaccurate, as “there were 5 layers of roofing
and no new roof had been installed.’72 Plaintiff sought judgment for the cost of the new roof
and partial payment to replace the wooden structural supports underneath the roof.
1 Appellant’s Cornplaint on Appeal 11 4.
2 566 z`d. 11 5.
On January 6, 2017, Brian T. Murray, Esquire entered his appearance on behalf of
Appellee, and filed an Answer on January 27, 2017. ln his Answer, Appellee denies the
substance of Appellant’s Complaint. Appellee disagreed with Appellant’s assertion that “no
new roof had been installed.”3 Alternatively, Appellee stated that he did not know how many
layers of roof were on the Property, but it was irrelevant because Appellant purchased the
Property “As ls.”4
On February 3, 2017, Olga K. Beskrone, Esquire entered her appearance on behalf of
Appellant. On April 4, 2017, Appellant filed her Pre-trial Worksheet (“Worksheet”). ln the
Worksheet, Appellant summarized her position as: “The seller’s disclosure statement stated
that a “new roof was installed in ~ 2010.’ While another layer may have been installed in 2010,
no new roof was installed.”
On October 5, 2017, trial was held in this matter. The Court reserved its decision. ln
lieu of oral closing arguments, the Court ordered written post-trial memoranda On October
20, 2017, Appellant filed her Post-Trial Memorandum. On November 2, 2017, Appellee filed
his Post-Trial Memorandurn. On November 8, 2017, Appellant filed her Reply Mernorandum.
FACTUAL HISTORY
Based on the testimony and evidence presented at trial, the Court finds the relevant
facts to be as follows.
In August 2013, Appellant purchased 224 W. 20th Street, Wi]inington, Delaware 19802
(the “Property”) from Appellee. Appellant signed the Agreement of Sale for Delaware
3 Appellee’s Answer at 11 5.
4 See z`d.
Residential Property (“Agreement of Sale”) on ]une 28, 2013, and Appellee signed the
Agreement of Sale on June 29, 2013.5 In accordance with Delaware law, the Agreement of
Sale incorporated the Seller’s Disclosure of Real Property Condition Report (“Seller’s
Disclosure”), which both parties had signed.6 ln the Seller’s Disclosure, Appellee stated that
he purchased the Property in September 2012.7 Appellee also stated that he had “never lived”
at the Property, as he testified at trial that he purchased the Property at a Sheriff Sale.8
Relevant to this proceeding, Appellee indicated in Question #28, under the section
titled “IV. MISCELLANEOUS,” that there were no “violations of local, state or federal laws
or regulations relating to this property.”9 For Question #63, under the section titled “Vll.
STRUCTURAL ITEMS,” Appellee indicated that water leakage had occurred in the house in
the “past.”10 Under Question #65 (“Have there been any repairs or other attempts to control
the cause or effect of problems described in questions 63 and 64? If Yes, describe in XVI”),
Appellee checked “Yes.”11 Under the section titled “X. ROOF,” Appellee answered Question
#76 (“Date last roof surface installed”) by handwriting the phrase “estimated 2010.”12
ln response to Question #77 (“How many layers of roof material are there (e.g. new
shingles over old shingles)?”), Appellee wrote “U” for “Unknown.”13 Under the last section,
titled “XVI. ADDITIONAL INFORMATION,” Appellee wrote “There was a previous roof
5 ]oint Exhibit 2.
Gjoint Exhibit 5.
7 566 2d
8 566 z`d.
9 5 66 z'd.
10 566 z`a'.
11 566 Zd.
12 5 66 z'd.
13 566 z`d. Appellee testified at trial that he would check “No” if he “did not know,” and would indicate
“Unknown” if he “absolutely did not know something.”
4
leak, and then a new roof was installed in ~ 2010.”14 He wrote “63 & 65” next to this response,
indicating that his statement was an elaboration on Questions #63 and #65.15 Appellee
testified that his answers to the above questions were based on a brief discussion with the
previous owner of the Property.
After purchasing the Property at a Sheriff Sale, Appellee noticed evidence of water
damage in the interior of the Property below a section of the flat roof. He proceeded to climb
onto the roof and testified that the roof looked new. Despite having recently engaged in
litigation to evict the previous owner from the Property, Appellee asked him about the water
damage and whether there was a new roof on the property.16 The previous owner informed
Appellee that a new roof had been placed on the Property. Appellee described his occupation
as an owner and manager of rental properties who has also been involved in the business of
“fiipping houses” for the past seven years. He testified that he has purchased approximately
twenty-four properties from Sheriff Sales over those past seven years. Even with Appellee’s
extensive knowledge and experience regarding the sale of residential real estate_specifically
those sold at Sheriff Sales_Appellee did not verify that a permit had been issued for the “new
roof.”17
Appellant expressly relied on the Seller’s Disclosure to determine whether she should
purchase the Property, as well as the appropriate value of the Property. She was also
influenced by other sensory factors, including the Property’s location, backyard, and the
14 566 z'd.
15 566 z`d.
16 Appellee testified that the litigation involved the previous owner’s Delaware Supreme Court appeal.
17 Appellee testified that he was aware of the permit process and had, in fact, obtained permits for repairs on
previous occasions.
“general state” of the Property. She was particularly concerned about the state of the roof
since she did not possess sufficient funds to purchase the Property and replace the roof, or
generally afford extensive repairs on the Property.
During the process of purchasing the Property, Appellant hired a Housing lnspector
(“lnspector”) to investigate the Property. Regarding the roof, the lnspector informed
Appellant that there appeared to be a new “surface” on the flat roof, but he was unable to
determine how many layers were underneath the surface because there was a seal around the
roofs edges. The Inspector issued a report (the “Report”) on his findings The Report
included boilerplate language which recommended that Appellant contact a licensed roofing
company to review the Property’s roof and issue a certificate. Relying on the Seller’s
Disclosure and the lnspector’s visual observations, Appellant did not acquire a roof
certification
Appellant ultimately purchased the Property for 3113,900, which included a $3,000
buyer’s credit.18 After purchasing the Property, Appellant became aware that a large hole
existed in the Property’s mansard roof which needed to be replaced.19 Because the hole in the
mansard roof had not been discovered before Appellant purchased the Property, she asked
Jesse Walker (“Walker) from ].R. Walker Roofing, who was subcontracted to repair the
mansard roof, to also inspect the flat roof.20 After an employee cut into the flat roof down to
18 ]oint Exhibit 2.
19 Appellant understood that the statement “new roof” in the Seller’s Disclosure was not referring to the
mansard roof, but the “flat roof.” Appellant testified regarding the difference between the two roof types and
submitted a l\/Iortgage Survey Plan for the Property that diagramed the different roof sections. Appellant’s
Exhibit 2.
211 Jesse Walker testified that he has worked in the roofing business for approximately twenty-five years. He
also testified that he has owned and solicited business as J.R. Walker Roofing for the past seven years. He
6
the wood deck, Walker was presented with a “core sample” from the roof. The sample
evidenced that the Property’s flat roof contained five layers of roofing material, violating the
City of Wilmington Code.21
Based on Walker’s findings, Appellant was concerned about future interior damage and
approached three different roofing companies for financial estimates to replace the flat roof.
J.R. \X/alker Roofing was one of those roofing companies and submitted an estimate of 351 1,100
to replace the flat roof.22 Appellant hired ].R. Walker Roofing because its bid was the lowest,
and she was impressed with Walker’s repair of the mansard roof. After ].R. Walker Roofing
began the repairs, it became apparent that wooden structural supports under the flat roof
needed to be replaced because of extensive rotting. Appellant paid ].R. Walker Roofing
$15,400 to replace the flat roof: $11,100 originally quoted for labor and materials to replace
the flat roof, $500 in additional materials for the flat roof replacement, and $3,800 for labor
and materials to replace the rotting structural supports.23
PARTIES’ CONTENTIONS
ln Appellant’s Post-Trial Memorandum, and at trial, Appellant asserts that the language
of the contract is not ambiguous.24 She argues that Appellee’s statement that a “new roof was
installed in ~ 2010” violates 6 De/. C. § 2752, which requires a seller of residential real property
further testified that he is certified by three different roofing manufactures He estimates having performed
“thousands” of roof replacements during his tenure as a roofer.
21 Hugh Lindo, a Building Inspector who has been employed with the License and lnspection Department of
the City of \X/ilmington for thirteen years, testified that the flat roof violated the City of \X/ilmington Code
(“Code”). He testified that the Code only allows two layers of roofing material, presuming that the allowance
was based on weight concerns. To properly replace a roof, he testified that the individual should obtain a
building permit, have the property inspected, remove every roofing layer above the wood, apply a new layer,
and request a final inspection.
22 Joint Exhibit 4.
23 joint Exhibit 1.
24 Appellant’s Post-Trial Memorandum at 3.
to disclose all known material defects of that property.25 She states that Appellee should have
qualified his statement with facts evidencing that he did not have first-hand knowledge of the
installation of the roof.26
She also notes that Appellee should have at least contacted the City of Wilrnington to
review the permit that is required for the installation of a new roof instead of relying on one
statement from the prior owner of the Property.27 Essentially, Appellant asserts that Appellee
had an affirmative duty to investigate the prior owner’s assertion before filling out the Seller’s
Disclosure. At the very least, Appellant argues that Appellee’s statement regarding a new roof
was misleading (i.e. a “material misrepresentation of fact”) since the “new roof’7 was simply a
layer added to four pre-existing layers.28 She notes that the “plain meaning” of roof_“one
layer of roofing material”_should be adopted when interpreting the Seller’s Disclosure.29
Alternatively, if this Court were to deem the contact ambiguous then Appellant argues
it should be interpreted against Appellee as the drafter.30 Relying on the Delaware Uniform
Commercial Code, Appellant argues that Appellee failed to complete the Seller’s Disclosure
in “good faith.”31 That is, without “honesty in fact” or “observance of reasonable commercial
standards of fair dealing.”32
25 6 D6/. C. § 2572 (“seller transferring residential real property shall disclose, in writing, to the buyer, agent and
subagent, as applicable, all material defects of that property that are known at the time the property is offered
for sale or that are known prior to the time of final settlement”).
26 Appellant’s Post-Trial Memorandum at 4.
27 566 2'6¢1.
28 566 z'd. at 2 n.3.
29 566 z'a'. at 5.
30 566 z'd. at 5-6.
31 566 2d
32 566 z`d. (internal quotation marks omitted) (quoting 6 De/. C. § 1-201(20)).
8
ln Appellee’s Post-Trial Memorandum, Appellee asserts that the issue before the Court
should be bifurcated.33 He argues that the first question is whether 6 De/. C. § 2572 was
violated, and the second question is whether “Appell[ee] failed to disclose a known material
defect [and] Appell[ant] reasonably rel[ied] upon that failure.”34 Relevant to the issue here,
Appellee argues that his new roof notation in section XVI cannot be read in a vacuum.35 He
notes that his answers to Questions #76 and #77 under section X, regarding “roof surface”
installation, should be considered a notification to Appellant that his statement “new roof”
was not referring to a completely new roof, but a “new roof surface.”36
Appellee also takes issue with the implication that he had a duty to investigate the prior
owner’s claims about the roof.37 Based on the Housing lnspector “recommend[ing]” that
Appellant receive a roof certification from a local roofing company, Appellee believes
Appellant had an equal, if not greater, duty to investigate38 Based on Appellant’s own
investigative duty, Appellee believes he is not at fault for relying on the prior owner’s statement
and his own visual observations that the top layer was “new.”39 Like-wise, Appellee notes that
even Appellant’s own roofing contractor, Walker, could not determine how many roofing
layers were on the Property without dissecting the roof`.40
33 Appellee’s Post-Trial Memorandum at 1.
34 566 z`d. Similar to Appellee’s arguments at trial, Appellee is conflating a violation of § 2572 with a claim of
fraud. The Court will distinguish this conflation z`nfm.
35 566 z`d. at 2. Appellee also argues that the testimony evidences that the “new roof” was installed in
approximately 2010; however, this issue is not in contention. Appellant is not arguing that the timeframe of
installation is incorrect, but that the term “new roof” is misleading, as the underlying layers had not been
removed.
36 566 z'd.
37 566 z'd. at 1-2.
38 566 z`d.
39 566 z'd. at 2.
411 566 z`d. at 2.
Finally, Appellee argues that any claim of fraudulent inducement is moot because
Appellant failed to plead fraud in her Complaint.41 However, even if she had, Appellee argues
she failed to establish that the roof s condition was a “material inducement.”42
STANDARD OF REVIEW
As trier of fact, the Court is the sole judge of the credibility of each fact witness and
any other documents submitted to the Court for consideration.43 If the Court finds that the
evidence presented at trial conflicts, then it is the Court's duty to reconcile these conflicts_if
reasonably possible_in order to find congruity.44 If the Court is unable to harmonize the
confiicting testimony, then the Court must determine which portions of the testimony deserve
more weight in its final judgment.45 ln ruling, the Court may consider the witnesses’
demeanor, the fairness and descriptiveness of their testimony, their ability to personally
witness or know the facts about which they testify, and any biases or interests they may have
concerning the nature of the case.46
In civil actions, the burden of proof is by a preponderance of the evidence.47 “The
side on which the greater weight of the evidence is found is the side on which the
preponderance of the evidence exists.”48
41 566 z`d.
42 566 id.
43 566 Naf’/ Gmn