Denise Duncan v. JBS Construction LLC

IN TI'IE COURT OF COMMON PLEAS CIF THE STATE OF DELAWARE
IN ANID FUR SUSSEX CDUNTY
DENISE DUNCAN,
F’tain|:iff,
C.A. No. CPUG~]»§~UGO¢}GQ
]BS CONSTRUCTIC``IN’, LLC,
Defelwdant,
f
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Bubmitted February 1, 2016
Decidc~d March 31, 2016
Vc``ctc)r:'zz ]. Hnjfr:~:az;z, Et=.z¢y,, rzttt)rzzt.*_z;_&)r plaintiff
Tastz.a. M. Stc:z)r:'::::, Es¢.}., ¢:H'¢;=rzrej;_for I``J»sj"e'ncftzrzt
DECISION A.FTEI{ TRIAL
Thc C-ourt is calh:d. 11}3011 to resolve a dispute betz~‘e.en Flaintiff t'non'»ebuyet' Ms.
Denise Duncan and Dct``endzu'\t humebuildel‘ and ven.dc)r ]B§ Cunstructi¢;)n, LLC,
regarding the construction ot a new hc)me. Thc Cwurt must tiute~rrmninc whether am
express »varreunty exi.:ezted, and if 50, whether it was breachedl. T'h@ Court is also asked to
decide xx»'hothur Dcfelir.iaut l"rreacl"¢ed the iu‘r*¢pli@r.i warrautj,»' of good quality ami
worlar wnrkinaiiship. W',lieii asked by Defeiidant whether what was seen
could be attributable to the iiatiirai expansion and contraction of i=vooci, Mr. Hey’n said
no because the amount cit unevenness in the dr;vv»sall was too great, and because he did
not see any cracks in the jniiit:-;. Ht)wever, §v’ir. l``ieyn’s report iiotes lie ciid see cr;icit;s.?¥
Mr. Heyn said cracks wc)ulci be indicative uf structural prol:»leiiis if they were greater
than ``1,-"4". I'iow'evcr, he could not renieniboi' tire size of the cracks he s;avv. Mr. Wardw'eil
testified if the ceiling j»oints wifere unevcii,. cracks ivuiild be vieil.)le. Mr. Wnrciwe]l did not
Plaioiiiff"s i§:~:liil‘)its ‘?}, i(ll.
14
rornclnbcr seeing early cracks or tinevr:nness on Plaintiff’s <:eiling. Mr. Warcix»vell also
doesn't :remelnlver' Plaiiitift raising this issue prior to the Mr. Hej,frt’s report
lt tieitlier tx-'itriess recalled seeing the cracks, it is likely that a;ny cracks present
tuyer is entitled to reasonable worl'isiiig. l\.»lr. Wardwell’s inability to recall specific
dates he supervised work at Plaiiitiff's home does not convince the Court that he nies
not there supervie.ing. l"vir. Warclwell testified that both he and Defendant'ss co-oiviier
snperx¢ised the sul:>contractors, and the Court found this testiinoriy crodible. Tl*:e Court
cannot find Defenolarit breached its duty, and Plaintiff has not demonstrated Deferidant
was negligent.
Miscellaneous Daniages-
25 Defciitiazit's Ansvv'er.
17
Plaintitf teatit``icd she purchased several upgrades to her lic)me, one of whicli was
an outside spigtit. Shc alleges Detariclar\t failed to install the apigot. Plaintittf introduced
a july 23, 201l invoice shcwvirig' she tvas charged $ 125 for the spigot.?"’ Detenctaiit did
;nc:t address this coniplaint. Plaintiff’s testiii'iony, in cc)iiji.lnctiori with the invoice, seerns
credible to the Cc)uirt.
Plaiiititt is awarded $ 125 to compensate her for Defendant’$ failure ti) iiistall the
Spigt)t.
Finally, l"‘laintiff argues the warranty she purchased for her vs/ashing rriacliinc
ncaa voided nn account of the sediment in her pl\.rmhirig systein. She seeks
cninp»eitsation for this and for parts needed to n:pair tlw washing iiiacl~iiiie. Flaintii”i_``
submitted a photograph of satnd l'icr the tvasliiiig, rnachinf_-. tilter. Botli lvlr. l-lt=yn and l\»’lr.
Wardwell testified they saw sediment in Plaintiff’s plumhing. An employee of Willey
and Ctirnptany, the subcontractor that installed the well and septic at Plai.ntift"s honie,
also testified about tl'ie sediment problem.
’Defcntiant argues F’laiiitiff’s testiint)ny cannot be used to establish wvhy the
xvarra:ity was vciicleci. Tha Cc»urt agrcea; Plaiiitift’s testirnony about why the warranty
xvas voided ia inadmissible lte:arsay. 'l.``liuugh Plaintit``f was party to a coritract with
Home Dep<)t for a warranty nn her vvashing macliine,” she cannot speak fur the
conipany about the reason it allegedly canceled thc Warranty. Bec.'atiae there was no
1‘* Plaintiff's H:~»;l'\ilvit 21
" fica Ct):nicfi tgj'tlsiit Uztu:r:'s n,t‘:'ir‘¢fri.lttivuh',r ih).'z.~:i' (]un!c». v. .H'iuzp!rr, I*)‘-)."’» Wl, 8``12?€5, at fn 3 {l)vl. Fiuper_ I"``v.~l“),
lt``», 199'3}.
1" l’l'aintitf’s t``~.xltibit ``16.
" l¢f.
homeo‘»vrier'e warranty is i;vienk.V-’ Thus, the Court does not believe Piaintit``f relied on
the existence of an express \»varrantj,r to -enter into the lu)me sales agreernent. Therefore,
the Coi_n‘t iiiu:=_;t took for a separate c:onsideration, other than the purchase price of the
home
'l``estirnony is clear that Piaintiff did not pay money for any of the warranty
dt:»eunients she received at or ai*ound settlement or in Febri_xary 2012. Aroinid the time
of Settlernent, t’iaintiff tvegari working for Defendant. She ceased x-vori.surnes that
contractors in the btisiiiess ot l;)iuilding new homes iiave “the requisite skill" to perform
the work they otter and thus that "the work shall be done in a slr!r."z'i Cn¢:str., Iirc., 2009 WT. 2‘?5391, at *4 (Del. Coni. Pl. Feb. 5, 2009} {"\»'v'ork is perfornieti in
a workmmilil»;e tiiaitner if the builder ’disp»layod the degree of sl (I)el. S-Super. Apr, 30, ``1993).
1" ffnre_l; 1a Estirte .o_fi``vi_z/crs, 2015 Wl.» 4087056, at *24 (Del. Sltper, july 1, 2[]15] (citail'ions on\itted].
17 Cc)irncil of U:z;``! Uriun:rs nf'£lre¢rkrenrtc».'r Housz: (_``r»:wrzr!n. z). Siuzpl;zr, 1993 WL 31255 (Del. Sctper. '1993) q'_citatiolis
omitted).
l~*" Re:_i;).'r)l¢is z.n l?.cfi_/)zoizis, 237 A.?_ci ?US, ?'l‘l (Del. l‘§?{)i?').
".'
worl. f:``>he argues the gusset plate requirement also applies xvheri the rafters are
trained to the ridge board.
On this issue, Mr. l-le;.fri"s testinmriy is not eredible. Mr, Hej,;n did not lnerely
inisstate a rule or section :r\iirnber, but referenced standards for a type ot roofing not at
issue in this ease Furtherrnore, sirice either proposed reacting of RSUZ.B Seeins equally
plausible to the Coiirt, Plaintift has not demonstrated by a preponderance of the
exfidence that Defentiant breached the implied warranty of good quality and
i»t'orlltz through a utility cravv'l space that is at least '12 inclies.
The Ct)urt reviewed the relevant code but cannot, based solely on its read,
rieterriiine whether access panels on the wall are required in this case. Thus, given the
c¢onflictirig vvitneas testirnticiy on the issue_, credibility becomes key to the Court’s
determination. Tht)ugh it is clear Mr. Wardwell, as an ox~viiei' of ]BS Colistrl.iction, L.LC,
is not a disinterested witness, the Court found his testiinoiij,f to be fm'thriglit and vvell-
iriforniecl. Mr. Ward‘.vell consistently c¢on:=.ulteol his IRC c~;ide brook v\fliile testifying and
throughout the proceeding relied on the applicable il'ersitili cit the cc.)de.
9
Giveii l\flr, Wz-irdi‘vell’s credibility coupled with Mr, l~leyii's tires/irion czri'r)r
interpreting the lf-ZC, the Cou rt cannot find Plaintiff demonstrated by ai preponderance
of the evicle'ncc that Defeiitlant breached the implied v.'.zirra-inty of grind quality' and
workmanship regarding the access panels.
Roof deck Panels
Mr. Heyri did not see a 1/8" Separation betw.-'eeri the rc»of deck panels in Plaiiitiff’s
liorne. Hclips were not deed to achieve p»zinel Separation. Mr. Heyn testified roof deck
panels are reciuired to have ii 1/8" separation beti~veen each panel to allow for the
natural expansion and contraction of wood. Mr. l-leyn further stated that the panel
rnariufnr:ttirer prints a stamp on each panel that states r'neta| liclip use is ret}uired to
acliieve the l/‘fi” .~sepairation. Mr. Heyii did not have a pliotiigrziph of the stanip, loot s:.-i§fs
he saw it on the panels while irispecting Plaintiff’s attic. In support of his position, Mr.
l-leyn cited a TECHTII" tal;»le.?“ A footnote on that table indicates hclips can be iised as
edge support
I‘vlr. Wardm'ell agi‘ees a 1/8" separation beti.veen tiecl< if)aiiuls is required, but
testified that Defeiidaiit's roofing Sulicontrnctor complied with thin requirement by
using iiails as spaccrs. I\~"lr. Wardi~.'ell testified he supervised Defenclaiit's roofing
slibcontrzictors. l-lc speculated that the separation was not visible when Mr. Heyn.
inspected the proprirty, 1.5 years after the rr)<_)f iristallation, sirice the wood panels
expand ancl contract C)n cross, Mr. Heyn agreed that if no clips were uscd, it would be
33 Plaiiitiff’:; E: