WHARTON, J.

Upon Defendants' Joint Motion for Summary Judgment
GRANTED. OPINION AND ORDER William J. Rhodunda, Jr., Esquire and Nicholas G. Kondraschow, Esquire, Rhodunda & Williams, 1220 N. Market Street, Suite 700, Wilmington, Delaware 19801, Attorneys for Plaintiffs. Christopher H. Lee, Esquire, Cooch & Taylor, P.A., The Brandywine Building, 1000 West St., 10^th Floor, Wilmington, Delaware 19801, Attorney for Defendant, W Ventures, Inc. d/b/a Re/Max Associates. Seth A. Niederman, Esquire, Fox Rothschild, LLP, Citizens Bank Center, 919 Market St., Suite 300, Wilmington, Delaware 19801, Attorney for Defendants, Wayne Megill, Jr., Megill Homes, Inc., and Megill Homes, LLC. Robert K. Beste, Jr., Esquire, Cohen Seglias Pallas Greenhall & Furman, PC, 1007 Orange Street, Suite 1130, Nemours Building, Wilmington, Delaware 19801, Attorney for Defendants, Richard A. Fisher and Donna DeLaurentis. R. Karl Hill, Esquire, Seitz Vanogtrop & Green, PA, 222 Delaware Avenue, Suite 1500, Wilmington, Delaware 19801, Attorney for Defendant, Patterson-Schwartz and Associates, Inc. WHARTON, J.

I. INTRODUCTION

Before the Court is Defendants' Joint Motion for Summary Judgment to dismiss claims alleged by Plaintiffs Arlene Harrington and Kenneth Silverstein ("Silversteins") for the sale of a stucco home that needed extensive repairs after the close of the transaction. Defendants assert that the statute of limitations on the Silversteins' claims had run before the Silversteins filed their Complaint. The Silversteins claim that tolling doctrines preclude dismissal of their counts.

Applying Super. Ct. Civ. R. 56 to the Defendants' Joint Motion for Summary Judgment, the Court finds that the undisputed facts show that the statute of limitations for the Silversteins' claims began to run on July 1, 2008 because the Silversteins were on inquiry notice of their claims on or before that date. The Court further finds that the Silversteins' Complaint, filed on May 16, 2013, is time-barred. Therefore, Defendants' Joint Motion for Summary Judgment as to Count I through and including Count XX in the Third Amended Complaint is GRANTED.

II. FACTUAL AND PROCEDURAL CONTEXT

Richard A. Fischer and Donna DeLaurentis ("Fischers"), the original owners of the home located at 123 East Wynleigh Drive Centerville, Delaware 19807, entered into a contract for sale of the home to William A. Ward and Suzanne Ward ("Wards") in April 2008. The Wards hired Preferred Inspections, Inc. ("Preferred") to complete a home inspection. A Preferred representative inspected the home and issued a report on April 14, 2008 ("Preferred Report").

A. The Preferred Report

The Preferred Report shows that the inspector found several "major deficiencies" with the home. The first page of the summary of the Preferred Report contains the following:

In addition to the home inspection, an additional more intrusive evaluation was being preformed [sic] by Cogent Building Diagnostics [("Cogent")] to determine the presence of potential moisture build up behind the stucco or stone. The home inspection evaluation revealed details which would indicate moisture intrusion onto the sheathing or into the basement on the band board. These observations were confirmed by Cogent. The boundary between the stucco and the stone does not appear to have been installed correctly and is wicking moisture back into the sheathing area. The front right corner where the garage meets the house is leaking into the basement and causing mold build up on the band board. The front unfinished sections of the basement show moisture penetration along this wall. It is recommended that Cogent do an intrusive evaluation to determine the extent and repair needed for these issues.

B. The Cogent Letter

A representative from Cogent also inspected the home. The letter addressed to the Wards from Cogent ("Cogent Letter") shows that on April 23, 2008, the Cogent representative conducted a "[p]hase I screening review of the [house] for indications of possible water damage..." The Cogent Letter indicated that there were a "limited number of areas that have likely become water damaged associated with the stucco and stone veneer." Additionally, the Cogent Letter concluded that "[a] limited number of localized areas have likely experienced water damage under the stucco and stone veneers based on the non-invasive evaluation performed at the house." In the Letter, the representative recommended that the Wards hire a professional to "[c]onduct [an] invasive evaluation of suspected water damaged areas to establish the construction features that allowed water damage to occur, the extent of damage and support the preparation of a repair plan. These evaluation areas should include stucco areas with dark staining, areas beneath the stone veneer..."

C. Fischers Amend the Seller's Disclosure

For reasons immaterial to this Motion, the Wards did not purchase the home and the Fischers relisted the home for sale. The Fischers received the Preferred Report and Cogent Letter prior to relisting the home for sale. The Fischers then amended the Seller's Disclosure. The Seller's Disclosure indicates that the Fischers checked the box labeled "yes" to the questions "[i]s there any past or present water leakage in the house?" and "[a]re [sellers] aware of any problems affecting ... Exterior and Interior Walls?" A handwritten note discloses that "possible problems with stucco are being evaluated for leaking and will be repaired if necessary."

D. The Silversteins Purchase the Home

Mrs. Harrington acknowledged that she received and read the amended Seller's Disclosure prior to purchasing the home. Mrs. Harrington and Dr. Silverstein admitted they each received and read the Preferred Report prior to settlement. Dr. Silverstein also acknowledged that he was aware of stucco issues with the home prior to settlement. In a May 9, 2008 email from their realtor to the Silversteins, their realtor writes, in part:

...The sellers are meeting with [the original builder] today to loook (sic) over the stucco issues that were brought up by the previous home inspection. I told [the Fischers' realtor] we would like to be involved and kept in the loop with anything that goes on with this issue...I expressed our concerns that we don't want anything sealed up and repaired without us having a chance to have our inspections done and also we would like those areas to be accessable (sic) to our inspector...

The Silversteins hired A-1 Inspections, LLC ("A-1") to perform a general home inspection. The May 15, 2008 report prepared by A-1 notes various areas of water damage in the home and indicates that "an obtrusive inspection may be required" to identify the underlying problem. The Silversteins did not have another inspection performed. Instead, the Silversteins assert that they relied on the Fischers' assurances that the Fischers would fix all stucco problems. The Silversteins made settlement on the home on July 1, 2008.

E. The Silversteins' Complaint

The Silversteins and other plaintiffs, Christopher Koprowski and Dr. Mary Koprowski, filed the initial Complaint on May 16, 2013. Of the twenty-two counts in the Third Amended Complaint, the first twenty pertain to the Silversteins' claims. On September 30, 2015, Defendants filed their Joint Motion for Summary Judgment regarding only the Silversteins' Counts. On October 30, 2015, Plaintiffs filed their response in opposition to Defendants' Joint Motion. Defendants filed a reply brief on November 20, 2015. The parties appeared before the Court for oral argument on the Motion on February 11, 2016.

III. THE PARTIES' CONTENTIONS

Defendants argue that the Silversteins' claims are barred by the statute of limitations. Defendants assert that all of the Silversteins' claims are subject to a three year statute of limitations that expired on July 1, 2011. Defendants assert that the statute of limitations was not tolled because the Silversteins were on inquiry notice of the alleged injuries before they made settlement on the home.

The Silversteins argue that there are genuine issues of material fact that preclude granting summary judgment. The Silversteins assert that tolling doctrines extend the statute of limitations because the Silversteins were not on inquiry notice of the alleged injuries until December 15, 2012 when they received the Cogent Letter. Specifically, the Silversteins argue that the doctrines of "inherently unknowable injury," fraudulent concealment and equitable tolling toll the statute of limitations.

IV. STANDARD OF REVIEW

Super. Ct. Civ. R. 56(c) provides that summary judgment is appropriate where there is "no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." When considering a motion for summary judgment, the Court's function is to examine the record to determine whether genuine issues of material fact exist "but not to decide such issues." The moving party bears the initial burden of demonstrating that the undisputed facts support its claims or defenses. If the moving party meets its initial burden, then the burden shifts to the non-moving party to demonstrate that there are material issues of fact to be resolved by the ultimate fact-finder. "It is not enough for the opposing party merely to assert the existence of such a disputed issue of fact. The opponent to a motion for summary judgment 'must do more than simply show that there is some metaphysical doubt as to material facts.'" Summary judgment will be granted if, after viewing the record in the light most favorable to the non-moving party, no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. If the record reveals that material facts are in dispute, or if the factual record has not been developed thoroughly enough to allow the Court to apply the law to the factual record, then summary judgment is inappropriate.

V. DISCUSSION

The Silversteins' counts in the Third Amended Complaint allege actions for breach of contract, negligence or fraud. Pursuant to 10 Del. C. § 8106, the statute of limitations for each of the Silversteins' claims is three years. However, the Court recognizes limited exceptions that toll the statute of limitations. To determine if the statute of limitations is tolled, the Court conducts a three-part test: first, the Court decides when the cause of action accrued; second, the Court must assess whether the statute of limitations has been tolled; and third, assuming the statute has been tolled, the Court must determine when the plaintiff was on inquiry notice of the cause of action.

A. The Causes of Action Accrued On or Before July 1, 2008.

"The statute of limitations begins to run when a plaintiff's claim accrues which occurs at the moment of the wrongful act and not when the effects of the act are felt" "even if the plaintiff is ignorant of the cause of action." "The 'wrongful act' is a general concept that varies depending on the nature of the claim at issue." A claim for breach of contract accrues when the breach occurs. The cause of action for fraud accrues when the fraud is successfully perpetrated. The cause of action for negligence accrues at "the time of the injury."

Viewing the record in the light most favorable to the Silversteins, the Court finds that the latest date that the alleged wrongful act could have accrued for each of the Silversteins' claims is July 1, 2008, when the Silversteins made settlement on the home. Therefore, to be timely, the Silversteins had to file their Complaint on or before July 1, 2011, three years after the alleged wrongful act. Because the Silversteins filed the initial Complaint on May 16, 2013, almost five years after the alleged wrongful act, the Silversteins' claims are time-barred unless the Silversteins can show that a tolling doctrine applies and they were not on inquiry notice of the claims.

B. Applicability of the Tolling Doctrines.

1. Discovery Rule

"Under the 'discovery rule' the statute is tolled where the injury is 'inherently unknowable and the claimant is blamelessly ignorant of the wrongful act and the injury complained of.'" The Silversteins assert that the injury is "inherently unknowable" to them and they are "blamelessly ignorant" because the Silversteins were "laymen" and "there were no observable or objective factors that would put them on notice of an injury." Defendants argue that had the Silversteins "acted as reasonably prudent homebuyers under the circumstances, they would have undertaken steps that would have led to the discovery of the 'injury.'"

Construing the record in the light most favorable to the Silversteins, the Court finds that nothing in the record indicates that the Silversteins possess any special knowledge regarding home construction and maintenance. However, whether that renders the injury "inherently unknowable" to the Silversteins is an unresolved question of fact for the jury. Similarly, if the injury is "inherently unknowable," whether the Silversteins are "blamelessly ignorant" is also a question for the jury. Therefore, the Court cannot rule that, as a matter of law, the "discovery rule" does not toll the statute of limitations.

2. Fraudulent Concealment

Fraudulent concealment is an exception that tolls the statute of limitations when "there was an affirmative act of concealment or some misrepresentation that was intended to 'put a plaintiff off the trail of inquiry.'" The Silversteins, without citation to the record, list several alleged facts and assert that "[t]he evidence offered by Plaintiffs establishes that there is a reasonable inference that...[there] were affirmative acts that concealed the facts or were misrepresentations intended to put the plaintiff 'off the trail of inquiry...'" Defendants assert that there can be no fraud because the Silversteins had actual knowledge of the injury prior to executing the settlement documents. The record before the Court is not well-developed regarding whether or not Defendants engaged in acts of fraud with the intent to "put a plaintiff off the trail of inquiry." Therefore, the Court cannot find, as a matter of law, that the fraudulent concealment exception does not toll the statute.

3. Equitable Tolling

The doctrine of equitable tolling "applies when a plaintiff reasonably relies on the competence and good faith of a fiduciary." Plaintiffs argue specifically that the Silversteins' real estate agent and the Silversteins' home inspector were fiduciaries to the Silversteins and that it was reasonable for the Silversteins to rely upon their competence and good faith. Defendants argue that the equitable tolling doctrine cannot apply because the Silversteins have made no allegations of any fiduciary relationships in this matter.

The Court has determined that realtors are fiduciaries to their clients based upon an agency theory. Delaware courts have not addressed whether home inspectors are fiduciaries to the buyers by whom they are hired to perform a home inspection. Other courts have considered the question and note that home inspectors possess a special degree of expertise and are charged with exercising due care relative to their expertise but hold that home inspectors are not fiduciaries to the buyer for whom they perform the inspection. Therefore, the Court finds that, as to claims related to the realtors, the doctrine of equitable tolling tolls the statute of limitations. However, consistent with other courts' holding and the general principle that Delaware courts "ha[ve] traditionally been hesitant to expand the definition of fiduciary relationship, requiring that a 'special trust in another' or a 'special duty' exists between parties rising to the level that '[t]he relationship connotes a dependence'" the Court declines to impute home inspectors with fiduciary duties to their clients. Therefore, the doctrine does not apply to the Silversteins' counts pertaining to the home inspector.

C. The Silversteins were on Inquiry Notice of the Alleged Injury On or Before July 1, 2008.

Even where a tolling doctrine applies, the statute of limitations is tolled only until the plaintiff is on inquiry notice of the injury. If the Court finds that the Silversteins were on inquiry notice of the injury prior to three years before the Complaint was filed, the fact that there are questions of fact regarding which, if any, tolling doctrines apply is not dispositive. If plaintiffs are on inquiry notice of the alleged injuries more than three years prior to filing the complaint, Defendants are entitled to summary judgment as a matter of law.

When a plaintiff "discovers the facts constituting a basis for the cause of action, or knows facts sufficient 'to put a person of ordinary intelligence...on inquiry, which, if pursued, would lead to the discovery of such facts,'" the plaintiff has inquiry notice of the cause of action. "Inquiry notice does not require a plaintiff to have actual knowledge of a wrong, but simply an objective awareness of the facts giving rise to the wrong." The Court considers a plaintiff's objective awareness by examining whether there were "'red flag[s]' that clearly and unmistakably would have led a prudent person of ordinary intelligence to inquire" further and by determining if the plaintiff gained "possession of facts sufficient to make him suspicious, or that ought to make him suspicious."

1. The Silversteins Were Objectively Aware of Facts Giving Rise to the Causes of Action.

In Sunrise Ventures, LLC v. Rehoboth Canal Ventures, LLC, the plaintiff argued that the statute of limitations should have been tolled because he was unaware of environmental issues with the property he had purchased. In granting defendant's motion for summary judgment, the Court of Chancery determined that the plaintiff had received a email that referenced a specific environmental study performed on the property and held that plaintiff was on inquiry notice of potential environmental issues. The Court held that the plaintiff cannot "claim the protection of the tolling doctrines" because the plaintiff did not request the environmental study or perform his own inspection despite having the right to do both.

Like in Sunrise Ventures, the Silversteins had documents that referenced potential stucco issues and that a more intrusive report, the Cogent Letter, had been prepared on the home. Like the plaintiff in Sunrise Ventures, the Silversteins did not seek to obtain the Cogent Letter. However, the Silversteins did have their own inspection performed by A-1. That inspection notes various areas of water damage in the home and indicates that "an obtrusive inspection may be required" to identify the underlying problem. Therefore, the Silversteins had more reason to be suspicious than even the plaintiff in Sunrise Ventures.

Similarly, in In re Dean Witter Partnership Litigation, the Court of Chancery found that investors were on inquiry notice of potential misconduct by the investment firms in which they invested when investors received reports of profitable investment forecasts but the underlying data did not support the forecasts. The Court held that "even where defendant is a fiduciary, a plaintiff is on inquiry notice when the information underlying plaintiff's claim is readily available." The Chancellor ruled that "[i]t is not too much to ask investors to read beyond the first page of an annual report, to read past the rosy forecasts and actually look at the cold, hard figures provided to them" when the information is readily available and dismissed the investors' claims as time-barred.

Although the Silversteins assert that they reasonably relied on the competence and skill of professionals to act on their behalf, like in Dean Witter, the information regarding the condition of the home was readily available to the Silversteins. Therefore, like in Dean Witter, it is unreasonable for the Silversteins to blindly rely on others. There were several "red flags" that should have raised the Silversteins' suspicions regarding the condition of the home. It is unmistakably clear that information contained in the amended Seller's Disclosure, information contained in the Preferred Report and email communication between the Silversteins and their realtor should have made a prudent person of ordinary intelligence inquire further into the condition of the home.

The amended Seller's Disclosure indicates that the there is past or present water leakage in the house; and that the sellers are aware of problems affecting the exterior and interior walls. The amended Seller's Disclosure also contains a handwritten note that states that "possible problems with stucco are being evaluated for leaking and will be repaired if necessary." Mrs. Harrington acknowledged that she received and read the Sellers' Disclosure prior to purchasing the home.

Additionally, the Preferred Report indicates, in part, that there were several "major deficiencies." The summary section of the Report states that

In addition to the home inspection, an additional more intrusive evaluation was being preformed (sic) by Cogent Building Diagnostics to determine the presence of potential moisture build up behind the stucco or stone. The home inspection evaluation revealed details which would indicate moisture intrusion onto the sheathing or into the basement on the band board. These observations were confirmed by Cogent. The boundary between the stucco and the stone does not appear to have been installed correctly and is wicking moisture back into the sheathing area. The front right corner where the garage meets the house is leaking into the basement and causing mold build up on the band board. The front unfinished sections of the basement show moisture penetration along this wall. It is recommended that Cogent do an intrusive evaluation to determine the extent and repair needed for these issues.

Additionally, in an email from the Silversteins' realtor to Mrs. Harrington and Dr. Silverstein dated May 9, 2008, the realtor writes, in part:

...The sellers are meeting with [the original builder] today to loook (sic) over the stucco issues that were brought up by the previous home inspection. I told [the Fischers' realtor] we would like to be involved and kept in the look with anything that goes on with this issue...I expressed our concerns that we don't want anything sealed up and repaired without us having a chance to have our inspections done and also we would like those areas to be accessable (sic) to our inspector...

2. The Silversteins Would Have Discovered the Stucco Issues by the Exercise of Reasonable Diligence.

In addition to finding that the Silversteins were on inquiry notice of the stucco issues, to grant summary judgment the Court must also find that the Silversteins would have discovered the stucco issues had they exercised reasonable diligence. In Sunrise Ventures, the Court of Chancery held that the plaintiff who was on inquiry notice of his claims for an environmental injury because an email he received referenced an environmental study, "by the exercise of reasonable diligence," could have discovered the alleged environmental injury. The Court reasoned that had the plaintiff requested the environmental study or performed his own environmental study, the plaintiff "could have easily discovered the problems [the environmental study] identifies about which [plaintiff] now complains."

Similarly, the Silversteins were on inquiry notice of the stucco problems because of the information contained in the Seller's Disclosure and Preferred Report that the Silversteins acknowledged they had received prior to settlement. The Preferred Report specifically references the Cogent Letter and states, in part,

...an additional more intrusive evaluation was being preformed (sic) by Cogent Building Diagnostics to determine the presence of potential moisture build up behind the stucco or stone. The home inspection evaluation revealed details which would indicate

moisture intrusion onto the sheathing or into the basement on the band board. These observations were confirmed by Cogent...It is recommended that Cogent do an intrusive evaluation to determine the extent and repair needed for these issues.

The Court finds, faced with all of these "red flags," it was unreasonable for the Silversteins to rely on the assurances of the Fischers that repairs had been completed. Drawing all reasonable inferences in favor of the Silversteins, at the lastest, the statute of limitations began to run on July 1, 2008 and the action as it relates to the Silversteins is time-barred. Therefore, summary judgment in favor of Defendants is appropriate for Count I through and including Count XX of the Third Amended Complaint.

VI. CONCLUSION

The Court finds that the undisputed facts show that the statute of limitations for the Silversteins' claims began to run on July 1, 2008 because the Silversteins were on inquiry notice of their claims on or before that date. The Court further finds that the Silversteins' Complaint, filed on May 16, 2013, is time-barred. Therefore, Defendants' Joint Motion for Summary Judgment as to Count I through and including Count XX in the Third Amended Complaint is GRANTED.

IT IS SO ORDERED.

/s/_________

Ferris W. Wharton, Judge