Opinion
C.A. No. 98C-09-001
Submitted: June 16, 2000
Decided: September 29, 2000
Upon Consideration of Defendant's Motion for Summary Judgment
DENIED in Part GRANTED in PartLeo John Ramunno, Esq., Wilmington, Delaware. Attorney for Plaintiffs.
William F. Taylor, Jr., Esq., Wilmington, Delaware. Attorney for Defendants.
ORDER
Upon consideration of the defendant's motion for summary judgment, the plaintiffs' response, and the record, it appears that:
1. The plaintiffs seek damages arising from the construction of a new home built for them by the defendant. The plaintiffs' claims are set forth in four counts of the complaint. The defendant has filed a motion for summary judgment. In support of its motion, the defendant states that count I merely sets forth factual allegations, that count II alleges statutory consumer fraud, that count III alleges common law fraud, and that count IV alleges severe emotional distress. They contend that there are no facts supporting the plaintiffs' claims of statutory or common law fraud, or emotional distress, and that they are entitled to judgment as a matter of law. The plaintiffs disagree with the defendant's characterization of count I. They say that count I seeks damages based upon alleged poor workmanship. The plaintiffs oppose the motion and content that there are genuine issues of material fact which preclude summary judgment.
2. Summary judgment is appropriate if, after viewing the record in the light most favorable to the non-moving party, the court finds no genuine issue of material fact. If the movant supports the motion with the proper affidavits, the burden shifts to the non-moving party to show, using support taken from the developed record or with opposing affidavits, that a material issue of fact exists. If there is a reasonable indication 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, summary judgment will not be granted. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
Guy v. Judicial Nominating Comm'n, Del. Super., 659 A.2d 777, 780 (1995), appeal dismissed, Del. Supr., 670 A.2d 1338 (1995).
Moore v. Sizemore, Del. Supr., 405 A.2d 679, 681 (1979); Del. Super. Civ. R. 56(e).
Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 479 (1962), rev'd in part and aff'd in part, 208 A.2d 495 (1965).
Wooten v. Kiger, Del. Supr., 226 A.2d 238 (1967).
3. The home constructed in this case was one built specifically for the plaintiffs in a subdivision which was at that time being developed by the defendant. The plaintiffs selected the particular type of house which they wanted from among two or more styles offered in the subdivision. The parties entered into an agreement for the sale and purchase of the home, with settlement to take place after the home was constructed. After the house was completed, settlement did take place, and the plaintiffs became the owners of the home.
4. With regard to count I, the plaintiffs contend that a report prepared by an expert retained by them documents substantial defects in the home, including but not necessarily limited to bowing in the interior walls, cracking in the foundation and improper roof framing. Repair work is estimated to cost $43,500. The expert's report, according to the plaintiffs, concludes that extensive work is needed merely to bring it up to the point where it would comport with approved plans. I am satisfied that count I does set forth a claim for damages. Viewing this count in the light most favorable to plaintiffs, the Court cannot say that there is no genuine issue of material fact and summary judgment as to count I is denied.
5. In count II the plaintiffs claim that the defendant violated 6 Del. C. § 2513, Delaware's statutory consumer fraud provision. In support of this claim, the plaintiffs contend that the actual construction of the home varied materially from the plans, brochures and advertising materials which depicted what the house would look like. For example, they claim that a foyer was completely different from the way it was supposed to be, and that a porch differed materially from the plans. They also claim that the builder advertised a number of standard features which were not included in the house as constructed, and that the house was not built in accordance with plans which had been approved by New Castle County. The plaintiffs' theory of the case is that the defendant misrepresented to them that the house would be built in accordance with the plans they were shown and then proceeded to depart materially from those plans as the house was actually constructed. 6 Del. C. § 2513 of the Delaware Code provides that it is an unlawful practice for a seller to make any misrepresentation in the sale or advertisement of merchandise, regardless of whether the buyer has in fact been misled. The General Assembly intended this provision to be liberally construed to affect its goal of protecting consumers and legitimate business enterprises from unfair or deceptive merchandising practices. A specific intent to misrepresent or a specific intent to mislead are not required. Persons involved in the sale of real estate as an occupation, are subject to this provision.
6 Del. C. § 2512.
Brandywine Volkswagen, Ltd. v. State, Del. Supr., 312 A.2d 632 (1973); In re Brandywine Volkswagen, Ltd., Del. Super., 306 A.2d 24, 27 (1973).
6 Del. C. § 2511(4) Stephenson v. Capano Dev., Inc., Del. Supr., 462 A.2d 1069 (1983).
6. Based upon this record, it appears that there are material factual issues regarding what was promised and what was actually delivered. Viewing the record in the light most favorable to the Goldsboroughs, they claim they based their decision to purchase the home in whole or in part on the written materials with which they were provided depicting the house (and perhaps verbal representations) and the defendants advertisements regarding certain standard features. Allegedly, the plans were not followed and the standard features, or at least some of them, were not included. I conclude that there is a genuine issue as to whether the defendant made material misrepresentations concerning the house. Summary judgment is inappropriate at this time.
7. Count III alleges common law fraud. In order to establish fraud, the following elements must be proved: (1) a material representation, (2) which was false, (3) known by the maker to be false or made in reckless indifference to the truth, (4) with intent to induce the other party to act or rely upon the representation, and (5) a misleading of the other party in reliance upon which he acted and was damaged. The defendant contends that there is no direct evidence whatsoever of any intent on its part to make a false representation. However, intent can be inferred from circumstantial evidence. Based upon the plaintiffs claims that they were provided with written materials showing various features of the house, that they relied upon these materials, that the house as built did not include these features, and that the features were material, it is premature to grant summary judgment. The Court is not prepared to say at this point that the requisite intent could not be inferred from the over all facts and circumstances
In re Brandywine Volkswagen, Ltd., Del. Super., 306 A.2d 24 (1973), quoting, Nye Odorless Incinerator Corp v. Felton, 5 W.W. Harr. 236, 162 A. 205, 510, (1931).
8. As to count IV concerning emotional distress, the complaint incorporates by reference all of the averments contained in counts I-III and further avers only that the plaintiffs "have also suffered extreme emotional distress due to the fact that they have been unable to fully enjoy the new home and the severity of the situation". In his deposition, Mr. Goldsborough testified that he has suffered migraine headaches, loss of sleep and irritability. He testified that he has taken excedrin for the headaches. Mrs. Goldsborough testified that she has suffered aggravation, but nothing more. Northing more has been offered by the plaintiffs in response to the defendant's motion for summary judgment on this issue. The tort of intentional infliction of emotional distress requires that the plaintiff establish that the defendant has exhibited extreme and outrageous conduct which intentionally or recklessly causes severe emotional distress, and that the emotional distress is indeed severe. Such conduct must be considered extreme and offensive to the degree that it goes beyond all bounds of decency. Allegations of headaches, irritability and loss of sleep fail to rise to the level necessary to establish severe emotional distress. While the plaintiffs have alleged fraud, they have not described any conduct on the part of the defendant which would rise to the level of extreme and outrageous conduct apart from what is inherent in fraud. Facts which would support a finding of fraud do not per se also establish extreme and outrageous conduct necessary to a claim of intentional infliction of emotional distress. I find that the plaintiffs have been afforded an adequate opportunity to offer into the record facts to support this claim and that viewing the facts which have been presented in the light most favorable to plaintiffs, the evidence is insufficient to create a jury issue and the defendant is entitled to judgment as a matter of law. Accordingly, summary judgment on Count IV is granted.
Mattern v. Hudson, Del. Super., 532 A.2d 85 (1987).
Cummings v. Pinder, Del. Supr., 574 A.2d 843 (1990).
Hostetter v. Hartford Insurance Company, Del. Super., C.A. No. 85C-06-28, Gebelein, J., (July 13, 1992) (Mem. Op.).
9. Therefore, the defendant's motion for summary judgment is denied in part and granted in part .
IT IS SO ORDERED.