IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

BERNARD KATZ, )

)

Plaintiff, )

)

v. ) C.A. No. N19C-06-114 ALR

)

SIDNEY MAFFETT, )

)

Defendant. )

Submitted: November 23, 2019

Decided: January 9, 2020

Upon Defendant’s Motion for Summary Judgment

GRANTED

ORDER

Upon consideration of Defendant’s motion for summary judgment; the 

opposition thereto filed by Plaintiff; the facts, arguments, and authorities set forth 

by the parties; the Superior Court Rules of Civil Procedure; statutory and decisional 

law; and the entire record in this case, the Court hereby finds as follows:

1. Plaintiff is an individual who controls a limited liability company 

(“Buyer Entity”). Defendant is an individual who is the managing member of a 

limited liability company (“Seller Entity”). A limited liability company is a legal 

entity that is separate and distinct from its members.1 

 

1 See, e.g., Harner v. Westfield Ins. Co., 2018 WL 6721765, at *3–4 (Del. Super. 

Dec. 12, 2018); Poore v. Fox Hollow Enters., 1994 WL 150872, at *2 (Del. Super. 

Mar. 29, 1994).
2

2. Buyer Entity purchased a parcel of real property (“Property”) from 

Seller Entity pursuant to a written sale agreement on July 10, 2014 (“Sale”). Plaintiff 

executed the sale agreement on behalf of Buyer Entity, and Defendant executed the 

sale agreement on behalf of Seller Entity. To fund the purchase, Buyer and Plaintiff 

co-signed a purchase money note for $500,000 in favor of Seller Entity.

3. On June 13, 2019, Plaintiff filed this action asserting one claim of 

misrepresentation in connection with the Sale. The Complaint alleges that (1) 

Defendant sold the Property to Plaintiff, (2) Defendant intentionally concealed rust 

build-up on the roof of a warehouse located on the Property to induce Plaintiff to 

purchase the Property “as is,” (3) Defendant knew or should have known that the 

warehouse was in violation of two sections of the City of Wilmington Building 

Code, and (4) Plaintiff would not have purchased the Property had Defendant 

disclosed the rust build-up and building code violations to Plaintiff prior to 

settlement.

4. Defendant initially filed the instant motion as a motion to dismiss but 

because Defendant submitted various supplemental materials with the motion, the 

Court converted Defendant’s motion to dismiss into a motion for summary 

judgment2and afforded the parties additional time to present all materials pertinent 

to such a motion. 

 

2 See Super. Ct. Civ. R. 12(b).
3

5. The Court may grant summary judgment only where the moving party 

can “show that there is no genuine issue as to any material fact and that the moving 

party is entitled to judgment as a matter of law.”3 A genuine issue of material fact 

is one that “may reasonably be resolved in favor of either party.”4 The moving party 

bears the initial burden of proof and, once that is met, the burden shifts to the nonmoving party to show that a material issue of fact exists.5

 At the motion for summary 

judgment phase, the Court must view the facts “in the light most favorable to the 

non-moving party.”6 Summary judgment is only appropriate if Plaintiff’s claim 

lacks evidentiary support such that no reasonable jury could find in Plaintiff’s favor.7

6. Defendant asserts four grounds for granting the motion: (1) Plaintiff 

lacks standing to bring his claim because Plaintiff was not the buyer; (2) Plaintiff’s 

claim is not properly brought against Defendant because Defendant was not the 

seller; (3) the Complaint does not plead misrepresentation with sufficient 

 

3 Super. Ct. Civ. R. 56(c).

4 Moore v. Sizemore, 405 A.2d 679, 680–81 (Del. 1979).

5

Id.

6 Brozka v. Olson, 668 A.2d 1355, 1364 (Del. 1995). 

7 See Hecksher v. Fairwinds Baptist Church, Inc., 115 A.3d 1187, 1200–05 (Del. 

2015); Edmisten v. Greyhound Lines, Inc., 2012 WL 3264925, at *2 (Del. Aug. 13, 

2012). 
4

particularity, as is required by Superior Court Rule of Civil Procedure 9(b);8and (4) 

Plaintiff’s claim is barred by the applicable three-year statute of limitations. 

7. Plaintiff opposes Defendant’s motion.

8. The Complaint alleges that Plaintiff purchased the Property from 

Defendant; however, the written sale agreement states that the transaction occurred 

between Buyer Entity and Seller Entity, and Plaintiff has produced no evidence to 

the contrary. 

9. To succeed in an intentional misrepresentation claim,9a plaintiff must 

prove the following: 

(1) the defendant falsely represented or omitted facts that the defendant 

had a duty to disclose, (2) the defendant knew or believed that the 

representation was false or made the representation with a reckless 

indifference to the truth, (3) the defendant intended to induce the 

plaintiff to act or refrain from acting, (4) the plaintiff acted in justifiable 

 

8 See Super. Ct. Civ. R. 9(b) (“In all averments of fraud, negligence or mistake, the 

circumstances constituting fraud, negligence or mistake shall be stated with 

particularity.”).

9 The Court construes Plaintiff’s misrepresentation claim as one for intentional 

misrepresentation. While the Complaint does not explicitly state that the claim is 

for intentional misrepresentation, it describes Defendant’s conduct as “intentional.” 

In addition, “‘[i]t is well-settled Delaware law that the Chancery Court has exclusive 

jurisdiction over claims of negligence [sic] misrepresentation.’ ‘The one exception 

to the exclusive jurisdiction of the Chancery Court would be cases where the 

negligent misrepresentation claim is raised in the context of the Consumer Fraud 

Act.’” Optical Air Data Sys. v. L-3 Commc’ns Corp., 2019 WL 210543, at *1 (Del. 

Super. Jan. 14, 2019) (quoting Van Lake v. Sorin CRM USA, Inc., 2013 WL 

1087583, at *11 (Del. Super. Feb. 15, 2013)) (alterations omitted). Plaintiff’s

misrepresentation claim is not raised under the Consumer Fraud Act and therefore 

cannot be asserted as a negligent misrepresentation claim in the Superior Court.
5

reliance on the representation, and (5) the plaintiff was injured by its 

reliance.10

In other words, Plaintiff must prove not only that Defendant made a false 

representation to induce Plaintiff to act but also that Plaintiff acted in reliance on 

that representation. 

10. Plaintiff claims to have purchased the Property in reliance on 

Defendant’s alleged misrepresentations. While Plaintiff may have caused Buyer

Entity to purchase the Property, Buyer Entity, not Plaintiff, actually purchased the 

Property. Therefore, even if Plaintiff can prove that Defendant falsely represented 

the building’s condition and compliance with the Wilmington Building Code, 

Plaintiff lacks standing to pursue a claim of intentional misrepresentation. 

11. Notwithstanding Plaintiff’s lack of standing, Defendant is entitled to 

judgment as a matter of law based on statute of limitations grounds. A three-year 

statute of limitations applies to Plaintiff’s misrepresentation claim.11 Assuming 

 

10 DCV Holdings, Inc. v. ConAgra, Inc., 889 A.2d 954, 958 (Del. 2005) (emphasis 

added).

11 See 10 Del. C. § 8106(a) (“[N]o action based on a promise . . . and no action to 

recover damages caused by an injury unaccompanied with force or resulting 

indirectly from the act of the defendant shall be brought after the expiration of 3 

years from the accruing of the cause of such action . . . .”); see also Van Lake, 2013 

WL 1087583, at *6 (“Pursuant to 10 Del. C. § 8106, claims ‘arising from a promise,’

including fraud, must be brought within three years after the claim has accrued.”); 

Lee v. Linmere Homes, Inc., 2008 WL 4444552, at *3 (Del. Super. Oct. 1, 2008) 

(applying 10 Del. C. § 8106 to a fraudulent misrepresentation claim in connection 

with the sale of a home);
6

arguendo that Plaintiff has standing to bring his claim, the cause of action would 

have accrued on July 10, 2014—the date of settlement—at the latest.12 Plaintiff filed 

this action on June 13, 2019, nearly five years after the accrual date. Therefore, 

Plaintiff’s claim is time-barred.

12. Accordingly, Defendant is entitled to judgment as a matter of law.13 

NOW, THEREFORE, this 9th day of January 2020, Defendant’s motion 

for summary judgment is hereby GRANTED and JUDGMENT is entered in 

favor of Defendant.

IT IS SO ORDERED.

Andrea L. Rocanelli

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

The Honorable Andrea L. Rocanelli

 

12 See Linmere Homes, Inc., 2008 WL 4444552, at *3 (“Generally, where a plaintiff 

alleges claims of breach of contract, fraudulent misrepresentation, and negligence 

related to the purchase of a home, the statute of limitations begins to run on the date 

of the settlement or closing.”).

13 Because the Court finds that Defendant is entitled to judgment as a matter of law 

based on Plaintiff’s lack of standing and the expiration of the statute of limitations 

period, the Court does not address the merits of Defendant’s other arguments.