Mullin v. Ascetta
N18C-11-078 FJJ
| Del. Super. Ct. | Sep 20, 2021Background
- Sellers Bruce and Carla Ascetta purchased a newly built home at 1059 Windrow Way from K. Hovnanian in April 2013; the builder’s Home Builder’s Limited Warranty accompanied the house and was later transferred to buyers Sarah and Charles Mullin.
- The Ascettas sold the house to the Mullins in December 2017; the Seller’s Disclosure (SD) was an addendum to the Agreement of Sale and required disclosure of known material defects under the Delaware Buyer Protection Act (6 Del. C. §2572).
- Post‑sale, the Mullins discovered multiple construction and performance problems (notably roof leaks and creaky/bouncy floors) and pursued warranty arbitration against K. Hov.; an arbitrator found the roof and several other defects covered by the warranty.
- The Mullins sued the Ascettas for breach of the disclosure duty, alleging the sellers knew of the defects pre‑settlement but failed to list them on the SD.
- After a bench trial, the court found by a preponderance that the Ascettas knew of and failed to disclose the roof defect and the persistent squeaking floors, but the Plaintiffs failed to prove the sellers knew of or had to disclose other alleged defects.
- Damages were limited by the prior warranty arbitration (the court precluded recovery of items covered by the warranty); the court awarded $8,500 for alternative housing and $10,644 for moving expenses (total $19,144). Attorneys’ fees may be sought per the contract within 30 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sellers knew of roof defects and failed to disclose under 6 Del. C. §2572 | Mullin: sellers were aware of attic/ridge vent snow infiltration and prior water stains but omitted any roof problems from the SD | Ascetta: no knowledge of roof leaks pre‑settlement; home inspector found no attic issues; post‑settlement snowstorm caused stains | Court found Plaintiffs’ evidence (neighbor testimony, presence of Kilz stain remover, porch conversation) more credible and held sellers knew of roof defect and should have disclosed it |
| Whether sellers knew of floor/joist defects (bouncy, squeaky floors) and failed to disclose | Mullin: persistent floor squeaks and subfloor fastening issues were known and should have been disclosed | Ascetta: may not have known technical cause; argued lack of specific knowledge of joist/fastening defect | Court found sellers aware of ongoing squeaking; duty to disclose met — nondisclosure breached contract |
| Whether other alleged defects (venting placement, taped wiring, drain modifications, soffits, removed bracing, uninsulated ducting, tub issues, slider leak, intermittent circuit trips) had to be disclosed | Mullin: these items were material defects that were not disclosed on the SD | Ascetta: lacked knowledge these were defects or they were not material or were remedied; some issues were covered by warranty or were maintenance | Court held Plaintiffs failed to prove sellers knew of or had a duty to disclose these items; no liability for these defects |
| Damages recoverable given prior warranty arbitration and proof of causation | Mullin: seek repair costs, diminution in value, alternative housing and moving costs | Ascetta: many claimed damages are covered by the builder’s warranty or speculative; diminution testimony unreliable | Court disallowed damages covered by warranty and rejected speculative repair/diminution proofs; awarded only alternative housing ($8,500) and moving ($10,644) — total $19,144 |
Key Cases Cited
- The opinion does not cite any authorities that appear with an official reporter citation in the record. The court relied primarily on Delaware statutes (Buyer Protection Act) and unpublished/WL decisions and prior arbitration findings in the case.