T. HENLEY GRAVES

Dear Counsel:

Several post-trial motions are presently before the Court for decision in the above-referenced matter. This letter constitutes my opinion on those motions.

NATURE AND STATUS OF THE PROCEEDINGS AND STATEMENT OF FACTS

This case arose from the sale of a house by Helen Biedrzycki ("Biedrzycki") to Halina Janas ("Janas"). The facts pertinent to the individual motions will be set forth below in the discussion of each of the requests of the Court. Preliminarily, however the Court notes a number of established facts. First, Biedrzycki had owned and lived in this house for over 47 years prior to the sale on September 9, 1994. She represented to Janas that the house previously had had a termite problem, but that the termites were gone. As part of the sale process, a termite inspection was completed that uncovered the prior termite damage, and a report was made reflecting this discovery.

That report was delivered to Biedrzycki and Janas' initial attorney for the sale of the house, Francis Trzuskowski, Esq. Subsequently, the file was transferred to David Ferry, Esq. for settlement. At no time prior to closing did either attorney provide Janas with a copy of the termite inspection report.

Following closing, Janas received a copy of the report. Upon inspection, she found old termite damage in a floor joist in the basement. A more complete examination revealed an active infestation of termites behind a wall in one bedroom where water damage was also present. After a failure to settle the matter, Janas brought suit against Biedrzycki and both attorneys.

A jury trial was held in the matter on December 7-9, 1999. The jury found that Biedrzycki had fraudulently concealed the termite damage. It also found that Defendant Ferry had been negligent in failing to provide Janas with a copy of the termite inspection report. A verdict was returned in favor of the plaintiff in the amount of $20,000 and the jury assessed the fault of the various parties in the following manner: 75% to Biedrzycki, 20% to Ferry and 5% to the plaintiff.

All parties, with the exception of Trzuskowski, have now filed post-trial motions. Defendant Biedrzycki renews her motion for judgment as a matter of law, claiming that the plaintiff has failed to meet her burden of proving that Biedrzycki committed any fraudulent act. In the alternative, she moves for a new trial, claiming that a reasonably prudent jury could not have reached the result this one did in light of the evidence.

Defendant Ferry also seeks a new trial on the grounds that he is only responsible, if at all, for those damages that would have been discovered but for his failure to provide the termite report. In essence, he claims that he cannot be held liable for the extensive damage behind the wall in the bedroom. As such, a new trial is necessary for the jury to consider the relative fault of the parties in relation to the separate places where damage was found. Alternatively, Ferry asks this Court to alter judgment to reflect the different levels of culpability as they relate to the damages. In his view, the plaintiff should not be able to seek the full judgment from him as a joint tortfeaser, even if a right of contribution exists against Biedrzycki. The judgment should reflect the faults assigned by the jury and Ferry should get the benefit of a reduction in his apportioned share by the amount of contributory negligence assigned to the plaintiff by the jury.

The plaintiff also makes a post-trial motion for this Court to amend the judgment to include pre-judgment interest. She contends that pre-judgment interest is a matter of right in cases where the damage is calculable and this is such a case, entitling her to the interest.

DISCUSSION

Defendant Biedrzycki's Renewed Motion for Judgment as a Matter of Law

Biedrzycki moved for judgment as a matter of law at the close of plaintiff's case, claiming that Janas had failed to prove the elements of fraud necessary for her case to go forward. The Court deferred ruling on that motion, and Biedrzycki now renews the motion. In assessing a motion for judgment as a matter of law, the Court must view the record in the light most favorable to the non-moving party. Moody v. Nationwide Mutual Insurance Co., Del. Supr., 549 A.2d 291 (1988). This deference does not mean that the Court may supplement the evidence to fill gaps in the non-moving party's case. Freedman v. Chrysler Corp., Del. Super., 564 A.2d 691 (1989). Only where the facts present on the record permit but one reasonable inference, and that inference is adverse to the non-movant, may the Court grant judgment as a matter of law. Eustice v. Rupert, Del Supr., 460 A.2d 507 (1983).

In the present case, Defendant Biedrzycki claims that Janas has failed to prove either that Biedrzycki knew of the damage and actively concealed it or that she knew of the information and did not disclose it. She has supported her claim by pointing to her own testimony, the testimony of Janas, and that of plaintiffs witness, Bill Lutrykowski and alleging that the prima facia elements of plaintiffs case were not established. Biedrzycki further asserts that the evidence contradicts Janas' claims.

As to the fraudulent concealment charge, she claims that the evidence showed that she held her house open to Janas and Mr. Lutrykowski for their inspection. She further claims that they were told of prior termite damage to the house. No evidence showed that Biedrzycki had actively concealed the damage. Mr. Lutrykowski's testimony that he could not prove who covered up the damage bolsters this claim.

As to the fraudulent non-disclosure allegation, Biedrzycki stresses the testimony shows the only evidence of non-disclosure is in the failure to answer two questions on the disclosure sheet. Biedrzycki freely admitted past damage to both the plaintiff and agent.

It is certainly true that all of this was available for the consideration of the jury. It was very likely that the jury did consider all of this. When ruling on this motion, however, the Court must look at the evidence in a light most favorable to the Plaintiff. The jury had ample evidence to examine, however circumstantial, which tended to show some effort to conceal damage and some failuclose information about termite infestation.

Mrs. Biedrzycki lived in the same house for more than 47 years. She was admittedly aware of past termite problems. She stated that the damage was fixed. The video that was played for the jury indicated that an effort was made to conceal the destruction cosmetically and that no actual repairs had been made to the old termite damage. Biedrzycki failed to note pertinent termite information on the disclosure sheet, even though she admitted to knowledge of past infestation.

These facts, which were before the jury, are enough to establish a prima facia case against Biedrzycki. A number of inferences could result from a reasonable view of these facts. When viewed from the position most favorable to the Plaintiff, one is not compelled by these facts to the conclusion that the plaintiff could not possibly prevail. In light of this, the motion for judgment as a matter of law is denied.

Biedrzycki's Motion for a New Trial

Upon review of a motion for a new trial the Court is required to review the record and weigh the evidence presented to assess whether the verdict is one which a reasonably prudent jury could have reached. McCloskey v. McKelvey, Del. Supr., 174 A.2d 691 (1961). If the jury was presented with conflicting evidence, it is not sufficient that the verdict is against the preponderance of the evidence, or that the Court would have decided differently. Storey v Camper, Del. Supr., 401 A.2d 458 (1979);McCloskev, supra. On the contrary, in order for a new trial to be granted the evidence adduced at trial must so heavily weigh against the verdict or some other combination of factors must be present as to create a manifest injustice. McCloskev, supra.

As noted above, there was conflicting testimony and evidence in this case. While Janas' evidence would not be enough for this Court to rule in favor of the Plaintiff as a matter of law, the cumulative effect of all the evidence presented, along with the implications the jury could have drawn therefrom, is sufficient for a jury's consideration. Weighing the evidence, this Court rules that the finder of fact had adequate information to have found fraudulent behavior on the part of Biedrzycki and the verdict was one within the realm of those possible for a reasonable jury to reach. As such, Defendant Biedrzycki's motion for a new trial is denied.

Defendant Ferry's Motion for a New Trial or to Amend the Judgment

Defendant Ferry claims that a new trial is necessary to resolve an apparent conflict in the apportionment of liability in this case. Because there were two locations of termite damage involved, he claims that he should only be liable for that in the basement because it would have been discoverable on the basis of the termite report, which the jury found him negligent in failing to provide to Janas before closing. The damage in the back bedroom wall, he asserts, cannot be attributed to him, because it was not in a location that would have been found as a result of having the termite report. The report mentioned no damage in that area and raised no suspicion of damage in that area. That damage was only discovered upon removing part of the wall.

In the alternative, Ferry urges the Court to amend the judgment to reflect the apportionment that the jury returned. He asks that the Court sever any joint liability as to the homeowner, making Ferry responsible only for 20% of the damages, less the percentage of contributory negligence on the part of the plaintiff. Granting such a motion would result in a sole responsibility on his part in the amount of $3,800.

Plaintiff counters that Ferry has waived any dispute over the joint liability instruction as given, and therefore this motion is untimely and should be denied on that ground. In the alternative, Janas argues that all of the termite damage was considered by the jury in rendering its verdict. The tort theory upon which joint liability is premised is not relevant to the inquiry as long as both tortfeasors combined to create the same damages to the Plaintiff.

Separation of the damages is not appropriate in this situation. Plaintiff is correct in her assertion that the theory of recovery, so long as it is based upon tort, is not a factor to consider in assessing joint liability, 10 Del. C. § 6301; Blackshear v. Clark, Del. Supr., 391 A.2d 747 (1978). Under § 6301, the inquiry is limited to determining that "(1) each of the persons must be liable in tort, (2) the liability of each must be for the same injury, and (3) the injury for which each person is liable must have been an injury to person or property." Ulmer v. Whitfield, Del. Super., C.A. No. ( 1985 WL 189262), Taylor, J. (Sept. 10, 1985) at 2.

Fraud and negligence, the legal theories of culpability present in this case, are both torts, and thus, the basis of liability in this case is no reason for severing joint liability. Likewise, the damages claimed are to the property in question, so the third criterion of § 6301 is satisfied. Defendant Feny believes that the second portion of this inquiry is the key to eliminating his concurrent liability for the entire award. Is the liability of each party in this case for the same injury, or are there separate injuries, namely the old termite damage and the damage found it the back bedroom?

According to 22 Am. Jur. 2d. Damages § 29. one is only responsible for the extent to which his act has contributed to the injury. Allocation of damages to accord with the actual injurious act that caused the particular damage is certainly the preferred course. This is, however, the province of the jury to make any such allocation. "It is the duty of the triers of the facts to determine what damage was caused by each party's act or negligence, even if the acts were concurrent, but the jury can only do the best job of separating the damages that the evidence allows."Id. In the case sub judice it was unclear from the evidence whether the termite damage in the back room would have been discovered but for Defendant Ferry's negligence in failing to provide the buyer with a copy of the termite report. The jury apparently accepted the position that all of the damage, both in the cellar and the back room, can be attributed to Ferry, though his overall culpability was less than that of the homeowner. It is not unreasonable to infer that had Plaintiff received the report a closer examination would have followed. That is reflected in the verdict as returned.

One could claim that this was the only possible way that the jury could have apportioned the damages, considering the language of the "Joint Tortfeasors" jury instruction. However, as the Court noticed in Grand Ventures v. Whaley, Del. Super., 622 A.2d 655 (1992), there is a conceptual difference between what the jury instruction asks for and what the defendant is asserting. Fault and liability are not necessarily synonymous. Id. at 665. In the instruction, the jury is charged with determining the relative degree of fault of each defendant. This assists the Court in apportionment of damages; the jury does not apportion liability.

No manifest injustice is present here. The jury instructions were clear and Defendant Ferry did not object to the ones pertinent to this issue. The jury returned a verdict that reflects an understanding of the jury instructions, and apportioned fault as it saw fit. A new trial is not warranted in this case on this basis. Nor is limiting joint liability necessary here.

One note concerning the apportionment of damages is necessary, however. As was stated in the jury instructions, the plaintiffs contributory negligence is applicable only to reduce the damages attributable to the negligence of Defendant Ferry. Contributory negligence does not operate to reduce the liability under a theory of fraud. Estate of Braswell v. People's Credit Union, R.I. Supr., 602 A.2d 510, 515 (1992); Stella v. Dean Witter Reynolds, N.J. Super., 574 A.2d 468, 479 (1990). Therefore, the $20,000 award shall not be reduced by an overall 5%, as the jury set the degree of plaintiffs culpability. Instead, the total reduction of the award is only $200, reflecting the apportioned negligence of Defendant Ferry, less the comparative fault of the plaintiff.

Janas "Motion to Amend the Judgment

The Plaintiff moves for pre-judgment interest on the award. Such interest is available as a matter of right where the damages are of a pecuniary nature and are capable of calculation prior to judgment. Summa Corp. v. Trans World Airlines, Inc., Del. Supr., 540 A.2d 403 (1988);Moskowitz v. Mayor and Council of Wilm., Del. Supr., 391 A.2d 209 (1978); Rollins Environmental Services. Inc. v. WSMW Industries. Inc., Del. Super., 426 A.2d 1363 (1980); E.M. Fleischmann Lumber Corp. v. Resources Corp. Int'l, D. Del., 114 F. Supp. 843 (1953). It is not necessary that the damages be liquidated or that a market exists from which a valuation can readily be attained. Rollins, supra, at 1366. Testimony as to the pecuniary nature of the claim is all that is required. Id. Typically removed from this realm are personal injury type cases. Id.

In the case at hand, it is undeniable that the value of the injury is calculable. Simply because the precise amount of the damage was not ultimately fixed until the award was rendered, does not diminish its pecuniary nature. Applying such logic would result in never finding prejudgment interest is allowable, because the exact value of any given case is not determined until the finder of fact returns a verdict. Here, there was testimony regarding the value of the damage to Janas' house. Pre-judgment interest is appropriate so long as no other mitigating circumstances exist to defeat what would otherwise rightfully be due the plaintiff.

One such mitigating factor would be undue delay on the part of the plaintiff Delay constitutes grounds to reduce or eliminate the right to pre-judgment interest. Summa, supra; Moskowitz, supra. The defendants claim that Janas has forsaken her right to such interest by delaying her cause. While it is true that Janas did not file her claim until just before the passage of the statutory time limit for bringing her action, that, in itself is not necessarily sufficient grounds to reduce recovery of pre-judgment interest. "A plaintiff's claim to pre-judgment interest is so inextricably bound up with the plaintiff's cause of action as to enjoy the convenience which the statute of limitations affords the plaintiff in filing his cause of action within the period of the statute."Getty Oil Co. v. Catalytic. Inc., Del. Super.. 509 A.2d 1123, 1125 (1986).

To otherwise hold would turn a blind eye to the fact that constructive negotiation and conciliation often takes place while the statutory period is running, and such discussion often results in resolution of the entire controversy. If filing late in the period were to be grounds for denial of pre-judgment interest, the balance of diplomacy involved in settlement talks would be upended by the initiation of litigation. The Plaintiff will not be punished for exercising her rights timely and no other instances of undue delay on the part of the Plaintiff have been presented to this Court or are readily apparent on the record. Therefore, pre-judgment interest is appropriate and shall be awarded in this case.

CONCLUSION

For the foregoing reasons, these pending motions are decided in the following manner. Defendant Biedrzycki's motion for judgment as a matter of law or for a new trial is hereby denied. Defendant Ferry's motion for a new trial should be denied and his motion for amended judgment is also denied. Finally, Plaintiffs motion to amend the judgment to add pre-judgment interest is granted.

IT IS SO ORDERED.

IN RE EPPERSON In Re Kevin S. Epperson C.A. No: 94-08-1484, 1485(R2) Superior Court of the State of Delaware October 5, 2000

Re: Criminal Action No. 94-08-1484, 1485 (R2) Def. ID#9408009291 Motion for Postconviction Relief

T. HENLEY GRAVES

Dear Mr. Epperson:

The Court is in receipt of Kevin S. Epperson's pro se motion for postconviction relief under Superior Court Criminal Rule 61("Rule 61"). I have reviewed same together with his file and the following is the Court's decision on the motion.

Factual Background

On March 12, 1996, the defendant was found guilty of unlawful sexual contact in the second degree, as a lesser included offense of unlawful sexual intercourse. He also was found guilty of kidnapping in the first degree. The State moved to have the defendant declared an habitual offender. The State's application was granted. The defendant was sentenced on May 6, 1996. On the unlawful sexual contact offense, he was sentenced to a period of incarceration of forty years. On the kidnapping charge, the defendant was sentenced to incarceration of twenty years, which was suspended after serving twelve years.

The defendant appealed to the Delaware Supreme Court, which affirmed the defendant's conviction on February 6, 1997. In that appeal, the defendant raised an ineffective assistance of counsel claim which was determined to be premature. He also attacked the sufficiency of the evidence as to the kidnapping charge. The Supreme Court ruled that by taking the victim to a remote location, more than a quarter mile from her home, and sexually assaulting her, there existed evidence of restraint in excess of that which was necessary for the commission of a sexual assault. The Supreme Court found evidence sufficient to support the separate conviction of kidnapping in the first degree. Kevin S. Epperson v. State of Delaware, Del. Supr., 214, 1996, Walsh, J. (February 6, 1997)(ORDER).

On February 18, 1998, the defendant filed his first motion for postconviction relief under Rule 61. In same, he raised sixteen issues including, but not limited to, ineffective assistance of trial counsel, improper sentencing under 11 Del. C. § 4214(a) as to his habitual offender sentence, and an attack on the Court's kidnapping instructions as to whether there had been proof the victim was restrained in a manner exceeding that which was necessary for the commission of the crime of sexual assault. This Court denied the defendant's first motion for postconviction relief on January 3, 1998. Epperson v. State of Delaware, Del. Super., Cr.A. No. 94-08-01484, 1485 (R1)(NCC), Graves, J. (April 20, 1998). The Delaware Supreme Court affirmed this decision on January 6, 1999. Epperson v. State of Delaware, Del. Supr., No. 263, 1998, Holland, J. (January 6, 1999)(ORDER).

Grounds

In the present motion, the defendant attacks the attorney who represented him on the direct appeal. He alleges as follows:

Ground one: Appellate counsel did not present issues on appeal that appellant wanted him to present;

Ground two: Appellate counsel failed to file "a successful direct appeal" and failed to attack the jury instructions under the Webber decision;

Ground three: Appellate counsel was ineffective for not attacking the habitual offender sentence after the defendant so requested;

Ground four: Appellate counsel was ineffective for not filing a direct appeal on rulings as to his suppression motion.

When reviewing a motion for postconviction relief under Rule 61, this Court first must consider the procedural requirements of the rule before addressing any substantive issues. If the claim is procedurally barred, then it should be dismissed on the procedural grounds and the substantive issues should not be addressed. Younger v. State, Del. Supr., 580 A.2d 552 (1990).

I find that the defendant's present application must be dismissed as all claims are procedurally barred.

Under Superior Court Criminal Rule 61(i)(1), a defendant must file a Rule 61 motion within three years from the date that his conviction became final. The date of the mandate returning the case to Superior Court following the conviction being affirmed on direct appeal by the Supreme Court is February 24, 1997. Therefore, if the defendant chose to attack anything his appellate counsel did concerning the direct appeal, he had three years from the date of the mandate. In fact, he did file a motion for postconviction relief within that three year period, but did not raise the issues concerning ineffective assistance of appellate counsel. The present motion for postconviction relief, having been filed on August 30, 2000, comes too late and is procedurally barred by the statute of limitations. Thus, all grounds are procedurally barred under Rule 61(i)(l).

Additionally, ground two is procedurally barred under Rule 61(i)(4), as there has been a previous adjudication by the Supreme Court on his direct appeal as to the "Webber" issue, and the Supreme Court found "restraint" in excess of that necessary for the commission of the crime of sexual assault. Thus, this question has been previously adjudicated.

Additionally, ground three is procedurally barred as the defendant raised the question of the proper applicability of the habitual offender statute in his first motion for postconviction relief, and the decision thereon was affirmed on appeal. It is likewise barred under Rule 61(i)(4) as having been previously adjudicated.

Additionally, ground four is procedurally barred under Rule 61(i)(3). The defendant has not shown why the suppression issues were not raised on direct appeal or in his previous motion for postconviction relief to this Court. Nor has he shown any prejudice.

None of the bars are inapplicable in that the defendant has not shown this Court lacked jurisdiction. Nor has he shown a colorable claim that there was a miscarriage of justice because of the constitutional violation that undermined the fundamental legality and integrity or fairness of the proceedings leading to his conviction.

For these reasons, defendant's motion for postconviction relief is denied.

IT IS SO ORDERED.