CourtListener 10864456•Hsia v. KAPG Hockessin
Texte intégral
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
The Estate of Shyuan Hsia, by and )
through Lynn Chao, Executrix and )
Personal Representative of the Estate )
of Shyuan Hsia, et al., )
)
Plaintiffs, )
v. ) C.A. N25C-04-270 FJJ
)
KAPG Hockessin Senior Housing )
Opco, LLC, d/b/a The Summit, )
Hockessin Senior Housing I, et al., )
)
Defendants, )
v. )
)
Kevin Kelly, Thomas Terranova, )
Timothy Terranova, et al., )
)
Third-Party Defendants. )
Submitted: May 19, 2026
Decided: May 26, 2026
OPINION AND ORDER
On Defendants Timothy and Thomas Terranovas’
Motion for Fees and Costs
GRANTED in part; DENIED in part.
Timothy A. Dillon, Esquire, McCann, Dillon, Jaffee & Lamb, LLC, Wilmington,
Delaware, Attorney for Plaintiff.
Don Gouge, Esquire, Wilmington, Delaware, Attorney for Third-Party Defendant
Kevin Kelly.
Kevin Buttery, Esquire, Wilmington, Delaware, Attorney for Defendant KAPG
Hockessin Senior Housing OPC, LLC.
Randall S. MacTough, Esquire and Colleen Shields, Esquire, Eckert Seamans
Cherin & Mellott, LLC, Attorneys for Third-Party Dr. Carolyn Ianni.
Maria Granaudo, Esquire, Burns and White, Wilmington, Delaware, Attorney for
Third-Party Defendant Dr. Jennifer Christian.
Jennifer Sutton, Esquire, O’Hagan Meyer, Wilmington, Delaware, Attorney for
Defendant American Trust Senior Care, LLC, Virginia Gray, Hockessin Senior
Housing I.
Robert M. Greenberg, Esquire, Tybout, Redfearn & Pell, Wilmington, Delaware,
Attorney for Third-Party Defendant Timothy Terranova.
Maura L. Burke, Esquire and Carl Neff, Esquire, Pierson Ferdinand, LLP,
Wilmington, Delaware, Attorneys for Defendant Discovery Senior Living, LLC.
John D. Balaguer, Esquire and Claire McCudden, Esquire, Balaguer, Milewski &
Imbrogno, Wilmington, Delaware, Attorneys for Third-Party Defendants Thomas
Terranova and Timothy M. Terranova.
Jones, J.
2
This matter arises from the fatal assault of Shyuan Hsia (“Hsia”) by Kevin
Kelly (“Kelly”) while Hsia was under the care of KAPG Hockessin Senior
Housing OPCO, LLC D/B/A The Summit (hereinafter referred to as “Summit”).
Summit is a licensed Assisted Living Facility that operates the Shine Memory Care
Unit (“MCU”) to care for residents with Alzheimer’s, dementia or other
mental/memory impairments. Kelly and Hsia were residents in Summit’s MCU.
It is alleged that on August 5, 2024, while both were under the care of Summit,
Kelly, who suffers from dementia, entered Hsia’s private room and assaulted her,
leading to her death. Hsia’s estate and beneficiaries filed suit against Summit
alleging that Summit’s negligence caused her death.
Timothy Terranova and Thomas Terranova are each the nephew and power
of attorney for Kelly. Timothy has power of attorney over medical decisions under
Delaware Code Title 16 Chapter 25, and both Timothy and Thomas have durable
personal power of attorney under Delaware Code Title 12, Chapter 49A.
Summit filed an original third-party complaint against a number of
defendants, including Timothy and Thomas.1 In its original third-party complaint,
Summit alleged that as POAs for Kelly, Timothy and Thomas, “were responsible
for making decisions necessary for Kevin Kelly’s health and wellbeing, as well as
arranging for and facilitating his personal and health care services not provided by
1
Docket Item (“D.I.”) 16.
3
the Summit.”2 Summit contended that Timothy and Thomas failed to fulfill these
duties while Kelly was a resident at Summit by poorly managing his medication
regiment in light of advancing mental deterioration and concerns of aggressive
behavior. Summit claims that Timothy and Thomas were negligent in their
capacity as POAs which resulted in Kelly’s assault of Hsia and the subsequent
injuries and death for which plaintiffs allege damage in the underlying complaint.
Summit sought contribution and/or indemnification from Timothy and Thomas.
Timothy and Thomas filed a motion for judgment on the pleadings.3 The
argument advanced by Timothy and Thomas was that they owed no duty to
Summit or Hsia and, as such, a claim based on negligence was not proper. At the
February 20, 2026 oral argument on the motion for judgment on the pleadings,
Summit conceded that there was no legal authority to support an argument that
Timothy or Thomas owed a duty to either Summit or Hsia. Summit requested that
the Court grant them leave to file an amended third-party complaint. Summit filed
its motion to file an amended third-party complaint and attached to the motion the
proposed amended third-party complaint. 4 The proposed amended complaint
reasserted the original allegations and added allegations based on fraud by
Timothy and Thomas. Timothy and Thomas opposed the motion. 5 On March 24,
2
Id. at ¶12.
3
D.I. 92.
4
D.I. 157.
5
D.I. 164.
4
2026, this Court issued a written opinion and order denying Summit’s motion to
amend as futile and granting the Terranovas’ motion for judgment on the
pleadings. 6 The Court ruled that Summit’s negligence claim failed because the
Terranova brothers owed no legal duty to Summit. As to the fraud claim, the Court
found that Summit merely alleged a sense that there was information being
withheld by the Terranova brothers, but this sense was nothing more than a bare
allegation stated without the necessary particularly or element of reliance. The
Court concluded that Summit could not establish the reliance element of fraud for
two reasons: 1) Kelly had been in Summit’s care for almost a year prior to the
deadly assault; and 2) Summit was aware that three weeks before the alleged attack
on the decedent Kelly had attacked another resident while he was a resident at
Summit, and Summit was aware of this incident before the attack in question.
The Terranovas’ have requested that this Court award them attorney’s fees
and costs maintaining that Summit’s third-party filing amounted to filing and
pursuing a frivolous claim which would justify such an award. 7 Summit opposes
the motion. 8
Delaware follows the American Rule as to the award of attorneys fees.9
Generally, the American Rule states that parties must cover their own litigation
6
D.I. 176.
7
D.I. 206.
8
D.I. 216.
9
In re Delaware Public Schools Litigation, 312 A.3d 703, 715 (Del. 2024).
5
costs. However, there are a few exceptions to the rule. One such exception is the
“Bad Faith Exception,” 10 which has been recognized by both the US Supreme
Court11 and Delaware Courts. The Chancery Court in Beck v. Atlantic Coast PLC
provided a general outline of the exception:
The bad faith exception to the American Rule applies in
cases where the court finds litigation to have been
brought in bad faith or finds that a party conducted the
litigation process itself in bad faith, thereby unjustifiably
increasing the costs of litigation. There is no single
standard of bad faith that warrants an award of
attorneys' fees in such situations; rather, bad faith is
assessed on the basis of the facts presented in the case.
Courts have found bad faith conduct where parties have
unnecessarily prolonged or delayed litigation, falsified
records, or knowingly asserted frivolous claims.
Specific behavior that has been found to constitute bad
faith in litigation includes misleading the court, altering
testimony, or changing position on an issue. The bad
faith exception is not lightly invoked. The party seeking
a fee award bears the stringent evidentiary burden of
producing “clear evidence” of bad-faith conduct.12
“[T]he bad faith exception applies only in extraordinary cases, and the party
seeking to invoke that exception must demonstrate by clear evidence that the party
from whom fees are sought ... acted in subjective bad faith.”13 “Although there is
no single definition of bad faith conduct, courts have found bad faith where parties
10
Johnston v. Arbitrium (Cayman Islands) Handels AG, 720 A.2d 542, 545 (Del. 1998).
11
Chambers v. NASCO, Inc., 501 U.S. 32 (1991); Christiansburg Garment Co. v. Equal Emp. Opportunity Comm'n,
434 U.S. 412, 419, 422 (1978).
12
Beck v. Atl. Coast PLC, 868 A.2d 840, 850–51 (Del. Ch. 2005) (citations omitted) (emphasis added).
13
Lawson v. State, 91 A.3d 544, 552 (Del. 2014) (quoting Dover Historical Soc'y, Inc. v. City of Dover Planning
Comm'n, 902 A.2d 1084, 1093 (Del. 2006)) (also quoting Auriga Capital Corp. v. Gatz Properties, LLC, 40 A.3d
839, 880 (Del.Ch.2012), aff'd, 59 A.3d 1206 (Del. 2012)) (internal quotation marks omitted).
6
have unnecessarily prolonged or delayed litigation, falsified records or knowingly
asserted frivolous claims.” 14 “Bad faith conduct also can include reversing
position on issues and changing testimony to suit the moment.” 15 However, “the
bad faith exception does not apply to conduct that gives rise to the substantive
claim itself.”16 “Accordingly, ‘an award of fees for bad faith conduct must derive
from either the commencement of an action in bad faith or bad faith conduct taken
during litigation, and not from conduct that gave rise to the underlying cause of
action.’”17 “The purpose of [the] bad faith exception is to deter abusive litigation
in the future, thereby avoiding harassment and protecting the integrity of the
judicial process.”18
Whether the bad faith exception applies in this case turns on whether
Summit knowingly asserted a frivolous claim. Once the Terranovas filed their
motion for judgment on the pleadings, it was incumbent on Summit to squarely
and truthfully address the question of whether the Terranovas owed a duty to
Summit. In its response to the original motion for judgment on the pleadings
Summit did not address the duty argument made by the Terranovas. At oral
14
Johnston v. Arbitrium, 720 A.2d at 546 (multiple citations omitted).
15
In re Rural Metro Corp., 88 A.3d 54, 109 (Del. Ch.), decision clarified on denial of reargument sub nom. In re
Rural Metro Corp. S'holders Litig. (Del. Ch. 2014) (quoting In re Trados Inc. S'holder Litig., 73 A.3d 17, 78 (Del.
Ch. 2013)) (internal quotation marks omitted).
16
Johnston v. Arbitrium, 720 A.2d at 546 (citing Shimman v. International Union of Operating Engineers Local
18, 744 F.2d 1226, 1230 (6th Cir. 1984), cert. denied 469 U.S. 1215).
17
Versata Enters., Inc. v. Selectica, Inc., 5 A.3d 586, 607 (Del. 2010) (citing Johnston v. Arbitrium, 720 A.2d at
546).
18
In re Rural, 88 A.3d at 109 (quoting Kaung v. Cole Nat'l Corp., 884 A.2d 500, 506 (Del. 2005)) (internal quotation
marks omitted).
7
argument on the motion, Summit admitted to the Court that they could find no
legal authority for the proposition that the Terranovas’ owed a legal duty to
Summit. Rather than conceding that no claim existed against the Terranovas,
Summit sought leave to file an amended complaint to add a claim based on fraud.
The proposed fraud claim was ultimately dismissed because there was no factual
or legal basis for the claim. In fact, the claim was made when Summit knew that
Kelly had assaulted another resident of Summit while he was in the care and
custody of Summit, and this assault occurred a mere three weeks prior to the attack
in the instant case. Additionally, this assault occurred almost a year after Kelly
had been at Summit.
On this record the Terranovas have met their high burden in demonstrating
that this is one of those extraordinary cases justifying a shifting of fees. I find the
Terranovas are entitled to an award of attorney’s fees against Summit for all fees
incurred after the filing of the original motion for judgment of the pleadings. It
was at this point that it must have been clear to Summit that its third-party
complaint had no basis in either law or fact. The Terranova brothers, through
counsel, warned Summit’s counsel that it would seek attorney’s fees and costs if
Summit did not dismiss or withdraw the third-party complaint against them.19
19
The Terranovas also seek the imposition of fees under Superior Court Civil Rule 11. Rule 11 requires that the
Motion be served upon the opposing party at least 21 days before it is filed and served with the Court. While
there was notice to Summit by the Terranovas about filing a Rule 11 motion, the Rule 11 motion was not sent 21
8
Summit failed to head the Terranovas’ request and proceeded with the filing of the
amended third-party complaint which doubled down on their original complaint.
I am not persuaded that the Terranovas are entitled to fees before the filing
of the motion for judgment on the pleadings. Up until that point, the Terranovas
have not presented sufficient clear and convincing evidence that Summit was
acting subjectively in bad faith.
Within 10 days of the date of this order the Terranovas should file and advise
the Court of the amount of fees to which they are entitled based on this decision.
The Terranovas, without violating any privilege, should provide more details for
the time being sought.
The Terranovas are the prevailing party. As such, they are entitled to
ordinary court costs. The Terranovas have attached to their motion a listing of
costs they are seeking to recover. I will award the items listed as filing fees and
process server fees. I need a further explanation as to the other charges, especially
the court reporter fees, as to whether they are recoverable. Within 10 days of the
date of this decision the Terranovas should provide the Court with a more detailed
explanation of the Court reporter fees, including an identification of the transcript
involved, the deponent and the date of the proceeding being transcribed. The
days in advance as required by the rules. Even if the Terranovas had complied with Rule 11, any relief under Rule
11 would be duplicative of the relief I have fashioned under the bad faith exception.
9
Court will analyze the award of these costs as it normally does when costs are
being requested for transcript fees post-trial.
IT IS SO ORDERED.
/s/ Francis J. Jones, Jr.
Francis J. Jones, Jr., Judge
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