IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

JACOB HARRISON, ) ) Plaintiff
, ) )

v. ) C.A. No. 7142

- ML ) ROSEANN DIXON, individually and as ) Administratrix of the Estates of Remell ) Harrison and Clarence Harriso n ) a/k/a Clarence Harrison, Jr., ) DELAWARE INVESTMENT SERVICES, ) INC., a Delaware corporation, NIEAISHIA ) N. DOLLARD, and SHIRLEY HARRISON ) ) Defendants. )

MASTER’S REPORT

Draft Report: April 17, 2014 Exceptions Submitted: Decem ber 8, 2014 Final Report: February 20 , 2015

David J. Ferry, Jr., Esquire and Brian J. Ferry, Esquire, of FERRY JOSEPH & PEARCE, P.A. , Wilmington, De laware; Attorneys for Plaintiff

.
Thomas C. Marconi , Esquire of LOSCO & MARCONI, P.A.
, Wilmington, Delawa re; Attorney for Defendants

.

LEGROW, MasterA woman who intentionally misrepresented herself as the sole heir to her father’s

estate in order to avoid sharing the estate with her siblings and their issue now
acknowledges her brother’s right to a sh are of the estate, but contends the amount he is
owed should be reduced by undocumented expenses she claims she incurred and a

settle ment her brother received from another defendant in this action

. Because the
defendant has not shown that the judgment sho uld be reduced by either amount, her

brother is entitled to one

- sixth of the value of the estate and one

- sixth of the proceeds

from the sale o f their parents’ home, plus pre

– and post

– judgment interest and costs.
This is my final report.

BACKGROUND

These are the facts as I find them after trial. The plaintiff
, Jacob Harrison
(―Jacob‖)
, 1 and defendants, Roseann Dixon (―Roseann‖ ) and Shirley Harrison
(―Shirley‖)
, are siblings. Their parents
, Remell (―Remell‖) and Clarence (―Clarence‖)

Harrison
, had six chi ldren between them who either survived them or predeceased them
but left living issue. 2 Remell passed away on May 24, 2004. 3 Clarence passed away ten

months later on April 7, 2005. 4 Both died intestate. 5 Roseann had power of attorney for

1 I use the parties’ first names for the sake of clarity. No disrespect is intended. 2 Verified Am. Com pl. ¶ 7. 3 Joint Trial Exhibit (hereinafter ―JX‖) 1. 4 JX 2. 5 JX 1, 2.2

both Clarence and Remell. 6 At the time of Clarence’s death, he was the sole owner of a

residence located at 2919 W. 3 rd Street, Wilmington, Delaware 19805 (the ―Property‖)

. 7
Roseann was appointed as personal re presentative of both estates. 8 When she
applied to be ap pointed, and on several occasions thereafter, Roseann misrepresented to
the Register of Wills that she was the sole next of kin for both of her parents

. 9 At trial,
Roseann testified that she did this because her parents had instructed her to disinherit th e

other children

. 10 Based on her false statements identifying herself as sole heir, Roseann

held herself out as the record owner of the P roperty and distributed her parents’ estate s according to what she believe d their wishes to be
, without regard for Dela ware ’s intestate

succession laws

. 11
The gross amount Roseann obtained through her misrepresentations is
$179,371.69 , consisting of: (1) $130,991.62 in net proceeds from a personal injury
settlement for Remell; 12 (2) $37,741.53 in net proceeds from the sale of the Property ; 13

(3) $5,638.54 in net proceeds from a personal injury settlement for Clarence; 14 and (4) a $5,000 .00 life insurance policy that was received for Clarence and used to pay his funeral

6 Verified Am. Compl. ¶ 8. 7 Pl.’s Answ. Br. to Def.’s Exceptions to the Master’s Draft Report. (hereinafter ―Answer‖) at 3. 8 Harrison v. Dixon , C.A. No. 7142

- ML (April 17, 2014) (TRI AL TRANSCRIPT) (hereinafter ―Tr.‖) at 190. 9 JX 1

- 4. 10 Tr. at 91. 11 Tr. at 7. 12 The settlement was received after Remell’s and Clarence’s deaths. Although the settlement

was for $200,000.00, this is the net figure after costs and attorneys ’ fees. JX 12. 13 JX 9. 14 JX 12.3

expenses. 15 Roseann cashed the checks for t he personal in jury settlement and the sale of

the P roperty the same day she received them. 16 She testified that she shared half of the
proceeds with her sister Shirley and kept half for herself

. 17

Roseann held the P roperty for over three years before selling it

. She al lowed
friends and family to live in the home without paying rent or initiating eviction
proceedings. 18 At some time in 2007 or 2008, s he was contacted by Delaware Investment

Services (―DIS‖) and ultimately sold the P roperty to DIS in August 2008 for $56,50 0. 19
Roseann sold the property as though she were its sole owner, based on her earlier sworn
misrepresentations to the Register of Wills. Three months later, DIS sold the property to

Nieaishia Dollard (―Dollard‖) for $130,000 .00

. 20 Jacob was unaware of an y of th e se

events until he discovered that his parents’ home had been sold when he performed an

online search. 21

Jac ob f iled a verified c omplaint in December 2011 against Roseann, DIS , and
Dollard alleging (1) fraudulent conveyance, (2) constructive t rust , (3) a d emand for an accounting, and (4) unjust e nrichment. DIS and Dollard both answered the complaint
and asserted crossclaims against Roseann

. Roseann filed an answer in March 2012.

Jacob filed an amended c omplaint in October 2012 naming Shirley as an additional

15 Deposition of Roseann Dixon (June. 29, 2012) (hereinafter ―Dixon Dep.‖) at 46

- 47. 16 Tr. at 113, 120. 17 Tr. at 113. 18 Tr. at 128

- 29. 19 JX 9. Although DIS bought the property for $56,500.00, the proceeds were reduced by the following e xpenses: (1) $16,966.32 to CitiFinancial, Inc. to pay off the mortgage; (2) $1,665.55 for settlement charges; (3) $52.70 for city taxes from July 1, 2008 to August 15, 2008; and, (4) $73.90 for county taxes from July 1, 2008 to August 15, 2008. Id

. 20 Id

. 21 Id

.4

Defendant. DIS and Dollar d again answered and asserted c ross claims

. A default
judgment was granted against Shirley on December 14, 2012. Jacob reached a settlement
with DIS and Dollard in the amount of $14,000 .00 , and these two d efendants were dismissed with prejudice from the case on November 15, 2013. 22
It is undisputed that Jacob is entitled to one

- sixth of Clarence’s estate und er Delaware’s intestacy laws ; t he dispute between the parties is whether that amount should
be offset by certain expenses and the settlement Jacob received. Particularly, the parties
dispute the amount of expenses to be deducted either from the estate or the proceeds from

the sale of the Property. Roseann claims that she is entitled to deduct $40,888.00 in

expense s related to the upkeep of the P roperty, even though she lack s receipts for most of
these expenses. 23 The expenses include: $707.50 in Register of Wills costs, $10,574.03
for funeral expenses for Clarence and Remell, $17,000 .00 for mortgage and utility

pa yments from April 2005 to July 2008, $1,960 .00 for water and sewer charges from
January 2006 to December 2007, $3,991.47 for city and county property taxes, $130 .00
for homeowners’ insurance, $50 .00 for a 2008 city code violation, $2,000 .00 to pave the

bac kyard, $2,975 .00 for mold removal, and $1,500 .00 for wee kly lawn care from October

2005 to July 2008. Additionally, she claims that the $1 4 ,000 .00 payment Jacob obtained
in exchange for a release of claims against DIS and Dollard should be ―credited‖ agai nst

22 See Joint Stipulation and P re

- T rial Order (hereinafter ―Pre

- Trial Order‖) ¶ 1 at 3; Tr. at 21. 23 Def.’s Opening Br. in Supp. of her Exceptions to the Master’s Draft Report (hereinafter

― Def.’s Br. ‖ ).5

the judgment he receives

. 24 Strangely, although Roseann treats these as estate expenses,
she did not sell the Property as part of the probate process.

At trial , I issued a draft report from the bench concluding that Jacob Harrison is

entitled to one

- si xth of the net estate and one

- sixth of the proceeds from the Property in

the total amount of $28,721.03
, plus interest beginning in May 2006. I deemed $6,290.26
of this judgment to be a joint and several judgment against Roseann Dixon and Shirley

Harrison

. 25 Roseann filed e xceptions to my draft report on May 5
, 2014. I heard o ral
argument on December 8, 2014.

ANALYSIS

There are three disputes between the parties: (1) whether Jacob’s recovery should
be reduced by a share of the expenses related to the up keep of the home, (2) whether

Jacob’ s recovery should be reduced by the amount of his settlement with an independent

party , and (3) whether Jacob is entitled to attorneys ’ fees and costs

.
I. Reduction of Recovery

a. Expenses
Roseann argues that the Court should deduct from Jacob’s recovery one

- sixth of

the $40,888.00 Roseann claims as estate and related expenses

. 26 Jacob argues that these

expenses are not estate expenses , but instead relate to the maintenance of the home after
both their parents passed away

. In addition, Jacob argues that even if these were estate

24 Tr. at 132

- 33. Roseann argues that she should receive a $15,000.00 settlement credit , but the amount of the settlement was $14,000.00. 25 Tr. at 200. 26 Def.’s Br. at 11.6

expenses, they were not timely submitted against the estate, they were not listed on

Roseann’s Register of Wills filings for their parents’ estate, and there is no doc umentary

evidence aside from Rosean n’s own testimony to support these expenses. 27 Roseann
acknowledges her many mistakes, but argues that despite those errors, the Court ’s only

concern should be correctly calculating the net estate and distributing the assets to the

heirs in accordance with the intestacy statute. 28

In this case, t he only debts that properly can be deducted from the estate are the
Register of Wills costs and the funeral expenses for Claren ce Harrison because these are
the only estate expense of w hich Roseann can show proof

. As to the remainder of the
expenses, there are at least five reasons why they cannot be used to reduce Jacob’s

recovery

. First, whether these are estate expenses or expenses incurred by a joint owner of
the Property, Roseann did not provide any proof bey ond her own testimony as to the
amount of those expenses

. In fact, she herself is not certain of the magnitude of those
expenses because she kept no receipts, dealt primarily in cash, and retained no copies of

the bills. 29 She contends that circumstantial evidence proves that someone was paying
the mortgage and various expenses for the P roperty , and argues that it was her. T he fact
, however, that someone was paying for these expenses does not mean that Roseann was that person

. It is equally possible that the mortgage was paid by the persons Roseann

allowed to live in the home. Nor does it mean that the expenses totaled $40,888.00.

27 Answer at 15. 28 Def.’s Br. at 11. 29 Tr. at 84, 115.7

Given her numerous sworn misrepresentations, Roseann’s testimony is not sufficient

evidence on this issue

. Second, even if t here was evidence to establish these expenses, most if not all of
these expenses relate to the upkeep of the home after Clarence and Remell passed away.

Under Dela ware law, once Clarence died
, ownership o f the property passed by operation

of law to his he irs

. Roseann, however, asserted sole ownership of the property through
her misrepresentations to the Register of Wills and did not sell the Property for three

years

. In that time, while failing to apprise the other co

- owners of their interest, Roseann

di d not maintain the Property. In fact, the final residents of the home only left when it

became un inhabitable because of overgrown mold caused by broken pipes. 30 In other
words, in the three years she controlled the Property, Roseann allowed it to become a
wasting asset. By her own words, the home was in such ―disrepair that nobody could live

in it.‖ 31 Because the expenses Roseann claims were not incurred in her capacity as
administrator of her parents’ estate s and did not increase the value of the Propert y,

Roseann cannot claim that they are estate expenses and cannot claim that she is entitled

to set

- off the expenses against the other intestate heirs to the Property. 32
Similarly
, Roseann cannot ask Jacob to contribute to the expenses for the upkeep

of a h ome from which he was specifically excluded

. Although Roseann argues Jacob

30 Tr. at 130. 31 Tr. at 130

- 31. 32 See 25 Del. C. § 733 ; see also Wilson v. L ank , 107 A. 772, 773 (Del. Ch. 1919) (the measure of cotenants’ right to compensation is not the cost of the improvement, but the enhanced value of the premises).8

never expressed an interest in living in the residence
, 33 the record shows Jacob never had
the opportunity to do so because he was not aware of his interest

. Instead, Roseann

asser ted sole authority over the home and mis represented that authority i n various legal

documents. She retained possession of the residence for over three years before finally
selling it. She alone enjoyed sole access to the Property and cannot now claim tha t
another owner, who m she intentionally excluded, must contribute to expenses associated
with the upkeep of th is home. 34

The final two reasons Roseann cannot offset these expenses against Jacob’s award

are interrelated: to the extent the expenses could be considered estate expenses, t hey

were not listed on the first and final accounting that Roseann herself filed and Roseann

did not seek timely reimbursement for them

. Because this action comes ten years too

late , any reimbursement she may seek is barred b y statute

. 35

b. The Settlement and the Application of the Collateral Source Rule
Roseann next argues Jacob’s award should be reduce d by the amount that he

received from his settlement with DIS and Dollard. She believes Jacob’s recover y should
be reduced by t his amount because he otherwise would receive a windfall. Jacob argues

that the settlement with DIS and Dollard is a ―collateral source‖ that should not reduce
the judgment to which he is entitled.

33 Harrison v. Dixon , C.A. No. 7142

- ML ( Dec. 8, 2014) (TRANSCRIPT) (hereinafter ― Oral Arg. ‖ ) a t 15

. 34 See Matter of Charles B. McCaffrey , 1995 WL 347794, at *1 (Del. Ch. May 31, 1995) (cotenant in sole possession of property is not entitled to contribution from other cotenants for repairs to the property). Although a cotenant typically is entitle d to contribution for mortgage payments and taxes, Roseann has not shown the extent of those payments or that she

– rather than a third party

– actually made them. 35 12 Del. C. § 2102.9

Under the common law doctrine known as the collateral so urce rule, when an
independent source compensates an injured party, a tortfeaso r has no right to mitigate his
damages on the basis of those payments. 36 A person ―deemed legally responsible to
another cannot claim the benefit of the ability of the injured p arty to recover [ ] from a
third party expenses related to [the] injury.‖ 37 The rule is quasi punitive and is based on

t he rational e that the tortfeasor has no right to benefit from money received because of
the other party’s injury. 38 ―The collateral sour ce rule resolves what may be competing
equities in favor of the innocent injured plaintiff receiving a windfall, rather than an

a dmitted or adjudged tort

- feasor bearing less than the full cost of his or her negligent

conduct.‖ 39 In short, if the choice is between a victim and a tortfeasor receiving a
windfall, the law favors the victim.

Roseann argues the collateral source rule does not apply because its reach is

limited to tort claims and Jacob’s claims do not sound in tort

. 40 This argument both
ignores th e fiduciary obligations Roseann undertook as administrator of the estate and

misc onstrues the claims Jacob asserted against her

. An action for a breach of fiduciary

36 Yarrington v. Thornburg , 205 A.2d 1, 2 (Del. 1964). 37 Miller v. State F

arm Mut. Auto. Ins. Co. , 993 A.2d 1049, 1053 (Del. 2010) (citing Guy J. Johnson Transp. Co. v. Dunkle
, 541 A.2d 551, 553 (Del.1988) ). 38 Mitchell v. Haldar , 883 A.2d 32, 38 (Del. 2005); Yarrington , 205 A.2d at 2. 39 Med. Ctr. of Delaware, Inc. v. Mullins , 637 A.2d 6, 10 (Del. 1994) (citing State Farm Mut. Auto. Ins. Co. v. Nalbone, 569 A.2d at 71, 75 (Del. 1980)). 40 Roseann also does not contend that she is joint tortfeasor with DIS or Dollard. Under 10 Del. C. § 6304, known as t he Uniform Contribution Among Tortfeasors Act, when one joint tortfeasor reaches a settlement and is dismissed from a case, the liability of the remaining tortfeasor will be reduced by the amount of the settlement. Because Roseann does not contend that sh e is a joint tortfeasor with DIS or Dollard, and there was no judicial determination of that fact, I have not analyzed the application of that Act

.10

duty is characterized as a tort. 41 An administrator of an estate owes fiduciary duties to

the heirs or beneficiaries

. 42 Although not styled as a breach of fiduciary duty, Jacob’s
claim against Roseann for fraudulent conveyance 43 is premised on her misrepresentations
and faithless conduct as a fiduciary and therefore is much more akin to a fiduci ary claim

than contractual claim. I therefore conclude that the collateral source rule applies and

bars Roseann from claiming the benefit of the settlement. To conclude otherwise would
provide Roseann with a windfall. 44

II. Attorney’s Fees

Jacob also seeks h is attorney ’s fees a ssociated with defending the exceptions to
my draft report

. In 1796, the United States Supreme Court disallowed an award of

attorneys ’ fees to the winning part y under what has commonly been referred to as the

―American Rule.‖ 45 Under t he American Rule and Delaware law, litigants normally are
responsible for paying their own attorneys’ fees. 46 T his rule , however, is not absolute.
One of the recognized exceptions is when a party engages in bad faith litigation

. 47

Delaware courts will awa rd attorneys ’ fees only when a party is engaged in bad

faith conduct such as unnecessarily prolonging or delaying litigation, falsifying records
,

41 Deborah A. DeMott, Breach of Fiduciary Duty: On Justifiable Expectations of Loyalty and Their Consequences
, 48 A RIZ

. L. R EV

. 925, 926 (2006). See also In re Rural Metro Corp. , 88 A.3d 54, 98 (Del. Ch. 2014) (―A breach of fiduciary duty is an equitable tort‖). 42 See Mitchell v. Reynolds , 2009 WL 132881, at *9 (Del. Ch. Jan. 6, 2009)

. 43 Verified Am. Compl. ¶ 1 6

- 23. 44 Even if the settlement could offset a portion of Jacob’s recovery, it only could offset the portion of the judgment arising from the sale of the Property , or $6,290.26. Roseann can articulate no reason why Jacob’s settlement with the individuals wh o purchased the Property should offset an award unrelated to the Property. 45 Arcambel v. Wiseman , 3 U.S. 306, 306 (1796). 46 See e.g., Mahani v. Edix Media Gp., Inc. , 935 A.2d 242, 245 (Del. 2007). 47 See e.g., Johnston v. Arbitrum (Cayman Islands) Handels AG , 720 A.2d 542, 546 (Del. 1998).11

or knowingly asserting frivolous claims. 48 The court will not casually award attorneys’

fees under the bad fai th exception. 49 This exception is used only in extraordinary
circumstances to deter abuse of the judicial system. 50 J ust because a claim is not a ―winning‖ claim does not mean that it reaches the level of bad faith that entitles the other
side to attorneys ’ fees. 51 Under this stringent standard, I do not find that Roseann’s
exceptions were an attempt to prolong litigation, assert frivolous claims, or file any false

documents with the Court. Although the exceptions did not carry the day , they were not

entir ely without merit.

III. Motion for Costs
Jacob also request ed an award of costs in the amount of $2,134.20 to be entered
against Roseann and Shirley jointly and severally. 52 He req uests $1,177.00 for

LexisNexis filing charges, $524.00 in court costs, $216.00 f or Reed Elsenier and
LexisNexis per pages costs, $150.00 for investigative services, $150.00 for exhibit
storage and trial charges, $103.33 for service of process costs, $57.12 for the cost to
prepare exhibit books, and $5.75 for the cost of postage. 53 Ros eann argues that the costs
for postage, preparation of exhibit books, and exhibit storage and trial charges are not
―costs‖ within the meaning of the Court’s rule

. Additionally, Roseann argues that

48 Montgomery Cellular Holding Co. v. Dobler , 880 A.2d 206, 227

- 28 (Del. 2005) (quoting Johnston , 720 A.2d at 546). 49 Nagy v. Bistricer , 770 A.2d 43, 64 (Del. Ch. 2000). 50 Montgomery Cellular Holding Co.
, 880 A.2d at 227. 51 See P.J. Bale, Inc. v. Rapuano , 888 A.2d 232 (Del. 2005). 52 Although Jacob initially requested $2,841.65, during oral argument Jacob withdrew his request for $557.45, which represented the cost of a copy of Roseann’s deposition transcript. Oral Arg. at 27. 53 See Mot. to Assess Costs Against Defs., Ex. A.12

because she is only one of four defendants named in the a mended complaint , her liability
should be reduced to only one

- quarter of recoverable costs.
According to Court of Chancery Rule 54(d), Jacob, as the prevailing party
, is
entitled to ordinary costs as a matter of course. Generally, costs are assessed agai nst the
unsuccessful party to a proceeding unless justice requires otherwise. 54 For purpose s of
Rule 54, costs are those ―... incidental damages awarded by law to reimburse the
prevailing party for expenses necessarily incurred in the assertion of his rights in court.‖ 55
Roseann correctly states that Delaware courts have refused to award costs for items such
as photocopying and transcripts, 56 but the costs she challenges cannot fairly be placed in
that category.

In All Pro Maids, Inc. v. Layton , on which Rosea nn relies, an employment
agreement between the two parties stated that ―employee will be responsible for all court

costs (emphasis added) and attorney’s fees.‖ 57 Interpreting that language, the Court
explained that ―[c]ourt costs[] usually refe[r] to costs associat ed with filing papers in
court, obtaining service and so on.‖ 58 In addition, the Court interpreted ―court costs‖ to
be narrower in scope than the term ―costs‖ in Rule 54. In the present case, the contested
exhibit storage and trial charges fall i nto even this narrow er category of ―court costs.‖ In

54 See Canon v. Liberman , 1980 WL 81862, at *1 (Del. Ch. Jan. 30, 1980); see also In re First Account of Equitable Trust Co. , 30 A.2d 271 (Del. Ch. 1943). 55 Peyton v. William C. Peyton Corp. , 8 A.2d 89, 91 (Del. 1939). 56 Answ. To Mot. To Assess Costs ¶ 3 (citing All Pro Maids, Inc. v. Layton , 2004 WL 3029869, at *3 (Del. Ch. Dec. 20, 2004), aff’d 880 A.2d 1047 (Del. 2005)). 57 All Pro Maids, Inc. v. Layton , 2004 WL 3029869, at *1 (Del. Ch. Dec. 20, 2004), aff’d 880 A.2d 1047 (Del. 2005). 58 Id

.13

fact, this cost was assessed by the court itself. 59 As for the contested postage and costs to
prepare exhibit books, there has been no evidence presented that the costs were not
incurred as part of Jaco b’s assertion of his claims in court

. Finally, Roseann’s argument that as only one of the four defendants she should
only be assessed one

- fourth of the costs is equally without merit. First, DIS and Dollard

settled before trial and therefore cannot be ass essed costs. There are, therefore, two

defendants to this action who m I find to be jointly and severally

— not severally

— liable.
Accordingly, I recommend that the Court award Jacob costs in the amount of $2,134.20
to be entered against Roseann and Shirle y jointly and severally.

CONCLUSION
For the foregoing reasons, I recommend that the Court enter an order requiring

Roseann to pay Jacob $28,721.03 , plus costs and pre

- judgment and post

-

judgment

interest compounded quarterly at the legal rate

. This is my final report and exceptions
may be taken in accordance with Rule 144.
Respectfully submitted,

/s/ Abigail M. LeGrow Master in Chancery

59 Mot. To Assess Costs Against Defs., Ex. A.