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Thorton v. Schiavello

Superior Court of Delaware, Kent

June 5, 2014


Submitted May 8, 2014

Upon Inquisition Hearing.

Sean M. Lynn, Esquire of Baird Mandalas & Brockstedt, Dover, Delaware; attorney for the Plaintiffs.

Donald V., Pro se.

Bernadette Schiavello, Pro se.

Page 657


William L. Witham, Jr., Resident Judge.


Plaintiffs Eugenia Thorton [1] (hereinafter " Thorton" ) and Donald Jagger (hereinafter " Jagger," collectively " Plaintiffs" ) received an entry of default judgment against Defendants Donald Schiavello (hereinafter " Donald" ) and Bernadette Schiavello (hereinafter " Bernadette," collectively " Defendants" ). The Court subsequently held an inquisition hearing on two separate dates to determine the amount of damages. After careful consideration of the evidence presented, the Court has set forth its findings on damages below.


Due to the default judgment entered against Defendants, the sole issue in this case is the amount of damages for which Defendants are liable.

Put simply, the parties in this case are neighbors who had an acrimonious relationship towards each other that arose quickly after Plaintiffs moved into their home in Frederica in 2000. Both Thorton and Jagger have military backgrounds. Jagger suffers from a debilitating mental illness pre-dating the events in question that requires Thorton to essentially act as his caretaker. Soon after Plaintiffs moved in next door, Defendants engaged in a pattern of verbal abuse and confrontational behavior--often of the lewd and vulgar variety, but also occasionally threats of violence--against Thorton, her husband Jagger, and various guests Plaintiffs would have at their home. This behavior reached the point where Thorton felt compelled to keep detailed notes of every instance of Defendants' behavior, and eventually Thorton began using cameras to record the incidents.

The relationship between the neighbors continued to grow worse, particularly from approximately 2008 or 2009 to the present day. It appears, at some point during this time, that the parties disputed a boundary line between their properties. At another point, Defendant Bernadette was arrested for menacing for a confrontation she had with Thorton. Thorton also began suffering stress as a result of Defendants' conduct, and in September 2011 suffered a stress-induced cardiac attack.

Finally, on February 16, 2011, Plaintiffs filed a complaint against Defendants alleging claims of: assault; intentional infliction of emotional distress (hereinafter " IIED" ); trespass; continuing trespass; nuisance

Page 658

and private nuisance; and defamation. Defendants subsequently filed counterclaims that essentially mirrored Plaintiffs' claims. Defendants were initially represented by counsel, but their attorney withdrew his appearance in June of 2012. Discovery proceeded without participation by Defendants, and Plaintiffs filed motions for sanctions against Defendants. On December 14, 2012 the Court granted Plaintiffs' second motion for sanctions, dismissed Defendants' counterclaims with prejudice, and entered a default judgment against Defendants on all of Plaintiffs' claims.[2]

An inquisition hearing was held to determine damages on November 19, 2013. Defendants participated in the hearing pro se. Plaintiffs presented the expert testimony of two experts: Dr. Joseph Zingaro (hereinafter " Dr. Zingaro" ) and Dr. Harjinder Grewal (hereinafter " Dr. Grewal" ). Dr. Zingaro is a licensed psychologist who performed examinations on Thorton. Dr. Zingaro described Thorton's military background and the examinations he conducted, and testified that based on those examinations, Thorton suffers from post-traumatic stress disorder (hereinafter " PTSD" ). Dr. Zingaro opined that Thorton's PTSD was caused by her stressful relationship with Defendants, and not by her experiences in the military. Dr. Zingaro stated that if left untreated, Thorton's PTSD would progress to a more chronic and difficult-to-treat condition.

Dr. Grewal is Thorton's cardiologist who has treated Thorton for several years. Dr. Grewal testified that in 2010, a stress test revealed that Thorton's heart was in excellent condition. Dr. Grewal testified that in September 2011 Thorton received a cardiac catheterization test which revealed that Thorton had suffered heart attack damage as a result of Takotsubo Syndrome, a heart condition caused by extreme degrees of emotional stress. Dr. Grewal testified that Takotsubo Syndrome could be caused by, inter alia, an extremely emotional altercation with another human being, and can lead to congestive heart failure, cardiac arrest, and possibly death. When asked on cross-examination by Defendant Donald, Dr. Grewal could not testify with certainty whether the stressor of Thorton's Takotsubo Syndrome was Thorton's quarrel with Defendants, or whether it was stress caused from dealing with her husband's dementia.

The inquisition hearing was continued to May 8, 2014. Thorton testified at the hearing and at great length described her background, her husband's condition, her own health issues, particularly her Takotsubo Syndrome attack in September 2011, and her relationship with Defendants, including the records and logs she kept of Defendants' conduct. Thorton testified she did not know why Defendants acted the way they did towards Thorton and her husband. Plaintiffs played a professionally edited, twenty-minute video of " highlights" of instances of verbal abuse and other conduct by Defendants that occurred from July 2, 2010 through May 27, 2013. The video portrayed both Defendants engaging in conduct that largely corroborated Thorton's testimony. Several incidents of arguments over a property line were also depicted in the video, as was an incident in which Donald allegedly followed Plaintiffs whenever Plaintiffs drove their vehicle. Thorton testified that incidents such as those portrayed in the video occur on a frequent basis, particularly every time Plaintiffs go outside their home, and stated that the incidents have grown worse since

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this action was initiated. Thorton further testified that one of the incidents captured on video resulted in Bernadette's arrest for menacing.

On the second day of the hearing, Plaintiffs introduced into evidence two lists, generated by Thorton, purporting to list all medical expenses and non-medical expenses, respectively, caused by Defendants' conduct and incurred throughout this litigation. Both lists were revised versions of exhibits that had been previously submitted. It should be noted that there was no independent evidence whatsoever, such as invoices or medical bills, submitted in support of any of these items. According to the revised exhibit purporting to list medical expenses, the grand total of Plaintiffs' medical expenses is $23,721.37.

According to the original exhibit submitted to the Court, the total of Plaintiffs' non-medical expenses, including costs incurred as a result of litigating the inquisition hearing, was $125,480.58. On the second day of the inquisition hearing, Plaintiffs admitted a revised exhibit, according to which the total was $103,551.77. During her testimony, Thorton stated that the total of these damages was $121,000.35, and further testified that $40,000 of that amount was an estimated cost for work that is scheduled to commence this summer.


Under Rule 55(b)(2) of the Superior Court Rules of Civil Procedure, when deemed necessary and proper to do so, the Court may conduct an inquisition hearing if " it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment of evidence or to make an investigation of any other matter. . . ." [3] Typically, the sole focus of inquisition hearings is the amount of damages owed to the plaintiff, which is determined by the trial court judge.[4] The Court's findings on damages are based on a preponderance of the evidence.[5] Preponderance of the evidence" simply means the side on which the greater weight of the evidence is found.[6]


Before delving into the determination of damages which Plaintiffs can recover, several observations must first be made. First, the exhibits offered by Plaintiffs on damages delineate between expenses covered by insurance and expenses that Plaintiffs paid out-of-pocket. Under the collateral source rule, this distinction is irrelevant and does not affect this Court's determination of damages.[7] It should be noted that these exhibits appear to have been personally compiled and maintained by Thorton and are rife with spelling and chronological errors, including misuse of the terms " plaintiffs" and " defendants." These errors, along with the types of damages stated in the exhibits (as will be evident infra ), indicate to the Court that Plaintiffs' counsel had not properly examined or " scrubbed" these exhibits prior to their admission.

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Second, there is conflicting evidence on the total amount of non-medical damages that Plaintiffs seek to recover--the original exhibit, the revised exhibit, and Thorton's testimony on the second day of the hearing. Because the revised exhibit was offered as a replacement of the original one, and because Thorton's testimony appears to contradict or be inconsistent with the amounts stated in the revised exhibit, the Court shall base its determination on the revised exhibit.[8]

Third, the Court notes that under Rule 55(b)(2), the Court may investigate other matters that arise at the inquisition hearing besides damages. The Court finds it necessary and proper to do so in this case, because of the unique nature of the claims asserted by Plaintiffs. This is not a relatively straightforward case such as an action to recover unpaid rent [9] or a negligence claim based on a motor vehicle accident.[10] Rather, Plaintiffs' case involves claims based on Plaintiffs' rights as property owners (trespass, continuing trespass, and nuisance) and claims based on more intangible rights, such as personal dignity and privacy (assault, IIED, and defamation).

Based on the evidence presented at the hearing, including the testimony of Dr. Zingaro and Dr. Grewal, the largely uncontradicted testimony of Thorton, and the video portraying Defendants' conduct over the course of a two-and-a-half year period, the Court finds that, for the limited purposes of this proceeding, Plaintiffs have established by a preponderance of the evidence a right to recovery for their claims for trespass, nuisance [11] and IIED. The video portrayed at least one instance of assault occurring on August 5, 2010 in which Bernadette confronted Thorton with lewd insults and waved her hands in front of Thorton's face in a threatening manner despite Thorton's protests to stop.[12] Combined with Thorton's testimony, the Court finds that this establishes a right to damages for assault as well.[13]

As to Plaintiffs' other claims, the Court finds that there was insufficient evidence presented at the hearing to establish damages for either continuing trespass or defamation. As to continuing trespass, such a claim occurs when the defendant tortiously places or erects a structure or other ...

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