             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

    CHESAPEAKE INSURANCE                       )
    ADVISORS, INC., a Delaware                 )
    Corporation, and ROBERT HOUSER,            )
                                               )
           Plaintiffs,                         )
                                               )
    v.                                         )      C.A. No.: N14C-03-073 EMD
                                               )
    STEPHANIE DESOLA, JOSEPH                   )
    DESOLA, and PRIME SERVICES LLC,            )
    a de facto Partnership of Stephanie DeSola )
    and Joseph DeSola,                         )
                                               )
           Defendants.                         )


                     MEMORANDUM OPINION GRANTING
                 PLAINTIFFS’/COUNTERCLAIM DEFENDANTS’
               MOTION TO DISMISS DEFENDANTS’/COUNTERCLAIM
                    PLAINTIFFS’ COUNTS I AND II OF THE
                   AMENDED COUNTERCLAIM COMPLAINT

                                     I. INTRODUCTION

       The Court previously allowed Defendants Stephanie DeSola, Joseph DeSola, and Prime

Services (collectively, the “Defendants”) to file amended counterclaims. The Court instructed

Defendants that any future filings needed to conform to the Delaware Superior Court Rules of

Civil Procedure. Defendants failed to comply with the rules when filing their amended

counterclaims. After a hearing, the Court permitted Defendants to file a second amended

counterclaim by December 1, 2017.

       Defendants filed the Defendants’ Amended Answer and Amended Counterclaim on

December 1, 2017 (the “Second Amended Counterclaim”). On December 14, 2017, Plaintiffs

Chesapeake Insurance Advisors, Inc. and Robert Houser (collectively, the “Plaintiffs”) filed the
Plaintiffs’/Counterclaim Defendants’ Motion to Dismiss Defendants’/Counterclaim Plaintiffs’

Counts I and II of the Amended Counterclaim Complaint (the “Motion”).

           For the reasons set forth below, the Court GRANTS the Motion.

                                       II. RELEVANT FACTS

           Defendants filed their initial counterclaims in response to Plaintiffs’ complaint. On

September 5, 2017, the Court dismissed Defendants’ Answer and Counterclaim in Response to

Second Amended Complaint. The Court allowed Defendants to file amended counterclaims. On

October 5, 2017, Defendants filed their amended counterclaims.

           On November 27, 2017, the Court held a hearing on Plaintiffs’ Motion to Strike

Defendants’ Amended Answering Brief in Response to Plaintiffs’ Motion to Dismiss

Defendants’ Amended Counterclaim Complaint. At the conclusion of the hearing, the Court

allowed Defendants to file an amended counterclaim by December 1, 2017. The Court required

the parties to remove any adjectives and adverbs not part of a legal standard. The Court advised

Defendants to state facts in order to properly plead a counterclaim. The Court further advised

the parties that the Court would rule on the papers.

           On December 1, 2017, Defendants filed the Second Amended Counterclaim. In the

Second Amended Counterclaim, Defendants allege: (1) fraud; (2) fraudulent concealment; and

(3) unjust enrichment.

           Specifically for fraud, Defendants allege “Plaintiffs’ verbal and written representations

and pretenses caused the Defendant to make payments on Plaintiffs behalf.”1 Further, “Plaintiffs

made guarantees of shared profits. . . .”2 Defendants further argue that Plaintiffs removed Ms.

DeSola as secretary and treasurer on August 27, 2013, but Plaintiffs never informed Ms. DeSola


1
    Countercl. ¶ 17.
2
    Id. ¶ 18.

                                                    2
that she had been removed from these executive positions.3 Ms. DeSola continued to act as

secretary and treasurer of the business based on Plaintiffs’ failure to inform Ms. DeSola.

         After Plaintiffs removed Ms. DeSola as Secretary and Treasurer, Mr. Houser

communicated with Ms. DeSola via text message and told Ms. DeSola “[y]ou are really an

incredible employee, associate, and friend.”4 In another text message, Mr. Houser states: “You

know that anything you might have to put in you will get back with interest. There will be no

other way. You guys will be whole.”5

         Specifically relating to fraudulent concealment, Defendants allege that Plaintiffs did not

disclose “any of the evidence or transactions reviewed during the course of the State’s Criminal

investigation.”6 Defendants argue that “Plaintiffs concealed numerous transactions during the

investigation . . . which misled the State in their investigation.”7 Defendants content that if the

concealed transactions were brought to light, then the complaint would have no basis.

         In the Motion, Plaintiffs argue that Count I and Count II of the Second Amended

Complaint must be dismissed. First, Plaintiffs contend that Defendants failed to articulate

elements one, two, three, and five for Fraud. Additionally, Plaintiffs argue that Defendants

failed to plead fraud and fraudulent concealment with particularity as required under Delaware

Superior Court Civil Rule 9(b) (“Rule 9(b)”). Further, Plaintiffs claim that fraudulent

concealment cannot survive without an underlying fraud.




3
  Id. ¶ 26.
4
  Id., Ex. A-1.
5
  Id., Ex. A-7.
6
  Id. ¶ 46.
7
  Id. ¶ 48-49.

                                                  3
                                    III. STANDARD OF REVIEW

        Upon a motion to dismiss, the Court (i) accepts all well-pleaded factual allegations as

true, (ii) accepts even vague allegations as well-pleaded if they give the opposing party notice of

the claim, (iii) draws all reasonable inferences in favor of the non-moving party, and (iv) only

dismisses a case where the plaintiff would not be entitled to recover under any reasonably

conceivable set of circumstances.8 However, the court must “ignore conclusory allegations that

lack specific supporting factual allegations.”9

        Rule 9(b) requires all allegations of fraud to be pleaded with particularity.10 In order to

meet the particularity requirement, a complaint “must state the time, place, and contents of the

alleged fraud, as well as the individual accused of committing the fraud.”11 “[A]verments of

time and place are material. . . .”12 “The purpose of [Rule 9(b)] is to appraise the adversary of

the acts or omissions by which it is alleged that a duty has been violated.”13

                                            IV. DISCUSSION
    A. FRAUD

        A party must plead the following elements to state a claim for fraud:

        (1) False representation, usually of fact, made by the defendant; (2) the defendant’s
        knowledge or belief that the representation was false, or was made with reckless
        indifference to the truth; (3) an intent to induce the plaintiff to act or to refrain from
        acting; (4) the plaintiff’s action or inaction was taken in justifiable reliance upon
        the representation; and (5) damage to the plaintiff as a result of such reliance.14




8
  See Central Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 227 A.3d 531, 536 (Del. 2011); Doe v.
Cedars Academy, No. 09C-09-136, 2010 WL 5825343, at *3 (Del. Super. Oct. 27, 2010).
9
  Ramunno v. Crawley, 705 A.2d 1029, 1034 (Del. 1998).
10
   Del. Super. Ct. R. 9(b).
11
   Universal Capital Mgmt, Inc. v. Micro World, Inc., 2012 WL 1413598, at *2 (Del. Super. Feb. 1, 2012).
12
   Del. Super. Ct. R. 9(f); York Linings v. Roach, 1999 WL 608850, at *2 (Del. Ch. July 28, 1999).
13
   Mancino v. Webb, 274 A.2d 711, 713 (Del. Super. 1971).
14
   Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund, II, L.P., 624 A.2d 1199, 1205 (Del. 1993).

                                                       4
         Defendants have not pleaded facts that support all the elements of a fraud claim. In

addition, Defendants failed to plead fraud with particularity under Rule 9(b). In support of the

fraud claim, Defendants plead that Plaintiffs made promises of “shared profits, financial stability

and security . . . In exchange for Defendants continued support of Plaintiffs and its business

endeavors.”15 Further, Plaintiffs removed Ms. DeSola as secretary and treasurer on August 27,

2013, but never informed her. After August 27, 2013, Mr. Houser instructed Ms. DeSola “to act

in the role of Secretary and Treasurer through numerous written and verbal instructions after

August 27th, 2013 and up to the Defendant’s termination on October 8, 2013.”16 Defendants

attached numerous text messages to the Second Amended Counterclaim.

         The August 27, 2013 Corporate Resolution Ratification of Board Minutes indicates that

Ms. DeSola was removed as secretary and treasurer.17 Additionally, in some text messages, Mr.

Houser states to Ms. DeSola “[y]ou are really an incredible employee, associate, and friend.”18

Defendants fail to identify the shared profits contract with any particularity. The only hint of

such a contract is a text message between Ms. DeSola and Mr. Houser where Mr. Houser states:

“You know that anything you might have to put in you will get back with interest. There will be

no other way. You guys will be whole.”19

         While some facts are plead, the Second Amended Counterclaim fails to provide facts that

support elements 3, 4 and 5 of a fraud claim. The Court can infer from the Second Amended

Counterclaim that Defendants make allegations that Plaintiffs made false representations. In

addition, the Court can logically infer from the allegations that Plaintiffs knew the




15
   Countercl. ¶ 18.
16
   Id. ¶ 30.
17
   Countercl., Ex. B.
18
   Countercl., Ex. A-1.
19
   Countercl., Ex. A-7.

                                                 5
representations were false when made. However, the Court cannot find facts that support

Plaintiffs made the representations to induce Defendants to act or refrain from acting, justifiable

reliance upon the representations, or the damage resulting from the misrepresentation.

       The one specific representation—the October 3, 2013 text from Mr. Houser to Ms.

DeSola—alleged in the Second Amended Counterclaims regarding repayment is not supported

by any facts that show inducement, justifiable reliance or causally connected damages. Instead,

Count I reads more like an intentional infliction of emotional distress claim or defamation claim

than a claim of fraud.

       Additionally, Defendants fail to provide information regarding which transactions

Plaintiffs concealed from Defendants and the State. Defendants state that Plaintiffs were fully

aware of payments made by Defendants on Plaintiffs’ behalf. In Count III of the Second

Amended Counterclaim, Defendants list a number of transactions that Defendants made for

Plaintiffs. However, Defendants fail to allege which transactions were concealed.

       As such, the Defendants failed to plead with particularity all the elements of a fraud

claim. Instead, Defendants rely, in part, upon conclusory statements. The Court has previously

discussed and ordered Defendants to meet the requirements of Rule 9(b) and still Defendants are

unable to meet those requirements. As such, the Court will GRANT the Motion as to Count I of

the Second Amended Counterclaims.

   B. FRAUDULENT CONCEALMENT

       To establish fraudulent concealment, a claimant must allege that: (1) deliberate

concealment by a party of a material past or present fact, or silence in the face of a duty to speak;

(2) that party acted with scienter; (3) there was an intent to induce reliance by the claimant upon




                                                  6
the concealment; (4) causation; and (5) damages resulting from the concealment.20 Fraudulent

concealment must be pleaded with particularity to satisfy Rule 9(b).21

         Fraudulent concealment may also toll a statute of limitations. “Fraudulent concealment

tolls a statute of limitation until a plaintiff discovers his rights or could have discovered them by

exercise of reasonable diligence.”22 “Fraudulent concealment may be found to exist where a

defendant knowingly acted to prevent a plaintiff from learning facts or otherwise made

misrepresentations intended to ‘put the plaintiff off the trail of inquiry.’”23

         Plaintiffs argue that fraudulent concealment cannot stand alone as a cause of action

without an underlying fraud. Therefore, if the fraud is dismissed, so too, must the fraudulent

concealment. However, the Delaware Supreme Court and the Court have recognized an

independent cause of action for fraudulent concealment.24

         Defendants fail to plead fraudulent inducement with particularity as required under Rule

9(b). Defendants contend that they were not informed of any evidence reviewed during the

State’s Criminal investigation.25 Further, Defendants contend that “Plaintiffs’ concealed

transactional information, which misled the State in their investigation, and also caused

irrevocable harm to the Defendants.”26 Defendants state numerous times that Plaintiffs




20
   Nicolette, Inc. v. Nutt, 525 A.2d 146 (Del. 1987); Commonwealth Land Title Ins. Co. v. Funk, 2015 WL 1870287,
at *3 (Del. Super. Apr. 22, 2015).
21
   See Hiznay v. Strange, 415 A.2d 489 (Del. Super. 1980) (allowing plaintiff to amend their complaint to plead
fraudulent concealment with the necessary particularity required under Rule 9(b)).
22
   State ex rel. Brady v. Pettinaro Enterprises, 870 A.2d 513, 532 (Del. Ch. 2005) (citing Shockley v. Dyer, 456 A.2d
798, 799 (Del. 1983)).
23
   Id.
24
   See Nicolette, Inc. v. Nutt, 525 A.2d 146 (Del. 1987); Szczerba v. American Cigarette Outlet, Inc., 2016 WL
1424561, at *3 (Del. Super. Apr. 1, 2016); Commonwealth Land Title Ins. Co. v. Funk, 2015 WL 1870287, at *3
(Del. Super. Apr. 22, 2015).
25
   Countercl. ¶ 46.
26
   Countercl. ¶ 49.

                                                         7
concealed transactions, but never indicates which transactions are concealed or when the

Plaintiffs concealed the transactions.

           Moreover, Defendants fail to allege how Plaintiffs knowingly acted with respect to

Defendants. The allegations of the Second Amended Counterclaims instead talk of purported

concealment by Plaintiffs as to the State and not Defendants, or that Plaintiffs failed to provide

discovery to Defendants. The Court is unaware of any obligation Plaintiffs owed to Defendants

to provide Defendants with discovery during the criminal investigation. Moreover, the Second

Amended Complaint alleges that the State, not Defendants, were misled.27 In addition, the Court

does not see any allegations of reliance by Defendants on the purported concealment by

Plaintiffs.

           As alleged, Count II pleads more like a cause of action that could be brought by the State

and not Defendants. Accordingly, the Court finds that Count II fails to state a claim upon which

relief can be granted and will GRANT the Motion as to Count II.

                                          VI. CONCLUSION

           For the foregoing reasons, the Court GRANTS Motion relating to Count I and Count II.

Defendants can proceed on Count III of the Second Amended Counterclaims.



Dated: January 24, 2018
Wilmington, Delaware
                                                /s/ Eric M. Davis
                                                Eric M. Davis, Judge




27
     Id.

                                                    8
