Carrie Snook and Ronnie Snook v. Roy Fern and Susan Kuzenski Fern, Individually and as Trustees of the Roy Fern and Susan Kuzenski Fern Living Trust Dated September 21, 2011

• Court: Superior Court of The Virgin Islands
• Decided: August 12, 2021
• Docket: SX-20-CV-547
• Status: Unpublished

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST CROIX

CARRIE SNOOK AND RONNIE SNOOK

PLAINTIFFS, Civil No SX 2020 CV 547

v ACTION FOR DAMAGES

INDIVIDUALLY AND AS TRUSTEES OF THE ROY FRN AND SUSAN KUZENSKI FERN LIVING TRUST DATED SEPTEMBER 21 2011 CITE AS 2021 VI SUPER 85 M

DEFENDANTS

Appearances Nathan J Mirocha, Esq MirochaLaw LLC St Croix, U S Virgin Islands For Plamnffs

Sharmane Davis Brathwaite, Esq Brathwaite Law LLC St Thomas, U S Virgin Islands For Defendants

MEMORANDUM OPINION AND ORDER

WILLOCKS Presiding Judge

THIS MATTER came before the Court on Plaintiff Carrie Snook (hereinafter “Carrie”)

and Plaintiff Ronnie Snook’s (hereinafter “Ronnie” and together with Cam'e, “P1aintiffs”) motion

for leave to file first amended complaint, filed on June 9, 2021 In response, Defendant Roy Fem

(hereinafter “Roy”), individually, and Defendant Susan Kuzenski Fern (hereinafter “Susan”),

individually, filed a joint opposition and Plaintiffs filed a reply thereafter Came Snook era! t Rm Fern era! SX 2020 CV 547 Memorandum Opinion and Order 2021 v1 SUPER m Page 2 of 12

BACKGROUND

On May 13 2020 Plaintiffs filed a complaint against Defendant Roy and Defendant Susan

individually and as trustees of the Roy Fern and Susan Kuzenski Fem Living Trust Dated

September 21, 2011 in connection with dog bites Plaintiff Carrie sustained on April 25, 2020

Plaintiffs alleged inter alia, that [o]n April 25 2020 [Plaintiff Carrie] was walking along the

roadways in the area of Estate Mon Bijou and Estate Little Fountain that [a]t the aforesaid time

and place, the pit bull owned by [Defendant Roy] and [Defendant Susan] was uncaged, unleashed

and unrestrained in any manner, that ‘ [a]t the aforesaid time and pace, the pit bull owned by

[Defendant Roy] and [Defendant Susan] chased and attacked [Plaintiff Carrie] as she was walking

through the Estate Mon Bijou and Estate Little Fountain area ’ that [a]t the aforesaid time and

place the pit bull owned by [Defendant Roy] and [Defendant Susan] chased [Plaintiff Carrie] into

a tree and hit her left leg and calf ’ that [Plaintiff Carrie ’ was lawfully on the roadway when she

was chased and attacked by the pit bull owned by [Defendant Roy] and [Defendant Susan] on

April 25 2020, and that [Plaintiff Carrie] was injured and suffered damages as a result of the

bites inflicted on her by the pit bull owned by [Defendant Roy] and [Defendant Susan] (Compl

‘|[‘][8 11 l3 l4 ) The following counts were included in the complaint Count I Animal Protection

and Control Act (Plaintiff Carrie’s claim against Defendant Roy individually), Count II Animal

Protection and Control Act (Plaintiff Carrie 5 against Defendant Susan, individually) Count 111

Negligence (Plaintiff Carrie 5 claim against Defendant Roy and Defendant Susan as trustees),

Count [V Negligence (Plaintiff Carrie 3 claim against Defendant Roy individually) Count V

Negligence (Plaintiff Carrie s claim against Defendant Susan, individually) Count VI Negligence

(Plaintiff Ronnie 5 claim against Defendant Roy, individually) Count VII Negligence (Plaintiff

Ronnie 5 claim against Defendant Susan, individually) Count VIII Punitive Damages (Plaintiff Came Snack er a! 1 R0) Fem eta! SX 2020 CV 547 Memorandum Opinion and Order 2021 v1 SUPER E Page 3 ol 12

Carrie 8 claim against Defendant Roy, individually) Count IX Punitive Damages (Plaintiff

Carrie 5 claim against Defendant Susan, individually) and Count X Punitive Damages (Plaintiff

Carrie 5 claim against Defendant Roy and Defendant Susan, as trustees)

On June 23, 2020 Defendant Roy, individually and Defendant Susan, individually filed

a joint answer to Plaintiffs complaint On that same date, Defendant Roy as trustee and

Defendant Susan as trustee filed a joint answer to Plaintiffs complaint Subsequently a

scheduling order was entered and the parties proceeded with discovery

On June 10 2021 Plaintiffs filed this instant motion for leave to file first amended

complaint

STANDARD OF REVIEW

Rule 15 of Virgin Islands Rules of Civil Procedure provides that aside from amending its

pleading once as a matter of course aparty may amend its pleading only with the opposing party 5

written consent or the court 8 leave and that ‘ [t]he court should freely give leave when justice so

requires VI R CIV P 15(a)(2) Rule [5 l of Virgin Islands Rules of Civil Procedure

(hereinafter “Rule 15 1’) requires “[a] party moving to amend a pleading [to] attach a

complete and properly signed—copy of the proposed amended pleading to the motion papers

and must reproduce the entire pleading as amended specifically delineating the changes or

additions and may not incorporate any prior pleading by reference VI R CIV P 15 1(a)

Furthermore [a] proffered amended pleading must note prominently on the first page the

numbered amendment it represents eg FIRST AMENDED COMPLAINT SECOND

AMENDED COMPLAINT FIRST AMENDED ANSWER etc VI R Cw P 15 I(b) Came Snook era! l Rm Fem e! a] 8X 2020 CV 547 Memorandum Opinion and Order 2021 VI SUPER flit Page 4 of 12

DISCUSSION

1 Motion to Amend

In their motion, Plaintiffs sought to amend the Complaint on the basis of Defendants

testimony that one of the dogs that attacked Plaintiff Carrie [] was owned by Onaje Jackson a

neighbor of the Defendants and “to amend the Complaint to conform to the testimony elicited

from [Defendant Roy] and [Defendant Susan] thus far, and by two witnesses that have testified

(Motion p 1) A redline copy of the proposed first amended complaint reflecting the changes made

to the initial complaint was attached to Plaintiffs’ motion '

In their joint opposition Defendant Roy, individually and Defendant Susan, individually

argued that the Court should deny Plaintiffs motion Defendant Roy and Defendant Susan

individually, made the following assertions in support of their argument (i) [t]he proposed

amendment to add a new defendant is futile it will cause a misjoinder, (ii) Plaintiffs did not

include a fully executed First Amended Complaint with their motion (iii) ‘ [t]he Court may

deny a request to amend so long as it articulates a sound justification ”° (iv) [t]he claims against

' The following counts were included in the proposed first amended complaint Count] Animal Protection and Control Act (Plaintiff Carrie 5 claim against Defendant Roy individually) Count [1 Animal Protection and Control Act (Plaintitt Carrie 5 against Detendant Susan individually), Count [II Negligence (Plaintiff Carrie’s claim against Defendant Roy and Defendant Susan as trustees) Count IV Negligence (Plaintiff Carrie’s claim against Defendant Roy individually) Count V Negligence (Plaintift Carrie’s claim against Defendant Susan individually) Count VI Negligence (Plaintitt Ronnie sclaim against Defendant Roy individually) Count VII Negligence (Plaintiff Ronnie 5 claim against Defendant Susan individually) Count VIII Punitive Damages (Plaintiff Carrie’s claim against Defendant Roy, individually) Count IX Punitive Damages (Plaintitf Carrie 5 claim against Defendant Susan individually), Count X Punitive Damages (Plaintiff Carrie 5 claim against Defendant Roy and Detendant Susan as trustees) Count XI Animal Protection and Control Act (Plaintitf Carrie 5 claim against Detendant Onaje Jackson) Count XII Negligence (Plaintitharrie 3 claim against Detendant Onaje Jackson) and Count XIII Punitive Damages (Plaintiff Carrie 5 claim against Defendant Onaje Jackson) 1DelendantRoy individually and DetendantSusan individually reterenced Basicst GVI 20019Vl2l fil26(20l9) (citing Reynolds 1 Rain: 20 VI 8 ‘l 25 (V I 2019) ( Appropriate justifications [for deviating from the norm 0t treely granting leave to amend] include but are not limited to undue delay bad faith or dilatory motive on the part of the movant repeated tailure to cure deficiencies by amendments previously allowed undue prejudice to the opposing party by virtue of allowance of the amendment [and] futility of the amendment[ ] ) Came Snook e! a! v Rm Fern er a1 SX 2020 CV 547 Memorandum Opinion and Order 2021 v1 SUPER EA Page 5 of 12

[Onaje Jackson] are separately delineated in three (3) new counts numbered XI XIII and based on

him owning a dog, black in color that was harbored at his residence and that [i]t is not enough

that these claims allege the same type of violations that Plaintiffs are currently pursuing against

Defendants his joinder must be based on the same set of facts such that he and Defendants would

be jointly, severally or in the alternative responsible for Plaintiffs’ damages 1 (v) ‘[t]he

circumstances as proposed by Plaintiffs will require an analysis of Mr Jackson s responsibility

based on different facts, whether his dog harbored at a separate residence bit Plaintiff Carrie Snook

on April 25, 2020 and (vi) ‘ [b]ecause the statute of limitations has not expired Plaintiffs tort

claim the Court’s denial of Plaintiffs motion will not result in any harm (Opp pp 2 3 )

In their reply Plaintiffs argued that the Court should grant their motion to amend Plaintiffs

made the following assertions in support of their argument (i) PlaintiffCarrie Snook was attacked

by four dogs while walking in the roadway on April 25, 2020 and ‘[0]ne of those dogs is now

known to be owned by Onaje Jackson the proposed additional defendant ’ (ii) each Defendant

was also able to provide relevant information that Sunshine was wilfully allowed on the

Defendants property at 409 Mon Bijou and was also periodically harbored inside Defendants

house at the same location ’ (iii) Defendant Susan ‘was able to identify all of the dogs that she

saw by Carrie Snook including Duke Casha Hoover and Sunshine and (iv) it is clear that

the proposed claims as alleged against Onaje Jackson are based on the same set of facts such that

Mr Jackson and Defendants would be jointly and/or severally liable for Plaintiffs damages

(Reply pp 1 3)

3 Defendant Roy, individually and Detendant Susan individually, referenced VI R Civ P 20(a)(2); Brown v Underwriters at Lloyd 5 er a1 202l VI SUPER 6] (court finding Rule 20 not satisfied when Plaintiffs did not assert any right to reliet against all three Detendants jointly severally or arising from the same transaction occurrence or series of transactions or occurrences) Came Snack er al v Roy Fern er a1 SK 2020 CV 547 Memorandum Opinion and Order 2021 v1 SUPER 3534 Page 6 of 12

A Joinder

Rule 20 of the Virgin Islands Rules of Civil Procedure (hereinafter “Rule 20 ) governs

permissive joinder of parties Under Rule 20, [p]ersons as well as a vessel cargo or other

property subject to admiralty process in rem may be joined in one action as defendants if (A)

any right to relief is asserted against them jointly severally, or in the alternative with respect to or

arising out of the same transaction occurrence, or series of transactions or occurrences and (B)

any question of law or fact common to all defendants will arise in the action VI R Civ P

20(a)(2) The reporter 5 notes to Rule 20 state that multiple defendants may be joined if any right

to relief is asserted against them jointly, severally, or in the alternative with respect to or arising

out of the same transaction and at least one question of law or fact common to all defendants will

arise in the action V I R Civ P 20 (rptr 5 note)

Here although Plaintiffs argued in their reply brief that that Mr Jackson and Defendants

would be jointly and/or severally liable for Plaintiffs damages (Reply p 3) Plaintiffs did not

allege in their proposed first amended complaint that the right to relief is asserted against all the

defendants jointly or severally Nevertheless based on the allegations set forth in the proposed

first amended complaint the right to relief is with respect to the same transaction and occurrence

to wit on April 25 2020 Plaintiff Carrie was walking through Estate Mon Bijou and Estate Little

Fountain when she was bit by dogs owned by either Defendant Roy and Defendant Susan or Onaje

Jackson ‘ Furthermore based on the allegations set forth in the proposed first amended complaint,

there is at least one question of law or fact common to Defendant Roy, Defendant Susan and Onaje

Waintiff Carrie According to the complaint Plaintiff Carrie was bit by one dog a pit bull (Compl 3| I I ) according to the proposed first amended complaint Plaintiff Carrie was by dogs (Proposed FAC‘ll IS) and according to the reply PlaintiffCarrie was attacked by tour dogs (Reply p l ) Came Snack er al v Roy Fern e! a!

fifijgigng‘lllhf‘gpinion and Order 2021 v1 SUPER 32% Page 7 of l2

Jackson, e g , the analysis for the following questions will be based on the same set of facts which

dog(s) bit Plaintiff Carrie on April 25, 2020, who is the owner of the dog(s) that bit Plaintiff Carrie

on April 25, 2020, and where was Plaintiff Carrie when she was bit by the dogs In other words,

the same facts that give rise to the action against Defendant Ray and Defendant Susan are part “of

the same transaction, occurrence, or series of transactions or occurrences” as the facts that give

rise to the action against Onaje Jackson and “any question of law or fact common to all defendants

will arise in the action ” As such, the Court finds that the requirements under Rule 20 have been

satisfied and joinder of Onaje Jackson as a defendant in this matter is proper VI R Civ P

20(a)(2) (“Persons may be joined in one action as defendants if (A) any right to relief is asserted

against them with respect to or arising out of the same transaction, occurrence, or series of

transactions or occurrences, and (B) any question of law or fact common to all defendants will

arise in the action ”) Thus, the Court is inclined to grant Plaintiff‘s motion for leave to file first

amended complaint However, Plaintiffs’ motion was not filed in compliance with Rule 15 1 First,

Plaintiffs failed to include a clean copy of the proposed first amended complaint as required under

Rule 15 1(a) See V I R CIV P 15 1(a) (‘attach a complete and properly signed—copy of the

proposed amended pleading to the motion papers”) Second, the proposed first amended complaint,

based on the redline copy, did not “note prominently on the first page the numbered amendment it

represents ——e g FIRST AMENDED COMPLAINT—as required under Rule 15 1 V I R CIv

P 15 1(b) Nevertheless, these defects are not fatal and the Court will give Plaintiffs the

opportunity to file a new proposed first amended complaint in compliance with Rule 15 l

2 Other Issues

Additionally, upon review of Plaintiffs’ initial complaint and proposed first amended

complaint, several issues have come to the Court’s attention The Court will address them in turn Came Snack er al v Rot Fern er a! SX 2020 CV 547 Memorandum Opinion and Order 2021 v1 SUPER 3514 Page 8 of 12

It is for the benefit of everyone involved the plaintiffs the defendants the Court to have the

claims clarified as the parties engage in the discovery process and motion practice See Arno v

Hess Corp 71 V I 463 499 (V I Super Ct Oct 17 2019) ( the law favors clarity and precision

especially in pleadings )

A Statutory Claims Versus Common Law Claims

In the initial complaint and the proposed first amended complaint Plaintiff Connie alleged

both statutory claims‘ under Title 19 V I C § 26126 and common law claims7 under the negligence

theory for the dog bite she sustained However, this raises the question of whether, by enacting a

statute Title 19 V I C § 2612 that imposes strict liability upon the owners of the dogs that bit a

5 In their initial complaint, Plaintiffs alleged Count I Animal Protection and Control Act (Plaintiff Carrie 5 claim against Defendant Roy, individually) and Count [1 Animal Protection and Control Act (Plaintiff Carrie 5 against Detendant Susan individually) In their proposed first amended complaint Plaintiffs alleged Count I Animal ProteLtion and Control Act (Plaintift Carrie 5 claim against Defendant Roy individually) Count 11 Animal Protection and Control Act (Plaintiff Carrie 5 against Defendant Susan individually) and Count XI Animal Protection and Control Act (Plaintift Carrie 5 claim against Defendant Onaje Jackson) 6 Title l9 V I C §26l2 provides (a) Owners of dogs shall be liable for any damage done by their dogs (b) The owners of any dogs which shall bite any person while such person is on or in a publit. place or lawtully on or in a private piece including the place of the owner of such dogs shall be liable for such damages as may be suffered by persons bitten, regardless of the former viciousness of such dog or the owners knowledge of such viciousness A person is lawfully upon private property 0t such owner within the meaning 0! this section when he is on such property in the pertormanee 0t any duty imposed by the laws of the Virgin Islands or by the laws or regulations of the United States or when he is on such property upon invitation expressed or implied oi the owner thereot provided however, no owner of any dog shall be liable for any damages to any person or his property when such person shall mischievoust or carelessly provoke or aggravate the dog inflicting such damages nor shall any such owner be so liable it at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words Bad Dog ’ 0r Beware of Dog 7 In their initial complaint Plaintiffs alleged Count [II Negligence (Plaintift Carrie 5 claim against Defendant Roy and Defendant Susan as trustees) and Count IV Negligence (Plaintift Carrie 5 claim against Detendant Roy individually) Count V Negligence (Plaintiff Carrie 5 claim against Defendant Susan individually) In their proposed first amended complaint Plaintifts alleged Count [II Negligence (Plaintiff Carrie 5 claim against Defendant Roy and Defendant Susan as trustees) Count IV Negligence (Plaintiff Carrie 5 claim against Deiendant Roy, individually) Count V Negligence (Plaintifi Carrie‘s claim against Defendant Susan individually) and Count XII Negligence (Plaintitt Carrie 5 claim against Defendant Onaje Jackson) Cwne Snook er a] 1 R0) Fem e! a! SK 2020 CV 547 Memorandum Opinion and Order 2021 VI SUPER Q Page 9 of 12

person, the Legislature abrogated the common law claim for dog bites See Defoe v Phillip 56

V I 109 121 (2012) (internal quotations and citation omitted) ( It is well established

that a statute should not be considered in derogation of the common law unless it expressly so

states or the result is imperativer required from the nature of the enactment ) If the answer is

yes then Plaintiff Connie is required to proceed with only the statutory claims On the other hand

if the answer is no, then Plaintiff Connie is permitted to proceed under both theories of liability

See V I R Civ P 8(d)(3) ( A party may state as many separate claims or defenses as it has

regardless of consistency ), accord Mztchell v General Engineering Corporation 67 V I 271,

285 n 7 (VI Super Ct 2017)( [A] plaintiff may plead different even inconsistent claims in the

alternative and also pursue alternate theories of relief ) The Court will give Plaintiff Connie

Defendant Roy and Defendant Susan the opportunity to brief the issue of whether by enacting a

statute Title 19 V IC § 2612 that imposes strict liability upon the owners of the dogs that bit a

person the Legislature abrogated the common law claim for dog bites

B Punitive Damages

In the initial complaint and the proposed first amended complaint, Plaintiff Connie alleged

punitive damages as independent causes of action 8 In Bertrand v Mystzc Granite & Marble Inc ,

the Virgin Islands Supreme Court affirmed the Superior Court 5 ruling that a request for punitive

damages is not an independent cause of action 63 V I 772, 784 n 6 (V I 2015) see also Der

Weer v Hess 011 VI Corp 60 VI 91 95 n 1 (VI Super Ct 2014) ( Although labeled as a

g In theirinitialeomplaint Plaintiffs alleged Count VIII Punitive Damages (Plaintift Carrie sclalm against Defendant Roy individually) Count IX Punitiwe Damages (Plaintiff Carrie sclaim against Defendant Susan individually) and Count X Punitive Damages (Plaintiff Carrie 5 claim against Defendant Roy and Defendant Susan as trustees) In their proposed first amended complaint, Plaintiffs alleged Count VIII Punitive Damages (Plaintiff Carrie 5 claim against Detendant Roy individually), Count IX Punitive Damages (Plaintiff Carrie 5 claim against Delendant Susan individually) Count X Punitive Damages (Plaintiff Carrie 5 claim against Defendant Roy and Defendant Susan as trustees) and Count XIII Punitive Damages (Plaintift Carrie 5 claim against Defendant Onaje Jackson) Carrie Snack era! v Rot Fem er a1

migigngrhi‘gpinion and Order 2021 v1 SUPER 351A Page 10 0f 12

claim’ for punitive damages in the complaint punitive damages is not a separate cause of action

but rather a demand for a certain type of damages ) As such Plaintiff Carrie 5 claims for punitive

damages as independent causes of action cannot proceed

C Loss of Consortium

1n the initial complaint and the proposed first amended complaint Plaintiff Ronnie alleged

that he suffer[ed] the loss of consortium, companionship security and society of his wife

[Plaintiff Carrie] as the result of the acts and/or omissions of Defendant Roy and Defendant

Susan (Compl M 120 144) (Proposed FAC ‘|[‘][ 131 142 )Although labeled as negligence claims 9

Plaintiff Ronnie is actually making a claim for a personal injury that relates to the loss of spousal

relationships due to Defendant Roy and Defendant Susan s alleged tonious conduct Thus

Plaintiff Ronnie’s negligence claims against Defendant Roy and Defendant Susan are actually loss

of consortium claims and should be relabeled as loss of consortium claims However ‘Virgin

Islands courts have not decided whether to recognize [the loss of consortium] claim yet” and [a]

Banks analysis would be required Martme v Hess 011 VI Corp 69 V I 519, 534 n 5 (V I

Super Ct 2018) see also McKen 1e v Hess 011 VI Corp 70 V I 210 220 21 n 5 (V I Super

Ct 2019) (internal citations omitted) (noting that the Virgin Islands has not considered the issue

of whether to recognize loss of consortium as a derivative claim or a stand alone claim and that ‘ a

Banks analysis would entail deciding first, whether to recognize loss of consortium claims and

then whether to recognize loss of consortium as a derivative claim or a stand alone claim ) The

Wk proposed first amended complaint, Plaintiffs alleged Count VI Negligence (Plaintitf Ronnie 5 claim against Defendant Roy individually) and Count VII Negligence (Plaintiff Ronnie 5 claim against Defendant Susan individually) Carrie Snook eta! t Rm Fern 0! a! SX 2020 CV 547 Memorandum Opinion and Order 2021 v1 SUPER fiw Page 11 of 12

Court will give Plaintiff Ronnie Defendant Roy and Defendant Susan the opportunity to brief the

issue of whether the Virgin Islands courts should recognize the loss of consortium claim

CONCLUSION

Based on the foregoing the Court will give the parties the opportunity to file supplemental

briefs to address the issues mentioned above Upon receipt of the parties supplemental briefs the

Court will determine what causes of action can proceed and then give Plaintiffs the opportunity to

file a new proposed first amended complaint in compliance with the Court’s ruling and Rule 15

1 At this time the Court will reserve ruling on Plaintiffs motion for leave to file first amended

complaint Accordingly it is hereby

ORDERED that within thirty (30) days from the date of entry of this Memorandum

Opinion and Order, Plaintiff Carrie Defendant Roy, and Defendant Susan shall file their

respective supplemental briefs regarding the issue of whether by enacting a statute Title 19 V I C

§ 2612 that imposes strict liability upon the owners of the dogs that bit a person the Legislature

abrogated the common law claim for dog bites It is further

ORDERED that within thirty (30) days from the date of entry of this Memorandum

Opinion and Order, Plaintiff Ronnie Defendant Roy and Defendant Susan shall file their

respective supplemental brief regarding the issue of whether the Virgin Islands courts should

recognize the loss of consortium claim It is further

ORDERED that the parties shall support the arguments in their respective supplemental

briefs with proper briefing including but not limited to citing the proper legal authority statute

and/or rule and conducting a Banks analysis when necessary And it is further

ORDERED that the Court will reserve ruling on Plaintiffs motion for leave to file first

amended complaint Came Snack er a1 3 Rm Fem e! a! SX 2020 CV 547 Memorandum Opinion and Order 2021 VI SUPER 8512‘ Page l2 0| 12

DONE and ORDERED this x25“day of August 2021

ATTEST i ;é Wei ; éflfl Tamara Charles HAROLD W L WILLOCKS Clerk of the Court PreSIding Judge of the Superior Court

curt Clerk Supervisor

Dated 8’ 2292/1 %011