Charles A. Currier v. William E. Knapp, Wilbur T. Bolkcom, and R. Phillip Harty

Third Circuit

Charles A. Currier v. William E. Knapp, Wilbur T. Bolkcom, and R. Phillip Harty

442 F.2d 422, 8 V.I. 334, 14 Fed. R. Serv. 2d 1195, 1971 U.S. App. LEXIS 11507

CourtCourt of Appeals for the Third Circuit

DecidedMarch 5, 1971

Docket18869

StatusPublished

Cited by15 cases

This text of 442 F.2d 422 (Charles A. Currier v. William E. Knapp, Wilbur T. Bolkcom, and R. Phillip Harty) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Charles A. Currier v. William E. Knapp, Wilbur T. Bolkcom, and R. Phillip Harty, 442 F.2d 422, 8 V.I. 334, 14 Fed. R. Serv. 2d 1195, 1971 U.S. App. LEXIS 11507 (3d Cir. 1971).

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Opinion

OPINION OF THE COURT

PER CURIAM:

Appellant, Charles A. Currier, brought this action to compel specific performance of an alleged contract for the sale of realty located on the island of St. Croix. The defendants-appellees moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, alleging that the complaint failed to state a claim upon which relief can be granted. The basis for the motion was that the complaint did not allege the existence of a writing signed by the defendants, as required by the Virgin Islands Statute of Frauds, 28 V.I.C. § 242. This appeal is from the final order of the district court granting the motion to dismiss the complaint.

*336 Although the order appealed from refers only to Rule 12(b) (6), the district court apparently treated the motion as one for summary judgment under Rule 56, a procedure permitted by Rule 12(b), which allows matters outside the pleadings to be considered by the court. In this case, however, the use of Rule 12 (b) was improper.

The defense of failure to comply with the statute of frauds is an affirmative defense. Rüle 8(c) of the F.R.C.P. requires that this defense be set forth affirmatively by a party pleading to a preceding pleading. In this case, the defendants were required to file an answer to the complaint in order to raise the defense of statute of frauds. The motion to dismiss under Rule 12(b) (6) was improper.

The order of the district court, therefore, will be reversed and the cause remanded for further proceedings consistent with this opinion.

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OPINION OF THE COURT

PER CURIAM:

Appellant, Charles A. Currier, brought this action to compel specific performance of an alleged contract for the sale of realty located on the island of St. Croix. The defendants-appellees moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, alleging that the complaint failed to state a claim upon which relief can be granted. The basis for the motion was that the complaint did not allege the existence of a writing signed by the defendants, as required by the Virgin Islands Statute of Frauds, 28 V.I.C. § 242. This appeal is from the final order of the district court granting the motion to dismiss the complaint.

*336 Although the order appealed from refers only to Rule 12(b) (6), the district court apparently treated the motion as one for summary judgment under Rule 56, a procedure permitted by Rule 12(b), which allows matters outside the pleadings to be considered by the court. In this case, however, the use of Rule 12 (b) was improper.

The defense of failure to comply with the statute of frauds is an affirmative defense. Rüle 8(c) of the F.R.C.P. requires that this defense be set forth affirmatively by a party pleading to a preceding pleading. In this case, the defendants were required to file an answer to the complaint in order to raise the defense of statute of frauds. The motion to dismiss under Rule 12(b) (6) was improper.

The order of the district court, therefore, will be reversed and the cause remanded for further proceedings consistent with this opinion.

16 Fair empl.prac.cas. 978, 15 Empl. Prac. Dec. P 8090 James Bethel v. Jendoco Construction Corporation, Navarro Corporation, Noralco Corporation, Dick Corporation, Graziano Construction Co., Inc., Martin & Nettrour Contracting Company, Carpenters' District Council of Western Pennsylvania, United Brotherhood of Carpenters and Joiners of America, Jointly and Severally

570 F.2d 1168 (Third Circuit, 1978)

Bethel v. Jendoco Construction Corp.

570 F.2d 1168 (Third Circuit, 1978)

Anthony v. Tidwell

560 S.W.2d 908 (Tennessee Supreme Court, 1977)

Romano v. Sacknoff

357 N.E.2d 781 (Massachusetts Appeals Court, 1976)

Rozene v. Sverid

351 N.E.2d 541 (Massachusetts Appeals Court, 1976)

Robert Hanna v. United States of America Veterans' Administration Hospital

514 F.2d 1092 (Third Circuit, 1975)

Hixson v. Stickley

493 S.W.2d 471 (Tennessee Supreme Court, 1973)

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442 F.2d 422, 8 V.I. 334, 14 Fed. R. Serv. 2d 1195, 1971 U.S. App. LEXIS 11507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-a-currier-v-william-e-knapp-wilbur-t-bolkcom-and-r-phillip-ca3-1971.

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