Glen George Selkridge v. Ermin Oretha Greene and David Bryon Johnson, Jr.

• Court: Superior Court of The Virgin Islands
• Decided: August 11, 2021
• Docket: SX-20-CV-761
• Status: Unpublished

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX GLEN GEORGE SELKRIDGE PLAINTIFF, Civil No SX 2020 CV 761

v COMPLAINT TO QUIET TITLE ERMIN ORETHA GREENE AND DAVID CITE AS 2021 VI SUPER M BYRON JOHNSON JR DEFENDANTS

Appearances Charlotte S Sheldon, Esq McChain Hamm & St Jean Christiansted, U S Virgin Islands For Plamtzfi"

MEMORANDUM OPINION AND ORDER

1} 1 THIS MATTER came before the Court on Plaintiff Glen George Selkridge’s (hereinafter

“Plaintiff ) motion for default judgment, filed on April 16, 2021

BACKGROUND

1[ 2 On October 23, 2020, Plaintiff filed a complaint against Defendant Ermine Oretha Greene

(hereinafter “Greene”) and Defendant David Byron Johnson, Jr (hereinafter “Johnson” and

together with Greene, ‘Defendants’ ) to quiet title to the following property No 20 Building B

The Towers Condominium Rem Parcel No 2 Estate Contant, 7A Southside Quarter, St Thomas,

U S Virgin Islands (hereinafter “Property”) In his complaint, Plaintiff alleged (i) “Plaintiff was

the sole owner of the [Property] (Compl 1| 5), (ii) “Plaintiff inadvertently conveyed the property

by Warranty Deed to Defendants on October 14, 2016” (Compl fl 6), (iii) “Plaintiff‘s intent was

to keep the property in his name and to add the Defendants as additional grantees, who would then

receive the property as joint tenants with rights of survivorship upon his death (Compl 1]?), (iv)

‘ Plaintiff misunderstood the language of the Warranty Deed that was drafted and executed it Selkrzdge v Greene et al SX 2020 CV 761 Memorandum Opinion and Order 2021 VI SUPER 3b“ Page 2 of 9

conveying the property entirely to Defendants” (Compl 1| 8), (v) “Defendants have refused to

convey the property back to Plaintiff (Compl 1 9) and (vi) “Defendants are improperly

withholding the property that was inadvertently conveyed to them (Compl 11 10) Plaintiffs

complaint did not set forth counts 111 separate numbered paragraphs with separate de81gnation of

the specific names of each count in the pleadings as required under Rule 8 of the Virgin Islands

Rules of Civil Procedure (hereinafter “Rule 8”) ' However, Plaintiff acknowledged in the caption

that it is a complaint to quiet titie Plaintiff sought for (i) a judgment that Plaintiff is the fee simple

owner of the Property, (ii) a judgment that Defendants do not have any right, title or interest in the

Property (iii) attorney’s fees and costs and (iv) further relief as the Court may deem proper The

following documents were attached to the complaint as Exhibit 1 a copy of a warranty deed, dated

October 14 2016 (hereinafter “October 14, 2016 Warranty Deed”) a copy of a document titled

‘ Affidavit for exemption from stamp taxes according to Title 33 Section 128 of the V I Code,”

and a copy of a document titled “Real property tax clearance letter ” According to the October 14,

2016 Warranty Deed, Plaintiff, as the grantor, granted and conveyed “all of his right, title and

interest” in and to the Property to Defendants, as the grantees

1| 3 On February 23 2021 Plaintiff filed a motion for entry of default A copy of the complaint

a copy of the proofs of service for Defendants, and a copy of an affidavit of counsel was attached

to Plaintiff’s motion for entry of default as Exhibit A, Exhibit B, and Exhibit C respectively

According to the proofs of service, Defendants were served on January 20, 2021 at 9315 Bardeen

‘ Rule 8 mandates that “a pleading that states a claim for relief must contain (1) short and plain statement of the grounds for the coun's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support, (2) a short and plain statement of the claim showing that the pleader is entitled to relief because this is a notice pleadmg jurisdiction and the pleading shall be set forth in separate numbered paragraphs as provided in Rule 10(b), with separate designation of counts and defenses for each claim identified in the pleading, and (3) a demand for the reliefsought, which may include relief in the alternative or different types of relief V I R Civ P 8(a) (emphasis added) Selkrldgev Greene 9! a1 sx 2020 CV 761 Memorandum Opinion and Order 2021 v1 SUPER M Page 3 of 9

Way, Iowa Colony, Texas in the following manner “[b]y delivering a true copy of the summons

and complaint and leaving with Jane Doe who is known to be the co resident and a competent

household member over 14 years of age residing therein” and “[s]aid premises is recipients usual

place of abode within the state ”2 (Motion for Entry of Default Exhibit B ) On March 16, 2021,

default was entered against Defendants

1] 4 On April 16, 2021 Plaintiff filed this instant motion On June 3 2021 the Court entered

an order whereby the Court noted

Upon review of the file, it has come to the Court’s attention that Plaintiff did not provide, with its previous motion for entry of default or instant motion for default judgment, any evidence showing that neither Defendant Greene nor Defendant Johnson is a minor, an incompetent person, or a person subject to the provisions of the Servicemember's Civil Relief Act of 2003, or an affidavit stating such There are additional rules to serving a minor or an incompetent person,2 and a person subject to the Servicemember's Civil Relief Act of 2003 is protected from being sued while in active military service 3 As such, the Court will give Plaintiff an opportunity to remedy the deficiency and reserve ruling on Plaintiff‘s instant motion

2Title 5 V I C § 111 provides § 111 Service on infant or incompetent person In the cases referred to in Rule 4(d)(2) of the Federal Rules of Civil Procedure, service shall be made as follows (1) Upon an infant, by delivering a copy of the summons and of the complaint to the infant personally, and also to his father, mother, or guardian, or if there is none within the Virgin Islands then to any person having the care or control of such infant, or with whom he resides, or in whose service he is employed

2 Rule 4 of the Virgin Islands Rules of Civil Procedure (hereinafter “Rule 4”) governs service of process Rule 4(t) provides that “Where 5 V I C § 4903 or other applicable law provides for the assertion of personal jurisdiction over a person located outside the Virgin Islands, the provisions and procedures of Title 5 V l C Chapter 503 shall be followed including, but not limited to, the procedures for service and the filing of proof of service set forth in 5 V I C § 4911 V I R CIV P 4(f) Title 5 V l C § 4911 provides that [w]hen the law of this territory authorizes service outside this territory, the service, when reasonably calculated to give actual notice, may be made (1) by personal delivery in the manner prescribed for service within this territory ” Title 5 V I C § 491 l(a)(l) Here, Defendants were served in a manner prescribed for service within the U S Virgin Islands See Rule 4(e)(2) (“Unless law of the Virgin Islands provides otherwise, an individual other than a minor, an incompetent person, or a person whose waiver has been filed may be served in the Virgin Islands by doing any of the following (2) leaving a copy of the summons and complaint at the individual's dwelling or usual place of abode with someone ofsuitable age and iscretion who resides there ”) Selkrtdge v Greene, et a1 SX 2020 CV 76] Memorandum Opinion and Order 2021 v1 SUPER m Page 4 of 9

(2) Upon a person judicially declared to be of unsound mind or incapable of conducting his own affairs for whom a guardian has been appointed, by delivering a copy ofthe summons and of the complaint to the defendant personally and also to such guardian 3 The Servicemembers’ Civil Relief Act of 2003, formerly known as the Soldiers' and Sailors' Civil Relief Act of 1940, is a federal law that gives all military members some important rights as they enter active duty, including but not limited to protection from being sued while in active military service of their country

(June 3 2021 Order p 3 )

Thus, the Court ordered Plaintiff to supplement his motion for default judgment with evidence

showing that neither Defendant Greene nor Defendant Johnson is a minor, an incompetent person,

or a person subject to the provisions of the Servicemember's Civil Relief Act of 2003, and/or an

affidavit stating such and reserved ruling on Plaintiff‘s motion pending receipt of Plaintiff’s

supplemental filing

11 5 On July 2 2021, Plaintiff filed an affidavit whereby Plaintiff declared under penalty of

perjury that neither Defendant Greene nor Defendant Johnson is a minor, an incompetent person,

or a person subject to the provisions of the Servicemember's Civil Relief Act of 2003

STANDARD OF REVIEW

1|6 Rule 55 of the Virgin Islands Rules of Civil Procedure (hereinafter “Rule 55”) governs

entry for default and default judgment An entry of default does not necessitate a default judgment

See Chaput v Scafz‘dz 66 V I 160 188 (Super Ct June 14 2017) ( Plaintiffs do not win by default

just because the defendants fail to appear ”) “[W]hen default is entered against a defendant, the

defendant is admitting only to the allegations against him as alleged in the charging document ”

Redemptzon Holdings Inc v Gov tofthe VI 65 V I 243 255 (V I 2016) (citing ngv Appleton

61 VI 339 346 (VI 2014)) In ng the Virgin Islands Supreme Court pointed out that the

Superior Court must consider whether the unchallenged facts constltute a legitimate cause of

action, since a party in default does not admit mere conclusion of law” and that if the Superior Selkrldge v Greene, e! a] SX 2020 CV 761 Memorandum Opinion and Order 2021 VI SUPER m Page 5 of 9

Court determines that the unchallenged facts constitute a legitimate cause of action, then it is “to

hold a default judgment hearing to establish the amount of damages ” 61 VI at 346 (internal

quotes and citations omitted) (footnote omitted) However, a default judgment can be entered

without a hearing “[w]hen the plaintiff‘s claim against a defendant is for a sum certain or for a sum

which can by computation be made certain ” Appleton v Harrzgan, 61 V I 262 270 (V I 2014)

(citing Super Ct R 48(a)(1)) 3 see V I R CIV P 55(b)(1) ( If the plaintiff‘s claim is for a sum

certain or a sum that can be made certain by computation, the court or the clerk on the plaintiff‘s

request, with an affidavit showing the amount due must enter judgment for that amount and

costs against a defendant who has been defaulted for not appearing and who is neither a minor nor

an incompetent person ”) In Harrzgan, the Virgin Islands Supreme Court explained that ‘ [a] claim

is not a sum certain unless there is no doubt as to the amount to which a plaintiff is entitled as a

result of the defendant's default ”4 61 V I at 270 “In all other cases [not involving a claim for a

sum certain], the party must apply to the court for a default The court may conduct hearings or

make referrals preserving any statutory right to a jury trial when, to enter or effectuate

judgment, it needs to (A) conduct an accounting, (B) determine the amount of damages,

3 The Harrtgan court noted “We again look to federal case law for persuasive authority because, even though Superior Court Rule 48 exclusively governs default judgment In the Superior Court, Federal Rule of Civil Procedure 55(b) similarly provides that default judgment can be entered without a hearing only where the damages sought are a “sum certain ” SUPER CT R 48(a)( 1) (“When the plaintiff‘s claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff shall enter judgment for the net amount due and costs against the defendant ”) FED R ClV P 55(b)( I ) (“Ifthe plaintiff‘s claim is for a sum certain or a sum that can be made certain by computation, the clerk must enter judgment for that amount and costs against a defendant ”) ”) 61 V1 at 270 n 9 Since Harrzgan, the Virgin Islands Supreme Court adopted the Virgin Islands Rules of Civil Procedure, which went into effect on March 31 2017 Subsequently, Superior Court Rule 48 was repealed on April 7, 2017 by Supreme Court Promulgation Order No 2017 0006 While Superior Court Rule 48 has been repealed and the Federal Rules of Civil Procedure does not apply in this matter, the Court nevertheless finds the Hamgan court’s analysis as to sum certain claims helpful here since Rule 55(b)(1) closely mirrors its federal counterpart and Superior Court Rule 48 4 See supra, footnote 3 Selkrzdge v Greene, er a! SX 2020 CV 761 Memorandum Opinion and Order 2021 VI SUPER $10! Page 6 of 9

(C)estab1ish the truth of any allegation by evidence, or (D) investigate any other matter ” V I R

CW P 55(b)(2)

DISCUSSION

1] 7 In his motion, Plaintiff requested that “a default judgment be entered ordering that Plaintiff

is the fee simple owner of all right, title, and interest to the Property, that the current deed

inadvertently conveying title to Defendants is hereby nullified and cancelled, for attorney’s fees

and costs incurred in prosecuting this matter, and such further relief as this Court may deem just

and proper ” (Motion, p 3) Plaintiff made the following assertions in support of his request (i)

“[I]n light ofthe entry of default, the allegations in the Complaint have been subsequently admitted

by Defendants and cannot now be contested,”5 (1d , at p 2) (ii) “This is a simple quiet title action

Pursuant to 28 V I C § 371, ‘any person in possession, by himself or his tenant, of real property,

may maintain an action of an equitable nature against another who claims an estate or interest

therein adverse to him, for the purpose of determining such claim, estate, or interest ”’6 (Id ); and

(iii) “Plaintiff did not intend to transfer his entire interest to Defendants, and as such, the Warranty

Deed did not validly pass title to Defendants ”7 (Id , at p 3 )

5 Plaintiff referenced King, 61 V1 at 346 ( ‘by his default, admitted the plaintiffs weil pleaded allegations of fact, {he} is concluded on those facts by the judgment, and is barred from contesting the facts thus established ”) (citmg Harrtgan 2014 WL 4428451 at *3) (quoting sthzmatsu Constr Co v Houston Nat'l Bank 515 F 2d 1200 1206 (5th Cir 1975)) Bank ofNova Scona v Dore 57 V 1 105 110 (V I Super Ct 2012) (after the entry of default a trial court accepts the factual allegations of the complaint as true, except for those averrmg the amount of damages”) 6 Plaintiffreferenced Redemption Holdings Inc v Hall 2015 WL 13579239 at *2 (VI Super Ct Feb 25 2015) 017?! sub nom Redemption Holdings Inc v Gov ’1‘ ofthe Virgin Islands 65 V I 243 (2016) 7 Plaintiff referenced S & SServs Inc v Rogers 40 Vi 320 327 35 F Supp 2d 459 463 64 (D V1 1999)( In the Virgin Islands, a properly executed deed is validly delivered to pass title only when it is delivered by the grantor to the grantee with the present intent to transfer title Possession of the deed was not given to her with the intention of thereby passing title of the Parcel to her Accordingly, her recordation of the deed purporting to vest title in her is void and must be canceled of record ’ ) Selkrldgev Greene er a1 SMfiliflignfli/Inzgpinion and Order 2021 v1 SUPER M Page 7 of 9

I Whether Plaintiff is Entitled to a Judgment by Default

11 8 In order for the Court to consider whether the unchallenged facts constitute a legitimate

cause of action, the Court must first discern the causes of action alleged in Plaintiff’s complaint

Here, as noted above, Plaintiff’s complaint did not set forth counts in separate numbered

paragraphs with separate designation of the specific names of each count in the pleadings as

required under Rule 8 Nevertheless, this error is not fatal if Plaintiff’s compiaint sufficiently put

Defendants on notice of the claims brought against them See V I R Civ P 8(a)(2) (“[The Virgin

Islands] is a notice pleading jurisdiction”), lels Williams v Mapp, 67 VI 574, 585 (2017)

(“Virgin Islands Rule of Civil Procedure 8 expressly states that the Virgin Islands “is

a notice pleading jurisdiction,” V I R CIV P 8(a), and the Reporter's Note eliminates any doubt

that this language is calculated to ‘ apply[] an approach that declmes to enter dismissals of cases

based on failure to allege specific facts which, if established, plausibly entitle the pleader to

relief ’ (citing V I R CIV P 8 Reporter's Note (emphasis added» (citing Brathwalte v HD VI

Holdmg Co 2017 VI LEXIS 76 at *3 (VI Super Ct May 24 2017) (acknowledging that

Virgin Islands Civil Procedure Rule 8(a)(2) eliminates the plausibility standard and instead will

permit a complaint so long as it “adequately alleges facts that put an accused party on notice of

claims brought against it”)), Wzllzams v Galzber, 70 V I 226, 230 (Super Ct 2019)

( Notice pleading means that a Compiaint is sufficient when it ‘adequately alleges facts that put an

accused on notice of claims brought against it ”’)

fl9 Based on Plaintiff’s allegations in the complaint and Plaintiff’s acknowledgment in the

caption that it is a complaint to quiet title, the Court finds that the complaint has sufficiently put

Defendants on notice of Plaintiff’s quiet title claim However, the Court finds that Plaintiff’s

complaint also included another claim although it is unclear whether this other cause of action Selkrzdge v Greene, et a1

Isidéligigngzizgpinion and Order 2021 VI SUPERM Page 8 of 9

calls for rescission of the October 14, 2016 Warranty Deed8 or calls for a declaratory judgment

that the October 14 2016 Wmanty Deed is void from its inception 9 Given the lack of clarity

regarding whether this other claim calls for rescission or a declaratory judgment, and given the

lack of facts alleged in the complaint, the Court finds the complaint has not sufficiently put

Defendants on notice of the claim that is brought against them to defend See Oxley v Sugar Bay

Club & Resort Corp 2018 VI LEXIS 81 at *10 (V I Super Ct May 14 2018) ( Based upon

the differences among notice pleading, fact pleading, and the plausibility standard, this Court

determines that a complaint need not plead facts to support each element of a claim in order to

adequately allege facts that put an accused party on notice or to show[] the pleader is entitled

to relief under V I R CIV P 8(a)(2) But, a complaint should provide factual allegations sufficient

to advise the responding party of the transaction or occurrence on which the claim is based and

identify the claim, reciting its elements, so as to enable the defendant to respond intelligently and

to enable the Court to determine on a motion to dismiss under V I R Civ P 12(b)(6) whether

the claim is adequately pied ) As such the Court finds that Plaintiff is not entitled to a judgment

by default at this juncture

CONCLUSION

11 10 Based on the foregoing, the Court will deny Plaintiff‘s motion for default judgment but

will give Plaintiff the Opportunity to file a first amended complaint Accordingly it is hereby

3 In Stretbzch v Underwood, the Virgin Islands Supreme Court noted that “[a] deed is a contract and thus in most circumstances the principles of contract interpretation govern ” 2021 V13, 1[ 24 9 In Plaintiff‘s prayer for relief in the complaint, Plaintiff asked for, inter alia, a judgment that Defendants do not have any right title or interest in the Propetty (Compl) In his motion, Plaintiff requested a default judgment be entered ordering that the current deed inadvertently conveying title to Defendants is hereby nullified and cancelled (Motion p 3) Selkrldge v Greene, 2! a1 SX 2020 CV 761 Memorandum Opinion and Order 2021 V1 SUPER m Page 9 of 9

ORDERED that Plaintiffs motion for default judgment filed on April 16 2021 is

DENIED It is further

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

Opinion and Order, Plaintiff may file a proposed first amended complaint drafted in compliance

with the Virgin Islands Rules ofCivil Procedure including, but not limited to, setting forth counts

in separate numbered paragraphs with separate designation of the specific names of each count in

the pleadings as required under Rule 8 of the Virgin Islands Rules of Civil Procedure, and name

the defendant or defendants for each count clearly It is further

ORDERED that Plaintiff shall file (i) a redline copy of the new proposed first amended

complaint reflecting the changes made to the initial complaint and (ii) a clean copy of the new

proposed first amended complaint, in compliant with Rule 15 1 of Virgin Islands Rules of Civil

Procedure, which 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 ” 4A» DONE and so ORDERED this \ 1 day of August 2021

ATTEST CL? 6/fix /flI 5/44/ ’” X\ Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court I ‘3 . - . wage; (I 4"\ V [I

C v? Supervisor

Dated Ii I all