Henry Davis and Janet Davis v. Miriam Milligan

• Court: Superior Court of The Virgin Islands
• Decided: December 3, 2020
• Docket: SX-18-CV-337
• Status: Unpublished

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST CROIX

HENRY DAVIS AND JANET DAVIS PLAINTIFFS, Civil N0 SX 18 CV 337

V ACTION FOR DAMAGES

MIRIAM MILLIGAN JURY TRIAL DEMANDED

DEFE‘DA‘T CITE AS 2020 v1 SUPER 99v

Appearances Yohana M Manning, Esq Manning Legal Services P C Christiansted U S Virgin Islands For P](llll[l_fi$‘

Daryl C Barnes, Esq Paul R Neil, Esq Barnes & Neil LLP Christiansted U S Virgin Islands For Defendant

MEMORANDUM OPINION

WILLOCKS Presiding Judge

‘lIl THIS MATTER came bCfOIC the Court on Defendant Miriam Milligan s (hereinafter

Defendant ) motion for summaryjudgment filed on J uiy l 2020 To date Plaintiff Henry Davis

and Plaintiff Janet Denis (hereinaftex collectively Plaintiffs ) have not filed an opposition and the

deadline for Plaintiffs to file a timely opposition has passed ' On August 27 2020 Defendant filed

a notice of Plaintiffs failure to xespond to Defendant § motion for summaly judgment and

tequested for entry of judgment 7

‘ Ru]; 56 0| Virgin Islands Ru]; 0! Civil Proccdun. prmidcs that [alny party :1ch“; to a motion tiled undcr this R1114. may file a brie! in opposition any atfidavils desired and/or olhu douumcnts rclicd upon in opposition to the motion within '40 days of the tiling of th:. motion V I R CW P 56(c)(2)(A) ’ In ha notice Dctendam rcquested that should 1h; Court deny the pending MS] for any reason that Ms Milligan be pcrmittnd lo complclc ail expert diswury and deposition: and to tile additionai disposiliu Daubelr motions it any Dam el al 1 Mllllgan 9X 18 CV 17.7 Memorandum Opinion 2020 VI SUPER 99U Page 2 of 10

BACKGROUND

‘1[2 On September 12 2018 Plaintiffs filed a complaint against Defendant for an alleged single

vehicle incident involving Defendant and Plaintiffs In her complaint Plaintiffs alleged inter alia

[o]n the morning of Septembei 18 2016 Defendant collided with 30 C Estate Whim a property

owned and/or occupied by Plaintiffs and [ab 3 result of Defendant s negligence and/or gross

negligence Plaintiffs suffered significant damage to their property (Compl fl 2 4) On Octobei

23 2018 Defendant filed her answer to Plaintiffs complaint Thereafter a scheduling Older was

enteied and discovery commenced in this matter On December 4 2019 pet the parties joint

stipulating an amended scheduling order was entered which required factual disCOVery to be

completed by March 31 2019 On July 1 2020 Defendant filed this instant motion

STANDARD OF REVIEW

1113 Rule 56 of Virgin Islands Rules of Civil Procedure (hereinafter Rule 56 ) provides that

[a] patty may mow for summary judgment identifying each Claim or defense or the part of

each claim or defense on which summary judgment is sought and [t}he comt shall grant

summary judgment if the movant shows that them is no genuine dispute as to any material fact and

the movant is entitled tojudgment asa mattex oflaw V1 R CW P 56 see also Ryneri Kmart

Corp 68 V I 571 575 (V I 2018) ( A summary judgment movant is entitled to judgment as a

matter of law if the mo» ant can demonstrate the absence of a triable issue of material fact in the

record ) A factual dispute is deemed genuine if the e» idence is such that a leasonable jury could

return a verdict for the nonmoving party[ i and a fact is mateiiai only where it might affect the

outcome of the suit under the governing 1aw[ ] Todman 70 V I at 436 (citations omitted) Once

Defendant should file her discovery request in a motion separate from her noliLe As such the Court will not address the discovery rcquesl included in Deiendant s notiu. Dm 1: er a! 1 Mtlllgan 9X 18 CV 337 Memorandum Opinion 2020 VI SUPER 99U Page 3 m 10 the moving party has identified the pmtions of the tecord that demonstrate no issue of material

fact the burden shifts to the non moving party to present affirmative evidence from which ajury

might reasonably return a VBIdiCI in his‘ favor war 68 V I at 576 (citing Chapman v Cornwall

58 V I 431 436 (V I 2013)) (intemal citations and quotation marks omitted) The non moving

party may not rest upon mere allegations [but] must present actual evidence Showing a genuine

issue for tria1 Rune: 68 V I at 576 (quoting Wzllmms t Umred Cmp 50 VI 191 194 (VI

2008)) Thetefore to survive summary judgment the nonmoving party 9 evidence must amount

to more than a scintilla but may amount to less (in the evaluation of the court) than a

preponderance Kennedy Fundmg Inc 1 GB Propernec Ltd 2020 V I 5 ([[14 (citation and

intemal quotations omitted)

$14 Rule 56 provides that [e]ach summary judgment motion shall include a statement of

undixputed facts in a separate section within the motion and that [e]ach paragraph stating an

undisputed fact shah be serially numbeted and each shah be supported by affidavit(s) 0r citations

identifying specificalIy the location“) of the material(s) in the ICLOTd re1ied upon regarding such

fact V I R CIV P 56(c)(1) Additionally Rule 56(e) states that {i]f a patty fails to properIy

support an assertion of fact or fails to properIy address anothet patty s assertion of fact as tequired

by Rule 56(0) the court may (1) give an opportunity to ploperly support or address the fact (2)

consider the fact undisputed for purposes of the motion‘ (3) grant summary judgment if the motion

and supporting materials including the facts considered undisputed Show that the movant i9

entitled to it' 01 (4) issue any other appropriate order V I R CIV P 56(e)( l) (4) The reviewing

court must view all inferences from the underlying facts in the light most favorable to the

nonmoving party and take the nonmoving partys conflicting a11egations as true if properly

supported Kennedy 2020 V I 5 (1114 Wzllmms 50 V I at 194 Pere v Rn Carlton (Virgin Dametal I Mllllgan 3X 18 CV "H7 Memorandum Opinion 2020 VI SUPER 99v Page 4 0f 10

Islands) Inc 59 VI 522 527 (VI 2013) Moreover the court should not weigh the eyidence

make c1edibility determinations or d1 aw legitimate inferences from the facts when ruling upon

summary judgment motions because these are the functions of the jmy Todman 70 V I at 437

(quoting Williams t Umted Corp 50 V I 191 197 (V I 2008) In deciding a motion for summary

judgment the count 3 role is not to determine the truth but lather to determine whether a factuaI

dispute exists that warrants trial on the merits Todmcm 70 VI at 437 (quoting HaltkmS‘ 1

Grezner 66 V I 112 117 (V I Super Ct 2017) Because summary judgment is {a] drastic

remedy a court should only grant summaly judgment when the pleadings the discoyery and

disclosure materials on tile and any affidavits show there is no genuine issue as“ to any matetial

fact Rune; 68 VI at575 76 (quoting Wzllzcum 50VI 191 194) Finally Rule 56 requires the

court to state on the record the reasons fOI granting or denying the motion V I R CW P 56(3)

DISCUSSION

(|{5 In his motion Defendant 211 gued that Plaintiffs are not the real party in intexest as required

under Rule 17 of Virgin Islands, Rules of Civil Procedu1e since they have failed to produce

evidence showing they have any legal ownership or right to [30 C Estate Whim} and therefore

the Conn should enter judgment for Defendant (Motion p 1) Defendantfi made the foliowing

assertions in support of his argument (i) Plaintiffs previously asserted that an action to quiet title

to the Real Ploperty is 01 was pending in the Superior Court of the Virgin Islands (Id at p 2

n 2)‘ (ii) The only evidence provided by Plaintiffs are self serving interrogatory responses

alleging Plaintiffs are owners by means of adverse possession but unsupported by any deed or

otherwise showing actual ownership (Id ) (iii) In order to file and pursue a lawsuit a plaintiff

must have actual injury to the plaintiff 5 actual vested interest in the subject of the suit as a Dans er a! \ Mlllzgan SK [8 CV 327 Memorandum Opinion 2020 VI SUPER 99U Page 5 of IO

plaintiff cannot generally Iedress some othel pexson s injuries 2 (Id at p 2) (iv) Courts do not

decide hypothetical cases 4 (Id ) (v) Piaintiffs mere bald allegation in the Complaint that they

purpmtedly owned and/or occupied the Real Property” is not evidence but is instead bald

unsupported argument (Id at p 4) (vi) Given the dearth of any actual evidence proving they

have a valid and recognized legal interest in the Real Property Plaintiffs claim against Ms

Milligan is no better than any other stranget or trespasset alleging entitlement f0: damages to

property the person does not actually own or legally possess (Id ) and (vii) Plaintiffs likewise

fail to produce evidence showing a prima facie claim against Ms Milligan because Plaintiffs

lack evidence that Ms Milligan owed them (as non owners of the Real Propelty) any legal duty

of cane any breach of that non existent duty or any damages to Plaintiffs (Id at pp 4 5) As

such Defendant requested the Count to g1 ant hex motion and enter judgment in favor of Defendant

‘H6 The Court must note at the outset that Defendant s motion failed to include a statement of

undisputed facts in a separate section within the motion with [elach palagraph stating an

undisputed fact serially numbered and each supported by affidavit(s) or citations identifying

specifically the 10cation(s) 0f the mateiialhs) in the record relied upon regatding such fact as

required under Rule 56 6 V I R CIV P 56(c)( 1) Nevertheless pursuant to Rule 56(6) [i]fa patty

fails to propexly support an assertion of fact or fails to properly address anothel party 5 asseltion

of fact as required by Rule 56(c) the court may (3) grant summary judgment if the motion and

supporting materials including the facts considered undisputed show that the movant is

‘Dcienddnt referenced GOOleMl Fawkes 67 VI [04(VI Super C! Du. l" 2006) 4 Detendant reterenced Fenster I Dechaben 65 VI 20 (VI Supu Ct A110 8 20I6) Walshx Dalt 2014 VI LEXIS 36(VI Quper Ct June l8 201-1) Wheeler t Bartem 417 U S 402(1974) 011 Chem & Ammzc Workers In! I UNION 1 M13501!!! "46] U § 16% (1959) ‘ [n his motion Defendant defined Real Property as the real property located at 30 C Estate Whim on St Croix ‘5 Parties are reminded to comply with all applicable rules Dam er a! t Mtlltgun SX 18 CV ”4'57 Memorandum Opinion 2020 VI SUPER 99U Pam. 6 01 10

entitled to it VI R CIV P 56(e)(3) Thus Defendant 5 failure to include a statement of

undisputed facts does not automatically tender hex motion fatally deficient See e g Hendricks t

Pmnmle Servzcev Ll C 72 VI 630 635 (Super Ct March 16 2020) (The court noted that

[though a motion fox summary judgment must include a statement of undisputed facts to which

the nonmowant must have an opportunity to respond the Count finds that ordeting the parties to

provide such statements and to conduct further briefing would be a waste ofjudicial resources and

of the parties time and granted Defendants motion for summary judgment) The Court must

further note that Plaintiff did not file a xesponse to Defendant s motion The Supreme Court of the

Virgin Islands has held that [t]he trial coutt may not accept as true the moving palty s itemization

0f undisputed facts instead the court must satisfy itself that the evidence in the summary judgment

recoxds supportsthis relief Vanterpool t Gm t0] the Virguzlslands 63VI 563 583(VI 2015)

(quoting Mmtm t Marin: 54 V I 379 389 (V I 2010)) Thus this Count is required to consider

the melits of Defendant s motion and grant summary judgment only when the evidence in the

summary judgment reconds supports this relief Id

1 Rule 17 of Virgin Islands Rules of Civil Procedure

t117 Rule 17 of Virgin Islands Rules of Civil Procedure (hereinafter Rule 17 ) requires that

[a]n action must be prosecuted in the name of the real party in interest V I R CIV P l7(a)( 1)

However Rule 17 also provides that [t]he court may not dismiss an action for failure to prosecute

in the name of the real party in interest until after an objection a reasonable time has been allowed

for the real party ininterest to ratify join or be substituted into the action VI R CIV P 17(a)(2)

While Virgin Islands Rules of Civil Procedure do not Specify the procedure for raising a Rule

l7(a)(l) objection courts have noted that it should be made in a timely manner such as in an Dam er a! i Milltqan 9X 18 CV :27 Memorandum Opinion 2020 VI SUPER 99U Page 7 0| [0

answer or responsive pleading 7 Hess 011 VI Corp i F1110; Dame] 72 VI 676 70] 02 (Super

Ct April 8 2020) (Citing For a Techs LLC 1 Premier Research Lain LP No 12 CV 7905

2013 U S Dist LEXIS 171753 5 (N D 111 Dec 5 2013) (citing In )eSzgnaI IntlLLC 579F3d

at 487)) In Hen the court found that since the real party in interest is a defense that must be

raised at the earliest opportunity the Court finds that John Zink and R&G timely raised it here by

moving to dismiss for failure to state a claim Hess 72 V I at 702 Heie Defendant did not raise

he: Rule 17(a)(l) objection in an answer 01 iesponsiVe pleading Howevei Defendant indicated in

hex motion that Defendant only concluded that Plaintiffs are not the real party in interest upon the

conclusion of factual discovery and Plaintiffs failed to produce any evidence ptoving that they

have owneiship interest in the teal pioperty located at 30 C Estate Whim on St Croix( Property )

According to the amended scheduling order factual discovery was to be completed by March 31

2019 and Defendant filed this instant motion raising her Rule l7(a)(1) objection on July I 2020

The Coult finds that Defendant timely raised it in this instance To date Plaintiffs have remained

silent as to Defendant s Ruie l7(a)(l) objection They failed to file a tesponse t0 Defendant s

motion Moreovet even after Defendant filed a notice of Plaintiffs failure to respond to

Defendant s motion and repeated thetein that Plaintiffs haw failed to pioduce any evidence

proving they have any standing or compensable interest in this lawsuit Plaintiffs still faiied to

respond It has now been almost six months since Defendant fiist raised her Rule l7(a)(l)

objection Accordingly the Court finds that a reasonable time has been allowed for the real party

In Hess the went addressed Rule l7 oi the Federa! Ruies 0t Chi] Procedure (2005 ed ) whieh eontained language similar to Rule 17 Rule l7 ot the Federai Rules 0| Civil Proeedure provides that [M0 aetion shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objeetion tor ratification 0t eommeneement M the aetion by or joinder 0r substitution of the real party in interest and sueh ratitieation joinder or substitution shall have the same effeet as it the aetion had been eommeneed in the name ot the real party in interest Fed R Ci» P [7(a) (2005 ed ) Damon]! 1 leltgan 9X 18 CV 137 Memorandum Opinion 2020 VI SUPER 99U Page 8 of IO

in interest to ratify join or be substituted into the action as tequired under Rule 17(a)(2) before

this matter may be dismissed

‘][8 The Court will now tum t0 the merits of Defendant s motion and deteimine whethei the

evidence supports the Court granting summary judgment in fav01 of Defendant Here Plaintiffs

two page complaint simply stated the following

2 On the moming of September 18 2016 Defendant collided with 30 C Estate Whim a propeity owned and/or occupied by Plaintiffs 3 Defendant spoke to officer Cuthbert Cyril and stated that she lost control of her vehicle and collided with 30 C Estate Whim 4 As a resuit of Defendant s negligence and/or gloss negligence Plaintiffs suffeied significant damage to then property

No evidence supporting Piaintiffs ownership interest in the Pioperty was attached to the

complaint Additionally as noted above even after Defendant iaised her Rule 17(a)(i) objection

and moved fox summary judgment Plaintiffs never opposed 0r piesented affirmative evidence

disputing Defendant 5‘ aigument Sec Rimer 68 VI at 576 (citing Chapman 58 VI at 436)

(internal citations and quotation maiks omitted) (Once the moving party has identified the portions

of the rec01d that demonstiate no issue of matetial fact the burden shifts to the non moving patty

to present affirmative evidence from which a jury might leasonably return a verdict in his favor )

While Defendant did indicate in her motion that Plaintiffs averred in their discovery responses that

there is or was an action to quiet title to the Property in the Supeiior Court of the Virgin Islands

and that they are owners by means of adverse possession Plaintiffs never filed a response to

Defendant s motion or notice to provide the case number or any evidence supporting their

ownership interest in the Property See Rune; 68 V I at 576 (quoting Williams 50 V I 191 at

194) (The non moving paity may not rest upon mete aiiegations [but] must present actual

evidence showing a genuine issue for trial ) Here even when the inferences to be drawn from Dam er a! t Millzgan §X 18 CV T47 Memorandum Opinion 2020 VI SUPER 99U Page 9 of H)

the underlying facts ate Viewed in the light most favorable to Plaintiffs the Court finds that

Plaintiff is evidence that they have ownership interest in the Pioperty failed to amount to mow than

a scintilla Kenneth 2020 V I 5 ‘1114 ( [T10 survive summary judgment the nonmoving party s

evidence must amount to more than a scintilla but may amount to less (in the evaluation of the

court) than a pteponderance ) As such the Court concludes that thete is no genuine dispute as to

any material fact regarding Defendant s Rule l7(a)(l) objection Plaintiffs without being the real

patty in interest cannot prosecute this mattei See VI R CIV P l7(a)(l) ( An action must be

prosecuted in the name of the real party in interest ) More specifically Plaintiffs without having

any ownetship interest in the Property cannot claim that they sustained any damages as a result of

the alleged single vehicle incident 8

CONCLUSION

919 Based on the foxegoing the Court will giant Defendant s motion and entet summaty

judgment of dismissal with ptejudice for failure to prosecute in the name of the teal party in

interest Additionally the C0u1t will close this matte: since there are no other pending issues

herein An order and judgment consistent with this Memorandum Opinion will be entered

contemporaneously herewith

DONE and so ORDERED this 8M day ofanember‘ZOZO

8 In their complaint Plaintitfs alleged in that [als a direct and proximate result ol the occurrence made the basis 0t this lawsuit Plaintiffs sulfered significant property damage and that {t]he Defendant 5 action eonstituted negligenee negligence per se and/or gross healiaenee (Compl TR 6 8) In light of the Court s finding as to the element of damages the Count need not teach the other elements of negligenee negligence per se and gross negligence at this juncture It should be noted that Plaintilt s complaint is not Lompliant with Virgin Islands Rules 0t CiVll Proeedure because it did not prmide a short and plain statement of the claim showinCr that the pleader is entitled to reliet with separate designation of eounts and delens‘es‘ to: each claim identified in the pleading as required undet Rule 8 V I R Cl» P 8(a)(2) Parties are again reminded to comply with all applicable rules Dans e! a! 1 Mllllgan SK [8 CV H7 Memorandum Opinion 2020 VI SUPER 99U Page. 1001 IO

ATTEST / M Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court

By 2 22 M41262); ourt Clerk Supermorw

Dated / 92 ?;2 2%967 SUPERIOR COURT OF THE VIRGIN ISLANDS

HENRY DAVIS AND JANET DAVIS Pl AINTIFFS, Civil No SX 18 CV 337

DEFE‘DA‘T CITE AS 2020 VI SUPER 99v

Appearances Yohana M Manning, Esq Manning Legal Selvices P C Chlistiansted U S Virgin Islands For Plamtzfi‘s

Daryl C Barnes, Esq Paul R Neil, Esq Barnes & Neil LLP Christiansted U S Vilgin Islands F0) Defendant

ORDER AND JUDGMENT

In accordance with the Memorandum Opinion entered contemporaneously herewith it is

heteby

ORDERED, ADJUDGED, AND DECREED that Defendant s motion for summary

judgment filed on July 1 2020 is GRANTED It is fu1thet

ORDERED ADJUDGED AND DECREED that summaly judcment of dismissal with

prejudice for failule to prosecute in the name of the real patty in interest is ENTERED And it is

further

ORDERED that this matter is hereby CLOSED Den M er «I 1 Mtllzgcm 9X 18 CV W7 Order and Judgment 2020 VI SUPER 99U PaQL 2 0t 2

DONE and so ORDERED this 5 TX day of Qo€mb€f2020

ATTEST Z £14 2M5 :/_ (M Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court

By (”M 922:2igeméflfi C rt Clerk SW

Dated {f %Z %2 J69}???