Jerome Matthews v. R&M General Contractors, Inc.; Hector Rosario; and Jacqueline Mercedes

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

JFROME NIATTHEW a, PLAINTIFF,

"0

SK 13 CV 499

R&M GFNFRAL CONTRACTORS, INC, HECTOR ROSARIO, AND JACQUELINE NIERCFDES,

DEFENDANT?

ORDER

AND NOW in accordance with the Memorandum Opinion of even date it is hereby ORDERED that the Plaintiff s Motion for Reconsideration is GRANTED IN PART, DENIED IN PART it is further ORDERED that the Plaintiff tile and serve a motion to amend accompanied by a proposed amended complaint with the Memorandum Opinion within FOURTEEN (14) DAYS Upon approval of the proposed amende complaint by the Court the Defendants will haw: an additional FOURTEEN

(14) DAYS to file an amended answer ku—

DONE and so ORDERF D this 42 day of March 2020

Tamara Charl a HAROLD W L WILLOCKS Clerk of th f. u t z / ' esiding Judge of the Superior Court

By ‘- 1 F , A; __ ’1 .r

f ’ A Dated ‘ on if I L a

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

JFROME MATTHEWS, PLAINTIFF,

\ SX 13 CV 499

R&M GENFRAL CONTRACTORS, INC, Cite as 2020 VI Super 033 HFLTOR ROSARIO, AND JALQLELINF NIERCEDEQ,

DEFENDANTS‘

FOR PUBLICATION Appearances

JULITA K or LFON, ESQ ' Julita de Leon PLLC F0; Plamwj‘

K GLENDA CAMERON, ESQ Law Offices of K G Cameron For Defendants

MEMORANDUM OPINION

WILLOCKS Presiding Judge fill THIS MATTER is before the Court on the Plaintiff’3 Motion for Reconsideration of the Order of October I9 2018 Dismissing the Plaintiff s Motion for Leave to Amend the Amended Petition (hereinafter Motion for Leave to Amend ) and Granting Defendants Motion to Discharge and/or Remove L15 Fem/ens (hereinafter Motion to Discharge Notice ) The Motion for Reconsideration was filed November I? 2018 The Defendants filed an Opposition on December 4 2018

' At the publiLation 0t this opinion Attomcy (it. Leon has filed a Motion to Withdraw as Plaintiff s counsel

Matrhensr R&M (renew! (01mm mm [m 2020 V1 Qupcr 0W SX 2012 CV 499 MEMORAlNDLM OPINION Pagc 2 01 I7

BACKGROUND

A Leave to Amend

‘112 On July 14 2016 the Plaintiff moved the Court for a second amendment to the Amended Petition (hereinafter the Amended Complaint ) In spite of the first amendment in 2015 the Plaintiff wanted a second amendment to add facts that he did not know about earlier and to add two [sic] additional counts that are consistent with existing facts (Mot for Leave to Amend the Amended Pet 3 )The Plaintiff alleged that the additional facts are curative and that the additional claims rely on facts already pleaded in the [Amended Complaint] (Id ) The claims to be added were conversion unjust enrichment and breach of the duty of good faith and fair dealing (Id at 4 ) The Plaintiff went on to state that because the new claims arise out of the identical operative facts as the initial Petition the amendment does not substantially change the theory on which the case has been proceeding nor would Defendants be required to engage in significant new preparation of this case for trial (Id ) ‘JB In its Order dated October 17 2018 the Court denied leave fox a second amendment because the Plaintiff gaVe no indication of the nature of the facts that were allegedly recently disc0tered and because the claims for conversion unjust enrichment and breach of the duty of good faith and fair dealing could and should have been included in the Plaintiff s first amendment (Order of the Court at 2 (Oct 17 2018)) The Court determined that an additional amendment to the complaint would cause discovery delays and that the Plaintiff s new claims should have been brought when he was given the opportunity to do so in 2015 given their basis in facts that were admittedly already in his knowledge (Id) (114 The Plaintiff asserts that the Court misapplied Rule 15 of the Virgin Islands Rules of Civil Procedure and erroneously determined that an additional amendment to the Amended Complaint would cause undue delay (Mot for Reconsideration 1 2 ) According to the Plaintiff the need for clarification arose from facts that Plaintiff acquired during the course of discovery {and} the additional

Matt/ten s \ R&M General COIIIHR (or r Inc 2020 V1 Super 0'4? 8X 2012 CV 499 MEMORANDUM OPINION Page 3 of l7

counts arose from allegations that were previously stated but became clearer with the advent of the additional facts (It! at 2) (115 The Plaintiff argues that the rule allowing amendment of a complaint is narrow and that the Court 3 ruling is contrary to the plain language and purposes of Rule 15 and contradicts the relevant case law all of which require this Court to grant leave freely when justice so requires (Id at 3 4 ) According to the Plaintiff despite the delay that amendment will cause there is no prejudice to the Defendants and the Plaintiff should not be penalized for a lack of ruling on the Motion for Leave to Amend for two years after it was filed (Id at 4 ) The Plaintiff also claims that the Defendants knew of the additional claims once the Motion for Leave to Amend was filed and could have conducted discovery appropriately since written discovery did not end until January 20l8 (Id at 4 ) ‘1[6 The Plaintiff further alleges that the Court misread the Motion for Leave to Amend and disregarded the redlined version of the proposed second amended petition that the Plaintiff filed causing the Court to determine that the Plaintiff had not indicated what additional facts may be included (It! at 3 ) Upon further review the Court notes that the Plaintiff submitted a redlined version of the proposed amendment on July I4 2016 The Court has compared the proposed amendment to the Amended Complaint of 201 S and noted the relex ant differences discussed in more detail below 317 Another of Plaintiff’s arguments is that the new claims are not new changes per se but rather new theories of recovery made clear by discovery (Id ) Additionally the Plaintiff states that a review of the case relied upon by the Court confirms that the undue delay determination focuses on the length of the time that has passed since Plaintiff filed his complaint (Id (citation omitted» However the Plaintiff then states that no consideration was given to the two year delay in addressing the Plaintiff s motion to amend [n]or was there any consideration given to the fact that this was the second time that Plaintiff was requesting permission to amend his complaint and the request came during discovery (Id at 6) The Court is uncertain whether these statements are contradictory

Matt/wits 1 R&M Garcia] Cannot tors 1m 2020 V1 Super 01% 9X 2013 CV 499 MEMORANDUM OPINION Paar. 4 01 17

regarding the undue delay analysis or whether the Plaintiff believes that a two year delay in ruling on the motion somehow makes it more viable Court will assume for the sake of argument that the Plaintiff believes the Court s decision to deny an additional amendment was based on the length of time between the filing of the proposed second amended petition in 2016 and the Court 5 ruling in 2018 118 In response the Defendants note that the Plaintiff s initial complaint as well as the Amended Complaint were filed with the assistance of counsel though the Plaintiff attempts to give the impression that he 1acked counsel entirely from 2013 to 2015 (Opp n 6 ) The Defendants also argue that the allegation that the Court improperly considered the burden to itself as undue is misguided because pursuant to TOUSS‘UIIZI 1 Stewart 67 V I at 946 47 delay in seeking an amendment is undue when it places an undue burden on the trial court (Opp n 7 ) The Plaintiff s allegedly new facts and claims also could have been brought at an earlier date and these facts were not cited in the Motion for Leave to Amend or in the present Motion to Reconsider (1d at 8 ) The Defendants indicate that a redlined proposed amended complaint does not appear on the record with exception to the one filed with the Amended Complaint (Id )7 The Defendants further argue that the Plaintiff explicitly states in the Motion that his Amended Complaint and the proposed second amended complaint are based on the same factual allegations meaning that amendment is not necessary or is untimely (It! citing Mot at 6 ) Finally the Defendants assert that the new claims are barred by the doctrine of futility (Opp n 9J B Release of LlS Pendens ({[9 Prior to commencing this action the Plaintiff placed a Notice of Liv Pendem upon a parcel of real property owned by Defendant Mercedes In an order dated October 17 2018 but separate from that denying leave to amend the Court ordered the notice released because it found no indication in the Amended Complaint that any of the Plaintiff‘s claims affect the title of Mercedes property (Order

7 Here the Court again notes that a redlined proposed second amended petition was filed with the Motion for Lease to Amend on July 14 2016

Mar/liens r R&M General (,mmmmrr 1m 2020 VI SuperO‘H 9X 2013 CV 499 MEMORANDI M OPINION Page 5 01 17

of the Court Granting Mot to Discharge 3 4 (Oct 17 2018)) The Plaintiff argued against discharging the notice of [IS perm/ens on the grounds that he has a sufficient legal interest in the property because of his allegations that profits of R&M General Contractors Inc were used to purchase various real property on St Croix and in the Dominican Republic (Pl ’s Opp n to Mot to Discharge 3 (May 25 2017)) The Plaintiff also argued that the claims brought in his proposed second amended petition which the Court did not approxe constitute an interest in the property because the claims iniohe the equitable recovery principles of unjust enrichment and constructive trust (See “I at 4) The Court considered the Motion for Leave to Amend immediately prior to the Motion to Discharge and both orders were signed and entered the same day Since the Court denied the Motion for Leave to Amend the Court did not consider the argument pertaining to the equitable remedies in the proposed second amended petition (Order of the Court Granting Mot to Discharge at 2 ) ([110 According to the Plaintiff the Court s simultaneous ruling created an injUstice to the Plaintiff (Mot 6 ) The Plaintiff states that because the Motion for Leave to Amend was pending for nearly a year before the Defendants filed the Motion to Discharge it was unclear whether the amended complaint was the operative complaint (Id at 7 ) The Plaintiff further states that the Court should have granted Plaintiff his motion for leave to amend and then decide [sic] the Defendants motion to discharge the [is perm/en [sic] (It!) This is in fact what the Court did though both rulings were entered the same day ‘1“ i In the Opposition to the Motion for Reconsideration the Defendants assert that the Plaintiff s complaint regarding the [15 pendants amounts to no more than mere disagreement with the Court 5 interpretation of the law (Opp’n at 10 citing In re Estate ofMelc/zzor 2012 VI LEXIS 73 at *9 (V I Super 2012)) The Defendants state that the Plaintiff does not reference a legitimate reason as outlined in Rule 6 4 of the Virgin Islands Rules of Civil Procedure for the Court to reconsider its

Malt/rem i R&M (I€I1€I(IIC()IIII(I(IUIS Inc 2020 V1 Super 033 SX 2013 CV 499 MEMORANDUM OPINION Page 6 of 17

position (Opp n at 10) For the purposes of this Motion the Court will assume that the Plaintiff’s Motion is based on a clear error of law

LAW

(1112 A motion to reconsider must be based on one of four principles 1 ) a change in controlling law

2) availability of new evidence 3) the need to correct a clear error of law or 4) failure of the court to address a specific issue that was raised by a party prior to a ruling V I R Civ P 6 4 Here the Plaintiff alleges that the Court made errors of law It is appropriate to grant a motion for reconsideration based on error of law when the initial decision overlooked dispositive factual or legal matters presented to it Smith 1 Law 0171(0) of Karin A Bent P C 2018 V I LEXIS l3 >r16 (V I Super Ct 2018) (citing 0 Neal 1 PMST LLC 2012 V I LEXIS 62 (V 1 Super Ct 2012)) Furthermore when assessing these types of motions for reconsideration the Court looks for the moving party to offer the specific legal authority it claims the Court either failed to apply correctly or failed to apply in totum in its original decision Smith 2018 V I LEXIS at *16 (citing Jefielson 1 (”wide Bax Resort Condwnmmm Ass n Inc No 2010 97 2010 U S Dist LEXIS 146841 *4)

DISCUSSION

A Leave to Amend

(1113 The Plaintiff s Motion for Leave to Amend was made pursuant to Rule 15 of the Federal Rules of Civil Procedure prior to the adoption of the Virgin Islands Rules of Civil Procedure in March 2017 Rule 1’5 of the Virgin Islands Rules of Civil Procedure is substantially similar or identical to Rule 15 of the Federal Rules of Civil Procedure Pursuant to Rule 15 amendments made before trial and which cannot be made as a matter of course require the written consent of the opposing party or leave of the Court V IR Ci» P [5(a)(2) The court should freely give leave whenjustice so requires Id Under this standard amendment should be allowed in order to provide an opportunity to have any requests for relief considered on the merits if the assertions in the proposed amendment are the proper subject for relief Toussrantr Steward 67V! 931 944 (VI Sup Ct 2017) (discussing SuperiorCourt Rule

Man/rem r R&M (renew! (animators I!“ 2020 Vi Quper 0N SX 201 3 CV 499 MFMORANDUM OPINION Page 7 of l7

8 which also indicates amendment should be permitted when justice so requires ) More succinctly when the pleading presents a proper claim for relief leave to amend should be freely given Id (“14 Although the standard allowing amendment when justice so requires is extremely liberal and strongly favors the granting of leare to file an amended pleading the trial court has discretion to deny leave to amend due to reasons such as undue delay bad faith or dilatoriness repeated failures to correct any deficiencies in the pleading futility of amendment undue prejudice to the [non ]moving party etc Toursamr 67 V I at 946 (citations omitted) Accordingly the Court will undertake a three prong analysis 1) whether the proposed claims are proper claims for relief 2) whether the Court has discretion to deny lane to amend and 3) whether the Court 5 discretion was abused in denying leave to amend

l The Plaintiff s proposed claims for conversion and unlust enrichment are not proper claims for relief

([[15 A proper claim for relief is a claim upon which relief may be granted and is not futile Manure r Hers OI] Virgin Islands Corp 69 V I 519 S28 29 (VI Super Ct 2018) lfthese are proper claims for relief then the liberalin of Rule 15 will apply (I) Come: mm ‘lll6 The Plaintiff s first additional claim is for conversion a tort claim As put in Pappar t Hotel on the Cm Time Sharing Assm ration 69 V I 7r (V I Super Ct 2015)

[c]onve1sion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel Thus comersion consists of the wrongful exercise of dominion or control Over the property of another in a manner inconsistent with that of the owner s rights Also the essence of conversion is not the acquisition of the property rather it is the wrongful deprivation of that property Consequently the tort of conversion constitutes the exercise of wrongful dominion and control over the property to the detriment of the rights of its actual owner It is uncontroverted that money which is personal property may be the subject of a conversion

69 V I 3 (citations omitted)

Muir/lens r R&M General Cowman/r [m 2020 VI Qttper 0T4 SX 20H CV 499 MEMORANDUM OPINION Page 8 ol 17

$117 Though by definition conversion would generally be appropriate where a party has claimed the loss of control of money to their detriment it cannot be a proper claim of relief because it is barred by the gist of the action doctrine

The gist of the action doctrine is designed to maintain the conceptual distinction between breach of contract claims and tort claims by precluding plaintiffs from recasting ordinary breach of contract claims into tort claims The difference between contract and tort claims [is] as follows Tort actions lie for breaches of duties imposed by law as a matter of social policy while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals

Pollara r Chateau St Clair LLC 2016 VI LEXIS 49 J‘22 23 (V1 Super Ct 20l6) (adopting the gist of the action doctrine by Banks analysis) 3118 The gist of the action doctrine bars tort claims

(I) arising solely from a contract between the parties, (2) where the duties allegedly breached were created and grounded in the contract itself (3) where liability stems from a contract or (4) where the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on [the] terms of a contract

VI Port/lurk r Cal/Mood 2014 V I LEXIS ll l4 (V I Super Ct 20l4) ‘lll9 In this case the cause of action sounds in contract and the Plaintiff s claims are all based on the alleged breach of the agreement that he would ICCClVC forty percent of company earnings (See generally Amended Complaint and PI s proposed second amended complaint ) The conversion claim and the duties and liabilities claimed by the Plaintiff all arise from the contract Therefore the conversion claim is essentially a duplicate of the breach of contract claim which cannot succeed on its own and is therefore not a proper claim for relief

b ) Breach of the Dun of Good Faith and Fan Dealing

$120 lender the duty 0! good laith and 3 iii dealing may contract imposes upon each party {duty of Good with and flirdcaling in its performance and its enforcement Good laith means trithlulness to an agreed common purpose and consistency with the justified expectations of the oter part) it LXLludes a \dllLlV of ty pes of condtrtt LlldrlLlLlllLd

Matthew 1 R&M Geneva] COMUG’A’IOH 1m 2020 VI $1er on ex 20H CV 499 MEMORANDUM OPINION Fag; 9 0t 17

as inmlxino bad with News; titty \iolatc tommunit) sittndtttds at (hum) fdiamss 0t chiSOfldbiLnth

(Handrail [its (a i [Omit] 63V] 1 21(V] Slile'Cl 201") (1121 Hum tin Pi 11min has 10de bunch 01 with at slamming Item {in DdLmEmIs fiiillh. to shit; tin procuds 0i in; mm: Ming busimss Sim; t: duty of good idilh 1nd fair dc flinty maths to was contract [in tumult [Emmi £00500!th a mops; Liaim to} Mid c) Unjust Enrtclmieni

Amust 0! nation tut quantum mum: dist) know: as tiniustmrithtmnt “in main nil)

“L in a Last “but [In ddLnddnt nuiuls} somLthina of \niiilt. to which it: is not mlitELd 1nd which in shtmEd Imam to tin piaintiff Walk“ 1 “aims 3 (‘1 (i\ M) 2010 0040 VI ZOHVH 168““) It j>(VI Apt 28 20M)(quotino Maw t Morales 57 V i 627 635 I19 (V i 2013)) we also I limit V Fulfil/a (up 3 Oman has [In Holding ”C (it No 9 60 20HWI i7i087 it 2(i)Vl Jm it)

20H} (unpubEishLd) ( Quantum muuit is {in twin!) to: a quasi with 1U with} a than), 0! uniust Lnrichmant it is not a in; st tndim luv 1| litany ) i niust minimum is an qulildbifi. quasi LUINEdLl was; of mien imposinq liability “hLiL [hka is no mtoruablL LtmlldLE batman (ht. ptutits but Rink». diLEdlLS that “It. pfaintiit ”an wmputs‘ttion to: SLIWLLS punide (1m (011mm Q] («mime (nn 1 J Roland Dasha I] 6: Sum [in 7-17 A 2d 600 607 (Md 2000)(quoting Dunnat rile t Mt ( mmuk at; (a 2i i Supp 2d 527 $35? (I) Md ”98”

BtLduBt. uninst unithmuat is an LL]lEiIdbit. ILde) it iii“ nil thillildbik tannins is inappioptiak “hm. a but lama) is atttilttbh. See Mitsulmlu Int! (mp ‘l ( animal 1: ml: Sale 5 NE 1d 1507 I318 (E HE} Cit 1994){ It is aximnatit Eh It Lquittbk Riki is only M ‘10th “in“. than is no (ELiquidk tummy at in“ ) we gcnualh I DAN HOBBS REVIEDII S 750 $2 807 if (2d Lt] 1993’) DBL to this. and» til Ibiiit) of ultlitabk ILInLdiLh Man a itgai Itflkd}; is tuttitdhit my); Omani In!» is thtt no [aquitabitl quasi communal claim can mist “but .1 LOHIIdLl mists humus} {ht pdiEiLs umLunnw tin. s um subiut math: on “Smith [In qu tsi Lonltactudi Lluim usts shut lam! mmdits an .mtildbkt to a plaintiffi in a bunch 0! Leanna action ( 1m ( 0msz 1;] (“mime (mt 747 A ”a! at 607 This (Marius know] as [ht haunt by “mum wk is bdsui on Elk plinciplt that punks in L0fllidLllldl with). at; not uttitlLd to tilt, lLflILdiLS ttxttilahlt [fluid a itidiLittil) imposLd quasi LOHIldLl humus. tin. turns of that agiumant txprtss and impikd doling that rLspLLtiu iiohts (1min and prutations [um/t V Pollam (up 20! 3 WI l7l087 at 2 (quotino Delta [let \ Bugs Cit App I\()2()06 0104 20!] W1 446%”IE it 3 {DV¥AppDi» Supt 22 201E); ALLOIdiW‘lV in] Liaim i0: uniust unithnknt cannot stand v» has an pruss tontraLtuai winning!“ insts bLtMLLn {hL pattius Bade! (quite! (fit SHIN”!!! 1 [cl/nines 517 l\ E 2d I216 1219 till App Ct E987) a“ (rim My”: i Allumm Prod (a 73 F 1d 779 786 (8th Cir 1996) ( Mummy “but in pruss LODBaLI LXists bLtVsLUI {ht palms unjust minimum is not d\ aiitibit. as a mums 0| ItLOV my )

Maithensr R&M (161161111 Conn-cu tots Inc 3020 V] Super 033 SX 20H CV 499 MEMORANDUM OPINION Page to of 17

Caruumum 62: Rate: (mp 1 Bantu Popular tie Prtwto Rim 6l V! 247 2‘31 (V l Sup Ct 20H} (lootnotcs omitted)

3&2 like Lonxcision tiniestenrichmentisnotapiopci claim lot and Thotmhthe Defendants m 1} [we united something ofmluc (e g money or property ) to nhichthcy are “OILIIIlULd the Plaintiff s cause oi action is in contract him not quit,» lhc Plaintiff aliens the existence of a contract new an the parties which demands th it the HALIHILS of tin~ business be ditidcd to”) percent to the Plaintiff kitty pencil! to Delcndant Rastuio and twenty percent to [)LiLi‘tddnl Muccdcs (Amended Compl (1110) As per the Plaintiff s proposed second intended compile}: Defendants h or. failed to sin Piaintiit his 40% and retained Plaintill s 40% for Elicmschcs As a result Detendttnts hart been uniustly enriched at [he expu‘tsc oi Plaintiff (Pl s Proposed Second Amended Vctilied Petition at W 82 84} Since the Pl tintiil h is lilUde a riol ition oi LON“ let that is a proper Icmcd) at l1“ 1nd to brim? it dupiicatc. claim in equity such as unjust enrichment is prohibited in this matter [niust enrichment is thclcimt not lplt){)ci cl rim tor iciiei

2 The Court can exercise its discretion to deny leave to amend because of undue {May and dilatoriness

$23 As per the above discussion only one of the Plaintiff s three proposed claims is a proper ciaim for relief As such the Court is not required to give leave to include the claims for conversion and unjust enrichment With regard to breach of the duty of good faith and fair dealing the Court 5 next inquiry is whether it has discretion pursuant to the factors outlined Tousrainr to deny leave to amend in spite of the general liberaiity of Rule IS 5B4 The Court may consider the following non exclusive factors in exercising its discretion to deny amendment to a pleading undue delay bad faith or dilatoriness repeated faiittres to correct any deficiencies in the pleading futility of amendment undue prejudice to the [non imoving party etc Toussamt 67 V I at 946 (citations omitted)

Malt/mus r R&M General (titular/m s [In 2020 VI $1er 01? 9X 2013 CV 499 MFMORAINDUM OPEN ION Page ll of 17

The passage of time alone is not undue delay Delay in seeking to amend a pleading becomes undue when allowing the amendment places an unwarranted burden on the trial court Whether allowing an amendment to a pleading will unduly burden the trial court involves consideration of the number of opportunities to amend that have been granted by the trial court the reasons for and the purposes of prior amendments the stage of the litigation and other appropriate factors relating to the trial court s management of the case specifically and its docket and procedures generally Id at 946 47 (citations omitted

(“2‘5 In its ruling of October 17 2018 the Court denied leave to amend because of undue delay (See Order Denying Leave to Amend at 3 Oct 17 20l8) The Court noted that the Plaintiff had already had an opportunity to amend and that the case had progressed so significantly that the inclusion of additional claims would unnecessarily postpone trial (Id ) The Plaintiff stated in his Motion for Leave to Amend and in the present Motion for Reconsideration that the new claims are based on facts previously known (Mot to Amend at 3 Mot for Reconsideration at 5 6 ) He also alleges that the new claims do not substantially alter the theory of recovery (Mot for Reconsideration at ‘3 ) Since two of the three claims are not even viable the Court has to agree that the theory of recovery is not substantially altered The only proper claim for relief is breach of the duty of good faith and fair dealing and that is already implied in contract

([[26 In fact for each of the new claims the Plaintiff essentially reiterates that pursuant to the by laws of the corporate agreement the Plaintiff has a right to forty percent of company earnings and that the Defendants wrongfully withheld his portion to his detriment (Pl 5 Proposed Second Amended Verified Petition W78 89) There are no new relevant facts stated by the Plaintiff that give additional support any of the claims The most significant addition to the alleged facts that the Court can find is the allegation that the Plaintiff was contacted by an employee of the Department of Licensing and Consumer Affairs in 20] 2 regarding a complaint against the company and this contact alerted Plaintiff to the Defendants alleged wrongdoing (Id at (H 15 I7 )

Matthews 1 R&M General Con/lat It»: Inc 2020 VI Qupcr 03} 9X 20] '4 CV 499 MEMORANDUM OPINION Page l2 of 17

(1127 Even though the Plaintiff has only amended the complaint once these alleged facts have been known to the Plaintiff since 2012 and the Court is of the opinion that the proposed claims for conversion and breach of the duty of good faith and fair dealing could and should have been included in the 2015 amendment The Court finds undue delay and dilatoriness because each claim even those which are not proper claims for relief could have been brought in the 2015 amendment Even a minor amendment to the pleadings will require the Court to give the Defendants an opportunity to respond which will stretch this case even further requiring changes to the joint scheduling order and to the Court s calendar

‘1]28 The Court has also considered the other factors articulated in Tousscum and can find no indication of bad faith or of repeated failure to correct deficiencies since this is not a matter of the petitions being procedurally deficient but rather the Plaintiff seeking to make additional claims The Court also cannot make a finding of undue prejudice to the Defendants because the Court would give them the opportunity to respond to the amendment and to conduct discovery as necessary

(“29 With regard to futility the Court considers if the proposed amendment is frivolous would be barred by the statute of limitations or would survive a motion to dismiss Abdallah 1 Abdel Rahman 2015 VI LEXIS 102 *l? (VI Super Ct 2015) See Hart ogr United C021) 20]] VI LEXIS 9‘5 10 (VI Super Ct 2011) (stating that [flutility refers to the complaint even after amendment failing to state a claim upon which relief could be granted ) citing In re Burlington Coat Farm/i Sec Ling I 14 F 3d 1410 1414 (3d Cir I997) As already established the Plaintiff s claims for conversion and unjust enrichment are not proper They would not survive a motion to dismiss because the cause of action does not support a quasi contractual claim like unjust enrichment and the Plaintiff cannot merge tort claims with contract claims However breach of the duty of good faith and fair dealing would survive because the second proposed amended complaint is well pleaded and the

Mart/ten“ R&M General (0111HK Ims Inc 2020 VI SuperOiZ SX 2013 CV 499 MEMORANDUM OPINION Page 1% of l7

Plaintiff s alleged facts taken as true sufficiently support the inclusion of this particular claim In addition Virgin Islands precedent makes clear that such a duty is implied in every contract

<H30 In sum the claims for conVersion and unjust enrichment are not proper claims for relief and it would be futile to include them in the second proposed amended complaint Further though breach of the duty of good faith and fair dealing is a proper claim to give leave to amend cause undue delay and place additional burden on the Court The final question is whether in light of these circumstances the Court abused its discretion in denying leave to amend

3 The Court did not abuse its discretion in denying leave to amend but will allow the Plaintiff to include a claim for breach of the duty of good faith and fair dealing €131 A trial court abuses its discretion when it acts arbitrarily or irrationally fails to consider

judicial recognized factors constraining its exercise of discretion relies on erroneous factual or legal premises or commits an error oflaw Molloi I lndependeme Blue Crow ‘56 V I 155 168 (V I Sup Ct 2012) quoting United States l Thompson Rii (we 56] F 3d 345 348 (4th Cir 2009)

$32 In this case the Court did not deny leave to amend arbitrarily or irrationally and provided justification for its decision The Court noted in its ruling that leave to amend should be freely given subject to the factors discussed above including undue delay For this reason the Court also did not commit an error of law but rather exercised its sound discretion The Court also stated that the Plaintiff did not give an indication as to the nature of the new claims and facts to be added to the complaint Upon reView the Court has noted the differences between the Plaintiff 5 Amended Complaint and proposed second amended petition and has found the changes to be minimal other than the inclusion of the three new claims two of which are not proper claims for relief The Plaintiff does not add any relevant supporting facts but merely restates those previously known

(H33 In light of all the circumstances it is apparent that the Court did not abuse its discretion and though the Court admits that it did initially overlook dispositive legal matters presented by the

Mall/tens t R&M Gene/u] Comma [OI s [m 2020 VI Super 03% 8X 20]? CV 499 MEMORAADUM OPlNl0l\ Page 14 of 1?

Plaintiff namely that conversion and unjust enrichment are not proper claims for relief that oversight did not harm the Plaintiff because to have considered the claims more thoroughly as done here would not have been to the Plaintiff s benefit However having now reviewed the new claims and determined that the only viable claim is for breach of the duty of good faith and fair dealing which should not require any additional discovery on the part of the Defendants due to its implied nature the Court shall allow the amendment as to that particular claim and give the Defendants time to respond to it The Court will order the Plaintiff to submit a new proposed amended complaint in accordance with this opinion that will be approved upon review

B Discharge of the Notice of Lrs Pendens $4 The Plaintiff also requests that the Court reconsider its order to remove the Notice of L15 Pendent placed on a parcel of real property belonging to Defendant Mercedes The Plaintiff takes issue with the Court s ruling because he believes that the Court’s simultaneous consideration of the Motion for Leave to Amend and the motion to discharge the notice caused him prejudice (Mot to Reconsider at 6 i The Court can think of no way in which the Plaintiff was prejudiced As the Plaintiff points out the Court may consider motions in whichever order it chooses (Id ) Regardless the Motion for Leave to Amend was considered before the Motion to Discharge €135 Further the Plaintiff s opposition to the motion to discharge relied on the argument that his proposed second amended compiaint gave him a legal interest in the property particularly the allegation that company profits were used to purchase various real property However the property in question was never identified in any version of the complaint The Plaintiff also asserts that his claim for unjust enrichment and a request for a constructive trust in the proposed second amended complaint constitutes legal interest in the property The Court wholly disagrees As already discussed at length unjust enrichment is not a proper claim for relief upon a contract cause of action Ev en if it were proper in this case the claim would still not affect title to any defendant s property

Matthews 1 R&M General COIIIHKIOIY [m 2020 VI guperms SX 2013 CV 499 MEMORANDL M OPINION Page l5 of l7

(1136 A notice of [is pendens is a notice that there is a court action affecting title to real estate or a judgment requiring the execution of a conveyance of real estate See 28 V IC § [30 In other words [a] notice of [is pantie/is makes the public aware that certain property is the subject matter of litigation SBP I LLCt Family Flops Ca) 1171766”? LLC 20l0VI LEXIS 76 >‘3 citing Black sLaw Dictionary at 950 (8th ed 2004) Thus [rs pendent is appropriate in cases such as those invoking an action for specific performance to purchase real property declaration of the existence or extinguishment of an easement appurtenant or interpretation of covenants that run with the land etc SBP I LLC 20l0Vl LEXIS at ‘3 4 (stating that classic example where a notice of In pendens is warranted in is a case for specific performance requiring the conveyance of property) citing Del Valle l Mortgage Bank of Cali/bum: 2009 U S Dist LEXIS 105898 at ’25 (E D Cal 2009) Ross l Canada LIfeAtsurame C0 1995 US Dist LEXIS 18623 at *5 (ED Pa 1995) E St CIoerem/z Club I Caube Isle 17 V I 119 l22 (Terr Ct I980) (finding that an easement appurtenant is incidental to any estate the possessor of the dominant tenement may have )' Bcl of DIM l Como] Int 1 28 V I 57 7% (Terr Ct I993) (finding that an unfavorable ruling regarding covenants that run with the land would be prejudicial to successors in interest to property) (H37 L15 pendens is not appropriate in the present contract dispute because whether the Defendants breached the contract does not affect the title to Defendant Mercedes property EV en if the Plaintiff receives a favorable judgment the Plaintiff will be entitled to monetary damages not equitable relief in the form of conveyance of property Moreover the Court has given the Amended Complaint and the proposed second amended petition thorough review and can find absolutely no reference made by the Plaintiff to a constructive trust Ultimately whether the Plaintiff has requested a constructive trust as a remedy is a non issue because his prayers for relief include any relief the Court deems appropriate 9138 The Plaintiff also asserts in the Motion to Reconsider that the time period between when the motions to amend and to release the notice of [1s pendens were filed and when they were ruled on

Matt/reusr R&M General (01mm tors [m 2020 Vi Super 033 SX 2013 CV 499 MEMORANDUM OPINION Page 16 of 17

prejudiced the Plaintiff because the Plaintiff thought he could rely on his proposed second amended complaint to support his argument against discharging the notice (Mot for Reconsideration at 6 7 ) This argument is also unpersuasive The Court has already discussed how the proposed amendments do not support the filing of a notice of [IS pendens Beyond that it is unreasonable for a litigant to believe that an unapproved amended complaint is operative it” In granting the Defendants motion to discharge the notice of In" pendens the Court considered whether any of the Plaintiff s claims affect real property and found that they do not The Court also noted thatjudgment would not be made hollow if the notice of [15‘ pendent was discharged because the Plaintiff s potential recovery is not tied to any specific real property but rather to monetary compensation in general The Court further reminded the Plaintiff that a favorable judgment would give the Plaintiff the opportunity to file ajudgment lien against the property if necessary Finally in requesting reconsideration the Plaintiff offered no legal authority that he claims the Court failed to apply or apply correctly Thus the Court s ruling did not involve a clear error of law and the Court will not reconsider its ruling CONCLUSION

(“40 As discussed abore the Court has reviewed its denial of the Plaintiff” s 2016 Motion for Leave to Amend and its grant of the Defendants 2017 Motion to Discharge With regard to the leave to amend the Court has more thoroughly considered the Plaintiff 5 proposed changes and determined that two of the three additional claims he wishes to bring are not proper claims for relief However the Court has found that the claim for breach of the duty of good faith and fair dealing is proper and even though the Court maintains its position that there was no error of law or abuse of discretion in denying leave to amend will allow the new claim because to do so will not unduly burden the Defendants and the time needed to fully respond to the amended pleading should be minimal

Mutt/mu r \ R&M Gemini (01mm tors 1m 2020 VI Quper 03? SX 20H CV 499 MFMORAl‘qDUM OPINION Page l7 of 17

‘114l With regard to the discharge of the notice of In pendens the Court will not reconsider its position because [15 pendenr is not appropriate in a case such as this where the litigation does not affect the title to real property In granting the discharge the Court has considered local jurisprudence on the matter and is confident that it has not committed an error of law An order consistent with this opinion

is forthcoming /

DONE and so ORDERED this [2 day of March 2020

ATTEST /’ Tamara Char}! HARD D W L WILLOCKS Clerk of th ' / ; ' esiding Judge of the Superior Court / // / / ’2 By A/ / I/i fCo r Clerk lpMSO \

Dated k A. 1‘ 2‘