Norman Agness v. Furniture Plus

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN

NORMAN AGNESS Plaintiff ST 2020 SM 00122 v.

ACTION FOR DEBT/DAMAGES

FURNITURE PLUS SMALL CLAIMS

Defendant

Cite as 2021 VI Super 104

MEMORANDUM DECISION A1\D ORDER

111 THIS MATTER is bef01e the Court on a Motion to Set Aside Default Judgment submitted by Salem Zuhdi, repxesentative for Defendant, on August 30, 2021 Defendant states that the default judgment enteied against it at healing on August 5, 2021 should be set aside because Defendant had good cause to be absent and had submitted a request f01 continuance thiee days bef01e the healing, which the Court denied at same healing Upon ieview of the mattel the Court will deny Defendant 5 Motion and will allow f01 the prompt execution of the Writ of Execution cum ently pending in this mattel, as explained below

BACKGROUND

112 Plaintiff filed his Complaint in this mattei on July 13, 2020, alleging that Defendant Furnituie Plus had deliveled damaged furniture afte1 Plaintiff purchased a bed1001n set fiom Defendant on December 9, 2019 Specifically, Plaintiff claimed that Defendant delivered a cracked d1 essel and a bed flame containing a mismatched and ill fitting dlawer After Plaintiff made a complaint about the damaged items, Defendant inspected the fumiture at Plaintiff’s home on Decembei 12, 2019 and agieed to remedy the problem, removing the bed flame drawer and stating that the correct drawer had been ordered and would be delivered by the end of January 2020 Despite multiple attempts to contact Defendant about delivering the correct undamaged replacement furniture Plaintiff was unable to receive any response from Defendant up to the date of filing the matter on July 13, 2020 His claim was for $5,700, the total amount he paid for the bedroom set

113 Due to court closures as a result of the COVID 19 pandemic, the matter did not come on for trial until March 24 2021 Salem Zuhdi was properly served with the Summons and Complaint on Defendant s behalf on March 12, 2021 However, on the morning of the hearing, Mr Zuhdi called the Court and requested a continuance, stating that he had just been required to leave the territory due to a family member 5 medical emergency The Court granted said request but told

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Defendant telephonically to submit proof of travel to the Court as soon as possible Plaintiff appeared at the hearing and was ordered to return for hearing on June 2, 2021

114 Defendant was not found for sewice for the June 2, 2021 hearing 01 for its June 10, 2021 successor, though Plaintiff appealed at both hearings The matter was then scheduled for a fourth hearing date on August 5, 2021 Defendant was served through a “Mr Salem” working at Defendant 5 business location on July 1, 2021 At the August 5, 2021 hea1ing, Plaintiff appealed pro se but Defendant did not appear, despite being properly served

15 At tiial, the Court obseived that Salem Zuhdi had sent a letter to the Court on August 2, 2021 requesting a continuance of the matter due to his absence fiom the territory f01 medical masons The Court denied his Motion for Continuance 0n the 1ec01d, noting that it had already gianted Defendant an emeigency continuance fiom the earlier Maich 24, 2021 couit date The Couit furthel observed that Defendant 5 Motion submitted three days before the trial date was untimely undei Vi1 gin Islands law, as any motion f0! continuance must be filed and sewed not less than seven days prim t0 the scheduled t1ial exclusive of weekends and legal holidays V I R CIV P 6 3(d) 6(a)(1)(B)

16 Upon finding that Defendant had been duly sewed yet failed to appear, the Court enteled Defendant s appeaiance by default and heard the swom testimony of the Plaintiff Aftei healing Plaintiff’s testimony and leviewing the documents admitted into evidence the Court enteled its facts of finding and conclusions of law on the ICCOld The Court found in favor of the Plaintiff and against the Defendant in the amount of $5,700 plus $100 in court costs, enteiing 3 Judgment 01dexing same on August 10, 2021 On September 9, 2021, Plaintiff filed a Praecipe with the Court, stating that Defendant had made no payments on the debt, and a Wiit of Execution was issued theieon on Septembei 28, 2021 Said Writ remains outstanding

DISCUSSION

17 Rule 60(b) (c) of the Virgin Islands Rules of Civil Procedure govems parties ability to seek ielief from judgments, including default judgments

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding On motion and just terms, the court may relieve a party 01 its legal representative from a final judgment, order, or proceeding for the following reasons (1) mistake, inadvertence, surprise, or excusable neglect (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (Whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party,

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(4) the judgment is void; (5) the judgment has been satisfied, released, or dischaiged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief

(c) Timing and Effect of the Motion (1) szmg A motion under Rule 60(b) must be made within a reasonable time and for reasons (1), (2), and (3) no mow than a year after the entry of the judgment or order or the date of the proceeding (2) Effect on Fmalzty The motion does not affect the judgment s finality or suspend its opeiation

118 In this instance, the Court finds that Defendant 3 Motion f01 relief was timely filed under Rule 60(0), as it was received on August 30 2021, less than three weeks aftei entiy of the Couit 8 Judgment Howevei, the Court does not find that Defendant has met any of the giounds for relief delineated in Rule 60(b) Defendant 5 defense is meiely that it had a reasonable excuse for neglecting to appeai at either of the healings (on March 24 2021 and August 5, 2021) f01 which it was pioperly sewed This a1 gument, theref01e best falls under Rule 60(b)(1) mistake, inadveitence, suiprise, 01 excusable neglect

119 In detennining whethei to set aside a default judgment f01 excusable neglect under Rule 60(b)( 1), the Court considers three factors [(1)] whethei vacating the default judgment will visit piejudice on the plaintiff, [(2)] whethei the defendant has a merit01ious defense, and [(3)] whethei the default was the iesult of the defendant's culpable conduct Biycm v Blyan, Supei Ct Civil No ST 14 CV 316 2016 V l LEXIS 44 at *13 (VI Supei Ct Api 13 2016) (intemal citation omitted) In the instant mattei, the Court finds that none of these thiee factms weigh in Defendant’s favor

1110 Under the fiist fact01, granting Defendant s Motion for ielief would be paiticulai 1y piejudicial against Plaintiff in this matter due to the extended length of time the matter has been pending and the number of times Plaintiff has appeared bef01e the Court to present his case Small claims matters are intended to provide simple, speedy, and inexpensive” resolutions to civil claims not exceeding $10,000 V I SM CL R 1(d) Despite such intent, the instant matter was pending before the Court for ovei a year before judgment was entered The delay was partially due to the COVID l9 pandemic, but it was also due to Defendant 5 failure to appear at multiple hearings, instead making last minute excuses for its absence and requesting further continuances Plaintiff appeared before the Court four times over the course of several months and presented a straightforward case supported by ample evidence The Court finds that to set aside its Judgment at this time would unquestionably Visit prejudice upon this particular Plaintiff

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1111 Under the second factor, Defendant 5 Motion must have provided some melitorious defense that would support the Court 5 finding that the Judgment should be set aside

To successfully establish a meritorious defense, a defendant must show that the ‘allegations of [his] answer, if established on trial, would constitute a complete defense to the action ‘ [A] defendant does not have the right to have a default judgment set aside automatically upon alleging a defense, ’ but must instead ‘ set forth with some specificity the grounds for his defense ” The Court must essentially be convinced that vacating the judgment [would] not be an empty exercise or a futile gestuie ”

Banco Populai de Fuel to RICO v Hedlmgton Supei Ct Civil No ST 17 CV 178, 2019 VI LEXIS 72 at 11 (V 1 Super Ct Maich 18 2019) (internal citations omitted)

$12 Upon leview, the Court can find no meritorious defense provided in Defendant s Motion for relief No arguments whatsoeve1 ale p1 esented on the merits of the mattei iathei, Defendant only defends against the entiy of judgment in its absence due to its claim that such absence was excusable The Court therefore finds the quuired meritorious defense under the second fact01 wholly lacking in this mattei

1113 Finally, undei the third fact01 the Court finds that the default in this inattei was, indeed, a iesult of Defendant s culpable conduct Defendant s lepiesentative, Salem Zuhdi, was propel 1y sewed bef01e two of this mattei s foul court beatings As stated above, he did not appeai at the fist on Maich 24 2021, allegedly due to a familial medical emeigency, which he only informed the Court of on the moming of the healing and f01 which he nevei submitted any evidence, despite the Court 5 instmction that he do so M1 Zuhdi did not appeal at the August 5 2021 hearing, despite being sewed ovei one month befOiehand, again due to claims of a familial medical emergency keeping him off island When informed by court staff by phone that he could appear telephonically or via videoconference, M1 Zuhdi claimed that he had left all documents pertaining to the case and his defense on island and had no way of accessing them

1114 The Court simply cannot find Defendant faultless in these excuses Defendant was made aware of this matter on March 12, 2021, when Mr Zuhdi was first served with the Complaint and Summons, and thereafter had nearly five months before the final August 5, 2021 hearing to collect documents, make arrangements to appear virtually, have necessary evidence sent electronically to the essential parties, or take any other of various options available to it to ensure that any proper representative might appear ezther Virtually or m person before the Court on August 5, 2021 In fact, given the difficulty Court Marshals have had in serving Defendant throughout this matter reporting that representatives at Furniture Plus 3 business location repeatedly refused or evaded service, the Court must conclude that Defendant has been actively attempting to avoid judgment

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in this matter The Court therefore finds that default in this action was primarily a result of Defendant s culpable conduct

1115 Given the above analysis and findings, the Court concludes that Defendant 5 Motion to Set Aside Default Judgment has presented no meritorious defense, no excusable neglect, and no other reason for the Court to set aside the Default Judgment entered on August 10, 2021 The Court will therefore deny Defendant 8 Motion Additionally, the Court will ieiterate that there are no authorized stays of any writs of execution issued in this matter, and that any and all such writs may be executed in good coulse and without delay

1116 The Court being fully satisfied in the p1emises, it is hereby

ORDERED that Defendant 5 Motion to Set Aside Default Judgment is DENIED and it is further

ORDERED that copies of this Order shall be directed to the parties herein and to the Office of the Territorial Marshal

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Dated Octobei [3 2021 /

III

enior Sitting Magistrate Judge Superior Court of the Virgin Islands ATTEST S Ct Misc No 2021 0020 TAMARA CHARLES Clerk of th C urt

By fix: £12m COLLEEN SALEM Senior Deputy Clerk [0 // S /2021