Peter Ghirawoo v. Faye Joh-Baptisti, Peppertree Hill Landowners Association, Inc., Leatrice Garcia, and Johnny and Oreta Hughes

• Court: Superior Court of The Virgin Islands
• Decided: April 14, 2021
• Docket: SX-19-CV-555
• Status: Published

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX PETER GHIRAWOO PLAINTIFF, Civil No SX 19 CV 555 V ACTION FOR DAMAGES

HILL LANDOWNERS ASSOCIATION INC LEATRICE GARCIA, AND JOHNNY CITE AS 2021 VI SUPER 43E AND ORETA HUGHES, DEFENDANTS

Appearances Trudy Fenster, Esq Law Office of Trudy Fenster, P C Christiansted, U S Virgin Islands For Plamttfl

James L Hymes, III, Esq Law Offices of James L Hymes, III, P C Christiansted, U S Virgin Islands For Defendant Peppertree H1” Landowners Assoczatzon Inc

MEMORANDUM OPINION AND ORDER

WILLOCKS Presiding Judge

THIS MATTER came before the Court on Plaintiff Peter Ghirawoo’s (hereinafier

“Plaintiff”) motion for reconsideration of the Court’s February 24, 2021 order, filed on March 8,

BACKGROUND

On October 17, 2019, Plaintiff filed a complaint against Defendant Faye John Baptiste

(hereinafter “John Baptiste”), Defendant Peppertree Hill Landowners Association, Inc

(hereinafter “PHLA”), Defendant Leatrice Garcia (hereinafter “Garcia”), Defendant Johnny

Hughes (hereinafier “J Hughes”), and Defendant Greta Hughes (hereinafter “0 Hughes,” and Ghzrawoo v John Baptiste et a1

%;:§:dislg Opinion and Order 202] VI SUPER 4%? Page 2 of 1 1 together with Defendant John Baptiste, Defendant PHLA, Defendant Gatcia, and Defendant J

Hughes, “Defendants”) in connection with an alleged motor vehicle incident that occurred on June

28, 2018, in the vicinity of Plot No 212 Mary’s Fancy, St Croix, U S Virgin Islands Plaintiff

alleged the following causes of action Count I Negligence (against all Defendants), Count II

Gross Negligence (against all Defendants), Count III Loss of Use (against all Defendants), and

Count IV Punitive Damages (against all Defendants)

On December 9, 2019, Defendant PHLA filed its answer and affirmative defenses in

response to Plaintiff’s complaint On June 29, 2020, Plaintiff filed a motion for a 90 day extension

period or until September 30, 2020 to complete service of processes as to Defendant Garcia and

Defendant John Baptiste A copy of the following documents were attached to Plaintiff‘s motion

for extension (i) a return of non service as to Defendant Garcia and a corresponding affidavit by

the process server Felipe Torres, Jr indicating that he did not serve Defendant Garcia, (ii) a return

of service as to Defendant J Hughes and a corresponding affidavit by the process server Felipe

Torres, Jr indicating that he served Defendant J Hughes on November 5, 2019, (iii) an affidavit

by the process server Felipe Torres, Jr indicating that he did not serve Defendant John Baptiste,

and (iv) a return of service as to Defendant PHLA and a corresponding affidavit by the process

server Felipe Torres, Jr indicating that he served Defendant PHLA via Attorney Curt Otto, Esq

on November 5, 2019 ‘ On September 29, 2020, Plaintiff filed a notice of proof of service as to

Defendant John Baptiste and attached a retum of service as to Defendant John Baptiste and a

corresponding affidavit by the process server Felipe Torres, Jr indicatlng that he served Defendant

John Baptiste on August 4 2020

‘ It appears that these documents were not previously filed with the Court Ghmzwoo v John Baptiste e! a! SX 19 CV 555 Memorandum Opinion and Order 2021 v1 SUPER 4310 Page 3 of 11

On December 8, 2020, Defendant PHLA filed a motion for leave to file a first amended

answer to add a crossclaim, which the Court subsequently granted on February 10, 2021 and

deemed Defendant PHLA’s fist amended answer filed on December 8, 2020 Defendant PHLA’s

first amended answer included a crossclaim against Defendant Garcia, Defendant J Hughes,

Defendant 0 Hughes, and Defendant John Baptiste

On February 11, 2021, the Court entered an order (hereinafter “February 11, 2021 Order”)

whereby the Court granted nunc pro tune Plaintiff’s motion for a 90 day extension period or until

September 30, 2020 to complete service of processes as to Defendant Garc1a and Defendant John

Baptiste and ordered that, inter alia, (i) Plaintiff shall, within five (5) days from the date of entry

of the February 21, 2021 Order, file proof of service for Defendant Garcia with the Court, or show

good cause as to why the Court should extend the time for service for Defendant Garcia again, (ii)

Plaintiff shall within five (5) days from the date of entry of the February 21, 2021 Order Plaintiff

shall file proof of service for Defendant 0 Hughes with the Court, or show good cause as to why

the Court should extend the time for service for Defendant O Hughes,2 and (iii) Plaintiff is notified

that failure to comply with this order will result in the dismissal of this case without prejudice as

to Defendant Garcia and Defendant 0 Hughes

On February 24, 2021, the Court entered an order (hereinafter “February 24, 2021 Order”)

whereby the Court found no good cause or other causes warranted an extension to serve Defendant

Garcia, ordered that the case against Defendant Garcia shall be dismissed without prejudice, found

2 1n the February 11, 2021 order the Court explained To date, the record does not reflect that Plaintiff filed a proofofservice ofprocess as to Defendant 0 Hughes The return of service and the corresponding affidavit by the process server Felipe Torres, Jr both only named “Johnny Hughes” as the person served on November 5, 2019 As such, the Court will order Plaintiff to file proof of service for Defendant 0 Hughes with the Court (Feb 1] 2021 Order p 5) Ghtrawoo v John Baptiste e! 01

[ShiJiZIEdelsnf Opinion and Order 2021 VI SUPER g Page 4 of l 1

good cause warranted an extension to serve Defendant 0 Hughes, and ordered Plaintiff to file

proof of service for Defendant 0 Hughes On March 8, 2021 , Plaintiff filed this instant motion for

reconsideration of the Court’s February 24, 2021 Order

STANDARD OF PROCEDURE

Virgin Islands Rule of Civil Procedure Rule 6 4 (hereinafier “Rule 6 4”) governs motions

for reconsideration Rule 6 4(a) provides that “[e]xcept as provided in Rules 59 and 60 relating to

final orders or judgments, a party may file a motion asking the court to reconsider its order or

decision within 14 days after the entry of the ruling, unless the time is extended by the court V I

R Clv P Rule 6 4(a) Rule 6 4(b) provides that “[a] motion to reconsnder must be based on

(1) intervening change in controlling law, (2) availability of new evidence; (3) the need to correct

clear error of law, or (4) failure of the court to address an issue specifically raised prior to the

court's ruling” and that “[w]here ground (4) is relied upon, a party must specifically point out in

the motion for reconsideration where in the record of the proceedings the particular issue was

actually raised before the court ” V I R CIV P Rule 6 4(b) See also Arvzdson v Buchar, 72 V I

50, 64 (Super Ct Nov 4, 2019) (“motions for reconsideration must be based on one of the grounds

delineated in Rule 6 4(b)”)

Generally, “[a] motion for reconsideration is not a second bite of the apple [Instead, it]

is intended to focus the parties on the original pleadings as the ‘main event,’ and to prevent parties

from filing a second motion with the hindsight of the court's analysis covering issues that should

have been raised in the first set of motions ” In re Infant Sherman, 49 V I 452, 457 (V I 2008) In

determining whether to grant such a motion, the Court operates with “the common understanding

that reconsideration is an ‘extraordinary’ remedy not to be sought reflexiver or used as a substitute

for appeal Id 49 V I at 458 Ghzrawoo v JohmBaptIste er a!

13:13:33.5; Opinion and Order 2021 v1 SUPER $9 Page 5 of 1 1

DISCUSSION

In his motion, Plaintiff requested the Court to reconsider its February 24, 2021 order

dismissing Defendant Garcia and allow Plaintiff to serve the Defendant Garcia by publication

(Motion, p 5) Plaintiff made the following assertions in support of his motion (i) “Plaintiff did

not receive the Court’s Order which prompted the dismissal of Garcia for failure to comply with

the Court’s Order ” (Id, at p 4), (ii) “The Summons issued to Johnny Hughes was issued in the

name of Johnny and Oreta Hughes and was served upon and accepted by Johnny Hughes ” (Id ),

(iii) “Plaintiff’s record of conduct in this case demonstrates that Plaintiff has not acted dilatory or

in any manner that could be considered non compliant ” (Id ), (iv) “On June 29, 2020, Plaintiff

filed a Motion to serve out oftime Defendants Letitia Garcia and Faye Jean Baptiste [sic] Plaintiff

did not receive an order granting him permission to do so ” (Id , at p 3), (v) “Plaintifftimely served

the main Defendant and one contributing Defendant, Plaintiff sought permission from this Court

to serve the remaining contributing Defendants out of time and intended to ask permission to serve

by publication when he was unable to serve the remaining Defendant ” (Id ), (vi) “The only action

that is out of sync, is the mistaken failure of the Plaintiff to comply with the Court’s February 11,

2021 Order, an Order which Plaintiff did not receive and would have otherwise complied ” (Id ),

and (vii) “[T]he Court has granted main Defendant Peppertree Hill Landowners Association

permission to add a cross claim against Leatrice Garcia who is not yet a Defendant in this case, on

account of Plaintiff not being able to complete Service on her ” (Id , at pp 4 5)

The Court will note at the outset that Plaintiff’s motion for reconsideration was timely filed

The Court will also note that Plaintiff failed to specify the ground which his motion for

reconsideration is based on Based on Plaintiff’s assertions, the Court concludes that Plaintiff filed

his motion for reconsideration ofthe Court’s February 24, 2021 order dismissing Defendant Garcia Glurawoo v John Baptiste e! a!

SMinltilg‘IIdflsr: Opinion and Order 2021 VI SUPER 33? Page 6 of l 1

based on the availability of new evidence to wit, the Court’s February 10, 2021 Order and the

Court’s February 11, 2021 Order and that Plaintiff filed hlS motion for reconsideration of the

Court’s February 24, 2021 order ordering Plaintiff to file proof of service for Defendant 0 Hughes

based on the fact that “[t]he Summons issued to Johnny Hughes was issued in the name of Johnny

and Oreta Hughes and was served upon and accepted by Johnny Hughes ” (Motion, p 4)

I Defendant Garcia

When reviewing a motion for reconsideration based on the availability of new ev1dence,

the Court may not grant the motion where the highlighted evidence is “not newly discovered ”

Sherman, 49 V I at 458 “More precisely, the Court may grant a motion on this basis so long as

the moving patty produces evidence that was unknown, such that it could not have benefitted from

knowledge imparted by the evidence and could not have included it in their initial arguments as

the Court made its original determination ” Arwdson, 72 V I at 64 (footnotes omitted), see

Sherman, 49 V I at 458 (“Where evidence is not newly discovered, a party may not submit that

evidence in support of a motion for reconsideration She failed to do so Accordingly, the trial

court did not abuse its discretion in refusing to appoint a guardian ad litem based on Appellant's

untimely arguments and evidence ”) (citations and internal quotation marks omitted), see also, In

re Hartlage, 54 V I 446, 453 (V I 2010) (“The evidence presented by the affidavits was obviously

available to Haulage earlier in the proceedings, and the affidavits contain no avetments that could

be considered newly discovered evidence ”)

Plaintiff argued that the Court should reconsider its February 24, 2021 Order dismissing

Defendant Garcia because of the availability of new evidence—to wit, the Court’s February 10,

2021 Order granting Defendant PHLA’s motion for leave to file a first amended answer to add a

crossclaim and the Court’s February 11, 2021 Order, inter alia, granting Plaintiff’s motion for Ghzrawoo v John Baptiste et a1 SX 19 CV 555 Memorandum Opinion and Order 2021 V1 SUPERAi? Page 7 of II

extension to serve Defendant Garcia and Defendant John Baptiste out of time nunc pro tune and

ordering Plaintiff to file proof of service for Defendant Garcia The Court finds Plaintiff’s

argument unpersuasive

First, it is Plaintiff’s duty to timely serve Defendants and file proofs of service with the

Court in this matter, and Plaintiff should have known that regardless of whether Plaintiff received

the Court’s February 11, 2021 Order Plaintiff seems to blame the Court for Plaintiff’s failure to

serve Defendant Garcia when Plaintiff stated that “On June 29, 2020, Plaintiff filed a Motion to

serve out of time Defendants Letitia Garcia and Faye Jean Baptiste Plaintiff did not receive an

order granting him permission to do so ” (Id , at p 3) However, it would be disingenuous for

Plaintiffto point to the lack ofthe Court’s permission as the cause for his failure to serve Defendant

Garcia to date because Plaintiff similarly did not receive an order granting him permission to serve

Defendant John Baptiste out of time, but Plaintiff nevertheless went ahead and served Defendant

John Baptiste 3

Second, it is Plaintiff‘s duty to proceed in a timely manner and to not act in a dilatory

manner in this matter, and Plaintiff should have known that regardless ofwhether Plaintiff received

the Court’s February 11, 2021 Order While Plaintiff claimed in his motion that he has not acted

in a dilatory manner in this matter, the Court disagrees Plaintiff filed his complaint on October

17, 2019 Thus, under Rule 4, Defendants should have been served on or before February 14, 2020,

or on or before September 30, 2020 for the defendants Defendant Garcia and Defendant John

Baptiste where an extension was requested and granted nunc pro tune by the Court, and proofs

3 On June 29, 2020, Plaintiff filed a motion for an extension to serve Defendant Garcia and Defendant John Baptiste out of time Defendant John Baptiste was served on August 4, 2020, before the Court granted Plaintiff‘s motion nunc pro tune on February 11 2021 Chirawoo v John Baptiste, er al SX 19 CV 555 Memorandum Opinion and Order 2021 VI SUPER 43? Page 8 of 11

of service should have been filed for all Defendants However, to date, Plaintiff has not served

Defendant Garcia and has failed to re initiate any effort to serve Defendant Garcia until after

Plaintiff received the Court’s February 24, 2021 Order dismissing Defendant Garcia Furthermore,

although Defendant J Hughes was served on November 5, 2019 and Defendant John Baptiste was

served on August 4, 2020, and they have failed to appear or answer, Plaintiff did not make any

appropriate filings for such defendants who have failed to appear or answer until February 26,

2021 , when he filed a motion for entry of default against Defendant J Hughes and Defendant John

Baptiste 4

Lastly, the fact that Defendant PHLA was granted leave to file a crossclaim and named

Defendant Garcia as a defendant is irrelevant as to Plaintiff‘s failure to serve Defendant Garcia

As noted above, it is Plaintiff’s duty to timely serve Defendants and file proofs of service with the

Court in this matter, and Plaintiff should have known that regardless of whether Defendant Garcia

was named as a defendant in Defendant PHLA’s lawsuit 5

As such while Plaintiff argued that the Court 5 February 10 2021 Order and February 11

2021 should be considered newly available evidence, the Court finds that the knowledge imparted

by the February 10, 2021 Order irrelevant as to Plaintiff’s failure to serve Defendant Garcia and

‘ Coincidentally, the filing ofthe motion for entry ofdefault against Defendant .1 Hughes and Defendant John Baptiste was compliant with the Court‘s February 1 1, 2021 Order, where the Court ordered that, within thirty (30) days from the date of entry of this Order, Plaintiff shall make an appropriate filing in regard to the defendants who have failed to appear or answer 5 Even if Defendant Garcia is not a defendant in Plaintiff‘s lawsuit, there are other mechanisms for Defendant PHLA to file a lawsuit against Defendant Garcia in this matter If Plaintiff was truly convinced that Defendant Garcia must be defendant in Plaintiff's lawsuit in order for Defendant PHLA to file a lawsuit against Defendant Garcia in this matter, then Plaintiffshould have addressed this issue sooner—to wit, Plaintiff had ample time to remedy the situation by re initiating his effort to serve Defendant Garcia when Defendant PHLA filed its motion for leave to file a first amended answer to add a crossclaim on December 8, 2020 or when the Court entered its February 10, 2021 granting Defendant PHLA’s motion But instead, Plaintiff waited and did not re initiate his effort to serve Defendant Garcia until afler the Court’s February 24, 2021 Order Ghtrawoo v John-Baptiste, er a! SX 19 CV 555 Memorandum Opinion and Order 2021 VI SUPER A3? Page 9 of l I

the Court finds that the knowledge imparted by the Court 5 February 1 l 2021 Order that Plaintiff

should timely serve the defendants in this matter, should timely file proofs of service in this matter,

and should proceed in a timely manner and not act in a dilatory manner in this matter previously

available to Plaintiff Accordingly, the Court Will deny Plaintiff's motion for reconsideration of

the February 24, 2021 Order dismissing Defendant Garcia See Sherman, 49 V I at 458

(“reconsideration is an ‘extraordinary’ remedy not to be sought reflexiver or used as a substitute

for appeal”)

11 Defendant 0 Hughes

Plaintiff argued that the Court should reconsider its February 24, 2021 Order ordering

Plaintiff to file proof of service for Defendant 0 Hughes based on the fact that “[t]he Summons

issued to Johnny Hughes was issued in the name ofJohnny and Oreta Hughes and was served upon

and accepted by Johnny Hughes ” (Motion, p 4) This is not a permitted ground under Rule 6 4(b)

for reconsideration Nevertheless, assuming argumendo that it is a permissible ground for

reconsideration, the Com finds Plaintiff’s argument unpersuasive Plaintiff essentially argued,

without citation to any controlling authority in support his argument, that Defendant 0 Hughes

was served when Defendant J Hughes was served because the Summons was issued for both

“Johnny and Oreta Hughes” so when Defendant J Hughes accepted service,6 he accepted service

6 In his motion, Plaintiff simply stated “The Summons issued to Johnny Hughes was issued in the name of Johnny and Oreta Hughes and was served upon and accepted by Johnny Hughes " (Motion, p 4) The parties are reminded to cite the applicable Virgin Islands law in support of their arguments See V I R ClV P 11(b)(5) ( By presenting to the court a pleading, written motion, or other paper whether by signing, filing, submitting, or later advocating it an attorney or self represented party certifies that to the best ofthe person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances (5) that the applicable Virgin Islands law has been cited, including authority for and against the positions being advocated by the party ”) See also In re Catalyst thlg , 67 V I I6, n 12 (V I Super Ct 2015) (“The Supreme Court of the Virgin Islands has established that in order for a motion to be properly before the court, parties must support their arguments by citing the proper legal authority, statute or rule ”) ATTEST: TAMARA CHARLES CLERK OF THE COURT

____________________ COURT CLERK II 04/15/2021