Wystan D. Benjamin v. Government of the Virgin Islands

• Court: Superior Court of The Virgin Islands
• Decided: March 16, 2020
• Docket: ST-19-CV-323
• Status: Unpublished

Opinion

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

1 WYSTAN D BENJAMIN ) CASE NO ST 19 CV 323 ) Plaintiff ) ACTION FOR BREACH OF 1 v ) CONTRACT and BREACH OF ‘ ) DUTY OF GOOD FAITH AND GOVERNMENT OF THE VIRGIN ISLANDS ) FAIR DEALING ) Defendant ) JURY TRIAL DEMANDED

Cite as 2020 VI Super 42U

MEMORANDUM OPINION AND ORDER

111 Pending before the Court are

1 Government of the Virgin Islands[ ] Motion to Dismiss, filed on July 26, 2019;

2 Plaintiff s Opposition to Government of the Virgin Islands[ ] Motion to Dismiss, filed on August 16 2019 and

3 Government of the Virgin Islands[ ] Reply to Plaintiff’ s Opposition to the Motion to Dismiss, filed on August 26, 2019

I FACTUAL ALLEGATIONS OF THE COMPLAINT ASSUMED AS TRUE FOR THE PURPOSES OF THE INSTANT MOTION TO DISMISS

112 In addressing a motion to dismiss based on failure to state a claim upon which relief can be granted a court must View all factual allegations in the complaint as true and must construe the complaint liberally ‘ Therefore, based upon Plaintiff Wystan Benjamin s Complaint and the Contract for Professional Services, which is referenced in the Complaint and attached as Exhibit A to Government of the Virgin Islands[ ] Reply to Plaintiffs Opposition to the Motion to Dismiss, the Court identifies the following factual allegations and assumes their veracity for the purpose of determining whether they plausibly give rise to an entitlement of relief

1 Commencing December 1, 2015, the Government of the Virgin Islands, Department of Property and Procurement, on behalf of the Department of Public Works and Benjamin entered into a Contract for Professional Services (the Contract”) 2

l YearwoodEnterprlseS Inc v Antilles Gas Corp Super Ct Civ N0 ST 17 CV 77 2017 WL 2709831 at *1 (VI Super Ct June 21 2017) (internal citations omitted) 2 Comp1 11 5 Benjamin v Gov t of the VI 2020 VI Super 42U Case No ST 19 CV 323 Memorandum Opinion and Order Page 2 of 9

2 Gustav James held the position of Commissioner of the Department of Public Works at the time the Contract was executed 3

3 Under the Contract, Benjamin was required to provide ‘Program Management Assistance in the administration of The Federal aid Highway Program’ and his duties and responsibilities were listed in detail in Addendum 1 attached to the Contract 4

4 The Contract contained the following provisions relevant to the pending Motion to Dismiss

17 TERMINATION 1 Either party will have the right to terminate this Contract with or without cause on thigy days written notice to the other party specifying the date of termination

18 PARTIAL TERMINATION

The performance of work under this Contract may be terminated by the Government in part, whenever the Government shall deem such termination advisable This partial termination shall be effected by delivering to the Contractor a Notice of Partial Termination specifying the extent to which the term and/or duties under this Contract are terminated and the date upon which such termination becomes effective The Contractor shall be entitled to receive payment for services provided to the date of termination, including payment for the period of the thirty (30) day notice

5 The Contract was for a two year period and Addendum 2 to the Contract set forth the terms of Benjamin s compensation $156,603 20 for year one; $156,603 20 for year two; and $10,000 00 for travel expenses 5

6 On or about October 12, 2015, Defendant entered into a contract with Tip Top Construction, Inc ( Tip Top ) for the Main Street Enhancement Project 6 Following execution of his Contract for Professional Services, Benjamin began managing the Main Street Enhancement

3 Id at 11 9 and Govt 5 Reply to Pl 5 Opp to Mot to Dismiss Ex A 4 Ex A Addendum 1 5 Ex A Addendum 2 6 Compl 1112 Benjamin v Gov tof the VI 2020 VI Super 42U Case No ST 19 CV 323 Memorandum Opinion and Order Page 3 of 9

Project in downtown Charlotte Amalie, St Thomas 7 This project was funded and administered by the Federal Highway Administration ( FHWA ) 8

7 In December 2015, Benjamin learned of conduct by Tip Top that was contrary to representations Tip Top made during contracting for the Main Street Enhancement Project 9

8 Benjamin reported Tip Top 5 conduct to the Government and to FHWA ‘0 The FHWA advised Benjamin that Tip Top should cease its work in order to assess whether Tip Top 5 conduct was a breach of contract for the Main Street Enhancement Project and subject to termination 11

9 On or about February 2, 2016, Benjamin, consistent with FHWA s instructions, notified Tip Top that the Government was suspending work ‘2

10 Tip Top did not comply with Benjamin 3 notice and continued working 13

11 On or about February 5, 2016, Benjamin provided Commissioner Gustav James with a proposed letter addressed to Tip Top formalizing the suspension of work '4 Benjamin also provided FHWA with the proposed letter '5

12 Commissioner James did not consider Benjamin’s proposal, nor did he issue a letter of any type to Tip Top regarding suspension of its work 16

13 On February 8, 10 and 11, 2016, Benjamin participated in meetings with personnel of various Government departments to discuss Tip Top 5 conduct and to issue Tip Top a letter advising of its breach of contract ‘7

14 On February 29, 2016, Benjamin wrote to Tip Top describing instances of its breach of the contract and procurement process for the Main Street Enhancement Project and notified Tip Top

7 Id 11 14 8 Ex A AddendumI 9 Id 1115 ‘0 Id 11 16 ” Id 1116 ‘2 Id 11 17 13 Id 1118 14 Id 11 19 15 [d 1119 ‘6 1d 11 20 ‘7 1d 11 21 Benjamin v Gov tof the VI 2020 VI Super 42U Case No ST 19 CV 323 Memorandum Opinion and Order Page 4 of 9

that these instances served as sufficient grounds for termination of the Contract '8 Benjamin gave Tip Top 10 days from its receipt of the letter to produce certain enumerated information and documents 19

15 Tip Top responded, but its response was inadequate 2°

16 On March 23, 2016, Benjamin wrote to Tip Top again asking what it had done to correct the enumerated breaches 2'

17 Tip Top responded, and once again, its response was inadequate 22

18 On April 6, 2016, Benjamin discussed with the FHWA the issue of terminating Tip Top’s contract 23

19 On April 18, 2016, at the Government s request, Benjamin prepared a written summary of options available to the Government to terminate Tip Top s contract, together with all potential and claims 24

20 On May 5, 2016, Benjamin, the Government and FHWA conferred and finalized the steps required to terminate Tip Top s contract 25 Commissioner James maintained the position that he had the final authority on terminating Tip Top, and he wanted Tip Top to continue the work 26 The FHWA required Commissioner James’ concurrence with the decision to terminate 27 To comply with the FHWA s requirement, Benjamin prepared a termination letter for Commissioner James’ signature 28

‘8 Id 11 22 ‘9 Id 11 22 20 1d 1 23 ‘ 21 [d 11 24 22 Id 11 25 ‘ 23 Id 11 26 1 24 Id 11 27 1 25 1d 11 28 1 26 Id 1 27 Id 1 28 Id 1

1 1 1 1 1 Benjamin v Gov tof the VI 2020 VI Super 42U Case No ST 19 CV 323 Memorandum Opinion and Order Page 5 of 9

1 21 Following the May 5, 2016 teleconference, the Government29 provided Benjamin with a ‘ proposed letter terminating the contract with Tip Top Benjamin provided Commissioner James with a separate letter that he had prepared and requested James signature

22 On May 18, 2016, Commissioner James informed Benjamin that he would not Sign the letter to terminate Tip Top s contract

23 Benjamin provided the FHWA with both the Government 5 May 17 2016 letter and the unsigned letter that Benjamin had prepared for Commissioner James s signature

24 Benjamin s Complaint describes in detail how he and Commissioner James disagreed on whether Tip Top should be able to continue with the Main Street Enhancement Project The FHWA agreed with Benjamin and took the position that there were sufficient grounds for termination 30

25 On June 21, 2016, Commissioner James called Benjamin into his office and told Benjamin that they could no longer work together 3 I

26 On June 21, 2016, Commissioner James issued a letter to Benjamin exercising the Contract s Partial Termination clause 32 The June 21, 2016 letter states in its entirety

Dear Mr Benjamin,

You are hereby notified that the Department of Public Works has decided to exercise the Partial Termination clause (clause 18) of the referenced contract Effective immediately and until further notice, please cease all work activity for the Department of Public Works

We will be reviewing our needs and will contact you regarding final resolution of our agreement

27 On June 23, 2016, Benjamin wrote to Commissioner James denying his compliance with paragraph 18 of the Services Contract titled ‘Partial Termination” 33

29 The Complaint appears to make a distinction between the Government of the Virgin Islands and the then Commissioner of Public Works Gustav James However, for the purposes of this analysis, any distinction, if one was intended does not affect the Court 5 decision herein 3° Compl 1m 34 36 and 37 3‘ Id 11 38 32 [d 11 39 and Ex B to Gov tof VI Reply to P1 s Opp to the Mot to Dismiss 33 [d 11 41 l

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28 On October 13, 2016, Benjamin received by certified mail a letter from the Government, through the Department of Property and Procurement, stating Please be advised that effective November 2, 2016 the Government of the Virgin Islands will terminate the above referenced contract pursuant to the Termination Clause ’ l

29 On June 10, 2019, Benjamin filed his Complaint initiating the instant lawsuit alleging two counts of breach of contract and one count of breach of duty of good faith and fair dealing

II LEGAL STANDARD FOR RULE 12(b)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

113 Rule 12(b)(6) of the Virgin Islands Rules of Civil Procedure allows a party to challenge a pleading for failure to state a claim upon which relief can be granted ’ To survive a 12(b)(6) motion, the plaintiff must provide a short and plain statement of the claim showing that the pleader is entitled to relief,’ 34 and ‘ [t]he facts alleged in the pleadings, and any inferences drawn therefrom, must be viewed in the light most favorable to the plaintiff 35 Since Virgin Islands Rule 8(a)(2) explicitly states that the Virgin Islands is a notice pleading jurisdiction, a plaintiff merely needs to provide a basic legal and factual basis for his claim so as to put a defendant on fair notice of the claims brought against him 36 In fact, ‘[t]he complaint need not identify the particular legal theories that will be relied upon, but it must describe the essence of the claim and allege facts sufficient to demonstrate that the complaining party has been injured in a way that entitles him or her to relief ’37 Essentially, Rule 8(a)(2) allows the Court to proceed with the discovery process and address pleadings based on the merits of each asserted claim,38 and [p]leadings must be fatally defective before they may be rejected as insufficient 39

114 In lels Wzllzams v Mapp, the Supreme Court of the Virgin Islands stated

the adoption of Rule 8 of the Virgin Islands Rules of Civil Procedure supersedes our prior precedents which imposed the Twombly plausibility standard by virtue of the now amended Superior Court Rule 7, and restores the notice pleading regime that had previously been in effect 6 See **586 Estate ofKnoster v Ford Motor Co 200 Fed Appx 106 111 n 3 (3d Cir 2006) (holding that the

34 v I R Civ P 8(a)(2) 35 Adams v North West Company (International) Inc 63 VI 427 438 (Super Ct 2015) (cttmg Benjamin v AIG Ins Co ofPuerto RICO 56 VI 558 566 (VI 2012)) 36 See Bank ofNova Scottav Flavms Super Ct Civ No SX 16 CV 125 2018 WL 745958 at *6 (Super Ct Feb 2 2018) 37 Howe v MMG Ins Co 95 A 3d 79 81 82 (Me 2014) (internal quotation marks omitted) 38 See Swzerkzewzcz v Sorema NA 534 U s 506 514 (2002) ( The liberal notice pleading of [Federal] Rule [of Civil Procedure] 8(a) was adopted to focus litigation on the merits of a claim ) 39 Corwm v Brttzsh American Tobacco PLC 796 s E 2d 324 333 (N C Ct App 2016) Benjamin v Gov tof the VI 2020 VI Super 42U Case No ST 19 CV 323 Memorandum Opinion and Order Page 7 of 9

adoption of a new court rule ‘plainly supersedes any cases to the contrary that applied the former rule) 40

115 In other words, the Twombly plausibility standard was abolished with the adoption of V I R Civ P 8 4‘ 116 In its Motion, the Government asserts that, pursuant to V I R Civ P 12(b)(6), Benjamin s Complaint must be dismissed for failure to state a claim upon which relief can be granted Specifically, the Government argues that either party had the right, under section 17, to terminate the contract with or without cause on thirty days written notice to the other party specifying the date of termination In addition, section 18 allowed the Government to terminate the performance of work whenever the Government shall deem such termination advisable Section 18 also required the Government to specify the extent to which the term and/or duties under this Contract are terminated and the date upon which such termination becomes effective

A Count One Breach of Contract

117 To successfully present his claim for a breach of contract in the Virgin Islands, Benjamin must adequately plead the following four elements (1) the existence of a contract; (2) a contractually created duty; (3) a breach of that duty; and (4) damages suffered due to that breach 42 In other words, Benjamin need only present a basic legal and factual basis for this claim to survive a Rule 12(b)(6) motion

18 In Count One, Benjamin has sufficiently pled all four elements to establish a claim for breach of contract In his Complaint, Benjamin alleges that he and the Government entered into a Contract for Professional Services with a commencement date of December 1, 2015 The Contract and its terms are described in great detail in the Complaint The Government also attached a copy of the Contract to its Reply brief The Contract identifies in great detail the duties of each party In Count One, Benjamin alleges that (a) the Government breached its duty by failing to specify the extent to which the term and/or Plaintiff’s duties were terminated and the date upon which the termination took place; (b) that only the Commissioner of Property and Procurement could terminate the Contract; (0) that the Government ‘breached the Contract when it allowed Commission James illegal action to stand; and (d) that the Government further breached the Contract by not timely paying Benjamin for the services he had already provided up to June 21, 2016 The Complaint also clearly alleges that Benjamin suffered damages in the form of withheld payment for services rendered up to the legally valid termination date

40 lels Williamsv Mapp 67 v1 574 585 586 (v1 2017) 4' Id at 586 42 Merchants Commerczal Bank v Oceanszde Village Inc 64 VI 3, 14 (Super Ct 2015) Benjamin v Gov tof the VI 2020 VI Super 42U 1 Case No ST 19 CY 323 1 Memorandum Opinion and Order 1 Page 8 of 9

1 19 Benjamin having provided enough legal and factual information to put the Government on reasonable notice of the cause of action for breach of contract in Count One, it survives the Motion to Dismiss under Rule l2(b)(6)

B Count Two Breach of Contract

1110 In Count Two, Benjamin also sufficiently pled all four elements required to establish a claim for breach of contract In addition to already establishing the existent of a Contract and the parties respective duties under the Contract, Benjamin’s Complaint further alleges, as confirmed by the Government 5 own exhibits, that ( 1) the Government terminated the Contract effective November 2, 2016; (2) from June 21, 2016 until November 2, 2016, the Government denied Benjamin compensation under the Contract; (3) because Commissioner James lacked the capacity to terminate the Contract, it remained in effect and (4) the Government breached the contract by not allowing Benjamin to perform his duties and responsibilities between June 21, 2016 and November 2, 2016 The fourth element of damages has also been properly met by virtue of the compensation that Benjamin alleges he was not paid

111 Therefore, Benjamin having provided enough legal and factual information to put the Government on reasonable notice of the cause of action for breach of contract in Count Two, it survives the Motion to Dismiss under Rule 12(b)(6)

C Count Three Breach of Duty of Good Faith and Fair Dealing

1112 In Chapman v Cornwall, the Virgin Islands Supreme Court held that [e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its 1 enforcement 43 The duty of good faith limits the parties' ability to act unreasonably in 1 contravention of the other party's reasonable expectations A successful claim requires proof of 1 acts amounting to fraud or deceit on the part of the employer 44 ‘Fraud means an intention to 1 deceive, while deceit involves [t]he act of intentionally giving a false impression ”45 Other than ; alleging that the Government knew that Commissioner James lacked capacity to issue a notice of 1 partial termination, the Complaint fails to allege any action amounting to fraud or deceit on the part of the Government In fact, the notice of termination was later issued by the Department of Property and Procurement An error on the part of the Government does not constitute fraud or deceit Therefore, accepting the factual allegations of the Complaint as true Benjamin has failed to plead sufficient facts to create a right to relief for breach of the duty of good faith and fair dealing The Motion to Dismiss for failure to state a cause of action will be granted as to Count Three

43 [d at 441 (internal citations omitted) 44 Id at 441 (internal citations omitted) 45 Edwardsv Marrzott Hotel Mgmt C0 (V1) Inc Super Ct Civ No 2015 WL 476216 *4(VI Super Ct 2015) (internal citations omitted) 1

Benjamin v Gov tof the VI 2020 VI Super 42U Case No ST 19 CV 323 l Memorandum Opinion and Order Page 9 of 9

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III CONCLUSION

1113 Under V I R Civ P 8, Benjamin is not required to plead and prove his case in his Complaint Therefore, with respect to Counts One and Two, the Motion to Dismiss will be denied With respect to Count Three, the Motion to Dismiss will be granted, as the Complaint failed to allege facts showing an intention to deceive on the part of the Government

Accordingly, it is hereby

ORDERED that Government of the Virgin Islands[ ] Motion to Dismiss is GRANTED with respect to Count Three and DENIED with respect to Counts One and Two; and it is further

ORDERED that, on or before March 30, 2020, the Government of the Virgin Islands shall file a responsive pleading to Counts One and Two of the Complaint; and it is further

ORDERED that copies of this Memorandum Opinion and Order shall be directed to Attorney Shannane Davis Brathwaite and Assistant Attorney General Sheena Conway

DATED EiléoiZOZO mm mm DENISE M FRANCOIS Judge of the Superior Court of the Virgin Islands

ATTEST

TA RLES (Clerk of the Con

W Lori Boyne Tyson Court Cle Supervisor é/flflflQU