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




PEGASUS HOLDING GROUP                           )        CASE NO ST 2014 CV 0000069
STABLES LLC                                     )
              Plaintiff                         )        ACTION FOR DEBT AND
                                                )        BREACH OF CONTRACT
                   vs                           )
                                                )
LAWRENCE SHARE                                  )
                                                )
                           Defendant            )
__—_)
                                       Cite as 

                             MEMORANDUM OPINION AND ORDER

111         Pending before the Court are the following

            1   Defendant 5 Motion to Dismiss the Complaint with Points and Authorities filed on June
                7 2016 and

            2   Plaintiff’s Opposition to Defendant s Second Motion to Dismiss on June 30, 2016

         Defendant 5 second Motion to Dismiss will be denied because when Viewing the facts
alleged in the pleadings and inferences to be drawn from those facts in the light most favorable to
the Plaintiff its claims are not barred by the statute of limitation or the statutes of fraud Further,
Defendant 5 Motion relies upon matters outside the pleadings which emphasizes the material facts
left to resolve

                             FACTUAL AND PROCEDURAL HISTORY

112      Plaintiff initiated this action on January 31, 2014 seeking damages for an alleged breach
of contract and debt owed Plaintiff alleges that [a]t the end of 2009, at the request of Defendant,
[Plaintiff] advanced $460 000 to HM Ruby on Defendant s behalf 1 Defendant allegedly made
this request to Plaintiff to satisfy Defendant s obligations in an investment mechanism 2 Under
the alleged terms of this investment mechanism, Defendant needed to deposit this money before
January 1, 2010 3 In January 2010 recognizing the debt owed to Plaintiff from the $460,000
advanced on his behalf Defendant repaid $50,000 to [Plaintiff][,] promising to pay the remaining
balance 4 Plaintiff alleges that Defendant has made no additional payments, and refuses to make


1 Compl fl 4
 Id fl 5
3 [d 11 6
4 Id 11 7
Pegasus Hol(lmg Group Stable, LLC v Lawrence Share
Case No ST 14 CV 69
Memorandum Opinion and Order
Page 2 of9                                                                                           

any remaining payments, and has an outstanding balance in excess of $410,000 not including
interest, penalties, fees, and/or/attorney s fees 5

113      Based upon these allegations, the Complaint contains seven causes of action (1) breach
of contract due to Defendant s alleged failure to repay the amount advanced to HM Ruby by
Plaintiff 0n Defendant s behalf;6 (2) breach of implied in fact contract as an alternative to Count
I if the Court determines that no express contract exists 7 (3) quasi contract as an alternative to
Count I if the Court determines that no express contract exists;8 (4) fraud, based upon
representations allegedly made by Defendant to induce Plaintiff to loan Defendant the money 9 (5)
breach of covenant of good faith and fair dealing'10 (6) unjust enrichment11 and (7) promissory
estoppel/detrimental reliance '2 Defendant filed his first Motion to Dismiss on May 5, 2014, which
was denied on all stated grounds in this Court s September 14, 2015 Memorandum Opinion
Defendant then filed his Answer to the Complaint on October 2, 2015

114    On June 7, 2016, Defendant filed his second Motion to Dismiss the Complaint with Points
and Authorities Defendant argues that the Plaintiff failed to state a claim because there was no
contract13 and that the statute of frauds applies for count one; '4 that a two year statute of limitations
applies to counts two through seven;15 and that the clean hands doctrine applies to all actions in
equity notably counts two, three, and six ‘6 On June 30, 2016, Plaintiff filed an Opposition to
Defendant 5 Second Motion to Dismiss

                                    APPLICABLE LEGAL STANDARD

    I         Federal Rule of Civil Procedure 12(b)(6) applies because it would be unjust to
              apply the Virgin Island Rule of Civil Procedure 12(b)(6) when the parties briefed
              Defendant’s second motion to dismiss prior to the March 31, 2017 implementation
              of the Virgin Islands Rules of Civil Procedure

115     The Complaint in this case was filed January 31, 2014 and Defendant s second Motion to
Dismiss and Plaintiff’s Opposition were filed on June 7, 2016 and June 30, 2016, respectively
Both parties rely on the plausibility pleading standard set forth in Bell Atlantic Corp v Twombly,
550 U S 544 (2007) and Ashcroft v Iqbal 556 U S 662 129 (2009) citing t0 the Federal Rule of
Civil Procedure 12(b)(6) pursuant to then Superior Court Rule 7

  [d 1] 8 See also Id fl ll (alleging same)
6 See Id 1111 12 17 (setting forth Plaintiff‘s breach of contract claim)
7 See Id 1111 18 22 (setting foxth Plaintiff‘s beach of implied in fact contract claim)
8 See Id 1111 23 28 (setting fonh Plaintiff‘s quasi contract claim)
9 See Id 111] 29 39 (setting foxth Plaintiff’s fraud claim)
'0 See 1d 1111 40—42 (setting forth Plaintiff‘s breach of covenant of good faith and fair dealing claim)
" See 1d 111] 43 56 (setting forth Plaintiff‘s unjust enrichment claim)
'7 See Id 111] 57 61 (setting forth Plaintiff‘s promissory estoppel/detrimental reliance claim)
13 See Def 5 second Mot to Dismiss 8
14 See Id
15 See Id 9 13
16Seela/ 911 12
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116     However, effective March 31, 2017, the Supreme Court adopted the Virgin Islands Rules
of Civil Procedure, which supersede all previous civil procedure rules applicable to the Superior

Court, including the Federal Rules of Civil Procedure ‘7 As a result, the plausibility standard has
been abolished for proceedings in any actions that were pending on March 31, 2017, unless the
Supreme Court of the Virgin Islands specifies otherwise by order or the Superior Court makes an
express finding that an injustice or infeasibility would result from the application of the Virgin
Islands Rules of Civil Procedure '8

1|7     In light of the change in rules, the Court considers the timing of this filing well before
March 31, 2017, along with the fact that both parties rely on the prior standard in their filings, and
finds that it would be unjust to apply the Virgin Islands Rules of Civil Procedure and the notice
pleading standard as set forth in V I R Civ P 8(a)(2) It would be unfair to expect the parties to
anticipate the new notice pleading standard Therefore, the Federal Rules of Civil Procedure
applies through Superior Court Rule 7 applying the plausibility pleading standard

      11      The Defendant’s 12(b)(6) Motion to Dismiss will be converted to a 12(c) Motion
              for 3 Judgment on the Pleadings because a Motion to Dismiss under 12(b)(6) must
              be filed prior to the filing of a responsive pleading

118        Under the plain language of Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss
must be made before the first responsive pleading ‘9 Here, Defendant filed an Answer to the
Complaint on October 2 2015 Therefore Defendant 5 second Motion to Dismiss will be treated
as a motion for judgment on the pleadings and Federal Rule of Civil Procedure 12(c) applied 20

119     A motion for judgment on the pleadings should be granted when the moving party has
established that there is no material issue of fact to resolve and that it is entitled to judgment in its
favor as a matter of law 2‘ As with a Rule 12(b)(6) motion, the Court Views the facts alleged in the
pleadings and the inferences to be drawn from those facts in the light most favorable to the non
moving party 22 A motion brought for judgment on the pleadings is designed to dispose of cases
where the material facts are not in dispute and a judgment on the merits can be rendered by looking
to the substance of the pleadings and any judicially noted facts 23 Furthermore, the Court is
foreclosed from considering evidence from any source outside of the pleadings and the exhibits
attached to the pleadings in determining whether it was proper to grant a motion for judgment on


17 Mills William v Mapp 

 585
18 Cane; v Umv 0fthe VI 

 at *2 2017 VI Lexi 129 at *4 (VI Super Ct July 31 2017)
(citing In re Adoption offhe VI Rule OfCIV PI ocea'zue 2017 V 1 Supreme Lexis 22 3 4)(stated in Rule 1 1 and its
accompanying Reportei Note)
19 See Mattme v Colombian Emelalds Inc , 51 V I 174, 190 (V I 2009)
20 See Benjamin v AIG [nszn ance Company ofPueito RICO, 56 V I 558, 565 (V I 2012)
21 See Id at 566
22 See Id
23 VICtOI Pele v Diamondlock Henchman s Ownel Inc , 

 at *3 (V I Super August 31 2017)
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the pleadings 24 If the Court considers matters outside the pleadings, then a motion for judgment
on the pleadings must be treated as one for summary judgment and the parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion 25

                                              ANALYSIS

        I       There are material issues of fact to resolve regarding a breach of contract

1110    Defendant argues that the first cause of action, breach of contract, must be dismissed
because there was no written loan agreement 26 He argues that in response to Defendant 5 request
for production of documents, Plaintiff produced bates stamped documents showing a wire transfer
of $460,000 and another document showing that that money was used for the purchase of a horse 27
Defendant argues that this demonstrates that Plaintiff failed to state a claim and that there was no
contract 28 Furthermore, Defendant invokes the Statute of Frauds 28 V I C §244 arguing that an
oral agreement regarding an interest in property for a period greater than one year is void and
unenforceable 29

1111    Whether the Court considers the motion as a 12(b)(6) motion to dismiss for failure to state
a claim or a 12(c) motion for judgment on the pleadings, the Court is foreclosed from considering
evidence from any source outside of the pleadings and exhibits attached to the pleadings 3° The
documents produced by Plaintiff to defendant referring to the wire transfer and purchase of a horse
are outside the scope of the Court 5 consideration for this motion for judgment on the pleadings
Therefore, this Court will only consider the facts alleged in the pleadings Under Rule 12(b)(6) the
Court cannot consider matters produced in the discovery and referenced in Defendant s Motion

1112    To establish a breach of contract claim, Plaintiff must prove that a contract existed, that
there was a duty created by that contract that such duty was breached, and that as a result, they
suffered damages 3' Plaintiff’s Complaint alleges that the parties entered into an agreement where
Plaintiff advanced the sum of $460,000 00 as a loan to Defendant and that Defendant has only
repaid $50,000 00 of the loan These allegations constitute sufficient facts to support a breach of
contract claim Defendant 3 Answer denies every allegation made and reasserts in his second
Motion to Dismiss that there is no contract The breach of contract claim is viable and Defendant s
Motion clearly highlights the material facts in dispute Because Defendant s Motion relies on
significantly on factual allegations and exhibits that are outside the Complaint and Answer it will
be denied


24 See Benjamin v AIG [mm ance Company ofPueI to RICO, 56 V I 558, 565 (V I 2012)
25 See Fed R CiV P 12(d)
25 See Def 5 second Mot to Dismiss 8
27 See Id
28 See 1d
29 See 1d 8 9
3° See Benjamin v AIG 1mm ance Company ofPueI to RICO 56 V I 558, 565 (V I 2012)
31 See Blozullaldv DLJ M01 tgage Capltal Inc 63 V I 788 797 (V I 2015) (citing Arlington Funding Servs Inc
v Gezgel 51VI 118 135 (VI 2009)
Pegasus Holding Group Stable, LLC v Lawrence Share
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        II         The Statute of Frauds does not void the alleged contract

1113    Defendant also argues that the Statute of Frauds applies because Plaintiff asserts this was
an oral contract regarding an interest in property 32 The Statute of Frauds, 28 V I C §244, lists four
kinds of agreements that are void and therefore unenforceable unless that agreement is in writing

        (1) An agreement that by its terms is not to be performed within one year from the
            making thereof
        (2) A special promise to answer for the debt, default, or misdoings of another
            person
        (3) An agreement, promise, or undertaking made upon consideration of marriage,
            except mutual promises to marry
        (4) A special promise made by an executor or administrator to answer damages out
             of his own estate 33

1114    Plaintiff alleges that there was an oral agreement to lend money that was to be repaid
immediately upon the settlement of Defendant 5 share from White Energy 34 Defendant merely
asserts in his second Motion to Dismiss that an oral agreement regarding an interest in property
for a period greater than one year is void and unenforceable under the Statute of Frauds 35 Viewing
the facts alleged in the pleadings and the inferences to be drawn from those facts in the light most
favorable to the Plaintiff, it is clear that the oral agreement was made to lend money and not for
any property as Defendant asserts Therefore, the alleged loan described in Plaintiff‘s Complaint,
does not fall into any of the four categories of agreements listed in the Statute of Frauds

1115    Viewing the alleged facts in light most favorable to the Plaintiff, the agreement was to be
performed within a year, did not involve answering for the debt of another person, was not
undertaken upon consideration of marriage and did not relate to damages out of an estate The
alleged oral contract at issue in this case is distinguishable from the oral agreement referred to in
Biouzllard v DLJ Mortgage Capital Inc which Defendant relies on in his second Motion to
Dismiss In Brouzllard, the unwritten agreement for a $500,000 loan was deemed barred by the
Statute of Frauds because the Court found that the agreement by its terms was not to be performed
within a year as it was for a 30 year mortgage 36 Therefore, the Statute of Frauds does not void the
alleged contract in the present case because it does not fall into any of the four types of agreements
covered by the V I Statute of Frauds




32 See Def 5 second Mot to Dismiss 8
33 28 V I C §244
3“ P1 s Opp To Def 5 second Mot to Dismiss 5
35 Def 5 second Mot to Dismiss 8
36 See Biomlla/dv DLJ Maltgage CapItal Inc 63 V I 788 798 (V I 2015)
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Memorandum Opinion and Order
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          III     The two year Statute of Limitations does not apply to counts two, three, five,
                  and six Breach of Implied Contract, Breach of Quasi Contract, Breach of
                  Good Faith Covenant, and Unjust Enrichment

1116    The Defendant asserts that a claim for breach of implied contract and a breach of quasi
contract are equitable in nature and thus, must be filed within two years from the alleged loan made
in December 2010 according to Title 5 V I C §31(5)(A) 37 Section 31(5)(A) provides that a civil
     action for libel, slander assault, battery seduction false imprisonment, or for any injury to
the person or rights of another not arising on contract and not herein especially enumerated must
be commenced within two years after the cause of action has accrued 38

1117      However, under section 3(3)(A)         an action upon a contract or liability express or implied
       must be brought within six years after the cause of action has accrued 39 The statute specifically
contemplates a six year statute of limitations not just for express contracts, but those that are
implied as well which would extend over to counts two and three 40 The present action was filed
on January 31, 2014 The loan agreement was allegedly negotiated in December 2009 and the
funds were advanced on or before January 1 2010 In January 2010, the Defendant made a $50,000
payment on the loan, which was the only payment made When a party has breached its promise
under the contract, the limitations period begins from the time of the last payment made on the
contract41 Only four years passed between 2010 and January 31, 2014, which is well within the
six year statute of limitations that applies to express and implied contracts

1118    The Court also finds that the six year statute of limitations applies to count five breach of
the covenant of good faith and fair dealing, despite the Defendant arguing that a two year statute
of limitations applies and has therefore tolled count five Defendant asserts that a breach of the
covenant of good faith and fair dealing sounds in tort, and therefore a two year statute of limitation
applies 42 However, where a duty of good faith arises under the law of contracts, [ ] there is no
need to create a separate tort for breach of duty of good faith 43 The nature of the breach of the
covenant of good faith and fair dealing sounds in contract, and therefore the six year statute of
limitations that applies to actions in express and implied contract applies, not the two year statute
of limitations



37 Def 5 second Mot to Dismiss 9 11
38 5 V I C §31(5)(A)
395 V I C §31(3)(A)
4° See Ten ace v WIllIams 52 V I 225 243 (V I 2009) (stating The United States Court oprpeal for the Third
Circuit defines a quasi contiactual claim as an obligation created by law in the absence of any agreement [ ]
Significantly the Third Circuit 3 definition of a quasi contract is almost identical to the Restatement (Second) of
Contracts definition of an implied in law contract )
41 5 V I C §40 (stating Whenever any payment of principal or interest has been or shall be made upon an existing
contiact, whether it be a bill of exchange promissory note bond, or other evidence of indebtedness if such payment
be made after the same shall have become due the limitation shall commence from the time the last payment was
made )
42 Def 5 second Mot to Dismiss 12
43 See Jo Ann 3 Laundel Centel Inc v Chase Manhattan Bank NA         

 (D V I 1994)
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$119    Defendant argues that Plaintiff’s sixth cause of action, Unjust Enrichment, must also be
dismissed because it is governed by a two year statute of limitations 44 Defendant provides no legal
authority to support this contention 45 Plaintiff argues that the unjust enrichment claim sounds in
contract and is subject to a six year statute of limitations 46 However, Plaintiff’s cited legal support
does not directly support this contention either 47 The fundamental principles of contract law, as
demonstrated by the Virgin Islands Supreme Court in Pepperrree Terrace v Wzllzams, classifies
contracts as express, implied in fact, implied in law, or quasi contract 48 Unjust enrichment is an
equitable quasi contract cause of action, imposing liability where there is no enforceable contract
between the parties, but fairness dictates that the plaintiff receive compensation for services
provided 49 Accordingly, Plaintiff’s unjust enrichment claim sounds in contract and should be
governed by the six year statute of limitations Therefore, count six, unjust enrichment, cannot be
dismissed on the grounds of being barred by the statute of limitations

1120     Regarding Plaintiff‘s unjust enrichment claim, Defendant further argues that Plaintiff
failed to assert that Defendant had appreciation or knowledge of the benefit, an element required
to properly allege an unjust enrichment claim 50 Furthermore, Defendant denies that Plaintiff was
enriched, continuing to assert that Defendant had in fact repaid the $1 4 million from his own
assets 5‘ Viewing the alleged facts in light most favorable to the Plaintiff Plaintiff does assert
Defendant had knowledge of the conferred benefit and maintains that Defendant has only repaid
$50,000 of the $1 4 million loan This is a clear unresolved issue of material fact Therefore, the
Motion cannot be granted

1121    Defendant also raises a clean hands doctrine defense for counts 2, 3, and 6 breach of
implied contract, breach of quasi contract, and unjust enrichment, respectively 52 However,
Defendant relies on allegations and assertions of criminal conduct on the part of Tagliaferri 53
While the Defendant did raise these issues, albeit briefly in his Answer to the Complaint, he raises
them now with much more particularity and without any documentation or even case law to
support his argument 54 Therefore, the Court agrees with the Plaintiff’s that Defendant s unclean
hands defense is not properly before the Court under Fed R Civ P 12(c) or l2(b)(6) motion, and
that such a defense would be better suited for trial or a summary judgment motion 55



4“ Def 5 second Mot to Dismiss 12
45 See 1d
46 Pl 5 Opp To Def 5 second Mot to Dismiss 10 1 1
47 See 1d (citing to Melchants CommeiczalBan/(v JFOV LLC 

 at *5 (VI Super Oct 2 2015)
48 See Peppeltlee Tenace v Willlams 

 (V I 2009)
49 Cacczamam and Rave) C01p v Banco Popular de Puelto RICO, 61 V I 247, 251 (V I 2014)
50 Def s second Mot to Dismiss 12 (citing Waltets v Waltels 60 V1 768 779 80 (V1 2014)
51 See 1d
52 Def 5 second Mot to Dismiss 9 13
53 See Id 10
54 See 1d 10
55 P1 5 Opp To Def 5 second Mot to Dismiss 5 (citing to Bandal v Hayes Walsh 

, (Mass
Super Mar 14 2013) at *3)
Pegasus Holding Group Stable, LLC v Lawrence Share
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Memorandum Opinion and Order
Page 8 0f 9                                                                         

        IV      Plaintiff’s Fraud claim is not barred by the two year statute of limitations
                because of the “discovery rule ”

1122   Defendant argues that Plaintiffs fourth cause of action, Fraud, must be dismissed because
the two year statute of limitation for torts applies the alleged loan was made in December, 2010
and the Complaint was filed on January 31, 2014 56 Plaintiff agrees that the two year statute of
limitation applies, however, Plaintiff invokes the discovery rule, asserting that the fraud was not
 discovered until 2013 57 Plaintiff asserts that Defendant was continuing to promise to pay the
remaining balance of the loan until early 2013, when Defendant changed his tune and began
denying that a loan even took place 58 Plaintiff contends that it was not until then in early 2013,
that Plaintiff realized it had been defrauded

1123    The discovery rule tolls the statute of limitations when, despite the exercise of due
diligence, the injury or its cause is not immediately evident to the victim 59 The focus is not on the
plaintiff’s actual knowledge, but rather whether the knowledge was known, or through the exercise
of diligence, knowable to the plaintiff 60 Furthermore, the statute of limitations begins to run on
the first date that the injured party possesses sufficient critical facts to put him on notice that a
wrong has been committed and that he need investigate to determine whether he is entitled to
redress [ ] 6‘ Viewing the alleged facts in light most favorable to the Plaintiff, while Plaintiff
could have had reason to be suspicious of Defendant due to the passage of time and not having
paid back the loan in full yet, Plaintiff became aware of critical information in 2013 when
Defendant began denying the existence of a loan Applying the discovery rule to the fraud claim 3
two year statute of limitations, Plaintiff‘s fraud claim is not barred because its complaint was filed
January 31 2014 within two years of 2013

1124    With respect to Plaintiff‘s Fraud claim, Defendant also restates his argument from his prior
 12(b)(6) motion that Plaintiff failed to plead the elements of fraud with particularity as required
by Fed R Civ P 9(b) which was addressed and rejected by the Court in its September 14 2015
Memorandum Opinion

        V       Promissory Estoppel/Detrimental Reliance is governed by the six year statute
                of limitations, and therefore is not barred because it was timely filed

1125   Defendant also argues that Plaintiff‘s Promissory Estoppel/Detrimental Reliance claim is
barred by a two year statute of limitations but provides no legal authority to support his position 62



56 Def 5 second Mot to Dismiss 11
57 Pl 5 Opp To Def 5 second Mot to Dismiss 9
58 See Id
59 United C01p01at10n v Hamed 

 (VI 2016) (citing Santlago v V] H0115 Auth 57 V I 256 273
(VI 2012)
6° See Id
51 See Santiago v V] Halls Auth 

 (V I 2012)
52 Def 5 second Mot to Dismiss 13
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Memorandum Opinion and Order
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Plaintiff argues that Promissory Estoppel/Detrimental Reliance is a claim that sounds in contract,
and is therefore governed by the six year statute of limitations 63

1126    In re People of Vzrgm Islands refers to Promissory Estoppel/Detrimental Reliance as a
contract principle 64 Furthermore, Promissory Estoppel/Detrimental Reliance is addressed by the
Restatement (Second) of Contracts, §90 65 As an action sounding in contract, section 31(3)(A) s
six year statute of limitations applies rather than a two year statute of limitations Therefore,
Plaintiffs Promissory Estoppel/Detrimental Reliance cause of action is not barred for timeliness

1127    Regarding Plaintiff‘s Promissory Estoppel/Detrimental Reliance claim, Defendant also
restates an argument that Plaintiff has failed to join an indispensable party, which is an argument
that has already been addressed and rejected in the Court 3 September 14, 2015 Order

                                                  CONCLUSION

1128    The Court concludes that Plaintiff‘s claims are not barred by the statute of limitations or
the statute of frauds and that there are material issues of fact to be resolved thereby compelling
the denial of Defendant 3 Motion Accordingly, it is

        ORDERED that Defendant 5 Motion to Dismiss the Complaint with Points and
Authorities, filed on June 7, 2016, is DENIED; and it is further

        ORDERED that copies of this Memorandum Opinion and Order shall be directed to David
J Cattie, Esquire (The Cattie Law Firm, P C ) and Treston E Moore, Esquire (Moore Dodson &
Russell)

DATED8lZ1lZOZO                            bgguggkm                          {2)OU/LMW
                                                    DENISE M FRA COIS
                                         Judge of the Superior Court of the Virgin Islands
ATTEST

TAMARA CHARLES
Clerk of the ourt

BY
        D NNA        ONOVAN
        Court Cler Supervisor fig/ 2 % /MO




53 P1 5 Opp To Def 5 second Mot to Dismiss 11 (citing [n 2e People of VIIgm Islands 51 V I 374, 387 (V I
2009))
54 See In 1e People of Vngm Islands 51 V I 374 387 (V I 2009)
55 See RESTATEMENT (SECOND) OF CONTRACTS §90