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5x 201;; $1335 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
TAMARA CHARLES District of St Croix
CLERK OF THE COURT a
CLARK HUNT, Case Number SX 2015 CV 00585
Plaintiff Action Breach of Contract
v.
BRADLEY DOWNS et :1]
Defendant
NOTICE of ENTRY
of
Memorandum Opinion and Order
To Charles E Lockwood Esq Christopher A Kroblin, Esq
Gregg R Kronenberger, Esq Manjofie Whaler} Esq
Judges of the Superior Cgurt
IT/law libra_ry/Law Clerks/Bluebook
Please take notice that on June 01, 2021
a(n) Memorandum Opinion and Order
dated May 28, 2021 was/were entered
by the Clerk in the above titled matter
Dated June 012 2021 Tamara Charles
Clerk of the Court
By
Janeeh Maranda
Court Clerk II
SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
CLARK HUNT
!
PLAINTIFF, ' Civil No SX 15 CV 585
V ACTION FOR SPECIFIC
PERFORMANCE BREACH OF
AND COLDWELL BANKER ST CROIX BREACH OF GOOD FAITH AND FAIR
REALTY DEALING
DEFENDANTS JURY TRIAL DEMANDED
BRADLEY DOWNS AND THERESA
DOWNS CITE AS 2021 VI SUPER 531$
COUNTER CLAIMANTS,
V
CLARK HUNT
COUNTER DEFENDANT
Appearances
Charles E Lockwood, Esq
Gregg R Kronenberger, Esq
Dudley Newman Feuerzeig L L P
St Croix, U S Virgin Islands
For Plamnfl/ Counter Defendant Clark Hunt
Christopher Allen Kroblin, Esq
Marjorie Whalen, Esq
Kellerhals Ferguson Kroblin PLLC
St Thomas, U S Virgin Islands
For Defendants/ Counter Clmmams
Bradley Downs and Theresa Downs
MEMORANDUM OPINION AND ORDER
WILLOCKS Presiding Judge
‘][ 1 THIS MATTER is before the Court sua sponte
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BACKGROUND
‘1! 2 On December 2 2015 Plaintiff Clark Hunt (hereinafter Hunt ) filed a verified complaint
(Docket Entry No 1)' against Defendant Bradley Downs and Defendant Theresa Downs
(hereinafter collectively Downs ), and Defendant Coldwell Banker St Croix Realty (hereinafter
Coldwell Banker ) in connection with the sale of Hunt’s residence at #13 Estate Prosperity St
Croix, U S Virgin Islands (hereinafter Property ) In the verified complaint Hunt alleged that (i)
on September 18, 2015, Downs as buyers, and Hunt as seller entered into a purchase agreement
for the sale and purchase of the Property (Comp! ‘1[ 4) (ii) Coldwell Banker was the real estate
agent representing Downs (Compl q[ 5), (iii) according to the purchase agreement Coldwell
Banker was also the Escrow Agent holding an earnest money deposit in the total amount of Fifty
Thousand Dollars ($50 000 00) (hereinafter Earnest Money Deposit ) pending Downs
compliance with the terms of the purchase agreement (Comp! ‘1[ 6), (iv) according to the purchase
agreement Downs was supposed to deposit an additional One Hundred Thousand Dollars
($100 000 00) (hereinafter Additional Earnest Money Deposit ) on or before September 15 2015
or the receipt of a loan agreement (1d ) (v) according to the purchase agreement, Hunt is entitled
to the Earnest Money Deposit and pursue an action for specific performance in the event Downs
failed to comply with the terms of the purchase agreement (Compl (ll 7) (vi) Downs breached the
terms of the purchase agreement and refused to complete the purchase of the Property (Compl HI
8) and (vii) Coldwell Banker has not released the Earnest Money Deposit to Hunt despite Hunt 3
demand (Compl M l 1 12) Hunt sought inter alia for specific performance for the purchase of
' Docket Entry No refers to the docket entry number in this matter for the Court 3 electronic filing system
Hunt v Downs 61 a1
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the Property and an award of the Earnest Money Deposit Although Hunt 3 verified complaint
stated that the purchase agreement was attached as Exhibit 1 no such exhibit was attached
‘II 3 On February 8 2016 Downs filed an answer and counterclaim against Hunt (Docket Entry
No 16) In the counterclaim Downs alleged that (i) Downs as buyers and Hunt, as seller entered
into a purchase agreement with an effective date of J uly 27, 2015, for the sale and purchase of the
Property (Counterclaim ‘ll 1) (ii) Downs paid the Earnest Money Deposit in accordance with the
purchase agreement (Counterclaim ‘1[ 2) (iii) the purchase agreement contained a Third Party
Financing Rider, which allowed Downs to terminate the purchase agreement if third party
financing was not approved (Counterclaim ‘fl‘ll 3 4) (iv) Downs applied for third party financing
on July 28 2015 and was subsequently denied (Counterclaim ‘|[‘|I 5 6) (v) Downs notified Hunt
through his agent by providing written notice of the denial of third party financing (Counterclaim
1H] 7 8) (vi) thereafter the parties attempted to reach an agreement as to the reduction of the
purchase price such that third party financing would be approved but no agreement was ever
reached (Counterclaim ‘ll 9) (vii) Downs complied with the Third Party Financing Rider and
properly terminated the purchase agreement (Counterclaim (II I 1), (viii) according to the purchase
agreement, Downs are entitled to the refund of the Earnest Money Deposit and Hunt is in breach
by refusing to agree to the release of the Earnest Money Deposit (Counterclaim ‘ll 13) Downs
sought for all contractual consequential and other damages permitted by law including interest
and their awardable costs and attorneys fees (Docket Entry No 16 p 3 ) Downs attached a copy
of the purchase agreement referenced in the counterclaim as Exhibit A2 and a copy of the Third
Party Financing Rider as Exhibit B
’ The title of the purchase agreement attached as Exhibit A is RESIDENTIAL PURCHASE AND SALE
CONTRACT
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‘II 4 On March 9 2016 Downs filed a motion for entry of default and motion to deem
counterclaim admitted (Docket Entry No 18) Thereafter due to some filing mishaps there were
some minor procedural confusions and this matter was closed but subsequently re opened 1‘ On
August 4 2017 Hunt filed a motion to dismiss counterclaim (Docket Entry No 45) and an
opposition to Downs motion for entry of default and motion to deem counterclaim admitted or
in the alternative motion to set aside entry of default (Docket Entry No 46)
3 On March 9 2016 Hunt filed a motion to dismiss without prejudice On March 14 20l6 the Court entered an order
whereby the Court dismissed the matter without prejudice However at the time the Court entered the March 14 2016
order the Court was unaware that Downs had already filed responsive pleadings and substantive motions in the
Division of St Thomas and St John Thus Downs filed a notice 0t appeal to the Virgin Islands Supreme Court
Thereatter the Court entered a notice 01 request for remand on August 3| 2016 which was subsequently granted
In its August 3] 2016 notice of request tor remand the Court explained
Appellee Clark Hunt (hereinafter Hunt ) filed a Verified Complaint on December 2 2015 The
case was assigned to the Honorable Judge Douglas A Brady (hereinafter, Hon Judge Brady ) on December
1 2015 The Hon Judge Brady recused from the matter on December 8 20l5 On February 8 20l6 the
Downs filed their Answer and Counterelaim together with a Notice of Filing in Other Division (hereinafter
Notice ) in the Division of St Thomas and St John lnadvertently the pleadings were submitted to the Hon
Judge Brady 5 chambers ’ As a result this Court was not aware that the Downs had filed any responsive
pleadings
On March 9 2016 the Downs filed a Motion tor Entry 0t Delault and Motion to Deem Counterelaim
Admitted and a Notice In the Division of St Thomas and St John On the same day Hunt filed a Motion to
Dismiss Without Prejudice in the Division of St Croix
Rather than file the Notice in the St Croix Division. or torward a courtesy copy letting the
undersrgned know that they filed their substantive motions in another division the Notiee was filed together
with the responsive pleading and the motions in the St Thomas Division As a result this Court was not
aware that the Downs had filed their substantive motions and responses
When ruling on Hunt 5 Motion to Dismiss the only documents In the tile at that time WLl‘e Hunt 5
Verified Complaint and Hunt s Motion to Dismiss Without Prejudice Because this Court was unaware that
the Downs had filed responsive pleadings and substantive motions Hunt 5 Motion to Dismiss Without
Prejudice was granted and the case was closed On March 29, 2016 the Downs filed a Motion tor
Reconsideration and/or Motion tor Reliet trom Judgment The Court did not rule on the Motion for
Reconsideration and/or Motion for Reliet from Judgment because of inadvertence and clerical error The
Notice of Appeal was received on August 23, 20l6 Upon review oi the record, this Court intends to rule on
the Downs Motion for Reconsideration and/ or Motion tor Relief tram Judgment and/or schedule a hearing
on the matter In light of the foregoing the Court requests that in the interest 01 judicial efficiency this matter
be remanded to the Superior Court tor further action as permitted by Supreme Court Rule 5
’The Answer and Counterclaim is initialed in pencil DAB (Douglas A Brady) on the top right hand corner
The initials of the judge on the filings indicate where the documents were forwarded to
On February 14 2017 the Court entered an order whereby the Court granted Downs motion for reconsideration
and/or motion for relief from the final order vacated the March 14 20l 6 order and re opened this matter
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‘l[ 5 On August 22 2017 the parties submitted a stipulated joint discovery and scheduling plan
which the Court subsequently approved and entered on August 31 2017 (Docket Entry No 48)
On December 20 2017 the parties submitted a stipulated first amended joint discovery and
scheduling plan, which the Court subsequently approved and entered on January 18 2018 (Docket
Entry No 62) On August 3 2018 Hunt filed a motion to approve the parties stipulated second
amended joint discovery and scheduling plan which the Court subsequently approved and entered
on August 9 2018 (Docket Entry No 72)
(ll 6 On August 28 2018 Hunt filed a motion for protective order regarding notice of Hunt 8
deposition on August 29 2018 (Docket Entry No 73) On August 31 2018 Downs filed an
opposition to Hunt’s motion for protective order regarding notice of Hunt‘s deposition on August
29 2018 and cross motion to compel Hunt to provide dates for his deposition (Docket Entry No
74) On September 5 2018 the Court entered an order whereby the Court granted Downs cross
motion to compel Hunt to provide dates for his deposition and ordered Hunt to provide dates for
his deposition and that the depositions must be completed no later than October 5 2018 (Docket
Entry No 76) On September 19 2018 Hunt filed a motion for reconsideration of the Court 5
September 5 2018 order (Docket Entry No 78) On September 21 2018 Downs filed an
opposition to Hunt 5 motion for reconsideration (Docket Entry No 79)
‘1[ 7 On October 2 2018 Hunt filed a motion for permission to appear for deposition by
videoconference pursuant to Rule 30(b)(4) of the Virgin Islands Rules of Civil Procedure (Docket
Entry No 82) and Downs filed a motion to compel Hunt to appear in the Virgin Islands for his
deposition and to extend the October 5 2018 deposition deadline (Docket Entry No 84) On
October 9 2018 Downs filed an opposition to Hunt 3 motion for permission to appear for
deposition by videoconference pursuant to Rule 30(b)(4) of the Virgin Islands Rules of Civil
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Procedure (Docket Entry No 86) and on October 12 2018 Hunt filed a reply thereto (Docket
Entry No 88) and an opposition to Downs motion to compel Hunt to appear in the Virgin Islands
for his deposition and cross motion for protective order quashing the October 23 2018 notice of
Hunt 8 deposition (Docket Entry No 87) On October 17 2018 Downs filed a reply to Hunt 5
opposition to Downs’ motion to compel Hunt to appear in the Virgin Islands for his deposition and
an opposition to Hunt 5 cross motion for protective order quashing the October 23 2018 notice of
Hunt 5 deposition (Docket Entry No 89) On October 22 2018 Hunt filed a reply to Downs
opposition to Hunt 5 cross motion for protective order quashing the October 23 2018 notice of
Hunt 5 deposition (Docket Entry No 90)
HI 8 On November 2 2018 Downs filed a motion for order to show cause why sanctions should
not be entered against Hunt for failure to attend his deposition (Docket Entry No 92) on
November 16 Hunt filed an opposition thereto (Docket Entry No 107) and on December 10
2018 Downs filed a reply thereto (Docket Entry No I 18)
(ll 9 On November 7, 2018, Hunt filed a motion to approve a third amended discovery and
scheduling plan (Docket Entry No 94) and on November 14 2018 Downs filed an opposition
thereto (Docket Entry No 103) On November 16 2018 the Court entered an order whereby the
Court approved Hunt 5 third amended discovery and scheduling plan (Docket Entry No 106) On
November 21 2018 Hunt filed a reply to Downs opposition to Hunt 5 motion to approve a third
amended discovery and scheduling plan (Docket Entry No 1 1 1) 4 On December 13, 2018 Downs
filed a motion for reconsideration of the Court 3 November 16, 2018 order approving Hunt’s third
Lhasa: on Hunt 5 reply it appears that Hunt was not in receipt of the Court 5 November 16 2018 order when he filed
Is rep y
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amended discovery and scheduling plan (Docket Entry No 120) on December 21 2018 Hunt
filed an opposition thereto (Docket Entry No 122)
(ll 10 On November 16 2018 Downs filed a motion to quash subpoena to wit Hunt’s
subpoena to Merchants Commercial Bank Inc (Docket Entry No 105) on November 30 2018
Hunt filed an opposition thereto (Docket Entry No 1 l6) and on December 14 2018 Downs filed
a reply thereto (Docket Entry No 121) On December 27 2018 the Court entered an order
whereby the Court denied Downs motion (Docket Entry No 123)
(ll 11 On November 26 2018 Downs filed a motion to quash subpoena to wit Hunt’s
subpoena to First Liberty Mortgage L L C Coldwell Banker Chris Hanley and Lorine Williams
(Docket Entry No 112) On December 10 2018 Downs filed a notice of withdrawal of their
November 26 2018 motion (Docket Entry No 118) On January 10 2019 the Court entered an
order whereby the Court denied Downs motion (Docket Entry No 128) 5
‘ll 12 On December 13 2018 Downs filed a motion to quash subpoena to wit Hunt 5 subpoena
to the U S Virgin Islands Economic Development Authority (Docket Entry No 105) On
November 28, 2018, the U S Virgin Islands Economic Development Authority filed a notice of
response indicating that it has responded to Hunt 5 subpoena (Docket Entry No 115) On January
9 2019 Hunt filed an opposition to Downs December 13 2018 motion (Docket Entry No 126)
‘ll 13 On February 5 2019 Hunt filed a motion to approve a fourth amended discovery and
scheduling plan (Docket Entry No 130) on February 21 2019 Downs filed an opposition thereto
(Docket Entry No 132) and on March 12 2019 Hunt filed a reply thereto (Docket Entry No
5 Prior to the Court 5 implementation of the electronic filing system Downs filed multiple filings in this matter in the
Division of St Thomas and St John with a Notice 01 Filing in Other Division, which would sometimes cause delay
in getting these filings before the Court On December 10 2018, Downs filed their notice of withdrawal of their
November 26 2018 motion in the Division of St Thomas and St John with a “Notice of Filing in Other Division
and thus the Court may not have received Downs‘ notice when the Court entered its January 10 2019 order
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133) On August 7, 2019, Hunt filed a second motion to approve a fourth amended discovery and
scheduling plan (Docket Entry No 135) on August 21 2019 Downs filed an opposition thereto
(Docket Entry No 137) and on September 10 2019 Hunt filed a reply thereto (Docket Entry No
138)
‘l[ 14 On August 15 2019 Hunt filed a motion to compel mediation (Docket Entry No 136) On
October 29 2019 Hunt filed a notice advising the Court that the Hunt and Downs plan on complete
mediation on or before November 30 2019 (Docket Entry No 139) On November 21 2019 the
parties filed a mediation report indicating that Hunt and Downs appeared for mediation but [t]he
parties have reached a total impasse all issues require Court action (Docket Entry No 140)
(ll 15 On December 6 2019 Hunt filed a notice advising that Court that the parties have agreed
for Coldwell Banker to turn over the Earnest Money Deposit to be deposited with the Court 5
registry (Docket Entry No 141) The deposit was subsequently rejected by the Court because the
funds were not certified
‘|[ 16 On December 20, 2019, Downs filed a motion for sanctions against Hunt pursuant to Rule
90(1) of the Virgin Islands Rules of Civil Procedure for Hunt 3 lack of good faith and failure to
attend the court ordered mediation in this matter (Docket Entry No 142), on January 16 2020
Hunt filed an opposition thereto or in the alternative, motion for leave to file further response under
seal (Docket Entry No 144) on January 29 2020 Downs filed a reply thereto (Docket Entry No
146) and on January 30 2020 Downs filed a supplement to their reply (Docket Entry No 149)
On January 16 2020 Hunt filed a motion to strike Downs December 20 2019 motion (Docket
Entry No 143) on January 29 2020 Down filed an opposition thereto (Docket Entry No 147)
and on February 19 2020 Hunt filed a reply thereto (Docket Entry No 150)
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‘l[ 17 On April 9 2021 Hunt filed another notice advising that Court that the parties have agreed
for Coldwell Banker to turn over the Earnest Money Deposit to be deposited with the Court 3
registry (Docket Entry No 151) On April 30 2021 the Court entered an order whereby the
Earnest Money Deposit was deposited in the non interest bearing Court’s registry (Docket Entry
No 152)
DISCUSSION
‘|[ 18 Court will address the outstanding issues and motions in turn
1 Hunt’s Verified Complaint (Docket Entry No 1)
‘II 19 As noted above, while Hunt 5 verified complaint stated that a September 18 2015 purchase
agreement was attached as Exhibit 1 no such exhibit was attached However in his motion to
dismiss the counterclaim (Docket Entry No 45) Hunt stated that [t]his case arises out of a July
22 2015 Residential Purchase and Sale Contract (attached to the [Hunt 3] verified complaint as
Exhibit 1 and attached to [Downs ] answer and counterclaim as Exhibit A) (Docket Entry No 45,
pp 1 2 ) While it appears that Hunt disputed the effective date of the purchase agreement to wit
Hunt stated the effective date as September 15 2015 in his verified complaint (Docket Entry No
l) and July 22 2015 in his motion to dismiss the counterclaim (Docket Entry No 45) and Downs
stated the effective date as July 28 2015 in their answer and counterclaim (Docket Entry No 16)
Hunt did not dispute and in fact acknowledged and confirmed that the purchase agreement
titled RESIDENTIAL PURCHASE AND SALE CONTRACT attached to Downs answer and
counterclaim as Exhibit A is the same purchase agreement he referenced and attached in his
verified complaint6 Thus, since Hunt 3 verified complaint explicitly indicated his intention to
attach the purchase agreement as an exhibit and Hunt explicitly acknowledged and confirmed that
6 See supra footnote 2
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the purchase agreement titled RESIDENTIAL PURCHASE AND SALE CONTRACT
attached to Downs answer and counterclaim as Exhibit A is the purchase agreement he intended
to attach as Exhibit 1 to his verified complaint, in the interest of judicial efficiency, the Court will
treat the purchase agreement attached to Downs answer and counterclaim as Exhibit A as the
same purchase agreement Hunt referenced and intended to attach to his verified complaint and
deem a copy attached to Hunt 5 verified complaint as Exhibit I As such the Court will order that
the purchase agreement titled RESIDENTIAL PURCHASE AND SALE CONTRACT
attached to Downs answer and counterclaim as Exhibit A will be treated as the purchase
agreement Hunt referenced and intended to attach to his verified complaint as Exhibit l and a copy
will be deemed attached to Hunt 5 verified complaint as Exhibit 1 The purchase agreement titled
RESIDENTIAL PURCHASE AND SALE CONTRACT attached to Downs answer and
counterclaim as Exhibit A and to Hunt 5 verified complaint as Exhibit 1 will hereinafter be referred
to as the Purchase Agreement
(II 20 Additionally while Hunt s verified complaint named Coldwell Banker as a defendant in
this matter to date, Coldwell Banker has not appeared or responded to Hunt 5 verified complaint
As such, the Court will order Hunt to make an appropriate filing in regard to the defendant who
has failed to appear or answer
2 Downs’ Motion for Entry of Default and Motion to Deem Counterclaim Admitted
(Docket Entry No 18)] Hunt’s Opposition to Downs’ Motion for Entry of Default and
Motion to Deem Counterclaim Admitted, or in the Alternative, Motion to Set Aside
Entry of Default (Docket Entry No 46)
(ll 21 In their motion for entry of default and motion to deem counterclaim admitted Downs
argued that (i) default should be entered against Hunt because Hunt failed to timely answer or
otherwise respond to their counterclaim as required under Rule 12(a)( l)(B) of the Federal Rules
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of Civil Procedure7 and (ii) their counterclaim should be deemed admitted pursuant to Rule 8(b)(6)
0f the Federal Rules of Civil Procedure since Hunt failed to answer or otherwise respond
‘1[ 22 As noted above there were some minor procedural confusions8 that resulted in this matter
being closed and then re opened To date no default has been entered against Hunt in this matter
On August 4, 2017 Hunt filed a motion to dismiss the counterclaim, so Hunt has ‘otherwise
defended’ against the counterclaim 9 As such, the Court will deny Downs’ motion for entry of
default and motion to deem counterclaim admitted
3 Hunt’s Motion to Dismiss Counterclaim (Docket Entry No 45)
(ll 23 In his motion Hunt argued that the counterclaim should be dismissed pursuant to Rule
l2(b)(6) of the Virgin Islands Rules of Civil Procedure for failure to state a claim upon which
relief can be granted Hunt made the following assertions in support of his argument (i) the
effective date of the Purchase Agreement was July 22 2015 (Docket Entry No 45 p 1) (ii) the
Purchase Agreement contained a Third Party Financing Rider (hereinafter TPF Rider ) (Id at
pp 3 4) (iii) Downs failed to comply with the terms of the TPF Rider and thus had no right to
terminate the Purchase Agreement as stated therein (1d at p 5), (iv) Downs never deposited the
Prior to the promulgation of the Virgin Islands Rules of Civil Procedure on March 3] 20I7 the attorneys and the
Superior Court of the Virgin Islands routinely applied the Federal Rules of Civil Procedure through Rule 7 oi the
Superior Court Rules
3 See supra footnote 3
9 The Court will note that this matter was re opened on February 14 20I7 and Hunt did not tile his motion to dismiss
the counterclaim until August 4 20!? and therefore his motion could be considered untimely Nevertheless the
Court will deny Downs motion for entry of default and motion to deem counterclaim admitted because this Court has
a policy oi lavoring dispositions of cases on their merits rather than procedural detect See Toussamt v Stewart 67
V I 931 947 (2017) ( In keeping with the intent and spirit 01 the rules ofthe Superior Court governing pleadings and
amendments decisions on the merits arc lavored and dismissal of claims on the basis 01 such mere technicalities’
are to be avoided ) Baum Popular de PR 1 Paralmut 2017 VI LEXIS l3] at *3 (Super Ct Aug 15 2017)
( [Tlhis Court has a policy of favoring dispositions 01 cases on their merits ) Great Ba) Condo Owners Ass n 1
Passarella 2014 V I LEXIS [25 at 6 (Super Ct Dec 16 2014) ( Because Virgin Islands
judicial policy favors decisions on the merits of litigation, trial courts must be mindful that judgments by default are
not favored ) Cart) v Mason 2010Vl LEXIS 34 I3 (VI Super Ct May 6 2010)( the law favors dispositions
of cases on their merits rather than on procedural technicalities )
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additional One Hundred Thousand Dollars ($ 100 000 00) on or before September 15 2015 or the
receipt of a loan agreement as required under the Purchase Agreement (Id at p 4), (v) the sale
and purchase of the Property as set forth in the Purchase Agreement never closed (Id ) (vi) [t]here
is no allegation that any default or failure to perform by the Seller Hunt prevented the transaction
from closing (Id) (vii) Downs admit that they are the parties who terminated the [Purchase
Agreement] and they claim that the termination was made under the [TPF Rider] (1d ) (viii)
[s]ince the Downs have not alleged that Hunt 5 default or failure to perform prevented the
purchase transaction from closing the only way the Downs could terminate the Contract is through
paragraph 2 of the [TPR Rider] [b]ut by their own admission the Downs did not comply with the
terms of that paragraph (Id atp 5)
‘ll 24 Downs did not file an opposition in response
a Standard of Renew
‘II 25 When Downs filed their counterclaim in 2016, the Virgin Islands couns ‘ reviewed the
sufficiency of complaints under the heightened ‘plausibility standard adopted by the Supreme
Court of the United States Arno v Hess Corp 71 VI 463 492 93 (VI Super Ct Oct 17
2019) However on March 31 2017 the Virgin Islands Supreme Court promulgated the Virgin
Islands Rules of Civil Procedure and ‘restore[d] the notice pleading regime that had previously
been in effect Id at 493 (quoting Mills Williams v Mapp
67 VI 574 585 (VI 2017)
Although the Supreme Court of the Virgin Islands has yet to determine what exactly is required
to survive a Rule l2(b)(6) motion to dismiss Id (brackets, ellipsis and citation omitted) Virgin
Islands courts have returned to the prior ‘no set of facts standard in the interim ’ See Id (citations
omitted) Accordingly even though Downs filed their counterclaim when the prior pleading
standard was in effect Clark 5 motion to dismiss which was filed after the Virgin Islands Rules
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of Civil Procedure was promulgated and remains pending must be decided under the current
pleading standard pursuant to the current rules See Arno, 71 V I at 494 (‘ Therefore, although the
complaints were filed before the 2017 changes, the motions to dismiss which remained pending
must be decided under the current rules ) see also Govt of the VI v The ServzceMaster Co
LLC 72 V I l 14 131 (V I Super Ct 2019) ( Accordingly even though the Government filed its
complaint when the prior pleading standard was in effect the Defendants' motion to dismiss must
be decided under the current pleading standard ”)
‘ll 26 Rule l2(b)(6) of the Virgin Islands Rules of Civil Procedure (hereinafter Rule l2(b)(6) )
allows a party to assert the defense of ‘failure to state a claim upon which relief can be granted
by motion and move for dismissal ‘0 V I R CW P 12(b)(6) The Rule l2(b)(6) motion tests the
sufficiency of the complaint The Virgin Islands is a notice pleading jurisdiction and Rule
8(a)(2) the Virgin Islands Rules of Civil Procedure requires a pleading to contain a short and plain
statement of the claim showing that the pleader is entitled to relief V I R CIV P 8(a)(2) As a
notice pleading jurisdiction, “[a] complaint is sufficient so long as it adequately alleges facts that
put an accused party on notice of claims brought against it Oxley v Sugar Bay Club & Resort
Corp 2108 V I LEXIS 81 *3 (V 1 Super Ct May 14 2018) (quoting Mills Wzlhams 67 V I at
585, accordAmo, 71 V I at 501 (‘ Plead the who what where when and how sufficient
information to put a defendant on notice of the conduct and actions the plaintiff complains of ’ ’
(brackets and citation omitted» “When ruling on a motion to dismiss for failure to state a claim,
the court does not address the merits ’ Oliver v Termmtx Int] C0 , 73 V I 210, 214 (V I Super
'0 Since a copy of the Purchase Agreement was attached to Downs counterclaim the Purchase Agreement is part of
the pleadings and may be considered without conversion of Hunt 5 motion to dismiss into a motion for summary
judgment VI R CW P 12(b)(d)( If on a motion under Rule 12(b)(6) or 12(c) matters outside the pleadings are
presented to and not excluded by the court the motion must be treated as one for summaryjudgment under Rule 56 ")
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Ct April 26 2020) accord Arno 7! V I at 494 Instead courts assume all reasonable factual
allegations in the complaint as true and draw all fair inferences from such allegations Arno, 71
V I at 494 (quoting In re Kelvm Manbodh Asbestos LIItg Sezers 47 V I 375 380 (V I Super Ct
March 3, 2006)) However, [a]llegations will not be reasonable nor will inferences in favor of
the plaintiff be fair where they contradict facts either contained in the public record or judicially
noticed by the Court ’ In re Kelvm Manbodh Asbestos Ling Series, 47 V I at 380
b Discussion
‘][ 27 Here Hunt argued” that Downs counterclaim should be dismissed because Downs failed
to sufficiently plead a breach of contract claim '7 In Phillip v Marsh Monsanto the Virgin Islands
Supreme Court established that a breach of contract claim requires the plaintiff to demonstrate (l)
" Although Hunt raised arguments addressing the merits 0t Downs counterclaim the Court will not address the merits
and only address the sufficiency of Downs counterclaim Oliver 73 V I at 2 l4( When ruling on a motion to dismiss
for failure to state. a claim the court does not address the merits )
p In their counterclaim Downs alleged
1 [Downs] entered into a contract 101' purchase oi [the Property] from [Hunt] with the effective date of July
27 2015 (the Contract I [Exhibit A]
2 In atcordance with the Contract the Downs paid a Fitty Thousand Dollar ($50 000 00) earnest money
deposit (the ‘Earnest Money Deposit )
3 The Contract contained a Third Party Financing Rider( TPF Rider )
4 The TPF Rider allowed Downs to terminate the Contract it third party financing was not approved
5 Downs applied for third party financing on July 28 20|S
6 Third party financing was denied because appraisal was well below purchase price
7 Downs timely notified Hunt through his agent(s) that financing was not approved
8 Downs provided Hunt through his agent written notice of the denial 0t third party financing the same day
it was received by Downs
9 After said notification the parties attempted to reach an agreement as to the reduction of the purchase rice
such that the third party financing would be approved No agreement in this regard was ever reached
l0 Once received, Downs provided written denial of their loan application (hereinafter the Denial Letter”)
to [Hunt] or his agentts) as required by the TPF Rider [Exhibit B}
I l The Downs complied with the TPF Rider and properly terminated the Contract
l2 The Downs are entitled to refund 0t their Earnest Money Deposit per the Contract
13 [Hunt] breached the Contract by refusing to agree to the release ot the Earnest Money Deposit
l4 [Hunt] has caused the Downs damages in an amount to be shown at trial
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an agreement, (2) a duty created by the agreement, (3) a breach of that duty and (4) damages 66
V I 612 621 (V I 2017)
‘][ 28 As to the first element the Court finds that Downs has sufficiently pled the existence of an
agreement between Hunt and Downs to wit, the Purchase Agreement As to the second element,
the Court finds that Downs has not sufficiently pled that the Purchase Agreement created a duty
for Hunt to refund to Downs the Earnest Money Deposit While Downs alleged that they complied
with the TPF Rider and properly terminated the Purchase Agreement Downs failed to plead any
facts to demonstrate that Hunt owed such a duty under the Purchase Agreement a duty to refund
to Downs the Earnest Money Deposit simply because Downs allegedly complied with the TPF
Rider and allegedly properly terminated the Purchase Agreement under the TPF Rider At this
juncture the Court 5 inquiry needs not delve into the remaining elements of the breach of contract
claim since Downs has failed to sufficiently plead the duty that Hunt allegedly breached
‘I[ 29 Accordingly the Court finds that even liberally construing the pleading in the light most
favorable to Downs Downs have not presented a short and plain statement of the claim showing
that the pleader is entitled to relief from Hunt nor does the pleading adequately allege facts that
put an accused party on notice of claims brought against it Mills Williams, 67 V I at 585 (citation
omitted) Accordingly, the Court will grant Hunt 5 motion to dismiss counterclaim and dismiss
Downs counterclaim without prejudice
4 Hunt’s Motion for Protective Order Regarding Notice of Hunt’s Deposition on
August 29 2018 (Docket Entry No 73)
‘ll 30 On September 5 2018 the Court entered an order whereby the Court granted Downs
cross motion to compel Hunt to provide dates for his deposition As such Hunt 5 motion for
protective order regarding notice of Hunt 5 deposition on August 29 2018 will be denied as moot
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Memorandum Opinion and Order 2021 VI SUPER 571\A
Page 16 of 19
S Hunt’s Motion for Reconsideration of the Court’s September 5, 2018 Order (Docket
Entry No 78)/ Hunt’s Motion for Permission to Appear for Deposition by
Videoconference Pursuant Rule 30(b)(4) of the Virgin Islands Rules of Civil
Procedure (Docket Entry No 82)/ Downs’ Motion to Compel Hunt to Appear in the
Virgin Islands for His Deposition and to Extend the October 5, 2018 Deposition
Deadline (Docket Entry No 84)/ Hunt’s Cross Motion for Protective Order Quashing
the October 23, 2018 Notice of Hunt’s Deposition (Docket Entry No 87)/ Downs’
Motion for Order to Show Cause Why Sanctions Should Not be Entered Against Hunt
for Failure to Attend His Deposition (Docket Entry No 92)
‘I[ 31 At this time it is unclear whether Hunt 5 deposition has occurred As such the Court will
order the parties to file a joint notice advising the Court (1) whether Hunt 5 deposition has occurred
and (ii) whether any of these motions (Docket Entry Nos 78 84 87 and 92) are moot The Court
will reserve ruling on these motions pending receipt of the parties joint notice
6 Downs’ Motion for Reconsideration of the Court’s November 16, 2018 Order
Approving Hunt’s Third Amended Discovery and Scheduling Plan (Docket Entry No
120)/ Hunt’s Motion to Approve a Fourth Amended Discovery and Scheduling Plan
(Docket Entry No 130)/ Hunt’s Second Motion to Approve a Fourth Amended
Discovery and Scheduling Plan (Docket Entry No 135)
(l] 32 Here the Court finds that Hunt implicitly withdrew his prior motion to approve a founh
amended discovery and scheduling plan when he filed a second motion to approve a fourth
amended discovery and scheduling plan See Magras v National Industrial Sermes et a1 , 2021
V U Super 501.] ‘fl 8 see alsoe In re Refinery Dust Claims 72 V I 256 290 (Super Ct Dec 13
2019) (citing Mitchell v Gen Eng g Corp 67 V I 271 278 (Super Ct Feb 23 2017) ( a motion
can also be deemed withdrawn based on certain actions or inactions of the party who filed the
motion ) As such, Hunt 5 motion to approve a fourth amended discovery and scheduling plan will
be deemed withdrawn
(ll 33 At this time it is unclear whether the parties have completed discovery in this matter which
has been pending since 2015 As such the Court will order the parties to file a joint notice advising
the Court (i) whether the parties have completed discovery in this matter (ii) if discovery has not
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Memorandum Opinion and Order 2021 v1 SUPER 5?“
Page 17 of 19
been completed then what remains to be done in discovery, (iii) whether any of these motions
(Docket Entry Nos 120 and 135) are moot The Court will reserve ruling on these motions pending
receipt of the parties joint notice
7 Downs’ Motion to Quash Subpoena to wit, Hunt’s Subpoena to the U S Virgin
Islands Economic DeveIOpment Authority (Docket Entry No 105)
‘l[ 34 As noted above, on November 28 2018 the U S Virgin Islands Economic Development
Authority filed a notice of response indicating that it has responded to Hunt 5 subpoena As such
Downs’ Motion to Quash Subpoena to wit Hunt 3 Subpoena to the U S Virgin Islands
Economic Development Authority will be denied as moot
8 Hunt’s Motion to Compel Mediation (Docket Entry No 136)
11 35 As noted above the parties completed mediation in this matter and filed a mediation report
on November 21 2019 As such Hunt 3 motion to compel mediation will be denied as moot
9 Downs’ Motion for Sanctions Against Hunt Pursuant to Rule 90(1) of the Virgin
Islands Rules of Civil Procedure for Hunt’s “Lack of Good Faith and Failure to
Attend the Court Ordered Mediation in this Matter” (Docket Entry No 142)/ Hunt’s
Opposition Thereto or in the Alternative, Motion for Leave to File Further Response
Under Seal (Docket Entry No 144)/ Hunt’s Motion to Strike Downs’ Motion for
Sanctions (Docket Entry No 143)
<[[ 36 The Court will issue a separate ruling as to these motions (Docket Entry No 142 143 and
144)
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that the purchase agreement titled RESIDENTIAL PURCHASE AND
SALE CONTRACT’ attached to Downs answer and counterclaim as Exhibit A shall be treated
as the purchase agreement Hunt referenced and intended to attach to his verified complaint as
Hum v Dorms era!
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Memorandum Opinion and Order 2021 VI SUPER m
Page l8 of 19
Exhibit 1 and a copy shall be deemed attached to Hunt 5 verified complaint as Exhibit 1 It is
further
ORDERED that Hunt shall make an appropriate filing in regard to the defendant who has
failed to appear or answer It is further
ORDERED that Downs motion for entry of default and motion to deem counterclaim
admitted (Docket Entry No 18) is DENIED It is further
ORDERED that Hunt 5 motion to dismiss counterclaim (Docket Entry No 45) is
GRANTED and Downs counterclaim is DISMISSED WITHOUT PREJUDICE It is further
ORDERED that Hunt’s motion for protective order regarding notice of Hunt 3 deposition
on August 29 2018 (Docket Entry No 73) is DENIED AS MOOT It is further
ORDERED that Hunt 5 motion to approve a fourth amended discovery and scheduling
plan (Docket Entry No 130) is DEEMED WITHDRAWN It is further
ORDERED that within thirty (30) days from the date of entry of this Memorandum
Opinion and Order the parties shall file a joint notice advising the Court of the following
(i) whether Hunt 3 deposition has occurred
(ii) whether the parties have completed discovery in this matter
(iii) if discovery has not been completed then what remains to be done in discovery;
(iv) 3:1:ther any of these motions (Docket Entry Nos 78 84 87 92 [20 and 135) are
moot
The Court will reserve ruling on these motions (Docket Entry Nos 78 84 87 92 120 and 135)
pending receipt of the parties joint notice It is further
ORDERED that Downs Motion to Quash Subpoena to wit Hunt 8 Subpoena t0 the U 8
Virgin Islands Economic Development Authority is DENIED AS MOOT And it is further
ORDERED that Hunt 5 motion to compel mediation is DENIED AS MOOT
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Memorandum Opinion and Order 2021 VI SUPER 63m
Page |90f 19 fit\
DONE and so ORDERED this 01 day of May 2021
ATTEST MM
Tamara Charles HAROLD W L WILLOCKS
Clerk of the Count Presiding Judge of the Superior Court
33$ W
curt Clank WI
Dated &[E [(20 é Z