IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
DAISY ROSA 1
Plaintiff, 3
v E CIVIL CASE NO SX 10 CV 262
t
KENNETH ANDREWS LEANDER ACTION FOR DAMAGES
FRANCIS and COMPLETE BUSINESS
SYSTEMS INC (JURY)
1;){a_fgzfltwda.t“1§_s__J 2020 VI Super 100U
MEMORANDUM OPINION GRANTING
DEFENDANT ANDREWS’ MOTION FOR SUMMARY JUDGMENT
1] 1 Defendant Kenneth Andrews filed his Motion to Dismiss Plaintiff’s First Amended
Complaint pursuant to Rule 12(0) of the Virgin Islands Rules of Civil Procedure on April 26,
2017, opposed by Plaintiff's Opposition, filed May 16, 2017 ' Because Andrews Motion attached
documents that presented matters outside the pleadings, by Order entered June 7 2017, in
accordance with V I R Civ P 12(d), the Court construed and converted the Motion to a motion
for summary judgment pursuant to Rule 56
1] 2 The Motion came on for hearing February 8, 2018 By Order entered February 19, 2018
each party was presented the opportunity to submit supplemental briefing on the Motion Neither
party filed any supplemental brief Defendant Andrews asserts that Plaintiff’s case should be
dismissed because she filed her original Complaint outside the applicable two year statute of
limitations for fraud Because the Court finds that Plaintiff’s claim against Defendant Andrews is
time barred under Title 5 Section 3 l (5)(A) of the Virgin Islands Code, the Motion will be granted
by Order entered herewith and Plaintiff‘s First Amended Complaint against Andrews will be
dismissed with prejudice
' Defendant Andrews’ Motion fails to state the rule upon which relief is sought Because a motion seeking
relief from a pleading for failure to state a claim upon which relief can be granted under V I R Civ P
12(b)(6) must be made before the movant files his reSponsive pleading, and Andrews filed his pro se
Answer to First Amended Complaint on June 8, 2012, the Motion is accepted as seeking judgment on the
pleadings pursuantton R Civ P 12(0)
Dazsy Rosa v Kenneth Andrews et a1 SX 10 CV 262
Memorandum Opinion Granting Defendant Andrews’ Motion for Summary Judgment
Page 2 of 5 2020 VI Super 1001)
BACKGROUND
1] 3 PlaintiffDaisy Rosa filed her Complaint June 9, 2010, and subsequently her First Amended
Complaint deemed filed May 18, 2012, asserting that Defendant Andrews, with the assistance of
Defendants Leander Francis and Complete Business Systems, Inc , had fraudulently signed
Plaintiff’s name and falsely inserted an expiration date to a lease for property that Plaintiff rented
from Andrews
11 4 In his pro se Answer to the original Complaint, filed June 30, 2010, Defendant Andrews
affinnatively asserted that Plaintiff‘s claims are barred by the statute of limitations, a defense
Andrews reiterated in his June 8, 2012 pro se Answer to First Amended Complaint Defendant
Andrews filed his Motion, attaching as an exhibit a hand written document, dated July 20, 2007,
signed by Daisy Rosa, that details Defendant Andrews' alleged fraudulent behavior and threatens
legal action
LEGAL STANDARD
1! 5 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 alt the material that is pertinent to the motion See V I R Civ P 12(d),
Hendrzcks v Pmnacle Serwces LLC 72 VI 630 634 (VI Super 2020)
116 In evaluating a motion for summary judgment, the Court must determine whether there
exists a genuine dispute of maternal fact, one that would impact the outcome of the case under
applicable law Machado v Yacht Haven U S V! LLC 61 V1 373 379 80 (V I 2014) (quoting
thlzams v United Corp 50 V1 191 194 (V I 2008)) Summary judgment is a drastic remedy
[and] should be granted only when the pleadings, the discovery and disclosure materials on file,
and any affidavits show there is no genuine issue as to any material fact,” and that judgment IS
appropriate as a matter of law Id at 379 80 Such a dispute is genuine if the evidence is such that
a reasonable tner of fact could find in favor of the nonmoving pany on that factual issue 1d at
391 92
11 7 Reviewing Defendant’s Motion, the Court does not weigh the credibility of the evidence
offered Instead, all inferences from the evidence are drawn in favor of the nonmoving party, and
any conflicting allegations, if properly supported by the record, are resolved in favor of the
Daisy Rosa v Kenneth Andrews et 01, SK 10 CV 262
Memorandum Opinion Granting Defendant Andrews Motion for Summary Judgment
Page 3 of 5
2020 VI Super 100U
nonmovant See Perez v Ritz Carlton (V 1) Inc ,
59 VI 522, 527 (V I 2013) (citing thIzams,
50 V I at 194 95) The moving party bears the burden ofdemonstrating the absence of any genuine
issue of material fact Martin v Martin,
54 VI 379, 389 (V I 2010) Only if the moving party
discharges this initial obligation does the burden shift to the nonmoving party to introduce some
evidence showing the existence of a genuine issue of material fact See Perez, 59 V I at 527 28
At this point, “the nonmoving party may not rest on its allegations alone, but must present actual
evidence, amounting to more than a scintilla, showing a genuine issue for trial ” Id at 527
DISCUSSION
1] 8 Defendant Andrews asserts that Plamtift‘s claim is barred by the two year statute of
limitations pursuant to S V I C § 31(5)(A) Plaintiffcontends that Defendant Andrews has waived
this defense by failing to raise the issue until seven years into the litigation Plaintiffcites thtecap
Investment Corp v Putnam Lumber & Export Company 2013 WL 1155351 (D V I 2013) in
support of her contention, and insists that even if an affirmative defense is properly preserved in a
party’s responsive pleading, the party may nonetheless waive the defense In Whitecap Investment,
referring to the assertion of the affirmative defense of lack of personal jurisdiction, the court
determined that the defendant’s extensive engagement in discovery and “litigation conduct” on the
men‘ts constituted a waiver of the defense Id at *3
“.1 9 Plaintiff claims that the delay in Defendant Andrews filing of the Motion has prejudiced
her, as the parties have exchanged written discovery and Plaintiff was required to move to compel
supplemental responses Where a defendant deiays invoking an affirmative defense and prejudice
results, the defense may be deemed waived But delay alone does not constitute sufficient prejudice
to support waiver, even where some discovery has occurred See Allen v Hovensa LLC, 59 V I
430 437 38 (VI 2013)
1! 10 Although, the statute of limitations is an affirmative defense that is “presumptively hon
jurisdictional, and therefore may be waived if not timely asserted by a defendant or equitably
modified by a court, ’2 the Court finds that Defendant Andrews did not waive the defense
2 szbs v Gov t ofthe Virgm Islands 2015 VI LEXIS 120 at *6 (V1 Super 2015) (citing Brady v
Cmtron
55 VI 802 817 n 15 (VI 2011)
Daisy Rosa v Kenneth Andrews et a1 , SX 10 CV 262
Memorandum Opinion Granting Defendant Andrews’ Motion for Summary Judgment
Page 4 of 5
2020 VI Super 100U
1] 11 Plaintiff was on notice of the issue three weeks after she initiated the action on June 9,
2010, as Andrews promptiy asserted that Plaintiff’s claim was time barred in his pro se Answer
filed June 30, 2010 He reiterated the defense on June 8, 2012, in his timely pro se Answer to
Plaintiff‘s First Amended Complaint Defendant was unrepresented by counsel for the first five
years of the litigation Counsel entered an appearance on behalf of Andrews on January 21, 2016,
and his present counsel substituted into the case pursuant to Order entered August 23, 2016 The
present Motion followed less than a year later
1] 12 Moreover, Defendant Andrews Motion is his first and only attempt beyond the
pleadings to litigate the merits of the case The Court finds that Andrews’ limited exchange of
written discovery as a self represented litigant does not constitute the type of extensive litigation
conduct giving rise to a waiver ofthe affirmative defense he originally pled Funher, the exchange
of discovery between the parties, including Plaintiff‘s seeking an order to compel supplemental
responses from Andrews, does not estabiish that Plaintiff suffered sufficient prejudice to deem that
Andrews has waived the statute of limitations defense of which Plaintiff has been on notice from
the outset of the case
fl )3 Plaintiff‘s letter, dated July 20 2007, presented as an exhibit to Defendant’s Motion,
indicates that she became aware of Defendant Andrews’ purportedly fraudulent actions more than
three years before she filed her claim Specifically Plaintiff stated (without edits)
I Daisy Rosa explain in this letter [e]very thing from the beginning that I rent this
apartment from since April 29, 2007 The problem I am facing with this Land
Lord [Andrews] is that from May 14 2007 This man make my Lease and he forgery
my name in the Lease He did not toid me what he did with my Lease and he took
the Lease to notarize behind my back and he put the Lease only for 5 months He
did not told me anything what he was doing until I myself find out what was going
on so I confront him about what he did I told him if he do not make a deal with me
I am going to take action in Court agains[t] him and the person how notarize the
Lease so that is why he leave me in the apartment up to know But know he want
me out for no reason just because he want to fix up the apartment know why know?3
1] 14 By Plaintiff’s words “I myself find out what was going on ’ at some date before July 20,
2007 She claims to have found out herself that her landlord Defendant Andrews, had acted
fraudulently by forging her signature on a lease that was limited in duration to five months,
3 Defendant’s Motion, Exhibit 1
Daisy Rosa v Kenneth Andrews et a1 , 8X 10 CV 262
Memorandum Opinion Granting Defendant Andrews’ Motion for Summary Judgment
Page 5 of 5 2020 VI Super 1000
contrary to their agreement With that information, Plaintiff advised Andrews on or before July
20, 2007, that he would have to “make a deal” with her, failing which she would “take action in
Court ” Despite Plaintiff‘s knowledge of the allegedly fraudulent actions of Andrews and his
apparent failure to “make a deal” with Plaintiff, she waited more than three years, until June 9,
2010, to initiate this action against him
1| [5 At the latest, the statute of limitations on Plaintiff’s claim began to run on July 20 2007
the date of her letter Pursuant to 5 V I C § 31(5)(A), civil actions shall only be commenced within
two years after the cause of action “for any injury to the person or fights of another not arising on
contract ” Plaintiff filed her original Complaint June 9, 2010, more than one year beyond the latest
date that the statute of limitations could have expired
1 16 For the reasons stated above, by separate Order entered herewith, Defendant Andrews’
Motion for Summary Judgment will be granted and Plaintiff‘s First Amended Complaint against
Defendant Andrews will be dismissed with prejudice
DATED December 7 2020
DOUGLAS A BRADY JU GE
ATTEST
TAMARA CHARLES
Clerk of the Court ,_..
%
By
Clerk .4
/z/7 21/ Distribution List
Lee I Rohn Esq
Martial A Webster Sr , Esq
Gertrude LeCointe, Esq
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
DAISY ROSA
Plaintiff,
v CIVIL CASE NO SX 10 CV 262
KENNETH ANDREWS LEANDER ACTION FOR DAMAGES
FRANCIS and COMPLETE BUSINESS
SYSTEMS INC (JURY)
Defendants
ORDER
In accordance with the Memorandum Opinion entered herewith, it is hereby
ORDERED that Defendant Andrews Motion for Summary Judgment is GRANTED, and
it is further
ORDERED that Plaintiff‘s First Amended Complaint against Defendant Andrews is
DISMISSED with prejudice, and finally, it is
ORDERED that Plaintiff shall forthwith take the necessary steps to move the case
fomard against Defendants Leander Francis and Complete Business Systems, Inc
DATED December 7 2020 W
DOU LA A BRADY JUDGE
ATTEST
TAMARA CHARLES
Clerk of the Court f
&%
By __
Clerk
AV? W Distribution List
Lee I Rohn Esq
Martial A Webster, Sr , Esq
Gertrude LeCointe, Esq