SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX
JEROME MATTHEWS,
PLAINTIFF, |
Vv. SX-13-CV-499
R&M GENERAL CONTRACTORS, INC; Cite as: 

HECTOR ROSARIO; AND JACQUELINE
MERCEDES,
DEFENDANTS.
FOR PUBLICATION
Appearances:
JULITA K. DE LEON, Esa. '
Julita de Leon, PLLC
For Plaintiff
K. GLENDA CAMERON, Esq.
Law Offices of K.G. Cameron
For Defendants
MEMORANDUM OPINION

WILLOCKS, Presiding Judge

ql THIS MATTER is before the Court on the Plaintiff's Motion for Reconsideration of the Order
of October 19, 2018 Dismissing the Plaintiff’s Motion for Leave to Amend the Amended Petition
(hereinafter “Motion for Leave to Amend”) and Granting Defendants’ Motion to Discharge and/or
Remove Lis Pendens (hereinafter “Motion to Discharge Notice”). The Motion for Reconsideration was

filed November 13, 2018. The Defendants filed an Opposition on December 4, 2018.

' Atthe publication of this opinion, Attorney de Leon has filed a Motion to Withdraw as Plaintiff's counsel.
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BACKGROUND
A. Leave to Amend

{2 On July 14, 2016, the Plaintiff moved the Court for a second amendment to the Amended
Petition (hereinafter the “Amended Complaint”). In spite of the first amendment in 2015, the Plaintiff
wanted a second amendment “to add facts that he did not know about earlier, and to add two [sic]
additional counts that are consistent with existing facts.” (Mot. for Leave to Amend the Amended Pet.
3.) The Plaintiff alleged that the additional facts are “curative,” and that “the additional claims rely on
facts already pleaded in the [Amended Complaint].” (/d.) The claims to be added were conversion,
unjust enrichment, and breach of the duty of good faith and fair dealing. (/d. at 4.) The Plaintiff went
on to state that “because the new claims arise out of the identical operative facts as the initial Petition,
the amendment does not substantially change the theory on which the case has been proceeding nor
would Defendants be required to engage in significant new preparation of this case for trial.” (id.)

q3 In its Order dated October 17, 2018, the Court denied leave for a second amendment because
the Plaintiff gave no indication of the nature of the facts that were allegedly recently discovered and
because the claims for conversion, unjust enrichment, and breach of the duty of good faith and fair
dealing, could and should have been included in the Plaintiff's first amendment. (Order of the Court
at 3 (Oct. 17, 2018)). The Court determined that an additional amendment to the complaint would
cause discovery delays and that the Plaintiff’s new claims should have been brought when he was
given the opportunity to do so in 2015 given their basis in facts that were--admittedl y--already in his
knowledge. (/d.}

q4 The Plaintiff asserts that the Court misapplied Rule 15 of the Virgin Islands Rules of Civil
Procedure and erroneously determined that an additional amendment to the Amended Complaint
would cause undue delay. (Mot. for Reconsideration |-2.) According to the Plaintiff, “the need for

clarification arose from facts that Plaintiff acquired during the course of discovery [and] the additional
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counts arose from allegations that were previously stated but became clearer with the advent of the
additional facts.” (fd. at 2.)

qs The Plaintiff argues that the rule allowing amendment of a complaint is narrow and that the
Court’s ruling “is contrary to the plain language and purposes of Rule 15 and contradicts the relevant
case law, all of which require this Court to grant leave ‘freely when justice so requires’....” (Id, at 3-
4.) According to the Plaintiff, despite the delay that amendment will cause, there is no prejudice to the
Defendants, and the Plaintiff should not be penalized for a lack of ruling on the Motion for Leave to
Amend for two years after it was filed. (/d. at 4.) The Plaintiff also claims that the Defendants knew
of the additional claims once the Motion for Leave to Amend was filed and could have conducted
discovery appropriately since written discovery did not end until January 2018.” (/d. at 4.)

16 The Plaintiff further alleges that the Court misread the Motion for Leave to Amend and
disregarded the redlined version of the proposed second amended petition that the Plaintiff filed,
causing the Court to determine that the Plaintiff had not indicated what additional facts may be
included. (/d. at 5.) Upon further review, the Court notes that the Plaintiff submitted a redlined version
of the proposed amendment on July 14, 2016. The Court has compared the proposed amendment to
the Amended Complaint of 2015 and noted the relevant differences, discussed in more detail below.
q7 Another of Plaintiff's arguments is that the new claims “are not new changes per se” but rather
“new theories of recovery made clear by discovery.” (/d.) Additionally, the Plaintiff states that “a
review of the case relied upon by the Court confirms that the ‘undue delay’ determination focuses on
the length of the time that has passed since Plaintiff filed his complaint.” (/d. (citation omitted)).
However, the Plaintiff then states that “no consideration was given to the two-year delay in addressing
the Plaintiff's motion to amend...[nJor was there any consideration given to the fact that this was the
second time that Plaintiff was requesting permission to amend his complaint and the request came

during discovery.” (/d. at 6.) The Court is uncertain whether these statements are contradictory
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regarding the undue delay analysis, or whether the Plaintiff believes that a two-year delay in ruling on
the motion somehow makes it more viable. Court will assume for the sake of argument that the Plaintiff
believes the Court’s decision to deny an additional amendment was based on the length of time
between the filing of the proposed second amended petition in 2016 and the Court’s ruling in 2018.
q8 In response, the Defendants note that the Plaintiff’s initial complaint--as well as the Amended
Complaint--were filed with the assistance of counsel, though the Plaintiff attempts to give the
impression that he lacked counsel entirely from 2013 to 2015. (Opp’n 6.) The Defendants also argue
that the allegation that the Court improperly considered the burden to itself as undue is misguided
because, pursuant to Toussaint v. Stewart, 67 V.1 at 946-47, delay in seeking an amendment is undue
when it places an undue burden on the trial court. (Opp’n 7.) The Plaintiffs allegedly new facts and
claims also could have been brought at an earlier date, and these facts were not cited in the Motion for
Leave to Amend or in the present Motion to Reconsider. (/d. at 8.) The Defendants indicate that a
redlined proposed amended complaint does not appear on the record with exception to the one filed
with the Amended Complaint. (/d.)° The Defendants further argue that the Plaintiff explicitly states in
the Motion that his Amended Complaint and the proposed second amended complaint “are based on
the same factual allegations,” meaning that amendment is not necessary or is untimely. (/d. citing Mot.
at 6.) Finally, the Defendants assert that the new claims are barred by the doctrine of futility. (Opp’n
9.)
B. Release of Lis Pendens

719 Prior to commencing this action, the Plaintiff placed a Notice of Lis Pendens upon a parcel of
real property owned by Defendant Mercedes. In an order dated October 17, 2018--but separate from
that denying leave to amend--the Court ordered the notice released because it found no indication in

the Amended Complaint that any of the Plaintiff’s claims affect the title of Mercedes’ property. (Order

* Here. the Court again notes that a redlined proposed second amended petition was filed with the Motion for Leave to
Amend on July 14, 2016.
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of the Court Granting Mot. to Discharge, 3-4 (Oct. 17, 2018)). The Plaintiff argued against discharging
the notice of lis pendens on the grounds that he has a sufficient legal interest in the property because
of his allegations that profits of R&M General Contractors, Inc. were used to purchase various real
property on St. Croix and in the Dominican Republic. (PI.’s Opp’n to Mot. to Discharge, 3 (May 25,
2017)). The Plaintiff also argued that the claims brought in his proposed second amended petition,
which the Court did not approve, constitute an interest in the property because the claims involve the
equitable recovery principles of unjust enrichment and constructive trust. (See id. at 4.) The Court
considered the Motion for Leave to Amend immediately prior to the Motion to Discharge, and both
orders were signed and entered the same day. Since the Court denied the Motion for Leave to Amend,
the Court did not consider the argument pertaining to the equitable remedies in the proposed second
amended petition. (Order of the Court Granting Mot. to Discharge at 2.)

410 According to the Plaintiff, the Court’s simultaneous ruling created an injustice to the Plaintiff.
(Mot. 6.) The Plaintiff states that because the Motion for Leave to Amend was pending for nearly a
year before the Defendants filed the Motion to Discharge, “it was unclear whether the amended
complaint was the operative complaint.” (/d. at 7.) The Plaintiff further states that “the Court should
have granted Plaintiff his motion for leave to amend and then decide [sic] the Defendants’ motion to
discharge the lis penden [sic].” (/d.) This is, in fact, what the Court did, though both rulings were
entered the same day.

{i In the Opposition to the Motion for Reconsideration, the Defendants assert that the Plaintiff's
complaint regarding the /is pendens “amounts to no more than ‘mere disagreement with the Court’s
interpretation’ of the law.” (Opp’n at 10, citing Jn re Estate of Melchior, 

, at *9
(V.I. Super 2012)). The Defendants state that the Plaintiff does not reference a legitimate reason--as

outlined in Rule 6-4 of the Virgin Islands Rules of Civil Procedure--for the Court to reconsider its
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position, (Opp’n at 10.) For the purposes of this Motion, the Court will assume that the Plaintiff’s
Motion is based on a clear error of law.

LAW
{!2 A motion to reconsider must be based on one of four principles: |) a change in controlling law;

2) availability of new evidence; 3) the need to correct a clear error of law; or 4) failure of the court to
address a specific issue that was raised by a party prior to a ruling. V.LR. Civ. P. 6-4. Here, the Plaintiff
alleges that the Court made errors of law. It is appropriate to grant a motion for reconsideration based
on error of law “‘when the initial decision overlooked dispositive factual or legal matters presented to
it.”” Smith v. Law Offices of Karin A. Bentz, P.C., 2018 V.1. LEXIS 13, *16 (V.I. Super. Ct. 2018)
(citing O'Neal v. PMST, LLC, 2012 V.1. LEXIS 62 (V.L Super. Ct. 2012)). “Furthermore, when
assessing these types of motions for reconsideration, the Court looks for the moving party to offer the
specific legal authority it claims the Court either failed to apply correctly or failed to apply in totum in
its original decision.” Smith, 2018 V.I. LEXIS at *16 (citing Jefferson v. Grande Bay Resort
Condominium Ass'n, Inc., No. 2010-97, 

, *4).

DISCUSSION
A. Leave to Amend

{13 The Plaintiff's Motion for Leave to Amend was made pursuant to Rule 15 of the Federal Rules
of Civil Procedure, prior to the adoption of the Virgin Islands Rules of Civil Procedure in March 2017.
Rule 15 of the Virgin Islands Rules of Civil Procedure is substantially similar or identical to Rule 15
of the Federal Rules of Civil Procedure. Pursuant to Rule 15, amendments made before trial, and which
cannot be made as a matter of course, require the written consent of the opposing party or leave of the
Court. V.LR. Civ. P. 15(a)(2). “The court should freely give leave when justice so requires.” fd. “Under
this standard, amendment should be allowed in order to provide an opportunity to have any requests
for relief considered on the merits, if the assertions in the proposed amendment are the proper subject

for relief.” Toussiant v. Steward, 

 (VL Sup. Ct. 2017) (discussing Superior Court Rule
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8, which also indicates amendment should be permitted “when justice so requires”). “More succinctly,
when the pleading presents a proper claim for relief, leave to amend should be freely given.” Jd.

{14 Although the standard allowing amendment when justice so requires “is extremely liberal and
strongly favors the granting of leave to file an amended pleading, the trial court has discretion to deny
leave to amend due to reasons such as undue delay, bad faith or dilatoriness, repeated failures to correct
any deficiencies in the pleading, futility of amendment, undue prejudice to the (non-}moving party,
etc.” Toussaint, 67 V.1. at 946 (citations omitted). Accordingly, the Court will undertake a three-prong
analysis: 1) whether the proposed claims are proper claims for relief; 2) whether the Court has
discretion to deny leave to amend; and 3) whether the Court’s discretion was abused in denying leave
to amend.

1, The Plaintiff's proposed claims for conversion and unjust enrichment are not proper claims
for relief.

{15 = A proper claim for relief is a claim upon which relief may be granted and is not futile. Martinez
v. Hess Oil Virgin Islands Corp., 69 V.1. 519, 528-29 (V.1. Super. Ct. 2018). If these are proper claims
for relief, then the liberality of Rule 15 will apply.

a) Conversion
{16 = The Plaintiff's first additional claim is for conversion, a tort claim. As put in Pappas v. Hotel
on the Cay Time-Sharing Association, 

 (V.1. Super. Ct. 2015):

[cJonversion is an intentional exercise of dominion or control over a chattel which so
seriously interferes with the right of another to control it that the actor may justly be
required to pay the other the full value of the chattel. Thus, conversion consists of the
wrongful exercise of dominion or control over the property of another in a manner
inconsistent with that of the owner’s rights. Also, the essence of conversion is not the
acquisition of the property, rather it is the wrongful deprivation of that property.
Consequently, the tort of conversion constitutes the exercise of wrongful dominion and
control over the property to the detriment of the rights of its actual owner....[t is
uncontroverted that money, which is personal property, may be the subject of a
conversion.

 (citations omitted).
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{17 Though by definition conversion would generally be appropriate where a party has claimed the
loss of control of money to their detriment, it cannot be a proper claim of relief because it is barred by
the gist of the action doctrine.
The gist of the action doctrine is designed to maintain the conceptual distinction
between breach of contract claims and tort claims by precluding plaintiffs from
recasting ordinary breach of contract claims into tort claims. The difference between
contract and tort claims [is] as follows: Tort actions lie for breaches of duties imposed
by law as a matter of social policy, while contract actions lie only for breaches of duties
imposed by mutual consensus agreements between particular individuals.
Pollara v. Chateau St. Croix, LLC, 

, *22-23 (VL Super. Ct. 2016) (adopting the
gist of the action doctrine by Banks analysis).
q!8 The gist of the action doctrine bars tort claims:
(1) arising solely from a contract between the parties;
(2) where the duties allegedly breached were created and grounded in the contract itself:
(3) where liability stems from a contract; or
(4) where the tort claim essentially duplicates a breach of contract claim or the success
of which is wholly dependent on [the] terms of a contract.”
VI. Port Auth. v. Callwood, 

 (V.L Super. Ct. 2014).
419 In this case, the cause of action sounds in contract and the Plaintiff’s claims are all based on
the alleged breach of the agreement that he would receive forty percent of company earnings. (See
generally Amended Complaint and PI.’s proposed second amended complaint.) The conversion claim
and the duties and liabilities claimed by the Plaintiff all arise from the contract. Therefore, the

conversion claim is essentially a duplicate of the breach of contract claim which cannot succeed on its

own and ts therefore not a proper claim for relief.

b) Breach of the Duty of Good Faith and Fair Dealing

20
1 “Under the duty of good faith and fair dealing, “every contract imposes upon each party
a duty of good faith and fair dealing in its performance and its enforcement.’ Good faith
means “faithfulness to an agreed common purpose and consistency with the justified
expectations of the other party; it excludes a variety of types of conduct characterized
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as involving “bad faith” because they violate community standards of decency, fairness
or reasonableness.”

Guardian Ins. Co. v. Khalil, 63 VL. 3,21 (V1. Super Ct, 2012).

{21 Here, the Plaintiff has alleged breach of contract stemming from the Defendants’ failure to
share the proceeds of the contracting business. Since a duty of good faith and fair dealing attaches to
every contract, the breach thereof constitutes a proper claim for relief.

c) Unjust Enrichment

“A cause of action for quantum meruit, also known as unjust enrichment, will ordinarily
lic in a case where the defendant ‘receive[s] something of value to which he is not
entitled and which he should restore’ to the plaintiff.” Walters v. Walters, S.Ct. Civ.
No. 2010-0040, — V.I. ——, 

, at "3 (V.1 Apr. 28, 2014) (quoting
Maso v. Morales, 57 VA. 627, 635 n.9 (V.1.2012)); see also Frank V. Pollara Grp...
Ocean View Inv. Holding, LLC, Civ, No. 9-60, 2013 WL t71087, at #2 (D.V.I. Jan, 10,
2013) (unpublished) (“Quantum meruit is the remedy for a quasi-contract under a
theory of unjust enrichment; it is not a free-standing legal theory.”). Unjust enrichment
is an equitable quasi-contract cause of action, imposing liability where there ts no
enforceable contract between the parties “but fairness dictates that the plaintiff receive
compensation for services provided.” Cnty. Commis of Caroline Cnty. v. J. Roland
Dashiell & Sons, lnc... 

 (Md.2000)(quoting Dumnaville v. McCormick
& Co., 

 (D.Md.1998)).

Because unjust enrichment is an equitable remedy, it—like all equitable remedies—is
inappropriate where a legal remedy is available. See Mitsubishi Int'l Corp. v. Cardinal
Textile Sales, 

, 1518 (11th Cir.1994) (“It is axiomatic that equitable relief
is only available where there is no adequate remedy at law.”); see generally | DAN
DOBBS, REMEDIES 750-52, 807-11 (2d ed.1993). Duc to the unavailability of
equitable remedies when a legal remedy is available, “{t}he general rule is that no
[equitable] quasi-contractual claim can arise when a contract exists between the parties
concerning the same subject matter on which the quasi-contractual claim rests,” since
legal remedies are available to a plaintiff in a breach of contract action. Cnty. Comiris
of Caroline Cuty., 

. This doctrine, known as the “barred by contract
rule,” is based on “the principle that parties in contractual privity ... are not entitled to
the remedies available under a judicially-imposed quasi contract... because the terms
of their agreement. express and implied, define their respective rights, duties, and
expectations.” Frank V. Pollara Grp., 

, at *2 (quoting Delta Elec. v.
Biggs, Civ.App. No.2006-0104, 

, at “3 (D.V.LApp.Div. Sept. 23,
2011)). Accordingly, “[a] claim for unjust enrichment cannot stand where an express
contractual agreement exists between the parties.” Batler, Capitel & Schwartz v.
Tapanes, 

 (IILApp.Ct.1987); see also Klein y. Arkoma Prod.
Co., 

 (8th Cir.1996) (“Normally, when an express contract exists
between the parties, unjust enrichment is not available as a means of recovery.”),
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Cacciamani & Rover Corp. v. Banco Popular de Puerto Rico, 61 V.1, 247, 251 (LL Sup. Ct. 2014)

(footnotes omitted).

{22 = Like conversion, unjust enrichment is nota proper claim for relief, Though the Defendants may
have received something of value (e.g. money or property) to which they are not entitled, the Plaintiff's
cause of action is in contract law, not equity. The Plaintiff alleges the existence of a contract between
the parties which demands that the revenues of the business be divided forty percent to the Plaintiff,
forty percent to Defendant Rosario, and twenty percent to Defendant Mercedes. (Amended Compl.
q10.) As per the Plaintiff's proposed second amended complaint, “Defendants have failed to give
Plainuff his 40% and retained Plaintiff's 40% for themselves. As a result, Defendants have been
unjustly enriched at the expense of Plaintiff.” (PI.'s Proposed Second Amended Verified Petition at [4
82-84), Since the Plaintiff has alleged a violation of contract, there is a proper remedy at law and to
bring a dupticate claim in equity such as unjust enrichment is prohibited in this matter. Unjust
enrichment ts therefore not a proper claim for relief.

2. The Court can exercise its discretion to deny leave to amend because of undue delay and
dilatoriness.

923 As per the above discussion, only one of the Plaintiff’s three proposed claims is a proper claim
for relief. As such, the Court is not required to give leave to include the claims for conversion and
unjust enrichment. With regard to breach of the duty of good faith and fair dealing, the Court’s next
inquiry is whether it has discretion pursuant to the factors outlined Toussaint to deny leave to amend
in spite of the general liberality of Rule 15.

{24 = The Court may consider the following non-exclusive factors in exercising its discretion to deny
amendment to a pleading: “undue delay, bad faith or dilatoriness, repeated failures to correct any
deficiencies in the pleading, futility of amendment, undue prejudice to the [non-]moving party, etc.”

Toussaint, 

 (citations omitted).
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The passage of time alone is not undue delay. Delay in seeking to amend a pleading
becomes undue when allowing the amendment places an unwarranted burden on the
trial court. Whether allowing an amendment to a pleading will unduly burden the trial
court involves consideration of the number of opportunities to amend that have been
granted by the trial court, the reasons for and the purposes of prior amendments, the
stage of the litigation, and other appropriate factors relating to the trial court’s

management of the case specifically and its docket and procedures generally. 

 at 946-
47 (citations omitted.

{25 —s In its ruling of October 17, 2018, the Court denied leave to amend because of undue delay. (See
Order Denying Leave to Amend at 3, Oct. 17, 2018). The Court noted that the Plaintiff had already
had an opportunity to amend and that the case had progressed so significantly that the inclusion of
additional claims would unnecessarily postpone trial. (/d.) The Plaintiff stated in his Motion for Leave
to Amend, and in the present Motion for Reconsideration that the new claims are based on facts
previously known. (Mot. to Amend at 3; Mot. for Reconsideration at 5-6.) He also alleges that the new
claims do not substantially alter the theory of recovery. (Mot. for Reconsideration at 5.) Since two of
the three claims are not even viable, the Court has to agree that the theory of recovery is not
substantially altered. The only proper claim for relief is breach of the duty of good faith and fair

dealing, and that is already implied in contract.

{26 — In fact, for each of the new claims the Plaintiff essentially reiterates that pursuant to the by-
laws of the corporate agreement, the Plaintiff has a right to forty percent of company earnings and that
the Defendants wrongfully withheld his portion to his detriment (PI.’s Proposed Second Amended
Verified Petition (78-89). There are no new relevant facts stated by the Plaintiff that give additional
support any of the claims. The most significant addition to the alleged facts that the Court can find is
the allegation that the Plaintiff was contacted by an employee of the Department of Licensing and
Consumer Affairs in 2012 regarding a complaint against the company, and this contact alerted Plaintiff

to the Defendants’ alleged wrongdoing, (/d. at {J 15-17.)
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{27 Even though the Plaintiff has only amended the complaint once, these alleged facts have been
known to the Plaintiff since 2012 and the Court is of the opinion that the proposed claims for
conversion and breach of the duty of good faith and fair dealing could and should have been included
in the 2015 amendment. The Court finds undue delay and dilatoriness because each claim, even those
which are not proper claims for relief, could have been brought in the 2015 amendment. Even a minor
amendment to the pleadings will require the Court to give the Defendants an opportunity to respond
which will stretch this case even further, requiring changes to the joint scheduling order and to the

Court’s calendar.

{28 The Court has also considered the other factors articulated in Toussaint and can find no
indication of bad faith or of repeated failure to correct deficiencies since this is not a matter of the
petitions being procedurally deficient, but rather the Plaintiff seeking to make additional claims. The
Court also cannot make a finding of undue prejudice to the Defendants because the Court would give

them the opportunity to respond to the amendment and to conduct discovery as necessary.

{29 With regard to futility, “the Court considers if the proposed amendment is frivolous, would be
barred by the statute of limitations, or would survive a motion to dismiss....” Abdallah v. Abdel-
Rahman, 2015 VI. LEXIS 102, *13 (V.I. Super. Ct. 2015). See Hartzog v. United Corp., 

, *10 (V.L Super Ct. 2011) (stating that “[fJutility refers to the complaint, even after
amendment, failing to state a claim upon which relief could be granted”), citing In re Burlington Coat
Factory Sec. Litig., 

 (3d Cir. 1997). As already established, the Plaintiff's claims
for conversion and unjust enrichment are not proper. They would not survive a motion to dismiss
because the cause of action does not support a quasi-contractual claim like unjust enrichment and the
Plaintiff cannot merge tort claims with contract claims. However, breach of the duty of good faith and

fair dealing would survive because the second proposed amended complaint is well-pleaded and the
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Plaintiff's alleged facts, taken as true, sufficiently support the inclusion of this particular claim. In

addition, Virgin Islands precedent makes clear that such a duty is implied in every contract.

130 In sum, the claims for conversion and unjust enrichment are not proper claims for relief and it
would be futile to include them in the second proposed amended complaint. Further, though breach of
the duty of good faith and fair dealing is a proper claim, to give leave to amend cause undue delay and
place additional burden on the Court. The final question is whether, in light of these circumstances,

the Court abused its discretion in denying leave to amend.

3. The Court did not abuse its discretion in denying leave to amend but will allow the Plaintiff to
include a claim for breach of the duty of good faith and fair dealing.

q3! “A trial court abuses its discretion when it acts arbitrarily or irrationally, fails to consider

judicial recognized factors constraining its exercise of discretion, relies on erroneous factual or legal
premises, or commits an error of law.” Molloy v. Independence Blue Cross, 56 VI. 155, 168 (V.L. Sup.

Ct. 2012), quoting United States v. Thompson-Riviere, 

 (4th Cir. 2009).

132 In this case, the Court did not deny leave to amend arbitrarily or irrationally and provided
Justification for its decision. The Court noted in its ruling that leave to amend should be freely given
subject to the factors discussed above, including undue delay. For this reason, the Court also did not
commit an error of law but rather exercised its sound discretion. The Court also stated that the Plaintiff
did not give an indication as to the nature of the new claims and facts to be added to the complaint.
Upon review the Court has noted the differences between the Plaintiff's Amended Complaint and
proposed second amended petition and has found the changes to be minimal other than the inclusion
of the three new claims, two of which are not proper claims for relief. The Plaintiff does not add any

relevant supporting facts but merely restates those previously known.

133 In light of all the circumstances, it is apparent that the Court did not abuse its discretion and,

though the Court admits that it did initially overlook dispositive legal matters presented by the
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Plaintiff--namely that conversion and unjust enrichment are not proper claims for relief--that oversight
did not harm the Plaintiff because to have considered the claims more thoroughly as done here would
not have been to the Plaintiff’s benefit. However, having now reviewed the new claims and determined
that the only viable claim is for breach of the duty of good faith and fair dealing, which should not
require any additional discovery on the part of the Defendants due to its implied nature, the Court shall
allow the amendment as to that particular claim and give the Defendants time to respond to it. The
Court will order the Plaintiff to submit a new proposed amended complaint in accordance with this

opinion that will be approved upon review.

B. Discharge of the Notice of Lis Pendens

934 The Plaintiff also requests that the Court reconsider its order to remove the Notice of Lis
Pendens placed on a parcel of real property belonging to Defendant Mercedes. The Plaintiff takes issue
with the Court’s ruling because he believes that the Court’s simultaneous consideration of the Motion
for Leave to Amend and the motion to discharge the notice caused him prejudice. (Mot. to Reconsider
at 6.) The Court can think of no way in which the Plaintiff was prejudiced. As the Plaintiff points out,
the Court may consider motions in whichever order it chooses. (/d.) Regardless, the Motion for Leave
to Amend was considered before the Motion to Discharge.

{35 Further, the Plaintiff's opposition to the motion to discharge relied on the argument that his
proposed second amended complaint gave him a legal interest in the property, particularly the
allegation that company profits were used to purchase various real property. However, the property in
question was never identified in any version of the complaint. The Plaintiff also asserts that his claim
for unjust enrichment and a request for a constructive trust in the proposed second amended complaint
constitutes legal interest in the property. The Court wholly disagrees. As already discussed at length,
unjust enrichment is not a proper claim for relief upon a contract cause of action. Even if it were proper

in this case, the claim would still not affect title to any defendant’s property.
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436 =A notice of lis pendens is a notice that there is a court action affecting title to real estate or a
judgment requiring the execution of a conveyance of real estate. See 28 V.I.C § 130. In other words,
[a] notice of lis pendens makes the public aware that certain property is the subject matter of litigation.
SBP, I, LLC v. Family Props. Caribbean, LLC, 

, *3, citing Black’s Law Dictionary,
at 950 (8th ed. 2004). Thus, /is pendens is appropriate in cases such as those involving an action for
specific performance to purchase real property, declaration of the existence or extinguishment of an
easement appurtenant, or interpretation of covenants that run with the land, etc. SBP, J, LLC, 2010 V.I.
LEXIS at *3-4 (stating that classic example where a notice of lis pendens is warranted in is a case for
specific performance requiring the conveyance of property), citing Del Valle v. Mortgage Bank of
California, 

, at *25 (E.D. Cal. 2009); Ross v. Canada Life Assurance
Co., 

, at *5 (E.D. Pa.1995). E. St. Croix Beach Club v. Caribe Isle, 17
V.L. 119, 122 (Terr. Ct. 1980) (finding that an easement appurtenant is “incidental to any estate the
possessor of the dominant tenement may have”); Bd. of Dirs. v. Consol. Int'l, 28 V.1. 57, 73 (Terr. Ct.
1993) (finding that an unfavorable ruling regarding covenants that run with the land would be
prejudicial to successors in interest to property).

{37 — Lis pendens is not appropriate in the present contract dispute because whether the Defendants
breached the contract does not affect the title to Defendant Mercedes’ property. Even if the Plaintiff
receives a favorable judgment, the Plaintiff will be entitled to monetary damages, not equitable relief
in the form of conveyance of property. Moreover, the Court has given the Amended Complaint and
the proposed second amended petition thorough review and can find absolutely no reference made by
the Plaintiff to a constructive trust. Ultimately, whether the Plaintiff has requested a constructive trust
as a remedy is a non-issue because his prayers for relief include any relief the Court deems appropriate.
938 The Plaintiff also asserts in the Motion to Reconsider that the time period between when the

motions to amend and to release the notice of fis pendens were filed, and when they were ruled on
Matthews vy. R&M General Contractors, Inc. 

SX-2013-CV-499

MEMORANDUM OPINION

Page 16 of 17

prejudiced the Plaintiff because the Plaintiff thought he could rely on his proposed second amended
complaint to support his argument against discharging the notice. (Mot. for Reconsideration at 6-7.)
This argument is also unpersuasive. The Court has already discussed how the proposed amendments
do not support the filing of a notice of lis pendens. Beyond that, it is unreasonable for a litigant to
believe that an unapproved amended complaint is operative.

{39 In granting the Defendants’ motion to discharge the notice of lis pendens, the Court considered
whether any of the Plaintiff's claims affect real property and found that they do not. The Court also
noted that judgment would not be made hollow if the notice of lis pendens was discharged because the
Plaintiff's potential recovery is not tied to any specific real property but rather to monetary
compensation in general. The Court further reminded the Plaintiff that a favorable judgment would
give the Plaintiff the opportunity to file a judgment lien against the property if necessary. Finally, in
requesting reconsideration, the Plaintiff offered no legal authority that he claims the Court failed to
apply or apply correctly. Thus, the Court’s ruling did not involve a clear error of law and the Court
will not reconsider its ruling.

CONCLUSION

{40 = As discussed above, the Court has reviewed its denial of the Plaintiff’s 2016 Motion for Leave
to Amend and its grant of the Defendants’ 2017 Motion to Discharge. With regard to the leave to
amend, the Court has more thoroughly considered the Plaintiff's proposed changes and determined
that two of the three additional claims he wishes to bring are not proper claims for relief. However, the
Court has found that the claim for breach of the duty of good faith and fair dealing is proper and--even
though the Court maintains its position that there was no error of law or abuse of discretion in denying
leave to amend--will allow the new claim because to do so will not unduly burden the Defendants and

the time needed to fully respond to the amended pleading should be minimal.
Matthews v. R&M General Contractors, Inc. 

§X-2013-CV-499

MEMORANDUM OPINION

Page 17 of 17

{41 With regard to the discharge of the notice of lis pendens, the Court will not reconsider its
position because fis pendens is not appropriate in a case such as this where the litigation does not affect
the title to real property. In granting the discharge, the Court has considered local jurisprudence on the
matter and is confident that it has not committed an error of law. An order consistent with this opinion

is forthcoming.

———
DONE and so ORDERED this Ly Fy: day of March 2020.

ATTEST:

HAROYD W.L. WILLOCKS
residing Judge of the Superior Court