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

RKEKKKKEEAKEKER

BLUEWATER CONSTRUCTION, INC.,
CASE NO. ST-2020-CV-00212
Plaintiff,
ACTION FOR FORECLOSURE
-VS- OF CONSTRUCTION LIEN
GARY HILL and WANDA HILL,
a ____ Defendants.
GARY HILL and WANDA HILL, ACTION FOR BREACH OF

BLUEWATER CONSTRUCTION, INC., TONY
COFFELT, and SPRINGBOARD, LLC,

qi

CONTRACT, BREACH OF IMPLIED
WARRANTY OF GOOD WORKMAN-
SHIP, NEGLIGENCE, CONVERSION,
CIVIL CONSPIRACY, RESTITUTION
AND DECLARATORY JUDGMENT

Counterclaim Plaintiffs,

“VS-

JURY TRIAL DEMANDED

Nm” mee” Net mee” eee Smee” mee” se! meee” Nome’ Mime” Ngee” Se” “Neer” “ogee” ogee’ “oper? See” Nege”

Counterclaim Defendants.

Cite as: 

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on:

1.

Defendants/Counterclaimants Gary Hill and Wanda Hill’s Motion For Leave To
Amend First Amended Counterclaim (“Motion”), filed August 1, 2022;

Counterclaim Defendant Tony Coffelt’s Response To Hills’ Motion For Leave To
Amend First Amended Counterclaim, filed August 29, 2022;

Counterclaim Defendant Bluewater Construction, Inc.’s Opposition To Motion For
Leave To Amend First Amended Counterclaim, filed August 31, 2022;

Defendants/Counterclaimants Gary Hill and Wanda Hill’s Reply To Plaintiff's
Opposition To Hills’ Motion For Leave To Amend First Amended Counterclaim,
filed September 22, 2022; and

Defendants/Counterclaimants Gary Hill and Wanda Hill’s Reply To Tony Coffelt’s
Response To Hills’ Motion For Leave To Amend First Amended Counterclaim,
filed September 23, 2022.
Bluewater Construction, Inc. v. Gary Hill and Wanda Hill 

Case No. ST-2020-CV-00212

Memorandum Opinion and Order

Page 2 of 12

q2 The Court will grant leave for Defendants Gary Hill and Wanda Hill (“the Hills”) to amend
their First Amended Counterclaim because the facts in this case do not warrant the Court deviate
from this jurisdiction’s liberal leave policy, and Counterclaim Defendants’ injuries can be
redressed in their concurrently filed Motion For Sanctions.

I. INTRODUCTION
A. Background Information

q3 On May 22, 2020, Bluewater Construction, Inc. (“Bluewater”) initiated suit against the
Hills to foreclose on a construction lien. On August 14, 2020, the Hills filed an Answer,
Affirmative Defenses, and Counterclaim. On May 3, 2021, the Hills filed a First Amended
Counterclaim against Bluewater and Tony Coffelt (“Coffelt”). The Hills’ counterclaims concern
windows that Bluewater installed in their home and scaffolding the Hills purchased for
construction of their home which Bluewater purportedly utilized at other sites. The Hills allege in
their Counterclaim eight (8) counts, seven (7) of which they allege against Bluewater and Coffelt:
(1) Breach of Contract against Bluewater;' (2) Breach of Implied Warranty of Good Workmanship
against Bluewater;? (3) Negligence against Bluewater; (4) Conversion against Bluewater and
Coffelt;4 (5) Civil Conspiracy against Bluewater and Coffelt;5 (6) Restitution against Bluewater
and Coffelt;® and (7) Declaratory Judgment against Bluewater.’

G4 On July 19, 2022, the Court issued a First Amended Scheduling Order granting leave for
the parties to amend their pleadings up to (and including) August 1, 2022. The Hills aver that they
seek to amend their First Amended Counterclaim to integrate information unearthed during
discovery as well as to incorporate the Court’s February 11, 2022 Memorandum Opinion and
Order (

). The Hills’ amendments add factual allegations and a new legal theory
relating to their leasing of scaffolding; adjust the dates related to their Conversion claim
Conversion claim; add a new count of “Breach of Contract, or in the alternative, Negligence”,
amend the Civil Conspiracy count; change the title of their “Restitution” claim to “Unjust
Enrichment”; renumber their counts; and amend the caption and relief section to reflect the new
changes. A redline copy of the previous Counterclaim and a clean version of the new Counterclaim
were attached.

B. Parties’ Arguments

q5 Counterclaim Defendant Coffelt opposes the Hills’ Motion as he alleges it fails to state a
cause of action against Coffelt and should be denied on the grounds of futility under Virgin Islands

' Countercl. Pls.’ First Am. Countercl. 6-7,

? Countercl. Pls.’ First Am. Countercl. 8.

3 Countercl. Pls.’ First Am. Countercl, 8-9.

4 Countercl. Pls.’ First Am. Countercl, | 1-12.
3 Countercl. Pls.’ First Am. Counterch. 12-13.
* Countercl. Pls.’ First Am. Countercl. 13.
"Countercl, Pls.’ First Am. Counterct. 14.
Bluewater Construction, Inc. v. Gary Hill and Wanda Hill 

Case No. ST-2020-CV-00212

Memorandum Opinion and Order

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Rule of Civil Procedure 15(c) as well as the statute of limitations pursuant to V.I. CODE ANN. tit.
5, § 31(a)(5). Coffelt argues that amended claims Five (Conversion) and Six (Breach of Contract
or Negligence) are argued under a theory of bailment that “cannot be sustained as a matter of law.’
Coffelt states that both amended counts assert that he was the Hills’ bailee and agent by agreeing
to oversee and manage the lease of the Hills’ scaffolding and that he had a duty to collect rent and
return the scaffolding to the Hills upon termination,’

46 Coffelt argues that the Hills fail to allege that he had exclusive custody or control of the
scaffolding and that they actually allege the opposite by stating that Bluewater leased the
scaffolding.'° Coffelt also argues the Hills failed to establish any “mutual duty or obligation” or
any “mutual benefit,” and that what is alleged is at most a “gratuitous bailment,” or a bailment
agreement where the bailee receives no compensation, and he would only be liable for damage
caused by gross negligence.'' Coffelt states that the Hills do not allege gross negligence or damage
of the property. Coffelt also argues that the alleged negligence occurred between March 2019 and
May 2020 and a two-year statute of limitations applies to tort negligence.'? Coffelt further contends
that the same reasoning should apply to the Conversion counterclaim because Coffelt states he
neither controlled or interfered with the scaffolding nor was he a bailee.!3

q7 Bluewater maintains that at the beginning of this litigation, “the Hills have repeatedly and
staunchly denied giving authorization for Bluewater to use their scaffolding.”'* Bluewater then
States that the information that was uncovered during discovery were text messages between
Coffelt and Gary Hill authorizing Bluewater to use the scaffolding and Coffelt to oversee it, that
these text messages were always available to Gary Hill as a party to the litigation, and the purpose
was to “cause undue delay, to serve a dilatory purpose and bad motive, and to prejudice
Bluewater.”'* Bluewater argues that leave to amend is not automatic and is at the discretion of the
Court.'® Bluewater further argues that the Hills’ delay and failure to take advantage of previous
opportunities to amend without adequate explanation has put an unfair burden on this Court and
Bluewater.'’ Bluewater argues that awareness of facts and a failure to include them can give “rise
to the inference that the plaintiff was engaging in tactical maneuvers,” and that the failure to
satisfactorily explain undue delay should result in a finding of bad faith."®

q8 Bluewater states that the Hills fail to disclose when the new information was discovered
by them, and “[mJore importantly, the Hills had access to” the text exchange between Gary Hill
and Coffelt since March 5, 2019.'° Further, citing to the Delaware case of Inline Connection Corp.

® Coffelt’s Resp. 2.

® Coffelt’s Resp. 4.

"© Coffelt’s Resp. 6.

" Coffelt’s Resp. 6-7.
" Coffelt’s Resp. 7.

3 Coffelt’s Resp. 8.

4 Bluewater’s Resp. 2.
5 Bluewater’s Resp. 3.
‘6 Bluewater’s Resp. 3-4.
'? Bluewater’s Resp. 4.
'8 Bluewater’s Resp. 5.
'? Bluewater’s Resp. 5.
Bluewater Construction, inc. v. Gary Hill and Wanda Hill 

Case No. ST-2020-CV-00212

Memorandum Opinion and Order
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v. AOL Time Warner Inc.,° Bluewater argues that it should not be required to demonstrate
prejudice.”' However, Bluewater states it was prejudiced by being forced to engage in unnecessary
motion practice and discovery which has been “time consuming and costly.””? Bluewater has also
concurrently moved for sanctions against the Hills for not disclosing the text messages earlier,
which the Court shall address in a separate Order.

79 The Hills counter Bluewater’s allegations of bad faith and dilatory motive in their Reply.
The Hills contend that their inability to disclose Gary Hill’s and Coffelt’s text exchange was
because Gary Hill “did not remember his exchange with Coffelt, and by his own account he very
likely deleted the message shortly after reading it.”*? The Hills argue that by certifying their
discovery response, they certified that it was true and correct with respect to the fact that they do
not have any discovery materials, do not recall having any, and that no diligent search would
uncover any, and “[t]he fact that the Hills are amending their pleadings to conform to evidence
that Gary Hill does not remember is nor evidence of bad faith.”*4

q10 ©The Hills contend that “[w]hether Bluewater finds the Hills’ explanation for failing to turn
over a forgotten and deleted text exchange to be believable is immaterial” to a charge of bad faith.*°
The Hills cite to the District of Columbia District Court case Sherrod v. McHugh,’° which states:
“Preventing a party from amending her complaint on the basis of bad faith generally requires an
affirmative showing by the nonmoving party ... . Such a showing often requires extrinsic
evidence.””’ The Hills maintain that “{a]bsent some concrete showing that the Hills are attempting
to ‘muddy the waters’ . . . there is no basis to reject the Hills’ proposed amended counterclaim
based solely on Bluewater’s aspersions.”7*

q11 9 = The Hills further assert that Bluewater’s claim it will be prejudiced “is simply not credible,”
as first, there are no new claims being asserted against Bluewater.”’ The Hills state that the
Conversion counterclaim still revolves around Bluewater’s “wrongful exercise of dominion over
the Hills’ scaffolding” and the same facts that have been “part of this action from the beginning.”*®
Secondly, the Hills argue “there is no doubt that Bluewater knew about the Hill-Coffelt exchange
as early as mid-December 2021 because Bluewater and Hill?! shared the same attorney.’?? Further,
the Hills claim that “both Coffelt and Bluewater testified in their respective depositions that they

20 

 (D. Del. 2006).

2! Bluewater’s Resp. 5-6 (citing inline Connection Corp. 

).

22 Bluewater’s Resp. 6.

3 Hills’ Reply To Bluewater 2.

*4 Hills’ Reply To Bluewater 2.

25 Hills’ Reply To Bluewater 3.

*6 249 F. Supp 3d 85 (D.D.C. 2017)

27 Id. at 87 (first citing Roller Bearing Co. of Am. v. Am. Software, Inc., 

 (D. Conn. 2008),
then citing Adams v. Gould, Inc., 

 (3d Cir. 1984)).

8 Hills’ Reply To Bluewater 3.

”? Hills’ Reply To Bluewater 3.

% Hills’ Reply To Bluewater 3.

3! This appears to be a scrivener’s error substituting “Hill” for “Coffelt”, as Bluewater and the Hills are on the opposite
sides of this action and Court records show Bluewater and Coffelt, not the Hills, shared the same attorney.

22 Hills’ Reply To Bluewater 3.
Biuewater Construction, Inc. v. Gary Hill and Wanda Hill 

Case No. ST-2020-C V-00212

Memorandum Opinion and Order

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were aware of the existence of the text message” for sometime before the instant motion.*? The
Hills contend therefore, that Bluewater’s joint counsel should have known about the text by the
original disclosure deadline of July 30, 2021, and if counsel for Bluewater did not direct Coffelt,
as an employee of Bluewater, to search for relevant evidence, it is not the fault of the Hills.*4
Therefore, the Hills state, Bluewater cannot claim prejudice “premised on evidence that has been
in Bluewater’s actual or constructive possession{.]”*°

(12 Inresponse to Coffelt’s Opposition, the Hills first argue that Coffelt “‘reads the scope of a
bailment much too narrowly” as the Virgin Islands Supreme Court has said that a “bailment is
created whenever personal property is delivered by one person to another in trust for a specific
purpose with the understanding that the property will be returned when the purpose is
accomplished” and “[t]he specific purpose of the bailment in this case was leasing the scaffolding
to Bluewater.” Thus, the Hills argue, the scaffolding was in the “sole control and dominion” of
Coffelt for the specific purpose of leasing it to Bluewater and managing that lease, and Coffelt was
the only individual who was authorized to possess the scaffolding for the purposes of leasing it.?’
The Hills therefore contend that “[bJecause the specific purpose of the bailment was to lease the
scaffolding to a third party, it does not undermine the Hills’ bailment claims to allege that Coffelt
had possession of the scaffolding for the specific purpose of renting it to Bluewater.”38

713 = Next, the Hills counter Coffelt’s claim that they did not establish a “mutual benefit” for a
bailment to exist. The Hills cite both this Court’s February 11, 2022 Memorandum Opinion and
Order (

), where this Court stated that the use of the scaffolding was manifestly
beneficial to Bluewater and Coffelt, as well as Coffelt’s alleged words in a message to the Hills
where he stated “Bluewater asked if you would be interest in renting some sets of scaffold for
another job they have. I would say it’s a good idea as . . . you guys could recoup some of your
money.”*” Thus, the Hills maintain that there was mutual benefit in the bailment agreement that
extended to both the Hills and Coffelt.*°

414 The Hills also oppose Coffelt’s assertion that they did not allege gross negligence. The
Hills point to paragraphs 68, 75, and 76 of their Proposed Second Amended Counterclaim where
they state: “Coffelt’s breach of his duty of care to the Hills was deliberate, intentional, willful, and
wanton, or done with reckless disregard for the consequences of his actions” and that he acted
negligently by not recovering and returning the scaffolding.”'

415 The Hills then disagree with Coffelt’s assertion that the Motion should be denied because
of the statute of limitations. Coffelt states that the Hills “failed to file a claim for negligence against

3 Hills’ Reply To Bluewater 4.

* Hills’ Reply To Bluewater 4.

% Hills’ Reply To Bluewater 4.

36 Hills’ Reply To Coffelt 2 (quoting Cape Air Int'l v. Lindsey, 53 V1. 604, 619 (2010)) (emphasis added).
37 Hills’ Reply To Coffelt 2.

38 Hills’ Reply To Coffelt 2.

3? Hills’ Reply To Coffelt 3 (emphasis in original).

“° Hills’ Reply To Coffelt 3.

4! Hills’ Reply To Coffelt 3-4.
Bluewater Construction, Inc. v. Gary Hilland Wanda Hill 

Case No. ST-2020-CV-00212

Memorandum Opinion and Order

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Coffelt until August 21, 2022, after the statute of limitations had expired,’*” but the Hills first point
out that they filed their Motion on August 1, 2022, not August 21.” The Hills also state that they
do not allege that Coffelt’s negligence ended in May 2020 but rather, when the scaffolding was
returned to the Hills.“* The Hills argue that although the amended pleading does not state when
the scaffolding was returned, they also do not state Coffelt’s liability ended in May 2020.* Citing
to the Virgin Islands Supreme Court case of Pedro v. Ranger American of the Virgin Islands, Inc.,*®
the Hills argue that the statute of limitations is an affirmative defense which a plaintiff need not
anticipate at the pleading stage.’ Therefore, the Hills claim, even if Coffelt’s factual allegations
were true, they would not be sufficient to defeat the Hills’ amendments.”

q16 ~— Lastly, the Hills state that Coffelt’s assertion that their Conversion counterclaim must fail
because he did not control the scaffolding or exercise the perquisite “dominion or control” “just
recycles Coffelt’s previous claim that he did not have “sole possession” of the scaffolding to
constitute a bailment.’*? Again, the Hills state that Coffelt did have sole possession of the
scaffolding for the purposes of leasing it, and Coffelt did exercise unauthorized control by refusing
to return it, thus, the Conversion counterclaim stands.*?

Il. LEGAL STANDARD
A. Motion To Amend Complaint

417 Virgin Islands Rule of Civil Procedure 15(a}(2) states that “[iJn all other cases, a party may
amend its pleading only with the opposing party’s written consent or the court’s leave. The court
should freely give leave when justice so requires.”>! Rule 15-1 governs the form of amendments
and requires the amended pleading be attached to the motion.**

418 = When ruling on a motion to amend, the Virgin Islands Supreme Court has stated:

Appropriate justifications [for deviating from the norm of freely granting leave
to amend] include, but are not limited to, ‘undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by

® Coffelt’s Resp. 7.

3 Hills’ Reply To Coffelt 4.

“ Hills’ Reply To Coffelt 4.

* Hills’ Reply To Coffelt 4. The Hills attach as Exhibit | an email exchange indicating that the scaffolding, or most
of it, was returned August 21, 2020,

% 

 (2015) (“[A] plaintiff is ‘not required to anticipate in his complaint any affirmative defenses
[the defendant] might raise in its answer.””),

7 Hills’ Reply To Coffelt 4-5.

#8 Hills’ Reply To Coffelt 5.

* Hills’ Reply To Coffelt 5.

* Hills’ Reply To Coffelt 5.

1 VWI. R. Civ. P. 15(a)(2).

V1. R. Clv, P. 15-1 (“A party moving to amend a pleading shall attach a complete - and properly signed - copy of
the proposed amended pleading to the motion papers.”).
Bluewater Construction, Inc. v. Gary Hill and Wanda Hill 

Case No. ST-2020-CV-00212

Memorandum Opinion and Order

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amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, [and] futility of the amendment|[.]’*

419 Virgin Islands Rule of Civil Procedure 15(c)(1) governs the relation back of amendments
in cases not involving the Government of the Virgin Islands and states in its entirety:

(c) Relation Back of Amendments,

(1) When an Amendment Relates Back. An amendment to a pleading relates
back to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation
back;

(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out—in the original
pleading; or

(C) the amendment changes the party or the naming of the party against whom
a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period
provided by Rule 4(m) for serving the summons and complaint, the party to be
brought in by amendment:

(i) received such notice of the action that it will not be prejudiced in
defending on the merits; and

(ii) knew or should have known that the action would have been brought
against it, but for mistake concerning the proper party’s identity.**

q20 = In Schrader-Cooke v. Government of the Virgin Islands,** this Court stated that “[flutility
refers to the complaint, even after amendment, failing to state a claim upon which relief could be
granted”** and in Gourmet Gallery Crown Bay, Inc. v. Crown Bay Marina, L.P.>7 this Court
asserted that “[i]n determining whether an amendment would be futile, the court considers whether
it would survive a motion to dismiss.”** When deciding a motion to dismiss, all material allegations
in the complaint are taken as true, and the Court must construe ail facts in a light most favorable
to the non-moving party.*? “Even if a complaint is ‘vague,’ ‘inartfully drafted,’ ‘a bare-bones
outline,’ or ‘not a model of specificity,’ the complaint may still be adequate so long as it can

* Basic Services, Inc. v. Gov't of the Virgin Islands, 2019 V1 19, 9 26 (quoting Reynolds v. Rohn, 

, 4 24)
(brackets in original).

VIR. Civ. P. 15(c),

52019 V.1. Super 116U,

%6 fd. at J 13 (quoting Hartzog v. United Corp., No. SX-2004-CV-00095, 

, at *9 (V.L. Super. Ct.
Sept. 7, 2011)).

37 No. ST-2014-CV-00513, 

 (V.1. Super. Ct. May 19, 2017).

%8 fd. at *7 (quoting Merchs. Commercial Bank v. Oceanside Vill, Inc., 64 V.1.3, 11 (V.1. Super. Ct. 2015)).

* L’Henri, Inc. v. Vulcan Materials Co., Civ. No. 206-170, 

 (D.V.I. Mar. 11, 2010) (citing
Christopher v. Harbury, 

 (2002)).
Bluewater Construction, Inc. v. Gary Hill and Wanda Hill 

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reasonably be read as supporting a claim for relief].]”°° Further, “the purpose of the notice pleading
Standard is to avoid ‘dismissals of cases based on failure to allege specific facts which, if
established, plausibly entitle the pleader to relief.’”*!

B. Statute of Limitations

921 =‘ Title 5, § 31(a)(5) provides a two-year statute of limitations for civil “action[s] 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” while § 31(a)(3)(A) provides
a six-year statute of limitations for civil “action{s] upon a contract or liability, express or implied”
and §31(a)(3)(D) provides a six-year statute of limitations for “[a]n action for taking, detaining, or
injuring personal property, including an action for the specific recovery thereof.” ©

C. Bailor/Bailee Relationship

q22 = In Cape Air Int'l v. Lindsey,® the Virgin Island Supreme Court established that “[a] bailor
makes out a prima facie case of negligence by a bailee by proof of three elements: a contract of
bailment; delivery to the bailee; and the failure of the bailee to redeliver the property at termination
of the bailment.”*

Il. ANALYSIS

A. Amendment of the Complaint is not futile

423 The Court is not convinced that the Hills’ proposed Second Amended Counterclaim is
futile or that dismissal is warranted at this stage. The Hills have satisfactorily alleged facts which
would put a party on notice of the claims against them, namely that Coffelt and Bluewater utilized
scaffolding purchased by the Hills for monetary gain while failing to recompense them. To decide
whether amendment is futile, the Court considers whether the amendment would survive a motion
to dismiss and, in deciding a motion to dismiss, the Court takes the allegations as true and construes
the facts in a light most favorable to the non-moving party.

924 The Hills allege, inter alia, that Coffelt and Bluewater understood that the scaffolding
belonging to the Hills and their use of it was subject to their compensating the Hills for its use;
that Coffelt, by agreeing to oversee and manage the scaffolding, became an agent of the Hills; that
Coffelt did utilize the scaffolding but failed in his duty to collect rent payments on behalf of the
Hills; and that Bluewater and Coffelt failed to return the scaffolding and continued using it despite

® Basic Servs., Inc. v. Gov't of Virgin Islands, 2019 V1 21, 912 (citing Casaday v. Allstate Ins. Co., 

 (Utah App. 2010)).

6! Basic Servs., inc., 410 (citing V.I. R. CIV. P. 8 Reporter’s Note; and Milis-Williams v. Mapp, 67 V.1, 574, 585 (V.L.
2017)).

5 VLC. § 31a).
& §3 V.1, 604 (V.1. 2010).
" fd. at 620 (quoting In re Nantucket Aircraft Maintenance Co., 

 (Bankr. D. Mass. 1985)).
Bluewater Construction, Inc. v. Gary Hill and Wanda Hill 

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the Hills’ demand for its return. The Hills’ proposed Second Amended Counterclaim can more
than fairly be read as supporting a claim for conversion, contract-breach, or otherwise negligence
on behalf of a bailee to a bailor.

B. Amendment is not barred by the statute of limitations

q25 As for the statute of limitations argument presented by Coffelt, the Hills motion to modify
their First Amended Counterclaim was filed on August 1, 2022, while the Hills have provided
evidence that only some of their scaffolding was returned on August 21, 2022. Thus, the Hills’
claim would be within the applicable two (2) year statute of limitations for tort negligence and
well within the six-year statute of limitations for contract actions and actions premised on the
taking of personal property.

426 = Further, the amended claims modify the original claims by stating that the Hills authorized
Coffelt to oversee the renting of the scaffolding, but they do not drastically alter the underlying
factual occurrences of Bluewater and Coffelt utilizing the Hills’ scaffolding and not paying the
Hills for it. Thus, the new legal theory of recovery rests on the same fundamental allegations and
asserts a claim that “arose out of the conduct, transaction, or occurrence set out—or attempted to
be set out—in the original pleading.”© Therefore, the amendments relate back to the original
pleading and would not be barred by the statute of limitations in any case. Lastly, the Virgin Islands
Supreme Court has stated that “a plaintiff is ‘not required to anticipate in his complaint any
affirmative defenses [the defendant] might raise in its answer’.”® As the statute of limitations is
an affirmative defense, it is not necessary for the Hills to plead facts to overcome this defense in
their proposed Second Amended Counterclaim.

C. Other factors like dilatory motive or prejudice do not warrant denial of the
amendment in the instant case

927 Bluewater impugns the Hills’ attempt to amend their counterclaims to bad faith and dilatory
motive in an effort by the Hills to prejudice Bluewater by requiring them to expend time and money
responding to their claims. The Hills contend that the amendment is due to the disclosure of text
messages in discovery that, due to Gary Hill’s age and inability to remember, as well as habit of
deleting his text messages, the Hills no longer had and were not aware of. Regardless, the
information contained in the text messages was known to all opposing parties. Undue delay, bad
faith or a dilatory motive resulting in prejudice to an opposing party are all reasons for the Court
to deny a motion to amend; however, they do not require the Court to do so. Instead, the Court
looks to the particular facts of the case to see if amendment is warranted.

928 Here, the Hills are alleged to have kept text messages from the Court which indicate that
Coffelt and Bluewater did have authorization to use scaffolding, and after two (2) years of insisting
otherwise, the Hills now seek to amend their claims to state that Coffelt was their bailee as to the
scaffolding, rather than nonpermissive users. It strains credulity that the Hills intentionally “hid”

8 V1. R. Civ. P. 15(c)(1)(B).
Pedro, 63 V.1. at 519-20 (quoting Rennie v. Hess Oil V.I. Corp., 62 V.1. 529, 546 n.12 (V.1. 2015).
Bluewater Construction, Inc. v. Gary Hill and Wanda Hill 

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the text message—and the fact of Gary Hill’s authorization to use the scaffolding—trom the Court,
knowing that Coffelt and Bluewater were aware of these messages, just to file an inaccurate
Counterclaim that would need to be amended later or risk failing on the merits.

929 However, even assuming arguendo that this was not an oversight by the Hills but
intentionally done in bad faith and for dilatory purposes, the Court is still not convinced that denial
of the amendment is warranted here. Notably, the text messages were available to both Coffelt and
Bluewater as well as the Hills, as the text conversation was between Gary Hill and Coffelt, an
employee of Bluewater. Therefore, the Hills did not hide evidence from another party in this
matter. Markedly, the new information revealed in the text messages do not drastically alter all or
even most of their counterclaims but rather modify the legal reasoning behind only a couple.

{30 = Nor do the facts revealed—that Coffelt was authorized to use the scaffolding—appear to
the Court to necessitate a completely new line of investigation or discovery which may be or has
been spoiled by the delay. This is not akin to a party hiding the existence of a surveillance camera
from another party until after footage is routinely deleted or disclosing the identity of a witness
only after they have fallen into a coma. The alleged damage to Bluewater and Coffelt purportedly
comes in the form of time and money spent defending against a couple ultimately erroneous
counterclaims. Notably, Bluewater would still have had to respond to the Hills’ other
counterclaims in seeking to dismiss their suit, as the counterclaims concerning the scaffolding are
only a few of the eight (8) total counterclaims. Whatever injury was done can be addressed by the
Motion For Sanctions and accompanying court order.

931 Furthermore, the Court explicitly provided leave for the parties to amend their Complaints
and Counterclaims by August 1, 2022, and the Hills have timely abided by this schedule and moved
amend their First Amended Counterclaim. The Motion also seeks to amend certain issues
previously identified by the Court in a Memorandum Opinion and Order dated February 11, 2022
(

).°’ The Hiils have included a redline copy of their proposed Second Amended
Counterclaim and a copy of their new counterclaim with their Motion as required by Rule 15. The
amended changes do not drastically alter the prior First Amended Counterclaim, which already
survived scrutiny from a motion to dismiss. The amended changes are largely either minor
technical changes (e.g., title changes, renumbering) or reflect the new legal theory supported by
the text exchange between Gary Hill and Coffelt without drastically altering the underlying
supporting facts. The Court will grant the Hills’ Motion and allow the amendments.

IV. CONCLUSION

432 On May 22, 2020, Bluewater initiated suit against the Hills to foreclose on a construction
lien. On July 19, 2022, the Court issued a First Amended Scheduling Order granting leave for the
parties to amend their pleadings up to (and including) August 1, 2022. The Hills aver that they
seek to amend their First Amended Counterclaim to integrate information unearthed during
discovery as well as to incorporate the Court’s February 11, 2022 Memorandum Opinion and
Order (

).

®? Namely, reclassifying the counterclaim of “Restitution” as “Unjust Enrichment.”
Bluewater Construction, inc. v. Gary Hill and Wanda Hiil 

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433 The Hills’ amendments add factual allegations relating to their leasing of scaffolding;
clarify dates in their Conversion claim; add a new count of “Breach of Contract, or in the
alternative, Negligence”; amends the Civil Conspiracy count; change the title of their “Restitution”
claim to “Unjust Enrichment”; renumber their counts; and amend the caption and relief section to
reflect the new changes. A redline copy of the previous Counterclaim and a clean version of the
new Counterclaim were attached.

934 Bluewater and Coffelt argue that the Hills’ Motion should be denied, as the new
information unearthed during discovery was a text conversation between Gary Hill and Coffelt
authorizing Coffelt to use the scaffolding, and this conversation was available to the Hills
throughout this case. Counterclaim Defendants argue that the Hills have failed to adequately
explain their failure to disclose this conversation and, as a result, the Court should assume the Hills
failure to disclose the text messages earlier was made in bad faith for tactical purposes, prejudicing
Bluewater and Coffelt, and causing undue delay. The Hills allege that they were unaware of the
exchange because of Gary Hill’s age and tendency to delete text messages.

(35 Even with the assumption that the Hills acted in bad faith to prejudice Bluewater and
Coffelt, the Court finds that denial of the Motion to amend is not appropriate given this
jurisdiction’s liberal amendment policy and the facts of this case, namely that both parties were
aware or should have been aware of the text exchange, the Court had specifically allowed for
amendments in its scheduling order, and the damage to Counterclaim Defendants is wasted time
and money which can be addressed by their concurrently filed Motion For Sanctions. Accordingly,
it is hereby

ORDERED that Defendants Gary Hill and Wanda Hill’s Motion For Leave To Amend
First Amended Counterclaim, filed August 1, 2022, is GRANTED; and it is further

ORDERED that the Second Amended Counterclaim of Gary and Wanda Hill, filed August
1, 2022, is APPROVED and DEEMED FILED as of August 1, 2022; and it is further

ORDERED that, on or before October 25, 2022, Defendants Gary Hill and Wanda Hill
shall, in accordance with V.I. R. Civ. P. 15-l(c), file and serve their Second Amended
Counterclaim on Counter-Defendants Bluewater Construction, Inc. and Tony Coffelt; and

ORDERED that, on or before October 25, 2022, Defendants/Counterclaim Plaintiff
Gary Hill and Wanda Hill shall file and serve their Second Amended Counterclaim on Bluewater
Construction, Inc., Tony Coffelt, and Springboard, LLC in care of their counsel of record; and it
is further

ORDERED that Counterclaim Defendants shall respond to Defendants/Counterclaim
Plaintiffs Gary Hill and Wanda Hill’s Second Amended Counterclaim within twenty (20) days
after service thereof; and it is further
Biuewater Construction, Inc. v. Gary Hill and Wanda Hiil 

Case No. ST-2020-CV-00212

Memorandum Opinion and Order

Page 12 of 12

ORDERED that a copy of this Memorandum Opinion and Order shall be directed to
counsel of record.

DATED: October [3, 2022 Ae OALUNO _

DENISE M. FRANCOIS
Judge of the Superior Court of the Virgin Islands

ATTEST:

TAMARA CHARLES
Clerk of the Court

oO MACHO
Court a ff ll) i 4 20 97