FOR PUBLICATION



IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX



ANITA DAVID, )

Plaintiff, ) CASE NO. SX-13-CV-036

VS. )

) ACTION FOR EVICTION AND

BERT SCOTLAND ) RESTITUTION OF PREMISES

Defendant.

MEMORANDUM OPINION



THIS MATTER is before the Court on Plaintiff's Motion for Summary Judgment, filed

August 22, 2013, and Plaintiff's Motion to Deem Conceded Plaintiff's Motion for Summary

Judgment, filed September 9, 2013. Neither motion is opposed by Defendant. Plaintiff's Motion for

Summary Judgment was not accompanied by a “separate statement of the material facts about

which the movant contends there is no genuine issue” as required by LRCi 56.1(a)(1). Nonetheless,

the motion itself sets forth material facts sufficient to grant the relief sought, which facts have not

been contested by Defendant.'



The background and procedural history of this case were outlined in detail in the Court’s

June 17, 2013 Order granting Plaintiff's Motion to Enforce the Settlement Agreement. As such, no

further description will be presented here.



DISCUSSION

A moving party will prevail on a motion for summary judgment where the record shows that



there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of



law. FED. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). The reviewing



' In addition, the Court is also in receipt of a letter from Plaintiff Anita David dated December 11, 2013, received

December 12, 2013, which confirms her counsel’s filing in alleging that “Mr. Scotland has never paid one cent to me in

rent in all these years.” Plaintiff's letter is not considered as part of the proofs before the Court as a litigant represented

by counsel lacks the right to submit pro se filings with the Court. See Simmonds v. People, Crim. No. 12-074, 2013 WL

4404592, at *12 (V.1. August 13, 2013).

David v. Scotland SX-13-CV-036

MEMORANDUM OPINION

Page 2 of 6



court must determine whether there exists a dispute as to a material fact, the determination of which

will affect the outcome of the action under the applicable law. Anderson v. Liberty Lobby, Inc., 477

USS. 242, 248 (1986). Such a dispute is genuine if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party. Jd. In analyzing the evidence, the court must consider the

pleadings and full factual record, drawing all justifiable inferences in favor of the nonmoving party,

to determine whether the movant has met its burden of showing that there is no genuine issue of

material fact in dispute. Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 587

(1986). A party opposing a motion for summary judgment may not rest upon the allegations or

denials within its pleadings, but must set forth specific facts showing there is a genuine issue for

trial, such that the jury or judge as fact finder could reasonably find for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. at 248.



The record shows that there are no genuine issues of material fact in dispute. Defendant has

not contested Plaintiff's recitation of facts and has offered no alternative version of the factual

record. Finding no issues of material fact in dispute, the Court will determine whether Plaintiff is

entitled to judgment as a matter of law.



Breach of Settlement Agreement.



To prevail on a breach of contract claim, a plaintiff is required to “prove that there was 1) an

agreement, 2) a duty created by that agreement, 3) a breach of that duty, and 4) damages.” Davis v.



Ragster, 49 V.I. 932, 941 (D.V.I. 2008) (citing Stallworth Timber Co. v. Triad Bldg. Supply, 968 F.



Supp. 279, 282 (D.V.I. App. Div. 1997)).



‘Thts Court 1s to consider three tactare when deriAineg whath ne én ne ne

David v. Scotland SX-13-CV-036

MEMORANDUM OPINION

Page 6 of 6



verified proof establishes that Defendant has violated the terms of the Lease by failing to pay rent

since April 2001 and by recording an altered version of the Lease against the subject property.



The Lease states in Section XIX that the Tenant shall be in default when “the rent... is not

paid when due and such breach is not cured within thirty (30) days after the effective date of written

notice from Landlord to Tennant.” Lease, at 8. Through counsel, Plaintiff provided written notice of

default to Defendant by letter of January 8, 2013. Verified Complaint, Exhibit 2. After thirty (30)

days, Defendant had neither vacated the premises nor cured the defaults. As such, Plaintiff filed her

action for eviction and restitution of premises by her Verified Complaint, seeking remedies

available under the Lease in the event of Defendant’s default, including to “[t]erminate this Lease,

in which event Tenant shall immediately surrender the premises to Landlord.” Verified Complaint,

at 2; Lease, at 9.



Plaintiff and Defendant entered into the February 21, 2001 Lease by which Defendant, as

Tenant, was required to, among other things, pay rent to Plaintiff in the amount of $300 per month.

Defendant has breached the Lease with Plaintiff by failing to pay rent, and Plaintiff is entitled to

entry of judgment as a matter of law awarding restitution of the premises pursuant to the terms of

the Lease. An Order will enter contemporaneously herewith consistent with the terms of this



Memorandum Opinion.



February 5 , 2014 EL.)



DOUGLAS A. BRADY /



Judge of the Superior C



ATTEST:

ESTRELLA GEORGE

David v. Scotland SX-13-CV-036

MEMORANDUM OPINION

Page 3 of 6



By its June 17, 2013 Order, the Court determined that the March 5, 2013 Settlement

Agreement between Plaintiff and Defendant (“Agreement”) is a legally binding contract.” Without

contradiction, Plaintiff has stated that Defendant has refused to abide by the terms of the Agreement

and to execute necessary documents pursuant to the Agreement. The Court takes judicial notice that

the February 21, 2001 Lease, recorded by Defendant on June 19, 2008 (P.C. 1148, page 300,

document no. 2008003070), remains of record confirming that Defendant has failed to release any

liens or encumbrances from Plaintiff's property as required by the terms of the Agreement. In light

of Defendant’s failure to perform under the Agreement, Defendant has breached the Agreement

entitling Plaintiff to available remedies.



“The plaintiff entitled to a remedy for material breach or repudiation potentially chooses

between damages, specific performance, and rescission, electing the remedy that promises the most

favorable recovery at the lowest cost.” RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST



ENRICHMENT §37 (2011), Comment a.”



2 “The agreement achieved by the parties was memorialized by a handwritten Settlement Agreement (“Agreement”)



signed by both parties. The terms of the Agreement are summarized as follows: Plaintiff will sell to Defendant one-half

(1/2) acre of land for the sum of $65,000, to be subdivided from Remainder Plot 4L Estate Sion Farm, St. Croix,

beginning from a point at the northeastern boundary of Plot 4LA Sion Farm and extending to Plot 4L1 Sion Farm.

Defendant will pay costs necessary to subdivide the property, using his best efforts to accomplish the subdivision within

forty-five (45) days from the date of the Agreement. Further, by the terms of the Agreement Defendant agreed to

surrender the February 1, 2001[sic] Lease, to execute a Release of Interest in Lease and to release any other liens or

encumbrances from Plot 4LA and/or Remainder Plot 4L Estate Sion Farm by March 12, 2013.The purchase and sale

transaction was to close within sixty (60) days after the date of the Agreement, with an extension if needed for

Defendant to complete the subdivision of the property. Plaintiff was to bear the costs of preparing the deed, obtaining

the tax clearance letter, paying the surveyor attest fees and stamp taxes. Plaintiff agreed to waive all past due rents on

the Lease dated February 21, 2001. The parties agreed to file a stipulation to dismiss the forcible entry and detainer

action by March 12, 2013, and to execute an agreement relative to the sale and purchase of the one-half (1/2) acre by the

same date. Each party would bear her/his own costs and attorney’s fees.” Order, SX-13-CV-036, June 17, 2013.



3 The Restatements of the Law as promulgated by the American Law Institute no longer constitute binding authority,

notwithstanding the provisions of 1 V.I.C. §4, which was implicitly repealed by the Legislature’s adoption of 4 V.LC.

§21, establishing the Supreme Court of the Virgin Islands as the repository of “the supreme judicial power of the

Territory.” See Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 978-80 (V.I. 2011); Simon v. Joseph, 2013 WL

4854776, at *6 (V.I. September 11, 2013).



This Court is to consider three factors when deciding whether to apply a provision of the Restatement as the applicable

standard for an issue in dispute: “(1) whether any Virgin Islands courts have previously adopted a particular rule; (2) the

David v. Scotland SX-13-CV-036

MEMORANDUM OPINION

Page 4 of 6



Normally, “damages for breach of contract have been limited to the non-breaching parties’

expectation interest.” Mendez v. Coastal Systems Development, Inc., 2008 WL 2149373*14 n. 15

(D.V.I. May 20, 2008). The purpose of an award of damages in the amount of the plaintiffs

expectation interest, also known as expectation damages, is “to place the non-breaching party in as

satisfactory a position as she would have occupied had the other party performed as promised.”

RESTATEMENT (SECOND) OF CONTRACTS § 344(a) (1981).



In this case, however, Plaintiff does not seek to recover damages, nor does she seek a

judgment requiring Defendant to specifically perform the Agreement.’ Rather, she seeks restitution

of her property, claiming that she “is entitled to her property free of liens of encumbrances and

defendant evicted from the premises.” Motion for Summary Judgment, at 5.



Except in cases where a defendant’s obligation is exclusively to pay money, a plaintiff may

recover for the defendant’s material breach by a judgment of rescission instead of damages or

specific performance. RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT §37(1).°

Defendant’s breach in this case extends beyond an exclusive obligation to pay money, in that he



failed to release the liens he placed on Plaintiffs property, refused to sign a document relinquishing



position taken by a majority of courts from other jurisdictions; and (3) most importantly, which approach represents the

soundest rule for the Virgin Islands.” Jd., at *7, citing Matthew v. Herman, 56 V1. 674, 680-81 (V.I. 2012).



* Specific performance is available as a remedy for a breach of contract only if: (1) the terms of the contract are

sufficiently certain; (2) no adequate remedy at law exists for the breach; (3) the party seeking relief has materially

performed his obligations under the contract; and (4) the grant of such relief is not unfair, against public policy, or

otherwise inequitable. See RESTATEMENT (SECOND) OF CONTRACTS §§ 357, 359, 362, 364, 369.



> In analyzing the Banks factors in this case: (1) several Virgin Islands courts, including the Virgin Islands Supreme

Court, have relied on or adopted the RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT. See Walters v.

Parott, 58 V.1. 391 (V.L. 2013); Hall v. Hall, 2013 WL 4128465, at *6 (D.V.I. August 9, 2013); (2) this Restatement,

while relatively new, is widely cited throughout United States jurisprudence. See In re Processed Egg Products

Antitrust Litigation, 815 F. Supp. 2d 867, 932 n. 64 (E.D.Pa. 2012), Uzyel v. Kadisha, 188 Cal. App. 4th 866, 892

(2DCA 2010); and (3) the RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT represents the soundest

rule for the Virgin Islands as this work updates the previous RESTATEMENT OF RESTITUTION, published in 1937,

carrying forward well-developed common law principles of equity in cases in which the essence of a plaintiff's right and

remedy is the reversal of a transfer, and thus a literal restitution. See RESTATEMENT (THIRD) OF RESTITUTION AND

UNJUST ENRICHMENT, §1, Comment a. Nothing in Virgin Islands law contradicts the principles in this Restatement.

David v. Scotland SX-13-CV-036

MEMORANDUM OPINION

Page 5 of 6



his interest in the 2001 Lease, and failed to coordinate the subdivision of the property for the agreed

purchase and sale of a subdivided parcel of the property.



“Rescission is appropriate when the interests of justice are served by allowing the claimant

to reverse the challenged transaction instead of enforcing it.’ RESTATEMENT (THIRD) OF

RESTITUTION AND UNJUST ENRICHMENT §54(4). In the facts of this case, the interests of justice are

served by placing the parties back into their respective positions prior to the Settlement Agreement

forged outside Magistrate Gallivan’s courtroom on May 5, 2013. To the extent that Defendant has

incurred expenses or given consideration by partially performing the Agreement, facts that are not

now before the Court, rescission is nonetheless appropriate. Restatement §54(3) limits rescission to

cases which restore the defendant as well as the plaintiff to the status quo ante, unless “the fault of

the defendant... in the underlining transaction makes it equitable that defendant bear any

uncompensated costs.” Jd., at §54(3)(b). Because the failure of the Agreement was caused by the

nonperformance of Defendant, rescission is proper.



The interests of justice further mitigate in favor of granting rescission of the Agreement as

the parties themselves did not define in the Agreement their respective rights and obligations in the

event of default. Without a contractual default provision, it is impossible to ascertain the parties’

intentions in the event of the failure of performance of the Agreement by one of the parties. Justice

is best served by restoring the parties to their respective positions prior to the Agreement. As such,

the Agreement shall be rescinded and avoided, placing the parties in the status quo ante, that is as

Landlord and Tenant under the 2001 Lease.



Breach of February 21, 2001 Lease.



As noted above, Defendant has not contested any of the factual assertions of Plaintiff.



Specifically, as is noted in more detail in the Court’s Order entered June 17, 2013, Plaintiff's

David v. Scotland SX-13-CV-036

MEMORANDUM OPINION

Page 6 of 6



verified proof establishes that Defendant has violated the terms of the Lease by failing to pay rent

since April 2001 and by recording an altered version of the Lease against the subject property.



The Lease states in Section XIX that the Tenant shall be in default when “the rent... is not

paid when due and such breach is not cured within thirty (30) days after the effective date of written

notice from Landlord to Tennant.” Lease, at 8. Through counsel, Plaintiff provided written notice of

default to Defendant by letter of January 8, 2013. Verified Complaint, Exhibit 2. After thirty (30)

days, Defendant had neither vacated the premises nor cured the defaults. As such, Plaintiff filed her

action for eviction and restitution of premises by her Verified Complaint, seeking remedies

available under the Lease in the event of Defendant’s default, including to “[t]erminate this Lease,

in which event Tenant shall immediately surrender the premises to Landlord.” Verified Complaint,

at 2; Lease, at 9.



Plaintiff and Defendant entered into the February 21, 2001 Lease by which Defendant, as

Tenant, was required to, among other things, pay rent to Plaintiff in the amount of $300 per month.

Defendant has breached the Lease with Plaintiff by failing to pay rent, and Plaintiff is entitled to

entry of judgment as a matter of law awarding restitution of the premises pursuant to the terms of

the Lease. An Order will enter contemporaneously herewith consistent with the terms of this

Memorandum Opinion.



February 2, 2014 ELLA.



DOUGLAS A. BRADY /



Judge of the Superior C

ATTEST:



ESTRELLA GEORGE

Acting Clerk of the Court _