t t | in 1 | | 1 IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS DIVISION OF 8ST. CROIX NOT FOR PUBLICATION NOT FOR BULLETIN BOARD G. LUZ A. JAMES, ) Plaintiff, ) CIVIL NO. 112/1994 ) vs. ) ACTION FOR ACCOUNTING ) AND DEBT TONY AYER, ) Defendant. ) ) G. LUZ A. JAMES, ESQ. P. O. Box 3279 Christiansted, st. Croix U. S&S. Virgin Islands 00822 (Pro Se) AMELIA HEADLEY LaMONT, ESQ. HEADLEY LAMONT & MARSHACK, P.C. P. O. Box 1690 Kingshill, st. Croix U. 8S. Virgin Islands 00851 (Attorney for Defendant) MEMORANDUM. OPINION AND ORDER (April /G_, 1996) THIS MATTER is before the Court on defendant's motion to dismiss for failure to state a claim upon which relief can be granted and for summary judgment, and plaintiff's opposition thereto. For the following reasons, defendant's motion to dismiss and for summary judgment will be granted. FACTS This action for accounting and debt arose out of a previous Territorial Court action entitled Christian Hendricks vs. JAMES v. AYER CIVIL NO. 112/1994 ACTION FOR ACCOUNTING & DEBT ORDER PAGE 2 G. Luz A. James _ and Ann Abramson, Civil No. 905/1989 and an appeal to the District Court bearing the same caption, App. No. 1991/0049. In the previous action before the Territorial Court, plaintiff/appellee Christian Hendricks (“Hendricks”) brought suit to recover excessive fees charged by defendant/appellant G. Luz A. James (“James”) in a real estate transaction. The trial court found James liable to Hendricks for compensatory damages in the sum of $43,500.00 plus attorney's fees. On appeal, a three judge panel affirmed the Territorial Court decision. G. Luz A. James has now initiated this suit against defendant Tony Ayer (“Ayer”) to recover the $15,000.00 paid to Ayer as his one-half (4) share of the realtor’s commission in the sale of the property belonging to Christian Hendricks and Ann Abramson. ! 1 plaintiff's Complaint alleges: [1] That by letter dated July 14, 1988, Defendant held an exclusive on Plot No. 83 Estate Two Brothers, Frederiksted, St. Croix, U. S. Virgin Islands, [and] agreed to co-broke with Plaintiff who found the buyer. [2] That Defendant’s Exclusive on said property terminated before the actual sale took place. [3] That Plaintiff did deliver to Defendant a First Pennsylvania Bank cashier check No. 191953 dated July 15, 1988 for the sum of FIFTEEN THOUSAND DOLLARS ($15,000.00) which represented his one-half (%) share of the Realtor’s Commission. [4] That an Order of the Judge of the Territorial Court of the Virgin Islands, dated January 2, 1991, ordered that certain monies paid by Plaintiff to the Defendant be returned to the Court and be paid to the Plaintiff in the case of Hendricks vs. Abramson and James - Civil No. 905/89. .. . [5] That since January 2, 1991, to present date said funds plus and attorney's fees accrued interest at the rate of nine percent (9%0 per annum in the sum of FOUR THOUSAND FOUR HUNDRED TWENTY FIVE DOLLARS and FORTY FOUR CENTS ($4,425.44) as of January 2, 1994. JAMES v. AYER CIVIL NO. 112/1994 ACTION FOR ACCOUNTING & DEBT ORDER PAGE 3 James contends that the January 2, 1991 Order of the Territorial Court directing him to pay Hendricks the sum of $43,500.00 in compensatory damages, is, in essence, and order for Ayer to return the $15,000.00 in brokerage fees paid to him by James. James argues that the money paid to Ayer is necessary in order that the judgment in favor of Hendricks may be satisfied. Defendant Ayer denies that he owes plaintiff any money and states that Attorney James is the individual directed by the Court to pay the $43,500.00 to Christian Hendricks. Defendant moves for summary judgment on grounds that there are no genuine issues of material fact and that plaintiff cannot prove facts in support of his clain.? DISCUSSION A. FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED As a general rule of pleading, a complaint must contain “a short and plain statement of the claim showing that the [6] That the total amount to be returned by Defendant to Plaintiff amounts to NINETEEN THOUSAND FOUR HUNDRED TWENTY FIVE DOLLARS and FORTY FOUR CENTS ($19,425.44). [7] That despite several notices sent to Defendant, the Defendant has refused to comply although demands have been duly made thereof. ... [8] Wherefore, Plaintiff prays for judgment in favor of Plaintiff and against Defendant in the sum of NINETEEN THOUSAND TWENTY FIVE DOLLARS and FORTY FOUR CENTS ($19,425.44); together with interest and cost; and for such other and further relief as | the Court may deem just and proper. 2 Memorandum of Points and Authorities in Support of Defendant Tony Ayer’s Motion to Dismiss and for Summary Judgment at 4. JAMES v. AYER CIVIL NO. 112/1994 ACTION FOR ACCOUNTING & DEBT ORDER PAGE 4 pleader is entitled to relief.” F.R.Civ.P. 8(a)(2). Federal Rule of Civil Procedure 12(b)(6) allows for dismissal of an action for failure to state a claim upon which relief can be granted. The question to be considered in a Rule 12(b) (6) motion is “whether in the light most favorable to plaintiff, and with every doubt resolved in his behalf, the complaint states any valid claim for relief." 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (1990). Thus, “a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. In other words, dismissal is justified only when the allegations of the complaint itself clearly demonstrate that plaintiff does not have a claim.” Id. Plaintiff bases his entire complaint on defendant’s alleged obligation to return a $15,000.00 realtor’s commission pursuant to a January 2, 1991 Territorial Court Order. Neither the trial court nor the three judge appellate panel imposed any obligation to pay compensatory damages upon Mr. Ayer. Because this Court will look at matters outside the pleadings, namely the appellate opinion’? dated 3 Hendricks v. James and Abramson, App. No. 1991/0049 (1993). JAMES v. AYER CIVIL NO. 112/1994 ACTION FOR ACCOUNTING & DEBT ORDER PAGE 5 January 25, 1993, this Rule 12(b)(6) motion will be treated as one for summary judgment.‘ B. STANDARD FOR SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Therefore, the threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The non-moving party cannot create an issue of material fact through conjecture or speculation as to what evidence might be turned up by further discovery. Lappe v. Parker Brothers Division of General Mills Fun Group, Inc., 575 F.Supp. 44, 46 (N.D. Ill. 1983). Thus, if the non-movant’s evidence is merely “colorable” or “not significantly “4 Federal Rules of Civil Procedure 12(b) states that if, ona motion to dismiss asserting the defense of failure to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. JAMES v. AYER CIVIL NO. 112/1994 ACTION FOR ACCOUNTING & DEBT ORDER PAGE 6 probative,” the court may grant summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250 (1986). The court must view the evidence and all factual inferences therefrom in the light most favorable to the non-moving party. Adickes . v. S. H. Kress & Co., 398 U.S. 144 (1970). As defendant correctly asserts, the Territorial Court Order dated January 2, 1991 directs plaintiff James to pay $43,500.00 in compensatory damages to Hendricks. Nowhere within the four corners of that Order is there any mention of an obligation on the part of defendant, Tony Ayer, to return the realtor’s commission paid to him by James. The three judge appellate panel aptly noted that “James’ unexplained failure to record ‘Agreement I' against the property for over a year and a half constituted negligence. If Agreement I had been recorded in a timely fashion then the broker, Ayer, would have had record notice that Hendricks held the majority interest in the property, and thus would need to be a party to the exclusive agency agreement." James’ negligence in failing to timely record Agreement I evincing ownership of the property in question relieved Ayer of any fault or duty toward Mr. Hendricks. Both the trial court and appellate panel recognized Mr. Ayer's lack of culpability and held James solely liable for the damages to Mr. Hendricks. In sum, this 5 Christian Hendricks v. G. Luz A. James & Ann Abramson, App. No. 1991/0049 (1993). JAMES v. AYER CIVIL NO. 112/1994 ACTION FOR ACCOUNTING & DEBT ORDER PAGE 7 matter has already been litigated, and as correctly asserted by defendant, “there is no way that the Plaintiff can prove facts in support of his claim.” As such, defendant's motion for summary judgment will be granted. CONCLUSION In conclusion, defendant’s motion for summary judgment is | granted for the above-stated reasons. A M. BR Judge