USVI Public Records

Document text

IN THE TERRITORIAL CbuRT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX JULIA HODGE Plaintiff CIVIL NO. 74/1983 VS. ACTION FOR DEBT MAJOR MORRIS LEWIS Defendant Satine atlas allie safle nadie tale LOLITA da'JONES, ESQ. 46-47 Company Street #306 Christiansted, St. Croix U.S. Virgin Islands 00820 {Attorney for Plaintiff) WARREN N. WEAVER, ESQ. Whiteford, Taylor, Preston Trimble, & Johnston 2000 First Maryland Building 25 South Charles Street Baltimore, Maryland 21201 (Attorney for Defendant) MEMORANDUM OPINION AND ORDER (November 4; = 1985) This matter was tried without a jury on September 19, 1985. Plaintiff was represented by counsel Lolita d'Jones, Esq., and defendant was represented by Warren Weaver, Esq., who appeared pro hac vice. After having heard the testimony of the parties and being fully advised in the premises, the Court enters the following findings of facts: Plaintiff and defendant entered into a lease agreement on July 9, 1982 for the rental of a house at 6B Work & Rest, Christiansted, St. Croix. Pursuant to the lease, defendant C C Memorandum Opinion & Order Civil No. 74/1983 rented the plaintiff's house for $800.00 per month for a period of two years, commencing on August 9, 1982 and terminating on July 31, 1984. The agreement provided for a furnished house and utilities were not included in the monthly rent. Mrs. Hodge informed Mr. Lewis that Mr. Winston Hodge, plaintiff's ex-husband would be responsible for any and all repairs necessary for the maintenance of the house. Upon the Lewises' occupancy of the house, Mr. Hodge informed Mr. Lewis that he should contact him if any repairs were necessary. Furthermore, that in the event that Mr. Lewis was unable to contact Mr. Hodge, Mr. Lewis should get the repairs done and send the bill to Hodge. In addition to the rental agreement, the parties entered into an agreement for the purchase and sale of a car. Mr. Lewis agreed to buy Mrs. Hodge's 1975 Buick Regal for $1800. Mr. Lewis paid Mrs. Hodge only $1100, leaving a balance of $700 outstanding. The Lewises paid rent for the months of August, September and October, 1982. In November, 1982 Mrs. Lewis suffered a serious accident which required extensive medical treatment. In December, 1982 Mr. Lewis notified Mrs. Hodge that due to Mrs. Lewis' illness, they were required to leave the island on or about the end of January, 1983. Mrs. Hodge asked Mr. Lewis C C Memorandum Opinion & Order Civil No. 74/1983 to make every suitable effort to find another tenant and informed him that she would do likewise. Mrs. Lewis and the children left St. Croix in February, 1983. Mr. Lewis did not leave the island until March, 1983. Upon his departure, Mr. Lewis did not notify Mrs. Hodge that he was vacating the premises. Mrs. Hodge learned of Mr. Lewis' departure through communications with third parties. Before leaving St. Croix Mr. Lewis contacted the National Guard to arrange to have his personal goods moved back to the Mainland. Although the initial request was made in January, 1983, the National Guard had not processed Mr. Lewis' request by the time he left in March, 1983. Prior to leaving the island Mr. Lewis made arrangements to have the house checked periodically to insure that his goods were not stolen. Mrs. Hodge returned to St. Croix in late May, 1983. She did not go to the premises until the first week of June. She subsequently moved into the house in the latter part of the same month. Mrs. Hodge occupied the house for her own personal use until August, 1983. The National Guard contacted Continental Movers, Inc. in July, 1983 to make the necessary arrangements to have Mr. Lewis' property transferred to the States. Continental Movers in turn, contacted Mrs. Hodge to ascertain whether the property could be picked up and a convenient time to do so. C c Memorandum Opinion & Order Civil No. 74/1983 On or about July 28, 1983 Continental Movers moved Mr. Lewis' property from Mrs. Hodge's house. Mrs. Hodge was in the premises, and in her own words, “observed the movers to make sure that [her] property was not removed." While the movers were packing and putting the goods in the moving truck, Mrs. Gardine arrived at the house. She had a power~of-attorney given to her by Mr. Lewis, empowering her to supervise the moving to insure that all of Mr. Lewis' property was removed. Mrs. Hodge denied Mrs. Gardine entrance into the house, so Mrs. Gardine remained outside until the movers finished. On April 5, 1983 Mrs. Hodge obtained a pre-judgment Writ of Attachment in the Territorial Court of the Virgin Islands. Pursuant to said writ, the Territorial Marshals attached goods belonging to Mr. Lewis and valued at approximately $5,000. DISCUSSION A. Breach of Lease Agreement Plaintiff has sued the defendant for the rent accrued pursuant to the lease agreement entered into by the parties on July 9, 1982. The facts indicate that defendant ceased paying rent in November, 1982 and subsequently abandoned the leased property on or about March, 1983. Defendant claims that the reason he withheld rent starting in November is because Mrs. Hodge did not comply with the agreement by failing to make C C Memorandum Opinion & Order Civil No. 74/1983 certain repairs. However, the evidence shows that Mr. Hodge agreed to make all repairs necessary since this was his obligation under his divorce decree. Mr. Hodge had informed Mr. Lewis that he would arrange to have all repairs done. Mr. Lewis never notified Mr. Hodge of the alleged necessary repairs nor made any efforts to get the repairs done and bill Mr. Hodge as previously agreed. Therefore, Mr. Lewis cannot charge Mrs. Hodge with failing to comply with the lease agreement since the means to get the repairs done was available and Mr. Lewis failed to take the necessary steps. The failure to pay the rent due pursuant to a lease agreement constitutes a breach of such agreement. The landlord may recover from the tenant the amount of the rent due. RESTATEMENT (SECOND) OF PROPERTY §12.1 (1977). In addition, a tenant who abandons the lease premises is in default. An abandonment of property occurs when the tenant unjustifiably vacates the premises without intention of returning and defaults in the payment of rent. The tenant's obligation to pay rent does not end upon the abandonment, and, unless the landlord accepts the tenant's offer of surrender, thereby terminating the lease, the tenant remains liable until the term of the lease expires. supra. §12.1 Coens i. However, once the landlord accepts the tenant's offer of pe, ( Memorandum Opinion & Order Civil No. 74/1983 surrender, and terminates the lease, the tenant is liable only for the rent accrued before the acceptance and damages caused by the abandonment. In applying the above principles to the case at bar, this Court finds that Mrs. Hodge accepted Mr. Lewis' surrender of the premises in the latter part of June, 1983 when she took possession and occupied the property for her own purposes. The lease agreement was therefore terminated in June, 1983, making Mr. Lewis liable for the rent accrued from November, 1982 through June, 1983. Finally, although a landlord is entitled to recover for damages sustained as a result of the abandonment of a tenant, plaintiff, in her original complaint did not pray for any such damages. Furthermore, no amended complaint was ever filed. Thus, this Court will award plaintiff the rent accrued from November, 1982 to June, 1983, at a monthly rate of $800 per month, for a total of $6400. This Court will also award Plaintiff the $700 balance outstanding on the sale of her car to the defendant. B. Conversion Defendant has filed a counterclaim for conversion. Defendant alleges that Mrs. Hodge converted his personal goods for her own use. C ( Memorandum Opinion & Order Civil No. 74/1983 Any "wrongful exercise or assumption of authority over another's goods, depriving that person of possession" constitutes conversion. 18 AMERICAN JURISPRUDENCE 2d Conversion §26 (1964). In analyzing a claim for conversion, the trier of fact must determine whether the "actor has exercised such dominion and control over the chattel and has sO seriously interfered with the other's right to control," that in justice, the owner should recover the full value of the chattel. RESTATEMENT (SECOND) OF TORTS §222A (1977). The Restatement sets forth certain factors to be considered by a Court in determining whether conversion exists. The list of factors is not exclusive and no one factor is predominant. A Court must examine each case on the facts and circumstances established by the evidence. The factors are as follows: 1. extent and duration of actor's exercise of dominion; 2. actor's intent to assert a right inconsistent with the other's right to control; 3. actor's good faith; 4. extent and duration of resulting interference; 5. harm to chattel; and 6. inconvenience and expense to the other party. RESTATEMENT (SECOND) OF TORTS §222A. In applying these factors to the case at hand, this Court concludes that Mr. poe, C Memorandum Opinion & Order Civil No. 74/1983 Lewis has not established, by a preponderance of the evidence, that Mrs. Hodge converted his personal goods to her own use. Mrs. Hodge arrived in St. Croix in May, 1983 and did not visit the leased property until early June, 1983. She moved into the house at the end of June. If Mrs. Hodge exercise any dominion over the goods of Mr. Lewis, such dominion commenced when she moved into the house and continued until the property was moved by Continental Movers on or about July 28, 1983. The testimony shows, and this Court finds, that Mrs. Hodge did not remove any the the goods from the house nor did she deny Continental Movers access to her house to move the property. Mrs. Hodge exercised dominion simply because the goods remained in her house. The dominion she exercised did not interfere with Mr. Lewis' right to control. There is no evidence showing that she denied Mr. Lewis the right to get his property or deny Continental Movers the right to remove the property. When the property was being moved, the testimony indicates that Mrs. Hodge was present and took an interest to the extent that she wanted to insure that her property was not removed. The only evidence which tends to show an intent by Mrs. Hodge to assert a right inconsistent with Mr. Lewis' right to control his property is her denial of access to the house to Mrs. Gardine. Mr. Lewis gave Mrs. Gardine a power-of-attorney C C Memorandum Opinion & Order Civil No. 74/1983 empowering her to supervise the moving of his personal goods. Mrs. Hodge testified that she did not allow Mrs. Gardine to enter her house. However, Mrs. Hodge's unwillingness to allow Mrs. Gardine access to the house is not the exclusive evidence showing Mrs. Hodge's intent. This Court must take into consideration the fact that Mrs. Hodge never denied Continental Movers access to her house or the right to remove Mr. Lewis' property. To the contrary, she was very cooperative. The evidence as a whole shows that Mrs. Hodge did not intend to assert a right inconsistent with Mr. Lewis’ right to control his goods. It is uncontroverted that Mr. Lewis is missing very important and valuable property. The value of the property exceeds $21,000 and some of the property is invaluable to Mr. Lewis. His testimony is, and the evidence shows, that the property remained in Mrs. Hodge's house when Mr. Lewis abandoned the premises. However, defendant failed to show by a preponderance of the evidence that Mrs. Hodge exercised dominion and control, to his exclusion, over the chattel that he is missing. Therefore, this Court must dismiss defendant's counterclaim for conversion. DATED: this 2 | “day of November, 1985. >) : VHtr j C ff ben Raymond L. Finch, Judge