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NOT FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX SANDRA A. TYSON, Plaintiff, | SX-14-CV-003 Vv. ACTION FOR BREACH OF CONTRACT AND SPECIFIC JEAN MERIDITH WEBSTER, PERFORMANCE Defendant. MEMORANDUM OPINION THIS MATTER is before the Court on Defendant Jean Meridith Webster’s (hereinafter “Webster”) Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56(a)! filed on April 14, 2014. Plaintiff Sandra A. Tyson (hereinafter “Tyson”) did not file an opposition. For the reasons stated infra, the Court will deny Webster’s Motion. FACTS AND PROCEDURAL HISTORY In 2012, Webster and Tyson entered into a sales agreement (hereinafter “2012 Agreement”) for sale of Webster’s property to Tyson. The property (hereinafter “Property”) is described as Plot 179 (comprising 0.342 U.S. acres, more or less), Estate Sion Hill, Queen Quarter, St. Croix, U.S. Virgin Islands, as more particularly shown on OLG Drawing No. 2004, dated October 11, 1966. (Compl., Ex. 1,§A). The terms of the 2012 Agreement provide that the Property would be sold for eighty five thousand dollars ($85,000), which was contingent upon ’ Webster cites to Fed. R. Civ. P. 56 as the applicable rule for her Motion for Summary Judgment. However, in light Vanterpool v. Gov't of the V.1., “the Federal Rules of Civil Procedure... should be invoked only when a thorough review of applicable Virgin Islands statutes, Superior Court rules, and precedents from this Court reveals the absence of any other [applicable] procedure.” 2015 V.I. Supreme LEXIS 23,*16 (VI. 2015). Ergo, the Court will apply the standard of review set forth in the Supreme Court of the Virgin Islands precedents. Tyson v. Webster SX-14-CV-003 MEMORANDUM OPINION Tyson obtaining bank financing in the amount of sixty eight thousand dollars ($68,000) by December 1, 2012. (Compl., Ex. 1, fl, 21). The 2012 Agreement also allowed Tyson, if she was unable to secure bank financing, to pursue seller financing if the terms and conditions were mutually agreeable to both parties. (Def.’s Mot. for Sum. J. at 1). In conformity with the 2012 Agreement, Tyson paid an earnest money deposit in the sum of one thousand dollars ($1,000). Both parties signed the 2012 Agreement. (Compl., Ex. 1, 1, 21). About ten months after the 2012 Agreement was signed, Webster’s attorney informed her that the 2012 Agreement had expired? since Tyson failed to meet the conditions under the contract. (Def.’s Mot. for Sum. J. at 2). Webster returned Tyson’s first $1,000 earnest money deposit on September 20, 2013.3 (Def.’s Mot. for Sum. J. at 6). In October 2013, Tyson and Webster began negotiating Seller financing based on a 2013 Offer to Purchase. The purchase price of $85,000 remained the same, but the alleged terms of the 2013 Offer to Purchase were as follows: a down payment of $30,000.00; seller agrees to finance the balance of $55,000.00 over a period of five (5) years at 5% with a balloon payment of $46,977.53 due at the end of the period; monthly payments of $350.00; closing would take place on December 19, 2013. (Compl. $17). In an e-mail dated November 26, 2013, Webster’s attorney wrote the following: ? There was no term of expiration in the contract. It does not appear the Parties strictly adhered to the terms of the contract. According to the contract, the offer was open for acceptance until November 7, 2012. (Compl., Ex. 1, 49.2). Tyson accepted after the offer lapsed, on November 21, 2012 and Webster signed the contract on December 7, 2012. (Compl., Ex. 1, 421). Tyson had until December 1, 2012 to declare that the contract was null and void because she was unable to secure bank financing or close the transaction by having Webster finance the balance of the purchase price under terms and conditions mutually agreeable to both parties. Jd. 3 According to the 2012 Agreement, if Tyson defaulted through no fault of Webster, Webster as her sole and exclusive remedy may terminate this Agreement (subject to any other provisions hereof that expressly survive the termination of this Agreement) by giving Tyson written notice and receives the Earnest Money as full liquidated damages in full satisfaction of her claims against Tyson arising out of the Agreement. (Compl., Ex. 1, 9.2). Tyson v. Webster SX-14-CV-003 MEMORANDUM OPINION “Ms. Webster agrees with the following proposal: 5% interest rate with a monthly payment of $350.00 with a balloon payment at the end of five years. If your client agrees with the terms, I will incorporate them into the documents and prepare an amortization schedule. Let me know as soon as possible.” (Compl., Ex. 2). On December 13, 2013, Tyson submitted a second $1,000 earnest money deposit to Webster along with an undated Offer to Purchase Agreement (hereinafter “2013 Offer to Purchase”) signed only by Tyson. (Compl., Ex. 3). Webster accepted the second earnest money deposit even though she never signed the 2013 Offer to Purchase. Jd. On December 23, 2013, Webster’s attorney sent Tyson an e-mail stating that her offer to sell the Property was withdrawn and returned the second $1,000 earnest money deposit. On January 9, 2014, Tyson filed a Complaint alleging breach of contract and seeking specific performance. STANDARD OF REVIEW A motion for summary judgment shall be granted, if the record reflects that: (1) there are no genuine issues, (2) as to any material fact, and (3) the moving party is entitled to judgment as a matter of law.* Webster, the moving party, bears the initial burden of pointing out to the court that there is no genuine issue of material fact? —or in other words, an absence of evidence to support Tyson’s case.° ), The Court must review the facts in the light most favorable to the non- moving party.’ Tyson, the non-moving party, then has the burden of setting out specific facts showing a genuine issue for trial.? As to materiality, only those facts that “might affect the 4 Walters v. Walters, 60 V.I. 768, 794 (VI. 2014) (citing Burd v. Antilles Yachting Servs., 57 V.1. 354, 358 (VI. 2012)); Fed. R. Civ. P. 56(a). 5 See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). § Williams v. United Corp., 50 V.1. 191, 194 (VI. 2008) (citations omitted). 7 Celotex, supra. 8 FED. R. CIV. P. 56(e) (internal quotation marks omitted). Tyson v. Webster SX-14-CV-003 MEMORANDUM OPINION outcome of the suit under the governing law will properly preclude the entry of summary judgment.”® Webster’s burden as the summary judgment movant is not relieved because her Motion is uncontested. '° In such a situation, “the trial court may not accept as true the moving party’s itemization of undisputed facts; instead, the court must satisfy itself that the evidence in the summary judgment record supports this relief.”!! However, the court may not weigh the evidence or determine the credibility of witnesses.!2 Because summary judgment is a drastic remedy, it should be granted only when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that Webster is entitled to judgment as a matter of law.'? Webster is entitled to summary judgment if, after analyzing all the supporting materials, the Court concludes no reasonable trier of fact could find for Tyson." DISCUSSION There is no dispute that the 2012 Agreement was in fact a contract. Webster argues that she is entitled to summary judgment because the contract is unenforceable since the 2012 Agreement expired and she never accepted Plaintiff's 2013 Offer to Purchase. The two issues before the Court are (1) whether the 2012 Agreement was in fact terminated and (2) whether enforcement of the 2013 Offer to Purchase is precluded by the statute of frauds. Each issue will be addressed. ° Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). 10 Walters, 60 V.I. at 795 (citations omitted). ‘| Vanterpool at *30 (citing Martin v. Martin, 54 V.I. 379, 389 (V.I. 2010)). 2 Williams, 50 V.I. at 194-95. 8 Anthony v. FirstBank V.I., 58 V.1. 224, 228-29 (V.1. 2013) (internal quotation marks omitted). 4 Matsushita Elec. Indus., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Tyson v. Webster SX-14-CV-003 MEMORANDUM OPINION Webster’s first argument is that the 2012 Agreement is unenforceable because it expired. Upon careful review of the 2012 Agreement, no expiration date was provided in the contract. The 2012 Agreement could be terminated by Webster If the Closing fails to occur due to the default of Purchaser’> through no fault of the Seller, then Seller, as its sole and exclusive remedy, may terminate this Agreement (subject to any other provisions hereof that expressly survive the termination of this Agreement) by giving Purchaser written notice and receives the Earnest Money as full liquidated damages in full satisfaction of its claims against Purchaser, under, arising out of the Agreement. Seller and Purchaser agree that Seller’s damages resulting from Purchaser’s default are difficult, if not impossible, to determine and that the Earnest Money is a fair estimate of those damages which has been agreed to in an effort to cause the amount of the damages to be certain. In no event shall the Purchaser be liable to the Seller for punitive or consequential damages. (Compl., Ex. 1, §9.2)(emphasis added). Termination could also be effectuated by Tyson if she was unable to obtain a mortgage commitment by December 1, 2012. Buyer shall have the option of declaring in a notice in writing promptly delivered to other party that this contract is null and void, and all moneys paid on account of this contract shall be returned to the Buyer or closing this transactions [sic] by having Seller finance the balance of the purchase price under the terms and conditions mutually agreeable to both. (Compl., Ex. 1, § 21) (emphasis added). Under either provision, both Tyson and Webster were required to provide written notice in order to terminate the contract. The 2012 Agreement also contained express provisions as to the acceptable form of notice. According to the 2012 Agreement, in pertinent part, All notices, demands, or requests (collectively “Notice”) required or permitted to be given pursuant to this Agreement shall be in writing and shall be hand delivered or sent through the United States Postal Service by express mail or certified mail, return receipt requested to the parties at the following address. A notice may also be delivered to the party’s attorney, if any, representing such party in the transaction described herein. All Notices shall be deemed effective upon being hand delivered or if sent by mail, upon the date deposited with the United States Postal Service. ‘5 The Sales Agreement provides that Jean Meredith Webster is the Seller and Sandra Tyson is the Purchaser (the term Buyer is also used). Tyson v, Webster SX-14-CV-003 MEMORANDUM OPINION (Compl., Ex. 1, § 10). Upon careful review of the record, there is no evidence that either Tyson or Webster gave written notice that the 2012 Agreement was terminated. The e-mails between the Parties indicate that although the closing date had passed, and Webster knew that Tyson could not obtain a mortgage commitment, Tyson and Webster were trying to negotiate Seller financing—not terminate the contract. During these Seller financing negotiations, Webster accepted a second $1,000 Earnest Money Deposit from Tyson. (Compl., Ex. 3 at 5). Because there is no evidence that written notice of termination was given by either party, it is unclear whether the 2012 Agreement was in fact terminated. If the 2012 Agreement was not terminated, then Webster’s repudiation could constitute a breach of contract. Ergo, the Court finds that whether the 2012 Agreement was indeed terminated is a genuine issue of material fact. Webster’s second argument is that the 2013 Offer to Purchase is unenforceable according to the statute of frauds because she never signed the agreement. The statute of frauds requires contracts for the sale of land or an interest in land to be in writing or evidenced by a note or memorandum and that the contract, note, or memorandum be signed by the party to be charged or his lawful agent under written authority.!° Part performance takes the agreement out of the statute of frauds.'” Under the doctrine of part-performance, “[o]ne who has permitted another to perform acts or expend large amounts of money on the faith of a parol agreement, or who accepts the benefits of the other's part performance, or for which the party performing cannot be adequately compensated in damages, is not permitted to assert the statute of frauds to invalidate the agreement.”!® Construing the facts in the light most favorable to Tyson, there could be ‘6 Downing v. Fortuna Bay Estates, 17 V.1. 20, 1980 V.I. LEXIS 99 (V.I. Terr. Ct. 1980). 28 V.I.C. §§ 241, 242. 1” Henderson v. Resevic, 262 F. Supp. 36, 38 (D.V.I. 1967). Tyson v. Webster SX-14-CV-003 MEMORANDUM OPINION evidence of part performance. Although the court may not weigh the evidence or determine credibility,!? the record reflects that between October 2013 and December 2013 the Parties were negotiating the terms of the 2013 Offer to Purchase agreement. As mentioned supra, while negotiating the Seller financing in the 2013 Offer to Purchase agreement, Webster accepted Tyson’s second Earnest Money Deposit of $1,000 in a check dated December 13, 2013 and deposited it in escrow. Five days later, Webster’s attorney sends an e-mail stating that the 5% interest rate and $350 a month was incorporated into the owner financing agreement and mortgage documents, but they were waiting on feedback from Tyson’s attorney. Ten days later, on December 23, 2013, Webster’s attorney advises Tyson, by e-mail, that she is no longer interested in selling the Property. These facts show that part performance is a genuine issue of material fact. The Court notes that there is no record of what transpired between December 2012, when the 2012 Agreement was signed, and October 2013 when the parties were negotiating the Seller financing in the 2013 Offer to Purchase agreement. The missing materials showing what happened during that eleven month gap is germane to the issue of part performance “because it would be intolerable in equity” for Webster, to knowingly cause Tyson “to invest time, labor, and money in that land, upon the faith of a contract that did not exist.”2° Whether or not there was part performance is a genuine issue of material fact. Hence, these unexplained gaps in the '9 Williams, supra. 20 Henderson, supra. Tyson v. Webster SX-14-CV-003 MEMORANDUM OPINION materials submitted by Webster, which are pertinent to genuine issues of material fact, justify denial of her motion for summary judgment.?! CONCLUSION Based on the foregoing analysis, the Court shall deny Webster’s Motion for Summary Judgment. Webster could not meet her burden of showing that there is no genuine issue of material fact. There are genuine issues of material fact with respect to whether the 2012 Agreement was in fact terminated. Also, there are unexplained gaps in the materials submitted by Webster pertinent to the issue of part performance which could preclude Webster from availing herself of the statute of frauds in order to escape performance.”” Ergo, Webster is not entitled to judgment as a matter of law. An Order consistent with this Opinion will be entered by the Court. Dated: W-/2 iol | 4 ATTEST: PA KZ Estrella George HAROLD W. L. WILLOCKS Acting Clerk of the Court Administrative Judge of the Superior Court Deputy Clerk Dated: ial tet 2! Ingersoll-Rand Financial Corp. v. Anderson, 921 F.2d 497, 502 (3d Cir. 1990) (citations and internal quotation marks omitted). 22 Henderson, supra (internal quotation marks omitted).