Island Green, LLC v. Carmen Querrard ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-2265
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ISLAND GREEN, LLC,
Appellant
v.
CARMEN BRYAN QUERRARD, Individually and as
Executrix of the Estate of Joseph A. Bryan;
CARMEN BRYAN QUERRARD, Executrix;
JOSEPH FREDERICK BRYAN; NOREEN BRYAN ESANNASON;
VICTOR MELVIN BRYAN; EDMUND ALBERRY BRYAN;
LUCILLE PEGGY CAPAZOLLI; LEROY JAMES BRYAN;
BEVERLY EDRIS BRYAN KOLET; TERRY MARY BRYAN LENGA;
CLEMENT IVAN BRYAN; ETHEL LORETTA BRYAN;
WILLIAM BILLY BRYAN; FRANCIS BRYAN
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Appeal from the District Court
of the U.S. Virgin Islands
(D.C. Civil No. 3-09-cv-00050)
District Judge: Honorable Lawrence F. Stengel
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Argued April 12, 2011
Before: SCIRICA, RENDELL and AMBRO, Circuit Judges
(Filed: April 21, 2011)
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Simone R. D. Francis, Esq. [ARGUED]
Ogletree, Deakins, Nash, Smoak & Stewart
1336 Beltjen Road, Suite 201
St. Thomas, VI 00802
Counsel for Appellant
Stefan B. Herpel, Esq. [ARGUED]
Dudley, Toper & Feuerzeig
1000 Frederiksberg Gade
P.O. Box 756
St. Thomas, VI 00804
Counsel for Appellees
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
This matter comes before us on appeal from the District Court’s dismissal of
Island Green, LLC’s complaint. The District Court ruled that Island Green’s complaint
failed to comply with the procedural requirements of the Virgin Islands Probate Code and
was prematurely filed in light of the provisions of the Code requiring notice to an estate
of the nature of a claim and an opportunity for the Probate Court to consider and rule on
the claim. To the extent that the complaint sets forth claims against the Estate of Joseph
A. Bryan, or persons acting on its behalf – namely, the Executrix of the Estate, Carmen
Querrard – the District Court’s opinion and order will be affirmed. However, to the
extent the complaint asserts claims against other persons or entities, we will vacate and
remand for further proceedings consistent with this opinion.
As we write for the parties, we will not recount either the history of the numerous
land transactions that pertain to the grant and continued existence of an easement over
Parcel No. 3,1 purportedly held by the Bryan Estate, or the complaint’s allegations as to
1
Over time, this easement has also been referred to as “Easement A” and “Easement A
on the Eastern Half of Inner Brass Island as depicted on OLG Map No. D9-7748-4006.
In early conveyances, “Parcel No. 2” was referred to as “Parcel 1-1.”
2
the wrongs inflicted upon Island Green by the many named Defendants including Carmen
Querrard as executrix.
Curiously, the Estate is not a named Defendant, but we conclude, as did the
District Court, that the allegations made against Querrard, and others, when acting on
behalf of, or as representative of, the Estate, set forth claims against the Estate which
should have been presented first to the executrix as part of the Probate Court’s
proceedings. Clearly, the claims seeking to nullify the easement and enjoin its
enforcement fall into that category. Accordingly, Counts I and II2 were properly
dismissed by the District Court.
However, the complaint also sets forth many additional claims for relief, naming
“the Defendants”3 generally, and, in some instances, Ethel Bryan specifically,
individually, or as “representative,” as having committed the objectionable acts.4 We
cannot determine from the pleadings precisely who is alleged to have done what. For
2
Count I sought a declaratory judgment that there is no easement across Parcel No. 3
for the benefit of Parcel No. 2. Count II sought injunctive relief, claiming that Island
Green is entitled to an order permanently enjoining defendants from recording any
documents claiming any rights to an easement across Parcel No. 3 for the benefit of
Parcel No. 2.
3
The “Defendants” named in the complaint are: Carmen Theresa Bryan Querrard,
Individually and as the Executrix of Joseph A. Bryan, Joseph Frederick Bryan, Esannon
Noreen Bryan, Victor Melvin Bryan, Edmund Albertty Bryan, Lucille Peggy Bryan
Capozzoli, Leroy James Bryan, Beverly Edris Bryan Kolet, Terry Mary Bryan Lenga,
Ivan Clement Bryan, Ethel Loretta Bryan, William Billy Bryan, and Francis Bryan.
4
The remainder of Island Green’s complaint alleged the following causes of action:
slander of title (Count III), Defamation (Count IV), Intentional Interference with
Business Relations (Count V), Abuse of Process (Count VI), Trespass and Trespass by
Injury to Trees, Timber and Shrubs (Count VII).
3
instance, in Count III, Island Green objects to the recordation of a map with the contested
easement designated as D9-7748-4006 and to the filing of a Notice of Interest against
Parcel No. 3, but complains that “[t]he actions of Defendants, and each of them, in
causing to be recorded various documents claiming the existence of an easement across
Parcel No. 3 constitute slander of title and abuse of process.” But what role did each of
the Defendants play in “causing” these instruments to be recorded? We are left without a
clue.
We must conclude that, to the extent the complaint sets forth acts of the “the
Defendants,” it fails to state a claim, for as noted by Defendants, it fails to state anything
that the numerous heirs did or did not do, other than receiving certain distributions from
the Estate. Further, Island Green has taken the position that it is not seeking
disgorgement. Thus, we are at a loss to define what role Island Green is contending the
Defendants other than Querrard and Ethel Bryan may have played. These allegations
cannot withstand Defendants’ motion to dismiss under Rule 12(b)(6).
Accordingly, the District Court should give Island Green the opportunity to amend
its pleadings and re-plead specifically what wrongful conduct was committed and by
whom. See Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave [to amend]
when justice so requires.”); Foman v. Davis, 371 U.S. 178, 182 (1962) (“If the underlying
facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he
ought to be afforded an opportunity to test his claim on the merits.”); Newark Branch,
NAACP v. Town of Harrison, New Jersey, 907 F.2d 1408, 1417 (3d Cir. 1990) (“[C]ourts
have held that grants for leave to amend complaints should be routinely granted to
4
plaintiffs, even after judgments of dismissal have been entered against them, if the
appropriate standard for leave to amend under Fed. R. Civ. P. 15(a) is satisfied.”);
Mittleman v. Untied States, 104 F.3d 410, 417 (D.C. Cir. 1997) (sua sponte remanding
case to district court with instructions to allow plaintiff to “refine” negligence and
emotional distress claims). If the “actor” at fault in each alleged act was really the Estate,
then those claims, too, should have been presented first to the executrix in the Probate
Court.5 All of the remaining counts – besides Counts I and II – suffer from this infirmity,
as it cannot be determined which of the “Defendants” – a group which, as noted above,
could include persons acting on behalf of the Estate – Island Green contends committed
the act in question and which specific acts were committed by each.
In their motion to dismiss, Defendants also urged that, as to defendants other than
the Estate, Island Green’s complaint is deficient and subject to dismissal under Rule 19 of
the Federal Rules of Civil Procedure because the Estate is a necessary, if not
indispensable, party. We do not take a position on this basis for dismissal, but the
District Court may consider it on remand.
For the reasons stated above, we will affirm the District Court’s dismissal of
Island Green’s claims against Carmen Querrard and the other Defendants acting on
behalf of the Estate, but we will vacate the District Court’s order dismissing the
plaintiff’s claims as to the Defendants and entities acting in other capacities, and remand
with instruction that the District Court grant plaintiff leave to amend its complaint.
5
It is noted that Ethel Bryan is alleged to have acted “as a representative of
Defendants.” Was she thus acting as a representative of the estate, or of individual heirs?
5