EFTA00805272.pdf

IN THE SUPERIOR COURT OF THE VIRGIN ISLAND DIVISION OF ST. THOMAS & ST. JOHN GREAT St JIM, LLC Civil No. ST-I8-CV-29 Plaintiff, v. ACTION FOR ENFORCEMENT OF COVENANT, INJUNCTIVE CHRISTIAN KJAER in persona's:, & RELIEF, PRIVATE NUISANCE, PARCEL 11, ESTATE NAZARETH, ST. DIMINUTION OF VALUE, THOMAS, U.S. VIRGIN ISLANDS in rem, UNJUST ENRICHMENT & ACCOUNTING Defendants. MOTION TO DISMISS THE FIRST AMENDED COMPLAINT COMES NOW, Defendants Christian Kjaer ("Kjaer") in personam and Parcel II, Estate Nazareth, St. Thomas, U.S. Virgin Islands in rem ("Parcel 11") (collectively "Defendants"), by and through their undersigned counsel, and motion this honorable Court pursuant to Virgin Islands Rule of Civil Procedure Rules I2(b)(6) and 12(b)( I ) to dismiss the First Amended Complaint ("FAC") for failure to state a claim for which relief can be granted. Plaintiff Great St. Jim ("GS Jim") in the FAC seeks to enforce an alleged historical restrictive covenant that burdens Parcel II and also seeks related penalties and damages for an alleged violation of the alleged restrictive covenant. The FAC must be dismissed because, for the same reasons asserted in the Defendants' Motion to Dismiss ofthe original Complaint, there is no restrictive covenant burdening Parcel 11, moreover, any alleged claims are barred by the statute of limitations. The FAC is also fatally deficient in the alternative claim that there is an express or implied easement. The FAC is based on misstatements and fabrications that are unsupported by the public record. 1. Statement of the law for a motion to dismiss The Virgin Islands Rules of Civil Procedure mandates that "[a] pleading that states a claim EFTA00805272  Great St. Jim, LLC, v. Kjacr, el at. Motion to Dismiss the First Amended Complaint Page 2 for relief must contain []...a short and plain statement of the claim showing that the pleader is entitled to relief..." V.L. It Civ. P. 8(a)(2). Virgin Islands Rule of Civil Procedure 12(b)(6) enables a Court to dismiss a claim where the plaintiff "fails to state a claim upon which relief can be granted." V.I. R. Civ. P. !2(b)(6). According to the analysis employed by the Supreme Court of the Virgin Islands in reviewing motions to dismiss based on Rule I 2(b)(6): First, the court must take note of the elements a plaintiff must plead to state a claim so that the court is aware of each item the plaintiff must sufficiently plead. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. These conclusions can take the form of either legal conclusions couched as factual allegations or naked factual assertions devoid of further factual enhancement. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement ofrelief. If there are sufficient remaining facts that the court can draw a reasonable inference that the defendant is liable based on the elements noted in the first step, then the claim is plausible. Carter v. Univ. of the Virgin Islands, No. ST-16-CV-217, 2017 WL 3380533, at *1 (V.1. Super. July 31, 2017). The complaint must put the defendant on fair notice of the claims being brought against him or her. Finn v. Adams, No. ST-16-CV-752, 2018 WL 3756421, at *4 (V.I. Super. Aug. 6, 2018). A statute of limitations defense is an affirmative defense that must be raised in a defendant's first responsive pleading, which is frequently a motion for judgment on the pleadings, but in the interest of judicial economy, can be first raised in a motion to dismiss. Rennie v. Hess Oil Virgin Islands Corp., No. S.CT.CIV. 2014-0028, 2015 WL 525941, at *3 (V.1. Feb. 6, 2015). U. Brief Statement of Public Record Facts This Court is permitted to review the allegations in the complaint and matters of public record in reviewing a motion to dismiss. Finthank of Puerto Rico v. Prosser, No. SX-09-CV-520, 2015 WL 13579241, at *2 n. 3 (V.I. Super. June 22, 2015). EFTA00805273  Great St Jim, LLC, r Kjaer, el at Motion to Dismiss the First Amended Complaint Page 3 Public records submitted in support of Defendants' motion to dismiss show that GS Jim purchased Great St. James Island (the "Island") from Kjaer and GSJ Properties Corp. on January 28, 2016. See Exhibit 1, copy of recorded deeds Kjaer to Great St. Jim LLC and GSJ Properties Corp. to Great St. Jim LLC document numbers 2016000575 and 2016000576. Kjaer along with his siblings or sibling's heirs acquired ownership of the Island by adjudication of his late mother's estate in the Matter ofthe Estate ofKaren Elisabeth Kjaer a/kla Karen Lis Kjaer, Territorial Court of the Virgin Islands, ST-87-PB-43. Kjaer alone acquired ownership ofParcel I I from the adjudication. Id. Kjaer acquired parcel A of the Island. A copy of the Adjudication in the Matter of the Estate of Karen Elisabeth Kjaer a/k/a Karen Lis Kjaer, Territorial Court of the Virgin Islands, ST-87-PB-43 is attached as Exhibit 2. Helle Bundgaard and Steen Bundgaard acquired parcels B-I and B-2 of the Island from the adjudication. Id. On or about May I I, 2011, Helle Bundgaard and Steen Bundgaard sold parcels B-I and 8-2 of the Island to GSJ Properties Corp. ("GSJPC"). A copy of the Bundgaard deed to GSJPC, document no. 2011003242 is attached as Exhibit 6. Merete Emilie Furst acquired parcels C-1 and C-2 of the Island through the adjudication of Karen's estate. Ex. I. John Furst, Nina Furst and Kim Furst acquired parcels C-I and C-2 from their later mother (Merete Emilie Furst) by Executor's Deed on July 14, 2004. See copy of Executor's Deed, document no. 2004006268 attached as Exhibit 7. John Furst, Nina Furst and Kim Furst sold parcels C-1 and C-2 to GSJPC on January II, 2016. A copy of the Furst deed to GSJPC, document no. 2016000170 is attached as Exhibit 8. When Karen Elisabeth Kjaer ("Karen") purchased the Island in 1979, her deed did not contain the alleged restrictive covenant language. Attached is a copy of the deed from James A. Evans, Jr., William H. Evans and Cowpet Bay Corporation to Karen Lis Kjaer, recorded on EFTA00805274  Great St. lint. LLC, v. /gate, et at Motion to Dismiss the First Amended Complaint Page 4 October II, 1979. A copy of the 1979 deed is attached as Exhibit 3. III. The First Amended Complaint fails to allege grounds to sue Parcel 11 in rem As a preliminary matter Plaintiff's attempt at bringing an in rem action should be dismissed. An in rem action "'is one in which the judgment of the court determines the title to property and the rights of the parties, not merely as between themselves. but also as against all persons at any time dealing with them or with the property,' or 'res,"upon which the court had adjudicated.'" Black's Law Dictionary 864 (9th ed. 2009)". Bryan v. Fawkes, No. S.CT.CIV. 2014- 0066, 2014 WL 5409110, at *11 (V.1. Oct. 24, 2014). GS Jim cannot sue land in rem when seeking injunctive relief where title to the property is not in question. Whitlock v. Schoch, 173 Kart 43. 51-52, 244 P.2d 189, 194-95 (1952). ("This action was one purely for injunctive relief—to enjoin defendants from committing and maintaining the nuisances in violation of the restrictive covenants. Title to the property was in no way involved, and neither was it sought to bar any defendant from any interest therein. Only the use to which it was being put was in issue. The decree would be enforceable only against individuals—the defendants. The action was strictly one in personam, not in rem.") This Court lack in rem jurisdiction under Virgin Islands Rule 12(b)(I), which provides for a defense due to lack of subject-matter jurisdiction over the claim. GS Jim does not allege that the title to Parcel 11 is in question. The FAC alleges that Kjaer owns Parcel I I. FAC ¶ 2. The FAC does not question Kjaer's ownership. Therefore the in rem action in FAC must be dismissed as to Parcel II. IV. Enforcement of the historical covenant is barred by the statute of limitations A motion to dismiss for failure to state a claim based on a statute of limitations defense will succeed if the complaint does not allege when the tort or breach o f contract first occurred. See Charleswell v. Chase Manhattan Bank, N,A., 308 F. Supp. 2d 545, 563 (D.V.I. 2004). Here the EFTA00805275  Great St Jim, LLC, v. !gem): et Motion to Dismiss the First Amended Complaint Page 5 FAC must be dismissed because it fails to allege any facts to give notice on when the covenant or easement was first violated. Specific to Count I of the FAC, the deed from the Evans brothers to Karen Kjaer does not contain any restrictive covenant limiting the use of Parcel 11. Ex. 2. The deed also does not state that it is subject to any covenants or restrictions of record. Id. This means that all beneficiaries of the alleged covenant were put on notice on October I I, 1979. that the owners of Parcel 11 were eliminating the covenant. In the Virgin Islands the statute of limitations for a breach of contract is six years. 5 V.I.C. §31(3)(a). Courts consistently hold that the statute of limitations to enforce a restrictive covenant is the same as enforcing a contract. Country Estates Homeowners Ass'n. Inc. v. McMillan, 276 Mont. 100, 102, 915 P.2d 806, 808 (19%). This accordingly, that the statute of limitations expired on or about October 11, 1985. Occasionally some jurisdictions apply the statute of limitations for a sealed instrument to enforce a restrictive covenant, as a deed is a sealed instrument. Meadow Run/Mountain Lake Park Ass'n v Bantell, 985 A.2d 989, 992 (Pa. Commw. Ct. 2009). The statute of limitations starts when the deed restriction was violated. "An enforcement action accrues upon breach of the restrictive covenant." Girsh v. Sr. John, 218 S.W.3d 921, 925 (Tex. App. 2007). Any claims for altering of a restrictive covenant accrue when the amendment is publicly recorded. Silver Shells Corp. v. St. Maarten at Silver Shells Condo. Ass'n, Inc., 169 So. 3d 197, 201 (Fla. Dist. Ct. App. 2015). In the Virgin Islands the statute of limitations on a sealed instrument is twenty years. 5 V.I.C. §31(1)(c). If this Court were to use the statute of limitation for a sealed instrument, the statute of limitations to enforce the covenant would have run on or about October II, 1999. The statute of limitations does not restart simply because there is a new owner of Great St. James. See Hayes v. Virgin Islands, No. CIV. 1972-354, 1975 WL 400921, at *5 (D.V.I. Mar. 3, 1975) (subsequent transferee EFTA00805276  Great St. Jim, LIC t Icaer et al. Motion to Dismiss the First Amended Complaint Page 6 hold land with prior reservations); see In re Saturn L-Series Timing Chain Prod. Liab. Litig., No. 8:07CV298, 2008 WL 4866604. at *6 (D. Neb. Nov. 7. 2008) (resale of goods does not restart the statute of limitations as to the manufacturer.) The right to enforce a restrictive covenant must be timely enforced, and will be forever waived if not enforced. See Havensight Hills Estates Prop. °liners Ass'n. Inc. v. Bronco, No. CIV. 721/1993, 1999 WL 317124. at *2 (Tern V.I. Feb. 23. 1999) (finding that subdivision residents cannot enforce restrictive covenant where there was a long-standing common practice ofviolations of the restrictive covenant without complaint, the residents acquiesced in the practice). Here there is no allegation as to when the breach first occurred. It is not necessary for this Court to determine if the six year or twenty year statute of limitations applies in the Virgin Islands. Enforcement of the restrictive covenant lapsed no matter which statute of limitations applies. The FAC must be dismissed because the underlying deed restriction that is the basis on which all of GS Jim's claims are based fails because they are time barred. Additionally, it must be dismissed because GS Jim fails to allege when the breach of the deed restriction first occurred. The FAC rests on the enforcement of the restrictive covenant. Enforcement is barred by the statute of limitations therefore the FAC must be dismissed. There is no plausible possibility that GS Jim can recover. V. GS Jim is not the intended beneficiary of an historical deed restriction therefore it does not have standing to enforce the alleged restrictive covenant The alleged restrictive covenant relied upon in the FAC states on its face that it is for the benefit ofTrack I and track 2 owners. As explained more fully below, only intended beneficiaries have a right to enforcement. Incidental beneficiaries to the historical covenant such as Plaintiff do not have and never have had rights. Plaintiff's argument in this regard, is fabricated. GS Jim does not have standing to enforce the alleged historical covenant because it is not the intended EFTA00805277  Great St Jim. Ur, rit Icaer, et al. Motion to Dismiss the First Amended Complaint Page 7 beneficiary of the historical deed restriction. Paragraph 9 of the FAC states (with emphasis added) in part: It is understood and agreed that this conveyance is made and accepted upon the following covenants, conditions, restrictions and reservation which shall run with the land and which are made for the benefit of the present and future owner or owners of any lot or lots compromising premises known as Tracts Nos. I and 2, Estate Nazareth (Benners1No. 1 Red Hook Quarter, St. Thomas, V.I., as delineated on P.W.D. File No. F9-372-T59 viz: Map P.W.D. File No. F9-372-159 shows that Tracts Nos. I and 2 are in Estate Nazareth, Red Hook, and not on Great St. James Islands. Map P.W.D. File No. F9-372-T59 is attached as Exhibit 5. Using Parcel II to access the Island was not to benefit the island but to benefit the parcels that surrounded Parcel 11. The drafters of the covenant clearly knew how to identify a beneficiary, and specifically choose not to name the owners, occupants, licensees and invitees of Great St. James as the intended beneficiaries. The owners of Great St. James are not the intended beneficiary of the alleged restrictive covenant. "It is black-letter law that incidental beneficiaries have no enforceable rights under a contract." Francis v. Miller, No. CIV. 558/90, 1991 WL I 1818254, at *1 (Tern. V.I. Sept. 6, 1991). "While an intended beneficiary may recover under a contract, an incidental beneficiary, cannot. See In re Nat'l. Molding Co., 230 F.2d 69, 72 (3d Cir.1956) (noting that an incidental beneficiary does not have a right of action under a contract)" Banks v. IntlRental & Leasing Corp., No. CIV. 2002-200, 2008 WL 2149380, at *4 n. 5 (D.V.I. May 19, 2008). The owners of Tracts Nos. 1 and 2 are the only beneficial owners, NOT GS Jim. To determine who is the beneficiary of the covenant, you must look at the expressed intent of the parties who made the original covenant to see if "they intended by agreement to benefit the land held by the person seeking to enforce the agreement." Freeland Tr. v. Roach, No. CIV. 1063/1992, 1995 WL 815565, at *3 (Teri. V.I. Mar. 9, 1995). Here we are fortunate enough to EFTA00805278  Great Si. Jim, LLC. v. IQaer. et al. Motion to Dismiss the First Amended Complaint Page 8 have the contracting parties express intent clearly stated. They clearly intended to benefit the owners of Parcel 6 and 7 Estate Nazareth (a/k/a Tracks Nos. 1 and 2). While the alleged covenant allowed the owners of Great St. James to use the Parcel 11, they are not the expressed intended beneficiary. GS Jim has no rights to enforce the historical covenant. As GS Jim has not alleged ownership or an interest in Parcels 6 and 7 Estate Nazareth', GS Jim has no authority to enforce the alleged covenant. GS Jim does not have authority or standing to enforce the historical covenant because it was not the expressed intended beneficiary. Further, GS Jim appears to accept that it cannot enforce the covenant as it is now alleges that it has an implied easement. This component of Count I along with the other two components, expressed and implied easements, discussed in section VI below, are unenforceable. Count I of the FAC must be dismissed. VI. There is no implied or expressed easement for the use of Parcel I I related to Great St. James Island. GS Jim alleges that it has an implied easement for exclusive use of Parcel II because Parcel 11 was used as a staging ground for the Island in keeping with the covenant and because a permanent access point on St. Thomas is necessary to the owners and occupants o f the island. FAC ¶ 18. This alternative argument must be dismissed because the FAC does not give notice of key elements of an implied or expressed easement. a. There are no allegations to support a claim for an expressed easement and Count I must be dismissed Under Count I the FAC fails to allege any facts to support that there is an express easement. I In 1968 Reichhold sold Parcels 6 and 7 (Tracts Nos. I and 2) to the Government of the Virgin Islands ("GVI"). Ivanna Eudora Kean Senior Nigh School is now on one parcel. The Department of Fish and Wildlife is on the other parcel. The OW also leases some of the land for private marinas. EFTA00805279  Great St Jim, LLC, v. /Quer, et at Motion to Dismiss the First Amended Complaint Page 9 "[I]n analyzing an express easement courts are required to determine if the easement satisfies the Statute of Frauds pursuant to 28 V.I.C. 241, which requires a deed of conveyance or other instrument to be in writing." SBRMCOA, LLC v. Morehouse Real Estate Investments, LLC, No. ST-14-CV-138, 2015 WL 1206119, at *13 (V.1. Super. Mar. 12, 2015). Here the FAC does not allege any writing between GS Jim and Kjaer. Therefor there is no expressed easement. The alternative claim for an express easement must be dismissed because it fails to give notice of a written instrument 2. b. The FAC fails to give Defendants notice of the facts to support the creation of an implied easement Under Count I the FAC fails to give Defendants notice as to how the alleged implied easement was created by the sale of the Island. There is a general preference against encumbering real property by creating an easement therefore a plaintiff has a high burden to claim an implied easement. Brodburst v. Frazier, No. S CT CIV 2011-0003, 2012 WL 8123137, at •3 (V.1. Sept. 12, 2012). When Kjaer owned both Parcel A and Parcel II, any use of parcel 11 as a staging ground for Parcel A was simply a landowner using his land. Kjacr was not using an easement over his own land. By operation of law there was no easement when the Kjaers owned both Parcel 11 and the Island. When there is merger of ownership between a dominant and subservient parcel the easement merges and is extinguished. Auman v. Grimes, 364 Pa. Super. 243, 247, 527 A.2d 1045, 1047 (1987). Any easement that might have existed before the Evans' brothers or Karen Kjaer's 2 Under the merger doctrine when the dominate and subservient property enjoy unity ofownership the casement merges and is extinguished. Amon v. Grimes, 364 Pa. Super. 243. 247. 527 A.2d 1045, 1047 (1987). The 1965 Deed, which precedes Karen Kjaer's 1979 deed cannot act as the written instrument because when Karen Kjaer purchased Parcel 11 and the Island, any casement merged and was extinguished. EFTA00805280  Great St Jim, LLC, v. Kjaer, et at. Motion to Dismiss the First Amended Complaint Page 10 unified ownership of the Island and Parcel II merged and was extinguished. There is no allegation in the FAC that GSJPC, Helle Bundgaard, Steen Bundgaard, Merete Emilie Furst, John Furst, Nina Furst or Kim Furst ever used Parcel II to access the Island, let alone with any regularity. Kjaer did not own the entire Island. By operation of law if Kjaer used Parcel II to access Parcel A, he was not using an easement over his own property. Plaintiffs alternative argument that an implied easement exists is facially incorrect. There was no casement prior to the sale of the Island. The sale of the Parcel A did not create an easement over Parcel II to access the entire Island. Unity of ownership is a necessary element to create an casement. SBRMCOA. LLC v. Morehouse RealEstate Investments. LLC, No. ST-14-CV-I 38, 2015 WL 1206119, at *10 (V.1. Super. Mar. 12, 2015). The FAC does not and cannot allege that there was unity of ownership of the Island and Parcel II. Defendants do not have any notice as to how the alleged implied easement was created when there was no unity o f ownership ofthe two parcels. Therefor the alternative claim must be dismissed because Plaintiff will never meet the burden to create an easement. The FAC does not allege how Kjaer used Parcel I 1 prior to GS Jim purchasing the Island. While it does say Parcel 11 was used as a staging ground for the Island. It does not say who used it or that it was used exclusively as a staging ground. This noticeable careful word choice robs Kjaer of any notice on key elements of an implied easement — prior use and necessity. A plaintiff must prove that the "continuance of the prior use was reasonably necessary to enjoyment of the parcel, estate, or interest previously benefited by the use." Id. The FAC must be dismissed because there are no allegations in the FAC to give notice as to why Parcel II specifically is necessary to access the Island. There are numerous boat access points on St. Thomas, and several are near or adjacent to Parcel II. EFTA00805281  Great St Jim. LLC, v. Kjaer, et at Motion to Dismiss the First Amended Complaint Page II The FAC does not allege any facts to give notice that Kjaer intended to create an easement over Parcel 11 when he sold Parcel A. To form an implied easement there needs to be intent to create an encumbrance on the servient estate. Louis W. Epstein Family Pship v. Kmart Corp., 13 F.3d 762, 773 (3d Cir. 1994). Intent is very important in this case as GS Jim is not socking a right of way easement, but rather complete control of Parcel II. GS Jim wants to stop Kjaer from using Parcel I 1 in its entirety. It is illogical to assume that Kjaer intended to effectively give GS Jim an exclusive casement over Parcel II after GS Jim declined to purchase Parcel I I. It is even more illogical that Kjaer would intend to grant this exclusive easement while retaining the entire burden of taxes, utilities, insurance, securing the property and maintenance. The FAC offers nothing to show that Kjaer intended to act against commonsense and logic. The FAC must be dismissed because it fails to give Kjaer notice of his alleged intent to create an easement. Of note, Defendants cannot find any support in the law for the creation of an implied casement that grants the dominate land complete control and use of the subservient land. This is an obscene attempt at a private taking and a usurpation of the judicial process. In the Virgin Islands notice is a requirement to enforcing an unrecorded servitude. Brodhurst v. Frazier, No. S CT CIV 2011-0003, 2012 WL 8123137, at •4 (V.1. Sept. 12, 2012). There are no facts to support the allegation that Kjaer had notice of the formation of the alleged easement. The 1965 Deed cannot be a proxy for notice as any easement merged under Karen Kjaer's unity ofownership. Karen Kjaer's deed to Parcel I I did not contain the historical covenant and does not state that it is bound by covenants of restriction of record. The alternative argument that there was an implied easement created simply because Parcel I I may have been used as a staging ground for the Island must be dismissed because it does not give Kjaer any notice on the necessary elements ofprior use, necessity, intent, notice and unity of EFTA00805282  Great St. Jim, LLC t Kjaer, et at Motion to Dismiss the First Amended Complaint Page 12 ownership. VII. Count II alleging private nuisance claim must be dismissed Count II of FAC alleges a private nuisance. Defendants raised this argument in the motion to dismiss ofthe Complaint. The FAC still does not address how Kjaer is using Parcel 11 in a way that interferes with the Island. This claim fails as it is based on the same fauhy premise of Count 1, that GS Jim has an interest in Parcel 11. Count II also failed to allege facts to support a claim. Virgin Islands code states in part "[a]ny person whose property is affected by a private nuisance, or whose personal enjoyment thereof is in like manner thereby affected, may maintain an action for damages therefor." 28 V.I.C. § 331. The "soundest rule for the Virgin Islands is to define a private nuisance as a substantial and unreasonable nontrespassory interference with another's interest in the private use and enjoyment of land." Cifre v. Daas Enterprises, Inc., No. ST-2012- CV-701, 2015 WL 1912709, at *12 (V.1. Super. Apr. 24, 2015). For this to survive dismissal GS Jim would have to allege how Kjaer's use of Parcel I I interferes with GS Jim's use of the Island. While GS Jim states that Defendants use of Parcel I 1 violates the restrictive covenant, FAC fails to allege how the Defendants are using Parcel II. Without alleging how Parcel II is used there is no notice on how the use interferes with GS Jim's use of the Island. For this reason alone Count 11 must dismissed. VIII. There was no diminution of value of Great St. James In Count IV ofFAC GS Jim claims a diminution of value of the Island. This claim must be dismissed because it is not a cause of action but rather a form to measure damages for the alleged breach of the covenant and/or the express or implied easement. A diminution in value claim is subsumed by the tort claims. See DeSoto v. Condon, No. SACV085I4AHSMLGX, 2008 WL 11338151, at *6 (C.D. Cal. Oct. 3, 2008), ajj'd, 371 F. App'x 822 (9th Cir. 2010). Remedies are EFTA00805283  Great St. Jim, LLC, r. /goer, et al. Motion to Dismiss the First Amended Complaint Page 13 not a cause of action. Marian Y Fraser, No. ST-13-CV-549, 2014 WL 1239492, at •3, n. 22 (V.1. Super. Mar. 17, 2014). Count IV must be dismissed because it seeks a remedy and is not a separate cause of act ion. IX. Use of Parcel 11 does not unjustly enrich Kjaer As for Count V, unjust enrichment GS Jim once again seeks monetary damages even though FAC alleges that monetary damages are insignificant. Defendants raised this argument in the motion to dismiss of the Complaint. The FAC still does not assert a proper claim for unjust enrichment. The added irony of this claim is that if GS Jim succeeds it will be the ones unjustly enriched in that it might get to use Parcel II without any burden. In the Virgin Islands the elements of unjust enrichment are "(1) that the defendant was enriched, (2) that such enrichment was at the plaintiffs expense, (3) that the defendant had appreciation or knowledge of the benefit, and (4) that the circumstances were such that in equity or good conscience the defendant should return the money or property to the plaintiff." Walters v. Walters, No. S.CT.CIV. 2010-0040, 2014 WL 1681319, at *5 (V.I. Apr. 28, 2014). FAC fails to allege any facts to show how Kjaer used Parcel 11, how the use was at GS Jim's expense, and that Kjaer knew he was unjustly enriching himself. GS Jim never alleges it asked to use the property (it did not), begging the question how Kjaer can be enriched at GS Jim's expense when GS Jim never asked to use Parcel 11. FAC is void on any allegation how Kjaer knew about the deed restriction. The public record shows that historical covenant was not in the deed Karen received. The Claim for unjust enrichment must be dismissed because it fails to allege that Kjaer knew about the historical deed restriction or that GS Jim ever tried to use Parcel I I. EFTA00805284  Great St. Jim, LLC v. Kjaer, et al. Motion to Dismiss the First Amended Complaint Page 14 X. Conclusion This action is an impermissible attempt to use the Judiciary to take away Defendants real property without any remuneration. The FAC should be dismissed because the enforcement of the historical deed restriction is barred by the statute of limitations. The Plaintiffs are not the intended beneficiary; therefore they do not have standing to enforce the historical covenants. There is no implied or expressed easement that burdens Parcel II. Parcel 11 is not necessary to access the Island and the requested exclusive easement is extremely burdensome. The remaining claims must be dismissed because they stem from the time barred historical covenant. All of the alleged claims rely on the enforceability of the historical covenant. Unenforceability of the historical covenant requires that the entire FAC be dismissed. Based on the foregoing Defendants request that this Court dismiss FAC with prejudice, order that the Lis Pendens recorded against Parcel 11 be removed and award it costs. Dated: October ,1Z 5, 2018 Kevin . D'Amour, P.C. C Gaylin V VI Bar P.O. Box 10829 St. Thomas, VI 00801 EFTA00805285 Great St. Jim, LLC: v. 1Qaer, et at Motion to Dismiss the First Amended Complaint Page 15 CERTIFICATE OF SERVICE THIS IS TO CERTIFY that on this day of October, 2018, I caused a true and correct copy of the Motion to Dismiss the First Amended Complaint to be sent to the following via US Mail, postage prepaid. Christopher Allen Kroblin, Esq. Marjorie Whalen, Esq. Kellerhals Ferguson Kroblin PLLC Royal Palms Professional Building 9053 Estate Thomas, Suite 101 St. Thomas, VI 00802 EFTA00805286  WARRANTY DEED c THIS INDENTURE made the I D day of January. 2016 between Christian Kjaer a/k/a Paul Christian Tag:: Kjaer, do Kevin F. D'Amour. 5143 Palm Passage. Suites 18B and 198. St. Thomas. USVI 00802. (hereinafter the "Grantoral and Great St. Jim. LLC. a Virgin Islands Limited Liability Company. c/O Kellerhals Ferguson Kroblin PLLC, Royal Palms Professional Building. 905? Estate Thomas. Suite 101. Si. Thomas. VI 00802 (hereinafter referred to as "Grantee- a. WITNESSETH: That the Grantor, for and in consideration of the 'urn of SEVENTEEN MILLION FIVE HUNDRED THOUSAND and 00/100 DOLLARS (517,500.(100.00), paid by the Grantee. the receipt of which is hereby acknowledged. and other good and stainable consideration, does herchy grant and convey unto the Grantee, its successors and a‘sign%, in fee simple absolute forever! all of Ins right. title and interest in and to the following described real property. ...Apircel A Rem Great St. James Island reel A-I Great St. James Island Nn. 6A Red Hook Quarter o. 6A Red Hook Quarter St. Thomas. Virgin Islands St. Thomas. Virgin Islands As shown on PWD No. A9-626-1004 As shown on PWD No. A9•626:1004 Consisting of 56.1 U.S. Acres more or less Consisting of 4.2 U.S. Acres more 'Pr Itss ....49r cel A-2 Great St..lames Island No. 6A Red Hook Quarter St. Thomas, Virgin Islands As shown on PWD No. A9-626-T004 Consisting of 19.8 U.S. Acres more or less BEING THE SAME PREMISES which was conveyed to the Grantor by Final Adjudication of the Estate of Karen Elisabeth Kjaer a/k/a Karin Lis Kjaer dated October IS. 1987, recorded at the office of the Recorder of Deeds for St. Thomas and St. John on October 21. 1987. in Book No. 31-I). Page 54. Doe. No. 5090. TOGETHER WITH any improvements thereon. and the rights. privileges and appurtenances belonging thereto; Book: Pages: OM DocD281608$3575 Flied 0 Retarded 81/28/2016 ERICA DOVER, M.D.A. RECORDER or DEEDS ST THOMAS/ST JOHN RECORDING FEE .i,512.0? DEED DOC STAMP 3.5 b:2,588.00 PER PAGE FEE 5.08 1 ATTACHMNT FEE DEFENDANT'S EFTA00805287  027135 TO HAVE AND TO HOLD the premises conveyed hereby unto the Grantee. its successors and assigns. in fee simple absolute forever. SUBJECT. HOWEVER. to Virgin Islands zoning regulations and to the covenants restrictions. easements and agreements of reconl. AND THE GRANTOR WARRANTS that he is seized of the premises in fee simple and that he has good right to convey the premises. that Grantee shall quietly enjoy the premises: that the premises are free from encumbrances except as set forth or referred to herein: that Grantor will execute or procure any further necessary assurances of title to the premises and that Grantor will forever warrant and defend title to the premises. IN WITNESS WHEREOF. the Grantor has executed this warranty deed the day and year first above written. WITNESS: 4"" Christian Kjaer A K/A Pout Christian Tage Kjae- KINGDOM OF DENMARK 1 ss. This is to certify that Christian Kjaer today on my presence at the Notarial Office approved and signed the above document. No conspicuous corrects or addenda were found in the document. Ile has proved his identity by presenting his passport. District Court of • Denmark the day ofJanuary. 2016 Notary Public EFTA00805288  NOTED IN THE CADASTRAL RECORDS FOR COUNTRY /TOWN PROPER;Y, BOOK FOR GREAT ST. JAMES ISLAND NO. 6A RED HOOK QUARTER ST. THOMAS VIRGIN ISLANDS x essor Office / Cadastral Division T RY 21 , 2016 .- • • !the lieutenant Governor / Public SU ATTEST: ': k herebycertiffedthettheabove mentioned 1—el.eity/..vinicn.aoconing loWARRAN77 DEED dated lAnuacy_2.1.2016 0,:3Ns bx GREAT ST.JIM, LLC a Virgin Islands Limited Liability Company (GRANTEE) has not according to dr Record of this office. undergone changes as to boundaries and area. Tax ssesso Office / C St. Office of the Lieutenant Governor /Public Surveyor EFTA00805289 lim 1%1, •i . h Mr. Poul Christian lage Kjær '.day ir my nresenee at the Notarial fillet approved and signed the above <worm vskni" corrauons or addenda were found in the document. Ur. Pnetl Christian lage Kj*r has prow:d his identity by showing drncn I he Court in L..?ng,h), Denmark, 18 th January 2016 Ann-Kalb Byer 'ravgaard Not* EFTA00805290  0, gOWINIMI47 OF Mt UM110 5141IS Viten. 'MUMS OFFICE OF THE LIEUTENANT GOVERNOR DIVISION OF REAL PROPERTY TAX 1105 Ring Sireet • CielifIgnited. Virgin Mends 00120 • 110711 144 9 • fax 340 773 0330 11 tenger." Gage • Chad*114 Anal* Virgin wands 00602 • 340 774 2991 • 344 340 774 4953 REAL PROPERTY TAX CLEARANCE LETTER TO: Recorder Of Deeds FROM: Office of the Tax Collector In accordance with Title 28, Section 121. os amended, this shall certify that there are no outstanding Real Property Tax obligations for the following: PARCEL NUMBER 1-09801-0101-00 GREAT ST JAMES ISLAND LEGAL DESCRIPTION RED HOOK QTR. OWNER'S NAME IUAER, CHRISTIAN Taxes have been researched up to and including 2015 CERTIFIED TRUE AND CORRECT BY soca LUDENCE ROMNEY TAX COLLECTOR SGS0009i02 J.1 /14. SIGNATURE 01/11/2016 DATE EFTA00805291  WARRANTY DEED THIS INDENTURE made the ?I day of January. 2016 between GSJ Properties Corp.. a Virgin Islands (orporation. 5143 Palm Passage. Suites 188 and 198. St. Thomas. USVI 00802. (hereinafter the - Grantor") and Great St. Jim. LLC. a Virgin Islands Limited Liability Company. do Kellerhals Ferguson Krohlin PLLC. Royal Palms Professional Building. 9053 Estate Thomas. Suite PH. St. Thomas. VI 00802 thereinafter referred to as - Grantee). W1TNESSETH: That the Grantor. for and in consideration of the sum of FIVE MILLION and 00/1011 DOLLARS ($5.000.000.00). paid by the Grantee, the receipt of which is hereby acknowledged. and other good and valuable consideration. do hereby grant and convey unto the Grantee. its successors and assigns. in lee simple absolute forever. all of its right, title and interest in and to the following described real property. y4earcel B-I Rem Great St. James Island el B-1-I Great St. James Island B-t-2 Great St. James Island No. 6A Red Hook Quarter No. 6A Red Hook Quarter No. OA Red Honk Quarter St. Thomas. Virgin Islands St. Thomas. Virgin Islands St. Thomas. Virgin Islands As shown on I'WD No. D9-7344-T004 As shown on PWD No. D9-7344-T004 As shown on PWD No. D9-7344-1004 Consisting of 10.3 US. Acres +/- Consisting of 2.6 Acres 4- Consisting of 19.7. U.S. Acres +/- a reel B-2 Rent Great St. James Isla . 6A Red Hook Quarter St. Thomas, Virgin Islands 1B-2.1 Great St. James Island Atm! B-2-2 Great St. James Island o. 6A Red Hook Quarter St. Thomas, Virgin Islands No. 6A Red Hook Quarter St. Thomas. Virgin Islands As shown on PWD No. 09-7345-TOW As shown on PWD No. 09-7345-T004 As shown on PWD No. D94345-1004 Consisting of 4.4 U.S. Acres +/- Consisting of 1.36 US. Acres +/- Consisting of 2.4 US. Acres 4 - -R arcel C-I Rent Great St. James Isla:* reel C-I-I Great St. James Island 46)reel C-I.2 Great St. James Island io. 6A Red Hook Quarter SI. Thomas. Virgin Islands 'o. 6A Red Hook Quarter St. Thomas, Virgin Islands No. 6A Red Hook Quarter St. Thomas, Virgin Islands As shown on PWD No. D9-7347-T004 As shown on PWD No. 09.7347. OW As shown on PWD No. 09.7.47.7004 Consisting of 26.9 US. Acres +/- Consisting of 2.77 US. Acres +/- Consisting of 2.89 U.S. Acres 4 - M rcel C-2 Rein Great St. James Isla o. 6A Red Hook Quarter St. Thomas, Virgin Islands ml C-2-I Great St. James Island...41ml C-2-2 Great St. James Island No. 6A Red Hook Quarter St. Thomas. Virgin Islands . o. 6A Red Hook Quarter St. Thomas. Virgin Islands As shown on P.W.D. No. 09-7346-T004 As shown on PWD No. D9.7346.1004 As shown on PWD No. D9-7346-1004 Consisting or 2.5 U.S. Acres +/- Consisting of 2.4 U.S. Acres +/- Consisting of 3.0 US. Acres 4 - BEING THE SAME PREMISES which were conveyed to the Grantor by Warranty Deed dated April I. 2010 from Helle Bungaard and Steen Bungaard, recorded in the Office of the Recorder of Deeds fur St. Thomas and St. John on May 11. 201I. as Doc. No. 2011003242 and Warranty Deed dated April 1.2010 from John Knud Hirst. Nina Ftirst and Kim Rirst. recorded in the Office of the Recorder of Deeds for St. et 'Thomas and St. John on January 1 1. 2016, as Doc. NO. t..k.t_ . respectively. 0 TOGETHER WITH any improvements thereon. and the rights. privileges and appurtenances 9 4S00139 T 13Z belonging thereto: TO HAVE AND TO HOLD the premises conveyed hereby unto the Grantee. its successors and assigns. in fee simple absolute forever. SUBJECT. HOWEVER. to Virgin Islands zoning regulations and to the covenants restrictions, easements and agreements of record. EFTA00805292  02:136 St RJR T. HOWEVER, to Virgin Islands zoning regulations and in the eosenams easements anti aoremcnis of record. X ND THE GRAN FOR WARRANTS thai he is seized of the premises in lei simple and that 1w has ro ul right ti• comes the premises. thai Grantee shall quietly enjoy the premises. that the premises are free In in encumbrances :wept as set forth or referred to herein: that Grantor will extent., or procure any further ne...essars as of lido to the premises and that Grantor will foreser warrant and defend title to Ike preintscs IN WITNESS WHEREOF, the Grantor has executed this warranty deed the di\ And year first above WITNESS GSJ Properties Corp.. a Virgin [stands Corporal ion b: Kevin F. D'Arnour. President Attested: by: Jeannette.Casey, Secretary /• Book: Pages: 8888 Boa 2816888576 Fat) I Recorded 81/28/2816 2:58PM ERICA DOVER, M.P.A. RECORDER OF DEEDS TERRI"fORY OF THE VIRGIN ISLANDS 1 ST THOMAS/St JOHN DISTR K1' or: Sr TIIOMAS AND ST. JOHN ) M. DIXG F t 5,812.88 DEED DOC STAMP 3.e s 158,09.89 PER ME FEF $ 5.88 1 he foregoing instrument was acknowledged before me this o/1si cas MAW FEE $ 1 oi Ja1111.11> 2016 by 04.28 O Kevin i • 3 I EAin nir as President for and on behalf of GSJ Properties Corp. a Virgin Islands Col paation. 1 • t