Bogin v. SmithBogin v. Smith
Plaintiff Arthur Bogin has filed a Motion for Summary-Judgment, which has been opposed by Defendant Robert Smith. Both sides having presented memoranda in support of their positions, this Court heard arguments on the motion on February 4,1977.
Under the Federal Rules of Civil Procedure, 5 V.I.C. App. I Rule 56, summary judgment may not be granted when there are unresolved genuine issues of material fact. All doubts as to the existence of a genuine issue of a material fact must be resolved against the party moving for summary judgment. In this jurisdiction, the movant not only has the burden of demonstrating clearly the absence of any genuine issue of material fact, but courts are not to draw factual inferences in favor of the moving party. First Pennsylvania Banking and Trust Co. v. United States Insurance Co.,
Joinder of Co-Tenants
The action is founded on a landlord-tenant relationship and initially, the defendant argued that his two cо-tenants should be joined as indispensable parties pursuant to 5 V.I.C. App. I Rule 19. In view of their nonjoinder, the defendant argues that summary judgment should be denied and the action dismissed. Compulsory joinder, however, is an exception to the general practice of giving a plaintiff the right to decide who shall be parties to a lawsuit. 7 C. Wright and A. Miller, Federal Practice and Procedure § 1602. The co-tenants would be subject to service under 5 V.I.C. § 4903(a)(5) and their joinder would not deprive the Court of subject matter jurisdiction. However, their absence does not preclude complete relief between the parties in this cаse, nor does it impede their ability to protect their interests and the defendant is not
Statute of Frauds
Defendant urges that the alleged lease agreement is unenfоrceable because it violates the statute of frauds. There are two applicable local statutes, 28 Y.I.C. §§ 241 and 242, and they must be read together. Section 241 invalidates oral leases with terms exceeding one year with certain exceptions not applicable to this case. Section 242 voids leases “for a longer period than one year from the making thereof.” Leases falling within the strictures of 28 V.I.C. § 242, however, are saved by “some note or memorandum ... in writing . . . signed by the party to be charged ...” Neither party contends that a lease agreement in excess of one year’s duration existed between the parties.
Defendant’s affidavit is not clear as to whether the parties agreed in August of 1975 to a lease term expiring September 10, 1976, but he does admit that he “reached agreement with Mr. Bogin for the rental of the premises in early August of 1975.” Plaintiff’s affidavit, however, claims that the agreed-upon lease terms called for one year’s rental. Although not specifically contradicted by defendant, there is enough ambiguity created by defendant’s affidavit to leave this issue of fact somewhat in doubt. Defendant states, “we were not able to determine, at the time we agreed to rent the premises, precisely when our agreed tenancy would begin or be terminated.” Plaintiff’s September 7, 1975, letter and defendant’s affidavit, when taken together, do establish that prior to September 1.0, 1975, an
As additional authority for enforcing the alleged one year leаse agreement, even assuming the absence of a sufficient memorandum to satisfy the statute of frauds, plaintiff cites Henderson v. Resevic, 6 V.1.195,
Arthur Bоgin relies on dicta in Henderson concerning a party’s detrimental reliance as sufficient part performance and argues that his own detrimental reliance sub judice consisted of foregoing “substantially higher short-term rental rates for the property.” I do not believe Henderson goes that far. Henderson relied on Crossman v. Fountainbleau Hotel Corp.,
Also at issuе is the question of damages, which also must await trial. Robert Smith’s affidavit states that Arthur Bogin has received rent for the premises subsequent to defendant’s vacating. The extent of plaintiff’s mitigation of damages has nоt been established.
While the Court is not prepared to fully adjudicate this case on plaintiff’s motion for summary judgment, it shall, in accordance with Rule 56(d), specify the facts that appear without substantial сontroversy:
(1) The defendant took possession of the dwelling located at 150-4A Estate Rendezvous and Ditleff, No. 15A, Cruz Bay Quarter, known as “St. John Passion,” on or about September 10,1975.
(2) Defendants commenced such оccupancy pursuant to an oral agreement reached prior to September 10, 1975, with the plaintiff concerning the leasing of these premises.
(3) By the terms of this agreement, the defendant and twо other individuals — Susan Beers and Brandon Jarrett — t leased the premises at $500 per month, payable on the 10th of each month, with a security deposit of $500.
(4) The letter of September 11, 1975, was signed by the defendant, аnd was mailed to the plaintiff in response to Mr. Bogin’s letter of September 7, 1975. In addition, the Court finds that the letter of January 10, 1976, was also signed by the Defendant.
(5) A valid lease existed between the parties.
(7) The tenants vacated the premises on or about January 10,1976.
What remains for trial in this matter is a determination of the following issues:
(1) Was the pre-September 10, 1975, agreemеnt requiring submission by plaintiff and approval by defendant of a written lease agreement crucial to the existence of a lease beyond the date on which defendant vacated the premises?
(2) Was such a written lease in fact submitted to the defendant?
(3) If a written lease was submitted, was it in material variance from the oral agreement?
(4) What was the term of the tenancy ?
(5) If there was a lease beyond January 10, 1976, did the landlord mitigate his damages?
Upon the trial of this action, the facts specified above shall be deemed established.
IT IS SO ORDERED.
Notes
By letter dated September 7, 1975 plaintiff Bogin wrote defendant and Ms. Susan Beers and Brandon Jarrett. In pеrtinent part, he stated:
“.. . this letter is to confirm our agreement that we made shen [sic] I saw you on St. John and will serve temporarily instead of a formal lease which will be drawn up shortly.
The terms of the lease сover a one year rental period, starting September 10, 1975, paying $500 per month on the tenth of every month. There will be a security of 500 dollars payable with the balance of the first month’s rent; since you have already given us a deposit of $300, please send me a check for $700 on or before September 10.
The house you will be occupying is called ‘The St. John Passion’, and is to be occupied by Susаn Beers, . . . Brandon Jarret, . . . and Robert Smith . .. The house is to be furnished substantially as is, and linens supplied by the tenants as agreed. All utilities are to be paid by the tenants.”
By a handwritten letter dated September 11, 1975, defendant, in рertinent part, responded:
“... We moved in this Tuesday evening and are quite thrilled with our new home. It is truly a wonderful place.
Please find enclosed the remainder of our first month’s payment, rent and security paymеnt totalling $700.00.
We are all moved in now and are quite comfortable in our new surroundings. We assure you that we will treat ‘The St. John Passion’ as if it was our home ...
Sincerely, Bob”
Plaintiff was advised by letter dated January 10, 1976, which was signed by defendant and his two co-tenants, that “due to unforeseen circumstances we have had to vacate ...”