WILMA MARSH-MONSANTO, Appellant/Plaintiff v. WILLIAM CLARENBACH (ESTATE OF WILLIAM CLARENBACH), ET AL., Appellees/Defendants
Marsh-Monsanto v. Clarenbach
HODGE, Chief Justice; CAB RET, Associate Justice; and SWAN, Associate Justice. SWAN, Associate Justice, dissenting.
WILMA MARSH-MONSANTO, Appellant/Plaintiff v. WILLIAM CLARENBACH (ESTATE OF WILLIAM CLARENBACH), ET AL., Appellees/Defendants
WILMA MARSH-MONSANTO, Appellant/Plaintiff v. WILLIAM CLARENBACH (ESTATE OF WILLIAM CLARENBACH), ET AL., Appellees/Defendants
S. Ct. Civil No. 2014-0075
Supreme Court of the Virgin Islands
February 10, 2017
Dolace McLean, Esq., Visions Law Firm, St. Thomas, USVI, For Appellant.
Matthew J. Duensing, Esq., Duensing, Casner & Fitzsimmons, St. Thomas, USVI; W. Mark Hillsman, Esq., Law Offices of James L. Hymes, III, PC., St. Thomas, USVI, For Appellees.
HODGE, Chief Justice; CAB RET, Associate Justice; and SWAN, Associate Justice. SWAN, Associate Justice, dissenting.
OPINION OF THE COURT
(February 10, 2017)
Cabret, Associate Justice.
Wilma Marsh-Monsanto appeals a Superior Court order dismissing her action to quiet title to certain real property on St. John and finding that all defendants claiming title to that property hold valid title. Because her claims are barred by the statute of limitations, we affirm the Superior Court's entry of summary judgment dismissing Marsh-Monsanto's claims. However, even though every issue Marsh-Monsanto raises on appeal is waived under this Court's rules, we nonetheless reverse the Superior Court's entry of summary judgment adjudicating chain of title to the disputed property because the Superior Court committed plain error by addressing that issue.
I. FACTUAL AND PROCEDURAL BACKGROUND
As the result of an adjudication entered by the United States District Court of the Virgin Islands in 1963, William Henry Marsh inherited the 205-acre tract of real property designated as Parcel No. 6 in Estate Carolina on St. John. Of the 205 acres, Marsh subdivided 102 acres of Parcel No. 6 into several smaller parcels: Nos. 6-1 (5.26 acres); 6-2 (5.08 acres); 6-3 (86.4 acres); and 6-4 (5 acres); leaving roughly 103 acres in Parcel No. 6.
Marsh sold Parcel No. 6-3 to William G. Clarenbach and Herbert S. McConnell on January 26, 1968, and after Marsh died on April 2, 1971, his estate deemed the mortgage on the property satisfied in 1975. Clarenbach and McConnell later conveyed all of Parcel No. 6-3 to Estate Carolina Corporation by quitclaim deed on June 8, 1973. The remaining 103 acres of Parcel No. 6 went to Marsh's widow and 11 children as tenants in common, among them Marsh-Monsanto.
In March 1982, the widow and children divided their inheritance through a series of partition deeds, among them a deed recorded on April 6, 1982, describing the portion of Parcel No. 6 being partitioned as "Remainder of Parcel No. 6 Estate Carolina (Composite Parcel No. 6-U)." The boundaries of this property were set out in a survey map that was based on a 1981 survey map registered with the Virgin Islands Cadastral Office.
On December 10, 1984, Estate Carolina Corporation conveyed 15.92 acres of the 86.4-acre Parcel No. 6-3, described as "Remainder of Parcel 6-3, Estate Carolina," to Mill View Estates Joint Venture. Mill View, which later registered as a land-development company on May 15, 1985, then subdivided its 15.92-acre parcel into 31 separate parcels. Mill View sold these parcels in 1986 and 1988, and many of these parcels were in turn sold to other people.
Claiming that the 15.92-acre "Remainder of Parcel 6-3" that Estate Carolina Corporation sold to Mill View in 1984 was actually the "Composite Parcel No. 6-U" that was the subject of the 1982 partition deed, Marsh-Monsanto filed a pro se complaint in the Superior Court on December 1, 2004, against Mill View, Estate Carolina Corporation, and several of the people who purchased property from Mill View. Marsh-Monsanto's complaint stated that she sought "a determination of her fee simple title in this action as of March 31, 1982." Despite alleging that she held title to the property at issue as tenants in common with her ten siblings and mother, Marsh-Monsanto did not name these individuals as co-plaintiffs.
Marsh-Monsanto amended her complaint three times to add more defendants to the action, but neither her siblings nor her mother were joined as parties. In her third amended complaint, Marsh-Monsanto named, among others, Ralph and Nina Fette, Michael Kolb, Eileen Victor, and Toni Lacer as defendants, all of whom had bought parcels created by Mill View. Although not named as defendants in previous iterations of Marsh-Monsanto's complaint, Ralph Fette and Nina Fette — among other defendants — answered Marsh-Monsanto's second amended complaint on December 27, 2005, and counterclaimed for slander of title and misuse of civil process. Neither Kolb nor Victor answered Marsh-Monsanto's complaint, and although Lacer filed an answer on March 7, 2012, that answer did not contain a counterclaim against Marsh-Monsanto. Marsh-Monsanto attempted to add actions for trespass, ejectment, fraudulent transfer, and compensatory and punitive damages in a fourth amended complaint, but the Superior Court struck that pleading.
Over the next several years, the parties filed a number of motions without any action from the Superior Court. Among these was a motion for summary judgment, which Kolb and Victor filed on September 18, 2013. That motion was later joined by a number of the other defendants. In that motion, Kolb and Victor argued that Marsh-Monsanto had no interest in their property because it was created from Parcel No. 6-3, which Marsh sold to Clarenbach and McConnell before his death, preventing Marsh-Monsanto and her siblings from inheriting the property. The motion also argued that the statute of limitations barred the action because more than 20 years had passed since Marsh sold the property in 1968, see VI. Code Ann. tit. 5, § 31(1)(A), and that in any case they were bona fide good-faith purchasers of the property. Along with their motion, Kolb and Victor attached the 1968 warranty deed transferring Parcel No. 6-3 to Clarenbach and McConnell, the mortgage that was deemed satisfied during the adjudication of Marsh's estate, the 1973 quitclaim deed transferring the property to Estate Carolina Corporation, the 1984 warranty deed transferring the property to Mill View, and the numerous deeds transferring subdivisions of Parcel No. 6-3 to the various defendants in this case.
On October 11, 2013, Ralph Fette and Nina Fette filed their own summary judgment motion, arguing that an examination of the deeds and survey maps by a professional land surveyor determined that the property Marsh-Monsanto was claiming title to was actually part of Parcel No. 6-3. Along with the motion, the Fettes included the surveyor's report con- eluding that "Parcel No. 6-U is wholly located within and a part of Parcel No. 6-3."
The Superior Court held a hearing on these pending motions on November 19, 2013. During the hearing, the Superior Court noted that Marsh-Monsanto never served many of the 78 named defendants in the case. The Superior Court also struck the fourth amended complaint without objection from Marsh-Monsanto, holding that adding new claims nine years into the litigation would prejudice the defendants. The court then heard oral arguments on the Fettes' motion for summary judgment, including argument from Marsh-Monsanto, who had yet to file written oppositions to either of the summary judgment motions. Following the hearing, the Superior Court issued a November 20, 2013 order striking the fourth amended complaint and ordering Marsh-Monsanto to show cause as to why the unserved defendants should not be dismissed from the action. The Superior Court also ordered Marsh-Monsanto to file any documents and arguments opposing summary judgment within a month, and to show cause as to why any decision on summary judgment should not apply to all defendants in the case. According to the docket, Marsh-Monsanto filed her opposition to summary judgment on December 23, 2013.
The Superior Court held another hearing on the motions on October 2, 2014. At the outset of this hearing, Kolb, Victor, and Lacer requested that the Superior Court "enter some sort of a declaratory order that could be recorded with respect to all the affected parcels" of disputed property because "all of the affected parcels need to have this matter clarified." The Superior Court then dismissed a number of defendants due to Marsh-Monsanto's failure to serve them with process, and entered default against several others for their failure to appear despite service of process. The Superior Court also denied Marsh-Monsanto's motions to serve by publication, holding that she failed to comply with 5 V.I.C. § 112 because she did not demonstrate that she had exercised due diligence in attempting to locate the defendants. See 5 V.I.C. § 112(a) ("When service of the summons cannot be made . and the defendant after due diligence cannot be found within the Virgin Islands . the court shall grant an order that the service be made by publication of the summons.").
The Superior Court next allowed the parties to present argument and evidence on the summary judgment motions. Without objection, Marsh-Monsanto called Wayne Callwood, the head of the Virgin Islands Cadastral Office, as an expert witness. Callwood testified that "Parcel No. 6-U came out of Parcel No. 6-3" in 1980, and that the dispute in this case was caused by the surveyor's failure to make a notation indicating that Parcel No. 6-U replaced a parcel previously marked as Remainder of Parcel No. 6-3. Marsh-Monsanto asked Callwood about this repeatedly, prompting the Superior Court to state that Callwood "already testified that 6-3 came out of 6, and 6-U came out of 6-3," to which Marsh-Monsanto replied, "[tjhat's his testimony, but I don't agree with that."
Marsh-Monsanto also presented evidence that she and her family had been paying property taxes on Parcel No. 6-U at least as far back as 1983 and 1985, but it is unclear for how much or for how long. No evidence was presented indicating whether Estate Carolina Corporation, Mill View Estates, or any other defendant paid taxes on the same property during the same time.
The Superior Court announced its ruling from the bench during an October 17, 2014 hearing, granting summary judgment to the defendants. In doing so, the Superior Court held that Marsh-Monsanto failed to create a genuine issue of material fact because she failed to submit any evidence that disputed the expert report and chain of title submitted by the defendants at summary judgment. The Superior Court also held that the action was barred by the statute of limitations because Marsh-Monsanto stated during the October 2, 2014 hearing that she was aware of issues with the property as early as 1982, so the complaint filed in 2004 was two years too late. Finally, the Superior Court granted Kolb, Victor, and Lacer's oral request for declaratory relief, declaring that "all persons" who took title to property from Mill View hold valid title to that property. The Superior Court entered an order to this effect on October 21, 2014, clarifying that it was granting summary judgment to all the defendants that remained in the case. The Superior Court specifically adjudicated chain of title to the disputed property in its order, stating that "the real property which [Marsh-Monsanto] describes as Remainder of Parcel 6 (composite Parcel 6-U) . is the same real property more properly and legally described as Remainder of Parcel 6-3." The order then stated that the property Marsh-Monsanto described as "Remainder of Parcel 6-3 . . is a portion of Parcel 6-3 Estate Carolina, St. John . . . which . . . Will Marsh duly conveyed to William Clarenbach and Herbert McConnell." In the next two paragraphs, the court states that Parcel 6-3 was duly conveyed to Estate Carolina Corporation in fee simple, and that Estate Carolina Corporation duly conveyed Remainder of Parcel 6-3 to Mill View Estates Joint Venture. From these findings, the Superior Court concluded that "all defendants" claiming title to lots subdivided from Parcel 6-3 "have valid and enforceable title to their respective parcels." Marsh-Monsanto filed a timely notice of appeal on November 10, 2014.
II. JURISDICTION
"The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law." 4 V.I.C. § 32(a). The Superior Court's October 21, 2014 order granting summary judgment to the appellees was a final order within the meaning of section 32(a), and therefore we have jurisdiction over this appeal. Bertrand v. Mystic Granite & Marble, Inc., 63 V.I. 772, 777 (V.I. 2015) (citing Machado v. Yacht Haven U.S.V.I., LLC, 61 V.I. 373, 379 (V.I. 2014)).
III. DISCUSSION
On appeal, Marsh-Monsanto, now represented by counsel, argues that the Superior Court erred in holding that the statute of limitations barred her action, that there were no genuine issues of material fact that would preclude summary judgment, and in denying her motions to serve by publication. She also argues that the conveyance of Parcel No. 6-3 from Estate Carolina Corporation to Mill View in 1984 was invalid. We apply plenary review to the Superior Court's grant of summary judgment. Machado, 61 V.I. at 379. In doing so, we view all inferences from the evidence in the light most favorable to Marsh-Monsanto, and take her allegations as true if properly supported by the evidence she submitted in opposition to summary judgment. Id. at 379-80. We agree that the statute of limitations bars Marsh-Monsanto's claims, but conclude that, even though Marsh-Monsanto's challenge to the Superior Court's summary judgment ruling is waived, the Superior Court committed plain error by adjudicating the merits of defendants' declaratory judgment request.
A. Statute of Limitations
Marsh-Monsanto argues that the Superior Court erred in holding that she brought this action outside of the 20-year statute of limitations on "[a]ctions for the recovery of real property" under 5 V.I.C. § 31(1)(A). "[T]he statute of limitations begins to run on the first date that the injured party possesses sufficient critical facts to put [her] on notice that a wrong has been committed and that [she] need investigate to determine whether [she] is entitled to redress." Santiago v. V.I. Hous. Auth., 57 V.I. 256, 274 (V.I. 2012) (quoting Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir. 1985)). When the underlying facts are undisputed, application of the statute of limitations presents a question of law that may be resolved by summary judgment. See, e.g., Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 329 S.E.2d 350, 353-55 (N.C. 1985) (affirming summary judgment where undisputed facts demonstrated that the statute of limitations had run); see generally 54 C.J.S. Limitations of Actions § 437 (2016) (collecting cases).
Marsh-Monsanto's argument boils down to a single sentence, stating that she '"became aware of Mill View's asserted interest in her property when someone purported to act on behalf of the nonexistent entity [and] recorded the 1984 Warranty Deed on December 11th of that year." But this argument is unsupported by the record. Marsh-Monsanto's complaint, filed on December 1, 2004, sought '"a determination of her fee simple title in this action as of March 31, 1982." At the October 2, 2014 hearing, the Superior Court asked Marsh-Monsanto why she included the date March 31, 1982, in her complaint, and she responded that she first noticed bulldozers on the property in 1982. This led the Superior Court to hold that the 20-year statute of limitations on actions involving real property began to run in 1982, barring Marsh-Monsanto's 2004 action. The parties do not dispute that Marsh-Monsanto saw bulldozers on the property in 1982, and Marsh-Monsanto makes no argument on appeal suggesting that the Superior Court erred in accepting her own statement that she first noticed development on the property in 1982 as being conclusive on this issue. See Bright v. United Corp., 50 V.I. 215, 222 (V.I. 2008) (indicating that the Superior Court may consider the party's admissions in ruling on summary judgment). Accordingly, we find no error in the Superior Court's application of the statute of limitations to the undisputed facts of this case.
We note that the statute of limitations may be equitably tolled when, "despite the exercise of due diligence, the injury or its cause is not immediately apparent." Santiago, 57 V.I. at 273. And, while "it is our policy to give pro se litigants greater leeway in dealing with matters of procedure and pleading," Appleton v. Harrigan, 61 V.I. 262, 267 (V.I. 2014) (citation and internal quotation marks omitted), Marsh-Monsanto failed to argue before the Superior Court that she was entitled to equitable tolling, and there is nothing in the record suggesting that she is entitled to tolling. See Thomas v. V.I. Bd. of Land Use Appeals, 60 V.I. 579, 589 (V.I. 2014) (discussing the requirements of equitable tolling); Santiago, 57 V.I. at 273 (same). Even though Marsh-Monsanto is now represented by counsel on appeal, she does not argue that equitable tolling is appropriate in this case, and this Court typically will not "invoke[ ] [our] policy [of leniency for pro se litigants] to raise new . . . arguments sua sponte on behalf of a pro se litigant." Fleming v. Cruz, 62 V.I. 702, 722 (VI. 2015) (Cabret, J., concurring). Therefore, we affirm the Superior Court's holding that the statute of limitations bars this action. ,
B. Other Issues Raised on Appeal
Because the Superior Court did not err in holding that the statute of limitations had run on Marsh-Monsanto's cause of action prior to her commencement of proceedings, we do not reach the remaining issues she raises on appeal. But even if we were inclined to reach these issues, we note that Marsh-Monsanto has waived them.
Marsh-Monsanto argues that the Superior Court erred by denying her motion to serve the defendants by publication under 5 V.I.C. § 112. But aside from citing the statute itself, Marsh-Monsanto makes no substantive argument and cites no authority for the conclusory assertion that she satisfied any of the requirements of section 112, or that the Superior Court erred in denying her motion. See V.I.S.Ct.R. 22(m) (providing that a party's arguments are waived where they are only "adverted to in a perfunctory manner"). And her brief fails to indicate where in the joint appendix she moved for leave to serve by publication in the Superior Court as required by Supreme Court Rule 22(a)(5).
In denying Marsh-Monsanto's motion to serve by publication, the Superior Court held that Marsh-Monsanto failed to establish that she exercised due diligence in her efforts to locate the parties she sought to serve by publication, stating that her affidavit in support of the motion did "not describe what those efforts or research is, nor does she set out exactly which defendants she is seeking [to serve] by publication." Marsh-Monsanto fails to make any arguments challenging the Superior Court's findings on due diligence, and she also failed to include the motions to serve by publication in the joint appendix. See Pedro v. Ranger Am. of the V.I., Inc., 63 V.I. 511, 521 n.6 (V.I. 2015) ("[T]his Court is one of review, not first instance.").
Marsh-Monsanto next argues that the Superior Court erred in granting summary judgment because she presented genuine issues of material fact that a jury must decide, including the issue of "when it was that 'Remainder 6-3' was created" and whether the 1984 warranty deed transferring the property from Estate Carolina Corporation to Mill View Estates Joint Venture was fraudulent. But — despite six pages of argument on this issue — Marsh-Monsanto includes only a single citation to five pages of the joint appendix in her appellate brief. See V.I.S.Ct.R. 22(a)(5) ("The argument shall contain the contentions of the appellant with respect to each of the issues presented, and the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on."). This citation to pages 197-201 of the joint appendix, comprising several maps, lacks any explanation of the significance of these documents. See Madir v. Daniel, 53 V.I. 623, 635 (V.I. 2010) (indicating that this Court will "not cull the record" to find material that the appellant had a duty to bring to the Court's attention); Brodhurst v. Frazier, 57 V.I. 365, 396 (V.I. 2012) (Swan, J., dissenting) ("Even where the record contains facts that possibly provide support for a non-movant's position, the burden would still be on . . . the non-movant, not the court, to cull the record and affirmatively identify genuine issues of material fact sufficient to defeat a motion for summary judgment." (emphasis in original)).
Furthermore, the joint appendix contains nearly 200 pages of documents but gives no indication of when, or if, Marsh-Monsanto submitted these documents to the Superior Court. See V.I.S.Ct.R. 10(a) ("The original papers and exhibits filed in the Superior Court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the Clerk of the Superior Court shall constitute the record on appeal in all cases."). While it seems that Marsh-Monsanto may have submitted these documents with her opposition to summary judgment, we cannot be sure because her opposition to summary judgment — like the motion for summary judgment itself — is not included in the joint appendix. See V.I.S.Ct.R. 24(a) ("Appellant shall prepare and file an appendix to the briefs which shall contain all materials designated by all parties and shall include: . . . relevant portions of the trial transcripts, exhibit[s], or other parts of the record referred to in the briefs."). Accordingly, Marsh-Monsanto's challenge to the Superior Court's summary judgment ruling is waived under this Court's rules.
With regard to Marsh-Monsanto's argument that the 1984 transfer of the property to Mill View was fraudulent, she fails to direct us to any evidence of fraud in the summary judgment record. She also argues that this transfer was invalid because Mill View "was not an organization existing under the laws of the Virgin Islands" on the date of the conveyance or the date the deed was recorded. The appellees argue that this issue was not raised before the Superior Court.
Marsh-Monsanto insists that she did raise this issue before the Superior Court during the October 2, 2014 hearing, when she argued that there needed to be a trial to "find out who [Mill View] sold the land to and how . . . they [got] the land." "[A] party only needs to raise an issue in time for the Superior Court to address it and take whatever action is necessary in the first instance in order to fairly present the issue and preserve it for appeal." Percival v. People, 62 V.I. 477, 486 (V.I. 2015) (collecting cases applying Supreme Court Rule 4(h)). Yet even under this liberal standard, this issue is waived since Marsh-Monsanto never argued before the Superior Court that the conveyance of property to Mill View was invalid "because there was no Mill View Joint Venture, and thus no valid grantee in existence to which title could have passed." See Yusuf v. Hamed, 59 V.I. 841, 851 n.5 (V.I. 2013) ("[t]o preserve an objection on appeal, a party must object on the specific grounds raised on appeal," and an argument made on different legal grounds is not sufficient); Perez v. Ritz-Carlton (V.I.), Inc., 59 V.I. 522, 528 n.4 (V.I. 2013) (holding that the failure to properly present an issue at summary judgment resulted in waiver on appeal under Rule 4(h)).
Marsh-Monsanto asserts that even if her challenge to the Mill View land transfer is waived, it is nonetheless an issue affecting substantial rights that this Court should address in the first instance. Aside from making this cursory assertion, however, Marsh-Monsanto presents no substantive argument addressing how this issue affects her substantial rights. And while she relies on Dennie v. Swanston, 51 V.I. 163, 169 (V.I. 2009) — where this Court reached an unpreserved issue on appeal in a civil case — that case concerned a denial of due process in a child-custody determination, and Marsh-Monsanto fails to explain how the Superior Court violated her right to due process in this case. Therefore, we are not persuaded to address whether the conveyance to Mill View was valid.
C. Declaratory Judgment
Although Marsh-Monsanto's challenge to the Superior Court's summary judgment ruling is waived under our rules, we retain discretion to notice errors that affect substantive rights, even if those errors were not properly presented on appeal. V.I.S.Ct.R. 4(h), 22(m). When the Superior Court determined that the statute of limitations barred Marsh-Monsanto's request for an adjudication of title to Parcel 6-U, it became improper for the Superior Court to adjudicate the merits of that claim. See, e.g., Allie v. Ionata, 503 So. 2d 1237, 1239-40 (Fla. 1987) ("The expiration of a statute of limitation does not resolve the underlying merits of the consequently barred claim in favor of either party; it merely cuts off the remedy of the party who has slept on his rights."); City of Murphy v. City of Parker, 932 S.W.2d 479, 481 (Tex. 1996) ("[N]o statute of limitations directly addresses the merits of a claim to which it is interposed as a bar."); James v. Montoya, 963 P.2d 993, 995 (Wyo. 1998) ('"Statutes of limitation do not discriminate between the just and unjust claim. They operate regardless of the merits."). Nevertheless, prompted by the oral request of Kolb, Victor, and Lacer, the Superior Court entered a declaratory judgment adjudicating chain of title to Parcel 6-U. By doing so, it adjudicated an unpleaded counterclaim and effectively divested the remaining Marsh heirs of their alleged property interest in Parcel 6-U without affording them notice or an opportunity to be heard.
We apply a plain error standard of review to determine whether the interests of justice compel us to notice and correct such an error. See Caribbean Healthways, Inc. v. James, 59 V.I. 805, 812 n.2 (V.I. 2013) (observing that Supreme Court Rule 4(h)'s '"interests of justice" standard is a proxy for plain error review); McIntosh v. People, 57 V.I. 669, 683 n.12 (V.I. 2012) (same). For this Court to reverse under a plain error standard of review, four conditions must be met. First, there must be an error; second, the error must be '"plain"; third, the error must '"affect substantial rights"; and finally, the error must '"seriously affect the fairness, integrity, or public reputation of judicial proceedings." Rawlins v. People, 58 V.I. 261, 268 (V.I. 2013); see also Molina-Martinez v. United States, 578 U.S._, 136 S. Ct. 1338, 1343, 194 L. Ed. 2d 444 (2016).
'"An error is a deviation from a legal rule, and an error is plain if it is clear and obvious." Malone v. People of the V.I., 53 V.I. 408, 417 (V.I. 2010) (citing United States v. Olano, 507 U.S. 725, 731-32, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993)); see also Williams v. People, 56 V.I. 821, 830-31 (V.I. 2012) (observing that a plain error is '"clear and obvious, rather than subject to reasonable dispute" (quoting United States v. Marcus, 560 U.S. 258, 262, 130 S. Ct. 2159, 176 L. Ed. 2d 1012 (2010))). Under the Rules of the Superior Court, a defendant that wishes to counterclaim for a declaratory judgment must plead that cause of action in an answer. See Super. Ct. R. 34 ("All claims . for relief, except a complaint or a third-party complaint, shall be asserted in an answer as a counterclaim, and not otherwise."). A defendant may not request a declaratory judgment for the first time in a summary judgment motion or during oral argument on a summary judgment motion. See Caribbean Healthways, Inc. v. James, 55 V.I. 691, 699 (V.I. 2011) ("A claim cannot be raised for the first time on a summary judgment motion — it must be contained in [a pleading]."); accord Hazelwood v. Tenn. Dep't of Safety, 322 Fed. Appx. 441, 442 (6th Cir. 2009) (district court did not err by refusing to consider a claim raised at summary judgment that was not pleaded in the complaint); Gonzalez v. City of Federal Way, 299 Fed. Appx. 708, 710 (9th Cir. 2008) (same); Fairbaugh v. Life Ins. Co. of N. Am., 737 F. Supp. 2d 68, 87 (D. Conn. 2010) (same).
Contrary to its rules, the Superior Court adjudicated title to Parcel 6-U in favor of '"all defendants" based upon an oral request for a declaratory judgment made at the outset of the summary judgment hearing, even though that request had not been pleaded as a counterclaim. Neither Kolb nor Victor answered Marsh-Monsanto's complaint, and Lacer's answer does not purport to counterclaim against Marsh-Monsanto. And although several defendants counterclaimed in response to Marsh-Monsanto's second amended complaint, that counterclaim did not pray for a declaratory judgment or any similar adjudication of title to Parcel 6-U. Consequently, Kolb, Victor, and Lacer's oral request for '"some sort of a declaratory order that could be recorded with respect to all the affected parcels" during the summary judgment hearing was the only request for such a declaratory judgment made by any defendant. Since this request was not set forth '"in an answer as a counterclaim," Super. Ct. R. 34, there can be no dispute that the defendants' oral request was insufficient to place the issue before the Superior Court under the Superior Court's rules. Thus, the Superior Court committed a plain error by granting summary judgment on a request that was not properly before it. Accord Wiggins v. Perry, 989 So. 2d 419, 431-32 (Miss. Ct. App. 2008) (concluding that the trial judge committed plain error in granting summary judgment on claims not asserted in a plaintiff's complaint); Dana Commercial Credit Corp. v. Cukjati, 880 S.W.2d 612, 617 (Mo. Ct. App. 1994) (concluding that the trial court committed plain error by entering summary judgment against a defendant on a claim not pleaded against that defendant); cf. Martinez v. Colombian Emeralds, Inc., 51 V.I. 174, 191 (V.I. 2009) (concluding that the Superior Court committed reversible error by ruling on a motion to dismiss that was not properly before it).
In addition to being plain, this error also affects substantial rights. "An error affects substantial rights when it would change the outcome of the proceedings." Nanton v. People of the V.I., 52 V.I. 466, 491 (V.I. 2009); see also Malone, 53 V.I. at 417 ("Generally, an error affects substantial rights when it is prejudicial, i.e., it affected the outcome of the [trial] court proceedings." (quoting United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006))). Orders affecting title to real property may affect substantial rights. See, e.g., The Empire Dist. Elec. Co. v. Coverdell, 344 S.W.3d 842, 852 (Mo. Ct. App. 2011) (concluding that a judgment depriving a landowner of its rights to certain real property affected the landowner's substantial rights). An error may also affect substantial rights where it would bind a nonparty to the suit. See, e.g., Tracy Press, Inc. v. Superior Court, 164 Cal. App. 4th 1290, 80 Cal. Rptr. 3d 464, 469-72 (Cal. Ct. App. 2008). Here, by entering a declaratory judgment in favor of the defendants, the Superior Court ignored the alleged interest held by the remaining Marsh heirs in Parcel 6-U. The purpose of a declaratory judgment action is "to declare rights, status, and other legal relations," 5 V.I.C. § 1261, and it is not possible to do so when all parties having an interest in a property have not been served with notice of the lawsuit. See Karner v. Roy White Flowers, Inc., 351 N.C. 433, 527 S.E.2d. 40, 44 (N.C. 2000) ("An adjudication that extinguishes property rights without giving the property owner an opportunity to be heard cannot yield a 'valid judgment.'" (quoting Strickland v. Hughes, 273 N.C. 481, 160 S.E.2d 313, 316 (N.C. 1968))). The remaining Marsh heirs were neither served by the defendants seeking a declaratory judgment nor joined as parties to the action, and although the record is unclear, it is possible that some of the remaining Marsh heirs might be able to demonstrate genuine disputes of material fact concerning the ownership of Parcel 6-U without being barred by the statute of limitations. But by adjudicating the defendants' interest in the disputed property without such information, the Superior Court may have awarded the defendants a greater property interest than what they were entitled to receive. Thus, there can be no doubt that the outcome of this case would be different if the Superior Court had correctly denied the defendants' oral declaratory judgment request, because the defendants would not have received an order declaring their respective titles to portions of the disputed property to be valid despite the potential existence of evidence to the contrary.
Because the heirs were not joined as parties, the Superior Court's error has the potential to damage the public reputation of judicial proceedings. Whether an error has such an effect is determined "on a case-specific and fact-intensive basis." Puckett v. United States, 556 U.S. 129, 142, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009); see, e.g., Francis, 57 V.I. at 223 (an error that deprived a defendant of an opportunity to present a defense affected both the fairness of proceedings and, if uncorrected, may have adversely reflected on the public reputation of judicial proceedings). By entering a declaratory judgment in favor of the defendants, the Superior Court ignored the interests in Parcel 6-U allegedly held by the remaining Marsh heirs. This is significant, as the heirs had no opportunity to defend their alleged interests against the defendants' declaratory judgment request. The Superior Court's error appears to deprive the heirs of their alleged interests in Parcel 6-U without notice and an opportunity to be heard, and therefore has the potential to damage the public reputation of judicial proceedings in general. Consequently, the interests of justice obligate us to reverse all portions of the Superior Court's October 21, 2014 summary judgment order predicated upon the Superior Court's error.
IV. CONCLUSION
Marsh-Monsanto never disputed that her cause of action accrued in 1982, twenty-two years before she filed her complaint and two years after the applicable statute of limitations had run. Further, every issue Marsh-Monsanto attempts to raise on appeal is waived due to her failure to comply with this Court's rules. Therefore, we affirm the Superior Court's October 21, 2014 order dismissing Marsh-Monsanto's claims on statute - of-limitations grounds. But since the Superior Court committed plain error by ruling on a declaratory judgment request that was not properly before it, we reverse the portion of the October 21, 2014 summary judgment order predicated upon that error.
The defendants Marsh-Monsanto failed to serve were Pamela Fette, John Gagliatti, Wendy Hoist Gagliatti, Mark Adler, Debora Lament, William Horton, Jr., Virginia Horton, Mark Van Kerkhove, Muskoka Moons, Inc., David Garant, the Rene Servant Trust, Michael Terry, Jesse Terry, Raymond McNally, Sandra McNally, Kathleen Ann Toole Joseph, Marc Blazar, Robert H. Redinger, Pamela G. Redinger, Hilarie Hackendahl, Jason Oliver Hackendahl, Riverbank Properties, LLC, Tanya Mattison, Harold Bland and Florence Bland, the Estate Carolina Corporation, the Carolina Corp., the Estate of Priscilla Clarenbach, the Estate of William Clarenbach, the Estate of William McConnell, Anne Gordon, Paul Gordon, Loretta Kaber, Jerry Kaber, Jacqueline Sulek, Phillip Nixon, Mani Menon, Shareen Menon, the Menon Realty Trust, Larry McClain, Patricia McClain, John Van Kerkhove, and Blanche Goggins. The defendants that never appeared were the Marie Therese Servant Estate, Frank Gordon Associates, Star Property Company, Mill View Estates Joint Venture, Frank Gordon, Verne Callwood, Roy Martin, and Kala Mohandes.
We make no determination regarding the property tax payments Marsh-Monsanto made on Parcel No. 6-U, and whether there is any legal or equitable basis for her to recover the taxes she paid for property she did not own.
The dissent objects to our decision to affirm the Superior Court's grant of summary judgment based on the premise that the resolution of Marsh-Monsanto's claims on statute-of-limitations grounds operates as res judicata with respect to the remaining Marsh heir's. But this premise ignores the well-established principle that, absent the existence of an agency between them, tenants in common do not stand in privity with one another for purposes of applying res judicata. See Anderson v. Manibusan, 442 F.2d 348, 349 (9th Cir. 1971) ("The heir's may bring an action to quiet title, but one heir who brings such an action may not bind other heir's who were not made parties and were not served with process. A contrary holding would deprive persons of property rights without due process of law."); Olson v. Harveston, 158 Ga. App. 65, 276 S.E.2d 54, 57-58 (Ga. Ct. App. 1981) (where one tenant in common acted as an undisclosed principal for the other, judgment against the first tenant in common operated as res judicata in a later action brought by the second tenant in common); Kirby Lamber Co. v. S. Lumber Co., 145 Tex. 151, 196 S.W.2d 387, 389 (Tex. 1946) ("[Tjenants in common do not claim through or under each other, and there is no such privity between them that a judgment for or against one of them, affecting title to land, will bind the other[s]."); see also 50 C.J.S. Judgments § 1144 (2016) ("As a rule there is no privity between joint tenants or tenants in common with respect to application of the rule of res judicata. Joint tenants or tenants in common do not claim through or under each other, and therefore there is no such privity between them that a judgment for or against one of them affecting the land will bind the other."); 47 Am. Jur. 2d Judgments § 618 (2006) ("The title and interest of co tenants or owners of property, whether their relationship is technically that of joint tenants or of tenants in common, is not derived from or dependent upon the title or ownership of each other, and there is not any agency relationship between co tenants. Because of lack of privity essential to the application of the doctrine of res judicata, a judgment in an action or proceeding to which one or more cotenants are parties, affecting the status, title, or rights in the common property of those who are parties to the suit, will not operate to affect the rights of co tenants not made parties or their'privies." (footnotes and citations omitted)); see generally Restatement (Second) of Judgments § 54 cmts. a-b (1982) (summarizing the rationale behind, and exception to this principle, and collecting cases).
Here, since there is no dispute that Marsh-Monsanto was not acting as an agent of the remaining Marsh heir's, a judgment against her does not affect the ability of the remaining Marsh heir's to adjudicate any interest they may claim in Parcel 6-U. The cases cited by the dissent either deviate from the general principle without explanation, see Reynolds v. JPMorgan Chase Bank, N.A., No. 5:13-CV-440 (MTT), 2014 U.S. Dist. LEXIS 4503 (M.D. Ga. Jan. 14, 2014) (concluding that tenants in common enjoyed "a mutual or successive relationship to the same right" (citing Smith v. Nasserazad, 544 S.E.2d 186, 188 (Ga. Ct. App. 2001))), concern an agency relationship between property owners and a homeowners' association, see Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1083 (9th Cir. 2003), or simply do not speak to whether a judgment against one tenant in common has a preclusive effect on other tenants in common. See Franco v. District of Columbia, 3 A.3d 300, 305 (D.C. Cir. 2010) (concluding that privity did not exist between parties that owned adjacent properties); State ex rel. Schachter v. Ohio Pub. Emps. Ret. Bd., 121 Ohio St. 3d 526, 2009 Ohio 1704, 905 N.E.2d 1210, 1217 (Ohio 2009) (finding privity between a county employee and the employee's director).
The dissent argues that the Superior Court erred in granting summary judgment because the record contains "significant probative evidence" supporting Marsh-Monsanto's claim to Parcel 6-U. The dissent refers specifically to the 1982 deed of partition, a map that depicts Parcel 6-3 and Parcel 6-U as separate properties, tax bills for Parcel 6-U issued to the Marsh family, and a 2003 title and encumbrance statement for Parcel 6-U. Regardless of whether this material evidences a genuine dispute of material fact, the statute of limitations still bars Marsh-Monsanto's claims.
This Court granted the appellees leave to file a supplemental appendix, but that appendix included only the appellees'
We further note that the discussion of waiver in relied on the federal rules and United States Supreme Court case law. This discussion was superseded by the promulgation of Supreme Court Rule 4(h) and our later case law interpreting that rule. Percival, 62 V.I. at 485-86.
Specifically, we reverse the portion of the October 21, 2014 summary judgment order beginning with the paragraph stating that "Remainder of Parcel 6 (composite Parcel 6-U). . . is the same real property more properly and legally described as Remainder of Parcel 6-3," and continuing through the paragraph concluding that "all Defendants claiming title to [subdivided lots within Parcel 6-3]... have valid and enforceable title to their respective parcels."