David Dangler Moir v Mark Waldron Andrew

• Jurisdiction: Bermuda
• Judge: Mussenden J
• Judgment Date: 18 February 2022
• Court: Supreme Court (Bermuda)
• Docket Number: CIVIL JURISDICTION

Between:

(1) David Dangler Moir

(Co-Executor of the Estate of Tia Dangler Andrew, Deceased)

(2) Ronald Brown Moir, Jr

(Co-Executor of the Estate of Tia Dangler Andrew, Deceased)

Plaintiffs/Respondents

and

(1) Mark Waldron Andrew

(2) Marsha Lynn Andrew

Defendants/Applicants

[2022] SC (Bda) 11 Civ

CIVIL JURISDICTION

2020: No. 142

In The Supreme Court of Bermuda

Appearances:

Sam Stevens, Carey Olsen, for Plaintiffs

Saul Dismont, Marshal Diel & Myers, for Defendants

RULING

RULING of Mussenden J

Introduction

1 This matter came before me by the Defendants' Summons dated 18 November 2020 to set aside the default judgment dated 30 October 2020. It is supported by the First Affidavit of Mark Waldron Andrew sworn 16 July 2021 and Exhibit “ MWA-1”.

2 The Plaintiffs opposed the application. They relied on the Affidavit of David Moir which was sworn on 19 March 2020 and the First Affidavit of Joyce Waddell-Dublin sworn on 17 March 2020 and Exhibit “ JWD-1” both in support of the Plaintiffs' ex parte application for an interim injunction against the Defendants.

Background

3 The Plaintiffs are US citizens and resident of Massachusetts. They are the co-executors and duly appointed personal representatives of the estate of their late mother, Tia Dangler Moir ( Tia). A US citizen, Tia passed away in Bermuda on 18 October 2018 aged 89 having been a resident and homeowner on the island for over 40 years.

4 The First Defendant/Applicant Mark Andrew is Tia's step-son. He is the offspring of the late Bermudian David Andrew, Tia's second husband. Mark Andrew is a Bermudian.

5 The Second Defendant/Applicant Marsha Andrew is Mark Andrew's wife. Marsha Andrew is a US citizen and a Bermuda status holder.

6 David Andrew died in March 2012. From late 2012 until Tia's death, the Defendants acted (with the consent and agreement of the Plaintiffs) as Tia's full-time care givers and were remunerated by Tia and the Moir family for their services. They lived with Tia in her substantial shore-side Bermuda home, Commonland Point House, which is set on a plot of over 1.8 acres on the north side of Harrington Sound ( Tia's House).

7 Tia's Last Will and Testament dated 28 June 2012 (“ Tia's Will”) inter alia bequeathed all of her tangible personal property to the Plaintiffs. As her co-executors and personal representatives, the Plaintiffs are empowered to “ divide and distribute [Tia's] tangible personal property by any means they consider fair and practicable…” 1.

8 Without notice to the Plaintiffs or any other member of the Moir family, in August 2014 Tia conveyed the remainder interest in Tia's House to Mark Andrew for $1 while retaining a life interest in the property for herself. The transaction was not revealed to the Plaintiffs until several months later. In Case No. 405 of 2019, the Plaintiffs are seeking to have the conveyance set aside, and Tia's House transferred back to Tia's estate, on the grounds that the Defendants procured the conveyance by exerting undue influence over Tia (the “ Conveyance Case”).

9 Between May and July 2019, the First Plaintiff David Moir came to Bermuda in his role as co-executor and personal representative, and in accordance with Tia's Will, to inspect, inventory, pack and ship to the United States all of Tia's tangible personal property located in Bermuda. In the course of that process:

• a. certain of Tia's possessions located in Tia's House that the Plaintiffs intended to have shipped to the US did not arrive at the intended destination in the US and have disappeared. The missing chattels are (a) a Monchablon oil painting; (b) a Sloop painting; (c) a pair of antique French prints; and (d) a bronze Italian firescreeen (the “ Missing Chattels”).

• b. certain of Tia's possessions which the Plaintiffs were aware of from photographs and discussions with family members could not be located in Tia's House. The disputed chattels are (a) a handmade, gold-braided wedding ring belonging to Tai Andrew; (b) a Lladro porcelain statute of two herons; (c) a Lladro porcelain statue of a family of eight elephants; (d) a Cloisonné artwork of herons; and (e) a framed painting of a Zebra (the “ Disputed Chattels”).

10 In relation to the Missing Chattels, shortly after it was discovered they were missing the Plaintiffs instructed law firm Carey Olsen to speak with BEST Shipping, the company hired in Bermuda to transport Tia's possessions by sea freight to the US. The Plaintiffs

formed the opinion based on the discussions they had with BEST Shipping that it was extremely unlikely that the Missing Chattels ever left Tia's House

11 Following its conversations with BEST Shipping, Carey Olsen was instructed by the Plaintiffs to write to the Defendants requesting access to Tia's House in order to locate and collect the Missing Chattels, and also to enquire as to the whereabouts of the Disputed Chattels. Correspondence ensued between Carey Olsen and law firm Marshall, Diel & Myers for the Defendants which failed to resolve the issue.

12 In accordance with their duties as co-executors and personal representatives of Tia's estate, the Plaintiffs filed and served a Generally Endorsed Writ of Summons (the “ Writ”) dated 10 June 2020 seeking inter alia a declaration that the Defendants have wrongfully converted certain chattels belonging to Tia's estate.

13 On 29 July 2020 the Defendants entered an appearance in response to the action.

14 On 25 August 2020 the Plaintiffs' Statement of Claim (the “ SOC”) was served on the Defendants' counsel.

15 On 30 October 2020, the Defendants having failed to file a Defence within 14 days after the service of the SOC, the Plaintiffs applied for and obtained a Default Judgment. The Default Judgment was obtained more than 8 (eight) weeks after the Defence was due.

16 On 18 November 2020, almost 3 (three) weeks later, the Defendants filed a Summons seeking to set aside the Default Judgment. However, contrary to the requirements of Order 19 rule 9 of the RSC, the Summons was not supported by affidavit evidence setting out the merits of the proposed defence and any reasons relied on for allowing the Default Judgment to be entered.

17 On 16 July 2021, almost nine months later, affidavit evidence in support of the Summons was filed, when the Defendants were faced with an unless order from the Court dated 8 July 2021.

Affidavit Evidence of Mark Andrew

18 Mark Andrew gave an explanation in his affidavit as to why a Defence was not filed. His reasons were as follows:

• a. Marsha Andrew was served with the Writ in this matter. He was never served. When he found out about it, he thought that it was to do with the Conveyance Case. He was not familiar with court proceedings as he had never been sued by anyone or sued anyone.

• b. When he received the SOC in this matter, he did not realise that he had to provide another Defence in addition to the one already provided in the Conveyance Case. He noted that the SOC did not say that he had to file a Defence.

• c. His attorneys may have explained that he had to file a Defence, but he does not recall as it was a very stressful period for several reasons. He and Marsha Andrew had two US actions and a Bermuda action by the Plaintiffs against them. They were travelling between the US and Bermuda for the purpose of emptying Marsha Andrew's US house and selling it and shipping contents to Bermuda. They were helping to arrange their son's wedding and renovate his house all during the disruption of the COVID pandemic. In addition, he was operating his office furnishings business at a time when offices were closing down in Bermuda. Also, he and Marsha Andrew take care of their elderly parents who have health issues.

• d. It was during that busiest, anxious and most challenging time of their lives that they missed the deadline for filing their Defence.

• e. He noted that he understood from his counsel that it is common practice for attorneys to first contact opposing counsel prior to filing Default Judgment but that his counsel were never notified by opposing counsel prior to seeking Default Judgment.

19 Mark Andrew explained the process that took place at Tia's House in respect of the contents. In May 2019, paralegals from the Plaintiffs' attorneys attended Tia's House to start the process of emptying items that the Plaintiffs wanted. From approximately 30 June until 3 July 2019, packers from BEST Shipping attended Tia's House. They were under the complete charge of David Moir who had sole direction of them and directed what items were to be taken. Marsha Andrew gave no direction at all at any time. David Moir explained that he was taking what he wanted and whatever was left behind could be thrown away or they could have it. Mark Andrew explained that he and his wife Marsha Andrew did not interfere with or have anything to do with the items David Moir had packed by BEST Shipping. They had no knowledge of what happened to them and they would not have wanted them as they have no real understanding of art. He had heard David Moir saying that one of Tia's paintings was valuable but he had no idea which one and he had expected it was shipped. The same applied to the painting of a Sloop, the French prints, the brass fire screen and Tia's wedding ring which was on a box in her bedroom dresser, which David Moir took.

20 Mark Andrew gave explanations about specific items of which he and Marsha Andrew had some knowledge:

• a. The Lladro Statues – These were not part of Tia's estate as they were given to Mark Andrew by Tia and his father prior to his father's death. In any event, David Moir did not take them.

• b. The Cloisonné artwork of herons. These were not part of Tia's estate as they were given to Marsha Andrew prior to Tia's death. In any event, David Moir did not take them.

• c. The framed painting of a zebra. This was not part of Tia's estate as it was given to Marsha Andrew's...