Sansara A. Cannon v. Fulcrum Construction, LLC.

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IN THE SUPERIOR COL RT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN *tttt SANSARA A CANNON )CASE NO ST 2023 CV-00146 ) )ACTION FOR DAMAGES MANDATORY Plaintiff ) INJUNCTIVE RELIEF SPECIFIC ) PERFORMANCE DISGORGEMENT AND )RBCOVERY OF COMPENSATION PAID TO vs ) UNLICENSED CONTRACTOR CONSUMER )FRAUD MISREPRESENTATION BREACH OF )CONTRACT NEGLIGENCE DECLARATORY FULCRUM CONSTRUCTION LLC ) RELIEF and UNFAIR BUSINESS PRACTICES ) )JURY TRIAL DEMANDED Defendant ) Cite as 2023 VI Super 78U MEMORANDUM OPINION 1“ THIS MATTER is before the Court on Defendant Fulcrum Construction, LLC’s (“Fulcrum”) Motion for Summary Judgment, filed October 10, 2023 Plaintiff Samara A Cannon (“Cannon”) did not respond to the Motion within 30 days as required by V I R Civ P 56(c)(2)(A) On November 23, 2023, the Court denied Cannon’s request for additional time within which to respond to Fulcrum s Motion for Summary Judgment due to her failure to demonstrate neither excusable neglect nor good cause ' For the reasons set forth below, the Court will grant Fulcrum’s Motion for Summary Judgment ' A motion ﬁled before the time to act has passed must show cause, however, a motion ﬁled alter the time to act has passed must show excusable neglect and courts must ﬁnd good cause Cannon 5 reason or lack thereof for not responding within 30 days pursuant to V I R Civ P Rule 56(2)(A) is of importance because Cannon has established a pattern of consistently disregarding this Court 5 procedural deadlines and in the instant matter has fully failed to explain why she did not reward to Fulcrum 5 Motion by November l0 the date ofthe expiration ofthe 30-day period to respond Cannon submitted her request for an extension on November 22, 2023 twelve days after her deadline As the language of V I R Civ P Rule 6 expressly provides. it is the plaintiff‘s burden to show good cause or excusable neglect 111eref0te because Cannon failed to provide some reasonable basis for her failure to respond within the time speciﬁed Cannon failed to establish good cause or excusable neglect for an extension under Rule 6 Excusable neglect and good cause must be shown not concluded People ofthe V I v Hatcher 68 VI 378 381 82 (Super Ct 2018) see also McGaIy v J8 Carambola L L P 69 V l 72 76 20I6 V I LEXIS I66 '4 (V I Super Ct 20l6) ( The Supreme Court of the Virgin Islands has established that in this jurisdiction excusable neglect is essentially synonymous with good cause ) (citing Fuller v Browne, 59 V I 948 955 (V I 20l3)) Dame! v Gov? ofthe V I No ST 17 CV 293 2019 V I LEXIS 8 at ‘4 (Super Ct Jan 3] 2019)( [Clourts have equated good cause with the concept of ‘exeusable neglect which requires a demonstration of good faith on the pan of the party seeking an Cannon v Fulcmm Construction. LLC 2023 VI Super 78U Case No ST 2023-CV 00146 Memorandum Opinion Page 2 of 20 I INTRODUCTION 1|2 Cannon contracted with Fulcrum in December 2021 for interior renovations of her condominium in St Thomas In late December, after work on the initial contract had begun, Cannon authorized the ﬁrst ofeight change orders to which both parties agreed between December 2021 and August 2022 With each change order, Fulcrum provided Cannon with the additional number of days for labor that the new work would add to the initial proposal 2 The change orders also included the additional cost to the initial proposal and a description of the work to be performed Cannon does not dispute that her signature and date of approval is on every contract change order The total cost for the work Fulcrum performed, including all eight change orders, came to $141,587 393 The completed work included dry wall, demolition, painting general construction, electrical, and plumbing 4 The eight change orders added an additional 57 days of labor to the original estimate of 18 days and Cannon made four payments in advance of completion She made a $15,000 005 down payment by check dated December 29 2021, when work began under the initial contract, and subsequently made three more payments to Fulcrum via check $50 000 006 dated February 4 2022 $30 000 00 dated’ May 13 2022 and $20 000 003 dated Aug 22 2022 In total Cannon paid Fulcrum $115 000 00 Both parties agree that the job was completed January 21, 2023 9 Once the work was completed, Fulcrum sent Cannon a ﬁnal invoice for the remaining $27 79l 37 owed under contract Cannon responded by questioning the invoice and providing her own invoice of expenses to Fulcrum '° Cannon maintains she was improperly charged by Fulcrum and alleges that Fulcrum damaged items in her unit, caused additional uncontracted for expenses and created extensive delay and damage that had to be repaired These include additional costs of $50,000 00” plus additional expenses in the amount of $55,165 05 for which Cannon alleges Fulcrum did not reimburse her '2 enlargement and some reasonable basis for noncompliance within the time specified in the tules ), but see Henderson v Gov? ofthe V I at: rel Hams 70 VI 69 73 74 (Super Ct 20l9) (noting that ‘good cause is not necessarily to be interpreted as synonymous to ‘excusabie neglect ‘) Depending on the circumstances the phrase “good cause can also mean something different from excusable neglect E g , Gourmet Gallery Crown Bay Inc v Crown Bay Marina LP 8 Ct Civ Nos 20l5 0I23 2016 0022 20l7VI Supreme LEXIS!“ ‘l0n II (VI July 24 2017)( For the purposes of this Order, ‘good cause means serious illness pre arranged travel pre ordered court appearances, personal or family emergency death or similar circumstances )' accord In re Red Dust Claims, 69 V I 147 159 2017 VI LEXIS 98 ‘20 (VI Super Ct 2017)( If the requestcomes late then good cause must be shown ) I Compl 1ll2 JOpp n Pl 5 Mot & Mem TRO & Prelim [nj 2 ‘ Comp] 1l2 ’Pl 5 Reply Def’s Opp n TRO & Prelim Ex 2 P “Pl 5 Reply Defs Opp n TKO & Prelim Ex ll P 7Def sAnswcr Afﬁrm Def,Counterc! 116 Ex 14 3 Pl 5 Reply DePs Opp n TRO & Prelim Ex [ 4 P 9 Comp! 1l5 '° Pl 5 Reply Det"s Opp n TRO 8: Pteiim at 5 " Compl 1] 41 '2 Comp] 1 42 Cannon v Fulcrum Construction, LLC‘ 2023 VI Super 78U Case No ST 2023-CV 00146 Memorandum Opinion Page 3 of 20 1l3 In addition, Cannon alleges that aﬁer the contracted work was completed she learned that Fulcrum was not properly licensed Cannon asserts that Fulcrum was “not operating with the appropriate general, electrical and plumbing contractor licenses for the work solicited but performed, in violation of 27 V [C §331a and other applicable law”” and that Fulcrum misrepresented its ability to perform the contracted work " {[4 After disputing Fulcrum’s ﬁnal invoice for $27,791 37, Cannon sought administrative review of Fulcrum’s business practices by ﬁling a consumer complaint with the Virgin Islands Department of Licensing and Consumer Affairs (DLCA) on or about February 22, 2023 While the DLCA administrative review was pending, Fulcrum ﬁled a lien against Cannon’s condominium, pursuant to Title 28 V l C Chapter 12 Cannon then ﬁled the instant action on May 8 2023 [1 LEGAL STANDARD A Summary Judgment «5 Summary judgment is governed by Rule 56 of the Virgin Islands Rules of Civil Procedure, which states A party may move for summary judgment identifying each claim or defense— or the part of each claim or defense—on which summary judgment is sought The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law The court should state on the record the reasons for granting or denying the motion " 1|6 Summary judgment will be granted ifthe “pleading, deposition, answers to interrogatories, and admissions on ﬁle, together with the afﬁdavits, if any show that there is no genuine issue of material fact and that the moving party is entitled to ajudgment as a matter of law ”6 A fact is “material” only if its existence or non existence will affect the outcome of a lawsuit under applicable law, and an issue is “genuine” ifthe evidence is such that a reasonablejury could return '3 Comp! 1 36 "' Compl 137 "VI Civ P 56(8) '6 Fed R Civ P 56(c) Celolex Corp v Comm 477 U S 3l7 322 23 (I986) see also Skopbanlcv Allen William: Corp 39 VI 220 227 (DVl l998)' Accord Green v Hess 0:! Virgin Islands Corp 29 VI 27 30 (Super Ct 1994) Cannon v Fulcrum Construction, LLC 2023 VI Super 78U Case No 81‘ 2023-CV 00146 Memorandum Opinion Page 4 of 20 a verdict for the non moving party ”'7 Or, as the Virgin Islands Supreme Court stated in Annlles School Inc v Lembach," summary judgment is appropriate when after “considering all of the evidence, accepting the nonmoving party's evidence as true, and drawing all reasonable inferences in favor of the noumoving party, the court concludes that a reasonable jury could only enter judgment in favor of the moving party ”'9 Summary judgment is proper if the non moving party fails to establish the existence ofan element essential to its case and on which the party would bear the burden of proof at trial 20The simple assertion of a theoretical cause of action or theory of liability is not enough, a showing must be made as to each of the essential elements of the claim 2‘ 1|7 Summary judgment is a “drastic remedy ’ and only proper where “the pleadings, the discovery and disclosure materials on ﬁle show that there is no genuine issue as to any material fact[ ]”22 The nonmoving party must show in its response to a motion for summary judgment that there are “speciﬁc facts showing a genuine issue for trial ”23 In addition, “[t]he non moving party may not rest upon mere allegations but must present actual evidence showing a genuine issue for trial Such evidence may be direct or circumstantial, but the mere possibility that something occurred in a particular way is not enough[ ]”2" For a nonmoving party to show some genuine issue of material fact for trial, “‘the nonmoving party may not rest on its allegations alone, but must present actual evidence, amounting to more than a scintilla,’ in support of its position ’25 Further “[i]f the non movant offers evidence that is ‘merely colorable’ or not ‘signiﬁcantly probative,’ summaryjudgment may be granted ’1‘ Finally the “Court may not itself weigh the evidence and determine the truth, rather, we decide only whether there is a genuine issue for trial such that a reasonablejury could return a verdict for the non moving party ’27 ' Anderson v Liberty Lobby Inc 477 U S 242 247.48 (1986) " 64 V I 400 (V l 2016) '9 Id at 409 ” Celoler at 322 ' White v Westinghouse Electric Co 862 F 2d 56 (3d Cir 1988) Anthony v FlrstBank Virgin Islands 58 V I 224 228 (V l 2013) (quoting Willzams v United Corp 50 V I l9l [94 (V I 2008)) 3 WINMMS 50 V l at 194 (V l 2008) (quoting FED R CIV P 56(e)) see V I R Civ P Rule 56 see also 8031c sews Inc v Gov? ofthe V I . 7| V I 652 658 (2019) (“A movant is entitled to summaryjudgment if there is no ttiable issue of material fact ‘) “ Anlhony 58 V l at 229 (quoting Williams 50 V l at 194 95) ’5 Anderson v American Fed n of Teachers. 67 V I 777, 789 (V I 20”) (quoting Pere V R11 Carlton (Virgin Islands) Inc 59Vl 522 527 28 (VI 20l2)) M Pemberton Sales & Serv v Banco Popular dc P R 877 F Supp 96 ! 965 (D V 1 I994) Williams 50 V I at I95 (citing Anderson v Liberty Lobby Inc 477 U S 242 255 0986)) Cannon v Fulcrum Construction, LLC 2023 VI Super 78U Case No ST 2023-CV-00l46 Memorandum Opinion Page 5 of 20 Ill ANALYSI§ 1|8 As required, the Court reviewed Fulcrum’s Motion on its merits, including Cannon’s Complaint, l4 exhibits totaling 234 pages, and all evidence on the record, consisting of email exchanges, text exchanges, photographs, the parties’ contracts, and all other veriﬁed documents Cannon seeks the following relief, which are primarily based on the allegation that Fulcrum was not properly licensed for the work it performed an issue currently under review by the DCLA l Pteliminary Injunction; 2 Removal and preclusion of lien(s), 3 Declaratory judgment determining rights and obligations of the parties, including adoption of Cannon’s allegation that Fulcrum operated an illegal business in violation of statutory requirements, 4 Statutory penalties for providing alleged unlicensed contractor services, 5 Attomey’s fees, 6 Monetary damages, including punitive and exemplary damages, and 7 Reimbursement of $1 15,000 paid to Fulcrum for work performed 2" Cannon’s Complaint asserts the following causes of action, which the Court addresses below A A private action pursuant to 27 V I C §34l Charges Against License; B Consumer Fraud and Misrepresentation; C Breach of Contract D Negligence, E Declaratory and lnjunctive Relief; and F Unfair Business Practices A Title 27 V I C §34l does not provide a private right of action 1 The DLCA determines whether Fulcrum was appropriately licensed for work performed under contract for Cannon {9 Fulcrum asserts that there is no genuine dispute as to any material facts related to its licensure status and ability to perform the work it performed It maintains that it represented itself to Cannon as a ‘ construction company who also offers professional design service” in its initial proposal 29 Fulcrum also contends that it was a licensed contractor while performing under its 2’Compl at I? 3° Mot Summ J Ex 1 Cannon v Fulcrum Construction, LLC’ 2023 VI Super 78U Case No ST 2023-CV 00146 Memorandum Opinion Page 6 of 20 contract and that ‘where necessary retained other qualiﬁed and licensed professionals to provide subcontractor’s services ’30 {[10 Fulcrum argues that it was properly licensed for the work it performed on Cannon’s condominium;3| and that it never represented itselfas a licensed electrician or plumber, as Cannon alleges Fulcrum does not dispute that it “does not possess a general construction license ” that it is “not a ‘licensee’ under Section 341,” or that it possesses any of the licenses “delineated in 27 V I C 331(a) ” 32 These statutes fall within Chapter IO of Title 27 under the governance of the Vitgin Islands Board of Contractors, Trades and Crafts within the DLCA 1|]! Pursuant to Title 27 V I C § 332, any person that wants to practice in the Virgin Islands as any of the professions listed in Section 331(a) or who wants “to engage in any construction trade as a business” must obtain a license to do so 33 Title 28 V I C §253 describes who is entitled to a construction lien “[A] prime contractor, subcontractor, or subsubcontractor ” Section 254(d) speciﬁcally excludes any contractor, subcontractor, or subsubcontractor who is not licensed as required by Chapters 7, 8, or 10 of Title 27 3‘ A person who has entered into a real estate improvement contract is considered a “prime contractor” or “Contractor" if he has contracted to perform work as deﬁned by statute under deﬁnition of Contractor ’5 Neither party disputes that Fulcrum is licensed by DLCA as masonry and painting contractor 3‘ 1112 Cannon alleges that Fulcrum performed general contracting, electrical, and plumbing work on her condominium without proper licensing to do so ” The issue of whether Fulcrum was pr0perly licensed for work performed is currently under administrative review Aﬁer receiving her ﬁnal invoice from Fulcrum, Cannon ﬁled a claim with DLCA under Section 341 (Charges Against Licensee) in February 2023 to investigate Fulcrum’s licensure and to determine whether Cannon 3° Mot Summ J at 36 3' Mot Summ J at 36 ”Mot Summ J at 30 ’3 See also 21 V I C § 33 la Unlawful practice ofgeneral construction it shall be unlawful for any person to operate as or use the title of contractor or the titles of the following professions within the Virgin Islands unless the person is licensed as provided for in this chapter (I) General Construction Contractor(2) Plumber Contractor(3) Electrician Contractor“) Mechanic Contractor(5) Master Plumber(6) Master Electrician(7) Master Mechanic(8) Fiber Optic Technician ’ “ “A construction lien does not exist under this subchapter in favor of any contractor, subcontractor or subsubcontractor who is not licensed as required by titie 27 chapters 7 8 or IO of the Virgin Islands Code or other applicable law of the Virgin Islands 28 V I C §254(d) “ Pursuant to 27 V I C (5 33l a ‘Contractor‘ is defined as any person contracting or undertaking as prime contractor, subcontractor or sub-subcontractor of any tier to do any erection building construction, reconstruction demolition, repair maintenance or related wont on any public or private project A ‘GeneralConstruction Contractor is deﬁned as “a person or business that contracts to oversee a building project usually involving the use of subcontractors and manages all aspects of the day to-day activities at the jobsite ” “Mot Summ 1 Ex 32 ‘ Comp! 1140 41 Cannon v Fulcrum Conslmcrion, LLC 2023 VI Super 78U Case No 81' 2023-CV 00146 Memorandum Opinion Page 7 of 20 was properly billed for work performed 3‘ Section 341 governs the process for pursuing a grievance against a licensed Contractor General Contractor, or other licensee under Section 331 Pursuant to Section 341, the aggrieved person may ﬁle charges against the licensee with the Virgin Islands Board of Contractors, Trades and Crafts within DLCA Unless the charges are dismissed as unfounded or frivolous, a hearing will be held on all charges after an investigation is conducted As of the date of this Order Cannon has not advised the Court of whether DLCA has concluded its investigation or scheduled a hearing {[13 Jurisdiction of DLCA is conveyed by statute to determine whether Fulcrum’s work falls within parameters ofa “real estate improvement contract, ’ 39 and whether Fulcrum was adequately licensed for work performed ‘0 2 Cannon does not possess private right of action under 27 V I C §34l 1114 “A private right of action is the right of an individual to bring suit to remedy or prevent an injury resulting from an actual or threatened violation of a legal requirement ”“ 1|15 Fulcrum asserts that “the record shows” it was a licensed contractor and that it retained other qualiﬁed and licensed professionals “to provide subcontractor’s services "2 Fulcrum also argues that Cannon’s Charges Against License claim in the instant action is barred as a private right of action 116 Fulcrum points out that the test for whether a statute creates an implied right of action is found in the United States Supreme Court decision Alexander v Sandoval, with the relevant inquiry involving two steps 43 First, the text and structure of the statute must be examined to determine whether the legislature intended to create a personal right Second, the text structure 3‘ Comp] 12 3" Pursuant to 28 V I C § 252(3), 2: real estate imptovement contract ‘ is an agreement to perform services or to furnish materials for the purpose of producing a change in the physical condition of land or of a structure including construction or installation on above, or below the surface of land [and] demolition, repair remodeling or removal of a structure previously constructed or installed ‘ ” See 27 V I C {533 I(a) Unlawful practice of general consttuction “(3) It shall be unlawful for any person to operate as or use the title of contractor within the Virgin Islands unless the person is licensed as provided for in this chapter " Olivev deJongh 57 VI 24 43 (Super Ct 2012)(citing Wisniewskl v Rodale Inc 510 FM 294 296 (3d Cir 2007)) In Ohve, the plaintiff alleged that defendants violated conflict of interest rules in ordet to improve the governors property at the expense ofthe peeple of the Virgin Islands The court held that the conﬂict of intetest laws, V l Code Ann tit 3 §§ 1 too I 108, did not create a private tight ofaction allowing individuals to litigate in the place of the Attorney General It found the conﬂict of interest laws did not contain rights creating language focused almost exclusively on the persons being regulated and not those protected and eteated a comprehensive enforcement method entrusted to the Attorney General Olivev deJongh 57 VI 24 30 (Super Ct 2012) ‘2 Mot Summ .I at 36 ‘3 Alexander v Sandoval 532 U S 275 (2001) Cannon v Fulcrum Construction, LLC 2023 VI Super 780 Case No ST 2023-CV 00146 Memorandum Opinion Page 8 of 20 and legislative history of the statute must be examined to detennine whether the legislature intended to create a private remedy An implied private right of action exists under the statute if the legislature intended to create a personal right and a private remedy ‘4 1117 Section 34l(a) states that “Any person aggrieved by an action of a licensee may ﬁle charges against the licensee as set forth in this section Such charges shall be in writing and shall be sworn to by the person making them and shall be ﬁled with the secretary of the Board The Board, unless dismissed by the Board as unfounded or frivolous, shall hear all charges, aﬁer completing any necessary investigation ” As was the case in Sandoval the express language here permitting the implementing regulation includes no provision for implementing private enforcement rights ‘5 1]18 Turning to the second step to determine whether the legislature intended to create a private remedy"6 “an express provision of one method of enforcing a substantive rule suggests [emphasis added] that the legislature intended to preclude other methods of enforcement Furthermore, ‘the existence of a comprehensive remedial scheme in the statute’ :mplies [emphasis added] that no private right of action exists outside of the method[s] articulated ”“7 Section 341 provides for only one method of enforcement and contains its own remedial scheme 4‘ Accordingly, the existence of this scheme implies an intent to preclude other methods of enforcement 1119 Without an implied personal right or provision for private remedy, 27 V I C (5341 does not provide for a private right of action, and “[i]n cases dealing with the Department of Licensing and Consumer Affairs Virgin Islands courts have determined that exhaustion of administrative remedies should occur before a case is ripe before judicial review ”“9 Even assuming arguendo that Cannon had a private right of action the reality remains that no triable issue as to any material fact exists because DLCA has not yet made a determination on her claim 5° As a matter of law, 27 V l C §34l does not provide for a private right of action With respect to Cannon’s asserted claim of a private cause ofaction pursuant to 27 V 1 C Court ﬁnds Fulcrum has met its burden regarding Cannon’s Claim for private right of action under 27 V I C §341 Charges Against License ‘4 Ohvev deJongh 57V] 24 44 (Super Ct 20l2) ‘5 Alexander v Sandoval 532 U S 275 278 (200|) “ Sandoval 532 U S at 286 ‘7 Joseph v Legislature oflhe VI No ST ll CV-4l9 20l7 VI LEXIS I75 at ‘I9 20 (Super Ct Apr l2 2017) (citing Olive at 44) (quoting Sandoval at 290) “It is an ‘elemental canon' of statutory construction that where a statute expressly provides a remedy, courts must be especially teluctant to provide additional temedies Olwe v deJongh 57 V l 24, 46 (Super Ct 20l2) (citations omitted) ‘9 Rondon v Canbbean Leasing& ECO Tramp Inc 74 VI 397 398 (Super Ct 202]) 5" See Martin v Marlin. 54 V l 379, 38l (20l0)( On summary judgment, the nonmoving puny possesses the burden of setting out speciﬁc facts showing a genuine issue for trial ' ) Cannon v Fulcrum Construction, LLC 2023 VI Super 78U Case No ST 2023-CV-00l46 Memorandum Opinion Page 9 o! 20 B There is no genuine dispute as to any material fact concerning Canaan’s Claim for Consumer Fraud and Misrepresentation 1120 Fulcrum argues that it “made no representation that it was licensed in all areas of construction,” and that it “operated openly on the basis that it was collaborating and engaging other professionals and entities such as electricians or plumbers ”5' Fulcrum maintains “that when the scope of work was expanded at Plaintiff‘s request to include electrical, plumbing, HVAC, and glass installation work, Fulcrum engaged individuals or companies who specialize in those areas ”52 The record is devoid of any statements or representations made to Cannon otherwise Fulcrum’s December 21, 2021, email to Cannon containing its initial proposal described the entity only as a construction company who also offer professional design services ” 53 1121 Fraud in the Virgin Islands is deﬁned as a knowing misrepresentation of truth or concealment of a material fact to induce another to act to his or her detriment 5" When alleging fraud, Rule 9 of Virgin Islands Rules of Civil Procedure afﬁrms that “a party must state with panicularity the circumstances constituting fraud ” “Courts have determined that to meet this particularity requirement, a complaint alleging fraud normally includes the time, place and content of the false misrepresentations, the facts misrepresented, and the nature of the detrimental reliance ”55 “To properly state a claim for fraudulent misrepresentation, a plaintiff must allege that a fact was misrepresented, and that the plaintiffrelied on that misrepresentation to her detriment ”56 “To succeed on a claim of fraudulent misrepresentation one must prove that the maker ofa contract ‘intends his assertion to induce a patty to manifest his assent and the maker (a) knows or believes that the assertion is not in accord with the facts, or (b) does not have the confidence that he states or implies in the truth of the assertion or (c) knows that he does not have the basis that he states or implies for the assertion "'57 $22 Cannon alleges that in representing Fulcrum, Lekwan Gregory Agyei Gregory, and Kai Smith, “knowingly made false and fraudulent representations” to her“ She alleges that they represented that they were general contractors and “held themselves out to be licensed general, drywall, electrician and plumbing contractors without being licensed as such by the DLCA ” Cannon also alleges that they were not properly licensed as they represented to her and that they 5' Mot Summ J at 35 ’ Mot Summ J at 32 33 ”Compl Ex 3 :; gmdon v Caribbean Leasmg & ECO Tramp Inc 74 V I 397 398 (Super Ct 202!) “Néuyenv Nguyen No ST 20w cv-463 2022 v1 LEXIS 6 at ‘I3 15 (Super c: Jan 4 2022) 5’ Pollarav Chateau S! Crow LLC 58 VI 455 4'“ (2013) 5' Comp! 147 Cannon v Fulcrum Constmcllon, LLC 2023 VI Super 78H Case No ST 2023CV 00146 Memorandum Opinion Page II) of 20 performed construction services that caused damages, delays, and expenses 5" Cannon contends that she reasonably relied on the alleged representations made to her and that had she known that Fulcrum was “not licensed in the area of construction including general, electrical and plumbing and other contractor work besides painting and masonry,” she would never have retained or paid Fulcrum in advance to perform and complete the work in her home 6° 1R3 Cannon claims that because of alleged fraud and misrept'esentation, she incurred damage “in a sum the exact amount of which has yet to be ascertained,” but which she alleges to be ‘in excess of $170,165 ”6' Cannon further assetts that when she “ascertains the exact amount of her damages she shall seek leave of Court to amend” her complaint “according to proof at the time of trial ”62 1|24 Cannon does not state with any particularity circumstances constituting fraud such as the time or place such misrepresentations were made As the nonmoving party Cannon has had the burden to set out speciﬁc facts showing a genuine issue for trial The court may not weigh the evidence, but instead, the court must view all inferences from the evidence in the light most favorable to the nonmoving party and take the nonmoving party's conﬂicting allegations as true if properly supported ‘3 The Court has carefully reviewed the record and ﬁnds that no material facts in the record refute Fulcrum’s evidence of its representations made to Cannon regarding licensing or performance of work outside the scope of its licensing The Court ﬁnds Fulcrum has met its burden of demonstrating that no genuine dispute exists as to any material fact related to fraud or misrepresentation by Fulcrum, and it is entitled tojudgment as a matter of law C Fulcrum has demonstrated no genuine dispute exists as to any material fact in regards to Canaan’s claim for breach of contract 1|25 Fulcrum contends that it ‘ performed its contractual obligations in a workmanlike manner and did not breach its duty” to Cannon 6‘ The elements of a breach of contract claim are (1) an agreement, (2) a duty created by that agreement (3) a breach of that duty, and (4) damages 6‘ As explained above, the moving party here Fulcrum bears the burden to show that the record is devoid of a triable issue of material fact ’9 Compl NB 9 I6 «I Compl 145 °' Compl 146 ‘2 Compl 146 ‘3 Pollara v Chateau SI Croix LLC No SX 06 CV~4ZS 20l6 VI LEXIS 49 at ‘1 (Super Ct May 3 2016) 6‘ Mot Summ J at 45 ‘5 Bane Sew: Inc v Govloflhe VI 71 V I 652 653 (2019) Cannon v Fulcrum Construction, LLC 2023 VI Super 78U Case No ST 2023-CV 00146 Memorandum Opinion Page II of 20 1126 It is undisputed that the parties had a contracted agteement followed by eight change order agreements all signed by both parties for the work performed on Cannon’s condominium There are no disputable issues as to the duties created by these agreements Cannon alleges that Fulcrum breached its duty by l) failing to provide licensed contractor services, 2) failing “to complete the construction in a reasonable timeframe as indicated in change orders of at minimum a couple ofdays at maximum a couple of weeks” and 3) failing ‘ to reimburse funds for expenses and certain damages and costs caused by delay and construction work that had to be redone ”66 I Fulcrum has demonstrated that no genuine dispute of material fact exists concerning the status of its licensure 1|27 Fulcrum argues that it was properly licensed for the work it performed under its license as Masonry and Painting Contractor from DC LA and that the record presents inadequate dispute of material facts to sustain a breach of contract claim concerning improper licensing As already discussed above, Cannon ﬁled a claim with DLCA challenging whether Fulcrum maintained the appropriate licenses for the work it completed and performed on her condominium DLCA 5 review is pending; however, the mere ﬁling of a complaint with DLCA does not equate with a valid claim for breach of contract based upon having an allegedly improper license Aside from Cannon’s complaint with DLCA, Fulcrum asserts that no genuine dispute of material fact exists challenging its “censure The Court ﬁnds that until DLCA discerns that Fulcrum performed work it was not appropriately licensed for, Cannon cannot rely on this as a cause of breach of contract Furthennore, upon review ofthe record, the Court ﬁnds no triable issue of material fact concerning Fulcrum’s licensure for the work it performed and Fulcrum is entitled to summary judgment on the issue as a matter of law 2 Fulcrum demonstrates that no genuine dispute of material fact exists concerning the timeframe for completion of performance 1128 Fulcrum assetts that Cannon herself contributed to an extended completion date by adding additional work outside of the original contract, and by requesting design changes that resulted in delays outside the control of the parties, such as product delivery times Fulcrum argues that Cannon authorized a total of eight change orders that were added to the original contract over an eight month period from December 2021 through August 2022 ‘7 Fulcrum further asserts that Cannon initiated most of the change orders Shortly after the parties agreed to their ﬁrst contract, on or about December 3 l , 2021, Cannon approved and executed the ﬁrst ofthe eight change orders, all of which contain her signature 6‘ Fulcrum provided Cannon with an initial work schedule “ Compl 151 ‘7 Mot Summ J 11|l4 IS 6' Mot Summ J 17 Cannon v Fulcrum Construction, LLC 2023 VI Super 78U Case No 81‘ 2023 CV-00146 Memorandum Opinion Page 12 of 20 corresponding with the original contract and each subsequent change order contained information as to only the additional days of labor that would be added 1|29 Fulcrum argues that within days of the ﬁrst change order and before work on the original contract and the ﬁrst change order was completed, Cannon executed a second change order to address remedying damage to the existing plumbing in the unit before work on the drywall of the original contract could be completed ‘9 Then again, on January 26, 2022, “before work on the onginal contract and the first two change orders were completed, Cannon approved another change in scope of work "7° Fulcrum states that the design changes requested were substantial and extensive 7' Fulcmm provides before and after photographs demonstrating the extent of improvements made in the areas where it performed the contracted work Fulcrum includes photos that Cannon herself used of the completed spaces for her listing to advertise the condominium for sale 1130 Fulcrum provides substantial evidence of Cannon 3 acknowledgement that additional delays would be caused by the additional work that she requested 7’ Fulcrum further asserts that as late as ‘ on or about August IS, 2022,” Cannon requested even more work that had not been “contemplated by the prior work orders and which resulted in Change Order No 8, the ﬁnal change order "73 Furthermore Fulcrum argues that Cannon was not satisﬁed with the height of the glass installed on the staircase ‘ such that new glass had to be ordered, which caused additional delay with the completion of the project ”74 Fulcrum asserts that Cannon informed Fulcrum of her intention to pay the ﬁnal remaining balance by stating in a lengthy text in August 2022 that “some of the remaining costs like the ﬁnishing and glass which make up the remaining 27k will be paid once those items are actually completed ’75 Fulcrum argues that the record fails to present a genuine dispute of material facts to sustain Cannon’s claim of breach of contract based on an unreasonable delay in completion of work 1B] As a matter of law, the time within which a contract is to be performed by a contractor may be waived or extended by an owner “The waiver or extension may be implied as well as express, and what acts or omissions will constitute a waiver depends on their nature and circumstances of the case Therefore, an owner waives the delay when he either (1) makes ‘° Mot Summ J 19 7°Mot Summ J 11l0 7' Mot Summ J 113 7’ The record demonstrates that in mid June 2022 Cannon approved a change order with warning that the requested work would potentially include between eight to twelve weeks of delay for completion See Mot Summ J Ex [0 (email exchange between Cannon and Agyei Gregory) 7’ Mot Summ J 126 7" Mot Summ J 133 7’ Mot Summ J 1|38 Cannon v Fulcrum Construction, LLC 2023 V] Super 78U Case No ST 2023-CV 00!“ Memorandum Opinion Page 13 of 20 payments to the contractor after expiration of the stipulated time for completion of the work, (2) assents to the continuance of the work aﬁer the time for the completion of the work has expired, or (3) accepts and pays for the work without objection “[W]here the agreement for extension or waiver is silent as to the duration of the extension, the law implies that it shall be for a reasonable time ”7‘ Here, Cannon made (1) multiple payments to Fulcrum throughout the period it performed on her contracts between December 202i and August 2022, (2) assented to the continuance of the work by Fulcrum as demonstrated in her initiation and approval ofall work orders throughout the same time period, and (3) accepted and paid for the work Fulcrum performed until she receiVed the ﬁnal invoice Furthermore, none ofthe parties’ agreements contained a “time is ofthe essence” clause 1132 The Court ﬁnds that Fulcrum meets its burden of demonstrating that there is no triable issue of concerning Cannon’s claim of unreasonable delay Fulcrum argues “[[]t is inconceivable, that Plaintiff would insist on ‘Design Changes’ that required new installation, rerouting of lines, and even Design Plans, that she did not provide and believe that such extensive changes would be compteted in a timeframe of at minimum a couple of days at maximum a couple of weeks ”’77 The Conn agrees Summary Judgment is appropriate where there exists no genuine dispute as to any material facts In review of the record, including Cannon’s complaint, the Court ﬁnds that Fulcrum has met its burden by demonstrating that the work contracted for and performed by Fulcrum was not unreasonably delayed 3 Fulcrum has met its burden by demonstrating that there is no genuine dispute as to any material fact that it fully reimbursed Canon for any lost or damaged items 1133 Fulcrum argues that it fully reimbursed Cannon for any lost items and that it remedied any damage it caused fully at its own expense and without cost to Cannon Fulcrum argues that that the record shows no dispute as to material facts on the matter Fulcrum asserts that it reimbursed Cannon for items that were damaged and that it repaired drywall at no cost to Cannon Furthermore, Fulcrum argues that these reimbursements and repairs were accepted by Cannon before August 15, 2022 when the ﬁnal invoice was ﬁrst submitted 73 1134 Both parties acknowledge ﬂooding created damage in the condominium on or around August 2022 79 and that Fulcrum repaired the damage After reviewing the record the Court ﬁnds that no triable issue of material fact exists related to Fulcrum charging Cannon for these repairs All eight change orders with descriptions of work and the accounting within were approved by 7" @ewmv Morton No 77l I992 1999 VI LEXIS 50 at ‘I9 20 (Apr Id I999) (internalquotations and citations gmhldtbifgumm I at 40 Compl $51 "Mot Summ J at 46 7’ Mot Summ 1 Ex ll Cannon v Fulcrum Construction, LLC 2023 VI Super 78U Case No ST 2023-CV-00146 Memorandum Opinion Page [4 of 20 Cannon Cannon did not challenge any of the change orders that she approved, and the record shows Cannon was aware of the ﬁnal invoice balance owed as early as August 2022 1135 Fulcrum argues that there is no genuine dispute of material fact as to issues of damage, poor workmanship, or allegedly owed reimbursements for damage, delays, or substandard performance Fulcrum points out that alter the glass railing was ﬁnally received and installed on January 21, 2023, it conducted a “punch list” walkthrough with Cannon, to identify ﬁnal items for completion Fulcrum asserts that it also conducted a ﬁnal walkthrough with Cannon’s uncle and representative, who indicated approval on her behalf 1B6 Cannon alleges that Fulcrum owes her reimbursements for “expenses and certain damages and costs" caused by a delay of performance and “construction work that had to be redone ” Cannon further contends that Fulcrum damaged “drywall, stairs, vanities, clothing rack, walls, barn doors, fumiture, stair tops, stair wood, stair tile, tiles, shower, and tub”, that it allowed “to go missing vanity, light, drains, mattresses, knobs, patio furniture parts, and warranties”, that it charged “for items and labor not installed including swing, new kitchen cabinets, blinds, railing/beams”, and that it double charged “on labor work including electtical, drywall, paint, cleaning and stair”Bo The voluminous exhibits ﬁled by Cannon do not support her claims of damage 3‘ Cannon also alleges with no evidentiary support that Fulcrum took funds from her before completing work and delayed completion of work “causing over $50,000 additional costs and expenses that have not been repaid ”8’ {[37 Cannon lists a litany of items in her Complaint that were allegedly damaged or lost, but the Court ﬁnds that the only speciﬁc reference to damages owed to Cannon on the record is an invoice that Cannon submitted to Fulcrum after the initial contract and all change orders were completed and aﬂer she had received Fulcrum’s ﬁnal invoice Her invoice included insurance payments of $16 312 46 on her condominium ‘ because no sale of condo allowed to happen”; Property Taxes of $582 47 ‘ because no sale of condo allowed to happen prior to due date”, Cleaning fees of $800 “that had to paid due to additional construction”, Travel and hotel expenses ($1,482 40 travel) ($2,435 39 hotel) that had to be paid because condo wasnt ready and for construction and to secure house so key and condo not left open to the public”, “Monthly HOA Fees from 2022 February January 2023 that had to be paid because no sale ($9 387 20)' WAPA Bill of $253 54 for June through September and $950 for allegedly damaged property that ‘° Comp! 142 " Cf Quaternary Res Investigations LLC v Phillips 2018 I543 (La App lCir ll 19 20) writ denlgd,2020-0l450 (La 3/2/20 3|! So 3d l0$9 (ﬁnding homeowners were entitled to damages award of $154 483 S7 in contractor's action against homeowners to recover temaining amount allegedly due under contract for tcnovations, where homeowners presented ample evidence that work performed by contractor was defective substandard or incomplete La Civ Code Ann art 2762) ’ Comp] 141 Cannon 9 Fulcrum Constructlou, LLC 2023 VI Super 78U Case No ST 2023-CV 00146 Memorandum Opinion Page [S of 20 included a patio chair, patio wine rack, patio tile, sun and rain wear and tear, and bathroom shower door 33 138 The Court ﬁnds there is no basis in law or fact that provides legal basis for reimbursement of these expenses to Cannon 3" Moreover, these additional alleged and unsubstantiated expenses were primarily incurred during the same timeframe as the change orders that Cannon requested and approved ‘5 {39 The record is devoid of any material facts to dispute Fulcrum’s assertions The record provides no receipts or afﬁdavits for repair work or other work performed that was paid for outside ofCannon’s agreements with Fulcrum 3" On the other hand, the record shows that reimbursements were made to Cannon for items that she claims she was not reimbursed for 8’ Fulcrum is burdened with demonstrating that no triable issue exists as to whether Cannon is owed reimbursement offsetting the amount billed in her ﬁnal invoice Speciﬁc facts must show a genuine issue worthy of trial as Opposed to mere general allegations and denials ‘3 1|40 Fulcrum argues that there is no genuine dispute as to material facts that demonstrate it did not breach its contract with Cannon As already addressed above, the issue of licensure for work performed is under review by DLCA Until DLCA discerns that Fulcrum performed work that it was not appropriately licensed for, Cannon cannot rely on this as a cause of breach of contract Summary judgment is proper if the non moving party fails to establish the existence of an element essential to its case and on which the party would bear the burden ofproof at trial ‘9 Here, the third and fourth elements for a successful breach of contract claim are missing Fulcrum has met its burden of proof in this regard Speciﬁc facts must show a genuine issue worthy of trial as opposed to mere general allegations and denials 9° After combing the record, the Court ﬁnds that no genuine '3 Mot Summ J 140 “ Pl 5 Reply Det‘s Opp n TRO & Prelim at 5 ’5 See Compl 122 Cannon argues that ‘ From December 202| through September 2022 Plaintiff was unable to list her condo for sale or live in the condo and incurred additional travel lodging, condo fee, insurance electricity, and all damage to property expenses as a result of Defendant s unleasonable delay However all eight ofthe change orders were approved by Cannon and were submitted between December 202l and August 2022 “ Mot Summ J Ex ll ‘7 Change Order Number 7 (July 12 2022) and Invoice #21 0 103D 00004 (July 4 2022) providing $1 352 6] in credit for sink/vanity stair tops storage fee and vinyl tile, Mot Summ J Ex l2 (Email from Cannon on July 2, 2022, requesting that a future change order include reimbursements for “vanity, stair tops return/damage tile returns storage fees, etc ’ ), Compl at 38 (listing items allegedly owed for) “ See Brodhurst v Fm ier 57 V I 365 392 (20l2) (“The mere existence of some alleged factual dispute between the parties is not enough to defeat an otherwise properly supported motion for summary judgment ') '9 See Celotex Corp v Carrel! 477 U S 3 I7, 322 23 (I986) (“In such a situation, there can be "no genuine issue as to any material fact " since a complete failure of proof concerning an essential element of the nonmoving patty 5 case necessarily renders all other facts immaterial ) ’° See Bradhursr v Frazrer 57 V I 365, 392 (20l2) (‘T‘he mere existence of some alleged factual dispute between the parties is not enough to defeat an otherwise properly supported motion for summary judgment ) Cannon v Fulcrum Construction, LLC 2023 VI Super 7811 Case No ST 2023-CV 00146 Memorandum Opinion Page 16 01' 20 dispute of material fact exists on the matters of licensing, time period of contract completion or reimbursements owed that would offset Cannon’s debt The Court ﬁnds Fulcrum is entitled to judgment as a matter of law D Cannon’s negligence claim is barred under the economic loss doctrine 1141 “The economic loss doctrine prohibits plaintiffs from recovering in tort economic losses to which their entitlement flows only from a contract The general rule is that economic losses may not be recovered in tort (negligence) absent physical injury or property damage ’9' “The purpose of the economic loss rule is to prevent panics from recovering in tort to extricate themselves from prior freely negotiated agreements [, but] tort duties arise to protect individuals unable to protect themselves from the unscrupulous actions of others and irrespective of the existence of a contract ”92 1142 When appropriate, Virgin Islands courts apply the doctrine in support of the public policy goal to “honor and enforce the allocation of risk to which the parties have agreed previously and to maintain analytical clarity between different areas of law, ie to prevent contract law [from] drown[ing] in a sea of tort ”‘ 93 1143 Here, the claim of negligence sounds in ton, and Cannon’s claim arises solely from her contractual relationship with Fulcrum The duties that Cannon alleges were breached were duties created and grounded in the contract as amended by the change orders, and any liability stems from the parties’ contracts Cannon’s negligence claim essentially duplicates her breach ofcontract claim Although Cannon alleges improper licensure as giving rise to her negligence claim, Fulcrum’s licensing status has not been deemed improper by the DLCA, and Cannon’s mere allegation is insufﬁcient as material evidence The Conn ﬁnds that the parties allocated the risks of their bargains contractually Accordingly, Cannon’s negligence claim is barred under the economic loss doctrine 9‘ 9‘ ngo v Soulhland Gammg ofthe United States V I Inc No ST 10-CV 116 2010 V I LEXIS 62 at ‘1 (Super Cl Sep 22 2010) accord Turnbull v Univ ofthe V I No ST 07 CV 239 2016 V1 LEXIS 22 at '1 (Super Ct $303 (13116"): UnuedStales V! v Takala Corp 67 V1 316 42l 22 (Super Ct 20l7) ”Turnbullv Univ ofthe 1’] No ST 07 CV 239 2016 V1 LEXIS 22 at ‘17(Super Ct Mar 2 2016) (citing Eds! River Steamsth Corp v Transamerlca Delaval Inc 476 U S 858 866 (1986)) 94See Turnbull v Umv ofthe Virgin Islands No ST 07 CV 239 2016 WL 1047893 at *5—6 (V 1 Super Mar 2 2016) Cannon v Fulcrum Construction, LLC' 2023 VI Super 78U Case No 81‘ 2023-CV-00146 Memorandum Opinion Page I? of 20 E As a matter of law, Cannon :3 not entitled to declaratory or injunctive relief {[44 Cannon conﬂates the relief of remedy with a cause of action Neither declaratory relief nor injunctive relief are causes of action They are remedies The Court denied Cannon’s Motion for Temporary Restraining Order in June 2023 and for the reasons set forth above, the Cannon is not entitled to declaratory relief I Injunctive Relief is not warranted 1145 The Virgin Islands Supreme Court has identiﬁed four factors to consider in deciding whether to grant a motion for temporary restraint order and/or preliminary injunction 1) Whether movant has shown a reasonable probability of success on the merits 2) Whether the movant will be irreparany banned by denial of the relief 3) Whether granting preliminary relief will result in even greater harm to the nonmoving party; and 4) Whether granting the preliminary relief will be in the public interest 95 1]“ The party seeking an injunction bears the burden of proof as to all four factors 9" With respect to Cannon’s Motion for Preliminary Injunction, the Court ﬁnds that Fulcrum has demonstrated that no genuine dispute of material fact exists Cannon did not demonstrate a likelihood of success Her allegation that Fulcrum was operating with inadequate licensing is hypothetical and is currently under scrutiny by the DLCA aﬁer Cannon ﬁled a claim with the agency Although Cannon maintains that she is owed for damages Fulcrum caused while fulﬁlling its contract both patties agree that the work Fulcrum and Cannon coutracted for was completed Before and aﬁer photos of the project demonstrate a drastic improvement The record shows a proper accounting of the amount Fulcrum claims Cannon owes for work performed, and both parties agree that they contracted in writing for the amount Fulcrum is claiming The evidence corroborates this There is no diSpute of these or any other material facts on the record 1|47 Moreover, the irreparable harm required for a preliminary injunction must be imminent harm that cannot be remedied by monetary damages 9’ There is no legal basis upon which this ”3RC& Co v Haynes Trucking 8y: 63 VI 544 [550] 96Id 9’ A puny seeking injunctive relief must demonstmte that the injunction is necessary to avoid certain and imminent harm for which a monetary award does not adequately compensate in othet words, harm without an adequate legal remedy And because the pteservation of the counts power to render a meaningful decision after Mal on the merits is a basic principle of preliminary injunction law. the Supreme Court of the Virgin Islands agrees with those courts——— both state and federal that have held that a party moving for a pteliminary injunction must demonstrate primarily Cannon v Fulcrum Construction, LLC 2023 VI Super 78U Case No ST 2023-CV-00146 Memorandum Opinion Page 18 of 20 Court can order Fulcrum to withdraw its lien while DLCA’s review is pending Fulcrum maintains that it ﬁled a lien to protect its security interest in order to recover a disputed debt Fulcrum has a statutory right to ﬁle its lien Cannon filed her claim with this Court after Fulcrum ﬁled its lien The Court finds that under the circumstances, of which there is no genuine issue of material fact (I) there is no imminent harm or irreparable injury presented by the presence of the lien, and (2) a monetary award would adequately compensate Cannon if she were entitled to an award of damages 9" 148 In considering whether granting preliminary relief will result in even greater harm to the non moving party the Court ﬁnds in favor of Fulcrum Any injury that Cannon may suffer by Fulcrum’s construction lien remaining intact during DLCA’s review pales in comparison to what Fulcrum may suffer if it is prevented from exercising its right ofremedy by ﬁling a lien [f Fulcrum did not ﬁle within the ﬁrst 90 days after completion of work, it would have lost its right to ﬁle a lien for the debt owed—disputed or not 99 The DLCA review may continue without interference either way Until this debt dispute is reconciled, Cannon’s property is essentially held as collateral, but Cannon has not lost her property, nor has she lost access to her property nor the use of it '°° This factor weighs against granting injunctive relief 149 As Fulcrum’s counterclaim proceeds, Cannon has the right to present evidence on the merits of Fulcrum’s claim and to argue that it should be offset or reduced by any sums that Cannon may claim were caused by alleged damage to her property '0‘ If Fulcrum is restrained from foreclosing on its lien or delayed in that process, its lien is still protected so long as it follows that statutory requirement However, Fulcrum is banned by the delay in recovery of the money it claims it is owed Accordingly, this factor weighs against injunctive relief {[50 “The effect on the public interest to be considered by this Court is not that justice be done, but that speciﬁc acts presumptively beneﬁting the public is not halted until the merits could be reached and a determination made as to what justice is required '02 The Court ﬁnds that it is in that irreparable harm is likely without the injunction ' 3RC& Co v Baynes Trucking 8y: 63 V I 544 545 See also 80ml v Klein 75 VI I9, 20 (VI Super Ct August 16, 2021)(‘ln the context ofa preliminary injunction Vitgin Islands counts deﬁne irreparable injury or harm as ham that is certain and imminent for which a monetary award does not adequately compensate ) 9‘ Bassil 9 Klein 75 VI 19 20 (Super Ct 202!) ( However the Supreme Court of the Virgin Islands does not recognize a rule that presumes irreparable injury when a party is denied its use ofa property right If a party is moving f0: a preliminary injunction based on the loss or deprivation of a real property right the party must demonstrate sufﬁcient evidence of imparable ham that the Court can evaluate using the Petrus factors ’) ”28 V l C §264 '°° The damage or loss of a property right is not automatically presumed to constitute irreparabie harm in the Virgin Islands Basulv Klein 75 VI 19 22 (Super Ct 202!) '0' See28 V [C §27l “’2 Yusefv ﬂamed 59 V I 841 857 (2013) Cannon v Fatima": Construction. LLC 2023 V] Super 78U Case No ST 2023-CV-00l46 Memorandum Opinion Page l9 of 20 the public interest to allow parties access to legal avenues of remedy Unless DLCA rules otherwise, Fulcrum met the requirements giving rise to placement of a construction lien on Cannon’s property pursuant to Title 28 V I C Chapter 12 No precedent exists for dissolving Fulcrum’s lien while DLCA’s review is pending Fulcrum maintains that it ﬁled a lien to protect its security interest in order to recover a disputed debt While there is strong disagreement between the parties on the propriety of Fulcrum's recorded construction lien, there is insufficient evidence for the Court to conclude that Fulcrum acted in bad faith In fact, the existing record shows no evidence of bad faith '03 Cannon ﬁled her claim with this Court after Fulcrum ﬁled its lien, and both parties have every right to prosecute their claims as long as there are genuine issues of material fact to be disputed Accordingly, this factor weighs in Fulcrum‘s favor 151 Cannon alleges that there is no basis for payment of Fulcrum’s ﬁnal invoice and that Fulcrum should be precluded from ﬁling a lien because statutory contractor and licensing requirements were not met She has no proofof this as DLCA review her claim of these allegations is still pending The Conn ﬁnds that Fulcrum has adequately demonstrated that Cannon’s claim involves no genuine dispute of material facts and injunctive relief is not warranted 2 Declaratory Relief is not warranted 152 As discussed above, the remedy of Declaratory Relief is not a cause of action and it is not justiﬁed here For its part, Fulcrum provides a descriptive accounting of its claim for the contracted amount due from Cannon in writing and with Cannon’s signatures "’4 No genuine dispute exists as to any material fact with respect to Cannon’s claims of misrepresentation, fraud, negligence, or breach of contract by Fulcrum Accordingly the Court determines that declaratory relief is not warranted F No genuine dispute of material fact supports a claim of Unfair Business Practices 1l53 For reasons discussed above this claim fails based on lack of a genuine dispute as to any material fact on the record indicating that Fulcrum engaged in unfair business practices '0’ The tequirement for the grant of reliefunder 28 V l C § 275 (“Wrongful conduct under this chapter remedies ’) is a ﬁnding of bad faith actions taken by the claimant “Bad faith ‘is not simply bad judgment or negligence, but rather it implies the conscious doing of a wmng because of dishonest purpose or moral obliquity it contemplates a state of mind affirmatively operating with furtive design or ill will (1-! I Conslr LLC v Bay Isles Assoc: LLLP, 53 V I 206 222 223)(quoting In re I 99 GrandJury 215 F 3d 430 436 (4th Cir 2000))(citations omitted) :04 See Celorex Corp v Carrel! 477 U S 317 322 24 (I986) Cannon v Fulcrum Construction, LLC 2023 VI Super 78U Case No ST 2023-CV 00146 Memorandum Opinion Page 20 of 20 IV CONCLUSION 154 The Court ﬁnds Fulcrum meets its burden of demonstrating that there exists no genuine issue as to any material fact that it is entitled to summary judgment as a matter of law on Cannon 3 Complaint Summary Judgment motions must be granted unless the opposing party “provides evidence ‘such that a reasonable jury could retum a verdict for the nonmoving patty '05 Cannon argues that there is no basis for payment of her debt to Fulcrum However, Fulcrum has demonstrated there exist no facts to support Cannon’s allegations of statutory violations or improper accounting Fulcrum is entitled to summary judgment in its favor on Cannon’s Complaint ””6 A judgment consistent with this Memorandum Opinion follows DATED December IR 2023 W 77\ ?Owuxyo DENISE M FRA COIS Judge of the Superior Court of the Virgin Islands ATTEST TAMARA CHARLES Clerk of 0 BY LATOY CAMACHO Court Clerk Supervisor 12d 2 2023 M Brodhurs! v Fm [er 57 V I 365 39l (2012) (citation and quotation marks omitted) I“"V I R Civ P 56(c)(2) “Ihe summary judgment procedure resolves unsustainable claims and defenses in advance of trial, thereby narrowing the number of outstanding legal issues and serving the interests ofjudicial economy and efﬁciency Accordingly, the Court applies these legal principles to the Motion