Gourmet Gallery Crown Bay, Inc., Zakaria Suid v. Crown Bay Marina, L.P. /Counterclaim

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IN THE SUPERIOR COURT OF THE VIRGIN lSLANDS DIVISION OF ST THOMAS AND ST JOHN **** GOURMET GALLERY CROWN BAY INC ) CASE NO ST 2014 CV 00513 and ZAKARIA SUlD ) ) ACTION FOR DECLARATORY Plaintiffs, ) JUDGMENT, lNJUNCTION, v ) REFORMATION RESCISSION ) ESCROW OF RENT CROWN BAY MARINA L P ) AND DAMAGES ) Defendant ) JURY TRIAL DEMANDED ____—_________) ) CROWN BAY MARINA L P ) ) Counterclaimant, ) v ) ) GOURMET GALLERY CROWN BAY [NC , ) and ZAKARIA SUID ) ) Counterclaim Defendants CAMPBELL C RHEA ESQUIRE (Zimmer & Rens LLC) Brookﬁeld WI and GORDON C RHEA ESQUIRE of (Gordon C Rhea P C ) St Thomas VI and JOSEPH B ARELLANO Esquire (Arellano & Associates), St Thomas, USVI, for the PIamtzﬁwaounterc/azm Defendants RAVINDER S NAG! ESQUIRE and ADAMN MARINELLI ESQUIRE (of BOLTNAGI PC), St Thomas USVI, for the Defendant/Counter clatrnant Cite as 2024 Super 13U MEMORANDUM OPINION ORDER ﬁll Pending before the Court are l Plaintiffs’ Motion and Memorandum of Law in Support of Emergency Motion for Issuance of a Preliminary Injunction and a Permanent Injunction, ﬁled June 6 2017, 2 Plaintiffs’ Motion Requesting Ruling on Plaintiffs’ Emergency Motion for Issuance of a Preliminary Injunction and Permanent Injunction, ﬁled December 3, 2018; Gourmet Gallery Crown Bay, 1m. , e! a! v Crown Bay Manna, L P 24 VI Super l3U Case No ST 2014 CV 00513 Memorandum Opinion and Order Page 2 of 18 3 Defendant’s Response to Plaintiffs’ Motion Requesting Ruling on Plaintiffs Emergency Motion for Issuance of a Preliminary Injunction and Permanent Injunction, ﬁled December 18 2018; and 4 Plaintiffs Reply to Defendant’s Response to Plaintiffs’ Motion Requesting Ruling on Plaintiffs’ Emergency Motion for Issuance of a Preliminary Injunction and Pennanent Injunction ﬁled January 3, 2019 112 Previously, this Court denied Plaintiffs Gourmet Gallery and Zakaria Suid’s (herein referred to collectively as ‘ Gourmet ’) Motion for Preliminary Injunction ﬁled in 2014, ﬁnding that, although Gounnet was able to demonstrate a likelihood of success on the merits,I it was not in danger of irreparable harm and injunctive relief was not in the public interest Gourmet seeks to prohibit the sale of certain items by tenants of Crown Bay Marina Given that Gounnet’s instant Motion for Preliminary and Permanent Injunction before the Court contains similar arguments based on similar premises as its previous unsuccessful Motion some of which are now rendered moot it will be denied and a combined trial and hearing on the merits ofthe Motion for Permanent Injunctive Relief has been scheduled 1 I BACKGROUND 1|3 This matter has been pending for over nine years and involves a variety of disputes between a commercial landlord, Crown Bay Marina (“CBM”), and its tenant, Gourmet Gallery 3 On or about June 7, 199], Gourmet Gallery and Crown Bay Marina Joint Venture I entered into a Lease CBM is the successor in interest to Crown Bay Marina Joint Venture I 4 The Lease provided that CBM, as Landlord, would lease space at Crown Bay Marina to Tenant Gourmet Gallery in exchange for period payments of rent and other charges Zakaria Suid is the President and Chief ' In order to show a reasonable probability of success on the merits, a party need not show that it will actually prevail on the merits at trial or that success is ‘more likely than not,” but only that there exists a reasonable chance or probability, of winning See Yusufi Hunted, 59 V I 841, 849 (2013); see also Sam’s F00d Distrlbs Inc v NNA&0 LLC, 73 V I 453 454 (2020) ( Unlike a preliminary injunction which requires only a showing of probability of success on the merits to obtain a permanent injunction, the moving party must demonstrate actual success on the merits of the claim ”) ’ In its Reply brief for the instant Motion, Gourmet requested an evidentiary hearing pertaining to its requests for Declaratory Judgments (Gounnet’s Reply at 10 Jan 3, 2019) however, it later stated that the matter was ‘ripe for ruling because the Court is fully apprised ’ of the parties “positions on all matters related to the two counts for Declaratory Judgments," the issues have been fully briefed and the Court ‘has all the information required to rule ” (Pl s Reply to Def 3 Resp to P15 Second Req for Ruling Issuance of at Dec] J , & Enforcement of Orders at 8, 9 [8 (Dec 23 2021)) ‘ CBM 5 Answer PIS First Am Comp! Afﬁrmative Defenses & Countercl at 7 (June 19 2017) * Def 3 Answer Pls Second Am Comp] , Afﬁnnative Defenses, & Countercl 1|7 (Aug 13, 2021) Gourmet Gallery Crown Bay, Inc , e! a! v Crown Bay Manna, L P 24 VI Super 13L Case No ST 2014 CV 00513 Memorandum Opinion and Order Page 3 of 18 Executive Ofﬁcer of Gourmet Gallery 5 On November 5, 2014, Gourmet ﬁled its initial Complaint alleging that CBM was in breach of the exclusivity clause of their lease agreement due to the opening of a new ice cream parlor Scoops and Brew (“S&B ’) Gourmet contends that particular goods sold by 8&8 constitute groceries” within the meaning of the Lease Agreement, and the Lease Agreement prohibits CBM from leasing space in Crown Bay Manna to another tenant that sells groceries 6 114 Gourmet ﬁled a Motion and Renewed Motion for Preliminary Injunction on November 7, 2014, and January 29, 2015, respectively, petitioning this Court to close S&B The Motions were denied, and Gourmet appealed The Virgin Islands Supreme Court afﬁrmed this Court’s decision, ﬁnding that, although Gourmet was able to demonstrate a likelihood of success on the merits, it was not in danger of irreparable harm, and the public interest would be best served by allowing S&B to remain open 7 In so afﬁrming, the V I Supreme Court considered the panies’ lease which contained a restrictive covenant that, with some exceptions, gave Gourmet the exclusive right to sell certain items on CBM’s property Those items include, but [are] not necessarily limited to, the following merchandise Gourmet cooking oil and spices Wine, beer, liquor, sodas Deli and bakery Fresh and frozen meat Tobacco products Magazines and newspapers High quality canned and bottled products (e g gourmet jellies and vegetables) Fresh pastas Custom order department (i e charter yacht provisioning)[ ] The covenant continues Tenant and Landlord hereby agree that Landlord is not providing Tenant with any exclusive right to the sale of the above described merchandise except that, as long as Tenant provides such goods and services with displays and inventories appropriate to Tenant 3 Crown Bay Marina Landlord agrees to not lease space in the manna for a store which shall carry groceries, liquor, produce, drugs, delicatessen, ﬁsh and meat or the items listed above Finally, the covenant provides three exceptions, which allow CBM to lease its property to the following 5 PIS Second Am Compl Wei (July 29 2021) °Pls Mem Law Supp PIS Renewed Mot Prelim lnj l 2 (Jan 29 2015) 7 Order (Nov 11 2015); Gamma! Gallon)! Crown Bay Inc v Crown Bat Manna L P , 68 VI 584 (2018) Gourmet Gallery Crown Bay, Inc, et a! v Crown Bay Marina, L P 24 V1 Super 13U Case No ST 2014 CV 00513 Memorandum Opinion and Order Page 4 of 18 (a) A hotel operator that shall, as part of its services, sell food, sundries and bottled liquor to hotel guests for ‘ in room” consumption (b) Any tenant who shall operate its leased premises as a bar or restaurant, and (c) Tenants that carry specialty packaged food products or liquor as novelty or gift items, so long as such products shall not represent a principal part (in excess of 30%) of its overall inventory The lease agreement does not deﬁne the tenns ‘ grocery, “groceries,” “store,” or “restaurant ” On September 1, 2014, S&B entered into a lease agreement with CBM to rent a 200 square foot Gazebo located approximately thirty feet from the front entrance of Gourmet Gallery 8 115 The lease agreement between CBM and S&B states that the permitted use of the premises leased by S&B is as an “ice cream parlor,” selling specialty coffee, logo merchandise, [and] prepared food items ’9 S&B’s business license in 2014 showed it licensed as a “coffee shop and ice cream parlor ”'0 S&B sells milkshakes, a variety of baked goods, boxes of brand name tea various snack bars, soft serve ice cream, regular and vegan gelato, at least seven ﬂavors of sorbet, and various brews of prepared coffee (e g , Americano, cappuccino, latte, mocha, chai tea, affogato )II 116 In September 2014, Suid sent a letter to Dennis Kissman, President of CBM’s Marina Management Services, expressing his opposition to S&B’s lease Suid emphasized an amendment to Gourmet’s lease that he had signed with CBM the week prior, which required him to invest $500,000 in capital improvements as a condition of exercising a six year option under the amendment Suid noted that, during the amendment negotiations, and on three prior occasions, he had expressed his intention to establish a ‘full service coffee shop within Gourmet Gallery ‘2 Suid 8 Gourmet Gallely Clown Bav Inc 1 Crown Bay Marina L P , 68 V I 584 587 588 (V I 2018) 9 Crown Bay Marina Commercial Space Lease Agreement Prelim Inj Hrg Joint Ex 9 at 2 '0 Order & Mem Op at 3 (Nov 10, 2015) In 2018 S&B 3 business license categorized S&B as a Coffee Shop & Ice Cream Parlor, Delicatessen, Tavern, and Tavemkeeper A Gamma! Galler Crown Bav Inc v Gown Bay Manna L P 68 V I 584 (2018) As of the date of the instant Order Department of Licensing and Consumer Affairs (DLCA) lists S&B’s license type as Coffee Shop & lee Cream Parlor Tavern Tavemkeeper A (Distilled & Fermented ’ https secure dlca vi gov license Asps Search/SearchResultsnew aspx 'BusName &LocAddress &LicType &Bus Activity-&LicenseNo &Is1and &SearchTexl scoops°020&°020brew (lastvisited Feb 23 2024) " See Def 8 Opp 11 P13 Renewed Mot Prelim Inj Ex A (purporting to be copies of photographs of the interior of S&B displaying various items offered at S&B) (Feb 13 2015) l 68 V] at 589 Gourmet Gallery Crown Bay, Inc , e! a! v Crown Bay Manna, L P 24 VI Super l3U Case No ST 2014 CV 00513 Memorandum Opinion and Order Page 5 of 18 also reminded CBM that over the previous several months he offered to take over the gazebo and to pay rent for the premises and reiterated his offer in the letter '3 CBM responded to Suid’s letter through counsel in a letter dated October 8, 2014, claiming that S&B was not going to sell any items Gourmet currently offered, and that Gourmet did not have the exclusive right to sell the items S&B would offer '4 117 The Superior Court held an evidentiary hearing in May 2015 where Kosei Ohno, president of CBM, “testiﬁed that part of the reason Suid and CBM negotiated the new amendment was because Suid had been delinquent for the previous three years, and had accumulated a rental arrearage balance of approximately $ 100,000 '5 118 At the hearing Suid testiﬁed that CBM had approached him in 1991 about opening a second Gourmet Gallery store at the Marina, and that the restrictive covenant was a condition upon which Suid agreed to sign the lease '6 Because Gounnet’s lease does not deﬁne the relevant tenns grocery,‘ “groceries, ’ and “restaurant, ’ the parties gave conﬂicting testimony disputing whether S&B is a “restaurant, ’ and whether the items S&B sells are ‘ groceries,” as contemplated within the contours of the restrictive covenant '7 119 On November 5, 2014, Gourmet ﬁled a complaint with the Superior Court, alleging that it is entitled to (l) a preliminary and permanent injunction either enjoining CBM from leasing to S&B, or requiring S&B to sell items other than those that Gourmet sell; (2) a declaratory Judgment that CBM breached its lease with Gourmet and that Suid is not obligated to invest the $500,000 in capital investments previously agreed upon, (3) an order reforming 0r rescinding Suid’s personal guarantee of the $500 000 (4) an order permitting Gourmet to escrow rent pending litigation; (5) a declaratory judgment and a preliminary and permanent injunction allowing Gourmet to audit common area expenses and charges CBM imposed upon the store; and, (6) nominal, compensatory and consequential damages S&B was never made a party to this action Gourmet ﬁled a Second Amended Complaint in 202] that added a petition for a Declaratory Judgment alleging CBM breached the Lease Agreement by refusing to repair Gourmet Gallery’s roof '8 1110 Since the Superior Court 3 denial of Gourmet’s Motion in 2015 and the Supreme Court’s decision to afﬁrm in 2018, the impact of two category ﬁve hurricanes in 2017 and a subsequent worldwide pandemic have taken their toll on the landscape of this case Gourmet Gallery closed ”Id at 589 I4 [d '5 Id "’ Id at 590 17 1d '3 Pls Second Am Comp] 111170 71 (July “9 2021) Gourmet Gallery Crown Bay, Inc , e! a] v Crown Bay Marina, L P 24 VI Super l3U Case No ST 2014 CV 00513 Memorandum Opinion and Order Page 6 of 18 its doors to business due to hurricane damage and the enduring impasse between the parties The instant Motion for Preliminary Injunction was ﬁled Just a few months after Gourmet Gallery closed '9 1|“ Although Gourmet Gallery remains closed as of the date of this order, Gourmet has expressed that it would like to reopen Gourmet Gallery 20 It asserts CBM intentionally prevents Gourmet Gallery from reopening by reﬁising to make repairs to the property ’1 For its part, CBM alleges that because Gourmet failed to ﬁllﬁll its obligations under the parties’ Lease Agreement the Lease has expired by its own terms, and that Gourmet is a holdover tenant 22 [1 LEGAL STANDARD 1112 A preliminary injunction is ‘ an extraordinary and drastic remedy ’ awarded only “upon a clear showing that the plaintiff is entitled to such relief”23 In contrast to legal remedies such as money damages, injunctive relief is an equitable remedy 2“ Pursuant to Rule 64 of Virgin Islands Rules of Civil Procedure, the Court may issue a preliminary injunction upon notice to the adverse patty 2’ {[13 The Court considers four factors in ruling on a motion for preliminary injunction (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparany injured by denial of the relief; (3) whether granting preliminary injunction relief will result in even greater harm to the nonmoving party; and (4) whether granting '9 The Court stayed Gourmet 3 previous Motion for Preliminary injunction ﬁled June 6, 2017 pr: hurricanes because of its similarity to the petition that was before the Virgin Islands Supreme Court at the time The V I Supreme Court's review of the Court 3 Memorandum opinion and Order dated November 10, 2015, involves issues too similar to those presented in Plaintiffs present motion for injunctive relief ’ Order granting stay at 4 (Dec 1 l, 20l7) 7° Pls Second Am Compl 1155 (July 29 2021) ( Plaintiffs wish to reopen a soon as possible ) Pls Reply Der Resp Pls ’ Mot Requesting Ruling Pls ’ Emergency Mot Issuance Prelim [nj & Permanent lnj at 10 ((Jan 3 2019) ( Plaintiffs hope to reopen as soon as possible ) " Gourmet ﬁled its Second Amended Complaint on July 29 2021 adding Count VI s allegation of breach of contract based on CBM’s refusal to repair the property‘s roof after damage from the 2017 hurricanes “ Def 5 Answer Pl 5 Second Am Compl , Afﬁnnative Def s and Counterclaims 1H] 26 27 32 45 46 (Aug 12, 2021) CBM ﬁled an action of ejectment asserting that Gourmet is a holdover tenant (1] 46) and that CBM demanded in writing that Gourmet vacate the premises pursuant to CMB’s Notice to Quit and Notices of Intent to Enforce Landlord s Lien (1147); CBM further asserts that Gourmet Gallery failed to comply with the terms and conditions of the Lease Documents and is in default for failing to pay principle, interest, and CAM charges due (‘32) CBM also alleges that Gourmet Gallery failed to exercise its Lease thension Option prior to the expiration of the Lease on January 31, 2016 and that it failed to complete ‘minimum Capital Improvements’ as agreed upon in the Fifth Amendment (1?" 26 27) 3 Yusuft Humed 59 V l 841 847 (2013) " 3RC& C0 t Bomes Tmtkmg Sys 63 VI 544 545 (2015) ‘VI R Civ P 65(A)(l) Gourmet Gallery Crown Bay, 1m. , er al v Crown Bay Marina, L P 24 VI Super 13U Case No ST 2014 CV 00513 Memorandum Opinion and Order Page 7 of 18 the preliminary relief will be in the public interest 2" The four factors must be evaluated under a sliding scale standard 27 The moving party must “demonstrate that the injunction is necessaiy to avoid certain and imminent harm for which a monetary award does not adequately compensate 23 However, irreparable injury alone is not enough to support equitable relief The moving party must also make at least some showing that it has a reasonable probability of success on the merits 29 III ANAYLSIS 1114 CBM argues that a ruling on Gourmet’s Emergency Motion for Preliminary Injunction would have little practical effect because Gourmet Gallery has been closed since 2017 and because the Motion is rendered moot under the Mootness Doctrine ’ CBM also maintains that Gourmet has not demonstrated irreparable harm and that no emergencies exist because Gourmet is no longer open for business CBM further argues Gourmet is precluded from litigating the instant Motion under the doctrine of collateral estoppel A Mootness Doctrine 1115 CBM argues that the underlying subject matter of Gourmet 5 “emergency ’ request for a preliminary injunction concerned only the ongoing alleged ﬁnancial impact of the operation of S&B’s sales upon Gourmet Gallery’s sales 3" In support, CBM cites Der Weer v Hess 011 Virgin Islands Corp 3' A motion becomes moot, according to Der Weer “when something occurs after a motion is ﬁled that resolves the issues raised in that motion ”3° “In general, a motion is still pending ‘3RC& C0 63Vl at550 " Id 3 [d at 554 (2015) (internal quotation omitted) Id at 555 ‘ Der Resp Pls Mot Requesting Ruling Pls Emergency Mot Issuance Prelim Inj & Pemianent Inj at 4 (Dec 18 2018) Def Countercl s Resp PIS Second Request Ruling Issuance DeclaratoryJ , & Enforcement of Orders at 7 (Dec 10 2021) "Der Wee: 1 Hess 011 I ugm Islands (01;) 60 V I 91 (Super Ct 2014) ( ‘A motion is moot when a court is unable to fashion any form of meaningful relief” ) (citations omitted) In De; Wet; Plaintiff estate ﬁled a wrongful death action against defendant companies in which plaintiff alleged that defendants were responsible for exposing the decedent to asbestos and other toxic substances One defendant ﬁled a motion to strike plaintiff‘s claim for punitive damages, and other defendants joined in the motion Plaintiff and one defendant both agreed that that particular defendant 5 motion to strike punitive damages had become moot and the parties resolved their dispute amicably The motion remained pending, however, as to two other defendants which had joined the motion and had not been dismissed Furthermore the fact that the court denied a motion to strike punitive damages in another case did not render the motion in the present case moot and the other case was distinguishable because it involved a survival claim 1d at 93 ‘ Del Wear 1 Hess Oil lugm Islands COIp 60 V I 91 99 (Super Ct 2014) Gourmet Gallery Crown Bay. Inc e! u! v Crown Bay Manna L P 24 V1 Super 13U Case No ST 2014 CV 00513 Memorandum Opinion and Order Page 8 of 18 if it has not been ruled on, dismissed or resolved ’ 33 Black 5 Law Dictionary deﬁnes moot as [h]aving no practical signiﬁcance; hypothetical or academic ”34 1H6 Gourmet’s motion has not been ruled on, dismissed, or resolved Therefore because the motion is still pending, the Court must determine whether it has become moot The Court ﬁnds Der Wee; distinguishable from the instant case The Court in Der Wear found a motion to strike was moot where the relevant parties had settled and conceded that the motion was moot The motion was not moot, however, for other parties that had joined the motion but had not yet settled In the instant matter, only CBM raised the mootness issue and Gourmet is far from conceding 1117 According to the Virgin Islands Supreme Court, [t]he central question in a mootness problem is whether a change in the circumstances that prevailed at the beginning of litigation has forestalied the prospect for meaningful relief ”35 Although Gourmet shut its doors for business at Crown Bay Marina three months after ﬁling the instant Motion in 2017, Gourmet argues that it retains a viable lease with CBM and that it is eager to reopen as soon as possible 36 Gourmet avers that it has not remained closed by choice, but rather because of CBM s intentional refusal to repair hurricane damage allegedly in violation of the parties’ Lease 37 Gourmet further argues that the instant Emergency Motion filed in 2017 while it was still open ‘ sought judicial intervention to prevent [CBM] from allowing competing businesses in Crown Bay Marina from selling items in violation of Gourmet’s exclusivity clause ”33 Gourmet contends that it was “fully operational and seeking to protect its rights under the Lease’ but was purposely forced to “shutdown indeﬁnitely against its will ’ because CBM refused to repair roof damage, which Gourmet alleges is “a breach of the Lease that continues to this day ‘39 CBM, on the other hand, asserts that Gourmet is no longer a welcome tenant because it breached its contractual obligations well before the hurricane damage ever occurred to the property CBM further asserts that because the paxties’ Lease 33Id at 98 (citing 56 Am Jur 2d Motions Rules and Orders § 31 (2010)) 3" Moot Black 3 Law Dictionary (1 1th ed 2019) 35 Virgin Islands Tart Ass'n v Vugin Islands P0)! Au!!! 67 V I 643, 663 (2017), accord, ScAou v M001 head, No SX 16 CV 071 2016 V I LEXIS 73 at *5 6 (Super Ct June 10 2016)( A matter before the Court is deemed moot ‘ when there is no issue between parties that can be resolved by the court ) 3" Pls Second Am Compl 1155 (July 29 2021) ( Plaintiffs wish to reopen a soon as possnble ) Pls Reply to Det‘s Resp Pls Mot Requesting Ruling Pls Emergency Mot Issuance Prelim Inj & Permanent Inj at 10 ((Jan 3 2019) ( Plaintiffs hope to reopen as soon as possible”) 3 P13 Reply Der Resp Pls Mot Requesting Ruling Pls ’ Emergency Mot Issuance Prelim Inj & Permanent Inj at4(Jan3 2019) 38Pl s Reply Def 5 Resp Pl 8 Second Request Ruling Issuance Declaratory .1 & Enforcement Orders at 10 1 1 (Dec 21 2021) 30 [d Gourmet Gallery Crown Bay, Inc , e! a! v Crown Bay Marina. L P 24 V1 Super l3U Case No ST 2014 CV 00513 Memorandum Opinion and Order Page 9 of 18 Agieement has expired, Gourmet is no longer entitled to options for extending the Lease Agreement 40 1118 Clearly changes have transpired ‘ in the circumstances that prevailed at the beginning of litigation, but unlike the scenario for particular parties in De; Weer, it is not a fait accompli that “the prospect for meaningful relief is now thwarted Gourmet could still reopen its doors as a viable tenant since a jury will decide the merits of the restrictive covenant and whether CBM ﬁrst breached the parties lease by permitting S&B to sale the particular items contested by Gourmet Notwithstanding, the Court must balance this hypothetical reality with the principle that ‘ an injunction cannot be broader than necessary to restrain the unlawful conduct complained of and that “a court issuing an injunction must ensure that it is narrowly tailored to ﬁt the particular circumstances of the case ”4' 1119 Another consideration is that the mootness doctrine in the Virgin Islands is “a non jurisdictional claims processing rule that has been incorporated into Virgin Islands law only as a matter ofJudicial policy ”"2 It functions in the courts of the Virgin Islands as a claims processing mic that is subject to waiver should the party asserting the issue fail to raise it in a timely manner 43 Gourmet ﬁled the instant Emergency Motion for injunctive relief before the Virgin Islands Supreme Court afﬁnned denial of its initial 2014 Emergency Motion44 about three months before the 2017 hurricanes forced Gourmet Gallery to close for business 45 CBM waited four years to raise the issue in December 2021, and only in its response to Gourmet’s Second Request for 40The expiration ofa contract generally moots claims for injunctive relief with respect to that contract See 9 g , 4CLU ofMass v U S Conference ofCatholic Bishop? 705 F 3d 44 53 (I 9! Cir 2013) ( It is ordinarily true that a challenge to a contract becomes moot upon that contract's expiration (citations omitted»; Commer v Dist Council 37, No 94 CIV 8462 (DAB) 2003 U S Dist LEXIS 12454 at *17 2003 WL 21692816 at *5 (S D N Y July 21 2003) (ﬁnding a plaintiff‘s claim for injunctive relief to be moot where the challenged contract expired and the plaintiff did not amend his complaint to encompass any present or ﬂiture contract) aff‘d 96 Fed Appx 777 (2d Cir 2004) 4' VI Tax: Ass'n v V] P0)! .4th , 67 V l 643, 665 (2017) (citing Caribbean Healthways Inc v James, 55 V I 691, 700 (V 1 201 1)) (citations omitted) 4 Mapp 1 Fawkes 61 V I 521 530 2014 WI. 6237520 at *4 (V 1 2014) (citing Buyamm 1 AIG Ins Co ofPR 56 VI 558 564 (V I 2012) and Va qucz 1 Va qucz 54 VI 485 489 n 1 (V1 2010)) sce also Hendeison a )8] Henderson 1 Slimselu, 562 U S 428 (2011) (‘ Non jurisdictional claim processing rules’ are rules that seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain speciﬁed times ) ‘3 See Benjamin 1 A10 Ins Co 0/ Pueno RICO, 56 V I 558, 564 65 (2012) In Benjamin R W became eighteen in February 2009, while the case was being actively litigated before the Superior Court Despite that fact, the defendant waited until the case was on appeal nearly two years later to raise the issue of standing Because of the unexplained delay in raising the potential standing issue, the Court found the defendant waived any argument based on Benjamin's standing, see also In re Guardianship 0me1111, 54 V I 517, 524 n 5 (V 1 2010) ( “[A] litigant may waive its right to have a court apply a judicially created standing doctrine by not timely asserting that right ) ‘4 Gourmet also ﬁled a Renewed Motion for Preliminary Injunction in 2015 ”‘5 The Superior Court stayed Goumiet’s 2016 Motion for Preliminary Injunction pending the Supreme Court s decision on Goumiet 5 previous Motion for injunctive relief After the Supreme Court ruled on the matter in 2018, Gourmet ﬁled the instant renewed motion for injunctive relief Gourmet Gallery Crown Bay, Inc , e! a! v Crown Bay Manna, L P 24 V1 Super 13U Case No ST 2014 CV 00513 Memorandum Opinion and Order Page 10 of 18 Ruling Issuance of Declaratory Judgment and Enforcement of Orders 46 Although the Court ﬁnds CBM’s argument compelling, CBM failed to raise the matter in a timely matter Accordingly, the issue of mootness is waived and does not preclude the Court from considering Gourmet 5 pending Motion B Collateral estoppel 1120 “To bar relitigation of an issue under the doctrine of collateral estoppel, an asserting party must demonstrate (l) the issue to be barred is identical to an issue actually and necessarily decided in the prior action; (2) the prior action was adjudicated in a decision that was ﬁnal, valid, and on the merits; (3) the party against whom the doctrine is asserted was a party or in privity with a party to the prior action; and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior action "‘7 Also known as issue preclusion, collateral estoppel is premised on “promoting judicial economy and efﬁciency, the stability of ﬁnal judgments, and fairness to litigants ”43 {[2] CBM argues that Gourmet’s Motion at bar should be denied under the doctrine of collateral estoppel or issue preclusion, because ‘ the exact same issue involving the same parties and based on the same leasehold provisions and theory of recovery already was decided by the V 1 Supreme Court when it afﬁrmed this Court 3 denial of Gourmet’s previous Motion for Preliminary Injunction 49 CBM maintains that Gourmet’s latest motion is simply ‘ a reiteration of their prior Request for Preliminary Injunction, but with more speciﬁc details about alleged quantiﬁable damages 50 1122 Countering, Gourmet contends that the instant Motion for Preliminary Injunction is different because the previous Motion dealt with only two grocery items and whether CBM could 4“ Def (Countercl s Resp P15 ’ Second Request Ruling Issuance Declaratory J & Enforcement of Orders at 5 (Dec 10 2021) ‘7 Stewartt VI Bd ofLand Use Appcals 66 V1 522 522 (2017) (f Greene 1 V] Water) & Pane; Auth 65 V l 67 67 (Super Ct 2016) (‘ The collateral estoppel doctrine, also commonly known as issue preclusion can be broken down into four elements (I) the previous determination was necessary to the decision (2) the identical issue was previously litigated; (3) the issue was decided in a decision that was ﬁnal, valid, and on the merits and (4) the party being precluded from re litigating the issue was adequately represented in the previous action ”) ‘3 Stem"! i V I 3d of Land I w Appeals 66 V l 522, 547 (2017); see also Greene t V 1 Water & Pane; Audi , 65 V 1 67 74 (Super Ct 2016) (citing Wilkowskz 1 Weld: 173 F 3d 192 199 (3d Cir 1999) (citing Allen 1 McCain 449 U S 90 94 101 S Ct 411 66 L Ed 2d 308 (1980))( This doctrine reduces the costs of multiple lawsuits, facilitates judicial consnstency conserves resources, and encourages reliance on adjudication ’) ‘9 Def ’3 Resp P] ’s Mot Requesting Ruling P] 5 Emergency Mot Issuance Prelim lnj & Permanent lnj at 2 (Dec. 18 2018) 5" Def 5 Resp Pl s Mot Requesting Ruling on Pl ’3 Emergency Mot Issuance Prelim lnj & Permanent lnj at 3 (Dec 18 2018) Gourmet Gallery Crown Bay, Inc , e! a! v Crown Bay Marina, L P 24 VI Super 13U Case No ST 2014 CV 00513 Memorandum Opinion and Order Page 11 of 18 permit S&B to sell these items 5‘ Gourmet argues that the instant Motion, on the other hand, is broader in scope since it includes mu1tiple grocery items being sold by multiple tenants in the Marina Gourmet also argues that it seeks “entirely different ’ remedies as it previously sought to close S&B and now only seeks to prohibit sales of certain items at the Marina 52 1|23 Speciﬁcally, Gourmet contends that the instant Motion is distinguishable because 1) CBM allows S&B to sell additional groceries and has allowed an additional tenant Your Choice Laundry to sell groceries, 2) CBM s classiﬁcation of the goods sold at S&B has changed since S&B now sells bagged coffee and prepackaged ice cream, which S&B did not sell previously items CBM conceded would be considered “groceries, ’ 3) S&B now sells canned beer and canned sodas items that the Lease Agreement speciﬁcally prohibits by name; and 4) now CBM also sells sodas and juices via a vending machine at the Marina 53 1124 Gourmet interprets the issues of fact and law too narrowly 54 When Gourmet ﬁled the instant Motion in 2017, its appeal of the denial of its ﬁrst Motion for Preliminary Injunction was still pending before the V I Supreme Court CBM moved for a stay and this Court granted the stay ﬁnding the questions presented regarding damages were “at best exceedingly similar and at worst identical” to those pending before the Supreme Court on Gourmet’s appeal ”55 This Court stands by this previous ﬁnding The dispute over newly added items and additional tenants poses the same questions as to whether Gourmet’s “inj un'es can be adequately repaired by monetary damages ’56 Furthermore, the introduction of an additional third party Your Choice Laundry does not cause the instant Motion to be distinguishable from Gourmets prior Motions for injunctive relief ﬁled in 2014 and 2015, because as a preliminary matter, Your Choice Laundry was not involved in the original complaint, and Virgin Islands courts have held that a party may not assert a claim not pleaded in a complaint or counterclaim 57 Likewise, changing the severity of remedy relief does not distinguish the latest motion from the earlier, because the Court would have to rule on questions of fact and law, such as the deﬁnition of ‘groceries” and whether Gourmet can show irreparable injury due to lost sale opportunities, before it could issue an injunction of any severity 58 5' The two items were coffee and ice cream Pls ‘ Reply Def 5 Resp P13 Mot Requesting Ruling Pls Emergency Mot Issuance Prelim [nj & Permanent [nj at 2 (Jan 3, 2019) 5’ Pls Reply Def s Resp P15 Mot Requesting Ruling Pls ’ Emergency Mot Issuance Prelim In] & Permanent [nj at 2 (Jan 3 2019) ’3 Mot & Mem Law Support of Emergency Mot Issuance of Prelim [nj & Permanent [nj at 4 6 (June 6, 2017) 5“ Order a12 (Dec 11 2017) 55Order at2 3 (Dec 11 2017) 5" Id 57 See 2 g Mwsh Monsanto v C101 enbach, 66 V I 366, 382 (V I 2017) (addressing a motion for summaryjudgment) 5“ This Court held that the questions of whether S&B sells “groceries’ within the meaning of the Lease Agreement and whether S&B is considered a restaurant’ within the meaning of the Lease Agreement represent questions of fact for a jury Order at 4 (Dec 1 l, 2017) See also Gourmet Gallery Clown Bav Inc 1 Crown Bay Manna L P , No ST 2014 CV 513 2015 VI LEXIS 141 at *14 (Super Ct Nov 10 2015) (determining that the question ofwhether Gowmet Gallery Crown Bay, Inc . e! a! v Crown Bay Marina, L P 24 V1 Super 13U Case No ST 2014 CV 00513 Memorandum Opinion and Order Page 12 of 18 {[25 Gourmet argues that collateral estoppel does not apply here because the ’issue of ultimate fact ’ has not yet been addressed by a court 59 This contention is problematic for two reasons 1126 First Gourmet cites Greene t V [ Water & Power Authority for support, however, the Court in Green addressed collateral estoppel as applied to a motion for summary judgment not a Motion for Preliminary Injunction as is the case in the instant matter 60 The considerations required for summary judgment do not apply in the Rule 65 context because a preliminary injunction only has the effect of maintaining the positions of the parties until the trial can be held the order neither replaces the trial nor represents an adjudication of the merits 6' The purpose of the summary judgment procedure, on the other hand, is “to dispose of a case without a trial when there is no genuine issue of material fact and one party is entitled to a judgment as a matter of law ” 62 1127 Second, Gourmet conﬂates the ‘ issue of ultimate fact ’ associated with the merits of its Motion and the issue of ultimate fact associated with the underlying merits of the case at bar Wright & Miller provides the following explanation in its treatise on federal practice and procedure Grant or denial of interlocutory injunctions clearly does not foreclose further litigation in the same proceeding, so long as decision rested on mere preliminary estimates of the merits or discretionary remedial grounds By the same token, interlocutory injunction rulings commonly lack preclusive effect in other proceedings All that has been decided is whether preliminary relief is warranted in light of educated guesses as to the outcome on the merits and the balance of hardships Even if the same matters arise again in a similar interlocutory setting, preclusion should be defeated if there is a reasonable prospect that a different preliminary showing can be made on the merits or on the balance of hardships Precluszon may properly be applied however Ifthe same showmgs are made and 8&8 sells groceries within the meaning of the Lease Agreement is a determination for the trier of fact) (citing United C01}; 1 Tutquk Ltd 55 VI 702 716 20 (VI 201 1)) (holding that the deﬁnition of the term supermarket wasa question of fact for the jury when the parties had advance competing interpretations of the term) 59 P15 Reply to Def 3 Resp to P13 Mot Requesting Ruling on Pls’ Emergency Mot Issuance Prelim Inj & Permanent Inj ml 3 (Jan 3 2019) 6° Collateral estoppel requires that there beaﬁnal judgment that is subject to appeal It is well established that subject to few exceptions, an order denying a motion for summary Judgment is an interlocutory order not subject to appeal until a ﬁnal order is issued " Greene v V I Water & Power Auth 65 V I 67, 67 (Super Ct 2016) 6‘ See Greene v V] Ware) & Power .4th , 65 V 1 67 75 (Super Ct 2016)( a denial ofsummary Judgment is not a decision on the merits; it simply is a decision that there is a material factual issue to be tried ’) (wing 10A Charles A Wright et a1 Fed Plac & PIoc §2712(3ded 2002)) ”1 1A Charles A Wright, et a1 , Procedure on an Application for a Preliminary Injunction Fed Prac & PIOC C11 § 2949 (3d ed ) Gourmet Gallery Crown Bay, [In , e! a! v Crown Bay Marina, L P 24 VI Super 131) Case No ST 2014 CV 00513 Memorandum Opinion and Order Page l3 of 18 z! appeals that nothing more IS Involved than an e170)! to Invoke a second disc; etzonary balancmg of the same Interests 63 1128 Here, CBM argues only that the prior preliminary injunction ruling should have preclusive effect as to a subsequent preliminary injunction proceeding CBM does not argue that the prior preliminary injunction ruling should have any preclusive effect on consideration of the merits of the case at the ﬁnal healing A decision is on the merits if it ‘ permanently forecloses a party from further advancing a claim or defense ’ 64 Even if the decision does not actually resolve the underlying substantive issues, it may still be considered on the merits for the purposes of collateral estoppel 65 A preliminary injunction is a ﬁnal judgment on the merits (when appealed and afﬁrmed or when not appealed) of the [zmzted Issue presented by the preliminary InjlmCIIOI’l i e , whether the plaintiffs can show likelihood of success on the merits, irreparable harm, and the other necessary factors 6" 1129 It is true that the “issue of ultimate fact ’ as to whether CBM breached the parties Lease by leasing space to 38:8 has not yet been adjudicated, but the limited issue of whether Gourmet is entitled to a preliminary injunction has been adjudicated in Gourmet 3 prior Motion based on the same premises, facts and parties presented in Gourmet’s instant Motion 1130 In considering the right to a preliminary injunction, Gourmet would have the court disregard the prior proceedings where Gourmet’s preliminary injunction was denied This 63 18A Charles A Wright, et al , On the Merits’ Discretionary or Limited Remedies Fed Pmc & P100 Jam § 4445 (3d ed )(emphasis added) 6‘ Stewart v Vugm Islands 3d of Land Use Appeals, 66 V l 522, 533 34 (2017) (citing Mitchell 1 Chapman 343 F 3d 811 821 (6th Cir 2003) (internal quotation marks omitted» ' see Cassxdyi Bid ofEduc 557 A 2d 227 230 (Md Ct of Appeals 1989) (“Under the phrase ‘on the merits, we identify those judgments which should bar future litigation of the same claim (citation omitted» 65 Stem"! l Vugm Islands 3d of Land Use Appeals, 66 V l 522 533 34 (2017); accord Baumann 1 Pub Empc Relations Bd 68 VI 304 341 (Super Ct 2018) 6" See Hamksbill Sea Tunic (Eretmochelys lmbucma) v Fed Emelgency Mgm! Agency, 939 F Supp 1195 , 1205 06 (D V 1 1996) revd sub nom Hawksbzll Sea Turtle I Fed Emugencv Mgm! Agency 126 F 3d 461 474 476 478 (3d Cir 1997) ( This court ﬁnds that the doctrine of issue preclusion prevents relitigation of the same factual issues previously resolved in a similar application for a preliminary injunction [F]indings made in granting or denying preliminary injunctions can have preclusive effect if the circumstances make it likely that the ﬁndings are ‘sufﬁciently ﬁrm to persuade the court that there is no compelling reason for permitting them to be litigated again Whether the resolution in the ﬁrst proceeding is sufﬁciently ﬁrm to merit preclusive effect turns on a variety of factors including whether the parties were fully heard, whether the court ﬁled a reasoned opinion, and whether that decision could have been, or actually was appealed ’ Preclusion would seem to be particularly appropriate in a second action seeking the same injunctive relief ’) (citations omitted); see also Lyon Ford Inc i Fon! Mkzg Corp 337 F Supp 691 692 (E D N Y 1971) (ﬁnding the second request for a preliminary injunction based on the same facts as a prior preliminary injunction motion that had been denied to be precluded, The New York rule of collateral estoppel forbids a party from litigating an issue a second time if it has been decided in a prior action where there was a Full and fair opportunity to contest the matter ) Gourmet Gallery Crown Bay, Inc , e! a! v Crown Bay Manna. L P 24 VI Super l3U Case No ST 2014 CV 00513 Memorandum Opinion and Order Page 14 of 18 contention disregaids the rule of collateral estoppel, which forbids a party from litigating an issue a second time if it has been decided in a prior action where there was a full and fair opportunity to contest the matter Gourmet has had time and fair opportunity to present the facts, and no new substantive facts have been shown here 67 The prior denial was valid, ﬁnal and on the merits; Gourmet and CBM are the same parties in the prior action; and the claims arise out of the same alleged breach of contract 1131 Gourmet's two separate applications for injunctive relief derive from one factual scenario and boil down to the same wrong plaintiffs allege that by allowing S&B to sell certain items, CBM breached the restrictive covenant within the parties’ Lease Agreement The fact that Gourmet's present action alleges additional violations and seeks different remedies does not affect or alter the facts and occurrences that underlie and support Gounnet’s request for relief Although the analysis could reasonably end here, the Court will address the preliminary injunction factors for the sake of completeness 68 1 Likelihood of Success on the Merits 1|32 Gourmet argues that because this Court previously determined that Gourmet demonstrated a reasonable probability of success on the merits, ’59 that the Court should make the same ﬁnding in the instant Motion Gourmet argues ‘ nothing impacting this Lease has occurred since the previous court 8 ruling, ’70 which may have been true at the time of ﬁling, however, circumstances have since changed dramatically CBM does not contest this factor and the Court has not yet conducted a trial on Gourmet’s Second Amended Complaint Given that little has changed in that regard, the Court ﬁnds Gourmet demonstrates a reasonable chance of success on the merits of its Complaint 7' (’7 See Hayes v Ridge 946 F Supp 354 364 (E D Pa 1996)) 68 See FIC’S c0 Sys USA \ Hawkins, 690 F App'x 72 73 (3d Cir 2017) (“Comts considering whether to grant injunctive relief must exercise their equitable discretion in a case by case fact speciﬁc manner A critical aspect of fact ﬁnding in this and other contexts is drawing reasonable inferences from facts in the record ) °’ Mot & Mem Law Support Emergency Mot issuance Prelim lnj & Permanent lnj at4 (June6 2017) see also Comma Galina Clown Ba} Inc v Crow! Bay Marina L P No ST 2014 CV 513 2015 V 1 LEXIS 141 at *17 (Super Ct Nov 10 2015) ( In sum, it is uncontroverted that Plaintiffs and Defendant are parties to the Lease Agreement Plaintiffs haw Introduced evidence that Defendant had an obligation to ensure that Gourmet Gallery retained exclusive rights to sell groceries in Crown Bay Marina that Defendant breached that obligation, that Scoops & Brew does not fall under an exception to that obligation, and that Plaintiffs have been damaged as a result Consequently Plaintiffs have demonstrated a reasonable probability of success on the merits ’ ) 7° Mot & Mem Law Support Emergency Mot Issuance Prelim In)~ & Permanent lnj at 4 (June 6 2017) ' 3w Fm; co 5); USA v Haitians, 690 F Appx 2 77 (3d Cir 2017) (“Deﬁning what constitutes a likelihood of success on the merits has proven difﬁcult We have never required a court to assure itself with certainty that the moving party will ultimately prevail prior to granting preliminary injunctive relief And we have held that a likelihood does not mean more likely than not On the other hand, the Supreme Court has advised that [i]t is not Gourmet Gallery Crown Bay, Inc , e! a! v Clown Bay Marina. L P 24 V1 Super 13U Case No ST 2014 CV 00513 Memorandum Opinion and Order Page 15 01' 18 2 lrreparable Harm 1133 At the time of ﬁling, Gourmet was still open and stated that without relief from the Court, it suffered irreparable injury to its business “both presently and into the ﬁxture ’72 Gourmet argues that once S&B began selling items allegedly prohibited by the restrictive covenant within the Lease, its traditional customer base was eroded ’ it lost customers and the sales of those same items declined after S&B opened 73 Without providing supporting documentation, Gourmet contends that S&B’s sales of these “prohibited ’ items harmed Gourmet by impeding direct sales but also by eliminating the potential for greater sales once a customer entered Gourmet Gallery looking for speciﬁc items Gourmet also contends that S&B’s location gave it a strategic advantage over Gounnet Gallery 74 1134 Countering, CBM argues that Gourmet’s emergency motion is ‘ predicated on lost sales, which may be fully remedied by an award of money damages in the event that its claims are found to have merit 75 It further argues that the V I Supreme Court’s decision denying Gourmet 3 previous motion for inj unctive reliefdetermined that Gourmet’s alleged losses, if any, were curable with a monetary award and that in this most recent motion, the alleged irreparable harm is even more curable considering Gourmet closed its doors three months after ﬁling its latest motion in 2017 and has not reopened since 7" CBM also argues that Gourmet’s ‘ lost opportunity theory is moot because of Gourmet Gallery’s closure and because Gourmet has not submitted any additional evidence that would alter this Court 3 previous decision ﬁl35 The Court agrees with CBM ‘ When the moving party's loss is a matter of simple mathematic calculation, [it] fails to establish irreparable injury for preliminary injunction purposes ” 77 As was the case with Gourmet’s initial Motion, the losses Gourmet claims are mathematically calculable in monetary terms, and as such are not irreparable injury for preliminary enough that the chance of success on the merits be better than negligible[ ] and ‘more than a mere possibility ‘ of relief is required ’ ) (internal quotations marks and citations omitted) 7’ Mot & Mem Law Support Emergency Mot Issuance Prelim lnj & Permanent Inj at 13 (June 6 2017) 73 Id at 8 In support, Gourmet offers comparisons of Its annual sales of alcohol soda, and water during years 201 I through 2015 compared to sales during 2016 after S&B opened Gourmet also provided comparative sales ﬁgures for pre packaged ice cream juice, Red Bull, coffee beans, and candy Id at 8 14 7“ Id at 8 75 Def Counterclalmant s Resp Pls Second Request Ruling, Issuance Declaratory J , & Enforcement Orders Reply at7(Dec 10 2021) 7" Def ’5 Resp to P] s Mot Requesting Ruling on P] 5 Emergency Mot for Issuance of Prelim [n1 & Pennanent Inj at 2 (December 18 2018) 7’ 3RC & C0 1 Bonus Tlucltmg SH 63 V l 544 559 60 (2015) (Citing Yusuft ﬂamed 59 VI 841 854 (2013) (citation, alteration, and internal quotation marks omitted) Gourmet Gallery Crown Bay, [In . e! a! v Crown Bay Marina. L P 24 V1 Super BU Case No ST 2014 CV 00513 Memorandum Opinion and Order Page 16 of 18 injunction purposes 78 Gourmet fails to cite a single authority in support of its conclusory assertion that the alleged harms are the type that money damages cannot adequately remedy aﬁer the conclusion of trial proceedings ’Without irreparable injury, the Court cannot grant a preliminary injunction 8" 3 Balancing of Harms 136 CBM did not argue to what extent the nonmoving party will suffer irreparable harm if an injunction is granted 8' Gourmet did not establish irreparable harm in its previous Motion for Preliminary Injunction, and as discussed above, it fails to do so here Given that CBM did not even attempt to argue this factor, it weighs in neither party 8 favor 4 Public Interest 1137 ‘ Public interest can be deﬁned a number of ways for purposes of injunctive relief ’32 “While it is correct that the trial court should limit its inquiry to the last peaceable moment between the parties during the balancing of the hams portion of the preliminary injunction test, public interest considerations extend to the time the trial court considers the motion The reason for this is that while the balancing of the harms pertains to the relationship between parties, the public interest pertains to the relationship between the parties and the general public, including interested third parties ”33 78See Gourmet Gallery Croun Bay Inc v Clown Bat Malina LP 68 V1 584 (2018) ( For the purposes of a preliminary injunction, harm must be cc; (am to be irreparable Here it is unclear whether S&B's operation has actually harmed Gourmet, or to what extent ) (citations omitted), see also Nutuuon 21 v United Slates. 930 F 2d 867, 871 (Fed Cir l99l)( [N]either the difﬁculty of calculating losses norspeculation that such losses might occur, amount to proof of special circumstances justifying the extraordinary relief of an injunction prior to trial ) see also L)(I¢ n 1 Adidas Am Inc No 3 14 CV 01586 MO 2015 U S Dist LEXIS 21004 at *8 2015 WI. 758642 *3 (D 01' Feb 20, 2015) (unpublished) (noting that ‘[a]lth0ugh lost business opportunities can at times be irreparable the moving party does not satisfy its burden by ‘ merely recit[ing] [the] legal conclusion that the[] alleged lost opportunities are irreparable[] ) 7° See 3RC & Co 1 Boynes Ttuckmg Sm 63 V1 544 559 (2015) (citing Weisshaw 65 Vand L Rev at 1018) ( [T]he basic purpose of a preliminary injunction is to protect the movant from irreparable injury that would occur before a full trial took place )(citing also Unit ofTerasi Camcmsch 451 U S 390, 395, 101 S Ct 1830 68 L Ed 2d 175 (1981) ( The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held ”) 8" See 3RC & Co 1 Bat 116$ Trucking Sis , 63 V I 544 559 60 (2015) ( Without some showing ofirreparable harm injunctive relief is inappropriate ’) 8‘ lumft ﬂamed 59 V1 841 856 (2013) 3’ Id 8‘ Goulme! Gallery Clown Bav Inc t Cronin Ba) Manna L P 68 V 1 584 584 (2018) Gourmet Gallery Crown Bay, 1m: , er «I v Crown Bay Marina, L P 24 VI Super I3U Case No ST 2014 CV 00513 Memorandum Opinion and Order Page 17 of 18 038 Gourmet argues that public interest favors honoring contracts and the terms contained therein, 84 however, as Gourmet itself acknowledges “[n]either the Superio: court nor the [V I ] Supreme Court ruled on Gourmet Gallery’s underlying claim whether the lease between the parties grants Gounnet Gallery the exclusive right to sell grocery items in the Marina, and how the term ‘grocery’ should be deﬁned ’85 Furthermore Gourmet Gallery has been closed for the past six years Clearly, the public interest is best served by permitting S&B to freely operate its business at the Marina under these circumstances 1139 After evaluation of the required factors, the Court ﬁnds the instant Motion presents the same issues of law and fact that were conclusively determined in Gourmet 8 previous Motion for injunctive relief86 The Court ﬁnds 1) identical issues of injunctive relief were presented in the previous and instant Motions, (2) the prior judgment denying preliminary injunction was valid, ﬁnal, and on the merits (3) the parties in the subsequent instant action are identical to the parties in the prior action and (4) Gourmet had a full and fair opportunity to litigate the issue in the prior action As such, collateral estoppel bars the Court from granting Gourmet a preliminary injunction in the matter at bar IV CONCLUSION 1|40 For reasons discussed above the Court ﬁnds that Gourmet 3 instant motion is barred by the doctrine of collateral estoppel, and in addition Gourmet fails to meet the standard under V I Rule Civ P 65 for injunctive relief Accordingly, it is hereby ORDERED that Plaintiffs' Motion and Memorandum of Law in Support of Emergency Motion for Issuance of a Preliminary Injunction and a Permanent Injunction, ﬁled June 6, 2017, is DENIED and it is further ORDERED that Plaintiffs’ Motion Requesting Ruling on Plaintiffs Emergency Motion for Issuance of a Preliminary Injunction and Permanent Injunction, ﬁled December 3, 2018, is DENIED and it is further ‘“ Mot & Mem Law in Support of Emergency Mot for Issuance of Prelim 1n) & Permanent 1nj at 16(June 6 2017) 85 P13 Reply Def 5 Resp PIS Mot Requesting Ruling PIS ’ Emergency Mot Issuance of Prelim lnj & Permanent In} at2(Jan 3 2019) 3" Id Gourmet Gallery Crown Bay, Inc , er a! 1! Crown Bay Manna, L P 24 VI Super l3U Case No ST 20” CV 00513 Memorandum Opinion and Order Page 18 of 18 ORDERED that a copy of this Memorandum Opinion and Order shall be directed to Attomeys Campbell C Rhea, Gordon C Rhea, Joseph Arellano, Adam N Marinelli and Ravindel Nagi DATED ?leSlZOM Wm 37MU39 DENISE M FRANCOIS Judge of the Superior Court of the Virgin Islands ATTEST TAMARA CHARLES Clerk of 8 Court BY (2)42 Adz _ LATOYA AMACHO W Court Clerk Supervise: 51/“ 20,261 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Thomas/St. John Gourmet Gallery Crown Bay, Inc. and Zakaria Suid Case Number: ST-2014-CV-00513 Plaintiffs, Action: Declaratory Judgment v. Crown Bay Marina, L.P., Defendant. Crown Bay Marina, L.P., Counterclaimant, v. Gourmet Gallery Crown Bay, Inc., and Zakaria Suid, Counterclaim Defendants. NOTICE of ENTRY of Order To: Joseph B. Arellano, Esq., Ravinder S. Nagi, Esq., Gordon C. Rhea, Esq., Adam N. Marinelli, Esq. Campbell Collin Rhea, Esq. Please take notice that on March 19, 2024 a(n) Memorandum Opinion Order dated March 15, 2024 was/were entered by the Clerk in the above-titled matter. Dated: March 19, 2024 Tamara Charles Clerk of the Court By: Elizabeth A. David Chief Deputy Clerk