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2018 Published Opinions
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April 20, 2018
S. Ct. Civ. No. 2017-0050
Alicia “Chucky” Hansen and Carolina F. Fawkes v. Adelbert M. Bryan
      In considering a motion pursuant to Virgin Islands Rule of Appellate Procedure 30 for recovery of costs and attorney’s fees incurred in a prior appeal – issues remanded by prior order of this Court for consideration by the Superior Court – the law of the case doctrine precluded the appellants in the prior appeal from challenging the timeliness of that motion, and their untimeliness argument in any event lacks merit since the prior appeal was not final for these purposes while a motion for reconsideration was pending. The fact that 18 V.I.C. § 412 is silent with respect to awards of costs and fees when a petition is not dismissed is not indicative that the Legislature intended to preclude the application of 5 V.I.C. § 541 to such proceedings. Because the movant in the present litigation could have recovered attorney’s fees and costs pursuant to § 541, it was not error to award him recovery of fees and costs pursuant to Rule 30. The Superior Court also committed no error when it declined to recognize an exception to the provisions for award of costs and fees for issues of “first impression,” and it properly found one of the former appellants jointly liable to the movant/former appellee for costs and fees given her decision to intervene in the litigation and then to become an appellant. No abuse of discretion is found with respect to the amount of the costs and fees award. Accordingly, the Superior Court’s April 21, 2017 decision awarding $17,625 in attorney’s fees and $363.70 in costs is affirmed.
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March 27, 2018
S. Ct. Civ. No. 2015-0123
Gourmet Gallery Crown Bay, Inc. v. Crown Bay Marina, L.P.
      In a suit by a grocery store and its principal relating to leasing of premises by the defendant marina, allegedly in violation of certain covenants in the plaintiffs’ lease, an order by the Superior Court denying a motion for the escrow of rent payments pending the outcome of the litigation is not a matter over which the Supreme Court may exercise jurisdiction in the present posture of the litigation, and review is denied as to that order. The escrow order is neither a final order nor one of the categories of interlocutory orders for which a right of appeal is specified in 4 V.I.C. Sections 33(b) and (c), and V.I. R. APP. P. 5(a)(2). Nor does that order satisfy all of the requirements for review as a collaterally appealable order. The Superior Court’s order denying a preliminary injunction is properly reviewable on appeal under 4 V.I.C. § 33(b)(1), and it is concluded that the Superior Court did not abuse its discretion when it denied the motion. A preliminary injunction requires a clear showing that (1) the movant has a reasonable probability of success on the merits, (2) the movant will be irreparably injured by denial of the relief, (3) granting preliminary injunction relief will not result in even greater harm to the nonmoving party, and (4) granting the preliminary relief will be in the public interest. Here the required proof regarding irreparable harm such as undeterminable or un-rectifiable monetary loss was insufficient, and the Superior Court did not err when it concluded that plaintiff did not demonstrate that the balance of hardships favored the issuance of an injunction. In addition, the evidence supported the Superior Court’s conclusion that granting the preliminary injunction would not be in the public interest. The portion of the judgment denying the preliminary judgment motion is affirmed, and this matter is remanded for further proceedings in accordance with this opinion.
      Download Opinion  (126 kb)

January 18, 2018
S. Ct. Civ. No. 2017-0010
Shirley Rymer v. Kmart Corporation
      The Superior Court erred in dismissing a slip-and-fall personal injury action against the defendant retailer on summary judgment, a drastic remedy that should only be granted where there is no genuine issue as to any material fact. In a premises liability suit, a retailer’s actual notice of a hazardous condition can be shown if an employee created or was aware of the hazard before plaintiff fell. Here, the Superior Court improperly weighed the evidence against the plaintiff—the non-moving party—and resolved the conflicting evidence in favor of the retailer when it determined that an employee’s deposition testimony was a clarification of his loss prevention statement given on the day of the injury, rather than a contradiction of it. Where there is conflicting evidence in the record, a court cannot independently weigh the proof to resolve the conflict and must accept as true the evidence most favorable to the non-moving party, so long as it is supported by proper proofs. The Superior Court also erred in granting summary judgment on the basis that the record did not show a factual dispute as to whether the defendant had constructive notice of the hazardous condition. While a non-recurring hazardous condition lasting only a matter of minutes, without more, does not create the presumption of constructive notice, assessment of the opportunity for the proprietor of the premises to discover the dangerous condition involves contextual factors like the hazard’s color, size, location, and proximity to employees. Plaintiff in this case identified mitigating factors that, taken in the light most favorable to her, establish a genuine issue of material fact regarding whether the retailer could or should have become aware of the hazardous condition before she fell. The explosive nature of the soda spill, its bright purple color, location near the store’s entrance, its proximity to employees, and the fact that another customer stayed by the spill and eagerly solicited help, are factors distinguishing this case from others where the only constructive notice factor is the hazard’s duration. Whether these circumstances are sufficient to overcome the spill’s short duration and establish that the defendant retailer had constructive notice of the dangerous condition is a balancing of the evidence that belongs with the jury, not the Superior Court at summary judgment. The judgment dismissing the case with prejudice on summary judgment is reversed.
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