Anamarija Urh v. Gerard C. Buffo

• Court: Superior Court of The Virgin Islands
• Decided: May 18, 2021
• Docket: ST-15-CV-315
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN ************

ANAMARIJA URH )CASE NO ST 2015 CV 00315 1 Plaintiff )ACTION FOR BREACH OF vs )CONTRACT ANTICIPATORY ) REPUDIATION BREACH OF GERARD C BUFFO )GOOD FAITH AND FAIR )DEALING DEBT UNJUST )ENRICHMENT CONVERSION Defendant ) DAMAGES AND PUNITIVE DAMAGES JEAN ANN BUFFO and GERARD C BUFFO ) ) Counterclaim Plaintiffs, ) ) JURY TRIAL DEMANDED vs ) ) WOLFGANG BOHRINGER and ANAMARIJA) URH ) ) Counterclaim Defendants )

Cite as 2021 VI Super 5 l U

MEMORANDUM OPINION AND ORDER

111 THIS MATTER comes before the Court on

1 Defendant/Countcrclaim Plaintiffs Defendants Motion For Reconsideration filed March 6 2018'

2 Plaintiff/Coumerclaim Defendants Motion To File Opposition To Defendants Motion For Reconsideration Out OfTime filed April 17 2018

3 Plaintiff/Counterclaim Defendants Opposition To Defendants Motion For Reconsideration( Opposition ) filed April 17 2018 and

4 Defendant/Counterclaim Plaimiffs Defendants Reply In Support OfTheir Motion For Reconsideration filed April 30 2018 Ammumla Urh v GEMINIC Buffa 2021 V1 Super 51U Case Na 5T 20l5 CV 00315 Memorandum Opinion & Order Page 2 of 10

I INTRODUCTION

112 Plaintiff/Counterelaim Defendants Wolfgang Bohringer and Anamarija Urh ( Plaintiffs ) filed suit on July 6 2015 Defendant/Countcrclalm Plaintiffs Joan Ann Buffo and Gerard C Buffo‘ ( sometimes collectively referred to as Detendants ) responded with an Answer which included counterclaims on August 10 2015 On July 15 2016, Defendants moved for summaryjudgment In a Memorandum Opinion and Order dated February 20 2018 the Court reserved ruling on Defendants Motion for Summary Judgment as multiple material facts remained in dispute

113 Defendants filed their Motion For Reconsideration on March 6, 2018 and Plaintiffs filed their Opposition T0 Defendants Mutton For Reconsideration as well as their Motion To File Opposition To Defendants Motion For Reconsideration Out OfTime on April 17 2018 Defendants Reply In Support Of Their Motion For Reconsideration was filed on April 30 2018 Counsel for Plaintiffs avers that he received the Motion for Reconsideration on March 10 2018 2 Counsel for Plaintitfs fiirther states that in the interim he was occupied with medical procedures and the burial of his mother in law 3 The Court further notes that Plaintitfs counsel filed his Opposition two weeks after the required filing date of April 3 2018 Considering the circumstances the Court finds there was excusable neglect and will permit Plaintiffs counsel s Opposition A 114 This matter involves a dispute over two contracts for loans taken out by Gerard On behalf of Urh to buy two boats used by Anamarija Urh s charter boat and diving company Both contracts were oral The parties recollection of the two oral contracts tenns is identical mostly, but there are also disagreements over key terms Because there is no written contract between Urh and Gerard, the Court must extrapolate the loan agreements terms from what is available in the record One of the points of eontention is the involvement of Urh s husband Wolfgang Bohringer Jean Ann Buffo and Gerard Buffu contend that Bohringer was ajointly and severally liable party to both contracts while Urh arid Bohringer assert that only Urh borrowed money from Gerard Buffs

fls Defendants argue that pursuant to Virgin Islands Rules of Civil Procedure 6 4 and 60(a) the Court should reeonsider its February 20, 2018 Memorandum Opinion and Order reserving ruling on Defendants Motion for Summary Judgment 5 Defendants argue that (l) Urh

’ To avotd confusion, Ihe Buffos W111 be referred to by their first names ’ Pls Mot To File Opp n To Dcfs Mot For Recons OutOfTime 2 IP1. Mm To me Opp H To Dcfa Mot For Remus OutOfTime 2 ‘ V I R CW 1’ fi(h)( l )( When an act is required or allowed to be done by or within a specified period the court may upon a showing nfgood cause or excusable negleet extend the date for doing that act ) Further Defendants (ltd not object Der: Reply In Supp Mm For Remus fit 1 5 V 1 R CIV P 6 4(1)) ( A motion to reconsider must be based on (1) intervening change in controlling law (2) availability of new evidence (3) the need to correct clear error of law or (4) failure of the court to addresa an issue specifically raised prior to the court s ruling ) V I R CW P 60(a) ( The mun may correct a clerical mistake or a mistake arising from overs|glit or omission whenever one i: found in a judgment order or other part Ammmniu Urh v GemnlC Buffy 2021 v1 SuperSlU Case No ST 2015 CV 00315 Memorandum Opinion 5; Order Page 3 of 10

breached the Aquamarine contract resulting in $15 429 60 worth of damages (2) the Court committed clear legal error in tailing to grant summary judgment based on Gerard s affidavit (3) the Court was mistaken in its finding that Buffo failed to make loan payments tor S‘ummer Wind (4) the loan was in default (5) ?lemer Wind was subject to the threat of foreclosure proceedings and that because of this the Court committed legal error in holding that Defendants breached the implied covenant of good faith and fair dealihg (6) the Defendants are entitled to summary judgment finding that Urh lepudiated the Summer Wind agreement and (7) the Court must grant Defendants summary judgment awarding undisputed monetary damages The Court addresses each contention below

[1 LEGAL STANDARD

{[6 A motion to reconsider may be based on the need to correct a clear error of law 6 Further the Court may correct a mistake arising trom oversight or omission in a judgment or order 7 Motions for reconsideration must be filed within tourteen (14) days after the entry of a mling 8 A motion for reconsideration is not to be used as a means to argue matters already argued and disposed of nor is it an opportunity to request that the Court simply rethink a decision it has already made ”9 Past Virgin Islands courts have interpreted this as a need ‘to correct clear error or manifest injustice or both In The error may be factual or legal ”

III ANALYSIS

117 Summary judgment was entered on February 20 2018 and Defendants filed their Motion For Reconsideration on March 6 2018 Thus Defendants motion is timely Defendants raise “clear error of law” as the reason for their Motion for Reconsideration '2

of the record The court may do so on motion or on its own with OI without notice But aftei an appeal has been doeketed in the Supreme Cuun of the Virgin Islands and while it is pending such a mistake may be corrected only with leave from that Court ) 6VI R C1V P 6 4(b)(3) 7V1 R C1v P 60(a) 1 v1 R Civ P 6 4(a)( Exceptas provided m Rules 59 and 60 relatmg to final orders 01' Judgments a party may file a motion asking the court to iccunsider its older or decision within 14 days aftei the entry nfthe ruling unless the time IS extended by the count Extensions will only be granted for good cause shown ) gNewman v Nuchwuller Super (t Case No ST 13 SM 312 V1 2014VI LEXIS 32 at *3 (VI Super Ct June 3 2014) (citing Valerirm v H.7le Civil N0 10 0123 2011 US Dist LEXIS 100148 at *2 (D VI Sept 6 2011)) m Daybreak [m v Fltedberg Super C1 Case No ST 10 CV 716 V1 2018 V1 LEXIS 84 at *5 (VI Super Ct Aug 21 2018) (citing Smith v Law O/fiLes 0/ KarmA Bent PC Supei Ct Case No ST 17 CV 116 VI 2018VI LEXIS 13 at 15(V1 Super Ct Jan 29 2018)) “ Smithv Law affica u/KuImA Hem PC Super Ct C831. No ST 17 CV 116 VI 2018 v1 LEXIS 13 at*16(Vl Super Ct Jan 29 2018) ‘7 Defs Mot For Recons l ( [P]ursuant to V1 R CIV P 6 4(3) ) Aimmanja Urh v Gerard C Bujfa 2021 VI Super 51U Case No ST 2015 CV 003 [5 Memorandum Opininn & Order Page 4 of 10

A Whether there is a clear error of law or mistake as to whether Urh breached the Aquamarine contract 118 Defendants contend that they are entitled to summary judgment against Urh as to the breach oftheAqmzmarme contract As the Court stated in its February 20 2018 Memorandum Opinion and Order, Defendants represented that the parties agreed that Defendants could place a lien on the Aquamarine while Plaintiffs contest this alleged contract provision ‘3 The Court further stated that there is a material dispute as to whether Wolfgang Bohringer was involved in the Aquamarme contract '4 Defendants concede this point while arguing that “there is no fact issue remaining that Urh breached the loan contract 15 However the Court 5 original reasoning still stands and it needs to know against whom summary judgment should be awarded There is no clear legal error or mistake or omission here just prudence The Couit will continue to reserve ruling on theAqtzamarine Lontract breach until it is clear against whom the Court must rule

B Whether there is a clear error oflaw or mistake for not granting summary judgment based on Dr Gerard Buffo’s affidavit {[9 Defendants next argue that the Court committed clear legal error in not accepting Buffo s affidavit as not meeting the requirements ofV I R CW P 56(e)(4) ‘6 Defendants state that [i]n this instance to defeat summary judgment Urh was required to produce admissible evidence demonstrating that Dr Buffo s factual statements regarding abandonment and his subsequent sale ofthe vessel and payoffofhis underlying loan are in dispute ‘7

1110 However citing Burd v Antilles Yachting S'uvs Inc '8 the Court stated The only evidence Butte presents as to the timeline of Summer Wind 3 sale is his own affidavit While the VI Supreme Court has held that a single non conclusory affidavit when based on personal knowledge and directed at a material issue is sufficient to defeat summary judgment, it has not held that it is enough to win summaryjudgment W In its ruling the Court stated that Plaintiffs had claimed that Defendants put the $leer Wlfld up for sale after they demanded to be added to the title while Defendants state they sold the boat only after Plaintiffs had abandoned it 2" It is not the case that the Court rejected Buffo s affidavit the Court simply did

'3 Gerard Buffo and Jean Ann Buffo s Counterelaim/Cmsselaim Complaint Against Anamaiija um and Wolfgang Bohringcr 1| 15 Lounterelaim Def Anamarija Urh s Answerfll 15 1’ Feb 20 2018 Mem Op and Order 7 ( When entciing summary judgment the Court needs to know not only for whom it should enter summanyjudgment but also against whom it should enter summaiy judgment Therefore It would be imprudent for the Com to Issue comprehensive summary judgment while this key contract term [5 in dispute ) “ Defs Mot For Recons 2 '6 VI R Civ P 56(e)(4) ( In party fails to properly support an asscnion of fact or fails to properly address another party s “senior! arm: as required by Rule sac) the court may issue any other appropriate order ) ”Defs Reply In Supp Mot For Recnns 4 I*57v1354w12o12) w Feb 20 2018 Mem Op and Order 13 ”Feb 20 2018 Mem Op and Order 13 Ammmnja Urh v Gerard C Buffy 2021 v1 Super 5 1U Case Nu ST 2015 CV 00315 Memurandum Opinion & Order Page 5 of 10

not rule in favor 0t Defendants based solely On their affidavit Finding a genuine issue as to material fact the Court reserved ruling

1111 The record being unclear as to whether Defendant: were permitted to sell the Yummy Wind the Court exercised caution in reserving ruling on this issue Virgin Islands Rule of Civil Procedure 56(c)(4) states If a party fails to properly support an assertion of fact or tails to properly address another patty s assertion ot tact as required by Rule 56(0) the court may issue any other appropriate order 2‘ Rule 56(e)(2)(B) states

A patty opposing entry of Summary judgment must address in a separate section of the opposition memorandum each 0f the facts upon which the movant has relied pursuant to subpart (c)(1) of this Rule using the cerresponding serial numbering either (i) agreeing that the fact is undisputed for the purpose of ruling on the motion fer summary judgment only or (ii) stating that the fact is disputed and providing affidavit(s) or citations identifying specifically the location(s) of the material(s) in the record relied upon as evidence relating to each such material fact by number 22 1112 In their Opposition To Defendant 5 Motion For Summary Judgment Plaintiffs do not raise whether there is a dispute over Defendants ability to sell the boat in their Statement Of Disputed Facts section 23 However in their Argument section Plaintiffs state Upon Urh s demand to protect her interest in the vessel in May 2015 Buffo immediately put the vessel up for sale in contravention to the parties agreement and stopped all communication with Urh 2‘ Plaintiffs cite to emails and depositions in support of this statement 25 Thus, there was some evidence to the contrary of Buffo s affidavit While Defendants assert that no one offered another recollection of tacts that is not the case 25 Virgin Islands Rule of Civil Procedure 56(c)(2)(C) states in relevant part The patty shall supply affidavit(5) 07 Citations specifically identifying the locati0n(s) ofthe material(s) in the record[ ] 27

1113 Defendants allege it is undisputed that they Only sold the boat after Urh and Behringer had abandoned the vessel and refused to make further payments and cited to a May 18 2015 email by Plaintiffs 2* However that email states that Plaintiffs were attempting to try one last time to teach the [sic] agreement before we take legal actions and indicates that they [w]ill continue paying the agreed amounts to the boat account we set up till we reach an

1' VI R CW 1‘ 56(c)(4) v1 R Cw p 56(L)(2)(B) 1 P19 Opp II To Def 5 Mot to. Summ 1 4 5 "Pl: Opp nTo Def :Mot For Summ J 9 f" 9 ’5 Pl: Opp It To Def : Mot Fur Summ J 9 fn 9 see eg April 11 2016 DLp OfAnamrija Urh 9611 2 4 ( So it appears that someone is trying to take advantage and my problem was 31:0 having eight percent lntLreat and that the boat wa: up fol sale five days later ) "' Dcfs Mm For Recons 3 7 V1 R CW 1’ 56(c)(2)(C) (cmphast: added) 1x Dcfs Mm For Remus 12 13 Amtmlmja Urn v Gerard c Buffa 2021 v1 Super 51v Case No ST 2015 CV 00315 Memorandum Opinion & Order Page a 0110

agreement 29 This is hardly the clear cut repudiation of contract and abandonment ofthe vessel which Defendants allege A reasonable trier of fact could conclude that Plaintitfs were merely doing just what the email indicates attempting to negotiate an agreement while making payments to an independent account in order to financially protect themselves Plaintiffs further aver that Defendants had ceased to communicate with them despite numerous email communications sent to Bulfo 3° Plaintiffs did not take the threatened legal action until a month and a half after this email 1' It is possible that as Plaintiffs awaited a response, Defendants attempted to sell the boat out from under them Thus the timing of Plaintiffs alleged abandonment and whether Defendants took possession before or after the abandonment is still in dispute

1114 As stated inAvia/mn ASJOL‘lateS Inc v Virgin Islands Par! 141111107701,” the evidence of the non movant is to he believed and all justifiable inferences are to be drawn in his favor 33 The Court was justified in inferring that there is a dispute over whether Defendants were permitted to sell the boat or not While Plaintiffs did not properly present this dispute in their Opposition as required by the formatting requirements ofRule 56(0) Rule 56(e)(4) grants the Coun the power to issue any other appropriate order when Rule 56(L) has not been followed There appearing to be a genuine dispute over a material fact the Court finds that it was not a clear error of law to not grant Defendants summary judgment on this matter

C Whether there was a clear error as to theSummer Wmdpayments being in default

1115 Defendants argue that [t]he Court erroneously opined that the Buffos anticipatorin repudiated the agreement tor Summer Wind by breaching the implied covenant of good faith and fair dealing 34 Defendants further argue that the Court mistakenly stated that the Buftos allowed their loan with SGB Finance to go into detault 35 The Court recognized that Defendants did not pay to SGB Finance the total amount of monies Plaintitts gave to Defendants and that the Marine Note and Security Agreement provides SGB Finance with the right to take possession of Summer Wind and sell it to amortize the loan as a remedy for default “ The Court further stated that by not keeping up with the monthly payments Buffo put the loan in default and risked SGB Finance foreclosing on Summer Wind "37 1116 T0 the extent that there was a risk of foreclosure the Court was correct as evidenced by the Marine Note and Security Agreement foreclosure was a possible remedy for SGB

”Bets Reply In Supp Mm Fol Remus Ex 16 3" P15 Compl 5 6 3’ P15 Compl 3 26V! 24(Ten c: 1990) u [d a! 32 (citing Andtrvrm v LibenyLobby Inc 477 U S 242 250 (1986)) “Defs Reply In Supp Mot Fm Recons 4 "Defs Reply In Supp Mot For Recon: 4 3“ Feb 20 2018 Main Op and Order 11 12 ‘7 Id at 12 Anamanja Urh v Gerard F Buffn 2021 VI Super 5 lU Case No ST 2015 CV 00315 Memorandum Opinion & Order Page 7 nf 10

Finance to exercise and thus foreclosure proceedings were a risk However, Defendants are correct that while there is evidence that Defendants did not pay every penny to SGB Finance there is also no evidence provided beyond the pleading in the Complaint that the loan was ever actually in default ‘3 While there is an inference that if Defendants were keeping monies paid to them and not paying SGB Finance it is possible Defendants were oveipaid by Plaintiffs or that Defendants paid to SGB Finance the bare minimum required by the Security Agreement To the extent that the Court opined that the loan was in default the Court erred and reeognizes that there is no evidence one way or the other as to this claim

D Whether there was a clear error as to the purported repudiation of the Summer Wind agreement

1117 Detendants argue that the Court improper ly concluded that Defendants had repudiated the agreement based on the mistaken fact that the SGB loan was not timely paid 39 Defendants further argue that Urh did not move for summary judgment against the Buffos based upun her unsupported allegation of good faith and fair dealing if Urh had made such a motion the Buffos would have had an opportunity to brief the issue and provide evidence to rebut Urh s contentions 4” Plaintiffs state that [tlhere were facts established tram the pleadings and discovery that Gerard Buifo did not make certain advance payments to the lender SGB Finance[ ] 41 The Court 5 ruling that Buffo violated the implied covenant ofgood faith hinged on Defendants put[ting] the loan in default and risk[ing] SGB Finance foreclosing 0n S‘ummer Wind ”“2 1118 It is not clear whether these advance payments going to SGB Finance were an essential term to the S'ummer Wind contract 43 However as stated above just because those advance payments were not made to SGB Finance does not mean no payments were made or that the loan itself was put into default Since there is not yet evidence before the Court that the Summer Wind loan was in default and therefore in risk of foreclosure due to nonpayment and there being a dispute over whether the full payment of these advance funds to SGB Finance constituted an essential term of the agreement on which a reasonable trier of fact could reach a conclusion either way summary judgment on this issue is improper Therefore the Court will reverse its ruling that Buffo violated the implied covenant of good faith and repudiated the agreement

” Pl: Compl 6 ( That Defendant has never made any payments towards the purchaSL of the Yacht ) "’ Defs Mot For Recon: 9 4"Def: Mot For Recon: 9 "P15 Opp nTo DLfs Men For Remus 5 4 Feb 20 2018 MLm 0p and Order 12 *1 Feb 20 2018 Mem Op and Order 11 (citing P15 Opp nTo Defs Mot Summ J 8)( Urh contends that Buffo acted in contradiction to the ?umnzer WW1 Agreement by not forwarding funds she paid Buffo tn SGB Finance ) Aluminum Urh v GemnlC Buffy 2021 V1 SuperSlU Case No ST 2015 CV 00315 Memorandum Opinion 8: Order Page 8 0110 E Whether there was a clear error in not awarding summary judgment on the alleged breach of the Summer Wmd contract and in not awarding Defendants’ monetary damages

1H9 Defendants argue that they are entitled to summary judgment finding that Urh repudiated the agreement for S'ummer Wind and an award of monetary damages 4‘ As with the Aquamarine contract the Conn indicated it is in dispute whether Wolfgang Bohrittger was a party to the agreement ‘5 The Coutt did not award damages to Defendants for expenses associated with taking possession of and selling the S'ummer Wind because “Buffo only previde[d] his affidavit to substantiate these damages ‘5 As stated above the Court must know which parties it must enterjudgment against This reason alone makes the award of summary judgment premature The Court must rule against a patty before awarding payment from that party Thus there is no clear error here

1120 As stated above, the Conn recognizes the error in determining that Defendants had violated the implied covenant of good faith and fair dealing by placing the loan for the boat in default Defendants admitted to not paying over all the monies Plaintiffs gave Defendants to SOB Finance 47 The Court should make justifiable inferences in favor of the nonmoving patty 4“ The Court notes that Defendants refutation is based on the lack of discovery or production of evidence by Plaintiffs not an affirmative showing by Defendants that they did not miss payments ‘9 Thus, it is another justifiable inference that the issue of whether Defendants defaulted on the loan by not paying monies provided by Plaintiffs and potentially Violating the implied covenant of good faith and fair dealing is still in dispute 5“ 1121 Lastly the Court in its February 20 2018 Memoxandum Opinion and Order also found there was a genuine dispute over other material facts when Plaintifts had abandoned the

4" Defs Mot Fur Recons 11 13 4 Feb 20 2018 Mem Or: and Order 14 "‘5 Feb 20 2018 Mem on and Ordet 13 *7 Defs Reply In Supp Mot For Realms 5 ( Regarding Urh 5 statement that the Buffos did not pay every penny that Urh gave them to the Buttes lender the Court and the Buffos agtee with that statement of faet[] ) ‘3 Amman Armcmtev Inc v VHng Islands Pall Authority 26 V I 24 32 (Terr Ct 1990) (citing Andaman v Utter!) Lobby Inc 477 U S 242 250(1986)) 4’ See Dcfs Mot For Recons 6 10( There ate simply no facts in this ieeoid ) ( [T]here is no evidence In the recon! that the Buftus ever defaulted on then loan obhgation or that they ever missed a payment on the loan ) ( Urh is unable to produce admissible evidence which she had ample time to muster through discovery demonstrating that the Buffos had missed making any loan payments or allowed the loan to go into default such that Summel Wind was threatened with foreclosure 1 ( [E]ven ifthe Buftos had failed to make paymenls on the Summer Wind loan and the loan had gone into default (and there is no evidence that this actually oceurred)[ ] ) Are aim Defs Reply In Supp Mot Fur Remus 5 6 tn 2 ( Even if Uih stated [that Buffo missed a payment] it would ht. bald hearsay unsupported by foundational knowledge because she was never a party to the loan agreement and has never requLstLd any diseuvery regalding the loan transaction upon which any characterization ufit could be factually based ) 5“ Defendants assert that the Buffos would have had an Uppurtunity to rebut [the allegation that the loan was in default] with affirmative evidence that the loan never went into default Defs Mot For Rceuns 7 However there is no such evtdence before the Court Thus just as the Count Ldnnot state the loan was in default the Court cannot slate the loan was nevet or was not in default Ananmrua Uri! v Gerard C Buffa 2021 VI Super SlU Case No ST 20l5 CV 00315 Memorandum Opinion & Order Page 9 of 10

Summer Wind; whether Defendants had taken possession before or after the repudiation and what were Defendants damages as a result of taking control of the Summer WindSI These facts remain in dispute This further cautions against a premature award ofsummaryjudgment There is no clear enor, mistake, or omission in not awarding summaryjudgment or monetary damages here

IV CONCLUSION 1122 On February 20 2018 the Court issued a Memorandum Opinion and Order reserving ruling on Defendants Motion for Summary Judgment as multiple material facts remain in dispute Defendants timely filed a Motion For Reconsideration on March 6 2018 Plaintiffs filed their untimely Opposition on April 17 2018 due to excusable neglect and the Court will grant Plaintiffs Motion To File Opposition To Defendants Motion For Reconsideration Out Of Time

1123 Defendants assert that pursuant to V I R Clv P 6 4 and 60(a), the Court must correct what Defendants argue are several clear errors of law The first argument is that the Court was incorrect in not awarding summaryjudgment as to whether Plaintiffs breached the Aquamarine contract The Court in its February 20, 2018 Memorandum Opinion and Order did not award summaryjudgment because there was still a material issue as to whether Wolfgang Bohringer was a party to that agreement and the Court must know against whom it is to award judgment This reasoning still stands

{[24 Defendants argue that there was clear legal error in the Court disregarding Gerard Buffo s affidavit as well as the timeline presented therein However the Court did not reject it The Court did not award summaryjudgment based solely on the affidavit as there appeared in the record a dispute over whether Defendants were permitted to sell the Simmer Wind and Gerard Buffo 5 single self serving affidavit did not meet the burden of proving there was no dispute over this particularly since Plaintiffs did dispute material facts in the Argument section 0f their Opposition T0 Defendants Motion For Summary Judgment and provided citation to exhibits therein While Plaintiffs did not properly raise this dispute in accordance with V I R CIV P 56(0) VI R ClV P 56(e) grants the Court discretion in issuing an appropriate order in such circumstances and reserving ruling on a disputed material fact was such an appropriate order

{125 Defendants third argument is that there was clear error when the Court found that Defendants had repudiated the Summer Wind agreement by breaching the implied covenant of good faith and fair dealing by not making payments to SGB Finance and putting the boat in risk of default 0n reconsideration there is no evidence one way or the other that the loan was ever in default This appears to be based on the mistaken inferenee that if Defendants were

5‘ Feb 20 2018 Mem Op and Order 14 AimmarI/a Ur]: v GerurdC Buffy 2021 VI Super 51U Case No ST 2015 CV 00315 Memorandum Opinion & Order Page II] of 10

withholding monies paid to them they were not paying SGB Finance, as well as Plaintiffs assertion in their Complaint In this regard the Court will reverse its prior ruling

film Lastly, Defendants argue that the Court committed clear error in not awarding summary judgment on the 911mmer Wind contract and in not entering an order for the monetary damages As with the Aquamalme contract there is an issue of material fact as to whether Wolfgang Bohringer was also a party t0 this agreement as well as several other disputed issues such as whether Plaintiffs abandoned the boat and if so whether this occurred before or after Defendants took possession and what damages the Defendants incurred in taking possession of the boat The Court lefi these issues to be decided at trial It is not clear error to reserve ruling and allow a trier of fact to determine these issues

Accordingly, it is hereby

ORDERED that Plaintiffs Motion To File Opposition To Defendants Motion For Reconsideration Out OfTime filed April 17 2018 is GRANTED and it is further

ORDERED that insofar as Defendants Motion For Reconsideration filed March 6, 2018 requests the Court to recognize that there is no evidence the loan was in default and that the Court reverse its ruling that Defendants breached the implied covenant of geod faith and fair dealing the Motion is GRANTED and it is further

ORDERED that insofar as the Court s February 20 2018 Memorandum Opinion and Order found Defendants to have breached the implied covenant of good faith and fair dealing that ruling is REVERSED and it is further

ORDERED that insofar as Defendants Motion For Reconsideration filed March 6 2018 requests any other reliefbased on a finding ofclear error or mistake or omission pursuant (0 VI R CIV P 6 4(3) & 60(a) the Motion is DENIED and it is further

ORDERED that a copy of this Memorandum Opinion and Order shall be directed to Attorney Stylish Willis' Attomey Charles S Russell Jr Attorney Kanaan L Wilhite and to Plaintiff/Counterclaim Defendants Anamarija Urh and Wolfgang Behringer

DATED May [8 2021 WV“ 30042 UK) DENISE M FRANCOIS Judge of the Superior Court ATTEST of the Virgin Islands TAMARA CHARLES Clerk of he Court

LATOY CAMAC Court Clerk Supervisor: [2; //g/ 202/