Furniture Plus v. Norman Agness

Opinion

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

FURNITURE PLUS )

) CASE NO ST 2021 RV 00014 Appellant/Defendant )

) (Appeal from Lase N0 ST 2020 SM 00122)

vs )

)

NORMAN AGNESS )

)

Appellee/Plaintiff

Cite as 2021 V1 Super 119U

MEMORANDUM OPINION AND ORDER 111 THIS MATTER is belore the Loun on Appellant Furniture Plus 5 appeal from the October 13 2021 Order by Magistrate Judge Henry V Can 111 denying Furniture Plus 5 Request To Set Aside Default Judgment in the Small Claims Case No ST 2020 SM 00122

{12 lhe Court finds that the Magistrate Judge did not abuse his discretion in denying Furniture Plus 3 request for a continuance and entering a default judgment against Furniture Hus, nor did the Magistrate Judge abuse his discretion in denying the motion to set aside the defaultjudgment However the Court will reverse and remand the August 6 2021 Default Judgment in part on account of the damages reward being excessive and an unwarranted windtall

I INTRODUCTION $13 On July 13 2020 Appellee Norman Agnes: ( Agness ) filed a §ma1l Claims Complaint requesting a refund ofthc $5 700 00 he spent on a furniture set characterized by Fumiture Plus as a seven piece furniture set although Furniture Plus then proceeds to list eight (8) items two (2) box springs a dresser a mirror a chest a nightstand a footboard and a mattress 1 During the August 5, 2021 hearing, Agnes: characterized it as a five piece set consisting 01 a nightstand a dresser a chest a wooden bedframe and a mattress Also during that hearing the Magistrate Court made a finding offact that the furniture set constituted a single commercial unit ”2 Agness alleged that one (1) bed drawer was mismatched and subsequently taken away by the Furniture Plus delivery driver the day following delivery and that there was a crack on the chest The

‘ Appellant 5 Position Statement 1 ’ V1 CODE ANN lit 11A §2 105 provides that a commercial unit means

such a unit ofgoods as by commercial usage is a single whole for purposes 01 sale and division of which materially impairs its character or value on the markel or in use A Commercial unit may be a single article (as a machine) or a set ofarticles (z: a suite of fumimre cur an assortment of sizes) or a quantity (2:: a bale gross or calluad) or any other unit heated in use or in the |L1eVZIK market as a single whole

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Magistrate Court found that under 11A V I C § 2 714 a full refund of the purchase price of the fumiture set was a reasonable award for damages 3

114 In addition to ordering Furniture Plus to pay the tull refund amount the Court ordered furniture Plus to pay $100 00 in Court costs 4 Furniture Plus requests the Court to reverse the Court 5 finding that he was in default to put aside the money judgment for Agness and to hold a new hearing on the merits of the case 3 Furniture Plus states that [d]ue largely to the restrietions concerning COVID and a eontinuing medical emergency experienced by Appe1lant 3 very ill eighty three year old mother the case was not scheduled for a hearing until March 12 2021 ‘

115 Furniture Plus then states it got a continuance for the Math 12 2021 hearing and it was rescheduled for August 5 2021 7 Furniture Plus states that three (3) days before this hearing Furniture Plus again asked for a continuance since it would be “out of the Territory on a medical emergency due to Tuntiture Plus 5 representative 5 mother 5 condition 3 The Court denied Furniture Plus 5 request for a continuance Furniture Plus did not attend the hearing and a default judgment was entered against Fumiture Plus 9 Furniture Plus 5 request to set aside the judgment was denied to

116 Furniture Plus argues that equity required that the Magistrate Court grant Furniture Plus 5 second request for a continuance as it was made in good faith and because Furniture Plus s representative was traveling and caring for his ill mother Secondly Furniture Plus argues that under Virgin Islands Rule of Civil Procedure 60(b)(1) the judgment should be set aside because Fumiturc Plus's three (3) day notice for a continuance was the result of mistake, inadvenence, surprise, or excusable neglect Third Furniture Plus argues that the Magistrate Court erred in conc1udint,y that a second continuance wou1d prejudice Agness because of the extended length of time the matter had been pending

$17 Fourth Furniture Plus argues that it has a meritorious defense to reduce the judgment while Agness argues that the furniture set contained a cracked dresser and the bedframe had a mismatched drawer, Fumiture Plus argues it replaeed the drawer for Agness and insists the dresser was not cracked prior to delivery and it was accepted upon delivery 1' Fifih, Furniture Plus argues it is unjust enrichment to allow Agness to receive the full purchase priee 0fthe bedroom set whi1e

While the Magistrate Conn did not specify which subsection h was referring to subsection (1) states Where the buyer has accepted goods and given notification (subsec (3) 0t § 2 607) he may tetover as damages for any non cnnfomtity of tender the loss resulting in the ordinaty course of events from the seller 5 breach as duennined in any manner which is reasonable llA V I C § 2 714(1) ‘Nmmun Agnes: v Furniturele 2021 v1 Super 104 116 5 Appellant 5 Position Stathent 1 5 Appellant 5 Position Statement I 7 The March heming was actually rescheduled 1'01 June 2 202| At the June heating the Court was informed that Furniture Plus had not th been served and the hearing was rescheduled aga1n for August 3 Appellant 5 Position Statement 2 9 Appellant 5 Position Statement 2 m Appellant s Position Statement 2‘ Norman Agnew 2021 VI Super 104 " During the hearing Agnes: indicated that Furniture Plus had not yet replaced the dmwer

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Agness still enjoys the use of the bedroom set Lastly Furniture Plus contends that default judgments should only be granted in extreme circumstances and the facts surrounding this case do not result in extreme circumstances

118 On August 30 2021 Furniture Plus moved the Magistrate Court to set aside the default judgment which was denied by a Memorandum Opinitm and Order entered by Magistrate Judge Henry V Can 111 on October 1; 2021 '2 Furniture Plus filed its first notiLe ofappeal on October 21 2021 This notice simply states that Furniture Plus requests the Honorable Court to appeal the courts [sic] decision in this ease On October 30 2021 the Court ordered Furniture Plus to correct deficiencies in its appeal '3 although this Order was not docketed until November 9 2021 On November 12 2021 Fumiture Plus filed a Position Statement and Notice of Appeal which states that Furniture Plus is appealing an Order signed by the Honorable Henry V Can- 111 and entered on August 10 2021

II LEGAL STANDARD

119 Magistiate appeals are governed by title 4 § 125 of the Virgin Islands Code which provides that [a]ll appeals from the Magistrate Division except as otherwise provided for in this chapter must be filed in the Superior Court or to the Supieme Court if appealable to the Supreme Court as provided by law '4 The Superior Court Rules provide that small claims are one of the original matters reviewable under Rule g22 1 ‘3 Rule 322 1(b)(2) states that [p]etitions for review under this section must be filed with the Clerk 0fthe Court within ten (10) days after entry of the order sought to be reviewed and a copy served on the opposing party 16 and [t]he time for filing a petition for review may not be extended A petitioner who fails to seek review within the time provided by these tules waives the right to file an objection tn the magistrate judge order '7 A motion filed out of this window is not eligible for review by the Superior Court 13

1110 Rule 322 3 provides the standard of review [flactual determinations are to be reviewed for clear error and [l]egal findings statements at law and the application thereof are to be afforded plenary review ’ On review of a decision 1mm the Magistrate Division the Superior Court must address each at the errors the parties address in their briefs except any errors that have been waived ‘9 The standard 01' teview for a Magistrate 3 entry of default judgment and for

‘ Amman Agnnv 2021 VlSuper104 ’ V l SUPER CT R 322 1(b)(l)(C) slates that [n]u petition for review shall be dismissed merely because ofits form title or informality‘ “VI LODFANN tit 4 §125 " V1 SUPFR Cl R 322 l(a)( Oliginal matters reviewable under this rule are Small Claims Fumble Entry and Detainer and Landlord Tenant actions Criminal Bench Trials (tor 6 month misdemeanors) Domestic Violence Non felony Traffic offenses Probate cases LittLr and Conservation offenses ) '5 V1 bltPER CT R 322 l(b)(2)(/\) l7VI SUPER CT R 3221(b)(2)(B) '3 Payne v Lthlrmen 55 V l 286 291 (V [ Super Ct 2011)( Pursuant to Rule 322 1 and the Interim Procedures Defendant s petition is not a reviewable matter since the Defendant s petition was filed ether the filing deadline There is also no evidence of an extension request or proof of a timely filed petition in the incorrect forum by the Defendant ) "7 Denmev People 66 VI 14; 149 (VI Super Ct 2017)

Furniture Plus v Narman/lgness 2021 VI Super 1 19U Case No ST 2021 RV 00014 Memorandum Opinion and Order Page 4 01' ll

denial ofa motion for continuance is abuse of discretion 20 “An abuse of discretion arises when a decision rests upon a clearly erroneous finding of fact an enant conclusion of law or an improper application oflaw to fact ”2' The Superior Court may then affirm, reverse, or reverse and remand the decisiun 22

III ANALYSIS

A The Magistrate Judge did not abuse his discretion in denying Furniture Plus’s motions

1l11 While Furnittue Plus states in its November 12 2021 Notice oprpeal that the Order it is appealing was entered on August 10 2021 it appears from the sequence of filing that Furniture Plus who is appearing pro 32 is actually appealing the denial of its reconsideration motion that was denied in October Furniture Plus 5 initial attempt at an appeal is within ten (10) days at entiy ot the October 13 2021 Memorandum Opinion and Order but not within ten (10) days of the August 10 2021 Order thus the Court considers the reconsideration denial

$112 Fumiture Plus 3 first contention is that equity required the Magistrate Court to grant the motion for a continuance By ‘ equity ” the Court interprets Furniture Plus to mean “[t]he retourse to principles ofjustiee to correct or supplement the law as applied to particular circumstances[ ] ’3 Rule 6 3 0f the Virgin Islands Rules of Livil Procedure states that [c]ontinuances of trials conferences other scheduled hearings, whether by motion of one party or by Stipulation of all parties will not be routinely granted but will be granted only upon a demonstration of good cause ’24 and “[a]ll motions for continuance must be filed and served not less than 7 days prior to the scheduled trial conference or hearing A motion filed less than 7 days prior to the scheduled trial, conference, ox hearing will only be considered upon a showing of exceptional circumstances ”2’ 1113 Furniture Plus filed its motion three (3) days before the hearing While Furniture Plus states its Iepresentative had to travel to take care at his ill mother Furniture Plus gives no indication as to why it could not call in t0 the hearing or otherwise appear virtually as the hearing was conducted via videu teleconference, why it could not inform the Court until only three (3) days before the hearing when Furniture Plus had already moved to continue the hearing once for the very same reason, or why it wuld not send another representative to represent it at the hearing 25 The

"‘ H (1mm) Comm! Comm n v tame! Mane” 2020 V] Super 102U 1i 6 (citing first Marlins v Columbia" Emma 51 v1 174 188 (VI 2009) then Gurev mm 50V] 23; 237(v1 2008)) 'Philltp v Marsh Mumamo 66 V1 612 622 (VI 2017) (citing Applurmv Hurugcm 61 VI 262 2680/1 2014)) 3” V l Supra Cl R J22 :[C) see aim Wild 0I4/71dFlora/& Evm/ DLUg/l v Burma Popular d: Puma Rica 62 V l 240 242 (v1 Super Ct 2015)( Instead the appellatecourtcan only affirm reverse urreverse and remand )

Erma} Bl ACk s LAW DIUIONARYU lth ed 2019) ‘Vl R CIV P 63(3) 5Vl R CIV P 63(d) ‘5 The statute establishing the jurisdiction for small claims states mm [n]either party may be represented by counsel and parties shall in all Cases appear in person except for corporate parties association: and partnerships which may appear by a personal representative 4 V [C HZ

Furniture le v Narnia" Agnes; 2021 V1 Super 1 19D Case No ST 2021 RV 00014 Memorandum Opinion and Order Page 5 6f 11

Magistrate Court did not abuse its discretion by not finding that the extraordinary power of equity required it to grant an untimely and last minute motion for a continuance when a prior one had already been granted

1114 Next Furniture Plus argues that its untimely motion was the result of mistake inadvertence surprise or excusab1e neglect under Rule 60(b)(1) at the Virgin Islands Rules of Civil Procedure betause of Furniture Plus 5 mistaken understanding of the law and inadvertences due to the many Lhallenges facing the Appellant with travels and care of his ill mother 27 A party alleging mistake of law must show that a party has made an excusable litigation mistake or an attorney in the litigation has acted without authority from a party or that the judge has made a substantive mistake of law or fact in the final judgment or order ”2" Furniture Plus is not alleging a judge or attorney made a mistake of law so it must be arguing that it made an excusable litigation mistake

1115 Furniture Plus does not indicate what this mistake is but the Court cannot condone that failure to appeat to a Court mandated hearing, either Via Video teleconference m telephonically or to promptly notify the Court within the straightforward timetrame mandated by law could be consideted an excusable mistake Since Furniture Plus had already once before moved {or a continuance which was granted the Court cannot discern what other litigation mistake Furniture Plus is stating it made 1116 Nor does the Court see what inadvertence justifies setting aside the Magistrate Court 5 Order While ruling on the substantially similar Federal Rule of Civil Procedure 60(b)(1) this Court has stated that [a]lth0ugh the word excusable does not precede the word inadvertence in 60(b)(1) the decisions [interpreting Rule 60(b)(1)] have denied rcliet unless the defendant s actions or omissions were excusable, attd that fact must be shown in support of the motion to set aside judgment 2° ‘Inadvertence means ‘[a]n accidental oversight; a result of carelessness ’ 10 Additionally although inadvertence and neglect are not precisely identical they are synonymous and frequently are used interchangeably when applying Rule 60(b)(1) 31 Excusable neglect is often defined in the negative the inaction ofa defendant is not excusable neglect if it can be labeled as a camplete disregard for the judicial system ’2 The tailure to abide by the

’7 Appellant 5 Position Statement 2 a(.rzlardianlm (n 1 Khalil No 81 08 (.V 494 2014VI L1:X1§13| at*14(VI Supu Ct Jul) 30 2014) (citing Cashnzr t FILLdU/n Flares Inc 98 F 3d 572 577 (10th Cir 1996)) 9 Gov tquhL V] V VI PleasmeBanI 14 VI 123 128 29 (V 1 Super Ct 1977) “Summm t Lam/u Numng/Iomes Inc 76 N F. 3d 65.: 552 (ohm Ct App 2016) (quoting lnudverteme BLACK 5 LAW DlLTlONARY (9th ed 2009)) “ V I Pleasure Boat 14 VI at 128 ‘ Summels 76 N E 3d at 662 (quoting Kay v Mm; G/uAarmm Inc 665 N E 2d 1102 1105 (Ohio 1996))

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Court 5 June 16 2021 Order and attend a hearing that Appellant was aware 0163 is not the kind of excusable inattention that Rule 60(b)(1) is intended to remedy 3‘ $117 Furniture Plus then argues that the Court erred in concluding that a second continuance would prejudice the plaintiff 33 The Magistrate ludge found that Fumitur’e Plus s motion was untimely under Virgin Islands law and that continuing the hearing furthel would prejudice Agness reasoning that

Small claims matters are intended to provide ‘simple, speedy, and inexpensive’ resolutions to civil leims not exceeding $10 000 V I SM CL R 1(d) Despite such intent the instant matter was pending before the Court for over a year betore judgment was entered 1'he delay was partially due to the COVID l9 pandemic but it was also due to Defendant s failure to appear at muhiple hearings, instead making last minute excuses for its absence and requesting further continuances Plaintitt appeared before the Court four times over the course of several months and presented a straightforward case supported by ample evidence The Court finds that to set aside its Judgment at this time would unquestionably visit prejudite upon this panicula: Plaintiffm 1118 Furniture Plus does not cite to any legal authority or argument as to how this is an error, rather Furniture Plus just reiterates that his three day notice for a continuance was mistaken inadvertent and excusable neglect Likewise Furniture Plus s argument that default judgments should only be granted in extreme circumstances is similarly lacking in any support and besides default judgments are granted in unremarkable ciicumstances frequently 37 Upon reviewing the Magistrate Court s reasoning in this matter this Court afflnns it as there is no clearly erroneous finding of fact errantconc1usion oflaw or an improper application oflaw to fact

Not only was Appellant Fumlture Plus made aware of the hearing by the Court 5 June 16 2021 Order he was also informed in that Order that Defendant 5 failure to appear can rLsult in ajudgment ufdefault 4 Kay 665 N E 2d at 1105 (finding excusable inadvertence where counsel had timely prepared an answer but [ ] his secretary had inadvcnently placed the pleadings back into the file drawer rather than mail them to the court for filing and to opposing counsel ) cf Tlpple 1 Tenn mp1 a/Revemn: ND 10 2702 31A dkv 2012 u 5 13m LEXIS 103209 at *10 (W D Tenn July 25 2012)( Plaintifl‘s Counsel s failure to file the Affidavit was not an inadvertence meriting reliefundcr Rule 60(1))(1) ) Sears §1my& Co v ImxmmceCo u/Nurrh America 392F Supp 393 412 (N D 111 1974) (citinv Be/shadv McDonough 469 FZd 1:33 1337 (7th Cir 1972)) ( [N]either ignorance nor carelessness 0n the part ufa litigant or an attumey will provide grounds for Rule 60(b) 1Llief ) C Wright & A Miller FLA/Lrll/ Prawns undetzdure §2858 at 170 (1973)( When a party seeks to invoke Rule 60(b)(1) he must show he wasjustified in failing to avoid the mistake or inadvertence )' see aim Lowy v McDonnell Douglas (mp 211 F 3d4>7 460 61 (81h Cir 2000) (citing! or 1» aner 620 F 2d 177 180 (8th Cir 1980)) (holclina that in the Eiahth Circuit only jud1cial inadvertence and not inadvertence by a party can be remedied by FRCP 60(b)(l)) ’5 Appellant 5 Position Statement 2 woman Agnm 2021 v1 Super 104 1110 7 m e g Hm Tune: 11 Emmy“; LLCv Rahhal 2021 v1 Super42 (granting adcfaultjudgmentwheieplaintiff and detendant had an agreement where plaintiffdelivered defendant goods and defendant failed to pay f0: them)

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B Because the judgment awards excessive damages and results in an unwarranted windfall, the Court will reverse and remand for a new damages award

1119 Lastly Futniture Plus argues that it has a meritorious defense and certainly a defense to reduce the judgment 33 Furniture Plus argues that Agness paid $5 700 00 for a multi piece bedroom fumiture set which he received albeit with a mismatched diawer and a crack in the dresser and that the crack in the dresser was not there when delivered and accepted By failing to attend the heating Furniture Plus waived its chance to present its dctense or any evidence as the June 16 2021 Order stating that Furniture Plus risked detault by not attending the hearing makes clear [herefore Furniture Plus is not entitled to a ful1 hearing on the merits ofthe case

$120 However, Fumiture Plus states it would be unjust enrichment for Agness to continue to possess and benefit from the furniture set while also receiving the full purchase price As a preliminary matter the Court notes that Fumitute Plus s unjust enrichment argument is presented tor the first time here on appeal, and it was not argued in Furniture Plus 5 August 30, 2021 Request To Set Aside Default Judgment Unjust enrichment at its most basic is the retention ofa benefit conferred by another not as a gift but instead in circumstances where compensation is reasonably expected 39 While that 1: what Furniture Plus is alleging Agness is doing retaining the use oi the furniture not as a gift but in circumstances where Furniture Plus could reasonably expect payment because it sold the furniture to Agncss unjust enrichment is also a legal term of art that usually deals with quasi contract cases 4" However in looking at the factual substance of the Llaim, the Court characterizes Furniture Plus 5pm ye appeal as one that alleges ‘ excessive damages 4‘ $121 Excessive damages are [a] jury award that grossly exceeds the amount warranted by law based on the tacts and circumstances of the case unreasonable or outrageous damages which are

‘5 Appellant s Position Statement .7 W Unjuserrtthmmz BI ALk sL/wv DKTIONARY [11th ed 2019) 4“ Certain Underwriters at Lloyds ofLundon v Garcia 63 V1 499 505 (v1 Super m 2015) (quoting Lacunmam & Rove: Corp v Banal Pupulnr dc Puum Rm; 6] VI 247 251 (V1 2014))( Unjust enrichment is an equitable quasi Lonttact cause 01 action imposing liability where there is no enforceable contract between tht. parties but fairness dictates that the plaintiffreceivt Lumpensation for services provided ) A68 also Un/uu Emuhmenr BLACK 5 LAW DICTIONARY“ 1th ed 2019)

Instances of unjust enriLhment typically arise when property is transfened by an act of wrongdoing (as by conversion or breach of fiduciary duty) or without the effective consent of the transtemr (as in a case ofmistake) or when a benefit is conferred deliberately but without a conttaet and the court concludes that the absence of a contract is excusable as when the benefit was provided in an emetgeney or when the patties once seemed to have a contract but it turns nut to be mvalid Iht. resulting claim ofunjust enrichment seeks to rLcuvex the defendant 5 gains

4' 1 he Virgin Islands Supreme Conn stated in Penn v M0519} that the Appellate Division is cautioned to tank at the tactual substance ufthe testimony arm x12 Small Claims parties and consider legal theories that might be implicated in determining if an issue was fairly prLsented in a Small Claims matter Penn v Mosley 67 V1 879 895 n 5 (V I 2017)

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subject to reduction by remittitur ‘2 Remittitur is [t]he proeess by which a Court requires either that the case he retried or that the damages awarded by thejury be reduced 43 Generally remittitur occurs at the Superior Court level after a jury has come to a verdict,44 not on appeal from a Magistrate decision Either way the Virgin Islands does not recognize the common law claims of remittitur or additur and instead pennits ajury s verdict to be altered by ajudge only if it is not supported by sufficient evidence in the record or it a reduction is compelled under the United States Constitution 45

{[22 Accordingly under Virgin Islands Rule of Civil Proeedure 59 a Court may order a new trial after ajury trial on the grounds of‘ excessive or inadequate ddmages’ 4" and ‘ [a]fler a nonjury ttial the court may on motion for a new trial open the judgment if one has been entered take additional testimony amend findings of fact and conclusions of law or make new ones and direct the entry ofa new judgment "47 The commentary to Rule 59 states that [w]hile rcmittitur is not valid in the Virgin Islands subpart (a)(iv) is retained to allow for other non remittitur defects to be remedied ’ '18 Additionally “[a] motion to alter or amend ajudgment must be filed no later than 28 days after the entry ofthejudgment 4°

1123 However as stated abuve, the instant case is not that of a party requesting remittitur from a trial judge after a jury has returned a verdict but is instead that ot a party appealing the judgment and damages awarded by a Magistrate Judge Thus the traditional excessive damages/remittitur regime and rules outlined above are informative, but not wholly binding The reaauning the Virgin Islands Supreme Court laid out in Antilles School Inc v LLmbaLh’U for declining to follow the common law oi remittitur i5 persuasive particularly its concern that remittitur removes from the jury the pUWeI to find tact and vests it with a judge " These concerns are not present when an appellate judge reviews the findings of fact made by ajudge in a lower court Additionally the reward in this ease resulted from a default judgment While Agness presented evidence in this case as to the exact amount he paid generally when only one side presents evidence and the other side does not have an opportunity to contest it the judicial system benefits from a careful review at alleged exeessive damages Therefore the Court will review the damages award to see if it is indeed excessive

4‘ Damagtv Bl ACK 5 LAW DlLTlONARYU lth ed 2019) 1‘ Remmmtr BI A(k s LAW DICTIONARY (I 1th ed 2019) “ Ltmlmch v Amzllu Sch Inc Nu ST 12 CV 61: 2015 VI lFXlS 35 at ”‘76 77 (V1 Super Ct Apr 7 201)) (discussing when the Court will disturb a jury 5 award because ofexcessive damages) 4’ Amzllex S'shaa/ Inc v Lembach 64 V I 400 437 (VI 2016)( Consequently we conclude that the best rule is to decline to iecogni7e remittitur and to permit ajury s verdict to be altered by ajudge only if it is not supported by suffieient evidence in the record or ifa reduction is compelled under the United States Constitution ) M’Vl R (.IV P 59(a)(1)(A)(tv) "V1 R (JV P S9(a)(2) ”Vt R Cw P 59cmt WV1 R Cw P 590:) 5" 64 V1400(V12016) 5‘ Id at 4:6 47

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$24 Under 11A V 1 C § 2 714(2) the measure of damages where a buyer has aceepted goods and notified the seller of any non conformity is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted unless special circumstances show proximate damages of a different amount ’52 Further it a fundamental precept ofjustice that enforcement of a judgment that would result in a double recovery or unwarranted windfall for the plaintiff is unjust 53 1125 The Magistrate Conn specifically found during the hearing that the damage to the items devalued the furniture set as a whole Agness when asked during the hearing what he was requesting in terms of damages stated he wanted the items replaced or the cost of the items refunded or the chest and drawer replaced The Magistrate Court specifically found that Agness had done everything he could to get the replacement items and instead awarded him the full purchase price Given the extent 0fthe injury suffered by Agness, a missing drawer and a crack in a single piece of furniture out of a set an award of nearly $6 000 with which an entirely new multi piece furniture set wuld be purchased, is excessive Additionally, such a reward would be a windfall [he situation is similar to buying a $10 000 00 car with a defective tire and cracked sideview mirror and getting to keep both the ear and the $10 000 00

1126 While the Court made a finding offaet that Agness rejected the goods when he sought the deficiency be cured and it never was Agness still retains the possession and use ofthe goods and has not attempted to retum the furniture set or otherwise have it returned thus that finding was clearly erroneous A legally proper remedy would therefore be the difference in price between the value ofthe defective furniture set that was delivered and the $5 700 00 purchase price as well as the Court costs

1R7 Further under 11A V I C § 2 715 Agness may also be awarded any incidental or consequential damages he suffered Incidental damages include ‘ expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods righttully rejected any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach 5‘ and consequential damages include “any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had Ieason to know and which could not reasonably be prevented by cover or otherwise 3 as well as injury to person or property proximately resulting from any breach of warranty 5"

511AVIL§27I4(2) 5 See (Jouldv Valera 59 V I 813 818 [V I 2013)( Notably courts have Consistently granted Rule 60(b)(5) ielief When some subtequent event DLLur: that would render the original judgment unjust such a: when enforcement ot the judgment as written would result in a double recovery or otherwise result in an unwarranted windfall for the plaintiff ) ‘* llAVIC 9‘2 715(1) ‘511AVIC §2 7|S(2)(a) ‘6 llAVIC 9‘2 71$(2)(b)

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$128 Alternatively Agncss ma) disgorge the furniture set he purchased back to Furniture Plus and receive his full refund As the Magistrate Court noted under 11A V I C 2 607 a buyer who accepts defective goodn Londitionally under the reasonable assumption that the non confomtity will be cured can reject the goods 57 What Agnes: may not do is retain both the cost ofhis purchase and the benefit at his purchase Therefore the Court will reverse thejudgment in part and remand the decision back to the Magistrate Conn 50 that a new damages award consistent with this Memorandum Opinion and Order may be entered

IV CONCLUSION

139 On July 12 2020 Agness filed a Small Claims suit against Furniture Plus tequesting a refund of the $5 700 00 he paid for a furniture set alleging a drawer was missing and the dresser was cracked At Furniture Plus 5 request the Magistrate Court continued the matter several times until August 5 2021 Three (3) days betore the hearing Furniture Plus again requested a continuance which was denied by Magistrate Judge Henry V Carr III who held the hearing and issued a detaulljudgment against Fumiture Plus Furniture Plus moved to set aside the default judgment on August 30 2021 On October 13 2021 Furniture Plus 5 request was denied On October 21 2021 Furniture Plus filed an incomplete natice 0t appeal After a Court Order directing Furniture Plus to fix deficiencies in its appeal 21 Position Statement was docketed on November 12 2021

$130 On review, there is no abuse of discretion in the Magisttate Judge’s denial 01 the continuance entiy of default judgment and denial of Furniture Plus 5 request that the detault judgment be set aside Furniture Plus also argues on appeal that the damages award works as unjust enrichment tor Agness hitting Furniture Plus 5 factual claims into the legal theory they most closely match that of excessive damage: the Court finds that allowing Agncss to keep both the minorly damaged $5 700 00 furniture set and the $5 700 ()0 would serve as an unwarranted windfall This is because under the Unitorm Commercial Code as adopted by the Virgin Islands in title 11A of the Virgin Islands Code the damages remedy for delivery of defective goods which are accepted by the purchaser is the dittetenee between the purchase price and value of the defective goods lhe Laurt therefore reverses in part and remands for entry of a damages award Lonsistent with this Memorandum Opinion and Order $31 Accmdingly it is hereby

ORDERED that the Magistrate Division 5 October 13 2021 Memorandum Opinion and Order is AFFIRMED (0 extent that it (1) denied Furniture Plus’ request for a continuance,

5711A V l C §2 607(2)

Acceptance ofgouds by the buyer precludes rejection of the goods accepted and ifmade mm knowledge ofa nun cnntormity cannot be revoked because of it unless the acceptance was on the reasonable assumption that the non conformity would be seasonany cured but acceptance doe: not ofitselfimpair any other remedy provided by this article form)" conformity

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(2) entered Default Judgment against Furniture Plus, and (3) denied Fu rniture Plus’ Request to Set Aside the Default Judgment and it is further

ORDERED that the August 6 2021 entry at Default Judgment against Furniture Plus is AFFIRMED in part and REVERSED with respect to the award $5,700 00 as the amount of damages, and it is further

ORDFRED this this matter is REMANDED to the Magistrate Division of the Superior Court for an award of damages consistent with this Memorandum Opinion and Order; and i1 is further

ORDERED that a copy 01' this Memorandum Opinion and Order shall be served upon Salem Zuhdi furniture Plus representative and a copy thereofshal! be mailed to Norman Agness at P O Box 907102 St Thomas V100803

DAIED DeccmberJO 2021 mm E 2% gm)

DENISE M FRANCOIS

Judge ofthe Superior Court 0fthe Virgin Islands

ATTEST

TAMARA CHARLES Clerk of the Court

BY %LVPL% M DO A I) DO { VA Con Clerk Supervisor Pig“ /9’i /903”i