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
Furniture Plus v Norman Agile“ 2021 V1 Super 1 19U
Case No ST 2021 RV 00014
Memorandum Opinion and Order
Page 2 of 11
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
Furniture Plut v Narnia” Agnesx 2021 V1 Supu 1 19U
Case No ST 2021 RV 00014
Memorandum Opinion and Order
Page 3 of 11
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))
Funmure Plus v Nunmm Agnes: 2021 V1 Suer 119U
Case No ST 2021 RV 00014
Memorandum Opinion and Order
Page a or 11
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)
Furniture Plus v Norman Agness 2021 V1 Supet 1 l9U
Case No ST 2011 RV 00014
Memorandum Opinion and Order
Page 7 of 11
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)
Furniture le v Nam!!!" Agnexs 2021 VI Super I 19U
Case No ST 202] RV 00014
Memorandum Opinion and Order
Page 8 01‘ 11
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
Furniture le v Nurmlm Agnes; 202| VI Super 1 19U
Case No ST 1021 RV 00014
Memorandum Opinion and Order
Page 9 of 11
$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)
turmture Flux v Nnrmtm Agne.“ 2021 VI Super 1 l9U
Case No ST 2021 RV 00014
Memorandum Opinion and Order
Page ll] nf ll
$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
Furniture Flux v Nnrman Agnes: 2021 V1 Super 1 [9U
Case No ST 202! RV 00014
Memorandum Opininn and Order
Page ll 0“]
(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