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