IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX
RARER KEI
WAYNE JAMES, ) CASE NO. SX-2005-CV-00356
)
Plaintiff, ) ACTION FOR DAMAGES
VS. ) I
)
WARREN MOSLER and )
ELIZABETH O’ TOOL ) JURY TRIAL DEMANDED

)
Defendants. _)

Cite as: 202 VI Super 53U

MEMORANDUM OPINION

ql THIS MATTER is before the Court on:

I. Defendants’ Motion For Summary Judgment On Plaintiff's Complaint And Cross
Motion For Partiat Summary Judgment In Defendant’s Counterclaim and
Memorandum In Support Of Defendants’ Motion For Summary Judgment And
Mosler’s Motion For Partial Summary Judgment On The Counterclaim (“Motion
For Summary Judgment”), filed April 7, 2009;

2, Plaintiff's Memorandum In Opposition To Defendant’s Motion For Summary
Judgment and Plaintiff's Response To Statement Of Facts And Counter Statement
Of Material Facts (“Opposition”), filed June 16, 2009;

3. Defendant's Response To Plaintiff's Counterstatement Of Material Fact; filed July
10, 2009; and

4, Defendant’s Reply To James’ Opposition To Defendant’s Motion For summary
Judgment (“Reply”), filed July 14, 2009.

(2 = The breach of contract claim contained in Count I of the Complaint will be dismissed as to
Elizabeth O’Tool (“O’Tool”), as the evidence indicates she was not a party to the alleged contract,
but not as to Warren Mosler (“Mosler”), as there exists genuine issues of material fact regarding
the purported agreement. The breach of contract claim contained in Count II will be dismissed, as
Wayne James (“James”) was the one who cancelled the contract and, alternatively, the money he
retained from the contract far exceeds what he might expect in damages.

q3 James's fraud and fraudulent misrepresentation claims contained in Count Ill and IV will
be dismissed on account of the gist of the action doctrine and James’s inability to adequately
demonstrate monetary loss. James’s intentional infliction of emotional distress claim contained in
Count V will be dismissed for failure to provide evidence of damages to himself or physical harm
Wayne James v. Warren Moster, et al, 2021 VI Super $3U
Case No. SX-2005-CV-00356

Memorandum Opinion

Page 2 of 31

to a third party. James’s “punitive damages claim” contained in Count VI will be denied as the
Virgin Islands does not recognize a standalone claim for punitive damages.

{4 The Court will reserve ruling on Mosler and O’Tool’s counterclaim for an accounting
contained in Count I of the Answer And Counterclaims as there are outstanding discovery motions
related to it. The Court will deny Defendants’ Motion for Summary Judgment on Count II of
Defendants’ counterclaims, as there exists genuine issues of material fact regarding the hotel
refurbishment contract.

I. INTRODUCTION

15 Plaintiff James filed his Complaint on June 2, 2005, in which he alleges six (6) counts
against Defendants Mosler and O'Tool: Count I — Breach of Contract; Count II — Breach of
Agreement; Count III — Fraudulent Misrepresentation; Count IV — Fraud; Count V ~ Intentional
Infliction of Emotional Distress; Count VI — Punitive Damages. On July 19, 2005, Mosler and
O'Tool filed their Answer And Counterclaims, alleging three (3) counts against James: Count I —
Action for Accounting; Count II — Breach of Contract; and Count III - Defamation.

q6 This case revolves around two (2) alleged business arrangements between the parties: 1)
the reproduction, for a hotel, of fourteen (14) to sixteen (16)! antique mahogany furniture pieces
based off pieces in James's collection (the “Hotel Refurbishment Contract”); and 2) the auction of
antique furniture and other items on St. Croix (the “Auction Contract”).2 Mosler is a minor owner
of the hotel and O’Tool has no relation to the hotel.? Also at issue in this case is a photograph,
taken after the auction, of a bag, which was filled with money, bearing the Governor of the Virgin
Islands’ seal.4

q7 Currently, there are still pending motions to compel discovery, although Mosler and
O’Tool aver that the record is sufficiently developed to support summary judgment in their favor
on James’ claims and partial summary judgment in their favor on their counterclaims.? Mosler and
O’Tool indicate once the pending discovery motions are addressed, they will seek further relief on
their counterclaims.® Mosler and O’Tool’s Motion For Summary Judgment with respect to their
counterclaims is unopposed.

James states in his Complaint the amount is sixteen (16) furniture pieces but later both parties refer to fourteen (14)
furniture pieces.

* PL.’s Compl. $4 5-6, 9-10; Pl.'s Opp’n 3.

4 Defs.* Mot. For Summ. J. 3.

* PL.’s Compl. 4 21.

5 Defs.” Mot. For Summ. J. 1-2.

5 Defs.” Mot. For Summ. J. 1-2.
Wayne James v. Warren Mosler, et al. 

Case No. SX-2005-CV-00356

Memorandum Opinion

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I. LEGAL STANDARD

A. Summary Judgment

qs Summary Judgment is governed by Rule 56 of the Virgin Islands Rules of Civil Procedure,
which states:

A party may move for summary judgment, identifying each claim or defense — or
the part of each claim or defense — on which summary judgment is sought. The
court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law. ihe court should state on the record the reasons for granting or denying the
motion.

q9 Or, as the Virgin Islands Supreme Court stated in Antilles School, Inc. v, Lembach®
summary judgment is appropriate when after “considering all of the evidence, accepting the
nonmoving party’s evidence as true, and drawing all reasonable inferences in favor of the

nonmoving party, the court concludes that a reasonable jury could only enter judgment in favor of
the moving party.”®

q10 Summary judgment is a “drastic remedy” and only proper where “the pleadings, the
discovery and disclosure materials on file... show that there is no genuine issue as to any material
fact[.]”!° The nonmoving party must show in its response to a motion for summary judgment that
there are “specific facts showing a genuine issue for trial.”"' In addition, “[t]he non-moving party
may not rest upon mere allegations but must present actual evidence showing a genuine issue for
trial. Such evidence may be direct or circumstantial, but the mere possibility that something
occurred in a particular way is not enough{.]’"'? For a nonmoving party to show some genuine issue
of material fact for trial, “the nonmoving party may not rest on its allegations alone, but must
present actual evidence, amounting to more than a scintilla,’ in support of its position.’ Further,
“{iJf the non-movant offers evidence that is ‘merely colorable’ or not ‘significantly probative,’
summary judgment may be granted.”"4

{il = Importantly, the “Court may not itself weigh the evidence and determine the truth; rather,
we decide only whether there is a genuine issue for trial such that a reasonable jury could return a

?V.L Cv. P. 56(a).

® 64 VI. 400 (V.L 2016).

? fd. at 409.

" Anthony v. FirstBank Virgin Islands, 58 V.I, 224, 228 (V.1. 2013) {quoting Williams v. United Corp., 50 V.1. 191,
194 (V.I. 2008)).

"' Williams v. United Corp., 50 V.1. 191, 194 (V.I. 2008) (quoting Fen. R. Civ. P. 56(e)).

? fd. at 229 (quoting Williams, 50 V.1. at 194-95).

"3 Anderson v. American Fed'n of Teachers, 67 V.1. 777, 789 (V.I. 2017) (quoting Perez v. Ritz-Carlton (Virgin
fstands), Inc., 59 V.1. $22, 527-28 (V.I. 2012)).

! Pemberton Sales & Serv. v. Banco Popular de P.R., 

 (D.V.1. 994).
Wayne James v. Warren Mosler, et al, 

Case No. SX-2005-CV-00356

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verdict for the non-moving party.”!> Relevant to this case, “[wJhile summary judgment in some
cases will be appropriately denied as premature due to outstanding discovery, the fact that
discovery is incomplete will not bar the granting of a summary judgment motion in all cases.””"°
Further, Rule 56(c)(2)(B)(ii) states that a party opposing summary judgment must address the facts
the movant has relied on and, when disputed, state “that the fact is disputed and provid[e]
affidavit(s) or citations identifying specifically the location(s) of the material(s) in the record relied
upon as evidence relating to each such material fact, by number.”!”

{12 = When determining whether a party that relies solely on self-serving deposition testimony
has met its burden, the Court should consider whether the self-serving testimony, when juxtaposed
with other evidence provided, “is sufficient for a rational factfinder to credit Plaintiff's testimony,
despite its self-serving nature.”'® Lastly, Rule 56(e) provides that:

If a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may: (1)
give an opportunity to properly support or address the fact; (2) consider the fact
undisputed for purposes of the motion; (3) grant summary judgment if the
motion and supporting materials — including the facts considered undisputed
— OW that the movant is entitled to it; or (4) issue any other appropriate
order.

B. Breach of Contract

{13 This Court stated in Mayhem Enters, LLC v. Powell”® that to prove breach of contract the
plaintiff must demonstrate: “1.) the existence of an agreement; 2.) a duty created by that agreement;
3.) a breach of that duty; and 4.) damages caused by the breach.’?!

Cc. Fraud & Fraudulent Misrepresentation

{14 = This Court conducted a Banks analysis in Merchants Commercial Bank v. Oceanside
Village, Inc.?* and established that the soundest rule for fraudulent misrepresentation is:

One who makes a misrepresentation of fact, opinion, intention, or law that he or
she either knew or had reason to know was false, and that was made for the
purpose of inducing another to act or refrain from acting on it, is subject to

') Williams, 50 V.L. at 195 (citing Anderson v. Liberty Lobby, Inc., 

 (1986)).

"© Charles v, CBI Acquisitions, LLC, Super. Ct. Civ. No. ST-15-CV-279, 2016 V.1. LEXIS 62, at *24 (V1. Super. Ce.
May 9, 2016).

7 WLR. Cry, P. S6(cX 2 BX ii).

'* Johnson v. MetLife Bank, N.A., 

 (E.D. Pa, 2012); see also Irving v, Chester Water Auth,

 (3d Cir. 2011) (“In light of both his earlier testimony and the other record evidence, Irving's
subsequent self-serving deposition testimony is insufficient to raise a genuine issue of material fact.”).

VLR. Civ. P. 56(e}.

?” Super. Ct. Case No. ST-10-CV-125,__ V.L. __, 2015 V.1. LEXIS (32, at *1 (VL. Super. Ct. Oct. 30, 2015).

2 fd at *10-11 (citing United Corp, v. Tutu Park, Ltd., 55 V.1. 702, 707 (V.1. 201 1)).

2 64 V1.3 (V.1. Super. Ct. 2015).
Wayne James v. Warren Mosler, et al. 

Case No. SX-2005-CV-00356

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liability to the other for pecuniary loss caused by the other’s justifiable reliance
on the misrepresentation.””

1S The Court adopts the rationale presented in Merchants. Further, to prove fraudulent
misrepresentation in a contract, this Court in Guardian Ins. Co. v. Estate of Knight-Davia stated
that the plaintiff must show the person who created the contract “intends his assertion to induce a
party to manifest his assent” and further that the contract-maker “(a) knows or believes that the
assertion is not in accord with the facts, or (b) does not have the confidence that he states or implies
in the truth of the assertion, or (c) knows that he does nct have the basis that he states or implies
for the assertion.””> The elements of fraudulent misrepresentation are largely the same as the
elements of fraud.”°

G16 = The Virgin Islands Rule of Civil Procedure 9(b) states that when alleging fraud, “a party
must state with particularity the circumstances constituting fraud or mistake. Malice, intent,
knowledge, and other conditions of a person’s mind may be alleged generally.”?’ Thus, there is a
particularity requirement that one plead “matters such as the time, place, and content of the false
misrepresentations, the misrepresented fact, and what the opponent retained or the claimant lost as
a consequence of the alleged fraud.”2*

D, Gist of the Action Doctrine

(17 In Pollara v. Chateau St. Croix, LLC® this Court conducted a Banks analysis and adopted
the “gist of the action doctrine.’ The doctrine “addresses ‘the concem that tort recovery should
not be permitted for contractual breaches’ and “precludes tort suits for the mere breach of
contractual duties unless the plaintiff can point to separate or independent events giving rise to the
tort."”*! In essence, if plaintiff's tort claim merely duplicates his breach of contract claim, the gist
of the action doctrine bars the claim.

E. Infliction of Emotional Distress

{18 — In Diaz v. Ramsden,” this Court conducted a Banks analysis and adopted the elements of
intentional and reckless infliction of emotional distress as laid out in § 46 of the Restatement
(Second) of Torts.?3 Section 46 states:

33 fd. at 21-22,

4 Super. Ct. Case No. ST-08-CV-L89, _V.L_, 2017 V.L LEXIS 103 (V.1. Super. Ct. Apr. 7, 2017}.

35 Id. at *13 (quoting Pollara v. Chateau St. Croix, LLC, 58 V.1. 455, 471 (V.L. 2013)).

*6 fd. at *13-14 (quoting /saae v. Crichlow, 

 (V.L Super, Ct. 2015)).

7 VW.R. Civ. P. 9b).

* Id, at *14 (quoting Antoine v. U.S. Bank Nat'l Ass'n, 

 (D.D.C. 2008 ).

” Super. Ct. Civil No. $SX-06-CV-423, V.L__, 2016 V.L LEXIS 49 (V1, Super. Ct. May 3, 2016).

9 fd. at * 10-17,

* Joseph v, Divine Funeral Services, LLC, 71 V.L. 121, 128-29 (V.L Super, Ct. 2019) (quoting Addie v. Kjaer, 60 V.L
881, 898-99 (3d Cir, 2013)).

32 Super. Ct. Case No. ST-2013-CV-491, 

 (V.I. Super. Ct. Mar. 17, 2014), rev'd on other grounds,
Super. Ct. Civ. No. 2014-0048, 2015 V.1. Supreme LEXIS 4 (V.L Feb. 10, 2015).

3 fd at *91-95.
Wayne James v. Warren Mosier, et al. 

Case No. SX-2005-CV-00356 ;

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{1} One who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such bodily
harm.

(2) Where such conduct is directed at a third person, the actor is subject to
liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person’s immediate family who is present at the time,
whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily
harm.**

qi9 The Court herein adopts the sound analysis of Diaz. As comment (a) of § 46 states, the
elements are the same for both intentional and reckless infliction of emotional distress, and
negligent infliction of emotional distress is dealt with in different sections.*> In Donastorg v. Daily
News Publishing Co., Inc.,*° this Court stated that:

In order for a plaintiffs intentional infliction of emotional distress claim to
survive a motion for summary judgment, a plaintiff must demonstrate genuine
issues of material fact concerning whether a defendant: (1) intentionally or
recklessly; (2) engaged in extreme and outrageous conduct that exceeds all
possible bounds of decency such that it is regarded as atrocious and utterly
intolerable in a civilized society; (3) that caused the plaintiff to suffer severe
emotional distress.>

420 =Asimple showing that a party acted with tortious or criminal intent is not enough,
the actions must be outrageously outside the bounds of civilized society.>* It is “extremely
rare to find conduct in the employment context” that will rise to the necessary level of
outrageousness.°?

Tl. ANALYSIS

A. James's breach of contract claims

q21 = James alleges breach of contract as Count I of his Complaint and breach of agreement as
Count IT. There are two (2) business arrangements with purported contracts or agreements James
is suing under. Thus, the Court will consider each in turn below.

¥ RESTATEMENT (SECOND) OF TORTS § 46 (1965).

35 RESTATEMENT (SECOND) OF TORTS § 46 cmt. a (1965) (“This Section is concemmed only with emotional distress
which is inflicted intentionally or recklessly. As to the negligent infliction of emotional distress, see §§ 312, 313, 436,
and 436 A.”}.

% 63 V.1. 196 (V.L Super. Ct. 2015).

37 fd. at 295.

* Int'l Islamic Cmty. of Masjid Baytulkhaliq v. United States, 

 (D.V.I. 1997) (citing
RESTATEMENT (SECOND) OF TorTs § 46 cmt. d (1965)), aff'd, 

 (3d Cir. 1999).

* McGreevy v. Stroup, 

 (3d Cir. 2005) (quoting Cox v, Keystone Carbon Co., 

(3d Cir. 1988)).
Wayne James v. Warren Moster, et al. 202! VI Super 53U
Case No. SX-2005-CV-00356

Memorandum Opinion

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1. Breach of the Hotel Refurbishment Contract — Count I

a. Parties’ claims and evidence regarding the Hotel Refurbishment
Contract

422 James asserts in his Complaint that “(t]he actions of Defendants constitute breach of the
contract for Plaintiff to redecorate their hotel.“ James alleges that in April 2004, Mosler and
O'Tool commissioned him to redecorate a hotel;*' it was agreed James would use sixteen (16)*
pieces of antique furniture from his collection and reproduce them for the hotel;“ the project would
be completed by September 2004 and he would be paid ten percent (10%) of the total cost as well
as expenses. “* James also maintains that it was agreed that a later agreement concerning an auction
would take precedence over the redecoration;** that James continued to obtain craftsmen and work
on the redecoration; that after the alleged breach of the auction contract, Mosler and O’Tool
cancelled the redecoration contract in March 2005;*” and that the people James had hired to make
the furniture were not all paid, which damaged his reputation.“

{23 Mosler and O’ Tool state and provide evidence in their Motion For Summary Judgment that
Mosler is only a minority owner of the hotel and O’Tool has no interest in it, nor is she an officer,
director, or employee of the hotel.“? Mosler and O’Tool cite to Mosler’s own deposition and
O'Tool’s affidavit, in which O’Tool states she was never an owner or employee of the hotel and
Mosler states he is a twenty-four-and-a-half percentage (24.5%) owner.°° Mosler and O’Tool also
point out that James stated in an interrogatory that the agreement was only between Moster and
James and that the furniture pieces “were to be chosen,” which Mosler and O’Tool state means
that the project would be on a “piece by piece” basis.°' To support their claim that there was no
contract or even a finalized agreement, Mosler and O’Tool cite to the same letter which James
references as establishing the agreement and point out that it states that it is a response to Mosler’s
“suggestion,” that the letter provides terms for his “review and input,” and that the project total
was “TBD.”*? Citing to his own deposition, Mosler says he and James “had a verbal agreement
that [they] would just do things on a piece-by-piece basis.”

* Pl.’s Compl. q 39.

“Pls Compl. q 5.

” As noted supra n. 1, this number changes to fourteen (14) in the Motion For Summary Judgment, Opposition, and
Reply.

4 Pl.'s Compl. 7 6.

“ Pl.'s Compl. Ff 7, 8.

45 PL.'s Compl. q f 1.

4 Pl.'s Compl. § 12,

+ PL.’s Compl. 4 25.

4 PL.’s Compl. 4 26.

* Defs." Mot. For Summ. J. 3; Defs.’ Mot. For Summ. J. Ex. 2; Ex. 3.

© Defs.” Mot. For Summ. J. Ex. 2 139:14-19 (Deposition of Warren Mosler); Ex. 3 ¥ 2 (Affidavit of Elizabeth O' Tool).
*! Defs,” Mot. For Summ. J. 3-4; Defs." Mot. For Summ. J. Ex. 4 Interrog. L.

* Defs." Mot, For Summ. J. 3-4; Defs.” Mot. For Summ. J. Ex. 5.

* Defs.* Mot, For Summ. J. 4; Defs.’ Mot. For Summ. J. Ex. 2 143:15-17 (Deposition of Warren Mosler).
Wayne James v. Warren Mosier, et al. 

Case No. SX-2005-CV-00356

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{24 Additionally, citing to James's interrogatories and his own affidavit, Mosler shows he paid
to use James's collections and have specifications drawn up.* Mosler requested two (2) specific
items, chests and round tables, be made and Mosler paid James for forty-nine (49) antique chests
and funds for James to go to Denmark to purchase the chests and arrange for their reconstruction;
although James acquired the chests he admits he never tumed them over.** As evidence, Mosler
and O’Tool cite to James's answers to interrogatories, Mosler’s deposition, an Aprit 22, 2004
message from James to Mosler, James’s deposition, and an April 28, 2004 expenses message from
James to Mosler.*° Mosler asserts he paid a craftsman and friend of James, to whom James directed
Mosler, funds for the round tables;*” the craftsman never did the work or reimbursed the funds.°®
For this, Mosler and O’Tool cite as evidence James's interrogatories, James’s deposition, and an
affidavit by Mosler.>° Mosler also contends, citing to his own deposition, he gave funds to James
to cover expenses in Denmark and that James never produced documentation to back up “over
$60,000” of expenditures he claimed he made with the funds.

25 Mosler argues that because of the nonproduction of the items, nonavailability of James,
lack of follow-through with the craftsman, lack of reimbursement for funds paid, and lack of
accounting by James, he ceased to move forward with the production of the other furniture
pieces.®' It is Mosler and O’Tool’s position that summary judgment for O’Toot is appropriate
because by James’s own admission, O’Tool was not party to the contract. Further, they state
summary judgment for Mosler is appropriate because James’s actions, or rather his lack of taking
any actions, constitutes breach of contract by nonperformance and that Mosler’s cancelling of the
contract was appropriate because James’s repudiated his duty to provide the chests, to follow-up
with his selected workman regarding the tables, and to account for his costs.

{26 James in his Opposition states that Mosler falsely represented that he had authority to
redecorate the hotel and cites to the deposition of the majority hotel owner, Paul Saunders
(“Saunders”), where Saunders states he made the decisions on whether to redecorate.” James also
states that the number of furniture pieces that would be reproduced was fourteen (14), citing to
James’s deposition and Mosler’s deposition - where Mosler states he is “unsure” what the amount
was and that it could have been fourteen (14).

4 Defs.” Mot. For Summ. 5. 4-5; Defs.” Mot. For Summ. J. Ex. 4 Interrog. 3; Ex. 7 T7 2-3 (Affidavit of Warren Mosler).
55 Defs." Mot. For Summ. J. 5; Defs." Mot. For Summ. J. Ex. 4; Ex. 5; Ex. 8.

* Defs.” Mot. For Summ. J, Ex, 2 145:15-18, 176:13-16 (Deposition of Warren Mosler); Ex. 4 Interrogs. 4, 12; Ex. 5;
Ex. 6 191-92 (Deposition of Wayne James); Ex. 8.

5? Defs.' Mot. For Summ. J. 5-6; Defs.’ Mot. For Summ. J. Ex. 4; Ex. 6.

58 Defs.’ Mot. For Summ. J. 6. Defs." Mot. For Summ. J. Ex. 7.

* Defs.’ Mot. For Summ, J. Ex. 4 Interrog. 12; Ex. 6 £99; Ex. 7.

 Defs.’ Mot. For Summ. J. 6; Defs.' Mot. For Summ. J. Ex. 2 42: 10 - 43: 23 (Deposition of Warren Mosler).

*! Defs." Mot. For Summ. J. 6-7; Defs.” Mot. For Summ. J. Ex. 2.

® Defs.’ Mot. For Summ. J. 7.

®} Defs.’ Mot. For Summ. J. 7.

* Pi.’s Opp'n 3; Pl.’s Resp, To Statement Of Facts And Counter Statement Of Material Facts Ex. 10 (Deposition of
Paul Saunders).

5 Pi.'s Opp’n 3. Pl.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. | 35: 20-22
(Deposition of Wayne James), Ex. 5 147 (Deposition of Warren Mosler). The Court notes this number of furniture
pieces is different from what was in James's original Complaint.
Wayne James vy. Warren Mosler, et al. 2021 VI Super $3U
Case No. SX-2005-CV-00356

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{27 James further asserts he was to be paid ten percent (10%) of the redecoration cost, citing
to his, Mosler, and O’Tool’s depositions.™ In the cited portions of the depositions, James states
“the nature of the project is to get a percentage based on total expenditures”:*’ O’Tool states that
if James “intended to receive ten percent payment for his involvement” then it is his fault his agent
did not produce the restored furniture; and Mosler states “[i]f I recall, he would get his — the same
10 percent referred to elsewhere.”® James further avers the cost of the redecoration project was
$1,892,000.00, citing to a March 12, 2005 e-mail from himself to Mosler after the cancellation of
both contracts.”° Citing again to the March 12, 2005 e-mail, James contends that, at the time of the
repudiation, James had identified all the pieces to be reproduced and “found craftsman” to do the
work — the e-mail contains a settlement offer and estimates or costs for seventeen (17) different
types of furniture as well as estimates or costs for ten (10) additional expenses, such as shipping.”!

{28 James declares in his Response to Statement of Material Facts that he received “lots” of e-
mails from Mosler indicating his desire to get the project started, and cites to his own deposition
where he states he received many e-mails, although James did not produce any of these e-mails
during discovery or in his Opposition to summary judgment.” James also contends that Mosler
allowed a workman to stay at the hotel gratis and reimbursed his airfare, citing to that workman’s
deposition.’ James alleges that Mosler cancelled the Hotel Refurbishment Contract in March 2005
without just cause in retaliation for James ending the Auction Contract.”

b. Summary judgment will be granted in favor of O’Tool on the
breach of the Hotel Refurbishment Contract.

q29 Summary judgment in favor of O’Tool is appropriate here. Mosler and O'Tool assert that
O’Tool was not party to the alleged Hotel Redecoration Contract. James merely alleges that she
was party to the contract, although all the evidence provided shows only the possibility of a
contract between Mosler and James. James states in his Response To Statement Of Facts And
Counter Statement Of Material Facts that O’Tool could bind the hotel. In his assertion that O’ Tool,
through actions, represented that she had the authority to bind the hotel, James points to his
deposition, in which he states: “I have lots of e-mails referring to, [I]et’s get started with the project,
and, yes, Mr. Worthman should come down and get started. Lots of emails back and forth between

* Pl."s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 1 26: 12-13 (Deposition of Wayne
James); Ex. 2 75: 6-8 (Deposition of Elizabeth O’Tool); Ex. 5 146 (Deposition of Warren Mosler),

§ Pl.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 1 26: 12-13 (Deposition of Wayne
James).

* PI,'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 2 75: 6-8 (Deposition of Elizabeth
O" Tool).

* PI.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 5 146: 8-9 (Deposition of Warren
Mosler).

™ Pl.'s Opp'n 3; Pl."s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 12.

7 Pl.'s Opp'n 4. Pl.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 12. The Court notes
this phrasing is unclear as to whether James found a craftsman or several craftsmen.

® Pl.’s Opp'n 4; PI.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 1 27-28 (Deposition
of Wayne James).

® Pl.'s Opp'n 4; PI.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 7 9:1-21 (Deposition
of Jeffrey Worthman).

 PL.'s Opp'n 4.
Wayne James v, Warren Mosier, et al. 

Case No. SX-2005-CV-00356

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Page 10 of 31

the entities that are relevant to this document, yes.” No e-mails are provided that show an
exchange between James and O’Tool, only e-mails between Mosler and James. The citation
provided by James to his deposition does not back up his assertion.

430 =The other exhibit James points to for the assertion that O’Tool was involved in the Hotel
Refurbishment Contract is the deposition of Mosler:

Q: Now, were Mr. Sanders and Mr. Brandt aware of the fact that you were
discussing with Mr. James a project to redecorate the hotel? A: Right. Now I
didn’t call it the redecoration project. What I wanted to do was invest in
furniture, and | asked Paul if it’s alright if I stored it in the hotel in the hotel
room. Let guests use it, just have it there as investment furniture. He agreed that
that would be okay.’

431 =Neither of these mention O’Tool. Further, for the breach of contract claim, it is not at issue
whether Mosler and O’Tool had the authority to bind the hotel, as the hotel is not the defendant in
this case, This claim seeks to hold Mosler and O’Tool personally liable for a contract he alleges
they made with him. The only other time James implicates O’Tool in the Hotel Redecoration
Contract is when James asserts both Mosler and O’Tool reimbursed a craftsman’s airfare. For this
proposition he cites to the Worthman deposition: “A: I think we paid the airfare initially, and were
reimbursed on our final bill. Q: Who reimbursed you? A: Warren and Elizabeth. Q: All right. And
was your associate’s airfare also paid? A: Yes. Q: In the same manner? A: Yes.”??

932 Accepting this as true, it merely establishes O’Tool helped pay for a craftsman’s airfare,
not that she was bound to an oral contract made by Mosler with James to refurbish a hotel. James
does not assert what his link is with this craftsman, what work the craftsman was doing for the
alleged contract, or that this craftsman was a part of the alleged contract. Nor does James assert
what duties or work O’Tool had under the alleged contract or otherwise what role she played in
the alleged contractual agreement. In short, James provides no evidence as to what relationship
O’Tool has with the business contract or with Mosler or James, nor does James indicate how she
might otherwise be considered a principal or even an agent in this contract.

433 On the other hand, Mosler and O’Tool affirmatively show that James admits he made the
agreement with just Mosler.’* They also note that the e-mail produced from James that purportedly
shows the existence of the contract was sent only to Mosler.” Thus, summary judgment will be
granted in favor of O’Tool on James’s Count I breach of contract claim regarding the Hotel
Refurbishment Contract and Count I will be dismissed as to O'Tool.

5 Pl.’s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 1 27: 19-23 (Deposition of Wayne
James).

* Pl."s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. § 139: 24 ~ 140: 7 (Deposition of
Warren Mosler).

7 PL.’s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 7: 13-21 (Deposition of Jeftrey
Worthman).

% Pl.‘s Resp. To Statement Of Facts And Counter Statement Of Material Facts 44 citing P!.’s Resp. To Statement Of
Facts And Counter Statement Of Material Facts Ex. 7.

* Defs." Reply 2.
Wayne James v. Warren Mosler, et al. 

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c. Summary judgment in favor Mosler on this claim will be denied

{34 Among the evidence and arguments provided, Mosler and O’Tool assert that the e-mail
from James was a mere suggestion and no contract existed." Mosler also pleads in the alternative
that if there was one, it was a “piece by piece” agreement.*! James and Mosler have both also
established that James and craftsmen were paid money with an understanding they would provide,
at the very least, chests and round tables for Mosler.*? It is also shown that a craftsman visited the
hotel and was reimbursed for travel and provided with living arrangements by Mosler.®?

{35 James pleads that the original agreement was to be completed by September 2004, but then
another disputed contract was to take precedence. James also asserts that the agreement was
cancelled by Mosler in March of 2005, after the other disputed contract had begun.*5 Mosler
contends he is discharged from any obligation if a contract did exist due to James’s failure to
deliver the items which payment had been made for.** James contends he was continuously
performing on the contract and had done most of the groundwork.*”

{36 Viewing all the evidence in the light most favorable to the nonmoving party, there are
genuine issues of material fact presented here, such as what the terms of the alleged contract were,
whether it was a “piece by piece” arrangement or an agreement for a specific fourteen (14) piece
set, when delivery of the items was to be completed by, and whether James was performing or
failed to perform under the agreement. Therefore, summary judgment against James and for
Mosier on this claim is inappropriate as there exist genuine issues of material fact.

2. Breach of the Auction Contract — Count II

a. Parties’ claims and evidence regarding the Auction Contract

437 = James's Complaint alleges that in May 2004, he informed Mosler and O'Tool that he was
planning an antique auction in St. Croix and Mosler and O’Tool requested they be allowed to
participate;** the parties agreed the auction would take precedence over the Hotel Refurbishment
Contract and James would travel to Denmark to obtain items to sell;®? the parties agreed to form a
company called “Mahogany Auction” and open a bank account in that name and obtain credit
authorization;” Mosler and O’Tool instead used “Mosler Auto Rentals” credit and accounts:°!
James protested because it would “prevent customers from having a correct record of their

* Defs.* Mot. For Summ. J. 3-4; Defs.” Mot. For Summ. J. Ex. 5.
*! Defs.* Mot. For Summ. J. 4; Defs.’ Mot, For Summ. J. Ex. 2.
® Defs." Mot. For Summ. J. 4-6; Defs.’ Mot. For Summ. J. Ex. 4; Ex. 5; Ex. 6; Ex. 7; Ex. 8.

» Pl.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 7: 13-21 (Deposition of Jeffrey
Worthman).

# PI's Compl. 49 7,8, LI.

33 Pl.*s Opp’n 4.

% Defs.* Reply 3.

57 PL.'s Opp'n 4.

% PL.*s Compl. 49 9, LO.

* Pl.*s Compl. q 11.

* Pl.’s Compt. | 13.

Pls Compl. { 14.
Wayne James v. Warren Moster, et al. 2021 V1 Super 53U
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transaction and who was actually getting paid”; the parties agreed to split the profit one-third
(1/3) each way and sell any unsold items at a future auction;®? James expected the auction to be a
yearly event;” the furniture was purchased, shipped, and moved through customs in James’s
name;”> and the auction was held February 12 and 13, 2005, and netted approximately $800,000.%

438 James's Complaint further alleges that Mosler and O'’Tool collected all the auction monies
and failed to provide an accounting;®” Mosler and O’ Tool “improperly attempted to take a large
amount of cash from the sales” and used it to take an allegedly doctored photo, claiming it was the
money the Governor of the Virgin Islands paid and that “in breach of confidentiality requirements”
Mosler and O’Tool sent it out by e-mail to numerous persons and the press.°* James claims that
the taking of this photo “shocked and dismayed” him; the photo damaged his reputation by
causing people to believe there might be a hidden camera at the auction and that their purchases at
auctions with James might be publicized;'™ and that James totd Mosler and O’Tool he did not
want to be involved in the auction business with them anymore. !!

{39 Mosler and O’Tool cite to James’s interrogatory answer in which James states that the
agreement for the Auction Contract was between Mosler and James, not O’Tool.'°? Mosler and
O’Tool also cite to Mahogany Auction records and O’Tool’s affidavit to show that Mosler
advanced $731,115.30' of his own funds over ten (10) months for the auction, including funds
sent to James so he could travel to Denmark and purchase items;'™ the auction was held on
February 10 and 11, 2005'° and netted $536,481.00!" in proceeds;'°? the Government of the
Virgin Islands agreed to purchase $96,030.00 worth of items and the West Indian Company agreed
to purchase $57,750 worth of items and that neither paid for the purchases at the time.'°8 Mosier
and O’ Tool cite to Mosler’s affidavit to show that Governor Turnbull contacted James and made

® Pl.'s Compl. 7 15.

*} Pl.'s Compl. { 16.

* Pl."s Compl. q 17.

% Pl.’s Compl. q 18.

% Pl.’s Compl. q 19.

% Pi.*s Compl. q 20.

% Pl.’s Compl. q 21.

 PL.’s Compl. 4 22.

19 PI."s Compl. q 23.

0! Pl.’s Compl. q 24.

0? Defs.’ Mot. For Summ. J. 8-9; Defs.’ Mot. For Summ. J. Ex. 4 Interrog. 2.

"83 The number in O*Too!’s affidavit which is cited as proof is instead $731,115.70, while the number O’ Tool provides
in her exhibits is the number quoted above. Defs.’ Mot. For Summ. J. Ex. 3 (Affidavit of Elizabeth O'’Tool and
accompanying records).

'™ Defs.’ Mot. For Summ. J. 9; Defs.’ Mot, For Summ. J. Ex. 3 (Affidavit of Elizabeth O’Tool and accompanying
records).

'°5 These dates differ from the ones provided by Plaintiff. Exhibits attached with O’Tool's deposition indicate auction
records for February 12, 2005 as well,

6 The number in O'Tool’s affidavit which is cited as proof is instead $536,486, while the number provided in her
exhibits is the number provided above. Defs.' Mot. For Summ. J. Ex. 3 (Affidavit of Elizabeth O'Tool and
accompanying records).

*? Defs.’ Mot. For Summ. J. 9; Defs.’ Mot. For Summ. J. Ex. 3 (Affidavit of Elizabeth O’Tool and accompanying
records).

'* Defs.’ Mot. For Summ. J. 9; Defs.” Mot. For Summ. J. Ex. 3 (Affidavit of Elizabeth O’Tool and accompanying
records).
Wayne James v. Warren Mosler, et al. 

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arrangements to buy $39,000.00 of additional furniture in cash.’ Additional ly, citing to O’Tool’s
affidavit and Mahogany Auction records, they state there were unsold items worth a total cost of
$232,345.28 — although the exhibits show a slightly higher number.’ The number is the total cost
of the purchase prices plus the restoration costs for the unsold lots.!!!

940 Mosler and O’Tool further contend, pointing to Mosler’s affidavit, that James delivered
the money from Governor Turnbull to them in a red bag which was used for gifts from the
Governor's inauguration.''? Moster states he was shocked and took a photo which he e-mailed to
a few friends.'"3 As evidence, Mosler cites to his own affidavit as well as provides the e-mail,
which was sent to “AVMTraders” and a “Bill Mitchell” and states “thought you’d get a kick out
of the attached picture — the gov. paid for his furniture he purchased for $39,000 from us for himself
in cash. Note the bag it came in.”’'* In his affidavit Mosler states he sent the e-mail to several
friends and does not know how the newspaper got it.''*

41 Mosler and O’Tool provide the newspaper article, titled “Cash purchase of items raises
eyebrows,” and they further contend that this shows the photo’s newsworthiness.''® Mosler and
O’Tool provide another article titled “James: Mosler no longer part of even”[sic] where James
both defends the cash payments and claims the disclosure violated the confidentiality of the auction
and Mosler and O’ Tool allege he affirmatively stated on March 5, 2005, that he was no longer part
of the Auction Contract.''’ The newspaper article also states that Mosler had e-mailed the photo
to his friends, not the newspaper.''® Mosler and O’Tool state that after publicly terminating the
contract, James sent invoices to the Government and the West Indian Company and collected the
funds from them although he was not in possession of the furniture, and they provide the invoices
sent by James although no dates appear on the invoices.!"

942 Mosler and O’Tool further show by citing to James’s own answers to interrogatories that
James deposited these funds into a bank account in Washington, D.C.'?° They also state that James
never provided an accounting, except to show he spent $14,217.01 on a customs bill, and that he
received $139,562.99 from the Government and a $20,000.00 advance, pointing to his answers to
the interrogatories, his deposition, and Mosler’s affidavit, although the latter document does not
contain an accounting of funds James’s received in connection with the auction.'2! Mosler and
O’Tool also assert that, after James terminated the contract, he again refused to provide an

'® Defs.’ Mot. For Summ. J, 9; Defs." Mot. For Summ. J. Ex. 7 (Affidavit of Warren Mosler).

"® This number differs from what is provided in the exhibits which is $232,375.48. Defs.' Mot. For Summ. J. 9; Dets.’
Mot. For Summ. J. Ex, 3 (Affidavit of Elizabeth O'Tool and accompanying records).

" Defs.* Mot. For Summ. J. Ex. 3 (Affidavit of Elizabeth O'Tool and accompanying records).

"2 Defs.” Mot. For Summ. J. 10; Defs.” Mot. For Summ. J. Ex. 7 $7 (Affidavit of Warren Mosler).

3 Defs.* Mot. For Summ. J. 10.

"4 Defs.’ Mot. For Summ. J. 10; Defs." Mot. For Summ. J. Ex. 7 1? (Affidavit of Warren Mosler); Ex. (0.

"5 Defs.* Mot. For Summ, J. Ex. 7 7 (Affidavit of Warren Mosler).

"6 Defs.” Mot. For Summ, J. 10; Defs.” Mot. For Summ. J. Ex. 11.

‘17 Def.” Mot. For Summ, J. 10; Defs." Mot. For Summ. J. Ex. 12.

"® Defs.” Mot. For Summ. J. Ex. 12.

"? Defs.’ Mot. For Summ, J. 10-11; Defs.’ Mot. For Summ. J. Ex. 6; Ex. (3.

20 Defs,” Mot. For Summ. J. 11; Defs.’ Mot. For Summ. J. Ex. 4 Interrogs. 5, 6.

12! Defs." Mot. Far Summ. J. 11; Defs.” Mot, For Summ. J. Ex, 4 Interrogs. 4, 6, 7; Ex. 6 108: 7-14, 133-34 (Deposition
of Wayne James); Ex. 7 (Affidavit of Warren Mosier).
Wayne James vy. Warren Moster, et al. 

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accounting, citing to both of their affidavits.'2* Mosler and O’Tool contend that they cannot be
held liable for breach of contract because James is not entitled to damages because it was James
who terminated the agreement, and that James has already received $159,562.99, which exceeds
the one-third profit he claims he was entitled. '??

43 Mosler and O’Tool contend that even without James’s accounting, it is undisputed Mosler
spent $731,115.30, that $690,261.00 was received in total from the auction (the $536.48 1 received
from the auction days plus the $39,000.00 from Governor Turnbull later and the $153,780.00
received from the Government and West Indian Company), that James received the $153,780 and
the unsold furniture amounted to $232,375.48, for a grand total of $922,636.48.'4 Subtracting this
amount from the amount spent results in $191,521.78 in profit, one-third (1/3) of which is
$63,890.39, far less than the amount James testified he received.'?5 Thus, Mosler and O’Tool
argue, James cannot establish damages. Therefore, Mosler and O’Tool contend that summary

judgment is appropriate because O'Tool was never a party to the contract, James breached first,
and James suffered no damage. '?®

44 James replies that there was a written memorandum regarding the agreement between
Mosler and O’Tool and cites to his own deposition, in which he claims there was a memorandum,
although he never produced it and no other deposition is cited in support of this allegation.'?’ James
asserts he gave his receipts from his Denmark trip to O’Toot,!28 but then he also states that he
purchased items from flea markets and antique shops where receipts “were not always
available.”'?° For this proposition James again cites to his own testimony, as well as an exhibit
from March |, 2005—-after the auction—which apparently connects some wire transfers with some
of the auction lot numbers.'?° James admits to receiving a $20,000.00 fee and further alleges that
Mosler and O’Tool adversely impacted the profitability of the auctions by actively bidding while
having knowledge of the lots’ “reserve prices.”'>! James cites to an “expert report” which he
himself created for this proposition.'*? James asserts that Mosler and O’ Tool breached the Auction
Contract by never providing an accounting.'*?

45 James admits to receiving the money from the Government and the West Indian Company
but says Mosler and O’Tool had agreed to open the storage area where the furniture was kept but

'? Defs.’ Mot, For Summ. J. 11-12; Def,’ Mot. For Summ. J. Ex. 3 45 (Affidavit of Elizabeth O’ Tool); Ex. 748
(Affidavit of Warren Mosler).

"3 Defs.’ Mot. For Summ. J. 12.

'4 Defs," Mot, For Summ. J, 12-13,

'25 Defs.’ Mot. For Summ, J, 13.

'56 Defs,’ Mot. For Summ. J, 13,

‘2? Pl.*s Opp'n 4; Pi.’s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. | 33:15-34:11
(Deposition of Wayne James).

8 Pl.*s Opp'n 5; Pl.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. | 38: 4-9
(Deposition of Wayne James).

"9 PL.*s Opp’n 5; Pl.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. | 39: 1-14
(Deposition of Wayne James).

" Pl."s Opp'n 5; Pl.’s Resp, To Statement Of Facts And Counter Statement Of Material Facts Ex. 1; Ex. 8.

DB! PL's Opp'n 5.

"2 PL.’s Opp'n 5. Pl.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts 29-30.

' PL"s Opp'n 6,
Wayne James v. Warren Mosier, et al. 

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then refused to do so.'** Again, James cites to his own deposition testimony for this.'*5 James also
states that Mosler and O’Tool took possession of an item that Governor Turnbull paid for, and
cites to Mosler, O’Tool’s, and Governor Turnbull’s depositions.'?° James also states that Mosler
and O’Tool used some of the unsold lots in their own home.'>7 James avers that the value of the
seventy-two (72) unsold lots was $695,180.00, citing to his own deposition and the “expert report”
James himself created, and that part of the Auction Contract was the value of the unsold lots would
also be divided into one-third (1/3) shares.'3* James asserts he is due $230,000.00 from the unsold

lots, $14,000.00 for the profits from the auction, and $14,000.00 reimbursement for the customs
fee,'39

746 =Mosler and O’ Toot point out that James admits he was the one who cancelled the contract
and is attempting to use the “breach of confidentiality” argument to get around the fact that he
breached first.'*° They show, through newspaper exhibits, that James had publicized the auction
in the local paper, had invited the local paper to cover the auction, the local paper published an
article naming the bidders—including Governor Turnbull—and their purchases and Mosler and
O’Tool cite to an outside expert who states that confidentiality of bidders at a public auction is
virtually impossible to maintain.'*' They also point out that the other arguments James relies on:
(1) that Mosler and O’ Tool kept one of Govemor Turnbull’s furniture pieces; (2) the lack of a final
accounting (which they point out cannot be completed until James provides financial information):
and (3) that Mosler and O’ Tool used some of the furniture—cannot be a basis for breach of contract
because it happened after James had already terminated the Auction Contract.

{47 Mosler and O’ Tool also indicate in their Reply that: (1) James has never provided proof of
the alleged customs bill he spent $14,217.01 on; (2) James admits to receiving and putting
$153,780.00 into his bank account; and (3) by his own admission the auction only made $40,000
in profits'*® for which James would only be entitled to $13,333.33.'*4 Mosler and O’Tool point out
that James, as his own expert, asserts that he is entitled to the cost of the unsold lots valued at their
reserve price, which he unilaterally assigned to the lots.'*> Mosler and O’Tool cite to their outside
expert who indicates that: (1) James valued these objects with no accepted methodology; (2) his
valuation “is not an accurate valuation of the items in question”; (3) that the figure is
“conveniently” three (3) times the purchase price; (4) there is no account of any anticipated cost
in selling the items; and (5) the figure is in excess of the opening price — that is, higher than the

"4 Pi’s Opp'n 6.

45 Pl.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. | 111:20-112:7 (Deposition of
Wayne James).

36 Bl."s Opp’n 6; Pi.’s Resp. To Statement Of Facts And Counter Statement Of Material Facts 25.

‘3? pL,*s Opp'n 6.

‘8 PL's Opp'n 6-7; Pl.’s Resp. To Statement Of Facts And Counter Statement Of Material Facts 25; Pl.'s Resp. To
Statement Of Facts And Counter Statement Of Material Facts Ex. 1 122: 15-19 (Deposition of Wayne James); Ex. 9.
13° PI's Opp’n 7-8.

' Defs.’ Reply 4-5.

'4! Defs.’ Reply 5. Defs." Mot. For Summ. J. Ex. 17; Ex. 22.

'2 Defs.’ Reply 6.

"3 Pl.*s Opp’n 7.

4 Defs,” Reply 6-7.

148 Defs.’ Reply 6-7.
Wayne James v. Warren Mosier, et al. 

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amount James originally tried to sell them for.'“* Mosler and O’Tool assert the fair market value
of the unsold furniture is, instead, its cost: $232,345.78,'*" that one-third (1/3) of that sum is
$74,115.40, and adding the one-third (1/3) profit from the auction of $13,333.33, James would be
owed $87,448.73, far less than the $159,562.99 he has already pocketed.

b. Summary judgment will be granted in favor of Mosler and
O’Tool on the breach of the Auction Contract claim

948 = In viewing the evidence in a light most favorable to James, there does appear to be a
business agreement here between James, Mosler, and O’ Tool. This arrangement appears to involve
Mosler funding the auction, James acquiring the items and serving as auctioneer, and O’Tool
managing the bookkeeping. However, the Court finds that James was the breaching party and did
not suffer damages. Therefore, James cannot prove the last elements of a breach of contract claim.
By James’s own admission, he canceled the Auction Contract — even stating in his Complaint that
he told Mosler and O’Tool he no longer wanted to conduct the auction business. In an effort to
overcome this, James then asserts that the taking of the photo of Governor Turnbull’s money was
the actual breach of the contract, as it breached “bidder confidentiality,” but James can only point
to his own self-serving statements in support of this argument.

449 = There is no evidence “bidder confidentiality” constituted a material term of the contract or
that a breach of “bidder confidentiality” constitutes a breach of an auction contract. This assertion
and conclusion in James’s self-serving deposition and self-created “expert report” appears custom-
tailored to get around James’s repudiation of the Auction Contract. Meanwhile, Mosler and O’ Tool
provide evidence that the auction was reported in the local paper and that James used the same
paper to publicize the event. Defendants also provided a newspaper article covering the first day
of the auction which extensively reported on the purchases and covers Governor Turmbull’s
presence and participation, including what items he purchased, what the starting bids were, and
how much he paid for them.'“?

450 Further, Defendants provided an outside expert who testifies that “bidder confidentiality”
is nearly impossible to maintain in a public auction. Juxtaposing James's self-serving testimony
and “expert report” (which is in effect little more than an unswor affidavit) claiming a breach due
to violations of “bidder confidentiality” in a public auction the press was invited to and reported
on, with the evidence provided by Mosler and O’Tool as well as James's own admissions, no
reasonable factfinder could find that Mosler and O’Tool repudiated the contract because of a
“bidder confidentiality breach” prior to James’s self-admitted refusal to continue with the Auction
Contract. Further, no refusal to turnover to third parties certain items can constitute a breach as

“6 Defs.* Reply 7. Defs.' Mot. For Summ. J. Ex. 22; Ex. 25,

'” This number appears to be a typing error, as in their Motion For Summary Judgment the exhibits show an amount
of $232,375.48. See supra note 110.

"8 Defs.* Mot. For Summ. J. Ex. 17 (“Turnbull, well-known as an avid antiques collector, outbid others for the a [sic]
pair of armchairs that was used in officer’s saton in [sic] barracks of the Danish military in Charlotte Amalie. Bidding
for the chairs began at $3,000. Turnbull outbid others at $9,000. He aiso bid for and won a drop-leaf table used by St.
Croix newspaper publisher Paul E. Joseph in the 1940s, He bid up to $5,100.").
Wayne James v. Warren Mosier, et al. 2021 VE Super 53U
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these occurred later. Lastly, any failure to provide an accounting not only occurred after the breach
but was precipitated by James’s refusal to provide the relevant information.

qS1 Even assuming there was a breach of the contract by Mosler and O’Tool, James cannot
show monetary damages. James asserts: (1) damages of $14,000.00 from a Customs bill he has
said he paid but has not produced evidence of; (2) $13,333.00 in profits from the auction; and (3)
$230,000.00 from his own valuation of the unsold lots, contained in an “expert report” he made
himself. James admits to receiving and depositing the checks from the Government and from the
West Indian Company in addition to being paid a $20,000 fee. Mosler and O’Tool provide
evidence from an outside expert that James’s valuation is erroneous, self-serving, and not based
on any methodology. James's valuation simply increases by three times what he paid for the items,
notably in excess of what he intended to sell them for. The Court also notes that because of his
one-third (1/3) interest, by arbitrarily multiplying the value of the lots by three (3), James is seeking
to recover the total cost value of the unsold lots.

qS2 Even accepting that the customs’ bill may exist and subtracting that amount from what
James received, comparing James's self-serving deposition and self-made “expert report” with that
of the evidence provided by Mosler and O’Tool, it is clear that James is merely pleading inflated
numbers to show nonexistent damages. While there appears to be a dispute as to the value of the
unsold lots, James’s “expert report” is functionally unsworn self-serving statements. Contrasting
this evidence with that provided by Mosler and O’Tool, a rational factfinder would not find it
credible. The amount of money James could expect from splitting the auction profits and the total
cost of the unsold lots by one-third (1/3) is far below the money James received in depositing the
Government’s and West Indian Company’s payments in his Washington, D.C. bank account.
Therefore, even if James could show a breach of contract, he cannot show damages. Summary
judgment on Count II will be granted in favor of Mosler and O’Tool and Count II will be dismissed.

B. James’s misrepresentation claim — Count III

I. Parties’ claims and evidence regarding misrepresentation

{53 ‘In his Complaint, James alleges that he relied on Mosler and O’Tool’s “reputations that
they would pay expenses such as the custom bill, that they would conduct the auction in a
professional and ethical manner, and that they would provide furniture to the persons who
purchased it.”'*? He argues the Defendants’ alleged actions: (1) harmed his reputation; (2)
prevented him from ever conducting an auction again; (3) resulted in his debt to Customs and
failure to pay it harms his reputation; (4) made it look as if he neglected to provide the Government
with furniture and this harms his reputation: and (5) made it appear as if he participated in a
contrived photo which results in harm to his reputation. "°°

454 Mosler and O’Tool point out in their Motion For Summary Judgment that damage to
“reputation” is not compensable as damages for misrepresentation, only pecuniary damage.'*!

4? PL.*s Compl. 447.
‘9 PI.*s Compl. Ff 48-52.
5 Defs.* Mot. For Summ. J. 14.
Wayne James v. Warren Master, et al. 

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Mosler and O’Tool also state that the “gist of the action” doctrine bars a plaintiff from bringing a
tort claim that merely replicates a claim for breach of an underlying contract.'*

455 James responds in his Opposition with new theories of misrepresentation; the first being
that Mosler and O'Tool falsely represented that they had the authority to bind the hotel in a
contract.'>? James cites to his own deposition, and a statement in Mosler’s deposition where Mosler
states he discussed with Saunders and another hotel owner about investing in furniture and keeping
it in the hotel and that they stated that would be okay.'** James then states he only learned after
the initiation of the lawsuit that they did not have such authority.'> James asserts Mosler and
O’Tooi knew their misrepresentation was false, that they made the misrepresentation with
knowledge that James would rely on the statement, that James did rely on the statement in
expending time and money to redecorate the hotel, and the value of that work was $180,000.'*
James provides no citations or evidence for these claims.

956 Next, James argues that Mosler and O’Tool made other intentional misrepresentations; one
being that they agreed they would split the net profits by one-third (1/3). James provides no support
for this. He then states that any unsold furniture would be sold in a subsequent auction.'*” James
cites to his own deposition, as well as the deposition of Mosler in which he states the agreement
was that they would procure furniture, bring it up to museum quality, and sell it with one-third
(1/3) of the profits going to James, one-third (1/3) going to a clinic in Frederiksted, and one-third
(1/3) going to a museum in Frederiksted.'*® James then states the value of the unsold lots was
$695,180.00 and that James was entitled to one-third (1/3) of this.'*° James cites to his own
deposition and the “expert report” he created to support this. James further avers, with no
corroboration, that Mosler and O’Tool never intended to sell these lots and instead used them in
their home.'@

(57 James also alleges that Mosler and O’Tool represented that O’ Too! would be responsible
for the accounting and in reliance of this he tumed over receipts to O’Tool; O’Tool did not account
for those receipts or provide James with a copy, and thus he is unable to properly account for

expenses.'©! James cites to his own deposition as well as a March letter titled “Reconciliation of
Lot Numbers with Wire Transfers.”!®

58 James then argues that Mosler and O’Tool made misrepresentations by representing they
wanted to join James in an auction business “and would participate in that business in an ethical

'2 Defs.’ Mot. For Summ. J. 15.

'S) PL’s Opp’n 8.

'* PL.s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 5 139:24 ~ 140:7 (Deposition of
Warren Mosler).

155 Pl.*s Opp’n 8.

156 Pl.'s Opp’n 8-9.

15? Pls Opp'n 9.

'S Pl."s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 5 109:22 — 110:3 (Deposition of
Warren Mosler).

'* Bl.*s Opp’n 9.

1 Bl.*s Opp’n 9.

161 Pl.*s Opp'n 9-E0,

1? Pl.*s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 8.
Wayne James v. Warren Mosler, et al. 

Case No. SX-2005-CV-00356

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and professional manner and split the profits one-third each.” James again cites to his own
deposition and the deposition of Mosler in which Mosler states one-third (1/3) of the profits would
go to a clinic and one-third (1/3) to a museum.'® With no citation, James alleges Mosler and
O’Tool did not really “intend to do so” and James charges that Mosler and O’Tool acted
unethically by bidding on items which they knew the reserve price on.' James cites to his self-
made “expert report” for this.

{59 Moreover, James states Mosler and O’ Tool unethically violated the duty of confidentiality
and disclosed what items at the auction Governor Tumbull bought by staging a photo and sending
it out.'® James cites to his own “expert report” and deposition, as well as the deposition of O'Tool
in which she states that the photo did get sent somehow to the newspaper, although not that she or
Mosler sent it. James states these actions ruined the reputation of the auction putting it out of
business and ruined his reputation.'®” James again cites to his own deposition and his self-made
“expert report” as evidence for this claim.

{60 Lastly, James states that Mosler and O’Too! represented they would set up a credit card
account for the auction company but they never really intended to and that James “relied on those
representations to his determent [sic].”'®* James cites to his deposition as well as the depositions
of Mosler and O’Too! in which they indicate that James had asked them to set up a credit account
but Mosler did not want to because it would add expenses.'®* He also asserts that cash was taken
by Mosler and O’Tool that was not accounted for; and that all these “material misrepresentations”
damaged his reputation and hurt him economically.'”°

{61 In their Reply, Mosler and O’ Tool argue that because James has not responded to either of
their two arguments—that reputation damages are not actionable under a misrepresentation theory
and that James's allegations are merged into the contract claim—James has conceded these two
arguments.'”' Mosler and O’Too! aise contend that the points James does make are irrelevant or
untrue: I) it does not matter whether Mosler or O’Tool misrepresented that they could bind the
hotel as the hotel is not a defendant and James asserts he had a contract with Mosler not the hotel;
2) James's assertion that Mosler and O’ Tool acted “unethically” is based on his own expert report
and refuted by their expert, James was in control of the auction and bidding and did not prohibit

'*) Pl.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 5 109:22 — 110:3 (Deposition of
Warren Mosler).

14 Bis Opp’n 10.

"5 Pi.'s Opp’n 10.

#6 Pl."s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 2 51-19-23 (Deposition of
Elizabeth O’Too!).

7 Pls Opp’n 10-11.

#66 Pl.'s Opp’n 11." *

Pl.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 3 30-31 (Deposition of Elizabeth
O'Tool); Ex. 5 99 (Deposition of Warren Mosler}.

7 Pl.'s Opp'n It.

'"' Defs.’ Reply 8-9. Mosler and O"Tool cite to: Day v. CC. Dep't of Consumer & Regulatory Affairs, 

 (D.D.C. 2002) (“If a party fails to counter an argument that the opposing party makes in a motion, the
court may treat that argument as conceded.”); Bancoult v. McNamara, 

 (“[I]f the opposing
party files a responsive memorandum, but fails to address certain arguments made by the moving party, the court may
treat those arguments as conceded... .").
Wayne James v. Warren Mosler, et ai. 

Case No. SX-2005-CV-00356

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Mosler and O'Tool from bidding, and most importantly, the claim is irrelevant to the tort of
“misrepresentation”; and 3) while James pleads he is prevented from holding future auctions by
damage to his reputation, he has provided no evidence he has attempted or intended to do so, and
James has enjoyed favorable press coverage of his antique collection since.'7

2. Summary judgment will be granted in favor of Mosler and O’Tool on
the misrepresentation claim

§62 Ail of James’s original damages claimed in his Complaint are damages to his reputation.
Misrepresentation requires that the plaintiff plead pecuniary damages. James has not done so and
is thus unable to recover under a theory of misrepresentation. Insofar as James alleges new theories
in his Opposition, these are not properly before the Court, as “new theories require new complaints
and a plaintiff may not amend his complaint via arguments made in opposition to a summary
judgment motion.”'”? However, for the purposes of judicial economy, the Court will exercise its
discretion and consider James’s new arguments.

{63 James alleges that Mosler and O’Tool misrepresented to him that they had the authority to
bind the hotel to a contract, and that in reliance on this James performed work which he valued at
$180,000.00. However, not only is the hotel not a party to the case or the contract—James himself
admits he made the contract with Mosler—this allegation simply duplicates James’s breach of
contract claim for the Hotel Refurbishment Contract and is thus barred by the gist of the action
doctrine. James alleges that Mosler and O’Tool misrepresented to him they would conduct an
accounting, but James has not alleged with particularity what pecuniary loss was suffered, or what
James has lost and Mosler and O’Tool have gained from this. Further, as discussed below, it is
Mosler and O'Toot who seek an accounting from James and it is James who has stymied their
efforts by failing to provide access to certain bank statements or other documents.

464 James’s arguments that Mosler and O’Tool acted unethically and that they fraudulently
misrepresented they would act professionally again fails to show what James has lost and Mosler
and O’Tool have gained through the alleged misrepresentation. While James, citing himself, states
without explanation that Mosler and O’Too!’s bidding drove profits down, Mosler and O’Tool
state that their bidding caused sales to increase, driving profits up. Additionally, Mosler and
O’Tool indicate that James was in charge of the auction, and at no point until the filing of his
Opposition did he express it was improper for them to bid at the auction nor did James try to
prevent them from bidding at the auction. Further, they provide evidence from their expert that
their actions in bidding were not improper.’ Unable to plead pecuniary loss with specificity,

'2 Defs.” Reply 10,

'") In re: Gen. instrument Corp. Secs. Litig., No. 96 C (129, 

, at *L0(N.D. Ill. Nov. 21,
2000); of Jefferson v. Chase Home Fin,, NO. C 06-6510 THE, 2008 U.S. Dist, LEXIS 101031, at *16 (N.D. Cal. Apr.
29, 2008) (“A more accurate statement of the law, however, is that a court has discretion to refuse to allow a new
theory in opposition to summary judgment."); see also Xpertuniverse, Inc. v. Cisco Sys., No. 09-157-RGA, 

, at *35 (D. Del. Mar. 8, 2013) (“XU's new theories in opposition to summary judgment are
untimely and not supported by any record evidence; it is unclear what ‘business opportunities’ XU is even alleging.
One reasonable conclusion is that XU proposed these new theories to survive summary judgment, as opposed to in
response to the natural course of litigation and discovery.”).

‘4 Defs.’ Response To Pl.’s Counterstatement Of Material Fact Ex. 22 (“It should not be considered improper Mosler
and O’Tcol were acting as bidders, not auction house principles at a public auction, as was the Governor. A Public
Wayne James v, Warren Mosler, et al. 

Case No, SX-2005-CV-00356

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Page 21 of 31

affirmatively show that Mosler and O’Tool enticed James by representations of ethical behavior,
or to show that Mosler and O’Tool acted unethically in misrepresentation to James, James’s
alleged claim of misrepresentation here must fail.

6S For similar reasons, James’s allegations of fraudulent misrepresentation involving the
photo taken by Mosler and O’Tool must fail. James asserts his reputation was harmed and that of
the auction, but he offers no evidence for this and reputational harm is not actionable under the
tort of fraudulent misrepresentation. Further, James does not even allege he attempted to hold an
auction again and was rebuffed. A barebone statement of conclusory harm without a scintilla of
evidence cannot survive summary judgment. Lastly, this allegation merely reiterates James’s
breach of contract claim. Summary judgment in favor of Mosler and O’Tool is appropriate
regarding James’s claim that they fraudulently misrepresented they would act ethically and
breached this by taking a photo of cash payments.

{66 James’s final assertions of fraudulent misrepresentation regarding funds and how the
auction finances would work also does not survive summary judgment. James does not indicate
how not setting up a new crediting account harmed him. Apparently in response to Mosler and
O'Tool’s Motion For Summary Judgment’s argument that reputational harm is not actionable, he
blanketly asserts that he was harmed economically, but offers no evidence. Nor does his claim that
Mosler or O’Tool stole cash from him constitute fraudulent misrepresentation — he does not allege
how, through an intentional misrepresentation, they caused him to act or not act with regards to
purportedly stolen cash. Even more importantly, he does not provide any evidence that cash was
stolen nor does he give any details, such as how it was stolen or how much was taken. This baseless

accusation is not plead with particularity or backed up by any evidence uncovered during
discovery.

{67 With all these claims, James attempts to revive his breach of contract arguments under a
different theory of tortious liability. Recognizing that his original Complaint was legally defective
in alleging only reputational harm, he tacks on a conclusory declaration he was also harmed
economically. Both legally and factually, James has failed to show fraudulent misrepresentation
or circumstances that differ this claim from his breach of contract claims. Summary judgment in
favor of Mosler and O’Tool will thus be granted and Count III will be dismissed.

Cc. James's claim of fraud — Count [V

1. Parties’ claims and evidence regarding fraud

{68 James states in his Complaint that Mosler “has a pattern and practice of making business
promises that he has no intention of fulfilling”;'”> that Mosler entered into agreements with James

Auction is open to all... . There is no mention that to be actively engaged in the auction, and bidding on items while
holding the reserve price list, is contrary to the auction house rules .. . . Similar to limiting conditions auction house
“rules” should state the use of any restrictions for bidders. As described above, unless the auctioneer or auction house
states clearly that they (Mosler & O’ Tool), were under restrictive limiting conditions and have the reserve price list
they will not be allowed to participate in the auction. If that is not specified then it remains an open auction to all
participants in attendance including those given the advantage of holding a reserve price list.").

175 Pls Compl. q 54.
Wayne James v. Warren Mosler, et al. 

Case No. SX-2005-CV-00356

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Page 22 of 31

that Mosler did not intend to fulfill and that he is guilty of fraud;'”* and that as a result James
suffered damages of “loss of reputation, mental anguish, physical and psychological injuries, pain
and suffering and loss of enjoyment of life[.}°!7

469 Mosler and O’Tool state that James “has failed to identify any such promises on any
business entity which claims that such promises were made and not fulfilled.”!”® Mosler and
O’Tool, citing to James’s interrogatory answers and deposition, point out that James has never
seen a doctor for the alleged physical injuries, and he has not seen a psychiatrist or psychologist
for his alleged mental and psychological injuries.'"? They also point out that fraud and
misrepresentation have the same elements, and thus James can only sue for monetary damages. '®°
They further argue that beyond James not being able to demonstrate physical harm, any physical
harm done from a misrepresentation of fact must be reasonably anticipated.'*' Mosler and O’Tool
also assert that the “gist of the action” doctrine bars James’s fraud claim as well.'®2

{70 In his Opposition, James states that there are “multiple instances of fraud in the instant
case.”!* As with elsewhere in his Opposition, James asserts new theories and damages not alleged
in his Complaint. First, James again asserts that Mosler and O'Tool falsely represented they had
authority to bind the hotel to a contract.'® Again, James cites to the depositions of James, Mosler,
and Saunders.'* In those depositions, Saunders states that Mosler had a twenty-four-and-a-half
percentage (24.5%) interest in the hotel; Saunders was in charge of final decisions, such as
redecorating the hotel; that Mosler would frequently come to him for decisions; and that they
decided not to refurbish the whole hotel with mahogany furmiture.'®* James leaves out that
Saunders did agree to retiling and refurbishing one of the rooms with mahogany furniture.!®” In
Mosier’s deposition, he states he did not have a written agreement with hotel management
concerning the redecoration; that he did not call it a redecoration but an investment in furniture;
and he wanted to store it at the hotel and let guests use it.'

q7t = Next, James insists Mosler and O’Tool defrauded him by stating they would permit the
Government to pick up furniture but then refused to hand it over.'®? James does not provide a
citation for this, but he does cite to his own deposition for his following assertion that the

'%6 Pi."s Compl. Ff 55-56.

"7 Pls Compl. ¥ 57.

"78 Defs.* Mot. For Summ. J. 16.

'* Defs.* Mot. For Summ. J. 16.

'* Defs.* Mot. For Summ. J. 16-17.

‘8! Defs.* Mot. For Summ. J. 17.

'82 Defs.” Mot. For Summ. J. 17.

"33 Pl *s Opp’n 12.

4 Pl.*s Opp'n 12.

'§5 P],"s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 1 27:19-23 (Deposition of Wayne
James); Ex. 5 139:24-140:7 (Deposition of Warren Mosler); Ex. 10 45:14-25 47:8-25 (Deposition of Paul Saunders).
' Pl.’s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 10 45:14-25 47:8-25 (Deposition
of Paul Saunders).

"7 P],"s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 10 48:1-10 (Deposition of Paul
Saunders).

'§ PI's Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 5 139:24-140:7 (Deposition of
Warren Mosler).

9 Pl.*s Opp’n 12.
Wayne James v. Warren Mosier, et al. 

Case No. SX-2005-C V-00356

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Page 23 of 31

Government and West Indian Company paid for the furniture with checks made out to Mahogany
Auction, which were deposited in his account.' Again citing to his own deposition, James states
that Mosler and O’Tool agreed to open the storage area for the Government on May 9, 2005, but
then refused to give the Government the furniture until they paid him directly.!?"

472 Third, James states that the parties agreed that Mosler and O’Tool would open a bank
account in the name Mahogany Auction and obtain credit authorization in that name.'°? James
cites to Mosier’s, O’Tool’s, and his depositions, although, as pointed out above, Mosler and
O’Tool assert that James had merely asked them and they refused to set up the accounts as it was
an unnecessary added expense.'®? James asserts that Mosler and O’ Tool instead used “Mosler Auto
Rentals” accounts and that James objected that this was improper.'** Without any citation, James
proclaims that O’Tool and Mosler acted with fraudulent intent in their refusal to set up a new bank
account, and that they were thus able to siphon funds from the auction into their personal
accounts. !%5

473 ~~ Fourth, James alleges that seventy-two (72) lots did not sell at auction and he values these
items at $695,180.00, citing his own expert report.'® James alleges that Mosler and O’Tool put
the unsold lots in their homes, citing to Mosler and O’Tool’s depositions. '®’ He further states that
the value of the unsold lots would be split into thirds (1/3) and distributed, citing to Mosler and
James’s depositions.!9® Next, James alleges that Mosler and O'Tool took possession of Item 42,
which was paid for by Governor Tumbull, and that Mosler and O’Tool knew this.'” James cites
to O'Tool, Mosler, and Turnbull’s depositions.?”

q74 ~Lastly, James asserts that Mosler and O’Tool collected all monies from the auction and
have failed to provide an accurate accounting, citing to his own deposition.2"' James asserts by
failing to provide an accounting, Mosler and O’Tool are attempting to defraud James out of the

'% Pl,’s Opp'n 12; Pl.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 1 113:1-114:2
(Deposition of Wayne James).

'' Pl.'s Opp'a 12; Pl.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 1 111:20-112:7,
113:1-114:2 (Deposition of Wayne James).

2 Pls Opp'n 12.

' PL.’s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. | 102:22-105:22 (Deposition of
Wayne James); Ex. 3 30-31 (Deposition of Elizabeth O'Tool); Ex. 5 99 {Deposition of Warren Mosler).

' Pi’s Opp’n 12-13.

95 PL’ Opp'n 13.

1%6 Pl,"s Opp'n 13; PL.’s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 9.

7 Pl.’s Opp'n 13; Pl.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 2 101-102
(Deposition of Elizabeth O'Too!); Ex. 4 70:17-18, 76:1-3 (Deposition of Warren Mosler).

'* Pl.'s Opp'n 13; Pl.’s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. | 123:4-8
(Deposition of Wayne James), Ex. 5 109:22-110:3 (Deposition of Warren Mosler).

* Pl's Opp'n 13.

© PI.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 2 103 (Deposition of Elizabeth
O'Tool); Ex. 5 15:23-16:9 (Deposition of Warren Mosler); Ex. 6 37:4-12 (Deposition of Govemor Tumbull).

70 Pl.’s Opp'n 13; Pl.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 1 67:16-20
(Deposition of Wayne James).
Wayne James v. Warren Mosler, et al. 

Case No. SX-2005-CV-00356

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Page 24 of 31

value of the unsold lots and his one-third (1/3) in profits.“ James ends his Opposition with a
blanket assertion he has thus been harmed reputationally and economically?

{75 Mosler and O’Tool reply that James “did not even respond to the point that he had not
provided any evidence to support his only allegation of fraud in the [CJomplaint” namely that
Mosler “has a pattern and practice of making business promises he has no intention of fulfilling.”2
Mosler and O'Tool point out that James still has not proven any physica! or emotional injury, and
that he has added several new accusations not contained in his Complaint or in any responses to
discovery.*°* Among these, are accusations that Mosler misrepresented his interest in the hotel,
which Mosler and O’ Tool characterize as “irrelevant,” and another accusation they call both false
and irrelevant — that Mosler promised the Government it could pick up furniture then refused to
let it do so. Finally, Mosler and O’Tool further argue that even if these new allegations were

allowed, they are just a part of James’s alleged contract claims and would also be barred by the
“gist of the action” doctrine.?°”

2. Summary judgment will be granted in favor of Mosler and O’Tool on
the fraud claim

{76 James has not plead with particularity or shown satisfactory evidence that Mosler and
O’Tool have a history or “pattern” of making business promises which they intend not to fulfill.
No evidence of other purportedly fraudulent business practices was provided nor were any even
plead. Nor has James shown any physical harm from his stated fraud claim nor has he demonstrated
what specific pecuniary loss James suffered and what pecuniary gain Mosler and O'Tool gained
from this ‘pattern of promises.’ James's fraud claim is a broad and generalized accusation. The
rest of James's theories are not properly before the Court as they arise in an opposition to a motion
for summary judgment and James has not amended his Complaint. However, in the interest of
judicial economy the Court will consider them.

{77 As mentioned above, James stated he made the Hotel Refurbishment Contract with Mosler,
not with the hotel.?"* James is suing Mosler, not the hotel, and he is not trying to add the hotel as
a party. Nor does James plead with particularity what Mosler gained, and James lost, by James
being led to believe Mosler could bind the hotel. Aside from being improperly before the Court,
James has not plead fraud satisfactorily here. Even if he had, the claim mirrors James’s assertions
under his breach of contract claim and would be barred by the gist of the action doctrine.

78 Citing only to his own statements, James asserts Mosler and O’Tool agreed to open where
they were Keeping furniture for the Government but then refused to tum over the furniture. James
does not assert what pecuniary loss he suffered from this and the Government is not a party to this
action. Indeed, by James’s own admission, James is the one who gained here as he pocketed the

3@ PL.’s Opp'n 13-14.

29 Pl.'s Opp'n 14.

24 Defs.” Reply 10-11.

83 Defs.” Reply 11.

2% Defs.’ Reply 11.

**7 Defs.” Reply 11.

2 Defs.” Mot. For Summ. J. Ex. 4 Interrog. 2.
Wayne James y. Warren Moster, et al. 

Case No. SX-2005-CV-00356

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Government and West Indian Company’s monies into his own bank account in Washington, D.C.
regardless of whether the Government and West Indian Company received their furniture. James
has not satisfactorily alleged a count of fraud here.

479 = Nor has Plaintiff alleged fraud concerning the bank account. James states he deposited his
funds into a bank account in Washington, D.C. under his name and a designation ‘d/b/a Mahogany
Auctions.” There is no indication of what pecuniary loss there was for James in Mosler or O’Tool
not opening a new bank account. While James alleges that Mosler and O’Tool “siphoned funds”
into their personal account he provides no evidence of this, nor does he provide particulars as to
when, how much, or even what funds. Further, ail the funds pointed to by the parties for the
acquisition and purchase of the auction items originated with Mosler, with the exception of an
alleged Customs bill which has not been produced. James has not satisfactorily alleged fraud here.

180 Likewise, James does not show how Mosler and O'Tool holding onto the unsold lots or an
item purchased by Governor Turnbull constitutes fraud. There is no false representation of a
material fact alleged here or any physical or monetary injury to James demonstrated. While James
asserts his reputation was harmed, there is no pecuniary loss to James in Mosler and O’Tool
holding on to the unsold lots, nor is it apparent how James’s is monetarily harmed by Mosler and
O’Toot holding onto an item purchased by Governor Tumbull. While Governor Turnbull may
have a cause of action to recover an item, James cannot maintain this constitutes fraud as to him.

q81 = As for his final claim that Mosler and O'Tool failed to provide an accounting, thus
defrauding him, Moster and O'Tool have a counterclaim to demand an accounting from James and
have a pending Motion For Inspection And To Compel Bank Accounts, filed on May 28, 2008.

This counterclaim is addressed below: As.James i is the one stymieing these efforts, he cannot tum
around and state that the lack of an accounting now constitute fraud against him. James's blanket
assertion at the end that all of the above “new” theories of liability harmed him economically does
not plead with particularity what economic or pecuniary loss James suffered — generalized
conclusions cannot save a party from summary judgment where no evidence is shown, and specific
facts or circumstances regarding the fraud are not plead.

q82 While these new claims of fraud are not properly before the Court as they are plead in an
opposition to summary judgment, James has not shown a genuine issue of material fact nor has he
successfully plead fraud or differentiated his claims from those which form the basis of his breach
of contract claim, thus barring them under the gist of the action doctrine. Summary judgment in
favor of Mosler and O’ Tool on this count will be granted and Count IV will be dismissed,

D. James’s claim of intentional infliction of emotional distress — Count V

1. Parties’ claims and evidence regarding infliction of emotional distress

{83 In his Complaint, James states simply that Mosler and O’Tool “intentionally inflicted
emotional distress” on him and that he “suffered damages as alleged herein.” Mosler and O’ Tool
argue in their Motion that James never received “any treatment for his alleged emotional distress
as previously noted” and state that “he is now a Senator in the Virgin Islands Legistature, operating

20? Pl.’s Compl. Ff 58, 59.
Wayne James v. Warren Mosler, et al. 

Case No. SX-2005-CV-00356

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under no apparent distress” and they call his claim “totally frivolous.”?'° Mosler and O’Tool
contend that the case is “nothing more [than] a disputed business transaction” and they argue there
is no “outrageous conduct” in Mosler canceling a relationship in which he spent over $100,000
“without receiving anything from James” including “the 49 chests” that he paid for but James still
has.”!! While Mosler and O’Tool do not cite to items in the record, these same claims were made
previously in regards to another count and cited there.

784 Citing to Mosier’s deposition and the e-mail itself, Mosler and O’Tool assert that James
provides no “legal or factual basis for his assertion that sending an e-mail to private friends or
anyone else would be legally inappropriate.”?'? He also provides the newspaper clippings and
notes that the paper had already written articles covering that Governor Tumbull attended the
auction and had outbid other bidders on several items; the amounts of the bids are also reported.2!3
Mosler and O’Tool contend that James has not submitted any facts or law supporting his charge
that the public auction sales constituted “confidential information” or the existence of any right to
confidentiality under the Auction Contract; that the newspaper ran similar information the day
after the auction; and that James fed the paper with news releases about the auction.2'* Mosler and
O’Tool argue that in light of these newspaper articles, which they provide, Mosler’s conduct in e-
mailing the photo to his friends is not outrageous.2!5

985 Lastly, Mosler and O’Tool state this claim is the same as a “garden variety breach of
contract claim” and that James’s “efforts to make the transaction more dramatic falls short of the
type of conduct so extreme as to go beyond all ground of decency so as to be regarded and atrocious
and utterly intolerable in civilized society."?'° Mosler and O’Tool also assert Mosler has a First
Amendment right to privately express his dismay to his friends at the Governor paying for items
with large amounts of cash in a bag with his official seal on it?!”

986 James in his Opposition argues that “[t]here are multiple instances of Defendants’ conduct
that rise to the level of outrageousness sufficient to meet the legal burden of intentional infliction
of emotional distress,”?'* Citing to his and Mosler’s depositions, James asserts that Mosler and
O'Tool, with the intent to injure James, took a large amount of cash, “falsely indicated it was the
cash dollars paid by the Governor and took a doctored photo” and sent it to the press by e-mail
“and other means.”*!? [t is noted that nowhere in the cited portions of depositions is it stated that
the cash in the photo was not the cash the Governor paid. The second act of intentional infliction
of emotional distress James asserts is that Mosler and O’Tool contracted with a worker to make

340 Defs." Mot. For Summ. J. 18.

2! Def.” Mot. For Summ. J. 18.

22? Defs.” Mot. For Summ. J. 19; Def.” Mot. For Summ. J. Ex. 2 31, 33, 41 (Deposition of Warren Mosler); Defs.”
Mot. For Summ. J. Ex. 7,

2!) Defs.’ Mot. For Summ. J. 19; Defs.' Mot. For Summ. J. Ex. 19.

24 Defs." Mot. For Summ. J. 19.

43 Defs." Mot. For Summ. J. Ex. 12: Ex. 18.

216 Defs.' Mot. For Summ. J, 19.

17 Defs.* Mot. For Summ. J. 19.

4® PL's Opp’n 14-15.

29 PL.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. | 70-71 (Deposition of Wayne
James); Ex, 4 47:21 (Deposition of Warren Mosler).
Wayne James v. Warren Mosler, et al. 

Case No. SX-2005-CV-00356

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fifty (50) roundtables” but they did not pay him in full, which James asserts severely damaged
his reputation causing him extreme emotional distress.”2 James cites to his own deposition for
this,?22

87 = The third act which James asserts constitutes intentional infliction of emotional distress is
that after the Government paid James and he deposited the money, Mosler refused to give the
Government the furniture and instead insisted they pay him directly. Again, James cites to his
own deposition for this.?** James states, without citing to any evidence, that the “outcome of the

two contracts with Defendants have permanently damaged Plaintiff's reputation causing him
emotional distress.”225

88 James also asserts all this “unlawful conduct . . . damaged his ability to transact future
business ventures” and the actions caused him “mental anguish, loss of sleep, loss of appetite and
loss of enjoyment of life.”??6 James cites to his own deposition where he states that he did not
receive treatment but he spoke to family members because he was “upset”; that having his
reputation tarnished caused him “‘a lot of distress”; that to have a “negative thing cast over what
was really regarded as a beautiful event . . . affects your sleep. It affects your appetite. It affects
just your pride in walking in the street”; and “the whole thing even up to now still causes distress
in the sense that... it was . . . so unnecessary.””2’ When asked in what ways did Mosler
intentionally inflict stress on James he replied that Mosler holding onto the Governor's chest was
one example because he felt “it was definitely something that would make [James] have problems
dealing with the Govemor in the future. It was just so disappointing.”?”* James also states in his

deposition that sending out the photograph was intentionally done to cause him stress as was the
breach of the hotel contract.22

q89 = In their Reply, Mosler and O’Tool again point out James has provided no evidence of
emotional distress beyond his “say so” and that, even if the Court does find Mosler and O’Tool’s
conduct to be “outrageous,” there is a requirement that there be some evidence of “some resulting
emotional distress as well.”””° Mosler and O’Tool point out that James asserts in his Opposition
for the first time that the cash in the photograph was not really the cash paid by Governor Tumbull,
the citation provided by James does not backup his assertion, that in paragraph thirty-three (33) of

29 The Court notes that elsewhere, James and Mosler and O' Too! indicated that the agreement was for forty-nine (49)
roundtables.

721 Bl.’s Opp'n LS.

222 Pl,’s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. | 184, 197 (Deposition of Wayne
James).

233 Bl*s Opp'n 16.

4 Pl.'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 1 109-113 (Deposition of Wayne
James).

335 Pl,’s Opp’n 16.

26 Pl.’s Opp'n 16.

27 Pl.’s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 1 137-138 (Deposition of Wayne
James).

228 Pl,'s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 1 202-203 (Deposition of Wayne
James).

7” Pl.’s Resp. To Statement Of Facts And Counter Statement Of Material Facts Ex. 1 202-203 (Deposition of Wayne
James).

2 Defs.' Reply 12.
Wayne James v. Warren Mosler, et al. 

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his own Complaint James acknowledges this cash, and James is attempting fraud on the Court by
now claiming it was not the cash the Governor paid.”?!

2. Summary judgment will be granted in favor of Mosler and O’Tool on
the infliction of emotional distress claim

{90 James simply pleads in his Complaint that Mosler and O’Tool intentionally inflicted
emotional distress upon him. He pads this barebones pleading in his Opposition with three (3)
actions he alleges Mosler and O'Tool took in order to intentionally cause him distress. James
alleges that Mosler and O’ Tool did these matters intentionally, not recklessly or negligently. James
offers no proof that Mosler or O’Tool acted intentionally. However, James's intentional infliction
of emotional distress claim is deficient in other ways as well.

(91 = First, these actions are directed at third parties whom James is not related to, the
Government, Governor Tumbull, and a craftsman. The Court notes none of these parties are
members of his own family. Taking the allegations in the light most favorable to the nonmoving
party and assuming their veracity—that Mosler and O’ Tool failed to fully pay a workman for items
they had not yet received and that they demanded that the Government pay them and not James
before Mosler and O’Tool would release the items they had in their possession—neither of these
actions allege an act inflicted on James or bodily harm done to someone in his presence. Further,
the Court is skeptical of the alleged “outrageousness” of these actions—indeed they appear to be
common business issues.

(92 = The third act, that Mosler and O’ Tool “falsely” fabricated a photo featuring the Governor’s
cash, appears intentionally concocted by James in his Opposition to amplify his deficient
intentional infliction of emotional distress claim. As mentioned above, there is no evidence that
the cash was not the Governor's — this claim arises in James’s Opposition without any backing.
Also, this action targets the Governor, not James. Even assuming arguendo, the action was
intentionally done to distress James and assuming that the sending of a picture of cash in an email
is so outrageous as to be abhorrent to common notions of societal decency, James only alleges
damages to his reputation and his emotional health, but has not offered an iota of proof beyond his
own generalized assertions that he was mentally and emotionally harmed.

{93 While in some cases, sole testimony from a complaining party may be sufficient to defeat
summary judgment, it is not enough here. No details or narrative is provided, just a broad, umbrella
allegation of “mental anguish, loss of sleep, loss of appetite and loss of enjoyment of life.”222
Going beyond the Opposition and Complaint, in the cited portions of James's deposition he
describes being upset, disappointed, and emotionally hurt. He describes in the second-person
impersonal how such situations can affect one’s sleep, appetite, and pride, though he gives no
instances where he was so affected. James describes concern over future business ventures and
dealings with the Governor. While there is no showing by James beyond his own testimony that
Mosler sent out the photograph of the cash and canceled the Hotel Refurbishment Contract with
the intent to cause James stress, even assuming it was Mosler’s intent the resultant stress so
described by James is slight. As the Restatement (Second) of Torts states: “Complete emotional

2 Defs.’ Reply 12.
2 Pl.’s Opp’n 16,
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Case No. SX-2005-CV-00356

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tranquility is seldom attainable in this world, and some degree of transient and trivial emotional
distress is a part of the price of living among people. The law intervenes only where the distress
inflicted is so severe that no reasonable man could be expected to endure it.”?33

{94 Thus, even assuming the intentionality of Mosler and O’Tool, and granting James the
element of “outrageousness”—which the Court is highly skeptical a rational factfinder could
conclude---James’s claims fail as he has not provided a showing beyond conclusory pleadings and
his own self-serving testimony in his deposition that he suffered any severe mental or emotional

damages. Summary judgment will be granted in favor of Mosler and O’ Tool and Count V will be
dismissed.

E. James’s “punitive damages” claim— in Count VI does not constitute a separate
cause of action

{95 James in his Complaint states that “{t]he actions of the Defendants are so reprehensible,
done with such evil motives and with such a reckless disregard for the rights of the Plaintiff that
the Plaintiff is entitled to an award of punitive damages.””* Mosler and O’Tool, citing Urgent v.
Havensa, LLC,” argue that a claim for punitive damages is not a separate cause of action.2>° They
also note counsel for James did not object to a separate count for punitive damages being dismissed
in the case McDonald v. Davis, et. al.?®’ James in his Opposition does not contest this point and
Mosler and O’Tool indicate in their Reply that James has therefore conceded it.228

96 = The law of the Virgin Islands is clear on this point — a separate claim for punitive damages
cannot stand alone. Therefore, Count VI of James’s Complaint will be dismissed.

F. Mosler and O’Tool’s counterclaim for accounting - Count I of the
Counterclaim

{97 Mosler and O’Tool include in their Answer And Counterclaim a counterclaim for a full
accounting from James of “all funds regarding the transaction related to the auction, including a
detailed list of all items purchased in Denmark, as well as a detailed list of expenditures made to
date.”?*? They also assert they are entitled to remittance of any funds held by James in excess of
the funds due to him.**° Mosler and O’Tool recognize in their Motion that there are two motions

to compel the production of accounting related information which is necessary “to complete this
accounting.’”24!

233 RESTATEMENT (SECOND) OF TORTS § 46 cmt. j (1965).

4 PI,’s Compl. 7 62.

5 Civil No. 2006/0105, 

 (D.V.1 Oct. 2, 2008).

46 fd. at *30-31 (“All that remains in this case is Count VIII for punitive damages, which is not a distinct cause of
action and was improperly plead as a separate count.”); Defs.’ Mot. For Summ. J. 20.

47 $1 VL. $73 (D.V.1. 2009) (“Considering the weight of authority, the Court agrees that McDonald's punitive
damages claim cannot stand alone.”); Defs." Mot. For Summ. J. 20.

48 Defs.’ Reply 13.

9 Defs.’ Answer And Counterc!. ] 7.

* Defs." Answer And Countercl. {7 8.

41 Defs." Mot. For Summ. J, 20.
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Case No. SX-2005-CV-00356

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798 James did not respond to Mosler and O'Tool’s counterclaims in his Opposition. In their
Reply, Mosler and O’Tool, citing to two District of Columbia cases, Day v. C.C. Dep't of
Consumer & Regulatory Affairs** and Bancoult v. McNamara,” argue that James has conceded
this counterclaim.” Considering the pending motions for discovery related to the accounting, the
Court will reserve judgment on this counterclaim until after those discovery issues have been
resolved and a ruling that covers the accounting issue in its entirety can be entered.

G. Mosler and O’Tool’s counterclaim for breach of contract — Count II of the
Counterclaim

99 = In their Answer And Counterclaim, Mosler and O’Tool assert that James promised to
produce certain items for the hotel, he was paid, but he failed to produce them.?" In their Motion,
Mosler and O’Tool assert that “based on the undisputed facts” they are entitled to summary
judgment for $66,700. Mosler and O’Tool cite to Mosler's affidavit for this number, basing it
off the $49,000.00 he paid for the 49 chests he states he did not receive and the $17,700.00 he paid
to the craftsman as a deposit for the tables that he states were not made.”“” Mosler and O'Tool also
state they are entitled to the $28,000.00 Mosler paid James for the furniture patterns since they
were not actually copyrighted and he did not receive any of the furniture.?** As mentioned above,

James did not oppose this claim in his Opposition and Mosler and O’ Tool assert in their Reply that
this claim is conceded.”

100 Both James and Mosler and O’Tool assert that the other party breached the Hotel
Refurbishment Contract. As analyzed above, there exist genuine issues of material fact regarding
what the scope of the agreement was and who breached first. As summary judgment will be denied
on James’s claim that he is due renumeration for Mosler’s breach of the Hotel Refurbishment
Contract, so summary judgment will also be denied here.

IV. CONCLUSION

qi01 On June 2, 2005, James filed a Complaint against Mosler and O’Toot alleging they broke
two (2) contracts, that they committed fraud and fraudulent misrepresentation, that they
intentionally inflicted emotional distress, and he asserted a claim for punitive damages. On July
19, 2005, Mosler and O'Tool filed their Answer And Counterclaim seeking an accounting, a claim

2 

 (D.D.C, 2002).

41 

 (D.D.C, 2002).

™ Defs.' Reply 14. See Day, 

 (citing Lewis v. United States, Civil Action No. 90-0991, 

, *2 (D.D.C. 1990)) (“If a party fails to counter an argument that the opposing party makes in
a motion, the court may treat that argument as conceded.”); Bancoult, 

 (citing Sparrow v.
United Air Lines, Inc., Civil No. 98-2194-RCL, 

, at *17 (D.D.C. July 23, £999),
overruled on other grounds, 

, 

 (D.C. Cir. 2000)) (“Moreover, if the opposing
party files a responsive memorandum, but fails to address certain arguments made by the moving party, the court may
treat those arguments as conceded, even when the result is dismissal of the entire case.”).

5 Defs." Answer And Countercl. ¢ 10.

™6 Defs.* Mot. For Summ. J. 21.

4? Defs,” Mot. For Summ. J. 21; Defs.' Mot. For Summ. J. Ex. 7.

148 Defs.’ Mot, For Summ. J. 21.

7 Defs.’ Reply 14.
Wayne James v. Warren Mosler, et al. 2021 VE Super 53U
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for breach of contract, and defamation. On April 7, 2009, Mosler and O’Tool moved for summary
judgment to dismiss James’s claims and on two of their three counterclaims.

q102 Having considered the evidence in the light most favorable to the nonmoving party, the
Court will grant summary judgment in favor of O’Tool on Count I of James's Complaint, the
breach of the Hotel Refurbishment Contract, but only in regards to O’Tool as the evidence shows
the possible existence of an agreement as between Mosler and James. The Court will grant
summary judgment in favor of both Defendants on Count II of the Complaint, the Auction
Contract, as the evidence indicates James repudiated the agreement and, further, that he retained
funds in excess of expected profit and cannot, therefore, show damages.

103 The Court will grant summary judgment in favor of both Defendants on Count III and
Count IV of the Complaint, that Mosler and O’Tool fraudulently misrepresented their “business
ethics” to James, and that Mosler and O’Tool committed fraud against James because James cannot
show pecuniary loss and they are barred by the gist of the action doctrine. Summary judgment will
also be entered in favor of both Defendants on Count V because James has not established through
the evidence severe emotional distress. Count VI will be dismissed because the Virgin Islands does
not recognize a standalone claim for punitive damages.

104 The Court will reserve ruling on Mosler and O’Tool’s counterclaim Count I for an
accounting as there are outstanding discovery motions related to this issue. The Court will not
grant summary judgment on Mosler and O’Tool’s counterclaim Count II for breach of contract as
there are genuine issues of material fact regarding the Hotel Refurbishment Contract. The Court
does not address Mosler and O’Tool’s counterclaim Count III for defamation as it was not raised
in the Motion For Summary Judgment.

qi05 An order consistent with this Memorandum Opinion follows.

DATED: May 24 , 2021 RDOWMLTY). pow

DENISE M. FRANCOIS
Judge of the Superior Court of the Virgin Islands

ATTEST:

TAMARA CHARLES
Clerk of the Court

BY:

LATOYS/A. CAMAC

Court Clerk Supervisor 5 BY AOA