IN THE SUPERIOR COL RT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
*tttt
SANSARA A CANNON )CASE NO ST 2023 CV-00146
)
)ACTION FOR DAMAGES MANDATORY
Plaintiff ) INJUNCTIVE RELIEF SPECIFIC
) PERFORMANCE DISGORGEMENT AND
)RBCOVERY OF COMPENSATION PAID TO
vs ) UNLICENSED CONTRACTOR CONSUMER
)FRAUD MISREPRESENTATION BREACH OF
)CONTRACT NEGLIGENCE DECLARATORY
FULCRUM CONSTRUCTION LLC ) RELIEF and UNFAIR BUSINESS PRACTICES
)
)JURY TRIAL DEMANDED
Defendant )
Cite as 2023 VI Super 78U
MEMORANDUM OPINION
1“ THIS MATTER is before the Court on Defendant Fulcrum Construction, LLC’s
(“Fulcrum”) Motion for Summary Judgment, filed October 10, 2023 Plaintiff Samara A Cannon
(“Cannon”) did not respond to the Motion within 30 days as required by V I R Civ P 56(c)(2)(A)
On November 23, 2023, the Court denied Cannon’s request for additional time within which to
respond to Fulcrum s Motion for Summary Judgment due to her failure to demonstrate neither
excusable neglect nor good cause ' For the reasons set forth below, the Court will grant Fulcrum’s
Motion for Summary Judgment
' A motion filed before the time to act has passed must show cause, however, a motion filed alter the time to act has
passed must show excusable neglect and courts must find good cause Cannon 5 reason or lack thereof for not
responding within 30 days pursuant to V I R Civ P Rule 56(2)(A) is of importance because Cannon has established
a pattern of consistently disregarding this Court 5 procedural deadlines and in the instant matter has fully failed to
explain why she did not reward to Fulcrum 5 Motion by November l0 the date ofthe expiration ofthe 30-day period
to respond Cannon submitted her request for an extension on November 22, 2023 twelve days after her deadline
As the language of V I R Civ P Rule 6 expressly provides. it is the plaintiff‘s burden to show good cause or excusable
neglect 111eref0te because Cannon failed to provide some reasonable basis for her failure to respond within the time
specified Cannon failed to establish good cause or excusable neglect for an extension under Rule 6 Excusable
neglect and good cause must be shown not concluded People ofthe V I v Hatcher 68 VI 378 381 82 (Super Ct
2018) see also McGaIy v J8 Carambola L L P 69 V l 72 76 20I6 V I LEXIS I66 '4 (V I Super Ct 20l6)
( The Supreme Court of the Virgin Islands has established that in this jurisdiction excusable neglect is essentially
synonymous with good cause ) (citing Fuller v Browne, 59 V I 948 955 (V I 20l3)) Dame! v Gov? ofthe V I
No ST 17 CV 293 2019 V I LEXIS 8 at ‘4 (Super Ct Jan 3] 2019)( [Clourts have equated good cause with
the concept of ‘exeusable neglect which requires a demonstration of good faith on the pan of the party seeking an
Cannon v Fulcmm Construction. LLC 2023 VI Super 78U
Case No ST 2023-CV 00146
Memorandum Opinion
Page 2 of 20
I INTRODUCTION
1|2 Cannon contracted with Fulcrum in December 2021 for interior renovations of her
condominium in St Thomas In late December, after work on the initial contract had begun,
Cannon authorized the first ofeight change orders to which both parties agreed between December
2021 and August 2022 With each change order, Fulcrum provided Cannon with the additional
number of days for labor that the new work would add to the initial proposal 2 The change orders
also included the additional cost to the initial proposal and a description of the work to be
performed Cannon does not dispute that her signature and date of approval is on every contract
change order The total cost for the work Fulcrum performed, including all eight change orders,
came to $141,587 393 The completed work included dry wall, demolition, painting general
construction, electrical, and plumbing 4 The eight change orders added an additional 57 days of
labor to the original estimate of 18 days and Cannon made four payments in advance of
completion She made a $15,000 005 down payment by check dated December 29 2021, when
work began under the initial contract, and subsequently made three more payments to Fulcrum via
check $50 000 006 dated February 4 2022 $30 000 00 dated’ May 13 2022 and $20 000 003
dated Aug 22 2022 In total Cannon paid Fulcrum $115 000 00 Both parties agree that the job
was completed January 21, 2023 9 Once the work was completed, Fulcrum sent Cannon a final
invoice for the remaining $27 79l 37 owed under contract Cannon responded by questioning the
invoice and providing her own invoice of expenses to Fulcrum '° Cannon maintains she was
improperly charged by Fulcrum and alleges that Fulcrum damaged items in her unit, caused
additional uncontracted for expenses and created extensive delay and damage that had to be
repaired These include additional costs of $50,000 00” plus additional expenses in the amount of
$55,165 05 for which Cannon alleges Fulcrum did not reimburse her '2
enlargement and some reasonable basis for noncompliance within the time specified in the tules ), but see Henderson
v Gov? ofthe V I at: rel Hams 70 VI 69 73 74 (Super Ct 20l9) (noting that ‘good cause is not necessarily to
be interpreted as synonymous to ‘excusabie neglect ‘) Depending on the circumstances the phrase “good cause can
also mean something different from excusable neglect E g , Gourmet Gallery Crown Bay Inc v Crown Bay Marina
LP 8 Ct Civ Nos 20l5 0I23 2016 0022 20l7VI Supreme LEXIS!“ ‘l0n II (VI July 24 2017)( For the
purposes of this Order, ‘good cause means serious illness pre arranged travel pre ordered court appearances,
personal or family emergency death or similar circumstances )' accord In re Red Dust Claims, 69 V I 147 159
2017 VI LEXIS 98 ‘20 (VI Super Ct 2017)( If the requestcomes late then good cause must be shown )
I Compl 1ll2
JOpp n Pl 5 Mot & Mem TRO & Prelim [nj 2
‘ Comp] 1l2
’Pl 5 Reply Def’s Opp n TRO & Prelim Ex 2 P
“Pl 5 Reply Defs Opp n TKO & Prelim Ex ll P
7Def sAnswcr Affirm Def,Counterc! 116 Ex 14
3 Pl 5 Reply DePs Opp n TRO & Prelim Ex [
4 P
9 Comp! 1l5
'° Pl 5 Reply Det"s Opp n TRO 8: Pteiim at 5
" Compl 1] 41
'2 Comp] 1 42
Cannon v Fulcrum Construction, LLC‘ 2023 VI Super 78U
Case No ST 2023-CV 00146
Memorandum Opinion
Page 3 of 20
1l3 In addition, Cannon alleges that afier the contracted work was completed she learned that
Fulcrum was not properly licensed Cannon asserts that Fulcrum was “not operating with the
appropriate general, electrical and plumbing contractor licenses for the work solicited but
performed, in violation of 27 V [C §331a and other applicable law”” and that Fulcrum
misrepresented its ability to perform the contracted work "
{[4 After disputing Fulcrum’s final invoice for $27,791 37, Cannon sought administrative
review of Fulcrum’s business practices by filing a consumer complaint with the Virgin Islands
Department of Licensing and Consumer Affairs (DLCA) on or about February 22, 2023 While
the DLCA administrative review was pending, Fulcrum filed a lien against Cannon’s
condominium, pursuant to Title 28 V l C Chapter 12 Cannon then filed the instant action on May
8 2023
[1 LEGAL STANDARD
A Summary Judgment
«5 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 The court should state on the record the reasons for granting or
denying the motion "
1|6 Summary judgment will be granted ifthe “pleading, deposition, answers to interrogatories,
and admissions on file, together with the affidavits, if any show that there is no genuine issue of
material fact and that the moving party is entitled to ajudgment as a matter of law ”6 A fact is
“material” only if its existence or non existence will affect the outcome of a lawsuit under
applicable law, and an issue is “genuine” ifthe evidence is such that a reasonablejury could return
'3 Comp! 1 36
"' Compl 137
"VI Civ P 56(8)
'6 Fed R Civ P 56(c) Celolex Corp v Comm 477 U S 3l7 322 23 (I986) see also Skopbanlcv Allen William:
Corp 39 VI 220 227 (DVl l998)' Accord Green v Hess 0:! Virgin Islands Corp
29 VI 27 30 (Super Ct
1994)
Cannon v Fulcrum Construction, LLC 2023 VI Super 78U
Case No 81‘ 2023-CV 00146
Memorandum Opinion
Page 4 of 20
a verdict for the non moving party ”'7 Or, as the Virgin Islands Supreme Court stated in Annlles
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 noumoving party, the court concludes that a reasonable jury could only enter
judgment in favor of the moving party ”'9 Summary judgment is proper if the non moving party
fails to establish the existence ofan element essential to its case and on which the party would bear
the burden of proof at trial 20The simple assertion of a theoretical cause of action or theory of
liability is not enough, a showing must be made as to each of the essential elements of the claim 2‘
1|7 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[ ]”22 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 ”23 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[ ]”2" 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 ’25 Further
“[i]f the non movant offers evidence that is ‘merely colorable’ or not ‘significantly probative,’
summaryjudgment may be granted ’1‘ Finally 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
reasonablejury could return a verdict for the non moving party ’27
' Anderson v Liberty Lobby Inc 477 U S 242 247.48 (1986)
" 64 V I 400 (V l 2016)
'9 Id at 409
” Celoler at 322
' White v Westinghouse Electric Co
862 F 2d 56 (3d Cir 1988)
Anthony v FlrstBank Virgin Islands 58 V I 224 228 (V l 2013) (quoting Willzams v United Corp 50 V I l9l
[94 (V I 2008))
3 WINMMS 50 V l at 194 (V l 2008) (quoting FED R CIV P 56(e)) see V I R Civ P Rule 56 see also 8031c
sews Inc v Gov? ofthe V I . 7| V I 652 658 (2019) (“A movant is entitled to summaryjudgment if there is no
ttiable issue of material fact ‘)
“ Anlhony 58 V l at 229 (quoting Williams 50 V l at 194 95)
’5 Anderson v American Fed n of Teachers. 67 V I 777, 789 (V I 20”) (quoting Pere V R11 Carlton (Virgin
Islands) Inc 59Vl 522 527 28 (VI 20l2))
M Pemberton Sales & Serv v Banco Popular dc P R
877 F Supp 96! 965 (D V 1 I994)
Williams 50 V I at I95 (citing Anderson v Liberty Lobby Inc 477 U S 242 255 0986))
Cannon v Fulcrum Construction, LLC 2023 VI Super 78U
Case No ST 2023-CV-00l46
Memorandum Opinion
Page 5 of 20
Ill ANALYSI§
1|8 As required, the Court reviewed Fulcrum’s Motion on its merits, including Cannon’s
Complaint, l4 exhibits totaling 234 pages, and all evidence on the record, consisting of email
exchanges, text exchanges, photographs, the parties’ contracts, and all other verified documents
Cannon seeks the following relief, which are primarily based on the allegation that Fulcrum was
not properly licensed for the work it performed an issue currently under review by the DCLA
l Pteliminary Injunction;
2 Removal and preclusion of lien(s),
3 Declaratory judgment determining rights and obligations of the parties, including adoption
of Cannon’s allegation that Fulcrum operated an illegal business in violation of statutory
requirements,
4 Statutory penalties for providing alleged unlicensed contractor services,
5 Attomey’s fees,
6 Monetary damages, including punitive and exemplary damages, and
7 Reimbursement of $1 15,000 paid to Fulcrum for work performed 2"
Cannon’s Complaint asserts the following causes of action, which the Court addresses below
A A private action pursuant to 27 V I C §34l Charges Against License;
B Consumer Fraud and Misrepresentation;
C Breach of Contract
D Negligence,
E Declaratory and lnjunctive Relief; and
F Unfair Business Practices
A Title 27 V I C §34l does not provide a private right of action
1 The DLCA determines whether Fulcrum was appropriately licensed for work
performed under contract for Cannon
{9 Fulcrum asserts that there is no genuine dispute as to any material facts related to its
licensure status and ability to perform the work it performed It maintains that it represented itself
to Cannon as a ‘ construction company who also offers professional design service” in its initial
proposal 29 Fulcrum also contends that it was a licensed contractor while performing under its
2’Compl at I?
3° Mot Summ J Ex 1
Cannon v Fulcrum Construction, LLC’ 2023 VI Super 78U
Case No ST 2023-CV 00146
Memorandum Opinion
Page 6 of 20
contract and that ‘where necessary retained other qualified and licensed professionals to provide
subcontractor’s services ’30
{[10 Fulcrum argues that it was properly licensed for the work it performed on Cannon’s
condominium;3| and that it never represented itselfas a licensed electrician or plumber, as Cannon
alleges Fulcrum does not dispute that it “does not possess a general construction license ” that it
is “not a ‘licensee’ under Section 341,” or that it possesses any of the licenses “delineated in 27
V I C 331(a) ” 32 These statutes fall within Chapter IO of Title 27 under the governance of the
Vitgin Islands Board of Contractors, Trades and Crafts within the DLCA
1|]! Pursuant to Title 27 V I C § 332, any person that wants to practice in the Virgin Islands
as any of the professions listed in Section 331(a) or who wants “to engage in any construction
trade as a business” must obtain a license to do so 33 Title 28 V I C §253 describes who is entitled
to a construction lien “[A] prime contractor, subcontractor, or subsubcontractor ” Section
254(d) specifically excludes any contractor, subcontractor, or subsubcontractor who is not
licensed as required by Chapters 7, 8, or 10 of Title 27 3‘ A person who has entered into a real
estate improvement contract is considered a “prime contractor” or “Contractor" if he has
contracted to perform work as defined by statute under definition of Contractor ’5 Neither party
disputes that Fulcrum is licensed by DLCA as masonry and painting contractor 3‘
1112 Cannon alleges that Fulcrum performed general contracting, electrical, and plumbing work
on her condominium without proper licensing to do so ” The issue of whether Fulcrum was
pr0perly licensed for work performed is currently under administrative review Afier receiving her
final invoice from Fulcrum, Cannon filed a claim with DLCA under Section 341 (Charges Against
Licensee) in February 2023 to investigate Fulcrum’s licensure and to determine whether Cannon
3° Mot Summ J at 36
3' Mot Summ J at 36
”Mot Summ J at 30
’3 See also 21 V I C § 33 la Unlawful practice ofgeneral construction it shall be unlawful for any person to operate
as or use the title of contractor or the titles of the following professions within the Virgin Islands unless the person is
licensed as provided for in this chapter (I) General Construction Contractor(2) Plumber Contractor(3) Electrician
Contractor“) Mechanic Contractor(5) Master Plumber(6) Master Electrician(7) Master Mechanic(8) Fiber Optic
Technician ’
“ “A construction lien does not exist under this subchapter in favor of any contractor, subcontractor or sub-
subcontractor who is not licensed as required by titie 27 chapters 7 8 or IO of the Virgin Islands Code or other
applicable law of the Virgin Islands 28 V I C §254(d)
“ Pursuant to 27 V I C (5 33l a ‘Contractor‘ is defined as any person contracting or undertaking as prime contractor,
subcontractor or sub-subcontractor of any tier to do any erection building construction, reconstruction demolition,
repair maintenance or related wont on any public or private project A ‘GeneralConstruction Contractor is defined
as “a person or business that contracts to oversee a building project usually involving the use of subcontractors and
manages all aspects of the day to-day activities at the jobsite ”
“Mot Summ 1 Ex 32
‘ Comp! 1140 41
Cannon v Fulcrum Conslmcrion, LLC 2023 VI Super 78U
Case No 81' 2023-CV 00146
Memorandum Opinion
Page 7 of 20
was properly billed for work performed 3‘ Section 341 governs the process for pursuing a
grievance against a licensed Contractor General Contractor, or other licensee under Section 331
Pursuant to Section 341, the aggrieved person may file charges against the licensee with the Virgin
Islands Board of Contractors, Trades and Crafts within DLCA Unless the charges are dismissed
as unfounded or frivolous, a hearing will be held on all charges after an investigation is conducted
As of the date of this Order Cannon has not advised the Court of whether DLCA has concluded its
investigation or scheduled a hearing
{[13 Jurisdiction of DLCA is conveyed by statute to determine whether Fulcrum’s work falls
within parameters ofa “real estate improvement contract, ’ 39 and whether Fulcrum was adequately
licensed for work performed ‘0
2 Cannon does not possess private right of action under 27 V I C §34l
1114 “A private right of action is the right of an individual to bring suit to remedy or prevent an
injury resulting from an actual or threatened violation of a legal requirement ”“
1|15 Fulcrum asserts that “the record shows” it was a licensed contractor and that it retained
other qualified and licensed professionals “to provide subcontractor’s services "2 Fulcrum also
argues that Cannon’s Charges Against License claim in the instant action is barred as a private
right of action
116 Fulcrum points out that the test for whether a statute creates an implied right of action is
found in the United States Supreme Court decision Alexander v Sandoval, with the relevant
inquiry involving two steps 43 First, the text and structure of the statute must be examined to
determine whether the legislature intended to create a personal right Second, the text structure
3‘ Comp] 12
3" Pursuant to 28 V I C § 252(3), 2: real estate imptovement contract ‘ is an agreement to perform services or to
furnish materials for the purpose of producing a change in the physical condition of land or of a structure including
construction or installation on above, or below the surface of land [and] demolition, repair remodeling or removal
of a structure previously constructed or installed ‘
” See 27 V I C {533 I(a) Unlawful practice of general consttuction “(3) It shall be unlawful for any person to operate
as or use the title of contractor within the Virgin Islands unless the person is licensed as provided for in this
chapter
" Olivev deJongh 57 VI 24 43 (Super Ct 2012)(citing Wisniewskl v Rodale Inc 510 FM 294 296 (3d Cir
2007)) In Ohve, the plaintiff alleged that defendants violated conflict of interest rules in ordet to improve the
governors property at the expense ofthe peeple of the Virgin Islands The court held that the conflict of intetest laws,
V l Code Ann tit 3 §§ 1 too I 108, did not create a private tight ofaction allowing individuals to litigate in the place
of the Attorney General It found the conflict of interest laws did not contain rights creating language focused
almost exclusively on the persons being regulated and not those protected and eteated a comprehensive enforcement
method entrusted to the Attorney General Olivev deJongh
57 VI 24 30 (Super Ct 2012)
‘2 Mot Summ .I at 36
‘3 Alexander v Sandoval 532 U S 275 (2001)
Cannon v Fulcrum Construction, LLC 2023 VI Super 780
Case No ST 2023-CV 00146
Memorandum Opinion
Page 8 of 20
and legislative history of the statute must be examined to detennine whether the legislature
intended to create a private remedy An implied private right of action exists under the statute if
the legislature intended to create a personal right and a private remedy ‘4
1117 Section 34l(a) states that “Any person aggrieved by an action of a licensee may file
charges against the licensee as set forth in this section Such charges shall be in writing and shall
be sworn to by the person making them and shall be filed with the secretary of the Board The
Board, unless dismissed by the Board as unfounded or frivolous, shall hear all charges, afier
completing any necessary investigation ” As was the case in Sandoval the express language here
permitting the implementing regulation includes no provision for implementing private
enforcement rights ‘5
1]18 Turning to the second step to determine whether the legislature intended to create a
private remedy"6 “an express provision of one method of enforcing a substantive rule suggests
[emphasis added] that the legislature intended to preclude other methods of enforcement
Furthermore, ‘the existence of a comprehensive remedial scheme in the statute’ :mplies [emphasis
added] that no private right of action exists outside of the method[s] articulated ”“7 Section 341
provides for only one method of enforcement and contains its own remedial scheme 4‘
Accordingly, the existence of this scheme implies an intent to preclude other methods of
enforcement
1119 Without an implied personal right or provision for private remedy, 27 V I C (5341 does not
provide for a private right of action, and “[i]n cases dealing with the Department of Licensing and
Consumer Affairs Virgin Islands courts have determined that exhaustion of administrative
remedies should occur before a case is ripe before judicial review ”“9 Even assuming arguendo
that Cannon had a private right of action the reality remains that no triable issue as to any material
fact exists because DLCA has not yet made a determination on her claim 5° As a matter of law, 27
V l C §34l does not provide for a private right of action With respect to Cannon’s asserted claim
of a private cause ofaction pursuant to 27 V 1 C Court finds Fulcrum has met its burden regarding
Cannon’s Claim for private right of action under 27 V I C §341 Charges Against License
‘4 Ohvev deJongh 57V] 24 44 (Super Ct 20l2)
‘5 Alexander v Sandoval 532 U S 275 278 (200|)
“ Sandoval 532 U S at 286
‘7 Joseph v Legislature oflhe VI No ST ll CV-4l9 20l7 VI LEXIS I75 at ‘I9 20 (Super Ct Apr l2 2017)
(citing Olive at 44) (quoting Sandoval at 290)
“It is an ‘elemental canon' of statutory construction that where a statute expressly provides a remedy, courts must
be especially teluctant to provide additional temedies Olwe v deJongh 57 V l 24, 46 (Super Ct 20l2) (citations
omitted)
‘9 Rondon v Canbbean Leasing& ECO Tramp Inc
74 VI 397 398 (Super Ct 202])
5" See Martin v Marlin. 54 V l 379, 38l (20l0)( On summary judgment, the nonmoving puny possesses the burden
of setting out specific facts showing a genuine issue for trial ' )
Cannon v Fulcrum Construction, LLC 2023 VI Super 78U
Case No ST 2023-CV-00l46
Memorandum Opinion
Page 9 o! 20
B There is no genuine dispute as to any material fact concerning Canaan’s Claim for
Consumer Fraud and Misrepresentation
1120 Fulcrum argues that it “made no representation that it was licensed in all areas of
construction,” and that it “operated openly on the basis that it was collaborating and engaging other
professionals and entities such as electricians or plumbers ”5' Fulcrum maintains “that when the
scope of work was expanded at Plaintiff‘s request to include electrical, plumbing, HVAC, and
glass installation work, Fulcrum engaged individuals or companies who specialize in those
areas ”52 The record is devoid of any statements or representations made to Cannon otherwise
Fulcrum’s December 21, 2021, email to Cannon containing its initial proposal described the entity
only as a construction company who also offer professional design services ” 53
1121 Fraud in the Virgin Islands is defined as a knowing misrepresentation of truth or
concealment of a material fact to induce another to act to his or her detriment 5" When alleging
fraud, Rule 9 of Virgin Islands Rules of Civil Procedure affirms that “a party must state with
panicularity the circumstances constituting fraud ” “Courts have determined that to meet this
particularity requirement, a complaint alleging fraud normally includes the time, place and content
of the false misrepresentations, the facts misrepresented, and the nature of the detrimental
reliance ”55 “To properly state a claim for fraudulent misrepresentation, a plaintiff must allege that
a fact was misrepresented, and that the plaintiffrelied on that misrepresentation to her detriment ”56
“To succeed on a claim of fraudulent misrepresentation one must prove that the maker ofa contract
‘intends his assertion to induce a patty to manifest his assent and the 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 not have the basis that he states
or implies for the assertion "'57
$22 Cannon alleges that in representing Fulcrum, Lekwan Gregory Agyei Gregory, and Kai
Smith, “knowingly made false and fraudulent representations” to her“ She alleges that they
represented that they were general contractors and “held themselves out to be licensed general,
drywall, electrician and plumbing contractors without being licensed as such by the DLCA ”
Cannon also alleges that they were not properly licensed as they represented to her and that they
5' Mot Summ J at 35
’ Mot Summ J at 32 33
”Compl Ex 3
:; gmdon v Caribbean Leasmg & ECO Tramp Inc 74 V I 397 398 (Super Ct 202!)
“Néuyenv Nguyen No ST 20w cv-463 2022 v1 LEXIS 6 at ‘I3 15 (Super c: Jan 4 2022)
5’ Pollarav Chateau S! Crow LLC
58 VI 455 4'“ (2013)
5' Comp! 147
Cannon v Fulcrum Constmcllon, LLC 2023 VI Super 78H
Case No ST 2023CV 00146
Memorandum Opinion
Page II) of 20
performed construction services that caused damages, delays, and expenses 5" Cannon contends
that she reasonably relied on the alleged representations made to her and that had she known that
Fulcrum was “not licensed in the area of construction including general, electrical and plumbing
and other contractor work besides painting and masonry,” she would never have retained or paid
Fulcrum in advance to perform and complete the work in her home 6°
1R3 Cannon claims that because of alleged fraud and misrept'esentation, she incurred damage
“in a sum the exact amount of which has yet to be ascertained,” but which she alleges to be ‘in
excess of $170,165 ”6' Cannon further assetts that when she “ascertains the exact amount of her
damages she shall seek leave of Court to amend” her complaint “according to proof at the time of
trial ”62
1|24 Cannon does not state with any particularity circumstances constituting fraud such as the
time or place such misrepresentations were made As the nonmoving party Cannon has had the
burden to set out specific facts showing a genuine issue for trial The court may not weigh the
evidence, but instead, the court must view all inferences from the evidence in the light most
favorable to the nonmoving party and take the nonmoving party's conflicting allegations as true if
properly supported ‘3 The Court has carefully reviewed the record and finds that no material facts
in the record refute Fulcrum’s evidence of its representations made to Cannon regarding licensing
or performance of work outside the scope of its licensing The Court finds Fulcrum has met its
burden of demonstrating that no genuine dispute exists as to any material fact related to fraud or
misrepresentation by Fulcrum, and it is entitled tojudgment as a matter of law
C Fulcrum has demonstrated no genuine dispute exists as to any material fact in regards to
Canaan’s claim for breach of contract
1|25 Fulcrum contends that it ‘ performed its contractual obligations in a workmanlike manner
and did not breach its duty” to Cannon 6‘ The elements of a breach of contract claim are (1) an
agreement, (2) a duty created by that agreement (3) a breach of that duty, and (4) damages 6‘ As
explained above, the moving party here Fulcrum bears the burden to show that the record is
devoid of a triable issue of material fact
’9 Compl NB 9 I6
«I Compl 145
°' Compl 146
‘2 Compl 146
‘3 Pollara v Chateau SI Croix LLC No SX 06 CV~4ZS 20l6 VI LEXIS 49 at ‘1 (Super Ct May 3 2016)
6‘ Mot Summ J at 45
‘5 Bane Sew: Inc v Govloflhe VI 71 V I 652 653 (2019)
Cannon v Fulcrum Construction, LLC 2023 VI Super 78U
Case No ST 2023-CV 00146
Memorandum Opinion
Page II of 20
1126 It is undisputed that the parties had a contracted agteement followed by eight change order
agreements all signed by both parties for the work performed on Cannon’s condominium
There are no disputable issues as to the duties created by these agreements Cannon alleges that
Fulcrum breached its duty by l) failing to provide licensed contractor services, 2) failing “to
complete the construction in a reasonable timeframe as indicated in change orders of at minimum
a couple ofdays at maximum a couple of weeks” and 3) failing ‘ to reimburse funds for expenses
and certain damages and costs caused by delay and construction work that had to be redone ”66
I Fulcrum has demonstrated that no genuine dispute of material fact exists concerning
the status of its licensure
1|27 Fulcrum argues that it was properly licensed for the work it performed under its license as
Masonry and Painting Contractor from DC LA and that the record presents inadequate dispute of
material facts to sustain a breach of contract claim concerning improper licensing As already
discussed above, Cannon filed a claim with DLCA challenging whether Fulcrum maintained the
appropriate licenses for the work it completed and performed on her condominium DLCA 5
review is pending; however, the mere filing of a complaint with DLCA does not equate with a
valid claim for breach of contract based upon having an allegedly improper license Aside from
Cannon’s complaint with DLCA, Fulcrum asserts that no genuine dispute of material fact exists
challenging its “censure The Court finds that until DLCA discerns that Fulcrum performed work
it was not appropriately licensed for, Cannon cannot rely on this as a cause of breach of contract
Furthennore, upon review ofthe record, the Court finds no triable issue of material fact concerning
Fulcrum’s licensure for the work it performed and Fulcrum is entitled to summary judgment on
the issue as a matter of law
2 Fulcrum demonstrates that no genuine dispute of material fact exists concerning the
timeframe for completion of performance
1128 Fulcrum assetts that Cannon herself contributed to an extended completion date by adding
additional work outside of the original contract, and by requesting design changes that resulted in
delays outside the control of the parties, such as product delivery times Fulcrum argues that
Cannon authorized a total of eight change orders that were added to the original contract over an
eight month period from December 2021 through August 2022 ‘7 Fulcrum further asserts that
Cannon initiated most of the change orders Shortly after the parties agreed to their first contract,
on or about December 3 l , 2021, Cannon approved and executed the first ofthe eight change orders,
all of which contain her signature 6‘ Fulcrum provided Cannon with an initial work schedule
“ Compl 151
‘7 Mot Summ J 11|l4 IS
6' Mot Summ J 17
Cannon v Fulcrum Construction, LLC 2023 VI Super 78U
Case No 81‘ 2023 CV-00146
Memorandum Opinion
Page 12 of 20
corresponding with the original contract and each subsequent change order contained information
as to only the additional days of labor that would be added
1|29 Fulcrum argues that within days of the first change order and before work on the original
contract and the first change order was completed, Cannon executed a second change order to
address remedying damage to the existing plumbing in the unit before work on the drywall of the
original contract could be completed ‘9 Then again, on January 26, 2022, “before work on the
onginal contract and the first two change orders were completed, Cannon approved another change
in scope of work "7° Fulcrum states that the design changes requested were substantial and
extensive 7' Fulcmm provides before and after photographs demonstrating the extent of
improvements made in the areas where it performed the contracted work Fulcrum includes photos
that Cannon herself used of the completed spaces for her listing to advertise the condominium for
sale
1130 Fulcrum provides substantial evidence of Cannon 3 acknowledgement that additional
delays would be caused by the additional work that she requested 7’ Fulcrum further asserts that
as late as ‘ on or about August IS, 2022,” Cannon requested even more work that had not been
“contemplated by the prior work orders and which resulted in Change Order No 8, the final change
order "73 Furthermore Fulcrum argues that Cannon was not satisfied with the height of the glass
installed on the staircase ‘ such that new glass had to be ordered, which caused additional delay
with the completion of the project ”74 Fulcrum asserts that Cannon informed Fulcrum of her
intention to pay the final remaining balance by stating in a lengthy text in August 2022 that “some
of the remaining costs like the finishing and glass which make up the remaining 27k will be paid
once those items are actually completed ’75 Fulcrum argues that the record fails to present a
genuine dispute of material facts to sustain Cannon’s claim of breach of contract based on an
unreasonable delay in completion of work
1B] As a matter of law, the time within which a contract is to be performed by a contractor
may be waived or extended by an owner “The waiver or extension may be implied as well as
express, and what acts or omissions will constitute a waiver depends on their nature and
circumstances of the case Therefore, an owner waives the delay when he either (1) makes
‘° Mot Summ J 19
7°Mot Summ J 11l0
7' Mot Summ J 113
7’ The record demonstrates that in mid June 2022 Cannon approved a change order with warning that the requested
work would potentially include between eight to twelve weeks of delay for completion See Mot Summ J Ex [0
(email exchange between Cannon and Agyei Gregory)
7’ Mot Summ J 126
7" Mot Summ J 133
7’ Mot Summ J 1|38
Cannon v Fulcrum Construction, LLC 2023 V] Super 78U
Case No ST 2023-CV 00!“
Memorandum Opinion
Page 13 of 20
payments to the contractor after expiration of the stipulated time for completion of the work, (2)
assents to the continuance of the work afier the time for the completion of the work has expired,
or (3) accepts and pays for the work without objection “[W]here the agreement for extension or
waiver is silent as to the duration of the extension, the law implies that it shall be for a reasonable
time ”7‘ Here, Cannon made (1) multiple payments to Fulcrum throughout the period it performed
on her contracts between December 202i and August 2022, (2) assented to the continuance of the
work by Fulcrum as demonstrated in her initiation and approval ofall work orders throughout the
same time period, and (3) accepted and paid for the work Fulcrum performed until she receiVed
the final invoice Furthermore, none ofthe parties’ agreements contained a “time is ofthe essence”
clause
1132 The Court finds that Fulcrum meets its burden of demonstrating that there is no triable
issue of concerning Cannon’s claim of unreasonable delay Fulcrum argues “[[]t is inconceivable,
that Plaintiff would insist on ‘Design Changes’ that required new installation, rerouting of lines,
and even Design Plans, that she did not provide and believe that such extensive changes would be
compteted in a timeframe of at minimum a couple of days at maximum a couple of weeks ”’77
The Conn agrees Summary Judgment is appropriate where there exists no genuine dispute as to
any material facts In review of the record, including Cannon’s complaint, the Court finds that
Fulcrum has met its burden by demonstrating that the work contracted for and performed by
Fulcrum was not unreasonably delayed
3 Fulcrum has met its burden by demonstrating that there is no genuine dispute as to
any material fact that it fully reimbursed Canon for any lost or damaged items
1133 Fulcrum argues that it fully reimbursed Cannon for any lost items and that it remedied any
damage it caused fully at its own expense and without cost to Cannon Fulcrum argues that that
the record shows no dispute as to material facts on the matter Fulcrum asserts that it reimbursed
Cannon for items that were damaged and that it repaired drywall at no cost to Cannon
Furthermore, Fulcrum argues that these reimbursements and repairs were accepted by Cannon
before August 15, 2022 when the final invoice was first submitted 73
1134 Both parties acknowledge flooding created damage in the condominium on or around
August 2022 79 and that Fulcrum repaired the damage After reviewing the record the Court finds
that no triable issue of material fact exists related to Fulcrum charging Cannon for these repairs
All eight change orders with descriptions of work and the accounting within were approved by
7" @ewmv Morton No 77l I992 1999 VI LEXIS 50 at ‘I9 20 (Apr Id I999) (internalquotations and citations
gmhldtbifgumm I at 40 Compl $51
"Mot Summ J at 46
7’ Mot Summ 1 Ex ll
Cannon v Fulcrum Construction, LLC 2023 VI Super 78U
Case No ST 2023-CV-00146
Memorandum Opinion
Page [4 of 20
Cannon Cannon did not challenge any of the change orders that she approved, and the record
shows Cannon was aware of the final invoice balance owed as early as August 2022
1135 Fulcrum argues that there is no genuine dispute of material fact as to issues of damage,
poor workmanship, or allegedly owed reimbursements for damage, delays, or substandard
performance Fulcrum points out that alter the glass railing was finally received and installed on
January 21, 2023, it conducted a “punch list” walkthrough with Cannon, to identify final items for
completion Fulcrum asserts that it also conducted a final walkthrough with Cannon’s uncle and
representative, who indicated approval on her behalf
1B6 Cannon alleges that Fulcrum owes her reimbursements for “expenses and certain damages
and costs" caused by a delay of performance and “construction work that had to be redone ”
Cannon further contends that Fulcrum damaged “drywall, stairs, vanities, clothing rack, walls,
barn doors, fumiture, stair tops, stair wood, stair tile, tiles, shower, and tub”, that it allowed “to
go missing vanity, light, drains, mattresses, knobs, patio furniture parts, and warranties”, that it
charged “for items and labor not installed including swing, new kitchen cabinets, blinds,
railing/beams”, and that it double charged “on labor work including electtical, drywall, paint,
cleaning and stair”Bo The voluminous exhibits filed by Cannon do not support her claims of
damage 3‘ Cannon also alleges with no evidentiary support that Fulcrum took funds from her
before completing work and delayed completion of work “causing over $50,000 additional costs
and expenses that have not been repaid ”8’
{[37 Cannon lists a litany of items in her Complaint that were allegedly damaged or lost, but
the Court finds that the only specific reference to damages owed to Cannon on the record is an
invoice that Cannon submitted to Fulcrum after the initial contract and all change orders were
completed and afler she had received Fulcrum’s final invoice Her invoice included insurance
payments of $16 312 46 on her condominium ‘ because no sale of condo allowed to happen”;
Property Taxes of $582 47 ‘ because no sale of condo allowed to happen prior to due date”,
Cleaning fees of $800 “that had to paid due to additional construction”, Travel and hotel expenses
($1,482 40 travel) ($2,435 39 hotel) that had to be paid because condo wasnt ready and for
construction and to secure house so key and condo not left open to the public”, “Monthly HOA
Fees from 2022 February January 2023 that had to be paid because no sale ($9 387 20)' WAPA
Bill of $253 54 for June through September and $950 for allegedly damaged property that
‘° Comp! 142
" Cf Quaternary Res Investigations LLC v Phillips 2018 I543 (La App lCir ll 19 20) writ denlgd,2020-0l450
(La 3/2/20 3|! So 3d l0$9 (finding homeowners were entitled to damages award of $154 483 S7 in contractor's
action against homeowners to recover temaining amount allegedly due under contract for tcnovations, where
homeowners presented ample evidence that work performed by contractor was defective substandard or incomplete
La Civ Code Ann art 2762)
’ Comp] 141
Cannon 9 Fulcrum Constructlou, LLC 2023 VI Super 78U
Case No ST 2023-CV 00146
Memorandum Opinion
Page [S of 20
included a patio chair, patio wine rack, patio tile, sun and rain wear and tear, and bathroom shower
door 33
138 The Court finds there is no basis in law or fact that provides legal basis for reimbursement
of these expenses to Cannon 3" Moreover, these additional alleged and unsubstantiated expenses
were primarily incurred during the same timeframe as the change orders that Cannon requested
and approved ‘5
{39 The record is devoid of any material facts to dispute Fulcrum’s assertions The record
provides no receipts or affidavits for repair work or other work performed that was paid for outside
ofCannon’s agreements with Fulcrum 3" On the other hand, the record shows that reimbursements
were made to Cannon for items that she claims she was not reimbursed for 8’ Fulcrum is burdened
with demonstrating that no triable issue exists as to whether Cannon is owed reimbursement
offsetting the amount billed in her final invoice Specific facts must show a genuine issue worthy
of trial as Opposed to mere general allegations and denials ‘3
1|40 Fulcrum argues that there is no genuine dispute as to material facts that demonstrate it did
not breach its contract with Cannon As already addressed above, the issue of licensure for work
performed is under review by DLCA Until DLCA discerns that Fulcrum performed work that it
was not appropriately licensed for, Cannon cannot rely on this as a cause of breach of contract
Summary judgment is proper if the non moving party fails to establish the existence of an element
essential to its case and on which the party would bear the burden ofproof at trial ‘9 Here, the third
and fourth elements for a successful breach of contract claim are missing Fulcrum has met its
burden of proof in this regard Specific facts must show a genuine issue worthy of trial as opposed
to mere general allegations and denials 9° After combing the record, the Court finds that no genuine
'3 Mot Summ J 140
“ Pl 5 Reply Det‘s Opp n TRO & Prelim at 5
’5 See Compl 122 Cannon argues that ‘ From December 202| through September 2022 Plaintiff was unable to list her
condo for sale or live in the condo and incurred additional travel lodging, condo fee, insurance electricity, and all
damage to property expenses as a result of Defendant s unleasonable delay However all eight ofthe change orders
were approved by Cannon and were submitted between December 202l and August 2022
“ Mot Summ J Ex ll
‘7 Change Order Number 7 (July 12 2022) and Invoice #21 0 103D 00004 (July 4 2022) providing $1 352 6] in credit
for sink/vanity stair tops storage fee and vinyl tile, Mot Summ J Ex l2 (Email from Cannon on July 2, 2022,
requesting that a future change order include reimbursements for “vanity, stair tops return/damage tile returns storage
fees, etc ’ ), Compl at 38 (listing items allegedly owed for)
“ See Brodhurst v Fm ier 57 V I 365 392 (20l2) (“The mere existence of some alleged factual dispute between
the parties is not enough to defeat an otherwise properly supported motion for summary judgment ')
'9 See Celotex Corp v Carrel! 477 U S 3 I7, 322 23 (I986) (“In such a situation, there can be "no genuine issue as
to any material fact " since a complete failure of proof concerning an essential element of the nonmoving patty 5 case
necessarily renders all other facts immaterial )
’° See Bradhursr v Frazrer 57 V I 365, 392 (20l2) (‘T‘he mere existence of some alleged factual dispute between
the parties is not enough to defeat an otherwise properly supported motion for summary judgment )
Cannon v Fulcrum Construction, LLC 2023 VI Super 7811
Case No ST 2023-CV 00146
Memorandum Opinion
Page 16 01' 20
dispute of material fact exists on the matters of licensing, time period of contract completion or
reimbursements owed that would offset Cannon’s debt The Court finds Fulcrum is entitled to
judgment as a matter of law
D Cannon’s negligence claim is barred under the economic loss doctrine
1141 “The economic loss doctrine prohibits plaintiffs from recovering in tort economic losses to
which their entitlement flows only from a contract The general rule is that economic losses may
not be recovered in tort (negligence) absent physical injury or property damage ’9' “The purpose
of the economic loss rule is to prevent panics from recovering in tort to extricate themselves
from prior freely negotiated agreements [, but] tort duties arise to protect individuals unable
to protect themselves from the unscrupulous actions of others and irrespective of the existence of
a contract ”92
1142 When appropriate, Virgin Islands courts apply the doctrine in support of the public policy
goal to “honor and enforce the allocation of risk to which the parties have agreed previously and
to maintain analytical clarity between different areas of law, ie to prevent contract law [from]
drown[ing] in a sea of tort ”‘ 93
1143 Here, the claim of negligence sounds in ton, and Cannon’s claim arises solely from her
contractual relationship with Fulcrum The duties that Cannon alleges were breached were duties
created and grounded in the contract as amended by the change orders, and any liability stems
from the parties’ contracts Cannon’s negligence claim essentially duplicates her breach ofcontract
claim Although Cannon alleges improper licensure as giving rise to her negligence claim,
Fulcrum’s licensing status has not been deemed improper by the DLCA, and Cannon’s mere
allegation is insufficient as material evidence The Conn finds that the parties allocated the risks
of their bargains contractually Accordingly, Cannon’s negligence claim is barred under the
economic loss doctrine 9‘
9‘ ngo v Soulhland Gammg ofthe United States V I Inc No ST 10-CV 116 2010 V I LEXIS 62 at ‘1 (Super
Cl Sep 22 2010) accord Turnbull v Univ ofthe V I No ST 07 CV 239 2016 V1 LEXIS 22 at '1 (Super Ct
$303 (13116"): UnuedStales V! v Takala Corp 67 V1 316 42l 22 (Super Ct 20l7)
”Turnbullv Univ ofthe 1’] No ST 07 CV 239 2016 V1 LEXIS 22 at ‘17(Super Ct Mar 2 2016) (citing Eds!
River Steamsth Corp v Transamerlca Delaval Inc 476 U S 858 866 (1986))
94See Turnbull v Umv ofthe Virgin Islands No ST 07 CV 239 2016 WL 1047893 at *5—6 (V 1 Super Mar 2
2016)
Cannon v Fulcrum Construction, LLC' 2023 VI Super 78U
Case No 81‘ 2023-CV-00146
Memorandum Opinion
Page I? of 20
E As a matter of law, Cannon :3 not entitled to declaratory or injunctive relief
{[44 Cannon conflates the relief of remedy with a cause of action Neither declaratory relief nor
injunctive relief are causes of action They are remedies The Court denied Cannon’s Motion for
Temporary Restraining Order in June 2023 and for the reasons set forth above, the Cannon is not
entitled to declaratory relief
I Injunctive Relief is not warranted
1145 The Virgin Islands Supreme Court has identified four factors to consider in deciding
whether to grant a motion for temporary restraint order and/or preliminary injunction
1) Whether movant has shown a reasonable probability of success on the merits
2) Whether the movant will be irreparany banned by denial of the relief
3) Whether granting preliminary relief will result in even greater harm to the
nonmoving party; and
4) Whether granting the preliminary relief will be in the public interest 95
1]“ The party seeking an injunction bears the burden of proof as to all four factors 9" With
respect to Cannon’s Motion for Preliminary Injunction, the Court finds that Fulcrum has
demonstrated that no genuine dispute of material fact exists Cannon did not demonstrate a
likelihood of success Her allegation that Fulcrum was operating with inadequate licensing is
hypothetical and is currently under scrutiny by the DLCA afier Cannon filed a claim with the
agency Although Cannon maintains that she is owed for damages Fulcrum caused while fulfilling
its contract both patties agree that the work Fulcrum and Cannon coutracted for was completed
Before and afier photos of the project demonstrate a drastic improvement The record shows a
proper accounting of the amount Fulcrum claims Cannon owes for work performed, and both
parties agree that they contracted in writing for the amount Fulcrum is claiming The evidence
corroborates this There is no diSpute of these or any other material facts on the record
1|47 Moreover, the irreparable harm required for a preliminary injunction must be imminent
harm that cannot be remedied by monetary damages 9’ There is no legal basis upon which this
”3RC& Co v Haynes Trucking 8y: 63 VI 544 550
96Id
9’ A puny seeking injunctive relief must demonstmte that the injunction is necessary to avoid certain and imminent
harm for which a monetary award does not adequately compensate in othet words, harm without an adequate legal
remedy And because the pteservation of the counts power to render a meaningful decision after Mal on the merits is
a basic principle of preliminary injunction law. the Supreme Court of the Virgin Islands agrees with those courts———
both state and federal that have held that a party moving for a pteliminary injunction must demonstrate primarily
Cannon v Fulcrum Construction, LLC 2023 VI Super 78U
Case No ST 2023-CV-00146
Memorandum Opinion
Page 18 of 20
Court can order Fulcrum to withdraw its lien while DLCA’s review is pending Fulcrum maintains
that it filed a lien to protect its security interest in order to recover a disputed debt Fulcrum has a
statutory right to file its lien Cannon filed her claim with this Court after Fulcrum filed its lien
The Court finds that under the circumstances, of which there is no genuine issue of material fact
(I) there is no imminent harm or irreparable injury presented by the presence of the lien, and (2) a
monetary award would adequately compensate Cannon if she were entitled to an award of
damages 9"
148 In considering whether granting preliminary relief will result in even greater harm to the
non moving party the Court finds in favor of Fulcrum Any injury that Cannon may suffer by
Fulcrum’s construction lien remaining intact during DLCA’s review pales in comparison to what
Fulcrum may suffer if it is prevented from exercising its right ofremedy by filing a lien [f Fulcrum
did not file within the first 90 days after completion of work, it would have lost its right to file a
lien for the debt owed—disputed or not 99 The DLCA review may continue without interference
either way Until this debt dispute is reconciled, Cannon’s property is essentially held as collateral,
but Cannon has not lost her property, nor has she lost access to her property nor the use of it '°°
This factor weighs against granting injunctive relief
149 As Fulcrum’s counterclaim proceeds, Cannon has the right to present evidence on the
merits of Fulcrum’s claim and to argue that it should be offset or reduced by any sums that Cannon
may claim were caused by alleged damage to her property '0‘ If Fulcrum is restrained from
foreclosing on its lien or delayed in that process, its lien is still protected so long as it follows that
statutory requirement However, Fulcrum is banned by the delay in recovery of the money it claims
it is owed Accordingly, this factor weighs against injunctive relief
{[50 “The effect on the public interest to be considered by this Court is not that justice be done,
but that specific acts presumptively benefiting the public is not halted until the merits could be
reached and a determination made as to what justice is required '02 The Court finds that it is in
that irreparable harm is likely without the injunction ' 3RC& Co v Baynes Trucking 8y: 63 V I 544 545 See also
80ml v Klein 75 VI I9, 20 (VI Super Ct August 16, 2021)(‘ln the context ofa preliminary injunction Vitgin
Islands counts define irreparable injury or harm as ham that is certain and imminent for which a monetary award does
not adequately compensate )
9‘ Bassil 9 Klein 75 VI 19 20 (Super Ct 202!) ( However the Supreme Court of the Virgin Islands does not
recognize a rule that presumes irreparable injury when a party is denied its use ofa property right If a party is moving
f0: a preliminary injunction based on the loss or deprivation of a real property right the party must demonstrate
sufficient evidence of imparable ham that the Court can evaluate using the Petrus factors ’)
”28 V l C §264
'°° The damage or loss of a property right is not automatically presumed to constitute irreparabie harm in the Virgin
Islands Basulv Klein
75 VI 19 22 (Super Ct 202!)
'0' See28 V [C §27l
“’2 Yusefv flamed 59 V I 841 857 (2013)
Cannon v Fatima": Construction. LLC 2023 V] Super 78U
Case No ST 2023-CV-00l46
Memorandum Opinion
Page l9 of 20
the public interest to allow parties access to legal avenues of remedy Unless DLCA rules
otherwise, Fulcrum met the requirements giving rise to placement of a construction lien on
Cannon’s property pursuant to Title 28 V I C Chapter 12 No precedent exists for dissolving
Fulcrum’s lien while DLCA’s review is pending Fulcrum maintains that it filed a lien to protect
its security interest in order to recover a disputed debt While there is strong disagreement between
the parties on the propriety of Fulcrum's recorded construction lien, there is insufficient evidence
for the Court to conclude that Fulcrum acted in bad faith In fact, the existing record shows no
evidence of bad faith '03 Cannon filed her claim with this Court after Fulcrum filed its lien, and
both parties have every right to prosecute their claims as long as there are genuine issues of
material fact to be disputed Accordingly, this factor weighs in Fulcrum‘s favor
151 Cannon alleges that there is no basis for payment of Fulcrum’s final invoice and that
Fulcrum should be precluded from filing a lien because statutory contractor and licensing
requirements were not met She has no proofof this as DLCA review her claim of these allegations
is still pending The Conn finds that Fulcrum has adequately demonstrated that Cannon’s claim
involves no genuine dispute of material facts and injunctive relief is not warranted
2 Declaratory Relief is not warranted
152 As discussed above, the remedy of Declaratory Relief is not a cause of action and it is not
justified here For its part, Fulcrum provides a descriptive accounting of its claim for the contracted
amount due from Cannon in writing and with Cannon’s signatures "’4 No genuine dispute exists
as to any material fact with respect to Cannon’s claims of misrepresentation, fraud, negligence, or
breach of contract by Fulcrum Accordingly the Court determines that declaratory relief is not
warranted
F No genuine dispute of material fact supports a claim of Unfair Business Practices
1l53 For reasons discussed above this claim fails based on lack of a genuine dispute as to any
material fact on the record indicating that Fulcrum engaged in unfair business practices
'0’ The tequirement for the grant of reliefunder 28 V l C § 275 (“Wrongful conduct under this chapter remedies ’) is
a finding of bad faith actions taken by the claimant “Bad faith ‘is not simply bad judgment or negligence, but rather
it implies the conscious doing of a wmng because of dishonest purpose or moral obliquity it contemplates a state
of mind affirmatively operating with furtive design or ill will (1-! I Conslr LLC v Bay Isles Assoc: LLLP, 53 V I
206 222 223)(quoting In re I 99 GrandJury 215 F 3d 430 436 (4th Cir 2000))(citations omitted)
:04 See Celorex Corp v Carrel! 477 U S 317 322 24 (I986)
Cannon v Fulcrum Construction, LLC 2023 VI Super 78U
Case No ST 2023-CV 00146
Memorandum Opinion
Page 20 of 20
IV CONCLUSION
154 The Court finds Fulcrum meets its burden of demonstrating that there exists no genuine
issue as to any material fact that it is entitled to summary judgment as a matter of law on Cannon 3
Complaint Summary Judgment motions must be granted unless the opposing party “provides
evidence ‘such that a reasonable jury could retum a verdict for the nonmoving patty '05 Cannon
argues that there is no basis for payment of her debt to Fulcrum However, Fulcrum has
demonstrated there exist no facts to support Cannon’s allegations of statutory violations or
improper accounting Fulcrum is entitled to summary judgment in its favor on Cannon’s
Complaint ””6
A judgment consistent with this Memorandum Opinion follows
DATED December IR 2023 W 77\ ?Owuxyo
DENISE M FRA COIS
Judge of the Superior Court of the Virgin Islands
ATTEST
TAMARA CHARLES
Clerk of 0
BY
LATOY CAMACHO
Court Clerk Supervisor 12d 2 2023
M Brodhurs! v Fm [er 57 V I 365 39l (2012) (citation and quotation marks omitted)
I“"V I R Civ P 56(c)(2) “Ihe summary judgment procedure resolves unsustainable claims and defenses in advance
of trial, thereby narrowing the number of outstanding legal issues and serving the interests ofjudicial economy and
efficiency Accordingly, the Court applies these legal principles to the Motion