IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. THOMAS AND ST. JOHN



KeKKKKK



DAYBREAK, INC. d/b/a HUBER AND ASSOCIATES,



)

)

Plaintiff, ) CASE NO. ST-10-CV-716

)

v. ) ACTION FOR DEBT,

) BREACH OF CONTRACT

THOMAS FRIEDBERG, SARAH BUNGE, LAW ) AND TO ENFORCE

OFFICES OF FRIEDBERG & BUNGE and MERRILL _ ) CONSTRUCTION LIEN

LYNCH CREDIT CORPORATION, )

)

Defendants. )

)

THOMAS F. FRIEDBERG and SARAH L. BUNGE, )

) COUNTERCLAIM FOR

Counterclaimants. ) BREACH OF CONTRACT,

) BREACH OF WARRANTY,

v. ) NEGLIGENCE AND

) FRAUD

DAYBREAK, INC., d/b/a HUBER AND ASSOCIATES, )

)

Counterdefendant. )

)

THOMAS F. FRIEDBERG and SARAH L. BUNGE, )

) THIRD PARTY CLAIM

Third Party Plaintiffs. ) FOR FRAUD

)

Vv. )

)

BARRY R. HUBER, )

)

Third Party Defendant. )

)



CARTY, RENEE GUMBS, Judge



MEMORANDUM OPINION

(Filed: August 21, 2018)



Pending before this Court is Defendants’ “Motion to Reconsider Order of May 2, 2017”

filed on June 1, 2017. Plaintiff did not file an opposition. For the reasons set forth below, the



motion will be DENIED.

Daybreak, Inc. d/b/a Huber and Associates v. Thomas Friedberg, et al.

Case No. ST-10-CV-716

Memorandum Opinion



I. FACTUAL BACKGROUND



Because the issues raised in Defendants”! motion to reconsider are not fact intensive, nor

are all the facts necessary to consider the motion at hand, the Court will not recite all of the

allegations set forth in the existing record. Plaintiff filed a complaint in the U.S. Virgin Islands

Superior Court on December 21, 2010. On June 27, 2011, Defendants responded in opposition.”

This dispute stemmed from Defendants’ contract with Plaintiff to install copper roofs on

Defendants’ property, as issues arose regarding payment.



During discovery, in March 2014, Defendants responded to a set of interrogatories that the

cost of repairs were estimated at $210,676.12. Next, on July 31, 2014, Plaintiff was permitted to

enter Defendants’ property to allow Plaintiff's expert (Stephen Hendren) to physically inspect the

premises. Hendren’s report was filed along with Plaintiff’s expert disclosures on August 29, 2014.

Then, Defendants filed with the Court their notice of service of expert disclosures to Plaintiffs on

November 21, 2014.4 However, as those expert disclosures were not then filed with the Court, we

are unable to ascertain their depth and content. In response, on December 17, 2014, Defendants

filed a notice of their supplemental responses to interrogatories and document requests. These

supplemental responses featured amendments to the initial cost to repair the roof, and to the initial

cost to repair and replace some of the damaged cabinetry in the home.



On January 5, 2015, Plaintiff filed a motion seeking a second inspection of the premises,



as their expert was only allowed two hours to perform his initial inspection. This motion was



! Although the issues raised in the motion for reconsideration focus on Counterclaimants’ claim of damages,

in the interests of simplicity, the Court will refer to parties in their original position of “Plaintiff” and “Defendants.”

2 Defendants’ motion was dated June 18, 2011, but not filed until June 27, 2011. Additionally, the delay

between the filing of the Complaint and Defendants’ response was due to a jointly filed stipulation providing

Defendants additional time to respond.



3 Def. Mot. to Reconsider Ex. B 2:6.



4 This notice was dated November 13, 2014, but not filed with the Court until November 21, 2014.



2

Daybreak, Inc. d/b/a Huber and Associates v. Thomas Friedberg, et al.

Case No. ST-10-CV-716

Memorandum Opinion



denied by Judge Christian from the bench. Approximately two years later, on December 29, 2016,

the issue of re-entry was again raised by Plaintiff in its “Request for Additional Time to Hear All

Outstanding Motions.”



This Court held a hearing to resolve the outstanding motions on March 28, 2017. Amongst

the outstanding motions, this Court heard “Daybreak and Huber’s Motion for Re-Entry Upon Land

(or alternatively, Motion to Limit Damages to Two Hundred Ten Thousand Dollars ($210,000))”.

After a review of the relevant facts, the undersigned offered two choices to Defense counsel— to

have damages in the counter-claim limited to $210,000, or to allow Plaintiff the opportunity to re-

enter the land with Hendren for a longer period. Attorney Friedberg, on behalf of the Defendants,

repeatedly objected to Plaintiff or their expert re-entering the land. In an attempt to further find

compromise, the Court offered Defendants the option of having Plaintiff re-enter the land but be

limited to using Defendants’ expert, Arthur Sanders. Attorney Friedberg again refused to agree to

any form of access for Plaintiff. In the corresponding Order from this Court entered on May 2,

2017, the Court granted “Daybreak and Huber’s Motion for Re-Entry Upon Land (or alternatively,

Motion to Limit Damages to Two Hundred Ten Thousand Dollars ($210,000))” limiting

Defendants/ Counter-claimants’ damages to $210,000.



Defendants filed the present motion for reconsideration of this Court’s May 2, 2017 on

June 1, 2017.° Upon reviewing the record in this case, and for the reasons stated below, the Court



will deny Defendants’ motion for reconsideration.



5 Although Defendants filed their motion on June 1, 2017, this Court has already granted Defendants’

“Motion for Extension of Time to Seek Reconsideration” filed May 15, 2017.



3

Daybreak, Inc. d/b/a Huber and Associates v. Thomas Friedberg, et al.

Case No. ST-10-CV-716

Memorandum Opinion



II. LEGAL STANDARD

A. Motion for Reconsideration Standard



To successfully move for reconsideration under Rule 6-4, a party must meet both

procedural and substantive requirements. Procedurally, the movant must first file the motion

within “fourteen days after the entry of the ruling.”® The Order in question was issued on May 2,

2017. This Court, finding good cause, then granted Defendants’ motion seeking an extension of

time to file on this motion until June 5, 2017. Defendants filed their motion on June 1, 2017,

therefore filing within the allotted time.



The courts view reconsideration as “an ‘extraordinary’ remedy not to be sought reflexively

or used as a substitute for appeal.”’ As such, parties filing for reconsideration under Rule 6-4 have

four grounds under which they can receive relief: (1) intervening change in controlling law; (2)

availability of new evidence; (3) the need to correct clear error of law; or (4) failure of the court to

address an issue specifically raised prior to the court’s ruling. Additionally, “where ground (4) is

relied upon, a party must specifically point out in the motion for reconsideration where in the

record of the proceedings the particular issue was actually raised before the court.”



In Defendants’ motion, they argue for reconsideration, claiming this court’s “decision to

hear non-pending, un-briefed motions and subsequently reduce the value of Defendant’s case... is

aclear error of law.”® When the basis for a motion for reconsideration is “the need to correct clear



error of law,” the court may grant such a motion when the prior decision involved the incorrect



application of law or incorrect analysis to a proper application of law.'° Past Virgin Islands courts



6 V.I1.R. Civ. P. 6-4.



7 Smith v. Law Offices of Karin A. Bentz, P.C.,2018 V.1. LEXIS 13, *15 (V.1. Super. Ct. Jan. 29, 2018).

8 ld.



9 Def. Mot. to Reconsider 11.



10 Smith, 2018 V.1. LEXIS 13, at *15.

Daybreak, Inc. d/b/a Huber and Associates v. Thomas Friedberg, et al.

Case No. ST-10-CV-716

Memorandum Opinion



have interpreted this as a need “to correct clear error or manifest injustice or both.”'! Finally,

when assessing these types of motions for reconsideration, Courts have required the moving party

to provide “the specific legal authority... the [cJourt either failed to apply correctly or failed to



apply in totum in its original decision.”!”



Il. LEGAL DISCUSSION



Defendants premise much of their argument on this Court’s decision to limit the counter-

claim to $210,000. Similarly, they recognize this Court’s authority to rule upon such oral motions

made during a hearing.'? Yet, they ignore the Court’s multiple efforts to preserve the value of

Defendants’ counter-claim,'4 and that each effort concluded with objection from Defense counsel.

In addition to Defendants’ incomplete recitation of events, there was never any Motion in Limine

filed related to the reduction of Defendants’ counter-claims.



Defendants attempted to bolster their damages after Plaintiff completed its site-visit and

related discovery. Plaintiff received limited opportunity, only two hours, for its expert to visit and

inspect Defendants’ property. Therefore, it would be unreasonable if after Plaintiff had already

completed its inspection and discovery, this Court were to allow Defendants to amend and

significantly increase their alleged damages (resulting from the extensive inspection performed by

Defendants’ expert), without allowing Plaintiff the opportunity to re-inspect the property for an



extended duration.



u Id.



12 Id. at *15-16.



3 Def. Mot. to Reconsider 12 (citing V. I. R. Civ. P. 6-1(a)(1).



4 See generally Gerald v. R.J. Reynolds Tobacco Co., 2016 V.1. LEXIS 53, *26-27 (V.I. Super. Ct. Apr. 25,



2016) (favoring a policy of re-opening discovery as opposed to denying a party an opportunity to amend pleadings

in hopes of preserving the alleged claims).

Daybreak, Inc. d/b/a Huber and Associates v. Thomas Friedberg, et al.

Case No. ST-10-CV-716

Memorandum Opinion



A. Defendants have failed to demonstrate a clear error of law requiring

reconsideration of this Court’s order entered on May 2, 2017.



Here, Defendants’ motion for reconsideration asks the Court whether compliance with a

court-approved scheduling plan precludes the Court from hearing motions seeking to re-open

discovery, and from reducing the amount of damages as a remedy to said motions. As a

preliminary matter, Defendants present no argument premised on the first, second, or fourth bases

articulated in Virgin Islands Rule of Civil Procedure 6-4(b). This Court therefore only reviews

Defendants’ motion in light of the “need to correct clear error of law.”



As previously noted, when reviewing motions under V.I. R. Civ. P. 6-4(b)(3), “the Court

looks to [Defendants] to (1) specify the legal precept it should have applied or (2) to show how the

correct legal precept was applied incorrectly in its earlier Opinion.”'> In other words, as it relates

to the present matter, Defendants must specify the legal authority that prevents this Court from

ruling upon Plaintiffs “Motion for Re-Entry to the Land” and the legal authority that prevents this

Court from reducing the value of Defendants’ Counter-claim, or alternatively demonstrate how the

legal authorities relied on were incorrectly applied. Defendants have failed to meet this burden.



Defendants offer no statute, case law, or any other legal authority the Court could and

should apply to this present matter. Rather, they claim only that they were denied a “valuable

opportunity” to brief this issue, which as they themselves noted, was a decision done within this

Court’s discretion.'® Additionally, Defendants make broad references to the “law of the case”

doctrine without supplying any proof of its authority in the Virgin Islands, nor supplementing



arguments with any authorities from the Virgin Islands. This Court does not see it as our



15 Smith, 2018 V.1. LEXIS 13, at *17.

16 V.I.R. Civ. P. 6-4(a)(1).

Daybreak, Inc. d/b/a Huber and Associates v. Thomas Friedberg, et al.

Case No. ST-10-CV-716

Memorandum Opinion



tesponsibility to make a party’s arguments for it.!’ Nor is a motion for reconsideration the proper

mechanism for relief when parties seek to disagree with decisions made by the Court when acting

in its discretion. Defendants have failed to specify the required legal authority that would grant

reconsideration and moreover, make no substantive argument that enables the Court to reconsider

and find its Order dated May 2, 2017, appropriate for reconsideration.



Further, Defendants place heavy emphasis on their compliance with the court- approved

scheduling plan, but that has not been the focus of this Court. The Court sees this issue as one in

which Defendants’ supplemental discovery responses led to Plaintiff seeking access to re-enter the

property. This Court found re-entry, especially using Defendants’ expert, would have fostered a

significant chance of settlement. If nothing else, if one expert conducted both parties’ inspections,

there would at least be a more consistent analysis of damages. Nevertheless, this Court does not

find it in the public’s best interest for the Court to use it weight to mandate one party allow another

party to access its property. That being said, such concern does not excuse Defendants from

accountability. By refusing any efforts allowing Plaintiff to re-enter, Defendants were knowingly

aware that this Court would not allow their bolstering of their alleged damages. Accordingly,

because Defendants have failed to point to an error of law in the Court’s original Order, the Court



shall deny the motion for reconsideration.



IV. CONCLUSION

For the foregoing reasons, the Court will deny Defendants’ “Motion to Reconsider Order

of May 2, 2017.” Defendants seek reconsideration of an order which limited their counter-claim



damages to $210,000 after they vehemently denied several proposals of the Court, which would



a See Joseph v. Joseph, 2015 V.1. LEXIS 43, *5 (V.I. Super. Ct. Apr. 23, 2015) (citations omitted).

7

Daybreak, Inc. d/b/a Huber and Associates v. Thomas Friedberg, et al.



Case No. ST-10-CV-716



Memorandum Opinion



have allowed the preservation of Defendants’ claim of alleged damages. Defendants just as



much chose the outcome of Plaintiff's motion as much as this Court, yet seeks reconsideration of



this decision. In their request Defendants failed to demonstrate a substantive basis for



reconsideration due to a “clear error of law,” and failed to identify the specific legal authority



which would allow reconsideration. As Defendants are unable to point to an error of law in the



Court’s original Order, this Court finds recon



o be inappropriate.



Dated: August



, 2018



nunc pro tunc to 6/19/17



Ren



Gu bs Carty



e of the Superior Court



of the



irgin Islands



ATTEST:



Estrella H. George



Cle



Couit



a D. Donovan 7



uri Clerk Supervisor



ze DOG

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. THOMAS AND ST. JOHN



KkKKKKKK



DAYBREAK, INC. d/b/a HUBER AND ASSOCIATES,



)

)

Plaintiff, ) CASE NO. ST-10-CV-716

)

v. ) ACTION FOR DEBT,

) BREACH OF CONTRACT

THOMAS FRIEDBERG, SARAH BUNGE, LAW ) AND TO ENFORCE

OFFICES OF FRIEDBERG & BUNGE and MERRILL _) CONSTRUCTION LIEN

LYNCH CREDIT CORPORATION, )

)

Defendants. )

)

THOMAS F. FRIEDBERG and SARAH L. BUNGE, )

) COUNTERCLAIM FOR

Counterclaimants. ) BREACH OF CONTRACT,

) BREACH OF WARRANTY,

v. ) NEGLIGENCE AND

) FRAUD

DAYBREAK, INC., d/b/a HUBER AND ASSOCIATES, )

)

Counterdefendant. )

)

THOMAS F. FRIEDBERG and SARAH L. BUNGE, )

) THIRD PARTY CLAIM

Third Party Plaintiffs. ) FOR FRAUD

. )

Vv. )

)

BARRY R. HUBER, )

)

Third Party Defendant. )

)

ORDER



THIS MATTER is before the Court on Defendants Thomas F. Friedberg, Sarah Bunge, and

Law Offices of Friedberg & Bunge’s “Motion for Extension of Time to Seek Reconsideration” filed

on May 15, 2017. No opposition was filed in this matter. Defendants request leave from the Court

to obtain a transcript from the March 28, 2017 hearing, that even if expedited, may require more time



than allotted to Defendants to file a motion for reconsideration. Defense counsel notes that they made

Daybreak, Inc., et al. v. Thomas F. Friedberg, et al.

Case No. ST-10-CV-716

Order

their initial appearance six days earlier than the April 26, 2017 Order, and were unable to attend the

hearing. Seeking to challenge this Court’s Order as inconsistent with the ruling from the bench,

Defendants argue that the transcript is necessary to prove their argument. For the reasons stated

herein the Court will grant the motion.

Under the Virgin Islands Rule of Civil Procedure, all motions seeking an extension of time

must include:

a) A statement that the moving party has conferred with opposing

parties and there is agreement or objection to the motion or that

despite diligent effort, the moving party cannot ascertain opposing

counsel’s position; and

b) A representation reporting the number of motions for extension of

time that have been filed in the pending action by the movant with

respect to the same prescribed time period.

V.I.R. Crv. P. 6-2.



As evidence of compliance, Defendants contacted opposing counsel via email, who have

opposed this extension. Additionally, counsel represents that they are unaware of any previous

requests to extend the specific time period. Defendants have therefore satisfied the procedural

requirements of Rule 6-2.



Whether leave shall be granted is in the Court’s discretion and shall only be done upon a

showing of “good cause or excusable neglect”.! In Defendant’s motion, the extension is for new

counsel to familiarize itself with a hearing, six days after they took over representation, in which they



believe they believe an inconsistency exists that supports reconsideration. This Court finds good



cause for such extension Accordingly, it is hereby



' See V.1.R. CIv. P. 6(b)(1).

Daybreak, Inc., et al. v. Thomas F. Friedberg, et al.

Case No. ST-10-CV-716

Order



ORDERED that Defendant’s “Motion for Extension of Time to Seek Reconsideration” is

GRANTED and Defendants shall have until June 5, 2017, to file a motion for reconsideration; and

it is further



ORDERED that any motions for extension of time must conform to V.I. R. Civ. P. 6-2, any

motions for continuance must conform to V.I. R. Civ. P. 6-3, and any non-conforming motions may

be summarily denied; and it is further



ORDERED that copies of this Order shall be distributed to Andrew C. Simpson, Esquire,



Stacy L. White, Esquire, Joseph Goldberg, Esquire, and George H. Logan, Esquire and W. Mark



Wilczynski, Esquire.



Dated: August Jt 2018



LAL?

nunc pro tunc to 4/26/17 Reatgieupis Carty

Judgé uperior Court

of the Virgin Islands

ATTEST:

Estrella H. George



Cler of ae ne

By: Wh



Donna D. Donoyan

ooh i ae g (Oe | 30S