IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS  
DIVISION OF ST. THOMAS AND ST. JOHN  
********** 
JAMES GALLIVAN and 
) 
JAMES C. SMITH, 
) 
CIVIL NO. ST-09-CV-294 
) 
Plaintiffs, 
) 
ACTION FOR BREACH OF CONTRACT, 
) 
DAMAGES, BREACH OF FIDUCIARY 
v. 
) 
DUTY AND FRAUD 
) 
POWER SAVE VI, RICKIE NORMAN, 
) 
JURY TRIAL DEMANDED 
REIMAX DREAM PROPERTIES, 
) 
ROSEMARY SAUTER-FRETT alkla 
) 
ROSEMARY SAUTER and 
) 
LLOYD L. WILLIAMS, 
) 
) 
Defendants. 
) 
------------------------------)  
MEMORANDUM OPINION 
This matter is before the Court on Defendant Rickie Norman's Motion to Dismiss,l In 
Norman's Motion, he seeks a dismissal of Count I of Plaintiffs James Gallivan and James C. 
Smith's Verified Complaint for failure to state claim upon which relief may be granted under 
FED. R. CIY. P. 12(b)(6). And, as to Count II, Norman asserts that Plaintiffs have failed to meet 
the heightened pleading requirement of Rule 9(b) of the Federal Rules of Civil Procedure. The 
Court will grant the Motion to Dismiss as to Count I because Plaintiffs have failed to state a 
claim upon which relief may be granted and will deny the Motion to Dismiss as to Count II, 
since the Verified Complaint's factual allegations sufficiently plead fraud in inducement against 
Norman with the requisite particularity of Rule 9(b). 
FACTS 
On March 27, 2009, Defendant Power Save VI and Plaintiffs executed and entered into a 
Contract of Sale2 through Defendant Re/Max Dream Properties, a licensed real estate broker, for 
the purchase by Power Save of Plaintiffs real property. Norman executed the Contract of Sale 
on Power Save's behalf, as an agent. 
I A. JelIDmgs Stone, Esq., of BoltNagi, P.C. represents Plaintiffs James Gallivan and James C. Smith. Mia L.  
Woodard, Esq., of the Law Offices of Douglas L. Capdeville, P.e. represents Defendant Lloyd L. Williams. W.  
Mark Wilczynski, Esq., of of the Law Offices of W. Mark Wilczynski, P.C. represents Defendants Power Save VI  
and Rickie Norman. James L. Hymes nr, Esq., of Law Offices of James Hymes III, P.c. represents Defendants  
Re/Max Dream Properties and Rosemary Sauter-Frett.  
2 Plaintiffs attached the Contract of Sale to their Verified Complaint as Ex. A.  
James Gallivan and James C. Smith v. Power Save VI et aL 
Civil No. ST-09-CV-294 
Order 
Page 2of5 
Pursuant to the Contract of Sale, the initial purchase price for the real property was 
$840,000.00, which was to be paid with an initial and immediate earnest money deposit by 
Power Save in the amount of $1,000.00 at the time the contract was executed. The terms of the 
Contract of Sale required Power Save VI to place in escrow with Re/Max a second earnest 
money deposit in the amount of$81,000.00. 
Plaintiffs allege that Power Save did not comply with the terms of the Contract of Sale, 
by failing to deposit into escrow the $81,000.00 earnest money deposit. Plaintiffs assert that 
Power Save issued a check for $81,000.00 ostensibly to cover the earnest money deposit, but the 
check was returned by the bank for insufficient funds. 
Plaintiffs claims that each of the 
Defendants knew or should have known that the check for the earnest money deposit would be 
returned for insufficient funds, yet none of the Defendants informed the Plaintiffs of this fact 
until after the deadline for closing. 
In April 2009, Power Save caused an inspection to be done on the real property and 
discovered that the property required significant repairs. As a result, Plaintiffs agreed to lower 
the purchase price of the property to $815,000.00. On April 27, 2009, the last day of the 30-day 
fmancing period, Power Save, as an act of further assurance of its performance under the 
Contract of Sale, entered into an Addendum to the Contract of Sale with the Plaintiffs.3 In the 
Addendum, the parties reiterated their intention to consummate the real estate transaction. The 
Addendum also provided that "[a]ll other terms, conditions and provisions of the Contract shall 
remain in full force and effect except as amended in this Addendum.,,4 Further, the AddendumI 
permitted Norman as Trustee of the Rickie Norman Revocable Living Trust to be an alternative 
buyer. 
On June 22, 2009, Plaintiffs filed. the two-count Verified Complaint. 
In Count I, 
Plaintiffs sue Power Save for breach of the Contract of Sale and the Addendum and sue Norman 
for breach ofthe Addendum. In Count II, Plaintiffs sue Power Save, Norman, RelMax, Williams 
and Defendant Rosemary Sauter-Frett for fraud in the inducement. 
DISCUSSION 
I. 
STANDARD 
A Rule l2(b)( 6) motion to dismiss permits a defendant to move for dismissal on the 
ground that plaintiff has failed to state a claim upon which relief may be granted.:; In consideringl 
such motions, the Court, in considering a motion to dismiss, accepts well-pleaded factual 
allegations in the complaint as true and draws all reasonable inferences in favor of the non­
moving party.6 
The Court must go beyond an analysis of whether a complaint "simply 
3 Plaintiff's attached the Addendum to the Contract of Sale to their Verified Complaint as Ex. B.  
4 V. Compl. Ex. B.  
5 FED. R. Clv. P. 12(b)(6).  
6 United States DOT ex rei. Arnold v. CMC Eng'g, 564 F.3d 673, 676 (3d Cir. 2009).  
James Gallivan and James C. Smith v. Power Save VI et aL 
Civil No. ST-09-CV-294 
Order 
Page 3 of 5 
'suggest[s]' that the defendant is liable?, [and also consider whether it] state[s] a 'claim for relief 
that is plausible on its face. ",8 
II.  
THE COURT FINDS THAT COUNT I FAILS TO STATE A CLAIM UPON 
WHICH RELIEF MAy BE GRANTED UNDER FED. R. CIV. P. 12(b)(6). 
In the Motion to Dismiss, Norman alleges that Count 1's claim for breach of the 
Addendum should be dismissed because he was not a party to the contract. Norman states that 
he was merely acting as an agent of a disclosed principal and thus, is not liable under the 
contract. In support of Norman's contention, he directs the Court's attention to Section 6.01 of 
the Restatement (Third) Agency. 
Section 6.01 of the Restatement (Third) Agency states: "[w]hen an agent acting with 
actual or apparent authority makes a contract on behalf of a disclosed principal: (1) the principal 
and the third party are parties to the contract; and (2) the agent is not a party to the contract, 
unless the agent and third party agree otherwise.,,9 
Although Plaintiffs have alleged that Norman was a party to the Addendum 10, the l 
Addendum, which is an attachment to the Complaint indicates, that it "is made and entered into 
between Power Save, as Buyer and Gallivan & Smith, as Seller."ll Based on the Addendum's I 
language, the obligation to deposit the earnest money deposit rested solely on Power Save. 
Specifically, the Addendum states that "Buyer, in conjunction with the signing of this l 
Addendum, shall deposit in escrow . . . the earnest money deposit of Eighty One Thousand 
Dollars ($81,000.00).,,12 
Further, to state a claim for a breach of contract claim under Virgin Islands law, al 
plaintiff must assert that: "(1) an agreement, (2) a duty created by that agreement, (3) a breach 0 
that duty, and (4) damages.,,13 Again, under the language of the Addendum, Norman did not 
have a duty to perform under the Addendum. And thus, the Court will grant the Motion to 
Dismiss as to Count I of the Verified Complaint. 
7 Robles v. HOVENSA, LLC, 49 V.I. 491, 500 (V.I. 2008).  
8 Jones v. L.S Holdings, Inc. et at., Civ. No. 14512009, 2010 WL 893086, at *3 (VI Super. Ct. Feb. 25, 2010)  
(citing Ashcroft v. Iqbal, _ U.S. _, 129 S.Ct. 1937, 1949 (2009)); see also Bell Atlantic Corp. v. Twombly, 127  
S.Ct. 1955, 1969 11.8 (2007).  
9 "The rules of the common law, as expressed in the restatements of the law approved by the American Law  
Institute, and to the extellt not so expressed, as generally understood and applied in the United States, shall be the  
rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the l  
contrary." V.l. CODE ANN. tit. I, § 4 (1995).  
10 V. CampI. 
II V. CampI. Ex. B.  
12 V. Comp\. Ex. B ~ 4.  
13 Arlington Funding Servs. Inc. v. Geigel, 51 V.1. 118, 135 (V.1. 2009).  
James Gallivall and James C. Smitll 1'. Power Save VI et al. 
Civil No. ST-09-CV-294 
Order 
Page 4 of5 
I.  
COUNT II OF PLAINTIFF'S VERIFIED COMPLAINT SUFFICIENTLY PLEADS 
FRAUD IN INDUCEMENT AS REQUIRED BY FED. R. CIV. P. 9(b). 
The Motion to Dismiss states that Count II's claim of fraud in inducement fails to meet 
the specificity requirement of Rule 9(b) of the Federal Rules of Civil Procedure. 14 In opposition, 
Plaintiffs assert that the Verified Complaint sufficiently alleges the individuals that made the 
fraudulent misrepresentations, when the misrepresentations were made, and the substance of the 
misrepresentations. Thus, Plaintiffs allege that the claim of fraud in inducement meets Rule 
9(b)'s standard. Initially, in the Motion to Dismiss, Norman alleged that Count II failed to state a 
claim upon which relief may be granted and relied on the "gist of the action" doctrine. Nonnan, 
in his reply, later withdrew this argument and thus, the Court will only address Count II under 
Rule 9(b). 
Rule 9(b) states: "[i]n aIleging fraud or mistake, 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.,,15 Rule 9(b)'s "reference to 'circumstances' is to 
matters such as time, place and contents of the false representations, as well as the identity of the I 
person making the representation and what he obtained thereby.,,16 Further, to assert a claim of 
fraud, Rule 9(b) requires a plaintiff to plead: (l) a specific false representation or omission of 
material fact; (2) knowledge by the person who made it of its falsity; (3) ignorance of its falsity 
by the person to whom it was made; (4) the intention that it should be acted upon; and (5) that 
the plaintiff acted upon it to his damages.17 
In their Verified Complaint, Plaintiffs allege that Norman misrepresented facts and 
fraudulently induced them to enter into a real estate transaction. Specifically, Plaintiffs state that 
on April 27, 2009, Norman, Power Save VI, Sauter, Williams, and RelMax falsely indicated to 
Plaintiffs' representatives that they had deposited $81,000.00 in escrow as an earnest money 
deposit 18 Plaintiffs assert that the Defendants were aware that no later than April 27, 2009 the 
earnest money deposit check had bounced because of insufficient funds. 19 Plaintiffs further state 
that Defendants' misrepresentations induced Plaintiffs to enter into the Addendum to Contract of 
Sale on April 27, 2009.20 Plaintiffs claim that they had first learned that Power Save VI and 
Norman had not deposited the $81,000.00 earnest money deposit on June 1, 2009?1 On that 
same day, Mashall Bell, Esq., Norman's agent with respect to the real estate transaction, falsely 
14 See SUPER. CT. R. 7 ("The practice and procedure in the Superior Court shall be governed by the Rules of the I 
Superior Court and, to the extent not inconsistent therewith, by ... the Federal Rules of Civil Procedure ...."). 
15 FED. R. C1Y. P. 9(b).  
16 In re Tutu Water Wells Contamination Litig., 32 F. Supp. 2d 800, 805 (O.V .1. 1998) (internal citations omitted).  
17 Fin. Trust Co.. Inc. v. CWbank. N.A., 351 F. Supp. 2d 329, 330-31 (D.V.1. 2004) (citing In /'e Rockefeller Crr.  
Props.. Inc.. 311 F.3d 198,215 (3d CiT. 2002)).  
18 
I
V. Comp . fi 54. 
19 Id. ~ 55. 
20 ld. ~ 56. 
2l Id. ~ 57. 
__ 
Judge of the Superior Court 
of the Virgin Islands 
James Gallivan and James C. Smitll v. Power Save VI et aL 
Civil No. ST-09-CV-294 
Order 
Page 5 of5 
told Plaintiffs representatives that Norman had wired the funds for the entire purchase price to 
Re/Max to be deposited in escrow.22 
The Court finds that the Verified Complaint's factual allegations sufficiently plead fraud 
in this inducement against Norman with the requisite particularity. Plaintiffs have fulfilled the 
basic purpose of Rule 9(b) by alleging sufficient facts, including specific names and dates, to put 
Norman on notice of the misrepresentation allegedly committed. 
CONCLUSION 
The Court will grant the Motion to Dismiss as to Count I, since Plaintiffs have failed to 
plead facts that show Norman had a duty under the Addendum. Because Plaintiffs have asserted 
facts sufficient to plead fraud in inducement against Norman with the requisite particularity of 
Rule 9(b), the Court will deny the Motion to Dismiss as to Count 
DATED: April '2 g, 2011 
E 'ES~~ 
CERTIFIED A TRUE COpy
DONNA -D. DONOVAN 
l:L 
,,'" 
( 
Court Clerk Supervisor -I-/_<::P" JIM! 
Date: 
D--q- ?;::?u 
Venetia H. Velazquez, Esq. 
Clerk of the Court 
By: 
I]J~ 
Court Clerk 
22 Ed. ~ 60-61 . 
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS  
DIVISION OF ST. THOMAS AND ST. JOHN  
**********  
JAMES GALLIVAN and 
)  
JAMES C. SMITH, 
) 
CIVIL NO. ST-09-CV-294  
) 
Plaintiffs,  
) 
ACTION FOR BREACH OF CONTRACT, 
) 
DAMAGES, BREACH OF FIDUCIARY 
v.  
) 
DUTY AND FRAUD  
)  
POWER SAVE VI, RICKIE NORMAN, 
) 
JURY TRIAL DEMANDED  
REIMAX DREAM PROPERTIES, 
)  
ROSEMARY SAUTER-FRETT alk/a 
)  
ROSEMARY SAUTER and 
)  
LLOYD L. WILLIAMS, 
)  
) 
Defendants. 
) 
-----------------------------) 
ORDER 
AND NOW, pursuant to the Memorandum Opinion date of to day's date, it is hereby 
ORDERED that Defendant Rickie Norman's Motion to Dismiss is GRANTED as to 
Count I and DENIED as to Count II; and it is further 
ORDERED that a copy ofthis Order shall be directed to counsel ofrecord. 
DATED: April Zg,2011 
AT EST:  
VEN 
IA H. VE~~U~ 
SQ.
Clerk 
,Qqurt 
CERTIFIED ATRUE COpy
I 
BY: 
Vu/I.... 
. 
DONNA D. DONOVAN 
(, 
1")0 ",1)/ ( 
6- Q -
QO\.\
1  
Date: _..;::~--~--­
Court Clerk Supervisor _
_ _l_bJlj
_
"_I_cA.,l
ll 
Venetia H. Velazqu~z, Esq. 
Clerk of the Court 
By: 
cf\f1m~ 
Court Clerk 
Judge of the Superior Court 
of the Virgin Islands 
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS  
DIVISION OF ST. THOMAS AND ST. JOHN  
**********  
JAMES GALLIVAN and 
) 
JAMES C. SMITH, 
) 
CIVIL NO. ST-09-CV -294 
) 
Plaintiffs, 
) 
ACTION FOR BREACH OF CONTRACT, 
) 
DAMAGES, BREACH OF FIDUCIARY 
v. 
) 
DUTY AND FRAUD 
) 
POWER SAVE VI, RICKIE NORMAN, 
) 
JURY TRIAL DEMANDED 
REIMAX DREAM PROPERTIES, 
) 
ROSEMARY SAUTER-FRETT a/k/a 
) 
ROSEMARY SAUTER and 
) 
LLOYD L. WILLIAMS, 
) 
) 
Defendants. 
) 
---------------------------) 
ORDER 
This matter is before the Court on Defendant Lloyd L. Williams' faxed copy of his 
Motion to Postpone April 11, 2011 Status Conference ("Motion to Postpone") and W. Mark 
Wilczynski's Motion to Withdraw as Counsel for Defendants Rickie Norman and Power Save VI 
("Motion to Withdraw,,).l 
Having considered the Motion to Postpone, the Court will grant the Motion to Postpone. 
The Court will continue the present scheduled conference to Tuesday, June 7, 2011 at 9:45 a.m. 
The Court will also reserve rendering a decision on the Motion to Withdraw as Counsel. 
Norman and a representative of Power Save VI will be ordered to appear at the Tuesday, June 7, 
2011 scheduled status conference. The Court will also direct Attorney Wilczynski to serve a
I  copy ofthis Order on Norman and Power Save VI and to file a proof of service. 
Accordingly, it is hereby 
II  
ORDERED that Defendant Lloyd L. Williams' Motion to Postpone April 11, 2011
I Status Conference is GRANTED; and it is further 
ORDERED that the conference scheduled for April 11, 2011 IS CONTINUED to 
Tuesday, June 7,2011 at 9:45 a.m., in Courtroom III; and it is further 
II  I A. Jennings Stone, Esq., of BoltNagi, P.C. represents Plaintiffs James Gallivan and James e. Smith. Mia L. 
Woodard, Esq., of the Law Offices of DougJas L. CapdeviJle, P.e. represents Defendant Lloyd L. Williams. Joe 
Breen, Esq., of the Law Offices of W, Mark Wilczynski, P,C. represents Defendants Power Save VI and Rickie 
Norman, James L. Hymes Ill, Esq., of Law Offices of James Hymes ff1, P,C, represents Defendants Re/Max Dream 
Properties and Rosemary Sauter-Frett. 
James Gallivall alld James C. Smith v. Power Save VI et al 
Civil No. ST-09-CV-294 
Order 
Page 2of2 
ORDERED that the Court RESERVES decision on W. Mark Wilczynski's Motion to 
Withdraw as Counsel for Defendants Rickie Norman and Power Save VI; and it is further 
ORDERED that W. Mark Wilczynski shall serve a copy of this Order on Defendants 
Rickie Norman and Power Save VI and file proof of service with the Court on or before 
Tuesday, May 31, 2011; and it is further 
ORDERED that Defendant Rickie Nonnan and a representative of Defendant Power 
Save VI shall appear at the June 7, 2011 scheduled conference; and it is further 
ORDERED that a copy of this Order shall be directed to counsel of record and a copy 
thereof shall served on Defendants Rickie Nonnan and Power S e VI at 6500 Estate Smith Bay, 
St. Thomas, VI 00802. 
DATED: April L g ,2011 
Judge of the Superior Court 
of the Virgin Islands 
CERTIFIED A TRUE COPY 
Date: 
5 -q - ;all 
ATTEST: 
Venetia H. Velazquez, Esq. 
Clerk of ,11, Court 
VE~
SQ.
AH. VELn~
Clerk f 
e 
~ By:
BY: 
Court Clerk 
.DONNA D. DONOVAN -
LL 
r,(/t ::iJ( I  
Court Clerk Supervisor ~/__l_I__ 
O""