SUPERIOR COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. THOMAS AND ST. JOHN



AIMERY N. DELAGARDE,



Plaintiff,



vs. CASE NO. ST-12-CV-470



ROY LESTER SCHNEIDER HOSPITAL,

CENTRAL AIR, INC., JAMES L. ROSS,

JOHN/JANE DOE, AND ABC, CORP.,



Defendants.



lt i i i i a a a a



MEMORANDUM OPINION



Pending before the Court is Defendant Central Air, Inc.’s motion for attorneys’



fees and costs. For the following reasons, Central Air’s motion will be denied.

FACTUAL AND PROCEDURAL HISTORY



On August 28, 2012, Plaintiff filed a Complaint against Defendants stemming

from a slip and fall incident. In the Complaint, Plaintiff alleged that he slipped on water

leaking from an air conditioning unit that Central Air failed to monitor and repair. On

April 11, 2013, the parties entered into a “stipulation of partial discontinuance and

withdrawal of Defendant Central Air.” The stipulation states that the causes of action

against Central Air are dismissed “without further cost to either party.” Notwithstanding,

Central Air now seeks attorneys’ fees and costs on the basis that Plaintiff's claims were

frivolous.



ANALYSIS



5 V.LC. § 541 provides:

Delagarde v. Roy Lester Schneider Hospital, et al.

ST-12-CV-470



Memorandum Opinion, June 06, 2013



Page 2 of 3



(a) Costs which may be allowed in a civil action include:



(1) Fees of officers, witnesses, and jurors;



(2) Necessary expenses of taking depositions which were

reasonably necessary in the action;



(3) Expenses of publication for the summons or notices, and the

postage when they are served by mail; \



(4) Compensation of a master as provided in Rule 53 of the Federal

Rules of Civil Procedure;



(5) Necessary expense of copying any public record, book, or

document used as evidence in the trial; and



(6) Attorney’s fees as provided in subsection (b) of this section.

(b) The measure and mode of compensation of attorneys shall be left to

the agreement, express or implied, of the parties; but there shall be

allowed to the prevailing party in the judgment such sums as the court

in its discretion may fix by way of indemnity for his attorney’s fees in

maintaining the action or defenses thereto, provided, however, the

award of attorney’s fees in personal injury cases is prohibited unless the

court finds that the complaint filed ... is frivolous. '



Under 5 V.LC. § 541(b), a “prevailing party is considered to be the one in whose favor a

decision or verdict is rendered and a judgment is rendered.”* Under 5 V.1.C. § 541(c), a

frivolous claim is defined as one that lacks legal or factual merit or was raised to cause

unnecessary delay or to harass.



A judgment or judicial decision has not been rendered in Central Air’s favor, and

“as a general rule, a defendant may not recover fees when a plaintiff dismisses an action

with prejudice absent exceptional circumstances.” * Central Air’s proof that the claims

against it were frivolous consists of allegations from counsel that Central Air “should



never have been named as a party to this litigation” and that it “had no dealings with any



"V1. Code Ann. tit. 5 §541 (1997).



? Melendez v. Rivera, 24 V.I. 63, 65 (Terr. Ct. 1988) (noting that the definition of prevailing party can be

construed more broadly in some cases where “a party has achieved at least some of the benefits which were

sought in the litigation, if a judgment is not finally obtained”).



> Grand Union Supermarkets v. H.E. Lockhart Management, Inc., 2013 WL 163830, at *3 (D.V.1. 2013).

Delagarde v. Roy Lester Schneider Hospital, et al



ST-12-CV-470



Memorandum Opinion, June 06, 2013



Page 3 of 3



24



of the parties hereto



Central Air’s motion will be denied for failure to provide



sufficient evidence to sustain a finding that Plaintiffs claims were frivolous



An Order consistent with this Opinion shall follow



oe



Dated; / June L, 2013



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Central Air’s motion, at page 2