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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN ****** JOHN C KIRKLAND ) ) CASE NO ST 21 CV 051 Plaintiff ) ) ACTION FOR BREACH OF V ) CONTRACT BREACH OF IMPLIED ) DUTY OF GOOD FAITH AND FAIR WALTER FEDDERSEN JANE FEDDERSEN ) DEALING BREACH OF FIDUCIARY JEYAN K STOUT and STOUT REALTY LLC ) DUTY TRESPASS NEGLIGENT d/b/a COLDWELL BANK STOUT REALTY ) SUPERVISION CONVERSION ) UNJl ST ENRICHMENT AND Defendants ) DECLARATORY JUDGMENT ) ) Cite as 2023 VI Super 4U MEMORANDUM OPINION '|l BEFORE THE COURT is Plaintiff’s ( Plaintiff or Kirkland ) Motion for Reconsideration of November 18, 2022l Partial Summary Judgment Order” filed on December 16, 2022 Walter and Jane Feddersen (“Defendants ’ or the “Feddersens”) filed their opposition on January 13, 2023 For the reasons stated herein, the Court will deny Plaintiff’s motion I BRIEF FACTUAL BACKGROUND ‘|2 On August 4, 2020, Plaintiff signed a one year residential lease agreement with the Feddersens for the premises located at 6H Estate Nazareth, St Thomas, United States Virgin Islands The lease contained a clause granting Kirkland with a right of first retinal (‘ ROFR”), providing Kirkland with the option to purchase the property on the same terms of a third patty offer received ' This Order was amended on December 16, 2022, for the purpose of correcting typographical errors and providing clarity to reflect the Court 3 granting of summary judgment with respect to Count Three in favor of the Feddersen Defendants and to reverse the Court 8 oral ruling made on November 28 2022, by removing the Rule 54 language certifying the Order as a final judgment Accordingly, the November 18 2022, judgment has not been certified as a final by the Feddersens On May 22 2020 the Feddersens listed the property with Defendants Jcyan K Stout and Coldwell Bank Stout Realty (“Defendant Stout ’ or ‘ Stout”) with a listing price of $2 85 million On January 25, 2021, the Feddersens received an offer for the property for a total of $2 81 million On February 10, 2021, the Feddersens’ attorney notified plaintiff of the third party offer, triggering Kirkland’s 48 hours to exercise his right of first refusal; however, the contract for sale was not provided to Kirkland on this date Thus, at his request, on February 17, 2021, the Feddersens’ attorney extended a renewed right of first refusal to Kirkland and provided the contract of sale between the Feddersens and the third party in its entirety On February 18, 2021, Plaintiff advised the Feddersens he is willing to purchase the property for $2 5 million Presently, Kirkland maintains he properly exercised his right of first refusal, while the Feddersens contend he did not by failing to agree to the $2 81 million price 113 On February 23, 2021 Plaintiff filed a First Amended Complaint, which alleged, among other things, the Feddersens breached the option contract created by the ROFR clause (Count Three) and the implied duty ofgood faith and fair dealing with respect to the ROFR agreement (Count Four) On February 10, 2022, Kirkland filed a motion for partial summary judgment for those counts; and on March 28, 2022, the Feddersens filed a cross motion for partial summary judgment on the same counts The parties filed the respective oppositions and replles for each motion 1|4 The Court heard oral arguments on the issues on August 9, 2022, and on November 18, 2022 On November 18, 2022, the Court issued an order granting summary judgment on Count Three in favor of the Feddersens and denying summary Judgment on Count Four The Court held a status conference on November 28, 2022, and orally ruled it would certify for appeal the November 18, 2022 decision as a final Judgment pursuant to V I R Civ P 54 On December 16, 2022, the Court reversed its November 28 2022 bench ruling and amended the November 18, 2022 Order to reflect that determination On December 16 2022 Plaintiff filed this motion [1 STANDARD OF REVIEW 1’5 Plaintiff is moving for reconsideration under V I R C iv P 59(e), which “governs motions to alter or amend a judgment and provides that [it] must be filed no later than 28 days after the entry of thejudgment Ciprtam v Czprzam 74 V I 3 f n 4 (V I Super Ct 2021) quoting Rule 59(e) Under Rule 59(e), there are three grounds a motion may rely on ‘ (1) an intervening change in controlling law; (2) the availability ofnew evidence not available previously, or (3) the need to correct clear error of law or prevent manifest injustice ’ Chavayez v Buhler, 2009 WL 1810914 *8 (V I 2009) 1|6 More precisely, however Defendants argue Plaintiff should be moving for reconsideration under Rule 6 4 as the November 18, 2022 Order is not a final judgment V I R Civ P 6 4 provides that “a party may file for a motion asking the court to reconsider its order or decision within 14 days after the entry of the ruling, unless the time is extended by the court and [e]xtensions will be only be granted for good cause shown Clprlam, at *8 The Court agrees with Defendants that Plaintiff should have moved for reconsideration under Rule 6 4 instead of 59(e) Defendants, however, fiirther contend because of the 14 day limitation under Rule 6 4, Plaintiff‘s motion is untimely Considering the Court did not enter the amended November 18, 2022 Order until December 16, 2022, which determined the Order would not be certified as a final judgment, and this motion was filed on the same day, the Court will decide the motion on the merits in accordance with the standards under Rule 6 4 117 A motion for reconsideration under Rule 6 4 must be based on “(1) an intervening change in controlling law; (2) availability of new evidence, (3) the need to correct clear error of law; or (4) failure ofthe court to address an issue specifically raised prior to the court 3 ruling V I R Civ P 6 4(b) A motion for reconsideration is not a “second bite of the apple,” nor a “vehicle for registering disagreement with the [C]ourt’s initial decision, for rearguing matters already addressed by the [C]ourt, or for raising arguments that could have been raised before but were not ” Merchants Commerczal Bank v Oceanszde Village Inc 2019 WL 7972136 *2 (V I Super Ct 2019) (quoting szth v Law Oflices ofKarm A Bentz P C 2019 WL 671389 *8 n 50 (V I Super Ct 2018)) It is “intended to focus the parties on the original pleadings as the ‘main event,’ and to prevent parties from filing a second motion with the hindsight ofthe court s analysis covering issues that should have been raised in the first set of motions ” Magras v National Industrial Servwes LLC, 75 V I 1 l, 14 (V I Super Ct 2021) (quoting In re Infant Sherman 49 V I 452 457 (V I 2008)) In determining whether to grant such a motion, the Court operates with ‘the common understanding that reconsideration is an ‘extraordinary’ remedy not to be sought reflexiver or used as a substitute for appeal ’” Id Here, Plaintiff presents four arguments wherein he asserts the Court committed clear error 111 LEGAL ANALYSIS i The Feddersens’ admission that the price of the furnishings was separate from the price of the property clarified the terms of sale only This admission does not alter Kirkland’s obligations under the ROFR clause pursuant to his lease Accordingly, any error by the Court in disregarding this admission was harmless 118 First, Plaintiff argues the Court committed clear error by substituting its own judgment in place of an admission by the Feddersens that the price of the furnishings was separate from the price of the property Plaintiff points to Defendants March 13, 202] emergency motion which states, in pertinent part “The Contract includes an agreement on a price for the personal property and equipment It is common practice in the real estate industry in the Virgin Islands to allocate the full sale price of a furnished property between the realty and personalty, as there are no stamp taxes assessed on a sale of personal property ” In his partial motion for summaryjudgment, Plaintiffargued this was an admission by the Feddersens that the fumishings are distinct from the purchase price and further that it was done manipulativer to evade a portion of the stamp tax In its Order, the Court held the argument that the Feddcrsens would distinguish between the purchase price and the furnishings to avoid taxes was unpersuasive, given the nominal value between the percentage of the stamp tax on the difference between the sales price with and without furnishings In his motion for reconsideration, Plaintiff argues that this reasoning by the Court misses the bigger issue that the Feddersens admitted the two are distinct, that is that the furnishings are separate from the price ofthe property, therefore, the Court committed clear error 1|9 In response, Defendants argue the statement provides the terms of the sale, as set forth in the contract between the Feddersens and the third party purchaser The Court agrees with Defendants The statement from the March 13, 2021 emergency motion more fully states “Mr Kirkland leased a fully furnished property The Villa was already on the market as a fully filmiShed property The Contract includes an agreement on a price for the personal property and equipment It is common practice in the real estate industry in the Virgin Islands to allocate the full sale price of a furnished property between the realty and personalty, as there are no stamp taxes assessed on a sale of personal property ” It is apparent that this statement is clarifying the terms ofthe contract, which should be read in whole and not only in relation to the line item purchase price, as Plaintiffsuggests “[T]he cardinal principle of contract interpretation is that the intention of the parties must prevail unless it is inconsistent with some established rule of Iaw thllzp v Marsh Monsanto 66 V I 612 625 (V I 2017) (quoting 11 RICHARD A LORD WILLISTON ON CONTRACTS § 32 2 (4“I ed rev vol 2012)) Where the language of a contract is clear and unambiguous the parties’ intent must be derived from the plain meaning of its terms ” Id Ultimately, the division ofsums does not alter what Kirkland was required to accept under the terms of his ROFR clause 1[10 Generally, courts have found that the premises as described in the lease control what the right holder must purchase when exercising a right of first refusal See e g , B&R 01! Co Inc v Stoler 77 N E 3d 823 829 30 (Ind Ct App 2017) Pantry Przde Enterprises Inc v Stop & Shop Companies Inc 806 F 2d 1227 1228 (4th Cir 1986) While unbinding on this Court the Court finds these cases persuasive and applicable to the matter subjudzcc 1|ll In B&R 011 Co Inc v Stoler, the Stolers leased several pieces of real property from B&R Oil to operate gas stations Id at 825 The Stolers signed individual leases for each parcel, all ofwhich contained an ROFR clause that granted them the the right of first refusal to purchase the leased premises in the event that a bona fide offer to purchase the leased premzses is presented to Lessor ” Id at 826 During the lease term B&R Oil signed a letter of intent to “sell substantially all of its assets to Empire for approximately $80,000 000 Id The offer included the premises leased by the Stolers and at least sixteen other parcels of real property, amongst other things Id B&R Oil notified the Stolers of the offer and the Stolers responded with their intent to exercise their rights for each lease Id B&R Oil contested the Stoler’s exercise of their right, arguing that the Stolers had to match the entire offer and tender $80,000,000 for the real estate and assets Id The Stolers argued under the lease agreements they were only required to purchase the “leased premises ” Id The Indiana Court of Appeals held for the Stolers and reasoned that under the clause, the “leased premises,” could only mean the real property as described in the Stolers lease and no other property Id at 830 The court further reasoned that B&R Oil failed to comply with the ROFR by presenting a non conforming third party offer by “bundl[ing] the lease properties with the other property interested unrelated to the leased premises ’ Id at 831 Thus, the lease as described governed the property encompassed in the ROFR clause 1112 This premise is also supported by Pantry Przde Entc rprzses Inc v Stop & Shop Compames Inc In this case, Stop & Shop leased a portion of its shopping center to the supermarket chain Pantry Pride The lease contained an ROFR clause which required Pantry Pride to notify Stop & Shop of any assignment of the lease, and in turn Stop & Shop had thirty days to accept an assignment of interest upon the same terms of the third patty offer Id at 1228 For the store in question, Pantry Pride received an offer of$571 000 with $428 250 allocated to the purchase ofthe equipment and $142 750 allocated to the assignment of the lease Id Stop & Shop argued they were only required to assume the lease for the allocated price of $142 750 and not for the fill $571 000 which included the equipment Id In determining the scope of the Stop & Shop 3 ROFR the Fourth Circuit held that Stop & Shop was not required to purchase the equipment Id at 1229 The court reasoned that Pantry Pride’s lease provided “a building with some adjacent land, [Pantry Pride] had to buy, install, and ultimately remove its own equipment ’ Id The court further reasoned “If the right of first refusal were to require Stop & Shop to buy both the lease and the equipment, it would be the only lease provision treating the lease and the equipment as a single unit When the entire lease carefully separates the two interests, it is incongruous to argue that Stop & Shop’s option extends to the lease and equipment ’ “[A] seller cannot force an option holder to buy more property than that covered by the first refusal provision The reason for this line of authority is clear if Pantry Pride could include the lease as part of a package and force Stop & Shop to accept the entire package or forfeit its right, then Pantry Pride could effectively nullify the right of first refusal by combining the lease with items that Stop & Shop may not want or cannot afford We hold that Pantry Pride cannot force Stop & Shop into any such predicament Pantry Pride moreover could have foreseen the commerczal need to combine the lease and equipment m a Single sale and could have mszsted that the equlpment be Included m the right offirst refusal ”’ Id (cztmg Radio WEBS Inc v Tele Media Corp 249 Ga 598 292 S E 2d 712 715 (1982) 1113 In this matter, under the ROFR, Kirkland was required to purchase the real property and personalty Kirkland’s ROFR clause allowed him to purchase ‘ 61-] Estate Nazareth, ’ and while he contends “6H Estate Nazareth” can only be understood as the real property, that is not what is dictated in the lease agreement The lease defines the property as 6H Estate Nazareth St Thomas USV100802 Being a 4 bedroom, 4 5 bath filmished Villa With a 1 bedroom, 1 bath furnished Guest Apartment Property is named Cabrita CliffHaus” At the signing ofthe lease, Kirkland was aware ofthe defined premises as a “4 bedroom, 4 Sfurmshed Villa” and included a “1 bedroom 1 bath/urmshed Guest House ” The premises as described in the lease is what governs what property is transferable by a right of first refusal and Kirkland’s lease is clear and unambiguous as to what is included in the premises See B&R 011 Co Inc v Stoler, at 829 Further, the lease does not divide the real property from the personalty; but, instead, treats them as a single interest See Pantry Prtde Enterprises Inc , at 1230 2 1114 Although Plaintiff is correct that the language from the emergency motion shows that the personal property and the real property were kept distinct in the sales contract, this distinction had no bearing on the purchase price of the property nor changed the required terms under the ROFR This is distinguishable from the issue presented in Pantry Pride’s lease, where the Fourth Circuit noted that “the lease itself divided the leasehold and equipment interest, putting Pantry Pride on notice that the lease and equipment were separate interests ’ Here, Kirkland was put on notice from the signing of the lease that the real property and furniture Although the sales contract created a distinction between the furniture and the real property, and itemized the value ofeach, the lease agreement did not Under the right offirst refusal clause, Kirkland was required to purchase 6H Nazareth as defined in the lease Accordingly, the Court finds that even if there is an admission that the Feddersens separated the sums on the contract, the error was hamless to the Court’s dismissal of Count Three as the purchase price would not be affected by this division of terms because under the ROFR, Kirkland had to purchase 61-] Estate Nazareth as defined in the lease, which treats the property as a singular interest ii The Court did not err in accepting both parties’ statements of undisputed facts and their responses in making its determination 1|15 Plaintiff next argues the Court erred in accepting the Feddersens’ statement of undisputed facts and their responses to his statement He argues that because the Court did not address the civil procedure violations in the Feddersens’ motions, the Court should consider the statements made by Plaintiff as true Specifically, again, Plaintiff points to what he considers an admission by the Feddersens that the price of the property and the filmishings are separate He states that he put this admission in his statement of undisputed facts, and that the Feddersens failed to rebut this statement in their counterstatement, therefore, the Court must accept it as true To support this argument, Plaintiff cites two cases which hold that in a motion for summaryjudgment, the movant must provide specific facts showing there is no genuine issue at dispute See Celotex Corp v Catrett, 477 U S 317 (1986) see also Anderson v Liberty Lobby Inc 477 U S 242 (1986) He contends that the Feddersens’ failure to rebut each factual assertion Plaintiff makes in this statement and counterstatement of undisputed facts deems these assertions as undisputed and therefore bars this Court from granting summary judgment in favor of the Feddersens 1116 Again, the Court disagrees In its Order, the Court acknowledged that the Feddersens violated V I R Civ P 56(c)(2)(B) and 56(c)(2)(C) and chose to exercise its inherent discretion to waive these violations 3 Further, pursuant to V I R Civ P 56(e), when a party fails to properly address another party’s assextion of fact, the court may ‘(1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion, (3) grant summary judgment if the motion and supporting materials including the facts considered undisputed show that the movant is entitled to it, or (4) issue any other appropriate order ” Plaintiff’s argument ignores the authority of the court to remedy the Violation in accordance with 56(e) and further discounts in its entirety the evidence provided by the Defendants in their opposition and cross motion for summary judgment Under 56(e)(l) the Court may grant an opportunity for the Feddersens to address any defects in their statements; this opportunity was already seized by the Defendants in their cross motion for partial summary judgment and their counterstatement of undisputed facts when they addressed the identical issues put forth in Kirkland’s motion for summary judgment 1H7 When deciding on a motion for summary judgment the court’s role “is not to determine the truth, but rather to determine whether a factual dispute exists that warrants trial on the merits ” Davis v lelzgan 2020 WL 13261002 *2 (V 1 Super Ct 2020) (quoting Todman v Hzcks 70 V I 430 437 (VI 2019)) Here the Court had the authority and the responsibility to consider all of the evidence presented by both parties in interpreting the ROFR clause See Kennedy Fundmg Inc v GB Properties Ltd , 73 V I 426, 437 (V I 2020) The Court was provided with the lease agreement, the 3 See In re Rahn 67 V I 764 772 (V I 2017) holding It is well established that the Superior Court has broad third party contract of sale, emails between both parties’ counsel discussing, amongst other things, the initial notice to Kirkland about the third party offer, and then the renewed right offirst refusal and its terms While Kirkland maintains the Feddersens may have not responded to Plaintiff‘s statements in a sufficient manner, the Court’s decision was not determined solely on the statements made by both parties, but on the totality of the evidence provided Accordingly, pursuant to the V I R Civ P 56(e)(1), the Court did not err in waiving the Feddersens’ civil procedure violations iii The Court interpreted the contract of sale in its entirety, thus, Plaintiff’s argument that the Court impermissibly considered materials outside of the “four corners of the ROFR” is unpersuasive 1118 Kirkland next argues the Court erred by impermissiny considering materials outside the ‘ four corners of the ROFR’ in concluding that the fumishings and stamp taxes were part of the purchase price To support his argument, Plaintiffrelies on In re MCL Enterprises Inc , 749 F 3d 634 (7th Cir 2014) and A&R Partners LLC v Chesapeake Exploration LLC 528 S W 3d 869 (Tex 2017), which both allegedly stand for the premise that in interpreting an ROFR clause, the couxt must “rely solely on the language of the contract and cannot consider extrinsic evidence, such as the parties’ past practices or the circumstances surrounding the contract’s execution ” After extensive research, the Court could not find the legal precedent cited by Plaintiff on either of the above referenced cases Nevertheless, general principles ofcontract law in the Virgin Islands allow the court to interpret the meaning of a contract as a whole to ascertain the intent of the parties See Phllllp v Marsh Monsanto 66 V I 612 624 (V I 2017) 119 Plaintiff argues the Court erred in relying on extrinsic materials, such as the property listing, to determine its interpretation of the ROFR Kirkland is incorrect While the Court considered the property listing, which provided that the property was furnished and the stamp taxes were to be paid by the buyer, the Court pointed to the listing and to the case Vaso LL C v Brave New World Investments L L C , 20] So 3D 515 (La App 4 Cir 2020) to show that Kirkland cannot claim he did not know all of the terms of sale because they were provided to him in the third party offer and the lease agreement The Court’s interpretation ofthe ROFR clause came from the plain language ofboth the residential lease agreement and the contract of sale, which are to be considered together to determine the parties intent“ Additionally, according to Plaintiff, Defendant Stout was also the buyer’s agent; thus, the Court finds it difficult to believe Kirkland was unaware as to what the terms, conditions, and property features were iv Plaintiff misstates the Court’s findings when he argues the Court erred in its determination of when the right of first refusal was granted to Kirkland 1120 Finally, Plaintiff argues that the terms of sale under a right of first refusal are created at the time when the third party offer is made, not when the right is created under the lease agreement,” and that this is contrary to the Court’s order Plaintiff’s argument stems from the Court’s sentence in its Order which states “[t]hese terms (referring to the furnishings and stamp taxes) were specified when the right was granted and which the other parties have agreed upon ” His argument is that the Court erred in stating that this is when the right of first refusal was granted to Plaintiff, rather than when Plaintiff signed the lease containing the clause While Plaintiff is correct that his right was granted when he signed his lease containing the ROFR clause, and not with the third party offer, his argument is unavailing and at most constitutes a harmless error in syntax by the Court The Court’s reasoning in the following statement and throughout the November 18, 2022 Order, provides that because ‘ See Phlllzp v Marsh Monsanto 66 V1 612 624 (VI 2017) (quoting Mo Sav Ass n v Home Sav ofAm 862 F 2d 1323 1326 (8th Cir 1988) stating ‘ The parties intent regarding the number of documents constituting the contract and the meaning of the contract is determined from the entire instrument or instruments and relevant external Kirkland was aware of all the terms of the third party 3 offer on February 16, 2021, he was bound to accept the offer as it was presented 1121 In fact, the arguments by Plaintiff in his motion for reconsideration support the Court’s reasoning Plaintiff first cited to Hamer v Szdway 124 N Y 538 (I 891), for the proposition that “the terms of sale are not fixed by the agreement of the parties, but by the offer of the third person, and, if the party having the right of first refusal accepts the offer he must accept it upon the terms made by the third person ”5 This argument by Plaintiff reiterates the Court’s reasoning in its Order Kirkland must have accepted the offer based upon the terms of the third person to properly exercise his right of first refusal IV CONCLUSION 12 While Plaintiff continues to assert that he properly exercised his right of first refusal, all of the legal precedent and evidence show otherwise On August 4, 2020, Plaintiff leased the premises “6H Estate Nazareth,” which was defined as a “4 bedroom, 4 5 bathroom furnished Villa” and included a “1 bedroom, 1 bathroomfurmsh[ed] Guest Apartment ” While the ROFR only refers to “6H Estate Nazareth,” the definition in the lease agreement is clear and unambiguous that the real property and furnishings are combined as a singular property interest Further, under Virgin Islands law regarding contract interpretation, the Court was within its discretion to interpret Kirkland’s obligations under the ROFR clause by reviewing both the lease agreement and the third party offer Finally, and supported by Plaintiff‘s own contentions, Kirkland had to match the third party offer as it was presented Thus, the Court finds there was no error in determining that Kirkland did not 5 The Conn could not verify this language came from Hamer v Szdway, which does not hold nor state the language which Plaintiff cites to, instead, the case discusses the law regarding forbearance as a means for consideration in contract law Likewise, the Court could not verify the language cited by Plaintiff in Thompson v Allen, 283 P 2d 807 properly exercise his right of first refusal; hence, the Court’s granting summary judgment on Count Three in favor of the Feddersens was proper Accordingly, Plaintiff’s motion for reconsideration should be denied An appropriate Order follows / Dated Februaryq; 2023 Renee bs Carty enior Sitting dge Superior Court of the rgin Islands ATTEST Tamara Charles Clerk oft e C 1111 B Latoya macho ; W Court Clerk Superv or y / é / £045