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For Publication IN THE SUPREME COURT OF THE VIRGIN ISLANDS JAHLEEJAH LOVE PEACE d/b/a S. Ct. Civ. No. 2019-0057 NATURAL LIVITY KULCH SHOP & Re: Super. Ct. Civ. No. 47/2015 (STT) JUICE BAR, Appellant/Plaintiff, BANCO POPULAR de PUERTO RICO, ) ) ) ) ) V. ) ) ) Appellee/Defendant. ) ) On Appeal from the Superior Court of the Virgin Islands Division of St. Thomas & St. John Superior Court Judge: Hon. Michael Dunston Argued: October 13, 2020 Filed: September 16, 2021 Cite as: 2021 VI 15 BEFORE: RHYS S. HODGE, Chief Justice; MARIA M. CABRET, Associate Justice; and IVE ARLINGTON SWAN, Associate Justice. APPEARANCES: Ronald E. Russell, Esq. The Russell Law Firm, LLP St. Croix, U.S.V.L. Attorney for Appellant, Alex M. Moskowitz, Esq. Dudley Newman Feuerzeig LLP St. Thomas, U.S.V.I. Attorney for Appellee. Love Peace v. Banco Popular de Puerto Rico 2021 VI 15 S. Ct. Civ. No. 2019-0057 Opinion of the Court OPINION OF THE COURT SWAN, Associate Justice ql Appellant Jahleejah Love Peace (“Love Peace”) appeals the Superior Court’s dismissal of her misrepresentation and intentional interference with business relations claims. For the reasons elucidated below, we affirm the Superior Court’s judgment. I. FACTS AND PROCEDURAL HISTORY q2 In 2010, Love Peace opened a business with a physical location on Main Street in St. Thomas, U.S. Virgin Islands for her long-standing vendor retail and food-service business. She named the establishment Natural Livity Kulcha Shop and Juice Bar (“Natural Livity”) and filed documents to make the business a limited liability company. In 2012, Love Peace applied to Banco Popular de Puerto Rico (“Banco Popular”) for a business loan to fund an expansion to the second and third floors of the building that Natural Livity occupied. However, Banco Popular denied Love Peace’s 2012 loan request. In September 2013, Love Peace applied to Banco Popular for a business credit card with a $50,000 limit. In October 2013, Banco Popular approved Love Peace’s request and issued to Natural Livity a Visa Advantage Business Credit Card with a $10,000 credit limit. In February 2014, Love Peace sent a letter to Banco Popular Vice President Daren Brown requesting an increase in Natural Livity’s credit limit from $10,000 to $50,000. In March 2014, Banco Popular notified Love Peace that her request to increase Natural Livity’s credit limit had been approved and she needed to sign documents at the offices of Banco Popular to obtain the increase. In April 2014, Love Peace executed the documents for Natural Livity’s increased credit line. Referencing the imposition of a UCC-1 lien on all of Natural Livity’s business assets, the Love Peace v. Banco Popular de Puerto Rico 2021 VI 15 S. Ct. Civ. No. 2019-0057 Opinion of the Court credit increase documents included a business loan agreement, commitment letter, closing summary, and security agreement. q3 In July 2014, Love Peace applied to the Virgin Islands Economic Development Authority (“EDA”) for a $50,000 business loan. EDA denied her loan application because of Banco Popular’s first priority UCC-1! lien on Natural Livity’s business assets. Love Peace claimed that EDA’s denial was the first time she learned of Banco Popular’s lien because she failed to properly read the credit increase documents executed in April 2014. In October 2014, Love Peace contacted Banco Popular to request removal of the lien. In December 2014, Banco Popular Senior Vice President Oran Bowry sent Love Peace a letter that offered to remove the lien and return Love Peace to a $10,000 unsecured credit limit if she paid the December 8, 2014 credit card balance of $45,386. Ultimately, Love Peace failed to remit the outstanding balance and Banco Popular maintained the UCC-1 lien. In March 2015, EDA approved Love Peace’s $50,000 business loan and took a second priority lien on Natural Livity’s business assets. 94 In January 2015, Love Peace filed a four count complaint in Superior Court against Banco Popular alleging misrepresentation (count one), fraud (count two), breach of contract (count three), and intentional interference with business relations (count four). On May 19, 2016, Banco Popular moved for summary judgment on all counts. On December 14, 2016, the Superior Court entered an order that granted Banco Popular’s motion for summary judgment on Love Peace’s breach of fiduciary duty claim which was one basis for the breach of contract allegation. However, the court preserved the remainder of the breach of contract claim and denied Banco Popular’s motion for summary judgment on the other causes of action. The litigation proceeded to a bench trial. On May Love Peace v. Banco Popular de Puerto Rica 2021 VI 15 S. Ct. Civ. No. 2019-0057 Opinion of the Court 29, 2019, after a bench trial, the Superior Court issued an order that dismissed the remaining claims in Love Peace’s complaint. On June, 28, 2019, Love Peace perfected the instant appeal. Il. JURISDICTION 45 “The Supreme Court [has] jurisdiction over all appeals arising from final judgements, final decrees, and final orders of the Superior Court.” 4 V.LC. § 32(a). “An order that disposes of all claims submitted to the Superior Court is considered final for the purposes of appeal.” Jung v. Ruiz, 59 V.I. 1050, 1057 (2013) (citing Matthew v. Herman, 56 V.I. 674, 677 (2012)). Because the Superior Court’s May 29, 2019 order disposed of all claims submitted for adjudication, the order is final and we exercise jurisdiction over Love Peace’s appeal. III. STANDARD OF REVIEW 6 We review the trial court’s factual findings for clear error and exercise plenary review over its legal determinations. Thomas v, People, 63 V.1. 595, 602-03 (2015) (citing Simmonds v. People, 53 V.1. 549, 555 (2010)). IV. DISCUSSION A. Misrepresentation q7 On appeal, Love Peace argues the Superior Court erred when it dismissed her misrepresentation claim. We begin our analysis with a brief review of the law of misrepresentation. "8 Legally, misrepresentation appears in two distinct legal areas— contracts and torts. In torts, misrepresentation involves assertions of fraud or deceit where the plaintiff seeks damages for the Love Peace v. Banco Popular de Puerto Rico 2021 VI 15 S. Ct. Civ, No. 2019-0057 Opinion of the Court purported wrongdoing. Wilkinson v. Wilkinson, 70 V.I. 901, 908 (V.I. 2019). In contracts, misrepresentation may enable a plaintiff to rescind a contract which the plaintiff was fraudulently induced to execute. /d. Although the elements of both claims are similar, there are sometimes subtle distinctions that warrant a decision on which form of misrepresentation applies to a particular case. /d. 49 In this case, Love Peace seeks more than two million dollars in damages. In Wilkinson, we explained that where a claimant seeks only to rescind an underlying contract based on an alleged misrepresentation, entitlement to that relief is determined according to the law of contracts, but where the claimant seeks damages arising from the misrepresentation, such a claim sounds in torts, rather than contracts. /d. at 907-08 49 (recognizing that where a party “does not request damages” but only seeks to rescind portions of an agreement based on a claimed misrepresentation, that party’s claim “is governed by contract law rather than tort law’’). Thus, the law of torts rather than contracts applies to Love Peace’s misrepresentation claim. 410 Notably, although our Wilkinson decision discussed misrepresentation sounding in contracts, we have not previously addressed the issue of fraudulent misrepresentation sounding in torts; therefore, a Banks analysis is warranted. Machado v. Yacht Haven US.V.I, LLC, 61 VI. 373, 380 (V.I. 2014). Although the Superior Court did not expressly perform a Banks analysis in this case, it cited to an earlier Superior Court decision in Merchants Commercial Bank v. Oceanside Village, Inc., 64 V.I. 3 (V.I. Super. Ct. 2015). In that case, the Superior Court, after conducting a Banks analysis, determined that the best rule for the Virgin Islands would be to define fraudulent misrepresentation as: [A] misrepresentation of fact, opinion, intention, or law that [the Love Peace v. Banco Popular de Puerto Rico 2021 VI 15 S. Ct. Civ. No. 2019-0057 Opinion of the Court defendant] either knew or had reason to know was false, and that was made for the purpose of inducing [the plaintiff] to act or refrain from acting on it, together with a pecuniary loss caused by [the plaintiffs] justifiable reliance on the misrepresentation. Id. at 21-22. Gil We largely agree with this analysis. Regarding the first Banks factor—which common law rule Virgin Islands courts have applied in the past—courts have predominately defined fraudulent misrepresentation as a misrepresentation of a material! fact, opinion, intention, or law that the defendant either knew or had reason to know was false, and that was made for the purpose of inducing the plaintiff to act or refrain from acting on it, together with a pecuniary loss caused by plaintiff's justifiable reliance on the misrepresentation.” Similarly, regarding the second Banks factor, courts across other jurisdictions have largely applied similar definitions.’ And, with respect "In Merchants, the Superior Court did not expressly state that the misrepresentation be of a material fact, even though it recognized that the definition of fraud includes a materiality requirement and that most jurisdictions have expressly adopted the materiality standard. 64 V.I. at 17-18. However, since the Merchants court stated that it intended to “capture[] the essence of the term ‘fraudulent’... and ensure that this Court is not altering the scope of liability for fraudulent misrepresentation that has existed for some time in this jurisdiction,” it is clear that it nevertheless intended to incorporate the materiality requirement. /d, at 22. See Merchants Commercial Bank v. Oceanside Village, Inc., 64 V1. 3, 22 (V.I. Super. Ct. 2015); see also Island Insteel Systems v. Waters, 296 F.3d 200, 212 (3d Cir. 2002) (citing Restatement (Second) of Torts § 525); Arvidson v. Buchar, 71 V.1. 277, 358 (V.1. Super. Ct. 2019); Gerald v. R.J. Reynolds Tobacco Co., 68 V.1. 3, 50, 108 (V.L. Super. Ct. 2017); Canton v. Virgin Islands Humanities Council, No. ST-12-CV-279, 2017 WL 3203443, at *10 (VI. Super. Ct. July 26, 2017) (unpublished); Harbison v. Auto Depot, LLC, No. ST-2016-CV-0000146, 2017 WL 2267000, at *4 (V.I. Super. Ct. May 24, 2017) (unpublished); Gov't of the V.L. v. Takata Corp., 67 V.I. 316, 414-16 (V.I. Super. Ct. 2017); fsaac v. Crichlow, 63 V.1. 38, 62 (V.I. Super. Ct. 2015). 3 Eg. Sexton v. Bass Comfort Control, Inc., 63 So. 3d 656, 662 (Ala. Civ. App. 2010); Riley v. Hoisington, 96 S.W.3d 743, 749 (Ark. 2003); Goldstein v. Enoch, 248 Cal. App. 2d 891, 895 (Cal. Ct. App. 1967); Nielson v. Scott, 53 P.3d 777, 779 (Colo. App. 2002); Brzoska v. Olson, 668 A.2d 1355, 1366 (Del. 1995); Howard v. Riggs Nat'l Bank, 432 A.2d 701, 706 (D.C. 1981); Butler v. Yusem, 44 So.3d 102, 105 (Fla. 2010); Deutz-Allis Credit Corp. v. Bakie Logging, 824 P.2d 178, 182 (Idaho Ct. App. 1992); Neurosurgery & Spine Surgery, S.C. v. Goldman, 790 N.E.2d 925, 933 (III. App. Ct. 2003); Lloyd v. Drake Univ., 686 N.W.2d 225, 233 (lowa 2004); Smith v. Stephens, 940 P.2d 68, 69 (Kan. Ct. App. 1997); Sys. Eng’ & Sec., Ine. v. Sci. & Eng'g Ass'ns, Inc., 962 So. 2d 1089, 1091 (La. Ct. App. 2007); Maine Eye Care Assocs. P.A. v. Gorman, 890 A.2d 707, 711 (Me. Ct. App. 2006); Pavement Restoration Eng'g, Inc. v. Patterson Indus. Ltd., No. 041632, 2008 WL 442515, at *1 (Mass. Super. Jan. 23, 2008) (unpublished); Hoyt Properties, Inc. v. Prod. Res. Grp., L.L.C., 736 N.W.2d 313, 318 (Minn. 2007); Droz v. Trump, 965 S.W.2d 436, 441 (Mo. Ct. App. 1998); Williams v. E. Coast Sales, Inc., 298 S.E.2d 80, 82 (N.C. Ct. App. 1982). Love Peace v. Banco Popular de Puerto Rico 2021 VI 15 S. Ct. Civ. No. 2019-0057 Opinion of the Court the individual who failed to read the contract. See Del Raso v. United States, 244 F.3d 567, 570 (7th Cir. 2001) (explaining that courts have long required contracting parties to act with reasonable prudence by reading the document prior to signing it because failure to read a contract is not grounds for rescinding it unless the failure is justified by special circumstances); AGK Sierra de Montserrat, L.P. v. Comerica Bank, No. 2:15-CV-01280-KJM-DB, 2020 WL 5107617, at *6 (unpublished) (E.D. Cal. Aug. 31, 2020) (“In rare cases, failure to read a contract can be excusable, where a [party] offers evidence sufficiently explaining such a failure.”); Desert Outdoor Adver. v. Super. Ct., 196 Cal. App. 4th 866, 872 (2011) (“A cardinal rule of contract law is that a party’s failure to read a contract, or to carefully read a contract before signing it is no defense to the contract’s enforcement.”); Matter of Carpe Diem 1969, LLC, No. 2017-56, 2019 WL 3413841, at *8 (unpublished) (D.V.I. July 29, 2019) (explaining that the Third Circuit has opined that a litigant remained bound by a waiver regardless of whether he read the waiver because he was given the opportunity to do so, and that it made no difference if a plaintiff had ample time to review the waiver or just the opportunity to review it). 415 Essentially, Banco Popular was not obligated to ensure that Love Peace read or comprehended every term in the credit increase documents because she was obligated to read them herself and each party represented its own interest in the arm’s length transaction. See In re U.S. Med., Inc., 531 F.3d 1272, 1277 n.4 (10th Cir. 2008) (“An arm’s length transaction is ‘[a] transaction in good faith in the ordinary course of business by parties with independent interests. . .. The standard under which unrelated parties, each acting in his or her own best interest, would +99 carry out a particular transaction.””) (citations omitted); Jo-Ann’s Launder Ctr., Inc. v. Chase Manhattan Bank, N.A., 854 F.Supp 387, 392 (D.V.I. 1994) (explaining there is a presumption in a Love Peace v. Banco Popular de Puerto Rico 2021 VI 15 S. Ct. Civ. No. 2019-0057 Opinion of the Court borrower/bank transaction that each party operates at arm’s length and represents its individual interests); /n re Torpey, No. 19-13577, 2020 WL 2485765, at *6 (unpublished) (E.D. Mich. Apr. 30, 2020) (explaining factors that determine the existence of an arm’s length transaction in borrower/bank context include whether the loan was secured, the borrower’s credit worthiness, the lender’s diligence in investigating borrower’s credit status, the existence of written documents, and recorded security agreements). Moreover, Banco Popular never coerced or forced Love Peace to sign the documents. Additionally, Love Peace could have taken the loan documents to a lawyer to review before signing them, if she did not understand them. Therefore, her failure to properly read the credit increase documents executed in April 2014 is not grounds to substantiate her misrepresentation claim or rescind the contract. 416 Even if Love Peace’s failure to read the credit increase documents supported her misrepresentation claim, there is ample evidence in the record that she had the opportunity to review the documents after she signed them as well as the opportunity to reject Banco Popular’s offer within fifteen days after she received it if she did not use the credit card. Specifically, despite Love Peace’s contrary testimony, Natural Livity’s bookkeeper and manager Khalilah Jasmine Copeland, and Banco Popular’s Commercial Relationship Officer, Sterling Knight, both testified that Knight gave Love Peace and Copeland copies of the credit increase documents after Love Peace executed them at the offices of Banco Popular. (J.A. Vol. II 418; Vol. III, Part 5 580). Copeland, who accompanied Love Peace to execute the documents, testified they reviewed the documents two or three days after the execution because Love Peace wanted to isolate the provisions that related to the $800 transaction fee and $25 lien fee. (J.A. Vol. III, Part 5 582-83). During the document review, Copeland or Love Peace could have observed that the Visa Business Love Peace v. Banco Popular de Puerto Rico 2021 VI 15 S. Ct. Civ. No. 2019-0057 Opinion of the Court Agreement (exhibit 5) contained a clause on the last page under the subheading “Miscellaneous Provisions” that enabled Love Peace to reject Banco Popular’s credit offer within fifteen days after she received it if she did not use the card. (J.A. Vol. II 240). Thus, Love Peace read the documents several days after they were executed and could have identified the escape clause in the Visa Business Agreement which would have absolved her of any liability to Banco Popular under its terms, especially if she disavowed the contractual terms on which the bank’s offer was predicated. Accordingly, we lack a viable reason to reverse the Superior Court’s judgment regarding Love Peace’s misrepresentation claim. B. Intentional Interference with Existing Contracts 417 On appeal, Love Peace also challenges the Superior Court’s dismissal of her intentional interference with business relations claim. As we did above, we commence our analysis with a review of the law of intentional interference. 418 | However, before our review of the law of intentional interference, we must establish the elements on which the cause of action rests because this is the first time we are presented with an issue that involves the claim. As indicated above, a Banks analysis is required when this Court’s prior jurisprudence or the Virgin Islands Code fails to establish the elements of particular cause of action. Wilkinson, 70 V.I. at 907. With respect to first two factors, multiple Virgin Islands courts,’ 4 Donastorg v. Daily News Publ’g Co., 63 V.1. 196, 283 (V.L Super. Ct. 2015); Gov't Guarantee Fund of Republic of Finland v. Hyatt Corp., 955 F.Supp. 441, 452 (D.V.I. [997); Schrader-Cooke v. Gov't of Virgin Islands, No. CV SX-16-CV-655, 2019 WL 7985407, at *9 (V.I. Super. Ct. Dec. 6, 2019); Gerard v. Dempsey, 70 V.I. 363, 367 (V.I. Super. Ct. 2019) (unpublished); Remak v. Virgin Islands Water & Power Auth., No. ST-15-CV-662, 2017 WL 204924, at *1 (V.I. Super. Ct. Jan. 10, 2017) (unpublished); Kiwi Constr., LLC v. Pono, No. ST-2013-CV-01f, 2016 WL 213037, at *4 (V.I. Super. Ct. Jan. 15, 2016) (unpublished); Merchants Commercial Bank v. Oceanside Vill., inc., 64 VI. 3, 30 (V.L. Super. Ct. 2015); Sorber v. Glacial Energy VI, LLC, No. CIVIL ST-10-CV-588, 2013 WL 6184064, at *5 (V.1. Super. Ct. Nov. 22, 2013) (unpublished). Love Peace v. Banco Popular de Puerto Rico 2021 VI15 S. Ct. Civ. No. 2019-0057 Opinion of the Court as well as the courts of the overwhelming majority of other jurisdictions,’ have recognized the elements of this cause of action as requiring: (1) the existence of a contract between the plaintiff and a third party; (2) that the defendant knew of that contract; (3) that the defendant interfered with the contract using improper means or with an improper motive; and (4) that the plaintiff was damaged as a result. Given the widespread acceptance of this rule, we see no reason to deviate from it, and believe it to represent the soundest rule for the Virgin Islands. Wilkinson, 70 V.I. at 913. Therefore, to prevail on her interference with existing business relations claim, Love Peace was required to demonstrate that (1) a contract existed between her and a third party; (2) Banco Popular knew of that contract; (3) Banco Popular interfered with the contract using improper means or with an improper motive; and (4) Love Peace was damaged as a result. {20 In this case, Love Peace’s appellate brief delineates the elements of a claim for intentional interference with existing contracts, but mentions the purpose for intentional interference with prospective business relations. (Appellant’s Br. 17). Regardless, although Love Peace discussed the claim of intentional interference with existing contracts in the proposed findings of fact and conclusions of law which were filed in the Superior Court in June 2018, Love Peace’s failure to include the claim in her complaint meant that the issue was not fairly presented to the Superior Court and was not properly preserved for appellate review. (J.A. Vol. 159). See V.I. R. App. P. ° See Edward Vantine Studios v. Fraternal Composite Serv,, 373 N.W.2d 512, 514 (Iowa Ct. App. 1985); Eldeco, Inc. v. Charleston Cnty. Sch. Dist., 642 S.E.2d 726, 480 (S.C. 2007); Foster v. UPMC South Side Hosp., 2 A.3d 655, 665 (Pa. Super. Ct. 2010); Slater Numismatics, LLC v. Driving Force, LLC, 310 P.3d 185, 189 (Colo. App. 2012); Deflon v. Swayers, 137 P.3d 577, 583 (N.M. 2006); MRC Permian Co. v. Point Energy Partners Permian LLC, 624 S.W.3d 643, 664 (Tex. Ct. App. 2021); Splash, LLC v. Shullman Family Ltd. P'ship, 51 N.Y.S.3d 852, 859 (N.Y. Gen. Term 2017); Loren v. Church Mut. Ins. Co., 452 P.3d 418, 424-25 (Okla. 2019); Bilimoria Computer Sys.. LLC v. America Online, Inc., 829 N.E.2d 150, 156 (Ind. Ct. App. 2005); Meridian Mortg., Inc. y. First Hawaiian Bank, 122 P.3d 1133, 1142 (Haw. Ct. App. 2005); J.J. Indus., LLC v. Bennett, 71 P.3d 1264, 1267 (Nev. 2003); Finch v. Southside Lincoln-Mercury, Inc., 685 N.W.2d 154, 162 n.8 (Wis. Ct. App. 2004); see also Restatement (Third) of Torts § 17 (2020). Love Peace v. Banco Popular de Puerto Rico 2021 VI 15 S. Ct. Civ. No. 2019-0057 Opinion of the Court 4(h). Because Love Peace failed to adequately raise below the issue of Banco Popular’s intentional interference with her existing vendor contracts, we deem the issue waived. See St. Thomas-St. John Board of Elections v. Daniel, 49 V.1. 322, 335 (V.L. 2007) (“[A]bsent exceptional circumstances, an issue not raised in the [trial] court will not be heard on appeal.”) (citations omitted). V. CONCLUSION 421 Because Love Peace fails to demonstrate that Banco Popular misrepresented any aspect of the April 2014 credit increase process and she is deemed to have waived the issue of Banco Popular’s intentional interference with her existing contracts, we affirm the Superior Court’s judgment. - Dated this A G day o 7 Associate Justice ATTEST: VERONICA J. HANDY, ESQ. Clerk of the Court Deputy. Clerk II Date: Ahito|2