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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN WORLD FRESH MARKET LLC d/b/a PUEBLO ) ) Plaintiff ) CASE NO ST 21 CV 163 ) v ) ) ACTION FOR TRESPASS AND MARTHA JOLLY and any other persons ) PRIVATE NUISANCE conducting business with Martha Jolly and/or ) occupying space with Martha JOlly on the Property ) JURY TRIAL DEMANDED ) Defendants ) ) Cite as 2022 V 1 Super 75U ORDER The Court having issued a memorandum opinion on this date, it is hereby ORDERED that Defendant 3 Motion to Dismiss First Amended Complaint is DENIED; and it is further ORDERED that a copy of this Order and the accompanying Opinion shall be directed to Michael L Sheesley, Esquire and Francis E Jackson, Jr , Esquire Dated SeptemberVZ 2022 Renee G / W bs Carty fl ’ , 1/ ‘1 I / Judge of the perior Court ATTEST of the Virg Islands Tamara Charles By % Latoya Camacho Court Clerk Supervisor (fl Ml} /_&  IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN **x**** WORLD FRESH MARKET LLC d/b/a PUEBLO ) ) Plaintiff ) CASE NO ST 21 CV 163 ) V ) ) ACTION FOR TRESPASS AND MARTHA JOLLY and any other persons ) PRIVATE NUISANCE conducting business with Martha Jolly and/or ) occupying space with Martha Jolly on the Property, ) ) JURY TRIAL DEMANDED Defendant ) Cite as 2022 V I Super 75U ) MEMORANDUM OPINION 111 This is an action for trespass and private nuisance brought by the Plaintiff World Fresh Market, LLC, against the Defendant, Martha Jolly Pending before the Court is the ‘Motion to Dismiss Plaintist Amended Complaint filed by Defendant Martha Jolly on July 14 2022 Plaintiff iesponded with an Opposition to Motion to Dismiss First Amended Complaint on August 1, 2022 For the following reasons, Defendant’s motion will be denied I BACKGROUND 112 This case involves a dispute between a property leaseholder and a private proprietor Plaintiff, World Fresh Market, LLC ( World Fresh ) commonly known as Pueblo, is a limited liability company that engages in the business of selling produce, groceries, meats, and other products to the public Defendant Martha Jolly (“Jolly ’) is an individual engaged in the business of selling fruits, vegetables, and other ground provisions from a fruit stand 113 World Fresh is the leaseholder of property known as Estate Thomas 2 6H New Quarter Saint Thomas, VI, known as Pueblo Long Bay Pursuant to the lease agreement, World Fresh has World Fresh Market LLC v Martha Jolly Cite as 2022 V I Super 75U Case No ST 21 CV 00163 Memorandum Opinion the right to exclusive possession of the leased premises which encompasses the supermarket building and parking lot Defendant opeiates her business on the corner of the parking lot which is directly adjacent to the exit of the supermarket 114 The complaint alleges that Defendant lacks authorization and the right to occupy the leased property Plaintiff claims that they formally requested Defendant vacate the leased premises and discontinue to engage in competition on its property Nevertheless, Defendant plesumably continued to operate her business According to World Fresh, such activity substantially and um easonably inte1 feres with its use and enjoyment of the leased ploperty and damages its business 15 Plaintiff filed a two count complaint on April 29, 2021, alleging the following causes of action (1) Trespass and (2) Private Nuisance (m the alternanve) In response, Defendant filed a motion to dismiss pursuant to Virgin Islands Rules of Civil Procedure 12(b)(6) on September 7, 2021, asserting that Plaintiff failed to state a claim f01 which relief can be gianted On Septembei 28, 2021, Plaintiff filed their first amended complaint that was subsequently followed by Defendant 3 identical motion to dismiss filed on July 14, 2022 On August 1, 2022, Plaintiff responded with an opposition to the motion 11 LEGAL STANDARD 116 Virgin Islands Rule of Civil Procedure 12(b)(6) governs motions to dismiss for failure to state a claim upon which relief can be granted See lels Wzllzams v Mapp, 2017 V I Supreme LEXIS 35 at *1 l 2017 WL 2998939 (V 1 July 14 2017) Virgin Islands Rules ofCiVil Procedure Rule 8(a) governs the general rules of pleadings See V I R Civ P 8(a)(2) Rule 8(a)(2) prescribes, in pertinent part, that a pleading that states a claim for relief must contain a short and plain statement of the claim showing that the pleader is entitled to relief See 1d Additionally, Rule 8 expressly states that the Virgin Islands is a notice pleading jurisdiction, See V I R CiV 2 World Fresh Market LLC v Martha Jolly Cite as 2022 V I Super 75U Case No ST 21 CV 00163 Memorandum Opinion P 8(a) Therefore, under the Rule 8(a) standard, a complaint is permitted so long as it adequately alleges facts that put an accused party on notice of claims brought against it See lels Wzllzams 1 Mapp 67 VI 574 585 (2017) at *4 III LEGAL ANALYSIS 117 Defendant s motion to dismiss will be evaluated against the First Amended Complaint filed on September 28, 2021 Defendant argues the complaint should be dismissed for failure to state a claim upon which relief can be granted pursuant to V I R Civ P 12(b)(6)because it suffers fiom a lack of facts to establish the allegations 118 Defendant indicates three pleading deficiencies in the complaint First, she argues the complaint has set forth bare bones assertion that [she] has created a piivate nuisance and lacks any facts to establish that allegation'; second, the Plaintiff does not have standing because the leased premises are utilized in common by both her and the Plaintiffz; and third, the cause of action for tiespass contains conclusory statements that do not sufficiently set forth a claim 3 Defendant agues the Complaint must be dismissed because they have failed to put forth any facts to establish that allegation T0 supp01t he1 motion, Defendant relies on Boyd v Latalladz, 8 VI 173 177 79 (V I Mun Feb 17 1971) by arguing that Plaintiff must allege certain elements that have been long established in Virgin Islands case law, however, failed to do so As a reference point, Defendant applied the Restatement of Torts § 826 828 standard which states that ‘an intentional invasion of another 3 interest in the use and enjoyment of land is unreasonable and the actor is liable when three conditions are met (1) the harm is substantial; (2) the particular use 0r 1 Defendant 5 Motion to Dismiss Amended Complaint, p 2 7 Defendant 5 Motion to Dismiss Amended Complaint, p 6 3 [bid 3 World Fresh Market LLC v Martha Jolly Cite as 2022 V I Super 75U Case No ST 21 CV 00163 Memorandum Opinion enjoyment inferred is well suited to the locality; and (3) the actor s conduct is unsuited to the character of that locality Latalladz supra Defendant alleges that Plaintiff failed to provide any facts that support an allegation that Defendant s actions substantially harmed and unreasonably interfered with its use and enjoyment of the leased premises Additionally, Plaintiff failed to set forth any fact to show her conduct is unfit to the character of Pueblo Long Bay 119 Defendant next asserts that it appears that a cause of action for private nuisance ordinaiily contemplates that the Plaintiff and Defendant usually have interests in diffelent, adjoining properties According to Defendant, Plaintiff does not have standing to maintain a cause of action for private nuisance because the leased premises are utilized in common by both parties Defendant is incorrect 1110 Defendant further alleges that the cause of action for trespass contains conclusory statements that do not sufficiently set forth a claim In her motion, Defendant relies on Sewer v Hamzlron 2013 WL 12560425 1 (V I Super 2013) and the Restatement (Second) ofTorts § 158 which states that one has a burden of proving that the defendant intentionally (a) entered land in the possession of anothe1 or caused a thing or a thi1d peison to do so, (b) remained on the land, or (c) failed to remove from the land a thing which he was under a duty to remove A Plaintiff has adequately plead sufficient facts to support their claim for trespass against Defendant 1111 The elements of a civil trespass claim4 are not settled in the Virgin Islands Code Nevertheless, courts in the Virgin Islands recognize civil trespass and have acknowledged that all jurisdictions recognize a cause of action against one who intentionally enters onto the property of another, intentionally places something on the property of another without permission, or 4 Trespass is defined in the criminal section of the V I Code as ‘the unauthorized entry on the land of another 14 V I C § 1741 4 World Fresh Market LLC v Martha Jolly Cite as 2022 V I Super 75U Case No ST 21 CV 00163 Memorandum Opinion intentionally lemoves something from the property of another without permission Basszl v Klein, 75 VI 19 33 2021 VI SUPER 88 In Anduze v Leader 63 VI 347 353 (VI Super Ct 2015) at *4, the Superiox Court of the Virgin Islands performed 21 Banks analysis to determine the soundest rule for trespass for the Virgin Islands A defendant will be liable to a plaintiff for trespass if the defendant (I) intentionally enters onto the plaintiffs property without the plaintiffs permission; (2) remains on plaintiff‘s property without plaintiff’s permission despite being obligated to leave; (3) places something on the plaintiff’s property without the plaintiff s permission or (4) removes something from the plaintiff‘s propeity without the plaintiffs pennission 1112 InAZleynei Dzageo USVI Inc 63 VI 384 417 (VI Super Ct 2015) the Superior Court 1ecognized intentional trespass and negligent trespass as separate torts The Court adopted the definition of intentional trespass from the Restatement (Second) of Torts One is subject to liability to anothe1 f01 trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in possession of the other, 01 causes a thing or third peison to do so or, (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove 5 1113 In this matter, Count One alleges that Jolly intentionally entered the Plaintiff’s property and continues to remain there against Plaintiff’s will World Fresh did not authorize JOlly to set up and operate he1 business on its property Despite Plaintiffs demand, Defendant refused to leave the property Finally, Defendant 5 continuous presence on Plaintiff’s premises interferes and disturbs Plaintiff’s rightful possession of the leased propeity 1114 Jolly s contention that World Fresh knowingly and willfully consented to her continuous presence on its premises because of the length of time she has conducted her business at Pueblo is 3 See Restatement (Second) of Torts § 158 5 World Fresh Market LLC v Martha Jolly Cite as 2022 V I Super 75U Case No ST 21 CV 00163 Memorandum Opinion illusory Jolly concludes that World Fresh 5 claim is Vitiated She is mistaken 1115 Comment on Clause (b) of the Restatement (Second) of Torts § 158 (1965) states that a trespass on land may be by a failure of the actor to leave the land of which the other is in possession, or a part of such land If the possessor of the land has consented to the actor's presence on the land, his failure to leave after the expiration of the license is a trespass (see §§ 171 and 176) unless his continued presence on the land is otherwise privileged, or unless it amounts to a disseisin (see § 162, Comment c) Id So too, if the actor has intruded in the exercise of a privilege conferred by law irrespective of the possessor's consent, he becomes a trespasser by remaining upon the land after the purpose 1°01 which the privilege has been given has been accomplished Id 1116 If the actox's entry was unprivileged, his remaining on the land may at the option of the possessor be heated as an aggravation of the original trespass of entering the land 01, unless it amounts to a disseisin, as a continuing t1 espass which confers on the possessm a series of rights of action, unless and until the actor by his continued presence on the land disseises its possessor 0r acquires an easement in it Id An unprivileged remaining on land in anothel's possession is a continuing trespass 1°01 the entire time during which the actor wrongfully remains Such a continuing trespass is to be distinguished from a series of separate tiespasses on land 1117 Theiefore, the comment on Clause (b) brings this Court to the conclusion that a defendant does not need to be a trespasser immediately following an unlawfiJl conduct It can transition into one after it loses its privilege to occupy the land Applying this standard to the present case, even if Jolly had an implied authorization to set up and operate her business on World Fresh s premises, she lost it after she was requested to leave the property Assuming Jolly was a legitimate licensee at Pueblo before the dispute occurred, she lost her status quo after World Fresh formally required 6 World Fresh Market LLC v Martha Jolly Cite as 2022 V I Super 75U Case No ST 21 CV 00163 Memorandum Opinion her to stop operating her stand and leave the premises The latter request transitioned her to a status of tiespasser which gave rise to Plaintiff’s complaint 1118 Accepting Plaintiff’s allegations that Jolly intentionally entered World Fresh 3 property without permission and remained there against Plaintiff’s will, Count One sufficiently alleges a trespass claim In conclusion, Defendant has failed to show how Plaintiff did not comply with the standards of Rules 8 and 12(b)(6) of the Virgin Islands Rules of Civil Procedure Theref01e, Defendant’s motion to dismiss Plaintiff‘s amended complaint will be denied as to Count One B Plaintiff has adequately pled sufficient facts to support their claim for private nuisance against Defendant 1119 Count Two alleges a nuisance claim Jolly argues that World Fresh may be just irritated or annoyed with her presence She further argues that her conduct and presence on the property was not substantial 0r unreasonable in its nature With respect to private nuisance, the statutory piovision auth01izing private nuisance actions, 28 V I C § 331, provides in its pertinent part that any person whose piopeity is affected by a private nuisance, or whose personal enjoyment theieof is in like mannei thereby affected, may maintain an action for damages theref01 ’Bell v Radclzffla, 2015 WL 5773561 at *9 (V I Supei Ct Apr 30 2015) In Bermudez v Virgin Islands Telephone Corporatzon 54 VI 174 180 93 (Super Ct 2011) the Superior Couit concluded that a private nuisance is an invasion of another 5 interest in private use and enj oyment of land 6 Bermudez, 54 V I at 193 (quoting Restatements (Second) of Torts § 821D); accord Bluebeard s Castle Inc 44 VI at 252 Torres, 13 VI at 455 Additionally, that invasion must cause significant harm [ ] 6 Citing 1 V I C § 4 the Bermude court explained that Virgin Islands courts have been required for many years now to turn to the Restatements in the absence of ‘local law 54 V I at 192 However, the Court explained, local law relating to private nuisance is not absent as a statute is in place Id Thus, rather than blindly relying on the Restatements the Be) mudez court resorted to the Restatement as an interpretive guide after carefully outlining Virgin Islands legal history, local cases, and applicable law 7 World Fresh Market LLC v Martha Jolly Cite as 2022 V I Super 75U Case No ST 21 CV 00163 Memorandum Opinion involving more than slight inconvenience or petty annoyance Bermudez, 54 V I at 193 The mere fact that an interference in the use and enjoyment of another's land is found to exist does not mean that an action for private nuisance will lie See Laralladz at *177 In determining whethei an interference is sufficient to amount to a private nuisance, the question which must be answeied is whether reasonable persons generally, looking at the Whole situation impartially and Obj ectively would consider it unreasonable ’ Id A number of factors are to be considered in making such a detennination, including the gravity of the harm and the utility of the conduct See Restatement of Torts § 826 Comment b ${20 Sections 826 828 Restatement (Second) of Torts have developed a balancing test referied to as Gravzty vs Utzlzty, which provides that an intentional invasion of another's interest in the use and enjoyment of land is unreasonable and the actor is liable when (a) the harm is substantial; (b) the particular use or enjoyment interfered with is well suited to the cha1acter 0f the locality; and (c) the actor's conduct is unsuited to the cha1acte1 of that locality Latalladz at *178 $121 With respect to the elements of plivate nuisance, World Fresh alleges that Jolly is liable because she (1) sets up and operates the stand adjacent to the World Fresh 5 leased property that substantially and unreasonably interferes with the Plaintiff’s use and enjoyment of the propeity7, (2) lacks authorization to operate the stand, lacks a business license and certification by the Viigin Islands Department of Healths, (3) sells the same type of produce, fruits and vegetables that are sold by World Fresh9, and (4) causes parking spots and property leased by the Plaintiff to be occupied without permission or right '0 7FustAmended C0mplamt( FAC ) pm as 44 45 8 FAC paras 12 13 15 16 22 23 44 9FIIstAmended C0mplamt( FAC ) paws 14, 19 ‘0 Fust Amended C0mplamt( FAC ) paras 17 8 World Fresh Market LLC v Martha Jolly Cite as 2022 V I Super 75U Case No ST 21 CV 00163 Memorandum Opinion 1122 These allegations are sufficient to support a private nuisance claim Unauthorized placement and operation of a private business on competitor 3 property is an invasion of the landowner s private use and enjoyment of land Additionally, the sale of similar goods to those that are sold by World Fresh on their leased premises interferes with their peaceful conduct of business Therefore, elements of the private nuisance are fulfilled 1123 In weighing the gravity of harm with the utility of conduct, Plaintiff was able to establish each factor of the test in its pleading Defendant s unauthorized business activity on Plaintiff’s piemises creates a competition that harms Plaintiff’s business Although Defendant engages in business similar to Plaintiff’s, like selling groceries and other produce to the general public, her conduct does not suit the character of the locality because her stand is in a parking lot Plaintiff’s business, on the other hand, encompasses sale of goods within the walls of a la1 ge commercial building which is in exclusive possession of the Plaintiff As indicated above, Jolly is a private and presumably independent self employed vendor that sells produce under an open air ${24 With 1egard to firmly established definition of a private nuisance in the Virgin Islands common law, Defendant erroneously drew a conclusion from the Latalladz case by theorizing that a concept of separate properties is an essential element in order to have standing in a nuisance claim This theory is implausible because the requirement of separate but adjoining pioperties has not been anchored in currently effective case law or relevant statutes This Court affirms that one does not need to have a sepaiate or different, but adjoining property to create a private nuisance Neither does the Court agree that Jolly was a co tenant on the premises Although many cases involving private nuisance claims involve conflicting neighbors, applying this narrow standard will create a void and provides no solution for claims of similar nature as the matter sub yttdzce The result of this legal theory would undermine a principle of liability for creating a private 9 World Fresh Market LLC v Martha Jolly Cite as 2022 V I Super 75U Case No ST 21 CV 00163 Memorandum Opinion nuisance where a random passerby or a Visitor (regardless of their status) remain unpunished for their legal wrongdoing in disturbing one’s enjoyment of land due to the fact that they do not own or possess a separate property Therefore, based on the above stated principles, Defendant s motion to dismiss private nuisance, Count Two is denied as well IV CONCLUSION 1125 In accordance with the analyses above, the Court will deny Defendant s motion to dismiss Plaintiffs First Amended Complaint An Order consistent with this Opinion shall be entered Dated Septemberé 2022 0 ’/ I .l 1 /I / (4 W4 Rer ee ’u bs Carty , I 6’ Judge of the nperior Court of the V in Islands ATTEST Tamara Charles Clerk of th%\ B I {37 Latoya Camacho Court Clerk Supervis01 09 / 021/fi 10  IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St Thomas/St John % WORLD FRESH MARKET LLC Case Number ST 2021 CV 00163 Plaintiff V Action Nuisance and Trespass MARTHA JOLLY PACQUETTE Defendant NOTICE OF ENTRY OF A MEMORANDUM OPINION AND ORDER To Michael L Sheesley Esg , via email F1 ands E Jackson, Jr Esg Via email Please take notice that on September 02, 2022 a(n) Memorandum Opinion and Order dated September 1, 2022 was/were entered by the Clerk in the above titled matter Dated September 02, 2022 Tamara Charles Clerk of the Court B3 M C Aylah Charleswell Court Clerk 1