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NOT FOR PUBLICATION SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX REVOCABLE TRUST represented by MAHMOUD SHARMOUJ and ZILA SHARMOUJ, Plaintiffs, v. OSU BUCKEYE, LLC, Defendant. SX-09-CV -591 ACTION FOR INJUNCTION, BREACH OF CONTRACT, EVICTION, AND DAMAGES JURY TRIAL DEMANDED MEMORANDUM OPINION BEFORE THE COURT is Plaintiffs' Motion Requesting Emergency Hearing, filed July 29,2013, as well as Plaintiffs' Motion For Reconsideration and to Set Aside Order, filed May 16, 2013. Because both motions essentially seek the same result- setting aside an order and entry of final judgment incorporating the parties' mediated settlement agreement-the Court will consider both motions together. For the reasons stated below, the motion to reconsider will be denied and the motion for hearing will be granted in part. BACKGROUND Plaintiffs, owners of I K Estate Little Princess, commenced this action in December 2009, alleging that their tenant, Defendant OSU Buckeye, LLC, had breached the terms of a commercial lease agreement that required OSU to "comply with all laws, [0 ]rders, ordinances and other public requirements." (Comp\. ~ 3, filed Dec. 9, 2009.) OSU operates an automobile repair and tire and battery sales business, Target Tire, on Plaintiffs' property. (Stmt ofStip. Facts ~ I, filed Nov. 8, 2010.) Plaintiffs allege in their Complaint that OSU caused or allowed motor oil and other petroleum products to spill on the premises in violation of Virgin Islands law, resulting in the Virgin Islands Department of Planning and Natural Resources giving OSU notice Sharmouj v. OSU Buckeye, LLC SX-09-CY-S9\ MEMORANDUM OPINION Page 2 of7 of the violation and a deadline to remedy it. (Compl. ~~ 5-6.) When OSU failed to remedy the violation, Plaintiffs filed this suit seeking injunctive relief and damages for breach of the lease agreement. ld. ~~ 10-11 . In its Answer, OSU denied responsibility for the oil spills, alleged that any contamination predated the lease agreement, and counterclaimed for damages related to the allegedly pre-existing contamination. (Answer & Countercl., filed Jan. 13, 20 I 0.) In an April 7, 20 II Memorandum Opinion and Order, the Court denied the Plaintiffs' motion for summary judgment as well as OSU's cross-motion for summary judgment, finding that neither party had met their burden of showing that no material facts remained in dispute. Both parties then agreed that referral to mediation was appropriate, which the Court subsequently ordered. In a Mediation Report filed on January 27, 2012, the Mediator informed the Court that the parties had resolved their differences and would be submitting documentation within thirty days to implement settlement. When the thirty-day deadline passed without further notification from the parties, the Court sua sponte entered an order dismissing this matter based on the mediation report, but also retained jurisdiction for sixty days so that either party could alert the Court if settlement was not completed. (Order, entered Mar. 14,2012.) Approximately a month after the March 14, 2012 Dismissal Order, Plaintiffs moved the Court to reopen the case, claiming that OSU had "failed to comply with its obligation under the Settlement Agreement." (Mot. Requesting Reopening of Case at I, filed Apr. 18,2012.) In an April 30, 2012 Order, the Court granted that motion, reopened the case, and scheduled a hearing for May 17, 20 I 2. At the May 17, 2012 hearing, the parties requested a continuance, indicating that they might be able to resolve any remaining differences. (R. of Proceedings at I, filed May 17, 2012.) The Court granted the request and rescheduled the hearing for May 31, 2012, ld. At the May 31, 2012 hearing, Plaintiffs orally moved the Court to enter judgment based on the parties' settlement Sharmou} v. OSU Buckeye. LLC SX-09-CY-591 MEMORANDUM OPINION Page 3 of7 agreement and requested that OSU be held in contempt for its failure to adhere to the settlement agreement. Both oral motions were subsequently reduced to writing. (Amended Petition for Remedy, filed on May 31, 2013; Amended Motion Requesting Sanctions Against Defendant, filed June 5, 2013.) OSU opposed Plaintiffs' motion for sanctions, noting that the parties' agreement was not embodied in a court order and therefore OSU did not disobey any court order. (Def.'s Response to Amended Motion for Sanctions at I, filed June 15,2013.) Subsequently, Plaintiff filed a "Motion Requesting Additional Sanctions [a]nd Request for Writ of Execution" on December 7, 2012, asking the Court to sanction OSU for allegedly failing to adhere to the settlement agreement. In a May 13, 2013 Order, the Court denied Plaintiffs' motion for sanctions and writ of execution, explaining that the Court lacked jurisdiction to enforce the terms of the settlement agreement since the parties did not request that the Court incorporate the settlement agreement into a final judgment. (Order, entered May 13, 2013.) Plaintiffs then moved the Court to reconsider and set aside the May 13, 2013 Order, noting that the Court had ordered the case reopened within the sixty-day deadline allotted. (Mot. for Reconsideration and to Set Aside Order, filed May 16,2013.) OSU opposed reconsideration, asserting that this matter was closed and that the Court lacked jurisdiction to take further action. (Response to Mot. for Reconsideration, filed June 10, 2013.) Finally, Plaintiffs moved for an emergency hearing, claiming that OSU was irreparably harming Plaintiffs by selling off Plaintiffs' property. (Mot. Requesting Emerg. H'rg, filed July 29, 2013.) OSU opposed the emergency motion, claiming that the items being sold were business assets of Target Tire, and not fixtures of the land, which OSU purchased from Plaintiffs in 2007, and arguing that the Court lacked jurisdiction over any dispute related to the sale of the business assets because ownership of those assets were not encompassed within any claim Plaintiffs' asserted in this lawsuit. Sharmouj v. OSU Buckeye. LLC SX-09-CV-59J MEMORANDUM OPINION Page 4 of7 (Response to Mot. Requesting Emerg. H'rg 3-4.) To date nothing further has come before the Court. DISCUSSION Because the parties dispute whether the Court can take further action, the Court must assure itself that it continues to have jurisdiction in this matter. In opposing Plaintiffs' reconsideration motion, OSU correctly points out that Plaintiffs' motion failed to identify what authority their motion is based on. (Response to Mot. for Reconsideration 1-2.) OSU contends that the Court's authority to reconsider the May 13,2013 Order is based on Superior Court Rule 50, which incorporates Federal Rules of Civil Procedure 59 through 61, and "empower[s] the court to set aside a judgment for good cause shown." Jd. at I (internal quotation marks and citation omitted). That contention would be correct if the Court's March 14, 2012 Dismissal Order ripened into a final order. Because the March 14,2012 Dismissal Order expressly retained jurisdiction for sixty days to allow either party to notify the Court "in the event settlement is not completed," (May 14, 2013 Order at I), that order constitutes a conditional dismissal that would not become "final until the fixed time period expire[ d] without an attempt by either party to reopen the matter." Judi 's o/St. Croix Car Rental v. Weston, 49 V.I. 396,401 (2008). Because Plaintiffs filed their Motion Requesting Reopening of Case on April 18, 2012, within the sixty- day period, the Dismissal Order never ripened into a final order. Moreover, the Court's April 30, 2012 expressly reopened this case. Accordingly, there is no judgment or final order in this case and therefore the Court has jurisdiction to take further action. Since there is no judgment or final order, OSU's contention that Superior Court Rule 50 governs is incorrect. Superior Court Rule 50 governs the granting of relief from judgments or final determinations. See Island Tile & Marble, LLC v. Bertrand, 57 V.I. 596, 615-16 (V.1. 2012) Sharmouj v. OSU Buckeye, LLC SX-09-CV -591 MEMORANDUM OPINION Page 5 of7 (holding that· Superior Court Rule 50 governs "a court's final detennination of the rights and obligations of the parties in a case or , , . any order from which an appeal lies," (internal quotation marks, emphasis, and citation omitted», Here, the order Plaintiffs seek to have reconsidered is not a final order, Therefore, Local Rule of Civil Procedure 7,3, applicable through Superior Court Rule 7, governs Plaintiffs' motion, Pursuant to Rule 7.3, the moving party must demonstrate either an intervening change in controlling law, new evidence, or the need to correct clear error or prevent manifest injustice, LCRi 7.3,1 As Plaintiffs have not referred the Court to any change in controlling law nor identified evidence newly discovered, the Court concludes that the basis for reconsideration is the clear error or manifest injustice standard, a point Plaintiffs appear to acknowledge in their reply to OSU' s opposition to reconsideration. (See Reply to Response to Mot. for Reconsideration and Request for Oral Arg, 2, filed June 12, 2013 ("It is obvious, , , that there is the need to correct clear error or to prevent manifest injustice." (capitalization and emphasis omitted».) In the May 13, 2013 Order, the Court denied Plaintiffs' Motion Requesting Additional Sanctions and Request for Writ of Execution because "the parties never filed a settlement agreement with the Court that would allow this Court to impose sanctions upon Defendant for breaching any agreement the parties made." (Order 1-2, entered May 13,2013,) While Plaintiffs are correct in pointing out that they did subsequently attach a copy of the parties' mediated settlement agreement to their Amended Petition for Remedy filed in Court at the May 31, 2013 hearing, (see Mot. for Reconsideration and to Set Aside Order 2), they fail to realize that they only filed a copy of that agreement after they had already moved for sanctions. While "[e]very 1 As Plaintiffs filed their reconsideration motion three days after the May 13, 2013 Order was entered, their motion is timely under Local Rule of Civil Procedure 7.3 Sharmouj v. OSU Buckeye. LLC SX-09-CY-591 MEMORANDUM OPINION Page 6 of7 court of the Virgin Islands shall have power to punish by fine or imprisonment ... disobedience or resistance to its lawful writ, process, order, rule, decree, or command," 14 V.I.C. § 581(3), here OSU's failure to adhere to the terms of the settlement agreement, even if true, cannot constitute disobedience of an court order since the Court never incorporated the settlement agreement into an order or decree. In short, there was no order OSU could have disobeyed. For these reasons, Plaintiffs have not shown that the Court's May 13,2013 Order is clearly erroneous nor shown how that Order resulted in manifest injustice warring reconsideration. "A motion for reconsideration is not a second bite of the apple," nor is it "a vehicle for registering disagreement with the court's initial decision . . . or for raising arguments that could have been raised before but were not." In re Infant Sherman, 49 V.1. 452, 457-58 (V.1. 2008) (internal quotation marks and citation omitted). Accordingly, Plaintiffs' motion to reconsider will be denied. Also pending before the Court is Plaintiffs' Motion Requesting Emergency Hearing. In addition to reiterating their argument that the Court's May 13,2013 Order is clearly erroneous, Plaintiffs also seek a hearing on their Amended Petition for Remedy filed at the May 31, 2013 hearing. Because the Court's conditional dismissal never ripened into a final order, this matter remains open and unresolved. But as OSU points out in its opposition to Plaintiffs' motion for reconsideration, the parties' mediated settlement agreement is now a contract. (Response to Mot. for Reconsideration 7 ("Settlement agreements-----even those entered into under the auspices of court-sanctioned confidential mediation-are simply contracts.").) The parties did not initially ask the Court to incorporate that contract into a final order or judgment. Thus, the question remaining before the Court is whether the parties desire to have their agreement incorporated into a final order or judgment so that the Court may enforce its terms or whether they intend to file a separate action for breach of contract. See Judi's of St. CrOix, 49 V.1. at 406 ("[I]f the Sharmouj v. OSU Buckeye, LLC SX-09-CV-591 MEMORANDUM OPINION Page 7 of7 parties wish the trial court to have independent jurisdiction to impose sanctions for breach or failure to perform a mediated settlement agreement under [Superior Court) Rule 40(t)(3), they must take the affirmative step of filing the settlement agreement with the court by consent or as required by law so the court can address the settlement or incorporate it into the dismissal order.") For that reason, the Court agrees that a hearing is appropriate particularly as the parties appear unable to bring this matter to resolution. However, because Plaintiffs, in their Reply to OSU's opposition, subsequently modified their hearing request by omitting the "emergency" portion of their motion, requesting instead that the Court hold a hearing at its "earliest convenience in order to resolve all pending issues in this case," (Reply to Response to Mot. Requesting Emerg. Hr'g 2, filed Aug. 15,2013), the Court will deny the emergency portion of Plaintiffs' motion. CONCLUSION For the reasons stated above, the March 14, 2012 Dismissal Order never ripened into a final order because Plaintiffs invoked the Court's jurisdiction within the timeline provided in that Order. Because no order of the Court incorporated the parties' mediated settlement agreement, however, Plaintiffs have not shown that the Court's May 13, 2013 Order denying their request for sanction was clearly erroneous. Thus, the motion to reconsider is denied. However, because this matter remains pending, the Court will grant Plaintiffs' emergency motion for hearing on their Amended Petition for Remedy. An order consistent with this ATTEST: