S. Ct. Civ. No. 2010-0026

In a suit and counterclaim arising out of an unconsummated transaction involving sale of a hotel, the Superior Court abused its discretion in dismissing the buyer's action based upon his failure diligently to prosecute the case without first considering the factors governing this drastic form of relief, as set forth in Halliday v. Footlocker Specialty, Inc., 53 V.I. 505 (V.I. 2010), deciding the case on the merits rather than focusing on the sufficiency of the complaint under Rule 12(b)(6). The Superior Court also erred in granting summary judgment in favor of the defendant seller for recovery of the $100,000 earnest money deposit contemplated in the transaction. While there was no opposition on file against the seller's summary judgment motion seeking this relief, and hence those material facts set forth by the movant with record support are accepted as true, defendant nonetheless failed to show that plaintiff's failure to tender the earnest money deposit was a material breach under the contract for sale of the hotel, as amended by various addenda agreed to by the parties. There were material issues of fact on several issues, precluding entry of summary judgment. The orders dismissing the complaint and entering summary judgment on the seller's counterclaim are reversed, the Superior Court's refusal to reconsider these rulings is vacated, and the case is remanded for further proceedings consistent with this opinion.