Frank C. Pollara Group, LLC v. Ocean View Investment Holding, LLC, 62 V.I. 758

Background

Lucy Cheng and Mait Dubois (managers of OMEI and Ocean View) controlled a layered investor structure that funded Southgate Development Group (SDG) to develop "Southgate Crossing" on St. Croix; Cheng represented investor funds and directed project decisions.
Contractor Frank Pollara bid and contracted (Sept. 2008) to construct the entrance; Cheng, Dubois, Willis told him permits were in place though they were not. Work began and Pollara was served with a stop order for lack of permits.
Cheng and Dubois repeatedly represented the project was proceeding, asked Pollara to obtain permits and do extra work, and promised payment or equity (25%)—while privately planning to flip the property rather than develop it and then foreclosing to eliminate others’ interests.
Pollara performed additional work, obtained required permits, and was not fully paid; he filed suit alleging quantum meruit/unjust enrichment and intentional or negligent misrepresentation; jury awarded compensatory and punitive damages.
Appellants moved for summary judgment invoking the gist-of-the-action (barred-by-contract) doctrine; District Court denied the motion because Appellants disclaimed being parties to the contract; Appellants did not renew that argument in Rule 50 motions after trial.
On appeal, the Third Circuit held the summary-judgment denial was generally unreviewable post-trial unless it raised a purely legal question; the court affirmed the denial of relief from the verdict and rejected Appellants’ inconsistency challenge as waived.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denial of summary judgment based on gist-of-the-action doctrine is reviewable on appeal	Pollara: gist-of-action applies under V.I. law and does not bar his tort claims	Appellants: District Court erred by refusing to apply gist-of-the-action doctrine at summary judgment	Denial not reviewable because Appellants failed to renew the argument in Rule 50 motions and the issue involved disputed facts (not a purely legal question)
Whether the jury verdict was inconsistent (intentional misrep. as to some defendants and negligent as to others)	Pollara: verdict should stand; factual findings support mixed-liability findings	Appellants: inconsistent findings (e.g., Cheng intentional precludes OMEI negligent) warranted relief	Appellants waived the inconsistency objection by failing to object before the jury was discharged; court declined to reach merits

Key Cases Cited

Addie v. Kjaer, 737 F.3d 854 (3d Cir. 2013) (explains gist-of-the-action application under Virgin Islands law and requires fact-intensive inquiry)
Ortiz v. Jordan, 562 U.S. 180 (2011) (denial of summary judgment is generally not reviewable post-trial unless it presents a purely legal issue resolvable on undisputed facts)
Pediatrix Screening, Inc. v. TeleChem Int’l, Inc., 602 F.3d 541 (3d Cir. 2010) (discusses preservation and whether gist-of-the-action can be reviewed on appeal)
E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187 (3d Cir. 2001) (equity prevents a non-signatory from claiming contract benefits while disclaiming burdens)
eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10 (Pa. Super. Ct. 2002) (describes gist-of-the-action as preserving the distinction between contract and tort)
Glazer v. Chandler, 200 A.2d 416 (Pa. 1964) (policy basis that tort recovery should not supplant contract remedies)