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w . v i l l a no v a . e du/thir dc ir c uit_2012/580NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 11

- 4645

_____________ GRAND UNION SUPERMARKETS OF THE VIRGIN ISLANDS, INC; RED APPLE GROUP, INC.

v. LOCKHART REALTY INC, f/k/a/ H.E. LOCKHART MANAGEMENT, INC., Appellant

_____________

No. 11

- 1963

_____________ GRAND UNION SUPERMARKETS OF THE VIRGIN ISLANDS, INC.; RED APPLE GROUP, INC.

v. LOCKHART REALTY, INC., f/k/a H.E. LO CKHART MANAGEMENT, INC., Appellant

_____________

No. 12

- 1021

_____________ GRAND UNION SUPERMARKETS OF THE VIRGIN ISLANDS, INC.; RED APPLE GROUP, INC.

v.2 LOCKHART REAL TY INC., f/k/a H.E. LOCKHART MANAGEMENT, Inc., Appellant

_____________ On Appeal from the District Court of the Virgin Islands (D.C. No. 3

- 01

- cv - 00044 ) District Judge: Honorable Juan R. Sanchez

_______________ Ar gued May 11 , 2012 Before: CHAGARES, JORDAN , and COWEN, Circuit Judges

. (Filed : August 15, 2012 ) Gregory H. Hodges, Esquire (Argued) Justin K. Holcombe, Esquire Michael C. Quinn, Esquire Dudley, Topper & Feuerzeig 1000 Frederiksberg Gade P.O. Box 756 St. Thomas, VI 00804 Counsel for Appellant Henry F. Reichner, Esquire (Argued) Reed Smith 1650 Market Street 2500 One Liberty Place Philadelphia, PA 19103 Karin A. Bentz, Esquire Law Offices of Karin A. Bentz 18 Dronningens Gade Suite 8 St. Thomas, VI 00802 Counsel for Appellees

_______________ OPINION

_______________3 CHAGARES , Circuit Judge Lockhart Realty Inc., formerly H.E. Lockhart Manage ment, (“Lockhart”) appeals from the District Court’s judgment in favor of , and award of prejudgment inte rest and attorneys’ fees to , the plaintiff , Grand Union Supermarkets of the Virgin Islands, Inc. (“Grand Union”). .

1
I. For the reasons discussed below, w e will reverse .

Because we write solely for the part ies, we recount only the facts that are relevant

t o our disposition. This case, and three related cases involving the same parties, arose out of the destruction of a commercial structure in St. Thomas owned by Lockhart (“the Building”) during Hurricane Marilyn on September 15, 1995. At the time, Lockhar t was leasing the Building to Grand Union. Pursuant to its lease from Lockhart for the Building (“the Lease”), Grand Union was required to insure the Building and to rebuild promptly at its own expense if the Building was damaged. When Hurricane Marilyn struck, Grand Union had self

- insured the property but had not taken out a separate insurance policy.
After Hurricane Marilyn destroyed the Building, Grand Union brought suit in the Virgin Islands Territorial Court in 1996 against Lockhart seeking, inter alia , a declaratory judgment that the Lease was still in force (“ Grand Union I

1 Grand Union is a wholly owned subsidiary of Red Apple Group, Inc. (“Red Apple”). In turn, Red Apple is owned by John Castimatidis. Red Apple was or iginally a plaintiff in this lawsuit but voluntarily dismissed its claims on the first day of trial. Hereinafter, Grand Union, Red Apple, and John Castimatidis will be referred to collectively as “Grand Union.” ”). In addition, Grand Union purchased retroactive insurance coverage from National Union Fire Insurance Co.4 (“National Union”) for the period of October 1, 1994 through October 1, 1995. Because the Building had already been destroyed at the time the policy was purchased , National Union insisted that Grand Union execute a side agreement providing that it would make no claims for losses to the Building relating to Hurricane Maril yn and would indemnify National Union in the event that the insurance company was compelled to make a payment to Lockhart. The insurance policy, therefore, was essentially purchased so that Grand Union could prove that it had fulfilled the terms of the Le ase. No twithstanding these efforts , i n 1997, Lockhart brought suit in the Virgin Islands Territorial Court against National Union and Grand Union for breach of the Lease, seeking $2.7 million in damages for Grand Union’s failure to rebuild the Building (“ Lockhart I The case at bar arose out of the settlement of ”). Grand Union I and Lockhart I

. Although National Union and Grand Union originally shared counsel in Lockhart I

We expect to enforce National Union’s rights under the let ter of undertaking and the indemnity agreement against Red Apple/Grand Union. Under those undertakings Red Apple/Grand Union has no claim to any insurance proceeds and will be required to indemnify and hold harmless National Union from any payments which it may be forced to make to [Lockhart]

. . . . , on December 16, 1998, National Union notified Grand Union in a letter that it wou ld retain its own attorney, negotiate with Lockhart separately, and seek indemnification from Grand Union should it be required to pay Lockhart. In relevant part, National Union’s letter stated:

This is to advise you that we intend to deal directly with [Lockhart] in regard to claims it may have against National Union’s policy proceeds, regardless of whether any further action is undertaken by [Lockh art] against National Union in the territorial court of the Virgin Islands. . . .5 In summary, National Union hereby disassociates itself from all previous actions taken by Red Apple/Grand Union in connection with its relationship with [Lockhart] and/or th e territorial court of the Virgin Islands. We reject any claim that Red Apple/Grand Union may make to insurance proceeds, and advise you that we will take steps to satisfy the claims [Lockhart] has against policy proceeds, and we will enforce all aspects of the indemnity agreement entered into by Red Apple Group and Grand Union on February 15, 1996. Joint Appendix (“JA”) 1143

- 44. In addition to that clear disassociation, National Union never paid any legal fees to Grand Union’s counsel. Accordingly , Lo ckhart and National Union began settlement negotiations and, o n March 1, 1999, entered into an agreement by which National Union agreed to pay Lockhart $2.7 million to reconstruct the Building and Lockhart released all claims against National Union (“Natio nal Union

- Lockhart Settlement”)

. Neither Lockhart nor National Union immediately informed Grand Union of their separate settlement. Meanwhile, Grand Union and Lockhart engaged in separate settlement negotiations and, on March 4, 1999, entered into a “ Me diated Settlement Agreement ” to settle Grand Union I and Lockhart I . The Mediated Settlement Agreement provid ed that (1) mutual releases would be exchanged, (2) Grand Union would pay Lockhart $35,000
and transfer to Lockhart its unused architectural plans for the Building, and (3) Grand Union would surrender its claim to the fiv e years remaining on the Lease. The parties executed a formal release the following day in which Grand Union released all claims against Lockhart and Lockhart released all claims a gainst both Grand Union and National Union.6 D ays after the Mediated Settlement Agreement , National Union brought suit against Grand Union in New York (“ New York Litigation

While National Union and Grand Union were settling t he ”) , seeking indemnification of the $2.7 million that it paid to Lockhart pursuant t o the National Union

- Lockhart Settlement. In settlement of that suit, on April 30, 2004, Grand Union paid $1.5 million to National Union in exchange for a release of all of National Union’s claims it

. New York Litigation

On January 3, 2005, the District Court dismissed Grand Union’s fraud and good faith claim s . T he District Court later denied Lockhart’s motion for summary judgment on the unjust enrichment claim , however, because “a reasonable juror could determ ine that Lockhart did not disclose to Grand Union that it had agreed to release its claims , on February 26, 2001, Grand Union filed this lawsuit against Lockhart. In its complaint, Grand Union alleged fraud, unjust enrichment, and breach of the covenant of good faith and fair dealing. Grand Un ion’s claims are based on Lo ckhart ’s failure to disclose the National Union

- Lockhart Settlement to Grand Union during their settlement negotiations. Because Lockhart had already released all claims against National Union before March 4, 1999 , Lockhart’s release of its claims against National Union in the Mediated Settlement Agreement was worthless. Thus, Grand Union maintains that Lockhart was unjustly enriched because it obtained Grand Union’s consideration in the Mediated Settlement Agreement in exchange for a release that was wort h less than Grand Union understood it to be . Grand Union claims that it was deceived because it settled under the mistaken belief that National Union would be included in the settlement and, as such, National Union would not turn to Grand Union for indemn ification.7 against National Union so that Grand Union would confer valuable consideration upon it in exchange for the dismissal of those very same claims.” JA 5. On December 13, 2010,

a jury found in favor of Grand Union on the unjust enrichment claim and awarded it $2.7
million in restitution. The District Court thereafter denied Lockhart’s renew ed motion for judgment as a matter of law or, in the alternative, for a new tria l , and awarded Grand Union pre judgment interest and attorneys’ fees. Lockhart timely filed this appeal.
II. The District Court of the Virgin Islands had diversity jurisdiction over this case pursuant to 48 U.S.C. § 1612(a) and 28 U.S.C. § 1332. See Edwa rds v. HOVENSA,
LLC

We review de novo the District Court’s denials of Lockhart’s motion for summary judgment and renewed motion for judgment as a matter of law

. , 497 F.3d 355, 357 (3d Cir. 2007). We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.

Stratechuk v. Bd. of Educ., South Orange

- Maplewood Sch. Dist. , 587 F.3d 597, 603 (3d Cir. 2009); Acumed LLC v. Advanced Surgical Servs., Inc. , 561 F.3d 199, 211 (3d Cir. 2009). Summary judgment should be rendered “ if the movant shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matte r of law.” Fed. R. Civ. P. 56(a ). “In making this determination, we must view the facts in the light most favorable to the nonmoving party and draw all infe rences in that party’s favor.” Stratechuk There is a similarly high standard for overturning a jury verdict on a renewed motion for judgment as a matter of law . Legal questions are reviewed de novo a nd the , 587 F.3d at 603 (quotation marks omitted).8 ju ry’s factual findings are reviewed to “ determine whether the evidence and justifiable inferences most favorable to the prevailing party afford any rational basis for the verdict.” Intermilo, Inc. v. I.P. Enters., Inc. , 19 F.3d 890, 892 (3d Cir. 1994). A court may grant a renewed motion for judgment as a matter of law “only if ‘the record is critically deficient
of t he minimum quantum of evidence’ to sustain the verdict. ” Acumed LLC , 561 F.3d at 211 (quoting Gomez v. Allegheny Health Servs., Inc. , 71 F.3d 1079, 1083 (3d Cir. 1995) ) . This Court must decide “whether the evidence is sufficient to sustain liability.” Id. (quoting Lightning Lube, Inc. v. Witco Corp. , 4 F.3d 1153, 1166 (3d Cir. 1993)). In doing so, the Court “may not weigh the evidence, deter mine the credibility of witnesses, or substitute its version of the facts for the jury’s version.” Id. (quoting Lightning Lube,
Inc.
III. , 4 F.3d at 1166).

Lockhart appeals the Dis trict Court’s denial of (1) its motion to dismiss or for summary judgment o n the unjust enrichment claim; (2) its renewed motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b) or, in the alternative, for a new trial pursuant to Federal Rule of Civil Procedure 59(a)(1)(A); and (3) its motion

to s trike Grand Union’s jury demand. Lockhart also maintains that Grand Union failed to prove damages and challenges the award of attorneys’ fees and prejudgment interest. Lockhart first argue s that the District Court should have dismissed Grand Union’s unj ust enrichment claim because it was dependant on proof of the same facts as the fraud claim that the District Court dismissed as issue precluded. Because we agree, we will reverse the judgment of the District Court.9 The District Court dismissed Grand Unio n’s fraud claim in this action on January 3, 2005. In the order of dismissal, the District Court held that Grand Union was collaterally estopped from arguing that Lockhart’s failure to disclose its settlement with National Union was fraudulent because Gra nd Union had raised the same argument in the New York Litigation and it had been rejected by the court . In the New York Litigation , defendant Grand Union alleged in a counterclaim that National Union had committed fraud by intentionally failing “to disclo se material aspects of its negotiation and settlement of the Lockhart cl aim to Red Apple/Grand Union.” JA 54. The New York Supreme Court analyzed Grand Union’s counterclaim as a fraudulent or tortious nondisclosure cause of action. Such a claim in New Y ork requires a showing that “(1) the defendant made a material false representation, (2) the defendant intended to defraud the plaintiffs thereby, (3) the plaintiffs reasonably relied upon the representation, and (4) the plaintiffs suffered damage as a res ult of their reliance.” Swersky v. Dreyer & Traub , 219 A.D.2d 321, 326 (N.Y. App. Div. 1996 ) (citation omitted). In addition, the plaintiff must prove that the defendant had a duty to disclose material information. Id. A duty to disclose arises where t here is a fiduciary relationship between the parties. Id. at 327. In addition, “[u]nder the ‘special facts’ doctrine, a duty to disclose arises where one party’s superior knowledge of essential facts renders a transaction without disclosure inherently

un fair.” Id. The New York Supreme Court found that National Union had no duty to disclose , and Grand Union had no actionable claim for fraud , because there was no fiduciary relationship between National Union and Gr and Union, a nd National Union did not have (quotation marks and citation omitted).10 “‘ superior knowledge of the essential facts, ’ ” which would have rendered the transaction without disclosure “‘ inherently unfair. ’ ” JA 54 (quoting Swersky , 219 A.D.2d at 327). National Union did not have superior knowledge b ecause it had advised Grand Union of its intention to deal directly with Lockhart “in regard to claims it may have against National Union’s policy proceeds” on December 16, 1998, months before the Mediated Settlement Agreement

. Id.

Although Grand Union’s fraud claim in the at 55. Acc ordingly, Grand Union w as on notice that National Union would settle separately wi th Lockhart , and Grand Union did not have an actionable fraud claim based on fraudulent nondisclosure. New York Litigation was aga inst National Union rather than Lockhart , the District Court nonetheless held that Grand Union’s fraud claim against Lockhart in this litigation was issue precluded because it depended on proof of the exact same facts as the fraud claim in the New York Lit igation

. In both cases, Grand Union would have had to prove that National Union or Lockhart had knowledge of essential facts that rendered the Mediated Settlement Agreement inherently unfair. 2

Issue preclusion is appropriately invoked if:

The question we decide now is whether the dismissal of the fr aud claim compelled dismissal of the unjust enrichment claim as well.

(1) the previous determination was necessary to the decision, (2) the identical issue was previously litigated, (3) the issue was decided in a decision that [was] final, valid, and on the merits, and (4) the party that is being precluded from relitigating the issue was adequately represented in the previous action.

2 Grand Union also argues that the Distric t Court erred in dismissing the fraud claim but Grand Union did not appeal that decision and that issue is not before this Court.11 Gonzalez v. AMR , 549 F.3d 219, 223 (3d Cir. 2008 ) (quoting Harrilal v. Black woo d , No. CIV. 619/1998, 2001 WL 1769735, at *4 (V.I. Terr. Ct. Dec. 13, 2001))

. The relevant elements of tortious nondisclosure in the Virgin Islands are the same as in New York, which are set forth above

. 3 No Virgin Islands statute provides an unjust enrichment cause of action. Instead,
p ursuant to 1 V.I.C. § 4, “[t]he rules of the common law, as expressed in the restatements of the law . . . shall be the rules of decision in the courts of the Virgin Islands . . . in the absence of local laws to the c ontrary.” See also Hefferman v. U.S. Virgin Islands

3 The Restatement (Second) of Torts § 551 (1) , which is applied in the Virgin Islands, defines tortious nondisclosure as foll ows: , No. 2009/0087, 2010 WL 4942160, at *2 (D.V.I. Nov. 30, 2010). Under the Restatement

One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matt er that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question. In turn, a duty to disclose exists where, inter alia , (b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading; and

. . . . (e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relat ionship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts. Id. § 551(2).12 (Th ird) of Restitution § 1 (2011), “[a] person who is unjustly enriched at the expense of another is subject to liabil ity in restitution.” The Restatement (Third) of Restitution § 13(1) specifies that the mistake th at leads to unjust enrichment can be induced by either fraud or material misrepresentation: A transfer induced by fraud or material misrepresentation is subje ct to rescission and restitution. The transferee is liable in restitution as necessary to avoid unjust enrichment. The comments explain that if the transfer is induced by an “innocent misrepresentation,” it “is subject to rescission only if the misreprese ntation was material.” Id. cmt c. 4 Thus,

to prevail on an unjust enrichment claim based on a mistake of fact , a plaintiff must prove (1) that a mistake of fact caused the plaintiff to confer a benefit upon another and (2) that the mistake was due to eith er fraud or an innocent but material misrepresentation . In addition, the court must conclude that equity require s the defendant to return the unjust benefit to the plaintiff. Cruse v. Callwood

4 Similarly, the Restatement (First) of Restitution § 28 (1937) provided that: , D.C. Civ. App. Nos. 2006

- 71 & 2006

- 76, 2010 WL 43817 3, at *6 (D.V.I. Feb. 3, 2010).

A person who has paid mon ey to another because of a mistake of fact and who does not obtain what he expected in return is entitled to restitution from the other if the mistake was induced: (a) by the fraud of the payee, or (b) by his innocent and material misrepresentation . . .

. Because the Restatement (Third) of Restitution was published after the District Court denied Lockhart’s renewed motion for judgment as a matter of law , we mention the relevant provisions from both the First and Third Re statements here. As applied to th is case, t here is no m aterial difference between them, however

.13 Not all of their elements are identical, but tortious nondisclosure and unjust enrichm ent claims share the element of material mistake of fact. In addition, where there is no fiduciary relationship, both causes of action require a showing that the defendant’s misstatement or omission rendered the transaction unfair or unjust. Although the Ne w York Supreme Court did not state it directly , it held that there was no material mistake of fact here because National Union’s knowledge of t he National Union

- Lockhart Settlement was not “superior k nowledge” of an “essential fact ” that rendered the transaction inherently unfair. Thus, with respect to the material mistake element of an unjust enrichment claim, Grand Union’s claim is barred by i ssue preclusion by the Court’s finding in the New York Litigation . As such, t he District Court erred in declining to dismiss the unjust enrichment claim. 5
Our decision in Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris,
Inc. , 171 F.3d 912 (3d Cir. 1999 ) , is instructive. In Steamfitters

In the tort setting, an unjust enrichment claim is essentially another way of stating a traditional tort claim (i.e., if defendant is p ermitted to keep the benefit of his tortious conduct, he will be unjustly enriched). . . . We can , the unjust enrichment and fraud claims both failed because they shared the element of proximate causation of damages and the plaintiffs failed to establish that element. Because the plaintiff could

not pr ove its fraud claim, we declined to afford it a roundabout route to recovery by way of unjust enrichment. We explained:

5 The other requirements for issue preclusion are also satisfied. T he New York Litigation was a final decision on the merits , the dismissal of the fraud claim was essential to the adjudica tion of Grand Union’s counterclaim, and Grand Union, which was a party to the New York Litigation , was adequately represented and had a full and fair opportunity to litigate the issue in that case.14 find no justification for permitting plaintiffs to proceed on their unjust enrichment claim once we have determined that the District Court properly dismisse d the traditional tort claims because of the remoteness of plaintiffs’ injuries from defendants’ wrongdoing. Id. at 936

- 37; see also Allegheny Gen. Hosp. v. Philip Morris, Inc. , 228 F.3d 429, 447 (3d Cir. 2000) (adopting the declaration in Steamfitters th at “[i]n the tort setting, an unjust enrichment claim is essentially another way of stating a traditional tort claim.”). 6 Likewise, in this case, Grand Union’s fraud and unjust enrichment claims both require proof that Lockhart’s nondisclosure was materi al , caused Grand Union to enter into the Mediated Settlement Agreement , and rendered the settlement unfair or unjust. Because the New York Supreme Court decided those questions in the negative, we conclude that the unjust enrichment claim should have been dismissed on the same basis as the fraud claim. Moreover, Grand Union ’s choic e to pursue the unjust enrichment claim on a tort

based theory of nondisclosure meant that its fraud and unjust enrichment claims were one and the same

. It is generally unders tood that tortious nondisclosure is a fraud claim based
on an omission rather than an affirmative misstatement. See Duquesne Light C o. v. Westinghouse Elec. Corp. , 66 F.3d 604, 612

- 13 (3d Cir. 1995) (discussing claim for tortious nondisclosure as a “fraud ulent omission claim”); Lightning Lube, Inc. , 4 F.3d at 1185 (same); Navarro v. Gov’t of the V.I.

6 Similarly, in Pirelli Armstrong Tire Corp. Retiree Me dical Benefits Trust v. Walgreen Co. , 631 F.3d 436, 448 (7th Cir. 2011), the Court of Appeals for the Seventh Circuit upheld the District Court’s holding that the dismissal of plaintiff’s fraud claim “took the unjust enrichment claim with it” because plain tiff failed to separately allege facts supporting the unjust enrichment claim. , 18 V.I. 473, 476

- 77 (D.V.I. 1981) (“[I]n15 certain circumstances nondisclosure is treated as a fraudulent misrepresentation[.]”);
Bortz v. Noon , 729 A.2d 555, 560 (Pa. 1999) (“The tort of intentional non

- disclosure has the same elements as intentional misrepresent ation except in the case of intentional non

disclosure, the party intentionally conceals a material fact rather than making an affirmative misrepresent ation.” (quotation marks omitted))

. Thus, by instructing the jury on tortious nondisclosure, the District Court conflated the fraud and unjust enrichment claims and asked the jury to decide a question that was already answered in the New York Litigation

We hold, therefore, that Grand Union’s unjust enrichment claim was ba rred by issue preclusion and should have been dismissed. Because we hold in favor of Lockhart on the basis of issue preclusion, we need not reach the other arguments that Lockhart raised in this appeal. . This confusion illustrates that the fraud and unjust enrichment claims

a re inseparable and that the unjust enrichment claim was an impermissible attempt at a second bite at the apple.

IV. In accordance with the foregoing, we will revers e the ju dgment of the District Court and remand for further proceedings consistent with this opinion.Grand Union Supermarkets of the Virgin Islands, Inc. and Red Apple Group, Inc. v. Lockhart Realty, Inc f/k/a H.E. Lockhart Management, Inc., No s . 11

- 1963 , 11

- 4645, 12

- 1021
JORDA N, Circuit Judge, concurring. I agree with the Majority’s conclusion that we should vacate the District Court’s December 30, 2011 judgment in favor of Grand Union on Grand Union’s unjust enrichment claim. However, I write separately because I believe that the District Court should have granted Lockhart’s cross - motion to dismiss Gr and Union’s unjust enrichment claim based on the parties’ agreement to release all claims arising out of the
Lease. As the Majority opinion correctly notes, Grand Union and Lockhart executed a formal release on March 5, 1999 (the “Release”). The Release provides, in pertinent part: Grand Union hereby releases, waives, and forever discharges any and all claims for which it and its respective agents, affiliates, parent companies, subsidiaries, representatives, attorneys, officers, directors, shareholders, employees, predecessors, successors, and assigns, ... may have or ever had or w ill have against [Lockhart] and its present and former agents, employees, officers, directors, shareholders, attorneys, predecessors, successors, and assigns ... arising out of or r elated to the Lease, including any and all claims that were asserted or could have been asserted in that certain action captioned Grand Union Supermarkets of the Virgin Islands, Inc. v. H.E. Lockhart Management, Inc. , Civil No. 50/1996, Territorial Court o f the Virgin Islands, and any claims that were asserted or could have been asserted in that certain action captioned H.E. Lockhart Management, Inc. v. National Union Fire Insurance Company of Pittsburgh, Inc., Red Apple Group and Grand Union Supermarket of the Virgin Islands, Inc. , Civil No. 909/1998, Territorial Court of the Virgin Islands.2 (Joint App. at 511.) Lockhart argues that the Release unambiguously bars all claims arising out of or related to the Lease, and , therefore, Grand Union’s unjust enric hment claim fails

. 1
T he Verified Complaint avers that “[Lockhart] fraudulently induced Grand Union to give up the Lease by failing to disclose that it had already settled the very sam e claims with [National Union], whom [Lockhart] knew was going to seek indemnification from Grand Union and Red Apple for the $2.7 million it pai d to [Lockhart]

. ” ( I d. at 71 (emphasis added)

. ) It also alleges that “[Lockhart]

– which already had be en paid $2.7
million from National Union

– received the benefit it b argained for (the Lease ), but Grand Union did not receiv e the benefit it bargained for

. ” ( I d. (emphasis added).) Those I agree.

1 “T he rules of interpretation that apply to contracts generally apply also to writings that purport to be releases.” Restatement (Secon d) of Contracts § 284 cmt. c. In interpreting a contract, we attempt to ascerta in the parties’ intent as “objectively manifested by them ” and, to “ make a preliminary inquiry as to whether the contract is ambiguous.” Sunshine Shopping Ctr. , Inc. v. Kmart Corp. , 85 F. Supp. 2d 537, 540 (D.V.I. 2000). We apply the “plain meaning rule, ” which “assumes that the intent of the parties to [the contract] is embodied in the writing itself.” Id. (internal quotation marks omitted) (quoting Hullet v. Towers, Perrin, Forster & Crosby, Inc. , 38 F.3d 107, 111 (3d Cir. 1994)). Moreover, we interpr et “[w]ords and other conduct ... in the light of all the circumstances, ” and give great weight to “ the principal purpose of the parties ” if it is ascertainable. Restatement (Second) of Contracts § 202(1). T he party pleading a release as an affirmative de fense bears “the burden of establishing its existence and meaning.” Eulo v. Deval Aerodynamics, Inc. , 430 F.2d 325, 328 (3d Cir. 1970). Once the party satisfies its burden , the burden then shifts to the party seeking to invalid ate the release to prove th at the release is unenforceable

. See Lloyd v. Hovensa, LLC , 369 F.3d 263, 274 (3d Cir. 2004) (“The burden of proving a generally applicable contract defense lies with the party challenging the contract provision.”); c f. Harris v. Green Tree Fin. Corp. , 18 3 F.3d 173, 181 (3d Cir. 1999) (“The party challenging a contract provision as unconscionable generally bears the burden of proving unconscionability.”).3 allega tions powerfully suggest that Gr and Union’s unjust enrichment claim against Lockhart relates to, and hence is barred by, the Relea se. Grand Union , however, argues that the Release does not foreclose its unjust enrichment claim because the Release is void on public policy grounds. To support that argument, it relies on the Restatement (Second) of Contracts § 195, which provides th at even if a contract unambiguously exempts a party from liability, it is unenforceable on public policy grounds if it attempts to “exempt[] a party from tort liability for harm

cause d intentionally or recklessly .” Restatement (Second) of Contracts § 195( 1). The problem with that argument, however, is that the jury made no factual findings on the issue of whether Lockhart acted inten tionally or recklessly when it did not disclose its settlement with National Union

. And the lack of findings on that issue is no surprise
because the District Court did not instruct the jury to address it

. 2

2 None of the District Court’s instructions asked the jury to decide whether Lockhart acted intentiona lly or recklessly when it did not disclose its settlement with National Union to Grand Union. In addition, there is no evidence in the appellate record demonstrating that Grand Union ever asked the District Court for such an instruction

– indee d, Grand Un ion’s proposed jury instructions contain no such request and Grand Union has not directed us to any evidence that it requested a special interrogatory. Thus, because the jury made no finding of fact on the issue of whether Lockhart intentionally or reckle ssly failed to disclose its agreement with National Union, and Grand Union provides us with no indication that it asked the District Court to charge the jury on that issue, we are left to conclude that Grand Union did not attempt to, and cannot, satisfy it s burden of demonstrating that the Release is unenforceable. ( See Joint App. at 107

- 149 (jury instructions). ) Instead, the District Court instructed the jury that, in order for Grand Union to prevail on its unjust enrichment claim, the jury mus t find that “(1) [Lockhart ] was enriched; (2) [Lockhart’s ] enrichment was at [Grand Union’s] expense;4 and (3) [t]he circumstances were such that in fairness a nd good conscience [Lockhart ] should return the value of the enrichment to [Grand Uni on]. ” ( Id

. at 128.) Based on that instruction, the jury could find in favor of Grand Union with out finding that Lockhart acted either intention ally or recklessly. Therefore, because the plain language of the Release bars Grand Union’s unjust enrichmen t claim , and because the jury made no finding of fact that bear s on the issue of whether the Release is void for public policy reasons, I would vacate the D istrict Court’s December 6, 2010 order denying Lockhart ’s cross - motion to dismiss and would reverse the judgment in Grand Union’s favor

. 3

3 None of the other arguments Grand Union raises have merit. First, Grand Union assert s that the Release is void because, under our precedent, “ ‘ a release

... will not be construed to bar a clai m which had not accrued at the date of its execution or a claim which was not known to the party giving the release.’” (Appellees’ Br. at 48 (quoting Medtronic AVE, Inc. v. Advanced Cardiovascular Sys. , 247 F.3d 44, 58 (3d Cir. 2001) (citing Three Rivers Motors Co. v. Ford Motor Co. , 522 F.2d 885, 8 96 (3d Cir. 1975) (applying Pennsylvania law)))

. ) But that rule does not apply, when, as here, the plain language of a contract demonstrates that the parties intended to bar all unknown, future claims. See Thr ee Riv ers Motors Co. , 522 at 896 (noting that “where ... parties manifest an intent to settle all accounts, [a] release will be given full effect even as to unknown claims”). Second, Grand Union claim s that its unjust enrichment claim “‘arises out of and rel ates to’ the negotiation of the release and settlement of the litigation between the parties and not the Lease itself.” (Appellees’ Br. at 45

- 46.) That argumen t is also unpersuasive be cause, as Lockhart correctly notes in its Reply Brief, “Grand Union’s entire case hinged on its argument that Grand Union was entitled to restitution for its surrender of the Lease to [Lockhart] , which, Castimatidis testified, was worth $2.75 million.” ( Appellant’s Reply Br. at 24 (original emphasis removed and new emphasis added) .) Under these conditions, there is no question that Grand Union’s unjust enrichment claim “relates to” the Lease. Third, Grand Union asserts that the Release was the pro duct of fraud by Lockhart

. ( See Appellees’ Br. at 42

- 43 (“A releaser such as Grand Union can always set up fraud ... as grounds to ignore a release that would otherwise bar its suit.”); id. at 43 (noting that “[w]here there has been a mutual mistake or unilateral mistake by one party and fraud by5 the other party, the party executing a general release as a result of such mistake may sue to reform the release or may avoid the ... release ... .” ( citation and internal quotation marks omitted)); id. at 44 (“Grand Union presented evidence tend ing to establish ... fraud by [Lockhart] ... .”).) But again, t hat argument is unavailing because the jury did not consid er whether Lockhart’s conduct was intentional or fraudulent. In the end, Grand Union is left with what it bargained for: the waiver of all claims that arise out of or relate to the Lease. And, it is that bargain that precludes it from succeeding on its unjust enrichment claim.