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2017 Published Opinions
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October 27, 2017
S. Ct. Civ. No. 2017-0006
Stanley D. Smith v. Denise A. Henley
      In an ex-husband’s appeal from an order awarding his ex-wife a 2.5% interest in the portion of his government pension earned during their marriage and a 50% interest in land purchased during the marriage, in which he also contests the Superior Court’s receipt of portions of his Government Employees Retirement System (“GERS”) records into evidence, the distribution of marital property and evidentiary ruling were not an abuse of discretion. The ex-wife’s equitable interest in her former husband’s GERS pension was not statutorily prohibited by operation of 3 V.I.C. § 725, because the non-assignment clause of that statute does not exist to protect one former spouse’s rights to his government pension by prohibiting the other former spouse, a beneficiary under 3 V.I.C. § 701, from reaching it. Instead, it protects the interests of both former spouses in the pension by insulating it from claims by interested third parties. Regarding the award of a 50% interest to each of the spouses in the real property acquired during their marriage, the equitable determination was not a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact, because the Superior Court, in its capacity as fact-finder, made credibility determinations with respect to the assertions of the parties, finding that throughout their marriage, the former spouses acted as a team and, although through different means, each contributed to their ability to acquire and maintain the property at issue. On the evidentiary ruling admitting portions of his GERS pension records, the trial record establishes that the judge conducted a proper voir dire to determine whether they satisfied the hearsay exception provided by Evidence Rule 803(6) for records of a regularly conducted activity. The contention that this evidence was per se untrustworthy because this witness did not prepare the documents under consideration and because they were sections of a larger document is rejected. The person who actually prepared the document need testify so long as other circumstantial evidence and testimony suggest its trustworthiness. As long as its proponent lays a sufficient foundation, the incompleteness of a document alone does not preclude its admission but goes towards its evidentiary weight or value. Consequently, the Superior Court’s decision to accept the GERS pension records proof into evidence was not a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact amounting to an abuse of discretion. Accordingly, the Superior Court’s rulings on these issues, as reflected in its December 15, 2016 order, are affirmed.
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October 17, 2017
S. Ct. Civ. No. 2015-0038
Ricardo Mitchell v. Rick T. Mullgrav, Director of the Bureau of Corrections
      A decision of the Superior Court determining that it lacked jurisdiction over a petition for a writ of habeas corpus because the petitioner had been convicted in the District Court of the Virgin Islands pursuant to its concurrent criminal jurisdiction is reversed. While the Superior Court is not a successor court with respect to cases tried in the District Court pursuant to its concurrent criminal jurisdiction – since the District Court retains such jurisdiction under § 22(c) of the Revised Organic Act of 1954 – by operation of 4 V.I.C. § 76(a), as of October 1, 1991 the District Court of the Virgin Islands was divested of jurisdiction to consider petitions for writ of habeas corpus under territorial habeas corpus law. The Superior Court now serves as the successor court to the District Court with respect to local civil actions, and Section 3 of the Revised Organic Act, 48 U.S.C. § 1561, explicitly provides that “[a]ll persons shall have the privilege of the writ of habeas corpus and the same shall not be suspended except as herein expressly provided” and that “[n]o law shall be enacted in the Virgin Islands which shall . . . deny to any person therein equal protection of the laws.” Because it is a successor court to the District Court with respect to all civil actions, the Superior Court erred when it held that it lacked the authority to entertain the present petition seeking review of local convictions. Accordingly, its April 20, 2015 ruling is reversed, and this case is remanded so that the Superior Court may assume jurisdiction and determine whether petitioner’s habeas corpus petition states a prima facie case for relief and is not otherwise procedurally barred.
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August 29, 2017
S. Ct. Civ. No. 2016-0031
Hillary Toussaint v. Augustine Stewart
      Considering a defendant’s appeal from a judgment of the Superior Court of the Virgin Islands along with its accompanying order and findings of fact and conclusions of law dismissing his amended answer and counterclaim, as well as an interim order denying his motion to enforce a mediated settlement agreement, the Superior Court struck the amended answer and counterclaim and excluded of evidence of defendant’s equitable estate in the real property at issue upon an incorrect legal interpretation. Because allowing the amendment would not have prejudiced the plaintiff and would not have significantly disrupted the trial proceedings, the trial court abused its discretion when it struck the amended answer and counterclaim and precluded the defendant from presenting evidence of his interest in that property. The trial court likewise abused its discretion when it decided the motion to enforce the mediated settlement agreement without conducting the analysis of the pertinent legal principles required by Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967, 981–84 (V.I. 2011) prior to determining the merits of the motion. Accordingly, the October 30, 2013 order denying defendant’s motion to enforce the mediated settlement agreement and the May 24, 2016 order granting plaintiff’s motion to dismiss the defendant’s amended answer and counterclaim and the associated findings of fact and conclusions of law, as well as the judgment premised thereon, are reversed and vacated. The matter is remanded to the trial court for proceedings consistent with this opinion.
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August 28, 2017
S. Ct. Civ. No. 2015-0120
One St. Peter, LLC v. Virgin Islands Board of Land Use Appeals
      Considering an appeal from a Superior Court order affirming the decision of the Board of Land Use Appeals that dismissed appellant’s petition as untimely, although 29 V.I.C. § 295(a) describes what an appellant must receive before appealing, i.e., “the order or ruling complained of,” it does not describe how the appellant must receive it. Given this ambiguity, the receipt requirement imposed by subsection (a) must be interpreted in a manner that is harmonious with the remainder of the statute. An interpretation that produces an absurd result by creating an unlimited period of time for appellants to challenge the orders or rulings issued by the Department of Planning and Natural Resources under the Building Code is rejected. Instead, the receipt requirement of subsection (a) of 29 V.I.C. § 295 means that an appellant receives “the order or ruling complained of” when he is chargeable with actual or constructive notice of that order or ruling. Under that interpretation, the appeal to the Board of Land Use Appeals in the present case was untimely because it was taken more than 30 days after the appellant had actual knowledge that Department of Planning and Natural Resources had granted a building permit for the construction of a zip line, which is “the order or ruling complained of” in the instant appeal. Accordingly, the Superior Court’s October 9, 2015 order affirming the decision of the Board of Land Use Appeals that dismissed appellant’s petition as untimely is affirmed.
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August 21, 2017
S. Ct. Crim. No. 2015-0113
Lawrence King v. People of the Virgin Islands
      Under 14 V.I. C. § 14(4) all persons are capable of committing crimes or offenses except persons who are mentally ill and who committed the act charged against them in consequence of such mental illness. If a defendant introduces a slight quantum of evidence that he was mentally ill and committed the charged offense as a result of that illness, the People must then prove beyond a reasonable doubt that the defendant either did not suffer from a mental illness, or was not acting as a result of that mental illness when he committed the charged offense. In this prosecution for burglary in the second degree, destruction of property, disturbance of the peace, and trespass, although the court should instruct the jury on the consequences of returning a not-guilty-by-reason-of-insanity verdict when a defendant has raised the insanity defense and has requested such an instruction, the Superior Court did not err when it issued its jury instructions in this case because the defendant did not request such an instruction and the record reveals no conduct that would obligate the court to issue such an instruction sua sponte. Nonetheless the Superior Court erred in denying the defendant's motion for a judgment notwithstanding the verdict because the People failed to prove, beyond a reasonable doubt, that he was sane when he committed the offenses with which he was charged. Here the people did not present expert proof but relied on attempted impeachment of the defense expert, and offered lay testimony from two witnesses – one of whom lacked familiarity with the defendant sufficient to give his testimony value in determining the defendant's sanity, and the other of whom gave testimony that in fact supported the defendant's contention. Because the People failed to prove beyond a reasonable doubt that this defendant was sane when he committed the offenses charged, the November 18, 2015 judgment and commitment is reversed and this matter is remanded with instructions to enter a judgment of not guilty by reason of insanity on all counts.
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August 10, 2017
S. Ct. Civ. No. 2016-0061
Renaldo Penn v. Lisa Mosley
      In appeal from a small claims action, the findings of fact support the judgment of the Magistrate Division of the Superior Court in holding the defendant liable to plaintiff in the amount of $10,000 plus court costs, and the Appellate Division correctly affirmed that judgment, based on the finding of an oral contract between the parties, later reduced to writing. The Appellate Division demonstrated in its memorandum opinion that it reviewed the record critically and applied the appropriate standards of review. It's lack of explanation as to why the defendant's evidence was not credible or carried little weight was not an error – because it was not the obligation of the Appellate Division to do so. The Appellate Division’s obligation was to consider the evidence and affirm the judgment of the Magistrate Division unless that ruling was devoid of minimum evidentiary support displaying some hue of credibility or had no rational relationship to the supportive evidence. Nor did the Appellate Division err in holding that defendant waived his claim of forgery, since the evidence was too insubstantial to support an assertion that a signature was forged. The Magistrate Division did not err when it determined that the defendant had failed to prove his counterclaim for conversion by a preponderance of the evidence, and – given the passage of time and the lack of other evidence indicating the items were missing due to some action or inaction by the plaintiff – defendant's assertion that she took his property is pure speculation. The September 8, 2015 judgment of the Appellate Division is affirmed.
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August 10, 2017
S. Ct. Civ. No. 2016-0046
Dehdan Miller et al. v. Linda K. Sorenson, et al.
      Pursuant to 28 V.I.C. § 535, after a foreclosure sale the debtor/mortgagor had six months in which to redeem a foreclosed property. To exercise the statutory right of redemption the debtor must pay in that period: (1) the total amount of the judgment, (2) the total legal interest accumulated on the judgment, and (3) any taxes paid by purchaser after purchase. In this case the facts in the record confirm that the debtor's first tender of the total redemption value of the property to the Superior Court’s cashier complied with the procedure for redemption of the property prior to the expiration of the statutory time limit. In this case the Superior Court did not err in concluding that the redemptioner substantially complied with the pertinent statutory requirements, and her tender of payment two days before expiration of the redemption period was effective under the circumstances presented in this appeal. It is noted that the Superior Court’s cashier should be authorized to accept all payments tendered when a bona fide attempt is being made to redeem a property. If there is a dispute as to the amount to be paid, the appropriate procedure would be for the cashier to accept the tendered payment and immediately notify the judge assigned to the case of the apparent discrepancy between the amount tendered to the trial court and the specific amount necessary to redeem the property. The judge should sua sponte issue an order either explaining the resolution of the discrepancy or directing the parties to brief what they believe to be the appropriate resolution of the discrepancy. In this case, because the certificate of redemption was not issued by the Marshal until the full redemption value of the property was paid, any error in the prior calculation of the interest due and the timing of when such interest was due is harmless error. The facts in the record confirm that the first tender of the total redemption value of the property to the Superior Court’s cashier complied with the procedure for redemption prior to the expiration of the statutory time limit; therefore, the August 24, 2016 judgment is affirmed.
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August 10, 2017
S. Ct. Crim. No. 2016-0050
Alan N. Archibald v. People of the Virgin Islands
      Court-appointed counsel for appellant is found in civil contempt for his failure to comply with numerous orders of this Court. This attorney failed to timely comply with five clear and unambiguous orders of the court, on such issues as filing of a completed Transcript Purchase Order and briefing requirements. After multiple show-cause orders, it is now determined that the attorney did not diligently attempt to comply with those orders in a reasonable manner. The attorney is directed to pay $1,000 to the Clerk of the Court, made payable to the Government of the Virgin Islands, no later than 14 days from the date of entry of this decision. Furthermore, the Clerk of this Court is directed to transmit a copy of this opinion, together with all pertinent orders and filings, to the Office of Disciplinary Counsel so that it may consider whether disciplinary proceedings should be initiated pursuant to Supreme Court Rule 207.
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August 9, 2017
S. Ct. Crim. No. 2015-0062
Ronica D. Miller v. People of the Virgin Islands
      In a case charging the defendant with acting as an accessory after the fact under 14 V.I.C. § 12(a), in which she ultimately agreed to plead guilty to one count, the Superior Court did not violate her rights under the Confrontation Clause or commit plain error when it sentenced her under 5 V.I.C. § 3721. Although it is now held that she is eligible for split sentencing under that statute, the Superior Court did not commit plain error in concluding that she was ineligible because there was no clear interpretation of the split sentencing statute to guide the court. That portion of the July 6, 2015 judgment that sentences the defendant is vacated, and the matter is remanded remand with instructions that she be resentenced in accordance with Virgin Islands law and this opinion, because the court committed plain error when it relied on this defendant's religion to impose a harsher sentence, and it is unclear whether the court would have imposed the same sentence absent its reliance on this impermissible factor.
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August 8, 2017
S. Ct. Civ. No. 2015-0058
Sandra and Patrick Cornelius v. Bank of Nova Scotia
      In an action by car purchasers – who made only two payments under a loan financing the purchase – challenging the propriety of the lending bank's repossession of the vehicle, the judgment is vacated. The defendant bank's letter to the borrowers, erroneously informing them that the loan had been repaid and that the lien on the vehicle had been released, did not invalidate the terms of the loan and security agreement. The lawfulness of the bank's repossession of the vehicle is governed by the U.C.C., and Article 9 of the U.C.C. as enacted in the Virgin Islands, 11A V.I.C. § 9-201 et seq., is devoid of any language indicating that a security agreement is only effective if perfected. Also, no language in Title 11A provides that a loan for the purchase of consumer goods is considered satisfied simply because the holder of the note erroneously sends a notice of repayment and release of lien/security interest. Thus the full balance of the loan plus financing fees were owed by the purchasers. The loan contract was breached when, after making only two payments, the borrowers failed to make any further payments. Therefore, the lender was entitled to repossess the vehicle under 11A V.I.C. § 9-609(b)(2) if this could be done without a breach of peace. Because the trial court erroneously concluded that the repossession was wrongful on the ground that the bank's security interest had been terminated, no analysis was conducted considering whether the facts of this case gave rise to a breach of peace, the criminal offense of creating a public disturbance or engaging in disorderly conduct, particularly by making unnecessary or distracting noise. This action is remanded for further consideration of whether the facts in this instance amounted to a breach of peace making the repossession unlawful. Punitive damages must be based upon conduct that shows, at a minimum, reckless indifference to the person injured – conduct that is outrageous and warrants special deterrence – but here the borrowers failed to offer any proof to establish a claim of punitive damages. Upon remand, the Superior Court is directed to make appropriate factual findings to determine what was (1) the commercially reasonable timing and method of disposing of the vehicle that collateralized the loan, and (2) the correct award of damages in light of the parties’ contractual obligations and what conduct was commercially reasonable. The judgment entered on July 14, 2015 is vacated, and the case is remanded for further proceedings consistent with this opinion.
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August 4, 2017
S. Ct. Civ. No. 2015-0112
Lebron Smith v. Government of the Virgin Islands
      Considering a habeas petitioner’s appeal from an order of the Superior Court denying his filing styled as a “motion for writ of habeas,” the Superior Court abused its discretion by treating this filing as a second habeas corpus petition instead of analyzing it as a motion for relief from its earlier order, entered on April 7, 2015, denying his December 10, 2014 petition seeking a writ of habeas corpus. The legal standards applicable to consideration of a habeas corpus petition and a motion for relief from a judgment or order differ markedly. Here, although much of petitioner’s August 14, 2015 filing recites arguments similar to those made in his December 10, 2014 habeas petition, it does so in order to explain why the Superior Court erred when it refused to reach the merits of that petition. Consequently, since petitioner’s August 14, 2015 filing is, in substance, an argument that the Superior Court erred in denying his December 10, 2014 habeas petition, the Superior Court should have construed the August 14, 2015 filing as a motion for relief from that Court’s April 7, 2015 order. The record reflects that the Superior Court failed to consider whether the petitioner was entitled to relief from its April 7, 2015 order, and since it failed to apply the correct legal standard when ruling on his August 14, 2015 motion, the October 21, 2015 order denying that motion constitutes an abuse of discretion, and is reversed. The matter is remanded so that the Superior Court can consider the petitioner’s August 14, 2015 motion under the appropriate standard.
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August 3, 2017
S. Ct. Civ. No. 2016-0047
Delia Anderson v. American Federation of Teachers
      In an action the parties and the Superior Court treated as charging, in substance, that a teachers' union breached the duty of fair representation of the plaintiff regarding a grievance, the plaintiff failed to establish the existence of a genuine issue of material fact that would preclude summary judgment. Pursuant to the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151–169 labor organizations that negotiate with employers over employee grievances owe a duty of fair representation to the employees that they represent. But this duty only applies with respect to a labor organization’s interactions with “employers,” a term defined by the NLRA to exclude “any State or political subdivision thereof.” Consequently, when a labor organization advocates on behalf of an employee of a state government, or one employed by a political subdivision of such a government, the NLRA does not govern the organization’s actions. The Virgin Islands Public Employee Labor Relations Act (PELRA), 24 V.I.C. §§ 361–383, has been interpreted to impose a duty of fair representation on labor organizations that negotiate on behalf of employees of the Virgin Islands government and its agencies. However, a claim against a union for breach of its duty of fair representation imposes a heavy burden on employees that challenge union conduct to show that the union's conduct was ‘arbitrary, discriminatory or in bad faith.’” On summary judgment the Superior Court correctly determined that the union in this case discharged its summary judgment burden when it introduced evidence that it promptly addressed plaintiff grievance in a nondiscriminatory manner. Plaintiff then failed to carry her summary judgment burden because she did not introduce more than a scintilla of proof to rebut that evidence. The arguments presented, including those based on portions of plaintiff's deposition, do not create a genuine issue of material fact concerning whether the union's actions were arbitrary, discriminatory, or taken in bad faith. The unrebutted evidence adduced by the union summary judgment motion and plaintiff's response, demonstrates that her suit is nothing more than a claim that the union did not correspond with her to her liking. However, a claim for breach of a union’s duty of fair representation cannot be sustained solely on a union’s alleged failure to keep a grievant informed of the status of the grievance. Like conclusory allegations in a complaint or an answer, conclusory allegations in an affidavit are also insufficient to defeat a summary judgment motion. The Superior Court’s August 10, 2016 judgment is affirmed.
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August 1, 2017
S. Ct. Civ. No. 2016-0041
In re Rohn
      In review of a sanction order entered against counsel in a personal injury suit arising from the filing of two affidavits in opposition to a pending summary judgment motion, the Superior Court’s order that counsel pay $1,845 in sanctions to the defendant's is reversed. Superior Court Rule 29 by its own explicit terms, only incorporates Federal Rule 11 “as to form, signing and verification of pleadings and other papers.” For similar reasons, the monetary sanctions provisions of Federal Rule 11(c) cannot be incorporated through Superior Court Rule 7, since applying those provisions through Rule 7 would render Superior Court Rule 29 wholly superfluous and without any meaning. Moreover, a rule adopted by the Superior Court may not supersede a statute duly enacted by the Legislature or a precedent of this Court. The invitation to consider alternate grounds for affirmance of the sanction order is declined. In this case, the defendants moved below for the imposition of sanctions against the plaintiff's counsel pursuant to Federal Rule 11, and the Superior Court entered its order on that basis, rather than pursuant to other statutory or inherent authority. The March 2, 2016 order is reversed to the extent it imposed sanctions under Federal Rule 11, without prejudice to the Superior Court determining whether sanctions may be appropriate under a different authority to the extent it wishes to revisit the matter on remand.
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August 1, 2017
Francis Edward v. GEC, LLC
S. Ct. Civ. No. 2017-0025
      Considering four questions addressed in two opinions of the Superior Court dated January 23, 2017, and subsequently certified for immediate appellate review in a February 14, 2017 order pursuant to the procedure set forth in title 4, section 33(c) of the Virgin Islands Code, the first question, insofar as it concerns whether immunity under the Virgin Islands Workers Compensation Act (“VIWCA”) via 24 V.I.C. § 284 goes to subject-matter jurisdiction, is answered in the negative; however, insofar as it concerns whether VIWCA immunity is a waivable affirmative defense, it is answered in the affirmative. The second question, whether the Superior Court may permit substitution of one expert witness for another when the original expert witness has become unavailable, is answered in the affirmative. Lastly, because the Superior Court need only look to the qualifications and methodology of the substitute expert — provided, of course, that a challenge under Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993) has not already been waived — the third and fourth certified questions are answered in the negative. Accordingly, the Superior Court’s rulings on these issues, as addressed in the two January 23, 2017 opinions, are affirmed in part and reversed in part, and the matter is remanded to the Superior Court for further proceedings consistent with the answers to the aforementioned certified questions.
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July 28, 2017
S. Ct. Civ. No. 2016-0048
Carl Greene v. Virgin Islands Water and Power Authority, et al.
      In an action pled on theories of abuse of process and malicious prosecution, following the termination of plaintiff's employment, the Superior Court’s August 12, 2016 order, which granted summary judgment against the plaintiff on all counts of his complaint, dismissing them with prejudice, is affirmed Plaintiff's two arguments on appeal are both waived by failure to cite legal authority supporting his position and failure to present an “excusable neglect” argument to the Superior Court. The law-of-the-case doctrine does not apply to the present case. The argument that denial of a 10-day extension of time to file a substantive response to the defense summary judgment motion was an abuse of discretion is waived, and in any event would not prevail since plaintiff has failed to show excusable neglect in failing to meet deadlines. Plaintiff's delay was wholly within his control, and excusing it would impair the Superior Court’s ability to manage its caseload by effectively allowing a litigant to dictate that the court resolve motions in a piecemeal manner, prolonging litigation. Finally, factors applicable to decisions dismissing cases on the merits as a sanction are not applicable here since the present complaint was dismissed – not as a sanction ruling – but because plaintiff failed to carry his burden of responding to a defense summary judgment motion. Accordingly, the Superior Court’s August 12, 2016 memorandum opinion and order are affirmed.
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July 28, 2017
Kimo A. Bonelli, Sr. v. Gov’t of the V.I., Virgin Islands Fire Service
S. Ct. Civ. No. 2015-0047
      Considering an appeal from the Superior Court’s March 20, 2015 memorandum opinion and order dismissing the plaintiff-appellant’s complaint with prejudice for failure to timely assert various claims against the Virgin Islands Fire Service, the Superior Court’s ruling is affirmed. Procedural deadlines matter, and will be enforced so long as they do not represent claims-processing rules subject to equitable tolling. Here, the appellant failed to propound his claims within the applicable statutorily-mandated deadlines, and has provided no justification that would warrant the equitable tolling of those deadlines. Because he did not assert his claims in a timely manner, and he has not established that the applicable deadlines should be equitably tolled, the Fire Service was entitled to judgment as a matter of law on each of his claims. Consequently, the Superior Court’s March 20, 2015 memorandum opinion and order is affirmed.
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July 28, 2017
Carl Simon v. Government of the Virgin Islands
S. Ct. Civ. No. 2010-0085
      Considering an appeal from an order of the Superior Court entered on September 24, 2010 denying a petition for an emergency writ of habeas corpus on the merits, in which the appellant sought relief from a sentence of life in prison without parole for his 1995 convictions of felony murder, robbery and third-degree burglary, the Superior Court erred in considering that petition on the merits while the appeal of his prior local habeas petition remained pending. Instead, the Superior Court should have dismissed the petition without prejudice to the appellant’s rights to file a subsequent petition following the final disposition of his appeal. Therefore, the Superior Court’s September 24, 2010 order is reversed and this case is remanded to the Superior Court so that it may dismiss appellant’s petition for writ of habeas corpus without prejudice.
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July 26, 2017
Virgin Islands Taxi Association v. Virgin Islands Port Authority, et al.
S. Ct. Civ. No. 2016-0035
      Considering an appeal brought by the Virgin Islands Taxi Association (“VITA”) concerning the Superior Court’s June 10, 2016 order dismissing its complaint with prejudice, the Superior Court did not err in dismissing VITA’s permanent injunction claim as moot because Act 5231, as applicable to the issues addressed in the complaint, had expired and any injunction prohibiting the interference with the contractual relationship created by that Act would be meaningless. Similarly, the Superior Court did not err in applying the law-of-the-case doctrine to the Appellate Division of the District Court of the Virgin Islands’ reversal of its contempt sanctions, and the Appellate Division correctly reversed those sanctions due to insufficient evidence. But the Superior Court erred when it determined that VITA was estopped from pursuing compensatory damages both for itself and on behalf of its members, because a request for preliminary injunctive relief is not inconsistent with a request for compensatory damages, and because the appellees failed to timely challenge VITA’s standing to seek such damages on behalf of its members. Finally, the Superior Court erred in concluding that the six factors enumerated in Halliday v. Footlocker Specialty, Inc., 53 V.I. 505 (V.I. 2010) constituted an alternative basis for dismissing VITA’s complaint on the ground of failure to prosecute. Thus, although VITA’s request for injunctive relief is moot, VITA’s claims for damages still survive, and VITA is entitled to pursue its claim for damages and may substantiate whatever damages it can at trial. Accordingly, the Superior Court’s June 10, 2016 order is affirmed in part and reversed in part, and this matter is remanded for further proceedings consistent with this opinion.
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July 20, 2017
S. Ct. Crim. No. 2016-0040
Jaydee Brathwaite v. People of the Virgin Islands
      The judgment and commitment finding a defendant guilty on a plea of no contest to one count of first-degree assault is affirmed. In order for a guilty or nolo contendere plea to comply with the requirements of the Due Process Clause, it must be knowing, voluntary and intelligent. The argument that this plea was not voluntary because it was not accomplished with assistance of counsel is belied by the trial court record. While the hearing was underway defendant converted his plea from "guilty" to "no-contest," but the record demonstrates that trial counsel then requested another opportunity to confer with the client, which the court allowed. Defendant properly entered the plea with consultation and advice from counsel. The court's extensive colloquy with the defendant shows that neither his medications nor his mental health impinged upon his capacity to enter a voluntary plea. The trial court continually assessed defendant's understanding of the plea proceedings, engaging him in an extensive plea colloquy regarding the terms of the plea agreement, the factual basis for the plea, the direct consequences of the plea, and the maximum sentence to which he was exposed. Defendant indicated that he understood the plea offer, affirmed that his lawyer had explained the consequences of his plea, and that he was satisfied with the legal representation he had received. The record here does not remotely support the claims that defendant was confused about the proceedings. The claim that defendant's plea was involuntary because he purportedly denied having committed a crime is also unavailing. He unambiguously stated that he assaulted the victim. Defendant was aware of the nature of the proceedings and the consequences of his plea, and he entered a knowing, voluntary and intelligent plea of no contest. The argument for reduction of this defendant's sentence is also without merit. The court was well aware of the defendant's mental health history, and his sentence precisely following the negotiated plea agreement, and within statutory limits, did constitute an abuse of discretion. The Superior Court's July 22, 2016 judgment and commitment is affirmed.
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July 20, 2017
S. Ct. Civ. No. 2016-0105
Government of the Virgin Islands, Department of Education v. St. Thomas/St. John Educational Administrators' Ass'n, Local 101
      A Superior Court order confirming an arbitration award requiring the Virgin Islands Department of Education to pay attorney’s fees to the St. Thomas/St. John Educational Administrators Association is affirmed for the reasons stated in this opinion. Since § 10 of the Federal Arbitration Act does not preempt local law in proceedings instituted in local courts, and the collective bargaining agreement in this case does not explicitly contract for application of § 10, local law must be applied to determine the circumstances under which a court may vacate or modify an arbitration award. Because arbitration in the Virgin Islands is not governed by statute, approaches taken by courts in this jurisdiction and other jurisdictions are reviewed to determine the soundest rule of law for this jurisdiction. Arbitration is a matter of contract, and courts should strive to most appropriately implement the intent of the parties. To ensure that parties who bargain for binding arbitration receive the benefit of their bargain, the Superior Court may only vacate an arbitrator’s award if: (1) the arbitrator exceeded his or her authority in rendering the award (which may include ignoring limits in the arbitration agreement itself on issues to be arbitrated or remedies the parties agreed to make available); (2) if the award was the product of fraud, partiality, or malfeasance on behalf of the parties or the arbitrator—or if the award was predicated upon a mistake flowing from such conduct; or (3) if the arbitrator manifestly disregards the law. The fact that a party—or a reviewing court—disagrees with how an arbitrator interprets a contract is not sufficient grounds to vacate the decision, and an arbitrator’s interpretation of an undefined term does not constitute a manifest disregard of the contractual provisions of the collective bargaining agreement, or of the applicable law. Thus applying the applicable standards in the present case there is no basis for vacating the arbitrator’s award. The Superior Court erred when it rejected the arbitrator’s interpretation of the collective bargaining agreement, but it nevertheless reached the correct result by confirming the award. The October 26, 2016 order upholding the arbitrator’s fee award is affirmed, albeit for reasons different from those stated by the Superior Court.
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July 19, 2017
S. Ct. Civ. No. 2016-0013
Tremcorp Holdings, Inc. v. Scott Harris, et al.
      An order denying as untimely a motion to vacate an arbitration award is reversed. While the motion was filed 140 days after delivery of an initial arbitration award, the arbitrator considered the issue of an attorney's fee award part of his assignment, and the motion to vacate was filed 85 days after he ruled on the fee application, ending the arbitration proceedings. Under the “complete arbitration rule,” where an arbitrator believes the assignment is completed, the award is final and appealable and when the arbitrator does not believe the assignment is completed, the award is not final and appealable. Here it is clear that the arbitrator did not believe that he was through with the case after issuing the initial arbitration award, since he specifically required the parties to submit additional briefing so that he could determine whether attorney's fees should be awarded, and he proceeded to issue a later order on that topic. Further, in this particular case the parties agreed that attorney’s fees were an integral part of the arbitration award, and that the ultimate determination as to whether fees would be awarded was substantive rather than ministerial. As a result, the period in which to file motions seeking to have the award vacated started to run on the date of the fee decision by the arbitrator—the date that the all substantive disputes in the case had been resolved. Thus, the motion to vacate on the 85th day following that ruling complied with the three-month time period for moving to vacate an award, as set forth in the Federal Arbitration Act, 9 U.S.C. § 12. Because it was therefore timely, the Superior Court’s February 16, 2016 order denying the motion to vacate on grounds of untimeliness is reversed, and the case is remanded.
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July 14, 2017
S. Ct. Civ. No. 2016-0054
Laverne Mills-Williams v. Governor Kenneth E. Mapp, et al.
      In litigation by an attorney hired to work in the Governor's office, but later transferred to other agencies allegedly because she released information about the Governor's office in response to a newspaper's request – dismissal without prejudice of claims against the Governor, his chief of staff and the chief counsel is immediately appealable where plaintiff cannot cure the deficiency, or if plaintiff chooses to forego further amendment and stand by the complaint as last filed. Here the Superior Court held that any further amendment of the complaint would be futile, which permits appeal as of right. A claim for fraudulent or negligent misrepresentation must—in addition other elements—allege misrepresentation of a fact on which plaintiff relied to her detriment, but here the alleged statements were matters of opinion representing subjective viewpoints that cannot be proved false. The complaint also failed to allege that plaintiff relied on the alleged statements to her detriment. The Superior Court correctly applied then-applicable pleading standards and committed no error dismissing the misrepresentation cause of action. On plaintiff's defamation claim, when the Governor made the comments in question the matter was a subject of public interest since plaintiff—an executive branch employee—had filed a public lawsuit accusing the Governor and his staff of engaging in illegal acts. Thus the Governor was within his authority to publicly comment on the matter, including announcing his reasons for terminating plaintiff's employment, and he enjoys absolute immunity for such statements. Nor did the proposed amended complaint state a cause of action for defamation against any of the other named defendants. A complaint that contains absolutely no factual allegations whatsoever as to what role the defendant played with respect to that cause of action alleged fails to meet pleading standards and is subject to dismissal. While the Superior Court committed no error when it dismissed the Whistleblower Act claims against the non-employer individual defendants, it erred when it dismissed such claims against the Governor and the Office of the Governor and when it denied leave to amend to assert the claim against the Office of the Attorney General. Accordingly, the Superior Court’s August 31, 2016 disposition is affirmed in part and reversed in part. The case is remanded for further proceedings with respect to the whistleblower claims against the Governor, the Office of the Governor, and—if properly served and found to have legal capacity to be sued—the Office of the Attorney General.
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July 3, 2017
S. Ct. Civ. No. 2017-0060
In Re: Janelle K. Sarauw
      Considering a petition for writ of mandamus directed both to a Superior Court judge to issue a ruling in an election case and to the Board of Elections to certify the results of a special election, the Supreme Court denies the petition without prejudice. As to the judge, the petitioner failed to prove that her right to an immediate ruling is clear and indisputable. Although election cases must receive expedited consideration, the petitioner contributed to the delay in the underlying matter by also filing requests for declaratory and injunctive relief. Moreover, the petitioner filed motions for a ruling with new exhibits attached immediately prior to seeking mandamus relief from the Supreme Court, and the failure of the Superior Court to consider these motions within one working day is not evidence that the Superior Court does not intend to issue a ruling in a prompt manner. With respect to the Board of Elections, the petitioner established that she possesses a clear and indisputable right to have the results of the special election certified, for certification within the statutorily-mandated fifteen days is a ministerial act that the Board of Elections lacks the discretion to simply postpone. However, the petitioner has failed to establish the second factor--that she lacks no other adequate means to attain the desired relief--because her petition for writ of mandamus is presently pending before the Superior Court. While there may be certain exceptional cases where the inability of the Superior Court to rule on a motion within one working day may justify mandamus relief in this Court, this is not such a case, since the petitioner has failed to explain why a ruling on one working day--as opposed to two working days or three working days--is necessary. Therefore, the Supreme Court denies the petition for writ of mandamus without prejudice to its re-filing at an appropriate time if the Superior Court fails to offer relief in a prompt manner.
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May 30, 2017
Nashville Phillip v. Wilma Marsh-Monsanto
S. Ct. Civ. No. 2015-0040
      Considering an appeal from the Superior Court’s May 8, 2015 judgment awarding the appellee $16,320.84 under a 2011 contract of sale for real property in St. Thomas, the Superior Court erred in interpreting and applying the appellee’s pleadings in this case, and erred in awarding her damages under an alleged separate “gentleman’s agreement” to pay more money for the property, which—as a matter of law—was unenforceable in light of the merger language of the operative sales contract, making the entire agreement unenforceable between the parties. The Superior Court accordingly erred in denying the appellant’s motion for judgment on partial findings because it misconstrued the appellee’s pleadings under the second contract and because the appellee’s pleaded promissory note is unenforceable under the clear and unambiguous language of the second contract. Therefore, the Superior Court’s May 8, 2015 judgment awarding appellee $16,320.84 under the second contract is vacated and the case is remanded for further proceedings, with directions that the Superior Court dismiss appellee’s complaint with prejudice.
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May 26, 2017
S. Ct. Civ. No. 2016-0004
Omar Bashiti d/b/a No. 1 Beauty Supply v. Tutu Park, Ltd.
      In a commercial landlord's case for rent due, the defendant waived his right to challenge determination of the merits of the dispute by arbitration. Defendant did not oppose a motion by the plaintiff to compel arbitration, and neither objected to the Superior Court's order compelling the parties to arbitrate, not sought any reconsideration of that order. During arbitration, when the plaintiff could produce only an unsigned copy of the lease, defendant objected to the arbitrator’s jurisdiction, but proceeded thereafter to present the defense case to the arbitrator. While defendant objected to the award of more than $ 219,000 by the arbitrator, and moved to vacate the award, he never moved to modify or amend his filings in which he conceded the existence of the lease. Through his conduct, defendant waived the issue of arbitrability. A party participating in arbitration without making a timely objection to submission of the dispute to arbitration, may be found to have waived its right to object to the arbitration. Here defendant also filed an answer and counterclaim with the arbitral body in which he represented that he was a party to an arbitration clause contained in a written lease agreement. Under the applicable Commercial Arbitration Rules of the American Arbitration Association a party must object to the jurisdiction of the arbitrator or to arbitrability of a claim no later than the filing of the answering statement. Defendant's failure to object to the arbitrator’s jurisdiction in accordance with the very rules to which he agreed to be bound further constitutes a waiver such a challenge. The Superior Court committed no error in declining to vacate the arbitrator’s award, and the December 24, 2015 order is affirmed on the grounds set forth in the present opinion.
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May 25, 2017
S. Ct. Crim. No. 2014-0084
Kehli M. Ubiles v. People of the Virgin Islands
      Convictions for driving under the influence of an intoxicating liquor and driving with a prohibited blood alcohol level are affirmed. The issue whether the defendant's Sixth Amendment right to confront witnesses against him was violated because the officer responsible for the maintenance and calibration of a breath alcohol analysis machine was not presented as a witness at trial was not properly presented in the trial court and has been waived. The defendant did not raise a Confrontation Clause claim in a motion to suppress or in a motion in limine to preclude admission of the evidence at trial. He did not object to admission of the breath test and indeed introduced the breath test results as a defense exhibit. This defendant invited the admission of the breath test results into evidence through counsel, who had the authority to waive the right to cross-examination, thus waiving the issue and precluding consideration on appeal of whether the failure to present at trial the person responsible for calibrating and maintaining the breath test machine violated Confrontation Clause rights. The evidence was sufficient to convict the defendant for driving under the influence of an intoxicating liquor with a prohibited blood alcohol content under 20 V.I.C. § 493(a)(1). Proof that he drove, operated or was in actual physical control of a motor vehicle. He occupied the driver’s seat of the vehicle and inserted the key into the ignition of the vehicle in the officer’s presence. The prohibited blood alcohol content element for the conviction under § 493(a)(2) was incontestably established through the blood alcohol breath test results. Both convictions are affirmed.
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May 22, 2017
S. Ct. Civ. No. 2016-0056
Companion Assurance Co., et al. v. Shawn Smith, et al.
      An appeal in a case involving defamation, contracts, insurance and other issues arising out of theft of a vehicle, is dismissed as untimely. The Superior Court entered judgment on the claims but the defendant's filed timely motions for new trial and judgment as a matter of law. Seven and one-half months later the Superior Court held oral argument on the post-trial motions, and entered an order denying the motions. The defendant's filed a notice of appeal within 30 days of that order. However, Virgin Islands Rule of Appellate Procedure 5(a)(4) provides that—in a case where a party timely files in the Superior Court a motion for judgment as matter of law or for a new trial—the time for filing the notice of appeal for all parties is extended until 30 days after the entry of an order disposing of the last such motion; provided, however, that the failure to dispose of any motion by order entered upon the record within 120 days after the date of the motion was filed shall constitute a denial of the motion for purposes of appeal. In the present case the 120-day provision was triggered, and the notice of appeal was due within 30 days thereafter. Defendants did not file the notice of appeal in this case within that period, and Rule 5(a)(4)’s 120-day provision denying the motion for purposes of appeal divested the Superior Court of jurisdiction to rule on the post-trial motion once the 120 days expired. The appeal is dismissed.
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May 8 2017
S. Ct. Civ. No. 2015-0071
Coral Management Group, LLC v. Government of the Virgin Islands, et al.
      In action challenging the imposition of a gross receipts taxes relating to oil reclamation activities due to tax exemption provisions in a concession agreement between an oil company and the Government of the Virgin Islands, the Superior Court lacked authority to requiring the plaintiff taxpayer to post a bond in order to obtain an injunction preventing the Virgin Islands Bureau of Internal Revenue from collecting the gross receipts tax. There is jurisdiction over the present appeal because the ruling below requiring the taxpayer to post bond was an injunctive interlocutory order directed to a party, enforceable by contempt; and designed to accord or protect some or all of the substantive relief sought by a complaint in more than a temporary fashion, and it filed this appeal within 30 days of that order as required by 4 V.I.C. § 33(d)(5). The language of 33 V.I.C. § 45(b) plainly provides that once the taxpayer petitions the Superior Court for a stay of execution, that court shall advance such petition and shall hear such relevant evidence as the taxpayer and tax administration authority may produce to arrive at the amount the taxpayer should have paid to comply with the law. Once requested, the stay must be granted, and the Superior Court lacks discretion to deny the stay or impose conditions on the issuance of the stay. The Superior Court erred in conditioning the stay in the present action upon the posting of a bond. The July 9, 2015 order requiring the taxpayer to post $500,000 bond is vacated and the matter is remanded for the Superior Court to enforce the stay of execution and proceed to the merits as required by § 45(b).
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April 26, 2017
S. Ct. Civ. No. 2014-0067
Ellen Stewart et al. v. Virgin Islands Board of Land Use Appeals, et al.
      After two prior litigations—one of which was decided on appeal in Thomas v. V.I. Board of Land Use Appeals, 60 V.I. 579 (V.I. 2014)—the landowner plaintiffs brought this third litigation against a church, the Virgin Islands Board of Land Use Appeals as well as the Virgin Islands Department of Planning & Natural Resources and its Commissioner, alleging that defendants violated their right to due process by failing to provide them with personal notice under 12 V.I.C. § 914, and by failing to issue a notice of violation and stop work order to enjoin the church from undertaking construction work under an expired Coastal Zone Management permit. Res judicata (claim preclusion) bars relitigation of claims that were raised or could have been raised in a prior action, where (1) the prior judgment was valid, final, and on the merits; (2) the parties in the subsequent action are identical to or in privity with the parties in the prior action; and (3) the claims in the subsequent action arise out of the same transaction or occurrence as those in the prior action. Dismissal for failure to comply with a jurisdictional precondition to suit is not on the merits because the court lacks jurisdiction over the claim. Here neither the language of 12 V.I.C. § 913(d) nor case law indicates that the appeals period in the CZM Act is to be treated as jurisdictional. If a precondition is a claims-processing rule, a dismissal based on a litigant’s noncompliance is on the merits unless the noncompliance can be cured by later action. Because the appeal period in 12 V.I.C. § 913(d) is a claims-processing rule and the plaintiffs cannot cure their earlier noncompliance by filing an even later, less timely petition for writ of review, the prior decision was on the merits. In deciding whether claims arise out of the same transaction or occurrence, it must be determined whether the legal theories or rights asserted in this case were raised or could have been raised in the prior case based on the conduct, transaction, or occurrence giving rise to that action, regardless of the legal elements or the evidence upon which that petition depended, or the particular remedies sought. The first count of the present complaint arises out of the same transaction or occurrence as the Thomas petition—the pleadings in both cases allege in part that the BLUA and former Commissioner Mathes violated the plaintiff's statutory and constitutional due process rights by failing to personally serve them with notice that the church had appealed the CZM Committee’s decision. Since Thomas previously resolved these issues, the Superior Court did not err in ruling that the first count of the present complaint is barred by res judicata. A portion of the second count of the present complaint challenging issuance of a permit to the church more than 30 days after the public hearing is also barred because it was actually raised in the prior case. Another portion of this count, alleging that the permit lacked required approvals, was also correctly found to be barred because it could have been raised in the earlier petition had plaintiffs exercised due diligence. A bright-line rule that res judicata does not apply to claims arising from events occurring after the filing of the prior complaint represents the soundest rule for the Virgin Islands. Here the complaint's remaining allegation—that the church failed to begin construction within the time period prescribed by the permit—cannot be said to have arisen out of the same transaction or occurrence as the earlier petition for writ of review. It is not barred by res judicata because it arises from events occurring after the complaint was filed in the prior action. Collateral estoppel (issue preclusion) bars relitigation of any issues of law or fact conclusively determined in a prior action, where (1) the previous determination was necessary to the decision; (2) the identical issue was previously litigated; (3) the issue was resolved in a decision that was final, valid, and on the merits; and (4) the party being precluded from relitigating the issue was adequately represented in the previous action. The delayed construction claim was not litigated in the prior case, and the Superior Court erred in ruling that it is barred by the doctrine of collateral estoppel. That claim is not barred by either res judicata or collateral estoppel because the transaction or occurrence upon which it is based arose after the complaint in the prior litigation, and it was not actually decided in that prior case. Therefore, the Superior Court’s dismissal of the first count of the appellant’s complaint is affirmed, but its dismissal of the second count of that complaint—insofar as it includes the claim relating to the church's failure to begin construction within the time period prescribed by the permit—is reversed.
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April 24, 2017
S. Ct. Civ. No. 2016-0039
Edmond Webster, et al. v. FirstBank Puerto Rico
      In litigation brought by a bank against borrowers on a series of loans, in which the defendants filed counterclaims for breach of fiduciary duty, misrepresentation, breach of the duty of good faith and fair dealing, duress, and intrusion upon seclusion, the Superior Court erred when it determined that the mandatory mediation provision of 28 V.I.C. § 531(b) permitted it to order mediation after entry of a judgment of foreclosure but before entry of a final judgment. Although the Superior Court stayed enforcement of its summary judgment adjudications in favor of the bank, those orders clearly constituted judgments, even if at the time of entry they were not final judgments that could be immediately appealed. The unusual procedure employed by the Superior Court in this case failed to place the parties in the same position as they would have been if mediation had occurred earlier. Ordering the parties to mediate the matter only after entry of judgment in the bank's favor on the loans and their modifications made compliance with 28 V.I.C. § 531(b) impossible. All the Superior Court’s rulings adjudicating the parties’ claims on the merits are vacated, including, but not limited to, the July 7, 2016, June 12, 2016, March 7, 2014, August 9, 2013, and March 6, 2013 orders, and it is directed that the matter be referred to mediation on remand. To remedy—to the greatest extent possible given the circumstances—the impact of the summary judgment rulings in favor of the bank, it is ordered that case be assigned to a different Superior Court judge on remand, who, in the event the parties fail to reach an agreement through mediation, may consider the bank's summary judgment motion anew without any reliance on or deference to the prior decisions.
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April 4, 2017
S. Ct. Civ. No. 2015-0052
Winston Demming v. Sylvia Demming
      In a marital property dispute incident to a divorce, the Superior Court erred in calculating the husband's net contribution toward the marital homestead because it failed to incorporate his undisputed payments of property tax and homeowner’s insurance, as well as support payments. Meaningful review of the calculation of the husband's premarital interest in the property and the Superior Court's consideration of his marital conduct is not possible in this appeal because that court failed to explain its reasoning. Further, while large portions of the memorandum opinion were devoted to analysis of the husband's marital fault, it failed to explain how this conduct was relevant to the economic position of the parties. The May 8, 2015 divorce decree is vacated in part and the case is remanded for further proceedings consistent with this opinion. On remand, the court shall equitably distribute the marital homestead pursuant to 33 V.I.C. § 2305(d) and appropriate factors, without any regard to marital fault, and shall consider the husband's unacknowledged contributions. The Superior Court shall also explain its calculation of his premarital interest when it equitably distributes the marital homestead.
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March 22, 2017
S. Ct. Civ. No. 2016-0062
Virgin Islands Taxi Ass'n v. West Indian Company, Ltd., et al.
      In an injunction proceeding, a governmentally-owned corporation's decision to award a concession agreement to a transportation company is subject to judicial review—and a challenge to that decision has not been mooted by the execution of the concession agreement. The plaintiff taxi association lacks standing under the general writ of review statutes, 5 V.I.C. §§ 1421–1423, but does have standing to bring the action under 5 V.I.C. § 80 because the two required elements are present: an act by a territorial officer or employee, and the allegation that such an act was either illegal or unauthorized, or that it constituted a wrongful disbursement of territorial funds. The execution of a contract does not moot a challenge to the procedures used to secure it, where it is possible that dissatisfied bidders will be subject to those same procedures again. Thus even though the dock is already being serviced under the concession agreement, this challenge to the decision to award the concession agreement not moot. On the merits, the arbitrary-and-irrational framework from federal case law is not applicable here, but the decision is not immune from judicial review and the Legislature intended for the defendant publicly owned corporation to exercise the decision-making authority that a private corporation would enjoy at common law, and consequently, to be subject to the same level of judicial scrutiny. Since the decision here is challenged as unauthorized—by virtue of alleged derogation of the Request for Qualifications' requirements—judicial review of the decision is appropriate, but the challenge is meritless. The plaintiff did not demonstrate a reasonable probability that the corporation acted in excess of its authority when it awarded the concession agreement, let alone that it acted in bad faith, fraudulently, or illegally. Thus likelihood of success on the merits weighed against the issuance of a preliminary injunction. The argument that any potential harm was not irreparable was not raised before the Superior Court, and it is waived for purposes of this appeal. No showing was made of an adverse effect on the plaintiffs' ability to compete. The argument that the Superior Court erred in concluding considerations of the public interest militated strongly against the issuance of a preliminary injunction is raised for the first time on appeal, thus it is waived and—in any event—plaintiff wholly failed to substantiate the claim that award of this concession agreement has eroded public confidence in the procurement process. Accordingly plaintiff failed to carry the burden of demonstrating a clear entitlement to an injunction prohibiting award of this concession, and the Superior Court’s October 26, 2016 order is affirmed.
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February 24, 2017
S. Ct. Civ. No. 2016-0038
Ivy Moses et al. v. Caroline Fawkes, as the Supervisor of Elections, et al.
      In an appeal by members of the St. Thomas/St. John and St. Croix Boards of Elections from denial of their motion for a preliminary injunction to bar the Supervisor of Elections from enforcing the resign-to-run provisions of 18 V.I.C. § 2, the judgment of the Superior Court is affirmed. Although it characterized the decision as denying the motion for a preliminary injunction—and it considered only one of the four factors that apply in deciding whether to grant such relief, failing to ascertain the seriousness of the legal questions presented or to determine whether the members possessed a chance of prevailing—in this case the hearing on the preliminary injunction application was consolidated with a hearing on the merits, and thus the Superior Court effectively issued a final decision rejecting the constitutional claims and denying the request for a permanent injunction. Therefore this appeal is heard pursuant to 4 V.I.C. § 33(b)(1) and § 32(a). While the Superior Court erred in its analysis of the Fourteenth Amendment claim, the error is ultimately harmless because Board members running for re-election are not similarly situated to ordinary government employees seeking election to a different office, and a rational basis exists for treating them differently. The Legislature could rationally determine that the resign-to-run provision is necessary to provide for a functioning and conflict-free Board to administer gubernatorial and senatorial elections—the offices that exercise the executive and legislative powers of the Virgin Islands—but that extending it to Board members seeking re-election would do more harm than good. Further, the Superior Court committed no error when it rejected the members’ First Amendment challenge to the resign-to-run statute, given that binding precedent from the Supreme Court of the United States has found the burden of such provisions on First Amendment rights to be insignificant, since they in no way restrict the ability to participate in political campaigns of third parties, limit neither political contributions nor expenditures, do not preclude holding office in a political party, permit the officeholders to distribute campaign literature and make speeches on behalf of a candidate, and simply require officeholders to choose between awaiting the conclusion of their term or resigning. Thus the First Amendment is not violated by a resign-to-run statute that does nothing more than to require current officeholders to choose between running for a different office and serving out their current term. Addressing another issue that is important and likely to recur, it is held that the Department of Justice was authorized to represent the Supervisor of Elections in this matter pursuant to 3 V.I.C. § 114(a). Accordingly, the Superior Court’s June 24, 2016 judgment is affirmed and the matter is remanded for the limited purpose of entering a final order of dismissal.
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February 24, 2017
S. Ct. Civ. No. 2013-0142
Dale Dupigny v. Kaaren E. Tyson
      In a child support order on review from the Division of Paternity and Child Support of the Virgin Islands Department of Justice, the Superior Court correctly interpreted the definition of income for child support purposes contained in 16 V.I.C. § 341(e) to include a lump-sum personal injury settlement payment. Because limiting the definition of income for purposes of child support obligations to payments made in periodic installments would not promote the best interests of the children of the Territory, and would undermine the manifest legislative intent underlying the entire child support statutory scheme, the Superior Court was correct when it concluded that a personal injury settlement payment is income for child support purposes. Further, because the definition of income in the federal tax code serves a different purpose—generation of revenue for the operation of the federal government, while § 341 addresses income for determining a parent’s obligation to support his or her children—the Superior Court correctly rejected use of the federal income tax definition of income. While the definition of income for child support purposes specifically lists awards in civil suits, the Superior Court abused its discretion when it determined that the gross proceeds from the personal injury settlement in this case were income under § 341(e) without also considering whether inclusion of the total settlement proceeds would work a hardship, as required by 16 V.I.C. § 345(c). The November 15, 2013 order is vacated and the matter is remanded for further proceedings.
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February 22, 2017
S. Ct. Crim. No. 2015-0082
Auriel Devon Frett v. People of the Virgin Islands
      On appeal from the defendant’s convictions for first-degree murder, first-degree assault and kidnapping for robbery, and a sentence of life imprisonment without parole, the judgment is affirmed. Although the prosecutor misrepresented the law on the presumption of innocence during her closing argument, these remarks did not infect the trial with such unfairness that the conviction was a denial of the defendant’s due process rights. In addition, the trial court did not err either in its jury instructions on the evidentiary use of another defendant’s plea, or its decision to permit the testimony of a retired Superior Court judge. Further, the court’s erroneous interjection and limitation of the defendant’s closing argument did not violate his due process rights, and the jury’s verdict was supported by sufficient evidence. The Superior Court’s October 14, 2015 judgment and commitment is affirmed.
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February 22, 2017
S. Ct. Civ. No. 2016-0034
Calvin Gumbs II v. Tina Koopmans, et al.
      The Superior Court erred in dismissing the plaintiff’s claims against the defendants as asserted in a Superior Court complaint filed on May 4, 2016, which arose out of an incident that allegedly occurred at the library of the University of the Virgin Islands on June 4, 2014 and that had spawned two prior small claims complaints on May 6, 2015 and November 3, 2015, both of which the Superior Court had dismissed with prejudice. By sua sponte dismissing the May 4, 2016 complaint on res judicata grounds without providing plaintiff with an opportunity to present evidence and arguments against dismissal, the Superior Court acted contrary to Virgin Islands case law precedent. Consequently, the judgment of the Superior Court is reversed and the case is remanded to the Superior Court so that it may proceed in accordance with the ordinary rules of civil procedure and general conceptions of fairness.
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February 10, 2017
S. Ct. Civ. No. 2014-0075
Wilma Marsh-Monsanto v. William Clarenbach, et al.
      In a quiet title action seeking to recover property on the island of St. John, all of the plaintiff-appellant's claims are barred by the statute of limitations, and the Superior Court's entry of summary judgment dismissing those claims is affirmed. The plaintiff acknowledged that she was aware of certain development activity on the property as early as 1982, but this action was not filed until 22 years later. Thus these claims are barred by the 20-year statute of limitations for actions for the recovery of real property under 5 V.I.C. § 31(1)(A), and no issue of equitable tolling of the statute has been presented. Remaining issues raised on appeal—concerning service of process, summary judgment procedures, and fraudulent transfer of property—were waived, and are not reached. However, this Court retains discretion to notice errors that affect substantive rights, even if those errors were not properly presented on appeal, under V.I.S.CT.R. 4(h) and 22(m). When the Superior Court correctly determined that the statute of limitations barred the plaintiff’s request for an adjudication of title to the parcel, it became improper to decide the merits that claim, effectively adjudicating an unpled counterclaim and divesting certain heirs of their alleged property interest in the subject parcel without affording them notice or an opportunity to be heard. Thus, the Superior Court committed a plain error by granting summary judgment on a request that was not properly before it. The October 21, 2014 order dismissing the plaintiff-appellant's claims on statute of limitations grounds is affirmed, but the Superior Court committed plain error by ruling on a declaratory judgment request that was not properly before it, that portion of the summary judgment order is reversed.
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February 9, 2017
S. Ct. Crim. No. 2013-0147
Dyhani Heyliger v. People of the Virgin Islands
      The defendant's conviction and sentences for 15 crimes, including felony murder of a victim while attempting to commit third-degree assault against another person, are affirmed. Under 14 V.I.C. § 922(a)(2) first-degree felony murder can be predicated solely upon assault in the third degree, which is one of the felonies enumerated in the statute. This statute's use of the conjunction “and” as the final separator in a list of several predicate unlawful acts supports this natural interpretation of the statute. In this case—involving a shooting in a parking lot near a nightclub—there was sufficient evidence from several witnesses for a rational jury to find the defendant guilty beyond a reasonable doubt of first-degree felony murder predicated upon assault in the third degree in violation of 14 V.I.C. §§ 921 and 922(a)(2). Viewing the evidence in the light most favorable to the People, a rational jury could find beyond a reasonable doubt that the defendant assaulted one person by shooting at him, placing him in fear for his life, and the jury could find that the defendant killed the murder victim because his gunshots killed the victim as he stood behind the assault victim. The Superior Court did not err in holding a pretrial hearing and conducting an inquiry sufficient to determine the truth and scope of the defendant's pretrial claim of ineffective assistance of counsel; all parties were present and were given an opportunity to be heard, and the Superior Court judge questioned the attorneys extensively. The court did not abuse its discretion in denying the motion upon a finding that defense counsel’s performance did not fall below an objective standard of reasonableness and that defendant failed to prove that but for his counsel’s unprofessional errors, the results of the proceedings would have been different. Accordingly, the January 15, 2014 judgment and commitment is affirmed.
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February 2, 2017
S. Ct. Civ. No. 2015-0042
Mervette Brown as Personal Representative for the Estate of Eric Browne v. Quinton Stanley
      In a lawsuit seeking an order directing the defendant landowner to remove a portion of a fence encroaching on the plaintiff neighbor's property, the circuit court did not err in denying the defendant relief under the doctrine of equitable estoppel. In the Virgin Islands, equitable estoppel requires a demonstration that (1) the party to be estopped made a material misrepresentation (2) that induced reasonable reliance by the asserting party and (3) resulted in the asserting party’s detriment. This doctrine is applied with great caution in the context of real property. In this case, having heard conflicting testimony, the Superior Court did not clearly err in concluding that there was an oral agreement allowing the defendant to construct a fence on the plaintiff's property for an unspecified duration, but did not include an exchange of property. The existence of reasonable reliance and detriment depends upon the facts of each particular case. Where, as here, an uncertain oral agreement involves real property, the party asserting equitable estoppel must demonstrate that he or she exercised due diligence prior to acting so that his or her reliance can be considered reasonable under the circumstances. Without any evidence that he exercised due diligence, the defendant in this case simply failed to demonstrate that his reliance was reasonable. Nor did he demonstrate that his expenditure in constructing the fence amounted to a substantial detriment. Under these circumstances, it cannot be concluded that the Superior Court erred in declining to invoke equitable estoppel. The judgment issued on May 4, 2015 ordering the defendant to remove his encroaching fence and dismissing his counterclaim alleging breach of contract, is affirmed.
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January 31, 2017
S. Ct. Civ. No. 2015-0119
Edwarde W. Pelle v. Certain Underwriters at Lloyd’s of London
      Considering an appeal from a judgment of the Superior Court denying plaintiff’s motions to quash a writ of execution issued in 2010 and for relief from a prior judgment that became final in 2007 based on this Court’s subsequent decision in Joseph v. Inter-Ocean Ins. Agency, Inc., 59 V.I. 820 (V.I. 2013), the judgment below is affirmed. The interpretation of a law by the Supreme Court of the Virgin Islands does not render an earlier-rendered final judgment of the Superior Court void even though it was based on a different understanding of the same law that leads to a different result, absent some extraordinary circumstance. Here, the Superior Court’s decision on November 5, 2015 holding that the judgment in defendant’s favor was valid when it was entered in 2007, and that there is nothing in Joseph indicating that the holding in that case should be applied retroactively to cases that had been fully resolved years prior, is correct. In addition, the Superior Court did not abuse its discretion in denying plaintiff’s motion to quash the writ of execution, because the defendant, as the judgment creditor, did not act in bad faith when it directed plaintiff to make payments to one of its agents in fulfillment of the judgment. Accordingly, the Superior Court’s judgment is affirmed.
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January 30, 2017
S. Ct. Civ. No. 2016-0005
Recaldo Dessout v. Lisa T. Brin
      It was not error to deny reconsideration of the judgment in an action to determine ownership interests in certain property purchased at a tax auction nearly 15 years earlier. The Superior Court may set aside a final judgment when presented with newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b). To prevail on a claim of newly discovered evidence the aggrieved party must show that the evidence was in existence at the time of trial but for some excusable reason the evidence was not discovered by or otherwise made known to the party. In this case evidence allegedly discovered after the final judgment—a letter, a decision in another case, and records of property taxes paid by a third party—could all have been discovered with reasonable diligence prior to the trial. Therefore, the Superior Court correctly denied a motion to set aside its September 29, 2015 judgment. The judgment is affirmed.
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January 23, 2017
S. Ct. Civ. No. 2016-0007
In re: Derrick Antonio Callwood, Sr.
      In ruling on a petition for expungement of the applicant's arrest records the Superior Court erred when it treated the petition as one for discretionary expungement under 5 V.I.C. § 3733(b)(2) of the Virgin Islands Code. The record reflects that petitioner’s assault case had been dismissed because he successfully completed a pretrial intervention program, and that his domestic violence case had been dismissed with prejudice. He also provided proof, in the form of a certified arrest record from the Virgin Islands Police Department, that he had no other pending arrests. Although at the time the petition for expungement was filed, § 3732 provided that certain expungements were discretionary rather than mandatory, the Legislature has decreed that the provisions of the expungement law apply retroactively, 5 V.I.C. § 3741, meaning that the petitioner should receive the benefit of the change to the law achieved on July 30, 2015—almost two months after the expungement petition was filed—when the Legislature enacted Act No. 7742. Thus, each of petitioner’s convictions is subject to mandatory expungement pursuant to § 3732(1) and (3). Petitioner was therefore not required to make any showing of extraordinary circumstances to warrant expungement. Accordingly, the Superior Court’s December 30, 2015 judgment is reversed and the case is remanded with instructions to grant the petition.
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January 20, 2017
S. Ct. Crim. No. 2014-0032
Kelvin Pickering v People of the Virgin Islands
      remanded for a new trial. The Superior Court, in the exercise of sound discretion, may remove a juror and replace her with an alternate whenever facts are presented which convince the court that the juror’s ability to perform her duty as a juror is impaired. Under 4 V.I.C. § 473(a) the court violates a defendant’s right to a fair trial and commits error by removing an empaneled juror without good cause. In this case, the factual basis for removing the juror and seating an alternate during deliberations was not objectively verifiable or readily apparent, and the court committed error in removing the juror without conducting a hearing to demonstrate cause with findings on the record. This error prejudicially affected the defendant's substantial rights, with a reasonable probability that the error affected the outcome of the trial. The potential for serious harm and the interest of the defendant—and the public—in fair, unbiased, and secret deliberations are so great that no evidentiary showing of actual prejudice is required, and here it cannot be said that the defendant invited or induced the Superior Court’s actions. Therefore, the convictions are vacated. As to issues likely to recur on remand, first, defendant's motion three days before trial to exclude evidence of drinking or distributing alcohol to minors was not untimely. While defendant was not charged with distributing alcohol to minors, the People solicited alcohol-related testimony from multiple witnesses, which was unfairly prejudicial, as it served no purpose other than to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged. Secondly, given the expansive scope of the prohibition in Federal Rule of Evidence 412 on evidence offered to prove that a victim engaged in other sexual behavior, the Superior Court committed no error in prohibiting the defendant from presenting testimony that a victim was seen embracing another man. Nor did exclusion of this evidence deny his constitutional right to cross-examine the victim and otherwise put on a defense. The case is remanded for a new trial.
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January 8, 2017
S. Ct. Civ. No. 2017-0005
Janelle K. Sarauw and Brigitte Berry, v. Caroline Fawkes, in her official capacity as Supervisor Of Elections, Virgin Islands Joint Board of Elections, Board of Elections, St. Thomas-St. John, and Kevin A. Rodriguez a/k/a Kevin A. Rodriquez,
      Considering an appeal from the denial of a permanent injunction enjoining a candidate from taking the oath of office as a member of the Legislature, the Superior Court erred by failing to apply the doctrine of judicial estoppel. The purpose of the doctrine of judicial estoppel is to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions in one or more proceedings. The doctrine precludes a party from asserting a position on a question of fact or a mixed question of law and fact that is inconsistent with a position taken by that party in a previous judicial proceeding if the totality of the circumstances compels such a result. In conducting this inquiry, a court must focus on the impact that allowing the claims would have on the judicial process. The Superior Court erred when it declined to apply judicial estoppel to preclude the candidate from contradicting his claims of Tennessee residency and citizenship made in a prior bankruptcy proceeding, since those representations were clearly and unquestionably inconsistent with the candidate claiming to have been a bona fide resident of the Virgin Islands. Because the inconsistent representations were without legitimate excuse or explanation, were made in a very short duration so as to warrant an inference that the candidate intended to play fast and loose with the court, were relied upon by the bankruptcy court, and involve the subjects of domicile and residency which affect many civic duties and should not be taken lightly, the balance of the equities supports application of judicial estoppel so as to preclude the candidate from claiming to have been a bona fide resident of the Virgin Islands. The Superior Court’s denial of a permanent injunction is vacated. Since the Superior Court failed to make findings on the remaining permanent injunction factors, and did not resolve other outstanding issues between the parties, the matter is remanded for further proceedings. Because it is possible that the Superior Court may not resolve all of these issues before the swearing-in of the 32nd Legislature, the Supreme Court issues a preliminary injunction pursuant to title 4, section 32(b) of the Virgin Islands Code enjoining the candidate from taking the oath of office until the completion of all proceedings on remand, as well as any associated appeal.
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January 4, 2017
S. Ct. Civ. No. 2016-0106
Caroline Fawkes, in her official capacity as Supervisor of Elections, Virgin Islands Joint Board of Elections, Board of Elections, St. Thomas-St. John, and Kevin A. Rodriguez a/k/a Kevin A. Rodriquez, v. Janelle K. Sarauw and Brigette Berry
      Considering an appeal from the grant of a preliminary injunction enjoining a candidate from taking the oath of office as a member of the Legislature, no error is found. The Superior Court correctly held that the affirmative defense of laches did not bar a challenge to the candidate’s qualifications to serve, since the equitable defense of laches does not apply to an action challenge the qualifications of an individual to hold office. The Superior Court erred in applying a taxpayer residency test to determine whether the candidate was a bona fide resident of the Virgin Islands for the past three-years, since for purposes of section 6(b) of the Revised Organic Act, bona fide resident is synonymous with domicile. The error is harmless, however, in that domicile is determined by considering physical presence and intent, and the Superior Court made factual findings with respect to those factors. The Superior Court did not err when it concluded that the challengers to the candidate’s qualifications were likely to succeed in establishing that the candidate was not a bona fide resident of the Virgin Islands, since the Superior Court’s factual findings in this regard were not clearly erroneous. The Superior Court’s grant of a preliminary injunction is affirmed.
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