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2014 Published Opinions
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December 24, 2014
S. Ct. Crim. No. 2014-0004
Wendell Rawlins v. People of the Virgin Islands
      The testimony of a minor victim, if credited, was sufficient for a reasonable jury to find that the elements of first-degree aggravated rape under 14 V.I.C. § 1700(a)(1) and child abuse under 14 V.I.C. § 505 were proven beyond a reasonable doubt. Thus the evidence was sufficient to support the defendant’s convictions on these charges. However, under the Confrontation Clause of the Sixth Amendment a testimonial statement cannot be admitted against the accused at trial when the declarant does not testify, unless she is unavailable to testify, and the defendant has had a prior opportunity for cross-examination. The constitutional requirement that a witness be “unavailable” before her prior testimony is admissible stands is independent of, and in addition to, the requirement of a prior opportunity for cross-examination. In this case the People moved to certify a summons under the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, 5 V.I.C §§ 3861-65, directed to the victim and her mother, who now reside in Florida. But the Superior Court erred in denying this motion, apparently concluding that the witnesses were unavailable for purposes of the Confrontation Clause simply because they now live in Florida and because the mother had stated that they would not return for a second trial. Nor was the mere filing with the court of a motion to certify an extra-territorial summons, without more, reasonable steps warranting a finding of unavailability. Against the relatively slight burden on the People to actually utilize the provisions of the Uniform Act, stands the clear and definite harm to the defendant in being denied his constitutional right to confront these two witnesses at his second trial. Accordingly, before an out-of-Territory witness whose location is known is declared unavailable, the prosecution’s good-faith effort in procuring the presence of that witness must include a reasonable, timely attempt to utilize the provisions of the Uniform Act. In this case, while the People initiated a good-faith effort to procure the attendance of these two witnesses by filing the motion to certify, the Superior Court erred when it denied the People’s request to utilize the Uniform Act and subsequently determined that they were unavailable for the defendant’s second trial. Accordingly, the Superior Court erred when it permitted the People to read the transcripts of testimony by the victim and her mother into the record at the defendant’s second trial because this violated his right to confront the witnesses against him. The People failed to satisfy its burden on this appeal of showing that the erroneous admission was harmless beyond a reasonable doubt and, indeed, the entire prosecution rested on the victim’s testimony. Because of the unique psychological elements inherent in a charge of sexual abuse, special caution must be exercised in finding the erroneous admission of highly prejudicial evidence harmless, especially where the victim does not testify at trial. In this case much evidence was admitted improperly at the trial retelling the victim’s story, along with a video-recorded interview of the victim admission of which was unquestionably error, both under the rules against hearsay and under the Confrontation Clause. The Superior Court’s January 16, 2014 judgment is vacated and the case is remanded for a new trial.
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December 2, 2014
S. Ct. Civ. No. 2014-0056
Deborah V. Appleyard v. Gov. Juan F. Luis Hospital & Medical Center, et al.
      Considering an appeal from a Superior Court order denying a physician's motion for a preliminary injunction to enjoin a hospital from terminating her employment as a member of its medical staff, the physician has failed to meet her burden of establishing a likelihood of success on the merits, irreparable harm to herself, the absence of greater harm to the hospital, and that injunctive relief would be in the public interest. While the Superior Court’s legal conclusions are reviewed de novo and its factual findings are reviewed for clear error, the ultimate decision to grant or deny an injunction is reviewed solely for abuse of discretion, and in this case all four factors weigh against granting injunctive relief. Although the parties have briefed the issue of whether this Court should adopt the sequential or sliding-scale test for preliminary injunctions, no reason is found to disturb the Superior Court’s decision to deny the physician's motion for a preliminary injunction, whether under the sequential test or the sliding-scale test. Accordingly, the Superior Court’s September 5, 2014 order denying the physician's request for a preliminary injunction is affirmed.
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December 1, 2014
S. Ct. Civ. No. 2014-0071
Allen Haynes, Sr. v. Basil Ottley, Jr., et al.
      The Superior Court’s dismissal for lack of subject matter jurisdiction of a complaint challenging the eligibility of the Democratic Party’s nominee for lieutenant governor to serve in that position if elected, on various grounds including failure to meet the requirement of bona fide five-year residence in the Virgin Islands, is reversed. While the election has been completed, this appeal is not moot since the results reported by the Supervisor of Elections are at this stage unofficial, and an exception to the mootness doctrine applies to this case, in that the underlying legal issue is capable of repetition yet evading review. The plain text of 18 V.I.C. § 412 reflects that the Legislature could not have intended for it to represent the exclusive means through which to challenge a candidate’s eligibility to hold office. Title 18 of the Virgin Islands Code establishes a comprehensive framework governing elections in the Virgin Islands, containing several provisions regarding challenges to candidacies, including 18 V.I.C. § 411, a statute governing examination of nomination petitions and papers by the Supervisor of Elections calling for disqualification of a candidate who does not meet the qualifications established by law for the office. Section 412 was also not intended to preempt 5 V.I.C. § 80, which provides that a taxpayer may maintain an action to restrain illegal or unauthorized acts by a territorial officer or employee or the wrongful disbursement of territorial funds, or the general jurisdiction statute, 4 V.I.C. § 76, which confers jurisdiction over civil actions, including actions for statutory or common law extraordinary writs, including writs of mandamus and quo warranto. Therefore the Superior Court had jurisdiction to consider the present suit notwithstanding the fact that the five-day limitations period set forth in § 412 had passed. No opinion is here expressed as to what statutory or common law remedy is appropriate; plaintiff could assert, in addition to or instead of pleading a claim under 5 V.I.C. § 80, other claims for equitable relief 4 V.I.C. § 76, even though those causes of actions were not pled by name in his complaint. Nor is any opinion expressed here as to whether the plaintiff has actually pled sufficient facts to succeed on the merits of any of those causes of action, or whether any affirmative defenses are available to the defendants which may defeat those claims. The October 30, 2014 order of the Superior Court is reversed and this matter is remanded for the sole purpose of allowing it to consider this complaint on the merits or, if appropriate, dismissing it as moot if the election results are subsequently certified and no legitimate reason exists to proceed into inquiry into the merits of this claim.
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November 19, 2014
S. Ct. Crim. No. 2013-0085
Shakieme S. Freeman v. People of the Virgin Islands
      In a prosecution on multiple counts relating to a shooting death, the evidence was sufficient for a reasonable jury to properly convict the defendant as an aider and abettor of reckless endangerment, and there is no merit in his other contentions on this appeal. Examining the totality of the evidence, both direct and circumstantial, and interpreting it in the light most favorable to the government as the verdict winner below, the evidence was sufficient to support this defendant’s convictions for aiding and abetting under 14 V.I.C. §11(a) the crime of reckless endangerment as set forth in 14 V.I.C. § 625(a). Under the theory of aiding and abetting, guilt of an accused in a criminal case may be established without proof that he or she personally did every act constituting the offense alleged. The evidence presented at trial in this case unequivocally indicates that a rational jury could find that this defendant acted with depraved indifference for human life by discharging a firearm in proximity to a large crowd, reckless conduct creating a grave risk of death under circumstances evincing an extreme indifference to human life. Although the evidence supported conviction as a principal, the information and the specific charge gave the jury the option to convict the defendant as an aider and abettor. The trial court in this case clearly failed to give the jury a full and accurate instruction on Count 9, but this error did not affect the jury’s deliberations and thus substantial justice was preserved. Where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and was supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless. Considering the final jury instructions as a whole, including the lengthy discussion on aiding and abetting given by the trial court, the omission identified here was harmless. An inconsistent verdict is not a sufficient reason for setting aside a verdict, and here there was sufficient evidence to sustain this defendant’s conviction. Title 4 V.I.C. § 625(a) is not void for vagueness, and this defendant concedes that a reasonable person would have notice of the prohibited conduct under this statute. The defendant’s conviction as an aider and abettor of reckless endangerment in violation of 14 V.I.C. § 625(a) is affirmed.
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November 14, 2014
S. Ct. Civ. No. 2014-0073
Kenneth Mapp and Janelle Sarauw v. Caroline Fawkes, in her Official Capacity as Supervisor of Elections, Arturo Watlington, in his Official Capacity as the Chairman of the St. Thomas District Board of Elections and Secretary of the Joint Board, Adelbert “Bert” Bryan, in his Official Capacity as Chairman of the St. Croix District Board of Elections, and Alicia Wells, in her Official Capacity as the Chairperson of the Joint Board of Elections,
      The Superior Court’s November 1, 2014 oral order holding that Virgin Islands voters do not have a right to feed their completed ballots into the DS200 vote tabulation machine is reversed. The Superior Court’s order had denied the injunctive and declaratory relief against elections officials sought by Kenneth Mapp and Janelle Sarauw. Mapp and Sarauw filed suit after the Joint Board of Elections decided that during the November 4, 2014 general election, voters would not submit their completed ballots directly into the DS200—which would have then informed the voter if they had overvoted by selecting too many candidates for a given office, or undervoted by selecting too few and allowed the voter to correct any errors—but instead would place their ballots in a storage bin for elections officials to assort and submit to the DS200 later. The Joint Board did this because of a fear that the machine would miscount those ballots where a voter cast a “straight-ticket ballot” by marking a party symbol—which has the effect of casting a vote for every candidate of that party in each race—but went on to also mark individual candidates of a different party, thus appearing to cast more votes for a particular office than is allowed. Because there will be a run-off election for Governor on November 18, 2014, the fact that the general election has already occurred does not render this case moot. Nor does the Joint Board’s statement through counsel that it has decided to allow voters to submit their ballots directly to the DS200 in the run-off election, since the Joint Board maintains that its previous decision did not violate the law and it could change its decision again at any time before the election. And while the Superior Court held that no provision of the Virgin Islands Code grants voters the right to submit their ballots directly to the DS200, the federal Help America Vote Act (“HAVA”)—which Congress expressly made applicable to the Virgin Islands—mandates that the Territory’s voting system “provide the voter with the opportunity to correct the ballot before the ballot is cast and counted.” 52 U.S.C. § 21081(A)(iii)(III). HAVA has also been implemented by the Virgin Islands Legislature, which provided in Act No. 7334 that voting machines and equipment must comply with HAVA, thus providing Mapp and Sarauw the right to seek a judicial remedy in Virgin Islands courts for the denial of their federal statutory right to submit their ballots directly to the DS200, as it is presumed that the Legislature will not create a right without a remedy. Furthermore, even if the Joint Board’s concern that the DS200 would miscount straight-ticket ballots proves correct, there has been no explanation of why it was necessary to prevent all voters who cast ballots on November 4, 2014—totaling more than 25,000—from exercising their rights under federal law for the sole purpose of making it easier to count the less than 150 straight-ticket ballots that were cast when elections officials could have simply allowed voters to submit their ballots to the DS200 and then performed a hand count of the straight-ticket ballots if necessary. Therefore, because HAVA gives voters the right to feed their ballots into the DS200 in order to alert them of an overvote or undervote, the Superior Court’s November 1, 2014 oral order is reversed and the case is remanded to the Superior Court to enter judgment in favor of Mapp and Sarauw.
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November 3, 2014
S. Ct. Crim. No. 2011-0079
Kalid Canton v People of the Virgin Islands
      Convictions for first-degree murder, unauthorized use of a firearm, and reckless endangerment, arising out of an incident in which multiple gunshots were fired into an individual sitting in a parked car, are reversed and the matter remanded to the Superior Court of the Virgin Islands for a new trial. Although the evidence, viewed in the light most favorable to the People, was sufficient to sustain all of these charges, the Superior Court erred when it admitted a witness’s prior inconsistent statement as substantive evidence under 14 V.I.C. § 19, a statute this Court, in Simmonds v. People, 59 V.I. 480 (V.I. 2013), held had been implicitly repealed by the Virgin Islands Legislature. Although the defendant had not objected to the admission of this evidence, a new trial was required even under the plain error standard of review because the inconsistent statement was virtually the only substantive evidence of guilt, thus rendering it highly probable that the evidence resulted in his conviction.
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October 29, 2014
S. Ct. Civ. No. 2013-0088
Earl Moore v. Paula Walters
      An opinion and order of the Appellate Division of the Superior Court of the Virgin Islands, which upheld a judgment entered by the Magistrate Division of that court for $5,400 representing money taken from the plaintiff by the defendant, is affirmed. No error is found in the Appellate Division’s affirmance of the magistrate’s factual determinations, and on appeal the court must defer to the credibility decision made by the factfinder, whether it be the judge or the jury. Superior Court Rule 64 states that the judge shall conduct the trial in a manner so as to do substantial justice between the parties according to the rules of substantive law, and shall not be bound by the statutory provisions or rules of practice, procedure, pleadings, or evidence, except such provisions relating to privileged communications, but this does not relieve a party of the obligation to establish a case. It was not the magistrate’s obligation to obtain evidence and make the defendant’s case for him. The suggestion that the trial court acted summarily is specious. The defendant failed to raise at the hearing any objection on the claim advanced now on appeal that the magistrate displayed antipathy toward him. Therefore, such arguments are waived unless there were exceptional circumstances that affected the integrity of the trial, where the public interest requires that the issues be heard or manifest injustice would result from the failure to consider such issues. No exceptional circumstances have been presented in this case to warrant deviation from the established rule of waiver when a party fails to preserve an argument. While the trial court may have appeared to be abrupt and hurried during the defendant’s presentation, evidence of actual bias by the magistrate has not been presented. The September 27, 2013, opinion and order of the Superior Court Appellate Division, which affirmed a judgment entered by the Magistrate Division of the same court against the defendant in the amount of $5,400, is affirmed.
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October 29, 2014
S. Ct. Civ. No. 2013-0097
Samuel Ottley v. Estate of Viola Elfreda Bell, et al.
      In an ex-husband’s action for partition of property after the death of his ex-wife, the Superior Court’s dismissal for lack of subject-matter jurisdiction due to the failure to present this claim to the administrator of the ex-wife’s estate pursuant to 15 V.I.C. § 606(b) is reversed. That Code provision is a mandatory and inflexible claims-processing rule that cannot be waived. However it does not govern the Superior Court’s jurisdiction to adjudicate an action brought in derogation of the section. In the context of the entire probate scheme in the Virgin Islands, it appears that the Legislature intended § 606 to regulate the process of obtaining review by providing strict guidance for probate proceedings and it did not intend “to limit the court’s adjudicatory authority. The plaintiff’s request for partition was never presented to the administrator and thus, did not ripen before the Superior Court dismissed the civil suit. An action for partition is not an attempt to recover debt or property from an estate, and is not a “claim” within the meaning of § 606, and thus it need not be presented first to an estate’s personal representative before commencing an action for partition in Superior Court. The Superior Court erred in granting the motion to dismiss in this case. The judgment is reversed and the case is remanded reinstatement so that the court can adjudicate plaintiff’s action for partition and the ancillary debt of $60,000.
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October 24, 2014
S. Ct. Civ. No. 2014-0066
Adelbert M. Bryan v. Caroline F. Fawkes, in her Official Capacity as Supervisor of Elections and V.I. Joint Board of Elections,
      In proceedings relating to the Superior Court’s August 29, 2014 order implementing this Court’s August 28, 2014 opinion disqualifying Alicia “Chucky” Hansen from the general election ballot for membership in the 31st Legislature, including an application to hold the Supervisor of Elections—Carolyn Fawkes—in contempt for her failure to comply with that order, the federal District Court lacked subject matter jurisdiction to enter a temporary restraining order and permanent injunction interfering with the in rem proceeding that remained actively litigated in the Virgin Islands local court system. Such District Court orders are therefore void, and conflicts between that court and the local Virgin Islands courts on issues of Virgin Islands law must necessarily be resolved in favor of the local courts. This Court’s August 28, 2014 opinion and the Superior Court’s August 29, 2014 order remain valid, and the portion of the Superior Court’s October 10, 2014 order that denied the motion to enforce them is reversed. Fawkes is ordered to immediately recall all general election ballots for the November 4, 2014 general election with Hansen’s name and replace them with ballots omitting her as a candidate, or to otherwise remove Hansen’s name from the ballot, such as by covering her name with a sticker. The case is remanded to the Superior Court with directions to make the factual findings and legal conclusions necessary to determine whether Fawkes should be held in contempt or otherwise sanctioned for her non-compliance with the prior orders of this Court and the Superior Court.
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October 16, 2014
S. Ct. Crim. No. 2013-0067
Ivan Petric v. People of the Virgin Islands
      In a prosecution for first-degree murder, unauthorized possession of a firearm during the commission of a crime of violence, first-degree animal abuse, and unauthorized possession of ammunition, the convictions are reversed and the case is remanded for the Superior Court to enter an acquittal on the charge of unauthorized possession of ammunition and a judgment of not guilty by reason of insanity on the remaining charges because the People failed to prove beyond a reasonable doubt that defendant was sane at the time of the offenses. The correct test for insanity is not the so-called M'Naughten test of whether the defendant had sufficient reason to know right from wrong at the time the offenses, since that test was explicitly discarded in 1957 by 14 V.I.C. § 14(4), which provides that all persons are capable of committing crimes and offenses except those "who are mentally ill and who committed the act charged against them in consequence of such mental illness.” To raise the insanity defense a defendant need only introduce “some evidence” tending to show that he was mentally ill and committed the act charged in consequence of that mental illness, and then the defendant’s sanity at the time of the offense becomes an element of the crime, which, like all other elements of the crime, must be proven by the People beyond a reasonable doubt. In this case, the People offered no medical testimony that the defendant was sane at the time of the murders, but instead sought to discredit a defense experts' testimony that his actions on the day of the murders were driven by delusional beliefs stemming from an undiagnosed “psychotic disorder.” The People presented the lay testimony of the arresting officers concerning defendant's mental state at the time of arrest, but before a non-expert witness may testify to the sanity of the defendant, the party offering the testimony must show a familiarity with the defendant to clearly indicate that the testimony will be of value in determining sanity, and the conclusion must be based on the witness’s testimony as to specific instances of behavior or conduct near the time of the offense. Taken together, the People’s cross-examination of the defense expert, coupled with the lay testimony of the arresting officers, even when viewed in the light most favorable to the People, was simply insufficient to prove beyond a reasonable doubt that the defendant was sane at the time of the offenses. The appropriate remedy is to remand with instructions to enter a judgment of not guilty by reason of insanity on all of the convictions except that for crime of unauthorized possession of ammunition, as to which the People concede a failure to the prove essential elements. Therefore, the convictions are reversed and this matter is remanded for the Superior Court to enter a judgment of acquittal on the charge for unauthorized possession of ammunition and a judgment of not guilty by reason of insanity on the remaining charges.
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October 16, 2014
S. Ct. Civ. No. 2012-0137
Elissa Machado v. Yacht Haven U.S.V.I., LLC, et al.
      Summary judgment for the defendant in a parking lot trip-and-fall case is reversed because the plaintiff met her burden of demonstrating that genuine issues of material fact exist in this case. According de novo review to the Superior Court’s decision in the context of the substantive law governing the cause of action, plaintiff submitted sufficient evidence to create genuine issues of material fact on the foundational elements of negligence—(1) a legal duty of care to the plaintiff, (2) a breach of that duty of care by the defendant (3) constituting the factual and legal cause of (4) damages to the plaintiff. Dividing the legal status of entrants upon land into invitees, licensees, and trespassers to define a land possessor’s duty of care in premises liability actions conflicts with this Court’s jurisprudence and modern negligence law generally. The soundest common law rule for the Virgin Islands is that the foreseeability of harm is the touchstone of the existence of a land possessor’s duty of reasonable or ordinary care. A land possessor does not have strict or limitless liability, and is not an insurer of the visitor’s safety. The character and circumstances surrounding an injured person's presence will remain relevant and important in determining the standard of care applicable to the landowner, and where there is no evidence to suggest that the entrant’s presence on the property was foreseeable (e.g., an unexpected trespasser)—or that the possessor of land had no reason to anticipate the entrant’s injury (such as when there was no notice of a dangerous condition), judgment as a matter of law remains appropriate. Applying this standard here—and viewing the evidence and all inferences in the light most favorable to plaintiff, she met her burden at summary judgment with regard to the defendant's duty of care, and a reasonable jury could conclude that it should have foreseen use of a parking lot's median area and should have taken reasonable steps to prevent patrons from being injured in doing so. Plaintiff met her burden of producing evidence to support a finding that the defendant had actual or constructive notice of a dangerous condition and that its actions caused plaintiff's injuries in failing maintain its sprinkler system in properly functioning order or to warn of sprinkler heads remaining several inches above ground when not in use. Maintaining implied assumption of risk as a complete defense to negligence conflicts with the Legislature’s unambiguous directive in 5 V.I.C. § 1451(a) that a plaintiff’s fault shall not bar a recovery, but the damages shall be diminished by the trier of fact in proportion to the amount of negligence attributable to the plaintiff. To the extent defendant properly raises this defense and produces evidence that plaintiff was negligent in entering the median to reach her car in the parking lot the jury must apportion fault between the parties under 5 V.I.C. § 1451(a). The Superior Court’s November 15, 2012 order granting summary judgment for the defendant is reversed and the case is remanded for further proceedings.
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October 7, 2014
S. Ct. Civ. No. 2013-0080
Virgin Islands Waste Management Authority, et al., v. Bovoni Investments LLC, et al. and the Virgin Islands Department of Public Works
      In an action for trespass and conversion, among other claims, brought by owners of land adjacent to a public landfill, the Superior Court erred in concluding that the claims against the Government of the Virgin Islands, Department of Public Works were barred based on the Virgin Islands Tort Claims Act, 33 V.I.C. §§ 3401 to 3417. In this case, the Department of Public Works’ permanent removal and use of the soil from the plaintiffs’ property constitutes an appropriation of land and, therefore, § 3409(a) applies, affording an aggrieved party two years within which to file a claim, Thus, the Superior Court erred in concluding that it lacked subject matter jurisdiction over the claims. Since the Department fully participated at the trial, the action is remanded for the Superior Court to adjudicate the claims relating to it based on the evidence offered at trial. The Superior Court also committed clear error in making two findings of fact, (1) the start date of the conversion and trespass; and (2) the date that management of the landfill was transferred from Department of Public Works’ control to Waste Management Authority’s control. Accordingly, the Superior Court’s judgment is reversed and the case is remanded for the Superior Court to adjudicate the claims relating to the Department of Public Works and to issue new findings of fact and conclusions of law based on the evidence presented at trial, in accordance with this opinion.
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October 6, 2014
S. Ct. Civ. No. 2012-0138
Robert L. King, as Trustee for Winston Liburd v. Mackchesney Appleton
      In an eviction action by an attorney holding property in trust for a former client, after the present defendant failed to respond for nearly two years the Superior Court properly entered default against him. By defaulting defendant admitted the plaintiff’s well-pleaded allegations of fact, and he is barred from contesting the facts thus established. After entering default the Superior Court must consider whether the unchallenged facts constitute a valid cause of action under Virgin Islands law and, if so, hold a default judgment hearing to establish the amount of damages. Regardless of whether a warranty deed in this case was recorded, it still constituted a legal transfer of property, and the Superior Court erred in considering a document filed by the plaintiff as a concession to the contrary. In order to create a valid express trust—as opposed to constructive or resulting trusts,—there must be (1) a valid conveyance of a trust property, (2) from a settlor who intends to create a trust, (3) to a trustee to hold legal title (4) for the benefit of a third party beneficiary. Maintaining these basic, definitional elements of an express trust is the soundest rule for the Virgin Islands. The December 11, 2008 warranty deed in this case met all the requirements of a valid trust, designating a trust property, a trustee, and a beneficiary, and was a valid conveyance of the property under the Virgin Islands Code. Consequently, the Superior Court erred in holding that the trust property was never conveyed to the plaintiff attorney and that the trust was otherwise invalid. The November 30, 2012 order dismissing this eviction action with prejudice is reversed and this case is remanded for the Superior Court to hold a damages hearing on the plaintiff's motion for default judgment.
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October 1, 2014
S. Ct. Civ. No. 2010-0015 & S. Ct. Civ. No. 2010-0075
Frank E. Hughley v. Government of the Virgin Islands, et al.
      The Superior Court did not err in dismissing as untimely a motion for sentence reduction made some eight years after the defendant’s conviction and sentence on three counts of aggravated rape and six counts of unlawful sexual contact, since the Government expressly challenged the timeliness of that application and defendant did not respond to that challenge for nearly three years while the matter remained pending in the Superior Court. The Superior Court’s August 24, 2010 order is affirmed. Denial of the petitioner’s application for a writ of habeas corpus for failure to satisfy technical requirements in 5 V.I.C. § 1302 was erroneous. The petitioner expressly alleged that his imprisonment was unlawful because he had been convicted by an all-female jury. Although the petition was not verified under oath, the verification requirement codified in § 1302(3) represents a non-jurisdictional claims-processing rule. Denial of petitioner’s prior petition for a writ of habeas corpus did not automatically prohibit a second petition, and here the Government never pled that petitioner was abusing the writ process with repeated applications. The possibility of future review by this Court could provide a justification for the Superior Court to consider the petitioner’s second habeas corpus petition on the merits. The memorandum opinion of the Superior Court filed September 30, 2011 denying the petition for writ of habeas corpus based on ineffective assistance of counsel is reversed ,and the case is remanded for further proceedings.
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September 26, 2014
S. Ct. Civ. No. 2014-0010
Ruben Rivera-Moreno v. Government of the Virgin Islands
      In ruling on a habeas corpus petition by an inmate tried in 1991 on charges of first-degree murder, assault with a deadly weapon, escape, and weapons offenses, the Superior Court erred in converting the petition into a motion for new trial or judgment or acquittal, since Virgin Islands law authorizes habeas corpus remedies other than discharge from custody when a prisoner demonstrates that his incarceration is unlawful. The Government has conceded that at petitioner’s murder trial a juror who was excused by the court for cause because he had made up his mind that the defendants were guilty, an impermissible bias, nonetheless remained in the courtroom and was inadvertently seated on the final jury by the clerk, and actually participated in the deliberations convicting petitioner on all charges. The Government has waived any challenge to purported technical defects in the present petition, and cannot seek dismissal solely on the ground that petitioner could have, but did not, raise these issues as part of his earlier direct appeal of the convictions, two decades ago. The fact that the District Court found petitioner guilty of both local and federal offenses as part of the same proceeding does not preclude him from seeking, and the Superior Court from ordering, a new trial solely on the local charges. The Superior Court clearly erred when it denied the writ of habeas corpus on the grounds that petitioner failed to prove that a juror excused for bias actually sat on the jury that convicted him. The Government actively provided the Superior Court with evidence conclusively establishing this fact, which constitutes a structural error mandating reversal without regard to whether that error was harmless. Petitioner has therefore demonstrated entitlement to habeas relief. The January 9, 2014 order is reversed and this matter is remanded to the Superior Court so that it may grant the habeas corpus petition, vacate the portion of the December 18, 1991 judgment and commitment adjudicating petitioner guilty of first-degree murder and other local charges, and order a new trial on the local charges, if the Government be so advised.
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September 26, 2014
S. Ct. Civ. No. 2014-0058
In re Amorite Connor, as Personal Representative and Special Administrator of the Estate of Dale Orrin Connor
      A petition for writ of mandamus directing the Superior Court of the Virgin Islands to appoint a senior sitting judge to preside over a civil action is denied. A previous order of this Court, Gov’t of the V.I. v. Connor, __ V.I. __, S. Ct. Civ. No. 2013-0095, 2014 WL 702639, at *3 (V.I. Feb. 24, 2014), remanded the case for a determination under governing case law of the appropriate common law rules. The term of the Superior Court judge who previously presided below has expired, and the judge to whom the case was reassigned has not acted on the remanded matter. A motion was made in the Superior Court for appointment of the former judge to sit by designation on the remanded matter, and the present petition for writ of mandamus was then filed with this Court. The applicant has failed to establish that her right to mandamus relief. There is no authority in the Virgin Islands Code authorizing the respondent Superior Court Judge—either in his capacity as Administrative Judge or as the judge assigned to this case—to appoint a former judge as a senior sitting judge. Rather, 4 V.I.C. § 24(b)(3) provides that a judge of the Superior Court who has retired on retirement allowance may, with his consent, be recalled by the Supreme Court for temporary service within the judicial system. Petitioner has failed to establish that her right to have the former judge is clear and indisputable, since that statute explicitly provides that a former judge be recalled into service only with his consent, and it is doubtful that the United States Constitution would permit the involuntary recall of a retired judge. Additionally, both 4 V.I.C. § 24(b)(3) and 4 V.I.C. § 74a mandate that a recalled judge receive per diem payments as compensation for his or her service, and no evidence has been provided that the Superior Court possesses the financial resources to pay the retired judge even if he were willing to accept such an appointment. Finally, the remand of this action under the February 24, 2014 opinion requires a purely legal inquiry, and thus a new trial or evidentiary hearing is not contemplated. Thus the petitioner has not established that she is entitled to a writ of mandamus, and the writ is denied.
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September 9, 2014
S. Ct. Civ. No. 2013-0002
Mackchesney Appleton v. Allan Harrigan
      In a lawsuit against the foreclosure-purchaser of certain property, who then brought a counterclaim for unpaid rent, a judgment for the purchaser on the counterclaim awarding some $49,000 in rent liability against the appellant is affirmed. Treating the pro se party’s motions relating to a new trial as a motion under Federal Rule of Civil Procedure Rule 60(b) for relief from judgment, even the greater leeway granted to pro se parties does not excuse the appellant’s failure to appear or respond to the allegations against him when he had been properly served and informed of the consequences of such a failure. Thus the Superior Court did not abuse its discretion in denying his motion to set aside the entry of default judgment. By virtue of the default, admitting the plaintiff’s well-pleaded allegations of fact, he is barred from contesting the facts thus established. The default did not resolve the issue of damages, and the claim against appellant for unpaid rent did not qualify as a sum certain. While the Superior Court never held a separate default judgment hearing, it appears to have consolidated the default judgment hearing against appellant and the bench trial on the merits of other related claims, a de facto consolidation in the interests of judicial economy. Appellant was not prejudiced by this procedure since he attended a pretrial conference where he was made aware that he was still a party to the action and would be allowed to participate during the trial proceeding. While the defaulting defendant has the right to cross-examine plaintiff’s witnesses and to introduce affirmative testimony on his own behalf in mitigation of damages at such a hearing, it cannot be said here that appellant’s failure to enter an appearance or participate as a party at the consolidated proceedings was the result of any error committed by the Superior Court, which made several efforts to accommodate his participation at the consolidated proceeding that were largely ignored. Arguments regarding liability under the agreement with purchaser of the property and whether appellant was properly joined in the suit are waived. The Superior Court’s December 10, 2012 order and judgment are affirmed.
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September 5, 2014
S. Ct. Crim. No. 2014-0013
Liston Cantois, Jr. v. People of the Virgin Islands
      A motion for summary reversal of a decision of the Superior Court conditioning exoneration of a criminal defendant’s appearance bond upon his payment of court costs and fees, in which motion the People of the Virgin Islands joined, is granted. Although sentencing decisions are ordinarily reviewed only for abuse of discretion, plenary review is exercised when the Superior Court bases its sentence on a legal precept. The Superior Court cannot make exoneration of bail contingent upon a defendant’s payment of fines, fees, or costs assessed as part of sentencing, because any bail or conditions of release that are not tailored to achieve the purpose of bail are considered excessive and therefore unconstitutional. Here, the criminal proceedings against the defendant ended when the Superior Court issued its written judgment and commitment, and thus there was no longer any need to assure his appearance at any future hearings. Therefore, the decision to condition the return of the posted sum of $2,500 upon the defendant’s timely payment of $1,075 in fees, fines, and costs is wholly inconsistent with the purpose of bail and otherwise has no basis in the law, and thus must be set aside. Accordingly, that portion of the February 11, 2014 judgment and commitment conditioning exoneration of bail on payment of fines, fees, and costs is reversed and the Superior Court is directed upon remand to order that the $2,500 that the defendant’s mother posted to secure his pre-trial release be refunded to her.
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August 29, 2014
S. Ct. Civ. No. 2013-0063
Cacciamani and Rover Corp. v. Banco Popular de Puerto Rico, et al.
      Dismissal of an unjust enrichment claim by the Superior Court is reversed. A cause of action for quantum meruit, also known as unjust enrichment, will ordinarily lie where the defendant receives something of value to which he is not entitled and which he should restore to the plaintiff. It is an equitable quasi-contract cause of action, imposing liability where there is no enforceable contract between the parties but fairness dictates that the plaintiff receive compensation for services provided. Because this is an equitable remedy, like all equitable remedies it is inappropriate where a legal remedy is available. Thus the general rule is that no equitable quasi-contractual claim can arise when a contract exists between the parties concerning the same subject matter, since legal remedies are available to a plaintiff in a breach of contract action. In this case, there is a contract covering the same subject matter, but not between the parties to the suit. Applying the barred by contract doctrine would not serve the objective of holding the parties to the terms of their contractual agreements, and would make little sense given the rule’s purpose and the function of an equitable claim for unjust enrichment to imply a contract in order to prevent injustice when one party inequitably receives and retains a benefit from another. Therefore, the Superior Court erred in holding that the unjust enrichment claim was barred by the plaintiff’s contract with another entity to which the defendants were not parties, because the barred by contract rule does not apply when the opposing parties have not entered an express contract. The doctrine of res judicata, addressed on this appeal in this appeal in the interests of judicial economy since this issue will likely recur on remand, is also no bar to the plaintiff’s suit. While it is true that involuntary dismissal generally acts as a judgment on the merits, res judicata requires that (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 the prior claims. Here the defendants are not identical to the entity that was the defendant in the previous suit, nor have has it been asserted that the present defendants are in privity with that other party. Thus dismissal of plaintiff’s prior suit against the other entity does not preclude its unjust enrichment claim against the present defendants. Therefore, the Superior Court erred in dismissing this complaint. The July 17, 2013 order is reversed, and the case is remanded for further proceedings.
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August 28, 2014
S. Ct. Crim. No. 2013-0081
Lorn Henley, Jr. v. People of the Virgin Islands
      A conviction for the crime of reckless endangerment under 14 V.I.C. § 625, arising out of an incident in which multiple gunshots were fired in a public area by diverse weapons, is reversed and vacated. Viewing the evidence in the light most favorable to the People, and considering the totality of the circumstances and all the evidence presented, a verdict may not rest merely upon suspicion, speculation, or conjecture or any overly attenuated piling of inference upon inference. Here, although there was evidence that this defendant shouted that he was carrying a gun, and that he made a gesture toward a back pocket, and after the gunshots he hurriedly departed the crime scene with the victim’s blood on his clothing and on his vehicle, two officers who were on the scene and had an opportunity to observe the defendant during the altercation testified that they did not see him in possession of a firearm nor did they see him discharge a firearm. One officer was located between the defendant and the victim. There was no evidence that the defendant had any significant amount of gunshot residue on his clothing or his hands. Some 25 bullet shell casings, from at least two different weapons, were found at the crime scene. The totality of the evidence failed to confirm that defendant engaged in conduct as a principal and utilized or discharged a firearm creating a grave risk of danger to another person. His conviction for reckless endangerment as a principal under 14 V.I.C. § 625(a) is reversed, and the conviction vacated.
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August 28, 2014
S. Ct. Civ. No. 2014-0046
Bryan v. Fawkes
      Considering an appeal from a Superior Court order dismissing a petition brought by Adelbert Bryan, the Chair of the St. Croix Board of Elections, seeking to disqualify Alicia “Chucky” Hansen, an incumbent Senator in the Virgin Islands Legislature, from the general election ballot for membership in the 31st Legislature, both the Superior Court and the Supreme Court of the Virgin Islands unquestionably possess jurisdiction to adjudicate Bryan’s challenge to Hansen’s eligibility to serve in the 31st Legislature. The Senator, as an intervenor, lacks standing to challenge Bryan’s standing to bring this proceeding. In 18 V.I.C. § 4(b)(2), the Virgin Islands Legislature, consistent with section 6(c) of the Revised Organic Act of 1954, 48 U.S.C. § 1572(c), vested the Supervisor of Elections with the authority to certify for primaries and elections, the names of candidates for all public and territorial offices and membership on party committees. In 18 V.I.C. § 411(a), the Legislature further authorized the Supervisor to disqualify a candidate and delete the candidate’s name from the ballot if the Supervisor determines that the candidate does not meet the qualifications established by law for the office, and in 18 V.I.C. § 412, expressly provided for judicial review of such determinations. In conducting such judicial review, Virgin Islands courts apply plenary review to legal questions addressed in the Supervisor’s determinations, rather than deference to the administrative determination under Chevron, U.S.A., Inc. v. Natural Res Def. Council, Inc., 467 U.S. 837 (1984). Addressing the merits, and notwithstanding the Supervisor’s resolution of the question, pursuant to binding United States Supreme Court precedent construing and applying a nearly identical federal statute, 26 U.S.C. § 7203, Hansen’s prior misdemeanor conviction for willful failure to file tax returns under 33 V.I.C. § 1524 is a “crime involving moral turpitude” that renders her ineligible to serve in the 31st Legislature by operation of section 6(b) of the Revised Organic Act of 1954, 48 U.S.C. § 1572(b). Accordingly, the Superior Court’s July 30, 2014 Order is reversed, and the Superior Court is directed on remand to grant the petition, set aside the Supervisor’s decision to place Hansen on the general election ballot as a candidate for membership to the 31st Legislature pursuant to 18 V.I.C. § 412, and remove Hansen from the general election ballot.
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August 12, 2014
S. Ct. Crim. No. 2013-0090
Shevron Percival v. People of the Virgin Islands
      A defendant’s conviction for the crime of misprision of a felony under 14 V.I.C. § 13, based upon his refusal to disclose the details of a killing he witnessed, is reversed because there was insufficient evidence to find him guilty of the elements of this offense. Since the information clearly charged a violation of § 13, providing express notice of the crime charged, his argument on appeal is construed as contesting the sufficiency of the evidence. The terms of 14 V.I.C. § 13 are not ambiguous or vague. This section unambiguously criminalizes only the willful concealment of a felony from the authorities. The three elements of an offense under § 13 are: (1) the principal committed and completed the felony alleged; (2) the defendant had full knowledge of that fact; (3) the defendant took an affirmative step to conceal the crime. In this case the prosecution failed to present sufficient evidence meriting a conviction. The People introduced no evidence at trial indicating that defendant took an affirmative step to conceal a felony and he cannot as a matter of law be found guilty of misprision of a felony under these circumstances, since the charging document clearly states that the alleged crime is based on the fact he admitted to being present during the killing and refused to provide information and/or cooperate with said police investigators. The People did not allege that defendant engaged in any conduct that would constitute concealing the crime from the authorities, such as lying to the police, hiding evidence, intimidating a witness, or harboring the individual who committed the crime. He was prosecuted only for refusing to provide the police with details of the killing, which is insufficient to support a conviction for misprision of a felony under 14 V.I.C. § 13. Therefore, because the crime of misprision of a felony under § 13 requires some affirmative act to conceal the commission of a felony and the People did not present sufficient evidence of such an act, defendant’s conviction cannot stand. The judgment of the Superior Court is reversed.
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July 22, 2014
S. Ct. Civ. No. 2012-0081
Lori G. Malloy v. Carmen Reyes, et al.
      In an action by the owner of a parcel of land on St. John, seeking a declaratory judgment that an unpaved trail at the southern tip of the east end peninsula – a portion of East End Road (Route 10) turning inland toward Newfound Bay and commonly referred to as Old Broad Road, which was a public right-of-way before the Virgin Islands became part of the United States in 1917 – remains a public right-of-way rather than a trail on private property, or alternatively that she is entitled to an easement and injunctive relief ensuring access to her property, the Superior Court erred in concluding that the Government abandoned the trail and that, as a result, the trail lost its public status. The court erred in deciding this issue sua sponte, without providing notice to the parties and an opportunity to brief this issue, and erred by applying a common law doctrine this Court has never addressed without conducting the appropriate three-factor analysis examining which common law rule Virgin Islands courts have applied in the past, next identifying the rule adopted by a majority of courts of other jurisdictions, and then finally—but most importantly—determining which common law rule is soundest for the Virgin Islands. While an official or explicit act of abandonment by the government is not required, and the intent to abandon a public easement can be shown through indirect and circumstantial evidence unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its future existence, there was no such evidence here to support the Superior Court’s finding that the public’s right was extinguished through abandonment. The judgment holding that Old Broad Road is not a public right-of-way due to abandonment is reversed, and this matter is remanded for the Superior Court to determine the metes and bounds of this public easement.
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July 18, 2014
S. Ct. Civ. No. 2012-0125
Construction Technicians and Cleve A. George v. Zurich American Insurance Co.
      In an insurer’s action to recover $26,888 as an adjusted premium for an asbestos general liability insurance policy, along with its attorney’s fees, the trial court did not abuse its discretion in deeming the insurer’s requests for admissions to be admitted in accordance with Federal Rule of Civil Procedure 36 because of defendant’s failure to serve a written answer or objection over an eight year period. The trial court did abuse its discretion when it struck the defendant’s counterclaims as a sanction for his dilatoriness, but that error was harmless in light of the admissions under Rule 36 which made the counterclaim meritless. The trial court did not err when it referenced the insured’s federal convictions for violating the Clean Air Act because Federal Rule of Evidence 609(a) allows admission of convictions that involve dishonest acts or false statements as in this case, and the defendant’s admissions included the fact of the convictions. This information was admissible not only on credibility issues but also to prove breach of the insurance policy, as provided in FED. R. EVID. 803(22). Other issues mentioned by the defendant on this appeal were never developed or presented with supporting authorities and arguments as required under V.I. SUP. CT. R. 22(a)(5), and consideration of those matters is therefore foreclosed. The Superior Court’s Finding of Facts and Conclusions of Law, and the Judgment entered on October 18, 2012, are affirmed.
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July 9, 2014
S. Ct. Civ. No. 2013-0082
In re N.A.W. & D.I.W., minors
      In denying a father's motion to have the mother of their child held in contempt for violating the terms of a child custody agreement, the Superior Court erred in determining that insufficient evidence had been presented as to the later of two contested episodes in which the mother was charged with wilfully disobeyed the Court’s order of November 15, 2012 embodying the custody provisions, since that episode occurred after the order had been entered. A prior occasion, which occurred before entry of the custody order, could not serve as the basis for a contempt finding. Despite the Superior Court's error with respect to the later occasion, the decision to impose a contempt sanction rests in its sound discretion, and all of the evidence presented may be considered, including both parties' conduct regarding court orders, in ascertaining whether imposition of a sanction is warranted. In this case, because evidence was presented that both the father and the mother had violated the terms of their stipulated child custody agreement as entered in the custody order, the Superior Court did not abuse its considerable discretion in declining to hold the mother in contempt. The Superior Court's order of September 19, 2013, denying the father's motion to show cause why the mother should not be held in contempt and sanctioned for violating the stipulated child custody agreement embodied in the November 15, 2012 Order of that Court, is affirmed.
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June 20, 2014
S. Ct. Crim. No. 2013-0071
Gibson Charles v. People of the Virgin Islands
      Convictions on multiple counts of aggravated rape, unlawful sexual contact, and child abuse of two minor victims are affirmed. There was sufficient evidence to conclude that one victim was raped on or about the time charged, when she was nine years old, and her testimony as the victim was sufficient to sustain the convictions for multiple rapes charged in three separate counts. The evidence for the charge of unlawful sexual contact, witnessed by others, was adequate for a rational trier of fact to determine that at least one act of unlawful sexual contact occurred as alleged. Evidence supporting a count charging child abuse included testimony of physical abuse by the defendant on or about the date charged. Three other counts charging aggravated rape and unlawful sexual contact with a second victim was supported by testimony concerning the month and year of the offense, and was sufficient for a rational juror to find defendant guilty of rape and unlawful sexual conduct on or about the dates charged. Reading the information in its entirety, the defendant was fairly informed of the charges against him. Adverse rulings by a trial court are generally not sufficient to establish bias, and it has not been shown that the trial judge’s decision to limit cross-examination on details of how one of the victim came to live with defendant was prejudicial. Nor was it shown that the trial court unduly “admonished” defense counsel. The judge imposed reasonable restrictions on cross-examination and permitted defense counsel to finish his line of questioning. Therefore, it cannot be said that the trial court’s actions rose to the level of actual bias or prejudice that would warrant reversal. Testimony of two physicians, governed at the time of trial by the former Uniform Rules of Evidence codified in 5 V.I.C. §§ 771-956, was not given as expert testimony but was lay witness testimony rationally based on the perceptions of the witnesses and helpful to a clear understanding of their testimony. In addition, the then-applicable evidence rules codified an exception to the hearsay rule that permitted the admission of certain prior consistent statements, and the Superior Court committed no error by permitting testimony by one of the doctors recounting the statements of one victim. If more than one conviction is based on a single act, the trial court must stay the execution of punishment for all but one of the convictions, and here the defendant was sentenced for his convictions for the aggravated rapes as well as child abuse of these victims in two counts based on the same acts constituting the rapes. He was therefore punished twice for offenses that arose out of a single act in violation of section 104. Accordingly, the case is remanded for the Superior Court to enter conviction and announce a sentence for each offense of which the defendant was convicted, but then stay imposition of punishment where 14 V.I.C. § 104 is implicated. Other necessary corrections to the September 17, 2013 Judgment and Commitment shall also be addressed by the Superior Court on remand.
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June 13, 2014
S. Ct. Crim. No. 2007-0067
Joel Dowdye v. People of the Virgin Islands
      The decision by the Superior Court embodied in an order, findings of fact and conclusions of law made after a hearing concerning removal of a juror in the prior criminal prosecution, as directed by this Court in an Order of remand reflecting the law of this case, is affirmed. Although the judgment of a plurality of this Court is that the Superior Court did not commit reversible error under this Court’s prior mandate, the concurring Justice agreed with the dissenting Justice that the plurality opinion does not set forth the appropriate test an appellate court must apply when reviewing a trial judge’s decision to remove a sitting juror. Because the prior decision in this matter, Dowdye v. People, 55 V.I. 736 (V.I. 2011), rejected all of the other arguments advanced on appeal to challenge defendant’s convictions on six counts of murder and unlawful wounding, those convictions are affirmed.
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May 6, 2014
S. Ct. BA. No. 2014-0025
In re Application of Gregory Nevins
      It is the unauthorized practice of law and a violation of 4 V.I.C. § 443 for an individual – including a pro hac vice applicant who has not taken the oath of office – to perform any legal services or to hold himself or herself out as a Virgin Islands attorney when not yet admitted to the Virgin Islands Bar. Accordingly, a petition for pro hac vice admission of a Georgia attorney, whose signature appeared on an appellate brief and joint appendix in another matter before the Supreme Court of the Virgin Islands before the Court had either reviewed or ruled upon that petition, is denied. The fact that the attorney included the designation “pro hac vice application pending” after his name on those filings does not render his conduct any less improper. Several months before this petition was filed, the Court had issued a published opinion explaining that § 443, and not A.B.A. Model Rule of Professional Conduct 5.5, governs the unauthorized practice of law in the Virgin Islands, and the Virgin Islands Rules of Professional Conduct, including Rule 211.5.5 (which specifically references § 443), became effective six weeks before the petition, on February 1, 2014. Neither § 443, Rule 211.5.5, nor any other authority codifies a pro bono exception to the prohibition on unauthorized practice of law. Since pro hac vice admission is a privilege and not a right, and this attorney has never been authorized to assist the appellants with their appeal, denying such admission cannot result in any prejudice, particularly since appellants may continue to be represented by the licensed Virgin Islands attorney who moved for the Georgia attorney’s pro hac vice admission. The March 20, 2014 petition is denied. In addition, since the underlying conduct may potentially warrant action beyond the denial of pro hac vice admission, the matter is referred to the Virgin Islands Attorney General, the Unauthorized Practice of Law Committee, and the Office of Disciplinary Counsel for the purpose of taking any additional action which they may find appropriate.
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April 28, 2014
S. Ct. Civ. No. 2010-0040
Aubrey Walters v. Elvira Walters
      In an action apparently seeking restitution under a quantum meruit theory for work done on a parcel of real property, and alleging a fraudulent conveyance, summary judgment rulings for the defendant are affirmed. Plaintiff made judicial admissions that no actual agreement existed between the parties. A claim for unjust enrichment requires the plaintiff to prove (1) that the defendant was enriched, (2) that such enrichment was at the plaintiff’s expense, (3) that the defendant had appreciation or knowledge of the benefit, and (4) that the circumstances were such that in equity or good conscience the defendant should return the money or property to the plaintiff. Here the plaintiff failed to meet his burden to show that the defendant ever requested that plaintiff perform the services, or that he had ever even broached the question of compensation or reimbursement. The Superior Court correctly denied summary judgment on the unjust enrichment or quantum meruit claim. It also correctly denied a motion for summary judgment on the fraudulent conveyance claim, since the record contains no evidence that plaintiff was the defendant’s creditor, and the fact that the property was transferred by defendant without consideration does not, without more, establish intent to defraud. Two motions for recusal of the trial judge, governed by 4 V.I.C. § 284(4), were wholly without merit. Thus it was not error for the judge to preside over the trial of this action or to issue the May 7, 2010 Order dismissing this complaint with prejudice. That Order is affirmed.
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April 25, 2014
S. Ct. Civ. No. 2013-0092
Claude M. Brouillard, et al. v. DLJ Mortgage Capital Inc.
      An appeal by parties challenging foreclosure upon their real property for failure to make timely mortgage payments, commenced after entry of an order in the Superior Court granting summary judgment to the successor creditor and ordering the debtors to pay some $382,000, is dismissed as a result of the debtors’ filing a “Notice of Bankruptcy” with this Court, giving notice that the husband has filed a petition for bankruptcy with the United States Bankruptcy Court for the District of Connecticut. The automatic statutory stay of litigation under the federal Bankruptcy Act, 11 U.S.C. § 362, is applicable to an appeal from a case filed against a debtor as a “continuation . . . of a judicial, administrative, or other action or proceeding,” and compels suspension of this appeal, as it relates to the husband and wife, during the pendency of the husband’s bankruptcy petition. The practice of dismissing the appeal without prejudice to its re-filing upon either termination of the bankruptcy proceedings or the lifting of the § 362 stay by the bankruptcy court represents the soundest method for achieving compliance with the federal mandate. Within 60 days of the conclusion of the bankruptcy proceedings or the date the bankruptcy court enters an order terminating the automatic stay, the appellants may file a new notice of appeal with this Court, which shall be effective to appeal the Superior Court’s September 26, 2013 Judgment notwithstanding any contrary provision in the rules of appellate procedure. Because the required docketing fee has already been paid, and pertinent transcripts ordered and paid for, upon the filing of a new notice of appeal, they shall neither be assessed a second docketing fee nor required to re-order the same transcripts. Notwithstanding Supreme Court Rule 30(a), no costs shall be assessed against with respect to this appeal. This appeal is dismissed without prejudice to its re-filing within 60 days of the conclusion of the bankruptcy proceeding currently pending in the United States Bankruptcy Court for the District of Connecticut, or the lifting of the bankruptcy stay by that court, whichever first occurs.
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April 14, 2014
S. Ct. Civ. No. 2012-0092
Better Building Maintenance of the V.I., Inc. v. Andrea Lee
      A Superior Court judgment entered on a jury verdict awarding damages to an employee of a large discount department store for a slip-and-fall incident occurring in the store is affirmed. Although the Superior Court abused its discretion in admitting a misdemeanor conviction for possession of stolen property for purposes of impeaching a defense witness where there was no indication that the conviction involved dishonesty or false statement as required under Federal Rule of Evidence 609(a), that error was harmless in light of another, more serious criminal conviction – a felony – used to impeach the same witness. Testimony in this case regarding plaintiff's future medical expenses was not too speculative to support the jury’s award and it was not an abuse of discretion to admit this testimony. Even though the jury should not have been instructed to reduce any future damages award to present value – since this issue must be treated like an affirmative defense and defendant did not request this instruction or introduce evidence to support it – remanding for a new trial on future medical expenses without consideration of present value would provide greater (and unrequested) relief to plaintiff, who not only failed to file a cross-appeal, but also expressly does not request such relief. Accordingly, the Superior Court’s August 13, 2012 judgment is affirmed.
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April 11, 2014
S. Ct. Civ. No. 2014-0006
Tip Top Construction Corp. v. Government of the Virgin Islands
      The Superior Court’s order denying a motion for a preliminary injunction filed by a road construction company that bid on a street improvement project to be paid for with federal highway funding, is reversed. In deciding whether to grant a preliminary injunction, the Superior Court must consider (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest. While judicial review of procurement decisions are extremely limited in scope, here the bidder has shown that it is likely to succeed on its claim that the Government summarily rejected its bid – which was some $2 million lower than the other submitted bid – without a sufficient written justification in violation of provisions of the Code of Federal Regulations, 23 C.F.R. § 635.114(d). Since the Government has not challenged the Superior Court’s finding that the remaining three factors all favor the grant of a preliminary injunction, the January 22, 2014 Order of the Superior Court is reversed and the case is remanded so that the Superior Court may grant the motion for a preliminary injunction while it considers its claims on the merits.
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April 7, 2014
S. Ct. Civ. No. 2013-0050
Njeri Tutein v. Juan Arteaga
      In custody litigation between the unmarried biological parents of a minor, although the Superior Court erred in invoking 16 V.I.C. § 142(a), an adoption statute, as a basis for appointing an attorney to serve as a guardian ad litem for the child in this proceeding, the error was harmless because—even in the absence of statutory authority—the Superior Court has the common law authority pursuant to its parens patriae power to appoint a guardian ad litem in a custody dispute, to (1) investigate the facts surrounding a case, (2) report those facts to the Superior Court, (3) testify at the hearing before the court, and (4) make a recommendation to the court on the disposition of custody whenever the welfare of the child is at issue. To avoid ambiguity, when appointing a guardian ad litem in a child custody proceeding, the appointing court should clearly specify the terms of the appointment, including the guardian’s role, duties, and scope of authority. A court’s authority to appoint a guardian ad litem in a custody case ensures that the court will be able to make its decision based on complete, objective information that otherwise may have been unavailable to the court. Such a role is particularly helpful to a court when the parents have demonstrated a pattern of adversarial behavior or when there are concerns about whether all relevant information will be brought to the court’s attention. The scope of the appointed attorney's participation as guardian ad litem in the present case was entirely proper. In addition, because both parties had the opportunity to cross-examine the guardian at the custody hearing regarding her written report, the mother was not denied procedural due process. The Superior Court did not abuse its discretion in awarding custody of the minor to the father, because the court properly enumerated the relevant factors and considered the minor's best interests in weighing the evidence. The Superior Court’s June 12, 2013 Order is affirmed.
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March 24, 2014
S. Ct. Civ. No. 2011-0011
Joseph Elliott, Jr. v. People of the Virgin Islands
      The Superior Court did not err in denying the petitioner’s application for a writ of habeas corpus. Petitioner’s guilty plea admitted all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence, and a defendant who has pled guilty has waived, for purposes of both direct appeal and a collateral habeas corpus application, all errors that purportedly occurred prior to acceptance of the plea agreement, other than those relating to the subject-matter jurisdiction of the Superior Court, the voluntariness of the plea agreement itself, and ineffective assistance of counsel at the plea agreement stage. In this case, the neither the petition nor petitioner’s appellate brief has raised any arguments challenging such matters. The amendment made to the information against the petitioner was prompted and necessitated by his plea agreement and by pleading guilty he has waived the issue of insufficiency of the evidence to support his guilty plea. The November 30, 2010 Order denying this request for habeas corpus relief is affirmed.
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March 10, 2014
S. Ct. Crim. No. 2012-0140 and S. Ct. Crim. No. 2012-0145
Kamal Thomas v. People of the Virgin Islands; Anselmo Boston v. People of the Virgin Islands
      After convictions of two defendants on charges of third-degree assault, using a dangerous weapon, and simple assault, along with two counts for attempts by one defendant to intimidate witnesses, the cases were reviewed in a prior appeal in decisions reported as Thomas v. People, 56 V.I. 647, 649-51 (V.I. 2012) and Boston v. People, 56 V.I. 634, 636 & n.7, 646 (V.I. 2012), and then remanded for a Superior Court hearing to ascertain whether juror misconduct occurred in the trial and, if it did, whether it was prejudicial. A determination regarding juror misconduct is a factual determination reviewed only for abuse of discretion. In this case the Superior Court emphasized that none of the other jurors corroborated the misconduct allegations. Considering the entire record, it cannot be said that in deciding whether to believe a witness or other jurors, all of whom uniformly denied the allegations, the trial court clearly erred when it concluded that no misconduct had occurred. Although the Superior Court’s premise that an intra-jury statement by definition could not be extraneous within the meaning of Federal Rule of Evidence Rule 606(b) was in error, these defendants nevertheless failed to meet their burden of demonstrating that any misconduct occurred during deliberations. Evidence was introduced without objection at trial making the jurors aware that the victim had died and that his death had been investigated as a homicide. Jurors could not have engaged in misconduct simply by discussing, during deliberations, evidence that was properly introduced as substantive evidence without challenge from these defendants. Accordingly, the Superior Court’s error in restricting the scope of the hearing is harmless since any discussion of who killed the murder victim that may have occurred during deliberations would not constitute juror misconduct. The trial court’s finding that no misconduct occurred was not clearly erroneous, and the judgments are affirmed.
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March 6, 2014
S. Ct. BA. No. 2014-0005
In re Application of Yvette De Luna
      In a contested application for admission to practice law in a pending litigation in the Virgin Islands pro hac vice, a prior order granting the application is revoked, the application for such admission is denied, and the matter is referred to the appropriate authorities. The attorney admits sending an email in the underlying lawsuit, which has been provided to this Court, and which identifies her as an attorney for a party in a pending litigation, when – in fact – at that date this Court had not even granted the motion to admit her pro hac vice contingent upon execution of the oath. Holding oneself out as a licensed Virgin Islands attorney, such as through communications with other parties, constitutes the unauthorized practice of law in the Virgin Islands. Since the underlying conduct may potentially warrant action beyond the denial of pro hac vice admission, this matter is referred to the Virgin Islands Attorney General, the Unauthorized Practice of Law Committee, and the Office of Disciplinary Counsel for the purpose of taking any additional action which they may deem appropriate. The February 6, 2014 Order admitting the attorney pro hac vice contingent upon execution of the oath is revoked, and the petition for her admission is denied.
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March 5, 2014
S. Ct. Crim. No. 2012-0012
Patrick L. Webster, Jr. v. People of the Virgin Islands
      Considering defendant’s convictions for aggravated assault and battery and disturbing the peace, both as acts of domestic violence as defined by 16 V.I.C. § 91(b), and unauthorized use of a vehicle, the Superior Court committed plain error in entering a conviction against the defendant pursuant to 14 V.I.C. § 298(5), which enhances simple assault to aggravated assault based only on the respective sexes of the attacker and the victim, thereby violating the Equal Protection Clause of the Fourteenth Amendment. That conviction is vacated. With respect to the defendant’s arguments regarding his convictions for disturbing the peace under 14 V.I.C. § 622(1) and unauthorized use of a vehicle under 14 V.I.C. § 1382, which are construed as challenges to the sufficiency of the evidence supporting those convictions, the evidence was sufficient to support each conviction; accordingly, those convictions are affirmed.
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February 28, 2014
S. Ct. Civ. No. 2013-0099
In the Matter of Q.G., a minor
      After the mother of a young child was taken into custody pursuant to a warrant issued by the State of California and the child was placed with the Virgin Islands Department of Human Services on an emergency basis, the Superior Court erred in proceedings relating to custody by summarily denying a motion by the child’s grandfather to intervene. Meaningful appellate review is impossible when the court fails to explain the reasons for its actions, and this error was not cured by the Superior Court’s subsequent Rule 4(f) submission explaining its reasoning, because it failed to apply the four factors prescribed by case law governing intervention motions under Federal Rule of Civil Procedure 24(a)(2), focusing upon whether the movant has established that the application for intervention is timely, the applicant has a sufficient interest in the litigation, which may be affected or impaired as a practical matter by disposition of the action, and the interest is not adequately represented by an existing party in the litigation. Despite the Superior Court’s errors in acting summarily and failing to apply the proper legal standard, those errors are harmless in this case because the grandfather failed to meet his burden on the motion of showing he was entitled to intervene as of right under all four of the applicable factors. Therefore, the October 28, 2013 Order denying the grandfather’s motion to intervene is affirmed.
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February 25, 2014
S. Ct. BA No. 2009-0220 and S. Ct. BA. No. 201-0106
In re Michael Motylinski, Esq.
      In matters previously before this Court, reviewed again pursuant to a December 2, 2013 Memorandum Decision rendered by the Ethics & Grievance Committee of the Virgin Islands Bar Association regarding a former specially admitted member of the Virgin Islands Bar and current applicant for pro hac vice admission, while the attorney is not sanctioned for violating Supreme Court Rule 202 for failure to disclose in his special admission application that he had switched from active to inactive status in Ohio, he continued to represent a private client during a two to three month period while employed as an Assistant Attorney General, in violation of 3 V.I.C. §117. The attorney also violated the applicable provisions of 4 V.I.C. § 443 governing the unauthorized practice of law in the Virgin Islands after leaving the office of the Attorney General by holding himself out as a licensed Virgin Islands attorney, using titles to convey that impression, performing acts that can only permissibly be done by a member in good standing of the Virgin Islands Bar such as drafting contracts for a company, preparing reports for an entity with the knowledge that they would be filed with pertinent regulatory agencies, and otherwise ensuring that various legal requirements were satisfied. The attorney's failure to amend his pro hac vice application in the Virgin Islands after the Ohio Supreme Court issued its opinion imposing a six-month stayed suspension was a violation of Model Rule 8.1, admitted by the attorney. The Committee's factual findings and legal conclusions as they pertain to the attorney's ethical violations are accepted and the attorney's application for pro hac vice admission is denied. A sanction is imposed upon the attorney in the form of a six-month stayed suspension as reciprocal discipline for misconduct found by the Supreme Court of Ohio; a one-year suspension for additional misconduct in the Virgin Islands which was not the subject of the Ohio proceedings; a $1,000 fine, and payment of costs.
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February 25, 2014
S. Ct. Civ. No. 2013-0041
Michael Palisoc et al. v. Dr. Vincente Poblete
      After suspicions about operation and handling of cash receipts from a restaurant and grocery business led to criminal charges of embezzlement, grand larceny and forgery – but trial of those charges resulted in a not-guilty verdict – the Superior Court did not err in granting summary judgment for the defense in the present malicious prosecution case brought by the former criminal defendant against the person who reported the suspicions to the authorities. The soundest rule for the Virgin Islands is to adopt the following elements for a malicious prosecution cause of action: (1) the defendant initiated or procured a criminal proceeding against the plaintiff; (2) the absence of probable cause for the proceeding; (3) malicious intent on the part of the defendant; and (4) termination of the proceeding in favor of the plaintiff. Restatement (Second) of Torts § 653 is adopted for its commentary analysis in applying these elements. The correct analysis for determining probable cause in a malicious prosecution case is to determine whether the defendant, not the police, the prosecutor or the judge, reasonably believed that the person accused has acted or failed to act in a particular manner, that those acts or omissions constitute the offense that he charges against the accused, and that he is sufficiently informed as to the law and the facts to justify him in initiating or continuing the prosecution. While the Superior Court misapplied the probable cause standard, its error was harmless since defendant was entitled to summary judgment under the correct standard. The record establishes that defendant reasonably believed that the plaintiff was misappropriating company funds and thus had sufficient probable cause to report his suspicions to the Virgin Islands Department of Justice. As a result, this plaintiff failed to sufficiently prove the second element of a malicious prosecution claim, the lack of probable cause. He also failed to show that the defendant's desire to have the criminal proceedings initiated was the determining factor in the government commencing prosecution, or that defendant provided false information to the police. The Superior Court's grant of summary judgment in favor of the defendant in its May 2, 2013 Order is affirmed.
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February 24, 2014
S. Ct. Civ. No. 2013-0095
Government of the Virgin Islands, et al. v. Amorite Connor
      In a case brought by the estate of a decedent against Government of the Virgin Islands and the Department of Public Works, the Superior Court erroneously invoked 1 V.I.C. § 4—a statute effectively repealed through the Legislature’s adoption of 4 V.I.C. § 21 in 2004 —in entering judgment for the plaintiff in a mechanistic and uncritical application of provisions in the Restatements of the Law of Torts and Agency, without conducting the multi-part analysis required by this Court’s decision in Banks v. International Rental & Leasing Corp., 55 V.I. 967, 979 (V.I. 2011) and subsequent case law. The judgment is summarily reversed pursuant to V.I.S.CT. I.O.P. 9.4 and the case is remanded to the Superior Court for further proceedings. On remand, the Superior Court should determine, on the record, the appropriate common law rules by first ascertaining whether any Virgin Islands courts have previously adopted a particular rule, then identifying the position taken by a majority of courts from other jurisdictions, and finally determining which approach represents the soundest rule for the Virgin Islands. The Superior Court is empowered to alter any of its prior holdings in the underlying action to the extent it concludes that consideration of these factors does not support its previous reliance on the Restatements. Upon issuance of a new final judgment, either party may return this matter to this Court through the filing of a new notice of appeal.
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February 24, 2014
S. Ct. Civ. No. 2013-0001
Delia Thomas, et al. v. Virgin Islands Board of Land Use Appeals, et al.
      In an appeal by neighboring landowners challenging construction of a church pursuant to a Coastal Zone Management permit issued by the Virgin Islands Board of Land Use Appeals, orders of the Superior Court dismissing the claims and entering summary judgment in favor of the church are affirmed. The Superior Court correctly determined that 12 V.I.C. § 913(b)(2) governed the action for declaratory relief because the plaintiffs were asking the court to compel the Board to perform its statutory duty. It also correctly dismissed their untimely writ of review, the late filing of which could not be excused. Consistent with longstanding Virgin Islands law, restrictive covenants are narrowly construed in promotion of the free use of land, and the provisions of § 4.1 of the Restatement (Third) of Property: Servitudes on this topic are rejected. Under the proper standard, the restrictive covenant at issue in the present litigation does not prohibit the construction of a church. Therefore, the Superior Court’s August 3, 2009 and November 30, 2012 Orders dismissing these claims and awarding summary judgment to the church are both affirmed.
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February 12, 2014
S. Ct. Civ. No. 2013-0117
In re David W. Iverson
      In the course of proceedings on a petition filed by the Virgin Islands Bar Association seeking the suspension of an attorney who is licensed to practice law in the Virgin Islands for non-payment of membership dues, the Court discovered that the attorney had been suspended from the practice of law by the Supreme Court of Florida and the United States Department of Justice’s Executive Office for Immigration Review based on ethical misconduct for a period of ninety days, followed by one year of probation, but that the attorney had failed to disclose either suspension to the Court as required by Supreme Court Rule 203 (c)(1). Although instances of additional ethical misconduct are typically adjudicated as new disciplinary matters, when that misconduct involves the failure to notify a court of public discipline imposed by another jurisdiction in a timely manner or to respond to a reciprocal discipline show cause order, a court is authorized to order an increased sanction as part of the reciprocal discipline proceeding. In this case, the attorney not only failed to promptly notify this Court of the public discipline imposed upon him by the Supreme Court of Florida and the Executive Office for Immigration Review, but in a filing made with the Court, also dishonestly attributed his suspension by the Executive Office to a defect in the Virgin Islands Bar Association’s membership directory. Moreover, when this Court brought these matters to the attorney’s attention, he failed to respond to the substance of this Court’s concerns, instead agreeing to pay all outstanding membership dues to the Bar Association “under protest” and requesting that this Court simply dismiss this matter. Under these circumstances, a six month suspension represents the appropriate reciprocal discipline. The petition to suspend the attorney for non-payment of dues is dismissed as moot, but the attorney is suspended as a member of the Virgin Islands Bar for six months. Because the period of suspension exceeds three months, the attorney may not transfer to active status or otherwise resume the practice of law in the Virgin Islands until he files, and this Court grants, a petition for his reinstatement in accordance with Supreme Court Rule 203(h).
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February 11, 2014
S. Ct. Civ. No. 2012-0119
In re Suspension of Michael A. Joseph, Esq.
      A consolidated petition for disciplinary action filed by the Ethics and Grievance Committee of the Virgin Islands Bar Association requesting, among other remedies, suspension of an attorney from the practice of law as a sanction for misconduct in numerous matters in the federal courts, is granted as modified. The attorney violated Model Rule 8.1(b) with respect to each of several grievances, but the record does not support a finding that he violated Model Rules 1.3, 1.4, 1.5, 1.16, 3.3, 3.4, and 8.4. Some of the grievances were not initiated for more than a decade and were decided some 14 years after the alleged conduct, such that prejudice must be presumed supporting a laches defense, and the Committee – not the respondent attorney – bore the burden of proving by clear and convincing evidence that no prejudice occurred or that the delay in filing the grievance was otherwise justified. In another grievance, Supreme Court Rule 207.1.2(b) is not interpreted to require a respondent to disclose voluntarily the existence of privileged materials, and to the extent Disciplinary Counsel or the Committee questioned the claim that the documents were privileged, or believed that the attorney had failed to disclose non-privileged documents, the Rule 207.2.8 procedure should have been followed, rather than conducting a hearing without the document, ruling in the attorney’s favor on the merits, and then using Model Rule 8.1(b) as a basis to sanction him for omissions that he could reasonably have believed had been excused. The record does not support imposition of sanctions on a sixth matter, raised on the initiative of the Committee, stemming from the attorney’s failure to pay restitution to a client, since it was not shown that he willfully refused to pay restitution, as opposed to simply not having the means to pay it. Based the attorney’s six separate violations of Model Rule 8.1(b), the appropriate sanction for his misconduct is determined considering the duties violated, the lawyer’s mental state, the potential or actual injury caused by his misconduct, and the existence of aggravating or mitigating factors. In light of the aggravating disciplinary issues, a public reprimand, placing the attorney on probation for one year, as well as a requirement for completion of seven credit hours of continuing legal education in the areas of ethics and law firm management, which shall be in addition to the annual 12 credit hours required by Supreme Court Rule 208, is the appropriate sanction imposed for the misconduct involved.
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February 7, 2014
S. Ct. Crim. No. 2013-0060
David M. Lopez v. People of the Virgin Islands
      Considering the defendant's appeal of the denial of his request for the application of 5 V.I.C. § 3711(c) to his sentence following his conviction for failure to report a firearm obtained outside or brought into the Virgin Islands in violation of 23 V.I.C. § 470(a), based on the exclusion pertaining to the "use of a deadly weapon" prescribed in 5 V.I.C. § 3711(c), the “use” of a firearm requires the utilization of the firearm in some activity or employing it to achieve or complete an objective. Thus, to come within the ambit of the 5 V.I.C. § 3711(c) exclusion, a deadly weapon must be put in service or used in an activity for which it was manufactured. Here, the defendant simply failed to report the firearm to the Commissioner, and it was not utilized or used in any overt or manifest action. Thus, the Superior Court made an errant conclusion of law, amounting to an abuse of discretion, in determining that the defendant's conviction did not qualify for the favorable treatment options provided by 5 V.I.C. § 3711(c). The matter is remanded to the Superior Court for further consideration of the sentence, including a determination on the application of 5 V.I.C. § 3711(c) thereto, in accordance with this opinion.
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February 7, 2014
S. Ct. Crim. No. 2010-0104
Thomas Wayne Hightree v. People of the Virgin Islands
      In proceedings related to defendant's plea of guilty and his sentencing on charges of aggravated rape in the first degree pursuant to 14 V.I.C. § 1700(a)(1), involving a minor victim, the Superior Court did not err in refusing to permit the defendant to withdraw his guilty plea, in suspending five years of his sentence, or in stating that he would be eligible for parole after 15 years. Likewise, the ultimate incarcerative sentence imposed—35 years imprisonment with five years suspended—was not substantively unreasonable. However, the Superior Court erred when it imposed $3,500 in restitution as part of its sentence without having advised defendant of the possibility that restitution might be a possible penalty, and it also erred in stating that defendant could register as a sex offender within five years after his release. The conviction is affirmed, and the case is remanded to the Superior Court for the limited purpose of making corrections to the sentence consistent with this Opinion.
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January 29, 2014
S.Ct. Crim. No. 2012-0020
Jensen Ken Alexander v. People of the Virgin Islands
      Defendant’s convictions for several crimes, including rape and murder, are affirmed. Denial of his motion in limine to exclude testimony of his business partner because it conflicted with that of the rape victim was not error since that testimony was not prejudicial to defendant, and conflicts in the proof cannot reasonably be said to have confused the jury, which determines the credibility of witnesses in a jury trial. Here the jury was properly instructed on how to rationalize conflicting testimony. Nor was the defendant prejudiced by the trial court’s sua sponte action in setting time parameters regarding the demand for notice of an alibi defense. While trial court erred when it admitted a smiling, in-life photo of the victim into evidence, creating the risk of arousing sympathy in the jury, that error was harmless considering the overwhelming evidence presented against the defendant. The argument that exclusion of certain evidence attacking the rape victim’s credibility was error is barred by this defendant’s failure to follow the motion procedure required by Federal Rule of Evidence Rule 412(b) and (c). The trial court did not abuse its discretion in limiting the testimony of the defense’s expert forensic pathology witness, including his opinion on the identity of the assailant, since any such testimony would invade the province of the jury and lay outside the scope of the doctor’s expertise. It was thus inadmissible under Federal Rules of Evidence 702 and Rule 703 for lack of a reasonable foundation. Finally the evidence to convict was sufficient and a reasonable jury could have found that the defendant possessed the requisite malice aforethought which is manifested by the evidence on record. Evidence of defendant’s rape and assault was overwhelming. The convictions are affirmed.
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January 22, 2014
S. Ct. Crim. No. 2012-0009
Wayne Alberto Peters v. People of the Virgin Islands
      An attempted appeal from convictions for simple assault and battery and disturbing the peace is dismissed because the notice of appeal was filed well outside of the time allotted by Supreme Court Rule 5. Nothing in the present records supports the assertion that the Judgment and Commitment was not served upon defense counsel until shortly before the notice of appeal was filed. Supreme Court Rule 5(b)(1) provides that a notice of appeal must be filed within 30 days after the entry of a final order issued in a criminal case. While Rule 5(b)(6) allows this deadline to be extended by an additional 30 days upon a showing of excusable neglect or other good cause, the Superior Court lacked the authority to extend the deadline to 105 days after the entry of a final order. Under 4 V.I.C. § 31(b)(1) the Court sitting as a panel is vested with the authority to dismiss untimely appeals; the provision that the “Chief Justice alone” may dismiss an appeal does not mean that only the Chief Justice acting alone may dismiss an appeal, as noted in V.I.S.CT.I.O.P. 9.3.1. No statute or court rule allows the Superior Court to grant a defendant 105 days to file an appeal with this Court after the entry of a final judgment and, accordingly, despite its finding of good cause for the late appeal, the Superior Court erred in granting the motion for extension of time in this case. This notice of appeal is dismissed as untimely.
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January 22, 2014
S. Ct. Civ. No. 2011-0057
St. Croix, Ltd., et al. v. Shell Oil Co, et al.
      In an action by owners and operators of numerous apartments in three complexes seeking to recover compensatory, consequential, and punitive damages allegedly caused by faulty polybutylene plumbing in their complexes, in a proposed class action, dismissal of the action against two of the corporate defendants based on lack of personal jurisdiction is affirmed. The Superior Court may exercise personal jurisdiction over an out-of-state defendant only where the plaintiff has satisfied the requirements of the long-arm statute, 5 V.I.C. § 4903, and the exercise of personal jurisdiction satisfies the requirements of due process. Because these defendants challenged the Superior Court’s exercise of personal jurisdiction by pre-answer motion, it was the plaintiffs' burden to show that the court had personal jurisdiction. Because the Superior Court allowed jurisdictional discovery but did not hold an evidentiary hearing, plaintiffs were only required to establish a prima facie case for jurisdiction through evidence supporting their factual allegations. Nonetheless, nothing in any evidence plaintiffs submitted shows that these two defendants engaged in any activity at all in the Territory, let alone transacted any business in this territory as required for personal jurisdiction under 5 V.I.C. § 4903(a)(1). Similarly, under § 4903(a)(4), plaintiffs failed to show that these defendants regularly transacted or solicited business in the Virgin Islands, engaged in any other persistent course of conduct in the territory, or derived substantial revenue from goods or services consumed in the Virgin Islands. General assertions that these two defendants and other companies engaged in a nationwide campaign to create a market for polybutylene piping does not change the fact that plaintiffs failed to submit any evidence that either defendant engaged in business activities in the Territory as required by § 4903. Even if plaintiffs could proceed on a theory that these defendants were co-conspirators of another company that was subject to jurisdiction here, an issue not decided in this appeal, the general rule that a plaintiff must make a prima facie showing of the pertinent jurisdictional facts applies to any theory of conspiracy-based jurisdiction, and here there was no evidence that these two defendants knew or should have known that another company's activities would cause injury in the Virgin Islands. Consequently, plaintiffs failed to establish a prima facie case in support of the Superior Court’s assertion of personal jurisdiction over these two defendants, it was not error to grant their motions to dismiss for lack of personal jurisdiction. Arguments concerning alleged failures to comply with discovery obligations relate to rulings that were not designated in the plaintiffs' notice of appeal as required V.I.S.CT.R. 4(c), and will not be addressed. The judgment appealed from is affirmed.
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January 17, 2014
S. Ct. Civ. No. 2013-0021
Clifton Boynes v. Transportation Services of St. John, Inc.
      In a proceeding to enforce a mediated settlement in an action for conversion and declaratory relief involving ownership of shares in a marine mass transit company, the Superior Court's order enforcing the agreement and ordering the plaintiff to sell his shares of stock to the corporation is affirmed in part and reversed in part. A mediated settlement agreement is an enforceable contract governed by basic contract principles, and a trial court has inherent power to supervise and enforce settlement agreements entered into by parties to a pending action. Thus the Superior Court did not err in concluding that it had the authority to enforce the parties’ agreement. However, it erred in ordering plaintiff to sell his shares for $0.00 without the parties having first exhausted the agreed procedure for determining the fair market value of those shares. Because both parties failed to comply with the procedures outlined in the agreement, it was impossible for the two designated accountants to agree upon a firm fair market value for the stock that the parties could accept. The Superior Court should have enforced the terms of the entire agreement by requiring the parties to complete the specified valuation and appraisal process by retaining a third, independent accountant to establish a binding fair market value in light of the fact that the parties disagreed as to a firm value of the stock. The Superior Court’s order of February 14, 2013 is reversed and the matter is remanded with instructions that the Superior Court administer the appointment of a third accountant to independently appraise the fair market value of the stock under strict deadlines, as contemplated under the parties' agreement.
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January 17, 2014
S. Ct. Civ. No. 2013-0011
In re Suspension of Desmond L. Maynard, Esq.
      In a disciplinary action brought by petition of the Ethics and Grievance Committee of the Virgin Islands Bar Association, requesting among other things an order suspending an attorney from the practice of law for six months, because the Committee violated this attorney's due process rights by allowing one of its members to serve as his counsel, the petition is denied without prejudice and the matter is remanded for the Committee to conduct a new hearing before a different panel. Under Model Rule for Lawyer Disciplinary Enforcement 2.6(1) as well as Model Rules of Professional Conduct 1.7 and 1.12 counsel could not permissibly represent this attorney while simultaneously serving on the Committee, let alone actually presiding over other grievances involving this attorney. To waive a conflict Model Rule of Professional Conduct 1.7(b)(4) requires informed consent and nothing in the record reflects that the attorney was ever informed that his counsel was also a member of two panels assigned to adjudicate other grievances that were pending against him. The attorney was likely prejudiced by the representation and even assuming, without deciding, that the attorney did not suffer direct prejudice, a new hearing is warranted because to hold otherwise would cause the public to question the integrity of the attorney discipline system.
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January 10, 2014
S. Ct. Civ. No. 2013-0068
Delroy Sweeney v. Dr. S. Richard Ombres
      An order of the Superior Court dismissing this medical malpractice action based upon Federal Rule of Civil Procedure 25 for failure to make a motion for substitution in relation to a deceased party within 90 days of a notice of the defendant's death is summarily reversed. While Superior Court Rule 7 provides that the practice and procedure in that court shall be governed by the Rules of the Superior Court and, to the extent not inconsistent therewith, by the Federal Rules of Civil Procedure, that Rule does not vest litigants or the Superior Court with a license to ignore local Virgin Islands statutes and court rules and replace those requirements with federal law. In this case, 5 V.I.C. § 78 governs substitution of parties in a civil case upon death, and allows up to two years for a motion to allow the action to be continued by or against a decedent's personal representatives or successor in interest. This two-year limitations period, and not the 90-day period in Federal Rule of Civil Procedure 25, that governs substitution of deceased parties in Superior Court proceedings. Consequently, the Superior Court committed error when it applied Federal Rule 25 to the exclusion of 5 V.I.C. § 78. The August 23, 2013 Order is reversed and the case is remanded to the Superior Court for further proceedings.
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January 9, 2014
S.Ct. Crim. No. 2011-0080
Ralph G. Brathwaite, Jr. v. People of the Virgin Islands
      No reversible error was committed during defendant's trial for several crimes relating to the rape of his minor daughter, and his convictions are affirmed. Biblical references made during closing arguments and at sentencing by the prosecutor were improper, but it is clear beyond a reasonable doubt that this error did not seriously affect the fairness or integrity of the proceedings. The testimony of the victim was sufficient to establish the elements of all the crimes charged, and sufficient to support his convictions. The defendant's convictions for child abuse under 14 V.I.C. § 505 are not unconstitutional on vagueness grounds as the statute is applied to this case since this defendant's conduct clearly fell within the ambit of what is prohibited by this statute, and defendant does not have standing to challenge the vagueness of the statute as applied to other situations. The sentences to periods of incarceration with five years suspended and credit for time served for four counts of the information are not split sentences. The provisions of 5 V.I.C. § 3711 are not applicable to these convictions, and defendant did not show how the suspensions affected his substantial rights. Since the trial court did not suspend any portion of the statutory minimum period of incarceration, or impose a term of probation or parole that would lower the period of incarceration below fifteen years, the suspension of sentence in this case was not error. All of the defendant's convictions are affirmed.
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January 8, 2014
S. Ct. Crim. No. 2012-0007
Colly Cascen v. People of the Virgin Islands
      The defendant’s convictions for first-degree murder, reckless endangerment, and use of a dangerous weapon during the commission of a crime of violence are affirmed, while his convictions for unauthorized possession of a firearm and third-degree assault are reversed. The jury instructions properly laid out the elements of first-degree murder under 14 V.I.C. § 922(a)(1) and – under the common law doctrine of transferred intent – the evidence was sufficient for the jury to find that defendant fired a weapon with the premeditated intent to kill one individual but killed another victim in the process, supporting his conviction for first-degree murder. Evidence that defendant fired a gun into a gathering of people was sufficient to support his convictions for reckless endangerment and for use of a dangerous weapon. On the charge of third-degree assault of a minor at the scene of the shooting, there was no evidence at trial that defendant intended to assault this youth, and his intent to kill another individual cannot be transferred to support the assault conviction, leaving the evidence insufficient to support that conviction. On the charge of unauthorized possession of a firearm during the commission of a crime of violence under 14 V.I.C. § 2253(a), the Superior Court denied defendant’s confrontation rights by limiting his cross-examination of the firearms records witness who prepared two absence-of-entry forms indicating that search of firearms records revealed that he did not have a license to possess a firearm in the Virgin Islands at the time of the shooting. Those forms were clearly testimonial statements as defined by the Supreme Court of the United States, and – while the official who prepared both forms did testify at trial – a defendant is still denied the right to confront a witness where constitutionally impermissible restrictions are placed on cross-examination. Because the absence-of-entry forms were the only evidence supporting conviction for unauthorized possession of a firearm, it cannot be said that this error was harmless because the jury must have relied on them in returning a guilty verdict. Thus the conviction for unauthorized possession of a firearm during a crime of violence is reversed. The Superior Court did not deny defendant the right to an impartial jury or abuse its discretion by failing to strike three jurors or declare a mistrial following three incidents during trial. There is nothing in the record supporting the assertion of juror bias, and the Superior Court appropriately responded to each of these incidents. The Judgment and Commitment in this case is inconsistent in identifying the charges considered by the jury and the sentence announced at the sentencing hearing, and the case is remanded for amendment of the Judgment and Commitment to reflect the convictions and sentences imposed at the sentencing hearing.
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January 2, 2014
S. Ct. Civ. No. 2013-0023
In re Disbarment of Winston Taylor, Esq.
      In consolidated petitions for disciplinary action filed by the Ethics & Grievance Committee of the Virgin Islands Bar Association requesting approval of its recommendation, among other things, to disbar an attorney as a member of the Virgin Islands Bar, the petition is granted. Considering the duties violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors, involving multiple grievances and ethical violations, and aggravating factors, the appropriate aggregate sanctions for the 10 matters total an 84-month—or seven year—suspension from the practice of law. Disbarment is generally appropriate when a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client, and the attorney’s conduct over all of these matters, when viewed in the aggregate, clearly establishes a pattern of negligent—and sometimes intentional—misconduct in unrelated client matters, over the span of several years, that caused serious or potentially serious injuries to clients, third parties, and the administration of justice in the Virgin Islands. The record is also replete with numerous aggravating factors—most notably failure to participate in the disciplinary proceedings despite receiving numerous opportunities to do so—and virtually nothing to support mitigation. Therefore, disbarment, the most serious sanction that can be imposed in an attorney discipline proceeding, represents the appropriate aggregate sanction for this attorney’s repeated instances of ethical misconduct. The petition to disbar this attorney effective immediately, is granted and the payment of restitution as directed by the Committee, and payment of its costs in this proceeding, is ordered.
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