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2015 Published Opinions
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December 21, 2015
S. Ct. Crim. No. 2013-0100
Okimo J. Heywood v. People of the Virgin Islands
      The Superior Court committed error when it refused to provide a criminal defendant with specific performance of his plea agreement on a charge of unauthorized possession of a firearm – or the opportunity to withdraw his guilty plea – because the People breached the agreement by arguing against sentencing him as a youthful offender under 5 V.I.C. § 3712 as expressly provided in the plea agreement. Because he possessed – but did not use – a firearm, the defendant (who had reached 21 years of age by the time of sentencing) is eligible for sentencing pursuant to § 3711(c) for this offense, which would provide identical or greater relief than sentencing as a youthful offender under §3712. As required by Due Process, on remand the Superior Court must either sentence him under § 3711(c), or permit him to withdraw from his plea agreement. Similarly, the Superior Court must eliminate the collateral requirements of fees, costs, and community service, or afford the defendant the opportunity to withdraw from his plea agreement as of right. Accordingly, the portion of the December 5, 2013 judgment and commitment that sentences this defendant in a manner inconsistent with § 3711(c), as well as the portions imposing a probation fee, court costs, and community service, are vacated. This matter is remanded to the Superior Court for re-sentencing in accordance with this opinion.
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November 25, 2015
S. Ct. Civ. No. 2015-0007 and S. Ct. Civ. No. 2015-0066
In re Justin K. Holcombe People of the Virgin Islands v. Ralph Edwards Titre, Jr. and In re Robert L. King People of the Virgin Islands v. Rosemary Sauter Frett
      The Court has accepted jurisdiction of appeals by two members of the Virgin Islands Bar seeking review of orders which appointed them to serve involuntarily as counsel for certain indigent criminal defendants. For the reasons explained in this Opinion, the Superior Court may not involuntary conscript attorneys to provide services for indigent defendants, and it erred when it appointed the two appellant attorneys to represent criminal defendants involuntarily, without first establishing a panel of attorney volunteers and making appointments from that panel. The Legislature of the Virgin Islands, acting pursuant to its authority to create local law, enacted a statute, 5 V.I.C. § 3503(a), which provides that appointment of counsel for indigent defendants should be made from a panel of private attorneys when the Office of the Territorial Public Defender is unable to undertake the representation. Because the Superior Court’s practice of appointing private attorneys from a list of all members of the Virgin Islands Bar to involuntarily serve in this capacity violates this statute, that court’s December 30, 2014 and July 9, 2015 appointment orders appealed in the present case are vacated and the Superior Court is directed to appoint counsel for indigent defendants in a manner that complies with Virgin Islands law. Enforcement of this decision is stayed until March 1, 2016, with respect to all other members of the Virgin Islands Bar who remain subject to involuntary appointments under the Superior Court’s current practice—other than the two present appellants—so that the Superior Court may establish and maintain a panel of attorney volunteers in compliance with § 3503(a) after review of indigent defense rules from jurisdictions similar to the Virgin Islands and considering feedback from the Virgin Islands Bar Association, the public, and other stakeholders, so that it may establish a panel, and otherwise craft procedures for appointment of counsel to indigent defendants that comply with 5 V.I.C. § 3503(a) and other applicable laws. If the Superior Court fails to do so prior to this deadline, this Court reserves the authority to establish procedures for the appointment of counsel in the first instance pursuant to its statutory and inherent powers, in order to ensure that members of the Virgin Islands Bar are not systematically conscripted to provide indigent defense in violation of Virgin Islands statutory law.
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October 28, 2015
S. Ct. Civ. No. 2014-0063
Claude Mott Brouillard et al. v. DJL Mortgage Capital, Inc.
      In a mortgage debt foreclosure action, the Superior Court did not err in granting summary judgment for the lender on its case in chief, and in granting summary judgment against the borrowers on their counterclaims. In order to prevail on a foreclosure claim under 28 V.I.C. § 531(a) the plaintiff must show (1) the debtor executed a promissory note and mortgage, (2) the debtor is in default under the terms of the note and mortgage, and (3) the lender is authorized to foreclose on the property mortgaged as security for the note. In this case the borrowers admitted accepting and executing a promissory note and conceded that they defaulted on the loan. Although the Superior Court erred in concluding that the borrowers conceded the legal authority of the lender, it was a harmless error because they failed to establish a genuine issue of material fact in dispute on this issue. Thus entry of summary judgment for the lender was proper. The Superior Court also correctly granted summary judgment on the borrowers’ tort claims because they were barred by the two-year statute of limitations set forth in 5 V.I.C. § 31(5)(A). They alleged intentional or negligent misrepresentation claims based on acts which occurred between 2006 and 2007, but the counterclaims were not filed until 2012, and there was no evidence of any “continuing violation” by the lender. The borrowers’ contract counterclaims rely on their belief that the lender had a contractual obligation to provide additional funding in the form of a second loan but – if there was an oral agreement for a $500,000 loan – a claim on this basis is barred by the statute of frauds, 28 V.I.C. §244, because any agreement to be performed for a period greater than one year is void and unenforceable unless it is evidenced by a writing to which the party to be charged with the obligation has subscribed. Because the original agreement between the parties was for an interest in real property with a 30-year mortgage, the purported oral replacement agreement is precisely what the statute of frauds was created to prevent. Therefore, the borrowers’ contract-based counterclaims are barred by the statute of frauds. The Superior Court’s decisions entering summary judgment in favor of the lender in its foreclosure action and granting summary judgment to the lender on the borrowers’ counterclaims are affirmed.
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October 27, 2015
S. Ct. Civ. No. 2013-0130
Beryl Bertrand, Administrator v. Mystic Granite & Marble, Inc., et al.
      In wrongful death and survival litigation arising from the death of a worker handling 800 pound slabs of stone, the Superior Court erred in granting summary judgment in favor of a stone wholesaler and a clamp manufacturer, and in ordering that more than $200,000 from a settlement between the estate and decedent’s employer be used to reimburse the Government Insurance Fund for medical and funeral payments to decedent and his family. Summary judgment for the wholesaler was based on the issue of causation, but evidence that it loaded the slabs into the shipping container at an unsafe angle, combined with its concession that the angle of the slabs was not disturbed before decedent began unloading them, created a genuine issue of material fact as to whether the wholesaler was negligent. The Superior Court’s acceptance of the theory of superseding causation was in direct conflict with 5 V.I.C. § 1451(a), the Territory’s comparative negligence statute, which provides that contributory negligence of the plaintiff 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. Therefore, the Superior Court erred in granting summary judgment on the estate’s negligence claim against the stone wholesaler. Conflicting evidence may not be weighed in ruling on summary judgment, and on the claim against the clamp maker, viewing the evidence before the court in the light most favorable to the estate, statements indicating that the clamp failed were sufficient to create a genuine issue of material fact on the issue of causation as to this defendant. Because decedent worked for an uninsured employer, under 24 V.I.C. § 261 he was entitled to workers’ compensation from the Government Insurance Fund, which is then authorized to collect from the employer the compensation paid. Thus the Government can recover the $204,014 paid out for this death (plus a penalty) directly from decedent’s “uninsured employer” under § 261(a)(2); or it can recover against any settlement or judgment rendered in the estate’s favor against the stone wholesaler and the clamp manufacturer in this case as “third persons” under section 24 V.I.C. § 263. But no provision of the Code allows the Government to recover these funds out of a settlement or judgment in the estate’s favor against the “uninsured employer” itself. Therefore, the Superior Court erred in holding that the estate must reimburse the Government Insurance Fund out of the settlement with the employer and its president. The October 31, 2013 order granting summary judgment and the November 13, 2013 order directing the estate to reimburse the Government out of the settlement proceeds are reversed, and the case is remanded for further proceedings.
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October 26, 2015
S. Ct. Crim. No. 2013-0036
Cherance Monelle v. People of the Virgin Islands
      Convictions for aggravated rape in the first degree charged as an act of domestic violence, and for child abuse, relating to offenses committed by a defendant upon his biological minor daughter, are affirmed. The trial court’s jury instruction on the count charging aggravated rape in the first degree in violation of 14 V.I.C. § 1700(a), which informed the jury of alternative modes of committing the crime – an act of sexual intercourse or sodomy – was not error. The second charging phrase of the child abuse provisions in 14 V.I.C. § 505 is sufficient to put a person of ordinary intelligence on notice that engaging in sexual intercourse with his biological minor daughter may cause her to suffer emotional injury. Because this defendant’s conduct fell within the realm of behaviors clearly proscribed by the statute, he does not have standing to challenge the vagueness of the statute, and it is constitutional as applied to the facts of this case. Although statements by witnesses supporting a finding that a defendant is guilty are prejudicial to the interest of the defendant, their probative value is not substantially outweighed by an unfair prejudice if they do not lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged. The trial court properly admitted testimony of an expert witness and the DNA proof admitted did not violate evidence Rule 403. Comments made by the prosecution during closing arguments did not influence the jury’s verdict, especially considering the specific and general curative instructions provided by the trial court. Therefore, the prosecutorial misconduct in this case did not constitute a denial of due process. The trial judge committed plain error in requiring the this defendant register as a sex offender after his release from confinement, and the case will be remanded for correction of the sentence to require him to register prior to release from prison, as required by 14 V.I.C. § 1724.
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October 23, 2015
S. Ct. Crim. No. 2015-0002
Cecil Francis v. People of the Virgin Islands
      Convictions on two counts of aggravated rape in the second degree and one count of unlawful sexual contact in the first degree involving a minor are affirmed, and conviction on one count of vagrancy is reversed. Aggravated rape under 14 V.I.C. § 1700a(a) required proof that defendant committed an act of sexual intercourse or sodomy with a person who is under 18 years but 13 years or older and not his spouse, or by force, intimidation, or using his position of authority over the victim to accomplish the sexual act. Under the statute the age of the victim—when the victim is 13, 14, or 15 years old—constitutes an aggravating factor, and to establish guilt the People need not in addition prove force, intimidation, or use of a position of authority. The testimony, combined with proof of the victim’s age, was sufficient to sustain both convictions of aggravated rape in the second degree. Under 14 V.I.C. § 1708(1), one may be convicted of unlawful sexual contact for engaging in sexual contact with a person who is not a spouse using force or coercion. The events in this case clearly amount to sexual contact, and testimony about the defendant’s placing one arm around the victim’s neck and another around his waist allowed the trier of fact reasonably to infer that he used force to accomplish the sexual contact. There was no double jeopardy violation in this case because there were multiple acts that the Legislature has made clear are to be considered separately as two units of prosecution, giving rise to multiple convictions. Even though both acts occurred in the same afternoon, each action was separate and distinct from the other. Thus, each penetration gave rise to a chargeable offense, the conviction of which does not violate a defendant’s right against double jeopardy. As the crime of vagrancy was charged here under 14 V.I.C. § 2221(a)(8), the people were required to prove that the defendant “annoy[ed] or molest[ed]” the victim, a child under the age of 18. The statute contains no definition of special meanings for these terms, and the People failed to carry its burden of producing evidence that defendant’s actions annoyed or bothered the victim; his conviction for vagrancy on this theory is therefore reversed. Defendant’s trial was not delayed in violation of his Sixth Amendment right to a speedy trial, and it was not error for the Superior Court to deny his motion for a new trial based on the absence physical evidence, since there was sufficient evidence to sustain each of the convictions, with the exception of vagrancy. No error amounting to a miscarriage of justice has been identified.
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October 20, 2015
S. Ct. Civ. No. 2014-0043
Diane Carrillo v. CitiMortgage, Inc.
      The Superior Court did not err in granting summary judgment for the lender in an action for debt and foreclosure on a mortgage. To survive a summary judgment motion, the non-moving party may not rest upon mere allegations and must present actual evidence showing a genuine issue for trial, which must amount to more than a scintilla of proof. In this case the lender met its evidentiary burden on its cause of action for debt and foreclosure and the borrower presented no evidence that a genuine issue of material fact exists as to her counterclaims. Analyzing the Superior Court’s grant of summary judgment in the context of the substantive law governing the cause of action, after the lender established that there is no genuine issue of material fact regarding its action for debt and foreclosure, the burden shifted to the borrower to identify specific areas in the record setting forth affirmative evidence that there is a genuine issue of material fact from which a jury may reasonably return a verdict in her favor. Here the borrower acknowledged two of the three requirements necessary for the lender to prevail on its foreclosure action, but denied that she was in default on her mortgage and note. However, in her opposition the borrower neither provided specific evidence to confirm that there is an issue of material fact regarding the amount of the lender’s damages, nor did she submit any affidavits, answers to interrogatories, or sworn documentation that refutes the affidavit provided by the lender. The exhibits submitted by the borrower did not establish any genuine dispute as to any material fact. She failed to produce any documentation or evidence supporting the claim that she demanded an accounting of her loan balance, and failed to provide evidence to contest the allegation that she was in default under the parties’ modification agreement. Thus, the borrower failed to present anything more than allegations, unsupported by any actual evidence showing a genuine issue for trial. Since there is no genuine issue of material fact, the Superior Court’s grant of summary judgment on the cause of action for debt and foreclosure is appropriate. The language of a release executed by the borrower is unambiguous and operates to relinquish all of her claims against the lender and it bars her counterclaims against the lender based on the note and mortgage. Other issues – not raised in the Superior Court – are waived on the appeal. Therefore the Superior Court’s June 16, 2014 Order granting summary judgment in favor of the lender is affirmed.
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October 20, 2015
S. Ct. Crim. No. 2013-0010
Caba Alphonso Woodrup v. People of the Virgin Islands
      Convictions in the Superior Court for murder, assault, reckless endangerment, and unauthorized possession of a firearm during the commission of a crime of violence, are affirmed. The evidence was sufficient to support the required elements of each of these convictions, and the argument that the procedures used to obtain identifications from two witnesses were impermissibly suggestive was waived because it was not adequately briefed due to lack of legal authority or argument, and absence of references to the appendix record to show preservation of objections at the trial level, as required by V.I.S.CT.R. 22. While the defendant is correct that the Superior Court erred in relying on former 14 V.I.C. § 19 – which the Legislature implicitly repealed when it adopted the Federal Rules of Evidence to govern the admission of evidence in the Superior Court through § 15(b) of Act No. 7161 on April 7, 2010 – in admitting certain prior statements to police as substantive evidence at trial, this error was harmless with regard to the witness’s identification of the defendant, since that statement was admissible as a prior identification under Federal Rule of Evidence 801(d)(1)(C). This error was also harmless with regard to the other statements this witness gave to police because, even though they were not otherwise admissible, they did not affect the verdict. The cautionary instruction given in this case regarding the jury’s use and interpretation of eyewitness testimony was extensive and detailed, and tracked the instruction mandated in prior case law, hence it was not error—let alone plain error—even if it did not use the exact language used in the prior decision. Finally, precedent forecloses the defendant’s arguments challenging his sentence under 14 V.I.C. § 2253(a) which requires that the penalty imposed for the unauthorized possession of a firearm during the commission of a crime of violence be “in addition to the penalty provided for the commission of . . . the felony or crime of violence.” This argument is entirely frivolous. Nor is there is any double jeopardy violation since the statutory language constitutes an express authorization by the Virgin Islands Legislature for multiple penalties, and the sentence does not violate 14 V.I.C. § 104 by imposing a sentence for both first-degree murder and reckless endangerment, since the multiple-victim exception permits the sentence for commission of a single act of violence that harmed or risked harming more than one person. The convictions are therefore affirmed.
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October 20, 2015
S. Ct. Civ. No. 2015-0035
In Re: Jomo Meade
      An order holding an attorney in contempt for failure to attend a status conference scheduled by written order is affirmed. After a show cause order was entered and counsel submitted a written response, the Superior Court issued an order holding him in contempt and ordering him to pay a $100 fine. While the order did not specify whether the attorney was held in civil or criminal contempt, a non-dischargeable monetary fine may be civil rather than criminal when imposed to compensate the court for harm suffered from the contemnor’s non-compliance. Here the Superior Court intended to impose civil, rather than criminal, contempt, expressly invoking the intent for civil contempt in finding that the attorney “committed inexcusable neglect that does not justify his failure to appear.” While the Superior Court did not specify the purpose of the fine, the administration of justice is inherently disrupted when an attorney for one party fails to attend a mandatory court proceeding. Since the Superior Court referenced the minimum intent standard for civil contempt, and it is well-established that a court may hold an individual in civil contempt for past misconduct if the purpose is to compensate rather than to punish, in the absence of any express findings to the contrary it will be inferred that the attorney was held in civil contempt. Here this was not an abuse of discretion. The scheduling order required the attorney to appear and his response did not allege that he was not served with the order, or provide any legitimate reason for his failure to appear. The record contains no evidence that the attorney made any attempt to mitigate the harm caused by his non-appearance, and thus, all three elements of civil contempt are satisfied. However, the Superior Court abused discretion when it provided the attorney with the option to either pay the $100 fine to the Clerk of the Court or a charitable organization of his choosing, since the purpose of a civil contempt sanction is either to compel obedience or to compensate for disobedience. A civil contempt fine cannot be payable to a non-party charity without losing its compensatory nature. In this case, the only parties harmed—and thus entitled to compensation—are the Superior Court and the opposing party. Consequently, that portion of the March 25, 2015 order that permits the attorney to pay the $100 fine to a charitable organization is vacated, and the case is remanded so that the sanction may be modified by making the fine payable only to the Clerk of the Superior Court.
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October 20, 2015
S. Ct. Civ. No. 2015-0022
In Re: Jeffrey B. C. Moorhead
      An order holding an attorney in contempt for failing to attend a pretrial conference is affirmed. Counsel failed to appear for a final pretrial conference scheduled by written order. After a show cause hearing the Superior Court issued a written order holding the attorney in contempt and establishing $250 as the financial sanction, but did not specify, in either its oral findings or its written order, whether it intended to hold counsel in civil or criminal contempt. While the better practice would have been for the court to specify that it intended to hold the attorney in civil contempt, a non-dischargeable monetary fine assessed in conjunction with a contempt finding may be civil rather than criminal when the court imposes the fine to compensate itself for the harm it suffered from the contemnor’s non-compliance. In this case it is clear that the Superior Court intended to hold the attorney in civil, rather than criminal, contempt, focusing on the disruptive effect of counsel’s non-appearance. It did not intend to punish him but to obtain some compensation for the costs it incurred in holding a pretrial conference that could not proceed due to his absence. Construing the contempt as civil rather than criminal, it cannot be said that the court abused its discretion. Since the evidence is sufficient to sustain its civil contempt sanction, the Superior Court’s February 18, 2015 order is affirmed.
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September 25, 2015
S. Ct. Civ. No. 2014-0025
Violet Sewer Mahabir v. Heirs of James Wellington George, et al.
      The Superior Court did not err in holding that the plaintiff property cotenant failed to establish a claim of adverse possession against her cotenants. A plaintiff seeking to establish adverse possession against her tenants in common bears the burden of showing that she made her cotenants actually or constructively aware that she was using the property in a manner that was hostile to their interests in the property for at least 15 years, as required by the standards set forth in 28 V.I.C. §§ 11 and 291. In this case there was no evidence suggesting that the plaintiff provided this notice until 2000, only nine years before she brought this action. Therefore, the Superior Court’s December 12, 2014 order dismissing this action is affirmed. However, because the Superior Court failed to provide any explanation for attorney’s fee awards it made, the record in this matter is remanded for that court to clarify how it reached its decisions in those orders. Once the Superior Court completes the remand proceedings, this Court’s appellate proceedings will resume without the need for the parties to file a new notice of appeal.
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September 24, 2015
S. Ct. Crim. No. 2014-0030
Tydel John v. People of the Virgin Islands
      Convictions of the defendant elementary school teacher on multiple counts of counts of unlawful sexual contact in the first degree and aggravated rape in the first degree are affirmed. Reviewing the record as a whole, the evidence presented at trial established the essential elements of the crimes beyond a reasonable doubt. There is no merit in the argument on appeal that defense evidence raised reasonable doubt as to his guilt, or that the evidence presented by the People of the Virgin Islands was insufficient to convict him on charges in the Information. The People also met their burden under the independent source doctrine to show that contested evidence against him came from sources other than illegally obtained or suppressed evidence. It was not error to deny a mistrial based on the claim that the People failed to disclose information about a separate civil suit by at least one of the victims since information concerning this case was equally available to both the People and the defense. The Superior Court’s failure to state the sentence imposed for Count Seven in writing in its judgment and commitment is merely an inadvertent omission amounting to a scrivener’s error, and may be corrected by an amended judgment and commitment that can be substituted, nunc pro tunc, for the June 20, 2014 judgment and commitment, and the sentence pronounced on March 28, 2014 remains fully enforceable as provided in Superior Court Rule 5. The judgment and commitment of the trial court entered on June 20, 2014 is affirmed.
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August 21, 2015
S. Ct. Civ. No. 2013-0131
In the Matter of D.A.B. for a change of name to: D.A.B., a minor
      A Superior Court order denying a father’s petition to change the first name of his minor child is affirmed. An name change application may be granted by the Superior Court, but only for sufficient reasons consistent with the public interest and satisfactory to the court, as provided in 16 V.I.C. § 181. In this case, the Superior Court held the hearing required by 16 V.I.C. § 182, and denied the petition because it found that the father’s signature on a Voluntary Certificate of Parentage had been not been fraudulently obtained. This finding was not clearly erroneous. The evidence from a notary at the Office of Vital Statistics of the Department of Health corroborated the mother’s testimony that the father signed the completed document in the notary’s presence. On appeal the court does not re-weigh the evidence or make new findings of fact, but simply determines whether there is minimum evidentiary support for the trial court’s decision. In this case, the Superior Court was well within its right to find the notary’s testimony credible, and to conclude that the Voluntary Certificate of Parentage was properly executed. Consequently, the Superior Court committed no error in denying the father’s name-change petition, and its November 6, 2013 order is affirmed.
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August 13, 2015
S. Ct. Crim. No. 2012-0115
D’Sean D. Thomas v. People of the Virgin Islands
      The prosecution’s evidence was sufficient to support a conviction of the defendant for the crime of misprision of a felony in concealing an involuntary manslaughter, in which the victim was found in the defendant’s home in circumstances suggesting a suicide. However, much of that evidence was obtained in violation of the defendant’s Fourth Amendment rights. Once the defendant left his home, police investigators were required to obtain a search warrant to enter and search the premises, as the exigent circumstances that permitted their initial entry ceased. This violation of the defendant’s Fourth Amendment rights cannot be deemed harmless since the People failed to meet its burden of showing that the error was harmless beyond a reasonable doubt. Accordingly, the defendant’s conviction for misprision of a felony is reversed and vacated, and the matter is remanded for a new trial.
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August 10, 2015
S. Ct. Civ. No. 2013-0072
Joe Harold Vanterpool, d/b/a/ Vanterpool Enters. v. Government of the Virgin Islands, et al.
      In litigation involving millions of dollars in disputed construction contract compensation claims, the Superior Court judge exceeded his authority by issuing a summary judgment opinion when the case remained assigned to another judge, and erred by invoking District Court Rule 56.1 as a basis to accept the Government’s statement of undisputed facts on the summary judgment motion without conducting an independent review of the entire record, and in later denying motions to reconsider that decision. The fact that a summary-judgment motion is deemed uncontested due to a procedural defect—such as not filing a timely opposition—is not grounds for accepting the moving party’s statement of undisputed facts as true, and it was clearly error to disregard the record and treat the facts set forth by the Government as uncontested simply because the plaintiff’s summary-judgment motion failed to include a serially-numbered separate statement of undisputed facts. The case will be remanded to the Superior Court so that it may perform a proper summary-judgment analysis. On the government contracting and quantum meruit issues, Title 31 V.I.C. § 239 only eliminates the competitive bidding requirement for public exigency contracts, but not the writing requirement. However, § 249(a) does not insulate the Government from quantum meruit lawsuits. A contractor may recover in a quantum meruit action in the absence of a valid contract where the Government was enriched at a contractor’s expense, had knowledge of the benefit, and the circumstances were such that in equity or good conscience the Government should provide compensation for the services provided. Thus, the grant of summary judgment for the Government must be reversed on the quantum meruit claim as well. The July 12, 2013 opinion granting the Government’s cross-motion for summary judgment is reversed, and the September 4, 2013 opinions denying post-judgment motions for reconsideration are vacated. The case is remanded and the Superior Court is directed to conduct a proper summary judgment analysis in light of this Court’s interpretation of 31 V.I.C. § 236, § 239, and § 249.
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July 23, 2015
S. Ct. Civ. No. 2015-0016
3RC & Company v. Boynes Trucking System, et al.
      A decision by the Superior Court denying a temporary restraining order and preliminary injunction, without holding a hearing, was not error. On a motion for preliminary injunction the moving party has the burden of making some showing on four factors: (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. The Superior Court must evaluate the showing under a sliding-scale standard and make findings on each of the factors to determine whether—when they are considered together and weighed against one another—the moving party has made a clear showing that it is entitled to injunctive relief. Typically, it is appropriate—and necessary—for the trial judge to hold a hearing and make findings of fact, but where the moving party rests on allegations alone without submitting sufficient supporting evidence with its moving papers, it fails to present a colorable factual basis to support its claim for a preliminary injunction, and the Superior Court is not required to hold a hearing on the motion before summarily denying it. This is one of the rare cases where no showing at all was made on the first two factors, making a hearing unnecessary and any error in failing to consider the remaining factors was harmless. Here the plaintiff failed to make out any plausible claim for injunctive relief because loss of its investment in an alleged petroleum transportation business venture cannot constitute irreparable injury, since it can be remedied through money damages. Further, the evidence this party submitted undermined the allegations it made in its complaint, and therefore it failed to make any showing that it was likely to succeed on the merits. Accordingly, the January 8, 2015 order denying the motion for a preliminary injunction is affirmed.
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July 20, 2015
S. Ct. Civ. No. 2014-0008
Hoda Fathi Yusuf Hamed v. Hisham Mohammed Hamed
      A judgment of the Superior Court dismissing a petition for divorce on the ground that the parties failed to obtain a license prior to having their marriage solemnized is reversed. The Superior Court is not required to treat unpublished decisions of the Appellate Division as binding authority, since that court has itself decreed that they should not be regarded as having precedential value. While 16 V.I.C. § 32 establishes that a marriage that is not solemnized by one of the statutorily listed methods shall not be valid, that same language is not used with respect to the requirement that the parties to a marriage obtain a license. The Virgin Islands Code contains no provision expressly providing that a marriage entered into without a license—as opposed to one entered into without solemnization—is not valid. While the Legislature has established procurement of a marriage license as a mandatory requirement for entering into a marriage in the Virgin Islands, there is simply no evidence that the Legislature intended, in all cases, for the absence of a marriage license to render a marriage invalid, and 16 V.I.C. § 41 provides only that a license shall be admissible evidence of the marriage. Thus the Legislature envisioned that individuals may be able to prove that they are married by relying on evidence other than a marriage license. In this case the evidence establishes that the parties intended to get married when their marriage was solemnized, and they entered into a valid marriage. Accordingly, the mere fact that they failed to obtain a license prior to solemnization of their marriage—without more—did not render their marriage invalid and the Superior Court could adjudicate the present divorce petition. That court’s January 31, 2014 order is reversed and the case is remanded for further proceedings on the merits.
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July 1, 2015
S. Ct. Civ. No. 2008-0056
Elvis Pedro v. Ranger American of the Virgin Islands, Inc.
      The Superior Court did not err in granting summary judgment for an employer on a claim for constructive discharge under the Virgin Islands Wrongful Discharge Act. While this Court has not yet ruled on whether a claim for constructive discharge may be pursued under that statute, and does not address that question in this opinion, plaintiff made no allegation, nor was there any evidence in the record before the trial court, that the defendant undertook activities or allowed conditions which compelled him to resign from his position, which is a prerequisite to any constructive discharge claim. But the Superior Court erred in denying the plaintiff’s motion for leave to amend the complaint on the ground that the proposed amended complaint was futile, because it based that decision on a burden-shifting approach which has recently been rejected by this Court, which has held that a plaintiff only has the burden of pleading — and ultimately proving — that he was discharged, while the permissible grounds for discharge set forth in sections 76(a)(1)-(9) and 76(c) are affirmative defenses that the defendant would be required to plead and prove. Plaintiff’s proposed amended complaint met the pleading requirements by alleging that the defendant American discharged him in violation of the wrongful discharge laws of the Virgin Islands. The Superior Court erred in holding that a formal termination is required to maintain an action under the VIWDA. Instead, it is sufficient if the words or actions of the employer would logically lead a prudent person to believe his tenure had been terminated, and plaintiff’s proposed allegation that the defendant failed to schedule him for additional shifts after a specified date sufficiently alleges a discharge within the meaning of the VIWDA and plausibly states a claim on which relief may be granted. Because the proposed amended complaint properly states a cause of action under the VIWDA, the Superior Court erred in holding that the amendment was futile and denying his request for leave to amend. Therefore, that portion of the Superior Court’s May 23, 2008 order granting summary judgment is affirmed, but the portion of that order denying the plaintiff’s motion to amend is reversed, and the case is remanded for further proceedings.
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June 30, 2015
S. Ct. Civ. No. 2013-0143
George R. Simpson v. Board of Directors of Sapphire Bay Condominiums West
      Virgin Islands Supreme Court Rule 5(a)(1) requires an appellant to file a notice of appeal within 30 days after the date of entry of a final order. In a lawsuit filed by the condominium board of directors alleging that an owner made structural changes to his unit without advance approval, litigation stretched over many years. After a ruling in 2006 for the defendant on the initial claim by the board, the Superior Court in August 2013 ruled by summary judgment upon all six of the plaintiff’s counterclaims, but did not mention 11 motions that he had pending at the time of that ruling. The Superior Court later issued a November 2013 order stating that it was denying all pending motions as moot and administratively closing the case. The defendant filed a notice of appeal within 30 days of that decision, but well over two months after the August summary judgment ruling. A final judgment necessarily denies pending motions, and the November 2013 order was without legal effect in this case. The August order resolved all of the plaintiff’s counterclaims, and the time for appeal began upon the entry of the final order into the docket, as provided in V.I.S.Ct.R. 5(a)(9). While greater leeway is accorded to pro se litigants, pro se status alone is not sufficient to justify a party’s failure to follow procedural rules and the defendant in this case presented no grounds demonstrating that this is one of those rare cases where this Court should overlook its own rules to hear the appeal. The notice of appeal was untimely, and the appeal is dismissed.
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June 30, 2015
S. Ct. Civ. No. 2015-0011
Beachside Associates, LLC v. Virgin Islands Water & Power Authority
      Considering a motion filed by Virgin Islands Water and Power Authority (“WAPA”) seeking dismissal of this appeal for lack of appellate jurisdiction, as well as the appellant’s response thereto and WAPA’s reply, it is held that the Supreme Court lacks jurisdiction over the appeal. The Superior Court’s December 4, 2014 order, which vested title in certain easements to WAPA and provided for further proceedings to determine the amount of just compensation therefor, was not a final judgment since the underlying case remains pending in the Superior Court. Although that order conclusively determined that WAPA is entitled to title to the easements, under the pertinent Virgin Islands statute, 28 V.I.C. § 421, which is patterned after the federal Declaration of Taking Act, 40 U.S.C. § 3114, orders transferring property to the government are not appealable until a final judgment has been entered, including ascertaining the amount of just compensation. Thus, the motion seeking dismissal of the appeal on jurisdictional grounds, as filed by WAPA, is granted and the appeal is dismissed without considering the merits of the Superior Court’s December 4, 2014 order. To the extent the appellant wishes to appeal the December 4, 2014 order, or any subsequent decision of the Superior Court, it may do so only by filing a notice of appeal after entry of a final judgment or other order over which this Court may exercise jurisdiction.
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June 16, 2015
S.Ct. Civ. No. 2011-0092
Dale Fleming v. Pedro Cruz, Commissioner, et al.
      In a suit against a Commissioner and an Assistant Commissioner of a Department of the Virgin Islands Government, in their official and private capacities, alleging state and federal civil rights claims under 42 U.S.C. § 1983 and various constitutional provisions arising from the defendants’ failure to reinstate the plaintiff to an employment position, plaintiff failed to comply with the statutory requirements for asserting claims against Governmental defendants under the Virgin Islands Tort Claims Act, 33 V.I.C. §§ 3401-3416, and made no factual allegations upon which relief can be granted. Plaintiff did not timely file a claim under the Tort Claims Act, and did not state any cause of action against the Government defendants because he did not demonstrate any entitlement to continued employment with the Department involved, or that Due Process or any other constitutional right was violated. Plaintiff’s criminal convictions have no relevancy to his current civil appeal and are not properly before this Court. Upon the record in this case, plaintiff’s criminal convictions as a group, and the reversal of one conviction relating to use of a dangerous weapon by the Appellate Division, had no bearing upon his alleged termination, and accordingly have no bearing upon whether he should be reinstated. He was convicted of third degree assault in violation of 14 V.I.C. § 297(3), which does not involve use of a dangerous weapon, and he remains a convicted felon under that charge. The Superior Court did not err in granting the Government’s motion to dismiss, and its September 23, 2011 Order is affirmed.
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June 10, 2015
S. Ct. Civ. No. 2012-0087
Lawrence Hodge, et al. v. Bluebeard’s Castle, Inc.
      In 2002, the Superior Court of the Virgin Islands found that a road providing access to property owned by the individual appellants is a public right-of-way and issued a declaratory judgment and permanent injunction preventing the appellee from blocking access to the road. On appeal, the United States District Court of the Virgin Islands—sitting in its former appellate capacity—misapplied Virgin Islands law in vacating that judgment and remanding the action. Because the Virgin Islands is not a state, the administrative federalism imposed by 48 U.S.C. § 1613 does not prevent a Virgin Islands court from exercising its revised jurisdiction to review this judgment of the District Court made under territorial law, which is not binding as the law of this case – even if some form of that doctrine were to be adopted in the Virgin Islands – because the District Court is not a coordinate court. The Appellate Division’s holding was erroneous because the Superior Court properly found the road to be public based on its historical status as a public right-of-way. While the traditional ways a public road may be created were not relied upon, this is irrelevant where a road was public before 1917 and was never conveyed to a private party. The Federal Rules of Evidence did not at the time apply in the Superior Court, and 5 V.I.C. § 911(3) expressly provided that, unless excluded, the judge was deemed to have made the finding requisite to its admission. Moreover, 5 V.I.C. § 4927 has provided since 1965 that in determining the law outside this territory, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the rules of evidence. Thus the Superior Court was not required to conduct a hearing before admitting expert testimony at the 2002 trial, and the Appellate Division misapplied Virgin Islands law in holding otherwise. The Superior Court did not rely on this testimony in finding that the road is public and, in light of substantial evidence in the record that the disputed road was public before 1917 and remained a public right-of-way after that time, it cannot be said that its conclusion was clearly erroneous. The Superior Court did not expand the scope of the property that was in dispute during the 2002 trial, and the Appellate Division misapplied Virgin Islands law in vacating its judgment. The Appellate Division’s April 1, 2009 order overturning the judgment and remanding the case for further proceedings is vacated, and the Superior Court’s April 16, 2012 order and opinion issued in response to that remand is also vacated. The Superior Court’s June 17, 2002 permanent injunction and declaratory judgment is reinstated. A motion for attorney’s fees is not ripe for adjudication while an appeal is pending, and therefore the Superior Court’s October 4, 2012 order is vacated and that portion of the Appellate Division’s April 1, 2009 order vacating the Superior Court’s original attorney’s fees award is not disturbed, but no opinion is expressed at this juncture on the Appellate Division’s stated reasons for doing so. If any of the parties now wish to seek attorney’s fees as a prevailing party, they may do so in the Superior Court as provided for by the rules of court.
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May 20, 2015
S. Ct. Civ. No. 2013-0087
In re Adoption of L.O.F. and N.M.F., Minors
      In deciding a petition by the biological mother of two minor children and her same-sex partner, seeking legal recognition of the partner as co-parent of the children along with the biological mother, the Superior Court misinterpreted the adoption statutes in denying the petition. Under 16 V.I.C. § 141 any inhabitant of the Virgin Islands may petition the proper court to adopt a child who is not her own and who is in the Virgin Islands. While a “plain-language” reading of §§ 141, 145 and 146(b) would preclude the granting of either stepparent or second-parent adoptions, in light of the Legislature’s clear objective in enacting the domestic relations statutes, § 146(b) should not be read literally and restrictively where to do so would defeat the best interests of the children and produce a wholly absurd and untenable result. The best interests of the children would certainly be advanced by allowing two adults who actually function as their parents to become the legal parents. Granting an adoption in favor of a stepparent or second parent who already serves as the child’s functional parent, without terminating the rights of the original parent, furthers the child’s best interest. Strictly applying § 146(b) to prevent all stepparent and second-parent adoptions would actively undermine the best interests of children such those in the present case, and thus undercut the Legislature’s clear intent. The purpose of § 146(b) is to shield the adoptive family from unnecessary instability and uncertainty arising from unwanted intrusions by the child’s biological family, and nothing in that section or any other statutory provision prohibits the parties to an independent adoption from waiving the benefits of the statute when a birth parent intends and desires to coparent with another adult who has agreed to adopt the child and share parental responsibilities. It would be against common sense to terminate the biological parent’s rights when that parent will continue to raise and be responsible for the child. In this case, the adoption petition was filed by the partner as the proposed adoptive parent and joined by the biological mother, explicitly seeking a “second-parent adoption” that would grant the partner legal rights with respect to the children, while maintaining those of the biological mother. Under these circumstances, there can be no doubt that the partner—as the proposed adoptive parent—has waived enforcement of 16 V.I.C. § 146(b), and that the biological mother—as the only person with legal rights with respect to the children—has consented to the adoption as required by 16 V.I.C. § 142(a). If the Superior Court determines on remand after following the procedures outlined in 16 V.I.C. §§ 141–147 that granting the adoption petition in favor of the partner while maintaining the parental rights of the biological mother is in the best interest of the children, under § 145(a) it shall order that the children be, to all legal intents and purposes, the children of the petitioner. Accordingly, the Superior Court erred in denying the adoption petition based only on an erroneous reading of the adoption statutes. Its September 18, 2013 order is vacated and the adoption petition is reinstated. The case is remanded for the Superior Court to continue with the adoption proceedings in line with the best interests of the children.
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May 20, 2015
S. Ct. Crim. No. 2013-0062
Richie Fontaine v. People of the Virgin Islands
      No constitutional violations or plain error is found in the defendant’s convictions for first degree assault and other crimes after a re-trial. A defendant can be charged and convicted for multiple provisions of the Virgin Islands Code arising out of the same incident. Double Jeopardy protections of the Fifth Amendment do not prevent the retrial of a defendant who succeeds in getting a conviction vacated on direct appeal or on collateral attack because of error in the initial trial proceedings. Thus his acquittal in a prior trial on charges of first degree murder – in a trial in which the defendant was convicted of first degree assault – did not bar his conviction in the later retrial on charges of first degree assault with the intent to commit murder. A defendant can be guilty of first-degree assault regardless of whether he missed or actually succeeded in killing the target of the assault. Defendant’s sentences for the crimes of first degree assault in violation of 14 V.I.C. § 295(1), unauthorized use of a firearm during the commission of an assault in the first degree in violation of 14 V.I.C. § 2253(a), and reckless endangerment in violation of 14 V.I.C. § 625(a) do not violate the multiple punishment limitation in 14 V.I.C. § 104. Reckless endangerment is a separate crime from the underlying violent offense because of the risk created to the public or third parties that is separate and apart from the risk created to the intended victim, and sentences for both first degree assault and the unauthorized use of a firearm during the commission of an assault in the first degree are not multiplicitous because the legislature clearly intended for additional sentencing where unauthorized firearms are involved. Defendant has waived the argument that attempted murder and first-degree assault with intent to commit murder are the same offense because it was not raised before the Superior Court. The judgment and commitment entered by the Superior Court is affirmed.
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May 15, 2015
S. Ct. Crim. No. 2013-0042
Jamal Justin Fahie v. People of the Virgin Islands
      No reversible error is found on appeal from convictions for murder, assault, and possession of an unlicensed firearm. Superior Court Rule 135 authorizes a trial court to weigh the evidence and the credibility of witnesses to determine whether there has been a miscarriage of justice. Here, however, even discounting certain proof challenged on this appeal, the evidence was sufficient to support the convictions on all charges with proof on the essential elements of the crimes beyond a reasonable doubt. Thus the trial court did not abuse its discretion in refusing to grant defense motions for a judgment of acquittal and for a new trial. Even though the people did not present this case at trial on an aiding and abetting theory, there was ample notice of this theory and the defense itself contended that another individual murdered the victim. Thus the People were entitled to an aiding and abetting instruction to rebut that theory, and the trial court did not err in giving the instruction. Jury instructions indicating that the prosecution is not required to introduce certain scientific evidence, such as DNA or fingerprint proof – often called “anti-CSI effect” instructions – risk invading the exclusive province of the jury to decide what conclusions should be drawn from evidence admitted at trial. In this case the defense never misstated the People’s burden to introduce any specific type of evidence, and it was error for the Superior Court to give this instruction. Here, that error was harmless because, considering the entire record and the other jury instructions, it cannot be found that this instruction contributed to the convictions. A cautionary instruction regarding accomplice testimony should be given whenever a witness has a strong incentive to fabricate or mold testimony as the government desires in order to escape prosecution or lighten a sentence, unless there is a compelling reason to omit the instruction. Some circumstances reduce the need for the instruction, such as wide latitude given to the defense in challenging the credibility of the accomplice, and in drawing attention to the witness’s plea agreement with the People. Under the established standard the trial court’s failure to give the instruction in this case in the form requested by the defense was not plain error. Finally, the Superior Court did not abuse its discretion in admitting photographs depicting the victim’s bullet-ridden corpse, which had probative value on issues in the case that was not substantially outweighed by their prejudicial effect. The judgment and commitment in this case, entered on May 10, 2013, is affirmed.
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April 15, 2015
S. Ct. Crim. No. 2013-0070
Clint Estick v. People of the Virgin Islands
      On appeal from convictions for assault, reckless endangerment, and unauthorized possession of a firearm during commission of a crime of violence, the judgment is affirmed in part and reversed in part. The contention that there was insufficient evidence to uphold the convictions because the case rested on testimony of the victim eyewitness is rejected. Assault in the first degree is assault with intent to commit murder, as provided in 14 V.I.C. § 295(1). Evidence presented in this case—viewed in the light most favorable to the People—was sufficient to satisfy the elements of this offense on testimony that defendant held a firearm in his hand, aimed at a vehicle in which the shooting victim and two others were riding, and discharged the firearm, with several bullets striking the vehicle and one bullet striking and injuring the victim. A rational jury could reasonably conclude that defendant intentionally shot into the vehicle with the intent to kill one or more of the occupants. The evidence was also sufficient to support conviction for unauthorized possession of a firearm during a crime of violence under 14 V.I.C. § 2251(a)(2)(B), and the charges for reckless endangerment for shooting on a public road, near an operating restaurant. Improper remarks by the prosecution during closing arguments are grounds for a new trial only if they so infected the trial with unfairness as to make the resulting conviction a denial of due process in light of the entire proceeding, which was not shown here. Nor did the trial court abuse its discretion by preventing defendant from calling an alibi witness at trial after he failed to give proper notice for eight months after written demand by the People, and only announced the witness on the first day of trial. The alibi related to the day before the shooting, and it was not a violation of defendant’s right to present a defense to preclude irrelevant testimony. Although defendant did not challenge his sentence on appeal, illegal sentences, by their very nature, affect a criminal defendant’s substantial rights and seriously affect the fairness, integrity or public reputation of judicial proceedings. In this case, the defendant was charged with only one unit of prosecution: firing several shots at the occupants of another car while driving on a public road in the vicinity of a specified restaurant. In the circumstances of this case, entry of two reckless endangerment convictions violated the defendant’s double jeopardy rights by punishing him twice for the same offense. Finally, under 14 V.I.C. § 104, while an individual can be charged and convicted of violating multiple provisions of the Virgin Islands Code, he may only be punished for one offense arising out of a single act. Therefore, the Superior Court should have stayed the execution of punishment for all but one of the non-firearms convictions. The September 12, 2013 judgment and commitment is affirmed in part and reversed in part, and this case is remanded for the Superior Court to dismiss one count of reckless endangerment and to re-sentence the defendant in conformity with § 104.
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April 14, 2015
S. Ct. Civ. No. 2014-0042
In re Mary Moorhead, et al. v. Governor Kenneth E. Mapp, et al.
      An order of the Superior Court denying relief on a complaint for mandamus relief as well as injunctive relief is reversed. In reviewing plaintiff’s claim that the Government failed to comply with the requirements of Act No. 4844 to instruct students in the history of the Virgin Islands and basic Caribbean history, the court did not grant a hearing as requested but instead erred by crediting inadmissible, unsworn factual assertions made by the Government in its opposition. The error may be harmless as applied to the mandamus claim because – to warrant such relief – a petitioner must establish that there is no other adequate means to attain the desired relief and that its right to the writ is clear and indisputable. In this case the plaintiff has other avenues available to her to compel the Government to comply with Act No. 4844, such as her alternate claim under 5 V.I.C. § 80, a statute authorizing taxpayer actions to restrain illegal or unauthorized acts by a territorial officer or employee, or the wrongful disbursement of territorial funds. However, the Superior Court analyzed the merits of the complaint solely through the lens of her mandamus claim and did not address the statutory cause of action. The implicit denial of a claim, without providing any reasons, constitutes reversible error. The June 26, 2014 order is reversed and the matter is remanded to the Superior Court so that it may consider the claim under 5 V.I.C. § 80 on the merits, and to reconsider the denial of mandamus relief in the event it were to conclude that relief is not available to that statute.
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April 13, 2015
S. Ct. Civ. No. 2015-0015
Marco St. Croix, Inc. v. Virgin Islands Housing Authority
      In an appeal from a Superior Court opinion and order denying a motion for a temporary restraining order and a preliminary injunction, the judgment is affirmed. In deciding whether to grant a preliminary injunction, the Superior Court must consider whether: (1) the movant has shown a reasonable probability of success on the merits; (2) the movant will be irreparably injured by denial of the relief; (3) granting preliminary relief will result in even greater harm to the nonmoving party; and (4) granting the preliminary relief will be in the public interest. A preliminary injunction is an extraordinary and drastic remedy and may only be awarded upon a clear showing that the plaintiff is entitled to such relief. The Superior Court’s order and opinion on the plaintiff’s complaint relating to protest of a bid award on a public contract, after two days of hearings, was unduly deferential to the Housing Authority’s explanation for why it did not award the contract to plaintiff, but that error was harmless. As a matter of law, the Authority could not have awarded the contract to plaintiff when it did not have a license necessary to perform that contract. Consequently, plaintiff has an extremely low likelihood of ultimately succeeding on the merits, since it did not possess a license that was required to qualify it to perform the demolition work contemplated by the contract. No error is found in the Superior Court’s assessment of the remaining factors, including the finding that harm to the Housing Authority and the public interest from loss of federal grant funds would greatly outweigh any irreparable harm plaintiff might suffer in the unlikely prevent it prevails. Accordingly, the Superior Court did not abuse its discretion when it denied plaintiff’s motion for a preliminary injunction, and the January 23, 2015 opinion and order are affirmed.
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March 27, 2015
S. Ct. Civ. No. 2013-0094
Mikey Kalloo and Harry Dipchan v. Estate of Earl L. Small, Jr.
      In proceedings on remand pursuant to this Court’s decision in In re Estate of Small, 57 V.I. 416 (V.I. 2012), the Appellate Division erred in affirming a magistrate’s award of attorney’s fees and costs relating to the prior appeal because the civil action that formed the basis of the probate dispute was a personal injury case, for which attorney’s fees are prohibited. Because costs in probate proceedings may not exceed those allowed in the trial of a civil action under 15 V.I.C. § 165, and an award of attorney’s fees for a non-frivolous personal injury claim is prohibited in the trial of a civil action by 5 V.I.C. § 541(b), such an award is likewise prohibited in probate proceedings and on appeal from probate proceedings by operation of Supreme Court Rule 30. Accordingly, the Appellate Division erred when it affirmed the magistrate’s award of attorney’s fees to the estate. While the attorney’s fees award was thus prohibited by the statutes and Rule, the same is not true for costs awards and, although the appellants do not challenge the reasonableness of the costs awarded in this case, in order to be valid such awards must be “reasonable” as provided in V.I.S.CT.R. 30(a). The magistrate had the authority to consider the appellants’ ability to pay when devising a reasonable award of costs in light of 15 V.I.C. § 162 and the Appellate Division erred when it failed to remand the matter to the magistrate to exercise discretion in considering appellants’ ability to pay. The October 4, 2013 opinion and order affirming the magistrate’s award of attorney’s fees and other costs to the estate is reversed, and that portion awarding other costs is remanded for further proceedings consistent with this opinion.
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February 27, 2015
S. Ct. Civ. Nos. 2015-0001 and 2015-0009
Fathi Yusuf v. Mohammad Hamed, et al.
      Considering an initial appeal taken from a Superior Court order denying a motion to nullify various resolutions passed by the board of directors of a corporation and denying a request to appoint a receiver for such corporation and a subsequent order denying a motion for reconsideration of this decision, and a second appeal taken from an order adopting a plan, created by the Superior Court, to wind up the affairs of a partnership between the litigants, as well as a cross-appeal filed therein, all of which were consolidated by order dated February 20, 2015, are dismissed for lack of jurisdiction. Section 33(b)(2) of title 4 of the Virgin Islands Code, construed in a manner consistent with the federal statute it is modelled after, 28 U.S.C. § 1292(a)(1)-(2), authorizes appellate jurisdiction in three discrete situations: the appointment of a receiver, the refusal to wind up a receivership, and the refusal to take steps to accomplish the purposes of a receivership. Here, appellant does not challenge the Superior Court’s decision to appoint a liquidating partner and to establish a wind up plan for the partnership, and the Superior Court’s plan cannot be characterized as a refusal to take steps to accomplish the purposes of winding up the partnership. Rather, appellant only challenges various matters that fall within the administration of winding up the partnership, over which the Superior Court possesses considerable discretion and which are not immediately appealable. In addition, the Superior Court’s orders governing how the partnership is wound up cannot be appealable as injunctions under 4 V.I.C. § 33(b)(1) because treating such directives as injunctions would render 4 V.I.C. § 33(b)(2) completely redundant and “superfluous,” and would undermine the Legislature’s desire to treat orders relevant to receiverships differently than orders relevant to injunctions. Accordingly, appellee’s motion to dismiss the consolidated appeal is granted, and the consolidated appeal and cross-appeal are dismissed for lack of jurisdiction without considering the merits of any of the arguments the litigants have raised.
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February 24, 2015
S. Ct. Civ. No. 2014-0038
Symone James v. Samuel Faust
      In a child custody dispute, the Superior Court failed to follow the required procedure and failed to properly consider the best interests of the child in setting the terms of custody and visitation in its order. Although custody determinations are reviewed for abuse of discretion, such review is impossible where the Superior Court fails to explain its reasoning. Here, the Superior Court failed to comply with the two-step procedure required in custody determinations, requiring the court to (1) outline a set of relevant factors that it will use to determine the best interests of the child, and (2) explain how its findings of fact regarding those factors are supported by the evidence introduced at the hearing. The order also failed to set out a permanent and unambiguous scheme governing custody until the child’s eighteenth birthday. Therefore, the Superior Court’s June 14, 2014 custody order is vacated and the case is remanded for the court to set out a permanent custody arrangement after following the required procedure and affording the parties an opportunity to examine the guardian ad litem under oath in accordance with their procedural due process rights.
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February 6, 2015
S. Ct. Civ. No. 2014-0028
Ronnie Rennie v. Hess Oil Virgin Islands Corp
      In litigation concerning a former employee’s claims of unlawful discrimination in employment brought pursuant to the federal Civil Rights Act, several Virgin Islands statutes, and Virgin Islands common law, the Superior Court erred when it dismissed the complaint on statute of limitations grounds when the employer had waived its statute of limitations defense by failing to plead it in its answer. In addition, the Virgin Islands Wrongful Discharge Act and the Virgin Islands Civil Rights Act establish liabilities independent of the common law and are governed by the six-year limitations period of 5 V.I.C. § 31(3)(B), and not the two-year period prescribed in § 31(5)(A). Construing and applying 24 V.I.C. § 76, the employee sufficiently pled a cause of action under the Virgin Islands Wrongful Discharge Act based on a demotion from his former position. In addition, construing and applying 10 V.I.C. § 3, the employee also pled a valid claim for violation of the Virgin Islands Civil Rights Act based on the employer’s conduct, and the Legislature authorized a private cause of action for violations of 24 V.I.C. § 451 which can be premised on such conduct. The Superior Court’s April 5, 2014 opinion and order granting the employer’s motion to dismiss is reversed, and the case is remanded for further proceedings.
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January 8, 2015
S. Ct. Civ. No. 2014-0085
Alicia “Chucky” Hansen, Board of Elections, St. Croix District, et al. v. Nereida Rivera O’Reilly
      The December 24, 2014 decision of the Superior Court of the Virgin Islands, granting a writ of mandamus directing the St. Croix District Board of Elections, its members, and the Government of the Virgin Islands, to cease immediately a recount of votes cast for Alicia “Chucky” Hansen in the 2014 general election in the District of St. Croix for the office of senator is affirmed. Although the Superior Court exceeded its jurisdiction when it disregarded a notice of removal of these proceedings to the federal court, that error was harmless because the United States District Court remanded the matter and acknowledged that proceedings in the Superior Court were ongoing. The Superior Court erred in holding that Hansen lacked standing as a “candidate” to petition the Board of Elections for a recount. It also erred in implicitly rejecting the claim that elections officials unilaterally commenced a recount without first obtaining authorization from a majority of the Board of Elections by vote granting the petition for a recount, which the Board’s official records all indicated had not been done. The recount was initiated with no legal authority, and thus the petitioner was entitled to a writ of mandamus. The Superior Court also erred in concluding that the Board could waive statutory timeliness requirements governing recount petitions as set forth in 18 V.I.C. § 629. For the reasons set forth in detail in the present Opinion, the reasoning of the Superior Court’s December 24, 2014 opinion was in error but its ultimate decision to grant the writ of mandamus directing that the recount be ceased was correct and that result is affirmed.
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January 7, 2015
S. Ct. Crim. No. 2013-0083
Shevron Percival v. People of the Virgin Islands
      Convictions for first-degree robbery and unauthorized possession of a firearm during a crime of violence are affirmed. An argument need only be fairly presented to the Superior Court in order to be presented for review on appeal, as stated in V.I.S.CT.R. 4(h), and under this standard moving for a judgment of acquittal once—whether after the People rest, after the close of evidence, or after the jury returns a verdict—is sufficient to preserve the issue of the sufficiency of the evidence. However, there is no merit to the challenge in this case since a single positive eyewitness identification may be sufficient proof of guilt, and the defendant’s remaining sufficiency arguments go to the credibility of the witnesses, which will not be reviewed on appeal. The evidence was sufficient to support the conviction for robbery in the first degree under 14 V.I.C. § 1861 and § 1862(2) given the testimony of witnesses that the defendant demanded and received money from the victim at gunpoint. Likewise, the evidence was sufficient to support his conviction for unauthorized possession of a firearm during a crime of violence under 14 V.I.C. § 2253(a), which contains no requirement that the People produce a firearm in court, or show that it was operable; all that is required is evidence that the defendant had an unlicensed firearm in his possession during a crime of violence. In this case three witnesses testified to seeing the defendant carry a gun during the robbery, and he stipulated that he did not have a license to possess a firearm in the Virgin Islands. Defendant has made no showing that the Superior Court’s failure to grant a new trial in the interests of justice under Superior Court Rule 135 was an abuse of its discretion. His challenge to the out-of-court identification during police investigations using an array of photographs is waived under V.I.S.CT.R. 22(m) for failure to cite even a single supporting legal authority, and he has not explained either on this appeal or before the Superior Court how the photo-array used in this case was impermissibly suggestive. The Superior Court’s denial of the suppression motion is affirmed, and the September 26, 2013 judgment and commitment for these offenses is affirmed.
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