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March 22, 2017
S. Ct. Civ. No. 2016-0062
Virgin Islands Taxi Ass'n v. West Indian Company, Ltd., et al.
In an injunction proceeding, a governmentally-owned corporation's decision to award a concession agreement to a transportation company is subject to judicial review—and a challenge to that decision has not been mooted by the execution of the concession agreement. The plaintiff taxi association lacks standing under the general writ of review statutes, 5 V.I.C. §§ 1421–1423, but does have standing to bring the action under 5 V.I.C. § 80 because the two required elements are present: an act by a territorial officer or employee, and the allegation that such an act was either illegal or unauthorized, or that it constituted a wrongful disbursement of territorial funds. The execution of a contract does not moot a challenge to the procedures used to secure it, where it is possible that dissatisfied bidders will be subject to those same procedures again. Thus even though the dock is already being serviced under the concession agreement, this challenge to the decision to award the concession agreement not moot. On the merits, the arbitrary-and-irrational framework from federal case law is not applicable here, but the decision is not immune from judicial review and the Legislature intended for the defendant publicly owned corporation to exercise the decision-making authority that a private corporation would enjoy at common law, and consequently, to be subject to the same level of judicial scrutiny. Since the decision here is challenged as unauthorized—by virtue of alleged derogation of the Request for Qualifications' requirements—judicial review of the decision is appropriate, but the challenge is meritless. The plaintiff did not demonstrate a reasonable probability that the corporation acted in excess of its authority when it awarded the concession agreement, let alone that it acted in bad faith, fraudulently, or illegally. Thus likelihood of success on the merits weighed against the issuance of a preliminary injunction. The argument that any potential harm was not irreparable was not raised before the Superior Court, and it is waived for purposes of this appeal. No showing was made of an adverse effect on the plaintiffs' ability to compete. The argument that the Superior Court erred in concluding considerations of the public interest militated strongly against the issuance of a preliminary injunction is raised for the first time on appeal, thus it is waived and—in any event—plaintiff wholly failed to substantiate the claim that award of this concession agreement has eroded public confidence in the procurement process. Accordingly plaintiff failed to carry the burden of demonstrating a clear entitlement to an injunction prohibiting award of this concession, and the Superior Court’s October 26, 2016 order is affirmed.
February 24, 2017
S. Ct. Civ. No. 2016-0038
Ivy Moses et al. v. Caroline Fawkes, as the Supervisor of Elections, et al.
In an appeal by members of the St. Thomas/St. John and St. Croix Boards of Elections from denial of their motion for a preliminary injunction to bar the Supervisor of Elections from enforcing the resign-to-run provisions of 18 V.I.C. § 2, the judgment of the Superior Court is affirmed. Although it characterized the decision as denying the motion for a preliminary injunction—and it considered only one of the four factors that apply in deciding whether to grant such relief, failing to ascertain the seriousness of the legal questions presented or to determine whether the members possessed a chance of prevailing—in this case the hearing on the preliminary injunction application was consolidated with a hearing on the merits, and thus the Superior Court effectively issued a final decision rejecting the constitutional claims and denying the request for a permanent injunction. Therefore this appeal is heard pursuant to 4 V.I.C. § 33(b)(1) and § 32(a). While the Superior Court erred in its analysis of the Fourteenth Amendment claim, the error is ultimately harmless because Board members running for re-election are not similarly situated to ordinary government employees seeking election to a different office, and a rational basis exists for treating them differently. The Legislature could rationally determine that the resign-to-run provision is necessary to provide for a functioning and conflict-free Board to administer gubernatorial and senatorial elections—the offices that exercise the executive and legislative powers of the Virgin Islands—but that extending it to Board members seeking re-election would do more harm than good. Further, the Superior Court committed no error when it rejected the members’ First Amendment challenge to the resign-to-run statute, given that binding precedent from the Supreme Court of the United States has found the burden of such provisions on First Amendment rights to be insignificant, since they in no way restrict the ability to participate in political campaigns of third parties, limit neither political contributions nor expenditures, do not preclude holding office in a political party, permit the officeholders to distribute campaign literature and make speeches on behalf of a candidate, and simply require officeholders to choose between awaiting the conclusion of their term or resigning. Thus the First Amendment is not violated by a resign-to-run statute that does nothing more than to require current officeholders to choose between running for a different office and serving out their current term. Addressing another issue that is important and likely to recur, it is held that the Department of Justice was authorized to represent the Supervisor of Elections in this matter pursuant to 3 V.I.C. § 114(a). Accordingly, the Superior Court’s June 24, 2016 judgment is affirmed and the matter is remanded for the limited purpose of entering a final order of dismissal.
February 24, 2017
S. Ct. Civ. No. 2013-0142
Dale Dupigny v. Kaaren E. Tyson
In a child support order on review from the Division of Paternity and Child Support of the Virgin Islands Department of Justice, the Superior Court correctly interpreted the definition of income for child support purposes contained in 16 V.I.C. § 341(e) to include a lump-sum personal injury settlement payment. Because limiting the definition of income for purposes of child support obligations to payments made in periodic installments would not promote the best interests of the children of the Territory, and would undermine the manifest legislative intent underlying the entire child support statutory scheme, the Superior Court was correct when it concluded that a personal injury settlement payment is income for child support purposes. Further, because the definition of income in the federal tax code serves a different purpose—generation of revenue for the operation of the federal government, while § 341 addresses income for determining a parent’s obligation to support his or her children—the Superior Court correctly rejected use of the federal income tax definition of income. While the definition of income for child support purposes specifically lists awards in civil suits, the Superior Court abused its discretion when it determined that the gross proceeds from the personal injury settlement in this case were income under § 341(e) without also considering whether inclusion of the total settlement proceeds would work a hardship, as required by 16 V.I.C. § 345(c). The November 15, 2013 order is vacated and the matter is remanded for further proceedings.
February 22, 2017
S. Ct. Crim. No. 2015-0082
Auriel Devon Frett v. People of the Virgin Islands
On appeal from the defendant’s convictions for first-degree murder, first-degree assault and kidnapping for robbery, and a sentence of life imprisonment without parole, the judgment is affirmed. Although the prosecutor misrepresented the law on the presumption of innocence during her closing argument, these remarks did not infect the trial with such unfairness that the conviction was a denial of the defendant’s due process rights. In addition, the trial court did not err either in its jury instructions on the evidentiary use of another defendant’s plea, or its decision to permit the testimony of a retired Superior Court judge. Further, the court’s erroneous interjection and limitation of the defendant’s closing argument did not violate his due process rights, and the jury’s verdict was supported by sufficient evidence. The Superior Court’s October 14, 2015 judgment and commitment is affirmed.
February 22, 2017
S. Ct. Civ. No. 2016-0034
Calvin Gumbs II v. Tina Koopmans, et al.
The Superior Court erred in dismissing the plaintiff’s claims against the defendants as asserted in a Superior Court complaint filed on May 4, 2016, which arose out of an incident that allegedly occurred at the library of the University of the Virgin Islands on June 4, 2014 and that had spawned two prior small claims complaints on May 6, 2015 and November 3, 2015, both of which the Superior Court had dismissed with prejudice. By sua sponte dismissing the May 4, 2016 complaint on res judicata grounds without providing plaintiff with an opportunity to present evidence and arguments against dismissal, the Superior Court acted contrary to Virgin Islands case law precedent. Consequently, the judgment of the Superior Court is reversed and the case is remanded to the Superior Court so that it may proceed in accordance with the ordinary rules of civil procedure and general conceptions of fairness.
February 10, 2017
S. Ct. Civ. No. 2014-0075
Wilma Marsh-Monsanto v. William Clarenbach, et al.
In a quiet title action seeking to recover property on the island of St. John, all of the plaintiff-appellant's claims are barred by the statute of limitations, and the Superior Court's entry of summary judgment dismissing those claims is affirmed. The plaintiff acknowledged that she was aware of certain development activity on the property as early as 1982, but this action was not filed until 22 years later. Thus these claims are barred by the 20-year statute of limitations for actions for the recovery of real property under 5 V.I.C. § 31(1)(A), and no issue of equitable tolling of the statute has been presented. Remaining issues raised on appeal—concerning service of process, summary judgment procedures, and fraudulent transfer of property—were waived, and are not reached. However, this Court retains discretion to notice errors that affect substantive rights, even if those errors were not properly presented on appeal, under V.I.S.CT.R. 4(h) and 22(m). When the Superior Court correctly determined that the statute of limitations barred the plaintiff’s request for an adjudication of title to the parcel, it became improper to decide the merits that claim, effectively adjudicating an unpled counterclaim and divesting certain heirs of their alleged property interest in the subject parcel without affording them notice or an opportunity to be heard. Thus, the Superior Court committed a plain error by granting summary judgment on a request that was not properly before it. The October 21, 2014 order dismissing the plaintiff-appellant's claims on statute of limitations grounds is affirmed, but the Superior Court committed plain error by ruling on a declaratory judgment request that was not properly before it, that portion of the summary judgment order is reversed.
February 9, 2017
S. Ct. Crim. No. 2013-0147
Dyhani Heyliger v. People of the Virgin Islands
The defendant's conviction and sentences for 15 crimes, including felony murder of a victim while attempting to commit third-degree assault against another person, are affirmed. Under 14 V.I.C. § 922(a)(2) first-degree felony murder can be predicated solely upon assault in the third degree, which is one of the felonies enumerated in the statute. This statute's use of the conjunction “and” as the final separator in a list of several predicate unlawful acts supports this natural interpretation of the statute. In this case—involving a shooting in a parking lot near a nightclub—there was sufficient evidence from several witnesses for a rational jury to find the defendant guilty beyond a reasonable doubt of first-degree felony murder predicated upon assault in the third degree in violation of 14 V.I.C. §§ 921 and 922(a)(2). Viewing the evidence in the light most favorable to the People, a rational jury could find beyond a reasonable doubt that the defendant assaulted one person by shooting at him, placing him in fear for his life, and the jury could find that the defendant killed the murder victim because his gunshots killed the victim as he stood behind the assault victim. The Superior Court did not err in holding a pretrial hearing and conducting an inquiry sufficient to determine the truth and scope of the defendant's pretrial claim of ineffective assistance of counsel; all parties were present and were given an opportunity to be heard, and the Superior Court judge questioned the attorneys extensively. The court did not abuse its discretion in denying the motion upon a finding that defense counsel’s performance did not fall below an objective standard of reasonableness and that defendant failed to prove that but for his counsel’s unprofessional errors, the results of the proceedings would have been different. Accordingly, the January 15, 2014 judgment and commitment is affirmed.
February 2, 2017
S. Ct. Civ. No. 2015-0042
Mervette Brown as Personal Representative for the Estate of Eric Browne v. Quinton Stanley
In a lawsuit seeking an order directing the defendant landowner to remove a portion of a fence encroaching on the plaintiff neighbor's property, the circuit court did not err in denying the defendant relief under the doctrine of equitable estoppel. In the Virgin Islands, equitable estoppel requires a demonstration that (1) the party to be estopped made a material misrepresentation (2) that induced reasonable reliance by the asserting party and (3) resulted in the asserting party’s detriment. This doctrine is applied with great caution in the context of real property. In this case, having heard conflicting testimony, the Superior Court did not clearly err in concluding that there was an oral agreement allowing the defendant to construct a fence on the plaintiff's property for an unspecified duration, but did not include an exchange of property. The existence of reasonable reliance and detriment depends upon the facts of each particular case. Where, as here, an uncertain oral agreement involves real property, the party asserting equitable estoppel must demonstrate that he or she exercised due diligence prior to acting so that his or her reliance can be considered reasonable under the circumstances. Without any evidence that he exercised due diligence, the defendant in this case simply failed to demonstrate that his reliance was reasonable. Nor did he demonstrate that his expenditure in constructing the fence amounted to a substantial detriment. Under these circumstances, it cannot be concluded that the Superior Court erred in declining to invoke equitable estoppel. The judgment issued on May 4, 2015 ordering the defendant to remove his encroaching fence and dismissing his counterclaim alleging breach of contract, is affirmed.
January 31, 2017
S. Ct. Civ. No. 2015-0119
Edwarde W. Pelle v. Certain Underwriters at Lloyd’s of London
Considering an appeal from a judgment of the Superior Court denying plaintiff’s motions to quash a writ of execution issued in 2010 and for relief from a prior judgment that became final in 2007 based on this Court’s subsequent decision in Joseph v. Inter-Ocean Ins. Agency, Inc., 59 V.I. 820 (V.I. 2013), the judgment below is affirmed. The interpretation of a law by the Supreme Court of the Virgin Islands does not render an earlier-rendered final judgment of the Superior Court void even though it was based on a different understanding of the same law that leads to a different result, absent some extraordinary circumstance. Here, the Superior Court’s decision on November 5, 2015 holding that the judgment in defendant’s favor was valid when it was entered in 2007, and that there is nothing in Joseph indicating that the holding in that case should be applied retroactively to cases that had been fully resolved years prior, is correct. In addition, the Superior Court did not abuse its discretion in denying plaintiff’s motion to quash the writ of execution, because the defendant, as the judgment creditor, did not act in bad faith when it directed plaintiff to make payments to one of its agents in fulfillment of the judgment. Accordingly, the Superior Court’s judgment is affirmed.
January 30, 2017
S. Ct. Civ. No. 2016-0005
Recaldo Dessout v. Lisa T. Brin
It was not error to deny reconsideration of the judgment in an action to determine ownership interests in certain property purchased at a tax auction nearly 15 years earlier. The Superior Court may set aside a final judgment when presented with newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b). To prevail on a claim of newly discovered evidence the aggrieved party must show that the evidence was in existence at the time of trial but for some excusable reason the evidence was not discovered by or otherwise made known to the party. In this case evidence allegedly discovered after the final judgment—a letter, a decision in another case, and records of property taxes paid by a third party—could all have been discovered with reasonable diligence prior to the trial. Therefore, the Superior Court correctly denied a motion to set aside its September 29, 2015 judgment. The judgment is affirmed.
January 23, 2017
S. Ct. Civ. No. 2016-0007
In re: Derrick Antonio Callwood, Sr.
In ruling on a petition for expungement of the applicant's arrest records the Superior Court erred when it treated the petition as one for discretionary expungement under 5 V.I.C. § 3733(b)(2) of the Virgin Islands Code. The record reflects that petitioner’s assault case had been dismissed because he successfully completed a pretrial intervention program, and that his domestic violence case had been dismissed with prejudice. He also provided proof, in the form of a certified arrest record from the Virgin Islands Police Department, that he had no other pending arrests. Although at the time the petition for expungement was filed, § 3732 provided that certain expungements were discretionary rather than mandatory, the Legislature has decreed that the provisions of the expungement law apply retroactively, 5 V.I.C. § 3741, meaning that the petitioner should receive the benefit of the change to the law achieved on July 30, 2015—almost two months after the expungement petition was filed—when the Legislature enacted Act No. 7742. Thus, each of petitioner’s convictions is subject to mandatory expungement pursuant to § 3732(1) and (3). Petitioner was therefore not required to make any showing of extraordinary circumstances to warrant expungement. Accordingly, the Superior Court’s December 30, 2015 judgment is reversed and the case is remanded with instructions to grant the petition.
January 20, 2017
S. Ct. Crim. No. 2014-0032
Kelvin Pickering v People of the Virgin Islands
remanded for a new trial. The Superior Court, in the exercise of sound discretion, may remove a juror and replace her with an alternate whenever facts are presented which convince the court that the juror’s ability to perform her duty as a juror is impaired. Under 4 V.I.C. § 473(a) the court violates a defendant’s right to a fair trial and commits error by removing an empaneled juror without good cause. In this case, the factual basis for removing the juror and seating an alternate during deliberations was not objectively verifiable or readily apparent, and the court committed error in removing the juror without conducting a hearing to demonstrate cause with findings on the record. This error prejudicially affected the defendant's substantial rights, with a reasonable probability that the error affected the outcome of the trial. The potential for serious harm and the interest of the defendant—and the public—in fair, unbiased, and secret deliberations are so great that no evidentiary showing of actual prejudice is required, and here it cannot be said that the defendant invited or induced the Superior Court’s actions. Therefore, the convictions are vacated. As to issues likely to recur on remand, first, defendant's motion three days before trial to exclude evidence of drinking or distributing alcohol to minors was not untimely. While defendant was not charged with distributing alcohol to minors, the People solicited alcohol-related testimony from multiple witnesses, which was unfairly prejudicial, as it served no purpose other than to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged. Secondly, given the expansive scope of the prohibition in Federal Rule of Evidence 412 on evidence offered to prove that a victim engaged in other sexual behavior, the Superior Court committed no error in prohibiting the defendant from presenting testimony that a victim was seen embracing another man. Nor did exclusion of this evidence deny his constitutional right to cross-examine the victim and otherwise put on a defense. The case is remanded for a new trial.
January 8, 2017
S. Ct. Civ. No. 2017-0005
Janelle K. Sarauw and Brigitte Berry, v. Caroline Fawkes, in her official capacity as Supervisor Of Elections, Virgin Islands Joint Board of Elections, Board of Elections, St. Thomas-St. John, and Kevin A. Rodriguez a/k/a Kevin A. Rodriquez,
Considering an appeal from the denial of a permanent injunction enjoining a candidate from taking the oath of office as a member of the Legislature, the Superior Court erred by failing to apply the doctrine of judicial estoppel. The purpose of the doctrine of judicial estoppel is to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions in one or more proceedings. The doctrine precludes a party from asserting a position on a question of fact or a mixed question of law and fact that is inconsistent with a position taken by that party in a previous judicial proceeding if the totality of the circumstances compels such a result. In conducting this inquiry, a court must focus on the impact that allowing the claims would have on the judicial process. The Superior Court erred when it declined to apply judicial estoppel to preclude the candidate from contradicting his claims of Tennessee residency and citizenship made in a prior bankruptcy proceeding, since those representations were clearly and unquestionably inconsistent with the candidate claiming to have been a bona fide resident of the Virgin Islands. Because the inconsistent representations were without legitimate excuse or explanation, were made in a very short duration so as to warrant an inference that the candidate intended to play fast and loose with the court, were relied upon by the bankruptcy court, and involve the subjects of domicile and residency which affect many civic duties and should not be taken lightly, the balance of the equities supports application of judicial estoppel so as to preclude the candidate from claiming to have been a bona fide resident of the Virgin Islands. The Superior Court’s denial of a permanent injunction is vacated. Since the Superior Court failed to make findings on the remaining permanent injunction factors, and did not resolve other outstanding issues between the parties, the matter is remanded for further proceedings. Because it is possible that the Superior Court may not resolve all of these issues before the swearing-in of the 32nd Legislature, the Supreme Court issues a preliminary injunction pursuant to title 4, section 32(b) of the Virgin Islands Code enjoining the candidate from taking the oath of office until the completion of all proceedings on remand, as well as any associated appeal.
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January 4, 2017
S. Ct. Civ. No. 2016-0106
Caroline Fawkes, in her official capacity as Supervisor of Elections, Virgin Islands Joint Board of Elections, Board of Elections, St. Thomas-St. John, and Kevin A. Rodriguez a/k/a Kevin A. Rodriquez, v. Janelle K. Sarauw and Brigette Berry
Considering an appeal from the grant of a preliminary injunction enjoining a candidate from taking the oath of office as a member of the Legislature, no error is found. The Superior Court correctly held that the affirmative defense of laches did not bar a challenge to the candidate’s qualifications to serve, since the equitable defense of laches does not apply to an action challenge the qualifications of an individual to hold office. The Superior Court erred in applying a taxpayer residency test to determine whether the candidate was a bona fide resident of the Virgin Islands for the past three-years, since for purposes of section 6(b) of the Revised Organic Act, bona fide resident is synonymous with domicile. The error is harmless, however, in that domicile is determined by considering physical presence and intent, and the Superior Court made factual findings with respect to those factors. The Superior Court did not err when it concluded that the challengers to the candidate’s qualifications were likely to succeed in establishing that the candidate was not a bona fide resident of the Virgin Islands, since the Superior Court’s factual findings in this regard were not clearly erroneous. The Superior Court’s grant of a preliminary injunction is affirmed.
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