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2009 Unpublished Opinions

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October 19, 2009

S.CT.Civ. No.: 2008-035
Maria Ruiz, (Appellant/Respondent,) vs. Todd P. Jung (Appellee/Petitioner. )

	Appellant, Maria Ruiz (“Ruiz”), challenges three orders entered by the Family Division of the Superior Court which denied her motion for a temporary restraining order (“TRO”),denied her motion to modify custody, and denied her motion for reconsideration of the two prior orders. For the reasons which follow, we will affirm the Superior Court’s denial of the motion for reconsideration, but we will dismiss for lack of jurisdiction the appeals from the orders denying the motion for a TRO and the motion to modify custody.

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September 15, 2009

S. Ct. Crim. No. 2008-037
Randolph A. Dunlop (Appellant/Defendant) vs. People of the Virgin Islands (Appellee/Plaintiff)

	The Court holds that a trial judge, as the trier of fact in a bench trial, may find one set of witnesses more credible even if a greater number of witnesses testify to a different set of facts. The Court further holds that a trial judge's off-the-cuff remarks, oral misstatements, or purportedly erroneous evidentiary decisions cannot form the basis for reversal of a verdict in a bench trial when the record otherwise reflects that the judge applied the correct legal standard and did not consider the purportedly inadmissible evidence when rendering its decision. Finally, the Court finds that a sentence imposing a combined period of incarceration of probation that exceeds the maximum period of incarceration authorized by law is an illegal split sentence and constitutes a plain error that the Court may correct sua sponte.

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June 25, 2009

S.CT.Civ. No.: 2007-060
Eleanor Chavayez, (Appellant/Plaintiff ) vs. Sydney Buhler and James S. Armour (Appellees/Defendants)

	Appellant Eleanor Chavayez (hereafter “Chavayez”) appeals a March 28, 2007 Superior Court order denying her motion for relief from a June 17, 2002 judgment dismissing Chavayez’s complaint against Appellees Sydney Buhler and James S. Armour (collectively “Appellees”). For the following reasons, we shall reverse the trial court’s March 28, 2007 order and vacate its June 17, 2002 judgment.

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April 14, 2009

S.CT.Crim. No.: 2008-052, 2008-054
Wendy Rivera (Appellant/Defendant,) vs. People of the Virgin Islands, (Appellee/Plaintiff) S. Ct. Crim. No. 2008-052; Milagritos Correa, (Appellant/Defendant,) vs. People of the Virgin Islands, (Appellee/Plaintiff) S. Ct. Crim. No. 2008-054

	THESE MATTERS are currently before the Court on a December 29, 2008 Petition for Rehearing filed by Wendy Rivera(hereafter “Rivera”) and a December 31, 2008 Petition for Rehearing and Joinder filed by Milagritos Correa(hereafter “Correa”), the appellants in these respective matters. In their petitions, Rivera and Correa (collectively “Appellants”) seek reconsideration of this Court’s December 17, 2008 order dismissing their appeals for lack of jurisdiction as untimely filed.

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April 8, 2009

S.CT.Civ. No. 2007-069
Susan Spencer (Appellant/Defendant) v. Carmen Navarro, (Appellee/Plaintiff).

	This appeal is back before the Court after we remanded the case to the trial court to enter findings of fact in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. See Spencer v. Navarro, S.Ct. Civ. No. 2007/69, slip op. (V.I. June 27, 2008) (hereinafter “SpencerI”). In the underlying action, Carmen Navarro (“Navarro”) sued Susan Spencer (“Spencer”) in the Small Claims Division of the Superior Court for damages to her vehicle allegedly resulting from a hit-and-run traffic accident that occurred on December 31, 2006. When Spencer failed to appear at the scheduled bench trial, the trial court entered a default judgment in Navarro’s favor. Spencer moved for reconsideration and for a new trial. After an evidentiary hearing on the motion, the trial court denied the motion and subsequently denied Spencer’s Motion for Relief from Judgment or for New Trial. Spencer appealed to this Court, asserting, among other arguments, that in denying her motions, the trial court overlooked evidence. Because the trial court had not entered findings of fact, we were unable to ascertain the basis for its decision and were, therefore, unable to review Spencer’s assertion. Accordingly, in Spencer I, we remanded the matter to trial court to enter findings of fact.

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April 8, 2009

S.CT.Civ. No.:2008-006
Magens Point Resort Hotel, (Appellant/Respondent) v. Cecil R. Benjamin, Commissioner, Department of Labor, (Appellee/Petitioner.)

	Appellant Magens Point Resort Hotel (hereafter “Magens Point”) seeks review of a December 20, 2007 Superior Court order granting a petition filed by the Department of Labor (hereafter “DOL”), seeking judicial enforcement of a July 29, 1988 administrative order that required Magens Point to reinstate and award back pay to Sylvia James (hereafter “James”), a former employee who the DOL had deemed wrongfully terminated. For the following reasons,we will reverse the Superior Court’s order.

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April 7, 2009

S.CT.Civ. No. 2007-042
Austin Thomas, (Appellant/Defendant) v. Alfred Cannonier, d/b/a Motor Trend, (Appellee/Plaintiff).

	This is an appeal from a small claims matter in which Alfred Cannonier, doing business as Motor Trend (“Motor Trend”) sued Austin Thomas (“Thomas”). Motor Trend alleged that Thomas owed it money for overhauling the transmission on Thomas’ automobile. Following a bench trial, the Small Claims Division of the Superior Court awarded a judgment in favor of Motor Trend. Thomas appeals, pro se, asserting that the trial court erred by (1) prohibiting him from presenting all of his evidence; (2) prohibiting him from asserting a counterclaim for loss of business; and (3) concluding that he was liable for the entire invoice for automotive services

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March 27, 2009

S. Ct. Crim. No. 2008-026
Malik Cheatham., (Appellant/Defendant,) vs. People of the Virgin Islands (Appellee/Plaintiff).

	Appellant Malik Cheatham (hereafter “Cheatham”) appeals from a Superior Court order imposing a sentence of six months probation after a period of six months incarceration. For the following reasons, we shall vacate the sentencing order and remand the matter for re-sentencing.

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March 26, 2009

S. Ct. Civ. No. 2007-129
People of the Virgin Islands (Appellant/Respondent) v. Clemento Monsanto, (Appellee/Petitioner)

	This matter comes before the Court as a result of an appeal brought by the People of the Virgin Islands (hereafter “People”) of the Superior Court’s December 3, 2007 Order granting a petition for writ of habeas corpus filed by Appellee Clemento Monsanto (hereafter “Monsanto”), vacating his conviction, and releasing him from custody. For the following reasons, we will reverse the trial court’s order.

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March 20, 2009

S.CT.BA.No.: 2007-146
In the Matter of the Application of Leslie L. Payton to the Virgin Islands Bar.

	Leslie L. Payton (hereafter “Payton”) requests that this Court exercise its equitable powers to grant him regular admission to Virgin Islands Bar or, in the alternative, allow him to only take and pass the Multistate Professional Responsibility Exam (hereafter “MPRE”) and the character and fitness review as a condition for admission. For the following reasons, we shall grant in part and deny in part Payton’s motion.

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March 2, 2009

S.CT.BA. No.: 2008-092
IN RE: Pro Hac Vice Admission Of Duston K. Mcfaul

	This matter is before the Court due to a motion for full panel review1 counsel for Dawn Prosser (“Prosser”) filed with this Court on January 26, 2009. In her motion, Prosser requests that this Court reconsider its January 22, 2009 order granting pro hac vice admission to Duston K. McFaul (“McFaul”), a Texas attorney who is co-counsel for the plaintiff in the underlying Superior Court action in which Prosser is the defendant.2

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January 28, 2009

S.CT.Civ. No.: 2007-080
Sonia Bright, (Appellant/Plaintiff) vs. United Corp. d/b/a Plaza Extra, (Appellee/Defendant)

	This matter is before the Court on the January 9, 2009 Motion for Recall and Stay of Mandate Pending Application of Writ of Certiorari filed by Appellee United Corporation d/b/a Plaza Extra (“Plaza”). In an opinion and accompanying order entered on July 22, 2008, this Court vacated the Superior Court’s order granting summary judgment to Plaza and remanded the matter for trial. This Court issued its mandate on October 23, 2008. On October 19, 2008, Plaza timely filed a petition for writ of certiorari with the United States Court of Appeals for the Third Circuit (“Third Circuit”).2 On November 12, 2008, the Superior Court denied Plaza’s motion for a stay of proceedings pending disposition of its petition for writ of certiorari. In its January 9,2009 motion before this Court, Plaza requests a recall of our October 23, 2008 mandate and, upon re-assumption of jurisdiction from the Superior Court, a stay of the trial court proceedings.

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January 22, 2009

S.CT.Civ. No.: 2008-071
Horaciana J. Rojas, et al., (Appellants/Plaintiffs) vs. Two/Morrow Ideas Enterprises, Inc. d/b/a Chuck Kline Water Services, et al, (Appellees/Defendants)

	THIS MATTER originally came before the Court on appeal from an order of the Superior Court dated August 1, 2008. On August 27, 2008, A. Jeffrey Weiss d/b/a A.J. Weiss & Associates (“Appellant”), who represented the plaintiffs at the trial level, filed a notice of appeal purporting to appear as the sole appellant in this matter.1 Essentially, Appellant’s notice of appeal challenges the trial judge’s decision to decrease the contractually agreed upon contingency fee award while ruling upon his clients’ Petition for Approval of Settlement on Behalf of Minor Children.

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January 22, 2009

S.CT.Civ.No.: 2007-115
Eileen M. Harvey, (Appellant/Defendant) vs. Lionel C. Christopher, (Apellee/Plaintiff)

	THIS MATTER comes before the Court as a result of Appellant Eileen Harvey’s (hereafter “Harvey”) appeal from a September 18, 2007 Superior Court order that, according to Harvey, denied both her motion to reopen case and her motion for reconsideration. The parties timely filed their respective briefs, and this Court heard the parties’ oral arguments on October 24, 2008. For the following reasons, we will hold the instant appeal in abeyance and remand to the Superior Court for further proceedings.

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January 7, 2009

S.CT.Crim. Nos.: 2008-098, 099
In Re: Peter Najawicz, Amos W. Carty, Jr., and Rodney E. Miller, Sr., (Petitioners.)

	This matter is before the Court on the December 4, 2008 Emergency Petition for Stay Pending Appeal filed by Rodney E. Miller, Sr., (hereafter “Miller”) and the December 5, 2008 Emergency Petition for Stay of Order Pending Appeal filed by Attorneys William J. Glore(hereafter “Glore”) and Charles J. Grant (hereafter “Grant”).1 Petitioners seek a stay of the Superior Court’s November 26, 2008 order holding Petitioner Miller in civil contempt and requiring him and his attorneys to pay a combined $1.1 million into the court’s registry by December 9 and December 10, 2008 respectively. As required by Supreme Court Rule 8(b), Petitioner Miller filed a stay pending appeal with the Superior Court on December 1, 2008, and Petitioners Glore and Grant also requested a stay from the trial court by a joint motion dated December 3, 2008. In a December 8, 2008 order, this Court granted Petitioners a partial, temporary stay of the Superior Court’s November 26, 2008 order until such time as we ruled upon Petitioners’ respective emergency petitions. In an order entered on December 9, 2008, the Superior Court denied Petitioners’ request for a stay pending appeal.2 The Respondent, the People of the Virgin Islands (hereafter “People”) submitted an opposition to Petitioners’ motions on December 9, 2008, and a supplemental opposition on December 10, 2008, and Petitioners Glore and Grant filed a reply on December 22, 2008.

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January 7, 2009

S.CT.Civ. No.: 2007-118
Edith Williams, (Appellant/Plaintiff,) vs. United Corp. d/b/a Plaza Extra, (Appellee/Defendant)

	THIS MATTER came before the Court on appeal from a Superior Court order granting a motion for summary judgment brought by Appellee. In an Opinion entered on July 10, 2008, we vacated the order appealed from and remanded to the trial court to reinstate this matter on the trial calendar. On July 24, 2008, Appellant filed with this Court a Motion for an Award of Costs and Fees, accompanied by an affidavit of Appellant’s counsel. In her motion, Appellant requests that we award $16,547.18 in attorney’s fees and costs incurred as a result of her appeal, pursuant to Supreme Court Rule 30 and title 5, section 541 of the Virgin Islands Code. Appellee filed its objection on August 5, 2008, and Appellant replied on August 20, 2008.

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