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2017 Published Opinions
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May 30, 2017
Nashville Phillip v. Wilma Marsh-Monsanto
S. Ct. Civ. No. 2015-0040
      Considering an appeal from the Superior Court’s May 8, 2015 judgment awarding the appellee $16,320.84 under a 2011 contract of sale for real property in St. Thomas, the Superior Court erred in interpreting and applying the appellee’s pleadings in this case, and erred in awarding her damages under an alleged separate “gentleman’s agreement” to pay more money for the property, which—as a matter of law—was unenforceable in light of the merger language of the operative sales contract, making the entire agreement unenforceable between the parties. The Superior Court accordingly erred in denying the appellant’s motion for judgment on partial findings because it misconstrued the appellee’s pleadings under the second contract and because the appellee’s pleaded promissory note is unenforceable under the clear and unambiguous language of the second contract. Therefore, the Superior Court’s May 8, 2015 judgment awarding appellee $16,320.84 under the second contract is vacated and the case is remanded for further proceedings, with directions that the Superior Court dismiss appellee’s complaint with prejudice.
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May 26, 2017
S. Ct. Civ. No. 2016-0004
Omar Bashiti d/b/a No. 1 Beauty Supply v. Tutu Park, Ltd.
      In a commercial landlord's case for rent due, the defendant waived his right to challenge determination of the merits of the dispute by arbitration. Defendant did not oppose a motion by the plaintiff to compel arbitration, and neither objected to the Superior Court's order compelling the parties to arbitrate, not sought any reconsideration of that order. During arbitration, when the plaintiff could produce only an unsigned copy of the lease, defendant objected to the arbitrator’s jurisdiction, but proceeded thereafter to present the defense case to the arbitrator. While defendant objected to the award of more than $ 219,000 by the arbitrator, and moved to vacate the award, he never moved to modify or amend his filings in which he conceded the existence of the lease. Through his conduct, defendant waived the issue of arbitrability. A party participating in arbitration without making a timely objection to submission of the dispute to arbitration, may be found to have waived its right to object to the arbitration. Here defendant also filed an answer and counterclaim with the arbitral body in which he represented that he was a party to an arbitration clause contained in a written lease agreement. Under the applicable Commercial Arbitration Rules of the American Arbitration Association a party must object to the jurisdiction of the arbitrator or to arbitrability of a claim no later than the filing of the answering statement. Defendant's failure to object to the arbitrator’s jurisdiction in accordance with the very rules to which he agreed to be bound further constitutes a waiver such a challenge. The Superior Court committed no error in declining to vacate the arbitrator’s award, and the December 24, 2015 order is affirmed on the grounds set forth in the present opinion.
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May 25, 2017
S. Ct. Crim. No. 2014-0084
Kehli M. Ubiles v. People of the Virgin Islands
      Convictions for driving under the influence of an intoxicating liquor and driving with a prohibited blood alcohol level are affirmed. The issue whether the defendant's Sixth Amendment right to confront witnesses against him was violated because the officer responsible for the maintenance and calibration of a breath alcohol analysis machine was not presented as a witness at trial was not properly presented in the trial court and has been waived. The defendant did not raise a Confrontation Clause claim in a motion to suppress or in a motion in limine to preclude admission of the evidence at trial. He did not object to admission of the breath test and indeed introduced the breath test results as a defense exhibit. This defendant invited the admission of the breath test results into evidence through counsel, who had the authority to waive the right to cross-examination, thus waiving the issue and precluding consideration on appeal of whether the failure to present at trial the person responsible for calibrating and maintaining the breath test machine violated Confrontation Clause rights. The evidence was sufficient to convict the defendant for driving under the influence of an intoxicating liquor with a prohibited blood alcohol content under 20 V.I.C. § 493(a)(1). Proof that he drove, operated or was in actual physical control of a motor vehicle. He occupied the driver’s seat of the vehicle and inserted the key into the ignition of the vehicle in the officer’s presence. The prohibited blood alcohol content element for the conviction under § 493(a)(2) was incontestably established through the blood alcohol breath test results. Both convictions are affirmed.
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May 22, 2017
S. Ct. Civ. No. 2016-0056
Companion Assurance Co., et al. v. Shawn Smith, et al.
      An appeal in a case involving defamation, contracts, insurance and other issues arising out of theft of a vehicle, is dismissed as untimely. The Superior Court entered judgment on the claims but the defendant's filed timely motions for new trial and judgment as a matter of law. Seven and one-half months later the Superior Court held oral argument on the post-trial motions, and entered an order denying the motions. The defendant's filed a notice of appeal within 30 days of that order. However, Virgin Islands Rule of Appellate Procedure 5(a)(4) provides that—in a case where a party timely files in the Superior Court a motion for judgment as matter of law or for a new trial—the time for filing the notice of appeal for all parties is extended until 30 days after the entry of an order disposing of the last such motion; provided, however, that the failure to dispose of any motion by order entered upon the record within 120 days after the date of the motion was filed shall constitute a denial of the motion for purposes of appeal. In the present case the 120-day provision was triggered, and the notice of appeal was due within 30 days thereafter. Defendants did not file the notice of appeal in this case within that period, and Rule 5(a)(4)’s 120-day provision denying the motion for purposes of appeal divested the Superior Court of jurisdiction to rule on the post-trial motion once the 120 days expired. The appeal is dismissed.
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May 8 2017
S. Ct. Civ. No. 2015-0071
Coral Management Group, LLC v. Government of the Virgin Islands, et al.
      In action challenging the imposition of a gross receipts taxes relating to oil reclamation activities due to tax exemption provisions in a concession agreement between an oil company and the Government of the Virgin Islands, the Superior Court lacked authority to requiring the plaintiff taxpayer to post a bond in order to obtain an injunction preventing the Virgin Islands Bureau of Internal Revenue from collecting the gross receipts tax. There is jurisdiction over the present appeal because the ruling below requiring the taxpayer to post bond was an injunctive interlocutory order directed to a party, enforceable by contempt; and designed to accord or protect some or all of the substantive relief sought by a complaint in more than a temporary fashion, and it filed this appeal within 30 days of that order as required by 4 V.I.C. § 33(d)(5). The language of 33 V.I.C. § 45(b) plainly provides that once the taxpayer petitions the Superior Court for a stay of execution, that court shall advance such petition and shall hear such relevant evidence as the taxpayer and tax administration authority may produce to arrive at the amount the taxpayer should have paid to comply with the law. Once requested, the stay must be granted, and the Superior Court lacks discretion to deny the stay or impose conditions on the issuance of the stay. The Superior Court erred in conditioning the stay in the present action upon the posting of a bond. The July 9, 2015 order requiring the taxpayer to post $500,000 bond is vacated and the matter is remanded for the Superior Court to enforce the stay of execution and proceed to the merits as required by § 45(b).
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April 26, 2017
S. Ct. Civ. No. 2014-0067
Ellen Stewart et al. v. Virgin Islands Board of Land Use Appeals, et al.
      After two prior litigations—one of which was decided on appeal in Thomas v. V.I. Board of Land Use Appeals, 60 V.I. 579 (V.I. 2014)—the landowner plaintiffs brought this third litigation against a church, the Virgin Islands Board of Land Use Appeals as well as the Virgin Islands Department of Planning & Natural Resources and its Commissioner, alleging that defendants violated their right to due process by failing to provide them with personal notice under 12 V.I.C. § 914, and by failing to issue a notice of violation and stop work order to enjoin the church from undertaking construction work under an expired Coastal Zone Management permit. Res judicata (claim preclusion) bars relitigation of claims that were raised or could have been raised in a prior action, where (1) the prior judgment was valid, final, and on the merits; (2) the parties in the subsequent action are identical to or in privity with the parties in the prior action; and (3) the claims in the subsequent action arise out of the same transaction or occurrence as those in the prior action. Dismissal for failure to comply with a jurisdictional precondition to suit is not on the merits because the court lacks jurisdiction over the claim. Here neither the language of 12 V.I.C. § 913(d) nor case law indicates that the appeals period in the CZM Act is to be treated as jurisdictional. If a precondition is a claims-processing rule, a dismissal based on a litigant’s noncompliance is on the merits unless the noncompliance can be cured by later action. Because the appeal period in 12 V.I.C. § 913(d) is a claims-processing rule and the plaintiffs cannot cure their earlier noncompliance by filing an even later, less timely petition for writ of review, the prior decision was on the merits. In deciding whether claims arise out of the same transaction or occurrence, it must be determined whether the legal theories or rights asserted in this case were raised or could have been raised in the prior case based on the conduct, transaction, or occurrence giving rise to that action, regardless of the legal elements or the evidence upon which that petition depended, or the particular remedies sought. The first count of the present complaint arises out of the same transaction or occurrence as the Thomas petition—the pleadings in both cases allege in part that the BLUA and former Commissioner Mathes violated the plaintiff's statutory and constitutional due process rights by failing to personally serve them with notice that the church had appealed the CZM Committee’s decision. Since Thomas previously resolved these issues, the Superior Court did not err in ruling that the first count of the present complaint is barred by res judicata. A portion of the second count of the present complaint challenging issuance of a permit to the church more than 30 days after the public hearing is also barred because it was actually raised in the prior case. Another portion of this count, alleging that the permit lacked required approvals, was also correctly found to be barred because it could have been raised in the earlier petition had plaintiffs exercised due diligence. A bright-line rule that res judicata does not apply to claims arising from events occurring after the filing of the prior complaint represents the soundest rule for the Virgin Islands. Here the complaint's remaining allegation—that the church failed to begin construction within the time period prescribed by the permit—cannot be said to have arisen out of the same transaction or occurrence as the earlier petition for writ of review. It is not barred by res judicata because it arises from events occurring after the complaint was filed in the prior action. Collateral estoppel (issue preclusion) bars relitigation of any issues of law or fact conclusively determined in a prior action, where (1) the previous determination was necessary to the decision; (2) the identical issue was previously litigated; (3) the issue was resolved in a decision that was final, valid, and on the merits; and (4) the party being precluded from relitigating the issue was adequately represented in the previous action. The delayed construction claim was not litigated in the prior case, and the Superior Court erred in ruling that it is barred by the doctrine of collateral estoppel. That claim is not barred by either res judicata or collateral estoppel because the transaction or occurrence upon which it is based arose after the complaint in the prior litigation, and it was not actually decided in that prior case. Therefore, the Superior Court’s dismissal of the first count of the appellant’s complaint is affirmed, but its dismissal of the second count of that complaint—insofar as it includes the claim relating to the church's failure to begin construction within the time period prescribed by the permit—is reversed.
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April 24, 2017
S. Ct. Civ. No. 2016-0039
Edmond Webster, et al. v. FirstBank Puerto Rico
      In litigation brought by a bank against borrowers on a series of loans, in which the defendants filed counterclaims for breach of fiduciary duty, misrepresentation, breach of the duty of good faith and fair dealing, duress, and intrusion upon seclusion, the Superior Court erred when it determined that the mandatory mediation provision of 28 V.I.C. § 531(b) permitted it to order mediation after entry of a judgment of foreclosure but before entry of a final judgment. Although the Superior Court stayed enforcement of its summary judgment adjudications in favor of the bank, those orders clearly constituted judgments, even if at the time of entry they were not final judgments that could be immediately appealed. The unusual procedure employed by the Superior Court in this case failed to place the parties in the same position as they would have been if mediation had occurred earlier. Ordering the parties to mediate the matter only after entry of judgment in the bank's favor on the loans and their modifications made compliance with 28 V.I.C. § 531(b) impossible. All the Superior Court’s rulings adjudicating the parties’ claims on the merits are vacated, including, but not limited to, the July 7, 2016, June 12, 2016, March 7, 2014, August 9, 2013, and March 6, 2013 orders, and it is directed that the matter be referred to mediation on remand. To remedy—to the greatest extent possible given the circumstances—the impact of the summary judgment rulings in favor of the bank, it is ordered that case be assigned to a different Superior Court judge on remand, who, in the event the parties fail to reach an agreement through mediation, may consider the bank's summary judgment motion anew without any reliance on or deference to the prior decisions.
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April 4, 2017
S. Ct. Civ. No. 2015-0052
Winston Demming v. Sylvia Demming
      In a marital property dispute incident to a divorce, the Superior Court erred in calculating the husband's net contribution toward the marital homestead because it failed to incorporate his undisputed payments of property tax and homeowner’s insurance, as well as support payments. Meaningful review of the calculation of the husband's premarital interest in the property and the Superior Court's consideration of his marital conduct is not possible in this appeal because that court failed to explain its reasoning. Further, while large portions of the memorandum opinion were devoted to analysis of the husband's marital fault, it failed to explain how this conduct was relevant to the economic position of the parties. The May 8, 2015 divorce decree is vacated in part and the case is remanded for further proceedings consistent with this opinion. On remand, the court shall equitably distribute the marital homestead pursuant to 33 V.I.C. § 2305(d) and appropriate factors, without any regard to marital fault, and shall consider the husband's unacknowledged contributions. The Superior Court shall also explain its calculation of his premarital interest when it equitably distributes the marital homestead.
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March 22, 2017
S. Ct. Civ. No. 2016-0062
Virgin Islands Taxi Ass'n v. West Indian Company, Ltd., et al.
      In an injunction proceeding, a governmentally-owned corporation's decision to award a concession agreement to a transportation company is subject to judicial review—and a challenge to that decision has not been mooted by the execution of the concession agreement. The plaintiff taxi association lacks standing under the general writ of review statutes, 5 V.I.C. §§ 1421–1423, but does have standing to bring the action under 5 V.I.C. § 80 because the two required elements are present: an act by a territorial officer or employee, and the allegation that such an act was either illegal or unauthorized, or that it constituted a wrongful disbursement of territorial funds. The execution of a contract does not moot a challenge to the procedures used to secure it, where it is possible that dissatisfied bidders will be subject to those same procedures again. Thus even though the dock is already being serviced under the concession agreement, this challenge to the decision to award the concession agreement not moot. On the merits, the arbitrary-and-irrational framework from federal case law is not applicable here, but the decision is not immune from judicial review and the Legislature intended for the defendant publicly owned corporation to exercise the decision-making authority that a private corporation would enjoy at common law, and consequently, to be subject to the same level of judicial scrutiny. Since the decision here is challenged as unauthorized—by virtue of alleged derogation of the Request for Qualifications' requirements—judicial review of the decision is appropriate, but the challenge is meritless. The plaintiff did not demonstrate a reasonable probability that the corporation acted in excess of its authority when it awarded the concession agreement, let alone that it acted in bad faith, fraudulently, or illegally. Thus likelihood of success on the merits weighed against the issuance of a preliminary injunction. The argument that any potential harm was not irreparable was not raised before the Superior Court, and it is waived for purposes of this appeal. No showing was made of an adverse effect on the plaintiffs' ability to compete. The argument that the Superior Court erred in concluding considerations of the public interest militated strongly against the issuance of a preliminary injunction is raised for the first time on appeal, thus it is waived and—in any event—plaintiff wholly failed to substantiate the claim that award of this concession agreement has eroded public confidence in the procurement process. Accordingly plaintiff failed to carry the burden of demonstrating a clear entitlement to an injunction prohibiting award of this concession, and the Superior Court’s October 26, 2016 order is affirmed.
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February 24, 2017
S. Ct. Civ. No. 2016-0038
Ivy Moses et al. v. Caroline Fawkes, as the Supervisor of Elections, et al.
      In an appeal by members of the St. Thomas/St. John and St. Croix Boards of Elections from denial of their motion for a preliminary injunction to bar the Supervisor of Elections from enforcing the resign-to-run provisions of 18 V.I.C. § 2, the judgment of the Superior Court is affirmed. Although it characterized the decision as denying the motion for a preliminary injunction—and it considered only one of the four factors that apply in deciding whether to grant such relief, failing to ascertain the seriousness of the legal questions presented or to determine whether the members possessed a chance of prevailing—in this case the hearing on the preliminary injunction application was consolidated with a hearing on the merits, and thus the Superior Court effectively issued a final decision rejecting the constitutional claims and denying the request for a permanent injunction. Therefore this appeal is heard pursuant to 4 V.I.C. § 33(b)(1) and § 32(a). While the Superior Court erred in its analysis of the Fourteenth Amendment claim, the error is ultimately harmless because Board members running for re-election are not similarly situated to ordinary government employees seeking election to a different office, and a rational basis exists for treating them differently. The Legislature could rationally determine that the resign-to-run provision is necessary to provide for a functioning and conflict-free Board to administer gubernatorial and senatorial elections—the offices that exercise the executive and legislative powers of the Virgin Islands—but that extending it to Board members seeking re-election would do more harm than good. Further, the Superior Court committed no error when it rejected the members’ First Amendment challenge to the resign-to-run statute, given that binding precedent from the Supreme Court of the United States has found the burden of such provisions on First Amendment rights to be insignificant, since they in no way restrict the ability to participate in political campaigns of third parties, limit neither political contributions nor expenditures, do not preclude holding office in a political party, permit the officeholders to distribute campaign literature and make speeches on behalf of a candidate, and simply require officeholders to choose between awaiting the conclusion of their term or resigning. Thus the First Amendment is not violated by a resign-to-run statute that does nothing more than to require current officeholders to choose between running for a different office and serving out their current term. Addressing another issue that is important and likely to recur, it is held that the Department of Justice was authorized to represent the Supervisor of Elections in this matter pursuant to 3 V.I.C. § 114(a). Accordingly, the Superior Court’s June 24, 2016 judgment is affirmed and the matter is remanded for the limited purpose of entering a final order of dismissal.
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February 24, 2017
S. Ct. Civ. No. 2013-0142
Dale Dupigny v. Kaaren E. Tyson
      In a child support order on review from the Division of Paternity and Child Support of the Virgin Islands Department of Justice, the Superior Court correctly interpreted the definition of income for child support purposes contained in 16 V.I.C. § 341(e) to include a lump-sum personal injury settlement payment. Because limiting the definition of income for purposes of child support obligations to payments made in periodic installments would not promote the best interests of the children of the Territory, and would undermine the manifest legislative intent underlying the entire child support statutory scheme, the Superior Court was correct when it concluded that a personal injury settlement payment is income for child support purposes. Further, because the definition of income in the federal tax code serves a different purpose—generation of revenue for the operation of the federal government, while § 341 addresses income for determining a parent’s obligation to support his or her children—the Superior Court correctly rejected use of the federal income tax definition of income. While the definition of income for child support purposes specifically lists awards in civil suits, the Superior Court abused its discretion when it determined that the gross proceeds from the personal injury settlement in this case were income under § 341(e) without also considering whether inclusion of the total settlement proceeds would work a hardship, as required by 16 V.I.C. § 345(c). The November 15, 2013 order is vacated and the matter is remanded for further proceedings.
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February 22, 2017
S. Ct. Crim. No. 2015-0082
Auriel Devon Frett v. People of the Virgin Islands
      On appeal from the defendant’s convictions for first-degree murder, first-degree assault and kidnapping for robbery, and a sentence of life imprisonment without parole, the judgment is affirmed. Although the prosecutor misrepresented the law on the presumption of innocence during her closing argument, these remarks did not infect the trial with such unfairness that the conviction was a denial of the defendant’s due process rights. In addition, the trial court did not err either in its jury instructions on the evidentiary use of another defendant’s plea, or its decision to permit the testimony of a retired Superior Court judge. Further, the court’s erroneous interjection and limitation of the defendant’s closing argument did not violate his due process rights, and the jury’s verdict was supported by sufficient evidence. The Superior Court’s October 14, 2015 judgment and commitment is affirmed.
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February 22, 2017
S. Ct. Civ. No. 2016-0034
Calvin Gumbs II v. Tina Koopmans, et al.
      The Superior Court erred in dismissing the plaintiff’s claims against the defendants as asserted in a Superior Court complaint filed on May 4, 2016, which arose out of an incident that allegedly occurred at the library of the University of the Virgin Islands on June 4, 2014 and that had spawned two prior small claims complaints on May 6, 2015 and November 3, 2015, both of which the Superior Court had dismissed with prejudice. By sua sponte dismissing the May 4, 2016 complaint on res judicata grounds without providing plaintiff with an opportunity to present evidence and arguments against dismissal, the Superior Court acted contrary to Virgin Islands case law precedent. Consequently, the judgment of the Superior Court is reversed and the case is remanded to the Superior Court so that it may proceed in accordance with the ordinary rules of civil procedure and general conceptions of fairness.
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February 10, 2017
S. Ct. Civ. No. 2014-0075
Wilma Marsh-Monsanto v. William Clarenbach, et al.
      In a quiet title action seeking to recover property on the island of St. John, all of the plaintiff-appellant's claims are barred by the statute of limitations, and the Superior Court's entry of summary judgment dismissing those claims is affirmed. The plaintiff acknowledged that she was aware of certain development activity on the property as early as 1982, but this action was not filed until 22 years later. Thus these claims are barred by the 20-year statute of limitations for actions for the recovery of real property under 5 V.I.C. § 31(1)(A), and no issue of equitable tolling of the statute has been presented. Remaining issues raised on appeal—concerning service of process, summary judgment procedures, and fraudulent transfer of property—were waived, and are not reached. However, this Court retains discretion to notice errors that affect substantive rights, even if those errors were not properly presented on appeal, under V.I.S.CT.R. 4(h) and 22(m). When the Superior Court correctly determined that the statute of limitations barred the plaintiff’s request for an adjudication of title to the parcel, it became improper to decide the merits that claim, effectively adjudicating an unpled counterclaim and divesting certain heirs of their alleged property interest in the subject parcel without affording them notice or an opportunity to be heard. Thus, the Superior Court committed a plain error by granting summary judgment on a request that was not properly before it. The October 21, 2014 order dismissing the plaintiff-appellant's claims on statute of limitations grounds is affirmed, but the Superior Court committed plain error by ruling on a declaratory judgment request that was not properly before it, that portion of the summary judgment order is reversed.
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February 9, 2017
S. Ct. Crim. No. 2013-0147
Dyhani Heyliger v. People of the Virgin Islands
      The defendant's conviction and sentences for 15 crimes, including felony murder of a victim while attempting to commit third-degree assault against another person, are affirmed. Under 14 V.I.C. § 922(a)(2) first-degree felony murder can be predicated solely upon assault in the third degree, which is one of the felonies enumerated in the statute. This statute's use of the conjunction “and” as the final separator in a list of several predicate unlawful acts supports this natural interpretation of the statute. In this case—involving a shooting in a parking lot near a nightclub—there was sufficient evidence from several witnesses for a rational jury to find the defendant guilty beyond a reasonable doubt of first-degree felony murder predicated upon assault in the third degree in violation of 14 V.I.C. §§ 921 and 922(a)(2). Viewing the evidence in the light most favorable to the People, a rational jury could find beyond a reasonable doubt that the defendant assaulted one person by shooting at him, placing him in fear for his life, and the jury could find that the defendant killed the murder victim because his gunshots killed the victim as he stood behind the assault victim. The Superior Court did not err in holding a pretrial hearing and conducting an inquiry sufficient to determine the truth and scope of the defendant's pretrial claim of ineffective assistance of counsel; all parties were present and were given an opportunity to be heard, and the Superior Court judge questioned the attorneys extensively. The court did not abuse its discretion in denying the motion upon a finding that defense counsel’s performance did not fall below an objective standard of reasonableness and that defendant failed to prove that but for his counsel’s unprofessional errors, the results of the proceedings would have been different. Accordingly, the January 15, 2014 judgment and commitment is affirmed.
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February 2, 2017
S. Ct. Civ. No. 2015-0042
Mervette Brown as Personal Representative for the Estate of Eric Browne v. Quinton Stanley
      In a lawsuit seeking an order directing the defendant landowner to remove a portion of a fence encroaching on the plaintiff neighbor's property, the circuit court did not err in denying the defendant relief under the doctrine of equitable estoppel. In the Virgin Islands, equitable estoppel requires a demonstration that (1) the party to be estopped made a material misrepresentation (2) that induced reasonable reliance by the asserting party and (3) resulted in the asserting party’s detriment. This doctrine is applied with great caution in the context of real property. In this case, having heard conflicting testimony, the Superior Court did not clearly err in concluding that there was an oral agreement allowing the defendant to construct a fence on the plaintiff's property for an unspecified duration, but did not include an exchange of property. The existence of reasonable reliance and detriment depends upon the facts of each particular case. Where, as here, an uncertain oral agreement involves real property, the party asserting equitable estoppel must demonstrate that he or she exercised due diligence prior to acting so that his or her reliance can be considered reasonable under the circumstances. Without any evidence that he exercised due diligence, the defendant in this case simply failed to demonstrate that his reliance was reasonable. Nor did he demonstrate that his expenditure in constructing the fence amounted to a substantial detriment. Under these circumstances, it cannot be concluded that the Superior Court erred in declining to invoke equitable estoppel. The judgment issued on May 4, 2015 ordering the defendant to remove his encroaching fence and dismissing his counterclaim alleging breach of contract, is affirmed.
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January 31, 2017
S. Ct. Civ. No. 2015-0119
Edwarde W. Pelle v. Certain Underwriters at Lloyd’s of London
      Considering an appeal from a judgment of the Superior Court denying plaintiff’s motions to quash a writ of execution issued in 2010 and for relief from a prior judgment that became final in 2007 based on this Court’s subsequent decision in Joseph v. Inter-Ocean Ins. Agency, Inc., 59 V.I. 820 (V.I. 2013), the judgment below is affirmed. The interpretation of a law by the Supreme Court of the Virgin Islands does not render an earlier-rendered final judgment of the Superior Court void even though it was based on a different understanding of the same law that leads to a different result, absent some extraordinary circumstance. Here, the Superior Court’s decision on November 5, 2015 holding that the judgment in defendant’s favor was valid when it was entered in 2007, and that there is nothing in Joseph indicating that the holding in that case should be applied retroactively to cases that had been fully resolved years prior, is correct. In addition, the Superior Court did not abuse its discretion in denying plaintiff’s motion to quash the writ of execution, because the defendant, as the judgment creditor, did not act in bad faith when it directed plaintiff to make payments to one of its agents in fulfillment of the judgment. Accordingly, the Superior Court’s judgment is affirmed.
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January 30, 2017
S. Ct. Civ. No. 2016-0005
Recaldo Dessout v. Lisa T. Brin
      It was not error to deny reconsideration of the judgment in an action to determine ownership interests in certain property purchased at a tax auction nearly 15 years earlier. The Superior Court may set aside a final judgment when presented with newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b). To prevail on a claim of newly discovered evidence the aggrieved party must show that the evidence was in existence at the time of trial but for some excusable reason the evidence was not discovered by or otherwise made known to the party. In this case evidence allegedly discovered after the final judgment—a letter, a decision in another case, and records of property taxes paid by a third party—could all have been discovered with reasonable diligence prior to the trial. Therefore, the Superior Court correctly denied a motion to set aside its September 29, 2015 judgment. The judgment is affirmed.
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January 23, 2017
S. Ct. Civ. No. 2016-0007
In re: Derrick Antonio Callwood, Sr.
      In ruling on a petition for expungement of the applicant's arrest records the Superior Court erred when it treated the petition as one for discretionary expungement under 5 V.I.C. § 3733(b)(2) of the Virgin Islands Code. The record reflects that petitioner’s assault case had been dismissed because he successfully completed a pretrial intervention program, and that his domestic violence case had been dismissed with prejudice. He also provided proof, in the form of a certified arrest record from the Virgin Islands Police Department, that he had no other pending arrests. Although at the time the petition for expungement was filed, § 3732 provided that certain expungements were discretionary rather than mandatory, the Legislature has decreed that the provisions of the expungement law apply retroactively, 5 V.I.C. § 3741, meaning that the petitioner should receive the benefit of the change to the law achieved on July 30, 2015—almost two months after the expungement petition was filed—when the Legislature enacted Act No. 7742. Thus, each of petitioner’s convictions is subject to mandatory expungement pursuant to § 3732(1) and (3). Petitioner was therefore not required to make any showing of extraordinary circumstances to warrant expungement. Accordingly, the Superior Court’s December 30, 2015 judgment is reversed and the case is remanded with instructions to grant the petition.
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January 20, 2017
S. Ct. Crim. No. 2014-0032
Kelvin Pickering v People of the Virgin Islands
      remanded for a new trial. The Superior Court, in the exercise of sound discretion, may remove a juror and replace her with an alternate whenever facts are presented which convince the court that the juror’s ability to perform her duty as a juror is impaired. Under 4 V.I.C. § 473(a) the court violates a defendant’s right to a fair trial and commits error by removing an empaneled juror without good cause. In this case, the factual basis for removing the juror and seating an alternate during deliberations was not objectively verifiable or readily apparent, and the court committed error in removing the juror without conducting a hearing to demonstrate cause with findings on the record. This error prejudicially affected the defendant's substantial rights, with a reasonable probability that the error affected the outcome of the trial. The potential for serious harm and the interest of the defendant—and the public—in fair, unbiased, and secret deliberations are so great that no evidentiary showing of actual prejudice is required, and here it cannot be said that the defendant invited or induced the Superior Court’s actions. Therefore, the convictions are vacated. As to issues likely to recur on remand, first, defendant's motion three days before trial to exclude evidence of drinking or distributing alcohol to minors was not untimely. While defendant was not charged with distributing alcohol to minors, the People solicited alcohol-related testimony from multiple witnesses, which was unfairly prejudicial, as it served no purpose other than to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged. Secondly, given the expansive scope of the prohibition in Federal Rule of Evidence 412 on evidence offered to prove that a victim engaged in other sexual behavior, the Superior Court committed no error in prohibiting the defendant from presenting testimony that a victim was seen embracing another man. Nor did exclusion of this evidence deny his constitutional right to cross-examine the victim and otherwise put on a defense. The case is remanded for a new trial.
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January 8, 2017
S. Ct. Civ. No. 2017-0005
Janelle K. Sarauw and Brigitte Berry, v. Caroline Fawkes, in her official capacity as Supervisor Of Elections, Virgin Islands Joint Board of Elections, Board of Elections, St. Thomas-St. John, and Kevin A. Rodriguez a/k/a Kevin A. Rodriquez,
      Considering an appeal from the denial of a permanent injunction enjoining a candidate from taking the oath of office as a member of the Legislature, the Superior Court erred by failing to apply the doctrine of judicial estoppel. The purpose of the doctrine of judicial estoppel is to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions in one or more proceedings. The doctrine precludes a party from asserting a position on a question of fact or a mixed question of law and fact that is inconsistent with a position taken by that party in a previous judicial proceeding if the totality of the circumstances compels such a result. In conducting this inquiry, a court must focus on the impact that allowing the claims would have on the judicial process. The Superior Court erred when it declined to apply judicial estoppel to preclude the candidate from contradicting his claims of Tennessee residency and citizenship made in a prior bankruptcy proceeding, since those representations were clearly and unquestionably inconsistent with the candidate claiming to have been a bona fide resident of the Virgin Islands. Because the inconsistent representations were without legitimate excuse or explanation, were made in a very short duration so as to warrant an inference that the candidate intended to play fast and loose with the court, were relied upon by the bankruptcy court, and involve the subjects of domicile and residency which affect many civic duties and should not be taken lightly, the balance of the equities supports application of judicial estoppel so as to preclude the candidate from claiming to have been a bona fide resident of the Virgin Islands. The Superior Court’s denial of a permanent injunction is vacated. Since the Superior Court failed to make findings on the remaining permanent injunction factors, and did not resolve other outstanding issues between the parties, the matter is remanded for further proceedings. Because it is possible that the Superior Court may not resolve all of these issues before the swearing-in of the 32nd Legislature, the Supreme Court issues a preliminary injunction pursuant to title 4, section 32(b) of the Virgin Islands Code enjoining the candidate from taking the oath of office until the completion of all proceedings on remand, as well as any associated appeal.
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January 4, 2017
S. Ct. Civ. No. 2016-0106
Caroline Fawkes, in her official capacity as Supervisor of Elections, Virgin Islands Joint Board of Elections, Board of Elections, St. Thomas-St. John, and Kevin A. Rodriguez a/k/a Kevin A. Rodriquez, v. Janelle K. Sarauw and Brigette Berry
      Considering an appeal from the grant of a preliminary injunction enjoining a candidate from taking the oath of office as a member of the Legislature, no error is found. The Superior Court correctly held that the affirmative defense of laches did not bar a challenge to the candidate’s qualifications to serve, since the equitable defense of laches does not apply to an action challenge the qualifications of an individual to hold office. The Superior Court erred in applying a taxpayer residency test to determine whether the candidate was a bona fide resident of the Virgin Islands for the past three-years, since for purposes of section 6(b) of the Revised Organic Act, bona fide resident is synonymous with domicile. The error is harmless, however, in that domicile is determined by considering physical presence and intent, and the Superior Court made factual findings with respect to those factors. The Superior Court did not err when it concluded that the challengers to the candidate’s qualifications were likely to succeed in establishing that the candidate was not a bona fide resident of the Virgin Islands, since the Superior Court’s factual findings in this regard were not clearly erroneous. The Superior Court’s grant of a preliminary injunction is affirmed.
      Download Per Curiam Opinion  (88 kb)
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