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2018 Published Opinions
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December 3, 2018
S. Ct. Civ. No. 2018-0020 and S. Ct. Civ. No. 2018-0053
Linda Raymond v. Dr. Kidane Assefa d/b/a/ The Eye Clinic and In re Personal Representative of the Estate of Linda Raymond
      Upon a motion filed by counsel for an appellant who died during the pendency of an appeal, advising this Court that the Superior Court refused to consider the petition for appointment of a personal representative on the merits due to a standing order of the Presiding Judge directing that such petitions not be docketed outside of probate matters, as well as a direct appeal of that order, it is held that the Presiding Judge lacks the authority to unilaterally establish court procedures that conflict with the Virgin Islands Rules of Civil Procedure or the Virgin Islands Rules of Appellate Procedure, or that effectively require other judges to comply with the Presiding Judge’s interpretation of Virgin Islands statutory law. The June 20, 2018 standing order issued by the Presiding Judge is not a valid exercise of the Superior Court’s rule-making authority, for approval for the practice was never obtained—or even sought—from this Court. The order also is not a valid exercise of the Presiding Judge’s power to oversee the work of the other Superior Court judges, since it does not address an administrative issue, but seeks to bind other judges on a legal question. The June 20, 2018 standing order is declared to be invalid, the July 13, 2018 order denying appointment of a personal representative in the present proceedings is vacated, and this matter is remanded to the Superior Court for the limited purpose of ruling on the merits of the petition for appointment of a personal representative within 90 days. The appeal in S. Ct. Civ. No. 2018-0020 shall be held in abeyance pending determination of the petition.
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November 29, 2018
S. Ct. BA. No. 2018-0018, 2018-0019, 2018-0020
In re Application of Jindal; In re Application of Roush; In re Application of Schmitten
      Following this Court’s June 15, 2018 order to show cause – in light of an allegation that the applicants have engaged in unauthorized practice of law in the Virgin Islands – their applications for admission to practice pro hac vice are denied, and this matter is referred to the appropriate authorities. The claims that the acts performed by the applicants were consistent with ordinary cross-jurisdictional litigation practice, or that it is relevant that the acts were performed while they were physically present in Washington, D.C., are wholly without merit. Rule 211.8.5 of the Virgin Islands Rules of Professional Conduct governs choice of law when attorneys engage in multi-jurisdictional practice, and provides that for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits shall apply. When they applied for pro hac vice admission, these applicants agreed to submit to the jurisdiction of this Court and to be bound by the disciplinary rules applicable to Virgin Islands attorneys. Therefore, the Virgin Islands definition of the practice of law—including Virgin Islands rules and statutes relating to the unauthorized practice of law—apply to their conduct. Under Rule 211.5.5 of the Virgin Islands Rules of Professional Conduct the practice of law encompasses all matters implicating the rights and remedies of clients. These applicants held themselves out as lawyers with respect to the underlying matter, and any work they claimed to have performed necessarily exceeded the acts—if any—that could permissibly be performed by a paralegal or secretary. Neither Supreme Court Rule 201, Virgin Islands Rule of Professional Conduct 211.5.5, 4 V.I.C. § 443, nor any other applicable Virgin Islands rule or statute codifies a federal practice exception to either the prohibition on unauthorized practice of law or the requirement that one cannot practice law in the Virgin Islands without being a member of the Virgin Islands Bar, and no such exception is recognized. Accordingly, the petitions for admission pro hac vice are denied. Since the underlying conduct may potentially warrant action beyond the denial of pro hac vice admission, this matter is referred to the Office of Disciplinary Counsel, the Board on Professional Responsibility, the Board on Unauthorized Practice of Law, and the Virgin Islands Attorney General for the purpose of taking any additional action which they may find appropriate.
      Download Per Curiam Opinion  (57 kb)

November 19, 2018
S. Ct. Civ. No. 2017-0011
Charmaine P. Daley-Jeffers v. Dr. Emanuel Graham, et al.
      In a medical malpractice proceeding, the Superior Court’s order granting the defendants’ motion to dismiss for lack of subject matter jurisdiction and insufficient service of process is reversed. The Medical Malpractice Act is a jurisdiction limiting statute which prohibits a claimant from commencing a suit against a health care provider before the claimant has filed her proposed complaint with the Committee. Title 27 V.I.C. § 166i provides that once a claimant has filed her complaint with the Medical Malpractice Action Review Committee, she may proceed to court after one of two things happens: (1) the Committee has received an expert opinion; or (2) the Committee has not received an expert opinion and 90 days have passed. Nowhere does the statute state that expressly pleading compliance with the requirements of § 166i is a precursor to invoking subject matter jurisdiction of the Superior Court. Section 166i is clear; statutory restrictions on the Superior Court’s jurisdiction are inapplicable once the claimant has satisfied the statutory pre-filing conditions, and the record here clearly demonstrates that the plaintiff filed a proposed complaint with the Committee, satisfying the first condition of § 166i. After the Committee did not respond within 90 days, the second condition was met, and she was free to file her complaint with the Superior Court, which then had jurisdiction to hear her claim under 4 V.I.C. § 76(a), and no other action was necessary—pleading or otherwise—to invoke the Superior Court’s subject matter jurisdiction. Further, dismissal of this claim for insufficient service of process was an abuse of discretion. Plaintiff’s motion and exhibits filed in response to the motion to dismiss for insufficient service of process clearly evidenced that she had timely remedied her initially deficient service. The August 24, 2016 Superior Court order granting the defendants’ motion to dismiss is reversed and the case is remanded for further proceedings not inconsistent with this holding.
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November 19, 2018
S. Ct. Crim. No. 2016-0029
Ezra Thomas v. People of the Virgin Islands
      A conviction for the crime of possession of stolen property is affirmed. The plain meaning of 14 V.I.C. § 2101(a) is clear, and it was not necessary for the prosecution to prove who stole the property, since a conviction under this statute may be based on proof (1) that the defendant bought, received or possessed the property (2) that it was obtained in an unlawful manner; (3) that the defendant knew or had cause to believe that the property was obtained in an unlawful manner; and (4) that the property had a minimum value of $ 500. Given the victim’s testimony about the value of the tablet computer and that was stolen from her, use of its built-in alarm to locate the device, sworn police evidence, and the defendant’s own post-arrest admissions, there was ample evidence from which a rational jury could conclude that the required elements for this crime were proven beyond a reasonable doubt, including the defendant’s dominion and control over the stolen property and his knowledge or reason to know that it had been unlawfully obtained. In addition, evidence that a defendant was in possession of recently stolen property, without a reasonable explanation, gives rise to a permissible inference of guilt. The contention that there was insufficient evidence of possession of stolen property to convict the defendant 14 V.I.C. § 2101(a) is rejected, and the conviction is affirmed.
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November 16, 2018
S. Ct. Civ. No. 2017-0080
Zubair Kazi and Kazi Family, LLC v. Colonial Pacific Leasing, et al.
      In a petition by judgment creditors to domesticate and enforce a New York judgment in the Virgin Islands, approved by the Superior Court, a motion for relief from judgment by the debtors was not the appropriate mechanism to obtain a refund of excess sums that over-satisfied the judgment. A party seeking a refund should instead commence a new action to recover the alleged excess amounts, and thus the Superior Court appropriately denied the debtors’ Rule 60(b) motion. Asserting a counterclaim to a recognized foreign judgment is also procedurally improper, except in those limited circumstances where the counterclaim attacks the validity of a judgment. Given the summary nature of the recognition of a foreign judgment under the Uniform Enforcement of Foreign Judgments Act, and the requirement of former Superior Court Rule 34 that a party file counterclaims in an answer, the Superior Court correctly struck the debtors’ counterclaim. The Superior Court’s orders denying the debtors’ motion to vacate the foreign judgment and striking their counterclaim are affirmed.
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November 16, 2018
S. Ct. Crim. No. 2017-0068
Jahzeel Fenton v. People of the Virgin Islands
      In a prosecution for assault in the first degree (domestic violence) the defendant’s plea of no contest was knowing, voluntary, and intelligent. The Superior Court adequately advised him that it could sentence him to a maximum of 20 years’ imprisonment as well as require him to pay restitution, and the defendant understood those consequences. Moreover, under former Superior Court Rule 126, the Superior Court was not required to sentence the defendant in accord with a plea agreement or the People’s sentencing recommendation, and did not have an obligation to inform the defendant of its intention to deviate from the plea agreement or allow him the opportunity to withdraw his plea due to its deviation. Advising a defendant of the non-binding nature of a plea agreement is sufficient. The judgment and commitment is affirmed.
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October 25, 2018
S. Ct. Civ. No. 2015-0074
Governor Juan F. Luis Hospital, et al. v. Titan Medical Group, LLC, et al.
      In a breach of contract and quantum meruit action by medical staffing entities filed against a hospital, summary judgment for the plaintiffs is reversed. The defendant hospital adequately raised in the Superior Court its argument that it is not an entity subject to suit. Reviewing de novo the governing statutory framework of the Virgin Islands Government Hospitals and Health Facilities Corporation Act, 19 V.I.C. §§ 240–249, it is clear that the Legislature did not intend to subject this hospital to suit in its own name, which it could have done by recognizing it as a “public corporation” under 5 V.I.C. § 1142(b). Because the hospital is part of the larger entity, the Virgin Islands Hospitals and Health Facilities Corporation—against whom legal recourse can be sought—and is not a distinct entity broadly recognized in law in its own right without limitations on its powers, the proposition that the Legislature implicitly granted the hospital the right to sue and be sued in its own name is rejected. The Superior Court erred by entering the July 14, 2015 judgment order awarding summary judgment against the hospital. That judgment order is vacated and the case is remanded for further proceedings with directions that the Superior Court dismiss the hospital from this case.
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October 3, 2018
S. Ct. Civ. No. 2017-0101
Yearwood Enterprises, Inc. v. Antilles Gas Corp.
      The Superior Court retained jurisdiction to consider a motion for attorney’s fees following the voluntary dismissal of an action regardless of whether that motion was filed before or after the notice of voluntary dismissal pursuant to V.I. R. Civ. P. 41(a)(1)(A)(i). Although a valid notice of dismissal under Rule 41(a)(1)(A)(i) automatically terminates any litigation on the merits of the action, a trial court retains jurisdiction to decide collateral issues—such as sanctions, costs, and attorney’s fees—after a plaintiff dismisses an action by notice. The Superior Court was not divested of jurisdiction to consider a motion for attorneys’ fees and costs simply because that motion is filed after, rather than before, a plaintiff files a notice of dismissal under V.I. R. CIV. P. 41(a)(1)(A)(i). The Superior Court’s December 8, 2017 memorandum opinion and order awarding attorney’s fees and costs is affirmed.
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October 3, 2018
S. Ct. Civ. No. 2015-0116
Sidone N. Lake v. Government of the Virgin Islands, et al.
      Upon review of a decision of the Superior Court denying a pro se petition for a writ of habeas corpus, which alleged that the petitioner’s guilty plea was not knowing and intelligent because he was not informed of the minimum sentence he faced, that the prosecution breached the plea agreement by opposing his motion for reduction of sentence, and that the trial court wrongfully imposed a sentence in excess of the twenty-year recommendation of the People, the October 6, 2015 order of the Superior Court is reversed and the case is remanded with instructions to issue the writ and conduct further proceedings in accordance with the Virgin Islands Habeas Corpus Rules and this Court’s precedent. When presented with a petition for a writ of habeas corpus, the Superior Court must first determine whether it states a prima facie case for relief — that is, whether it states facts that, if true, would entitle the petitioner to discharge or other relief — and whether the stated claims are for any reason procedurally or substantively barred as a matter of law. If it appears that the petition states a prima facie case for relief and that the claims are not all barred as a matter of law, Superior Court must issue a writ of habeas corpus, requiring further proceedings on the petition within the initial 60 days after the filing of the petition, or within 45 days after filing of any informal response requested by the court, as provided in V.I. H.C.R. 2(b)(5). Here the petitioner alleged not only that his trial counsel incorrectly advised him as to the minimum sentence he would face, but also that petitioner was, in fact, unaware of the statutory minimum sentence for second-degree murder at the time he entered his guilty plea. Accepting these factual allegations as true, he has sufficiently demonstrated a prima facie case that he did not enter his plea of guilty with sufficient awareness of the likely consequences of doing so, and consequently, that the trial court’s acceptance of his unknowing and unintelligent guilty plea violated his Fourteenth Amendment right to due process. Accordingly this petitioner is entitled to the issuance of a writ of habeas corpus and the Superior Court erred in denying his petition on this ground. Where a plea agreement requiring the prosecution to recommend a particular sentence or sentencing range to the court is ambiguous as to the scope of the prosecution’s post-sentencing obligations, the prosecution remains bound to make the same recommendation at all proceedings relevant to sentencing, including proceedings on a motion for reduction of sentence. Because the petitioner sufficiently alleged that he entered into the plea agreement with the expectation that the prosecution would recommend a twenty year sentence at all relevant proceedings, and further alleged that the prosecution breached the plea agreement by opposing his motion to reduce the thirty year sentence imposed by the Court, he has successfully made out a prima facie case for habeas relief based upon the violation of his Fourteenth Amendment right to due process, and the Superior Court erred in denying his petition in this respect. Other claims in the petition were not erroneously dismissed.
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September 25, 2018
S. Ct. Civ. No. 2017-0017 (cons.)
In re Baby E.C., a Minor, Through Gail Shearer, Esq., Guardian ad Litem, and Virgin Islands Volunteer Advocates for Children, Inc.
      An infant’s guardian ad litem filed a petition for a supervisory writ of mandamus, as well as a subsequent appeal, arguing that the Superior Court compromised her role as a guardian. Although this Court lacks jurisdiction over the appeal – because the issues raised are not shown to be inextricably intertwined with the granting or dissolving of an injunction – it has jurisdiction over the petition for writ of mandamus in accord with 4 V.I.C. § 32(b). While this case is not appropriate for a supervisory writ of mandamus, the guardian has met the three-factor test applicable to traditional petitions for writ of mandamus, by demonstrating a clear and indisputable right to relief, and there are no other avenues for obtaining timely relief exist; a foster placement could negatively affect the infant by the time the case becomes appealable. A writ of mandamus is appropriate here. The Superior Court ignored an unambiguous statute that grants the guardian ad litem access to the home study and the prospective foster parent’s file, although the records sought are clearly reports relevant to the case under 5 V.I.C. § 2542. Additionally, it is imperative to correct the Superior Court’s overly restrictive understanding of a guardian ad litem’s role in child and neglect proceedings, so that the best interests of this infant and similarly situated children are not negatively affected by the Superior Court’s misinterpretation. The petition is granted in part, the Superior Court’s order is vacated, and a writ is issued compelling the Superior Court to allow the guardian ad litem access to pre-placement home study records and information in the prospective foster parent’s file. A writ of mandamus is denied with respect to a subpoena duces tecum, since the guardian failed to meet her burden of demonstrating that she lacks other methods of obtaining the same relief .
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September 21, 2018
S. Ct. Civ. No. 2015-0064
Royson Fabien v. Angelica Fabien
      In a divorce proceeding an order of the Superior Court requiring the husband to pay $600 monthly in alimony for ten years was based on erroneous factual findings and the court abused its discretion. Under 16 V.I.C. § 109(a)(3) alimony may be awarded to a party in need thereof, but here the Superior Court appears to have considered only the parties’ income and expenses, when it may also consider their potential for future earnings based on educational background, employment history, and other relevant factors. Because the wife requested alimony, she bore the burden of substantiating her claim of need and that the husband has the financial ability to pay for her purported living expenses, but in this case the husband’s ability to pay is unsubstantiated by the evidence presented. The manner in which the Superior Court computed the wife’s monthly expenses was also clearly flawed. Inclusion of monthly expenses relating to the wife’s children in determining an award of alimony was an abuse of discretion since separate statutory provisions govern alimony and child support. Because the Superior Court failed to explain and articulate how its findings of fact relating to alimony factors led to the award, meaningful review is not possible and it accordingly abused its discretion. Inclusion of a monthly car payment in determining the alimony over a 10-year period was also an abuse of discretion since the car would be paid off in only one year. The Superior Court further abused its discretion with regard to marital funds in the parties’ joint savings account, since the wife has an equitable interest in money that she withdrew and loaned to another person, and the court had the power under 16 V.I.C. § 109(a)(7) to equitably distribute the account, in which the husband also had an interest. Its failure to adjudicate the parties’ rights to the funds was an abuse of discretion. This case is remanded for further proceedings consistent with this opinion.
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September 11, 2018
S. Ct. Crim. No. 2016-0090
Kenneth Milligan v. People of the Virgin Islands
      A conviction for reckless driving is reversed because the People failed to elicit sufficient evidence to support the elements of the statute, 20 V.I.C. § 492, which defines recklessness as conduct evincing either a willful or wanton disregard for the safety of person or property. Given that the jury determined that it did not have sufficient evidence to convict this defendant under the negligent homicide standard, there is likewise no way the evidence was sufficient to convict him of the same or higher standard of willful and wanton conduct necessary for a finding of reckless driving. To convict him of the essential elements of reckless driving, the jury would also have had to draw from the trial record evidence sufficient to support a finding beyond a reasonable doubt that the defendant felt, but disregarded, signs that he was too tired to drive. Unlike negligence, which only requires a showing of carelessness, reckless driving requires the defendant to have demonstrated a malicious and purposeful indifference, i.e. willful or wanton disregard for the safety of others, and the People failed to elicit any such evidence. Further, the People failed to produce sufficient evidence to support a finding that defendant struck the victim because he fell asleep. To reach a finding in this case that the defendant was (1) sleep deprived and (2) recklessly disregarded signs of sleep deprivation when he got behind the wheel, the jury would have had to draw one inference upon another, and a verdict cannot rest on the mere suspicion, speculation, or conjecture, or on an overly attenuated piling of inference upon inference. The conviction is reversed.
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August 30, 2018
S. Ct. Crim. No. 2018-0006
In re People of the Virgin Islands People of the Virgin Islands v. Oscar E. Illescas-Gomez
      A fine of $3,000 imposed upon the Virgin Islands Department of Justice by the Superior Court because of a motion to dismiss a criminal case made on the morning of a previously scheduled trial after a jury panel was assembled for the voir dire proceeding, prompted by the Department’s dereliction in failing to secure a vital witness’s cooperation needed to successfully prosecute the case, is reversed. Because there was no definitive court order that the Department violated, the fine fails to comport with the standards for civil contempt. Criminal contempt occurs when the court vindicates its own authority through punishment. However, before the court may impose criminal contempt, it must afford the contemnor due process in the form of notice and a hearing. Accordingly, if the fine in this case is characterized as a criminal contempt penalty, it was imposed without due process and must be vacated. The case is remanded with instructions to the Superior Court to vacate the fine.
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August 29, 2018
S. Ct. Civ. No. 2017-0024
Barry Whyte v. Steve Bockino, et al.
      Considering an appeal from an judgment of the Superior Court finding that an arbitration clause between the plaintiff-appellant and his former employer is enforceable and that the employer did not waive its right to arbitration, the phrase “arbitration and award” in Rule 8(c)(1) of the Virgin Islands Rules of Civil Procedure plainly means when arbitration has already taken place and an arbitrator has determined an award. Therefore, a defendant need not make a request for arbitration or a stay pending arbitration in its answer or pre-answer motion. In addition, regardless of whether the Federal Arbitration Act, 9 U.S.C. § 1 et seq., applies to the Virgin Islands through either the Commerce Clause of the Constitution of the United States (U.S. Const. art. I, § 8, cl. 3), or the Territorial Clause of the Constitution of the United States (U.S. Const. art. IV, § 3, cl. 2), the FAA governs this dispute because there is an interstate nexus. Moreover, the arbitration clause in the employment contract did not expire, and under the facts presented, the employer did not waive its right to arbitration. Accordingly, the Superior Court’s finding that the employee’s claims are arbitrable is correct, and its judgment is affirmed.
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August 17, 2018
S. Ct. Civ. No. 2014-0050
The Estate of Arnold S. Skepple a/k/a Arnold Skepple and Delores Skepple vs. The Bank of Nova Scotia
      In an appeal from an order of the Superior Court denying a homeowner’s motion to vacate a default judgment entered against her in favor of the plaintiff-appellee bank in a civil action to foreclosure a mortgage on her home, the trial court erred in denying the motion to vacate the default judgment. The default judgment was void ab initio because, when the court entered it, the Superior Court lacked personal jurisdiction over the homeowner due to improper service of process by publication, and no other valid form of service upon the homeowner was achieved. However, when the homeowner participated on the merits of this case by filing a motion to vacate the default judgment and, in that motion, put forth an ineffective challenge to personal jurisdiction, she waived her claim of defective service. This active participation by the homeowner subjected her to the personal jurisdiction of the Superior Court. Therefore, consistent with established Virgin Islands precedent expressing a strong preference that cases be resolved on the merits, the default judgment is vacated. The Superior Court’s order denying the homeowner’s motion to vacate the default judgment is reversed, and this case is remanded to the Superior Court. On remand, no further action is required to make the homeowner a party to this suit, due to her waiver of any objection to personal jurisdiction, and the Superior Court is directed to vacate the default judgment and enter an order providing the homeowner with the appropriate time to answer the complaint or otherwise defend in this matter.
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July 20, 2018
S. Ct. Misc. No. 2017-0024
In Re: The Official Proceedings Relating to the Naming of the Raymond L. Finch Supreme Court Building.
      On June 15, 2017 the Supreme Court conducted a ceremony at No. 18 Strand Street, Frederiksted, St. Croix at which the Court formally unveiled the name of that building, “The Raymond L. Finch Supreme Court Building” pursuant to Act No. 7626. At the ceremony, the Legislature formally presented the perma plaque copy of the Act to the Honorable Raymond L. Judge Finch, Senior Sitting Judge, District Court of the Virgin Islands. Due to the institutional and historic value of the ceremonial background and proceedings, the Court will direct publication the official proceedings related to the naming of the Raymond L. Finch Supreme Court Building.
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July 27, 2018
S. Ct. Crim. No. 2015-0121
Michael Davis v. People of the Virgin Islands
      In an appeal from three convictions in a prosecution arising out of a shooting, this defendant’s convictions for third-degree assault and unauthorized possession of a firearm during a crime of violence are affirmed, but his conviction for first-degree reckless endangerment is reversed. The argument that an acquittal and new trial were warranted by prosecutorial misconduct – involving the People’s characterization of the victim’s testimony during an objection – is rejected; the comment cannot was not an improper characterization of the testimony, which itself had then been admitted without objection, thus it was not error to deny a motion for mistrial. Nor was there reversible error in the jury instructions on the crime of third-degree assault under 14 V.I.C. § 297, which states the substantive elements of that offense and directs that a defendant be sentenced within a particular range if, and only if he has committed an assault of the type specified in subsections (1)-(4), which does not rise to the level of first or second degree assault, which would instead require that the defendant be sentenced under § 295 or § 296. Thus § 297 does not establish an additional substantive element of the offense, but rather contains a condition precedent to application of the sentencing range prescribed in § 297. The Superior Court did not err—let alone plainly err—in its instruction to the jury on third-degree assault. The defendant was entitled to an instruction on issues of self-defense under title 14 V.I.C. §§ 41, 43, and 293(a)(6) only if the record contained evidence sufficient for a reasonable jury to find these defenses, and in this case the evidence failed to support any of these defenses. In order to obtain a conviction for first-degree reckless endangerment, the People must prove that the defendant (1) recklessly engaged in conduct (2) in a public place that (3) created a grave risk of death to another person (4) under circumstances evidencing a depraved indifference to human life, as provided in 14 V.I.C. § 625. The evidence in this case was that the shooting occurred near a tree, which appears to be located on privately owned property on or adjacent to a privately owned dirt road, and the people failed to demonstrate that the area of the shooting was used by the public in general rather than only the residences next to the area. Therefore, there was insufficient evidence to uphold the conviction for reckless endangerment. The Superior Court’s December 8, 2015 judgment is affirmed in part, and reversed in part.
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July 27, 2018
S. Ct. Crim. No. 2015-0124
Akeam K. Davis v. People of the Virgin Islands
      In a prosecution arising out of a shooting, on a charge of aiding and abetting third-degree assault, 14 V.I.C. §§ 11(a) & 297(4), the People were required to prove beyond a reasonable doubt that the substantive crime was committed and that the defendant knew of the crime and attempted to facilitate it, with the specific intent to facilitate it. Evidence that he drove the perpetrator to the victim’s location and stood by the vehicle holding a weapon visible to the victim while the shooter approached and eventually shot the victim, was sufficient for a reasonable juror to infer that this defendant intended to facilitate the assault by standing guard and preventing the victim from escaping, aiding and abetting the shooter’s third-degree assault. The charge of aiding and abetting the unauthorized use of a firearm during the commission of a crime of violence, 14 V.I.C. §§ 11(a) & 2254(a), required proof linking the alleged aider and abettor to the firearm. Because a reasonable jury could have inferred from the evidence that this defendant knew the shooter possessed a firearm before driving him to the victim’s location, there was sufficient evidence to link this defendant to the firearm that shot the victim. A claim of error in the wording of the jury instruction on aiding and abetting possession of a firearm is without merit, reading the instructions as a whole. A conviction for aiding and abetting reckless endangerment in the first degree, 14 V.I.C. §§ 11(a) & 625(a), requires proof beyond a reasonable doubt that the defendant had the specific intent to facilitate the underlying crime, but a jury can infer intent to aid and abet when a defendant transports a principal to the crime scene with knowledge that he has a weapon and plans to use it. However, the crime of aiding and abetting requires proof that the underlying, substantive crime has been committed. Because it is held in the appeal of co-defendant Michael Davis, S. Ct. Crim. No. 2015-0121, that the People failed to introduce sufficient evidence to establish that Michael discharged his weapon in a public place, the interests of justice compel reversal of the present defendant’s conviction on the reckless endangerment charge because proof of an essential element—the commission of the underlying offense—is absent. This defendant’s claim that the Superior Court abused its discretion in denying his motion for a mistrial on all charges is rejected; although he was entitled to production of a police report, the Superior Court’s instruction cured any prejudice he may have suffered. The Superior Court’s December 8, 2015 judgment is affirmed in part and reversed in part.
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July 18, 2018
S. Ct. Civ. No. 2017-0065
Christopher Gayanich v. Brittley Dawn Gayanich
      In divorce and child custody actions, there is no error in the Superior Court’s holding that the Virgin Islands is an inconvenient forum to hear the child custody portion of the case under the Uniform Child Custody Jurisdiction and Enforcement Act, 16 V.I.C. § 133, dismissing that aspect of the case under the doctrine of forum non conveniens. No reversible error was committed in taking statutory factors into account when analyzing section 133(b)(6) and each factor can be construed to support the conclusion that the majority of witnesses and evidence of parenting is located in Oklahoma, thus indicating that litigation of the underlying child custody matter is more appropriate there. Because the Superior Court’s factual conclusion bears a rational relationship with the evidentiary data under the relevant factors for analysis, there is no error on that issue. However, the Superior Court’s sua sponte dismissal of the action in its entirety is reversed. Title 5 V.I.C. § 4905 extends a general inconvenient forum provision to cases filed in this Territory, but the parties did not have the opportunity to address the question of proper forum specifically for the divorce action before the Superior Court sua sponte dismissed it. The judgment is reversed insofar as it dismissed of the divorce action, and that portion of the matter is remanded to the Superior Court with instructions to determine whether the Virgin Islands is the proper forum to hear that matter after permitting the parties to present evidence on that question.
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July 5, 2018
S. Ct. Civ. No. 2017-0033
Donna Slack v. Rudolph Slack
      In its amended final decree of divorce the Superior court erred by entirely failing to explain its decision to deny, rather than grant, the wife’s request for legal fees and costs. While the court erred in finding that there was insufficient evidence to show that the husband possessed a Government Employees Retirement System account, such error was harmless because the wife failed to introduce any evidence to establish the projected value of the husband’s pension benefit, and consequently failed to prove an element necessary for equitable distribution of those benefits. The argument that the Superior Court erred in failing to address the wife’s credit card debt, either by distributing the debt as marital debt, or by recognizing her monthly interest payments on the debt as necessary expenses for purposes of computing the award of pendente lite support, was not raised below and is thus waived on appeal. The Superior Court, for unexplained reasons, failed to consider the wife’s motion for pendente lite support until after trial, and only granted her request retroactively in its final opinion, at a time when determination of her financial need during the course of the litigation was no longer a matter of future speculation, but of historical fact. It abused its discretion by reducing its award of pendente lite support by 50% on the basis of its findings concerning the probable future financial positions of the parties in light of the husband’s imminent retirement. That portion of the decree is reversed and remanded with instructions to fix an appropriate amount of pendente lite support consistent with this opinion. The amended final decree entered February 10, 2017, is affirmed in part and reversed in part and this matter is remanded for further proceedings.
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July 5, 2018
S. Ct. Crim. No. 2017-0042
Chris George v. People of the Virgin Islands
      In a pro se appeal from the judgment and opinion of the Appellate Division of the Superior Court affirming two convictions before the Magistrate Division for operating an unregistered motor vehicle on a public highway in violation of 20 V.I.C. § 331, and for operating a motor vehicle on public roads without insurance, in violation of § 712 of that same title, the argument the Magistrate Court lacks jurisdiction over his traffic offenses is rejected because 4 V.I.C. § 124 expressly grants the Magistrate Division of the Superior Court “exclusive jurisdiction over all traffic offenses, except felony traffic offenses.” Similarly the argument that sections of the Virgin Islands Code prohibiting the operation of unregistered or uninsured vehicles on public highways violate the constitutional right to travel is without merit because it is well established that burdens placed upon a single mode of transport, such as automobiles, do not implicate the constitutional right to travel. The April 5, 2017 judgment opinion of the Appellate Division is affirmed.
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June 14, 2018
S. Ct. Crim. No. 2016-0043
People of the Virgin Islands v. Jah’var Looby
      Because the Superior Court properly exercised its authority to reconsider its ruling on a motion to suppress evidence seized in a pat-down frisk of the defendant, the People’s notice of appeal from the ruling on reconsideration was timely and comports with Virgin Islands Rule of Appellate Procedure 5(b)(2). A review of the totality of the circumstances supports a finding of reasonable suspicion for the search in this case, because marijuana remains contraband in this Territory under 19 V.I.C. § 595 and possession of it is punishable as either a crime or civil infraction under 19 V.I.C. §§ 607(a) or 607a. When suspicious conduct is noticed, leading a law enforcement officer reasonably to conclude in light of his experience that criminal activity may be afoot, the officer may stop the individual to identify himself and make reasonable inquiries. The validity of a pat-down frisk search is considered independently under the totality of the circumstances. Because possession of marijuana remains unlawful in this Territory, reasonable suspicion to conduct a stop may be established if an officer relied upon his or her experience and training to detect the presence of that contraband. In this case, the defendant told an officer – after the stop but before a pat-down frisk – that he possessed a marijuana cigarette. Admissions of crime carry their own indicia of credibility sufficient to support a finding of probable cause to search, thus the officer had probable cause to believe that this defendant possessed contraband subject to seizure, especially considering that the officers, in fact, smelled marijuana coming from his person. That the officers exercised their discretion not to issue a citation for possession of marijuana does not render the search of the defendant’s person unlawful. Accordingly, the Superior Court erred in excluding the firearm discovered as a result of the lawful search, and it erred in denying the People’s motion to reconsider its ruling granting the defendant’s motion to suppress. The July 27, 2016 opinion and order granting suppression is reversed, and this action is remanded to the Superior Court for further proceedings in accordance with this opinion.
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June 13, 2018
S. Ct. Crim. No. 2017-0035
Mario Gevon Emanuel v. People of the Virgin Islands
      The Superior Court did not err in denying a defendant’s motion to suppress an unlicensed firearm with obliterated serial numbers found on his person. Under the Fourth Amendment an officer may briefly detain a person to determine whether a crime has been committed or is about to be committed – if there is reasonable suspicion existed to justify the stop given the totality of the circumstances in light of the individual officer’s training and experience. In determining whether the detaining officer had a particularized and objective basis for suspecting legal wrongdoing, courts must evaluate the collective information of all officers involved. In this case, the officer relied on information from a taskforce briefing and believed that the defendant resembled the suspect described in a notice to “be on the lookout” for a perpetrator, providing a reasonable suspicion under a totality of the circumstances. In this case the suspected criminal activity for which the defendant was stopped was the future act of executing a threat and committing violence against an officer. Once a suspect has been stopped an officer may – for his own safety – perform a cursory inspection of the detainee’s outer clothing if the officer has reasonable suspicion that the detainee is both armed and dangerous. In this case the defendant told the officer, before a pat-down search began, that he had a gun in his pants pocket, giving legitimate cause for the officer to believe he was armed and dangerous. The Superior Court did not err in denying the motion to suppress, and its judgment entered upon convictions for unauthorized possession of a firearm, 14 V.I.C. § 2253(a), and unauthorized possession of a firearm with altered identification marks, 23 V.I.C. § 481(b), is affirmed.
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June 8, 2018
S. Ct. Civ. No. 2015-0019
In re Suspension of Desmond L. Maynard, Esquire as a Member of the Virgin Islands Bar
      Considering a petition for disciplinary action filed by the Board on Professional Responsibility arising from grievances filed against an attorney for his handling of certain probate proceedings and requesting that the attorney be suspended from the practice of law in the Virgin Islands and be ordered to pay restitution, the petition is granted and the recommended sanction is imposed in part. The attorney violated his duties under Supreme Court Rules 211.1.1, 211.1.3, 211.1.4, 211.1.15, and 211.8.1 by, among other things, permitting the probate of an estate to languish for over a decade, failing to communicate with an estate beneficiary with respect to the liquidation of certain securities, and failing to keep safe certain property of that estate. The attorney’s lethargic attitude toward the administration of the estate not only significantly delayed the beneficiaries’ receipt of certain assets, it also wholly precluded them from receiving other assets, which were lost due to the passage of time and the attorney’s generally negligent handling of the estate. This case presents a picture of a highly experienced, reputable attorney who nevertheless engaged in a pattern of egregious neglect that ultimately resulted in losses to his client—not just of cash, but of personal property that should have passed to the beneficiaries of her estate. Based on the record, the attorney’s violation of the Rules of Professional Responsibility has deprived his clients of $20,769.85, and caused his clients to expend an additional $8,500.00 in damages. Accordingly, the attorney is ordered to pay restitution to the beneficiaries of the estate in the amount of $29,269.85, representing the value of the assets lost due to his negligence, and the attorney is suspended from the practice of law in this jurisdiction for a period of 18 months.
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June 8, 2018
S. Ct. Civ. No. 2018-0040
Lilliana Bellardo de O’Neal, et al. v. Government of the Virgin Islands
      The Superior Court did not err in finding the appellants, previously elected members of either the St. Croix Board of Elections or the St. Thomas-St. John Board of Elections, to be in violation of Act No. 7892 as amended by Act No. 7982, which directed that the St. Croix Board of Elections and St. Thomas-St. John Board of Elections be merged into a single board of elections. These two Acts are not inconsistent with section 6(c) of the Revised Organic Act, since Congress has directed that plural words in federal statutes also include the singular unless context requires otherwise. Moreover, Act No. 7982 cannot be reasonably interpreted to allow the St. Croix Board of Elections and St. Thomas-St. John Board of Elections to continue to co-exist along with the new single board of elections. Because the Government requested the Superior Court to determine the status of the district boards and the validity of the actions taken by them after August 1, 2017, the question was a proper one for a declaratory judgment. Accordingly, the Superior Court’s May 10, 2018 judgment is affirmed.
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April 20, 2018
S. Ct. Civ. No. 2017-0050
Alicia “Chucky” Hansen and Carolina F. Fawkes v. Adelbert M. Bryan
      In considering a motion pursuant to Virgin Islands Rule of Appellate Procedure 30 for recovery of costs and attorney’s fees incurred in a prior appeal – issues remanded by prior order of this Court for consideration by the Superior Court – the law of the case doctrine precluded the appellants in the prior appeal from challenging the timeliness of that motion, and their untimeliness argument in any event lacks merit since the prior appeal was not final for these purposes while a motion for reconsideration was pending. The fact that 18 V.I.C. § 412 is silent with respect to awards of costs and fees when a petition is not dismissed is not indicative that the Legislature intended to preclude the application of 5 V.I.C. § 541 to such proceedings. Because the movant in the present litigation could have recovered attorney’s fees and costs pursuant to § 541, it was not error to award him recovery of fees and costs pursuant to Rule 30. The Superior Court also committed no error when it declined to recognize an exception to the provisions for award of costs and fees for issues of “first impression,” and it properly found one of the former appellants jointly liable to the movant/former appellee for costs and fees given her decision to intervene in the litigation and then to become an appellant. No abuse of discretion is found with respect to the amount of the costs and fees award. Accordingly, the Superior Court’s April 21, 2017 decision awarding $17,625 in attorney’s fees and $363.70 in costs is affirmed.
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March 27, 2018
S. Ct. Civ. No. 2015-0123
Gourmet Gallery Crown Bay, Inc. v. Crown Bay Marina, L.P.
      In a suit by a grocery store and its principal relating to leasing of premises by the defendant marina, allegedly in violation of certain covenants in the plaintiffs’ lease, an order by the Superior Court denying a motion for the escrow of rent payments pending the outcome of the litigation is not a matter over which the Supreme Court may exercise jurisdiction in the present posture of the litigation, and review is denied as to that order. The escrow order is neither a final order nor one of the categories of interlocutory orders for which a right of appeal is specified in 4 V.I.C. Sections 33(b) and (c), and V.I. R. APP. P. 5(a)(2). Nor does that order satisfy all of the requirements for review as a collaterally appealable order. The Superior Court’s order denying a preliminary injunction is properly reviewable on appeal under 4 V.I.C. § 33(b)(1), and it is concluded that the Superior Court did not abuse its discretion when it denied the motion. A preliminary injunction requires a clear showing that (1) the movant has a reasonable probability of success on the merits, (2) the movant will be irreparably injured by denial of the relief, (3) granting preliminary injunction relief will not result in even greater harm to the nonmoving party, and (4) granting the preliminary relief will be in the public interest. Here the required proof regarding irreparable harm such as undeterminable or un-rectifiable monetary loss was insufficient, and the Superior Court did not err when it concluded that plaintiff did not demonstrate that the balance of hardships favored the issuance of an injunction. In addition, the evidence supported the Superior Court’s conclusion that granting the preliminary injunction would not be in the public interest. The portion of the judgment denying the preliminary judgment motion is affirmed, and this matter is remanded for further proceedings in accordance with this opinion.
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January 18, 2018
S. Ct. Civ. No. 2017-0010
Shirley Rymer v. Kmart Corporation
      The Superior Court erred in dismissing a slip-and-fall personal injury action against the defendant retailer on summary judgment, a drastic remedy that should only be granted where there is no genuine issue as to any material fact. In a premises liability suit, a retailer’s actual notice of a hazardous condition can be shown if an employee created or was aware of the hazard before plaintiff fell. Here, the Superior Court improperly weighed the evidence against the plaintiff—the non-moving party—and resolved the conflicting evidence in favor of the retailer when it determined that an employee’s deposition testimony was a clarification of his loss prevention statement given on the day of the injury, rather than a contradiction of it. Where there is conflicting evidence in the record, a court cannot independently weigh the proof to resolve the conflict and must accept as true the evidence most favorable to the non-moving party, so long as it is supported by proper proofs. The Superior Court also erred in granting summary judgment on the basis that the record did not show a factual dispute as to whether the defendant had constructive notice of the hazardous condition. While a non-recurring hazardous condition lasting only a matter of minutes, without more, does not create the presumption of constructive notice, assessment of the opportunity for the proprietor of the premises to discover the dangerous condition involves contextual factors like the hazard’s color, size, location, and proximity to employees. Plaintiff in this case identified mitigating factors that, taken in the light most favorable to her, establish a genuine issue of material fact regarding whether the retailer could or should have become aware of the hazardous condition before she fell. The explosive nature of the soda spill, its bright purple color, location near the store’s entrance, its proximity to employees, and the fact that another customer stayed by the spill and eagerly solicited help, are factors distinguishing this case from others where the only constructive notice factor is the hazard’s duration. Whether these circumstances are sufficient to overcome the spill’s short duration and establish that the defendant retailer had constructive notice of the dangerous condition is a balancing of the evidence that belongs with the jury, not the Superior Court at summary judgment. The judgment dismissing the case with prejudice on summary judgment is reversed.
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