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+"{\"id\": \"1063430\", \"name\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. LEANDER THOMAS, Defendant\", \"name_abbreviation\": \"Government of the Virgin Islands v. Thomas\", \"decision_date\": \"1995-04-20\", \"docket_number\": \"Criminal No. 139/95\", \"first_page\": 64, \"last_page\": \"72\", \"citations\": \"32 V.I. 64\", \"volume\": \"32\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T01:56:39.721615+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. LEANDER THOMAS, Defendant\", \"head_matter\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. LEANDER THOMAS, Defendant\\nCriminal No. 139/95\\nTerritorial Court of the Virgin Islands Div. of St. Croix\\nApril 20, 1995\\nDenise Hinds-Roach, Esq., Assistant Attorney General (Department of Justice), Christiansted, St. Croix, U.S.V.I., for plaintiff\\nIndira Raichoudhury, Esq., Assistant Territorial Public Defender, Christiansted, St. Croix, U.S.V.I., for defendant \\u25a0\", \"word_count\": \"2823\", \"char_count\": \"16989\", \"text\": \"MEMORANDUM OPINION\\nINTRODUCTION\\nThe issue presented in this matter is: Whether assault first degree is a detainable offense in the Territorial Court? The defendant was arrested and charged with assault first degree and related weapon offenses pursuant to Virgin Islands law. The government moved for detention asserting that the case was eligible because: 1) assault first degree is a crime of violence under federal law and therefore a detainable offense pursuant to 18 U.S.C. 3142(f)(1)(A); and 2) the defendant obstructed justice and is thus detainable under 5 V.I.C. 3504a(a)(2). The defendant countered that he is not detainable and must be granted bail pursuant to Territorial Court Rule 141(a) because: 1) Pursuant to Territorial Court Rule 7, 5 V.I.C. 3504a(a) (the Local Detention Statute) is the controlling statute regarding eligibility for detention since its provisions are contrary to 18 U.S.C. 3142(f)(1); 2) None of the offenses with which he is charged is a detainable offense under Section 3504a(a)(l); and 3) The government has not established, pursuant to 5 V.I.C. 3504a(a)(2), that he injured any witness for the purpose of obstructing justice. For the forthcoming reasons, this Court concludes that assault first degree is a detainable offense in the Territorial Court pursuant to Rule 141(b) of the Territorial Court Rules.\\nPROCEDURAL BACKGROUND\\nOn or about March 5, 1995 the defendant was arrested for shooting and seriously wounding Hugo Greenidge in the back. He was advised of his rights the following day and the government moved for a 10-day detention, pursuant to 18 U.S.C. 3142(d), to permit revocation of his probation in two prior matters. By March 16, 1995, the defendant's probation was not revoked and the government orally moved for regular detention pending trial. A hearing on the motion was held on March 16,1995 and the matter was taken under advisement.\\nANALYSIS\\nThe 1984 Bail Reform Act has been made applicable to release proceedings in the Territorial Court. Terr. Ct. Rule 141(b). It provides in pertinent part:\\n(f) Detention hearing. \\u2014 The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) of this section will reasonably assure the appearance of the person as required and the safety of any other person and the community\\u2014\\n(1) upon motion of the attorney for the Government, in a case that involves\\u2014\\n(A) a crime of violence;\\n.or\\n(2) upon motion of the attorney for the Government or upon the judicial officer's own motion, in a case that involves\\u2014\\n(A) a serious risk that the person will flee; or\\n(B) a serious risk that the person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.\\n18 U.S.C. 3142(f)(1)(A) and 3142(f)(2). \\\"Crime of violence\\\" is defined as:\\nan offense that has an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another, or (B) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.\\n18 U.S.C. 3156(a)(4). Assault first degree is an offense which has as an element the use or threatened use of physical force against person. See, 14 V.I.C. 295. It is also a felony which involves a substantial risk that physical force against person may be used in committing the offense. See, 14 V.I.C. 295. Assault first degree is thus a detainable offense under the Bail Reform Act.\\nThe Local Detention Statute provides:\\n(1) Dangerous crime. A person charged with murder in the first degree, rape in the first degree, arson in the first degree, robbery in the first degree, burglary in the first degree, kidnapping for ransom, or drug trafficking (.........) may by order of the court be detained . if the government certifies by motion that there is no one condition or combination of conditions which will reasonable assure the safety of the community or . . . that the person will appear for trial.\\n(2) Other Offenders. A person charged with any offense may by order of the court be detained.... prior to trial if the person for the purpose of obstructing or attempting to obstruct justice, threatens, injures or intimidates . any prospective witness or juror.\\n5 V.I.C. 3504a(a)(l) and (2). Since assault first degree is not one of the listed crimes, it is not a detainable offense under the Local Detention Statute. 5 V.I.C. 3504a(a)(l).\\nThe government argues that the Bail Reform Act and the Local Detention Statute should be read harmoniously to permit detention under one statute where not permissible under the other. The defendant counters that District Court procedures, such as the Bail Reform Act, apply in the Territorial Court, pursuant to Rule 7, only to the extent they are not contrary to local law. The Local Detention Statute, the argument continues, is contrary to the Bail Reform Act since it precludes detention here where permitted by the Bail Reform Act. Thus, the defendant concludes, the local statute controls.\\nThe defendant's contention is based on the old version of Rule 7 which provided in pertinent part:\\nThe practice and procedure in the territorial court shall conform as nearly as may be to that in the district court in like causes, except where there is an express provision in the law or these rules to the contrary.\\nTerr. Ct. Rule 7 (Pre 1994 Amendment). However, the Bail Reform Act is applicable to the Territorial Court, not because of the general provision of Rule 7, but pursuant to the more specific Rule 141(b). Thus even old Rule 7 would not apply here. Further, the 1994 amendment to Rule 7, makes it clear that Territorial Court practice and procedure is governed first by Territorial Court Rules, and then by other specified rules to the extent not inconsistent with Territorial Court Rules. Terr. Ct. Rule 7. The current rule thus requires this Court to apply Territorial Court Rule 141(b), i.e., the Bail Reform Act.\\nAs previously explained, assault first degree is not a detainable offense under the Local Detention Statute, but is so pursuant to Rule 141(b). In light of the apparent conflict, this Court must examine the source of power to enact the Local Detention Statute and to prescribe Rule 141(b) to determine which one, if any, controls.\\nThe legislative power to enact Section 3504a is derived from Section 8(a) of the 1954 Revised Organic Act. In pertinent part, the section provides:\\n(a) The legislative authority and power of the Virgin Islands shall extend to all rightful subjects of legislation not inconsistent with this Act or the laws of the United States made applicable to the Virgin Islands. . 48 U.S.C. 1574(a) (1954 Revised Organic Act, \\u00a7 8(a)). This power which extends to \\\"all rightful subjects of legislation\\\" was intended to cover the ordinary area of sovereign legislative power. Virgo Corporation v. Paiewonsky, 384 F2d. 569, 579 (3d Cir. 1967). It would most naturally include the right to enact laws governing the practice and procedure in the Territorial Court. The only limita tion on such enactment is the Organic Act or any conflicting applicable federal law. Id. at 579. Here, there is no provision in the Organic Act contrary to the local statute.\\nIt may be argued though, that 18 U.S.C. 3141 et seq., i.e., the Bail Reform Act, is conflicting applicable federal law which renders the local Detention Statute void pursuant to Section 8(a). The statutes however, are not clearly inconsistent since the Bail Reform Act permits detention in every instance permitted by the local statute. Further, the limitation of applicable federal laws relates to \\\"federal statutes applicable to the United States generally which, either by their own terms of by other legislation, are also made applicable to the Virgin Islands\\\". Id. at 579. Although the Bail Reform Act is applicable to the United States generally, it is does not apply by its own terms to the Territorial Court. It applies, by its terms, only to persons charged with federal offenses. 18 U.S.C. 3142(a); 18 U.S.C. 3156(a)(2). Additionally, there is no congressional \\\"legislation\\\" which makes the Bail Reform Act applicable in the Territorial Court. It is applicable only by virtue of territorial court rule. The Act then, does not operate as a limitation on the locally enacted statute pursuant to Section 8(a). Accordingly, the Local Detention Statute is valid law enacted pursuant to power derived from the Organic Act.\\nThe Bail Reform Act now applies in the Territorial Court because this Court continued Rule 141(b) in effect on October 24, 1994. In Re: Order Amending Rules of the Territorial Court of the Virgin Islands, Misc. No. 81A/1994 (Terr. Ct. Oct. 14,1994). The power to promulgate or continue the rule derives from Section 21(c) of the Organic Act. See, 48 U.S.C. 1611(c) (1954 Revised Organic Act, \\u00a7 21(c)) (Providing that the rules governing practice and procedure of the local courts shall be governed by local law or rules promulgated by local courts). Thus the powers of the legislature to enact the Local Detention Statute and of the Territorial Court to promulgate Rule 141(b), making the Bail Reform Act applicable, emanate from the identical source, i.e., the Organic Act.\\nSection 21(c) of the Organic Act appears to grant equal power to the Territorial Court and the Legislature to establish rules of practice and procedure. No restriction on either is mentioned in the section. This grant of power alone suggests that the Territorial Court may adopt rules inconsistent with legislative enactments. See, Turbyfill v. International Harvester Company, 486 F. Supp. 232, 236 (E.D. Michigan 1980) (concluding that constitutional grant of rule making power to Michigan Supreme Court included power to adopt rules inconsistent with legislative statutes); See also, 21 C.J.S. Courts \\u00a7 127 (1990) (stating that \\\"where there is constitutional authority to do so, a court may adopt rules inconsistent with legislative enactments\\\".) Under these circumstances, the rules of practice and procedure whether established by the Territorial Court or the Legislature should be treated as if they were established by the same body. So treated, applicable law requires this Court to first attempt to reconcile the apparent conflict between the rule and the statute, before inferring an intent to repeal prior Section 3504a, since repeals by implication are not favored. In Re Guardianship of Penn, 15 F.3d 292, 295 (3d Cir. 1994); Creque v. Luis, 803 F.2d 92, 95 (3d Cir. 1986).\\nThe prior statute, i.e., the Local Detention Statute is entitled \\\"Detention prior to trial (a) Who may be detained:\\\". 5 V.I.C. 3504a(a). The purpose of the enactment was \\\"to Provide for the Pretrial Detention of Persons Charged With Certain Crimes\\\". 1982 V.I. Sess. Laws 59. The general focus of the legislation appears to have been on detaining dangerous offenders as opposed to requiring the release of non dangerous offenders. See, 5 V.I.C. 3504a(a)(l) (listing first degree crimes of murder, rape, burglary, etc. as detainable offenses). The Bail Reform Act would permit the detention of persons charged with any of the \\\"certain crimes\\\" listed in 3504a(a)(l) since each of them can be classified as a crime of violence. 18 U.S.C. 3142(f)(1)(A); 5 V.I.C. 3504a(a)(l). The Act also permits the detention of anyone who obstructs justice as described in Section 3504a(a)(2). 18 U.S.C. 3142(f)(2). Therefore the purpose behind the enactment of the Local Detention Statute, ie., to detain, prior to trial, persons charged with \\\"dangerous\\\" crimes or who obstruct justice, is not frustrated by the application of Rule 141(b). This Court thus finds that both the rule and the statute are not repugnant and can be read consistently. Further, there is no clear and manifest intent to repeal the Local Detention Statute. In Re Guardianship of Penn, 15 F.3d at 295.\\nCONCLUSION\\nFor the foregoing reasons, this Court concludes that the 1984 Bail Reform Act and the Local Detention Statute are equally applicable to release proceedings in the Territorial Court, and that assault first degree is a detainable offense in the Territorial Court.\\n5 V.I.C. 3504a(a)(2) requires that a defendant attempt to or actually injure, threaten, or intimidate a witness or juror for the specific purpose of obstructing justice. 5 V.I.C. 3504a(a)(2). The government argued that the wounding of the victim here establishes an attempt to obstruct justice. The mere fact that a defendant injures his victim during the commission of a crime, without more, does not establish an intent to obstruct justice. The victim could have been shot for a variety of reasons short of obstruction of justice. Accordingly, the government has failed to establish the defendant's eligibility for detention under Section 3504a(a)(2). The only remaining basis for detention is the nature of the offense charged. This opinion primarily addresses that basis.\\nThe 1984 Bail Reform Act (18 U.S.C. 3141-3156) was first applied in the Territorial Court subsequent to a 1986 amendment of Territorial Court Rule 141(b) by the District Court. Order dated Oct. 17,1986, U.S.D.C.V.I.; See Explanatory Notes following text of Terr. Ct. Rule 141(b). Judicial notice is hereby taken that the Territorial Court has applied the 1984 Act over the years in release proceedings. Subsequently, on October 14, 1994, pursuant to Section 21(c) of the Revised Organic Act, this Court promulgated its First General Amendments to the Territorial Court Rules and continued in effect Rule 141(b). In Re: Order Amending Rules of the Territorial Court of the Virgin Islands, Misc. No. 81A/1994, (Terr. Ct. Oct. 14, 1994); See, 1995 Virgin Islands Court Rules Annotated\\u2014 Special Supplement Containing Territorial Court Rules, Pgs. 56-57 (republishing Rule 141(b)). The text of the rule refers to the 1966 Act. However, in light of the practice of applying the 1984 Act and the language in the Explanatory Notes following the text of the rale, the clear intent of this Court was to continue in effect the 1984 Act. Further, the 1984 Act is applied in the District Court in release proceedings. One of the purposes behind the Amendments was to make the rales as consistent as possible with those in the District Court. See Preface to First General Amendments to the Territorial Court Rules (stating that intent was to ensure that revisions were as consistent as possible with District Court rales for convenience of bar members). Thus the 1984 Bail Reform Act applies to the Territorial Court per Rule 141(b).\\nCurrent Rule 7 provides:\\nThe practice and procedure in the Territorial Court shall be governed by the rules of the Territorial Court and, to the extent not inconsistent therewith, by the rules of the District Court, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure and the Federal Rules of Evidence.\\nTerr. Ct. R. 7.\\nThe Virgin Islands Legislature enacted numerous criminal laws of practice and procedure prior to 1984, when it received a specific grant of power to establish such laws. See, 48 U.S.C. 1611(c) (1954 Revised Organic Act, \\u00a7 21(c) (Stating that rules governing practice and procedure in local courts shall be governed by local law or local court rules); See also, 5 V.I.C. 3502, 3503, 3520-3527, 3561, 3602, 3673, 3711, 3741, 4503-4509, 4601, 4612 (Sections under Subtitle 3, i.e., Criminal Procedure, which were added or amended by the Virgin Islands legislature prior to 1984). Those enactments could only have been made pursuant to the power vested by Section 8(a) of the Organic Act.\\nThe section reads in its entirety:\\n(c) The rules governing the practice and procedure of the courts established by local law and those prescribing the qualifications and duties of the judges and officers thereof, oaths and bonds, and the times and places of holding Court shall be governed by local law or the rules promulgated by those courts.\\n48 U.S.C. 1611(c) (1954 Revised Organic Act, \\u00a7 21(c)). This section came into effect on October 5,1984, subsequent to the enactment of 5 V.I.C. 3504a. Nevertheless it clearly indicates the intent to place the Territorial Court on par with the Legislature as regards the establishment of rules of practice and procedure.\\nThis Court further concludes that the government's motion for detention should be granted, and has issued a separate detention order dated April 20,1995.\"}"
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+"{\"id\": \"1064489\", \"name\": \"GOVERNMENT OF THE VIRGIN ISLANDS ACTING BY THE DEPARTMENT OF LICENSING AND CONSUMER AFFAIRS, Plaintiff/Respondent v. MT RETAILERS, INC., MOUNTAIN TOP, Defendant/Petitioner\", \"name_abbreviation\": \"Government of the Virgin Islands v. MT Retailers, Inc.\", \"decision_date\": \"1995-02-28\", \"docket_number\": \"Civil No. 1095/1993\", \"first_page\": 62, \"last_page\": \"77\", \"citations\": \"31 V.I. 62\", \"volume\": \"31\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:37:48.088048+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GOVERNMENT OF THE VIRGIN ISLANDS ACTING BY THE DEPARTMENT OF LICENSING AND CONSUMER AFFAIRS, Plaintiff/Respondent v. MT RETAILERS, INC., MOUNTAIN TOP, Defendant/Petitioner\", \"head_matter\": \"GOVERNMENT OF THE VIRGIN ISLANDS ACTING BY THE DEPARTMENT OF LICENSING AND CONSUMER AFFAIRS, Plaintiff/Respondent v. MT RETAILERS, INC., MOUNTAIN TOP, Defendant/Petitioner\\nCivil No. 1095/1993\\nTerritorial Court of the Virgin Islands Div. of St. Thomas and St. John\\nFebruary 28, 1995\\nMary R. Weber, (Tom Bolt & Associates), P.C., St. Thomas, for Petitioner, MT Retailers, Inc.\\nAlva Swan, Acting Attorney General, Paul L. Gimenez, Solicitor General, Elliot M. Davis, Assistant Attorney General, Department of Justice, St. Thomas, V.I., for Respondent, Government of the Virgin Islands\", \"word_count\": \"4980\", \"char_count\": \"30260\", \"text\": \"DIASE, Judge\\nMEMORANDUM OPINION\\nOn December 21,1993, Petitioner MT Retailers, Inc. (\\\"Mountain Top\\\") filed a Petition for Review of the Respondent Department of Licensing and Consumer Affairs' (\\\"DLCA\\\") final order in which the Commissioner held that Mountain Top had engaged in night club activities without the appropriate nightclub license; levied a fine; and denied Mountain Top's application for a night club license. The Commissioner, however, permitted Mountain Top to maintain its tavernkeeper liquor license (A), which allows the sale and consumption of alcoholic beverages on its premises. Based on the following, the final order of the Commissioner is affirmed.\\nI. FACTS\\nSince the 1950's, Mountain Top has operated on St. Thomas as a tourist oriented restaurant, bar and retail center. On October 1, 1972, the Virgin Islands Zoning and Subdivision Law, 29 V.I.C. Chapter 3, Subchapter I, became effective. The area in which Mountain Top is located was zoned R-l (residential, low density) upon the enactment of the zoning law. Mountain Top continued its operation in that area as a prior nonconforming use pursuant to 29 V.I.C. \\u00a7 234. In 1993, Mountain Top held a valid tavernkeeper liquor license (A) and a restaurant license.\\nIn May of 1993, in an attempt to generate additional revenues, Mountain Top engaged the service of the Starlites, a live local band, to perform every Friday evening. In June of 1993, Mountain Top applied to DLCA for a night club license and a \\\"restaurant A\\\" license. Prior to DLCA reviewing the merits of the application, it was submitted to the Department of Planning and Natural Resources (\\\"DPNR\\\") for zoning recommendations. DPNR recommended that the night club license be denied because Mountain Top was located in an R-l, low density, residential district.\\nAfter Mountain Top initiated the Friday evening dances, a group of residents in the Mountain Top area formed a community group named the Mountain Top Community Residential Group and filed a formal complaint with the Virgin Islands Police Department regarding the noise, litter and parking problems generated from the activities. Raymond L. Hyndman, the former V.I. Chief of Police, along with an official from DLCA, met with some residents to discuss the complaint. During this same time, Mountain Top hired a consultant, more security and a shuttle bus service to alleviate the parking congestion and noise.\\nIn response to the complaints, DLCA conducted an inspection of the premises on August 16, 1993. On September 2, 1993, it issued an Administrative Complaint charging Mountain Top with the unlawful operation of a night club without a valid night club license and ordered it to cease and desist all night club operations. On October 12, 1993, DLCA issued an Amended Administrative Complaint seeking, additionally, the revocation of Mountain Top's tavernkeeper liquor license (A). Mountain Top denied any violations.\\nOn December 17, 1993, after a full hearing had been conducted on December 8,1993, the blearing Officer issued a final order in the form of a Memorandum Opinion and Order (\\\"Order\\\") from which Mountain Top now seeks relief. This Order was approved and signed by the Commissioner of DLCA on the same day. The Hearing Officer found the following pertinent facts in the Order:\\n1. Mountain Top currently holds a tavernkeeper liquor license (A) and a restaurant license.\\n2. Mountain Top's business has more than 30 seats; has bartender and waitress service; and has dancing and live entertainment.\\n3. Mountain Top has operated a night club since May, 1993.\\n4. DLCA cited Mountain Top for operating a night club without a license.\\n5. Mountain Top applied to DLCA for a night club license which was subsequently recommended for denial by the Commissioner of the Department of Planning and Natural Resources.\\n6. Mountain Top's business is located in an R-l zoning district.\\nMoreover, the Hearing Officer reached the following conclusions of law, in pertinent part:\\n1. Mountain Top has operated a night club without the proper license since May, 1993 in violation of 27 V.I.C. \\u00a7 301 et seq.\\n2. Mountain Top's application for a night club license would be denied pursuant to 29 V.I.C. \\u00a7 228.\\n3. The zoning laws of the Virgin Islands, pursuant to 29 V.I.C. \\u00a7 228, prohibit night club activities in R-l zones.\\n4. In addition to penalties prescribed under 27 V.I.C. 307(d), an administrative fine not more than 25% per month of the license fee can be assessed by the Commissioner, for businesses operating without first obtaining a license.\\n5. Pursuant to 27 V.I.C. \\u00a7 304, the Commissioner of DLCA has the authority to order a defendant to cease and desist from conducting business after a proper hearing.\\nThe Hearing Officer also held, in pertinent part, that:\\n1. Mountain Top's application for a night club license would be denied; and\\n2. Mountain Top's tavernkeeper liquor license (A) should not be revoked.\\nOn appeal, Mountain Top asserts that the Hearing Officer erred on the following grounds:\\n1. The Hearing Officer's determination that it operated a \\\"night club\\\" without the proper license was arbitrary, capricious or without any rational basis.\\n2. The Hearing Officer acted arbitrarily, capriciously and without any rational basis by determining that:\\na. Mountain Top's application for a night club license should be denied because of a recommendation by DPNR that the area in which Mountain Top is located is zoned for residential use; and\\nb. a recommendation from DPNR, with respect to the issuance of a night club license, is binding upon DLCA.\\n3. Its Motion to Dismiss at the conclusion of DLCA's case in chief should have been granted because of DLCA's failure to present affirmative evidence that Mountain Top was operating a night club without a license or allowing wrongful behavior of a substantial character upon its premises.\\nII. DISCUSSION\\nA. Standard of Review of Administrative Orders\\n27 V.I.C. \\u00a7 304(i), the governing statute for DLCA, provides that:\\n[a]ny person adversely affected by any order of the Commissioner may obtain a review thereof by filing a written petition for review with the Territorial Court within 30 days after the entry of said order.... Upon such review the findings of the Commissioner, if supported by substantial evidence, shall be conclusive.\\nIn reviewing the actions of DLCA, this Court must determine the following:\\n1) Whether the agency acted within the limits of the statutory powers;\\n2) Whether the agency's factual findings are supported by substantial evidence on the record;\\n3) Whether the agency applied the relevant law correctly; and\\n4) Whether the agency has abused its discretion by acting in an arbitrary or capricious manner.\\nPerry v. Government Employees' Service Commission, 18 V.I. 524 (D.V.I. 1981).\\nB. Statutory Authority of DLCA\\nIn determining whether DLCA acted within the limits of its statutory power, the Court must look to the enabling statute which granted DLCA its authority to act and outlined the limitations of its authority. Clearly, an agency may exercise only the powers granted to it by statute. Branch v. Bryan, 18 V.I. 54,58 (D.V.I. 1980) (citing Pentheny, Ltd. v. Government of the Virgin Islands, 360 F.2d 786, 790 (3d Cir. 1966)).\\n27 V.I.C. \\u00a7 301 et seq. governs the licensing of businesses and occupations. The Commissioner of DLCA is empowered and entrusted to administer the licensing of businesses. 27 V.I.C. \\u00a7 301. Pursuant to 27 V.I.C. \\u00a7 304, the Commissioner also has the authority to grant, deny, revoke and suspend licenses. A night club license is only one of the many licenses the Commissioner administers.\\nAdditionally, pursuant to 8 V.I.C. \\u00a7 13, the Commissioner of DLCA is responsible for the licensing of businesses that seek to sell alcoholic beverages. And, under 8 V.I.C. \\u00a7 17, the Commissioner has the authority to issue, revoke and suspend liquor licenses.\\nC. Review of the Hearing Officer's Factual Findings\\nThe Court must determine whether the Hearing Officer's factual findings are supported by substantial evidence on the record. Fredericks v. Government Employees' Service Commission, 21 V.I. 65 (D.V.I. 1984). Substantial evidence is defined as \\\"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . . . and the determination of what amount of evidence is substantial is a matter of law to be determined by the Court upon a considered evaluation of the entire record.\\\" Id. at 68. It \\\"constitutes more than a scintilla of evidence. . It must be enough evidence to justify if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.\\\" Government of the Virgin Islands v. Public Employees' Relations Board, 22 V.I. 12, 23 (Terr. Ct. 1986).\\nIt is not enough to review the facts in only part of the record. Fredericks v. Government Employees' Service Commission, 21 V.I. at 68. Indeed, the record considered as a whole is the basis for ascertaining whether the Hearing Officer's determination is supported factually. Moreover, the \\\"substantiality of the evidence must take into account whatever in the record fairly detracts from its weight.\\\" Government of the Virgin Islands v. Public Employees' Relations Board, 22 V.I. at 23. Furthermore, the Court should not disturb the Hearing Officer's findings because the Court, on a de novo review, would have reached a \\\"different\\\" conclusion. Id. at 23.\\nThe Hearing Officer found that Mountain Top had operated a night club since May, 1993. A \\\"night club\\\" is defined under three sections of the V.I. Code. In 27 V.I.C. \\u00a7 302(c) and 27 V.I.C. \\u00a7 351a(b), it is almost identically defined as \\\"every business which has a capacity for at least 30 persons seated at tables and the bar\\\"; which \\\"employs\\\" or \\\"maintains\\\" a bartender; and which \\\"maintains table service and dancing and/or other live entertainment for the guests.\\\" In 29 V.I.C. \\u00a7 225(74), the same wording exists except that it refers to \\\"an establishment\\\" rather than \\\"every business\\\".\\nThe elements of a night club, therefore, are as follows:\\n1) a business or establishment;\\n2) having a capacity for 30 persons seated at tables and the bar;\\n3) having a bartender and table service; and\\n4) having dancing and/or live entertainment.\\nThe Hearing Officer relied on the following testimony as dispositive that Mountain Top was indeed conducting night club activities and noted such in the final Order:\\n1) Robert Miller, the general manager, testified that three hundred to four hundred (300 \\u2014 400) persons patronized Mountain Top on Friday evenings;\\n2) Robert Miller also testified that Mountain Top had seating for more than 30 persons;\\n3) Sonny Bernier, the bartender, testified that there are two waitresses and four bartenders for serving customers; and\\n4) Sonny Bernier also testified that the crowd enjoyed dancing. Kenneth Springette, a member of the Starlites band, testified that his band, the Starlites, plays at Mountain Top regularly on Friday nights.\\nThe Court finds that the above facts satisfy the elements of a night club and are conclusive. There was substantial evidence on the record to support the Flearing Officer's finding that Mountain Top was engaged in night club activities, and the Court, therefore, affirms this decision.\\nD. Review of the Hearing Officer's Application of Law\\nIn determining whether the blearing Officer applied the relevant law correctly, the Court is required to perform a more intrusive review than with the factual findings. Herbert v. Government Employees' Service Commission, 21 V.I. 358 (D.V.I.1985). The Court may uphold the Flearing Officer's legal conclusions only if he has applied the relevant law correctly. Id. at 361. Furthermore, in reviewing legal determinations, the Court is free to substitute its own judgment for that of the Hearing Officer. Id.\\n1. Operation of a Night Club Without the Proper License\\nThe Hearing Officer concluded that Mountain Top's tavernkeeper liquor license (A) did not authorize its operation as night club. He also concluded that Mountain Top had operated a night club without the proper license since May, 1993 in violation of 27 V.I.C. \\u00a7 301 et seq7\\na. The parameters of a tavernkeeper liquor license (A)\\nMountain Top holds a valid tavernkeeper liquor license (A). Pursuant to 8 V.I.C. \\u00a7 9(a)(3), a tavernkeeper liquor license (A) allows \\\". . . the sale of distilled spirits or fermented liquor or both for consumption on the premises, and fermented liquors in sealed containers.\\\" DLCA contends that this license does not authorize Mountain Top to conduct live entertainment and dancing (night club activities) at its premises.\\nOn the other hand, Mountain Top argues that it operated as a tavern and that its tavernkeeper liquor license (A) permits dancing and live entertainment. It bases this argument on 8 V.I.C. \\u00a7 1, which defines a tavern as \\\"any public drinking place with or without accommodations for eating and dancing . . . .\\\"\\nAdditionally, Mountain Top asserts that the only difference between a tavernkeeper liquor license (A) and a night club license is that the night club license permits later hours of operation. Since it did not wish to operate the longer hours of a night club, the tavernkeeper liquor license (A) was sufficient.\\n27 V.I.C. \\u00a7 352a establishes the closing times for businesses. In regard to a tavern, it provides that it \\\"shall cease doing business, including the dispensing of liquors, and closing its doors to the public at 1:00 a.m. of every day, except Saturdays, Sundays and legal holidays when the hour of ceasing business . . . shall be 2:00 a.m.....\\\" In regard to a night club, it provides that it \\\"shall cease business and close doors to the public at 4:00 a.m. of every day\\nThe Hearing Officer rejected Mountain Top's argument that the only difference between the two licenses was the hours of operation. He held that the distinguishing difference between a tavern and a night club is the nature of the activity: a tavern is a place for drinking while a night club is a place where dancing or live entertainment occurs.\\nIt must be emphasized that \\\"considerable weight should be accorded to an executive department's construction of a statutory scheme that it is entrusted to administer James v. West Indian Burgers Inc., 24 V.I. 67, 71 (Terr. Ct. 1988) (citations omitted). Indeed, \\\"where an agency is delegated, either explicitly or implicitly, to interpret a statute, the construction it gives to that provision is controlling if it is reasonable.\\\" Id. at 71.\\nThis Court supports the Hearing Officer's differentiation between a tavern and a night club. The significant difference between the two is that a night club can have \\\"dancing and/or live entertainment.\\\" 27 V.I.C. \\u00a7 302(c) and \\u00a7 351a(b); 29 V.I.C. \\u00a7 225(74). A tavern, on the other hand, is a place for drinking and may also have dancing; but, importantly, no provision is made for \\\"live entertainment.\\\" 8 V.I.C. \\u00a7 1. Indeed, the Court finds the Hearing Officer's construction of these statutes to be very reasonable.\\nThe Court also supports the Hearing Officer's determination that the tavernkeeper liquor license (A) issued to Mountain Top merely authorizes the sale of liquor and does not allow other types of activities. This license is clear and its parameters are well established: it only allows the sale of distilled spirits or fermented liquors. Obviously, Mountain Top's activities are limited by its license. Moreover, the administrative interpretation of 8 V.I.C. \\u00a7 9(a)(3) is consistent with the obvious purpose of the statute, which is to regulate the manufacture, sale and exportation of alcoholic beverages in the Virgin Islands and is a reasonable interpretation. 8 V.I.C. \\u00a7 2. The Court will, therefore, affirm the Hearing Officer's determination that Mountain Top's tavernkeeper liquor license (A) does not permit night club activities.\\nIn support of his conclusions that night club activities were not permitted under the tavernkeeper liquor license (A), the Hearing Officer opined that 8 V.I.C. \\u00a7 9(a)(3), which defines the specific license, was enacted later in time than 8 V.I.C. \\u00a7 1, which defines a tavern; and as such, controls the definition of a tavern. The Court cannot subscribe to this reasoning or this legal conclusion, although it has affirmed the ultimate outcome of the issue.\\nContrary to the Hearing Officer's determination, both \\u00a7 9(a)(3) and \\u00a7 1 were derived from the 1942 St. Thomas and St. John Municipal Ordinance, which regulated the licensing and sale of alcoholic beverages on the two islands. Thus, one was not later in time than the other.\\nThe Court deems the Hearing Officer's holding to be erroneous, but, in fact, harmless. The proper historical nexus between Title 8, Chapter 1, which presently regulates the licensing and sale of alcoholic beverages and its predecessor, the 1942 Ordinance, is necessary. A tavern is defined identically in 8 V.I.C. \\u00a7 1 and Section 1 of the 1942 Ordinance. Likewise, the description of the tavernkeeper liquor license (A) contained in 8 V.I.C. \\u00a7 9 is fairly identical to that found in Section 3(e) of the Ordinance.\\nThe revision note for 8 V.I.C. \\u00a7 1 provides that \\\"the remaining definitions [tavern] are from the 1942 St. Thomas and St. John Municipal Ordinance.\\\" Section 1 of the Ordinance is the general definitions section as is 8 V.I.C. \\u00a7 1. Also, the revision note for 8 V.I.C. \\u00a7 9 provides that \\\"in subsection (a), the licenses listed in paragraphs (1), (2), (3), and (4) are taken from St. Thomas and St. John [Ordinance].\\\" Section 3 of the Ordinance and 8 V.I.C. \\u00a7 9 list the types of liquor licenses available and one such license is the tavernkeeper liquor license (A).\\nThere is, therefore, no basis for the Hearing Officer's determination that 8 V.I.C. \\u00a7 9(a)(3) was enacted later in time than 8 V.I.C. \\u00a7 1. But, again, his decision constitutes harmless error.\\nb. The mandatory nature of a night club license\\nMountain Top next submits that night club licenses should be liberally granted to only those businesses which a) fulfill the night club requirements, and b) wish to operate longer hours. It asserts that it may have fulfilled the night club requirements, but since it does not wish to operate longer hours, it should not have to obtain a night club license. If the Court accepted Mountain Top's argument, Mountain Top would not need to obtain a night club license as it did not desire to operate the longer hours, even though its activities were night club activities. DLCA argues and the Hearing Officer held that Mountain Top's reasoning is substantially flawed as it leaves out the key words of the night club definition, which are that it \\\"shall be construed to include every business.\\\"\\nThe Court agrees that Mountain Top's interpretation of the statutes is flawed. First, the two statutes which give us the definition of a night club establish that it is \\\"every business\\\" which meets the specific criteria. 27 V.I.C. \\u00a7 302(c) and \\u00a7 351a(b). The traditional statutory interpretation of the word \\\"every\\\" is that it is inclusionary rather than exclusionary. See 73 Am. Jur. 2d Statutes \\u00a7 244 (1974). The Court will give deference to such an interpretation of \\\"every.\\\" Mountain Top must, accordingly, obtain a night club license, since it was determined earlier that its activities satisfied all of the night club criteria.\\nSecond, a night club, by statute, must close by 4:00 a.m. every day. If a night club chooses, however, it can close earlier. Nothing prevents it from doing so. Mountain Top, as a night club, is free to close prior to 4:00 a.m., but it must still have a night club license. The Court will, therefore, affirm the Hearing Officer's conclusion that businesses which satisfy the night club requirements must obtain a night club license.\\n2. DLCA's Reliance on the Recommendation of DPNR\\nMountain Top further argues that DLCA improperly relied on the recommendation of DPNR to deny its application for a night club license because DPNR's recommendation is not binding. The Hearing Officer held that DLCA is bound to rely on the recommendation of DPNR. The evidence before the Court establishes that Mountain Top's application for a night club license was submitted to DPNR in accordance with 27 V.I.C. \\u00a7 303(a); that DPNR recommended that the license not be granted because Mountain Top was located in an area zoned R-l; and that DLCA denied the license based on this recommendation.\\nAs stated earlier, the Commissioner of DLCA is authorized to grant, deny, revoke and suspend licenses. Upon the receipt of an application for an initial license, DLCA is required to submit copies of the application to DPNR for determination of site acceptability. 27 V.I.C. \\u00a7 303(a). The Court is satisfied that DLCA fully complied with the statutory mandate of 27 V.I.C. \\u00a7 303(a) and properly denied Mountain Top's night club application because DPNR notified DLCA that Mountain Top was located in an R-l, low density, residential district and recommended its denial. This decision is not arbitrary or capricious. A night club is not one of the uses permitted as a matter of right in such a district. 29 V.I.C. \\u00a7 228. The Court will affirm the Hearing Officer's conclusion that DLCA properly relied on DPNR's recommendation to deny Mountain Top's application for a night club license.\\nThe Court is compelled, at this juncture, to specifically address one of Mountain Top's arguments as to how the Hearing Officer erred by not rejecting the recommendation of DPNR. Mountain Top asserts that, as a tavern providing occasional live entertainment, it was a nonconforming use prior to the enactment of the 1972 zoning laws. Based on that fact, Mountain Top argues that because taverns and night clubs are in the same zoning classification, it is free to change uses from a tavern to a night club, since such a change in use, from one nonconforming use to another nonconforming use, in the same zoning classification, was lawful under 29 V.I.C. \\u00a7 234(e), which permits the change if there were no alterations to the structure of the building. The Hearing Officer held that this issue was not properly within the jurisdiction of the Commissioner of DLCA as the Commissioner of DPNR makes zoning determinations.\\nMuch testimony was provided at the hearing as to whether taverns and night clubs were in the same zoning classifications; whether a night club had to be an accessory use or a secondary use if it was located in a residential district; and whether a night club had to be an accessory use to a hotel or a restaurant. The Court finds none of this testimony relevant at this time.\\nThe record reveals that it is undisputed that Mountain Top's operation as a tourist oriented restaurant, bar and retail center before 1972, is a prior nonconforming use. A nonconforming use is defined as \\\"a use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance although it does not comply with the use restrictions applicable to the area in which it is situated.\\\" Shonkwiler & Morgan, Land Use Litigation \\u00a7 12.03(1) (1986); 83 Am. Jur. 2d Zoning and Planning \\u00a7 624 (1992); see also 29 V.I.C. \\u00a7 234(a).\\n29 V.I.C. \\u00a7 234(e) provides that \\\"[a] nonconforming use may be changed to another nonconforming use in the same zoning classification providing no structural changes are made in the building.\\\" (emphasis added). It must be stressed that zoning classifications, variances and the changing of nonconforming uses are not within the purview of DLCA, but solely within the province of the Commissioner of DPNR. 29 V.I.C. \\u00a7 235. The critical question remains, though: does 29 V.I.C. \\u00a7 234(e) confirm such authority on Mountain Top that it may single handedly convert from one nonconforming use to another, as it asserts? Certainly, it does not.\\nThe Virgin Islands zoning law is set forth in Title 29, Chapter 3, Subchapter 1.29 V.I.C. \\u00a7 235(a) provides that \\\"this subchapter shall be administered and enforced by a Zoning Administrator who shall be the Commissioner of DPNR.\\\" Furthermore, 29 V.I.C. \\u00a7 235(d) provides, in pertinent part, that \\\"no change or extension of use and no alteration shall be made in a nonconforming use of a building or land without a Certificate of Occupancy having first been issued by the Zoning Administrator that such change, extension or alteration is in conformity with the provisions of this subchapter and as provided by subsection (c) of section 234.\\\" (emphasis added).\\nThe record before the Court contains no evidence to suggest that Mountain Top complied with the requirements of section 235. It is the Court's opinion that Mountain Top is required to seek the approval of the Commissioner of DPNR prior to altering, changing or extending a nonconforming use and that the authority of the Commissioner to grant an alteration, change or extension of such nonconforming use is discretionary. The Hearing Officer acted properly in holding that this issue must be addressed before the Commissioner of DPNR and not the Commissioner of DLCA. The Court will, therefore, affirm the Hearing Officer's determination as proper.\\nE. Scope of the Hearing Officer's Discretion\\nFinally, this Court can set aside the Order if the Hearing Officer has abused his discretion and acted arbitrarily and capriciously. Branch v. Bryan, 18 V.I. at 59. The Court finds that a rational basis existed for the Hearing Officer's action. Indeed, substantial evidence existed that DLCA acted within its statutory authority; that the Hearing Officer's factual findings were well founded; and that the legal conclusions announced were basically accurate.\\nHI. CONCLUSION\\nBased on the above, this Court first concludes that DLCA acted within the limits of its statutory authority pursuant to 27 V.I.C. \\u00a7 301 and 8 V.I.C. \\u00a7 13, in that the Commissioner of DLCA is empowered to license businesses and occupations, and is also entrusted to license the sale of alcoholic beverages. Second, the Hearing Officer's factual determination that Mountain Top en gaged in nightclub activities was supported by substantial evidence on the record. And, although the Hearing Officer erred in establishing the proper historical foundation between 8 V.I.C. \\u00a7 1 and 8 V.I.C. \\u00a7 9, that error was, in fact, harmless and does not diminish the legal conclusion that Mountain Top engaged in night club activities without a valid license.\\nThird, Mountain Top's tavernkeeper liquor license (A) specifically defines and limits the activities in which Mountain Top can participate. Fourth, \\\"every\\\" business which fulfills the requirements of a night club must obtain a license. Fifth, nothing in the record supports a claim that this matter was decided arbitrarily or capriciously. The mandate of 27 V.I.C. \\u00a7 303, which required that Mountain Top's application for a night club license be submitted to DPNR, was fully complied with and the Commissioner of DLCA properly relied on the recommendation of DPNR that Mountain Top was located in an area zoned R-l, residential, low density, in denying the application for the license.\\nSixth and finally, Mountain Top does not have the authority to itself legally change from one nonconforming use to another. It must first seek the approval of the Commissioner of DPNR to do so and this approval is discretionary, not mandatory. In all other respects, the Hearing Officer's Order was proper.\\nAccordingly, the Commissioner of DLCA's December 17, 1993, final order will be affirmed.\\nORDER\\nThis matter is before the Court on Petitioner MT Retailers, Inc., Mountain Top's Petition for Writ of Review. This Court having filed a written Memorandum Opinion of even date herewith, and the premises considered, now therefore it is\\nORDERED that the Memorandum Opinion and Order of the Commissioner of the Department of Licensing and Consumer Affairs dated December 17, 1993, be and the same hereby is AFFIRMED; and it is further\\nORDERED that copies of this Order be directed to Elliott M. Davis, Esq., Assistant Attorney General, Department of Justice; Elmira Hicks, Attorney at Law, Department of Licensing and Consumer Affairs; and Mary R. Weber, Attorney at Law.\\n29 V.I.C. \\u00a7 234(a) provides, in pertinent part, that any lawful use of land existing prior to the adoption of the zoning regulations, located in a district in which it would not be permitted as a new use under the regulations, is declared to be a \\\"nonconforming use\\\".\\nTavernkeeper liquor license (A) and tavernkeeper (A) license are used interchangeably in the Commissioner's Order and the Petitioner's and Respondents briefs. The Court will, however, refer to the tavern license held by Mountain Top as the \\\"tavernkeeper liquor license (A)\\\" as 8 V.I.C. g 9(a)(3) describes it as such.\\nA \\\"restaurant A\\\" license applies to an establishment that has a seating capacity of 25 persons or more. 27 V.I.C. \\u00a7 302.\\nThe Hearing Officer's Order and the Commissioner's Order are one and the same.\\nThis Court will defer to the Hearing Officer's decision to deny the motion to dismiss, as the Court's role on review is limited. Statutes and rules, such as the Rules of Civil Procedure, relating to court proceedings, do not apply to administrative proceedings. 2 Am. Jur. 2d Administrative Law \\u00a7 266 (1974); FCC v. Allentown Broadcasting Corp., 349 U.S. 358, 99 L. Ed. 1147, 75 S. Ct. 855 (1955). Moreover, administrative agencies are not bound by the strict rules of evidence governing jury trials. Morton v. Dow, 525 F.2d 1302 (10th Cir. 1975).\\nAll testimony is taken from the transcript of the December 8, 1993, final hearing.\\nThe Order actually referred to 27 V.I.C. \\u00a7 301 et al., but that is merely a citation error.\"}"
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+"{\"id\": \"1066336\", \"name\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. DENNIS RUIZ, Defendant\", \"name_abbreviation\": \"Government of the Virgin Islands v. Ruiz\", \"decision_date\": \"1984-06-26\", \"docket_number\": \"T. O. Nos. 951/84 and 952/84\", \"first_page\": 439, \"last_page\": \"445\", \"citations\": \"20 V.I. 439\", \"volume\": \"20\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:14:07.675989+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. DENNIS RUIZ, Defendant\", \"head_matter\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. DENNIS RUIZ, Defendant\\nT. O. Nos. 951/84 and 952/84\\nTerritorial Court of the Virgin Islands Div. of St. Croix at Kingshill\\nJune 26, 1984\\nDonald Nehlsen, Esq., Assistant Attorney General (Office of the Attorney General), Christiansted, St. Croix, V.I.,/or plaintiff\\nEdward H. Jacobs, Esq. (Jacobs and Brady), Christiansted, St. Croix, V.I., for defendant\", \"word_count\": \"2087\", \"char_count\": \"12534\", \"text\": \"SILVERLIGHT, Judge\\nMEMORANDUM OPINION\\nThe two (2) captioned matters were tried to the Court together on April 12, 1984, and May 24, 1984. Defendant was charged with the offense of Driving While Intoxicated in the one case and with the offense of Negligent Driving in the other.\\nINTRODUCTION\\nOn the first day of trial evidence was adduced establishing that defendant was operating his vehicle in a general easterly direction on the North Side Road, Christiansted, St. Croix, at approximately 9:30 p.m. on February 12, 1984. It was further shown that at or about the same time and place, Mr. John San Kitts was operating his vehicle in the same direction when, approximately in front of the Cruzan Motors Salesroom and garage, his car was struck in the rear by the vehicle operated by the defendant. At the time of impact, both cars were moving; Mr. San Kitts' vehicle was simply overrun. After the accident, Police Officer Desmond Crossley arrived at the scene to investigate the occurrence. His investigation disclosed that the impact had occurred in the eastbound lane of the road and that the defendant's vehicle had suffered front end damage and Mr. San Kitts' vehicle had suffered rear end damage.\\nAll of the occupants of both cars had been transported to the hospital before the arrival of Officer Crossley so he proceeded to the hospital for the purpose of interviewing the occupants. Upon his arrival at the hospital, Officer Crossley encountered the defendant lying on a stretcher in one of the emergency room treatment cubicles. When speaking to the defendant, who had suffered a head injury, Officer Crossley noted an odor of alcohol on the defendant's breath and that his speech was slurred. He then placed defendant under arrest for driving while intoxicated and requested the emergency room physician to draw blood for the performance of blood alcohol testing. During the trial, in an effort to lay a foundation for the admission of the laboratory results of the blood test, the Government attempted to introduce a document which would establish the chain of custody of the blood sample kit. Defendant objected to the admission of this document because the kit itself was not available in Court for use by defendant in his cross examination of the witnesses whose testimony formed the foundation for the proffer of the document. As a result, the trial was recessed and continued in order that the Government could produce the blood alcohol kit.\\nThe trial resumed on May 24, 1984, at which time the Government called the forensic chemist who had performed the blood alcohol test to testify concerning the manner in which she conducted the test and the results thereof. In the course of her testimony, the chemist disclosed that she made entries relating to the conduct of the test and the results in a log book which was maintained in her laboratory. The laboratory secretary then prepared the report ultimately delivered to counsel from the log book entries, delivered the same to the chemist who checked the report against the log book entries for accuracy and then gave the report to the director of the laboratory who affixed his signature and authorized its release.\\nOn or about April 5, 1984, a week before the commencement of trial, defendant had served a Request for Discovery and Inspection upon the Government which demanded discovery of any Jencks Act material at the time of trial and after the testifying witness had concluded his or her direct testimony. After the forensic chemist had concluded her direct testimony, defendant requested inspection of the aforementioned log book for use during cross examination. When the Government failed to. produce the log book (it had not been brought to Court) defendant requested that the chemist's testimony be stricken pursuant to 18 U.S.C. 3500(d). The Court declined to strike the testimony, the Government concluded its case and rested. Defendant, after having made a Rule 29 Fed. R. Crim. P. Motion for acquittal, which was denied, rested.\\nThis Court must address two (2) discrete charges: first, a charge of Driving While Intoxicated in violation of 20 V.I.C. \\u00a7 493 and second, a charge of Negligent Driving in violation of 20 V.I.C. \\u00a7 503.\\nNEGLIGENT DRIVING\\nSince the evidence adduced by the Government remained unrefuted when the defendant rested, it is clear that defendant must be found guilty of this charge. Beyond any reasonable doubt, the operator of a motor vehicle who overruns a moving vehicle in front of his vehicle when there is nothing to obstruct his view or interfere with his ability to see such overrun vehicle has operated \\\"in a manner which endangers or is likely to endanger any person or property.\\\"\\nIn MacGibbon v. Smalls, 8 V.I. 362, 443 F.2d 522 (C.A. 3d 1971) Judge Adams speaking for the Court in a civil context and citing Baumann v. Canton, 7 V.I. 60 (D.C.V.I. 1968) stated that \\\"It is a well established rule that a motorist must operate his vehicle always with due regard for the safety of all others on the highway. He is charged with the duty of keeping his automobile under such control that he can stop within the distance on the road ahead which he can clearly see. The law exacts of him constant care and attention and imposes upon him certain positive duties .\\\" Certainly no lesser standard of care may be applied in a criminal context.\\nDRIVING WHILE INTOXICATED\\nIf the evidence of the defendant's blood alcohol level is excised from the case, it is clear that insufficient evidence to establish intoxication remains. At best the evidence, other than the blood alcohol level, indicates that witness John San Kitts described defendant as \\\"incoherent\\\" \\u2014 \\\"insensitive to what was going on\\\" at the scene of the accident, that Officer Crossley, when interviewing the defendant at the Hospital, found him lying on a stretcher suffering from a blow to the head, that the officer discerned an odor of alcohol about the defendant, that the defendant's speech was slurred, and that the defendant stated that he had ingested two (2) beers.\\nStanding alone, this evidence would not establish, beyond a reasonable doubt, that defendant was intoxicated. For this reason, the blood alcohol content evidence assumes great significance for if it is admitted, it is the barometer of intoxication under the statutory scheme. We address ourselves, therefore, to the propriety of the admission of the testimony of the chemist establishing defendant's blood alcohol level, over the objection of defense counsel and contrary to his motion to strike.\\nAs indicated in the introduction, supra, a timely demand for Jencks Act material was made by defendant. At the conclusion of the chemist's direct testimony, defendant demanded disclosure of the log in which the chemist had noted the highlights of the blood tests she conducted and the results thereof, as well, possibly, as other relevant data. The Government failed to produce the log which had not been brought from St. Thomas by the witness. The Court declined to strike the witness' testimony however, notwithstanding defendant's timely motion to strike.\\nThe applicable portions of the Jencks Act, 18 U.S.C. \\u00a7 3500, provide:\\n(b) After a witness called by the United States has testified on direct examination, the court shall, on-motion of the defendant, order the United States to produce any statement... of the witness . . . which relates to the subject matter as to which the witness has testified .\\n(d) If the United States elects not to comply with an order of the court under subsection (b)... to deliver to the defendant any such statement, . . . the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interest of justice require that a mistrial be declared.\\nIn analyzing the propriety of its ruling, the Court must first focus on a determination of whether the log entries were \\\"statements\\\" of the chemist, thus falling within the ambit of the Jencks Act provisions.\\n18 U.S.C. \\u00a7 3500(e) states in relevant part:\\n(e) The term \\\"statement\\\", as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means\\u2014\\n(1)a written statement made by said witness and signed or otherwise adopted or approved by him;. .\\nSince the entries in the log were written by the chemist, the sole question becomes whether the log was approved or adopted by the chemist.\\nIn United States v. Walden, 465 F.Supp. 255, 260 (1978), a case analogous to the matter at bar, a Drug Enforcement Agency Agent had prepared drafts from which final reports were prepared. The final reports were produced after the witness had testified but the drafts were not. There the court held that:\\n(2) Since it is beyond doubt that the drafts are written documents, the sole question becomes whether the documents were approved or adopted by Agent Mitchell. In order to approve or adopt a statement, it is not necessary that the witness sign the writing. The standard does require a form of approval comparable to signature. In short, the witness must, in some manner, affirmatively express his assent to the content of the writing.\\n(3) In the instant case, Agent Mitchell expressed his assent to the content of the drafts when he sent them to his supervisor for review knowing full well that after review by his supervisor, Agent Thomas G. Moore, the drafts would be forwarded to the group secretary for typing. Agent Mitchell signed the typed reports but not the drafts. Since he testified they were identical, it would be an exercise in illogic to hold that he had adopted the former but not the latter. Accordingly, the Court finds that the drafts were approved and adopted by Agent Mitchell and were \\\"statements\\\" within the meaning of the Jencks Act. (Citations omitted.)\\nLikewise, in the case at bar, the chemist testified that after she personally checked the report pertaining to the blood alcohol tests against the log for accuracy, she delivered the report to her supervisor for his signature to be affixed. In so doing, it is clear that the log notations were both adopted and approved by the declarant.\\nIn retrospect, it is clear that the Court erroneously failed to impose the appropriate sanctions mandated by the Jencks Act. That error will now be rectified. Because a mistrial might readily result in a bar to retrial, it not being a necessary sanction, the striking of the chemist's testimony will constitute a permissible, adequate and appropriate sanction as demanded by Jencks. The chemist's testimony will be stricken and disregarded by the Court.\\nAs has already been stated, supra, without the blood alcohol evidence, the Government has simply failed to prove beyond a reasonable doubt that defendant operated his motor vehicle while intoxicated. A Judgment of Acquittal will be entered as to this charge.\\nJUDGMENT\\nIn accordance with the Memorandum Opinion filed in the above-entitled matter on even date and after trial without a jury, it is\\nORDERED, ADJUDGED AND DECREED that the defendant be and he hereby is found NOT GUILTY of the offense of Driving While Intoxicated.\\nJUDGMENT\\nIn accordance with the Memorandum Opinion filed in the above-entitled matter on even date and after trial without a jury, it is\\nORDERED, ADJUDGED AND DECREED that the defendant be and he hereby is found GUILTY of the offense of Negligent Driving, and it is further\\nORDERED, ADJUDGED AND DECREED that sentencing be imposed on July 19, 1984.\\n20 V.I.C. \\u00a7493.\\n20 V.I.C. \\u00a7 503.\\nThe point of impact was ascertained through the presence of debris consisting of dirt and vehicle parts, all within the eastbound lane.\\n18 U.S.C. \\u00a7 3500.\\nThe Court declined to declare a mistrial on defendant's motion because of the double jeopardy implications. Defendant's Motion to Strike was then verbalized.\\nIn this jurisdiction a traffic violation is a crime or offense. 14 V.I.C. \\u00a7 1 provides in pertinent part: a \\\"crime\\\" or \\\"offense\\\" is an act committed or omitted in violation of a law of the Virgin Islands and punishable by\\u2014\\n(1) imprisonment; or\\n(2) fine; or .\\n20 V.I.C. \\u00a7 493(d).\"}"
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+"{\"id\": \"1066400\", \"name\": \"VIRGIN ISLANDS WATER AND POWER AUTHORITY, Plaintiff v. GASTRONOMICAL WORKERS UNION LOCAL NO. 610 OF THE HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION (AFL-CIO), Defendant\", \"name_abbreviation\": \"Virgin Islands Water & Power Authority v. Gastronomical Workers Union Local No. 610\", \"decision_date\": \"1983-12-30\", \"docket_number\": \"Civil No. 1025/1982\", \"first_page\": 116, \"last_page\": \"122\", \"citations\": \"20 V.I. 116\", \"volume\": \"20\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:14:07.675989+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"VIRGIN ISLANDS WATER AND POWER AUTHORITY, Plaintiff v. GASTRONOMICAL WORKERS UNION LOCAL NO. 610 OF THE HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION (AFL-CIO), Defendant\", \"head_matter\": \"VIRGIN ISLANDS WATER AND POWER AUTHORITY, Plaintiff v. GASTRONOMICAL WORKERS UNION LOCAL NO. 610 OF THE HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION (AFL-CIO), Defendant\\nCivil No. 1025/1982\\nTerritorial Court of the Virgin Islands Div. of St. Thomas and St. John\\nDecember 30, 1983\\nGeorge Dudley, Jr., Esq. (Dudley, Dudley & Topper), St. Thomas, V.I ,,for plaintiff\\nJohn R. Coon, Esq., Christiansted, St. Croix, V.I.,/or defendant\", \"word_count\": \"1701\", \"char_count\": \"10744\", \"text\": \"MEYERS, Judge\\nMEMORANDUM OPINION\\nI. INTRODUCTION\\nGastronomical Workers Union Local No. 610 of the Hotel and Restaurant Employees and Bartenders International Union (Local No. 610), pursuant to Rule 12, Federal Rules of Civil Procedure, filed a motion to dismiss Virgin Islands Water and Power Authority's (WAPA) complaint seeking a declaratory judgment vacating an arbitral award. The plaintiff filed a motion for summary judgment, pursuant to Rule 56, Federal Rules of Civil Procedure, and defendant filed an opposition thereto and renewed its motion to dismiss. For the reasons set forth below, the plaintiff's motion for summary judgment shall be denied and defendant's motion to dismiss granted.\\nII. FACTS\\nWAPA and Local No. 610 are parties to a Collective Bargaining Agreement, effective from April 30, 1982, to June 30, 1983, except as to wages for which the Agreement was made retroactive to November 1, 1981. Article 7 of said Agreement provides a procedure for the resolution of grievances and disputes regarding the interpretation or application of the Agreement. The last step of this procedure is final and binding arbitration. Pursuant to this procedure, the defendant filed a grievance as the exclusive representative for a bargaining unit comprised of plaintiff's supervisory employees. The grievance arose out of a dispute over the proper method of calculating wage increases agreed to in Interim Appendix A of the Collective Bargaining Agreement, which provides that:\\nThe employees covered by this Agreement shall receive a wage increase of not less than $1,400.00 or 7% per annum, whichever is greater, prorated and retroactive to November 1, 1981. Effective July 1, 1982, the employee shall receive a second increase of not less than 9%. These increases shall be reproduced in the form of wage schedules which shall become a part of the Agreement upon approval by the Union and the Governing Board of the Authority.\\nAfter processing through the preliminary steps of the grievance procedure, the matter still remained unresolved, and accordingly, was submitted to an arbitrator chosen by the parties. At the October 12, 1982, arbitration hearing, Local No. 610 contended that the language of the aforementioned Interim Appendix A of the Agreement meant that the employees in question were entitled to wage increases representing the greater of $1,400.00 or 7% of their annual base salary, payable in full over an eight-month period from November 1, 1981, to June 30, 1982. WAPA, on the other hand, contended that said increases were to be computed on an annual basis and prorated over an eight-month period. On October 25, 1982, the arbitrator, Ive A. Swan, Esquire, issued a memorandum decision upholding the defendant's position. On November 9, 1982, plaintiff's staff attorney wrote a letter to the arbitrator seeking a clarification of his decision, to which the arbitrator responded by letter dated November 30, 1982. Apparently dissatisfied with the arbitrator's decision, plaintiff instituted the instant action for declaratory judgment.\\nIII. DISCUSSION\\nThe first issue to be addressed by the Court relates to the appropriate standard and scope of judicial review in interpreting or applying the Public Employees Relations Act of 1980, 24 V.I.C. \\u00a7 361 et seq. to the case sub judice. Finch-Sheen v. United Industrial Workers of North America, Civil No. 82-101, 1983, St. T. and St. J. Supp. (D.V.I., January 28, 1983), and Virgin Islands Nursing Association's Bargaining Unit v. Schneider, 668 F.2d 221 (3rd Cir. 1981), make it clear that resort should be made to the decisional law interpreting and applying national labor policy as contained in the Labor Management Relations Act of 1947, \\u00a7 301, 29 U.S.C. \\u00a7 141, et seq.\\nThe standard for judicial review of arbitration awards has been narrowly circumscribed in the area of labor relations by the United States Supreme Court's opinions in three major cases commonly referred to as the Steelworkers Trilogy, i.e., United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564 (1960); United Steelworkers of America v. Warrior & Gulf Naviation Co., 363 U.S. 574 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). The standard enunciated by the United States Supreme Court is that:\\n[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; . He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. . A mere ambiguity in the opinion and accompanying award, which permits the inference that the arbitrator may have exceeded his authority, is not a reason for refusing to enforce the award. (Emphasis added.)\\nUnited Steelworkers of America v. Enterprise Wheel, supra, 363 U.S. at 597-598. Accord, Virgin Islands Nursing Association's Bargaining Unit v. Schneider, supra at p. 223.\\nIn construing what the United States Supreme Court meant when it stated that the labor arbitrator's award must \\\"draw its essence from the collective bargaining agreement,\\\" the United States Court of Appeals for the Third Circuit held that the phrase meant that \\\"if the interpretation can in any rational way be derived from the agreement,\\\" it met the standard enunciated above and should not be disturbed by a reviewing court unless \\\"there is a manifest disregard of the agreement totally unsupported by principles of contract construction and the law of the shop.\\\" Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 (3rd Cir. 1969). (Emphasis added.)\\nWith the foregoing principles of law in mind, we now turn our attention to the facts of the instant case. In its motion for summary judgment, WAPA contends that if the language of the arbitrator's Memorandum Decision is to be \\\"read as representing a conclusion that the negotiated wage increase is a lump sum increase to be paid in full over the 8-month period, [it] would have to be vacated since it would manifestly disregard the clear provisions of the Collective Bargaining Agreement regarding proration.\\\"\\nThe arbitrator was called upon to interpret the following language in Interim Appendix A to the parties' Collective Bargaining Agreement:\\nThe employees covered by this Agreement shall receive a wage increase of not less than $1,400.00 or 7% per annum, whichever is greater, prorated and retroactive to November 1,1981.\\nIn his Memorandum Decision, the arbitrator stated that:\\nUpon close scrutiny of the contract language, I find that the 7% per annum does not mean that the increase covers a twelve months [sic] period. Rather, it is the rate of \\\"percentage\\\" to be used in computing the salary increase of each person in the Bargaining Unit so that the particular amount can be compared with the $1,400.00 to determine which is greater. The 7% per annum modifies the rate of the salary increase.\\nAdditionally, the period covered by the increase is eight months from November 1, 1981, to June 30, 1982. This position is consistent with the second sentence in the appendix which provides for a second increase effective July 1, 1982. It seems incongruous or unlikely that the parties would agree to provide for a second salary increases [sic] covering a specific time period which would over lapse [sic] with the first period covered by the first salary increase which is precisely what would happen should I be persuaded to follow the Authority's [WAPA] position. (Emphasis added.)\\nMemorandum Decision at z.\\nFrom the foregoing excerpts of the arbitrator's Memorandum Decision, this Court finds that he merely interpreted in a rational manner the language of the parties' agreement. Furthermore, the United States Supreme Court has stated that:\\n. . . the question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator's construction which was bargained for, and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.\\nEnterprise Wheel & Car Corp., supra, 363 U.S. at 599. Indeed, the United States Court of Appeals for the Third Circuit, in reiterating the cardinal principles established by the United States Supreme Court and that court with respect to arbitral awards, stated that\\n[f]ederal policy in favor of settling labor disputes by arbitration requires that courts refrain from reviewing the merits of arbitration awards. (Citations omitted.) District courts are not to review awards for legal errors as if they were appellate bodies reviewing trial courts, but are limited to determining whether an award \\\"draws its essence from the collective bargaining agreement.\\\" (Citations omitted.)\\nSuper Tire Engineering Co. v. Teamsters Local Union No. 676, at 721 F.2d 121 at 123-124 (3rd Cir. 1983). Just recently, in W. R. Grace & Co. v. Local Union 759, 103 S. Ct. 2177 (1983), the Supreme Court stated that \\\"[u]nder well-established standards for the review of arbitration awards, a [ ] court may not overrule an arbitrator's decision simply because the court believes its own interpretation of the contract would be a better one.\\\" Id. at 2182.\\nThus, even if this Court's interpretation of the Collective Bargaining Agreement is different from the arbitrator's, it cannot overrule him unless there is a manifest disregard of the Agreement. This the Court does not find. Accordingly, Local No. 610's motion to dismiss will be granted, and WAPA's motion for summary judgment will be denied.\\nCONCLUSION\\nApplying the foregoing principles of law to the facts of this case, it cannot be said there is a manifest disregard of the agreement which is totally unsupported by principles of contract construction and the law of the shop. Hence, the arbitrator's decision shall stand.\\nORDER\\nIn accordance with the accompanying Memorandum Opinion, it is\\nORDERED that plaintiff's motion for summary judgment be and the same is hereby DENIED; and it is further\\nORDERED that defendant's motion to dismiss plaintiff's complaint be and the same is hereby GRANTED.\"}"
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+"{\"id\": \"1068013\", \"name\": \"C. K. BENOIT, Plaintiff, and Appellee v. JAMES DANIEL and VERONICA DANIEL, Defendants, and Appellants and ROSHAN PANTHAKY, THOMAS LEGUILLOU, and COMMISSIONER OF FINANCE OF THE GOVERNMENT OF THE VIRGIN ISLANDS, Defendants\", \"name_abbreviation\": \"Benoit v. Daniel\", \"decision_date\": \"1985-05-09\", \"docket_number\": \"Civil No. 1984/174\", \"first_page\": 378, \"last_page\": \"385\", \"citations\": \"21 V.I. 378\", \"volume\": \"21\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T19:21:49.706891+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"C. K. BENOIT, Plaintiff, and Appellee v. JAMES DANIEL and VERONICA DANIEL, Defendants, and Appellants and ROSHAN PANTHAKY, THOMAS LEGUILLOU, and COMMISSIONER OF FINANCE OF THE GOVERNMENT OF THE VIRGIN ISLANDS, Defendants\", \"head_matter\": \"C. K. BENOIT, Plaintiff, and Appellee v. JAMES DANIEL and VERONICA DANIEL, Defendants, and Appellants and ROSHAN PANTHAKY, THOMAS LEGUILLOU, and COMMISSIONER OF FINANCE OF THE GOVERNMENT OF THE VIRGIN ISLANDS, Defendants\\nCivil No. 1984/174\\nDistrict Court of the Virgin Islands Div. of St. Croix\\nMay 9, 1985\\nJoel H. Holt, Esq., Christiansted, St. Croix, V.I., for appellee Benoit\\nDouglas A. Brady, Esq., Christiansted, St. Croix, V.I., for appellant Panthaky\\nJOHN E. Lenahan, Esq., Christiansted, St. Croix, V.I., for appellant Leguillou\", \"word_count\": \"2549\", \"char_count\": \"14790\", \"text\": \"O'BRIEN, Judge\\nMEMORANDUM OPINION\\nThis is an appeal from the Territorial Court. The primary issue we face is whether a two year statute of limitations for actions to invalidate a property tax sale bars an attack on a sale that is void. This issue was mentioned, but neither argued nor briefed, before the trial court. It has been fully briefed on appeal. The Territorial Court decided this case in favor of the delinquent taxpayer, reaching a unique and reasonable result. We affirm.\\nThe decision of the trial court to leave each party to his, her or their own costs and attorneys' fees, appealed by one of the defendants, will also be affirmed.\\nI. FACTS\\nC. K. Benoit (\\\"Benoit\\\") purchased two parcels of land, Plot Nos. 117 and 122 of Estate St. George, in 1974. On the warranty deed Benoit listed a Trinidad address as his home address. However, for the tax years 1976 and 1977 the Virgin Islands Government sent Benoit's property tax bill to a St. Croix address. Benoit never received these bills even though Benoit's correct address was on file with the Recorder of Deeds.\\nOn November 10, 1978, the Commissioner of Finance sold the two properties at public auction for delinquent taxes. At some point prior to this tax sale Benoit moved from Trinidad to Miami. The Government advertised this sale and sent notice of the sale to the improper St. Croix address. However, the Government never sent notice to Benoit's correct address. Plot No. 122 was sold to Thomas Leguillou and Plot No. 117 was sold to Elsie Walcott who bought the property in the name of her daughter Roshan Panthaky.\\nAfter the sale, the Government sent notice of Benoit's right to redeem his property to the incorrect St. Croix address. Benoit never received this notice.\\nBenoit contacted the Virgin Islands Department of Finance on September 29, 1980, advised the Department that he had not received his tax bills and requested information about the amount of back taxes owed. Benoit then sent the Department of Finance a check for these back taxes. This check was returned to Benoit on December 23, 1980, at which time he was informed that the plots were sold to Leguillou and Panthaky. In February 1981 Panthaky sold Plot No. 117 to the Daniels, who then built a home on that land.\\nIn August 1981 Benoit filed suit to set aside the original tax sale. The trial judge in Territorial Court held that this tax sale was void and returned Plot No. 122 to Benoit. Since Plot No. 117 had been improved the trial court allowed the Daniels to retain title but ordered that they pay Benoit the market value of the plot when acquired, including interest, less the tax sale purchase price. The Daniels filed a motion for reconsideration which was denied. They then appealed the entire decision to this Court. Leguillou appealed only the denial to him of attorney's fees.\\nII. DISCUSSION\\nThe issue of the statute of limitations as related to void tax sales is important to both the government and property owners. The Territorial Court never had an opportunity to fully develop the matter. So that the record will be clear, we will discuss the issue in some depth.\\nBoth sides concede that the Virgin Islands Government failed to give proper notice of the tax sale and the trial court correctly held that the tax sale was void.\\nThe Daniels argue that the Territorial Court erred by not dismissing the complaint. Founded on public policy, they maintain that the running of the statute of limitations prevents the tax debtor from challenging the tax sale regardless of the validity of the sale. We reject this position for the following reasons.\\nA) Fourteenth Amendment Due Process\\nFirst, we find that the statute of limitations for setting aside a tax sale, found at 5 V.I.C. \\u00a7 31(5)(A), can only refer to tax sales validly conducted pursuant to Title 33, chapter 89, subchapter III of the Virgin Islands Code. The statute of limitations will not run for a constitutionally defective tax sale.\\nTo hold that the statute of limitations had run in this case would in effect place a higher priority on the Daniels' right to be free from \\\"stale\\\" claims than Benoit's due process rights under the Fourteenth Amendment.\\nIn Shree Ram Naya, supra at 221, the party who claimed title through the tax sale purchaser asserted the affirmative defense of laches when the prior owner attempted to have the tax sale declared void. In that case we noted that \\\"rectification of the deprivation of the owner's due process rights under the Fourteenth Amendment should be given, in this instance, a higher priority.\\\" Shree Ram Naya, supra at 221. We believe that the doctrine of laches and statutes of limitations are similar enough for us to apply our analysis in Sham Ram Naya to the present case.\\nAlthough there are some distinctions between the doctrine of laches and statutes of limitations, see generally 51 Am. Jur. 2d Limitation of Actions \\u00a7 6 (1970), the underlying rationale for both appear to be similar. Laches is an equitable doctrine that denies relief to a party whose undue delay in asserting rights prejudices the adverse party. Watlington v. Canton, 18 V.I. 203, 208 (Terr. Ct. 1982). Justice Byron White, dissenting in South Dakota v. North Carolina, 192 U.S. 286, 346 (1903) defined a statute of limitations as \\\"the action of the state in determining that, after the lapse of a specified time, a claim shall not be legally enforceable.\\\" Statutes of limitations, like the doctrine of laches, are designed to prevent undue delay in bringing suit on claims and to suppress stale claims from being asserted to the surprise of the adverse parties. Chase Secur. Corp. v. Donaldson, 325 U.S. 304 reh. den., 325 U.S. 896 (1945). The doctrine of laches has been referred to as the \\\"equitable equivalent of the legal statute of limitations.\\\" Wagg v. Herbert, 215 U.S. 546, 553 (1909).\\nAdditionally, the doctrine of laches and statutes of limitations operate in similar ways. Inaction or delay in seeking a legal remedy can be barred by the doctrine of laches or the statute of limitations. 1 Am. Jur. 2d Actions \\u00a7 90 (1962). Both are affirmative defenses which must be set forth in an answer to a complaint. Fed. R. Civ. P. 8(c). Both the doctrine of laches and statutes of limitations merely bar the remedy but do not discharge the right. Halcon International, Inc. v. Monsanto Australia, Ltd., 446 F.2d 156 (7th Cir.), cert. denied, 404 U.S. 949, reh. denied, 404 U.S. 1026 (1971).\\nIn the Third Circuit, the relationship between the doctrine of laches and statutes of limitations is particularly important with respect to burden of proof. Prior to the running of the statute, the defendant has the burden of proving laches. After the statute has run, however, the plaintiff has the burden of disproving laches. Pierre v. Hess Oil Virgin Islands Corp., 624 F.2d 445, 450 (3d Cir. 1980); Churma v. United States Steel Corporation, 514 F.2d 589, 593 (3d Cir. 1975).\\nWe therefore find that deprivation of a landowners right to notice of delinquent taxes and a pending tax sale, contained in the Fourteenth Amendment due process clause, should be given a higher priority than a tax sale purchaser's right to be free from \\\"stale\\\" claims raised after the statute of limitations has run.\\nB) Case Law\\nA wide variety of cases have wrestled with the issue of defective tax sales and the corresponding statutes of limitations for actions to set these sales aside. Many cases hold that the running of statutes of limitations for actions to set aside tax sales are tolled when defects in the tax sale, including lack of notice to the tax debtor of the tax sale, make the tax deed void. United States v. 329.22 Acres of Land, 307 F. Supp. 34, 51 (M.D. Fla. 1968) aff'd, 418 F.2d 551 (5th Cir. 1969) (tax deed void from the date of issue is not protected from challenge by running of the statute of limitations); Farris v. Anaconda Copper Mining Co., 31 F. Supp. 571, 579-80 (D. Mont. 1940) (statute of limitations is not a bar for void tax deeds); Larsen v. Cady, 274 N.W.2d 907, 909 (Iowa, 1979) (state not barred by the statute of limitations from asserting its rights to tax deed); Bogart v. Lathrop, 523 P.2d 838, 840 (Nev. 1974) (where a tax deed and sale are void because of a jurisdictional defect, the three year limitation period does not apply); Hodges v. McCutcheon, 72 N.D. 150, 5 N.W.2d 83, 85 (1942) (statute of limitations does not run in favor of tax deed void on its face or void because of a defect in the proceedings which led to its issuance); Boyd v. Meador, 10 Ark. App. 5, 660 S.W.2d 943 (1983) (chancellor erred in barring appellant's right to question tax sale after two year statute of limitations had expired when sale was invalid because of the omission of the required certification of publication of notice). Some jurisdictions hold that special statutes of limitations for challenges to tax sales do not run when the tax deed is void on its face. Catlett v. Roemer, 174 Kan. 309, 255 P.2d 1011, 1014 (1953); Leuck v. Russell, 632 S.W.2d 40, 42 (Mo. Ct. App. 1982). We find these cases persuasive in supporting our position that the statute of limitations does not prevent a tax debtor from challenging an invalid tax sale.\\nWe should note that other jurisdictions disagree with our position and hold that the running of the statute of limitations prevents a tax debtor from challenging a void tax sale or tax deed. Frederiksen v. La Fleur, 632 P.2d 827, 831 (Utah, 1981) (tax purchasers may avail themselves of the special statute of limitations regardless of either the invalidity of their tax title or their inability to establish an affirmative claim to title apart from their tax title); Shaffer v. Mareve Oil Corp., 204 S.E.2d 404, 409 (W.Va. 1974) (a short statute of limitations may validly bar an attack on a jurisdictionally defective or void tax deed). These cases do not vitiate the substance of this opinion for two reasons. First, as the Shaffer court notes, the majority of jurisdictions faced with interpreting similar statutes have held that time limitations for bringing suits to set aside tax deeds apply only to non-jurisdictional defects. Shaffer, supra at 409. Cases in this area uniformly hold that lack of notice to the tax debtor is a jurisdictional defect. Second, as the Shaffer court also noted, most decisions in this area are based on the peculiar wording of the particular statute and depend on the intent of the particular legislature. Shaffer, supra at 409. No evidence has been brought to our attention that the Virgin Islands Legislature, in enacting 5 V.I.C. \\u00a7 31(5)(A), intended to adopt the minority position on this issue.\\nIn affirming the Territorial Court, we hold that the statute of limitations to set aside a sale of real property for non-payment of real property taxes will not prevent a tax debtor from challenging that sale if the tax debtor has not received adequate notice of the tax deficiency or the tax sale.\\nC) Leguillou's Claim For Fees\\nLeguillou, who purchased one of the parcels at the tax sale, does not appeal the Territorial Court decision returning the property to Benoit upon return of the purchase price and interest. Rather, he appeals the decision to deny him any attorney's fees, as an abuse of discretion of the trial court.\\nThe trial court, in entering judgment leaving each party to pay his, her or their own costs, including attorneys' fees, did not elucidate on its reasoning. But in reality it did not have to. A reading of the record, and the court's opinion, demonstrates that there were no winners . . . only losers, in this case. As so often happens in tax sale matters all parties leave the case sadder, and hopefully wiser. The delinquent property owner who obtains the property back must still pay interest, and those who purchased innocently at the tax sale lose the property with only a return of the purchase price and interest.\\nIn the context of such a setting, it is easy to understand why the trial judge would exercise his discretion not to award costs and fees. It was not an abuse of discretion to so decide, and thus we will affirm his decision in that regard.\\nORDER\\nTHIS MATTER is before the Court on appeal from the Territorial Court. The Court having filed its Memorandum Opinion of even date herewith, and the premises considered, now therefore it is\\nORDERED:\\nTHAT the Judgment of the Territorial Court be, and the same, is hereby AFFIRMED.\\n33 V.I.C. \\u00a7 2541(b) in part states:\\n(b) The Commissioner of Finance shall prepare a written notice of attachment of the real property on which the taxes are owing by the delinquent taxpayer. This notice shall contain the amount of the delinquent taxes and the interest provided for by section 2494 of this chapter, and shall contain a statement that if all the taxes, penalties and costs are not paid within the period prescribed in section 2546 of this title, the property shall be sold at public auction. The attachment shall be enforceable as soon as notice thereof shall have been served by leaving a copy with the debtor himself or any member of the debtor's family or attendants of legal age, a record of which service shall be noted down for subsequent action. When the debtor, a member of the debtor's family or attendants cannot be found, the Commissioner shall leave the notice with two neighbors of the debtor who shall be witnesses of the service of the notice, or, if no witnesses can be found willing to receive the notice, then the notice shall be posted on or attached to the property of the debtor, whereupon the notice shall be considered as being served upon the debtor.\\nStatutes regulating tax sales must be strictly construed in favor of the owner of the land. Shree Ram Naya Sabha, Inc., et al. v. Hendricks, et al., 19 V.I. 216, 219 (D.V.I. 1982); Rivera v. Government of the Virgin Islands, 13 V.I. 42, 48 (D.V.I. 1976); Williams v. Abel and Wheatley, 7 V.I. 146, 150 (D.V.I. 1969). The burden is on a tax sale purchaser, or one who claims through the purchaser, to establish to the Court's satisfaction that the intended procedure was in fact followed. Rivera, supra at 46-47. In this case it is clear that the party claiming through the tax purchaser has not even tried to meet this burden and would have failed if they had tried.\"}"
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+"{\"id\": \"1068058\", \"name\": \"KYLE K. FRANCIS, Plaintiff v. KADE WARRELL FRANCIS, Defendant\", \"name_abbreviation\": \"Francis v. Francis\", \"decision_date\": \"1985-02-26\", \"docket_number\": \"Family No. D321/84\", \"first_page\": 263, \"last_page\": \"266\", \"citations\": \"21 V.I. 263\", \"volume\": \"21\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T19:21:49.706891+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"KYLE K. FRANCIS, Plaintiff v. KADE WARRELL FRANCIS, Defendant\", \"head_matter\": \"KYLE K. FRANCIS, Plaintiff v. KADE WARRELL FRANCIS, Defendant\\nFamily No. D321/84\\nTerritorial Court of the Virgin Islands Div. of St. Thomas and St. John\\nFebruary 26, 1985\\nJohn L. Maduro, Esq., St. Thomas, V.1., for plaintiff\\nKade Warrell Francis, St. Thomas, V.I., pro se\", \"word_count\": \"1311\", \"char_count\": \"7944\", \"text\": \"FEUERZEIG, Judge\\nMEMORANDUM OPINION\\nThe court is required to determine whether misrepresentations regarding one's financial obligations are sufficient grounds for an annulment of a marriage. The court concludes that they are not.\\nKyle K. Francis has petitioned the court to annul her June 16, 1984 marriage to Kade Warrell Francis. Mrs. Francis alleges that before they were married Mr. Francis fraudulently misrepresented the state of his finances. She further alleges that she relied on these false representations, that she would not have married Mr. Francis had she known his true financial condition, and that she ceased to cohabit with him when she learned the truth. Finally, she alleges that as a result of her reliance on Mr. Francis' statements she has suffered embarrassment, grief, and financial damage. Mr. Francis admits the truth of all of these allegations.\\nWhile fraud in the inducement of a marriage is grounds for an annulment, 16 V.I.C. \\u00a7 2(2) (1964), the court does not find that Mr. Francis' statements constitute \\\"fraud\\\" as that term is used in section 2. There is no reported Virgin Islands case that addresses this issue, but it is well settled in a majority of the states that the term \\\"fraud\\\" as used in annulment proceedings is not to be construed as broadly as it is to void an ordinary contract. See, e.g., Marshall v. Marshall, 300 P. 816, 818 (Cal. 1931). Courts in most states have ruled that before fraud will be sufficient to allow an annulment it must be shown that the fraud concerns the essentials of the marital relationship, such as cohabitation or consortium. See, e.g., Woronzoff-Daschkoff v. Woronzoff-Daschkoff, 303 N.Y. 506, 104 N.E.2d 877, 880 (1952); Security-First National Bank of Los Angeles v. Schaub, 162 P.2d 966 (Cal. App. 1945); Marshall v. Marshall, supra, at 817; Chipman v. Johnston, 130 N.E. 65 (Mass. 1921).\\n4. That prior to the marriage, since defendant was a divorcee, plaintiff and defendant underwent counselling with Father Clark of the St. Andrews Anglican Church. They discussed their financial status, and defendant represented to plaintiff at the time, that the only expense that he had to take care of was his rent and that was up to date. He told her that his telephone, electricity, and gas bills were up to date. He further represented to her that his child support payments were up to date. That at another session of the parties with Father Clark, defendant still denied that he had any of the aforementioned obligations to take care of.\\n5. That plaintiff relying on these representations, and believing that he was telling the truth, married the defendant, only to discover not long after the marriage that the defendant had deceived her. She discovered that the defendant was behind in his child support payments for several months, and had appeared in court regarding same. At that time also, defendant had another case pending. That he was behind in his rent in the amount of $874.00, and that from a list of creditors, prepared by himself, he was indebted to such creditors in the sum of $11,753.00, including the sum of $450.00, which was owed to a local attorney.\\nIn Chipman v. Johnston, supra, for example, an annulment was denied to a woman who went through a form of marriage with a man who falsely and fraudulently represented his identity, the place where he made his home, the nature of his business, and money he said he had on deposit. The parties lived and cohabited together as husband and wife for no more than nine days and then the man disappeared. The Supreme Judicial Court of Massachusetts concluded:\\nIt is not every error or mistake into which an innocent party to a marriage may fall, even though induced by disingenuous or false statements, silences or practices, which affords grounds for its annulment. Manifestly wicked deception was perpetrated upon the petitioner. That alone is not enough to vitiate a marriage duly solemnized and fully consummated. Fraud, in order that it be ground for annulment, must go to the essentials of the marriage relation.\\nAfter the ceremony of marriage and the subsequent cohabitation, brief though it was, a change of status took place affecting both the parties and the community. A relation thereby sprang into existence which for important reasons the law recognizes and takes under its protection. It is a relation which cannot be lightly disregarded.\\nId. 130 N.E. at 66.\\nAs long ago as 1862, in what has been declared by Homer H. Clark in his treatise The Law of Domestic Relations (1968) as the \\\"most influential American case,\\\" Reynolds v. Reynolds, 3 Allen (85 Mass) 605 (1862), it was established \\\"that misrepresentations about character, health, fortune or temper are deemed immaterial and furnish no ground for annulment.\\\" Clark, supra, \\u00a7 2.17. The kinds of fraud that have been found to form a basis for an annulment are (1) misrepresentations as to pregnancy, e.g., Reynolds v. Reynolds, supra; (2) misrepresentations concerning physical or mental health, e.g., Stone v. Stone, 136 F.2d 761 (D.C. Cir. 1943), and (3) misrepresentations concerning the intent with which the marriage is contracted, such as an intent not to consummate the marriage, e.g., Anders v. Anders, 224 Mass. 438, 113 N.E. 203 (1916).\\nMisrepresentations of financial matters, however, do not concern the essentials of a marriage relationship and as such have been specifically rejected as grounds for annulment. Woronzoff-Daschkoff v. Woronzoff-Daschkoff, supra; Shonfeld v. Shonfeld, 260 N.Y. 477, 184 N.E. 60 (1933); Avnery v. Avnery, 50 A.D.2d 375, 806 N.Y.S.2d 888 (1975); Marshall v. Marshall, supra. The Francises have alleged no more here. More importantly, even assuming financial misrepresentation could provide a basis for annulment, the misrepresentations alleged here are not flagrant enough to form the basis for an annulment.\\nThis court, therefore, joins many other courts that have considered such issues and notes that marriage is \\\"more than a personal relation between a man and woman.\\\" It is \\\"an institution involving the highest interests of society.\\\" See, e.g., Woronzoff-Daschkoff v. Woronzoff-Daschkoff, 104 N.E.2d at 880. Consequently, while a reading of Virgin Islands law and 16 V.I.C. \\u00a7 2(2) might suggest that marriages can be terminated almost at will, this court declines to find that any provision of that law allows the very existence of a marriage to be denied on the grounds proposed here.\\nORDER\\nThe court having this day issued a Memorandum Opinion, it is\\nORDERED that the petition for annulment is' denied; and it is further\\nORDERED that the plaintiff is granted 15 days to show cause why this case should not be dismissed or to file an amended petition seeking a divorce.\\nThe specific allegations in the complaint are:\\nThis rule is made applicable to the Virgin Islafnds by 1 V.I.C. \\u00a7 4 (1967):\\nThe rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary.\\nThe court relies on several New York cases in this opinion. While New York purports to apply a less demanding \\\"vital to the marital relationship\\\" standard, see, e.g., Woronzoff-Daschkoff v. Woronzoff-Daschkoff, supra, in practice the results mirror those of states applying the majority rule. Moreover, as the cases cited in the text of this opinion reveal, even under New York's standard, misrepresentation of financial matters is insufficient to permit an annulment.\"}"
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+"{\"id\": \"1068069\", \"name\": \"JAMES J. MOOREHEAD, Plaintiff v. GEORGE MARSHALL MILLER, Defendant\", \"name_abbreviation\": \"Moorehead v. Miller\", \"decision_date\": \"1984-08-06\", \"docket_number\": \"Civil No. 83-105\", \"first_page\": 79, \"last_page\": \"87\", \"citations\": \"21 V.I. 79\", \"volume\": \"21\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T19:21:49.706891+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JAMES J. MOOREHEAD, Plaintiff v. GEORGE MARSHALL MILLER, Defendant\", \"head_matter\": \"JAMES J. MOOREHEAD, Plaintiff v. GEORGE MARSHALL MILLER, Defendant\\nCivil No. 83-105\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nAugust 6, 1984\\nJames J. Moorehead, St. Thomas, V.I., plaintiff, pro se\\nGeorge M. Miller, Esq., St. Thomas, V.I., defendant, pro se\", \"word_count\": \"2341\", \"char_count\": \"14026\", \"text\": \"O'BRIEN, Judge\\nMEMORANDUM OPINION AND ORDER\\nThis action for legal malpractice is before the Court on cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff, James J. Moorehead (\\\"Moore-head\\\"), acting pro se, claims that he is entitled to judgment as a matter of law as there are no genuine issues of material fact. Defendant, George Marshall Miller (\\\"Miller\\\"), admits that the facts are uncontroverted, but argues that the action is time barred by the statute of limitations. For the reasons which follow, both motions for summary judgment will be denied.\\nI. FACTS\\nOn October 29, 1979, Moorehead retained Miller, an attorney licensed to practice law in the Virgin Islands, to represent him in a defamation action against McCoy Webster and the Daily News. Miller filed a complaint in the Territorial Court, Division of St. Thomas and St. John, on May 9, 1980, twenty-one days after the two-year limitation period had expired. The action was dismissed for that reason by Judge Verne A. Hodge in an opinion dated June 1,1981.\\nMoorehead filed the present action in this Court on April 27,1983, alleging that defendant's failure to timely institute the defamation action was a breach of Miller's duty to exercise reasonable care, skill, and diligence. The summons and complaint were served more than eight months later, on January 9, 1984. Miller promptly filed his answer the next day.\\nActing sua sponte the Court ordered Moorehead to show good cause why service of process was not made within 120 days of the date the complaint was filed pursuant to Fed. R. Civ. P. 4(j). (Order, May 17, 1984.) Moorehead's response stated inter alia that confusion during the change over from service by the U.S. Marshall to the Process Server caused the delay.\\nII. DISCUSSION\\nA. Rule U(j)\\nEffective February 26, 1983, Rule 4 of the Federal Rules of Civil Procedure was amended by the addition of subdivision (j). Fed. R. Civ. P. 4(j) provides in pertinent part:\\n(j) Summons: Time Limit for Service.\\nIf a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.\\nInvoking this rule, the Court warned Moorehead that his complaint would be dismissed if he did not show good cause for the eight-month delay between the filing of the complaint and service of process. Moorehead responded detailing his whereabouts and misfortunes since April 13, 1982. The time period we must focus on is between April 27, 1983, the date the action was filed, and January 9, 1984, the date of service.\\nMoorehead was hospitalized in Atlanta, Georgia, until August 28, 1983, and returned to St. Thomas on September 1, 1983. He attempted to ascertain the status of the case, but avers that due to confusion during the change over from service by the U.S. Marshall to the Process Server, the Clerk's Office was either unable to find the return of service, or told him that the summons was already executed. Finally, the summons was issued on December 28, 1983, and service was returned on January 9, 1984. Miller did not protest as unreasonable the delay between filing and service, and promptly answered, provided discovery, and filed his motion for summary judgment.\\nConsequently, we find that Moorehead has shown good cause for the delay and his complaint will not be dismissed. Further, pursuant to Rule 3 of the Federal Rules of Civil Procedure, we find that this action was commenced, and the statute of limitations was tolled, on April 27, 1983, the day the complaint was filed.\\nB. Applicable Statute of Limitations\\nIn his motion for summary judgment Miller claims that this action is time barred by the statute of limitations. It is settled in this jurisdiction that legal malpractice is subject to the two-year general tort statute of limitations set forth in 5 V.I.C. \\u00a7 31(5)(A) (Supp. 1982). Simmons v. Ocean, 19 V.I. 232, 235, 544 F.Supp. 841, 843 (D.V.I. 1982); Ingvoldstad v. Estate of Young, 19 V.I. 115, 124-25 (D.V.I. 1982).\\nTo sound in contract, and thereby be governed by the six-year statute of limitations provided in 5 V.I.C. \\u00a7 31(3)(A) (1967), a legal malpractice suit must be based on the nonperformance of a specific undertaking or promise contained in the contract. Ingvoldstad, supra, at 127. The fact that both parties signed a retainer agreement, as here, does not bring this case within the realm of a contract action. Long v. Buckley, 629 P.2d 557, 560-61 (Ariz. 1981).\\nC. Accrual of Cause of Action\\nThe Court must next determine when Moorehead's cause of action accrued. This jurisdiction has yet to expressly adopt a rule governing the accrual of a legal malpractice action. In Simmons, supra, the Court discussed the various rules but concluded that it was unnecessary to decide which one should be applied in the Virgin Islands because viewing the facts and pertinent dates in the light most favorable to the plaintiff, the action would still be time barred. Such is not the case here.\\nThe earliest possible date of accrual would be dictated by the occurrence rule. This rule provides that the statute of limitations commences upon the occurrence of the essential facts constituting the cause of the action, regardless of whether these facts are discov ered by the client. See, e.g., Wilcox v. The Executors of Plummer, 29 U.S. (4 Pet.) 172 (1830); R. Mallen & V. Levit, Legal Malpractice \\u00a7 389, at 446 (2d ed. 1981). Where the negligent conduct is an omission, such as failure to comply with a statutory time period, there has been some agreement that an attorney's liability arises when the client's action is proscribed. El Paso v. West, 102 F.2d 927, 929 (5th Cir.), cert. denied, 308 U.S. 587 (1939); Galloway v. Hood, 43 N.E.2d 631 (Ohio 1941); Annot., 18 A.L.R.3d 978, 1005 (1968).\\nFollowing this general rule, Moorehead's cause of action would have accrued on April 17, 1980, when the statute of limitations in the underlying defamation claim ran. Under the occurrence rule, therefore, Moorehead's action clearly would be time barred by the two-year statute of limitations.\\nThe latest possible date of accrual can be ascertained by following the discovery rule. The premise of this rule is that the statute of limitations should not run until the client knows or should know the essential facts of the cause of action. Edwards v. Ford, 279 So.2d 851, 852-53 (Fla. 1973); Budd v. Nixen, 491 P.2d 433, 438 (Cal. 1971); Mumford v. Staton, Whaley & Price, 255 A.2d 359, 364 (Md. 1969).\\nToday the discovery rule has proven to be the predominant doctrine of accrual despite 140 years of precedent with the occurrence rule. One commentator has attributed this to the injustice sustained when a client's rights are foreclosed before he or she, or even the lawyer, could be expected to discover the error. R. Mallen and V. Levit, Legal Malpractice \\u00a7 393, at 475 (2d ed. 1981). Recently, the discovery rule has been embraced in cases where an attorney fails to commence an action within the statute of limitations. Yazzie v. Olney, Levy, Kaplan & Tenner, 593 F.2d 100 (9th Cir. 1979); Kohler v. Woollen, Brown & Hawkins, 304 N.E.2d 677, 681 (Ill. 1973); Downing v. Vaine, 228 So.2d 622 (Fla. 1969).\\nFollowing the discovery rule, which we now adopt, the date of discovery in this case would be the date the judgment and memorandum opinion were entered in the Territorial Court, June 2, 1981. Thus, this action was timely filed within two years on April 27, 1983. Miller's motion for summary judgment on this ground must be denied.\\nD. Plaintiff's Motion for Summary Judgment\\nMoorehead claims that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law in his motion for summary judgment. Alternatively, Moorehead states that he is entitled to partial summary judgment on the issue of liability, with the amount of damages left for a court determination. Attached to the motion are his affidavit attesting to the facts, a copy of the retainer agreement, a copy of the complaint in the Territorial Court action, a copy of the allegedly defamatory newspaper article, and a copy of the Territorial Court judgment and memorandum opinion dismissing the action.\\nUnder Rule 56(c) of the Federal Rules of Civil Procedure summary judgment may be entered only \\\"if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\\\" Both parties agree that the facts culminating in this action are not in dispute. There are, however, issues in a legal malpractice action that are to be determined by the trier of fact, unless reasonable men could not differ on the outcome.\\nIn a legal malpractice case the plaintiff has the burden of proving 1) the attorney-client relationship giving rise to a duty; 2) breach of that duty; 3) the causal connection between the negligent conduct and the resulting injury, and 4) actual loss or damage. See, e.g., Schenkel v. Monheit, 405 A.2d 493 (Pa. 1979); Sherry v. Diercks, 628 P.2d 1336 (Wash. 1981); Christy v. Saliterman, 179 N.W.2d 288 (Minn. 1970); see generally, R. Mallen & V. Levit, Legal Malpractice \\u00a7 654, at 804, \\u00a7 657, at 812-13 (2d ed. 1981); D. Meiselman, Attorney Malpractice: Law and Procedure \\u00a7 3:1, at 39-40 (1980).\\nMiller does not deny that an attorney-client relationship existed between himself and Moorehead. This relationship was out lined in the contract entered into between the two parties on October 29, 1979. This relationship gave rise to a duty whereby defendant was required to exercise the customary skill and knowledge which normally prevails at the time and place. Moore v. United States, 432 F.2d 730 (3d Cir. 1970); Prince v. Lehtonen, 1982 St. X. Supp. 449 (D.V.I. Oct. 7, 1982); Restatement (Second) Torts \\u00a7 299A (1965).\\nHaving proved conclusively that the Territorial Court action was time barred, Moorehead must show that this error was caused by Miller's negligence. Although some jurisdictions have indicated that allowing the statute of limitations to run on a client's claim is prima facie evidence of negligence, Case v. St. Paul Fire & Marine Ins., 324 F.Supp. 352 (E.D. La. 1971); House v. Maddox, 360 N.E.2d 580 (111. 1977); Fuschetti v. Bierman, 319 A.2d 781 (N.J. 1974), more commonly the ultimate determination of negligence is left to the trier of fact.\\nIf Miller did indeed act negligently, Moorehead must prove that the negligence was the proximate cause of the loss of a valid claim and actual damages. This raises another issue of fact, except where reasonable men could not disagree. See, e.g., Woodruff v. Tomlin, 616 F.2d 924 (6th Cir. 1980) (applying Tennessee law); Lewandowski v. Continental Casualty Co., 276 N.W.2d 284 (Wis. 1979); Chocktoot v. Smith, 571 P.2d 1255 (Or. 1977).\\nMoorehead is thus required to establish by the preponderance of evidence that he would have recovered a judgment in the underlying defamation action, and that it would have been recoverable. Williams v. Bashman, 457 F.Supp. 322 (E.D. Pa. 1978); Spering v. Sullivan, 361 F.Supp. 282 (D.C. Del. 1973); Duke & Co. v. Anderson, 418 A.2d 613 (Pa. 1980). Fuschetti v. Bierman, 319 A.2d 781 (N.J. 1974).\\nBecause questions of fact remain, Moorehead's motion for summary judgment must be denied.\\nORDER\\nTHIS MATTER is before the Court on cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court having filed its Memorandum Opinion on even date herewith, and the premises considered, now therefore it is\\nORDERED:\\nTHAT plaintiff's motion for summary judgment be and the same is hereby DENIED; and\\nTHAT defendant's motion for summary judgment be and the same is hereby DENIED.\\nThis section provides:\\n\\u00a7 31. Time for commencement of various actions Civil actions shall only be commenced within the periods prescribed below after the cause of action shall have accrued, except when, in special cases, a different limitation is prescribed by statute:\\n(5) Two years\\u2014\\n(A) An action for libel, slander, assault, battery, seduction, false imprisonment, or for any injury to the person or rights of another not arising on contract and not herein especially enumerated, or to set aside a sale of real property for non-payment of real property taxes pursuant to Title 33, chapter 89, subchapter III of this Code.\\nSome jurisdictions have modified the occurrence rule to require that there be actual injury before the cause of action accrues. Under this damage rule the latest possible date of injury would be incurred when the attorney's negligence became irreversible. See, e.g., Fort Meyers Seafood Packers, Inc. v. Steptoe and Johnson, 381 F.2d 261 (D.C. Cir.), cert. denied, 390 U.S. 946 (1967); Hunt v. Bittman, 482 F.Supp. 1017 (D.D.C. 1980); Boehm v. Wheeler, 223 N.W.2d 536 (Wis. 1975).\\nTwo other rules have been used to determine date of accrual but are inapplicable here. The continuous treatment rule dates accrual from the time the attorney's representation concerning a particular transaction is terminated. The effect of the rule is to toll or defer accrual. Under the concealment rule, the running of the statute of limitations is deferred until the client discovers or should have discovered the facts where the attorney conceals misconduct or injury. See generally, R. Mallen & V. Levit, Legal Malpractice \\u00a7 391, 392 (2d ed. 1981).\"}"
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+"{\"id\": \"1068080\", \"name\": \"GARY BERNE and CYNTHIA BERNE, Plaintiffs/Appellees v. AETNA INSURANCE COMPANY, Defendant/Appellant\", \"name_abbreviation\": \"Berne v. Aetna Insurance\", \"decision_date\": \"1985-02-20\", \"docket_number\": \"Civil No. 83/360\", \"first_page\": 342, \"last_page\": \"348\", \"citations\": \"21 V.I. 342\", \"volume\": \"21\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T19:21:49.706891+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GARY BERNE and CYNTHIA BERNE, Plaintiffs/Appellees v. AETNA INSURANCE COMPANY, Defendant/Appellant\", \"head_matter\": \"GARY BERNE and CYNTHIA BERNE, Plaintiffs/Appellees v. AETNA INSURANCE COMPANY, Defendant/Appellant\\nCivil No. 83/360\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nFebruary 20, 1985\\nAurelia Rashid, Esq. (Birch, deJongh & Farrelly), St. Thomas, V.I., for plaintiffs/appellees\\nJohn E. Lenahan, Esq. (Bryant, Lenahan & Eltman), Christiansted, St. Croix, V.I.,for defendant/appellant\", \"word_count\": \"2024\", \"char_count\": \"12389\", \"text\": \"O'BRIEN, Judge\\nMEMORANDUM OPINION\\nThis case, on appeal from Territorial Court, requires us to decide whether a provision in a homeowners policy which limits the recovery for loss by theft of jewelry to $500 is enforceable in the face of a total $20,000 coverage for unscheduled personal property provided in the same policy. We find such a special limitation is enforceable. We will reverse the judgment of Territorial Court awarding $20,000 plus costs and fees to the insureds. The refusal of the Territorial Court to award punitive damages against the insurance company will be affirmed.\\nI. FACTS\\nThe plaintiffs/appellees, (\\\"the Bernes\\\"), purchased a standard homeowners policy from the defendant/appellant, (\\\"Aetna\\\"). Coverage was provided for damage to real property, for personal liability protection against claims of others and for unscheduled personal property losses up to $20,000. (App. 8). The body of the policy was the HO-2 Homeowners Policy Broad Form, as revised in September, 1970. (App. 10-13). The first page of HO-2 contained a description of the property and interests insured.\\nSchedule C on that page listed the Unscheduled Personal Property description, which was followed by an enumeration of the perils insured against. The second page, (App. 11), included theft as one of the covered perils.\\nAfter describing additional exclusions to the policy, page three of HO-2, (App. 12), spelled out additional conditions attached to the policy. The second of these additional conditions listed \\\"Special Limits of Liability on Certain Property\\\" and included the following language:\\n(4) $500 in the aggregate for loss by theft of jewelry, watches, necklaces, bracelets, gems, precious stones, gold, platinum and furs including articles containing fur which represents its principle (sic) value.\\nExcept for the headings of sections and subsections, the policy coverage, exclusions and additional conditions are in the identical typeface.\\nOn November 14, 1980, while the policy was in force, the Bernes' home was burglarized and $20,000 in jewelry was taken and never recovered. They filed a proof of loss with Aetna, which declined to pay more than $500, citing the special limitation to that amount for theft of unscheduled jewelry.\\nThe Bernes filed this action against Aetna in Territorial Court. A non-jury trial was held, after which the court entered its findings of fact and conclusions of law from the bench. In its findings and conclusions, the court found that the policy in question was \\\"unambiguous\\\" but that notwithstanding, Aetna was under an obligation to disclose \\\"material information\\\" concerning the $500 limit on unscheduled jewelry. Having found the policy \\\"unambiguous\\\" the court then invoked the doctrine of reasonable expectations, citing as authority Kievit v. Loyal Protective Life Ins. Co., 170 A.2d 22, 30 (N.J. 1961). Also cited was Hallowell v. State Farm Mutual Auto Ins. Co., 443 A.2d 925, 927 (Del. 1982), for the proposition that a court will look to the reasonable expectations of an insured at the time he entered into a contract if the terms are ambiguous or conflicting, or if the policy contains a hidden trap or pitfall, or if the fine print takes away that which has been given by the large print. (App. 22-33).\\nThe court then proceeded to find that the Bernes had the reasonable expectation that their jewelry was fully insured to the extent of $20,000 without scheduling. It faulted the placement of the various sections containing special limitations and conditions and stated that the practice of \\\"using lengthy, complex and cumbersomely written insurance policies to deprive the consuming public of its reasonable expectations when it purchases insurance cannot be sanctioned.\\\" (App. 31).\\nThe court also concluded that the public \\\"should not be subjected to technical encumbrances or to hidden pitfalls and their policies should be construed liberally in their favor to the end that coverage is afforded to the full extent that any fair interpretation will allow.\\\" (App. 32).\\nUpon such findings of fact and conclusions of law, the court entered judgment for the Bernes in the amount of $20,000, together with attorney's fees and costs of $2,115.00, for a total judgment of $22,115.00. At the same time, the court dismissed a punitive damage claim by the Bernes against Aetna.\\nAetna appealed the money judgment and the Bernes cross appealed the dismissal of the punitive damage claim.\\nII. DISCUSSION\\nA. The Homeowners Policy\\nThe insurance policy issued to the Bernes by Aetna was a standard form homeowners policy in use across the width and breadth of the United States and its territories. The last revision of the particular language involved in this case, the special limitation on unscheduled jewelry to $500, appears to have taken place in the late 1960s and early 1970s. Orren v. Phoenix Ins. Co., 179 N.W. 2d 166, 168 (Minn. 1970). The policy in the case herein contains a September, 1970 revision of the HO-2 form, quoted earlier.\\nThis homeowners policy appears to have been given uniform acceptance by courts across the country. The special limitation on unscheduled jewelry loss to a maximum of $500 has been upheld in the few cases we have been able to locate. U.S. Liability Ins. Co. v. Bove, 347 So.2d 678 (Fla. Dist. Ct. App. 1977), held that the policy language was \\\"plain and unambiguous\\\" and \\\"no special construction or interpretation is required.\\\" It will be given \\\"that meaning which it clearly expresses\\\". Id at 680. See also Halford v. Republic Underwriters Ins. Co., 348 So.2d 87, 89 (La. Ct. App. 1977).\\nThe Territorial Court found that the policy itself was unambiguous. In so stating, we can only assume that the court considered the insurance policy \\\"susceptible of but one meaning\\\". Black's Law Dictionary 1366 (rev. 5th ed. 1979).\\nB. Applicable Law\\nWe are guided in this case by general principles of insurance law as developed by courts throughout the nation. Buntin v. Continental Ins. Co., 583 F.2d 1201, 1204 (3d Cir. 1978). This is because there are no rules of the common law as expressed in the restatements of law as approved by the American Law Institute, and in such an absence, we look to the law \\\"generally understood and applied in the United States . .\\\" 1 V.I.C. \\u00a7 4.\\nSince the policy in question is unambiguous, i.e. susceptible of only one meaning, the interpretation of that insurance contract is a matter of law for the court. Eastern Associated Coal Corp. v. Aetna Casualty & Surety Co., 632 F.2d 1068, 1075 (3d Cir.), cert. den., 451 U.S. 986 (1980). In such an analysis, the same case at the same page tells us that \\\"since the policy is a contract, the court's duty is to ascertain the intent of the parties as manifested in the language of the agreement.\\\"\\nBecause the contract is unambiguous, the rule that contracts are construed strictly against the insurer cannot apply. Eastern Associated Coal Corp., supra, at 1077, and cases cited. And, where a policy is unambiguous, \\\"the loss must be determined strictly in accordance with the terms of the insurance policies.\\\" American Alliance Ins. Co. v. Keleket X-Ray Corp., 248 F.2d 920, 928 (6th Cir. 1957).\\nC. The Decision Below\\nNotwithstanding the provisions just discussed, the court below made its ruling by strictly construing the terms of the policy against Aetna, finding that \\\"the insurance policy in question contains a hidden trap or pitfall in that the fine print takes away what is given in the large print.\\\" (App. 27). Thus, the court reasoned, under the doctrine of reasonable expectations, the rule of strict construction against Aetna applied. Such a statement is incorrect. Simple reference to the policy, (App. 10-13), shows that all provisions, coverage as well as exclusions and special limitations, are printed in the same typeface.\\nThe court also applied the rule of strict construction because it found the format of the policy inadequate. (App. 30-31). In that, the court fell into the error discussed in Viger v. Commercial Ins. Co. of Newark, N.J., 707 F.2d 769 (3d Cir. 1983). There, the Third Circuit noted:\\nWe have examined this policy and do not find the \\\"bewildering array of exclusions, definitions and conditions\\\" which apparently characterized the policy .\\nId. at 774.\\nThe Territorial Court also applied the rule of strict construction against Aetna because it found that the format of the policy was not adequate to demonstrate to the Bernes the coverage and limits thereon. (App. 30-31). We disagree. To paraphrase Viger, supra, at 774, we have examined the policy and do not find the confusion or hidden traps wherein the fine print takes away what is given in the large print. Nor do we find the format unusual. The policy defines the coverage generally in the first section, then defines specific exclusions and the special limitations of coverage. Each is delineated and no section is made to stand out on the page more than any other section.\\nAs Viger cautions, simply because one must refer to several different places in the policy to find the applicable exclusions and definitions does not warrant a failure to enforce its provisions. As Judge Sloviter wrote:\\nUnless insurance policies are to be drafted individually to cover each contract, which would increase the premiums considerably, the necessity- to integrate provisions from different parts of the policy seems inevitable.\\nId. at 774.\\nIn discharging its duty, the court should attempt to view the policy in its entirety, and give effect, if possible, to all of the contract. Treasure Craft Jewelers, Inc. v. Jefferson Ins. Co. of N.Y., 583 F.2d 650, 652 (3d Cir. 1978).\\nThe Third Circuit recently stressed that \\\"a court should read policy provisions to avoid ambiguities, if possible, and not torture the language to create them.\\\" Northbrook Ins. Co. v. Kuljian Corp., 690 F.2d 368, 372 (3d Cir. 1982) (quoting St. Paul Fire & Marine Ins. Co. v. United States Fire Ins. Co., 655 F.2d 521, 524 (3d Cir. 1980)). By analogy, that same reasoning applies in the case herein. A court should read a policy, if possible, in its entirety and should avoid seeking hidden traps and pitfalls where none exist. If the policy herein is read on such a basis, there can be no doubt that the court below erred in awarding the Bernes $20,000 in a jewelry theft loss in the face of the $500 limitation clearly stated therein.\\nIn so finding, we need not reach the question of the reasonable expectations of the insureds. Since the policy is not ambiguous, is not conflicting and does not contain any hidden traps or pitfalls, or take away with fine print that which is granted by the large print, such a doctrine does not apply. Indeed, the reasonable expectations doctrine \\\"is not a rule granting substantive rights to an insured when there is no doubt as to the meaning of policy language.\\\" Hallowell v. State Farm Mutual Ins. Co., supra at 927.\\nCONCLUSION\\nThe judgment of the Territorial Court is reversed and the matter remanded for the purpose of dismissal of the complaint and the award of attorney's fees and other costs, if warranted, and as provided by law. While this also disposes of the cross appeal of the refusal to grant punitive damages, we will affirm such refusal in order for the record to be complete in the event there are further proceedings on appeal. Even if the compensatory award were upheld, the Territorial Court correctly refused to make a further award of exemplary damages.\\nORDER\\nTHIS MATTER is before the Court on cross appeals of a judgment of the Territorial Court. The Court having filed its Memorandum Opinion of even date herewith, now therefore it is\\nORDERED:\\nTHAT the judgment of the Territorial Court awarding the sum of $20,000 plus $2,115 in attorney's fees and costs, to the plaintiffs/appellees and against the defendant/appellant, is REVERSED and REMANDED, with instructions to enter a dismissal, with prejudice, of the complaint; and\\nTHAT the Territorial Court's denial of punitive damages is AFFIRMED.\"}"
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+"{\"id\": \"1070444\", \"name\": \"MABEL DALE INGVOLDSTAD by and through her Attorney-in-Fact, DALE I. MEYER, Plaintiff v. KINGS WHARF ISLAND ENTERPRISES, INC., Defendant and CHASE MANHATTAN BANK, N.A., Intervenor\", \"name_abbreviation\": \"Ingvoldstad ex rel. Meyer v. Kings Wharf Island Enterprises, Inc.\", \"decision_date\": \"1983-08-02\", \"docket_number\": \"Civil No. 1983/36\", \"first_page\": 624, \"last_page\": \"633\", \"citations\": \"19 V.I. 624\", \"volume\": \"19\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:11:43.201723+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MABEL DALE INGVOLDSTAD by and through her Attorney-in-Fact, DALE I. MEYER, Plaintiff v. KINGS WHARF ISLAND ENTERPRISES, INC., Defendant and CHASE MANHATTAN BANK, N.A., Intervenor\", \"head_matter\": \"MABEL DALE INGVOLDSTAD by and through her Attorney-in-Fact, DALE I. MEYER, Plaintiff v. KINGS WHARF ISLAND ENTERPRISES, INC., Defendant and CHASE MANHATTAN BANK, N.A., Intervenor\\nCivil No. 1983/36\\nDistrict Court of the Virgin Islands Div. of St. Croix\\nAugust 2, 1983\\nMaria Tankenson Hodge, Esq., St. Thomas, Y.1., for plaintiff\\nJean-Robert Alfred, Esq., Christiansted, St. Croix, V.I., for defendant\\nJohn F. James, Esq., Christiansted, St. Croix, V.1., for intervenor\", \"word_count\": \"2940\", \"char_count\": \"17996\", \"text\": \"O'BRIEN, Judge\\nMEMORANDUM OPINION AND ORDER\\nThe plaintiff landlord (\\\"Ingvoldstad\\\") seeks in this action the for feiture and termination of the amended lease held by the defendant tenant (\\\"KWIE\\\") on the premises known as the King Christian Hotel in Christiansted. She asserts various breaches of the amended lease agreement and claims that they are of such a serious nature that they entitle her to possession of the hotel property, which has been in the hands of KWIE and its predecessor in interest under the amended lease in question and its antecedents since the mid-1960's. The draconian relief of forfeiture and termination will not be granted. However, the Court will fashion relief aimed at curing present and future defaults by the tenant in performance of required terms and conditions.\\nI. FACTUAL BACKGROUND\\nThis is not the first time that Ingvoldstad has sought termination of the amended lease under which KWIE is now the tenant. The amended lease is for a period of thirty years ending in July 1996, with a ten-year renewal option in favor of the tenant. At the present time, the annual rental is $19,800, increasing to $24,780 a year in 1986. These payments are \\\"net, net\\\" to the landlord, i.e., the tenant is responsible for all taxes and other expenses.\\nSuffice it to say that various tenants herein, have expended considerable sums, in the seven figures, on the property which is an operating hotel with a quality restaurant and other sub-tenants. It has been vastly enhanced in value since the 1960's, all through efforts of tenants.\\nOn the first occasion in which the plaintiff sought termination of the lease, that relief was refused. deMouy v. Ingvoldstad, 1979 St. T. & St. J. Supp. 188 (May 22, 1979), although Chief Judge Christian in his lengthy opinion required certain action to be taken by the tenant.\\nThere is no question in the Court's mind that from the first instance to the present, the landlord has sought to regain possession of the property because the landlord believes that the lease provides little or no economic benefit to herself. Such is her attitude that on November 3, 1980, she filed in this Court an action against the attorneys who represented the landlord in the creation of the lease which is the subject of this litigation. Ingvoldstad v. Estate of Warren Young, et al., 18 V.I. 346 (D.V.I. 1981). (The ultimate result in that case, a dismissal with prejudice, is reported at 95 F.R.D. 79.) In her complaint in that case, the plaintiff alleged that the leases \\\"were negotiated with terms substantially disadvantageous\\\" to the landlord, and that she has suffered damages consisting of the \\\"loss of the market value of her interest in said real property and loss of rentals and profits which otherwise would have been realized in the amount of $2,000,000.\\\"\\nStill retaining that viewpoint, the plaintiff again seeks termination of the lease in the case herein. She alleges that since 1979 the tenant is once again in default under the terms of the lease as to the amount of insurance coverage, the obligation to repair and maintain the premises, the obligation to provide the landlord with certain receipts for expenditures, and the obligation to properly apply to various governmental agencies for permits where appropriate. There are other claims of default as well. None of them includes nonpayment of rent.\\nSupporting the Court's view that all of the efforts of the plaintiff are directed at regaining control of the property she believes was too cheaply leased is the fact she has not availed herself of any alternate remedies available to her under Restatement of Property (Second), Landlord and Tenant, Section 13.1. These alternate remedies include the recovery of damages for tenant's nonperformance, and the recovery of the reasonable cost of performing the tenant's promise. As stated, her interest is less in holding the tenant's \\\"feet to the fire\\\" of performance, than in extinguishing all of the tenant's rights.\\nSince the amended lease provided in Paragraph 27 thereof for binding arbitration, the Court ordered a stay of proceedings herein, and submitted the matter to arbitration by a panel of three arbitrators selected in accordance with the amended lease. The arbitrators were directed to review each and every claim of default and make findings of fact as to each claim, reserving to the Court the ultimate issue whether any default warranted termination of the lease.\\nThe arbitrators took evidence for several days, and on May 17, 1983, their report was filed with the Court. Synthesized for the purposes of this portion of the opinion, but expanded upon later herein, the arbitrators' findings were:\\n(1) The insurance coverage on the property at that time did not meet the requirements of the amended lease.\\n(2) There was inadequate continuing maintenance of the property as required under the amended lease, although the structural integrity of the building has not been impaired, the maintenance required being \\\"superficial\\\" in nature. The existence of a present danger of structural damage to the building from moisture resulting from the chill water system was not established.\\n(3) The landlord waived any claims for default arising out of the requirement that the tenant keep the landlord informed as to plans, specifications, etc.\\n(4) The tenant failed to furnish the landlord with cost information respecting repairs, renovation or new construction. (The tenant reports to the Court that such information has now been furnished to the landlord.)\\n(5) The tenant failed to obtain governmental permits for reconstruction of the windows fronting King St., and for extension of the pier, but failure thereof has not resulted in any action being taken by such governmental agencies to nullify the tenant's own action.\\nAfter the receipt of the arbitrators' findings, the parties were given an opportunity to brief the question of what result should issue from those findings.\\nII. APPLICABLE LAW\\nA discussion of the legal factors in this case returns us to basic principles of the law of equity. The landlord seeks nothing less than the forfeiture of the lease by the tenant, and the landlord's own possession of the property. A basic principle is that equity abhors a forfeiture. Jones v. New York Guaranty & Ind. Co., 101 U.S. 622, 628 (1879). Applying that principle to the species of case before us at present, it has uniformly been held that courts, on the basis of equity, are vested with the discretion under some circumstances to decline to grant a lessor cancellation of a lease, although such right appears available to him. Hebert v. Brasseaux, 399 So.2d 778 (La. 1981). Likewise, in Food Pantry v. Waikiki Business Plaza, Inc., 575 P.2d 869, 875-876, (Haw. 1978), the Court recalled the following rule of equity:\\nAnd in the exercise of its general equity jurisdiction over forfeitures and penalties, it may afford relief against forfeiture for the breach of a covenant in a lease . (Citations omitted.)\\n. . . Where the lessee's breach has not been due to gross negligence, or to persistent and willful conduct on his part, and the lessor can reasonably and adequately be compensated for his injury, courts in equity will generally grant relief. This matter is addressed to the sound discretion of the trial court acting in accordance with established principles of equity, and its determinations will not be set aside unless manifestly against the clear weight of the evidence . (Citations omitted.)\\nPut another way, of course, forfeitures are not favored in equity, and unless the penalty is fairly proportionate to damages suffered by the breach, relief will be granted to prevent forfeiture when the lessor can, by compensation or otherwise, be placed in the same condition as if the breach had not occurred. \\\"The underlying principle is that a court of equity is a court of conscience and nothing will be permitted within its jurisdiction which is unconscionable.\\\" Hasden v. McGinnis, 387 S.W.2d 631, 633 (Tenn. 1964).\\nThe duty of this court then is to apply these principles to the situation at hand.\\nIII. DISCUSSION\\nFor purposes of discussion, we will take in turn each of the findings of the arbitrators which indicate a failure to comply with the amended lease.\\nA. Insurance Coverage\\nThe tenant is required by the amended lease to keep the premises insured for fire and extended coverage to an amount equal to eighty percent of the replacement costs of the premises. In the previous District Court proceeding between these parties involving this lease, the full value of the premises in 1978 was found to be $1,492,000, of which eighty percent would be $1,194,000. The tenant provided a policy of insurance for the $1,194,000. But this coverage has not been increased to account for the increase in construction costs in the territory, which the parties stipulated at the arbitration hearing was not less than forty percent since 1978. Such an increase would then reflect a present day full value of $2,088,800 of which eighty percent would be $1,671,040.\\nOther partially overlapping coverage had been provided by a subtenant, but that fact does not alter the conclusion that the insurance coverage in 1983 was found by the arbitrators to be deficient.\\nHas the landlord been damaged by the inadequate insurance coverage? Thankfully, and gratefully, no. How can the landlord be placed \\\"in the same condition as if no breach had occurred?\\\" Hasden, supra. The Court finds that the insurance coverage must be such that it will automatically take into account future increases in replacement costs. This can best be accomplished by adopting the proposal included in the letter from Young-Clark Insurance, Ltd. of May 26,1983 to the tenant, which was attached to defendant's memorandum filed with the Court on June 1,1983. Such coverage would meet the requirements of the amended lease and cure the breach before any damage is done.\\nThere would not, then, be any reason for forfeiture for inadequacy of insurance.\\nB. Repairs and Maintenance\\nThe arbitrators found that the program of ongoing repairs and maintenance by the tenant was inadequate. It does not exhibit \\\"top quality\\\" as required in Paragraph 18 of the amended lease. The inadequacy particularly involves the condition of the gutters and shutters, penetration of the building walls, and routine painting. The arbitrators stressed that this condition does not impair the structural integrity of the building, being \\\"superficial in nature\\\".\\nThe arbitrators also inquired into the chill water system which had involved so much of Judge Christian's time in his May 22, 1979, opinion in the earlier case. But they likewise did not find any structural damage by reason of the moisture which accumulates. This, of course, does not free the tenant of responsibility for all repairs associated with this moisture accumulation, as well as the other repairs and routine maintenance mentioned above.\\nHas the landlord been damaged by this failure to repair and maintain the premises adequately? Certainly insofar as it would, if permitted to continue, cause severe deterioration to the premises and its consequent value, the landlord is damaged. To date, according to the arbitrators, the evidence of structural damage is lacking. How then, can we fashion relief for the landlord short of forfeiture?\\nThe Court will direct the tenant to prepare and implement a comprehensive program of repair and maintenance. The preparation of that written program shall be completed not later than thirty days from the date of this opinion. Its implementation shall commence not later than sixty days from the date of this opinion. A copy of the program of repair and maintenance shall be served on the landlord.\\nSince paragraph 25 of the amended lease gives the landlord the right of entry to inspect the premises, the landlord will be in the position to ascertain the degree of compliance with the lease in these respects. If, in the landlord's view, there is less than full compliance, the landlord will have available the right of arbitration to further determine whether in fact there is full compliance. Repeated failure to comply with the repair and maintenance conditions of the lease could ultimately deprive the tenant of the equity protection of this court, and lead to the forfeiture so ardently sought by the landlord.\\nC. Cost Information and Receipted Bills\\nInterlocked with the duty to repair and maintain the premises is the right of the landlord to review information developed by the tenant in conjunction with that obligation. The arbitrators found that the tenant had not complied with the requirement to keep the landlord informed. Tenant, after the arbitrators' findings had been filed, communicated such information to the landlord. Despite the strong argument of landlord's counsel that this has severely damaged the landlord, the Court cannot find this to be the case.\\nCertainly, as part of the program to be developed under the repair and maintenance requirements discussed above, the tenant can include an acceptable plan to meet the duty to inform. Again, failure to do so could deprive the tenant of the protection of a court of equity, resulting in the termination of the lease.\\nD. Obtaining Necessary Permits\\nThe arbitrators found that no permits had been applied for or issued in connection with the reconstruction of the windows fronting King St., nor were permits applied for or issued in connection with work on the pier. It appears that with respect to the work on the pier, it was treated simply as the repair of an existing damaged structure by the Coastal Zone Management Office of the Virgin Islands Department of Conservation and Cultural Affairs.Tt is hard to imagine the Army Corps of Engineers bringing an action regarding the work performed on that pier. Certainly it has not indicated any plan to contest the pier expansion.\\nAs to the window reconstruction on King St., various officials of the Virgin Islands government have been aware of the reconstruction for an extended period of time, and they have not challenged the result. One or more of them testified at the arbitration hearing, and there is no indication of any intent to contest the window reconstruction.\\nMust the Court direct the tenant to return the pier to its original size, and return the windows to their original shape and condition? Hardly. The landlord has not been damaged by the tenant's action, notwithstanding the violation of the amended lease's terms. If in the future any governmental entity challenges these charges, the onus will fall on the tenant. If the official court records are clear on one thing, it is that the landlord was not part of the decision to take such action. The landlord enjoys the right of indemnity.\\nThe violations in this regard are not such as should trigger a forfeiture of the lease.\\nCONCLUSION\\nThe Court finds that to permit the forfeiture and termination of the amended lease would result in unconscionable financial loss to the tenant and a concomitant unconscionable financial gain to the landlord. There is no issue here of nonpayment of rent or taxes. It is clear that the property has been substantially increased in value by efforts of various tenants. Indeed, the expenditure of substantial funds by the tenants for improvements to the property was contemplated in the amended lease. A hotel and shops exist where once there were none. A reputable restaurant affiliated with a national chain exists on the property, further enhancing its value. The tenant has survived and operated in the face of the near depression which confronts St. Croix's hotel industry. The situation herein is much akin to that described in Tollius v. Dutch Inns of America, Inc., 244 So.2d 467, 472-473 (Fla. 1970). And like that court, we close by adopting the following principle enunciated in 27 Am.Jur.2d, Equity \\u00a7 140, page 675:\\n. . . Where the purpose or object of the suit is to accomplish something which will produce inequitable or unconscionable result, equity will not grant affirmative relief.\\nFor the reasons cited herein, we will deny the landlord the forfeiture and termination of the lease. Rather, an order will enter which will grant relief of the nature discussed herein, admittedly short of forfeiture, but within the guidelines of the equitable principles spelled out in this opinion.\\nJUDGMENT\\nThis matter is before the Court for disposition, the arbitrators having filed their findings of fact. The Court having filed its Memorandum Opinion of even date herewith, and the premises considered, now therefore it is\\nORDERED, ADJUDGED AND DECREED:\\n1. THAT plaintiff's request for termination of the lease be and the same is hereby DENIED.\\n2. THAT the defendant acquire insurance coverage of an amount equal to eighty percent of the present replacement value of the property, with an annual inflation increase factor, within ten days of the date hereof.\\n3. THAT the defendant prepare a program of comprehensive repair and maintenance within thirty days of the date hereof, and implement such program within sixty days of the date hereof.\\n4. THAT the plaintiff file an application for an award of attorneys' fees within ten days of the date hereof, or be barred therefrom.\\nThe intervenor entered this action to protect its interest as the mortgagee of the property subject to the lease.\\nThough a St. Croix case, it is reported in the St. Thomas-St. John Supplement under the practice at that time of reporting the case where the judge was resident.\"}"
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+"{\"id\": \"1070520\", \"name\": \"LISTON MONSANTO, Petitioner v. LEROY A. QUINN, Commissioner of Finance, and GOVERNMENT EMPLOYEES SERVICE COMMISSION, Respondents\", \"name_abbreviation\": \"Monsanto v. Quinn\", \"decision_date\": \"1982-06-21\", \"docket_number\": \"Civil No. 79-351\", \"first_page\": 168, \"last_page\": \"171\", \"citations\": \"19 V.I. 168\", \"volume\": \"19\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:11:43.201723+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LISTON MONSANTO, Petitioner v. LEROY A. QUINN, Commissioner of Finance, and GOVERNMENT EMPLOYEES SERVICE COMMISSION, Respondents\", \"head_matter\": \"LISTON MONSANTO, Petitioner v. LEROY A. QUINN, Commissioner of Finance, and GOVERNMENT EMPLOYEES SERVICE COMMISSION, Respondents\\nCivil No. 79-351\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nJune 21, 1982\\nBrenda J. Hollar, Esq., St. Thomas, V.Ifor petitioner\\nRobert L. King, Esq., St. Thomas, V.I., for respondent Government Employees Service Commission\\nJesse M. Bethel, Jr., Esq., Assistant Attorney General (Department of Law), St. Thomas, V.I., for respondent Commissioner of Finance\", \"word_count\": \"887\", \"char_count\": \"5415\", \"text\": \"CHRISTIAN, Chief Judge\\nMEMORANDUM AND ORDER\\nThis cause is before us at this time on reversal and remand from the U.S. Court of Appeals for the 3rd Circuit. The sole issues on remand are, the amount of back pay, attorneys' fees, and costs to which petitioner Liston Monsanto is entitled.\\nAs is too often the case, the attorneys whose charge, in part, is the protection of the public fisc, have offered the Court little or no guidance or aid in making an appropriate determination. Thus, counsel for respondent Government Employees Service Commission, has submitted nothing with respect to the issues on remand, after having been served with copies of documents submitted on behalf of petitioner, whereas, the attorney representing the Commissioner of Finance and therefore, the Government of the Virgin Islands, who was not served with the documents submitted on behalf of petitioner, has been content to limit his efforts to an unduly caustic challenge of the issue of attorneys' fees. The Court, of course, will have to fill the breach.\\nThe Court fully agrees with counsel for the Government of the Virgin Islands, that petitioner's counsel was indeed sorely remiss in failing to serve copies of her moving papers on the Department of Law, acting in the person of the Assistant Attorney General in charge of this litigation. For reasons too obvious to require mention, the Court considers this failure to be a grave dereliction of duty by counsel for petitioner. The Court will not, however, penalize the petitioner himself by denying him indemnification for attorneys' fees and costs, but counsel is forewarned that a repeat of this might well lead to penalties directed at counsel rather than at the client.\\nTurning first to the matter of costs, complete reimbursement will be allowed, although items such as cost of transcripts and attorneys' travel are not necessarily taxable as costs. Because they are regarded as being absolutely necessary in this instance, however, they will be allowed.\\nWith respect to the claim for attorneys' fees, we begin by pointing out a deficiency of the affidavit submitted in support of this claim. It is not that the affidavit fails to state \\\".. . the actual amount charged and paid . . .\\\" but rather, because it gives no inkling of the fee arrangement between counsel and client. This shortcoming apart, the Court considers the hourly rate of $60.00 to be well within reason. We see no reason to question counsel's total figure in the \\\"time spent\\\" category. We bear in mind, however, that indemnification need not be one hundred percent, and in the instant case, we perceive no reason why indemnification should be total. Giving consideration to all relevant factors we will order indemnification in the sum of $2,650.00 which approximates seventy-five percent of the amount claimed.\\nFinally, we turn to the matter of lost wages to which petitioner is entitled. The record makes clear that the period of suspension was from November 17, 1979, to February 18, 1980. Petitioner erroneously sees this as a suspension covering 90 working days. Not so. The suspension was for 90 calendar days. Consequently, petitioner's calculation of the back pay due, is wrong. On the basis of the Court's computation we find the amount due as back pay to be $4,265.94.\\nPetitioner correctly claims that he is entitled to receive the amount he lost by reason of the change in the date on which he would become entitled to an annual step increment, assuming the proper rating. His incremental date was changed by reason of the 90 days' suspension from June 17, to October 16th. Because our mathematical computation differs from that of petitioner, our finding is that for the year 1980, petitioner suffered a loss of $1,106.66 and a loss of $194.66 in 1981, a total of $1,301.32. We make no allowance for a 1982 loss as we are of the view that such loss has not yet been sustained. We will direct, however, that in order to avoid further losses than are here allowed, the Government, now that the suspension has been disallowed, return to petitioner's former date of increment, June 17, of each year, or devise some other means of bringing petitioner's salary to the level it would have been had not the suspension with which we are here concerned been imposed.\\nORDER\\nThe premises considered and the Court being fully advised,\\nIT IS ORDERED that petitioner Liston Monsanto, be reimbursed for costs in the sum of $1,051.91 and that he be indemnified for attorneys' fees in the amount of $2,650.00;\\nFURTHER ORDERED that petitioner be paid as and for loss wages (back pay) $4,265.94;\\nFURTHER ORDERED that petitioner recover the sum of $1,301.32, representing loss incremental pay raises; and,\\nIT IS FURTHER ORDERED that appropriate steps be taken, consistent with the foregoing memorandum, to eliminate any further loss of incremental pay raises by petitioner for years subsequent to 1981.\"}"
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--- /dev/null
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+"{\"id\": \"1071655\", \"name\": \"ROBERT W. HAGGLUND, SHIRLEY KISIEL, SHIRLEY KISIEL on behalf of THAD KISIEL, AUDREY RULZ, KAY SAMUELS, MADELINE LAVORA and RAY BROWN, Plaintiffs v. AMERICAN MOTORS INN, SECOND COLUMBUS CORPORATION, general partners, d/b/a CROWN MOUNTAIN APARTMENT ASSOCIATES and ROGER F. MORAN, EVELYN J. MORAN, d/b/a MORAN REALTORS, Defendants\", \"name_abbreviation\": \"Hagglund v. American Motors Inn\", \"decision_date\": \"1981-03-04\", \"docket_number\": \"Civil No. 1980-24\", \"first_page\": 376, \"last_page\": \"380\", \"citations\": \"18 V.I. 376\", \"volume\": \"18\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T18:48:00.909728+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ROBERT W. HAGGLUND, SHIRLEY KISIEL, SHIRLEY KISIEL on behalf of THAD KISIEL, AUDREY RULZ, KAY SAMUELS, MADELINE LAVORA and RAY BROWN, Plaintiffs v. AMERICAN MOTORS INN, SECOND COLUMBUS CORPORATION, general partners, d/b/a CROWN MOUNTAIN APARTMENT ASSOCIATES and ROGER F. MORAN, EVELYN J. MORAN, d/b/a MORAN REALTORS, Defendants\", \"head_matter\": \"ROBERT W. HAGGLUND, SHIRLEY KISIEL, SHIRLEY KISIEL on behalf of THAD KISIEL, AUDREY RULZ, KAY SAMUELS, MADELINE LAVORA and RAY BROWN, Plaintiffs v. AMERICAN MOTORS INN, SECOND COLUMBUS CORPORATION, general partners, d/b/a CROWN MOUNTAIN APARTMENT ASSOCIATES and ROGER F. MORAN, EVELYN J. MORAN, d/b/a MORAN REALTORS, Defendants\\nCivil No. 1980-24\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nMarch 4, 1981\\nCharlotte L. Poole Davis, Esq., St. Thomas, V.Ifor plaintiffs\\nRichard E. Daley, Esq. (Isherwood, Barnard & Diehm), Christiansted, St. Croix, V.I.,/or defendants\", \"word_count\": \"1111\", \"char_count\": \"6648\", \"text\": \"CHRISTIAN, Chief Judge\\nMEMORANDUM AND ORDER\\nThis case is before the Court on the motion of the defendants for an order compelling the plaintiffs to pay all withheld rentals due to the defendants to defendants' representative, who would place the monies in an interest-bearing special account, or in the alternative, compel the plaintiffs to deposit said monies into the Court Registry. This motion will be granted.\\nAlso before the Court is the plaintiffs' motion to extend the time to reply to the defendants' motion. The plaintiffs' motion will be granted in part and denied in part.\\nThis action was filed by the plaintiffs on January 29, 1980, alleging that, inter alia, the defendants failed to keep the premises, that are occupied by the plaintiffs as tenants, in good repair, and in a safe and sanitary condition, and that there has been a failure to provide the tenants with consumable and usable water. The plaintiffs contend that such actions by the defendants constitute a breach of their implied warranty of habitability.\\nThe defendants contend that all but one of the plaintiffs ceased paying any part of their monthly rental obligation on or before the date this law suit was filed. The defendants claim that as of February 12,1981, the plaintiffs owed the following sums in overdue rentals:\\nR. Hagglund, Apt. E16 $4,139.40\\nS. Kisiel, Apt. E7 $5,010.30\\nR. Brown, Apt. E3 $4,626.40\\nK. Samuels, Apt. A17 $2,673.60\\nM. Lavora (no longer a tenant, as of March of 1980) $ 655.00\\nA. Ruiz 0.00\\nThe defendants argue that the alleged withholding of rent by the tenants is a self-help remedy not authorized by the laws of the Virgin Islands. They contend that even if the tenant plaintiffs do have a right to withhold rent from the defendants, for the breach of the implied warranty of habitability that the plaintiffs have alleged in their pleadings, the plaintiffs do not have the right to simply retain their rent, but must make deposits of their rent into a special account or the Court Registry, until this matter is disposed of on the merits. We agree.\\nThere is no Virgin Islands statute which addresses itself to the issue of rent withholding by tenants for alleged breaches committed by a landlord. Accordingly, pursuant to the mandate of 1 V.I.C. \\u00a7 4, \\\"[t]he rule of the common law, as expressed in the restatements of the law approved by the American Law Institute . . . [are] the rules of decision in the courts of the Virgin Islands in cases to which they apply . . . The Restatement (Second) of Property, Landlord and Tenant \\u00a7 11.3 (1976) is applicable to the issues in this case. It provides the following in pertinent part:\\n\\u00a7 11.3 Rent Withholding\\nIf the tenant is entitled to withhold the rent, the tenant, after proper notice to the landlord, may place in escrow the rent thereafter becoming due until the default is eliminated or the lease terminates, whichever first occurs .\\nApplying \\u00a7 11.3 to the facts of this case, the tenant plaintiffs are entitled to withhold rent for the breach of the implied warranty of habitability that they have alleged in their complaint. See The Restatement (Second) of Property, Landlord and Tenant \\u00a7 5.5 and 5.4(2)(d). The tenants will lose their right to withhold the rent at such time as the defendants factually establish to the Court's satisfaction that the alleged breach of the implied warranty of habitability has been cured, or is nonexistent. The Court finds that the complaint gives the defendants \\\"proper notice\\\" of their alleged default, and therefore the notice requirement of \\u00a7 11.3 has been satisfied. The tenants, however, cannot continue to simply retain their rent. They must deposit all overdue rental payments, as well as deposit all rental payments as they become due in the future, in an interest-bearing escrow account at a banking institution in the Virgin Islands selected by the defendants.\\nTurning to the motion of the plaintiffs to extend the time to reply to the defendants' motion, the Court will deny that motion insofar as the plaintiffs will not be given an opportunity to submit a memorandum discussing the legal issues, such issues having been already discussed and decided in this memorandum. However, the plaintiffs will be given twenty (20) days from the date of this order to submit any proof they may have regarding the amount of rental payments that are allegedly due and owing to the defendants, if they dispute the amounts that the defendants allege are due. If no submission is made by the plaintiffs within twenty (20) days, the Court will order the plaintiffs to deposit the sums the defendants have alleged are due and owing, as well as any sums that have come due after February 12, 1981, in the escrow account to be established by defendants. If the plaintiffs fail to make the required deposits within thirty (30) days, or if the plaintiffs subsequently fail to deposit their rental payments as they become due, the Court may consider dismissal of the plaintiffs' action.\\nORDER\\nThe premises considered and the Court being fully advised,\\nIT IS ORDERED that the motion of defendants to compel the plaintiffs to deposit all withheld rentals due to the defendants in an interest-bearing escrow account at a banking institution in the Virgin Islands selected by the defendants, be and the same is hereby, GRANTED;\\nIT IS FURTHER ORDERED that the plaintiffs have twenty (20) days from the date of this order to submit any evidence they may have disputing the amount of rental payments the defendants have alleged are due and owing.\\nSection 5.5(4) provides the following in pertinent part:\\n\\\"If the failure of the landlord to fulfil an obligation . makes the leased property unsuitable for the use contemplated by the parties and the landlord does not correct his failure within a reasonable time after being requested to do so, the tenant is entitled to the remedies provided in section 5.4.\\\"\\nSection 5.4(2)(d) provides that one of the tenant's remedies is to continue the lease and withhold the rent \\\"in the manner and to the extent prescribed in \\u00a7 11.3.\\\"\"}"
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+"{\"id\": \"1071664\", \"name\": \"UNITED STATES OF AMERICA, Plaintiff v. JAMES J. MOORHEAD, Defendant; GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. JAMES J. MOORHEAD, Defendant\", \"name_abbreviation\": \"United States v. Moorhead\", \"decision_date\": \"1981-06-09\", \"docket_number\": \"Criminal No. 81-30; Criminal No. 81-29\", \"first_page\": 507, \"last_page\": \"515\", \"citations\": \"18 V.I. 507\", \"volume\": \"18\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T18:48:00.909728+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"UNITED STATES OF AMERICA, Plaintiff v. JAMES J. MOORHEAD, Defendant GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. JAMES J. MOORHEAD, Defendant\", \"head_matter\": \"UNITED STATES OF AMERICA, Plaintiff v. JAMES J. MOORHEAD, Defendant GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. JAMES J. MOORHEAD, Defendant\\nCriminal No. 81-30\\nCriminal No. 81-29\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nJune 9, 1981\\nRobert Tignor, Esq., Assistant United States Attorney (Office of the United States Attorney), St. Thomas, V'.L, for plaintiff\\nLeonard Francis, Esq., St. Thomas, V.I., for defendant\", \"word_count\": \"2494\", \"char_count\": \"14704\", \"text\": \"SILVERLIGHT, Judge, Sitting by Designation\\nMEMORANDUM AND ORDER\\nDefendant James J. Moorhead was convicted by a jury on May 7, 1981, in the District Court of the Virgin Islands, Division of St. Thomas, of eight counts of mail fraud in violation of 18 U.S.C. \\u00a7 1341, one count of Interstate transportation of fraudulently obtained securities, 18 U.S.C. \\u00a7 2314, and one count of obtaining money by false pretenses, 14 V.I.C. \\u00a7 834(2).\\nDefendant Moorhead moved this Court for a Judgment of Acquittal pursuant to Rule 29 Fed. R. Crim. P. or in the alternative a new trial pursuant to Rule 33 Fed. R. Crim. P. He stated nine grounds for such relief. None of them is sufficient on either basis, and defendant's motion was denied in toto in an oral ruling. The Court, however, at the time of so ruling indicated its intention to supplement its oral ruling by a written memorandum. This writing serves that purpose.\\nGround one complains that the Court erred in severing and not dismissing Counts II and III of the Territorial Information, Criminal No. 81-29. Defendant makes no allegation how a distinction between severance and dismissal could prejudice this trial. Such a motion is appropriate for a potential future trial on those two counts. As the jury heard no evidence on the severed counts, whether they were severed or dismissed had absolutely no effect on this trial.\\nGround two states that the Court erred in excluding defendant's proposed voir dire questions. The defendant proposed one hundred twenty-eight questions for voir dire. Many of these were covered in the questions asked by the Court, and the rest were irrelevant. This Court notes that defendant does not point to any particular question the omission of which is claimed to be error. As the questions asked by the Court in voir dire were reasonably designed to elicit any prejudice of the jurors and indeed did elicit information of juror bias in several instances, there was no prejudice to the defendant in not reading his lengthy list of proposed voir dire questions. The Court has broad discretion in the conduct of the voir dire, subject to basic notions of fairness. See Fed. R. Crim. P. Rule 24(a), United States v. Segal, 534 F.2d 578, 581 (3d Cir. 1976); United States v. Starks, 515 F.2d 112, 124-25 (3d Cir. 1975); United States v. Furey, 491 F.Supp. 1048, 1053-54 (E.D. Pa. 1980); Kiernan v. Van Schaik, 347 F.2d 775, 778 (3d Cir. 1965). Defendant has made no specific allegation of unfairness to him deriving from the exclusion or inclusion of any question on voir dire, and this Court finds none.\\nGround three claims that juror Mrs. Dora Ryan failed to disclose material and vital information as to her knowledge of the Moorhead family. Defendant claims that if he knew this information at the time of trial he may well have used one of his peremptory challenges to strike Mrs. Ryan from the jury.\\nLaura Moorhead, the defendant's sister, testified at a post-trial evidentiary hearing. She stated that Dora Ryan had worked for her in a nursery school operated by Mrs. Moorhead for six weeks at the end of 1970 and beginning of 1971. Mrs. Ryan was let go after six weeks because she was \\\"not one of my happy people\\\", to use Mrs. Moorhead's words. She declined to say that she fired Mrs. Ryan; Mrs. Moorhead stated that she acted in a manner so that no hard feelings would result. Mrs. Moorhead was unable to say whether Mrs. Ryan harbored any ill feelings towards her. She and Mrs, Ryan had had no contact since Mrs. Ryan's employment ended.\\nDefendant claims that Mrs. Ryan should have disclosed this information at voir dire. However, there was no showing that Mrs. Ryan even knew that Laura Moorhead was James Moorhead's sister.\\nEven if Mrs. Ryan had known that Mrs. Moorhead was the defendant's sister, there is no showing that she concealed this fact. At voir dire prospective jurors were asked several questions concerning their relationship to the defendant: whether they were related to him or were a close friend; whether they had been in close contact with him as a result of business or employment; whether they would disbelieve or believe what the defendant or any other witness would say simply because of his identity. None of these questions went to the specific issue of whether anyone had worked with a member of defendant's family. As the attorney for the government noted, none of the one hundred and twenty-eight voir dire questions proposed by the defendant addressed this specific question either. One prospective juror noted at voir dire that she presently worked with the defendant's brother, and was subsequently dismissed for cause. However, this Court can well believe that even had she remembered it, the fact that 10 years ago she had worked briefly for defendant's sister may well have not seemed significant to Mrs. Ryan.\\nThe question remains, though, whether such a relationship was significant per se. Defendant points to Government of the Virgin Islands v. Bodle, 427 F.2d 532 (3d Cir. 1970), 7 V.I. 507, for analogy. In that case, a juror's sister had been the victim of a forcible rape and murder four years before the trial in which he sat as juror. The charge was forcible rape; he did not respond to general questions intended to elicit information as to possible prejudice regarding the crime of rape. The Court of Appeals in that case found that the undisclosed information created a substantial possibility that the juror was not capable of objective determination of the facts of the case.\\nHere, Mrs. Ryan's undisclosed connection with the Moorhead family is too slight, tenuous, and innocent to create any real possibility of prejudice on her behalf. Indeed, defendant has not advanced any evidence of prejudice. Mrs. Moorhead noted that the termination of Mrs. Ryan's employment was accomplished so that no hard feelings would result.\\nThis Court did not allow juror Ryan to be examined. After hearing Mrs. Laura Moorhead's testimony, the Court found that there was insufficient basis for a reasonable inference that Mrs. Ryan was incapable of making an impartial determination. To require a juror to be cross-examined concerning possible bias without such a basis would invite a disruption of the jury process. This is especially so in an insular community such as the Virgin Islands. Post-trial examination of jurors would proliferate, and jury service would be discouraged. Courts do not look with favor upon the raising of questions of possible prejudice on the part of a juror after conviction. Williams v. United States, 418 F.2d 372, 377 (10th Cir. 1969). Here there was neither a showing of likely prejudice against the defendant on the part of the juror in question, nor a showing of any concealment on the part of the juror. At a post-trial hearing, the presumption is that the jury has been impartial and unbiased. United States v. Robbins, 500 F.2d 650, 653 (5th Cir. 1974); see also Beck v. Washington, 369 U.S. 541, 558 (1962). As defendant has not overcome that presumption, examination of juror Evans was unnecessary.\\nGround four of the motion complains that the Court did not rule on motions for Brady material and discovery under Rule 16 Fed. R. Crim. P. It is the recollection of the Court that it did rule orally on this motion before trial, denying it. In any case, there was a pre-trial omnibus hearing at which the government turned over relevant material to the defendant. It is not clear what material the defendant believes he did not receive. He has not alleged that there was any material presented at trial that he should have received prior to trial and did not. As defendant alleges no prejudice on this point, and the Court can see no prejudice, there is no merit to this ground even if a formal ruling on the discovery motion was not made.\\nGround five states that certain records of Chicago Bridge and Iron were admitted without proper authentication under Rule 803(6) of the Federal Rules of Evidence. Defendant claims that:\\n. . the source of information or the method or circumstances of preparation indicated lack of trustworthiness by Ms. Josephine Jajch and Mr. Axel Heimer with respect to the records from Public Works Department and Property and Procurement.\\nThe Court had the opportunity to observe both Ms. Jajch and Mr. Heimer on the witness stand, and finds that they were eminently qualified to authenticate the particular records they were called upon to authenticate, as they held positions which brought them into close contact with such records. Also, the credibility of both these witnesses was excellent. Defendant has not explained his grounds for alleging lack of trustworthiness on the part of these witnesses\\u2014 and the Court finds none.\\nGround six complains that it was error to allow the jury to look at the evidence before the end of trial. At a recess before closing arguments documents admitted into evidence were allowed to go into the jury room. This procedure was adopted to allow the jury to become familiar with the documents. The jurors had repeatedly been instructed not to discuss the case amongst themselves. The simple viewing of documentary evidence before the end of trial is quite proper. Indeed, at the time defendant did not object to the procedure.\\nGround seven complains of the Court's refusal to allow the FBI agent witness to testify concerning a grant of immunity to Mr. Sammy Harthman, Sr. The Court saw no relevance to this information at trial, and continues in this opinion. Harthman was the recipient of services in the form of labor on two water tanks for which the Government of the Virgin Islands paid. This work was the subject matter of the prosection. Harthman was not called as a witness by either government or defendant. Defendant has not presented any argument to show that the question of whether Harthman was given immunity or not has a bearing on the merits of this case.\\nGround eight complains of the removal of the signature and date on the Government of the Virgin Islands information (Criminal No. 81-29) which was sent to jury for their deliberations. Criminal prosecution cannot properly be instituted unless an indictment or information is signed by an attorney for the government. Rule 7(c) Fed. R. Crim. P., Wright, FEDERAL PRACTICE AND PROCEDURE, Criminal \\u00a7 123 (1969), In re Grand Jury January 1969, 315 F.Supp. 662 (D.C. Md. 1970). Here the information was signed by the United States Attorney. Before trial, two counts of the Government of the Virgin Islands Information were severed. In order that the jury would not be prejudiced by considering these counts, they were eliminated from the xerox copy of the information presented to the jury. The signature of the U.S. Attorney was eliminated also, as it had appeared on the second page of the information, and to include it would have made apparent the fact that material was excised.\\nThe purpose of the signature requirement, to assure that only the government institute criminal prosecutions, was fulfilled in this case. The attorney for the defendant was shown the redacted information before it was presented to the jury, and did not make any objection at that time. The Court can envision no prejudice to defendant from the fact that the jury did not see the U.S. Attorney's signature on the information presented to them.\\nGround nine claims that in light of Parr v. United States, 363 U.S. 370 (1960) a judgment of acquittal should be entered. At trial defendant's attorney argued from Parr for the proposition that the mailing of a thing which the law required to be mailed was not mail fraud, noting that Mr. Moorhead was required to sign the labor reports and send them to Chicago Bridge and Iron (\\\"CBI\\\"). However, in Parr there was no fraud in the amount of tax assessments sent, rather the fraud was in the use of the monies received. Here the allegation was that the contents of the forms Moorhead signed and sent to CBI were fraudulent. A \\\"legally compelled\\\" mailing that is fraudulent in itself is not insulated from mail fraud prosecution. Such a mailing fulfills the requirement that a mailing be \\\"a part of the execution of the fraud\\\" or, as the Court wrote in Pereira v. United States, 347 U.S. 1, 8 (1954), \\\"incident to an essential part of the scheme\\\", before the mail fraud statute can be applied.\\nAnother possible claim under Parr is that the fraud was completed before the mailings were sent. In Parr, defendants had fraudulently obtained gasoline and service station products by use of credit cards. The mailing of the invoices from the oil company were found insufficient to invoke mail fraud. The court in Parr followed Kann v. United States, 323 U.S. 88 (1944) in finding that the scheme had reached fruition before the mailings and that the mailings were not for the purpose of executing the scheme. See also United States v. Maze, 414 U.S. 395 (1974).\\nThe mailings complained of in the information in the instant case fall into two categories: one, invoices from CBI to the Government of the Virgin Islands, and two, labor reports signed by Moorhead and sent to CBI. Both forms of mailing contributed to the process of having the Government of the Virgin Islands pay for the building of tanks for a private individual on his land. Unlike the credit card situation, where an anonymous deceiver obtains services or goods and vanishes, never caring who eventually pays for his fraud, here the obtaining of services from CBI was only a first step in the scheme; the essence of the scheme was to have the Government of the Virgin Islands pay for the services of CBI for Mr. Harthman. Inasmuch as the tanks were stationary, the scheme was incomplete until the work on them was actually paid for by the Virgin Islands Government. For this to be accomplished, it was necessary that the work sheets be sent to CBI, and that the invoices be sent back to the Government of the Virgin Islands. These mailings were thus in furtherance of an ongoing plan to defraud.\\nORDER\\nFor the foregoing reasons,\\nIt is hereby ORDERED\\nThat defendant's motion in the alternative for a judgment of acquittal or a new trial be, and hereby is, DENIED.\\nSubsequent to this trial the Government moved for dismissal of Counts II & III of Criminal No. 81-29. This motion was granted.\"}"
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--- /dev/null
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+"{\"id\": \"1075094\", \"name\": \"WALTER FEDDERSON CONSTRUCTION, INC., Plaintiff v. HENRY T. MILLER, Defendant\", \"name_abbreviation\": \"Walter Fedderson Construction, Inc. v. Miller\", \"decision_date\": \"1980-10-27\", \"docket_number\": \"Civil No. 457/1980\", \"first_page\": 134, \"last_page\": \"138\", \"citations\": \"17 V.I. 134\", \"volume\": \"17\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:17:13.260687+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WALTER FEDDERSON CONSTRUCTION, INC., Plaintiff v. HENRY T. MILLER, Defendant\", \"head_matter\": \"WALTER FEDDERSON CONSTRUCTION, INC., Plaintiff v. HENRY T. MILLER, Defendant\\nCivil No. 457/1980\\nTerritorial Court of the Virgin Islands Div. of St. Thomas and St. John\\nOctober 27, 1980\", \"word_count\": \"1204\", \"char_count\": \"7452\", \"text\": \"HODGE, Judge\\nMEMORANDUM\\nThis matter is before the court on motion by the defendant for an award of costs and attorney's fees. The defendant initially retained counsel, George M. Miller, Esq., who prepared the pleadings and commenced discovery on his behalf, but because of a dispute concerning fees, the defendant terminated those services. Thereafter the defendant conducted the litigation pro se until commencement of the jury trial, at which time the court appointed Legal Services of the Virgin Islands, a publicly-funded agency that provides civil legal services for certain qualified indigent persons, to assist him. For the following reasons the defendant, the prevailing party, will be awarded a contribution towards his costs and attorney's fees.\\nCOSTS\\nThe defendant has requested indemnification from the plaintiff for court costs totalling $2,250.00. The court finds this sum to be exhorbitant and, therefore, certain costs will be disallowed. These costs include $1,670.00 for fees for three witnesses, and $410.00 for photographic work. Before these expenditures were incurred by the defendant, he should have given prior notice and should have obtained prior approval by the court as to their necessity and reasonableness, or failing this, at least he should have presented some evidence as to the reasonableness of such costs. See, 5 V.I.C. \\u00a7 541(a) and Quetel v. Querrard, 6 V.I. 214 (1968). Since neither notice, approval, nor reasonableness has been established, these costs totalling $2,080.00 will be disallowed.\\nThe other costs that the defendant desires to have taxed against the plaintiff are $30.00 for subpoena fees, $125.00 for xerox, transportation, window exhibit, etc., and $15.00 for one Public Works Inspection Report. Recovery of these costs totalling $170.00 will be granted.\\nATTORNEY'S FEES\\nSection 541(b) of Title 5 of the V.I. Code authorizes the court in its discretion to award an attorney's fee contribution to indemnify the prevailing party for a fair and reasonable portion of his attorney's fees incurred in the prosecution or defense of an action. The attorney's fee contribution must be consistent with the criteria set forth in Lindy Bros. Bldrs., Inc., of Phila. v. American R. & S. San. Corp., 487 F.2d 161 (3d Cir. 1973). The criteria listed by the court are (1) the hours spent by the attorney and (2) the value of those services based on a reasonable hourly rate. Once an amount has been arrived at based on these two criteria, that amount should be adjusted upwards or downwards based on the more subjective factors of (1) the contingent nature of success and (2) the quality of the attorney's work considering the complexity and novelty of the issues presented, the quality of the work that the judge has been able to observe and the amount of the recovery. In applying these standards the court finds that the claim for attorney's fees in the sum of $2,885.00 (retained counsel $885.00; appointed counsel $2,000.00) is also excessive and must therefore be reduced.\\nThe defendant's affidavit shows that $885.00 was incurred as a result of representation by his retained counsel. The record indicates that the attorney's fee was incurred during the early stages of litigation. No attorney's affidavit has been submitted and it could therefore be summarily denied. Nevertheless, the court will examine its reasonableness using the criteria announced in Lindy Bros., supra. The record indicates that retained counsel billed defendant for 58% hours of work at a rate of $60.00 per hour for a total of $3,525.00 of which defendant has paid $1,180, representing 19% hours of work. Since the services rendered thus far has been limited to consultation, preparation of responsive pleadings and initiation of discovery, the court finds that the 19% hours for which defendant has paid are excessive. The court will therefore reduce the claimed number of hours by approximately one-half and allow 10 hours of work. The court also finds that a more reasonable hourly rate would be $50.00 per hour instead of the $60.00 per hour at which defendant was billed. This results in a total fee of $500. In considering whether this amount should be adjusted to take into account the contingent nature of success and the quality of the attorney's work, the court finds that the probability of success in this case was reasonably high, that no novel or difficult questions were presented and that considering the amount recovered the benefit to the defendant was not substantial. The court will therefore make no adjustment to the $500.00 which it allows as a contribution towards the retained attorney's fees.\\nIn considering the claim for attorney's fees by appointed counsel from Legal Services of the Virgin Islands, the general rule in this jurisdiction is that a court may award legal fees when appropriate to indemnify a prevailing party, even where that party has incurred no fees as a result of representation by a public interest law firm such as the Legal Services Corporation. 5 V.I.C. \\u00a7 541(b) and see, Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977). However, counsel must provide the court with sufficient relevant information that must be considered before awarding counsel fees under the guidelines of Lindy Bros. Bldrs., Inc., supra.\\nIn his affidavit defense counsel states that he spent \\\"approximately 76 hours\\\" working on this case, at $50.00 per hour. Despite repeated requests from the court he has failed to justify his proposed fee of $3,800.00 with a supplemental affidavit. Instead, he merely rounds the claimed fee to $2,000. To support an award of fees his affidavit must itemize the dates, hours, nature of work and services, and identify the personnel that performed attorney services on behalf of the defendant. Counsel has not provided such information to the court.\\nThe court moreover finds another important reason to deny a contribution towards appointed counsel's fees. Defendant, from the time that his retained counsel withdrew to the time of the jury trial, represented himself pro se. Defendant was quite willing to continue to represent himself pro se even during trial. However, the court, believing that he would be unable to represent himself effectively before a jury, and wishing an orderly trial, appointed Legal Services to represent him, with the consent of the plaintiff. In making the appointment the court was mindful of the fact that it contributes funds to Legal Services from its annual budget to cover such exigencies. Therefore, Legal Services has already been compensated for any expenses it may have incurred in representing this defendant, and the losing litigant should not be taxed for an expense incurred by the court for its convenience and for which the court has already made adequate monetary provision. Accordingly, since the court finds no supportable basis for awarding a contribution towards the fees of appointed counsel, that request will be denied.\\nORDER\\nIn accordance with the foregoing Memorandum, it is hereby ORDERED that the defendant recover from the plaintiff court costs in the sum of $170.00 and an attorney's fee contribution in the sum of $500.00, a total of $670.00.\\nSee Act No. 4360, Bill No. 13-0363 as amended by Act No. 4370, Bill No. 13-0373.\"}"
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diff --git a/vi/1075119.json b/vi/1075119.json
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+"{\"id\": \"1075119\", \"name\": \"UNITED STATES OF AMERICA, Plaintiff v. MARTIN and DORENE SCHULTZ, Defendants\", \"name_abbreviation\": \"United States v. Schultz\", \"decision_date\": \"1980-07-30\", \"docket_number\": \"Criminal No. 80/86\", \"first_page\": 561, \"last_page\": \"566\", \"citations\": \"17 V.I. 561\", \"volume\": \"17\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:17:13.260687+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"UNITED STATES OF AMERICA, Plaintiff v. MARTIN and DORENE SCHULTZ, Defendants\", \"head_matter\": \"UNITED STATES OF AMERICA, Plaintiff v. MARTIN and DORENE SCHULTZ, Defendants\\nCriminal No. 80/86\\nDistrict Court of the Virgin Islands Div. of St. Croix\\nJuly 30, 1980\\nMelvin H. Evans, Jr., Esq., Assistant United States Attorney (Office of the United States Attorney), Christiansted, St. Croix, V.I., for plaintiff\\nJeffrey L. Resnick, Esq. (James & Resnick), Christiansted, St. Croix, V.I.,/or defendants\", \"word_count\": \"1564\", \"char_count\": \"9625\", \"text\": \"SILVERLIGHT, Judge By Designation\\nMEMORANDUM OPINION WITH ORDER ATTACHED\\nThis is a federal criminal prosecution under which defendants are charged with the unlawful possession of certain drugs with the intent to distribute. This matter is now before the Court on motion of defendants to suppress certain items of real evidence which were seized during two warrantless searches of their apartment. Pursuant to defendants' motion a hearing was held on July 23, 1980, at which time the Court received evidence and heard argument of counsel. After reviewing the evidence and being fully advised, the Court will grant the motion of defendants as to all evidence seized from their apartment during the two warrantless searches.\\nI. FINDINGS OF FACT\\nOn July 7, 1980, sometime after 9:40 p.m., Officers Miller and McBean of the Virgin Islands Department of Public Safety arrived at a residence located at No. 2, Estate Sight, St. Croix. The officers were responding to a telephone call made by the owner of the residence by which he had reported the presence of a suspected narcotic substance which he had found in the guest apartment adjoining his home. The apartment was then rented by defendants, Martin and Dorene Schultz. At the time of the phone call and the visit by the police officers Mr. and Mrs. Schultz were not home. Upon arrival the officers spoke briefly with the owner/landlord and asked him to show them the suspected narcotic substance. The landlord then took the officers into the apartment where they seized a glass jar containing a white powder. The officers then returned to the headquarters of the Joint Narcotics Strike Force in Christiansted. The white powder which was seized from defendants' apartment was later identified as cocaine.\\nOn July 9, 1980, at approximately 6:00 p.m., Officers Miller and McBean, accompanied by four other police officers, returned to No. 2 Estate Sight where they placed defendants under arrest, after which defendants were taken to the offices of the Joint Narcotics Strike Force. Upon their arrival at 6:25 p.m. defendants were taken to separate rooms for questioning. Mrs. Schultz was then shown a standard police form styled both as a \\\"Warning as to Rights\\\" and \\\"Waiver of Rights.\\\" Among the rights of which Mrs. Schultz was advised was her right to speak to an attorney prior to any questioning. Mrs. Schultz refused to sign the waiver form, stating that her husband would contact their attorney. The police officers then questioning her, Officers Soto and Quinones, noted her refusal to sign the waiver at 6:33 p.m.\\nDespite the fact that Mrs. Schultz refused to waive her right to speak with an attorney prior to interrogation the police officers continued to question her. This continued for approximately two and one-half hours. Officer Miller described her behavior during this time as alternately crying and cursing. It seems clear that she was frightened, confused and upset.\\nSometime during her questioning Mrs. Schultz admitted to the police that there was marijuana in her apartment. At approximately 9:00 p.m., as a result of her continued questioning, Mrs. Schultz signed a written form of waiver whereby she purportedly gave the police permission to search her apartment. She was then taken to the apartment by three police officers whom she let into the apartment. As a result of the ensuing search the officers confiscated a quantity of marijuana and two jars containing a residue of white powder.\\nThe two searches and the arrests of defendants were conducted without the benefit of warrants.\\nII. CONCLUSIONS OF LAW\\nBecause the two searches of defendants' home were carried out without a warrant, they are per se unreasonable under the Fourth Amendment unless the circumstances of the searches bring them within the scope of \\\"a few specifically established and well-delineated exceptions.\\\" Katz v. United States, 389 U.S. 347, 357 (1967). Prior to the admission against defendants of any evidence obtained as result of these searches the government must show, by a preponderance of the evidence, that the searches were within one of the exceptions which obviate the need for a warrant. Government v. Gereau, 502 F.2d 914, 928 (3rd Cir. 1974).\\nBy their motion defendants contend that the government failed in its burden to show that the searches were permissible under the Fourth Amendment. In analyzing the problems raised by the motion the Court will rely on the foregoing findings of fact which were made solely in reliance on the testimony of witnessess presented by the government.\\nA. The July 7, 1980, Search\\nThe government does not contend, nor can it, that the July 7th search of defendants' apartment was lawfully authorized by defendants' landlord. Stoner v. California, 316 U.S. 483 (1964). The government argues, however, that the warrantless search was justified by exigent circumstances which made it impractical to obtain a warrant. No such exigent circumstances have been shown. The Court may take judicial notice that on July 7, 1980, there were three judges of the Territorial Court and one U.S. Magistrate permanently assigned to St. Croix. It is safe to assume that at least one of these judicial officers could have been located with reasonably diligent effort. The police could easily have posted an officer at the entrance to the apartment in order to ensure that the suspected contraband remained undisturbed while another officer obtained a warrant. The police made no effort to do so.\\nBecause the government has failed to show that the July 7th search was reasonable despite the lack of a warrant, all evidence seized as a result of that search must be suppressed.\\nB. The July 9, 1980, Search\\nThe government seeks to justify the second search of defendants' apartment by the written consent to search signed by Mrs. Schultz. The government has the burden of showing that the purported consent was voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).\\nThe government's own witnesses testified to the effect that Mrs. Schultz invoked her right to confer with counsel prior to questioning by the police at 6:33 p.m. This should have terminated the interview. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966). Despite this the police officers continued the questioning, eventually eliciting the admission by Mrs. Schultz regarding the marijuana in her apartment. After this admission was made she was persuaded to sign a form of waiver giving permission to search her apartment. This procedure, occurring during a period of two and one-half hours after all questioning ought to have ceased, was violative of Mrs. Schultz' Fifth and Sixth Amendment rights. This illegal questioning elicited an incriminating statement which in turn induced Mrs. Schultz to sign the consent to search form. The purported consent to search was obtained through exploitation of the illegal interrogation. Any evidence thus obtained pursuant to such \\\"consent\\\" must therefore be suppressed as the proximate result of this primary illegality. Wong Sun v. United States, 371 U.S. 471, 488 (1963).\\nIII. DISCUSSION\\nThe end result of the foregoing exercise is that certain real evidence which is otherwise-reliable and relevant will be deemed inadmissible in this proceeding. It is never easy for a court to suppress probative evidence. The task is not made easier by the knowledge that it would have been rendered quite unnecessary by the exercise of some measure of patience and restraint by the investigating officers in this case. There is no doubt that the authorities had probable cause to search defendants' apartment once they had been informed by defendants' landlord that he suspected narcotics were stored inside. Had the police exercised restraint and obtained a search warrant at that point there would have been little question of the legality of the search. Such a search would likely have turned up all narcotics hidden within the apartment, making the remainder of the arrest and interrogation proceedings quite unnecessary. Indeed, the police had ample time after the illegal July 7th search to obtain a search warrant based solely on the information available prior to the illegal search. Had they done so they might have legally obtained the drugs which were seized on July 9th and which now must be ruled inadmissible.\\nThe lesson to be learned from this case is that one often acts in haste to repent at leisure. It is difficult to condemn police officers for mistakes attributable to enthusiasm and zealousness, but it must be pointed out that the public interest in protection against both violations of civil rights and crime is best served by well trained police officers who have an appreciation for the constitutional limits of their powers regarding arrest, interrogation, search and seizure.\\nORDER\\nFor the reasons set forth in the memorandum opinion of even date, it is hereby\\nORDERED:\\n(1) That all real evidence seized as a result of the search of defendants' apartment on July 7, 1980, be, and is hereby, deemed INADMISSIBLE at trial in this case; and\\n(2) That all real evidence seized as a result of the search of defendants' apartment on July 9, 1980, be, and is hereby, deemed INADMISSIBLE at trial in this case.\"}"
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+"{\"id\": \"1075226\", \"name\": \"WILFRED A. BENJAMIN d/b/a BENNIE BENJAMIN SECURITY SYSTEMS, Petitioner v. MILTON C. BRANCH, Commissioner of Public Safety, Respondent\", \"name_abbreviation\": \"Benjamin v. Branch\", \"decision_date\": \"1980-07-18\", \"docket_number\": \"Civil No. 22-1980\", \"first_page\": 557, \"last_page\": \"560\", \"citations\": \"17 V.I. 557\", \"volume\": \"17\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:17:13.260687+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WILFRED A. BENJAMIN d/b/a BENNIE BENJAMIN SECURITY SYSTEMS, Petitioner v. MILTON C. BRANCH, Commissioner of Public Safety, Respondent\", \"head_matter\": \"WILFRED A. BENJAMIN d/b/a BENNIE BENJAMIN SECURITY SYSTEMS, Petitioner v. MILTON C. BRANCH, Commissioner of Public Safety, Respondent\\nCivil No. 22-1980\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nJuly 18, 1980\\nRhys S. Hodge, Esq., St. Thomas, V.1., for petitioner\\nIve A. SWAN, Esq., Attorney General of the Virgin Islands (Department of Law), St. Thomas, V.I.,/or defendant\", \"word_count\": \"1139\", \"char_count\": \"7206\", \"text\": \"CHRISTIAN, Chief Judge\\nMEMORANDUM\\nThe licensing provisions for private security guard agencies under Title 23, chapter 17 of the V.I. Code, are amenable to two opposing interpretations. Particularly is this true of \\u00a7 1311(c) thereof. With all due deference to the interpretation fastened on chapter 17 of Title 23 of the Virgin Islands Code by the Virgin Islands Department of Public Safety, as the administering agency, the Court feels compelled to adopt a contrary construction. In petitioner Benjamin's view of the statute, licenses are required only for an agency's principal place of business and branch offices; that no other limitation exists on the location of the agency's actual work. In contrast, the Commissioner of Public Safety contends that the Code limits the geographical area in which an agency may perform its services to those specifically listed in the agency's license. It is because of certain relevant rules of statutory construction as well as the perceived intent of the statute that the Court believes it is petitioner who correctly construes the statute.\\nThe general rule applied to statutes granting powers to administrative agencies is that only those powers are granted which are conferred either expressly or by necessary implication. And where a regulatory statute lacks adequate administrative standards, it should be construed narrowly. 3 Sands, STATUTES AND STATUTORY CONSTRUCTION \\u00a7 65.02 at 149-150 (4th ed. 1974). Thus, the Commissioner's power to regulate private security guard agencies should be strictly construed. The only exception to this general rule is for broad regulatory programs such as health care which are essential to the public welfare and remedial in nature. Id. \\u00a7 65.03 at 163. The licensing statute at issue is clearly not of this category. Moreover, where, as with the legislation at issue, a statute is mainly intended as a regulatory measure, although as an incidental effect it may produce revenue, the Court should be concerned principally to effectuate the regulatory objectives of the statute. Id. \\u00a7 66.10 at 211. Accordingly, it is the intent of the licensing statute that should control our determination.\\nThe Virgin Islands legislative history of Title 23, chapter 17 sheds no light on the purpose of the statute. However, the wording of the statute and the statutory scheme is helpful in this regard. The purpose served by the licensing of detective agencies and security guard services is to ensure that these firms are owned and operated by honest and reliable individuals. The quasi-police nature of the functions of such business organizations mandates protection of the public from unqualified operators. Thus, the Commissioner may not issue a license to an applicant until he is \\\"satisfied of the good character, competency and integrity of the applicant.\\\" See 23 V.I.C. \\u00a7 1308(a). Similarly, the grounds for denial of a license listed in \\u00a7 1308(b) relate primarily to evidence of an applicant's lack of good character. In addition, the requirement of a surety bond set forth in 23 V.I.C. \\u00a7 1309 conditions the bond \\\"upon the faithful and honest conduct and performance by the licensee . .\\\"\\nThis legislative purpose of guaranteeing the honesty and integrity of quasi-police agencies is more consistent with petitioner's interpretation of chapter 17, Title 23, than with that of the Commissioner. In effect, knowledge of an agency's principal place of business and branch offices would be sufficient for the Commissioner to fulfill his function of ensuring that any organization holding itself out as a detective or security guard agency was duly licensed and was maintaining the requisite standards. Knowledge of the particular location of individual employees as they render the services offered would not be necessary to this duty.\\nThe Commissioner contends that the licensing requirement is intended to aid him in locating these quasi-police employees during times of emergency. This suggestion is, however, illusory because there is no support for it in the statute. Moreover, the fact that the Commissioner concedes that the law permits agencies to list on licenses an area as large as an entire island as their place of business belies any such legislative intent. Rather, it demonstrates the fact that the Commissioner can perform his functions without keeping track of the exact location of individual employees of the agencies.\\nOther portions of the statutory scheme also buttress petitioner's position. Firstly, the frequency with which a security guard agency's clients might change suggests the unlikelihood that the expectation was that every change was to be reported to the Commissioner. Yet if the Commissioner's interpretation is adopted, then \\u00a7 1314 would require just such reporting. Secondly, the consequences of the Commissioner's interpretation to detective agencies, which are also covered by the licensing requirement, likewise gravitates in petitioner's favor. In effect, employees of detective agencies would be expected to operate throughout the entire Virgin Islands and, therefore, it would be impossible to maintain a current listing of their precise locations. Thus, no more than the location of a detective agency's principal place of business and branch offices could ever be furnished to the Commissioner. Finally, the fact that the surety bond required by \\u00a7 1309(a) is $25,000 regardless of the number of an agency's employees or the locations at which such employees operate suggests that such considerations were not relevant to the statutory scheme.\\nSince it appears from the letter dated May 27, 1980, from the Commissioner of Public Safety to petitioner, as president of Bennie Benjamin Security Systems, that the application for a branch office in St. Thomas was denied on the sole ground that the agency had been unlawfully transacting business in St. Thomas, a conclusion we here reject, the Court will direct that the branch office license be issued forthwith.\\nChapter 17, Title 23 V.I.C. was lifted from 15 Fla. Stat. Ann. \\u00a7 493.01 et seq. (West 1960). It is clear that geographic subdivisions play no role in the Florida statutory framework. That state is divided into counties. If licensure in Miami, say, limited the licensee to operation in Dade County, in which Miami falls, only, such an intention would surely have been more specifically indicated. By the same token an office in Sunny Isle does not restrict one to St. Croix.\\nThe interpretation advanced by the Commissioner does violence to the concept of a unified Government of the Virgin Islands. It was to put behind us such geographic distinctions as the Commissioner urges that we abandoned our separate municipal governments. Any return to that past status calls for a definite and unmistakable legislative expression.\"}"
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+"{\"id\": \"1076540\", \"name\": \"VIRGO CORPORATION, Plaintiff v. RALPH M. PAIEWONSKY, Governor of the Virgin Islands, et al., Defendants\", \"name_abbreviation\": \"Virgo Corp. v. Paiewonsky\", \"decision_date\": \"1966-03-14\", \"docket_number\": \"Civil No. 165-1965\", \"first_page\": 342, \"last_page\": \"355\", \"citations\": \"5 V.I. 342\", \"volume\": \"5\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T22:55:05.861776+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"VIRGO CORPORATION, Plaintiff v. RALPH M. PAIEWONSKY, Governor of the Virgin Islands, et al., Defendants\", \"head_matter\": \"VIRGO CORPORATION, Plaintiff v. RALPH M. PAIEWONSKY, Governor of the Virgin Islands, et al., Defendants\\nCivil No. 165-1965\\nDistrict Court of the Virgin Islands Div. of St. Croix\\nMarch 14, 1966\\nSee, also, 251 F.Supp. 279\\nHowrey, Simon, Baker and Murchison, Washington, D.C. (William Simon, Esq., of counsel; J. Coleman Bean, Esq., of counsel); Russell B. Johnson, Esq., St. Croix, Virgin Islands, for the plaintiff\\nFrancisco Corneiro, Esq., St. Thomas, Virgin Islands, for the defendant\", \"word_count\": \"3499\", \"char_count\": \"21236\", \"text\": \"GORDON, District Judge\\nMEMORANDUM OPINION\\nOn February 15, 1966, the plaintiff in the above entitled civil action brought on for hearing a motion for sum mary judgment and a motion for a preliminary injunction. The arguments on the above motions consumed the whole day and at the conclusion of the hearing the Court took the motions under advisement. Because of the serious questions raised, the Court deems it necessary to set forth its opinion in detail.\\nThe plaintiff, a Virgin Islands corporation, filed the above entitled civil action in this Court against the defendants on November 18, 1965. The nature of the complaint was for a declaratory judgment and an injunction. The complaint was brought in two counts. In the first count of the complaint the plaintiff challenges the validity, legality and constitutionality of 33 V.I.C. \\u00a7 511-518 which is commonly known as the Watch Production Quota Act. In the second count of the complaint the plaintiff challenges the administration by the Virgin Islands Industrial Incentive Board and the Governor of the Virgin Islands of the tax exemption and subsidy provisions of 33 V.I.C. \\u00a7 4001 et seq. The Court will discuss each count separately in order not to confuse the facts and the law with respect to the pending motions.\\nWith respect to the motion for summary judgment as to count one of the complaint in which the plaintiff challenges the Watch Production Quota Act, the plaintiff made the following contentions:\\n1. The Act is a burden on interstate commerce and is thus unconstitutional.\\n2. The Virgin Islands Legislature only has authority to enact legislation which is authorized by the Organic Act of the Virgin Islands. The Legislature had no authority to enact the Watch Production Quota Act because the Act was in contravention of the Organic Act of the Virgin Islands of the United States. [48 U.S.C.A. \\u00a7 1406i.]\\n3. The Act unfairly discriminates between competitors and thus is in violation of the due process clause of the Constitution of the United States.\\n4. Assuming the constitutionality of the Act, the Act has been administered arbitrarily by the Governor.\\n5. Reserve allocations granted by the Governor were as a result of improper influence.\\nThe defendants in opposition to the motion contended:\\n1. The Virgin Islands Legislature was acting within its province in enacting the Watch Production Quota Act.\\n2. The Court should not question the economic judgment of the Legislature.\\n3. Because the Virgin Islands is an unincorporated territory which has its own Bill of Rights, the Constitution of the United States is not applicable to the Virgin Islands.\\n4. The tax imposed by the Act is local and therefore does not hinder interstate commerce.\\nThe following are the material uncontroverted facts with regard to count one of the complaint:\\nThe plaintiff is a Virgin Islands corporation with its principal place of business at Frederiksted, St. Croix, Virgin Islands. Plaintiff manufactures watches in the Virgin Islands and sells those same watches in interstate and foreign commerce. Plaintiff is a wholly owned subsidiary of Timex, Limited, a Bermuda company, and is affiliated with and sells its entire production of watches to United States Time Corporation, a Connecticut corporation.\\nPlaintiff commenced its watch manufacturing in St. Croix in June, 1963, with a capital investment in excess of $300,000. It employs approximately 32 people with an annual income of approximately $100,000.\\nIn August, 1965, the Legislature of the Virgin Islands in special session enacted bill number 2638 which added \\u00a7 511-518 to 33 V.I.C. The Governor of the Virgin Islands on August 30, 1965, approved this bill and it became effec tive as Act No. 1518. The provisions of this Act relevant to this controversy are:\\na. Section 511 imposes a tax of $2.50 on each watch manufactured in the Virgin Islands for sale or use in the customs area of the United States. This section further provides that if the number of watches sold in the United States does not exceed the quota allocated to the manufacturer, then the tax shall be 3$ instead of $2.50 per watch. On all other watches manufactured and sold, either in the Virgin Islands or outside the customs area of the United States, the tax is only per watch.\\nb. Section 512 establishes a quota of 1,800,000 watches to be manufactured in the Virgin Islands for export to the customs area, of the United States during the six-month period from October 1,1965 to March 31,1966.\\nc. Section 513 provides that for each twelve-month period subsequent to March 31, 1966, the Governor shall allocate among the toatch manufacturers in accordance with the formula provisions of Section 51U(b) \\\"such number of units as shall total 1/9 of annual consumption\\\" in the customs area of the United States. The section further provides that, of the total units to be allocated, five percent \\\"shall be reserved as a quantity to supplement quotas allocated to manufacturers and to relieve against severe financial hardship, in accordance with the provisions of Section 515.\\\" (Emphasis supplied.)\\nThe history of this enactment would be most helpful in visualizing what will follow.\\nUnder Paragraph (a) of General Headnote 3 of the Tariff Schedules of the United States [19 U.S.C.A. \\u00a7 1202] articles produced in insular possessions, which includes the Virgin Islands, may enter the United States duty free if the articles do not contain foreign materials to the value of more than 50 percent of their total value. This tariff concession was made by Congress to help encourage economic development in the insular possessions and territories of the United States.\\nIn the last five to six years, the watch assembly industry has developed rapidly in the Virgin Islands as a result of the tariff concessions which permit the assembled watches to enter the United States duty free. In 1964 approximately 9 percent or 2,400,000 watch movements consumed in the United States were assembled by eleven watch manufacturers in the Virgin Islands.\\nBecause of the so-called flood of watches from the Virgin Islands to the United States, manufacturers of watches in the United States were lobbying in Congress to amend the tariff laws to stop Virgin Islands-made watches from entering the United States duty free.\\nIn order to head off any action by the Congress, the Legislature of the Virgin Islands on June 25, 1964, passed Resolution Number 293 which stated:\\n\\\"Whereas the continued ability of this industry to contribute to the economy of the Virgin Islands is partly dependent on the structure of the United States tariff laws with regard to the entry of watches and related products from the Virgin Islands and from foreign countries; and\\n* \\u2756 \\u2756\\nWhereas the Legislature of the Virgin Islands is anxious to preserve for the people of the Virgin Islands and those who have invested substantial amounts in its economy the benefits of the watch manufacturing industry without inflicting undue injury on mainland manufacturers and their employees; Now, Therefore, be it\\nResolved by the Legislature of the Virgin Islands:\\nSection 1. That it is the intention of the Legislature of the Virgin Islands to take such steps as may be necessary to alleviate the conditions that have led mainland manufacturers to request congressional action including the imposition of production taxes of the sort now imposed on the woolen textile industry by Sections 501-508 of Title 33 of the Virgin Islands Code on the manufacture of clocks, watches, and watch movements. The Legislature believes that such action may prove necessary to the protection of the interests of the Virgin Islands watch industry and its employees.\\n\\u2756\\nSection 3. That, in the interim, the Governor study the situation and prepare recommendations on this subject to the Legislature in light of such developments as may occur.\\\"\\nIn compliance with the above resolution the Governor of the Virgin Islands appointed a special committee to make recommendations with regard to preserving the Virgin Islands watch industry. On August 9, 1965, the special committee submitted its report to the Governor of the Virgin Islands. The committee found \\\"that the present rate of expansion in watch manufacturing holds great dangers to the stability of employment in the Islands and the Islands' commercial relations\\\". It recommended that a $2.50 production tax be placed on all watches manufactured in the Islands. It also recommended that quotas be set for watches shipped to the United States. John J. Kirwin, a member of the special committee, testified on deposition that one of the things that was kept in mind at public hearings and meetings of the committee was to control the volume of watch production in the Virgin Islands to forestall adverse legislation from the Federal Congress. [Deposition of John J. Kirwin, December 22,1965.]\\nFollowing the recommendations of the special committee, the Legislature of the Virgin Islands enacted Bill No. 2638 which was approved by the Governor of the Virgin Islands on August 30,1965. (Supra.)\\nPreliminarily, the Court will not decide the motion of the plaintiff for summary judgment on the constitutional issues raised, the issue with regard to improper influence upon the Governor or the issue of arbitrary action on the part of the Governor. The sole issue upon which this motion will be decided is whether the Watch Production Quota Act (Act No. 1518) was in violation of the Organic Act of the Virgin Islands of the United States [June 22, 1936, ch. 699, \\u00a7 36, 49 Stat. 1816, 48 U.S.C.A. \\u00a7 1406i] which provides \\\"[t]hat no new export duties shall be levied in the Virgin Islands except by Congress\\\".\\nSection 36 of the Organic Act of the Virgin Islands of the United States has not been repealed even though there has been a subsequent act called the \\\"Revised Organic Act of the Virgin Islands\\\". [July 22, 1954, ch. 558 \\u00a7 1, 68 Stat. 497.] Therefore, it is still the law that the Legislature of the Virgin Islands has no power to levy new export duties.\\nThe determination which will have to be made is whether the watch production tax is an export duty. An export tax has been defined by the Supreme Court of the United States in Coe v. Errol, 116 U.S. 517, 526, 29 L.Ed. 715, 6 S.C. 475, and in Turpin v. Burgess, 117 U.S. 504, 506, 29 L.Ed. 988, 6 S.C. 835, as a tax levied upon the right to export, or upon goods because of the fact that they are being exported or intended to be exported.\\nFrom the history of the Act and from the express provision of the Act, supra, it can be seen that the primary purpose of the Act was to limit the exportation of watches from the Virgin Islands to the \\\"Customs area of the United States\\\", to forestall the necessity of the Congress taking away the tariff concessions which the Virgin Islands watch manufacturers enjoyed. There can be no other interpretation of the Watch Production Quota Act than it being an export duty upon watches entering the \\\"customs area of the United States\\\". Such an export duty can only be levied by Congress. From this it follows that the Act is in contravention of \\u00a7 36 of the Organic Act of the Virgin Islands of the United States [June 22, 1936, ch. 699, 49 Stat. 1816, 48 U.S.C.A. \\u00a7 1406i], and is thus illegal.\\nFor the reasons cited above the motion of the plaintiff for summary judgment is hereby granted because there are no material issues of fact which must be determined by the fact finder. Rule 56, Federal Rules of Civil Procedure.\\nWith reference to the motion for summary judgment as to count two of the complaint in which the plaintiff alleges that the Virgin Islands Industrial Incentive Act has been administered in a discriminatory manner, the plaintiff made the following contentions:\\n1. Similarly situated watch manufacturers presently enjoy tax benefits, thus the failure of the defendants to act on plaintiff's petition discriminates against plaintiff.\\n2. The plaintiff has complied with all the provisions of the Industrial Incentive Act and thus as a matter of law the Court should order that the plaintiff be granted tax benefits under the Industrial Incentive Act.\\nThe defendants in opposition to the motion for summary judgment as to count two of the complaint contended:\\n1. The application of the plaintiff was deemed disapproved in November, 1963, and because the appeal period has expired, the Court lacks jurisdiction to entertain this action with respect to the Industrial Incentive Act.\\n2. The plaintiff is not entitled to the benefits of the Industrial Incentive Act as a matter of right because no contractual obligation exists.\\nThe material facts with regard to count two of the complaint are as follows:\\nOn June 12, 1963, before plaintiff commenced operations in St. Croix, plaintiff filed a formal application with the Virgin Islands Industrial Incentive Board reciting all pertinent information requested by the statute. On September 16, 1963, plaintiff filed a supplemental application attesting to the fact that operations had commenced and listing other pertinent information. On September 17, 1963, public hearings were held with respect to plaintiff's application.\\nOn December 9, 1964, the Industrial Incentive Board through its executive officer notified plaintiff that:\\n\\\"As you may be aware, a controversy exists over our watch industry in regards to its effect on the mainland. Because of this, all applications were ordered \\\"frozen\\\" by the Governor and he directed that no further action be taken until the matter is clarified. At the time of this directive by Governor Paiewonsky, a few watchmaking firms had already been granted tax exemption and these grants could not be impaired, but the directive did act as a halt on all applicants still under consideration. This accounts for the apparent disparity among the watch firms. As you can see, however, there was no prejudice or arbitrary action involved. It was simply a matter of not impairing any benefits already granted, but nevertheless withholding the granting of any subsequent benefits until a clean bill of health could be given the industry as a whole.\\nRecently the Governor has written the Board and proposed an interim relief handling of the firms whose applications are being held in abeyance until the cloud is lifted. Due solely to an overloaded agenda this latter proposal has not been considered as yet by the Board.\\nThis office has again scheduled the watch companies' problem for consideration at the next Executive Session and it is our hope that this time it will be discussed and resolved relative to the issue whether the suggested interim relief can or can not be granted.\\nIn any event, this is the status as to date and should anything at all relative to the subject arise, we shall inform you immediately as to its outcome.\\\"\\nSince December 9, 1964 despite requests of plaintiff for interim relief no action was taken by the Industrial Incentive Board with respect to plaintiff's application for tax exemption and subsidy.\\nOn November 18, 1965 the plaintiff brought this action invoking the jurisdiction of this Court pursuant to 33 V.I.C. \\u00a7 4113 which provides:\\n\\\"Any person, firm or corporation aggrieved by any action of the Governor under the provisions of this subtitle shall be entitled to judicial review thereof by filing an appeal with the District Court of the Virgin Islands, within 30 days after final decision by the Governor. Upon such review all findings, decisions or determinations by the Governor as to questions of fact shall be deemed final in the absence of conclusive showing to the Court of fraud or misrepresentation.\\\"\\nThe Court recognizes that there has been no final decision by the Governor. However, the plaintiff has been aggrieved by the inaction of the Industrial Incentive Board caused by the Governor's freeze on watch manufacturers' applications. The Court is, however, of the opinion that the facts alleged by the plaintiff in its complaint and motion are sufficient to invoke this Court's jurisdiction under 5 V.I.C. \\u00a7 1261 et seq. which is the Uniform Declaratory Judgment Act.\\nThe Court does not agree with defendants' contention that plaintiff's application was denied on November 17, 1963, by operation of law. It is inconceivable to the Court that the Government can lull an applicant into believing that its application is being entertained in the regular course of business and then when the \\\"moment of truth\\\" arrives, advise applicant that its application had been deemed to have been disapproved without notice to the applicant. 33 V.I.C. \\u00a7 4101(b). In the case at bar the plaintiff was advised that its application was being considered by the Virgin Islands Industrial Incentive Board. Later it was advised by an official of the Industrial Incentive Board that the Governor had ordered a \\\"freeze\\\" on all pending watch manufacturers' tax exemption and subsidy applications. In the opinion of the Court the action of the Governor by his directive is an extension as contemplated by 33 V.I.C. \\u00a7 4101(b).\\nThe Court would like to comment briefly on defendants' contention that plaintiff has not complied with the statutory requirements for tax exemption and is thus not entitled to the Industrial Incentive benefits as a matter of right. Defendants argue that they have no contractual obligation to issue a tax exemption to plaintiff. It is difficult for the Court to adhere to such a contention when 33 V.I.C. \\u00a7 4001 makes it clear as its policy that an industrial or business activity which has met the statutory requirements and which may be determined to promote the public interest by economic development of the Virgin Islands and the establishment or expansion of which requires the stimulus of governmental assistance will be entitled to the benefits of the Act. It is also difficult to adhere to the defendants' argument that the plaintiff's activities do not promote the economic development of the Virgin Islands when it is the same activities with respect to the watch industry which defendants tried to protect by enacting the Watch Production Quota Act. The record is replete with Resolutions of the Virgin Islands Legislature, Acts of the Virgin Islands Legislature, and reports of committees which state that the watch industry is of great benefit to the economy of the Virgin Islands and needs to be protected in order to further contribute to the economy of the Virgin Islands. If an industry is of economic benefit to the Virgin Islands, then the individuals or companies which make up that industry must of necessity benefit the Virgin Islands' economy.\\nIt would seem to the Court that if four other watch manufacturers who have received tax exemption and subsidy certificates have been deemed to promote the economic welfare of the Virgin Islands, the plaintiff, as long as it has fulfilled all the statutory requirements, should also be deemed to promote the economic welfare of the Virgin Islands and should thus be granted a tax exemption and subsidy certificate.\\nThe Court realizes that tax exemption is not merely a question of law, but involves many economic factors which are more appropriately the function of those to whom this decision is entrusted, which in the case at bar is the Virgin Islands Industrial Incentive Board and the Governor of the Virgin Islands. However, the Court will not sit idly by and permit those officials who are entrusted to carry out their duties fail to assume those responsibili ties given to them by the Legislature of the Virgin Islands.\\nThe Court is of the opinion that the defendants should not be permitted to refuse to entertain plaintiff's application \\\"because the Governor believes that other considerations should enter into its [Industrial Incentive Board's] deliberations and recommendations\\\". Vitex Manufacturing Co. v. Government of the Virgin Islands, 351 F.2d 313, 5 V.I. 72 (1965)\\nThe Court, therefore, shall remand the case to the Industrial Incentive Board to make such recommendations as it may deem proper. The Industrial Incentive Board shall make such recommendations to the Governor of the Virgin Islands within 30 days from the date of this memorandum opinion. The Governor of the Virgin Islands shall act within a reasonable time upon the recommendations of the Industrial Incentive Board. If no action is taken by the Industrial Incentive Board or the Governor within the time prescribed above, the plaintiff shall have the right to reopen these proceedings and seek an order compelling the defendants to grant the tax exemption and subsidy benefits to plaintiff.\\nHaving made the above determinations, the Court is of the opinion that it is not necessary to issue a preliminary injunction. Therefore, plaintiff's motion for a preliminary injunction is denied.\"}"
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+"{\"id\": \"1079338\", \"name\": \"JOHN M. WHITE and CHRISTIE M. WHITE, Plaintiffs v. ISLAND INTERIORS, INCORPORATED, Defendant\", \"name_abbreviation\": \"White v. Island Interiors, Inc.\", \"decision_date\": \"1961-06-27\", \"docket_number\": \"Civil No. 36-1960\", \"first_page\": 315, \"last_page\": \"323\", \"citations\": \"4 V.I. 315\", \"volume\": \"4\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Virgin Islands Municipal Court\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T23:39:37.970750+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN M. WHITE and CHRISTIE M. WHITE, Plaintiffs v. ISLAND INTERIORS, INCORPORATED, Defendant\", \"head_matter\": \"JOHN M. WHITE and CHRISTIE M. WHITE, Plaintiffs v. ISLAND INTERIORS, INCORPORATED, Defendant\\nCivil No. 36-1960\\nMunicipal Court of St. Thomas and St. John\\nJune 27, 1961\\nHarry Dreis Esq., Charlotte Amalie, Virgin Islands, for plaintiffs\\nBirch and Maduro, Charlotte Amalie, Virgin Islands (Everett Birch, Esq., of Counsel), for defendant\", \"word_count\": \"2349\", \"char_count\": \"13470\", \"text\": \"MICHAEL, Municipal Judge\\nThis is an action for breach of a contract, a lease, and for monies due and owing. The evidence shows that some time in February or March of 1959, plaintiffs and defendant were negotiating for the leasing of certain premises located in Christiansted, St. Croix, Virgin Islands, and that during March or early April of the same year plaintiffs submitted a proposed lease to the defendant, the second paragraph of which provides as follows:\\n\\\"WITNESSETH: The Lessors do hereby lease unto the Lessee, and the Lessee does hereby hire from the Lessors the following described premises, to wit: The second floor front apartment in the AY AY Building on Company Street, Christiansted, St. Croix, Virgin Islands for the term of five (5) years, commencing on the 1st day of May, 1959 and ending on the 30th day of April, 1964, at the yearly rental of THREE THOUSAND TWO HUNDRED AND TWENTY ($3,220.00) DOLLARS to be paid as follows: The last three (3) months rent of the term amounting to $555.00 has been paid on the execution of this lease, the receipt whereof is hereby acknowledged. $185.00 shall be paid on May 1st, 1959 and a like sum monthly thereafter on the first day of each month up to and including October 1st, 1963. On June 1st, 1959 the Lessee shall pay an additional sum of $555.00 representing the rent for the months of November, December, 1963 and January, 1964.\\\"\\nBefore returning the proposed draft submitted by plaintiffs, defendant changed the above paragraph to read as follow's:\\n\\\"WITNESSETH: The Lessors do hereby lease unto the Lessee, and the Lessee does hereby hire from the Lessors the following described premises, to wit: The second floor front apartment in the AY AY Building on Company Street, Christiansted, St. Croix, Virgin Islands for the term of five (5) years, commencing on the 1st day of May, 1959 and ending on the 30th day of April, 1964, at the yearly rental of THREE THOUSAND TWO HUNDRED AND TWENTY ($3,200.00) DOLLARS to be paid as follows: Six months rent at ONE HUNDRED EIGHTY-FIVE ($185.00) DOLLARS per month to be paid in advance, due on May 1, 1959, representing the months of May, June, July, August, September and October of the year 1959. On November 1, 1959, the sum of ONE HUNDRED EIGHTY-FIVE ($185.00) DOLLARS shall be paid and will continue to be paid on a monthly basis until such time as said lease expires ending on the 30th day of April, 1964.\\\"\\nDefendant also made other changes, and noted at paragraph No. 17 that the clause was not understood. The clause referred to concerns lessee's liability for deficiency in event of forced release. However, these other changes are not pertinent to the case, as neither party in their discussions nor correspondence made any reference to them.\\nAfter making the changes mentioned, defendant signed the lease, as changed, on April 8, 1959, and returned it to plaintiffs. Plaintiffs did not sign nor deliver the lease as changed to defendant.\\nAccording to oral agreement and incorporated in the proposed lease, the defendant was to occupy the premises from March 7, 1959, free of rent, until May 1, 1959, when the first month's rent would fall due, and in return for this concession defendant was to decorate, at its own expense, the interior of the premises. It was also orally agreed and incorporated in the lease that plaintiffs were to repair and decorate the bathroom.\\nSome time after the lease was returned to plaintiffs by defendant, between April and May, there was a telephone conversation between the parties, resulting in the sending of a check by defendant to plaintiffs in the amount of $555.00, covering three months rent. Defendant also promised to send the other three months' rent about the 1st of June, 1959. There is no evidence, however, that during this conversation any reference was made by either party to the manner of payment as changed by defendant.\\nIn August of the said year, plaintiffs received another check in the amount of $185.00 from defendant. Upon receipt of this check, August 12, plaintiffs wrote defendant acknowledging it, as follows (Def's Ex. No. 1):\\n\\\"Box 645 - Christiansted, St. Croix\\nU.S., Virgin Islands\\n12 August 1959\\n\\\"Dear Mrs. Smith \\u2014\\n\\\"I received your check this morning for the August rent which I am holding until things are straightened out \\u2014 According to our lease you were to pay me the first 3 months and the last 3 in advance \\u2014 Two days before I left on vacation you called me and at that time I agreed to install a few electric outlets at my expense and to give you until the 1st of June on the last 3 months rent provided you sent me the first 3 months immediately which you did \\u2014 I have not received the last 3 months rent and therefore I have done no more work over there as I did not know if you were serious or not \\u2014 If you backed out of the deal I was going to take that bath room out entirely.\\n\\\"I turned the whole thing over to my lawyer two days ago as I figured the added expense of doing over that part of the building for a different type business or an apartment at this late date will be quite expensive \\u2014 I would have planned the plumbing and many other details differently if you had not leased it \\u2014 I would also be losing several months rent \\u2014 I will however tell the lawyer to wait until I hear from you \\u2022\\u2014 If you put up the last 3 months I will go ahead with the bath repair and electric outlets right away \\u2014 There is a lot of work over here and you should get started.\\n\\\"Best Regards \\u2014\\nJohn White\\\"\\nBy this letter of plaintiffs, it is clear that they did not accept defendant's change in the lease with respect to the manner of payment as above indicated.\\nOn August 31, 1959, defendant wrote the following in reply (Def's Ex. No. 2):\\n\\\"31 Aug., 1959\\n\\\"Dear Mr. White:\\n\\\"Several misunderstandings appear to have stemmed from our conversation in Ann Bronson's office several months ago.\\n\\\"As you have not returned the signed copy of the lease, I am naturally somewhat uncertain as specific obligations on either side.\\n\\\"It was however, never our intention to pay six months rent in advance, that is, three months in advance and three months to be applied to the final months of the lease. To my knowledge this arrangement was corrected in the lease which we signed and returned to you for signature.\\n\\\"All the improvements which were agreed upon up to the time of your departure for California had not been started let alone completed, therefore causing a serious holdup and deferment of a definite opening date.\\n\\\"On our return to St. Croix in mid May, this work had still not been done, nor was there any lock on the door so that we could secure several shipments which had already arrived on the island and on which we are still paying storage at the R. L. Merwin Co.\\n\\\"Even after your return to St. Croix work did not go forward, yet to date, having accepted $740.00 (seven hundred and forty dollars) or four months in advance, you still question our sincerity.\\n\\\"The only equitable solution as far as we can see would be for you to go ahead and complete your part of the renovation. The rent then to start as of September 1, 1959.\\n\\\"Best Regards,\\nMrs. Robinson Smith\\\"\\nIn considering the evidence as presented, and corroborated by the above correspondence, there is no doubt that plaintiffs had been expecting and demanding payment of rent in the manner proposed in the lease as submitted by them, and not in the manner as changed by defendant. Moreover, not having received the rent in this manner, plaintiffs did no more work on the premises, the subject of the lease. As stated by plaintiffs, in the above quoted letter, \\\"I have not received the last 3 months rent and therefore I have done no more work .\\\" While plaintiffs' expressed reason for failing to repair does not change the relationship between the parties, it confirms the fact that there was no acceptance of the change in manner of payment made by defendant.\\nIt is evident to the court, therefore, that up to August 31, 1959, several months after the lease was to become effective, there was not a \\\"meeting of the minds\\\" of the parties with respect to the manner payment of rent was to be made. Plaintiffs' failure to sign the lease until December 12, 1959, when they decided to institute action against defendant for breach of the lease, seems to add weight to this lack of mutuality.\\nTo create a valid lease the essential points of mutual agreement which are necessary are: (1) description of the premises; (2) definite and agreed term; (3) an agreed rental, and (4) the time and manner of payment. Linnard v. Sonnenschein 272 Pac. 315; Levin v. Saroff, 201 Pac. 961.\\nBecause there was no mutual agreement between the parties on one of the essential points of the lease, the time and manner of payment (compare plaintiffs' with defen dant's manner of payment above), it appears to the court that the lease, as such, is unenforceable. This is so even though the parties, in referring to the document, used such terms as \\\"our lease\\\", \\\"the lease\\\", etc.\\nNotwithstanding the lease was not enforceable, it is the opinion of the court that a landlord and tenant relationship between the parties, by their actions, had been created by operation of law. 32 Am. Jur., Landlord and Tenant \\u00a7 51, p. 71.\\n\\\"When a tenant is put in possession of property under a lease which is unenforceable under the statute of frauds, or which passes no estate for any statutory or other reason (emphasis supplied), he is, nevertheless, lawfully in possession and holds as some sort of tenant...\\\" Darling Shops Del. Corp. v. Baltimore Center Corporation. 6 A.L.R.2d 677, 680.\\nBy the actions of the parties there was an intention to enter into a lease: (1) there was a meeting of the minds in every important provision of the lease save the manner rent was to be paid; (2) the plaintiffs evicted a tenant in order to make the premises available to defendant, even before rent was to become due; (3) in May when defendant made its first payment of $555.00, it was paid and received by the parties as rent for three months at $185.00, the monthly payment mentioned in the lease; and (4) defendant not only paid rent, but subsequently occupied the premises by storing merchandise therein. (See Plfs' Ex. No. 3a and Def's Ex. No. 3.) Although the evidence shows that defendant did not make much use or the intended use of the rented premises because certain things were not done by plaintiffs, this fact did not change or affect the relationship of landlord and tenant, for the repairs or work which the plaintiffs had agreed to do was not made a condition precedent.\\nWhile the lease was unenforceable for the reason above stated, it is the opinion of the court that a month to month tenancy was created, the rental reserved being in fact on a monthly basis. 32 Am. Jur., Landlord and Tenant \\u00a7 53, p. 72; Sidney H. Wineburgh v. Toledo Corp. 81 [82] A.L.R. 1315; Darling Shops Del. Corp. v. Baltimore Center Corporation, supra.\\nWith respect to the termination of the tenancy, it appears to the court that defendant indicated its intention to vacate the premises, which must have been obvious to plaintiffs, by letter of its agent to plaintiffs dated Sept. 29 (Plfs' Ex. No. 3a). The letter reads as follows:\\n\\\"ISLAND INTERIORS, INC.\\n\\\"St. Thomas, Virgin Islands\\nPost Office Box 1053\\nSept. 29th\\n\\\"Dear Mr. White\\n\\\"Mrs. Smith is in the states. Mr. Miller, the bearer of this note is authorized to remove the merchandise now stored in the Island Interior Shop.\\n\\\"Sincerely\\nRobinson Smith\\\"\\nThis letter was written in St. Thomas to the plaintiffs in St. Croix. While the evidence does not show when it was mailed or received, it is safe to assume that plaintiffs received it not later than early October, a couple of days after it was written. This being the case, defendant was in legal possession or occupancy until October.\\nIt also appears that plaintiffs realized that defendant was vacating the premises, for on October 22, 1959 their attorney wrote to the defendant's attorney stating, among other things, that if plaintiffs did not hear from defendant within a week they will be forced to take action to enforce the lease. Action was not filed, however, until March 14, 1960.\\nAs a defective or unenforceable lease does not give rise to any liability for the stated rent for the term named in the lease, when defendant impliedly and constructively vacated the premises in October, there was no breach of the lease, and therefore was not liable to the plaintiffs for rent which accrued after. 32 Am. Jur., Landlord and Tenant, \\u00a7 44, p. 63; Wineburgh v. Toledo Corp., supra.\\nThe court is in agreement with the principles of law enunciated in plaintiffs' well prepared brief with respect to the statute of frauds, but they are not dispositive of the case at bar.\\nIn accord with the above, defendant's motion to dismiss plaintiffs' action will be denied and its counterclaim dismissed. Judgment will be entered in favor of plaintiffs in the amount of $370.00 for unpaid rent of September and October 1959, plus $23.00 for food and services, which debt was admitted by defendant, and attorney's fee in amount of $65.00 and costs.\"}"
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+"{\"id\": \"1079342\", \"name\": \"In the Matter of the ESTATE OF CHRISTENITA WRIGHT, ALSO KNOWN AS ANITA WRIGHT, Deceased\", \"name_abbreviation\": \"In re the Estate of Wright\", \"decision_date\": \"1961-03-28\", \"docket_number\": \"Probate No. 23-1960\", \"first_page\": 291, \"last_page\": \"298\", \"citations\": \"4 V.I. 291\", \"volume\": \"4\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T23:39:37.970750+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the ESTATE OF CHRISTENITA WRIGHT, ALSO KNOWN AS ANITA WRIGHT, Deceased\", \"head_matter\": \"In the Matter of the ESTATE OF CHRISTENITA WRIGHT, ALSO KNOWN AS ANITA WRIGHT, Deceased\\nProbate No. 23-1960\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John District Court Commissioner\\nMarch 28, 1961\\nSee, also, 192 F. Supp. 812\\nBirch and Maduro, Charlotte Amalie, St. Thomas, Virgin Islands (John L. Maduro, Esq.), for petitioner Oricio (Orecio) A. Wright\\nHarry Dreis, Esq., Charlotte Amalie, St. Thomas, Virgin Islands, for respondent Oven P. Wright\", \"word_count\": \"2213\", \"char_count\": \"12977\", \"text\": \"GEORGE A. MENA, District Court Commissioner\\nIn this estate Oricio A. Wright, hereinafter referred to as the Petitioner, claims an interest in a three-room superficiary house listed in the inventory as belonging to the deceased Christenita Wright, known also as Anita Wright, hereinafter referred to as Christenita Wright. The house is appraised at twelve hundred dollars ($1,200) and is located on land owned by Christenita Wright. Petitioner claims that the house was built by and belonged to his deceased grandfather Gerald Wright, Sr. and that he is an heir of said Gerald Wright, Sr., who died in 1906. He seeks determination by the Court of his interest in the superficiary house.\\nOven P. Wright denies that Oricio is an heir of Gerald Wright, Sr., and entitled to any interest in the superficiary house. He claims that he is the sole surviving heir of the said Christenita Wright, his mother; that Christenita Wright exercised undisputed and notorious possession of and dominion over the house from the death of Gerald Wright, Sr., up to Christenita's death in 1958; that she collected the rents therefrom for over fifty years and ac quired title to the house by adverse possession and by the Statute of Limitations running against the petitioner and that petitioner is now estopped from denying her ownership. He further contends that the petitioner has been guilty of laches; that Clifford Wright, father of the petitioner, hereinafter referred to as Clifford, died in 1910 and that the Danish Law in force at that time applies in this case; that an illegitimate son under Danish Law in 1910 could only inherit from his mother; that the petitioner being an illegitimate child of Clifford, he could not inherit from his father. In support of his contention he filed a certificate of the Inheritance Laws of Denmark relating to Children Born out of Wedlock, by the Koyal Danish Consulate at New York.\\nIn reply to this, counsel for Oricio Wright, hereinafter referred to as Oricio (Orecio), contends that the estates of Gerald Wright, Sr., Olivia Wright, his wife, and Clifford Wright have never been probated. That the Act of May 18, 1949, Bill No. 9, 14th Legislative Assembly, applies in this case and that under that Act an illegitimate child can inherit from his father even though his father died prior to the passage of the Act of May 18, 1949. In support of his contention he quotes from the introduction and argument on the Bill in the Legislative Assembly , by its proponent and cites the Opinion of the Third Circuit Court in the Estate of Inger Heyn, Deceased, 4 V.I. 97, 266 F.2d, 206, wherein the father of an illegitimate daughter died in 1947, prior to the passage of the Act of 1949.\\nThe matter came on for hearing before the Commissioner August 22, 1960. Testimony was taken and an Agreed Statement of Facts was subsequently filed as well as briefs were submitted on both sides. The Agreed Statement of Facts is set out as follows:\\n\\\"AGREED STATEMENT OF FACTS\\n\\\"1. That a superficiary house located at Lot no. 255 (and registered as No. 153) Hospital Ground, St. Thomas, at the time of the death of Gerald Wright, Sr., who died in 1906, was constructed by and belonged to said Gerald Wright, Sr.\\n\\\"2. That Gerald Wright, Sr. was married to Olivia Wright, now deceased, and they had three children, namely, Clifford who died in 1910, Christenita (known as Anita) who died on December 17, 1958, and Sylvester, deceased.\\n\\\"3. That Christenita, known as Anita, had two children, namely, Oven P. Wright, alive, represented by Attorney Harry Dreis, and Lucien Wright, deceased.\\n\\\"4. That Clifford Wright had three illegitimate children, namely, Oricio A. Wright, petitioner-claimant, represented by Birch and Maduro, Gerald Wright, alive; and Herbert Wright, deceased.\\n\\\"5. That the estates of Gerald Wright and Clifford Wright have never been probated.\\n\\\"6. That Oricio A. Wright is an illegitimate child.\\n\\\"7. That Oven P. Wright was illegitimate and was born about 1910.\\n\\\"8. That in the year 1912, Anita Wright left the Virgin Islands and appointed one Mr. Ferdinand as her agent to collect rental from the aforesaid superficiary house. That decedent Anita Wright was in possession, through her agents, and received all the rents thereon until her death in 1958.\\n\\\"9. That upon the death of Mr. Ferdinand, her agent, Anita Wright appointed Amadeo Francis to make the aforesaid collections from the aforesaid property for her, and later, one Miss Edith Williams was appointed for the same purpose. During this entire period, Anita Wright did not make any contributions whatsoever to the children of Clifford Wright.\\n\\\"10. That around the year 1922, Oricio A. Wright demanded some money from Mr. Ferdinand, decedent's agent, and was refused same.\\n\\\"11. That Oricio A. Wright never lived in the said superficiary house. That he never brought the matter in Court but requested money from the collector Ferdinand.\\n\\\"12. That Oricio A. Wright has lived in St. Thomas, V.I. all his life.\\n\\\"13. That on August 23, 1946, the decedent Anita Wright purchased the land on which the said superficiary house is located.\\n\\\"14. That Oricio A. Wright paid a few tax bills on the property.\\\"\\nThe questions for decision of the Commissioner are:\\n(1) What rights, if any, does the petitioner Oricio Wright have in the superficiary house?\\n(2) What rights, if any, does the heir or heirs of Christenita Wright have in the same house?\\nAddressing myself to question one, in the first place, Clifford, being a lawful child, would be in line of inheritance from Gerald, his father. As he died only four years after Gerald, it follows that if Oricio has any rights as an illegitimate child of Clifford he would be an heir of Clifford. The question for determination then is: Can an illegitimate child inherit from his father and under what conditions?\\nCounsel for petitioner contends that the Act of May 18, 1949, Bill No. 9, applies, and cites the Opinion in the Heyn Estate, 4 V.I. 97, 266 F.2d 206, to support his contention. However, he failed to quote the entire Section 1 of the Act of 1949, and left out the proviso, as follows: \\\"Provided that in cases where the ancestor in question is a father, he admitted of record paternity of such child by signing the official birth certificate; or he was or is adjudged the father of such child by a court of competent jurisdiction; and provided further that such father shall have all the rights and privileges provided by law to fathers of legitimate children.\\\"\\nThere is nothing in the record to show that Clifford admitted of record the paternity of Oricio or that he signed the official birth certificate, or that he was or is adjudged the father of Oricio. In the Heyn case, after hearing evidence, the Court found that Cornelius Pentheny was the father of the petitioner, Elvira Henderson, a female. There is no such finding in this estate, and there is no competent and satisfactory evidence on which such finding can be based.\\nIn treating of the construction of provisos in a statute, 50 Am. Jur. Sec. 438 states: \\\"The natural and appropriate office of a proviso is to modify the operation of that part of the statute immediately preceding the proviso, or to restrain or qualify the generality of the language that it follows: Indeed, the presumption is that a proviso in a statute refers only to the provision to which it is attached, and, as a general rule, a proviso is deemed to apply only to the immediately preceding clause or provision.\\\"\\nThe latest legislation on this subject, and which the Commissioner is of the opinion governs in this estate, is Title 15, Chapter 3, Section 84 (13) of the Virgin Islands Code, effective September 1, 1957, to wit: \\\"An illegitimate child shall be considered to have the same status, for the purpose of the descent and distribution of the property of his or her ancestors, as if he or she were born in lawful wedlock, provided that in cases where the ancestor in question is a father, he admitted of record paternity of such child by signing the official birth certificate; or he was adjudged the father of such child by a court of competent jurisdiction; or by written acknowledgment he recognized such child as his.\\\" There is nothing in the record to show that the proviso has been complied with, which is proce dural, and does not curtail any vested right under the descent laws.\\nWithout going into the question just now as to what property rights the deceased Christenita Wright acquired in the superficiary house, it is clear from the foregoing that the petitioner Oricio A. Wright is not an illegitimate child of Clifford Wright, within the meaning of the statute, and, therefore, is not an heir of Clifford Wright; therefore, he cannot be an heir of Gerald Wright, Sr.\\nIn view of the foregoing determination, it is unnecessary to go into the question of the applicability of the Danish Inheritance Laws, suffice to say that there is no showing that the Inheritance Laws of Denmark cited were extended to these islands.\\nAs to the second question, it is clear from the evidence that Christenita (Anita) exercised uninterrupted, adverse, continuous and notorious possession of the superficiary house under claim of ownership for over fifteen years, to wit, fifty years, which entitles her to be adjudged the owner thereof by adverse possession (Title 28, V.I.C. Sec. 11). While such provisions apply specifically to real property, the rule is also applicable to chattel or personal property (2 C.J.S. 889, Sec. 243); also see 1 Am. Jur. Sec. 96, wherein it is stated that \\u2014 \\\"Possession has always been a means of acquiring title to property. The English and American statutes of limitation have in many cases the same effect; and if there is any conflict in the decisions on the subject, the weight of authority is in favor of the proposition that where one has had the peaceable, undisturbed, open possession of personal property with an assertion of his ownership, for the period which, under the law, would bar an action for its recovery by the real owner, the former has acquired a good title, that is, a title superior to that of the latter, whose neglect to avail himself of his legal rights has lost him his title.\\\" Again in Campbell v. Holt, 115 U.S. 620, 6 S. Ct. 209, 29 L. Ed. 483, the Court states: \\\"By the long and undisturbed possession of tangible property, real or personal, one may acquire a title to it, or ownership, superior in law to that of another, who may be able to prove an antecedent and, at one time paramount title. This superior or antecedent title has been lost by the laches of the person holding it, in failing within a reasonable time to assert it effectively; as, by resuming the possession to which he was entitled, or asserting his right by suit in the proper court. What the primary owner has lost by his laches, the other party has gained by continued possession, without question of his right. \\\"\\nThe petitioner Oricio has never questioned the possession or ownership of Christenita in the superficiary house, nor has he taken action to question or adjudicate her ownership therein; he is now estopped from doing so by the statute of limitations inasmuch as Christenita has been in undisputed and adverse possession of the superficiary house for a period of over fifty years (Title 5, V.I.C., Sec. 31 (1) (A)); furthermore Title 15 V.I.C., Sec. 395, provides that: \\\"No claim shall be allowed by the District Court which is barred by the statute of limitations.\\\"\\nThe Commissioner finds that Christenita Wright acquired title to the superficiary house in question and that it is properly and legally a part of the inventory in her estate and that petitioner Oricio A. Wright has no right, title or interest therein. An order in accordance with this opinion will be entered upon presentation.\\nSection 1 of the Act of May 18, 1949, Bill No. 9, provided as follows: \\\"An illegitimate child shall upon the approval of this measure and thereafter be considered to have the same status, for the purpose of the descent of the property of his or her ancestors, as if he or she were born in lawful wedlock provided that in cases where the ancestor in question is a father, he admitted of record paternity of such child by signing the official birth certificate; or he was or is adjudged the father of such child by a court of competent jurisdiction; and provided further that such father shall have all the rights and privileges provided by law to fathers of legitimate children.\\\"\"}"
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+"{\"id\": \"1080444\", \"name\": \"HENRY O. CREQUE, Plaintiff v. LOUIS SHULTERBRANDT, et al., Defendants\", \"name_abbreviation\": \"Creque v. Shulterbrandt\", \"decision_date\": \"1954-05-24\", \"docket_number\": \"Civil No. 380\", \"first_page\": 39, \"last_page\": \"53\", \"citations\": \"3 V.I. 39\", \"volume\": \"3\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T23:44:54.881288+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HENRY O. CREQUE, Plaintiff v. LOUIS SHULTERBRANDT, et al., Defendants\", \"head_matter\": \"HENRY O. CREQUE, Plaintiff v. LOUIS SHULTERBRANDT, et al., Defendants\\nCivil No. 380\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John at Charlotte Amalie\\nMay 24, 1954\\nSee, also, 121 F. Supp. 488\\nJorge Rodriguez, Esq., St. Thomas, Virgin Islands, for plaintiff\\nCyril Michael, Esq., U.S. Atty., St. Thomas, Virgin Islands, for defendants, Shulterbrandt and Charles\\nMaas and Bailey, St. Thomas, Virgin Islands (David E. Maas, Esq., of counsel), for defendant, Wharton.\", \"word_count\": \"3427\", \"char_count\": \"19752\", \"text\": \"MOORE, Judge\\nThis matter came on for hearing February 8, 1954, with plaintiff, Henry O. Creque, represented by Jorge Rodriguez, Esquire, the defendants Louis Shulterbrandt, Commissioner of Finance, and Earle H. Charles, Sheriff, represented by Cyril Michael, Esquire, United States Attorney, and the defendant Albert E. Wharton, President of the Virgin Islands National Bank, represented by Maas and Bailey, David E. Maas, Esquire, of counsel.\\nThis case involves the validity of an attachment of plaintiff's property by the Sheriff under orders from the Commissioner of Finance, acting pursuant to the Trade Tax Law of 1953 Bill No. 264, approved July 6,1953).\\nThere is no controversy as to the facts which, briefly stated, are as follows: The plaintiff, Henry O. Creque, who is an automobile dealer in this Municipality and who does business under the name of Community Motors, was assessed trade taxes on automobiles sold by him during por tions of the years 1952 and 1953, amounting to $12,277.81 in taxes plus $1,517.94 for penalties and interest and making a total of $13,795.75. From time to time, plaintiff was notified of his delinquency and payment demanded. Plaintiff consistently refused or neglected to pay the tax. On October 16 and November 16, 1953, plaintiff was served with final notices of his tax indebtedness and informed that unless immediate payment was made the sheriff would proceed to collect the same as provided for by law. Plaintiff did not pay and on November 19, the Sheriff, pursuant to Order of the Commissioner of Finances in accordance with section 9 of the Trade Tax Law, attached the personal property of plaintiff, to wit: his account in the Virgin Islands National Bank in the name of Henry O. Creque (Community Motors). Upon receipt of a letter from the Sheriff informing him of the attachment of the bank accounts under the names of Henry O. Creque and Community Motors and directing him not to pay any funds therefrom, Albert E. Wharton, President of the Virgin Islands National Bank, ordered payments from the account stopped and informed plaintiff thereof. Plaintiff thereupon filed this action to set aside the order of the Sheriff.\\nAt the pre-trial conference held on February 8, 1954, the parties reduced the issues involved to matters of law and agreed to submit the case on briefs. Plaintiff also stipulated that no damages were being sought against the Virgin Islands National Bank and that, therefore, its attorney need make no further defense.\\nThe plaintiff raised a number of issues of law concerning the validity of the Trade Tax Law and the method of attachment therein provided for. The following are the issues as stipulated by plaintiff at the pre-trial conference and presented in his brief:\\n(a) That attachment is a judicial process and cannot be made as an administrative process;\\n(b) That attachment is a provisional remedy and not a final remedy;\\n(c) That the provision in the Trade Tax Law denies to taxpayers the equal protection afforded under the general attachment law of the Virgin Islands as outlined in the Code of Laws;\\n(d) That the entire Trade Tax Law violates due process of law;\\n(e) That the Trade Tax Law is confiscatory and usurious;\\n(f) That while the plaintiff is indebted to the Municipality for trade taxes under the law, if valid, the amount claimed is incorrect;\\n(g) That the penalties assessed against him in the amount claimed by the Municipality have not been made in accordance with the law.\\nPlaintiff's first major contention may be summarized as follows: (1) that the remedy of attachment exists only by virtue of statute, and in our jurisdiction is provided for by chapter 14, Title III of the Code of Laws for the Municipality (1921; 5 V.I.C. \\u00a7 251 et seq.); (2) that under this law of attachment a writ of attachment can be obtained only by judicial process under specific conditions which provides for the protection of the party whose property is attached; and (3) that once established as a judicial function, the legislature, by virtue of section 25 of the Organic Act of 1936 (prc. 1 V.I.C.; 48 U.S.C. \\u00a7 1405x), cannot take it away from the Courts and make it an administrative process as it attempts to do in the tax statute.\\nAnalysis of this contention reveals that, in the first place, the general attachment law of the Municipality does not apply to the case in issue since the Trade Tax Law specifies its own remedy and procedure for collection of delinquent taxes. Nor does it matter what name the legislature gives to the procedure it prescribes, be it \\\"attachment\\\", \\\"seizure\\\", or \\\"distraint\\\", as long as the procedure to be followed is clearly specified and understood. The fact that the Trade Tax Law of 1953 provides for a procedure which it refers to as attachment does not place the subject of overdue taxes under the general law of attachment, nor does it invoke the safeguards and other provisions of that law.\\nChapter 14, Title III of the Code of Laws of the Municipality (1921; 5 V.I.C. \\u00a7 251 et seq.) provides for the remedy of attachment in certain types of cases. Collection of taxes is not specified as within the contemplation of that law, but even if it were, the legislature has the power to provide special or additional remedies in other types of cases as well as in the same types of cases enumerated in the previous law. The legislature has the power to repeal whatever it originally had the power to enact. The legislature, in the Trade Tax Law, not only described the specific procedure to be followed in collecting the trade tax, but provided in section 17 of that law that should any parts of the trade tax law conflict with any other laws of the Municipality, those laws or parts thereof shall be considered repealed. Consequently, the procedure outlined by the statute for the collection of delinquent taxes is the procedure to be followed, whatever it is called, and no other law is applicable to said matter.\\nThe pertinent sections of the Trade Tax Law of 1953 provide as follows:\\n\\\"Section 8. . . . Any tax imposed by this Ordinance which is not paid by the time required herein shall be deemed delinquent and the taxpayer shall pay, in addition to the tax due, a penalty of five (5) per cent of the amount due, plus interest at the rate of one per cent a month or fraction of a month.\\n\\\"Section 9. If any person, firm, partnership, company, association, and corporation shall neglect or refuse to pay the trade tax or gross receipts tax within thirty (30) days after written notification by the Commissioner of Finance of delinquency, the Sheriff shall, upon written order of the Commissioner of Finance, proceed to collect the same by the attachment and sale of personal property of such debtor.\\n\\\"Section 17. All laws or ordinances or parts thereof in conflict with this law are hereby repealed.\\\"\\nThere is no question that the legislature has the power to enact tax statutes and to prescribe therein the procedure for collection and enforcement. By whom, when, and through what procedure or remedy taxes shall be collected is a matter for legislative determination, subject to the rule that the procedure cannot be utterly unreasonable or arbitrary or unequal and unjust in its operation. Gautier v. Ditmar, 204 N.Y. 20, 97 N.E. 464, 51 Am. Jur. 857. That tax statutes may be enforced by summary procedure is, also, no longer open to question. In Phillips v. Com'r of Internal Revenue, 283 U.S. 589, 51 S. Ct. 608, 611, 75 L. Ed. 1289, the U.S. Supreme Court said:\\n\\\"The right of the United States to collect its internal revenue by summary administrative proceedings has long been settled. Where, as here, adequate opportunity is afforded for a later judicial determination of the legal rights, summary proceedings to secure prompt performance of pecuniary obligations to the government have been consistently sustained.\\\"\\nIn the case of McMillen v. Anderson, 95 U.S. 37, 40, 24 L. Ed. 335, the Supreme Court had before it a Louisiana statute which provided that when any person shall fail or refuse to pay his license tax, the collector shall give 10 days written notice to the delinquent requiring its payment; and the manner of giving this notice is fully prescribed. If at the expiration of this time the license be not fully paid, the tax collector may without judicial formality, proceed to seize and sell, after 10 days advertisement, the property of the delinquent or so much as may be necessary to pay the tax and costs. The court held this to be a legal mode of proceeding.\\nTherefore, as to plaintiff's first major contention, it is the opinion of this court that the general law of attachment is in no way applicable to this case; that its provisions have no bearing on the procedure to be followed in \\\"attachment\\\" as provided for in the Trade Tax Law of 1953. It is, further, the opinion of the Court that it is well within the power of the legislature to vary or modify the remedy of attachment as it applies to different situations and types of cases, provided the procedure the legislature prescribes complies with due process.\\nPlaintiff's next major contention is that the remedy and procedure provided by the Trade Tax Law denies due process of law.\\nThe attachment made by the Sheriff on the orders of the Commissioner of Finance was made specifically under the authority of Section 9 of the Trade Tax Law quoted above, and it is not contended that the procedure therein outlined was not followed or complied with. It is, however, contended that the procedure as prescribed and followed is a denial of due process of law as required by the Organic Act of the Virgin Islands and the Constitution of the United States.\\nThe United States Attorney argues that the validity of the Trade Tax Law was determined in the case of Hettinger v. Municipality of St. Thomas, 3 Cir., 2 V.I. 509, 187 F.2d 774. In that case the power of the Municipal Legislature to levy the tax was upheld and Hettinger's liability to pay the tax was affirmed. Although the Court of Appeals discussed both of these propositions, it did not discuss the validity of the various provisions of the trade tax law raised herein.\\nAttachment, as plaintiff points out is a statutory remedy and as such the legislature has the power to determine how the process shall issue. The fact that the legislature initially provided for the issuance of writs of attachment only in cases pending before the courts and that issuance thereof depended upon judicial process or action by the courts, does not mean that the same legislative body cannot at a later date modify that law or provide for attachment in other types of situations or through a different procedure, so long as it complies with due process. The Organic Act (1936; prec. 1 V.I.C.; 48 U.S.C. \\u00a7 1405 - 1406m) does not restrict the legislature in these respects. Attachment was not made a judicial process by the Organic Act but by the legislature, which is, therefore, free to alter or change this remedy and its application as concerns specific matters. The essential requirement is that the statute clearly specify the procedure to be followed and so long as it is not arbitrary and unreasonable the courts cannot substitute their judgment for that of the legislature. 51 Am. Jur. 857.\\nTax statutes may provide, and have provided from earliest times, for summary procedure for the collection of taxes. The procedure does not have to be by judicial process to be due process, but may be administrative and not be a denial of due process provided an opportunity is afforded the taxpayer to be heard and contest the amount of the tax due. Maxwell v. Page, 23 N.M. 356, 168 Pac. 492, 5 A.L.R. 155. Scottish Union & National Ins. Co. v. Bowland, 196 U.S. 611, 25 S. Ct. 345, 49 L. Ed. 619. Such non-judicial and purely administrative remedies as seizure and sale or distraint are traditional remedies in tax statutes and have been held not to divest a citizen of his property without due process of law. Gathwright v. Baltimore, 181 Md. 362, 30 A.2d 252, 145 A.L.R. 590; Kelly v. Pittsburgh, 104 U.S. 78, 26 L. Ed. 658.\\nIt has long been established that with respect to tax statutes the requirements of due process are sufficiently satisfied if provision is made whereby the taxpayer has \\\"an opportunity to question the validity or the amount of such tax or the assessment, either before that amount is finally determinated or in subsequent proceedings for its collection.\\\" Maxwell v. Page, supra.\\nIt is a common provision of most tax statutes throughout the United States that payment of taxes may be made under protest with opportunity to contest the validity or amount of the tax within a specific time, and such a procedure is also available to taxpayers of this Municipality through sections 39, 40, and 41, of the Real Property Tax Regulations of 1936 (33 V.I.C. \\u00a7 2521, 2522) which provide as follows:\\n\\\"Section 39. In all cases in which an officer charged by law with the collection of revenue due the Municipality, shall institute any proceeding or take any steps for the collection of the same, alleged or claimed by such officer to be due from any person, the party against whom the proceedings or steps are taken shall, if he conceives the same to be unjust or illegal or against any statute, pay the same under protest.\\n\\\"Section 40. Upon his making such payment the Finance Officer shall pay such revenue into the treasury, giving notice at the time of the payment to the Government Secretary that the same was paid under protest.\\n\\\"Section 41. The party paying said revenue under protest may, at any time within sixty days after making said payment, and not longer thereafter, sue the Government Secretary for said sum, for the recovery thereof in the court having competent jurisdiction thereto; and if it be determined that the same was wrongfully collected the court trying the case may certify of record that the same was wrongfully paid, and ought to be refunded and thereupon the Government Secretary shall repay the same.\\\"\\nUnder these provisions every taxpayer has an opportunity to contest the validity of his tax, whatever its nature, whether real property, trade or other tax. Plaintiff could, therefore, in the first instance, have paid under protest the tax in issue and then brought suit in this Court for recovery of all or any part there wrongfully assessed; and after the attachment is made, plaintiff can still chal lenge the validity or correctness of the tax imposed. The fact that such an opportunity was, and is, available to him sufficiently establishes that he is not being deprived of his property without due process of law. 84 C.J.S., Taxation, \\u00a7 722, p. 1423.\\nPlaintiff next contends that the trade tax is both confiscatory and usurious. Confiscatory, in that the tax is imposed on the value of the goods plus carrying charges and plus a ten per cent mark-up, thereby leaving little by way of profit to the importer. Plaintiff also points out that it is required that the trade tax of ten per cent be paid when the goods are received and not when they are sold, and the money for payment of the tax received in hand; and that, further, after sale there is another tax of 1 per cent on gross receipts, which means being taxed on expenses as well as profits.\\nThe power of the legislature to enact taxes includes the power to determine the rate that shall be applicable and courts will not interfere with this function of the legislature or its judgment in these matters, so long as the rate set is not so exorbitant as to take away all profit.\\nFurther, this is not a tax on the seller or dealer, but on the consumer. This is a 10% tax on automobiles which, in the final analysis, is paid by the purchaser of the automobile. It is the identical rate as charged by the Federal government for the delivery of automobiles by retailers in the United States. But it is not a duplicated tax. The 10% tax is paid where the delivery of the automobile is made. If the Federal tax is applicable and is paid, a car brought into the Municipality is not subject to another 10% tax. Also, it is customary here, as in the United States, for the 10% tax to be added to the sales price of the automobile and, therefore, when sold, this tax on automobiles is collected by the dealer from the retail purchaser. It is true that the dealer may have to pay this tax, along with the purchase price, before the automobile is sold, but it is then added to the retail price and has nothing, to do with, or in no way reduces his profit on the automobile. Consequently, this tax cannot be considered confiscatory by the dealer as it does not take from him anything which belongs to him. He collects from the purchaser the full amount which is due the government and is not entitled to hold this amount or consider it part of his profits.\\nThe 1 % gross receipts tax, of which plaintiff complains is similar to the sales tax in many of the States and is lower than in most States, New York being 2% and Illinois 3%. Certainly, therefore, it is not exorbitant here at 1 %.\\nAs to the charge that the tax is usurious, plaintiff contends that in addition to the penalty for non-payment, there is an interest charge of 1 per cent for every month or fraction thereof that the tax is not paid and that this is equivalent to an interest rate of 12% per annum in violation of the Municipality's Interest Law, ch. 21, Title II of the Code (1921; 11 V.I.C. \\u00a7 951 et seq.), which sets 6% per annum as the legal rate of interest.\\nAt first glance this might appear to be a valid charge, but upon a complete reading of the Trade Tax statute it will be found that the legislature clearly intended it to be a special statute with special provisions, notwithstanding any other legislative provision to the contrary. Section 17 makes it clear that wherever the trade tax law conflicts with other laws the provisions of this law shall be paramount, and there is no question that the legislature has the power to repeal its previous acts either in whole or in part.\\nIt is also settled that the legislature has the power to set certain penalties for non-payment as well as for late payment of taxes. A legislature may provide for a high rate of interest on overdue payments to the government and when such interest rates are above the legal interest rates established by law they may be regarded either as a penalty, where no penalty is otherwise provided or, as in this case, a special interest rate applicable to late payment of taxes. The legislature, which has the power to set the legal interest rate for any category of debts or payments, may treat taxes as a special category subject to special rates. It is therefore clear that the legislature here intended to place trade taxes in a special category and to set so high a rate of interest for late payment that the taxpayer would be induced to pay promptly the tax due and owing to the Municipality.\\nThe Court, therefore, concludes that the attachment by the Municipality of plaintiff's bank account is valid. This does not, however, terminate the suit for the reason that the plaintiff still has a right to be heard upon the amount rightly due the Municipality and the case will be held open for this purpose.\\nOrder may be drawn in accordance with this opinion.\"}"
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+"{\"id\": \"1080475\", \"name\": \"THE GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. CHARLES McBEAN and AMELIA McBEAN, Defendants\", \"name_abbreviation\": \"Government v. McBean\", \"decision_date\": \"1958-12-06\", \"docket_number\": \"Civil No. 17 \\u2014 1958\", \"first_page\": 419, \"last_page\": \"423\", \"citations\": \"3 V.I. 419\", \"volume\": \"3\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T23:44:54.881288+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. CHARLES McBEAN and AMELIA McBEAN, Defendants\", \"head_matter\": \"THE GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. CHARLES McBEAN and AMELIA McBEAN, Defendants\\nCivil No. 17 \\u2014 1958\\nDistrict Court of the Virgin Islands Div. of St. Croix at Frederiksted\\nDecember 6, 1958\\nLeon P. Miller, Esq., United States Attorney, Charlotte Amalie, Virgin Islands, for plaintiff\\nLeader and Padilla, Esqs., Frederiksted, Virgin Islands, R. H. Amphlett Leader, Esq., for defendants\", \"word_count\": \"1131\", \"char_count\": \"6401\", \"text\": \"MARIS, Circuit Judge\\nFrom what seems to me to be the clear weight and preponderance of the evidence and from my examination of the location itself this afternoon I make the following findings of fact:\\nThe road, a portion of which is here in question, follows in general the old estate line between Estate Camporico and Estate Hanna's Rest, running in a southerly direction from the Centerline Road to the sea. The portion of the road that is involved in this controversy is that portion of the road lying south of the northern line of Plots 144, 145, et seq., belonging to the defendants, extending across the road at which point they have installed a wire fence barring access by the public to the portion of the road which lies to the south of that point.\\nA map of the subdivision of the Whim Estate dated December 31, 1943 by the Government of the Virgin Islands shows a portion of the road here in controversy as being a roadway lying between Plot 144 on the west and Plots 103 and 152 on the east. This, as I understand, is a map which was made by the local government of these estates, title to which it had acquired, or the Municipality of Saint Croix had acquired, which was being subdivided for homesteading purposes, the lots being then or thereafter offered for sale. Subsequently, as I understand, this area or at least the unsold portion of this area of Whim Estate was acquired by the Federal Government, and by a map entitled \\\"The Revised Subdivision Map of the Whim Estate,\\\" dated March 31, 1947, Plan No. SC-47-1, which has been offered in evidence as Government's Exhibit No. 3, the same road is indicated, extending from the Center-line Road in straight line and in a southerly direction, passing the westward sides of Plots 121, 103, 152 and 170, and the eastward sides of Plots 144 and 169.\\nShortly after that map was made, the defendants, Charles McBean and Amelia McBean, as joint tenants, acquired title from the Government of the United States to Unit No. 1 of the Whim Estate, which consisted of 87.6 acres more or less as shown on the map dated March 13, 1947, entitled \\\"Revised Subdivision Map of Whim Estate,\\\" No. SC-47-1, recorded in Real Property Register No. 2, page 159 of the Office of the Recorder of Deeds of Saint Croix. Reference to the map shows that Unit No. 1, which defendants Charles and Amelia McBean acquired, consisted, among other plots, of Plots Nos. 102 and 103 on the east side of the road in controversy and Plots Nos. 144 and 169 on the west side of the road in controversy.\\nThere is ample, credible evidence, and I find that the road in controversy has been used by the public as a public road for a great many years, running back as far as 1912. By an ordinance of the Municipality of Saint Croix, approved March 18, 1947, Bill No. 36, the Municipality requested the United States to convey to the Municipality certain property, among other things the public roads in Whim Estate. And by that ordinance the Municipality committed itself as a condition of the conveyance and in justification of it to \\\"Dedicate all such roads to the perpetual use of the people of Saint Croix, and to keep open and maintain the same in like manner as other similar public roads are kept open and maintained by said Municipality, so that the farmers may have access to their lands and to the markets; may enjoy full freedom of communication with their neighbors and throughout the community; may conveniently reach public sources of potable water so essential to their welfare; and may be conveniently and adequately serviced by the machinery service operated under the sponsorship of the Municipality.\\\"\\nBy a deed dated May 20, 1947, the United States of America conveyed to the Municipality of Saint Croix certain property, including all the public roads shown on the map dated March 13, 1947, entitled \\\"Revised Subdivision Map of the Whim Estates.\\\"\\nFrom these facts, which are clear and, I think, beyond any reasonable dispute, I conclude as a matter of law that the road in controversy here, the whole of which runs in the general vicinity of the property line between Estates Camporico and Hanna's Rest and then down to the sea, is a public road which has been dedicated to the use of the public (1) by virtue of having been indicated upon plans of property of the Municipality and later of the United States which was offered for sale with these roads shown upon the plans, (2) by virtue of the ordinance of the Municipality of Saint Croix and (3) by virtue of the deed from the United States to the Municipality of Saint Croix. Moreover, I conclude that the defendant, Charles McBean, is bound by the fact that this is a public road, in view of the fact, among other things, that his deed was for Unit No. 1, as shown on the Revised Subdivision Map of the Whim Estate, to which I have already made reference several times, and upon reference to that map it appears with perfect clarity that the road in question is laid out and lies between his Plot No. 103 and his Plots Nos. 144 and 169.\\nSince I have concluded that the road in question is a public road, which has been dedicated to the use of the public by the Municipality and by the United States Government while it owned this land, it follows as a necessary conclusion of law that the Government is entitled to maintain and keep the road open for the benefit of the people of Saint Croix, not only for those who live in the vicinity, but for all of the people of Saint Croix who may have occasion to travel in that area. Since I have found that the defendants have closed off this road and prevented its use by the public, it follows that the Government is entitled to the relief which it seeks, namely, a mandatory injunction directing the defendant to remove the present fence; and a perpetual injunction restraining him from interfering with the use of the public road in question by the members of the public.\\nA decree in accordance with these findings and conclusions will be entered.\\nOral opinion.\"}"
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+"{\"id\": \"1083067\", \"name\": \"In re VIOLET AURORA SIMMIOLKJIER, et al.\", \"name_abbreviation\": \"In re Simmiolkjier\", \"decision_date\": \"1947-05-20\", \"docket_number\": \"Nos. 221-226; Nos. 252-258\", \"first_page\": 96, \"last_page\": \"106\", \"citations\": \"2 V.I. 96\", \"volume\": \"2\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:41:44.524698+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re VIOLET AURORA SIMMIOLKJIER, et al.\", \"head_matter\": \"In re VIOLET AURORA SIMMIOLKJIER, et al.\\nNos. 221-226\\n(St. Croix)\\nNos. 252-258\\n(St. Thomas)\\nDistrict Court of the Virgin Islands Divs. of St. Croix, and of St. Thomas and St. John\\nMay 20, 1947\\nSee, also, 71 F. Supp. 553\\nCroxton Williams, Asst. U. S. Attorney, St. Thomas, Virgin Islands, for the Government\\nCyril Michael, St. Thomas, Virgin Islands, amicus curiae\", \"word_count\": \"2595\", \"char_count\": \"15453\", \"text\": \"MOORE, Judge\\nAs these four cases involve the same question they will be considered and disposed of together. Two of them came up before this court in the Division of St. Croix and two in the Division of St. Thomas and St. John.\\nThe petitioners filed their petitions for naturalization under sections 310(b) and 311 of the Nationality Act of 1940 (8 U.S.C. \\u00a7 710(b), 711), which requires three years residence in the cases of Violet Aurora Simmiolkjier, and Raphael Hyppolyte Aubain and two years residence in the cases of Cynthia Vanita Phillipus and Constancia Elmira Hatchett prior to the filing thereof. The certificate of arrival filed with the petitions are based upon the reentry of the petitioners. Objection to the granting of the said petitions is filed by the Immigration Service.\\nThe petitioners arrived in the Virgin Islands of the United States at different dates, all preceding July 1, 1938, but there is no record of their arrival.\\nThe reason that this date is important in these cases is because on December 16, 1943, the Commissioner of Immigration, under the authority conferred upon him by statute, promulgated a regulation, the pertinent parts of which provide as follows:\\n\\\". . . Aliens who entered the Virgin Islands of the United States prior to July 1, 1938, shall, for purposes of reentry at any port of entry, be presumed to have been lawfully admitted for permanent residence even though no record of their admission as non-immigrants is found. Any alien within the terms to this section shall upon application for readmission to the United States be inspected and be subject to the requirements of the immigration laws and regulations the same as if the original presumed lawful entry was by recorded admission for permanent residence; and if no record exists of a reentry since such presumed lawful entry, the alien shall be regularly manifested for the purpose of recording the application for readmission. Nothing in this section shall be deemed to preclude an alien qualified to do so from applying for registry under section 328(b) of the Act of October 14, 1940 (54 Stat. 1152, 8 U.S.C. 728 [now covered by 8 U.S.C. \\u00a7 1230, 1259]).\\\"\\nTo fully understand the purpose behind the promulgation of the above regulation of December 16, 1943, it is necessary to give a brief history of immigration in the Virgin Islands of the United States, for the Islands have consistently posed immigration problems to the authorities since they were purchased by the United States from Denmark in 1917.\\nDuring the Danish administration of the Islands there were no restrictions on intercourse with the neighboring British, French and Dutch islands. Naturally, people entered and departed frequently. For several years after the transfer practically the same condition continued, because there was no effective enforcement of the United States immigration laws, as the said laws, especially the Act of March 3, 1917, were considered inapplicable to the Islands.\\nNot until June 1, 1925, were any immigration laws considered applicable to the Virgin Islands, at which time the Naval Governor proclaimed that the Act of 1924 (8 U.S.C. \\u00a7 201 et seq.), was applicable. But in spite of this there was no real enforcement thereof, for the local administration in charge of enforcing the same, due to the lack of experienced and sufficient personnel, could not handle the situation efficiently. It was easy therefore, for aliens' to slip in, either through a regular port of entry or \\\"through the window,\\\" as it is called. With the attempted enforcement of the Immigration Act of 1924 most of the aliens who were residing here stayed and those who were temporarily out returned from time to time and stayed.\\nIt was during this chaotic state of affairs the Solicitor of the Department of Labor on March 31, 1938, ruled that both the Acts of 1917 and 1924 were applicable to the Virgin Islands and were enforceable by the. Immigration and Naturalization Service.\\nUnder this ruling the Immigration and Naturalization Service on July 1, 1938, assumed responsibility for the enforcement of immigration laws and the Governor of the Virgin Islands was appointed as an acting district director and he in turn made use of the police force and employed other persons for the purpose of enforcing the immigration laws. As theretofore, due to inexperience of the persons working in this field, it did not meet with the success anticipated and on March 1, 1941, the Immigration and Naturalization Service took over completely.\\nShortly after this, with the development of the submarine, army and air bases, hundreds of aliens from the neighboring islands came in, most of them illegally, to work. Because of the insufficiency of local labor they were permitted to stay as long as they were working on defense projects. The greatest difficulty arose when these laborers were laid off, as they disliked the idea of having to return to their homeland where there were little or no opportunities for work and they had become accustomed to receiving almost unbelievable wages. Weeding these aliens out was a gigantic task for the Immigration and Naturalization Service.\\nThis, then, was the background which in part gave rise to the promulgation of the regulation regarding aliens residing in the Virgin Islands prior to July 1, 1938. This regulation was to enable aliens who entered after July 1, 1924, the effective date of the Immigration Act of 1924, and who could not establish legal entry, although having lived and established a residence, from being deportable, and to make it possible for them to re-enter if they left the Islands on a trip, since a strict interpretation of the 1924 Act would make them deportable if here, and there were no record of their arrival subsequent to July 1, 1924, and excludable, if outside seeking readmission.\\nThe question might be asked, why was July 1, 1938, fixed as the date prior to which lawful entry would be presumed as for permanent residence for re-entry purposes, even though no record of arrival may be found?\\nThe answer is, that was the date the Immigration and Naturalization Service became responsible for immigration matters and, hence, by the said regulation all aliens who entered prior to that date, whether manifested or not, were given the benefit, for re-entry purposes, of the lax enforcement or nonenforcement of the immigration laws which should have been enforced in the Islands in the same manner as all over the United States.\\nThe question is, does this presumed lawful entry of an alien for permanent residence count for naturalization purpose, even though there is no record of his arrival? It is the contention of the petitioners herein that they have resided continuously in the United States since their arrivals, all of which have been prior to July 1, 1938 (but after July 1,1924), and are therefore eligible for naturalization by reason of such residence.\\nIt will be noted from the regulation that the presumed lawful admission for permanent residence of the alien prior to July 1, 1938, is \\\"for the purpose of reentry.\\\" It will also be noted that the same regulation provides that if no record exists of the alien's presumed lawful entry, if he departed and returned, he should be regularly manifested for the purpose of recording the application for readmission.\\nThe Nationality Act of 1940, which codifies the sev eral prior nationality laws, requires, among other things, that the petitioner for naturalization must have resided in the United States for a certain number of years prior to the filing of petition for naturalization. This period varies according to the marital status of the petitioner.\\nThe Nationality Act of 1940 also provides that at the time of filing the petition there shall be filed a certificate from the Immigration and Naturalization Service (certificate of arrival) if the petitioner arrived in the United States after June 29, 1906, stating the date, place, and manner of petitioner's arrival in the United States.\\nSince a certificate of arrival is necessary to accompany a valid petition for naturalization, may the Immigration and Naturalization Service issue such a certificate based on the presumed entry of the petitioner?\\nThe question is definitely answered in the negative by the specific provision of another regulation (8 C.F.R. 363.7) which limits the regulation previously quoted, in the following terms:\\n\\\"No certificate of arrival shall be issued in behalf of an alien on the basis of an original entry which under the provision of s 110.38 of this chapter is presumed for reentry purposes to have been a lawful admission for permanent residence. A certificate of arrival will be issued on the basis of the reentry of such an alien where there is a manifest record showing that the entry was by lawful admission for permanent residence.\\\"\\nOn the basis of the reentry of the petitioners as provided in this latter regulation, they were issued certificates of arrival, which were filed with their petitions and which show the arrival of Violet Aurora Simmiolkjier to be February 10, 1945; of Raphael Hippolyte Aubain to be June 14, 1945; of Cynthia Vanita Phillipus to be April 23, 1945; of Constancia Elmira Hatchett to be August 14, 1944.\\nThe residence of the petitioners at the time of filing their petitions as shown on the certificates of arrival was less than the time required by statute in each case.\\nInasmuch as the Nationality Act of 1940 provides that a petitioner must have resided in the United States for a certain period before filing petition, and with the petition a certificate of arrival showing date of arrival must also be filed, and it is clear from the regulation (8 C.F.R. 363.7) that a certificate of arrival could not be based on the presumed entry, the only question involved is:\\n(1) In the promulgation of the said regulation by the Commissioner, was the delimiting of the presumed lawful entry for permanent residence to \\\"purposes of re-entry\\\" an abuse of any discretion he might have under the immigration laws?\\nTo determine that question we have to ascertain: (1) whether the \\\"presumed residence\\\" is residence within the meaning of the naturalization laws; and (2) what are the powers of the Commissioner.\\nIn the absence of a definition in the Nationality Act of 1940 itself and in the previous nationality laws for the term \\\"residence,\\\" we have to look to the meaning the courts have placed upon it.\\nThe term \\\"residence\\\" used in nationality acts is legal residence, and anyone who enters illegally cannot thereby acquire legal residence as a basis for application for citizenship. United States v. Goldstein, D.C., 30 F. Supp. 771; In re Scriver, D.C., 9 F. Supp. 478; Zartarian v. Billings, 204 U.S. 170, 27 S. Ct. 182, 51 L. Ed. 428; United States v. Parisi, D.C., 24 F. Supp. 414.\\nFor naturalization purposes before an alien can reside in the United States his legal admission for permanent residence must be established. Subhi Mustafa Sadi v. United States, 2 Cir., 48 F.2d 1040.\\nAn alien has not \\\"arrived\\\" in the United States until he has passed required examination to determine whether he is in the excludable classes, arrival not being effective until entry is made in compliance with legal requirements and legal residence begins. The starting point is the entry, evidence of which is registry and certificate. In re Kempson et al., D.C., 14 F.2d 668.\\nWhile it is not claimed the petitioners entered illegally, yet for naturalization purposes they cannot establish they were legally admitted at the time of their alleged entry, and the burden is upon them to prove their lawful entry. In re Olsen, D.C., 18 F.2d. 425.\\nIn a somewhat analogous case, the alien arrived in the United States on March 4, 1919. He reported for inspection and paid the head tax February 5, 1926, at which time he was given a certificate of arrival as of March 4, 1919, the alleged date of his entry. The court held that was erroneous; that he should have been registered and a certificate issued as of the date of his examination, February 5, 1926; that his legal residence did not commence until from that time. His petition was denied on that ground. In re Kempson et al., D.C., 14 F.2d 668.\\nIt is clear from the above that the presumed lawful entry and residence under the regulation is not the kind of entry contemplated in the Nationality Act of 1940, which, as has been stated before, is but a codification of other nationality acts.\\nIt is also clear that the Commissioner did not abuse his discretion in placing a limitation on the presumed residence of the petitioners herein which was prior to July 1, 1938; for his authority under the Nationality Act of 1940 in the matter of regulations is but to make such rules and regulations as may be necessary to carry into effect the provisions of the said Act. Nationality Act of 1940, sec. 327 (54 Stat. 1151; 8 U.S.C. \\u00a7 727). The Com missioner by rules or regulations cannot make nugatory any provision of the basic law under which he derives his powers. He has no power of discretion whereby he can abrogate any of the requirements of the law. In re Kempson, supra.\\nUnder the power vested in him the Commissioner went as far as he could legally go when he promulgated the regulation, relieving a situation which existed and which could have worked hardship on the petitioners and others in the same status, as without that regulation they were deportable.\\nAs it is seen, the Nationality Act requires residence after inspection and lawful entry and no other residence will count. There are exceptions, but they are by specific provisions of the said Nationality Act, such as in the case of persons arriving in the United States prior to July 1, 1924, for whom registration of their arrival is provided; and of persons serving on certain vessels, whose service is accepted as residence, even though their entry was subsequent to said service. The petitioners do not come within any of these exceptions.\\nFrom all of the above it must be concluded that the petitioners herein, not being able to prove legal entry prior to July 1, 1938, and that at the time of filing their petitions for naturalization they had not resided in the United States for the required period, as shown by the certificates filed with the petitions, they have not established their right under the Nationality Act of 1940 to naturalization and, accordingly, their petitions are denied.\\n\\\"The Nationality Act of October 14, 1940 [8 U.S.C. \\u00a7 501 et seq.], and other preceding Acts have permitted an alien arriving in the United States prior to July 1, 1924, in whose case there is no record of admission for permanent residence, to apply for registry without having to depart, upon compliance with certain regulations, and therefore is eligible for naturalization by virtue of the certificate of arrival issued nunc pro tunc pursuant to the statutory provisions. However, the applicants herein are not eligible for such registration under the Nationality Act of October 14, 1940, having arrived in the United' States subsequent to July 1, 1924.\\\"\"}"
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+"{\"id\": \"1084372\", \"name\": \"ANN REBECCA JACKSON, Plaintiff v. NILES JOSEPH JACKSON, commonly known as JOSEPH JACKSON, Defendant\", \"name_abbreviation\": \"Jackson v. Jackson\", \"decision_date\": \"1921-06-06\", \"docket_number\": \"No. 9\", \"first_page\": 17, \"last_page\": \"18\", \"citations\": \"1 V.I. 17\", \"volume\": \"1\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T01:56:33.492806+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ANN REBECCA JACKSON, Plaintiff v. NILES JOSEPH JACKSON, commonly known as JOSEPH JACKSON, Defendant\", \"head_matter\": \"ANN REBECCA JACKSON, Plaintiff v. NILES JOSEPH JACKSON, commonly known as JOSEPH JACKSON, Defendant\\nMarch Term, 1921\\nNo. 9\\nDistrict Court of the Virgin Islands Frederiksted Sub-Judicial District Saint Croix\\nJune 6, 1921\", \"word_count\": \"136\", \"char_count\": \"866\", \"text\": \"McKEAN, Judge\\nThis case has been very carefully prepared by counsel for plaintiff, as will appear by inspection of the record. All notices were duly served and the co-respondent given an opportunity to come in and defend her reputation. The evidence was not taken stenographically, but the transcript made by the clerk of the Police Judge appears. to be substantially correct. The prayer of the complaint is granted, and two decrees will be entered:\\n(a) dissolution of marriage between the plaintiff and the defendant, and\\n(b) forbidding marriage between the defendant and the co-respondent, Rose Hardcastle, so long as the plaintiff shall live.\"}"
\ No newline at end of file
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+"{\"id\": \"1087487\", \"name\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff/Appellee v. EDISON ETIENNE, Defendant/Appellant\", \"name_abbreviation\": \"Government of the Virgin Islands v. Etienne\", \"decision_date\": \"1992-12-04\", \"docket_number\": \"Crim. No. 91-130; Crim. No. F54-1991\", \"first_page\": 121, \"last_page\": \"132\", \"citations\": \"28 V.I. 121\", \"volume\": \"28\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T17:55:39.075271+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: STANLEY S. BROTMAN, Senior United States District Judge for the District of New Jersey, Sitting by Designation; ALFRED M. WOLIN, United States District Court Judge for the District of New Jersey, Sitting by Designation; JULIO A. BRADY, Territorial Court Judge, Division of St. Croix, Sitting by Designation.\", \"parties\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff/Appellee v. EDISON ETIENNE, Defendant/Appellant\", \"head_matter\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff/Appellee v. EDISON ETIENNE, Defendant/Appellant\\n[810 F. Supp. 659]\\nCrim. No. 91-130\\nCrim. No. F54-1991\\nDistrict Court of the Virgin Islands Appellate Division of St. Thomas/St. John\\nDecember 4, 1992\\nBEFORE: STANLEY S. BROTMAN, Senior United States District Judge for the District of New Jersey, Sitting by Designation; ALFRED M. WOLIN, United States District Court Judge for the District of New Jersey, Sitting by Designation; JULIO A. BRADY, Territorial Court Judge, Division of St. Croix, Sitting by Designation.\\nDEANA M. BOLLING, Esq., Assistant Attorney General, (Department of Justice), St. Thomas, V.I., for appellee\\nTreston E. Moore, Esq., (Grunert, Stout, Moore & Bruch), St. Thomas, V.I., for appellant\", \"word_count\": \"3855\", \"char_count\": \"23832\", \"text\": \"OPINION OF THE COURT\\nPER CURIAM\\nThis is an appeal from the Territorial Court's conviction of Edison Etienne (\\\"Etienne\\\") on one count for possession of a firearm in violation of 14 V.I.C. \\u00a7 2253(a).\\nI. BACKGROUND\\nThe events immediately preceding Etienne's arrest on firearm possession began on Saturday, February 23, 1991 when Etienne arrived at the Windward Hotel in a rental car with two associates, Maurice Joseph (\\\"Shadow\\\") and Antonio Emmanuel Bryan, Jr. (\\\"T.J.\\\"). Shadow had rented the vehicle, a white, four-door Mirage.\\nSaturday evening, T.J. and Shadow let a room at the Windward Hotel. Shortly thereafter, T.J. placed a twelve gauge shotgun in the trunk of the rental car.\\nThe following evening, Etienne stayed as an overnight guest with T.J. and Shadow in the Windward Hotel. On Monday, February 25, 1991, the three men checked out of their room. As T.J. paid the bill, Etienne and Shadow packed the car. Etienne testified that he carried a brown plastic bag and black radio to the car. After loading the car, Shadow passed the car keys to Etienne and left to join T.J. at the front desk.\\nAgent Johnson Decembre had a different recollection of Etienne's activity. At trial, Agent Decembre testified that, on Monday morning, he and Agent Fitzroy Brann observed three men pass before their car. One of them, identified as Etienne, was carrying an unartfully concealed shotgun under his arm. Agent Decembre and Brann then observed Etienne put the shotgun into a case, which lay in the trunk of the rental vehicle. The bag carried by Etienne contained shotgun shells. Based on their observations, the agents arrested Etienne.\\nShortly thereafter, officers Benjamin and Williams arrived and took possession of the weapon and shells. The weapon was not test fired or fingerprinted. Etienne was thereafter charged by government information with one count of possession of a firearm. Shadow was charged in a separate count of the same information for possession of a .38 revolver in violation of 14 V.I.C. \\u00a7 2253(a). Based on the record before the Court, T.J. was not implicated in any wrongdoing in connection with the events that transpired at the Windward Hotel on February 25, 1991.\\nThe same day, Territorial Court Judge Alphonso Christian set bail for appellant at $500. Etienne was arraigned on March 7,1991. Etienne's appointed counsel filed a motion for supplemental discovery on April 15, 1991. Therein, Etienne's counsel requested fingerprint impressions from the gun and discovery of the unidentified agent. On May 1st, Etienne's counsel filed a motion to compel the Government's response. The government provided its initial response on May 30, 1991, but failed to provide the agent's name and the weapon's fingerprints. On June 24th, the Government identified the second agent as Decembre. Etienne's motion to sever defendants was granted on August 30th. The weapon was not fingerprinted until the day of trial.\\nEtienne was tried before the Territorial Court of the Virgin Islands. At trial, the court refused to instruct the jury that Etienne could only be found guilty if he were in actual, knowing possession of the firearm at the time of this arrest. Appellant also contends that the court failed to give instruction on mens rea. Moreover, the court provided instruction on constructive possession, joint possession and aiding and abetting another's possession. Etienne was subse quently convicted of one count of possession of a twelve-gauge shotgun in violation of 14 V.I.C. \\u00a7 2253(a).\\nOn October 23, 1991, Etienne was sentenced to six-months imprisonment. His counsel brought a motion for new trial on the basis that Joseph and Bryan wanted to waive their immunity and provide exculpatory testimony. This motion was denied.\\nEtienne, through his counsel, filed notice of appeal on October 9, 1991 and an amended notice of appeal on November 5th. The court stayed execution of the judgment pending disposition of Etienne's appeal. By an Order dated October 27, 1992, the Court extended nunc pro tunc for a period of thirty-days the time for the parties to serve their respective submissions.\\nWhile appellant submitted a brief in support of his application, the government failed to respond until three-days before the date of oral argument. The Court found that it would unfairly prejudice appellant and unjustly reward the government to accept the government's papers at such a late date. As a result, this Court did not consider the government's submissions, and entertained oral argument on the following issue: whether the trial court erred in its charge to the jury by its instruction on constructive possession.\\nII. DISCUSSION\\nEtienne argues that the jury instructions contained multiple infirmities. Of these, his first and most persuasive argument is that the trial court improperly instructed the jury on constructive possession as an appropriate basis for the actus reus element required by 14 V.I. \\u00a7 2253(a).\\nIssues on appeal that pertain to jury instructions constitute questions of statutory construction because they require the interpretation and application of legal precepts. United States v. Grayson, 795 F.2d 278, 288 (3d Cir. 1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 927, and cert. denied, 481 U.S. 1018, 107 S.Ct. 1899 (1987); Universal Minerals Inc. v. C.A. Hughes & Co., 669 P.2d 98, 102-03 (3d Cir. 1981). The Third Circuit considers questions of statutory construction a finding of law entitled to plenary review. Ballay v. Legg Mason Wood Walker. Inc., 925 F.2d 682, 684 (3d Cir.), cert. denied, \\u2014 U.S. \\u2014, 112 S.Ct. 79 (1991); Universal Minerals, 669 F.2d at 10.\\nIn its review of a particular jury charge, the Court must \\\"determine whether the charge, taken as a whole and viewed in light of the evidence, fairly and adequately submits the issues in the case to the jury.\\\" Ayoub v. Spencer, 550 F.2d 164, 167 (3d Cir.), cert. denied, 432 U.S. 907, 97 S.Ct. 2952 (1977).\\nThe appellant directs the Court's attention to the portion of the trial court judge's final jury instructions that pertains to the possession element of 14 V.I.C. \\u00a7 2253(a). More specifically, Etienne charges it was error for the trial court to charge constructive possession under the statute.\\nThe law recognizes two types of possession, actual and constructive. Actual possession exists when \\\"the thing [possessed] is in the immediate possession or control of the party.\\\" Rodella v. Barnes, 286 F.2d 306, 311 (9th Cir.), cert. denied, 365 U.S. 889, 81 S. Ct. 1042 (1960). Constructive possession entails a person's power and intention to \\\"knowingly\\\" exercise \\\"dominion and control\\\" of the weapon at any given time. United States v. Bonham, 477 P.2d 1137, 1138 (3d Cir. 1973); United States v. Davis, 461 F.2d 1026, 1035 (3d Cir. 1972). It exists \\\"without actual personal occupation of land or without actual personal present dominion over a chattel, but with an intent and capability to maintain control and dominion.\\\" Rodella, 286 P.2d at 312.6\\nThe question now becomes which definition of possession does section 2253(a) incorporate. Section 2253(a) applies to a defendant who \\\"possesses . . . either openly or concealed on or about his person\\\" or \\\"under his control in any vehicle.\\\" 14 V.I.C. \\u00a7 2253(a) (emphasis added). It is the Government's contention that this second clause represents constructive possession language. Based on Bonham, Davis and Rodella, however, the language of the statute defines actual, not constructive possession. It can be readily contrasted with language from other statutory provisions that were designed to apply to constructive possession. For example, former-New York Penal Law \\u00a7 1897(4) (1944) \\u2014 now NY Penal Law \\u00a7 265.05 \\u2014 provided a constructive possession provision: \\\"any person . . . who shall have in his possession . . . any . . . firearm.\\\" This provision is broader than section 2253(a) because it is not qualified by possession \\\"on or about his person\\\" or \\\"under his control.\\\"\\nTwenty-one U.S.C. \\u00a7 844 (Supp. 1991) represents another statute that utilizes the concept of constructive possession. Section 844 states that \\\"it shall be unlawfful . to possess a controlled substance.\\\" This possession element also lacks the restrictive phraseology found in 14 V.I.C. \\u00a7 2253(a). Judicial construction of this section has unanimously found that it incorporates both actual and constructive possession. E.g. United States v. Wilson, 657 F.2d 755 (5th Cir.), cert. denied, 455 U.S. 951, 102 S. Ct. 1456 (1981); United States v. Bonham, 477 F.2d 1137 (3d Cir. 1973) (interpreting section 844's similarly phrased predecessor section, 26 U.S.C. \\u00a7 4704(a)); United States v. Holland, 445 F.2d 701 (D.C. Cir. 1971) (construing section 844's comparably worded antecedent, 21 U.S.C. \\u00a7 174).\\nIn support of his appeal, Etienne directs the court's attention to the territorial court case Government v. Elliot, 20 V.I. 44 (Terr. Ct., Div. of St. Thomas and St. John, 1983), which held that section 2253 only proscribes actual possession. While Elliot is only persuasive authority, it thoroughly examines whether section 2253(a) incorporates the concept of constructive possession. The Territorial Court in Elliot reviewed section 2253(a) and found that constructive possession does not fall within the ambit of the statute. Id. at 50. The court based its ruling on the section's historical background and the surrounding statutory scheme. Most notably, the court observed that sections 2251-53 were largely modelled after former-N.Y. Penal Law \\u00a7 1897. Id. at 47. Although the New York statute contained a provision that penalized constructive possession, this provision was conspicuously absent from the Virgin Islands statutory equivalent. Id. at 48. The court found that the Virgin Island's analogue did not make constructive possession a crime, but only penalized \\\"carrying a firearm upon one's person.\\\" Id.\\nThe Elliot court's review of other Virgin Islands statutes that outlaw the possession of firearms reinforced its conclusion. For example, the court found that chapter 5 of Title 23 of the Virgin Islands Code prohibited constructive possession of an unlicensed firearm. Id. at 50. The legislation based its 1974 revision of 14 V.I.C. \\u00a7 2253 on a section found in chapter 5 of Title 23, 23 V.I.C. \\u00a7 477 (1970), but it did not amend section 2253 to incorporate a constructive possession element.\\nThe Elliot decision provides a thorough and well-reasoned treatment of the issue currently before the Court. Clearly, as a decision by a Territorial Court, it is not binding either on this Court or the trial court; rather, Elliot is persuasive authority. Since Elliot was decided in 1983, the legislature has had nearly ten-years to amend section 2253 and abrogate Elliot. In light of the reality that the legislature of the Virgin Islands has taken no action to amend the statute to specifically criminalize constructive possession of a firearm, particularly in face of the Elliot decision, we conclude that the legislature does not authorize a conviction for constructive possession of a firearm under section 2253.\\nThe dearth of other authority that interprets section 2253 provides additional reason to adopt the Elliot decision. Moreover, like Elliot, a decision that construes the statute narrowly comports with established principles of construction for penal statutes\\u2014 criminal statutes should be strictly construed, and penalties should not be imposed thereunder unless the statute plainly warrants it. United States v. Compos-Serrano, 404 U.S. 293, 299, 92 S. Ct. 471, 475 (1971); United States v. Mearns, 599 F.2d 1296, 1298 (1979), cert. denied, 447 U.S. 934, 100 S. Ct. 3037 (1980).\\nThere are some differences between the instant matter and Elliot, however. The facts presented here provide sufficient grounds to find actual possession. Two agents reportedly witnessed Etienne carry a firearm and place it in the trunk of a rental vehicle. While the car was rented to T.J., Etienne held the keys at the time of his arrest. In contrast, Elliot involved three weapons, one in a briefcase carried by defendant and the other two stored upon defendant's yacht. The court dismissed the two counts that pertained to the weapons found on the ship because these weapons could only be possessed constructively.\\nThis Court is not faced with a motion to dismiss the information. Rather, this Court encounters an appeal charging error in the trial court's general jury instructions. While sufficient evidence exists to charge the jury on actual possession, it was error as a matter of law for the trial court to charge both constructive and actual possession.\\nA new trial is necessary if the error was not harmless. United States v. Dowling, 855 P.2d 114, 122 (3d Cir. 1988). When faced with errors of a constitutional magnitude, a court may only dismiss error as harmless if it can make this conclusion beyond a reasonable doubt. Grayson, 795 F.2d at 290. For other errors, such as the one currently encountered, the Court must reverse \\\"unless [we] believe it highly probable that the error did not affect the judgment.\\\" Government v. Toto, 529 F.2d 278, 284 (3d Cir. 1976). In turn, the \\\"high probability\\\" standard requires that this Court have, a \\\"sure conviction that the error did not prejudice the defendant.\\\" United States v. Jannotti, 729 P.2d 213, 219-20 & n.2 (3d Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 244 (1984). In the present case, the court lacks a \\\"sure conviction\\\" of the type necessary to find harmless error. Both Etienne and T.J. testified that Etienne carried a black radio from the room in the Windward Hotel to the car. In addition, T.J. testified that he had placed the firearm in the car trunk on Saturday night. On the other hand, Agent Decembre testified that Etienne carried what he observed to be a firearm. Based upon this evidence, it is not possible to glean from the jury's verdict whether the jury found that appellant possessed the firearm within the meaning of section 2253(a) based on actual possession or constructive possession. Clearly, the jury's potential reliance on the constructive possession instruction would more than \\\"marginally affect\\\" the outcome. Dowling, 855 F.2d at 124. As a result, this Court must reverse the conviction and grant Etienne a new trial.\\nAs for the other challenges brought by appellant, the Court finds them largely without merit and rendered meaningless by today's decision. Because the trial court must charge a jury in a new trial, this Court will briefly address appellant's other challenges that pertain to the jury charge. The trial court adequately instructed on mens rea. It was within the trial court's discretion to forego an instruction on flight. Government v. Brown, 685 F.2d 834, 837 (3d 1982). And, while there is a statutory requirement that the jury must be sworn immediately after selection, 5 V.I.C. \\u00a7 3604, the authority cited by appellant reveals that this is not followed in practice. Government v. Duberry, 923 F.2d 317, 321 (3d Cir. 1991). The Third Circuit has previously reported without disapproval that two-week delays are not uncommon. Id. The two-day delay present in the instant case does not require a new trial.\\nIII. CONCLUSION\\nAs a result of the foregoing, appellant's conviction is vacated and the case is remanded to the Territorial Court for further proceedings consistent herewith.\\nORDER\\nAND NOW, this 16th day of December, 1992, the Court having considered the written submissions of the appellant and oral argument of the parties; and\\nFor the reasons set forth in the accompanying opinion of even date;\\nIT IS ORDERED:\\nTF1AT the Territorial Court's decision is REVERSED; and\\nTHAT appellant be granted a new trial consistent with the instructions provided in the Court's opinion.\\nV.I. Code Ann. tit. 14, \\u00a7 2253(a) (Equity 1991) makes it a crime to carry firearms:\\nWhoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either openly or concealed on or about his person, or under his control in any vehicle of any description any firearm, as defined in Title 23, section 451(d) of this code, loaded or unloaded, may be arrested without a warrant, and shall be sentenced to imprisonment of not less than six months nor more than three years and shall be fined not more than $5,000, except that if such person shall have been convicted of a felony in any state, territory, or federal court of the United States, or if such firearm or an imitation thereof was had, possessed, borne, transported or carried by or.under the proximate control of such person during the commission or attempted commission of a crime of violence, as defined in subsection (d) hereof, then such person shall be sentenced to imprisonment of not less than five years nor more than ten years and shall be fined not more than $10,000. The foregoing applicable penalties provided for violation of this section shall be in addition to the penalty provided for the commission of, or attempt to commit, the felony or crime of violence.\\nV.I. Code Ann. tit. 23, \\u00a7 451(d) (1970) defines firearm:\\n\\\"Firearm\\\" means any device by whatever name known, capable of discharging ammunition by means of gas generated from an explosive composition, including any air gas or spring gun or any \\\"BB\\\" pistols or \\\"BB\\\" guns that have been adapted or modified to discharge projectiles as a firearm.\\nEtienne's counsel had filed a motion to compel production of evidence and exculpatory material on August 30th. In the notice of motion, counsel specifically requested \\\"identification of any and all fingerprints lifted from one 12 gauge shotgun seized.\\\" Appellant's App. p. 19.\\nOn September 3,1991, the court ordered the Government to retrieve fingerprints from the weapon. Jury selection took place two days before the trial scheduled for September 5th. On the day of the trial, the Government initially informed the court that it had been unable to locate the weapon, and the Court issued an order dismissing the charges against Etienne. Shortly thereafter, the Government informed the court that the weapon had been found, and the court rescinded its earlier order. The Government also advised the court that the weapon had been test fired and fingerprinted. The latter was inconclusive because of \\\"smudges\\\" on the weapon.\\nThe Territorial Court provided the following jury instruction on possession:\\nNow, since the Government alleges that he possessed this firearm, let me define possession for you. The Law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. I am in actual possession of the pen because I am holding it, which is what we mean by actual possession.\\nA person who, although not in actual possession, knowingly has both the power and the intention at any given time, to exercise dominion or actual control over a thing, either directly or through another person, is then in constructive possession of it. Now, I know longer have the pen in my hand, but since it's so close to me, I could exercise dominion and control over the pen. Let me give you another example. You are in your automobile driving. You have actual possession of it \\u2014 your automobile because you are actually in it driving. You came here this morning, you put your automobile in the parking lot, you have the keys to your automobile. So, because you have the keys to your automobile, you exercise dominion and control over your automobile even though you are not in the automobile right now. You are in constructive possession of the automobile. The Law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole; that is, if one has actual or constructive possession. If two or more persons share actual or constructive possession of a thing, possession is joint....\\nNow, you may find that the element of possession as that term is used in these instructions is present if you find beyond a reasonable doubt that the Defendant had actual or constructive possession, either alone or jointly with others. App. of Appellant (Final Instruction to the Jury) at 120-21.\\nDespite the Assistant Attorney General's failure to file a timely brief, the court permitted the Government to argue the merits of its case. The Court did this, however, with some hesitation. The Government's failure to file timely briefs is a serious problem in this jurisdiction. The Court now puts representatives of the Government on notice that their failure to obey Court deadlines and orders will not \\u2014 indeed cannot \\u2014 be tolerated in the future. The Government must establish thorough and efficient procedures for the receipt and filing of court papers. Clearly, the just and efficient administration of justice depends on all litigants complying with Court orders and deadlines. The Government is no exception.\\nEtienne raised five issues in his brief submitted in support of his appeal:\\n1. Whether the court erred in its charge to the jury where the court included an instruction on constructive possession and failed to give an instruction on Shadow's flight at the time of Etienne's arrest.\\n2. Whether the post-conviction availability of two witnesses requires a new trial where said witnesses had asserted their privilege not to testify at trial.\\n3. Whether the Government's refusal to obtain fingerprints from the firearm prior to the day of trial deprived Etienne of exculpatory evidence.\\n4. Whether the Government violated Etienne's fundamental rights by proceeding to trial at a time where it was unable to locate the firearm involved.\\n5. Whether the court erred in its failure to swear the jury immediately after its selection.\\nAppellant urged at oral argument that, even if the Court finds section 2253(a) incorporates a constructive possession aspect, the trial court failed to provide that this constructive possession must be exercised knowingly. We disagree. To the extent that the trial court charged on constructive possession, it did so correctly.\\nThe territorial court provided the following instruction on intent:\\n[T]he prosecution must prove to your satisfaction beyond a reasonable doubt that the Defendant acted intentionally when he committed the crime. A person acts intentionally when he purposely does an act which the Law declares to be a crime even though he may not know the act is unlawful. The Defendant acts intentionally if he desires to cause the consequence of his act or if he believes that a consequence was substantially certain to result from his act.... Now, the crime charged in this case is a crime which requires proof of specific intent before the Defendant can be convicted. Specific intent means more than the general intent to commit the act.\\nAppellant's App. (Final Instructions to the Jury) at 122-23. The Appellant's objection was that the instruction on intent was separated from the instructions on the other elements of the offense. The Court finds the instructions sufficiently clear.\"}"
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+"{\"id\": \"1090933\", \"name\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. ALPHONSE STEELE, Defendant\", \"name_abbreviation\": \"Government of the Virgin Islands v. Steele\", \"decision_date\": \"1991-10-29\", \"docket_number\": \"Criminal No. 463/89\", \"first_page\": 190, \"last_page\": \"200\", \"citations\": \"26 V.I. 190\", \"volume\": \"26\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:54:40.196764+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. ALPHONSE STEELE, Defendant\", \"head_matter\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. ALPHONSE STEELE, Defendant\\nCriminal No. 463/89\\nTerritorial Court of the Virgin Islands Div. of St. Thomas and St. John\\nOctober 29, 1991\\nORIN L. Alexis, Esq., Assistant Attorney General (Department of Justice), St. Thomas, V.I., for plaintiff\\nVincent F. Frazer, Esq., St. Thomas, V.I., for defendant\", \"word_count\": \"3204\", \"char_count\": \"19191\", \"text\": \"HODGE, Presiding Judge\\nMEMORANDUM OPINION\\nThe two questions presented by Defendant's Motion to Dismiss are: (1) whether 23 V.I.C. 1522(3) creates a criminal offense for a curfew violation, and if not, (2) whether the Governor has the authority to create such a criminal offense. For the reasons which follow, this court answers both questions in the negative, and will grant Defendant's Motion to Dismiss.\\nFACTS\\nOn September 17-18, 1989, Hurricane Hugo swept through the Virgin Islands destroying homes and businesses and leaving residents without electricity, water, communication and basic services. The community faced chaotic conditions, its infrastructure was decimated, and many residents needed emergency relief. Governor Alexander Farrelly immediately mobilized the National Guard by an administrative Order dated September 17, 1989, pursuant to T.23, Ch.19 of the V.I. Code (the National Guard Act of 1972), and on September 19, 1989 issued a Proclamation declaring a State of Emergency. The Governor also imposed a territory-wide curfew by a handwritten addendum on the bottom of the National Guard mobilization Order of September 17,1989. The handwritten curfew addendum stated, in full, as follows:\\n\\\"Pursuant to my authority granted by Title 23, section 1522(3) Virgin Islands Code, I hereby declare a curfew, effective 10:00 p.m. Sunday, September 17, 1989 and direct that all persons other than emergency service personnel and persons on emergency travel shall remain off the streets and public areas of the Territory of the Virgin Islands until further notice.\\\"\\nNo time frame was given outlining when the public could leave their homes or places of employment, or return thereto. The curfew was not limited to a particular time of day, and it was so broad that its prohibition applied to all persons for the entire day for every day that it was in effect, and throughout the entire Territory, unless one of the \\\"emergency\\\" exceptions applied. The curfew addendum did not indicate that its violation would be treated as a criminal offense, and did not cite any authority for such treatment. Two months later the Governor, for the first time, indicated that a curfew violation would be treated criminally. This indication was made in the preamble of the November 17, 1989 proclamation, which continued the curfew, by the following WHEREAS phrase:\\n\\\"WHEREAS, I have determined... that a violation of said curfew shall be treated as a misdemeanor.\\\"\\nThe curfew was extended by Proclamations on October 17, 1989, November 17, 1989, and December 17, 1989, and was canceled by a final Proclamation on January 3, 1990. In the Proclamations, the Governor cited 23 V.I.C. section 1522 as his authority for declaring the curfew, and the Revised Organic Act of 1954, as amended, as his authority for proclaiming the continuance of the curfew. However, no authority was cited for treating a curfew violation as a misdemeanor.\\nNone of the Proclamations narrowed the breadth of the curfew order, although various news releases from the Government Information Office announced the gradual reduction of the hours during which the curfew would be in effect. On September 19,1989 a press release issued by the Government Information Office was distributed to the media and aired on local radio indicating that the curfew would be limited to the hours of 6:00 P.M. to 6:00 A.M. Subsequent press releases further reduced the curfew hours until its cancellation.\\nDuring the period of the curfew several residents were arrested and criminally charged for violating 23 V.I.C. section 1522(3). In this case, the defendant, a fisherman, was arrested at 2:30 A.M. on October 27,1989 for violating the curfew. Police arrested him in front of his home, which is adjacent to the Coki Point road in St. Thomas, while he was fixing the vehicle from which he sells his catch. He was arraigned on January 4,1990 at which time he pleaded \\\"Not Guilty\\\" to the curfew violation. Defendant moves to dismiss the case contending that even if the curfew order was valid, there is no legal basis for its enforcement as a criminal misdemeanor. Specifically, he contends that 23 V.I.C. section 1522(3) merely authorizes the Governor to declare a curfew, that it does not create a crime, and that the Governor has no power to create a crime for a curfew violation where no such authority has been vested in him by the Organic Act, the Local law, or the Common law.\\nDISCUSSION\\nA. Background\\nIn the first test of the Hurricane Hugo emergency orders, the District Court of the Virgin Islands held that the Governor acted within the scope of his authority in imposing the curfew. Moorehead v. Farrelly, 24 V.I. 318 (D.V.I.1989). Faced with a civil petition challenging the validity of the curfew order, the District Court held that the curfew was justified as an effective means of maintaining law and order. At the time of the civil challenge to the curfew order, the Governor had not yet declared curfew violations to be crimes. That was not done until the Proclamation of November 17, 1989. In this case, no one questions whether the Governor has the authority to declare a curfew, or whether the curfew order is void for vagueness. Instead, the issues we face in this case are (1) whether 23 V.I.C. section 1522(3) creates a criminal offense for a curfew violation, and if not, (2) whether the Governor has the authority to create such a criminal offense.\\nB. Organic Act\\nThe Revised Organic Act of 1954, as amended (Organic Act), applies the Separation of Powers Doctrine to the Virgin Islands. Luis v. Dennis, 20 V.I. 373, 751 F.2d 604 (3d Cir. 1984). Section 11 of the Organic Act vests the executive power of the Virgin Islands in the Governor, who has control of all departments, instrumentalities, and agencies of the Executive Branch. It also grants him the power to declare martial law in cases of rebellion, invasion or imminent danger, and to dispatch military forces in the Virgin Islands in the event of disaster, imminent danger or insurrection.\\nSection 5 of the Revised Organic Act, as amended, establishes the Legislative Branch of the Virgin Islands which is charged, among other things, with the responsibility to create crimes and to define the applicable punishment. It is settled law that in our system of government declaring crimes and defining penalties are Legislative functions. See, United States v. Hudson and Goodwin, 11 U.S. 32, 33; 3 L.Ed. 259, 260 (1812); United States v. Eaton, 144 U.S. 677, 688; 12 S.Ct. 764, 767 (1892); Viereck v. United States, 318 U.S. 236, 241; 63 S.Ct. 561, 563 (1943).\\nUnder the Separation of Powers Doctrine, the Executive Branch cannot create or define crimes. See, 21 Am. Jur. 2d, Criminal Law, section 14; 16 Am. Jur. 2d, Constitutional Law, section 319. Also, a court cannot criminally punish a person for committing an act which has not been made a criminal offense by the Legislative branch of government.\\n\\\"We cannot punish a person for committing an act which has not been made a criminal offense by the Legislative branch of government.\\\"\\nGovernment of the Virgin Islands vs. Brown, 15 V.I. 541, 547; 571 F.2d 773, 777 (3d Cir. 1978). In the famous Steel Seizure case this principle of Separation of Powers was emphasized as follows:\\n\\\"In the framework of our Constitution, as amended, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the constitution is neither silent nor equivocal about who shall make laws which the President is to execute.\\\"\\nYoungstown Sheet & Tube Co. v. Sawyer 343 U.S. 579, 587; 72 S.Ct. 863, 867; 96 L.Ed. 1153, 1158 (1952). Similarly, the Revised Organic Act, as amended, vests no authority in the Governor to create any crime, whether misdemeanor or felony.\\nC. Local Law\\nVirgin Islands law does not create a crime nor provide a criminal punishment for violation of a curfew imposed by the Governor pursuant to 23 V.I.C. section 1522(3), which provides, in pertinent part, as follows:\\n\\\"Whenever the Governor orders part or all of the military forces of the Virgin Islands into Territorial Active Military Service under Section 1519 he m\\u00e1y, by written order,\\u2014\\n\\n(3) Declare a curfew during such periods and with respect to such areas and persons as in his discretion the public safety requires.\\\"\\nThis statute merely grants the Governor the authority to declare a curfew, and is a part of the National Guard Act, not the Criminal Code nor the Territorial Emergency Management Act. Before a person's acts may be categorized as criminal, fundamental fairness and due process demand that these acts must first have been defined and made criminal by the Legislature. A crime is generally made up of two elements: (1) a prohibited conduct and (2) a resulting penalty. Both elements must be enacted by the Legislature. 14 V.I.C. section 1; Black's Law Dictionary (5th Ed.) 337; 21 Am. Jur. 2d Criminal Law, section 5. In this case, neither of these two elements is present in 23 V.I.C. section 1522(3); therefore, it does not create a criminal offense for a curfew violation.\\nMany state legislatures which empower their governors or executive officers to declare a curfew during an emergency or natural disaster also enact legislation making a violation of the curfew a criminal offense. For example, in the State of Massachusetts, legislation provides that persons violating a curfew declared by the Governor \\\"shall be punished by imprisonment for not more than six months or fined for not more than $500.00, or both.\\\" Mass. Ann. Laws Ch. 40, 37A (1990). Similarly, Pennsylvania law imposes a fine of up to $300.00 or imprisonment for up to 30 days, or both, for curfew violations. 53 P.S. section 30360 (1989).\\nOther jurisdictions impose civil and/or criminal penalties. In Maryland, for example, legislation provides that civil penalties cannot exceed a fine of $1,000.00 for each curfew violation, and the civil penalty may be imposed in lieu of or in addition to a criminal penalty punishable by a fine of up to $1,000.00 or imprisonment for up to six months, or both. Md. Ann. Code Art. 41, section 2-101(2) and (5)(g). In the District of Columbia, only civil fines, penalties, and fees are imposed by law as sanctions for violating a curfew declared by the Mayor. D.C. Code section 6-1504(4)(b).\\nThe Virgin Islands curfew law in issue does not provide for criminal nor civil penalties. Thus, it is reasonable to infer that the Legislature assumed that some form of administrative procedure would have been established by the Executive Branch in order to enforce a declared curfew. The record does not reveal whether such an administrative scheme for curfew enforcement has been promulgated to date, but it is clear that none was implemented during this curfew. Since the Organic Act vests in the Legislature the authority to create crimes, that body could not abdicate its crime-creating authority to the Governor. See, Hodge v. Government of the Virgin Islands, 19 V.I. 602 (D.V.I. 1983); In the Matter of the Application of Deverita Carty Sturdivant for Admission to the Bar, 1982 St.T. Supp. 162 (D.V.I., July 23, 1982); Virgo Corporation v. Paiewonsky, 6 V.I. 256, 275, 384 F.2d 569, 578-579 (3d Cir. 1967). Thus, the authority granted by the Legislature to the Governor in 23 V.I.C. section 1522 to declare a curfew does not include the authority to create a misdemeanor or a felony for a curfew violation.\\nSimilarly, Title 23 V.I.C. section 1121, et seq. (the Virgin Islands Territorial Emergency Management Act) gives no power to the Governor to declare crimes, even though he is given broad authority to do, among other things, the following:\\n\\\"(7) Control ingress and egress to and from an affected area, the movements of the persons within the area and the occupancy of premises. . .\\n(10) Take any other action he deems necessary.\\\"\\n23 V.I. section 1125(f). Subsection 7 by implication gives the Governor the authority to declare a curfew since it allows him to control the movement of residents affected by a disaster. See, Moorehead v. Farrelly, supra. However, this does not authorize him to create a crime by implication. The catchall provision of Subsection 10 gives the Governor the flexibility, in conjunction with 23 V.I.C. section 1522, to act during an emergency to ensure the safety of the public. While it may seem that this provision allows the Governor to do whatever he wants during an emergency, his actions are limited to those that are constitutionally and legally authorized. See, Gov't, v. Brown, supra.\\nMoreover, the Governor could not have received such authority from Title 14 V.I.C. section 3(b), which provides for general penalties for crimes where no penalties are specifically prescribed by law.\\n14 V.I.C. section 3(b) states, in pertinent part, as follows:\\n\\\"(b) When . .\\n(1) An act or omission is declared by this Code or other law to be a crime or public offense, but without designation thereof as either a felony or a misdemeanor; and\\n(2) no penalty therefore is prescribed by this Code or other law. . . .\\nthe act or omission is punishable as a misdemeanor.\\\"\\nThis provision applies to cases where the act or omission has already been declared a crime or public offense by local or federal law. Since neither the local nor federal laws make a violation of such an emergency curfew a crime or public offense, 14 V.I.C. section 3(b) is not applicable here. In this case, the handwritten addendum which declared the curfew does not constitute a \\\"law declaring an act to be a crime\\\" as contemplated by 14 V.I.C. section 3(b). Indeed, if Subsection 3(b) were applicable in this case, there would have been no need for the Governor to declare it a misdemeanor.\\nFurthermore, if the Legislature intended to make a violation of an emergency curfew a criminal offense it could have done so expressly, as it did when it established a non-emergency child-curfew law to keep minors off the streets. Title 14 V.I.C. section 481. In enacting that child-curfew statute the Legislature on April 28,1977 created a misdemeanor offense for a second or subsequent violation for which parents may be fined up to $500.00. Clearly, it had the opportunity to make a criminal offense of an emergency curfew violation when in 1984 and 1986 it amended the Virgin Islands Territorial Emergency Management Act (23 V.I.C. section 1121 et seq.). It also had the opportunity to do so in 1988 and 1990 when it amended the National Guard Act (23 V.I.C. section 1519 et seq.). There is no doubt therefore that the Legislature did not intend to make 23 V.I.C. section 1522 a criminal law, and that the Governor cannot usurp the legislative power to create a criminal offense when the Legislature has not chosen to do so. Moreover, if the Governor can declare a curfew violation to be a misdemeanor during this emergency, there would be nothing to prevent him from declaring it to be a felony during the next emergency!\\nAccordingly, the foregoing establishes beyond doubt that the Governor has no authority under local law to create a criminal offense for a curfew violation.\\nD. Common Law\\nThis court rejects the Government's argument that curfew violations can be prosecuted as common law criminal offenses. Although the rules of common law are the rules of decisions in Virgin Islands courts, they only apply in the absence of local laws to the contrary. Strict and specific language defining criminality and punishment is incorporated into Virgin Islands criminal statutes. Because 23 V.I.C. section 1522 specifically grants the Governor the authority to declare a curfew, common law is not applicable here. Simply stated, where no crime is enumerated in statutory law, no crime exists. Moreover, a curfew violation was not a crime at common law. 1 Wharton, Criminal Law 18-24 (12th ed. 1932). Thus, the use of common law to prosecute this case would be erroneous.\\nCONCLUSION\\nBased on the foregoing, 23 V.I.C. section 1522(3) does not create a criminal offense for a curfew violation, and the Governor has no legal authority under federal, local, or common law to do so. Hence, the Governor's declaration of a criminal misdemeanor for a curfew violation is null and void and therefore unenforceable.\\nAccordingly, the defendant's Motion to Dismiss will be granted.\\nORDER\\nThis matter is before the court on defendant's Motion to Dismiss the criminal charge for curfew violation. In accordance with the court's Memorandum Opinion of even date, it is hereby,\\nORDERED, that defendant's Motion to Dismiss is GRANTED, and this case is hereby DISMISSED.\\nA PROCLAMATION BY THE GOVERNOR OF THE VIRGIN ISLANDS EXTENDING THE CURFEW.\\nWHEREAS Title 23, section 1522, Virgin Islands Code, grants the Governor of the Virgin Islands of the United States the authority to declare a curfew; and\\nWHEREAS I declared a curfew pursuant to the above authority on the 17th day of September, A.D., 1989; and\\nWHEREAS I have determined that it is in the public's best interest that the curfew be continued, and that a violation of said curfew shall be treated as a misdemeanor.\\nNOW, THEREFORE, I, Alexander A. Farrelly, Governor of the Virgin Islands of the United States, by virtue of the authority vested in me by the Revised Organic Act of the Virgin Islands, as amended, do hereby proclaim the continuance of the curfew for the entire Virgin Islands this 17th day of November, A.D., 1989.\\nIN WITNESS WHEREOF, I have hereunto set my hand and caused the Seal of the Government of the Virgin Islands of the United States to be affixed at Charlotte Amalie, St. Thomas, Virgin Islands, this 17th day of November, A.D., 1989.\\nAlexander A. Farrelly, Governor\\n(Emphasis Added)\\nTitle 23 V.I.C. section 1125(c) limits the duration of a State of Emergency to 30 days unless renewed by the Governor, but is silent as to limiting the duration of a curfew.\\nIn another test, Judge Henry Smock of the Territorial Court held that the curfew order was vague and unenforceable, and dismissed the curfew case involving a minor. In the Interest of:_, Minor, Juvenile No. 98/89 (Terr. Ct. December 5, 1989), Nov. 28, 1989 Hearing Transcript, p. 11-12.\\nBy letter dated October 9, 1991, V.I. Senator Arturo Watlington advised the V.I. Attorney General that he is presently proposing legislation to make a curfew violation a criminal offense.\\nThe rules of the common law, as expressed in the Restatements of the Law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decisions in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary. 1 V.I.C. section 4.\"}"
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+"{\"id\": \"1090949\", \"name\": \"CHERIE LEMPERT, Plaintiff v. GERALD SINGER, JOAN SPARLING, and KEVIN D'AMOUR, Defendants\", \"name_abbreviation\": \"Lempert v. Singer\", \"decision_date\": \"1991-08-28\", \"docket_number\": \"Civil No. 90-200\", \"first_page\": 380, \"last_page\": \"383\", \"citations\": \"26 V.I. 380\", \"volume\": \"26\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:54:40.196764+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHERIE LEMPERT, Plaintiff v. GERALD SINGER, JOAN SPARLING, and KEVIN D\\u2019AMOUR, Defendants\", \"head_matter\": \"CHERIE LEMPERT, Plaintiff v. GERALD SINGER, JOAN SPARLING, and KEVIN D\\u2019AMOUR, Defendants\\nCivil No. 90-200\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nAugust 28, 1991\\nKatherine E. Harsch, Esq. (Bornn Bornn Handy & Rashid), Charlotte Amalie, St. Thomas, V.I., for plaintiff\\nNancy D\\u2019Anna, Esq., St. John, V.I., for defendant Gerald Singer\\nBritain H. Bryant, Esq. (Bryant, White and Associates, P.C.), Christiansted, St. Croix, V.I., for defendant Joan Sparling\\nKevin F. D\\u2019Amour, esq. Charlotte Amalie, St. Thomas, V.I., pro se\", \"word_count\": \"956\", \"char_count\": \"5914\", \"text\": \"CARTER, U.S. District Judge,\\nSitting by Designation\\nMEMORANDUM\\nIn an earlier opinion, with which familiarity is assumed, the court granted summary judgment to defendants Gerald Singer and Joan Sparling, and denied summary judgment to defendant Kevin D'Amour. Lempert v. Singer, \\u2014 F. Supp. \\u2014, 1991 WL 107257 (D.V.I. June 17,1991) (Carter, J.). Sparling and Singer have now moved for entry of final judgment in their favor pursuant to Rule 54(b), F.R.Civ.P.\\nRule 54(b) provides for the entry of final judgment with respect to fewer than all of the parties to an action \\\"only upon an express determination that there is no just reason for delay.\\\" Rule 54(b), F.R.Civ.P. The purpose of this rule is \\\"to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties.\\\" Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 363 (3d Cir. 1975); see also Panichella v. Pennsylvania R.R. Co., 252 F.2d 452, 454 (3d Cir. 1958). The decision to certify a final judgment under Rule 54(b) is committed to the discretion of the district court, taking into account the interest of sound judicial administration as well as the equities of the case. Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1,8 (1980); Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437 (1956).\\nUpon reflection, and upon consideration of the submissions of the parties, the court has determined that certifying a final judgment at this time could result in a waste of the time and resources of the Court of Appeals. In particular, if it is determined at trial that D'Amour discussed the existence and location of the easement with Lempert prior to the closing, Lempert's assertions that she was harmed by reliance on the alleged misrepresentations or non-disclosures by Sparling with respect to those facts will be completely refuted. A fortiori, Lempert's claim that Singer is vicariously liable for Sparling's actions would also necessarily fail. Thus, any dispute as to the correctness of this court's legal conclusions in its summary judgment decision may become moot. The court may properly deny Rule 54(b) certification based on \\\"the possibility that the need for review might... be mooted by future developments in the district court.\\\" Allis Chalmers, supra, 521 F.2d at 364; see Panichella, supra, 252 F.2d at 455; see also Curtiss-Wright Corp., supra, 446 U.S. at 6, 8.\\nAgainst this concern, the court must weigh Sparling's concern that the continued pendency of the litigation is having an adverse effect on her credit rating and professional reputation. See Allis-Chalmers, supra, 521 F.2d at 364 (requiring a balancing of relevant factors); Manufacturers Hanover Overseas Capital Corp. v. Southwire Co., 589 F. Supp. 214, 220 (S.D.N.Y. 1984) (Carter, J.) (requiring a showing of hardship for a Rule 54(b) certification). This concern is particularly salient because Lempert's claim against Sparling borders on the frivolous.\\nIf there were no possibility of wasteful piecemeal appeals, the court would be inclined to grant Sparling's motion on this basis. However, weighing in the balance the concern that granting the motion could cause the Court of Appeals to consider issues that may soon become moot, the court concludes that this is not the \\\"infrequent harsh case\\\" meriting a Rule 54(b) certification. Allis-Chalmers, supra, 521 F.2d at 365; Panichella, supra, 252 F.2d at 455; see also Curtiss-Wright Corp., supra, 446 U.S. at 9-10; Arlinghaus v. Ritenour, 543 F.2d 461 (2d Cir. 1976); Manufacturers Hanover, supra, 589 F. Supp. at 220-21. That is, the court cannot say that there is \\\"no just reason for delay.\\\" Rule 54(b), F.R.Civ.P. Therefore, in the exercise of the court's discretion and in the interest of sound judicial administration, the motions of Sparling and Singer for final judgment are denied.\\nSparling has moved for costs and attorney's fees pursuant to 5 V.I.C. \\u00a7 541. She subsequently has moved for leave to withdraw that motion without prejudice and with leave to refile it after entry of final judgment. There being no opposition, the motion for leave to withdraw is granted.\\nSinger, too, has moved for costs and attorney's fees pursuant to 5 V.I.C. \\u00a7 541. In the interest of judicial economy, consideration of the motion is deferred until final judgment after trial.\\nD'Amour has moved for the admission of Countess Pease Jeffries as an attorney pro hac vice in this case. Because the court is satisfied in regard to Jeffries' qualifications, the motion is granted.\\nAn appropriate order will be entered.\\nORDER\\nFor the reasons set forth in the court's memorandum of this date,\\nIt is, this 28th day of August, 1991, hereby\\nORDERED that defendant Joan Sparling's motion for entry of final judgment is denied;\\nORDERED that defendant Gerald Singer's motion for entry of final judgment is denied;\\nORDERED that defendant Joan Sparling's motion for attorney's fees is withdrawn, without prejudice, and with leave to refile the motion at an appropriate time;\\nORDERED that consideration of defendant Gerald Singer's motion for attorney's fees and costs is deferred until final judgment is entered after trial; and\\nORDERED that Countess Pease Jeffries is admitted as an attorney pro hac vice in the above-captioned matter, and that the Clerk may administer the customary oath.\"}"
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+"{\"id\": \"1092117\", \"name\": \"IN THE MATTER OF THE ESTATE OF PTOLEMY CORBIERE, DECEASED ANGELA McGHEE, Plaintiff v. ERIA O. BRYAN, BERTRAM BRYAN, SHEILA BRYAN BUTLER, BARBARA A. BRYAN, EDITH CORBIERE FORDE, ALICIA TORRES, DILSA TORRES CAPDEVILLE, ELIZABETH TORRES BROWN, LEROY MOOREHEAD, JOHN McDONALD, MICHAEL McDONALD, and ANDREW L. CAPDEVILLE, Defendants\", \"name_abbreviation\": \"McGhee v. Bryan\", \"decision_date\": \"1990-05-25\", \"docket_number\": \"Probate No. 44/1989; Civil No. 56/1990\", \"first_page\": 58, \"last_page\": \"62\", \"citations\": \"25 V.I. 58\", \"volume\": \"25\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:26:44.511788+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"IN THE MATTER OF THE ESTATE OF PTOLEMY CORBIERE, DECEASED ANGELA McGHEE, Plaintiff v. ERIA O. BRYAN, BERTRAM BRYAN, SHEILA BRYAN BUTLER, BARBARA A. BRYAN, EDITH CORBIERE FORDE, ALICIA TORRES, DILSA TORRES CAPDEVILLE, ELIZABETH TORRES BROWN, LEROY MOOREHEAD, JOHN McDONALD, MICHAEL McDONALD, and ANDREW L. CAPDEVILLE, Defendants\", \"head_matter\": \"IN THE MATTER OF THE ESTATE OF PTOLEMY CORBIERE, DECEASED ANGELA McGHEE, Plaintiff v. ERIA O. BRYAN, BERTRAM BRYAN, SHEILA BRYAN BUTLER, BARBARA A. BRYAN, EDITH CORBIERE FORDE, ALICIA TORRES, DILSA TORRES CAPDEVILLE, ELIZABETH TORRES BROWN, LEROY MOOREHEAD, JOHN McDONALD, MICHAEL McDONALD, and ANDREW L. CAPDEVILLE, Defendants\\nProbate No. 44/1989\\nCivil No. 56/1990\\nTerritorial Court of the Virgin Islands Div. of St. Thomas and St. John\\nMay 25, 1990\\nRichard P. Farrelly, Esq., St. Thomas, V.I., for the estate\\nHenry V. Carr, III, Esq., St. Thomas, V.I., for plaintiff\\nKathleen Mackay, Esq., St. Thomas, V.I.,/or defendants Bertram Bryan, Sheila Bryan Butler, Barbara A. Bryan, Edith Corbiere Forde, Leroy Moorehead, John McDonald, and Michael McDonald\\nAndrew L. Capdeville, Esq., St. Thomas, V.I., pro se and for defendant Dilsa Torres Capdeville\", \"word_count\": \"1398\", \"char_count\": \"8316\", \"text\": \"CHRISTIAN, Judge\\nMEMORANDUM AND ORDER\\nI. INTRODUCTION\\nThis matter is before the Court on Petition of Angela McGhee, (hereafter \\\"Petitioner\\\"), dated March 20, 1990, for an Order granting her the right to take possession of, and the rents and profits accruing from, Property described as No. 129A-33, Lot No. 6, Block F(5) Estate Anna's Retreat, No. 1 New Quarter, St. Thomas, Virgin Islands, recorded in Auxiliary 12, Page 208, Book 25\\\\^ P. 245, No. 2365, on June 21, 1984, in the Office of the Recorder of Deeds in St. Thomas, Virgin Islands, (hereinafter \\\"the Property\\\"), from the date of death of decedent to the present, minus legitimate expenditures made for the maintenance of the property during said period, pursuant to 15 V.I.C., Subchapter III. The Petition will be granted.\\nII. THE FACTS\\nPtolemy Corbiere died on April 7, 1989. Decedent made a Last Will and Testament in 1984 and another in 1989. In the 1984 Will, Paragraph FOURTH, he specifically devised the property in fee to Petitioner. In the 1984 Will, Paragraph EIGHTH, he also made Petitioner one of three residuary beneficiaries of his estate. In the 1989 Will, decedent, in Paragraph THIRD, again specifically devised the property to Petitioner in fee, but removed her as a residuary beneficiary of his estate. In neither Will was the property devised to Petitioner also devised for the payment of debts of decedent.\\nAlleging that the 1989 Will executed thus to her disadvantage was executed as the result of the exertion of undue influence on the decedent by the Executrix of the estate, Petitioner filed a Will Contest action pursuant to 5 V.I.C., App. V Rule 24, to have the 1989 Will declared null and void. This action is now pending.\\nThe property left by decedent, according to the Verified Inventory filed in the administration of his estate on August 24, 1989, includes cash in the amount of $206,442.20, and other personalty in the amount of $4,072.58. That this cash asset exists is uncontested. Although the publication of the six-month notice to creditors was completed on September 8, 1989, the only claim filed against the estate was that of the Executrix in the amount of $5,030.64, which was approved by the Court and paid to the Executrix. The Executrix filed her first quarterly account on October 10, 1989, which confirms the showing in the Inventory that the estate has ample funds to liquidate any debts of the estate, including approved claims against the estate and expenses of administration of the estate.\\nIII. DISCUSSION\\n15 V.I.C., Section 451, provides in pertinent part, that \\\"[a]t any time after the filing of the first quarterly account, any devisee may apply to the Court by petition for an order that he have the possession and rents and profits of the portion of the real property to which he may be entitled\\\".\\nPetitioner argues that the present weight of authority is to the effect that where there is a Will, the assets of the estate are applicable in the payment of debts of the testator in the following order: (a) personal estate; (b) estates devised for payment of debts; (c) estates descended; and (d) estates specifically devised. 80 Am. Jur. 2d, Section 1746. See also Northcutt v. Farmer's Nat. Bank, 292 Ky. 628, 166 S.W.2d 971, 144 A.L.R. 472; Stires v. Stires, 5 N.J. Eq. 224. Since we find no local law to the contrary, and the property was not devised for the payment of debts of decedent, we adopt this formula.\\n15 V.I.C., Section 452 requires that the application should not be made until after the filing of the first quarterly account, and notice of the application should be given to the personal representative not less than thirty (30) days before the time at which it is made. This filing took place on October \\u00cd0, 1989, and the notice required was given to the personal representative on March 20, 1990.\\nSection 453 of the Subchapter requires that the applicant shall file with the Court an undertaking as a precondition to the granting of the Petition for partial distribution prior to final adjudication. We hold that this requirement is properly made only if the Court finds that the estate is in debt to the extent that the creditors of the estate and payment of the expenses of administration will be unduly prejudiced, and this requirement is consequently properly made only in the exercise of the sound discretion of the Court.\\nBut the Executrix opposes the granting of the Petition on the following grounds:\\n1. That on December 14,1989, the Court granted a stay of all probate activity in the estate until Petitioner, who is a nonresident, files a bond for costs as prescribed by 5 V.I.C., Section 547, and therefore not only proceedings in the Will Contest case are stayed, but also all activity in the probate administration of the estate;\\n2. That although the Petitioner was devised the property in both Wills executed by decedent, the rents and profits flowing from the property were not so devised; and\\n3. That the pendency of the Will Contest action precludes the granting of the Petition in the probate proceeding, although Petitioner is devised the property in question in both Wills.\\nThe Court finds no merit in any of these contentions.\\nThe stay which the Court granted on December 14, 1989, applied only to the Will Contest action which, according to 5 Y.I.C., App. V, Rule 24, is an action which is entirely discrete and separate and apart from the probate proceeding, i.e., a civil action filed to be heard, litigated and adjudicated in the Civil, and not in the Probate, Division of the Court. Moreover, the bond in question was filed by Petitioner, thus terminating the stay.\\nIt should be clear that since the property was devised to the Petitioner, the rents and profits issuing therefrom, subject to maintenance expenses, were also devised to Petitioner, are indivisible and inseparable therefrom. We find it difficult to understand how one could reasonably argue that the devisee is entitled to the property devised but not to the benefits, the rents and profits, issuing therefrom.\\nThe pendency of the Will Contest action cannot reasonably be held to preclude the granting of the Petition, for the simple reason that whichever way the Will Contest action is decided, Petitioner will still be the legal owner of the property, since it was devised to her, not only in the Will under attack, but in both Wills.\\nSince the Court agrees with the reasons advanced by the Petitioner, and finds no merit in the contentions made by the opposition thereto, the Court grants the Petition, and accordingly ORDERS that Angela McGhee is hereby awarded:\\n1. Title to Parcel No. 129A-33 Estate Anna's Retreat, Lot No. 6, Block F(5), No. 1 New Quarter, St. Thomas, Virgin Islands; and\\n2. All the rents collected by the Executrix (or any other person) from the property, from the date of death of decedent to the present, minus all maintenance expenses paid by the Executrix for the upkeep and maintenance of the property during the said period of time, which payment shall be made through the respective attorneys of the parties hereto within thirty (30) days from the date of this Order;\\n3. It is further ORDERED that this Order Granting Partial Distribution Prior to Final Adjudication shall be recorded immediately in the Office of the Recorder of Deeds in St. Thomas, and proof thereof filed with the Court.\\nThere will be a relatively substantial residuary estate, thus giving Petitioner standing to file the Will Contest suit.\"}"
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+"{\"id\": \"1092126\", \"name\": \"JO ANNA E. HOWELL, Plaintiff v. VIRGIN ISLANDS YACHT HARBOR, INC. d/b/a YACHT HAVEN HOTEL, DAVID CARL TORRES, Individually, RON KLEMENS, Individually, TORRES AND KLEMENS, Partners d/b/a PANCHITA'S PATIO and JOE DOE, INC., Defendants\", \"name_abbreviation\": \"Howell v. Virgin Islands Yacht Harbor, Inc.\", \"decision_date\": \"1989-11-15\", \"docket_number\": \"Civil No. 1987/200\", \"first_page\": 140, \"last_page\": \"144\", \"citations\": \"25 V.I. 140\", \"volume\": \"25\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:26:44.511788+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JO ANNA E. HOWELL, Plaintiff v. VIRGIN ISLANDS YACHT HARBOR, INC. d/b/a YACHT HAVEN HOTEL, DAVID CARL TORRES, Individually, RON KLEMENS, Individually, TORRES AND KLEMENS, Partners d/b/a PANCHITA\\u2019S PATIO and JOE DOE, INC., Defendants\", \"head_matter\": \"JO ANNA E. HOWELL, Plaintiff v. VIRGIN ISLANDS YACHT HARBOR, INC. d/b/a YACHT HAVEN HOTEL, DAVID CARL TORRES, Individually, RON KLEMENS, Individually, TORRES AND KLEMENS, Partners d/b/a PANCHITA\\u2019S PATIO and JOE DOE, INC., Defendants\\nCivil No. 1987/200\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nNovember 15, 1989\\nRhys S. Hodge, Esq., St. Thomas, V.I., for plaintiff\\nMichael J. Sanford, Esq. (Law Offices of James L. Hymes, III), St. Thomas, V.I., for defendant Virgin Islands Yacht Harbor, Inc., d/b/a Yacht Haven Hotel\", \"word_count\": \"1348\", \"char_count\": \"8126\", \"text\": \"O'BRIEN, Chief Judge\\nMEMORANDUM OPINION AND ORDER\\nThe court herein is asked to consider a motion for summary judgment filed by defendant Virgin Islands Yacht Harbor, Inc. d/b/a Yacht Haven Hotel (\\\"Yacht Haven\\\") concerning plaintiff Jo Anna E. Howell's personal injury action. Yacht Haven asserts that Howell cannot prove the essential element of causation in her negligence action against Yacht Haven. Howell responds that the very existence of causation itself, should be considered to be a genuine issue of material fact and accordingly, summary judgment cannot lie against her. The court agrees with Howell for the following reasons.\\nFACTS\\nThis case stems from a \\\"slip and fall\\\" incident which took place while Howell was leaving Panchita's Patio Restaurant on the evening of July 20, 1985. The premises at Panchita's Patio were then owned by Yacht Haven Hotel and leased to David Torres and Ron Klemens, as individuals, and as partners doing business as Panchita's Patio. Jo Anna Howell and three companions had visited Panchita's Patio that night for dinner, during which time there ensued a short rain storm.\\nIt was not raining, however, when Howell and her companions sought to leave the restaurant. Howell states that she first waited for her companions to precede her as they descended the step separating the restaurant from an adjoining court-yard. However, as Howell descended the step, she fell and apparently landed on one knee. Her complaint indicates that she sustained considerable injuries.\\nHowell filed the instant complaint on April 8, 1987, asserting that her fall was caused by defendants' failure to provide hand railings, non-slid (sic) coating or rubber treads on the step, or adequate light ing in that area. Yacht Haven Hotel answered and discovery has since taken place, consisting of interrogatories, document production and the plaintiff's deposition. Neither side has enlisted the assistance of expert witnesses.\\nSUMMARY JUDGMENT STANDARD\\nFed. R. Civ. P. 56(c) provides that summary judgment may be entered\\nafter adequate time for discovery and upon motion against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial.\\nCelotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); William S. Crow v. All American Holding Corp., No. 81-32, Slip op. at 3 (D.V.I. January 6, 1988). In a summary judgment motion, Yacht Haven, as the proponent, carries the initial burden of alerting the court that there are areas in the record which are lacking in a genuine issue of material fact. Celotex, 477 U.S. at 323. The burden then shifts to plaintiff Howell to establish for us specific facts which show that there indeed does exist a genuine issue for trial. Fed. R. Civ. P. 56(c); Gans v. Mundy, 762 F.2d 338, 342 (3d Cir. 1985). \\\"There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.\\\" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).\\nWe remain cognizant that when ruling on a motion for summary judgment, a court must view all inferences made, in the light most favorable to the non-moving party. Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). Any doubts are to be resolved in favor of the non-movant. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1977). We additionally note, that summary judgment is considered to be a drastic remedy and is proper in actions for negligence only \\\"where the facts are undisputed and only one conclusion may reasonably be drawn from them.\\\" Gans, 762 F.2d at 341. Such is not the case in this proceeding.\\nDISCUSSION\\nYacht Haven premises its motion on statements made by Howell at deposition and in her answers to interrogatories wherein Yacht Haven interprets Howell's answers as indicating that she does not know why or how she fell. Yacht Haven argues that Howell cannot prove the essential element of legal causation if she cannot establish why or how she fell and thus no genuine issue of material fact exists regarding causation.\\nHowell responds by stating that the issue of the existence of causation creates by itself a genuine issue of fact. She reviews for the court those factors present at Panchita's Patio which possibly contributed to or caused her fall, e.g., the lack of hand railings and other safety guards. Howell asserts that these conditions have a causal connection with her fall and the exact role of these conditions is a genuine issue which cannot be resolved through summary judgment. On a less convincing note, Howell also offers that there is still a possibility of finding several eyewitnesses to the incident.\\nTo prevail on her cause of action, Howell must establish among other points, that Yacht Haven's failure to conform to a certain duty of care is a legal cause of Howell's subsequently suffered harm. See Restatement (Second) of Torts \\u00a7 328A. Although Howell's opposition fails to offer additional specific facts which might show that a genuine issue of fact remains, we find that the record nonetheless contains a genuine issue of material fact regarding causation.\\nViewing the facts of this case in a light most favorable to Howell, the court finds it feasible that a wet tile floor and the absence of safety precautions could, either together or alone, cause or contribute to Howell's accident. Although Howell's factual allegations are certainly not dispositive regarding causation, the significance of their role in her accident is easily subject to more than one conclusion and thus provides sufficient material for consideration by a jury. Gans, 762 F.2d at 341. See also Buschman v. Halm, 798 F.2d 651, 657 (3d Cir. 1986) (In a negligence case where two conclusions may be reached on issue of causation, the issue must be left for the jury); Chlebowski v. United States, 548 F. Supp. 1221 (W.D. Pa. 1983) (\\\"Slip and fall\\\" incident on sidewalk. Issue of sidewalk's condition sent to jury); Accord Jakubiec v. Cities Serv. Co., 844 F.2d 470, 473 (7th Cir. 1988) (Truck driver injured in \\\"slip and fall\\\" accident on snowy platform. Issue of proximate cause sent to jury).\\nWe note that Yacht Haven argues that Howell's case is weakened substantially by the apparent absence of eyewitnesses to the accident. Howell has suggested that she will need additional time in which to locate any such witnesses. The court doubts that Howell will be able to locate these witnesses, four years after the accident's occurrence and we will not look favorably upon a request for additional time in which to do so. However, this paucity of eyewitnesses is not determinative regarding causation.\\nTherefore, the premises considered and the court being fully advised,\\nIT IS ORDERED\\nTHAT defendant Yacht Haven Hotel's motion for summary judgment is hereby DENIED.\\nHowell's complaint against David Torres and Ron Klemens has yet to be answered by them in either an individual or partnership capacity. There is some evidence to believe that Messrs. Torres and Klemens have left St. Thomas on a permanent basis. Service was made by publication and no answer has been filed.\\nSee Fed. R. Civ. P. 56(e) which provides in part:\\nWhen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial.\"}"
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index 0000000000000000000000000000000000000000..489402515b9a9562582971820be612de04969932
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+"{\"id\": \"1094787\", \"name\": \"RAFAEL GARCIA, M.D., Plaintiff v. THE GOVERNMENT OF THE VIRGIN ISLANDS, DEPARTMENT OF HEALTH, BOARD OF MEDICAL EXAMINERS, DEBORAH McGREGOR, M.D., COMMISSIONER OF HEALTH and CORA CHRISTIAN, M.D., ASSISTANT COMMISSIONER OF HEALTH AND CHAIRMAN OF THE BOARD OF MEDICAL EXAMINERS, Defendants\", \"name_abbreviation\": \"Garcia v. Government of the Virgin Islands\", \"decision_date\": \"1989-02-13\", \"docket_number\": \"Civil No. 865/1988\", \"first_page\": 131, \"last_page\": \"141\", \"citations\": \"24 V.I. 131\", \"volume\": \"24\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T01:06:28.795902+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"RAFAEL GARCIA, M.D., Plaintiff v. THE GOVERNMENT OF THE VIRGIN ISLANDS, DEPARTMENT OF HEALTH, BOARD OF MEDICAL EXAMINERS, DEBORAH McGREGOR, M.D., COMMISSIONER OF HEALTH and CORA CHRISTIAN, M.D., ASSISTANT COMMISSIONER OF HEALTH AND CHAIRMAN OF THE BOARD OF MEDICAL EXAMINERS, Defendants\", \"head_matter\": \"RAFAEL GARCIA, M.D., Plaintiff v. THE GOVERNMENT OF THE VIRGIN ISLANDS, DEPARTMENT OF HEALTH, BOARD OF MEDICAL EXAMINERS, DEBORAH McGREGOR, M.D., COMMISSIONER OF HEALTH and CORA CHRISTIAN, M.D., ASSISTANT COMMISSIONER OF HEALTH AND CHAIRMAN OF THE BOARD OF MEDICAL EXAMINERS, Defendants\\nCivil No. 865/1988\\nTerritorial Court of the Virgin Islands Div. of St. Croix at Kingshill\\nFebruary 13, 1989\\nLee J. Rohn, Esq., St. Croix, V.I., for plaintiff\\nTreston Moore, Esq., Principal Assistant Attorney General (Justice Department), St. Thomas, V.I., for government\\nStephen Q. Mitchell, Esq., Assistant Attorney General (Justice Department), St. Croix, V.I., for government\", \"word_count\": \"3346\", \"char_count\": \"20633\", \"text\": \"PETERSEN, Judge\\nMEMORANDUM OPINION\\nPlaintiff has instituted this action for injunctive relief and damages against the Defendants. At the close of the plaintiff's case, the defendants moved for a dismissal or Summary Judgment. For the reasons herein stated, this matter is remanded to the Board of Medical Examiners and dismissed as to Deborah McGregor, M.D., Commissioner of Health, Cora Christian, M.D., Assistant Commissioner of Health and Chairman of the Board of Medical Examiners.\\nI.\\nISSUE\\nWhether the plaintiff, Dr. Garcia, should be granted a license to practice medicine in the Virgin Islands is the issue presented herein.\\nII.\\nFACTS\\nIn order to place this issue in context, it is necessary to review the factual background of this most unfortunate case.\\nThe plaintiff, a native born Virgin Islander, received his undergraduate degree from the University of Puerto Rico, an accredited American University. He obtained his medical degree from the University of Barcelona, a World Health Organization recognized medical school. Plaintiff completed a one-year internship in Hospital Del Maestro, Hato Rey, Puerto Rico in 1973 and a Rotating Internship in San Juan Municipal Hospital in 1974 and obtained a license to practice medicine in Puerto Rico in 1975.\\nPlaintiff commenced his employment with the Virgin Islands Department of Health (Health) as a public health physician in 1976.\\nIn order to practice medicine, plaintiff was given an initial temporary six-month license, which was automatically renewed every six months by Health's Commissioners.\\nPlaintiff's last temporary license was issued on September 11, 1986 and expired on March 10, 1987. It was not renewed, reissued or extended. Between 1976 and 1986, plaintiff did not submit any application to the Virgin Islands Board of Medical Examiners (Board) in order to obtain any of the renewals of the temporary license.\\nPlaintiff worked exclusively for the Virgin Islands Government until 1982 when he opened his private practice in the town of Frederiksted.\\nIn February, 1988, Health implemented a Medical Licensure Adjustment Strategic Plan (Plan) for the express purpose of ensuring that only qualified doctors would be permitted to practice medicine within the Virgin Islands. This Plan involved the feasibility of extending temporary licenses to physicians eligible for permanent license, but not yet licensed in the Virgin Islands. These physicians were placed in three categories allegedly based upon their qualifications for permanent licensure in the Virgin Islands.\\nGroup I is comprised of those physicians not eligible for permanent licensure. Group I physicians are those who have not taken the Educational Council for Foreign Medical Graduates (ECFMG) a test required of foreign medical graduates before they can become eligible for American Medical Association (AMA) approved internships. These doctors are required to obtain additional medical training before they can become eligible for Virgin Islands licensure. The temporary licenses of Group I physicians have been or are expected to be terminated.\\nGroup II is comprised of those physicians who are not eligible for Virgin Islands licensure. These physicians have ECFMG but no AMA approved training.\\nGroup III is composed of those physicians who have taken the ECFMG exam or National Boards certification and who have AMA approved training.\\nPlaintiff was placed in Group I. When his temporary license expired in March, 1987, it was not renewed. Plaintiff contends that he was erroneously placed in Group I even though his credentials and experience qualify him for Group III status. Plaintiff likewise contends that his background meets the requirements of the Fifth Pathway program, which waives the ECFMG requirement.\\nPlaintiff failed to pass the ECFMG examination after several attempts. Although plaintiff contends that he has met the requirement for the Fifth Pathway, he has never submitted to the Board or Health a Fifth Pathway Certificate from an AMA approved medical educational institution (which the AMA recognizes as a possible alternative to the ECFMG).\\nWhen in February, 1988, Plaintiff was placed in Group I, he sought a hearing as to the reasons for such placement and, in March, the Health Commissioner responded that a follow-up review by the medical panel would be scheduled.\\nBefore a hearing was scheduled, however, the plaintiff was informed, in July, by Dr. Christian that his prescription writing privileges were curtailed to the extent that his prescriptions had to be countersigned by a licensed physician before they could be issued.\\nPlaintiff thereupon instituted this action in October, 1988. Upon the recommendation of this Court, the Court hearing was postponed to permit the plaintiff to present his case to the Board. After a hurriedly scheduled Board hearing, attended by the plaintiff and his counsel, the Board examined or reviewed plaintiff's documents or credentials. Thereafter, plaintiff and his attorney were notified by letter that plaintiff did not possess the requisite qualifications for licensure; specifically they alleged that he did not have the required ECFMG certification. No rules, procedures or guidelines were established for conducting the Board's hearing; neither was the hearing recorded.\\nAfter the Court hearing in December and before a decision was rendered, Act. No. 5402 was passed repealing 27 V.I.C. \\u00a7 36, 37, 38, 33(1) and amending 27 V.I.C. \\u00a7 35(a) and 39.\\nII.\\nDISCUSSION\\nOne of plaintiff's contentions is that the Board's refusal to grant him a license to practice medicine evinces a discriminatory policy with respect to the evaluation of his credentials. He contends that other individuals with similar credentials were permitted a permanent license.\\nThe plaintiff has failed to present a prima facie case to support this contention. Plaintiff's duly admitted exhibits refute his claim that there were other physicians with similar credentials who were granted a license by reciprocity or who were granted a license to practice medicine without satisfying the Fifth Pathway requirement.\\nPlaintiff also contends that he was denied procedural due process by the Board. His temporary license to practice medicine expired by its own terms on March, 1987. No further license was automatically issued. Whether or not there is a specific statutory entitlement to a hearing before the issuance of a temporary license is not made clear by the statutes involved. Moreover, it is well established that the right to a hearing attaches only when liberty or property interests are implicated. Due process does not require a hearing when an individual has a mere expectation in a property interest. Valdes v. New Jersey Board of Medical Examiners, 501 A.2d 170 (1985). In Mehane v. Board of Medical Examiners, 268 S.E.2d 112 (1982) where three temporary licenses were given to the plaintiff, and plaintiff sought injunctive relief to prevent revocation of her license, the court stated:\\nIt is clear from the face of the licenses issued to plaintiff that each one was temporary and expired on the dates shown on the documents. Plaintiff was fully aware that the licenses were temporary and that the issuau e of a permanent license to practice medicine was conditions 1 upon a finding of competency based upon her passage of FLEX. When she failed to pass FLEX, the last temporary license expired and the Board refused to issue another one. We find nothing to support plaintiff's claim that she is entitled to a permanent license to practice medicine in this state.\\nThe Court further noted:\\nThe action taken by the Board was the denial of issuance of a permanent license to practice medicine to plaintiff. We, therefore, find that plaintiff has no statutory right to a hearing to contest the denial of a permanent license by the Board.\\nThus, before a temporary medical license is issued, there appears to be no property right which must be safeguarded by due process. See also Stern v. Conn. Medical Examining Board, 545 A.2d 1080 (1988) (State medical licensing board lacked jurisdiction to revoke physician's license where license had expired by lapse of time prior to initiation of revocation proceeding.).\\nIII.\\nEven assuming arguendo that plaintiff has shown an entitlement to a hearing, the issue now becomes whether the Board's actions satisfied due process. It is well established that a public employee is entitled to procedural due process whenever a governmental action stigmatizes him by either denying employment, or injures his future employment prospects. Cleveland Board of Education v. Laudermill, 470 U.S. 532 (1985).\\nThe plaintiff challenges the sufficiency of the procedural safeguards employed at his hearing. He contends that he was denied discovery of the case against him; an opportunity to present witnesses and evidence on his own behalf; the right to cross-examine adverse witnesses; a fair hearing with established guidelines and standards; a record of the proceedings; rules of evidence; a neutral and detached hearing panel and written findings of fact and conclusions.\\nAs to plaintiff's claim of the denial of the right to cross-examination, it has been considered important and helpful, but it is not always absolute. See Beauchamp v. De Abadia, 779 F.2d 773, 736 (1st Cir. 1985) citing Wolf v. McDonnell, 418 U.S. 539 (1974). Moreover, this Court finds that the procedures used by the Board included prior notice, right to counsel, and an opportunity to present documents. In addition, the Board's letter to the plaintiff and his attorney, though not in strict legal form, was adequate to apprise the plaintiff of its findings and the basis for the decision rendered.\\nPlaintiff likewise contends that he was denied an impartial hearing panel. An impartial decision maker is a fundamental component of due process. Beauchamp v. De Abadia, 779 F.2d 733 (1st Cir. 1985). Plaintiff contends that Dr. Cora Christian's participation in the Board's deliberations deprived him of an impartial hearing. Plaintiff contends that the fact that Dr. Christian has a medical practice in Frederiksted and he also maintains his medical practice in Frederiksted creates a conflict of interest and, hence, a bias against him. The fact that a physician practices medicine in the same geographical area as an applicant before the Board, without more, cannot under the circumstances presented here, support a claim of conflict of interest. If that were so, when one considers the geographical size of St. Croix, all physicians would have to be disqualified from sitting on the Board. It must be noted that 27 V.I. R&R \\u00a7 2-11 provides that \\\"Membership on the Board shall be limited to practitioners who possess a valid Virgin Islands license.\\\"\\nParticularly troublesome, however, is the failure of the Board to promulgate adequate rules of procedure and have its bylaws as mandated by statute. Fortunately, this factor has not denied the plaintiff his procedural due process. The Board's actions and activities fell short of a full fledged hearing; but it cannot be said that the hearing was so woefully inadequate under the circumstances as to constitute a denial of due process. The flexible standard is applicable here.\\nIV.\\nThe plaintiff also contends that the Board's actions in inviting him to return to St. Croix and in renewing his temporary license estop the Board from now refusing to issue him a license to practice medicine.\\nThe Restatement (Second) of Torts \\u00a7 894(1) (1979) provides, in relevant parts, as follows:\\n(a) If one person makes a definite representation of fact to another person having reason to believe that the other will reply upon it and the other in reasonable reliance upon it does an act . the first person is not entitled \\u2014\\n(b) to regain property or its value that the other acquired by the act if the other in reliance upon the misrepresentation and before discovery of the truth has so changed his position that it would be unjust to deprive him of that which he thus acquired.\\nThe Supreme Court in Heckler v. Community Health Services of Crawford, 467 U.S. 64 (1984) has taught us that .to analyze the nature of a private party's detrimental change in position, it is necessary to identify the manner in which reliance on the Government's misconduct has caused the private citizen to change his position for the worse. In this case, the consequences of the Government's misconduct were not entirely detrimental to the plaintiff. He did receive a temporary license for approximately twelve years. His true detriment is the inability to obtain another temporary license contrary to the plain meaning of the old statute involved. \\\"When a private party is deprived of something which it was entitled of right, it has surely suffered a detrimental change in its position.\\\" Heckler v. Community Health Services of Crawford, 467 U.S. 64 (1984). There is no doubt that in order to have obtained a license plaintiff had to satisfy the statutory requirement.\\nThe Supreme Court in Heckler also noted that an \\\"[Ejstoppel is an equitable doctrine invoked to avoid injustice in particular cases.\\\" Before this Court would apply this doctrine, however, it must be satisfied that the plaintiff was unaware of the law governing the procedures for obtaining a license, and he had no means by which with reasonable diligence he could have acquired that knowledge. The evidence, however, belies plaintiff's lack of knowledge. On several occasions plaintiff attempted to comply with the requirements of taking the ECFMG.\\nIf plaintiff remained unenlightened by not using the means at his disposal to ascertain the statutory requirements for obtaining a license to practice medicine in the Virgin Islands, he cannot now claim to have been effectively misled by relying upon the Government's agents. 3 J. Pomeroy, Equity Jurisprudence \\u00a7 810 P. 219.\\nThose who deal with the Government are expected to know the law and may not rely on the conduct of Government agents contrary to law. Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947). The plaintiff had a duty to familiarize himself with the statutory requirements for obtaining a license. As the Court so aptly stated in Federal Crop Insurance Corp. v. Merrill, 332 U.S. at 384,\\nWhatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority.\\nJustice Holmes wrote: \\\"Men must turn square corners when they deal with the Government.\\\" Rock Island, A. and L.R. Co. v. United States, 254 U.S. 141, 143. (1920).\\nThere is one additional consideration of public policy when a party seeks to estop the Government. \\\"If the Government is unable to enforce the law because of estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined.\\\" Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. at 64.\\nV.\\nThe primary object in construing a statute is to give effect to the intention of the Legislature. The Legislature has recognized the hardship to doctors who have worked in this territory for many years and who are ineligible to take the examination for a license solely because these doctors have failed to meet the standards prescribed by 27 V.I.C. \\u00a7 34 et seq. Moreover, it appears fairly obvious that the Legislature had actual knowledge of the pendency of this case. In addition the legislature is presumed to have investigated the licensing question for itself to ascertain what credentials are sufficient for the good of the profession and the public.\\nAct. No. 5402 affords the best means of its exposition and the legislative intent must be determined from the language used. This case must be decided under the law in force at this time. \\\"A court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.\\\" Bradley v. School Board of the City of Richmond, 416 U.S. 696, 711 (1971). See also Illinois Chiropractic Society v. Grillo, 164 N.E.2d 47 (1960). (Wherein the Court noted that where the legislature has changed the law pending an appeal, the case must be disposed of by the reviewing Court under the law as it then exists and not as it was when the decision was made by the trial court.)\\nThis Court is bound to determine the applicability of Act 5402 to the present proceedings. The relevant portions of Act 5402 provide as follows:\\nSection 38(a). Issuance of licenses by Board. The Board of Medical Examiners upon due consideration that all administrative and clinical requirements have been met shall issue the appropriate licenses under this Subchapter to each qualified applicant, and\\n(f)(i) Notwithstanding Title 27, Chapter 1, Subchapter II, VIC and upon due consideration of the Board of Medical Examiners that the requirements of this subsection have been met, the Secretary of the Board shall within 90 days of enactment of this Section issue a permanent license to all eligible physicians.\\nThe Board has the grave responsibility to protect the health of the public by assuring that all doctors are qualified before issuing licenses. Hence, the Board is now fully vested with the power and duty to determine whether the plaintiff is entitled to the benefits of Act 5402 and, if qualified, to issue him a license.\\nIn view of the foregoing, this matter is remanded to the Board for a determination as to whether the plaintiff has met all of the administrative and clinical requirements and, if it so concludes, then the Board is mandated to issue the appropriate medical license forthwith.\\nORDER\\nIN ACCORDANCE with this Court's Memorandum Opinion dated February 9, 1989, it is herein\\nORDERED that this matter be and is hereby REMANDED to the Virgin Islands Board of Medical Examiners, Government of the Virgin Islands; and it is further\\nORDERED that this matter be and is hereby DISMISSED as to Defendants Deborah McGregor, M.D., Commissioner of Health and Cora Christian, M.D., Assistant Commissioner of Health and Chairman of the Board of Medical Examiners.\\nPlaintiff failed to present any evidence of the Board's recommendation for the issuance of the temporary license. Moreover, the term \\\"temporary\\\" has been commonly understood to mean \\\"a limited time\\\" and no interpretation should be given to a statute that would render an absurd result. To interpret the old statute as granting continuous renewal of a license for a period covering twelve years flies in the face of the plain meaning of the term \\\"temporary.\\\" This Court finds that Health's interpretation of the old statute, as reflected by its practices, is not entitled to deference inasmuch as its position is inconsistent with the plain words of the statute.\\nAt the Committee of the Whole hearing on Act 5402 the following exchange occurred:\\nSENATOR BELL: So Dr. Garcia did not get a license. He was practicing all the time now they stopped him from practicing. He has been practicing for ten years. This doesn't apply to Dr. Garcia. He will no longer have his practice. So you go to Puerto Rico or they pass them out to the other doctors and they will take his clients. This is not going to take care of Dr. Garcia's problem. It's going to destroy him and his family. That's what this is going to do. This has to be amended to take care of those people.\\nSENATOR REDFIELD: . For the purposes of this section, \\\"eligible physician\\\" means a person who: \\\"then we get on to the section there where there was some difficulty in that court case. Is all the way down there you got a, b, c, d, e, f, you get down to g,\\\" has an active license to practice medicine in any state, territory, commonwealth or possession of the United States. This particular doctor was licensed in Puerto Rico.\\nSENATOR MAGRAS: Senator Bell, Dr. Garcia is taken care of in this bill \\u2014\"}"
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+"{\"id\": \"1095488\", \"name\": \"ARTHUR ABEL and LOLITA ABEL WHYTE, Plaintiffs v. WALTER J. M. PEDERSEN, Asst. Commissioner of Finance, OSWALD O. SCHJANG, Recorder of Deeds, GOVERNMENT OF THE VIRGIN ISLANDS, et al., Defendants\", \"name_abbreviation\": \"Abel v. Pedersen\", \"decision_date\": \"1979-05-10\", \"docket_number\": \"Civil No. 75-740\", \"first_page\": 331, \"last_page\": \"335\", \"citations\": \"16 V.I. 331\", \"volume\": \"16\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T22:25:41.924795+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ARTHUR ABEL and LOLITA ABEL WHYTE, Plaintiffs v. WALTER J. M. PEDERSEN, Asst. Commissioner of Finance, OSWALD O. SCHJANG, Recorder of Deeds, GOVERNMENT OF THE VIRGIN ISLANDS, et al., Defendants\", \"head_matter\": \"ARTHUR ABEL and LOLITA ABEL WHYTE, Plaintiffs v. WALTER J. M. PEDERSEN, Asst. Commissioner of Finance, OSWALD O. SCHJANG, Recorder of Deeds, GOVERNMENT OF THE VIRGIN ISLANDS, et al., Defendants\\nCivil No. 75-740\\nDistrict Court of the Virgin Islands Div. of St. Croix\\nMay 10, 1979\\nJohn D. Merwin, Esq., Frederiksted, St. Croix, V.I., for plaintiffs\\nJohn E. Lenahan, Esq., Assistant Attorney General (Department of Law), Christiansted, St. Croix, V.I., for defendants Pedersen, Schjang & Government\\nFrank Padilla, Esq., Frederiksted, St. Croix, V.I., for defendant Williams\", \"word_count\": \"831\", \"char_count\": \"5123\", \"text\": \"CHRISTIAN, Chief Judge\\nMEMORANDUM AND ORDER\\nThis is an action to expunge a document from the public records and to quiet title to real property.\\nPlaintiff, Arthur Abel, acquired the disputed properties at a tax sale and is now suing the original owners and the Government of the Virgin Islands in an attempt to clarify whether or not a valid redemption of the properties occurred. Plaintiff and defendants Government and Donald Williams have stipulated to various facts and submit their stipulation in an apparent attempt to solicit a judgment from the Court. The stipulation does not, however, provide the Court with sufficient facts upon which to base an opinion. Plaintiff moves for an entry of default, also, against defendants Augustina Nesbitt and Ebenezer Graham. 5 V.I.C. App. I, R. 55. The motion for entry of default will be granted.\\nThe gist of the claim by defendant Williams is that he tendered redemption monies to the Department of Finance and his check was subsequently offered to plaintiff. Plaintiff then refused the tender on the grounds that the amount was insufficient. Finally, the Deputy Commissioner of Finance, Walter Pedersen, directed a letter to the Recorder of Deeds declaring the disputed property redeemed. Despite such a declaration, plaintiff has retained possession of the property.\\nThere are, however, facts essential to a decision to which the Court has not been made privy. For example, there is no stipulation regarding whether the amount tendered in the redemption offer was the proper amount. In addition, there is no stipulation as to who now retains control over the monies offered for redemption. Also, there is no mention whatsoever of the intervenor Nova Scotia Bank. Similarly, although there appear to be cross-claims for damages against the Government for improper notice of the tax sale and mishandling of the redemption process, there is no evidence on the value of the disputed property. Finally, absolutely no argument has been presented to the Court to establish the legal issues involved or their proper resolution. The Court is, therefore, unable to resolve the dispute in the case at bar at this time.\\nAt issue in the motion for an entry of default is whether the service by publication made by plaintiff was adequate. The problem is that Augustina Nesbitt's name is not even mentioned in the notice published by plaintiff and although Ebenezer Graham's name is perhaps indicated, it is badly misspelled as \\\"Ebenezer Granumn\\\". On the other hand, the land involved is satisfactorily described and the notice does address itself to \\\"all persons claiming any right, title and interest in and to\\\" the relevant properties. The Court is troubled by the defects in plaintiff's notice, especially when the correct information was readily available to him. However, the Court is also aware of the common practice among lawyers in the Virgin Islands to consider as adequate a notice mentioning the property involved and addressing itself to all persons claiming an interest in the property. Accordingly, the notice will be deemed valid and the motion for an entry of default will be granted.\\nHowever, this practice will not be acceptable in the future. The Court acknowledges that \\\"[t]he real test for determining if means of service other than personal service or its equivalent will suffice is whether the method is reasonably calculated to give actual notice and, if there is some doubt on the point, is it at least the best possible procedure under the circumstances\\\". C. Wright & A. Miller, Federal Practice and Procedure, \\u00a7 1074, at 301 (1969). Logically, then, if the Court sanctions the use of service by publication, a method of service highly unlikely to achieve actual notice, the \\\"best possible procedure\\\" must be utilized. In the future, therefore, for notice by publication to be valid, the names of defendants, if available to plaintiff, must be properly spelled and clearly mentioned. Only in this manner will the \\\"best possible procedure\\\" have been utilized.\\nORDER\\nThe premises considered and the Court being advised,\\nIT IS ORDERED that the motions of all parties for summary judgment be, and the same are hereby, DENIED;\\nIT IS FURTHER ORDERED that this case be set down for a hearing during the week of May 21, 1979;\\nIT IS FURTHER ORDERED that the motion of plaintiffs for an entry of default be, and the same is hereby, GRANTED.\\nPlaintiff Lolita Abel Whyte and defendants Alva Joseph and the Government have amicably settled their differences as to parcel 71D Two Brothers Frederiksted.\"}"
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+"{\"id\": \"1095534\", \"name\": \"STEPHEN G. HOCH, Plaintiff v. VENTURE ENTERPRISES, INC., d/b/a DADDY'S RESTAURANT, Defendant; JOSEPH GUBERNICK, Plaintiff v. VENTURE ENTERPRISES, INC., d/b/a DADDY'S RESTAURANT, Defendant\", \"name_abbreviation\": \"Hoch v. Venture Enterprises, Inc.\", \"decision_date\": \"1979-06-20\", \"docket_number\": \"Civil No. 77-60; Civil No. 77-61\", \"first_page\": 335, \"last_page\": \"342\", \"citations\": \"16 V.I. 335\", \"volume\": \"16\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T22:25:41.924795+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STEPHEN G. HOCH, Plaintiff v. VENTURE ENTERPRISES, INC., d/b/a DADDY\\u2019S RESTAURANT, Defendant JOSEPH GUBERNICK, Plaintiff v. VENTURE ENTERPRISES, INC., d/b/a DADDY\\u2019S RESTAURANT, Defendant\", \"head_matter\": \"STEPHEN G. HOCH, Plaintiff v. VENTURE ENTERPRISES, INC., d/b/a DADDY\\u2019S RESTAURANT, Defendant JOSEPH GUBERNICK, Plaintiff v. VENTURE ENTERPRISES, INC., d/b/a DADDY\\u2019S RESTAURANT, Defendant\\nCivil No. 77-60\\nCivil No. 77-61\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nJune 20, 1979\\nJames E. Dow, Jr., Esq. (Pallme, Anduze, Mitchell & Dow), Charlotte Amalie, St. Thomas, V.I., for plaintiffs\\nJoel W. Marsh, Esq., Charlotte Amalie, St. Thomas, V.I., for defendant\", \"word_count\": \"1714\", \"char_count\": \"10611\", \"text\": \"YOUNG, District Judge\\nMEMORANDUM OPINION WITH ORDER ATTACHED\\nThis matter is before the Court on the motion of Lynda Hoch, wife of plaintiff, Stephen Hoch, for leave to amend the complaint and the motion of plaintiffs, Stephen Hoch and Joseph Gubernick, for entry of partial summary judgment in their favor on the issue of liability. For the reasons set forth below, Lynda Hoch's motion for leave to file an amended complaint shall be granted, and plaintiffs', Stephen Hoch and Joseph Gubernick, motion for partial summary judgment shall be denied.\\nFACTUAL BACKGROUND\\nThis lawsuit stems out of an alleged case of fish poisoning suffered by plaintiff after consuming native hind fish at defendant's restaurant, Venture Enterprises, Inc., d/b/a Daddy's Restaurant (hereafter \\\"Daddy's\\\"). Plaintiffs, their wives and two other couples went to Daddy's for dinner on the evening of March 4, 1976. Stephen Hoch and Joseph Gubernick ordered the native hind fish, all the other members of the group ordered non-fish dinners. The dinners were served at approximately 10:00 p.m. and another member of the group, Alice Fioto, tasted a small amount of the native hind fish served to Gubernick. Around 1:00 a.m. the following morning, Gubernick and Hoch became ill, suffering stomach cramps, nausea, diarrhea, malaise and a severe sensitivity to temperature changes. When the symptoms persisted, plaintiffs went to the emergency room at Knud-Hansen Hospital where they were diagnosed and treated by Dr. Harold Hanno. Dr. Hanno diagnosed the plaintiffs as demonstrating symptoms of \\\"typical ciguatera poisoning\\\". Later, Alice Fioto reported that she felt slightly nauseous and suffered diarrhea the morning of March 5, 1976. Plaintiffs subsequently brought this suit against Daddy's on the theory that Daddy's breached its express and implied warranty that the fish was wholesome and fit for human consumption.\\nMOTION TO AMEND COMPLAINT\\nPursuant to Fed. Rules of Civil Procedure 15(c), Lynda Hoch, wife of plaintiff, Stephen Ploch, seeks leave to amend the complaint to assert a cause of action for loss of consortium. Lynda Hoch recognizes that this action normally would be barred under the applicable statute of limitations period, but argues that her claim should relate back to February 25, 1977, the date the original complaint was filed, relying on Rule 15(c). Defendant does not oppose this motion.\\nRule 15(c) provides in pertinent part:\\nWhenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleadings, the amendment relates back to the date of the original pleading.\\nIn the matter sub judice, the loss of consortium claim is based upon the same allegations of negligence contained in Stephen Hoch's complaint. Thus, defendant has been given the notice that the statute of limitations is intended to afford and will not suffer prejudice by the amendment. See, e.g., Hockett v. American Airlines, Inc., 357 F.Supp. 1343 (N.D. Ill. 1973) (wife of plaintiff granted leave to amend the complaint to assert a claim for loss of consortium, and claim deemed to relate back under Rule 15(c) in that the loss of consortium cause was based upon the same allegations of negligence as those contained in the husband's complaint). Accordingly, Lynda Hoch's motion for leave to amend the complaint shall be granted and her claim shall relate back to the date of the original pleading for purposes of the limitation period.\\nMOTION FOR PARTIAL SUMMARY JUDGMENT\\nPlaintiffs move for entry of partial summary judgment in their favor on the issue of liability and assert three theories of liability in support, to wit: breach of defendant's express and implied warranty that the fish was fit for human consumption, and negligence per se relying on a safety regulation which prohibits the sale of contaminated food to the public. Defendant opposes said motion, arguing that material issues of fact are in dispute as to the issue of proximate causation; whether the cooked fish was unfit within the meaning of \\u00a7 2 \\u2014 314 of the Uniform Commercial Code (hereafter U.C.C.) and whether the assumption of risk defense is applicable under the facts in the instant case.\\nAfter carefully reviewing the memoranda of the parties and their supporting affidavits and documents, I conclude that there are material issues of fact which will be necessary for the jury to decide. First of all, on the record before me, I cannot find that plaintiffs have conclusively established the element of proximate causation. Rather, under the case authority cited by plaintiff, plaintiff has merely demonstrated that there is sufficient evidence in the matter sub judice to submit the issue of proximate cause to the jury. Moreover, defendant raised further grounds on the issue of causation, to wit: (1) no other claims or legal actions allegedly devolving from ciguatera fish poisoning have been brought against defendant with respect to other hind fish dinners served on March 4, 1976; (2) where poisoning is alleged from food which it not outwardly deleterious, a plaintiff assumes a greater burden in proving causation; (3) because there is large individual variation in symptoms of ciguatera victims, it is possible that plaintiffs suffered a delayed reaction from some other food.\\nJudge Christian's recent decision in Battiste v. St. Thomas Diving Club, 15 V.I. 184 (D.C.V.I. 1979), provides an alternate basis for denying plaintiff's motion. Battiste involved a fish poisoning action for damages brought against Villa Olga Restaurant, wherein the parties filed cross-motions for summary judgment. The defendant restaurant had argued that the implied warranty statute was inapplicable to fish poisoning because ciguatera fish poisoning is a latent natural condition in fish. The Court framing the issue as what legal standard governed the applicability of the implied warranty provisions of \\u00a7 2 \\u2014 314 and \\u00a7 2 \\u2014 315 to ciguatera fish poisoning (15 V.I. at 186) adopted a \\\"reasonable expectations test\\\", which holds it is a question of fact whether a buyer could reasonably expect to find the substance in the food consumed. Only if the plaintiff did not reasonably expect to find such a substance could it prevail on an implied warranty theory. Thus, under the Battiste rationale, there remains a factual question as to whether plaintiffs in the matter sub judice might have reasonably expected that their dinner would be contaminated by fish poisoning.\\nThere is yet a third basis on which to premise denial of plaintiff's motion. In Bronson v. Club Comanche, Inc., 286 F.Supp. 21, 6 V.I. 683 (D.C.V.I. 1968), an action was brought against Club Comanche for alleged fish poisoning suffered after plaintiffs consumed a fish dinner in the restaurant. There, as here, plaintiffs sued on an implied warranty theory, relying on \\u00a7 2 \\u2014 314 of the U.C.C. The Court held that the assumption of risk defense should be available to the defendant, noting:\\n[t]he form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger . . . may be a defense in a case of strict liability, such as this. If the consumer is fully aware of the danger and nevertheless proceeds voluntarily to make use of the product and is injured by it he is barred from recovery. This has sometimes, perhaps more accurately, been described as ceasing to place any reliance on the implied warranty rather than as assuming the risk. 6 V.I. at 687-688.\\nThus, in the matter sub judice, there remains a factual issue of whether, in the instant case, the assumption of risk defense should be available to defendant. This will require a full factual development of the pertinent considerations, which the record presently lacks and, accordingly, Rule 56 relief is not appropriate.\\nOn the basis of the foregoing, plaintiff's motion for entry of partial summary judgment in its favor on the issue of liability shall be denied.\\nORDER\\nIn accordance with the reasons set forth in the Memorandum Opinion of even date, it is hereby\\nORDERED\\nThat Lynda Hoch's motion for leave to amend the complaint shall be GRANTED and her claim shall relate back to the date of the filing of the original complaint. It is hereby\\nFURTHER ORDERED\\nThat plaintiffs', Stephen Hoch and Joseph Gubernick, motion for entry of partial summary judgment in their favor on the issue of liability is hereby DENIED.\\nThe Virgin Islands Sanitation Code, 19 V.I.R.&R. \\u00a7 1404-1(6), provides in pertinent part:\\n\\\"No person shall have, sell or offer any food which is adulterated. The term food shall include every article of food and every beverage used by man and all confectionery food as herein defined shall be deemed adulterated . (6) if it contains any added poisonous ingredient or any ingredient which may render it injurious to health. . ,\\nSee, e.g., Tate v. Winn Dixie of La., Inc., 339 So. 1329 (La. App. 1976): Barfield v. F. W. Woolworth Co., 110 N.E.2d 103 (1953): Burns v. Colonial Stores, 83 S.E.2d 259 (Ga. App. 1954).\\nDefendant was asked in interrogatories whether it had any evidence which would show that the fish served at Daddy's Restaurant on March 4, 1976, was not unfit for human consumption. Defendant responded as follows: Yes, I offer the fact that only this claim was made and it was made almost one year after the incident took place. Additionally, I offer the fact that most of our fish dinners are prepared using several portions of large fish; therefore, it is most unlikely that only one incident would have occurred. Defendant's Answers to Interrogatories, Nos. 78 and 79.\\nJudge Christian stated in Battiste that although the analysis contained therein was slightly different, the underlying law regarding the assumption of risk defense was modified only to the extent that the assumption of risk defense would be effectively incorporated as an element of plaintiff's claim.\\nPlaintiffs' statements in their affidavits that they had never become acquainted with the phenomenon of fish poisoning in any manner whatsoever does not effectively resolve this issue.\"}"
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+"{\"id\": \"1098504\", \"name\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. OLIVER WILLIAMS, Defendant\", \"name_abbreviation\": \"Government of the Virgin Islands v. Williams\", \"decision_date\": \"1987-01-22\", \"docket_number\": \"Criminal No. 1986/76\", \"first_page\": 125, \"last_page\": \"131\", \"citations\": \"23 V.I. 125\", \"volume\": \"23\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:20:51.402122+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. OLIVER WILLIAMS, Defendant\", \"head_matter\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. OLIVER WILLIAMS, Defendant\\nCriminal No. 1986/76\\nDistrict Court of the Virgin Islands Div. of St. Croix\\nJanuary 22, 1987\\nRoland B. Jarvis, Esq., Assistant United States Attorney, St. Croix, V.I., for the Government\\nMelody L. Moss, Esq., Assistant Federal Public Defender, St. Croix, V.I., for defendant\", \"word_count\": \"2418\", \"char_count\": \"14078\", \"text\": \"O'BRIEN, Judge\\nMEMORANDUM AND ORDER\\nThis presentencing motion requires us to decide whether a conviction for a predicate \\\"crime of violence\\\" is necessary in order to sentence upon a conviction of possession of a dangerous weapon during a \\\"crime of violence\\\" in violation of 14 V.I.C. \\u00a7 2551(a)(2)(B). We hold that it is; but because we may sentence the defendant pursuant to 14 V.I.C. \\u00a7 2551(a)(2)(A), we will deny his motion to set aside the verdict.\\nI. FACTS\\nThe defendant, Oliver Williams, was tried on a two count information. Count I charged assault with the intent to murder in violation of 14 V.I.C. \\u00a7 295(1). Count II charged Williams with possession of a dangerous weapon, a machete, with the intent to use same during a crime of violence in violation of 14 V.I.C. \\u00a7 2551(a)(2).\\nThe jury was instructed on the crime of assault with the intent to murder, and the lesser included offenses of assault in the Third Degree, and simple assault. . (TR of Inst, at 11-14.) The jury was also instructed on the elements of the weapon charge.\\nAfter deliberations, the jury returned a verdict acquitting Williams of assault with intent to murder, and the lesser included offense of assault in the Third Degree; but the jury convicted Williams of the lesser included offense of simple assault, as well as the second count consisting of the weapon charge.\\nWilliams now argues in this motion that the jury's verdict on the assault count requires us to set aside the verdict on the'weapon charge, because simple assault is not a \\\"crime of violence\\\" as defined by the code Williams contends that where the jury acquits on the predicate offense which constitutes a \\\"crime of violence\\\" under the code, a conviction under 14 V.I.C. \\u00a7 2251(a)(2)(B) cannot stand. While we agree that sentencing under \\u00a7 2251(a)(2)(B) requires a conviction for a predicate \\\"crime of violence\\\", an entry of acquittal is not the proper resolution where the law allows us to impose sentence under \\u00a7 2251(a)(2)(A).\\nBefore turning to this issue, we note that this question has begged resolution since the statute was adopted. In fact, the Third Circuit recognized but expressed no opinion on the issue in Government of the Virgin Islands v. Edwards, 750 F.2d 23, 25 n.l (3d Cir. 1984). We squarely face it today.\\nII. DISCUSSION\\nWe agree with the Government that the general rule is that a criminal defendant may not attack his conviction on one count because it is inconsistent with the jury's verdict of acquittal on another count. See United States v. Powell, 469 U.S. 57, 105 S.Ct. 471 (1984) (citing Dunn v. United States, 284 U.S. 390 (1932)). However, even the Powell Court noted that its decision did not resolve the situation where a guilty verdict on one count logically excludes a finding of guilt on the other. 105 S.Ct. at 479 n.8 (citing United States v. Daigle, 149 F. Supp. 409 (D.C. D.C. 1957), aff'd 248 F.2d 608 (D.C. Cir. 1957), cert. denied, 358 U.S. 913 (1958). Nor does that decision resolve the fact situation where as here a statute requires two convictions before an enhanced sentence may be imposed. Therefore, to the extent that our holding requires a conviction for a predicate \\\"crime of violence\\\" in order to impose sentence pursuant to \\u00a7 2251(a)(2)(B), the Dunn rule is inapplicable.\\nA. Predicate \\\"Crime of Violence\\\"\\nThe Virgin Islands dangerous weapon statute makes possession of a dangerous weapon a separate offense from a \\\"crime of violence\\\" perpetrated with a dangerous weapon. Government of the Virgin Islands v. Smith, 558 F.2d 691, 696 (3d Cir.), cert. denied, 434 U.S. 957 (1977). As a result, the crime of possession cannot be considered a lesser included offense of possession during a \\\"crime of violence\\\". Id.\\nMoreover, as the Third Circuit reiterated in Government of the Virgin Islands v. Soto, 718 F.2d 72 (3d Cir. 1983):\\n[t]he legislature plainly intended to authorize multiple convictions and sentences under the dangerous weapon statute, and the statute proscribing the underlying or predicate 'crime of violence' perpetrated with a weapon, since the last clause of the weapons statute specifically states that punishment under it is in addition to the \\\"crime of violence\\\".\\nId. at 78 (emphasis added).\\nWe interpret the inclusion of the clause \\\"in addition to\\\" as representing the legislative intent that the sentencing under the weapon statute, with respect to \\\"crimes of violence\\\", was to be cumulative with sentencing on the underlying \\\"crime of violence\\\". This evidences the necessity that there be a conviction for a predicate \\\"crime of violence\\\" in order that there be an additional sentence for the weapon conviction.\\nIndeed, the fact that sentencing under \\u00a7 2251(a)(2)(B) may occur either if the defendant has been previously convicted of a felony, or if the present conviction occurred during a \\\"crime of violence\\\", indicates that one of two predicates must exist in order to invoke its sentencing provision. If we were to hold otherwise, this language would be inconsistent if not superfluous since the language suggests that the legislature intended to require two convictions prior to enhancing sentences under \\u00a7 2251(a)(2)(B), either a conviction for a prior felony or a conviction for a predicate \\\"crime of violence\\\".\\nIf we read the statute not to require a conviction on the predicate \\\"crime of violence\\\", it would mean that possession in violation of \\u00a7 2251(a)(2)(A) would become a lesser included offense of possession during a \\\"crime of violence\\\". Such an interpretation would confront the Third Circuit's conclusion in Smith that the statute proscribes two separate offenses, and not a single crime with a separate lesser included offense. Therefore, we conclude that in order for us to impose sentence under \\u00a7 2251(a)(2)(B), the jury must convict on the predicate \\\"crime of violence\\\".\\nB. Sentencing Under \\u00a7 2251(a)(2)\\nWilliams argues that because sentencing pursuant to \\u00a7 2251(a)(2)(B) necessitates a conviction for a predicate \\\"crime of violence\\\", we must enter a judgment of acquittal on the weapons charge. This contention, however, overlooks the- teaching of the Third Circuit in Charles, supra. The court there held that where a jury acquitted of a predicate \\\"crime of violence\\\", and also convicted for possession of a dangerous weapon during a \\\"crime of violence\\\", sentence may be imposed under \\u00a7 2251(a)(2)(A) rather than \\u00a7 2251(a)(2)(B). 590 F.2d at 83-85. The court wrote:\\nHaving determined that Charles was not convicted in Count II of any \\\"crime of violence\\\", his conviction in Count III under \\u00a7 2251(a)(2) could only involve subsection (A) rather than subsection (B) which requires the commission of a 'crime of violence'. Therefore, Charles could only be subject to the sentence prescribed in subsection A \\u2014 a sentence limited to a fine of not more than $1,000 or imprisonment for not more than two years or both .\\nId. at 85. See also Government of the Virgin Islands v. Edwards, 750 F.2d 23 (3d Cir. 1984); Government of the Virgin Islands v. Sealey, 18 V.I. 425 (D.V.I. 1981).\\nThe Edwards court faced similar facts as in Charles except that the defendant was acquitted of the predicate \\\"crime of violence\\\" and convicted solely of the weapons charge. Edwards 750 F.2d at 24. The court emphasized that the trial court had not instructed the jury that possession of the dangerous weapon had to occur during a crime of violence in order to convict under \\u00a7 2251(a)(2)(B). Therefore, it had no trouble imposing sentence under \\u00a7 2251(a)(2)(A) which does not require the \\\"crime of violence\\\" component. Id.\\nWe note that the Edwards facts are not directly on point since the jury here was instructed on the \\\"crime of violence\\\" element, see supra, note 5. That case is, however, supportive of our position because the Edwards court rested its holding squarely on Charles, finding the decision indistinguishable. Id. at 24. Since the Third Circuit decision in Charles is still good law and it rests on all fours with our facts here, we will follow its teaching and impose sentence under \\u00a7 2251(a)(2)(A).\\nIII. CONCLUSION\\nFor the foregoing reasons, we hold that sentencing pursuant to 14 V.I.C. \\u00a7 2251(a)(2)(B) requires a conviction on a predicate \\\"crime of violence\\\" as defined by 23 V.I.C. \\u00a7 451(e). We conclude, however, that where the jury acquits of the predicate \\\"crime of violence\\\", but convicts on the weapons charge, sentence may be imposed under 14 V.I.C. \\u00a7 2251(a)(2)(A).\\nORDER\\nTHIS MATTER having come before the Court on motion of the defendant, Oliver Williams, to set aside his verdict of conviction, and the Court having issued its opinion of even date herewith, the premises considered, now, therefore it is\\nORDERED:\\nTHAT the defendant's motion to set aside his verdict is, hereby and the same, DENIED.\\n14 V.I.C. \\u00a7 295(1) provides:\\nWhoever\\u2014\\n(1) with intent to commit murder, assaults another . . . shall be imprisoned not more than 15 years.\\n14 V.I.C. \\u00a7 2251(a)(2) provides in relevant part:\\nWhoever \\u2014 . . .\\n(2) with intent to use the same unlawfully against another, has, possesses, bears, transports, carries or has under his proximate control, a dagger, dirk, dangerous knife, razor, stilleto, or any other dangerous or deadly weapon shall\\u2014\\n(A) be fined not more than $1,000 or imprisoned not more than two (2) years, or both; or\\n(B) if he has previously been convicted of a felony, or has, possesses, bears, transports, carries or has under his proximate control, any such weapon during the commission or attempted commission of a crime of violence (as defined in section 2253(d)(1) hereof) shall be fined not more than $2,000 or imprisoned not more than five (5) years, or both, which penalty shall be in addition to the penalty provided for the commission of, or attempt to commit, the crime of violence . . .\\n14 V.I.C. \\u00a7 297 provides:\\nWhoever, under circumstances not amounting to an assault in the first or second degree\\u2014\\n(1) assaults another person with intent to commit a felony;\\n(2) assaults another with a deadly weapon; . . . shall be fined not more than $500 or imprisoned not more than 5 ye^urs or both.\\n14 V.I.C. \\u00a7 299 provides in relevant part:\\nWhoever commits\\u2014\\n(1) a simple assault;\\nshall be fined not more than $50 or imprisoned not more than 30 days or both.\\nThe jury instructions on the weapon charge were as follows:\\nThe Court: Before you can convict the defendant in this count, you have to find that the government has proved each of the following essential elements beyond a reasonable doubt.\\nFirst, that Oliver Williams acted willfully. That he did possess, bear, transport or carry a dangerous weapon.\\nThe government alleges it was a machete. It is for the jury to decide whether he carried such a weapon and if he did, is it in the context of this case a dangerous weapon?\\nNext, that Oliver Williams intended to use that dangerous weapon unlawfully against Judy Edmeade.\\nAnd, lastly, .that this occurred during the commission of a crime of violence. And, the government alleges that the crime of violence that it was used in consisted of either assault in the first degree, assault to do great bodily harm, or assault with or by means of a dangerous weapon.\\n14 V.I.C. \\u00a7 2253(d)(1) provides that the meaning of the phrase \\\"crime of violence\\\" is the same as provided in 23 V.I.C. \\u00a7 451(e). That provision provides that: a \\\"crime of violence\\\" means any of the following crimes, or an attempt to commit any of the same, namely: Murder in any degree, voluntary manslaughter, rape, arson, mayhem, kidnapping, assault in the first degree, assault with or by means of a deadly or dangerous weapon, assault to do great bodily harm, robbery, burglary, housebreaking, breaking and entering and larceny.\\nIn Powell, the jury had acquitted the defendant on the predicate offense of conspiracy with the intent to distribute cocaine and possession of cocaine, but convicted the defendant on the use of the telephones in furtherance of a conspiracy to distribute cocaine in violation of 21 U.S.C. \\u00a7 243(b). 105 S.Ct. at 473-75.\\nImplicit in this holding is our conclusion that a simple assault in violation of 14 V.I.C. \\u00a7 299 is not a \\\"crime of violence\\\". Not only is it not among those assaults enumerated in 23 V.I.C. \\u00a7 451(e), see supra, note 6; it is not similar to the First or Third Degree assaults which are so enumerated. Moreover, in Government of the Virgin Islands v. Charles, 16 V.I. 52, 590 F.2d 82 (3d Cir. 1979), the Third Circuit held that assault in the Third Degree, assault which inflicts bodily harm in violation of 14 V.I.C. \\u00a7 292(4) did not constitute a \\\"crime of violence\\\" because it does not require a finding of intent to do bodily harm. Id. at 84. Similarly, a conviction for simple assault does not require such an intent.\\nOur holding does not, however, make a conviction for a predicate crime, not amounting to a \\\"crime of violence\\\", necessary for sentencing pursuant to \\u00a7 2251(a)(2)(A), because that provision does not require that the possession occur during a \\\"crime of violence\\\". See e.g., Charles, supra at 85.\\nWe recognize that our holding implies that so long as the jury convicts on a predicate \\\"crime of violence\\\", it matters not that the information and/or the jury instructions on the weapons count states only the charge of possession of a dangerous weapon.\\nAlthough Judge Broderick's resolution in Sealey comports with our resolution here, his reasoning cannot be prescribed under the decisions of the Third Circuit and our rationale here.\\nTo the extent the Edwards and Charles results appear to suggest that possession is a lesser included offense of possession during a \\\"crime of violence\\\" they conflict with the Third Circuit's discussion in Smith. However, we leave it up to the Circuit to resolve any such contradictions.\"}"
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+"{\"id\": \"1098535\", \"name\": \"GOVERNMENT OF THE VIRGIN ISLANDS ex rel. BARBARA EICOFF, Relator v. ALAN MICHAEL EICOFF, Respondent\", \"name_abbreviation\": \"Government of the Virgin Islands ex rel. Eicoff v. Eicoff\", \"decision_date\": \"1987-11-04\", \"docket_number\": \"Family No. S5/1986\", \"first_page\": 65, \"last_page\": \"69\", \"citations\": \"23 V.I. 65\", \"volume\": \"23\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:20:51.402122+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GOVERNMENT OF THE VIRGIN ISLANDS ex rel. BARBARA EICOFF, Relator v. ALAN MICHAEL EICOFF, Respondent\", \"head_matter\": \"GOVERNMENT OF THE VIRGIN ISLANDS ex rel. BARBARA EICOFF, Relator v. ALAN MICHAEL EICOFF, Respondent\\nFamily No. S5/1986\\nTerritorial Court of the Virgin Islands Div. of St. Thomas and St. John\\nNovember 4, 1987\\nHonorable Godfrey deCastro, Attorney General of the Virgin Islands, by: Diane Martin Pomper, Esq., Assistant Attorney General (Government of the Virgin Islands Department of Justice), St. Thomas, V.I., for relator\\nAlan Michael Eicoff, St. Thomas, V.I., respondent, pro se\", \"word_count\": \"1573\", \"char_count\": \"9517\", \"text\": \"MEYERS, Judge\\nMEMORANDUM OPINION\\nAlan Eicoff (\\\"Respondent\\\") has moved the Court to dismiss this action for support which was instituted by the Government of the Virgin Islands (\\\"Government\\\") on behalf of Barbara Eicoff (\\\"Relator\\\"), pursuant to the provisions of the Uniform Reciprocal Enforcement of Support Act (\\\"URESA\\\"), 16 V.I.C. \\u00a7 391 et seq. The Government has opposed respondent's motion. Because this Court finds that respondent has a duty to support his daughter, the motion will be denied.\\nFACTS\\nOn November 8, 1982, the respondent and the relator were divorced by the Superior Court of Cobb County, State of Georgia. Subsequent to their divorce, the parties entered into a settlement agreement, which was incorporated into the original decree of divorce on October 5, 1983, and which granted the respondent legal custody of his daughter, Renni Eicoff. At the time that the parties entered in the settlement agreement, Renni expressed the desire to live with the respondent. Relator was granted legal custody of the parties' son, Mitchell Eicoff but his support is not at issue in this action. The child support provision of the settlement agreement provided the following:\\nChild Support:\\nThe Plaintiff [Respondent] shall be solely responsible for the support of the minor child, RENNI SUZANNE. The Plaintiff [Respondent] will pay to the Defendant [Relator] the sum of Six Thousand Four Hundred ($6,400.00) Dollars for the support of the child, Mitchell, which sum is computed as of October 1, 1983 until his eighteenth (18th) birthday and is computed at the rate and amount as was agreed in the original decree of divorce for child support.\\nRespondent subsequently remarried and around the end of 1983 relocated to St. Thomas, Virgin Islands. Renni lived with him in St. Thomas from the time of his relocation until June of 1984 when she returned to Georgia to live with her mother. On October 24, 1984, the relator was granted Letters of Temporary Guardianship (Person Only) of Renni in Cobb County, Georgia. Renni has continued to reside with her mother from June 1984, to the present. Since February of 1985, respondent has not supported Renni.\\nDISCUSSION\\nRespondent advances several arguments in support of his motion for dismissal: (1) that since the relator has neither legal custody nor custody by consent, she is not entitled to relief under the URESA; (2) that he is prepared to continue to provide the necessary support for Renni, but in the meantime, since relator has temporary guardianship of Renni, she should be responsible for her support; and (3) that under the Georgia version of the URESA, no support action arises unless there is a need for support. Respondent contends that the Relator has sufficient funds to support Renni and that Renni is capable of working part-time to aid in her own support.\\nRespondent has cited a myriad of Georgia cases in support of his various arguments. His reliance on Georgia laws, however, is misplaced. Since the Virgin Islands is the responding state, Virgin Islands law governs this action. The Georgia URESA is not controlling on the issue of whether a support action arises. Title 16 V.I.C. \\u00a7 411, the Virgin Islands version of the URESA, provides that:\\n\\u00a7 411. Choice of Law\\nDuties of support applicable under this subchapter are those imposed or imposable under the laws of any State where the obligor was present during the period for which support is sought. The obligor is presumed to have been present in the responding State during the period for which support is sought until otherwise shown.\\nThe United States Court of Appeals for the Third Circuit has held that, within the meaning of \\u00a7 411, the \\\"duty of support imposed by a court order, a decree or judgment becomes a duty imposed by the laws of the Virgin Islands.\\\" Lorillard v. Lorillard, 5 V.I. 483, 489; 358 F.2d 172 (3d Cir. 1966). This Court will, therefore, summarily dispose of respondent's last argument.\\nRespondent's first and second arguments will be addressed collectively. The Government has argued, and the Court agrees, that the Virgin Islands URESA is limited to the issue of support. Specifically, 16 V.I.C. \\u00a7 393 provides that, \\\"[t]he remedies provided in this subchapter are in addition to and not in substitution for any other remedies.\\\" Additionally, \\u00a7 429 makes it clear that \\\"[participation in any proceeding under this subchapter shall not confer upon any court jurisdiction of any of the parties thereto in any other proceeding.\\\" If respondent has a custody issue which he would like addressed, his recourse is to institute an action under the Uniform Child Custody Jurisdiction Act, 16 V.I.C. \\u00a7 115 et seq., or by contempt proceedings to enforce the Georgia divorce decree. Respondent's defensive arguments about custody of Renni should not be entertained in the instant action. .\\nIn the case of Kramer v. Kelly, 401 A.2d 799 (Pa. Super. 1979), the appellant-father filed contempt proceedings against the appellee-mother for removal of the parties' minor child in violation of a previous court order. The appellee, in response, filed a cross-petition to hold appellant in contempt for nonsupport of the child. Appellant objected to the cross-petition on the grounds that since appellee was in contempt of the court's order, she was not entitled to relief. Even though the court found appellee to be in contempt, it went on further to impose a duty of support on appellant. The court held that,\\nIt is an accepted principle that the misconduct of the mother does not affect a father's duty to support his child. Indeed, this duty is well nigh absolute and the support order must ordinarily be complied with even if the actions of the wife place her in contempt of court.\\nId. at 803. See also, Todd v. Pochop, 365 N.W.2d 559 (S.D. 1985) (interference with a noncustodial parent's visitation rights may not be raised as a defense in a URESA action); State of Wisconsin ex rel. Southwell v. Chamberland, 349 N.W.2d 309 (Miss. App. 1984) (misconduct of a mother does not affect a father's duty to support his child); Schmidt v. Schmidt, 459 A.2d 421 (Pa. Super. 1983) (duty to support does not depend upon a right of visitation).\\nSimilarly, in State of Louisiana ex rel. Eaton v. Leis, 354 N.W.2d 209 (Wis. App. 1984), the court held that a Wisconsin resident with legal, but not physical, custody of a child may be required to pay child support to the other parent residing in another state with the child. In that case, the father, through a divorce decree, was granted legal and physical custody of the parties' minor children. The mother subsequently obtained physical custody of the children in violation of a court order and filed an action for support. In granting support to the mother, the court reasoned that,\\nA child should not be punished for its parent's misconduct. Even children \\\"stolen\\\" by a non-custodial parent need food, clothing and shelter. A parent with ability to provide support should be required to do so. Parents may litigate custody matters when they choose, bat children's need for support is immediate.\\nId. at 213.\\nThis Court finds the rationale of Kramer and Eaton to be persuasive. Irrespective of whether Renni was kept in Georgia against respondent's wishes or whether Renni simply chose not to return to live with respondent, she is still in need of support. Title 16 V.I.C. \\u00a7 342(a)(3) clearly establishes the obligation of parents to support their children. See also, Leonard v. Leonard, 18 V.I. 248 (Terr. Ct. 1982); Towers v. Towers, 16 V.I. 209 (Terr. Ct. 1979); Lorillard v. Lorillard, supra. Moreover, the separation agreement entered into by the parties states that respondent would be \\\"solely\\\" responsible for Renni's support. No limitations or exclusions were attached to this responsibility, and the reasonable interpretation is that respondent would be responsible for Renni's support regardless of where she was physically residing.\\nCONCLUSION\\nRespondent has a duty to support Renni even if she is living with her mother in contravention of the divorce decree. The issue of her custody, while it may be entertained pursuant to the Uniform Child Custody Act, 16 V.I.C. \\u00a7 115 et seq., is not a defense to a duty to support his daughter.\\nORDER\\nThe Court having rendered its memorandum opinion of even date and being satisfied in the premises, it is\\nORDERED that Defendant's motion to dismiss be and the same is hereby DENIED; and it is further\\nORDERED that this matter be and is hereby scheduled for a hearing in the Family Division on Wednesday, December 2, 1987, at 9:00 a.m.; and it is further\\nORDERED that the Respondent submit a current financial statement to the Clerk's Office, Family Division, on or before November 25, 1987.\\nFor further discussion see, for example, Kansas States Department of Social and Rehabilitation Services v. Henderson, 620 P.2d 60 (Colo. App. 1980); State ex rel. Hubbard v. Hubbard, 329 N.W.2d 202 (Wise. 1983); Leland v. Fricke, 376 So. 2d 432 (Fla. App. 1979); Application of Meyers, 219 N.Y.S.2d 63 (1961).\"}"
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+"{\"id\": \"1099698\", \"name\": \"WALTER E. PREISS, Plaintiff/Appellant and Cross-Appellee v. R. D. SEVERE and BAKER'S, INC., Defendant/Appellee and Cross-Appellant\", \"name_abbreviation\": \"Preiss v. Severe\", \"decision_date\": \"1986-11-13\", \"docket_number\": \"D.C. Civil No. 1985/278; Terr. Court No. 1985/380\", \"first_page\": 433, \"last_page\": \"442\", \"citations\": \"22 V.I. 433\", \"volume\": \"22\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:43:43.325359+00:00\", \"provenance\": \"CAP\", \"judges\": \"CHRISTIAN, Presiding Judge, O\\u2019BRIEN, District Judge and MEYERS, Territorial Court Judge\", \"parties\": \"WALTER E. PREISS, Plaintiff/Appellant and Cross-Appellee v. R. D. SEVERE and BAKER\\u2019S, INC., Defendant/Appellee and Cross-Appellant\", \"head_matter\": \"WALTER E. PREISS, Plaintiff/Appellant and Cross-Appellee v. R. D. SEVERE and BAKER\\u2019S, INC., Defendant/Appellee and Cross-Appellant\\nD.C. Civil No. 1985/278\\nTerr. Court No. 1985/380\\nDistrict Court of the Virgin Islands Div. of St. Croix Appellate Division\\nNovember 13, 1986\\nKevin A. Rames, Esq., St. Croix, V.I., for plaintiff/appellant\\nGeorge H. Logan, Esq., St. Croix, V.I., for defendant/appellee\\nCHRISTIAN, Presiding Judge, O\\u2019BRIEN, District Judge and MEYERS, Territorial Court Judge\", \"word_count\": \"2965\", \"char_count\": \"17851\", \"text\": \"OPINION OF THE COURT\\nThis appeal requires us to determine whether, in the circumstances of this case and its posture on appeal, the defense of in pari delicto requires reversal of the territorial court. We hold that the defense is inapplicable and we will affirm the judgment of the territorial court.\\nI. FACTS\\nIn November 1984, Walter E. Preiss, the appellant/crossappellee, sold his juice distributorship to R. D. Severe and Baker's, Inc., the appellee/cross-appellant. The purchase price was $191,010.90, of which Severe paid $75,000 at the closing and issued two notes in Preiss' favor covering the balance. Almost immediately, Severe defaulted on the notes and Preiss filed the debt action herein in March 1985. Severe counterclaimed, alleging that Preiss had fraudulently misrepresented the income of the distributorship by assuring him that a brisk business'had been conducted off-the-books.\\nThe territorial court dismissed the Preiss debt action and held that Preiss had defrauded Severe. It awarded him $38,283.80 in compensatory and punitive damages. Preiss now appeals the finding of fraud and the propriety of the punitive damages. In the cross-appeal, Severe argues that the court undervalued the compensatory award. The judgment is amply supported by the record and will, therefore, be affirmed in all respects. We write only in response to our dissenting colleague's opinion that Severe was< barred under the doctrine of in pari delicto from asserting fraud. We granted the parties leave to brief this issue.\\nII. DISCUSSION\\nAs an initial matter, we must correct Preiss' post-argument statement that estoppel was pled as an affirmative defense to Severe's- counterclaim for fraud. Such a defense was not asserted, either at trial or on appeal. The applicability of in pari delicto was raised for the first time by a member of this panel during oral argument. Rule 8(c) of the Federal Rules of Civil Procedure, however, required Preiss to raise all affirmative defenses, at the latest, during trial or else waive them. E.g., Systems Incorporated v. Bridge Electronics Co., 335 F.2d 465, 466 (3d Cir. 1964). And as a general rule of appellate procedure, issues raised for the first time on appeal should be rejected summarily. E.g., Singleton v. Wulff, 428 U.S. 106, 120-21 (1976). We perceive no reason to deviate from this established practice here and hold that Preiss waived the estoppel defense. We proceed to discuss its merits only to explain the basis for our disagreement with the dissent.\\nIn pari delicto, like its equitable companion principle of unclean hands, is a common law doctrine designed to prevent profit from one's wrongful acts. Literally, in pari delicto means \\\"in equal fault\\\" and thus, it is not surprising that the bedrock requirement of this circuit, and the classic rule of the common law, is that the guilt of the party asserting fraud must be \\\"substantially equal to that of the defendant.\\\" Tarasi v. Pittsburgh National Bank, 555 F.2d 1152, 1156-59, 1161 (3d Cir.), cert. denied, 434 U.S. 969 (1977). Eichler v. Berner, 105 S.Ct. 2622, 2626-27 (1985); Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 147 (1968) (Fortas, J., concurring); Mallis v. Bankers Trust Co., 615 F.2d 68, 94-97 (2d Cir. 1980), cert. denied, 449 U.S. 1123 (1981); Collins v. PBW Stock Exchange, Inc., 408 F. Supp. 1344, 1349 (E.D. Pa. 1976).\\nThe Third Circuit defined the in pari delicto defense in the widely-cited Taras\\u00ed case:\\nIn pari delicto, which literally means \\\"of equal fault,\\\" is one of the common law doctrines fashioned to assure that transgressors will not be allowed to profit from their own wrongdoing. Under this construct, a party is barred from recovering damages if his losses are substantially caused by \\\"activities the law forbade him to engage in.\\\"\\nThe rule has developed many complexities and has been applied where plaintiffs have had only a minimal association with the allegedly unlawful acts. However, when in pari delicto is given a narrow interpretation, the scrutiny of the relative moral worth of litigants that it allows is a limited one. Only in those cases where it can fairly be said that the plaintiffs' fault is substantially equal to that of the defendant will recovery be precluded. Moreover, a court may look only to conduct associated with the transaction before it, and may not forbid recovery on account of a plaintiff's activities in a separate setting.\\n555 F.2d at 1156-57 (footnotes omitted).\\nTaras\\u00ed presents a classic example of equal guilt: a tippee claiming fraud against the tipper who supplied inaccurate insider securities information. The court allowed the defendant to invoke in pari delicto because by acting on the tip, the plaintiff violated the same statute as did the defendant and this, in turn, posed the same threat to the stability of the stock market.\\nThe in pari delicto defense is inapplicable here because the parties' guilt is not equal. Severe's requisite culpability consists of an allegation that he bought Preiss' business with the intent to commit tax fraud. Purportedly, this intent can be inferred from Severe's direct testimony:\\nQ Sir, did you hire an accountant to review the books or anything of the records of the company?\\nA No, I did not.\\nQ Why not?\\nA Well, Mr. Preiss had represented to me that the books were immaterial, that Baker's, Inc., was selling half a dozen trailer loads a year that were unreported to the government and he said that in order\\u2014\\nATTORNEY RAMES: Your Honor, I object.\\nTHE COURT: Overruled.\\nATTORNEY CANNON: Go ahead.\\nTHE WITNESS: And, in order to do this, that there could be no trace left of any information regarding those trailer loads or any product that was being sold under the table.\\nQ And, you believed that?\\nA Yes, I did.\\nQ Why did you believe that?\\nA Well, it's \\u2014 in any business you run into, [there are] all kinds of people who will, you know, will use any method to produce a net profit. I said to Mr. Preiss at the time that that was fine that he was doing that, but it was immaterial to me. Because, what it would be saving was gross receipts taxes. Those gross receipts taxes would equal about $4,000 if the business was, in fact, netting $70,000 to $80,000 before taxes and doing six trailer loads, illegally. Then, it would be doing $70,000 to $75,000 if the taxes were reported.\\n(Tr. 154-55.)\\nTarasi makes clear that in pari delicto is applicable only where the plaintiff's illegal conduct occurred in the course of the transaction that is the basis of the fraud claim. 555 F.2d at 1157. The sole concurrent act of which Severe can be accused is formulating the intent to hide some business income. Presuming the truth of this charge, the Tarasi test is not met because a passing thought is not illegal conduct. And even if Severe's \\\"act\\\" could be deemed unlawful, guilt that is unproven and merely inferred cannot be \\\"substantially\\\" equated with the fraud actually perpetrated by Preiss. Tarasi, supra at 1157.\\nHence we conclude that even if the in pari delicto defense had been raised in a timely manner, it is inapplicable here.\\nIII. CONCLUSION\\nThe defense of in pari delicto may only be asserted against a party of comparable guilt. Moreover, as an affirm\\u00e1tive defense, this issue must be raised, at the latest, during trial or else it is deemed waived.\"}"
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+"{\"id\": \"1099715\", \"name\": \"THE WEST INDIAN COMPANY, LIMITED, Plaintiff v. GOVERNMENT OF THE VIRGIN ISLANDS, Defendant and THE LEGISLATURE OF THE VIRGIN ISLANDS, Intervenor and Helen W. Gjessing, Individually and as President of Save Long Bay Coalition, Inc.; Leonard Reed, Individually and as President of Virgin Islands Conservation Society, Inc.; Kate Stull, Individually and as President of League of Women Voters of the V.I., Inc.; Lucien Moolenaar, Individually and as President of Virgin Islands 2000, Inc.; Ruth Moolenaar, Individually and as Director of the St. Thomas Historical Trust, Inc., Intervenors\", \"name_abbreviation\": \"West Indian Co. v. Government of the Virgin Islands\", \"decision_date\": \"1986-09-03\", \"docket_number\": \"Civil No. 1986/293\", \"first_page\": 358, \"last_page\": \"385\", \"citations\": \"22 V.I. 358\", \"volume\": \"22\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:43:43.325359+00:00\", \"provenance\": \"CAP\", \"judges\": \"O\\u2019BRIEN, Judge\", \"parties\": \"THE WEST INDIAN COMPANY, LIMITED, Plaintiff v. GOVERNMENT OF THE VIRGIN ISLANDS, Defendant and THE LEGISLATURE OF THE VIRGIN ISLANDS, Intervenor and Helen W. Gjessing, Individually and as President of Save Long Bay Coalition, Inc.; Leonard Reed, Individually and as President of Virgin Islands Conservation Society, Inc.; Kate Stull, Individually and as President of League of Women Voters of the V.I., Inc.; Lucien Moolenaar, Individually and as President of Virgin Islands 2000, Inc.; Ruth Moolenaar, Individually and as Director of the St. Thomas Historical Trust, Inc., Intervenors\", \"head_matter\": \"THE WEST INDIAN COMPANY, LIMITED, Plaintiff v. GOVERNMENT OF THE VIRGIN ISLANDS, Defendant and THE LEGISLATURE OF THE VIRGIN ISLANDS, Intervenor and Helen W. Gjessing, Individually and as President of Save Long Bay Coalition, Inc.; Leonard Reed, Individually and as President of Virgin Islands Conservation Society, Inc.; Kate Stull, Individually and as President of League of Women Voters of the V.I., Inc.; Lucien Moolenaar, Individually and as President of Virgin Islands 2000, Inc.; Ruth Moolenaar, Individually and as Director of the St. Thomas Historical Trust, Inc., Intervenors\\nCivil No. 1986/293\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nSeptember 3, 1986\\nMaria T. Hodge, Esq. (Argued), St. Thomas, V.I., and Sanford C. Miller, Esq., New York, N.Y., for The West Indian Company, Limited\\nRhys S. Hodge, Esq. (Argued), St. Thomas, V.I., for Legislature of the Virgin Islands\\nAttorneys for Intervenor Gjessing, et al.\\nAlexander A. Farrelly, Esq. (Birch, deJongh & Farrelly), St. Thomas, V.I.\\nDavid A. Bornn, Esq., St. Thomas, V.I.\\nEdith L. Bornn, Esq., St. Thomas, V.I.\\nJudith L. Bourne, Esq., St. Thomas, V.I.\\nBenjamin A. Currence, Esq. (Pallme & Mitchell), St. Thomas, V.I.\\nVeronica J. Handy, Esq., St. Thomas, V.I.\\nStedmann Hodge, Esq., St. Thomas, V.I.\\nBrenda Hollar, Esq. (Argued), St. Thomas, V.I.\\nAurelia Rashid, Esq. (Argued) (Birch, deJongh & Farrelly), St. Thomas, V.I.\\nDenise Reovan, Esq. (Law Offices of Desmond Maynard), St. Thomas, V.I.\\nHiram Abiff Rasool, Amicus Curiae c/o Jackson Insurance Agency, St. Thomas, V.I.\\nO\\u2019BRIEN, Judge\", \"word_count\": \"9152\", \"char_count\": \"56750\", \"text\": \"MEMORANDUM OPINION AND ORDER\\nFor 73 years The West Indian Company, Limited, has had rights of reclamation in the principal harbor of St. Thomas. These rights were preserved in the 1917 treaty between Denmark and the United States whereby the Virgin Islands became a United States possession. They have been conceded and accepted by every territorial elected governor, their attorneys general, and two separately elected territorial legislatures. The issue before us is whether these rights, now contained in a contract to which the territorial government is a party, may be extinguished by the presently sitting legislature pursuant to its reserved power.\\nWe find that they may not, and we will enter a preliminary injunction to enjoin interference with the rights contained in the original contract and its addenda.\\nI. FACTS\\nThis controversy has its genesis in a 1913 grant by the Government of Denmark to the plaintiff herein (\\\"WICO\\\") of substantial rights to reclaim and fill designated portions of Charlotte Amalie harbor, St. Thomas. These rights were specifically preserved in the 1917 treaty between the United States and Denmark which ceded the Virgin Islands to the United States. The Treaty provides at Section 3:\\n4) The United States will maintain the following grants, concessions and licenses, given by the Danish Government, in accordance with the terms on which they are given:\\na. The concession granted to \\\"Det Westindiske Kompagni\\\" (The West Indian Company) Ltd. by the communications from the Ministry of Finance of January 18th 1913 and of April 16th 1913 relative to a license to embank, drain, deepen and utilize certain areas in St. Thomas Harbor, and preferential rights as to commercial, industrial or shipping establishments in the said Harbor.\\nThe question whether the grant to WICO was in perpetuity or whether it had a termination point, was cleared up in advance of the treaty by communications from the Government of Denmark to the United States in response to the latter's inquiry. Denmark made clear that the grant to WICO was in perpetuity, without limitation as to the time within which the license was to be exercised.\\nNotwithstanding the exchange of communications which indicated that the grant to WICO was without a time limitation, the United States initiated a civil action in District Court, Division of St. Thomas, in 1968. (Civ. No. 1968/337.) In it, the Justice Department sought to have the District Court declare WICO's rights terminated. While the case was pending, the Danish Government sent a diplomatic note dated June 17, 1970, to the Government of the United States, requesting it to respect the WICO concession.\\nThereafter, the Hon. Warren H. Young, U.S. District Judge, assigned to the case, noted the obvious difficulty the United States would have in terminating WICO's rights in the face of its knowledge, prior to the Treaty, that they were without time limitations. He also viewed the involvement of the Government of the Virgin Islands, not then a party to the case, as a prime necessity in order to protect its own vital interests. The result of Judge Young's concerns was a letter to Governor Melvin H. Evans, the territory's first elected governor, urging him to become personally involved in a settlement of the case.\\nSettlement negotiations involving the United States, the territorial government, WICO and other parties to the lawsuit resulted in a settlement proposal by WICO which found favor with the territorial government. Public hearings were held on the matter and the settlement was referred to the Legislature of the Virgin Islands for ratification and approval. On October 11, 1972, the Legislature approved Act No. 3326, and the Governor formally affixed his approval to this legislation on October 30, 1972.\\nThe formal Memorandum of Understanding (hereafter \\\"Memorandum\\\") dated nearly a year later, October 3, 1973, was signed by representatives of the United States, the Virgin Islands, and WICO, among others. One of the most significant aspects of the Memorandum is that the acreage of the concession granted WICO was measurably reduced and the territorial government received rights to other lands it did not previously possess. These are only two of the major provisions of the 35-page Memorandum.\\nThere is no question that the Memorandum was a full settlement of the litigation initiated by the United States in 1968, since both the Memorandum and Act No. 3326 ratifying and approving the settlement speak to that point. It is also important to note that the Attorney General of the Virgin Islands was required to approve the Memorandum (and subsequent Addenda) relative to the authority of the territorial officials to enter into such agreement, and to determine that the documents were legal, binding and valid.\\nThe Memorandum contains an elaborate procedure for transfer of the submerged lands to WICO once both parties, the Virgin Islands Government and WICO, fulfilled certain preconditions. To date many of these conditions remain unfulfilled awaiting completion of the dredging and filling. One nuance of these procedures which needs explanation is the transfer of the lands from the United States.\\nIn the Memorandum, the Justice Department took the view that the settlement proposal encompassed important matters outside the scope of the lawsuit and therefore required any disposition of property to be made under the then existing Territorial Submerged Lands Act. 48 U.S.C. \\u00a7 1701 et seq. (Supp. 1986) (see pg. 7 of the Memorandum). At that time the United States held title to all submerged lands surrounding the Virgin Islands, subject, of course, to WICO's rights preserved in the Treaty. The Memorandum, to recognize the United States' claim to these lands, included a two-step conveyance procedure (\\\"transfer procedure\\\") to occur at closing. First, the land was to be conveyed from the Secretary of the Interior to the Virgin Islands Government and only then reconveyed to WICO. (See \\u00a7 6(a) of Memorandum at pg. 14.) This procedure became moot as of October 5, 1974, because control of these submerged lands was transferred from the United States to the Government of the Virgin Islands, subject to valid existing rights. 48 U.S.C. \\u00a7 1704 et seq. (Supp. 1986).\\nA First Addendum to the Memorandum of Understanding was entered into on October 28, 1975, to reflect this transfer of control to the territorial government over submerged lands. A $45,000 annual payment, previously made to the U.S. Department of Interior by WICO, was from that time to go to the territorial government. The attorney general determined that the First Addendum need not be submitted to the Legislature. In effect this addendum recognized there was no longer a need for the two-step conveyance since the United States no longer held title to the land. At this point in time the only thing preventing transfer of title pursuant to the Memorandum was completion of the various recognized preconditions mentioned above.\\nThereafter, the Virgin Islands enacted in 1977 the Coastal Zone Management Act. 12 V.I.C. \\u00a7 901-914 (1982). To reflect a compromise concerning the application of the Act to WICO's previously existing concession rights, the Government, WICO, and certain private parties entered into a Second Addendum to Memorandum of Agreement, dated September 22, 1981. That agreement further limited WICO's rights of reclamation which, by virtue of the various agreements, were reduced from 42 acres to 15 acres. A requirement of the Second Addendum was that it be ratified and approved by the Legislature, which took place on April 7, 1982, as Act No. 4700.\\nOn April 12, 1984, in a yearly review of the status of cases, this Court entered a dismissal of the 1968 action by the United States against WICO for lack of prosecution.\\nIn June 1986, WICO commenced its dredging in the Long Bay area of St. Thomas, having obtained the necessary permits. This dredging is one of the preconditions required of WICO in the Memorandum. The ensuing publicity generated energetic citizen response, which in turn generated a bill in the Legislature to repeal WICO's rights contained in Act Nos. 3326 and 4700. This bill (16-0607) was a repudiation not only of the prior legislative ratifications of Act Nos. 3326 and 4700, but a disavowal of the territorial government's prior approval of the Memorandum of Understanding, the First Addendum and the Second Addendum. Bill No. 16-0607 was approved by the Legislature on July 9, 1986, but vetoed by Governor Juan Luis on July 21, 1986. On August 11, 1986, the Legislature overrode the veto by the Governor and it became law as Act No. 5188.\\nOn August 14, 1986, WICO promptly moved in this Court for a temporary restraining order and a preliminary injunction against enforcement of the provisions of Act No. 5188, and other relief. On August 19, 1986, a hearing was held pursuant to this motion. At that time we enjoined by temporary restraining order, any interference with WICO's right to dredge and scheduled a hearing on the preliminary injunction for August 26, 1986.\\nAt the August 19, 1986, hearing on a temporary restraining order, the attorney general of the Virgin Islands informed the Court that the executive branch of the government would not appear in the case, since it considered the repeal of WICO's rights to be invalid, and any appearance on its part would be simply to affirm WICO's right to the relief sought.\\nWe then permitted the Legislature of the Virgin Islands to appear as an intervenor, along with certain officers of interested citizen groups. We rejected a motion by the intervenors to compel the executive branch to appear in the case. We noted at the time that with the grant of intervention to both the Legislature and the citizen group representatives, the interests of those favoring repeal of WICO's rights would be well represented, even without the appearance of the executive branch. This view was rewarded by the swift filing of briefs by intervenors, and by the excellence of the briefs and the oral presentations by intervenors' counsel.\\nTo summarize, as of August 1986, three successive elected governors, their respective attorneys general, and two separate Legislatures of the Virgin Islands have recognized WICO's right to dredge and reclaim certain defined submerged lands in the harbor of Charlotte Amalie. The various officials described above \\u2022successfully negotiated limits with respect to both acreage and time as to WICO's rights, and gained important concessions in favor of the territory. The reason for this case is that the Sixteenth Legislature, now sitting, takes issue with the validity of the actions undertaken by the territorial officials above described.\\nII. DISCUSSION\\nThe elements a moving party must show for a preliminary injunction are: \\\"a reasonable probability of eventual success in the litigation and that the movant will be irreparably injured pendente lite if relief is not granted.\\\" Professional Plan Examiners of N.J. v. Lefante, 750 F.2d 282, 288 (3d Cir. 1984).\\nIn addition to the above elements, a District Court should consider two other elements when relevant. These elements are the possibility of harm to other interested persons from the grant or denial of the injunction, and the public interest. Professional Plan Examiners, supra at 288. Examining these four elements, we find WICO has convincingly satisfied all four requisite elements.\\nA. Reasonable Probability of Success\\nWICO's strongest argument is that the Repeal Act violates the contract clause of the United States Constitution, Article I, Section 10 as contained in Section 3 of the Revised Organic Act of 1954.\\nThe intervenors respond by challenging WICO's contract clause argument in two ways. First, they assert the transfer procedure in the 1973 Memorandum Agreement created additional conditions precedent necessary for WICO's rights, under the 1973 agreement, to mature. They refer to the federal conveyancing discussed earlier and since these procedures were never followed, argue WICO lost its right to the land. Second, they claim the Repeal Act is a valid use of the Virgin Islands police power \\u2014 a power which cannot be limited by contract. We take these arguments in sequence.\\n1) WICO's Right to Submerged Land\\nIn tracing WICO's rights, we find these rights originated in the Danish grants of 1913 and were recognized and affirmed in the 1917 treaty between the United States and Denmark. In this treaty both countries intended to preserve WICO's right, in perpetuity, to obtain these submerged lands.\\nThe settlement to the 1968 litigation further defined WICO's rights to the submerged property. The Memorandum established specific conditions both the Virgin Islands and WICO were required to complete prior to closing on the land. Additionally, the transfer procedures were established to pass title from the United States through the Virgin Islands to WICO. These procedures state in relevant part:\\n6 CONVEYANCES\\n(a) General. If the requirements of the Territorial Submerged Lands Act are met, the Secretary of the Interior shall convey to the Government of the Virgin Islands, and the Government of the Virgin Islands shall convey the Filled Lands and Submerged Lands hereinafter described (and the right to reclaim the same) in Long Bay, St. Thomas Harbor, in part to WICO and in part to the Byers group.\\nThe intervenors interpret these transfer procedures, and subsequent amendments to the Submerged Lands Act, in an unusual way. They assert these transfer procedures created additional conditions necessary for WICO's claim to mature. Unlike the recognized preconditions, such as filling and dredging, they argue the transfer procedure had to be fulfilled prior to the 1974 amendments to the Submerged Lands Act. The reason for this concerns the title the Virgin Islands received in 1974.\\nThe intervenors reason that prior to 1974, the United States held title to all submerged lands around the Virgin Islands, subject as we said, to WICO's rights. After the amendments to the Submerged Lands Act in 1974, title to these lands reverted to the Government of the Virgin Islands to be held in trust for the people of the Virgin Islands albeit still subject to WICO's rights. Up to this point WICO had not received title to these lands since both the recognized preconditions of the Memorandum Agreement, and the claimed preconditions from the transfer procedure, remained unfulfilled. At this point, however, intervenors argue that the Virgin Islands no longer had the ability to transfer title to WICO since it never held these lands in fee simple but as trustee for the people of the Virgin Islands. Since the Virgin Islands did not have title it could convey, any subsequent agreement to convey title was ineffective. We disagree with this analysis.\\nFirst, we disagree with the intervenors' characterization of section 6(a) of the Memorandum Agreement. This section does not create additional preconditions. On the contrary, it merely establishes ministerial acts which had to be performed in order to properly convey title.\\nSecond, since the transfer procedures are not preconditions but ministerial acts, we also disagree with intervenors' legal interpretation of the relationship between 1974 amendments to the Submerged Lands Act and the 1973 Memorandum. Contrary to the intervenors' assessment, this relationship does not, through an unforeseen series of events, create a situation which prevents WICO from ever receiving title to these lands. Rather, this relationship simply makes moot the transfer procedures. Once the recognized preconditions are satisfied, WICO will no longer seek title through the Virgin Islands from the United States but will simply receive title direct from the Virgin Islands. In effect, the transfer of title from the United States to the Virgin Islands eliminated the need for portions of section 6(a) of the Memorandum Agreement.\\nEvidence for this position is contained in the First Addendum to the 1973 Memorandum Agreement. The changes made in the First Addendum to the 1973 agreement are cosmetic and required only so the 1973 Memorandum Agreement comports with the Submerged Lands Act.\\nThird, and of significant import, the Submerged Lands Act makes its transfer in trust \\\"[s]ubject to valid existing rights.\\\" 48 U.S.C. \\u00a7 1705(a) (Supp. 1986). WICO's rights were therefore preserved and recognized in this act, notwithstanding the fiduciary nature of the transfer.\\nFinally, we take issue with what we perceive are the two ways the intervenors seek to assert the public trust doctrine. First, they claim, prior elected officials did not have the authority to enter into any agreement which relinquished title to these lands, because these lands are held in trust and may never be conveyed. WICO, therefore, allegedly has no right to the property in question. Second, they seem to allege that the public trust doctrine may be cited as a legitimate public purpose for supporting the Repeal Act, to defeat WICO's Contract Clause claim. We feel compelled to address these contentions, if only because they were pressed with such force and vehemence. We note too that the same contentions permeated the legislative debate on repeal of WICO's rights.\\na) Public Trust Doctrine\\nLand under tide waters has a special legal character. State of Cal., etc. v. United States, 512 F. Supp. 36, 40 (N.D. Cal. 1981). This special character was described by the Supreme Court in Illinois Central R. Co. v. People of the State of Illinois, 146 U.S. 387 (1892) as:\\na title different in character from that which the State holds in lands intended for sale. It is different from the title which the United States holds in public lands which are open to preemption and sale. It is a title held'in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.\\nIllinois Central, supra 146 U.S. at 452.\\nThe principle described in Illinois Central has come to be known as the public trust doctrine.\\nIn general, the public trust doctrine recognizes that some types of natural resources are held in trust by a government for the benefit of the public. W. Rogers Jr., Environmental Law, supra at 171 n.8. Historically the doctrine applied to lands below the low-water mark in the sea and great lakes, the waters over these lands, and the waters within navigable rivers and streams. Sax, \\\"The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,\\\" 68 Mich. L. Rev. 471 (1970). We recognize that cases exist which support the intervenors' proposition that in general the trustee to trust lands is prohibited from selling these areas to anyone for a private purpose. International Paper Co. v. Mississippi St. Hwy. Dept., 271 So. 2d 395, 399 (Miss. 1972), cert. denied, 414 U.S. 827 (1973). This prohibition however, is not absolute.\\nb) Situations Where Courts Recognize a Private Party's Title to Trust Lands\\nIn a number of situations courts have either upheld conveyances of trust lands to private interests, free of the trust, or have recognized title in a private party to trust lands. The following situations are pertinent to the case at bar.\\nImprovement of Navigation or When Public Trust Is Not Impaired\\nSubmerged lands can be conveyed to the use and control of private parties for the improvement of the navigation and use of the waters or when the parcels can be disposed of without impairment of the public interest in what remains. Appleby v. New York, 271 U.S. 364, 394 (1926) (Supreme Court recognized title, free of the trust, in private persons to filled trust lands); Illinois Central R. Co., supra at 453. At least one state has held that in the proper administration of the trust, they may find it necessary to cut off certain tidelands from water access and render them useless for trust purposes. In these cases the State Legislature has the power to make this determination and free the lands from the trust. When such lands have been so freed, they may be irrevocably conveyed into absolute private ownership. City of Long Beach v. Mansell, 476 P.2d 423, 437-38 (Cal. 1970) (in bank) (describing common law trust doctrine as opposed to the California Constitutional prohibitions against alienation of these lands).\\nSettlement of Land Disputes\\nThe second instance involves settlement of land disputes. When title and boundaries to certain submerged and reclaimed trust lands are in dispute, a settlement between the local government and landowners will be enforced and will not be set aside based on an assertion that the settlement violates the public trust doctrine. City of Long Beach, supra. Groups not party to the original settlement will also be prevented from raising the doctrine to challenge titles granted pursuant to the settlement. Amigos De Bolsa Chica v. Signal Properties, 190 Cal. Rptr. 798 (Cal. Ct. App. 1983).\\nInternational Duty\\nGovernments may recognize title in private individuals to trust property pursuant to an international duty, even though the original alienation of submerged lands may conflict with the public use doctrine. Summa Corp. v. California ex rel. State Lands Comm'n, 466 U.S. 198, 206-207 n.4, reh'g den., 467 U.S. 1231 (1984); Montana v. United States, 450 U.S. 544, 552, reh'g den., 452 U.S. 911 (1981).\\nThe facts in Summa, supra, are remarkably similar to those before us. The petitioners' title to the land in question dated back to 1839 when the Mexican Governor of California granted title to the property to the petitioners' successors in interest. This property became part of the United States following the war between the United States and Mexico which was formally ended by the Treaty of Guadalupe Hidalgo in 1848. Under the terms of this treaty the United States undertook to protect the property rights of Mexican landowners. To both fulfill its obligations under the treaty and to provide for an orderly settlement of land claims, Congress passed the Act of March 3, 1851, setting up a comprehensive claims settlement procedure.\\nThe successors in interest followed the procedures provided in the Act and eventually the Secretary of Interior approved their claim and issued them a patent confirming their title. The Supreme Court noted as significant the fact that no mention of any public trust was made in the patent and that California did not assert this interest during the confirmation hearings.\\nThe precise issue before the Court was whether\\na property interest [public trust easement] so substantially in derogation of the fee interest patented to petitioner's predecessors can survive the patent proceedings conducted pursuant to the statute implementing the Treaty of Guadalupe Hidalgo.\\nSumma, supra at 205.\\nIn holding it could not, the Court stated:\\nPatents confirmed under the authority of the 1851 Act were issued pursuant to the authority reserved to the United States to enable it to discharge its international duty with respect to land which, although tideland, had not passed to the State.\\nSumma, supra at 205.\\nAs we hope is by now obvious, the Supreme Court has approved recognition, by a government, of title in private hands to trust lands. WICO's original rights, like the original grants in Summa, occurred under the auspices of a foreign government and were subsequently recognized in a treaty with the United States. Both treaties predated that point in time when California and the Virgin Islands had control over the respective tidelands. The grants, therefore, occurred prior to the existence of the public trust doctrine. Pursuant to the international agreements, they should be upheld in the face of a challenge based on this doctrine.\\nThe challenge to the 1973 settlement, like the challenges to the settlements in City of Long Beach, supra, and Amigos, supra, must also be rejected. As in those cases, in 1973 the United States, the Virgin Islands, and WICO were in contention over the extent and validity of WICO's right to reclaim 42 acres of land. The compromise at that time benefited both sides because it clearly acknowledged and defined WICO's rights to reduced portions of the submerged land. It is impermissible for the Sixteenth Legislature to extinguish WICO's rights under the settlement, arguing that prior public officials had no such authority to act. As we have seen, the highest court in the land has found similar acts reasonable and allowable.\\nFinally, we find that there is no impairment of the public trust in the reclamation and development such as proposed by WICO. See, e.g., Appleby, supra. In an analogous case, City of Milwaukee v. State, 214 N.W. 820 (Wis. 1927), the Wisconsin Supreme Court citing to Illinois Central, supra, reiterated the proposition that title to submerged lands could be conveyed to private interests for reclamation when the lands could be disposed of without detriment to the public interest in the lands and waters remaining. City of Milwaukee, supra at 832.\\nThe Wisconsin Legislature granted submerged lands in Milwaukee's harbor to a steel company. The steel company intended to fill these submerged lands and construct docks and wharfs thereby creating employment and economic development. The issue before the Wisconsin court was whether the State of Wisconsin, as a sovereign state of the Union, had the power to cede to Milwaukee, which in turn conveyed to the steel company, property held in trust free of the trust. City of Milwaukee, supra at 821. In holding that Wisconsin could do so, the court made a number of points relevant to WICO's situation.\\nInitially, the court recognized that normally these lands could not be conveyed to a private person. Id. at 830. The court then reviewed a number of circumstances in which such conveyances are permitted. First, these lands would not damage any rights of other riparian owners or the public. Id. at 829. Second, the court deferred to the Legislative enactment and \\\"presumed the Legislature had made an investigation of the entire situation\\\" and concluded that other riparian owners or the public would not be harmed but, on the contrary, would benefit from the grant. Id. at 829. Third, the court reconciled the conveyance by stating it did not violate the public trust doctrine but actually promoted it. Id. at 830. Finally, the court noted that the steel company, though \\\"a private corporation operated for profit, . . . nevertheless is an important factor in the industrial life of the city and state.\\\" Id. at 830. All of these factors are relevant to our case.\\nThe 7.5 acres to be reclaimed by WICO fronts land not used for marine purposes but as a housing project and park. The owners of this land are not utilizing their riparian rights in any way. There is no public beach or other particular form of public access \\u2014 the original waterfront is simply unused shoreline.\\nThe Virgin Islands Legislature, in Act No. 3326, had before it exhaustive studies of the issue and determined the present compromise was in the best interest of the Virgin Islands people. The intervenors consistently ignore how the 1973 compromise with WICO was in furtherance of the public interest. This is described in the Memorandum, to which Governor Evans affixed his signature and the seal of his office, the provisions of which the legislature sitting at the time ratified. We do well to recall the provisions.\\nFor the people of the Virgin Islands, the conveyances to be made \\\"satisfy a compelling public need\\\" in the following respects:\\n(1) An additional 2 1/2 acres will be added by WICO to the public recreation area near Pearson Garden, thus doubling its size;\\n(2) Filled land for the waterfront highway to permit widening from two to four lanes will be provided by WICO.\\n(3) Dredging the harbor in Long Bay will be provided by WICO, thereby benefiting navigation and promoting tourism;\\n(4) The reclamation will enlarge the area of level land for development near the downtown area of Charlotte Amalie now limited because of the hilly terrain;\\n(5) The development contemplated on the reclaimed lands for marinas, cruise ship berths, offices and other, like facilities will provide additional employment for residents of St. Thomas and enhance tourism facilities;\\n(6) Termination of the remaining WICO rights under the Danish grant will eliminate a possible cloud over the future of St. Thomas harbor, enabling St. Thomas harbor to be developed on a limited, planned basis, subject to specific time limits.\\nMemorandum at pp. 7-8.\\nWe find, accordingly, that there is ample precedent and authority for the actions taken by territorial officials in entering into the Memorandum and subsequent addenda, even under the public trust doctrine. For that further reason, WICO's rights should not be impaired.\\n2) Police Power v. Contract Clause\\nThe parties, by asserting the Contract Clause and state police power for support of their respective positions, have placed a constitutional dilemma squarely before us. This dilemma involves the tension between constitutional protections offered to contracts, and the sovereign power to protect the health and welfare of the people. This tension involves, on the one hand, a sovereign's unfettered power to protect the welfare of its people encountering the constitutional protections against state action found in the impairment clause. When a sovereign's action, which impairs contract rights, is allegedly motivated by a legitimate public purpose, this tension comes to a head.\\nWithout question, it is settled law that states may pass statutes for the promotion of the commonwealth or for the good of the public, though they may impair the obligation of contracts. Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 241, reh'g den., 439 U.S. 886 (1978). This reserved power \\\"is an exercise of the sovereign right of a Government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contract between individuals.\\\" Allied, supra at 241 citing Manigualt v. Springs, 199 U.S. 473, 480 (1905).\\nJuxtaposed against this sovereign power is the Contract Clause which unequivocally states:\\nNo State shall . . . pass any . . . Law impairing the Obligation of Contracts.\\nU.S. Const., Art. I \\u00a7 10. As can be seen, a tautological deadlock could easily ensue if a contract is impaired by a statute that has a claimed public purpose. Resolution of this deadlock is required because, as noted by the Supreme Court, \\\"[i]f the Contract Clause is to retain any meaning at all . . . it must be understood to impose some limits upon the power of a State to abridge existing contractual relationships even in the exercise of its otherwise legitimate police power.\\\" Allied, supra at 242. The Allied Court looked to five of its prior opinions to help define these limits. A brief review of these cases is warranted to determine the parameters of this conflict.\\nIn Home Building & Loan Asso. v. Blaisdell, 290 U.S. 398 (1934) the Court upheld Minnesota's police power against Contract Clause attack. There a mortgage moratorium statute was enacted to provide relief for homeowners threatened with foreclosure. This law conflicted with a lender's contractual foreclosure rights. The Court, however, acknowledged that despite the Contract Clause, States retain residual authority to safeguard the vital interests of their people. Allied, supra at 242; Blaisdell, supra at 434. Five factors were significant in upholding this law.\\nFirst, the state legislature had declared in the Act itself that an emergency need for the protection of homeowners existed. Second, the state law was enacted to protect a basic societal interest, not a favored group. Third, the relief was appropriately tailored to the emergency that it was designed to meet. Fourth, the imposed conditions were reasonable. And, finally, the legislation was limited to the duration of the emergency.\\nBlaisdell, supra at 444-47.\\nIt is implied in the Blaisdell opinion that if the moratorium legislation had not possessed the characteristics attributed to it by the Court, it would have been invalid under the Contract Clause.\\nIn three subsequent cases, the Supreme Court honed its jurisprudence concerning contract clause limitations of a state's police power. In W. B. Worthen Co. v. Thomas, 292 U.S. 426 (1934), the Court held invalid under the Contract Clause an Arkansas law that exempted the proceeds of a life insurance policy from collection by the beneficiaries. The Court stressed that the statute was not precisely and reasonably designed to meet a grave temporary emergency in the interest of the general welfare.\\nIn W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56, 60 (1935), the Court held invalid under the Contract Clause another Arkansas law stating u[e]ven when the public welfare is invoked as an excuse, . . . the security of a mortgage cannot be cut down 'without moderation or reason or in a spirit of oppression.'\\\" Allied, supra at 243; Kavanaugh, supra at 60.\\nFinally, in United States Trust Co. v. New Jersey, 431 U.S. 1 (1977), the Court held that legislative alteration of the rights and remedies of Port Authority bondholders violated the Contract Clause. Id. at 22. In its analysis the Court recognized a number of principles helpful to us. The Court again recognized that although the absolute language of the clause must leave room for the state's police power, that power has limits when its exercise effects substantial modifications of private contracts. Allied Steel, supra at 241, United States Trust, supra at 21. Additionally, the Co\\u00fcrt recognized that despite the customary deference courts give to state laws directed to social and economic problems, legislation adjusting contract rights must be reasonable and of a character appropriate to the public purpose justifying its adoption. Allied, supra at 233; United States Trust, supra at 22. With these parameters in mind, we turn to examine WICO's Contract Clause claim.\\na) Substantial Impairment\\nThe threshold inquiry for Contract Clause issues is whether the statute has substantially impaired a contractual relationship. Allied, supra at 244; Keystone Bituminous Coal Assn. v. Duncan, 771 F.2d 707, 717 (3d Cir. 1985). In general a statute is considered a contract when \\\"the language and circumstances evince a legislative intent to create private rights of a contractual nature enforceable against the state.\\\" United States Trust, supra 17 n.14 & 19-20 n.17. Here, the original settlement is clearly a contract and, following the above stated principle, the legislative ratification of the Memorandum is also considered a contract. That this contract has been impaired is a misnomer \\u2014 it has been entirely eliminated.\\nBy repealing both Act Nos. 3326 and 4700, the Legislature repudiated prior approval of the Memorandum and Addenda, and cancelled the authority of the governor to enter into the agreements. This has the further effect of repudiating the agreement and WICO's rights recognized therein by the Government of the Virgin Islands.\\nThe Repeal Act also places WICO on the same footing as any other entity in seeking development and occupancy of submerged lands, giving WICO no greater rights than provided in the Coastal Zone Management Act. Thus, the seal of the Legislature is put on a repudiation of WICO's original grant from the Government of Denmark, and the recognition of that grant by the Government of the United States. It is difficult to contemplate how the legislative elimination of WICO's rights could be more comprehensive.\\nThe first step, therefore, is satisfied.\\nb) Significant and Legitimate Public Purpose\\nThat WICO's rights have been completely eliminated is significant in our next inquiry. We must determine whether there is a significant and legitimate public purpose behind the law such as remedying broad and general social or economic problems. Energy Reserves Group, Inc. v. Kansas Power and Light Co., 459 U.S. 400, 411 (1983); Keystone, supra at 717, Troy Ltd. v. Renna, 727 F.2d 287, 297 (3d Cir. 1984). The government has a difficult burden +o overcome at this second stage because \\\"[t]he severity of the impairment measures the height of the hurdle the [territorial] legislation must clear.\\\" Allied Steel, supra at 245. Minor alterations of contract rights may end the inquiry after the first stage while severe impairments \\\"push the inquiry to a careful examination of the nature and purpose of the [territorial] legislation.\\\" Id. at 245. Since the Legislature has completely eliminated WICO's rights, we must carefully scrutinize the nature and purpose of the legislation.\\nInitially we note the existence of an important public interest alone is not always sufficient to overcome the Contract Clause limitation on legislative authority. United States Trust, supra at 21. Without doubt, protection of our islands' submerged lands is an important public interest which the Legislature, through use of its police power, could protect by invoking the public use doctrine. That this is a legitimate public use sufficient to overcome WICO's contract rights is an entirely different matter.\\nAs stated in our prior analysis, WICO's development may in fact serve a greater public purpose than leaving the submerged lands inviolate. At least, this has been the assessment of every elected governor of the Virgin Islands, and two elected legislatures. As stated earlier, this development fits within those situations approved by the Supreme Court, so it cannot be said that prior legislatures had no authority to make the agreements they adopted. Additionally, the Repeal Act did not address any broad and general social or economic problem. Rather, it can be argued, the Repeal Act exacerbates various existing problems.\\nSince the statute is solely directed at WICO, it cannot be characterized as addressing a broad and general societal interest. As the Supreme Court cautions, a law directed against a specific entity \\\"can hardly be characterized . as one to protect a broad societal interest . . . .\\\" Allied, supra at 249.\\nThe Repeal Act also fails to remedy an economic problem. Rather, it contributes to the present economic distress in the islands by stifling development which would create new employment.\\nFinally, unlike the situation in Blaisdell, where the Supreme Court upheld Minnesota's police power in the face of a Contract Clause attack, there is no emergency situation, similar to the Great Depression, here in the islands which the Repeal Act intends to address. Additionally, even assuming an emergency existed which the Repeal Act addressed, the act would still fail to pass constitutional scrutiny because the act is not limited to the duration of the emergency but purports to eliminate WICO's rights forever. Blaisdell, supra at 434.\\n3) Adjustment of Rights\\nOnce a legitimate public purpose has been identified, the court must determine whether the adjustment of the parties' rights and responsibilities is based upon reasonable conditions and is of a character appropriate to the legislation's public purpose. United States Trust, supra at 22. Keystone, supra at 717. For this third inquiry courts should defer to the legislative judgment as to the reasonableness of the particular measure if the state itself is not a contracting party. United States Trust, supra at 22-23; Keystone, supra at 717. If the state is a contracting party, however, the court need not defer to the legislative judgment but is free to determine whether a less drastic modification would be sufficient. United States Trust, supra at 30-32; Keystone, supra at 717; Troy, supra at 296. In WICO's case, of course, the government is a contracting party.\\nThe repudiation of WICO's rights in the submerged land is neither based upon reasonable conditions nor of a character appropriate to the Legislature's public purpose. By repealing the prior settlement, the Government in effect no longer recognizes WICO's right to title in the submerged lands. This adjustment is drastic and has no reasonable basis. WICO intends to develop the new land into a marina-hotel complex. We note that tourism is a major industry in the Virgin Islands and one of the express goals of Act Nos. 3326 and 4700, as well as other legislation, is to promote and assure priority for coastal-dependent economic development, such as hotels and marine facilities. See also 12 V.I.C. \\u00a7 903(b)(3) (1982). Hotel and marine facilities are a common use for coastal zone areas. By extinguishing WICO's rights, the Legislature acted unreasonably. Its position finds no support in any hypothetical public policy, but it violates the stated public policy of an act intended to address the issues of coastal protection and development.\\nB. Irreparable Harm\\nWICO has demonstrated it will be irreparably harmed should it be unable to continue dredging operations.\\n1) Constitutional Violation\\nInterference with constitutional rights is considered irreparable injury. Planned Parenthood v. Citizens For Com. Action, 558 F.2d 861, 867 (8th Cir. 1977); Henry v. Greenville Airport Commission, 284 F.2d 631, 633 (4th Cir. 1960). The interference with WICO's contractual rights in violation of the Contract Clause, standing alone, is sufficient irreparable harm to support the result we reach.\\n2) Economic Loss\\nThe possibility of significant economic losses, in addition to the constitutional interference, strengthens WICO's argument that it will be irreparably harmed. Normally, a defendant's ability to compensate a plaintiff with money damages precludes the issuance of a preliminary injunction. Nuclear-Chicago Corp. v. Nuclear Data Inc., 465 F.2d 428, 430 (7th Cir. 1972). A court may, however, look to the financial strength of a defendant to determine whether or not a defendant could compensate the petitioner with money damages. Eli Lilly & Co. v. Premo Pharmaceutical Labs, 630 F.2d 120, 137 (3d Cir.), cert. denied, 449 U.S. 1014 (1980).\\nWe have no difficulty taking judicial notice that the Virgin Islands government is in difficult financial straits. We have had numerous cases in front of us in which persons with legitimate claims against the government in the multiple millions of dollars have been unable to obtain funds owing them. In each instance, government attorneys have cited the lack of funds with which to pay, and the debts remain unpaid to this day. Included among the claims are those which would have the highest priority, i.e., payments to employees of the government owing for several years. In addition, even if the funds were available, the government could refuse to make payment. Being exempt from levy and execution, it could not be forced to alter such a posture.\\nAdditionally, WICO has already paid more than half a million dollars on a dredging contract. More than 60,000 tons of fill are in place and at risk of being washed away should a serious storm arise. There is no question WICO would suffer irreparable harm even without the constitutional violation.\\nC. Other Relevant Elements\\nWe have covered thus far the two central elements necessary for a preliminary injunction under the holding of Professional Plan, supra. They are the reasonable probability of eventual success in the litigation, and that the movant will be irreparably harmed if relief is not granted. As our discussion began, we noted that Professional Plan contemplated two additional elements when relevant. These are the possibility of harm to other interested persons from the grant or denial of the injunction, and the public interest.\\nWe take these two elements together because they are intertwined. The citizen intervenors have cited no direct possibility of harm to themselves or others in the community, apart from the public interest which they seek to protect. Our disagreement is whether the public interest is served or harmed by permitting the continued reclamation of land by WICO for the purposes contained in the agreements.\\nThe public interest sought to be implemented in the Memorandum in favor of the people of the Virgin Islands is substantial. We described the benefits to be gained by the government and its citizens outlined in the Memorandum and will not repeat them here. To permit WICO to assert its rights pursuant to the Memorandum and Addenda serves the public interest. To adopt the intervenors' arguments in favor of halting the dredging and upholding the repeal of WICO's rights, would invite chaos.\\nWe refer to a point touched on several times earlier in this opinion. If the repeal is permitted, as we view the law it would not, as an end result, eliminate WICO's rights in Charlotte Amalie harbor. Rather, it would then expand back to the original rights contained in the concession from the Government of Denmark in 1913. These rights have been forcefully recognized by the signatories to the 1917 Treaty, i.e., Denmark and the United States. They include nearly triple the reclamation potential contained in the Memorandum and Addenda, and the use of the reclaimed land would not be subject to the restrictions contained in the Memorandum.\\nThe public interest would not be served by the possibility of a return to such a situation. For this reason, we find that the granting of a preliminary injunction, permitting WICO to exercise the limited rights agreed to in the Memorandum, would better serve the government and people of the Virgin Islands than the spectre of reinstatement of the vastly enlarged rights contained in the 1913 concession.\\nIII. CONCLUSION\\nWe find that WICO has satisfied all of the conditions necessary for a preliminary injunction. In reaching that conclusion, we have covered the legal bases a court must consider when confronting the issues presented herein. But we cannot close without addressing the matter from a larger perspective than the nuts and bolts of stare decisis. We speak of questions of honor and the integrity of one's promises. They apply with no less force to government than to others. In this instance, the only three elected governors the territory has ever had and their respective attorneys general, acting with the men and women elected to two separate legislatures, bound themselves and the government to promises solemnly given. If what they did in good faith and in pursuit of their vision of the public interest is to be lightly discarded many years later, we ask: who would, without trembling and consternation, deal with such a government in the future? And who, ultimately would be the loser? The question answers itself. The people of the Virgin Islands would suffer the loss if their government's promises are considered as will-o-the-wisp, to be kept when convenient, and broken as desired.\\nWe acknowledge that the citizen intervenors' views are honestly come by and sincerely held. Their promotion of the public interest as they view it cannot be deprecated. We only regret that on the issues in this case, our own view of that public interest diverges from theirs.\\nAll persons interested in this controversy would do well to read United States v. 119.67 Acres of Land, 663 F.2d 1328 (5th Cir. 1981). This case was cited at oral argument and pursuasively supports our decision. Under a subsection entitled \\\"Binding the Government to its Word\\\", there appear the following words:\\nThe Government does not deny the words, or even the agreement, which it, together with its adversaries, importuned the District Court to approve. On the contrary, acknowledging in the best Boy Scout tradition the words spoken, the agreements made, and the consensual judgment entered, the Government, now claiming to be adorned with the protective armor against which neither equities nor accepted morality may penetrate, takes the simple, but awesome position that what it agreed to was of no moment because it was mistaken on the operative facts.\\n119.67 Acres, at 1333.\\nOur attitude is similar to that of the Fifth Circuit in discussing promises made by the United States. The Legislature of the Virgin Islands should not be permitted to ignore its word of honor pledged in the agreements with WICO, carrying the entire Government of the Virgin Islands along with it.\\nA preliminary injunction will issue enjoining interference with WICO's rights under the Memorandum of Understanding and Addenda thereto.\\nPRELIMINARY INJUNCTION\\nTHIS MATTER is before the Court on motion of The West Indian Company, Limited, seeking a preliminary injunction.\\nThe Court having filed its memorandum opinion of even date herewith, and the premises considered, now therefore it is\\nORDERED:\\nTHAT, the Government of the Virgin Islands, the Virgin Islands Legislature, and the citizen intervenors captioned above be, and the same, are hereby ENJOINED from all interference with the rights of The West Indian Company, Limited under the 1973 Memorandum Agreement, and Addenda thereto, pending a final hearing on the merits.\\nAt oral argument, the attorney for the citizen intervenors stated that the \\\"license\\\" granted WICO in 1913 did not amount to a \\\"fee simple\\\" interest. The 1913 grant, however, states that \\\". . . when these land areas are reclaimed, the company will acquire free and unrestricted ownership thereof . . . .\\\" This certainly does provide for what we term \\\"fee simple\\\" ownership. In any event, it is clear that the Memorandum of Understanding and the addenda thereto were intended to provide fee simple ownership to WICO of the described lands. Finally, we note that even the complaint filed by the United States in Civ. No. 1968/337 recognized that the license granted WICO provided \\\". . . free and unrestricted exercise of property rights . . . .\\\"\\nThe Submerged Lands Act states in relevant part:\\nSubject to valid existing rights, all right, title, arid interest of the United States in lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coastlines of the territories of Guam, the Virgin Islands, and American Samoa, as heretofore or hereafter modified by accretion, erosion, and reliction, and in artificially made, filled in, or reclaimed lands which were formerly permanently or periodically covered by tidal waters, are hereby conveyed to the governments of Guam, the Virgin Islands, and American Samoa, as the case may be, to be administered in trust for the benefit of the people thereof.\\n48 U.S.C. \\u00a7 1705(a) (Supp. 1986).\\nIn the transfer of submerged lands from the United States to the Virgin Islands, the statute states this land will be \\\"administered in trust for the benefit of the people thereof.\\\" 48 U.S.C. \\u00a7 1705(a) (Supp. 1986). An additional source for this authority is derived from the power the Virgin Islands Government has as sovereign over these islands. J. Sax, \\\"The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention\\\" 68 Mich. L. Rev. 471 (1970). For the early history of this doctrine in America see Shively v. Bowlby, 152 U.S. 1 (1894).\\nPrior to describing the parameters of this doctrine, we note one authority has commented that:\\nAny attempt at a shorthand statement of the principles of public trust must come with a disclaimer: the constitutional and legislative variations among the states approach the infinite, and many states fulfill some of the identical policy functions under different doctrinal rubrics \\u2014 prescriptive rights, customs, dedication or other property theory.\\nW. Rogers Jr., Environmental Law, \\u00a7 2.16 (1977). We agree with this assessment concerning the law of public trusts and concur in this disclaimer.\\nFor examples of other states which include versions of the public trust doctrine in their respective constitutions see the state constitutions of Pennsylvania and Wisconsin.\\nIn the record before us, WICO plans to construct docks off its reclaimed lands for a marina, among other uses.\\nThe Wisconsin Court implied that if the Legislature had not allowed the conveyance, this failure would have amounted to \\\"gross negligence and a misconception of [the Legislature's] proper duties and obligations\\\". Id. at 830.\\nPolice powers generally are those powers of sovereignty not given to the Federal Government exclusively by the United States Constitution, nor prohibited by that document to the states, nor reserved to the people. 2 C. Antieau, Modern Constitutional Law, \\u00a7 10:1 (1969). The Supreme Court has described this power in Parker v. Brown, 317 U.S. 341, 359-60 (1943) as follows:\\nThe governments of the states are sovereign within their territory save only as they are subject to the prohibitions of the Constitution or as their action in measure conflicts with powers delegated to the National Government, or with Congressional legislation enacted in the exercise of those powers.\\nCongress included police powers in its grant of power to the Virgin Islands in the Revised Organic Act. Rev. Organ. Act of 1954 \\u00a7 3 (1967).\\nThis prohibition is also included in the Revised Organic Act. Rev. Organ. Act of 1954 \\u00a7 3 (1967).\\nEmphasis in the original.\\nSimilarly, in Treigle v. Acme Homestead Assn., 297 U.S. 189, 196 (1936), the court, in holding a Louisiana law invalid under the Contract Clause stated, \\\"[s]uch an interference with the right of a contract cannot be justified by saying that in the public interest the operations of building associations may be controlled and regulated . . . .\\\"\\nThe intervenors assert correctly that one legislature can neither abridge the powers of a succeeding legislature nor bargain away the police power of the state. United States Trust Co., supra at 23. The Memorandum as amended, however, does not limit the government's ability to gain title to the filled lands. It specifically recognizes the right to exercise eminent domain. The action in repealing WICO's rights could be considered a \\\"taking\\\" of private property without just compensation in violation of the Revised Organic Act. Rev. Organ. Act of 1954 \\u00a7 3 (1967). This is an alternative claim made by WICO in this law suit, but since we find the repeal invalid, we do not reach this point.\\nIndeed, as we will discuss later, if the repeal is valid, it will not have closed the door entirely on WICO, but conceivably will serve to reinstate all the rights WICO enjoyed under a treaty, thereby increasing the submerged lands subject to WICO's control, a result hardly intended by the Legislature.\\nWICO intends to develop the land in question by building a hotel and marina. The Memorandum of Understanding in its preamble (pp. 7-8) recites the economic benefits the government expects to reap by settling WICO's claim.\\nAt this time the reclaiming work is not complete. A dredge fill dike has been erected on the seaward side. Behind this is a settling pond where the 60,000 tons of dredge spoil have been deposited. Placement of rock armor has commenced but is incomplete. The rock armor is designed to protect the reclaimed land from erosion from the ocean. Should a storm hit St. Thomas prior to completion of the rock armor, there is a risk of the reclaimed land being washed away.\\nEmphasis in the original.\"}"
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+"{\"id\": \"1099724\", \"name\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff/Appellee v. PAUL E. KRAMER, Defendant/Appellant\", \"name_abbreviation\": \"Government of the Virgin Islands v. Kramer\", \"decision_date\": \"1986-06-18\", \"docket_number\": \"Criminal No. 1984/114\", \"first_page\": 317, \"last_page\": \"322\", \"citations\": \"22 V.I. 317\", \"volume\": \"22\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:43:43.325359+00:00\", \"provenance\": \"CAP\", \"judges\": \"O\\u2019BRIEN, Judge\", \"parties\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff/Appellee v. PAUL E. KRAMER, Defendant/Appellant\", \"head_matter\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff/Appellee v. PAUL E. KRAMER, Defendant/Appellant\\nCriminal No. 1984/114\\nDistrict Court of the Virgin Islands Div. of St. Croix Appellate Division\\nJune 18, 1986\\nJacqueline A. Drew, Esq., Assistant Attorney General (Department of Law), St. Thomas, V.I., for plaintiff/appellee\\nMark L. Milligan, Esq., St. Croix, V.I., for defendant/appellant\\nO\\u2019BRIEN, Judge\", \"word_count\": \"1532\", \"char_count\": \"9886\", \"text\": \"MEMORANDUM OPINION AND ORDER\\nThe issues in this appeal from the territorial court are twofold: whether the discretionary provisions of 5 V.I.C. \\u00a7 4613 are unconstitutional per se and whether the assistant attorney general abused his discretion by denying the appellant permission to enter the Virgin Islands pretrial intervention program. We find \\u00a7 4613 is constitutional and that the assistant attorney general did not abuse his discretion.\\nI. FACTS\\nOn June 22,1984, the appellant, Paul E. Kramer (\\\"Kramer\\\"), was charged in the territorial court with possession of an unlicensed firearm and with discharging a firearm. At his arraignment Kramer obtained court approval to apply for the pretrial intervention program pursuant to 5 V.I.C. \\u00a7 4611. Kramer pled not guilty to both counts and filed a motion on July 11, 1984, for entry into the program.\\nThe pretrial intervention program (\\\"Program\\\") gives the territorial and District Courts jurisdiction to divert selected offenders into a program of community supervision and service. 5 V.I.C. \\u00a7 4612. Kramer was interviewed by the program representative, and it was determined that Kramer was a suitable candidate for diversion. At the hearing held on July 27, 1984, however, the assistant attorney general refused to consent to pretrial diversion. The assistant attorney general maintained he had discretion to withhold Kramer from the program pursuant to \\u00a7 4613 which limits eligibility to:\\nany person who is charged with an offense against the Government of the Virgin Islands, except murder, kidnapping, assault in the first or second degree, rape in the first degree and arson in the first degree, over which the district or territorial courts may exercise final jurisdiction, and who is recommended for participation in a program of community supervision and services by a director thereof and the Attorney General or U.S. Attorney;\\n5 V.I.C. \\u00a7 4613(1).\\nThe Attorney General's Office interprets this section as giving them the discretion to recommend or deny permission for selected offenders to enter the program. In this case they denied Kramer permission because of an unwritten office policy to withhold their consent for pretrial diversion in any case involving firearms. For this reason the trial court reluctantly denied the motion to divert Kramer into the program. In doing so, however, the court encouraged Kramer to test by appeal this statutory grant of discretion.\\nOn August 24, 1984, Kramer entered a conditional plea to the charge of discharging a firearm reserving his right to appeal the court's previous denial of entry into the program. Kramer filed a notice of appeal on November 29, 1984. In response to Kramer's brief the government filed a motion to dismiss the appeal as frivolous. Since the territorial judge encouraged Kramer to appeal, we will deny the motion to dismiss. We will treat the government's brief as the response and for the following reasons will affirm the territorial court.\\nII. DISCUSSION\\nKramer makes two arguments for consideration on appeal, both couched in the rubric of equal protection and due process violations. Kramer asserts that \\u00a7 4613 is constitutionally defective on its face since it affords the attorney general the discretion to admit or deny defendants into the program. Second, Kramer contends that the decision to exclude those charged with firearm violations from the program is an abuse of discretion also violative of equal protection and due process.\\nA. Statute Not Unconstitutional on Its Face\\nAt least one other jurisdiction has upheld statutory prosecutorial discretion in pretrial diversion programs. Shade v. Commonwealth of Pa., Dept. of Transp., 394 F. Supp. 1237, 1240-41 (M.D. Pa. 1975). In Shade, the selected offenders requested the court to declare unconstitutional a pretrial diversion program on the ground that the program granted the prosecuting attorney an impermissible quantum of prosecutorial discretion. Additionally, the offenders argued the program was administered in a discriminatory manner violative of equal protection.\\nIn the Pennsylvania scheme, the district attorney has the discretion to refuse to ask for pretrial diversion and can insist on prosecution. Shade, 394 F. Supp. at 1240. In addressing the attack against the statute, the court found the claim \\\"wholly without merit.\\\" Shade, 394 F. Supp. at 1240-41. The court, citing United States v. Bland, 472 F.2d 1329, 1335 (D.C. Cir. 1972), noted that the long and widely accepted concept of prosecutorial discretion, derived from the constitutional principle of separation of powers, permitted this type of prosecutorial discretion. Cf. United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (it follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions).\\nWe therefore hold that the prosecutorial discretion vested in \\u00a7 4613 is constitutionally permissible.\\nB. Decision To Withhold Firearm Offenders From Program Is Permissible\\nInitially we note that any attempt to attack prosecutorial discretion on the constitutional basis of due process or equal protection is difficult. The conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Oyler v. Boles, 368 U.S. 448, 456 (1962). Government of the Virgin Islands v. David, 741 F.2d 653, 655 (3d Cir. 1984). Absent proof that the selective enforcement was deliberately based on an unjustifiable standard such as race, religion or other arbitrary classification, a prosecutor has broad discretion with regard to prosecution. Oyler, 368 U.S. at 456, David, 741 F.2d at 655-56. Unequal application of criminal laws alone does not amount to a constitutional violation unless intentional or purposeful discrimination is shown. United States v. Torquato, 602 F.2d 564, 568 (3d Cir.), cert. denied, 444 U.S. 941 (1979).\\nThe Attorney General's policy to withhold consent for firearm violators is not an arbitrary classification violative of the equal protection clause. Other jurisdictions, faced with the identical issue, support this result.\\nFor example in Cleveland v. State, 417 So. 2d 653 (Fla. 1982), the petitioner was charged with welfare fraud equal to a third-degree felony. The petitioner sought admission to the Florida pretrial diversion program and had satisfied all statutory requirements for admission. The petitioner's admission was denied because the state attorney refused to consider his application. This refusal was based on a rule promulgated by the Department of Offender Rehabilitation which denied persons charged with welfare fraud, or other third-degree felonies, admission to the program. The Florida Supreme Court held that their pretrial intervention program is an alternative to prosecution and should remain in the prosecutor's discretion. Cleveland, 417 So. 2d at 654.\\nAdditionally, rules which deny certain selected offenders from consideration in diversion programs need not be committed to writing. State v. Greenlee, 620 P.2d 1132 (Kan. 1980).\\nFinally, courts have upheld a prosecutor's decision to disregard factors for determining diversion even though the factors are expressly included in the diversion: statute. State ex rel. Anderson v. Haas, 602 P.2d 346 (Or. App. 1979). See also State v. Greenlee, supra (court upheld policy of district attorney's office to exclude all drug offenders from participation in diversion program).\\nThese authorities support the notion that the assistant attorney general did not abuse his discretion by excluding firearm violators from the program.\\nIII. CONCLUSION\\nIn summary we find 5 V.I.C. \\u00a7 4613 is constitutional. Additionally, the Virgin Islands assistant attorney general did not abuse his discretion in denying Kramer permission to enter the pretrial intervention program. We therefore affirm the decision of the territorial court.\\nJUDGMENT ORDER\\nTHIS MATTER is before the Court on appeal from the Territorial Court. The case was filed in this Court prior to the institution of the three judge panels. The Court having filed its Memorandum Opinion of even date herewith, now therefore it is\\nORDERED and ADJUDGED:\\nTHAT the judgment of the Territorial Court is hereby AFFIRMED.\\nThe equal protection and due process clauses are made applicable to the Virgin Islands in the Revised Organic Act of 1954 \\u00a7 3.\\nOyler involved a challenge against the West Virginia habitual offender statute. The petitioners alleged equal protection violations because prosecutors filed habitual informations against them and not others similarly situated. We note at least one commentator has stated that the decision not to divert a defendant is in essence a decision to prosecute and is subject to challenge in the same way as any other decision to prosecute. 2 W. La Fave, J. Isreal, Criminal Procedure (1984) \\u00a7 16.3(c). We will therefore cite as authority all those cases involving due process and equal protection challenges against a decision to prosecute.\\nEven in the absence of the office policy to exclude firearm violators from the program, we note it would be constitutionally permissible for the attorney general to distinguish between individuals who are charged with the same crime. Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Com. v. Lutz, 495 A.2d 928 (Pa. 1985). See also Pyle v. Court of Common Pleas, 431 A.2d 877 (Pa. 1981).\"}"
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+"{\"id\": \"1101017\", \"name\": \"MARIE LOUISE YEAMANS, Plaintiff v. HARRY SNOOK and WYETT McCANTS, d/b/a THE LEATHER SHOP, WINSTON GIBSON, COMMISSIONER OF DEPARTMENT OF PUBLIC SAFETY, and THE GOVERNMENT OF THE VIRGIN ISLANDS, Defendants\", \"name_abbreviation\": \"Yeamans v. Snook\", \"decision_date\": \"1979-01-16\", \"docket_number\": \"Civil No. 226-1977\", \"first_page\": 129, \"last_page\": \"148\", \"citations\": \"15 V.I. 129\", \"volume\": \"15\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T18:58:44.799643+00:00\", \"provenance\": \"CAP\", \"judges\": \"CHRISTIAN, Chief Judge\", \"parties\": \"MARIE LOUISE YEAMANS, Plaintiff v. HARRY SNOOK and WYETT McCANTS, d/b/a THE LEATHER SHOP, WINSTON GIBSON, COMMISSIONER OF DEPARTMENT OF PUBLIC SAFETY, and THE GOVERNMENT OF THE VIRGIN ISLANDS, Defendants\", \"head_matter\": \"MARIE LOUISE YEAMANS, Plaintiff v. HARRY SNOOK and WYETT McCANTS, d/b/a THE LEATHER SHOP, WINSTON GIBSON, COMMISSIONER OF DEPARTMENT OF PUBLIC SAFETY, and THE GOVERNMENT OF THE VIRGIN ISLANDS, Defendants\\nCivil No. 226-1977\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nJanuary 16, 1979\\nJames E. Dow, Esq. (Pallme, Anduze, Mitchell & Dow), St. Thomas, V.I., for plaintiff\\nBritain H. Bryant, Esq., Christiansted, St. Croix, V.I., for Snook and McCants\\nSamuel Hall, Esq., St. Thomas, V.I., for Snook and McCants\\nCheryl Coodley, Esq. (Department of Law), St. Thomas, V.I., for Gibson & Govt.\\nCHRISTIAN, Chief Judge\", \"word_count\": \"4551\", \"char_count\": \"27650\", \"text\": \"memorandum and order\\nThis is an action for false imprisonment, malicious prosecution, abuse of process, and deprivation of civil rights. It is presently before the court on a \\\"slew\\\" of motions by the parties. Defendants Snook and McCants move for summary judgment on plaintiff's original complaint. Fed. R. Civ. P. 56. Plaintiff moves to strike an allegation contained in the memorandum of law of Snook and McCants in support of their motion for summary judgment on the ground that the said allegation is impertinent and scandalous. Fed. R. Civ. P. 12(f). Plaintiff also moves to amend her complaint to add three new defendants and three new causes of action. Fed. R. Civ. P. 15(a). Defendants Snook and McCants move to dismiss the new actions pleaded in the amended complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12 (b) (6). And finally, plaintiff moves for leave to file a claim against the Government of the Virgin Islands out of time. 33 V.I.C. \\u00a7 3409(c).\\nPartial summary judgment will be granted; as to the motion to strike, it will be denied; plaintiff's motion to amend will be granted except as insofar as it names the former Commissioner of Public Safety, Charles Gronevelt, as a defendant; the motion of the defendants to dismiss the amended complaint will be denied, and the motion of plaintiff for leave to file a complaint against the Government of the Virgin Islands out of time will be granted.\\nDefendants Snook and McCants are proprietors of a business establishment in Charlotte Amalie, St. Thomas, Virgin Islands, known as \\\"The Leather Shop.\\\" That store is managed for them by one Ann Van Eyten. This action stems from the alleged shoplifting of a purse from The Leather Shop on May 17, 1977. Within minutes after the alleged incident the store-manager reported the theft to the police. Detective Gifft was assigned. He presented himself at the store and questioned manager, Van Eyten. Thereafter the store manager and Gifft set out on a search for the thief along Main Street, Charlotte Amalie. Van Eyten, upon seeing plaintiff in a perfume shop, after having been, told that a person fitting the description she had given was in the perfume shop, positively identified plaintiff, Mrs. Yeamans, as the thief. Plaintiff was then invited to accompany the officer, or officers, to the police headquarters at Fort Christian and once there she was placed under arrest for grand larceny. An immediate search of her person failed to uncover the purloined purse. In any event, plaintiff was detained in custody overnight and ultimately for a total of approximately twenty-one (21) hours.\\nThe next morning plaintiff agreed to buy a purse from The Leather Shop, one said to be identical to that which had been shoplifted. Upon her purchasing this purse for some $195.00 she was released from custody. Later that day, May 18th, Detective Gifft visited plaintiff at her boat on which she was residing, her boat being berthed at a St. Thomas marina. Gifft on this visit obtained plaintiff's signature to an affidavit. This affidavit had been prepared by the private attorney for The Leather Shop. In the affidavit signed by plaintiff, and acknowledged by her before a deputy clerk of the Territorial Court, she admitted that she had stolen the purse from The Leather Shop on the day and time alleged.\\nPlaintiff's original complaint is unclear as to the precise causes of action upon which her suit is based. Since Snook and McCants have moved for summary judgment, however, the Court has taken it upon itself to extract three potential theories of recovery, somewhat buried within the \\\"bowels\\\" of the complaint. In their memorandum, submitted in support of their summary judgment motion, Snook and McCants addressed all three: false imprisonment, malicious prosecution and abuse of process. The Court will, therefore, deal with all three within the context of the motion for summary judgment. The Court will, however, disregard all mention made of malicious prosecution in the amended complaint.\\nSummary judgment shall, of course, be rendered if a party can \\\"show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.\\\" Fed. R. Civ. P. 56(c). The burden of demonstrating the absence of a genuine issue of material fact rests squarely on the movant. Kress, Dunlap & Lane v. Downing, 4 V.I. 227, 233, 286 F.2d 212 (3d Cir. 1960). Summary judgment as to the cause of action for false imprisonment will be granted. It will be denied with respect to the other two causes of action: malicious prosecution and abuse of process.\\nThere can be no false imprisonment based on an arrest that was valid and lawful. Restatement (Second) of Torts \\u00a7 45A, comment b (1965). Regardless of what may have transpired after plaintiif was arrested, if the arrest itself was made with legal authority, a suit for false imprisonment cannot succeed. Detective Gifft's arrest of plaintiif was privileged because \\\"(a) peace officer may make an arrest. . . without a warrant.\\\" Detective Gifft in fact had \\\"reasonable cause\\\" to believe that plaintiif had committed, the felony of stealing a purse that was valued in excess of $100.00. Plaintiff fit a description of the thief which Ms. Van Eyten had previously given to the detective, and Ms. Van Eyten personally identified plaintiff as the perpetrator of the larceny shortly after the alleged shoplifting had occurred. The arrest of plaintiff being lawfully grounded, defendants Snook and McCant cannot be \\\"liable for false imprisonment since no false imprisonment occurred.\\\" Restatement (Second) of Torts \\u00a7 45A comment b.\\nPlaintiff's suit is actually based on conduct which occurred after her lawful arrest. She alleges that Ms. Van Eyten only realized that she had misidentified plaintiff when no purse was found in her possession. At this point, according to plaintiff, Ms. Van Eyten lied to the police to insulate her employer from a false arrest suit. Plaintiff nowhere suggests that Van Eyten's identification of her as the malefactor was anything more than an innocent mistake. (See plaintiff's complaint, paragraphs 8-11.) An individual is not liable for false arrest when, in good faith, he merely provides mistaken information to the police. Powers v. Carvalho, 368 A.2d 1242, 1248 (1977). It follows, therefore, that plaintiff has not made out a cause of action for false imprisonment.\\nThe motion of the two defendants for summary judgment as to plaintiff's cause of action for malicious prosecution will be denied. Two elements are necessary to establish liability for malicious prosecution.\\n(a) The defendant must initiate or procure the proceeding without probable cause and primarily for a purpose other than that of bringing an offender to justice, and\\n(b) The proceedings (must) have terminated in favor of the accused.\\nRestatement (Second) of Torts \\u00a7 653. Genuine issues of material fact remain with respect to both of these elements.\\nProceedings were in fact initiated against plaintiff since an arrest is a sufficient proceeding for malicious prosecution. Id. \\u00a7 654 comment e. Yet, as the Court's discussion of plaintiff's false imprisonment claim indicates, it cannot be maintained that the legal process was exercised without probable cause. There is, however, an alternative theory of recovery available to plaintiff. Even though proceedings are instituted for a proper purpose, if thereafter a person takes an active part in pressing the proceedings, notwithstanding discovery that there was no probable cause, this would also satisfy the first element of a malicious prosecution cause of action. Id. \\u00a7 655.\\nThis type of conduct, actively prolonging criminal proceedings, is precisely what plaintiff alleges. According to her, Van Eyten lied about plaintiff being the thief after plaintiff was arrested and no purse found in her possession. Assuming then that Ms. Van Eyten did lie, such conduct would constitute taking an active part in pressing and prolonging the proceedings. Moreover, the fact that Ms. Van Eyten lied would indicate that proceedings were kept alive without probable cause and for an improper purpose. See id. \\u00a7 662.\\nThe second element of a malicious prosecution cause of action, favorable termination of proceedings, is also an open question of fact. Plaintiff argues that the May 20, 1977, order of the Territorial Court, issued at the instance of the United States Attorney, dismissing the charges against her is a formal abandonment of proceedings by the public prosecutor, and, therefore, amounts to a termination in her favor. Id. \\u00a7 659. This contention may well be deserving of merit for the dismissal, it is noted, was on the basis of \\\"lack of prosecutive merit.\\\" Defendants counter, however, by stoutly maintaining that the termination was actually indecisive under Restatement \\u00a7 660 because the charge was withdrawn pursuant to a compromise prompted by a desire to extend mercy to plaintiff. Defendants too may be correct, but that is an issue of fact for determination at trial.\\nSnook and McCants go on to say that Ms. Van Eyten was not acting on their behalf when she informed the police of the theft and, therefore, they cannot be liable on a theory of respondeat superior. Yet, \\\"(a) master is subject to liability for the torts of his servants committed while acting in the scope of their employment.\\\" Restatement (Second) of Agency, \\u00a7 219(1) (1958). The scope of Van Eyten's employment being as yet undefined, a genuine issue of fact remains as to the liability of these two moving defendants. Moreover, even if Van Eyten were not acting within the scope of her employment there remain theories under which defendant might still be liable. See id. \\u00a7 219(2).\\nAbuse of process is the use of legal process primarily to accomplish a purpose for which it is not designed. Restatement (Second) of Torts \\u00a7 682. Assuming plaintiff's version of the facts to be true, after plaintiff was arrested, Van Eyten lied to the police, thus prolonging plaintiff's stay in custody. Accordingly, the requirement of the use of process is satisfied since arrest and custody qualify as use of the court's power. In addition, the improper purpose required by the Restatement would be Ms. Van Eyten's alleged motivation of protecting her employer from potential tort liability.\\nRespecting the abuse of process cause of action, the foregoing may be but the \\\"tip of the iceberg\\\". Several averments, or if not specifically set out, certain implications, raise factual issues of such enormity that summary judgment must be deemed wholly inappropriate. Lending credence to the charge of abuse of process are allegations of:\\n(a) the compelled purchase of a purse from defendant's store as the quid pro quo for plaintiff's release;\\n(b) the asserted coerced execution of a release to escape a return to perhaps the \\\"durance vile\\\", that is Fort Christian;\\n(c) the filing of a criminal complaint days after there had supposedly been a disposition of the criminal charge;\\n(d) the propriety of the very compromise itself; and\\n(e) the filing and dismissal of the criminal complaint all of even date and apparently at the same time.\\nAll the foregoing suggest an effort to paper over wrongful, or at least questionable, conduct, and cry out for the fullest judicial scrutiny and airing. Accordingly, summary judgment on plaintiff's claim of abuse of process will be denied.\\nPlaintiff would have the court strike from the memorandum of law submitted by defendants in support of their summary judgment motion, the allegation that plaintiff's \\\"identity as a shoplifter was well established\\\". Says plaintiff, the assertion is impertinent and scandalous. Fed. R. Civ. P. 12(f). From the standpoint of a lay person, the reaction is understandable but by legal light, not so.\\nAt the threshold, plaintiff concedes that she has failed to comply with the Rule 12(f) requirement that a motion to strike be filed within twenty (20) days of service of the offending pleading upon the moving party. Plaintiff urges the court, however, to exercise its power under Rule 12(f) to strike an allegation on its own initiative at any time. Inasmuch as plaintiff failed on the merits of the motion, the Court is spared that unwelcome choice.\\nPlaintiffs contention that the allegation is \\\"impertinent\\\" is wholly without virtue. \\\"Impertinence con sists of any allegation not responsive nor relevant to the issues involved in the action and which could not be put in issue or be given in evidence between the parties\\\". 2A Moore's Federal Practice \\u00b612.21 at 2421-22 (2d. ed. 1975) (footnotes omitted). In the case at bar, in which probable cause is so central an issue, the fact that certain defendants believed plaintiff to be a shoplifter is clearly relevant. Moreover, in light of the guiding principle that \\\"(m)atter will not be stricken from a pleading unless it is clear that it can have no possible bearing upon the subject matter of the litigation.\\\" id. at 2429, the allegation cannot be stricken on the basis of impertinence.\\nPlaintiff also argues that the allegation accusing her of being an established shoplifter is \\\"scandalous\\\" within the meaning of Rule 12(f). An allegation is deemed scandalous if it both, \\\"reflects cruelly upon the moral character of an individual\\\" and is unnecessary. Id. at 2426. The first element is clearly satisfied, since plaintiff is accused of dishonest conduct. The allegation is not unnecessary, however. Plaintiff suggests that to so allege, despite the absence of supportive evidence, is to convey the broad implication that she has a prior record as a shoplifter. Read in context, however, the meaning of the allegation is easily limited to a statement of plaintiff's guilt of the crime involved in this lawsuit and no other:\\nAlthough the termination was accomplished by the compromise solution suggested by Chief Griffith, mercy for plaintiff certainly entered into the consideration of the case by the police and public prosecutor. The poor woman was in serious trouble, her identity as a shoplifter was well established and her husband, from whom she had indicated a desire to withhold knowledge of the sordid event was expected to arrive momentarily. (Emphasis supplied.)\\nMotions to strike are not favored. Id. at 2429. The allegation is readily confined to evidence relevant to this lawsuit. In addition, although degrading, the subject matter is not \\\"gone into in unnecessary detail\\\". Id. at 2427. Thus, plaintiff cannot wholly succeed on her motion to strike. The Court will, however, strike the indefinite article \\\"a\\\" and substitute therefor the definite article \\\"the,\\\" leaving the pleading to read \\\". . . her identity as the shoplifter . . .\\\", thus more accurately reflecting what, it seems to the Court, defendants intended to say.\\nSince plaintiff's motion to amend her complaint comes after a responsive pleading has been filed, leave of Court is a must. Fed. R. Civ. P. 15(a). However, such \\\"leave shall be freely given when justice so requires.\\\" Id. In the case at bar there is no reason to deny the motion except as to Commissioner Groneveldt. The other two defendants, Ms. Van Eyten and Detective Gifft, are leading actors in the arrest episode and surely have not been prejudiced by the delay in filing. Similarly, the new causes of action revolve around the same set of facts of which all defendants have been aware from the filing of the original complaint.\\nThe Government objects to the amended complaint as it applies to Commissioner Groneveldt. Simply put, the Commissioner was not in office at the time of the incident in question and, therefore, had no connection with it. As a result, the motion to amend the complaint will be granted in all respects except as it applies to Commissioner Groneveldt.\\nIn her amended complaint, plaintiff adds two causes of action against defendants Snook and McCants for violations of her civil rights under 42 U.S.C. \\u00a7 1983 and 1985(2). At the outset, the Court finds that plaintiff's \\u00a7 1985 claim is more appropriately made under \\u00a7 1985(3). The \\\"obstruction of justice\\\" language of \\u00a7 1985(2) is specifically addressed to abuses of the litigation process while the broader \\u00a7 1985(3) concepts of \\\"equal protection\\\" and \\\"privileges and immunities\\\" are the proper source for plaintiff's claims.\\nSnook and McCants move to dismiss plaintiff's civil rights actions for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b) (6). Thus, the question before the Court is whether, in the light most favorable to the plaintiff, the amended complaint states a valid claim for relief. Miller v. American Tel. & Tel. Co., 507 F.2d 759, 761 (3d Cir. 1974). Because plaintiff has not seen fit to respond to the motion to dismiss, the Court must not only view the case from plaintiff's perspective, but must do her research as well. To plaintiff's good fortune, the Court finds sufficient allegations in the pleadings to warrant denial of Snook and McCants' motion to dismiss.\\nSection 1983 provides a civil action for deprivation of rights:\\nEvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress.\\nThus, the establishment of a 1983 claim hinges on two necessary elements: (1) deprivation of federally protected rights (2) under color of state law. The first element is handily satisfied by plaintiff's allegation that her arrest and the proceedings which followed were the result of discrimination based on race in violation of her equal protection rights. The requirement that such a violation be under color of state law is more troublesome.\\nSnook and McCants, in objecting to plaintiff's claim, contend that actions by private parties are not under color of state law. That shot, however, goes quite wide of the mark for, \\\"(t)o act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willing participant in joint activity with the State or its agents.\\\" United States v. Price, 383 U.S. 787, 794 (1966). Plaintiff alleges that a conspiracy existed among Snook, McCants, their employee Ms. Van Eyten, and the police which by purpose and effect deprived her of constitutionally guaranteed rights. Accordingly, plaintiff \\\"will have made out a violation of her fourteenth amendment rights and will be entitled to relief under \\u00a7 1983\\\" if she can prove that Snook and McCants, or their employees in the course of their employment, in conjunction with the Virgin Islands police \\\"somehow reached an understanding\\\" to maliciously prosecute and otherwise deprive plaintiff of her federally protected rights. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970).\\nAlthough plaintiff may be confronted with a factual burden of no mean proportion at trial, she makes sufficient allegations of a conspiracy to survive the motion to dismiss. At this juncture plaintiff need do no more to pass muster than put forth evidence suggesting that Snook and McCants and the police had a \\\"meeting of the minds\\\" and reached an understanding to continue to prosecute plaintiff despite her innocence. Id. at 158. Plaintiff has shown that charges against her were dropped and that stolen item was never found on her person or property. It may well be as plaintiff alleges, that her innocence eventually dawned on defendants, notwithstanding which they still continued the legal proceedings against her, in fear of a lawsuit. The allegations that Detective Gifft approached plaintiff with a general release and gave her the choice of either admitting her guilt or returning to jail, support the hypoth esis of defendant's fear of possible legal proceedings. Furthermore, the conspiracy theory is enhanced by the allegation that the release presented to plaintiff by Gifft, which, she claims to have been coerced into signing, was prepared by the private counsel to Snook and McCants.\\nPlaintiff has alleged the requisite specific facts necessary to support a theory of a conspiracy between Th& Leather Shop and the police. See Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir. 1972) (discussing conspiracy' under \\u00a7 1985(3)). The formation, membership, and purpose of the alleged conspiracy have been set out by plaintiff. See Everett v. City of Chester, 391 F.Supp. 26, 29 (E.D. Pa. 1975). Thus, plaintiff has properly alleged that she was deprived of her rights under color of law and the motion to dismiss the \\u00a7 1983 claim will be denied. To state a. cause of action under \\u00a7 1985(3), the complaint must allege that the defendants did (1) \\\"conspire\\\" (2) \\\"for the purpose of depriving, either directly or indirectly, any person or class of'persons of the equal protection of the laws, or of equal privileges and immunities under the laws.\\\"' It must then assert that one or more of the conspirators. (3) did, or caused to be done, \\\"any act in furtherance of' the object of (the) conspiracy,\\\" whereby another was (4a) \\\"injured in his person or property\\\" or (4b) \\\"deprived of having and exercising any right or privilege of a citizen of the United States.\\\" Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971).\\nThe conspiracy element has been analyzed in the discussion of \\u00a7 1983. Furthermore, it is beyond dispute that. \\u00a7 1985(3) provides a statutory remedy for unconstitutional misconduct by private persons when those individuals have conspired to deprive others of their civil rights on account of race. See id. at 103. Plaintiff asserts that because of her race she was subjected to numerous rights, violations, including, among others, illegal search of her* boat, denial of timely and effective assistance of counsel and deprivation of liberty without due process. These allegations supply the requisite racial animus to deprive plaintiff of the equal enjoyment of legal rights. Id. The claims that plaintiff was detained without any basis and that the release affidavit was improperly obtained more than satisfy the requirement of acts done in furtherance of the conspiracy. Finally, plaintiff alleges personal injury and deprivation of rights resulting from the acts of defendants. The amended complaint, therefore, states a cause of action under \\u00a7 1985(3).\\nPlaintiff's August 16, 1977, notice of intention to file a claim against the Government was filed within the ninety day period limited in Title 33 V.I.C. \\u00a7 3409(c). However, this Court ruled that plaintiff's failure to verify the notice of intention, as required by 33 V.I.C. \\u00a7 3410 (Supp. 1977), warranted dismissal of the action as against the Government. Yeamans v. Snook, No. 77-22 (D.V.I. Nov. 16,1977). Plaintiff would now fall back on the saving provisions of \\u00a7 3409(c) and have the court exercise its discretionary power to grant her leave to file this claim out of time. The statute authorizes the Court to approve an application submitted after the ninety day period has expired, but within two years of the accrual of the action, provided:\\n(i) a reasonable excuse for the failure to file a notice of intention exists;\\n(ii) the Virgin Islands Government or its appropriate agency or department had actual knowledge of the facts constituting the claim prior to the expiration of the 90 day period; and\\n(iii) the Government of the Virgin Islands has not been substantially prejudiced by said failure of timely filing within the specified time period.\\nQuailey v. Government of the Virgin Islands, 12 V.I. 463, 466 (D.V.I. 1975).\\nBy way of excuse for her failure to file a verified notice of intention plaintiff says that, as of the time of filing, the case was still being investigated, she was unavailable, and counsel mistakenly believed that only plaintiff herself could verify the notice. This Court rejected the identical reasons as excusing plaintiff's failure to properly file within ninety days. Yeamans v. Snook, supra. The Government suggests that this holding of the Court precludes plaintiff from now establishing the \\\"reasonable excuse\\\" necessary for permission to file out of time under \\u00a7 3409(c). However, although the requirements of the Virgin Islands Tort Claims Act generally call for \\\"strict compliance\\\", Yeamans v. Snook, supra, the \\\"savings clause\\\" of \\u00a7 3409(c) is specifically addressed to the Court's discretion. In addition, the fact that plaintiff made every effort short of verification to properly notify the Government in itself tends to give substance to her \\\"reasonable excuse\\\" claim.\\nThe other two prerequisites for a successful appeal to the Court's discretion under \\u00a7 3409(c) are also satisfied in the case at bar. Firstly, plaintiff's August 16, 1977, letter to the Governor and Attorney General was sent within ninety days of the accrual of her action, thus signifying that the Government had actual notice of her claim, and secondly, the Court finds that the Government has not been substantially prejudiced by the untimely filing. Certainly, plaintiff's five month delay in moving for leave to file may be irresponsible in light of the Court having plainly laid the foundation for such a motion when granting the Government's original motion to dismiss. Yet, there is no evidence of any prejudice accruing to the Government beyond an unsupported statement of the Assistant Attorney General to that effect. Furthermore, plaintiff's motion is well within the two year limitation of \\u00a7 3409(c). Accordingly, what plaintiff cannot claim as of right, she may obtain by grace. Her motion to file a claim against the Government out of time will be granted.\\nORDER\\nThe premises considered and the Court being advised,\\nIT IS ORDERED that the motion of defendants Snook and McCants for summary judgment on plaintiff's cause of action for false imprisonment be, and the same is hereby, GRANTED;\\nIT IS FURTHER ORDERED that the motions of Snook and McCants for summary judgment on plaintiff's causes of action for malicious prosecution and abuse of process be, and the same are hereby, DENIED;\\nIT IS FURTHER ORDERED that plaintiff's motion to strike an allegation on the grounds that it is impertinent and scandalous be, and the same is hereby, DENIED in part and GRANTED in part;\\nIT IS FURTHER ORDERED that plaintiff's motion to amend her complaint be, and the same is hereby, GRANTED, except that insofar as the motion seeks to name Charles Groneveldt as a defendant, the same is DENIED;\\nIT IS FURTHER ORDERED that Snook and McCants'' motion to dismiss plaintiff's civil rights claims for failure to state a claim upon which relief can be granted be, and the same is hereby, DENIED; and\\nIT IS FURTHER ORDERED that plaintiff's motion for leave to file a claim against the Government of the Virgin Islands out of time be, and the same is hereby, GRANTED.\"}"
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+"{\"id\": \"1101026\", \"name\": \"SPRING GARDENS HOMES ASSOCIATION, INC., Plaintiff v. MR. AND MRS. EDWARD FRANCIS, et al., Defendants\", \"name_abbreviation\": \"Spring Gardens Homes Ass'n v. Francis\", \"decision_date\": \"1978-07-28\", \"docket_number\": \"Civil No. 1041/1977\", \"first_page\": 243, \"last_page\": \"255\", \"citations\": \"15 V.I. 243\", \"volume\": \"15\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T18:58:44.799643+00:00\", \"provenance\": \"CAP\", \"judges\": \"SILVERLIGHT, Judge\", \"parties\": \"SPRING GARDENS HOMES ASSOCIATION, INC., Plaintiff v. MR. AND MRS. EDWARD FRANCIS, et al., Defendants\", \"head_matter\": \"SPRING GARDENS HOMES ASSOCIATION, INC., Plaintiff v. MR. AND MRS. EDWARD FRANCIS, et al., Defendants\\nCivil No. 1041/1977\\nTerritorial Court of the Virgin Islands Div. of St. Croix at Christiansted\\nJuly 28, 1978\\nVincent A. Gamal, Esq., Christiansted, St. Croix, for plaintiff\\nR. Eric Moore, Esq. (O\\u2019Brien & Moore), Christiansted, St. Croix, for defendants\\nSILVERLIGHT, Judge\", \"word_count\": \"3363\", \"char_count\": \"20318\", \"text\": \"MEMORANDUM OPINION AND JUDGMENT\\nThis action was brought by plaintiff homeowners' association against one of its members who fenced in a small plot of the \\\"common area\\\" owned by the Association for the common use of all members. Defendant counterclaimed for specific performance of an alleged oral promise by the Association to convey the plot in issue to defendant, or in the alternative, for damages as reimbursement for the costs of construction and, if necessary, removal of the fence built in reliance on that promise.\\nPlaintiff Spring Gardens Homes Association, a nonprofit corporation duly chartered pursuant to Title 13, Chapter 3, Virgin Islands Code, was incorporated by the developers of Estate Welcome, Inc., for the stated purpose, inter alia, of providing for the maintenance, preservation, and architectural control of the residences in the Tulip\\u00e1n Section, and to promote the health, safety, and welfare of its residents. The Association's membership is comprised of all persons owning or having the right of ownership in at least one plot of that portion of Eliza's Retreat designated as Lots 1 through 53 on PWD Drawing No. 1727 \\u2014 19, 20, 21 and 22, known as the \\\"Tulip\\u00e1n Section.\\\"\\nThe Tulip\\u00e1n Section is a modern housing development subdivided in such manner as to provide a large \\\"common area\\\" of parkland in the center, from which individual plots radiate. The plots that encircle the common area are owned by members of the Association, but the central common area was deeded in fee simple by the developers of Estate Welcome, Inc., to the plaintiff Association by-warranty deed for use as a park by its members. The Association's \\\"Declaration of Covenants, Conditions and Restrictions\\\" referred to in that deed provides, in pertinent part, only that \\\"every member shall have a right and easement of enjoyment in and to the common area.\\\"\\nThe defendant is the owner of Plot 39, one of the plots that radiate from the common area. The present controversy grows out of his desire to purchase and fence a small portion of the common land adjoining his property, and later determination by the Board of Directors of the Association that the Board lacked the authority to sell him that plot of common land.\\nThe facts, succinctly stated, are undisputed, being verified by the minutes of the Association as it met and its Board discussed the sale of the plot in issue to defendant. On April 14, 1975, at the regular monthly meeting of the Association, defendant requested permission of the Board to purchase a 1,350 square foot portion of the common area adjoining the rear of his property for the purpose of building a fence/retaining wall to protect his yard from stray horses which ruined his plantings, and to protect his property from flooding and mud emanating from the remainder of the common area.\\nAt this time, defendant was a member of the Board, but took no part in the voting process relative to his request. The Board was uncertain about the boundary lines of common area and withheld action until they could contact a surveyor to establish these lines definitely. Apparently, nothing was done to have the property surveyed until three months later, when the president of the Board of Directors signed a consent form necessary to have the survey made and presented to Public Works for approval. The vice president was, at that time, directed to make inquiries about the market value of said portion \\\"to expedite the transaction.\\\"\\nOn December 5, 1975, defendant duly submitted the plan, approved by Public Works, separating Plot 71 (the parcel defendant wished to purchase), from the remainder of Plot 45 (the common area), and attaching Plot 71 to defendant's Plot 39 \\\"in perpetuity.\\\"\\nThe minutes of the monthly meetings continued to express an intention on the part of the Board of Directors of the Association to sell defendant the small portion of the common area in issue, the only delay arising from the Board's hesitation to set a price until more accurate measurements were obtained so that the cost could be determined on the basis of the actual square footage involved. Despite the fact that the price had not been definitely set, defendant was so confident that the sale had been agreed upon as a result of the Board's actions, that he assumed possession of Plot 71, which he had been permitted to separate from the common area, prior to the May 5, 1976, Board meeting, and constructed a fence enclosing it for the purpose, as stated, of protecting his property from strays and \\\"wash aways.\\\" This construction was performed openly and with the knowledge of the Board and all nearby property owners, none of whom either questioned the construction or objected to it.\\nOn December 3, 1976, the square footage of the parcel in issue was determined to be 1,350 square feet, and the Board directed three members, including defendant, to return with firm market value figures per square foot for the purchase of the land. This was accomplished at a meeting of the Board of Directors on December 30, 1976, at which time the Board established the fair market price of the land to be $.50 per square foot, reflecting the low caliber of the land. The Board ordered a \\\"bill\\\" to be sub mitted to defendant for $675.00 for the common area he wished to purchase.\\nAt this point, the Board treated the matter as settled, the \\\"President's Report\\\" for the year February, 1976, through January, 1977, stating that the Board had determined the price and submitted a \\\"bill\\\" for the sale of the plot of common land to defendant in December, 1976.\\nA new Board thereafter entered office prior to February 6, 1977. At a meeting of the Board of Directors on that date, the new directors, fearing a \\\"raid\\\" on the common lands by other parties having less justification than defendant's need for drainage and protection, began to have misgivings about the sale of common lands to any member. While the Board acknowledged the fact that it had approved the sale to defendant and had approved the survey permit submitted to Public Works, it directed that a letter be sent to defendant informing him that its legal counsel had advised it that the Board had no authority to sell common area lands unless approved by at least two-thirds of the membership and instructing him to remove all structures he had placed upon the common area.\\nDefendant immediately tendered a check to the Association for $675.00, the billed and agreed purchase price of the 1,350 square feet. This check was rejected by the president of the Association on March 21, 1977, the day a special meeting was held by the Board at which it was decided to hold a general meeting of all members to vote on the issue of selling common area property to individual members. In May, 1977, a general membership meeting was finally held at which a quorum was present, and over two-thirds of those eligible voted not to sell common area property.\\nThis action against defendant followed the May, 1977, general membership vote, defendant having, in the interim, refused to tear down his fence or to relinquish possession of the 1,350 square feet of common land. Defendant, alleging that the Association reneged on its promise to sell, is demanding specific performance. Plaintiff claims that its Board acted beyond its authority in agreeing to sell defendant common area lands without first obtaining approval of such sale by two-thirds of the general membership, and that any promise to sell is therefore void and unenforceable.\\nIt is undisputed that the Board of Directors did, at its December 30, 1976, meeting, duly vote to sell the small plot in issue to defendant for $.50 per square foot, and that a \\\"bill\\\" for the purchase of the land for $675.00 was submitted to defendant, who, within a reasonable time thereafter, tendered that amount to the Association. The regular minutes of the Association and the President's Report for 1976, all duly verified and signed by the party against whom they are charged, amply serve as \\\"writings,\\\" that take the proposed sale out of the Statute of Frauds and place the matter before the Court solely on the question of the authority of the Board to sell common area lands.\\nThe determination of this case can be found in an examination of the Articles of Incorporation, By-Laws and Declaration of Covenants, Conditions and Restrictions of the Spring Gardens Homes Association. Within these corporate documents lie the authority, or lack thereof, of the Board of Directors to sell defendant a portion of the common area without the consent of two-thirds of the general membership obtained in a general election.\\nThe same rules which govern the construction of statutes, contracts and other written instruments apply to the interpretation of charters, articles and other corporate instruments. Sundlun v. Executive Jet Aviation, Inc., 273 A.2d 282 (Del.Ch., 1970); Dempster Mfg. Co. v. Downs, 101 N.W. 735 (Iowa, 1904). When language is clear and unambiguous, the Court cannot construe it in other than the plain and literal meaning of the language used. Independent Oil Wkrs. of Paulsboro, N.J. v. Mobil Oil Corp., 441 F.2d 651 (3rd Cir. 1971); Resort Car Rental System, Inc. v. Chuck Ruwart Chev., Inc., 519 F.2d 317 (10th Cir. 1975). We see no ambiguity or lack of clarity in the language of the Articles of Incorporation, By-Laws, and Declarations of Covenants, Conditions and Restrictions of the Association, and will, therefore, refuse to rewrite those instruments thereby broadening their stated scope.\\nThe Articles of Incorporation of Spring Gardens Homes Association, Inc., state that the affairs of the Association shall be managed by a Board of Directors, each of whom is elected by the membership of the Association. These Articles grant certain specific powers to the Association, among which is the power \\\"to acquire (by gift, purchase or otherwise), own, hold, improve, build upon, operate, maintain, convey, sell, lease, transfer, dedicate for public use or otherwise dispose of real or personal property in connection with the affairs of the Association\\\" and \\\"to have and to exercise any and all powers, rights and privileges which a corporation organized under the Non-Profit Corporation Law of the Virgin Islands by law may now or hereafter have or exercise.\\\" (Emphasis added.)\\nAmong those powers granted by the Virgin Islands under the Non-Profit Corporation Law is the power to \\\"purchase, hold and convey real and personal property, as the purposes of the corporation may require,\\\" and to \\\"enter into any lawful contracts and incur obligations essential to the transaction of its affairs for the purpose for which it was formed.\\\" 13 V.I.C. \\u00a7 493, Non-Profit Corporations.\\nFrom the above, it is clear that the Association does have the power to sell and convey real property held by the Association. The primary question remaining, then, is whether the common area is subjected to the special requirement of assent of two-thirds of the general membership as a condition precedent to conveyance by the Board to a private person.\\nThere is no proscription in the corporate documents against the sale of the common area lands to a private purchaser. While an unsophisticated purchaser of a plot in the Tulip\\u00e1n Section might be under the impression that the \\\"park\\\" area in the center was protected and inviolate from sale to members or to the public, such is clearly not the case, as is seen by a careful reading of the corporate documents.\\nThe members' \\\"easement of enjoyment\\\" lies only in whatever common area the Association owns at any moment. The Association defines what the common area is by whatever portion it chooses to make available \\\"for the common use and enjoyment of the members of the Association.\\\"\\nWhile it is established that the Association has the power to sell or convey its real property, there are certain specific provisions in the Articles of Incorporation identifying the occasions upon which the assent of the general membership is required in dealings with the Association's real property. Article VIII, \\\"Authority to Mortgage\\\" provides that \\\"[a]ny mortgage by the Association of the Common Area defined in the Declaration [of Covenants, Conditions and Restrictions] shall have the assent of two-thirds (%) of the membership.\\\" Article IX, \\\"Authority to Dedicate\\\" provides that no dedication, sale or transfer of all or part of the common area to any public agency, authority or utility \\\"shall be effective unless agreed to by two-thirds (%) of the membership.\\\" Ar- tide III, \\\"Property Rights\\\" Section 1(e) of the Declaration of Covenants, Conditions and Restrictions, recites, \\\"No such dedication or transfer shall be effective unless an instrument signed by members entitled to cast two-thirds (%) of the votes has been recorded, agreeing to such dedication or transfer, .\\\" These are the only three instances when the assent of the general membership is specifically required for the Association to sell, transfer or mortgage property.\\nThe By-Laws of the Association explicitly provide that:\\nThe Board of Directors shall have power:\\n(b) To exercise for the Association all powers, duties and authority vested in or delegated to this Association not reserved to the membership by other provisions of these By-Laws, the Articles of Incorporation, or the Declaration.\\nWhat is reserved for the assent of the membership is only the approval of the mortgaging of the common area, or its transfer, sale, or dedication to any public agency, authority or utility. (Emphasis added.) All other sales are delegated to and vested in the Board of Directors, as succinctly stated in Article IV of the Articles of Incorporation, supra. Accordingly, the Court finds as a matter of law that no vote of the general membership was required by either the Articles of Incorporation, By-Laws, or deed restrictions for the Board of Directors to sell the plot in litigation to the defendant, provided such sale was in furtherance of such purposes. This case need not go to its conclusion on the premise that the Board did not step beyond some negative limit, and that thus the sale was valid. The Court sees a clear and positive mandate in the corporate records that the Board act to promote the best interests of its members, and we conclude that it did exactly that in consenting to the sale of the plot to defendant.\\nAs stated earlier, the Articles of Incorporation declare that one of the specific purposes for which the Association was formed was to promote the health, safety and welfare of the residents of the development. In the case sub judice, the Association was presented with a situation where a member's plot was being invaded by stray horses and flood waters and mud from the common area. The Board responded in a manner which promoted the health, safety and welfare both of the defendant and of the other members of the Association.\\nThe flood waters, loose mud and stray horses created a condition on defendant's plot that decreased its value and utility, as well as constituting a health and safety hazard from the stench, debris and infestation attendant upon flood waters washing through unprotected lands. In allowing defendant the opportunity to buy the land and build a fence to protect his property, it is unquestionable that the Board clearly promoted defendant's welfare. At the same time, however, it acted just as clearly to promote the welfare of all of the residents and members of the Association. If defendant's plot were allowed to lose a significant portion of its value due to the problems of floods and strays, the property values of the surrounding neighborhood would also decrease. In acting to maintain the defendant's residence free from damage or decrease in value, the Board was consequently acting in the best interests of the entire development and promoting the general welfare of all members, for were one plot to fall into decline, a general blight would likely spread from house to house throughout the neighborhood, as an infection spreads its poison through a healthy body from a festering sore. Therefore, the Court finds as a fact that the sale itself was a good faith act by the Board in promotion of the general welfare of the Association.\\nAs a natural adjunct to this authority is the stated power of the president to \\\"see that all orders and resolutions of the Board are carried out; shall sign all leases, mortgages, deeds and other written instruments. . . .\\\" Following the consensus of the Board that the property should be sold to defendant, the president, on December 30, 1976, duly carried out the resolution of the Board and directed that a \\\"bill\\\" should be sent to defendant, so that, on receipt of $675.00, the president could then convey the plot.\\nIn light of the above findings of fact and law, the Court is faced with but one alternative, and it hereby concludes that there was no legal basis for the subsequent Board to declare improper and ultra vires the action of the prior Board in agreeing to sell and thereafter proffering a \\\"bill\\\" for the plot which defendant had fenced. The Board acted with due circumspection over a period of 20 months in determining the exact area and boundary measurements of the plot, in requiring the surveying of the plot, in having Public Works approve the survey, in collecting three estimates of fair market value, and, finally, in agreeing to sell the plot to defendant at the agreed fair market price. There were no irregularities alleged, and throughout the dealings the defendant took no part in any vote on his request, notwithstanding his membership on the Board at that time.\\nAfter due consideration of all the facts, and after an examination of all the pertinent documents, the Court concludes that the agreement to sell the plot to defendant was within the power and actual authority of the Board to make, and that defendant has the right specifically to enforce that promise and to demand conveyance of the plot which he has already fenced at considerable expense to himself in reliance on the Board's promise to convey.\\nPlaintiff's requests for an injunction and punitive damages are accordingly denied, as is that portion of defendant's counterclaim seeking reimbursement of the costs of construction and removal of the fence. Plaintiff is to convey forthwith to defendant by warranty deed, upon payment by defendant of the sum of $675.00, Plot 71 of Eliza's Retreat, as recorded on the revision map, Survey Drawing No. 1727-24, dated November 21, 1975, and recorded with the Department of Public Works.\\nCosts and attorney's fees established in conformity with the Estien v. Christian guidelines shall be awarded defendant upon submission of a bill of costs and attorney's affidavit of services rendered.\\nJUDGMENT\\nIn accordance with the Memorandum Opinion of even date herewith, it is\\nORDERED, ADJUDGED AND DECREED that plaintiff's complaint be and the same hereby is dismissed; and it is further\\nORDERED, ADJUDGED AND DECREED that that portion of defendant's counterclaim seeking reimbursement for costs of construction and removal of the fence be and the same hereby is dismissed; and it is further\\nORDERED, ADJUDGED AND DECREED that plaintiff shall convey forthwith to defendant by warranty deed, upon payment by defendant of the sum of $675.00, Plot 71 of Eliza's Retreat, as recorded on the revision map, Survey Drawing No. 1727-24, dated November 21, 1975, and recorded with the Department of Public Works; and it is further\\nORDERED, ADJUDGED AND DECREED that costs and attorney's fees shall be awarded to defendant upon submission of a bill of costs and attorney's affidavit in conformity with the Estien v. Christian guidelines.\\nArticles of Incorporation, Article IV, \\\"Purpose and Powers of the Association,\\\" subparagraphs (d) and (f).\\nBy-Laws, Article VIII, \\\"Powers and Duties of the Board of Directors,\\\" Section 1(b), page 4.\\nBy-Laws, Article XI, \\\"Officers and Their Duties,\\\" Section 8(a), page 7.\"}"
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+"{\"id\": \"1103435\", \"name\": \"ELDORA G. RICHARDSON, Plaintiff v. GEORGE JULIAN HERBERT RICHARDSON, Defendant\", \"name_abbreviation\": \"Richardson v. Richardson\", \"decision_date\": \"1978-01-27\", \"docket_number\": \"Family No. 837-77\", \"first_page\": 292, \"last_page\": \"297\", \"citations\": \"14 V.I. 292\", \"volume\": \"14\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:00:43.544823+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ELDORA G. RICHARDSON, Plaintiff v. GEORGE JULIAN HERBERT RICHARDSON, Defendant\", \"head_matter\": \"ELDORA G. RICHARDSON, Plaintiff v. GEORGE JULIAN HERBERT RICHARDSON, Defendant\\nFamily No. 837-77\\nTerritorial Court of the Virgin Islands Div. of St. Thomas and St. John\\nJanuary 27, 1978\\nWilliam Bailey, Esq. (Bailey, Wood & Rosenberg), St. Thomas, V.I., for plaintiff\\nGeorge Richardson (C/O Bondel Caneg), St. Phillips-berg, St. Martin, Netherlands Antilles, for defendant\", \"word_count\": \"1147\", \"char_count\": \"6790\", \"text\": \"FEUERZEIG, Judge\\nMEMORANDUM OPINION AND ORDER\\nPlaintiff Eldora G. Richardson, by and through her attorneys Bailey, Wood & Rosenberg, William W. Bailey of counsel, seeks a divorce and has moved for a default against the defendant, George Richardson. As grounds therefor she alleges that the defendant has not appeared. The defendant, however, by letter dated December 5, 1977, acknowledged receipt of the court summons, disputed the allegations of the complaint that the marriage had irretrievably broken down, and asserted an active interest in contesting the action. This is sufficient notice to the plaintiff of the defendant's position, and constitutes an \\\"appearance\\\" sufficient to justify a denial of plaintiff's motion for default.\\nPresent federal pleading practice largely serves the function of apprising the opposing parties of the nature of the litigation and the claims or defenses that are being raised by the suit. Consequently, a party need only plead in terms that are sufficient to provide the necessary notice to his adversary.\\n5 Wright and Miller, Federal Practice and Procedure: Civil \\u00a7 1281, at 363 (1969). Moreover, under Rule 8(f), Federal Rules of Civil Procedure, 5 V.I.C. App. I R.8(f), all pleadings are to be construed to do substantial justice. This provision is not merely precatory but it reflects\\none of the basic philosophies of practice under the federal rules. . . . Lawsuits should be determined on their merits and according to the dictates of justice, rather than in terms of whether or not the averments in the paper pleadings have been artfully drawn.\\n5 Wright and Miller, supra, \\u00a7 1286, at 381. Finally, the spirit of Rule 8(f) takes on added urgency where, as here,\\na court is dealing with an answer drawn by a layman unskilled in the law. In these cases, technical deficiencies in the answer will be treated leniently and the entire pleading will be scrutinized to determine if any legally cognizable claim can be found within it. Id. at 382-83.\\nA liberal construction of the pleadings is especially called for where they were prepared by a layman.\\nDeWitt v. Pail, 366 F.2d 682 (9th Cir. 1966). Plaintiff's motion for default accordingly is denied.\\nIn construing defendant's letter it is clear that he also is requesting a postponement of any action the court might take or of any hearings the court might schedule until such time as he can obtain a visa to enter the jurisdiction and defend this action personally. He wrote:\\nI hereby inform you that I have applied for a visa to enter the U.S. Virgin Islands. . . As soon as I have received this document I'll be arriving in St. Thomas to answer the charges brought against me by my wife Eldora G. Richardson. . I have no intention of dissolving my marriage and I trust that the court may delay the ruling on this matter until I arrive in St. Thomas.\\nIt should be noted that as yet no date has been set for a hearing on this action, although plaintiff's motion for a default requests the court to schedule a hearing. Defendant's request for a postponement, having been filed before a date had been set for a hearing on the matter, is not, therefore, a request for a continuance. The court believes, however, that the two situations are sufficiently similar so that the reasoning applicable to one is applicable to the other. This is appropriate in light of the paucity of authority on the issue at hand. Accordingly, the court turns to decisions construing motions for continuance, keeping in mind the prevailing philosophy of liberally construing pro se pleadings.\\nThe granting or denying of a motion for continuance is within the sound discretion of the trial judge. Hodge v. Hodge, 11 V.I. 470, 507 F.2d 87 (3d Cir. 1975). What is demanded is the exercise of judicial discretion \\\"in the exquisite sense.\\\" United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1215 (3d Cir. 1969). The conflicting demands of due process and the need for the speedy and efficient resolution of cases must be accommodated. On the one hand:\\na myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend . an empty formality.\\nUngar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849 (1964). On the other hand,\\nit is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel.\\nId. In the final analysis\\nthere are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.\\nId. 376 U.S. at 589, 84 S.Ct. at 850. As noted, however, the case has not even been set down for a hearing, so the consideration of inconvenience to the plaintiff or her witnesses must, at this stage, be considered de minimis. Absent a showing by plaintiff that a delay will work substantial prejudice to her case, or a showing of other, corroborating evidence that defendant does in fact have a visa and can freely enter the Virgin Islands, the court will grant defendant's request for a postponement of any action taken on plaintiff's complaint. Surely, in an action for divorce, touching on matters so crucial to an individual's emotional well-being and family life, requests for postponements should be liberally granted. This is particularly so in the instant action in light of the defendant's alleged inability to enter the jurisdiction to personally defend and testify.\\nWHEREFORE, it is\\nORDERED, ADJUDGED and DECREED that this matter is continued without date; and it is further\\nORDERED that defendant shall within 30 days of the date of this order report to the court what progress he has made in securing a visa and when he expects to arrive in the Virgin Islands, and it is further\\nORDERED that upon receipt of the defendant's response to this order the matter will forthwith be set down for a hearing, and it is further\\nORDERED that failure of defendant to respond to this order will result in this court acting favorably on a request that the matter be scheduled for a hearing, and it is further\\nORDERED that a copy of this order be mailed postage prepaid, return receipt requested, directed to the defendant at the return address given on his December 5,1977, letter to the Clerk of this court.\"}"
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+"{\"id\": \"1104501\", \"name\": \"GOVERNMENT OF THE VIRGIN ISLANDS IN THE INTEREST OF: \\\"J\\\", Minor\", \"name_abbreviation\": \"Government of the Virgin Islands ex rel. \\\"J\\\"\", \"decision_date\": \"1977-03-30\", \"docket_number\": \"JDR 63/1976\", \"first_page\": 257, \"last_page\": \"266\", \"citations\": \"13 V.I. 257\", \"volume\": \"13\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T17:02:52.498804+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GOVERNMENT OF THE VIRGIN ISLANDS IN THE INTEREST OF: \\u201cJ\\u201d, Minor\", \"head_matter\": \"GOVERNMENT OF THE VIRGIN ISLANDS IN THE INTEREST OF: \\u201cJ\\u201d, Minor\\nJDR 63/1976\\nTerritorial Court of the Virgin Islands Div. of St. Thomas and St. John\\nMarch 30, 1977\", \"word_count\": \"2798\", \"char_count\": \"16973\", \"text\": \"FEUERZEIG, Judge\\nMEMORANDUM AND ORDER\\n\\\"J\\\", a minor, age 16, is once again before this Court, this time, in connection with charges that on August 26, 1976, at about 4:45 a.m. he \\\"did with intent to commit an offense therein break and enter Government Personnel Department at which time no human being was present, all in violation of Title 14 of the Virgin Islands Code, Section 444(1), Burglary in the Third Degree.\\\" In view of the minor's lengthy history of adjudications as a juvenile delinquent and his obvious recidivism, the Government of the Virgin Islands filed a motion to transfer the pending charges to the District Court pursuant to 4 V.I.C. \\u00a7 176:\\nIf a child 16 years of age or older is charged with an offense which would be a crime if committed by a person 18 years of age or over, and if the offense is one in which violence was committed on another person, it shall commit the child for proper criminal proceedings to the District Court; but no child under 16 years of age shall be so committed. In all other cases where such offense is not one involving violence to the person of another, commission of such child to the District Court shall be discretionary with the Territorial Court. (Emphasis added.)\\nThe Motion to Transfer came on for a hearing on Wednesday, February 8, 1977. The Government relied on the testimony of Eugene Hatcher, a social worker with the Department of Social Welfare since August of 1976, and the testimony of Reuben Rabsatt, a police officer with the Department of Public Safety. It was stipulated that \\\"J\\\" was born on May 10,1960. Thus he clearly falls within the purview of 4 V.I.C. \\u00a7 176, as a child between the ages of 16 and 18. Moreover, there is no dispute that \\\"J\\\" is charged with violating 14 V.I.C. \\u00a7 444(1), burglary in the third degree.\\nGiven these ultimate facts it becomes necessary to apply the teachings of Government of the Virgin Islands v. Santana, 9 V.I. 154 (D.V.I. 1972). Although the statute at issue in the Santana case has since been amended, it is the belief of this Court that the teachings of Santana still are applicable in deciding whether this Court should waive jurisdiction.\\nPublic policy can legitimately permit such waivers of jurisdiction. Normally the Juvenile Court exercises jurisdiction over all offenses committed by persons under the age of eighteen years. This permits rehabilitative and non-criminal treatment of young persons, free of publicity and the damaging consequences of a permanent and perhaps premature criminal record. As has been said of a similar statute, \\\"[i]t is implicit in [this] scheme that non-criminal treatment is to be the rule \\u2014 and the adult criminal treatment, the exception which must be governed by the particular factors of individual cases.\\\" Kent v. United States, 383 U.S. 541, 560-61 (1966), quoting with approval Harling v. United States, 295 F.2d 161, 164-65 (D.C. Cir. 1961). It is nonetheless recognized that some juveniles are exceptionally mature and hardened and that it would benefit neither them nor society at large to limit corrective measures to those contemplated for the average child.\\n9 V.I. at 158-159. In deciding whether to transfer, Santana requires this Court to make findings on each of the criteria listed in the Appendix to the Supreme Court's opinion in Kent, 9 V.I. at 171.\\nAccordingly, I will consider each factor seriatim.\\n(1) The seriousness of the alleged offense and whether the protection of the community requires the transfer.\\nClearly, the present offense with which the minor is charged, burglary in the third degree, is a serious offense to the community. While it is not a heinous crime, the Governor's Anti-Crime Act of 1977, Bill No. 7418, now before the Legislature, attests to the seriousness of the offense.\\n(2) Whether the alleged offense was committed in an aggressive, violent, premeditated or wilful manner.\\nThere is nothing to indicate that the alleged offense was committed in an aggressive, violent, premeditated or wilful manner. In fact, none of the previous offenses for which the minor has been adjudicated a delinquent, except the one of simple assault, indicate a violent or aggressive attitude on the part of the minor. In addition, Mr. Hatcher testified that only under peer group pressure, to which youths of \\\"J\\\" 's age of course are susceptible, would violence by him be likely to result.\\n(3) Whether the alleged offense was against persons or against property, greater weight to be given to offenses against persons, especially if personal injury resulted.\\nThe offense with which he is charged was against property and not against persons, and thus this factor as well as (2) would dictate against a transfer.\\n(4) The prosecutive merit of the complaint.\\nOfficer Rabsatt testified that he signed the complaint against the minor on the grounds that one Jellice Turnbull, who was arrested in the vicinity of the alleged burglary, and who was apprehended with some goods in his possession, told the police that \\\"J\\\" was also involved in the crime with him. \\\"J\\\" also was apprehended near the scene of the alleged crime. The officer said that Jellice Turnbull was not then in custody, and his specific location was not known. Officer Rabsatt did say, however, that Jellice Turnbull still is known to be in the Virgin Islands. Thus, I cannot presume, as the minor's counsel suggested, that Jellice Turnbull will not be an available witness. In Kent, the Court stated the question was whether there was prosecutive merit upon which a grand jury may be expected to return an indictment. In the Virgin Islands, we do not have a grand jury, and the only question is whether an information would be filed. There is no doubt in this Court's opinion that an information would be filed in this instance. Moreover, I believe a grand jury also would return an indictment based upon the facts as outlined by Officer Rabsatt.\\n(5) The desirability of the trial and disposition of the entire offense in one court when the juvenile's associates in the alleged offense are adults who will be charged with the crime in the U.S. District Court of the Virgin Islands.\\nFactor number 5 above is not relevant because there is no question at this time of disposition of an entire offense in one court.\\n(6) The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude, and pattern of living.\\nMr. Hatcher testified that \\\"J\\\" enjoys a good relationship with his mother. Despite this, there is a loose home structure that provides adequate care, but inadequate supervision. Moreover, the minor's home, in the opinion of Mr. Hatcher, lacks sufficient adult or masculine contacts to provide the minor with needed guidance. This last point was particularly stressed by the Department of Social Welfare in a 1976 report. \\\" T's entire life, to some extent, can be described as a search for a father he has never known. The seriousness of this significant loss is exhibited time and again by 'J' 's ego identity conflict.\\\"\\nSince he has been in the care of the Department of Social Welfare the youth \\\"has been appraised as a minor with serious emotional/psychological problems and disturbing mental disabilities.\\\" To further compound matters, Social Welfare states, \\\" 'J' has grown rather smug and settled in a 'successful' life he has devised for himself. These severely questionable activities are a mish-mash based on hustling, gambling, cadging and any sort of under-the-table bargaining. . Whenever he enters the Office of the Department he is in possession of huge sums of monies.\\\" Department of Social Welfare Court Summary pg. 3, May 24, 1976.\\n(7) The record and previous history of the juvenile including previous contracts with the Department of Social Welfare, other law enforcement agencies, juvenile courts, and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions.\\n\\\"J\\\" 's history with the Department of Social Welfare is anything but fortuitous for one so young. His first contact with that Department dates back to 1970. Since then he has gone in and out of the Department on repeated occasions with his finally being placed in the custody of the Department of Social Welfare on March 11, 1976. He was adjudicated as a juvenile delinquent as recently as February 2, 1977, before the Honorable Eileen R. Petersen in J.D.R. 1083. This was the fifth time he was adjudicated as a delinquent. In addition, on June 17, 1975, he was placed in the temporary custody of the Department of Social Welfare and incarcerated in the then existing Insular Training School in St. Croix on the grounds that he was physically dangerous to himself and to his family. I also feel compelled to take judicial notice of the numerous reports prepared for the Court after he was adjudicated a delinquent, some of which have been cited supra. Rule 209(b), Federal Rules of Evidence. The latest Department of Social Welfare report, dated March 7, 1977, was prepared after his most recent adjudication and states that the minor\\nhas been placed intermittently as his needs required at the Insular Training School, Group Home, and the Youth Care Center. While he has been in our care, attempts have been made to school him, first, at Insular Training School's \\\"un-graded\\\" class system. When Mental Health tests revealed \\\"J\\\" 's need for education as an emotionally disturbed youngster, Social Services provided for his placement in a special education class at Commandant Gade School. He was later placed at Wayne Aspinall Jr. High and in a special education class of Wayne Aspinall School. During these placement periods, \\\"J\\\" distinguished himself with outstanding records of truancy, misconduct, abusive behavior, fights and general malfunctioning.\\n(8) The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the juvenile division of this Court.\\nAgain I have to rely on the testimony of the social worker, Mr. Hatcher. He stated on behalf of the Department of Social Welfare that he had been trying to make arrangements for the minor to obtain rehabilitation at a facility off-island. Mr. Hatcher said such a facility would be available if the minor could qualify under the vocational rehabilitation program and that the minor was undergoing evaluation to gain admission. That effort, however, the March 3, 1977, Department of Social Welfare report reveals has been unsuccessful. This was only one of many efforts that the Department of Social Welfare has said it has made to provide treatment and/or rehabilitation for the minor, all to this date to no avail.\\nExisting facilities in the Virgin Islands offer no hope that \\\"J\\\" can be rehabilitated or be placed in a setting sufficiently structured to prevent the occurrence of still other delinquent acts. At present, there is no juvenile facility available other than the pre-trial detention area which has been set aside at Fort Christian in St. Thomas, and this Court views that facility as totally inadequate to meet the needs of this minor. Consequently, there is no facility available in the Virgin Islands to help this youth. Mr. Hatcher did say that if a social worker was available 18 hours a day a sufficiently structured setting could be provided to rehabilitate this minor. It also is clear, however, that no funds are available to accomplish this, nor is there sufficient manpower in the Department of Social Welfare to permit such time to be devoted to \\\"J\\\".\\nThus, this Court again is confronted with the perennial problem which it has faced the last few years \\u2014 that is, the unavailability in the Virgin Islands of adequate rehabilitative facilities or sufficiently structured settings to give individuals such as \\\"J\\\" an appropriate environment in which to receive appropriate care and treatment.\\nThus, if \\\"J\\\" is found to have committed the alleged act, the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation by use of currently available facilities in the Virgin Islands are virtually nil.\\nFinally, the Court must also consider the introductory paragraph of the Appendix of the Kent decision where it is stated:\\nAn offense within the statutory limitations will be waived [in this case transferred] if it has prosecutive merit, and if it is heinous or an aggravated character, or even though less serious \\u2014 if it represents a pattern of repeated offenses which indicates that the juvenile may be beyond rehabilitation under juvenile court procedures, or if the public needs the protection afforded by such action. 383 U.S. 541, 566 (Emphasis added).\\nClearly, the pattern of conduct of \\\"J\\\" indicates that the juvenile is beyond rehabilitation with the facilities and alternatives available in the Virgin Islands. The conclusion is unavoidable, therefore, that the public needs protection.\\nAs Santana pointed out:\\nIt has been said that a juvenile's prior history is not itself a basis for waiver, but becomes relevant only insofar as it casts light on his probable future conduct. Haziel v. U.S., 404 F.2d 1275, 1282 (Cir. 1968).\\n9 V.I. at 165 (1972). Here as in Santana the evidence is the same; although there is a capability to rehabilitate under conditions in the Continental United States where suitable structured settings are available, there is no chance for this under existing conditions in the Virgin Islands. Therefore, I reluctantly must find that a transfer to the District Court is the only means by which the public and society can be protected.\\nWHEREFORE, it is this 30th day of March, 1977,\\nORDERED, ADJUDGED and DECREED that the above-captioned action be, and the same hereby is, transferred to the District Court of the Virgin Islands pursuant to 4 V.I.C. \\u00a7 176.\\nSee footnote 3, pg. 263, infra.\\nThis Court also takes judicial notice of the fact on March 11, 1977, in connection with Criminal No. 56/1977, Jellice Turnbull appeared before the Honorable Eileen R. Petersen. See Record of Proceedings in Criminal No. 56/1977.\\n\\\"3\\\" has been adjudicated a delinquent on the following charges on the following occasions:\\nCASE NO. DATE OP ADJUDICATION AS DELINQUENT CODE VIOLATION\\nJ.D.R. 43/1975 September 24, 1975 Forgery, 14 V.I.C. \\u00a7 791(1)\\nJ.D.R. 65/1975 February 4, 1976 Grand Larceny, 14 V.I.C. \\u00a7 1083 Petit Larceny, 14 V.I.C. \\u00a7 1084\\nJ.D.R. 26/1976 April 22, 1976 Disturbing the Peace, 14 V.I.C \\u00a7 622(1)\\nJ.D.R. 39/1976 July 14,1976 3rd Degree Burglary 14 V.I.C. \\u00a7 444(1)\\nJ.D.R. 83/1976 February 2, 1977 Petit Larceny, 14 V.I.C. \\u00a7 1084\\nThe situation at present in the Virgin Islands is truly deplorable. That this is so was fully revealed by the Virgin Islands Law Enforcement Planning Commission proposal of October 12, 1976, entitled Proposed Format for the Development of a Comprehensive Juvenile Correctional Program/Facility. In the open paragraph it is stated:\\nThe present Virgin Islands Criminal Justice System is incapable of dealing effectively with Part I (larceny, burglary, auto theft, aggravated assault, robbery, rape and homicide) juvenile offenders. The reasons for this critical situation are several, chief among which is the fact that the existing juvenile justice system is really an \\\"un-system\\\" lacking coordination, responsibility and accountability. This problem is compounded by the total lack of any secure correctional facility suitable for adjudicated delinquents. Correlative with the lack of detention facilities is the need for dispositional alternatives to institutionalization.\\nThe minor has not raised the issue of whether he has a constitutional or statutory right to treatment, nor has he contended that the Government has a duty to provide sufficient facilities here in the Virgin Islands or make appropriate arrangements to provide such treatment. Consequently, the court has not attempted to decide that issue. I do, however, feel compelled to comment that the government under our juvenile laws, 5 V.I.C. \\u00a7 2501-2503, must make provisions for the treatment of minors such as \\\"J\\\". Failure to_ do so may be an abridgement of a minor's rights given the rehabilitative purposes of the establishment of the juvenile division within this court. This is particularly so in view of 5 V.I.C. \\u00a7 2513, which requires that when a \\\"child is removed from the control of his parents the court shall secure for him care as nearly as possible equivalent to that which should have been given him by them.\\\" See, e.g. Creek v. Stone, 379 F.2d 106 (D.C. Cir. 1967); White v. Reid, 125 F.Supp. 647 (D.D.C. 1954); In re Elmore, 314 N.Y.S.2d 356 (Fam. Ct. Queens City. 1970); Smith v. State, 444 S.W.2d 941 (Tex. Ct. App. 1969).\"}"
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+"{\"id\": \"1104530\", \"name\": \"VIRGIN ISLANDS HOUSING AUTHORITY, Plaintiff v. EUDELTA JOSEPH, Defendant\", \"name_abbreviation\": \"Virgin Islands Housing Authority v. Joseph\", \"decision_date\": \"1977-07-29\", \"docket_number\": \"Civil No. 131-1977\", \"first_page\": 508, \"last_page\": \"516\", \"citations\": \"13 V.I. 508\", \"volume\": \"13\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T17:02:52.498804+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"VIRGIN ISLANDS HOUSING AUTHORITY, Plaintiff v. EUDELTA JOSEPH, Defendant\", \"head_matter\": \"VIRGIN ISLANDS HOUSING AUTHORITY, Plaintiff v. EUDELTA JOSEPH, Defendant\\nCivil No. 131-1977\\nTerritorial Court of the Virgin Islands Div. of St. Thomas and St. John\\nJuly 29, 1977\\nAnita C. Wilson, Esq., Assistant Attorney General, Christiansted, St. Croix, V.I., for plaintiff\\nJesse M. Bethel, Esq., Legal Services of the V.I., St. Thomas, V.I., for defendant\", \"word_count\": \"2386\", \"char_count\": \"15110\", \"text\": \"HODGE, Judge\\nMEMORANDUM OPINION\\nPlaintiff, Virgin Islands Housing Authority, is an autonomous agency of the territorial government which sponsors and manages, as landlord, federally subsidized public housing projects. On February 25, 1977, plaintiff filed its complaint seeking recovery of unpaid rent and restitution of the rented premises from defendant, Eudelta Joseph, one of its tenants. Defendant's answer was filed on May 11, 1977, admitting owing an unspecified portion of the rent, but asserting an affirmative defense of partial abatement by alleging plaintiff's failure to repair the premises. On May 13, 1977, the matter was heard at length, and thereafter post trial briefs and a stipulation were submitted at the request of the court. After deliberation and review of the entire record, the Court has no difficulty in making the findings and conclusions which follow.\\nI.\\nOn October 1, 1971, the parties executed a written lease agreement in which plaintiff rented to defendant Apartment 21, Building 4 in the Michael J. Kirwan Terrace, one of plaintiff's federally subsidized public housing projects. The rented premises consist of three bedrooms, one kitchen, one living room, and one and a half bathrooms. At the time of the execution of the lease, defendant agreed to pay a monthly rental of $51.50, subject to certain adjustments enumerated in Section 4 of the lease. Based upon such adjustments, it is undisputed that defendant's rent was first increased to $84.50 per month and was again increased in April 1977 to $115.00 per month. It is also undisputed that during the entire period for which plaintiff's claim is made, defendant's rent was $84.50 per month except for the months of April and May 1977 when the rental was $115.00 per month.\\nPlaintiff's original complaint alleged that the total sum due for unpaid rent was $696.00; however, an amendment was permitted by the court which increased the total claim to $1,010.50, representing rental charges up to and including May 1977. Defendant has conceded that the rental computations made by plaintiff are accurate, but contends that the total claim of $1,010.50 should be abated by one-half (50%) because of plaintiff's breach of its duty to repair defects in the premises within a reasonable time.\\nAccordingly, since there is no dispute as to plaintiff's total calculation of overdue rental charges, I find that $1,010.50 is the gross amount of unpaid rent chargeable to defendant. Nevertheless, defendant's plea for abatement must now be addressed to determine whether any reduction should be made to plaintiff's total claim.\\nII.\\nAnticipating defects and damages to the premises, the parties, in executing the lease, provided for notice, repairs, alterations and improvement to the dwelling unit with reasonable promptness. Specifically, paragraph 6 of the lease provides as follows:\\nDAMAGE AND REPAIRS. Tenant shall use reasonable care to keep his dwelling unit in such condition as to prevent health or sanitation problems from arising. Tenant shall notify Management promptly of known need for repairs to his dwelling unit, and of known unsafe condition in the common areas and grounds of the project which may lead to damage or injury. Except for normal wear and tear, Tenant agrees to pay reasonable charges for repair of intentional and negligent damage to the leased premises or project caused by tenant, his family, or dependents. Such charges shall be billed to Tenant and shall specify the items of damages involved, correctional action taken and the cost thereof. Management agrees to accept rental money without regard to any other charges owed by Tenant to Management, and to seek separate legal remedy for the collection of any other charges which may accrue to Management from Tenant.\\nManagement shall maintain the buildings and common areas and grounds of the project in a decent, safe, and sanitary condition in conformity with the requirements of local housing codes and applicable regulations or guidelines of the Department of Housing and Urban Development. Management shall make all necessary repairs, alterations, and improvements to the dwelling unit with reasonable promptness at its own cost and expense, except as otherwise provided in this Section. If repairs of defects hazardous to life, health, and safety are not made or temporary alternative accommodations offered to the Tenant within seventy-two hours of Tenant's reporting same to Management, and if it was within Management's ability to correct the defect or obtain the correction thereof, then Tenant's rent shall abate during the entire period of the existence of such defect while he is residing in the unrepaired dwelling. Rent shall not abate if the Tenant rejects reasonable alternative temporary accommodation. (Emphasis added.)\\nOn its face, this provision of the lease clearly imposes a duty on the defendant to promptly notify the plaintiff of defects which exist in the dwelling unit. Similarly, it imposes a duty on the plaintiff to repair the reported defects with reasonable promptness.\\nThe testimony indicates, and I so find, that defects needing repair existed in the rented premises, that these defects occurred in March or April 1976, that they existed in the kitchen, and that they consisted of an improperly installed and leaking sink which caused the counter top and cabinet to rot and buckle, soaked the entire cabinet and stove area with water, spoiled foods, created foul odors and infestation of roaches, caused electrical shock to defendant's minor child, and continued unabated for one year because the cabinet needed to support the sink was not repaired in a timely manner, thereby making the kitchen indecent, unsafe, and unsanitary.\\nIn addition, I find from the evidence that notice of these defects was given by defendant to plaintiff through its assistant housing manager, as required by the lease. Plaintiff argues that no notice of these defects was received from defendant, but the Court accepts the testimony of plaintiff's assistant housing manager who corroborated defendant's testimony by stating that she was, in fact, told by defendant of the kitchen defects, although admitting that she did not turn the faucet on to see if the sink was leaking. The testimony is uncontradicted and the Court further finds that this notice was given to plaintiff in March or April 1976, during a regular inspection tour of the premises by the assistant housing manager. While plaintiff submitted sufficient documentary and testimonial evidence to establish to the Court's satisfaction that various other defects had been remedied and that prior unsuccessful attempts had been made to stabilize the sink, it is uncontradicted that plaintiff failed or refused to repair the kitchen cabinet which provided the basic support for the sink, variously claiming lack of notice or lack of funds for cabinet replacement. It is this failure to repair the kitchen cabinet that led to the continual leaking of the sink and the concomittant unhealthy conditions which resulted therefrom. Moreover, this defect continued unabated from March or April 1976 until March 22, 1977, when plaintiff, in the face of a hearing scheduled for April 1, 1977, in this case, finally responded to defendant's incessant pleas to replace the cabinets, which had led to defendant's withholding of her rent since September 1976. This long-delayed response coincidentally resulted in the immediate replacement of the kitchen cabinets, thereby effectively restoring the dwelling unit to a decent, safe and sanitary condition just prior to the hearing.\\nIn view of the one-year delay in repairing the defective cabinets and their related adverse effects, I conclude that plaintiff breached its duty to repair, as imposed by paragraph 6 of the lease, which required that repairs be done \\\"with reasonable promptness.\\\" In addition to breaching this provision, plaintiff has also violated its own repair policy, as established by uncontradicted testimony. Since that repair policy provides that even routine repairs should take no longer than fifteen days to complete, it is clear that plaintiff's failure to correct the serious defects in defendant's apartment for one year after due notice constituted a breach of duty of defendant.\\nIII.\\nHaving found that plaintiff breached its duty to make the required repairs in a timely manner, it must now be determined what remedy is available to defendant for that breach.\\nIt will be recalled that the lease provided that if the defects are hazardous to life, health and safety, and plaintiff failed to make timely repairs or provide other compensatory relief, defendant's rent would be abated during the entire period of the existence of the defect. Plaintiff has argued, and I agree, that under the circumstances of this case the defects enumerated herein are not hazardous to life, health and safety, and therefore total abatement of the unpaid rent cannot be justified. But the lease also provides for the repair by plaintiff of less serious defects which nevertheless result in indecent, unsafe, and unsanitary conditions. While not being \\\"hazardous\\\", such defects are also required to be repaired by plaintiff, and where as here, that duty is breached, reasonable partial abatement is the remedy, based upon an appropriate measure of damages.\\nWhat I find to be the most appropriate measure of damages is the determination of the difference between the fair rental value of the premises as warranted and its fair rental value in the indecent, unsafe, and unsanitary condition, as concluded herein. This measure of damages, computed on a monthly basis and multiplied by the number of months during which the defects existed, would result in a reasonable and fair sum to be credited against the gross claim of plaintiff, thereby resulting in an equitable partial abatement. Mease v. Fox, 200 N.W.2d 791, 796 (Iowa 1971); 2 R. Powell, The Law of Real Property, \\u00a7 225(2) (a), 232.3.\\nIn applying that measure of damages to this action, I find that defendant is entitled to a twenty-five percent (25%) abatement of monthly rent for the twelve months that the defects continued unabated during her occupancy. Since during that twelve month period (March or April 1976-March 22, 1977) defendant's rent was $84.50 per month, she will be entitled to a partial abatement of $21.13 per month, or a total partial abatement of $253.56 for the twelve months. This 25% partial abatement was determined by considering the rental of the defective kitchen to represent 15% of the monthly rent (1 room of 6% rooms, or approximately 15%), and adding to that 10% of the monthly rent for the seriousness of the defects which also adversely affected the defendant's use and enjoyment of the other rooms of the dwelling unit. These percentages, while admittedly estimates, reflect the court's attempt to utilize all available facts in approximating the fair and reasonable rental value of the premises during the existence of the defects. The Court is therefore satisfied, and concludes, that the fair rental value of the premises as warranted was reduced by 25 % while the defects existed.\\nThis conclusion is consistent with various formulas applied by other jurisdictions in fashioning a remedy for breach of the duty to repair by landlords. See Pantalis v. Archer, 384 N.Y.S.2d 678(1976) (failure of landlord to provide hot water resulted in an award of $50.00 by way of abatement of rent); Ridge Town House v. Dietz, 338 A.2d 21 (N.J. 1975) (abatement in rent of 15% monthly because of defect in leased premises); Morbett Realty Corp. v. Rosenshine, 323 N.Y.S.2d 363 (1971) (20% abatement of rent granted). See also, Javins v. First National Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970), cert. denied, 400 U.S. 925; Cooks v. Fowler, 459 F.2d 1269 (D.C. Cir. 1969).\\nIn accordance with the foregoing, plaintiff's gross rental claim of $1,010.50 will be reduced by the partial abatement of $253.56, thus leaving a net rental sum due plaintiff of $756.94.\\nIV.\\nThe one issue remaining to be decided is whether plaintiff's prayer for restitution of the premises should be granted. In view of my conclusion that defendant is entitled to partial abatement of rent because of plaintiff's breach of duty to repair the premises, the claim for restitution must be denied.\\nIn Javins v. First National Realty Corp., supra, the court addressed this issue and stated as follows:\\n. The jury may find that part of the tenant's rental obligation has been suspended but that part of the unpaid back rent is indeed owed to the landlord. In these circumstances, no judgment for possession should issue if the tenant agrees to pay the partial rent found to be due. If the tenant refuses to pay the partial amount, a judgment for possession may then be entered. 428 F.2d at 1083.\\nIn this case, defendant testified that she was prepared to pay whatever rent was found to be due and that she was holding her rental payments in escrow. Indeed, defendant has consistently admitted owing at least some portion of rent to plaintiff. Under these circumstances, and in view of the Court's vindication of defendant's claim for abatement of rent, coupled with the Court's determination that plaintiff breached its duty to defendant, no judgment of restitution of the premises will issue, except upon the failure of defendant to pay the adjusted rent as determined herein.\\nNothing in this memorandum should be construed to mean that a tenant has a right to withhold rent. However, the Court notes that had plaintiff implemented the grievance procedure as required by paragraph 10 of the lease, there may have been no need for defendant to withhold her rent.\\nTestimony established that the following Repair Policy was in effect by\\nPlaintiff at the time the defects existed:\\nTYPE COMPLETION TIME\\nEmergency . Immediately\\nUrgent.................................................................... One to eight hours\\nRoutine............................................................................ Up to 15 days\\nPreventive . Less frequently\\nSeveral options, without withholding rent, are available to tenants. Defendant may have elected to make the repairs herself and then set off the cost of repairs against her rental obligation. Defendant may also have abandoned the premises under the theory of constructive eviction despite the duration of the tenancy under the lease. However, defendant chose to withhold her rent at the risk of having a judgment for eviction issued against her. This risk still exists so long as the judgment in favor of plaintiff is not satisfied.\"}"
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+"{\"id\": \"1109937\", \"name\": \"SYLVIA ANETA HENRY, Plaintiff v. GOVERNMENT OF THE VIRGIN ISLANDS, Defendant\", \"name_abbreviation\": \"Henry v. Government of Virgin Islands\", \"decision_date\": \"1975-05-07\", \"docket_number\": \"Civil No. 322-1973\", \"first_page\": 727, \"last_page\": \"735\", \"citations\": \"11 V.I. 727\", \"volume\": \"11\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T19:57:02.516781+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SYLVIA ANETA HENRY, Plaintiff v. GOVERNMENT OF THE VIRGIN ISLANDS, Defendant\", \"head_matter\": \"SYLVIA ANETA HENRY, Plaintiff v. GOVERNMENT OF THE VIRGIN ISLANDS, Defendant\\nCivil No. 322-1973\\nDistrict Court of the Virgin Islands Div. of St. Croix\\nMay 7, 1975\\nRussell B. Johnson of counsel, Christiansted, St. Croix, V.I.\\nAttorney General Office, Assistant Attorney General, Curtis E. Tatar of counsel, Christiansted, St. Croix, V.I.\", \"word_count\": \"1888\", \"char_count\": \"11241\", \"text\": \"YOUNG, District Judge\\nMEMORANDUM OPINION AND JUDGMENT\\nI\\nBACKGROUND FACTS\\nThe liability portion of a bifurcated trial was held in this wrongful death action on April 21, 1975. Plaintiffs are the wife and children of Wrenford Henry, a thirty-year-old man who died at Richmond Penitentiary on the morning of September 10, 1972. Apprehended on September 6, 1972 during the commission of a larceny at a local store, decedent was found to have been an \\\"overstay alien\\\", who failed to depart the United States within sixty days after the termination of his last employment, as required by the Immigration Service. That same day, he was placed in Richmond Penitentiary pursuant to an order to show cause why he should not be deported.\\nIn the early morning of September 7, decedent became ill and was escorted by Correction Officers Merle and Lewis to the emergency room at the Charles Harwood Memorial Hospital. At approximately 2:45 a.m., he was examined by the doctor on duty, who diagnosed an upper respiratory infection with gastroenteritus, or an inflammation of the stomach and intestine. Henry was then administered a drug to suppress nausea and antibiotics and aspirin for the res piratory infection. Decedent was thereafter returned to the prison, and three days later, on September 10, was found dead in his cell.\\nIn their complaint, plaintiffs appear to have set forth claims sounding both in res ipsa loquitur and more traditional concepts of negligence. I will, therefore, attempt to evaluate the evidence presented at trial in the light of all legal theories which might conceivably find support in the record.\\nPursuant to a Memorandum Opinion and Order filed in this Court on January 13, 1975, the amendment to the Virgin Islands wrongful death statute (Act No. 3556 of the Tenth Legislature approved April 29, 1974) was held applicable to the instant action. Title 5, Section 76 of the Virgin Islands Code, as amended, reads in pertinent part:\\n\\\"When the death of a person is caused by the wrongful act, negligence, default, . of any person . . . and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person . . . shall be liable for damages....\\\" 5 V.I.C. \\u00a7 76(c) (1974).\\nFrom the foregoing provision, it is clear that plaintiff must establish a causal connection between the wrongful act of defendant and the death of the decedent. At trial, Dr. Glenn, St. Croix's Medical Examiner, testified that he conducted an autopsy of decedent Henry on September 12, 1972. The examination revealed that the body showed signs of malnutrition with a possible history of drug addiction and alcoholism. The only evidence of external trauma included a lesion on the lower lip of the decedent and a three-quarter-inch deep bruise on the back of the head; the head injury evinced no skull fracture but was accompanied by a hemorrhage throughout the brain. In his autopsy report, Dr. Glenn concluded that Henry died of unknown causes, because the head injury, ostensibly caused by either a fall or blow to the head, was not of such severity as would nor mally cause death. In response to a question hy the Court at trial, however, Dr. Glenn suggested that the head injury was the most probable cause of death.\\nII\\nRES IPSA LOQUITUR\\nSection 382D(1) of the Restatement of Torts (Second) sets forth the three essential requirements without which a res ipsa inference may not be drawn:\\n\\\"It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when\\n(a) the event is of a kind which ordinarily does not occur in the absence of negligence;\\n(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and\\n(c) the indicated negligence is within the scope of the defendant's duty to the plaintiff.\\\"\\nIt is fully recognized that the foregoing doctrine is based at least in part on the theory that the defendant who has allegedly caused the injury either knows the cause of the accident or has the best opportunity to ascertain it; that is, that the true cause of the accident is practically assessible to the defendant but inaccessible to the injured party. See, e.g., Augspurger v. Western Auto Supply Co., 134 N.W.2d 913, 195 (Iowa 1965). The policy appears to be particularly strong in a case in which the injured party was an inmate at the time of the injury and who by virtue of this status alone is held more or less incommunicado within the confines of the institution. Add to this the fact that Henry died as a result of his injury, and his survivors are even more handicapped in their ability to relate the circumstances surrounding the death.\\nOn the other hand, plaintiffs have failed to eliminate decedent's own conduct as a possible cause of the injury and subsequent death. Dr. Glenn's testimony that decedent's head wound may have been caused by either a blow to the back of the head or a fall leaves open the possibility that Henry, whose autopsy indicated possible symptoms of delirium tremens, might have indeed slipped or thrown himself against a hard object. \\\"Where the evidence fails to show a greater probability that the event was due to defendant's negligence than it was caused by [decedent's] own conduct, the inference of the defendant's responsibility cannot be drawn.\\\" Restatement of Torts (Second), \\u00a7 328D, comment i, at 163 (1965).\\nThe recent Third Circuit opinion in Smith v. Spina, 477 F.2d 1140 (3d Cir. 1973), aptly illustrates this point. In that case, appellant alleged that he had been in perfectly good health before he was taken into police custody, that he was beaten while in the custody of the police, and that the police did not provide reasonable explanation for the causes of plaintiff's injuries. In holding that the doctrine of res ipsa loquitur would not apply, the Court emphasized the defendant's assertion that it was the plaintiff's own violent kicking and thrashing which caused his fall on the steps of the stationhouse. Id. at 1146-47.\\nFrom the facts adduced at trial, it is impossible for this Court to conclude that it is more probable that the injury resulted from defendant's negligence than decedent's own actions. Having failed to eliminate decedent's own conduct as a possible cause of the injury, plaintiffs' res ipsa claim must fall.\\nIll\\nTRADITIONAL NEGLIGENCE\\nOn the subject of traditional negligence on the part of Richmond's prison officials, two possible theories emerge: (1) that, knowing of Henry's illness, the prison authorities failed to provide decedent with adequate medical treatment, and this failure resulted in his death; or (2) that they failed in their general duty to exercise reasonable and ordinary care for Henry's safety.\\nAs to the first assertion of negligence, there is no doubt that the officials at Richmond were aware of Henry's physical illness. Liability, however, cannot be based on this knowledge for at least two reasons. First, upon becoming aware that Henry was sick, the prison officials acted reasonably in taking the prisoner to the Charles Memorial Hospital. As reflected in the Emergency Room Record of September 7, 1972, Henry's symptoms were certainly not severe enough to put the authorities on notice that his life was in any way threatened thereby. Indeed, he was not admitted to the hospital, and his temperature and blood pressure were normal. Although Officers Merle and Lewis had to assist Henry in walking on the way to the hospital, decedent required no such assistance on the way back to Richmond.\\nThe only other evidence to appear in the record which might conceivably point to knowledge by the prison authorities that decedent required subsequent medical attention concerns the early morning hours of September 10, 1972. Two witnesses, former Richmond inmates housed at the institution during September, 1972, testified that sometime between 12:00 and 2:00 a.m., on September 10, they heard who they knew to be Wrenford Henry crying out for water and sounding as if he were in distress. This assertion was contradicted by the testimony of a number of guards who were on duty that evening, none of whom acknowledged hearing any such entreaties or cries from the vicinity of cell #28, where Henry was housed. Moreover, Officer Martin, the Assistant Supervisor of the 12:00 to 8:00 a.m. shift at Richmond on September 10, testified that sometime between 6:30 and 7:00 a.m. on that morning, he asked Wren-ford Henry if he wanted any breakfast, to which the pris oner answered in the negative. The officer noted that Henry did not appear to be injured or ill at that time.\\nEven assuming the fact that Henry's illness was effectively brought to the attention of the officers of the prison, there is no causative link between any neglect by the officers in the face of that knowledge and the death of Wren-ford Henry. For, his death most probably resulted from a head injury, rather than either a respiratory disfunction or other malady of which the prison authorities may have become aware.\\nThe final theory of liability to which plaintiffs allude focuses on a violation of the prison's general duty to the prisoner to keep him safe and to protect him from unnecessary harm. See, e.g., Smith v. Miller, 40 N.W.2d 597, 599 (Iowa 1950). With the cause of death in mind, the only possible sources of the head injury were either a fall or a blow to the back of the head. In the case of a fall, there is no liability. In the latter case of a blow to the head, most probably at the hands of another inmate, Section 820 of the Restatement of Torts (Second) sets forth the standard of liability in this jurisdiction. The courts which have cited and interpreted Section 320 have noted that although officers have a duty to protect their prisoners from injury, they are not insurers of the safety of their prisoners. There must be knowledge on the part of the officers that there is danger that such injuries will be inflicted, and they must be negligent in failing to prevent the injury. Harris v. State, 297 A.2d 561, 563 (N.J. 1972); Blakey v. Boos, 153 N.W.2d 305 (S.C. 1967), Restatement of Torts (Second) \\u00a7 230, comment d; see also Muniz v. United States, 280 F.Supp. 542, 547 (S.D.N.Y. 1968); Annot., 41 A.L.R.3d 1021, \\u00a7 5 at 1020. In the instant case, the record is devoid of any showing of knowledge on the part of any guard or prison official that any injuries might be intentionally inflicted upon decedent by another inmate, or any indication that they had good reason to anticipate danger thereof. Given this lack of proof, I cannot find liability in this case.\\nJUDGMENT\\nIn accordance with the foregoing Memorandum Opinion and the reasons set forth therein, it is hereby\\nORDERED, ADJUDGED and DECREED:\\nThat no liability be assessed against the Government of the Virgin Islands in favor of plaintiffs in the above styled action.\"}"
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+"{\"id\": \"1112107\", \"name\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. RONALD PARIS, Defendant; GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. KEITH BATTISTE, Defendant\", \"name_abbreviation\": \"Government of the Virgin Islands v. Paris\", \"decision_date\": \"1973-10-02\", \"docket_number\": \"Crim. No. 55-1973; Crim. No. 56-1973\", \"first_page\": 212, \"last_page\": \"218\", \"citations\": \"10 V.I. 212\", \"volume\": \"10\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T00:16:16.203906+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. RONALD PARIS, Defendant GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. KEITH BATTISTE, Defendant\", \"head_matter\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. RONALD PARIS, Defendant GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. KEITH BATTISTE, Defendant\\nCrim. No. 55-1973\\nCrim. No. 56-1973\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nOctober 2, 1973\\nAttorney General of the Virgin Islands, for plaintiff\\nMario Bryan, Esq., St. Thomas, V.I., for defendants\", \"word_count\": \"1914\", \"char_count\": \"11648\", \"text\": \"CHRISTIAN, Chief Judge\\nOPINION\\nBy Act No. 3383 passed February 1, 1973, and approved by the Chief Executive February 15, 1973, the Legislature of the Virgin Islands amended 14 V.I.C. \\u00a7 2221 by adding two new subsections, (15) and (16). It is with the latter that we are concerned. Section 2221(16) would punish as a vagrant,\\nWhoever\\nloiters or remains in or about any public building or facility, including a local or federal government building, a warehouse, place of business or worship, transportation facility, hotel or guesthouse, without apparent legitimate purpose or business therein and, in so doing, obstructs or interferes with the legitimate business of another person, or intentionally annoys or harasses such other person;\\nOn March 22, 1973, defendants Paris and Battiste were charged under the vagrancy statute set out above. Insofar as is here pertinent, the complaint as to each defendant, subscribed and sworn to, in each case, by a police officer before an Assistant Attorney General of the Virgin Islands, charged that defendants,\\nOn the 17th day of March, 1973, in St. Thomas, did, at about 2:30 p.m., in the vicinity of the main post office commit the crime of vagrancy in violation of 14 V.I.C. \\u00a7 2221(16) [amended].\\nIt is to be deduced from the transcript that the cases had been called and continued at least once. In any event, these cases finally came on for trial in the municipal court on March 13, 1973. On that date the court, on its own motion, without previous notice to the parties, without hearing and without granting an adjournment as requested by the prosecuting assistant attorney general so that he might prepare to defend the statute against the surprise constitutional challenge mounted by the court, and also apparently before arraigning all of the defendants, declared the law on its face \\\"constitutionally defective.\\\"\\nIn ruling that subsection (16) was a nullity, the court below relied wholly and solely on the decision of the United States Supreme Court in Coates et al. v. City of Cincinnati, 402 U.S. 611 (1971). In that case, the Supreme Court struck down an ordinance of that Ohio city as constitutionally infirm, being violative of the First and Fourteenth Amendments to the Constitution, for vagueness and overbreadth. In pertinent part, the ordinance invalidated in Coates declared,\\nIt shall be unlawful for three or more persons to assemble, except at a public meeting of citizens, on any of the sidewalks, street corners, vacant lots or mouth of alleys, and there conduct themselves in a manner annoying to persons passing by, or occupants of adjacent buildings.\\nAs I read and compare the Coates ordinance and the Virgin Islands enactment, I find myself unable to agree with the conclusion reached by the municipal court. Two guiding precepts, of which courts construing statutes should never lose sight, lead me to the opposite result. The first is that surgical precision cannot be achieved and should not be sought or expected in legislative draftmanship.\\nCondemned to the use of words, we can never expect mathematical certainty from our language (Marshal J. in Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)).\\nAs the justice pointed out, it is sufficient if the statute is marked by \\\"flexibility and reasonable breadth rather than meticulous specificity\\\". (Citation omitted.) Secondly, unless the invalidity of the statute is manifest by a standard at least as secure as beyond reasonable doubt:\\nA proper deference to the legislative plans of the government requires that such questions should be approached with cautious circumspection. State Ex Rel. Forcheimer v. LaBland, 108 Ohio State 41, 140 N.E. 491.\\nWith those two pillars as my starting point, I review both statutes for a brief comparative analysis. Summing up the shortcomings of the Cincinnati legislation, the Supreme Court said,\\nWe are thus relegated, at best, to the words of the ordinance itself. If three or more people meet together on a sidewalk or a street corner, they must conduct themselves so as not to annoy any police officer or other person who should happen to pass by. In our opinion this ordinance is unconstitutionally vague because it subjects the exerciser of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct.\\nConduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normar tive standard but rather in the sense that no standard of conduct is specified at all. As a result \\\"men of common knowledge must necessarily guess at its meaning\\\". Connally v. General Construction Company, 269 U.S. 385, 391 (1926).\\nAgain the high court pointed out,\\nBut the vice of the ordinance lies not alone in its violation of the due process standard of vagueness. The ordinance also violates constitutional rights of free assembly and association. Our decisions establish that mere public intolerance or animosity cannot be the basis for abridgement of these constitutional freedoms. (Citations omitted.)\\nThe teachings of Connally v. General Construction Company, supra, have lost none of their vitality by reason of the passage of time, and none would dispute its holdings that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, denies due process of law. As I read the local statute, however, none of the factors which compelled the Connally and Coates result are there present. In my view, subsection (16) can, without difficulty, be read as barring only the conduct which the legislature evidently deemed obnoxious. This statute is narrowly drawn and is particularly designed to proscribe specific unacceptable social conduct. This law does not purport to regulate conduct on streets and sidewalks. It is not aimed at speech or the right of assembly. By no semantic legerdemain can one claim that its language prohibits constitutionally protected activity.\\nThis law seeks to carry out compelling general interests in words that are commonly understood. In this territory,\\nWords and phrases shall be read with their context and shall be construed according to the common and approved usage of the English language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to their peculiar and appropriate meaning. 1 V.I.C. \\u00a7 42.\\nIn the light of the foregoing section, to loiter or remain, conveys the meaning of being aimlessly present, or, colloquially, \\\"hanging around\\\". None should be puzzled by what is a public building or facility and once the building is identified, the legitimate purpose or business which might call one in such building or facility becomes obvious. By way of example, one goes to church to indulge in some form of worship; to a post office for mail related activity; to a library to read; to a courthouse to file papers, read posted notices, participate in, or hear and observe, court proceedings. This statute does not punish for merely \\\"hanging around\\\" in such places, singly or in congregation, even though you are there without legitimate purpose. You must either obstruct or interfere with the legitimate business (bearing in mind the building or facility) of another. Questioning the specificity, in the criminal law, of words such as obstruct or interfere is but a mere cavil. Year in and year out our courts without problem deal with persons charged with obstructing police officers in the discharge of their duties, action which is condemned in 14 V.I.C. \\u00a7 1508. This court has never found the word \\\"interfere\\\" to suffer from vagueness when trying and punishing persons for violating 18 U.S.C. \\u00a7 111 if they are found to have interfered with any one of the several designated federal officers in the performance of their official function. It bears particular mention, incidentally, that the Supreme Court of the United States has upheld 18 U.S.C. \\u00a7 111 in all respects. This Virgin Islands statute goes beyond the cited examples. It inserts the element of intent (wilfulness). It does not seek to prohibit, as did the ordinance in Coates, conduct which the subjective sensibility of any passerby might find annoying. Annoyance and harassment become elements of the offense only if the actor intentionally annoys and harasses a specific person or persons. This heavy burden of proving intent the government has to bear.\\nIn sum then, if one goes to a public place for reasons other than the business connected therewith or at that place, and that person remains thereafter for some appreciable time, and while there obstructs or interferes with persons legitimately conducting their business at that place, or by intentional conduct annoys or harasses people there for lawful purposes, all to the extent that it reasonably appears that the actor's sole purpose at that public building or facility is to accomplish these anti-social deeds, and if the government proves all of this to the requisite standard of the criminal law, then that person is what the legislature deems a vagrant. Whoever would avoid being so characterized should refrain from doing the positive acts proscribed.\\nThis is not a case of a statute making \\\"a crime out of what under the Constitution cannot be a crime\\\" (402 U.S. at 616). It is truly to be lamented in this case that the government was not permitted the opportunity to make a record of the conduct found to be annoying and to have submitted its argument in an effort to uphold the legislation. Had that been done, whatever clauses of the statute might have been found to be vague in some degree, read together with the other language of the statute, might have saved it from condemnation. Obviously, even though a statute be in some respects imprecise, if in its other basic parts it does define an offense which gives adequate notice, the entire statute should not be hewn down.\\nFor all of the foregoing, I disagree with the conclusion of the municipal court. I conclude that 14 V.I.C. \\u00a7 2221(16) in no way entrenches on constitutionally protected rights. I find the rationale of Coates v. City of Cincinnati, supra, to be inapplicable and as a consequence, I uphold the validity of the statute.\\nIf after the remand that will follow, the government intends to go forward on these cases, the complaints must be redrafted. It will not suffice to charge that a defendant did \\\"in the vicinity of the main post office commit the crime of vagrancy in violation of 14 V.I.C. \\u00a7 2221(16) [amended].\\\" No person can prepare to defend himself against such an amorphous allegation. The complaint indeed suffers from vagueness and does indeed employ the broad sweep approach. This circumstance may well have caused the court to relate the obvious infirmity of the complaint to the wording of the statute, with the resulting finding of constitutional impermissibility. However, the statute should not be faulted for the careless draftmanship of a complaint which purports to be pitched in accordance with its terms.\"}"
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+"{\"id\": \"1112136\", \"name\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. BEAUMONT GEREAU, ISHMAEL LA BEET, WARREN BALLENTINE, MERAL SMITH, and RAPHAEL JOSEPH, Defendants\", \"name_abbreviation\": \"Government of the Virgin Islands v. Gereau\", \"decision_date\": \"1973-07-23\", \"docket_number\": \"Crim. No. 97-1972\", \"first_page\": 53, \"last_page\": \"117\", \"citations\": \"10 V.I. 53\", \"volume\": \"10\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T00:16:16.203906+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. BEAUMONT GEREAU, ISHMAEL LA BEET, WARREN BALLENTINE, MERAL SMITH, and RAPHAEL JOSEPH, Defendants\", \"head_matter\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. BEAUMONT GEREAU, ISHMAEL LA BEET, WARREN BALLENTINE, MERAL SMITH, and RAPHAEL JOSEPH, Defendants\\nCrim. No. 97-1972\\nDistrict Court of the Virgin Islands Div. of St. Croix\\nJuly 23, 1973\\nJulio Brady, Esq., United States Attorney, Christiansted, St. Croix, V.I., for plaintiff\\nMario N. DeChabert, Esq., Christiansted, St. Croix, V.I., for defendant Gereau\\nWilliam M. Kunstler, Esq., New York, N.Y., for defendant Gereau\\nRonald T. Mitchell, Esq., St. Thomas, Y.I., for defendant La Beet\\nChauncey Eskridge, Esq., Chicago, Illinois, for defendant La Beet\\nLeroy Mercer, Esq.,Christiansted, -St. Croix, Y.I., for de- \\u25a0 fendant Ballentine\\nMargaret L. Ratner, Esq., New York, N.Y., for defendant Ballentine\\nLeroy Mercer, Esq., Christiansted, St. Croix, V.I., for defendant Smith . \\u25a0\\nRonald T. Mitchell, Esq., St. Thomas, V.I., for defendant Joseph\", \"word_count\": \"20338\", \"char_count\": \"121871\", \"text\": \"YOUNG, Judge\\nOPINION ON MOTION TO SUPPRESS\\nThis matter came before the Court on the defendants' Motion to Dismiss or Suppress. The motion was filed December 20, 1972, on behalf of all defendants. It asks the Court to dismiss the information, or, in the alternative, to suppress any statements taken from the defendants and any tangible evidence obtained as a result thereof. By an Order dated March 9,1973,1 granted the defendants' application for an evidentiary hearing in connection with their motion. The hearing commenced April 16 and consumed twenty-one full court days (and 5,460 transcript pages of testimony). The present Opinion represents my conclusions from that hearing.\\nI. INTRODUCTION\\nThis is a prosecution for the mass murders, assaults, and robberies committed on September 6,1972, at the Fountain Valley Golf Course in St. Croix. The crime was reportedly committed by a number (5 to 7) of heavily armed young men wearing masks and army fatigues. The men entered the clubhouse area in the middle of the afternoon and at some point opened fire indiscriminately with a variety of weapons, including a .45 caliber submachine gun. Eight people were killed and four others wounded. The gunmen robbed some of the victims, apparently after they were shot. They also took the money from the snack bar cash register and the Sales Area cash drawer and then fled into the hills surrounding the golf course. By nightfall they had still not been apprehended despite intensive search. The police then directed their principal efforts toward a more systematic investigation of the crime. They were aided in this by the Federal Bureau of Investigation, whose agents began to arrive in St. Croix on the following day. A command post and headquarters for the enlarged force of law officers was set up in the Pro-shop of the golf course.\\nDefendants La Beet, Ballentine and Joseph became the immediate suspects. All three had been sought for sometime and had been in hiding, or at least had escaped the eye of the police, for several months. The police were aware that they would be difficult to locate directly. About thirty other young men, contemporaries and associates of the prime suspects, were therefore sought out and brought to Fountain Valley for questioning. These individuals were not considered suspects themselves but rather as possible leads for locating the missing trio. Defendants Smith and Gereau were among this group. Attention began to focus on Smith when, on the morning of his arrest, the police searched his room and discovered ammunition, a bandanna that appeared to be a mask, a Fountain Valley matchbook, and other items tending to link him with the crime. Attention focused on Gereau when the police learned that he had been seen in the company of the trio the night before the murders and that he had been seen leaving his father's house with \\\"a long gun.\\\" Both men were extensively questioned and ultimately made statements which implicated the remaining three defendants. La Beet, Ballentine and Joseph were finally located on September 12 and were also taken into custody.\\nDuring their investigation, the police accumulated a considerable body of evidence. This includes confessions from each of the defendants and a sizeable collection of weaponry and army clothing. Among the weapons is a .45 caliber machine gun. The defendants have now moved to suppress all evidence and have assigned a number of reasons for doing so. The reason most strongly pressed, and the one which I will examine first, is a claim that the police resorted to systematic tortures in order to obtain confessions from them. If this were so, the confessions would of course be inadmissible. Most of the tangible evidence, through a more or less complex investigative chain, would then become \\\"fruits of the poisonous tree\\\" and inadmissible as well.\\nAfter prolonged consideration, assisted by the excellent and (perhaps necessarily) lengthy briefs filed by both sides, I find myself unable to accept the claim that tortures were used against these defendants. Accordingly no evidence will be suppressed on this ground. On the other hand, however, I do believe that the police improperly questioned Smith and Joseph in the absence of an attorney. Any statements taken from these defendants will therefore be inadmissible at trial. For similar reasons, although confined to a single episode, any statements given by Gereau on September 14 will likewise be excluded. Finally, I will also suppress certain tangible evidence to which Joseph led the police; his assistance in this regard must be seen as a fruit of his earlier and improperly-obtained confession. All remaining evidence, however, will not be suppressed.\\nWith that, I shall turn first to the most important issue presented: the allegation that during the arrest and ques4 tioning of these defendants the police consistently resorted to torture, brutality, or otherwise coercive tactics.\\nII.' VARIOUS ACCOUNTS OF POLICE CONDUCT\\nThe brutality issue does not lend itself to a terse statement of each side's factual contentions. On the contrary, most of the four week suppression hearing was taken up with sharply conflicting accounts of almost every phase of the police investigation. This issue is being considered first because it lies at the foundation of many of the reasons which the defendants advance for suppressing evidence. They urge that not only were confessions coerced, and hence not admissible in evidence, but furthermore that such unlawful confessions were the basis for subsequent arrests and searches. While I have resolved in my mind what actually happened, the statement of my conclusion seems best deferred until the later sections in which I will examine the credibility of the witnesses. At this point 1 will merely relate the defendants' versions and then the Government's version of the facts.\\n1. Smith\\u2014 Smith was the first defendant to be arrested, being taken into custody just before dawn on September 7th, the morning after the murders. He claims that brutality began immediately, even before he reached the police headquarters at Fountain Valley for questioning. He was knocked to the ground as he emerged through a window of his room; he was kicked, banged with the police car. door and repeatedly threatened. Events took a still more serious turn after Smith was brought to Fountain Valley. He was tortured at intervals throughout the entire day, chiefly in a small storage room. These tortures included pistol whippings, electric shocks to the ears and genitals, and beatings with fists, blackjacks and the shock club. Police officers Hatcher and Hansen were apparently the chief tormentors. Similar tortures were inflicted on the following day, and were supplemented by a hanging at about noon. Smith claims he was taken to a tree near the putting green, jerked off the ground about twenty times in a fifteen minute period, and then returned for further questioning. It was not until the evening of the second day that he finally broke and made his first statement. Similar tortures preceded the additional confessions which he gave on the third day.\\nThe Government's report of these days is radically different. A large number of police and FBI officers testified as to this period, accounting for all the significant time which Smith spent in . custody. The arresting officers testified that the defendant was taken without incident to a waiting car. Thereafter, at Fountain Valley, he was questioned intermittently and without violence. Throughout the day, even after some incriminating evidence had been found in his room, he was still regarded as a lead to the primary suspects rather than as being himself a potential participant in the murders. Smith was taken to the Frederiksted jail for the night and was returned for more questioning the following morning. The interview began about 3:30 and ended \\u2014 after the local Chief of Detectives Ann Schrader assured Smith that his companions could not take reprisals \\u2014 when he signed a statement at 8:35 that evening. On the third morning Smith was told that Gereau had implicated him. He thereupon furnished two additional statements describing the crime in more detail. Throughout all of the sessions, the Government witnesses maintain, Smith was never in any way threatened or maltreated.\\n2. Gereau. \\u2014 Gereau was arrested a day after Smith, in the midmorning of September 8th. He was likewise taken to Fountain Valley and interrogated at intervals throughout the day. He made no statement that day, nor does he claim that any physical force was used against him. The only coercion he claims was psychological: the police told him that helicopters and ground troops would be called in to kill La Beet, Ballentine, and Joseph, and that only he could save them. The brutalities which Gereau alleges were confined to a brief period the next morning. He was then awakened by a blow with a machine gun, shocked on his genitals with an electric prod, and taken outside and repeatedly hanged from a tree until he almost passed out. He was then questioned later that morning and made a confession after being threatened with renewed hangings.\\nThe Government's account is again quite at variance with this. Its witnesses report that Gereau was seated on the putting green until midafternoon of the day of his arrest, along with a number of other young men who had been brought in for questioning. He was then examined between the hours of 3:00 and 7:30 by Sergeant Hansen for about half an hour and by three FBI agents thereafter. The four officers testified that he was cooperative, that he spoke freely of other incidents, and that no threat to use helicopters was made. Gereau spent the night in a room at Fountain Valley and was aroused the next morning by officers Hatcher and Hansen. Hansen said, \\\"It seems as if you got a lot on your chest; why don't you get it off?\\\" To which Gereau replied, \\\"Hansen, give me a couple of hours.\\\" The two policemen then left the room. Three FBI agents and Patrolman Hatcher returned about half an hour later and began their questioning. By 11:02 Gereau had given a signed statement of his participation in the murder-robbery. The interviewing law enforcement officers were unanimous in stating that the defendant was not mistreated at any point during this period.\\n3. La Beet. \\u2014 La Beet, Ballentine, and Joseph were finally arrested together on the early afternoon of September 12th. They were placed in separate cars and driven to Fountain Valley, where they arrived about 3:15. For the rest of the afternoon La Beet was shuttled among various rooms, alternately in the custody of the FBI and the local police, at intervals of approximately thirty minutes to an hour. The local police inflicted systematic tortures on him, while the FBI then questioned him without violence. The tortures included beatings, shocking, kicking, placing a plastic bag over his head, and dripping water down his nostrils until near-suffocation resulted. The more unusual incidents should also be mentioned. The first happened shortly after the defendant arrived at Fountain Valley. When Assistant Commissioner of Public Safety Anderson entered the room La Beet stood up and demanded to see his lawyer. In anger Anderson grabbed hini by the throat, choked him, pushed him down, and then left the room. The second incident occurred later that day. Sergeant Hansen drove La Beet up a dirt road and threatened to put a knife in his hand, shoot him, and make it look like an escape attempt. After an afternoon of such treatment La Beet confessed to participation in the crime. About 7 o'clock he was driven back to the scene of his arrest where, after further threats, he aided to some extent in locating a machine gun secreted in the outhouse.\\nThe Government's testimony tells of an altogether different strategy of interrogation. According to FBI witnesses three rooms at Fountain Valley were suitable for questioning a suspect. These were the mens' locker room, the ladies' locker room, and a small storeroom (the northwest storage room), all of which open off from the Sales Area at the Pro-shop. When the last three defendants were brought in on September 12th, one was taken to each room and they were kept in that room until questioning was completed. La Beet was taken to the ladies' locker room. Agent Patton entered the room about 3:25, began his interview a few minutes later, and pursued it continuously until 7:02. La Beet answered questions freely and made a full statement. Patton was with him continuously, ex-, cept for one eleven minute absence, and saw no brutality. A confrontation with Anderson did take place, but La Beet had stood up in a surly manner and the Commissioner merely pressed him back into his seat without excessive violence. When the interview ended the defendant was turned over to other officers to retrieve the machine gun whose location he had previously indicated. La Beet did this voluntarily. According to one agent no threats were made and no brutality was engaged in during the trip; and it appears that several agents were close enough to La Beet to have heard any threats that were made. The group then returned to Fountain Valley and remained there without incident until shortly after 10 p.m., when all three defendants were driven into town for presentment before me.\\n4. Ballentine. \\u2014 Ballentine claims that he was taken to the mens' locker room immediately upon his arrival at the golf course. Little was said or done for the next two hours. After about an hour and a half Hansen stepped in and indicated in a threatening manner that he would be back in half an hour. He was, and Ballentine was then taken to the northwest storage room and experienced the same sort of tortures that La Beet claims were inflicted on him. After about half an hour with the local police he was left with an FBI agent who then took, a statement from him. Ballentine was next taken outside to the Sales Area where he sat until 6 o'clock. At 6 and at 6:30, Hansen twice threatened him in. order to obtain information about a .250 Sav age, but Ballentine professed ignorance about the gun. Hansen then brought him a cot and he slept in the northwest storage room until about 10:30 p.m. when he was awakened to be brought before me for presentment.\\nThe Government's contrary account was presented by a number of the investigating officers, principally FBI agent Frechette. Frechette testified that Ballentine was taken directly to the mens' locker room, where he was interviewed from 3:21 until 4:30. During that period Ballentine never left the room and Hansen never entered it. The FBI agents then left for about two hours, during which time the defendant remained in custody of the local police. The agents remained just outside in the Sales Area, however, where they could have easily heard, but did not hear, the sounds of anyone being mistreated or beaten. In addition, a policeman who remained in the room with Ballentine testified that no brutality took place during that period. Two FBI agents returned at 6:23 and continued the interview until 9:12 p.m. At least one was present with Ballentine at all times and saw no ill-treatment. During this session the defendant voluntarily furnished the agents with a statement.\\n5. Joseph. \\u2014 Joseph claims that he was taken to the northwest storage room upon his arrival. An FBI agent tried to question him, but Joseph insisted on being put in contact with his lawyer. The agent then left the room and was replaced by essentially the same group of local policemen that the other defendants have named. This group subjected him to tortures of the same sort meted out to La Beet and Ballentine. After this he was taken across the Sales Area to the ladies' locker room for further questioning by FBI agents, at which time he gave two statements. Joseph also alleges three instances of brutality on the following morning before arrival of his court-appointed counsel. He was awakened with a blow from a gun butt delivered by Hatcher who wanted information as to the location of a .250 Savage. Hansen then coerced him into signing a statement which he had given the previous day. And finally, he was forced to guide the police to a site near Mahogany Road and threatened with death if he did not point out the place where certain evidence had been hidden.\\nThe Government's account of these days was presented principally by Special Agent Jones. Jones began his interview at about 3:30, but terminated it at 3:51 when Joseph indicated that he did not wish to proceed further without a lawyer. Jones left at that time to permit the local police to get some information from Joseph for their own records. He was gone for about an hour, but looked into the room at fifteen minute intervals to check on the activities therein. On those occasions he saw no water on the floor; nor any other signs of tortures; nor did Joseph complain to him. Jones stressed that the door was always opened promptly by the police inside whenever he knocked. One of the policemen there also testified that no mistreatment had occurred. Jones then reentered the room around 5 p.m. and continued the interview until about 10:30. He was present through that period except for a few brief occasions and neither saw nor heard any complaints of brutality. Jones returned to Fountain Valley about 7:45 the next morning. At that time Joseph indicated a willingness to lead the officers to the cache near Mahogany Road. Jones accompanied the defendant and others on this trip, and throughout it he observed no threats directed against him. Hatcher and Hansen similarly denied having participated in any brutality that day.\\nIII. EVALUATION OF THE BRUTALITY CLAIMS\\nWith these conflicting factual accounts thus before me, I must now attempt to cull out the truth. The decision on this issue is obviously important to the case. If the po lice did resort to brutality then information obtained in this manner would be inadmissible. Sims v. Georgia, 389 U.S. 404 (1967); Stein v. New York, 346 U.S. 156 (1953). I conclude, however, that no such violation of the defendants' rights occurred. The motion to suppress their statements on this ground will therefore be denied. In outlining my reasons for this decision, I will first discuss the inherent credibility or incredibility of the defendants' accounts. I will then examine the testimony of other witnesses called by the defendants to support their version of events.\\nA. INHERENT CREDIBILITY OF THE DEFENDANTS' ACCOUNTS\\n1. Smith. \\u2014 I am, for a number of reasons, unable to accept Smith's account of his interrogation. The most important and wide-sweeping reason is the relative credibility of the defendant and the various police officers who testified against him. I believe the officers were the more credible witnesses, and, moreover, that Smith was motivated by an obvious self-interest in presenting his account of police brutality. This judgment is bolstered by certain demonstrable falsities in his account, the most notable of which is his claim that the police hanged him from a tree near the putting green.\\nThe alleged hanging would have been, first of all, a highly implausible tactic under the circumstances. One would expect-that the police would keep any such torture \\u2014if they did indeed utilize it \\u2014 as secret as possible. Yet the tree which Smith pointed out is perhaps the most conspicuous one in the Pro-shop area. It stands in full view of the putting green, the parking lot, and the northerly end of the Pro-shop veranda.' Moreover, Smith claims the incident occurred about noon, when all these areas would have been crowded with, potential witnesses. There were fifteen to twenty policemen and FBI agents within sight of the putting green, and numerous spectators (including news reporters) in the parking lot. In addition, a sizeable number of young men from Frederiksted, including Gereau, were seated near the green at that time. I cannot believe that the police would have resorted to hanging under such public circumstances, or that none of the people seeing it would have reported the incident.\\nStill more conclusively, however, expert testimony indicated that the hanging would not have taken place. To resolve any doubts lingering in my mind I called a nurseryman and horticulturalist as the Court's witness. He examined the tree for any abrasions which would be consistent with a rope slung over a branch and used to hoist a man's weight. He testified quite positively that there were no such scars now, and, if the tree had been so used some nine months ago, that the burn marks would still be evident today. I therefore conclude that the hanging incident did not occur.\\nUltimately there is an alternative explanation for Smith's willingness to talk, which does not depend on police brutality and which is generally more plausible. Each of Smith's statements was made only after he was confronted with information which the police had in their possession, and in each he implicated himself only as far as that information seemed to make inevitable. By the time he gave his first statement on the 8th, the investigating officers had recovered evidence from 160 Grove Place (ammunition, a mask, and a Fountain Valley matchbook) which tended to link him with the murders. Smith then admitted that the group had stopped at his house after the killings, but denied any direct involvement himself. He made a fully incriminatory statement only on the 9th and after being told that Gereau had confessed, as indeed he had. I find this the more reasonable explanation for Smith's confessions. I cannot credit his testimony as to brutality and so I must find that there was none.\\n2. Gereau. \\u2014 Gereau's case is no less complicated than Smith's, but it may be treated more briefly here. Many of the considerations are the same. I cannot accept Gereau's credibility as a witness generally, or his account of being hanged in particular \\u2014 both for the reasons given in connection with the defendant Smith. There might appear to have been a particularly favorable opportunity for brutalizing Gereau, in that at the time of the alleged tortures he was concededly alone with the local police who may have borne a grudge against him. In disproof of this, however, I think it significant that the FBI agents who interviewed him later that morning testified that at no point did Gereau complain to them of any mistreatment.\\nOther differences between the two cases do not alter my conclusion. Gereau was unable to identify the specific tree from which he was hanged, but he did state that it was one of a small cluster just north of the putting green. The Court's nurseryman witness therefore examined all suitable branches in this group of trees and reported that none of them had been used for hanging. Another possible difference lies in Gereau's claim that he was hanged early on the morning of the 9th, at an hour when there would be fewer potential witnesses. There were still two FBI agents standing guard on the veranda, however, in a position from which the grove was fully within their view. They testified that no such incident took place. It was light at the time, moreover, and so there was a risk that additional onlookers might be present. Thus here as well the alleged time and place of the event adds to its implausibility. Even if the police decided to hang Gereau (as I find they did not), I cannot believe they would have selected so conspicuous a cluster of trees when there were denser woods close at hand.\\n3. La Beet, Ballentine and Joseph. \\u2014 These three defendants may be considered together. In brief, I am not persuaded by their accounts of police tortures. Five reasons lead me to this conclusion. The most important is that their versions are squarely contradicted by the reports of numerous agents of both the FBI and the Department of Public Safety. I find these agents the more credible witnesses, both from demeanor and from the detail with which they kept their transportation and interview logs. This judgment is bolstered by the fact that the defendants would have had a more immediate and compelling motivation to fabricate the story that they told.\\nSecondly, the defendants' version of the police conduct is hardly believable, in that it does not represent any intelligible (even if illegal) line of police inquiry. The rapid shuffling of defendants from room to room would not seem a sensible method of interrogation, since I would think it more effective to use patience and outwait a suspect. Moreover, the police would have been aware of the strong circumstantial evidence against these defendants, and so would be less motivated to jeopardize their entire case by illegally seeking merely cumulative statements. Indeed, the defendants' willingness to talk may be attributed to their awareness of the strength of this evidence, coupled perhaps with the nervous release of knowing that the long hunt for them was over.\\nThird, I am strongly influenced by the fact that the defendants did not at the time complain of ill-treatment to any of the responsible Government officials on the scene. If their stories are true, it might be understandable that they would not complain to the line law enforcement officers; But while at Fountain Valley the defendants also had opportunities to speak with administrative officials who could have taken corrective action. These officials included At-; torney General Tonkin, Assistant Attorney General Resr nick, and Assistant U.S. Attorney Brady; yet no effort was made to tell any of these officers of the alleged brutalities. Similarly, the defendants made no complaint to me when they were presented on the night of their arrest. This silence is all the more remarkable since, at the presentment, the Government made a special motion for permission to return and detain the prisoners at Fountain Valley rather than to lock them up, at that late hour, in Rich-, mond Penitentiary. If the defendants had actually been tortured at Fountain Valley, however, I believe that they would have vehemently insisted on being sent to Richmond instead. A willingness to make complaints known would be quite- in character for the defendants,, as. reading the transcript of this hearing will indicate; conversely, silence in the face of such brutalities would seem' out of character.\\nFourth,- I think it significant that neither La Beet nor, Ballentine signed the statement attributed to him. This is consistent, with a suspect agreeing to talk but refusing to sign.;anything, and.having.'both wishes respected'. It is less - .consistent with a hypothesis of police- torture, for officers willing to go to those lengths would probably have also insisted that the resulting documents be signed.\\nFinally, I note that the defendants showed no visible signs of rough handling. To be sure, some of the alleged tortures would leave no marks. But others surely would have. For instance, La Beet, Ballentine and Joseph claim that each of them were viciously beaten and kicked about the body. La Beet goes so far as to aver that two police officers jumped up and down on his chest, with both feet and full weight, while wearing combat boots. Ballentine claims that he was pulled around the floor by his testicles, apparently while his ankles were handcuffed. A doctor examined all three the next day, however, and found no swelling, bruises, or other external signs of injury. He prescribed only aspirin and a laxative. Yet I cannot believe that beatings of the sort described here would not have left some mark. Moreover, the three testified that they did not complain to me at presentment in part because they felt that their injuries were self-evident. Yet I observed them with some interest at the time and noted that they looked tired but nothing worse than that. At least I noticed nothing at all to suggest an inquiry into the possibility of mistreatment.\\nB. EVALUATION OF THE OTHER DEFENSE WITNESSES\\nAs is apparent from the preceding discussion, I believe that .the brutality claims of the five defendants bear all the earmarks of later fabrication. This conclusion is not altered by the testimony of the corroborating witnesses called by the defense, for the reasons which I will outline, below. The Weight and credibility of these corroborating witnesses is open to considerable question.\\n1. Anthony Powell. \\u2014 -If there was a star witness-for the defense it was Anthony Powell, a former policeman with the Department of Public Safety. Powell was on duty at Fountain Valley on September 12th, and claims to have seen La Beet tortured in much the same manner that the defendant claims. Powell's testimony is thus doubly important: if believed it would not only support La Beet's own case, but it would also bolster the claims of brutalization of all suspects. For four reasons, however, I cannot accept his version of events.\\nFirst, I would give little weight to Powell's testimony under the normal tests of credibility. His demeanor on the stand lacked sincerity and his account of the afternoon is squarely contradicted by what I consider to be less impeachable sources. On the one hand he is contradicted by certain impersonal causal laws. As was discussed above, for example, the beatings that he and La Beet described would have left marks that were not present here. And on the other hand, Powell is contradicted by the testimony of more credible witnesses. FBI Agents Patton and Jimerson accounted for the entire afternoon of the 12th (with a gap of eleven minutes) and testified that no mistreatment occurred. I do believe those statements.\\nPowell seems to have tailored his testimony to fit the defendants' needs in at least two instances. This may be seen by comparing his testimony in this hearing with the statement he gave the FBI on January 20 during the Justice Department's own investigation into rumors of brutality. The first instance relates to the episode when Commissioner Anderson appeared in the ladies' locker room. Powell's testimony here was that \\\". . . Commissioner Anderson grabbed him by the throat and started screaming after him and saying, T seen eight goddamn people dead out there. . .' and kept on choking him . I know he was being choked.\\\" This can be contrasted with Powell's mild prior statement, in which he related that Anderson first told La Beet to sit down. When La Beet did not comply, \\\"Anderson put both hands around his neck and forcibly made him sit down . This was done while Anderson was angry and with the object of making La Beet sit down. I do not think that this was done with the purpose of maltreating La Beet.\\\" The second instance involves La Beet's reaction when, at Fountain Valley, Powell was alone with him and able to tell him that one of the victims was a black man. In his FBI statement Powell quoted him as saying: \\\"I didn't know that there was a Brother hurt. I wouldn't want to hurt my Brother in that group or 1 wouldn't have been involved or an expression quite similar to that. These were his exact words. A.E.P.\\\" The words italicized above were lined out and initialed by Powell. In contrast, Powell's testimony in Court was that La Beet reacted merely by saying that \\\". . . he was sorry that the people were killed or something like that. . . that he [La Beet] hadn't committed any crime.\\\"\\nThird, Powell seems to have engaged in a certain dramatization in his description of the alleged torture sessions. He testified repeatedly that the door to the storage room was locked on these occasions. For example, he reported that shortly after Hansen entered, \\\"[t]hey locked the door, so I stayed in.\\\" Similarly, in his statement to the FBI, he said, \\\"Someone, I do not know who, locked the doors.\\\" The fact is that no one could have locked the door from the inside, since there is neither an inside lock nor a lever within the edge of the door. It can be locked only by a key from the outside. I would normally regard this variance as of little import, but Powell definitely emphasized a behind-locked-door activity, which I do not believe was possible.\\nFinally, at least one question mark must be set next to his description of the tortures themselves. Powell testified that he remained with La Beet at all times during the questioning in various rooms. In these circumstances we would expect him to have seen all of the tortures which La Beet claims to have received. Yet Powell said that he never saw La Beet treated with a wet towel or with a plastic bag.\\n2. Mary Mercer. \\u2014 Mary Mercer was another key defense witness. She was at Fountain Valley on the 8th and 12th of September in her capacity as an Assistant Attorney General. From her observations on those two days she testified as to several episodes which would strongly suggest that brutality had been used.\\nA major difficulty with her testimony as to events of the 8th, however, casts considerable doubt on her reliability as a witness. In her statement to the FBI last January she reported that she heard long cries coming from the mens' locker room which continued intermittently for a period of ten to fifteen minutes. Shortly afterwards some local policemen came out of the room with Rupert McIntosh, one of the friends of La Beet, Ballentine and Joseph who had been brought in as part of the effort to locate these suspects. He sat down and cried and appeared quite shaken. This same story was repeated in Mrs. Mercer's testimony in Court.\\nI cannot believe that this story is correct. McIntosh himself testified at another point in the hearing that he was never in the mens' locker room, or in the Pro-shop, on September 8th. He also stated that no one struck or mistreated him at Fountain Valley on that day. In this direct conflict of testimony I would have to believe McIntosh. He would of course know the truth of the matter, and he would have no motivation to shade his testimony in a direction that would tend to undercut claims of police brutality. Moreover, others sitting at the same operations table have not confirmed Mrs. Mercer's account.\\nSimilar difficulties arise with her testimony regarding the events of September 12th. She stated to the FBI that she was at the operations table in the Sales Area while La Beet, Ballentine, and Joseph were being questioned. She learned that the suspect in the mens' room was Joseph, the one in the ladies' room was Ballentine, and the one in the northwest storage room was La Beet. She then reported two instances of brutality. A policeman \\\"began taking water into the mens' room. During one of those trips, I heard [him] remark 'those guys sure are thirsty.' \\\" Shortly afterwards she heard a scream from the room. A second incident began when Hatcher received a telephone call indicating that the searchers at Hospital Street could not find the machine gun where La Beet had said it was hidden. Hatcher then went back to La Beet who was standing in the Sales Area and punched him in his side stating, \\\"You're a lying mother-fucker, it is not there, let me get you back inside.\\\" Mary Mercer repeated this testimony at the suppression hearing.\\nThere are several reasons why I cannot accept this account as accurate. In the first place, the discrepancies as to the events of the 8th raise problems of reliability in my mind. Moreover, neither the screams nor the striking of La Beet have been satisfactorily confirmed, despite the fact that there were many people present and the Pro-shop is built in an open manner which would permit sound to carry easily. Mrs. Mercer said she saw water being regularly carried into the mens' room, but this seems unlikely under any set of facts. There are two shower stalls and two wash basins there, and no need to carry water into the room. Her account more generally contradicts the times and locations of prisoners as set out in the FBI logs reviewed above, and so her testimony is in conflict with that of eight FBI agents. Finally, she apparently made no report of these events, at the time, to either her su periors or her co-workers. I would find this most incredible in a person holding as responsible a position as she did.\\n3. Lincoln Williams. \\u2014 Mr. Williams' testimony went to a more limited point and tended to substantiate only Smith's claim of ill-treatment. Williams had been asked to come to Fountain Valley and answer some questions, and was later released. While there he was in the mens' room with the defendant. He testified that Hatcher twice came in and took Smith out for questioning. When Smith returned he was crying and holding his side, which to Williams looked swollen and bruised. Williams did indicate that he knew Smith, whom he referred to as \\\"Meral.\\\" What diminishes the impact of his testimony in my mind, however, is more the fact that he comes as a midnight witness. He evidently had not reported his observations to anyone before. This is not to say that every eleventh hour witness lacks credibility, but the circumstances here cast a suspicious light on what he said. I give little weight to it.\\nk. The Minor Defense Witnesses. \\u2014 The defense also called a number of the young men, friends of the missing trio, who had been brought to Fountain Valley during the early days of the hunt for them. These witnesses included Rupert McIntosh, Wayne Payne, Bruno Archibald, and Edwin Joseph. Their testimony dealt primarily with brutality against themselves, although this would of course suggest that similar acts may have been directed against the defendants. I give their testimony little weight, however. In the first place these men are close friends of the defendants, and, more generally, they are simply not credible witnesses. A few more specific reasons may be given for approaching their testimony with skepticism. For one, Edwin Joseph states that he was hanged from a tree in the same grove that Gereau had indicated, and Wayne Payne claims to have witnessed the event. I disbelieve this story for the same reasons discussed in relation to the similar claims of Gereau and Smith. In addition, there is a special inconsistency in Payne's account. He says that Gereau (or possibly Smith, but this is less likely at that hour) also observed the hanging of Edwin Joseph; yet neither defendant mentioned this in his own testimony. Rupert McIntosh's testimony seems similarly unreliable, since it contradicts that which he had given in the Municipal Court in the \\\"guns and dynamite\\\" case, in which he is a co-defendant. His testimony here also contradicted, in material respects, a statement which he had given to an FBI agent last fall.\\n5. Joel Sacks. \\u2014 A final witness, the United States Attorney Joel Sacks, deserves mention at this point although he was called as a witness by the Government rather than by the defendants. Mr. Sacks testified to a conversation he had in October with Sergeant Eric Hansen, an officer who figures prominently in the defense allegations of police torture. According to Mr. Sacks, his understanding at the time was that Hansen was admitting to him that tortures had been used. Mr. Sacks was sufficiently certain of his understanding to set in motion the Justice Department's own investigation on this episode.\\nOn the stand in this case, however, Sergeant Hansen denied that he made such a statement and explained that he was only reporting what he had heard that another police officer was going to testify. Mr. Sacks testified that he might have misunderstood: the conversation was conducted in very low tones due to the presence of strangers in the next office. I find this explanation credible, not only from its own force but also from the fact that I have concluded, on the basis of independent evidence, that the prisoners were not mistreated. Moreover, Sergeant Hansen's use of language lends itself to such a misunderstanding. I noticed during his testimony that he will slip into the first-person when reporting what another is saying about him. Thus on page 4422 of the transcript the following passage appears:\\nDuring the time I was talking I said to Mr. Sacks, \\\"Yes, some police officer was saying that the FBI could not get them to talk because they didn't know them. And I told the FBI to leave the interrogation room and then [certain officers], and myself, squeezed them a little and defendant Joseph was the hardest one to crack. And I used plastic bags on them. . . .\\\" (Paragraphing omitted.)\\nDespite this suggestive wording, throughout his testimony Hansen emphasized that he had neither seen nor participated in any brutality. I find this testimony credible.\\n6. Statements Admitted by Stipulation. \\u2014 In addition to the witnesses who actually testified, the defendants also rely on a number of documents which were admitted by stipulation. These are statements of people who were present at Fountain Valley during the investigation and whose recollections were recorded by the FBI during the Justice Department's inquiry into the allegations of brutality. Several such statements mention the affiant seeing shock batons at the clubhouse. This would confirm that the police had an opportunity to use such tortures, but it does no more than that. The presence of these devices is not itself significant or, I think, particularly startling. Although not regular police issue, shock batons are privately owned by several officers. I would not be surprised to learn that many policemen carried their personal equipment during the manhunt of September 6-12; indeed, a number of unconventional weapons were pressed into service for that period. Carrying a shock baton might be a sensible precaution in case a hostile crowd was encountered. In any event, it is a long step from showing their possession to showing their use against manacled suspects; and in view of the more direct evidence against mistreatment I attach little significance to the affidavits.\\nIV. VALIDITY OF ARRESTS\\nWith the brutality issues thus resolved I may consider the remaining aspects of the police investigation in their customary sequence. The arrests of the defendants will be examined first. All five contend that they were taken into custody without probable cause, or in a manner otherwise improper. Their cases will be considered in chronological order. Briefly stated, however, I believe that all arrests were properly made.\\n1. Smith. \\u2014 Smith was taken into custody at his uncle's house, at 160 Estate Grove Place, just before dawn on September 7th. He contends that at the time the police had no probable cause to arrest him. I must disagree, however. Smith's uncle, James Tuitt, had phoned the police with information on two occasions the day before. This information amply justified an arrest on a charge of accessory after the fact for aiding fugitives from justice. Smith was therefore properly arrested on this ground.\\nThe fugitives in question were La Beet, Ballentine, and Joseph. An arrest warrant was outstanding against at least La Beet, on a charge unrelated to Fountain Valley, and the police had been greatly desirous of contacting the remaining two about a number of criminal matters. All three had been conspicuously unavailable for some time and were thought to be camping in the hills. Although as far as I know no legal determination of \\\"fugitivity\\\" has been made, and I do not imply one here, the police had probable cause to believe that a court would attribute this status to at least some of the men. By corollary, they had probable cause to arrest anyone who assisted them to remain in hiding.\\nTuitt's calls tended to show that both Smith and Gereau were aiding them in this manner. He phoned the police at 1:15 a.m. on the morning of the 6th to report that all five were at his house. Shortly afterward he saw them leave carrying two boxes and a long gun. As they crossed the lighted ball park across the street one box fell apart, revealing canned goods. The group then turned off the lights, gathered up the cans, and moved on. Tuitt next saw the five on the afternoon of the 6th, this time in the hills behind Grove Place and not far from Fountain Valley. Tuitt contacted the police a second time to report this sighting. About eight detectives were sent to look for the men, but they failed to find them and the shootings occurred at the golf course before the search group reported back to headquarters. Since La Beet, Ballentine, and Joseph were the immediate suspects in the murders, Tuitt's information acquired additional importance. He was therefore brought to Fountain Valley about 7:00 that evening and interviewed by the Chief of Detectives Ann Schrader. His observations were reduced to written form, signed, and became the basis for Smith's arrest early the next morning.\\nSmith argues, and correctly, that mere innocuous public consortium with criminals does not necessarily constitute a criminal act itself. United States v. DeRi, 332 U.S. 581, 593 (1948). But his activities here went beyond those of innocent association. Helping to carry large quantities of canned goods would be active assistance to persons who planned to remain in hiding. Moreover, the circumstances suggest that Smith was aware of the fugitive status of the trio. Carrying canned goods in the very early morning hours and shutting off the field lights to have the cover of darkness both indicate that the group considered secrecy important. In addition, past efforts to locate the trio had received widespread publicity of which Smith was likely to have been aware.\\nSmith advances one final argument. Even if the police had probable cause, under normal circumstances, to arrest him as an accessory, the arrest here was invalid because it was a mere pretext for interrogating him about the more serious crimes at Fountain Valley. See, e.g., United States v. Edmons, 432 F.2d 577 (2nd Cir. 1970). This argument is without merit, however, since Smith's arrest lacks the characteristics of those \\\"pretext arrests\\\" which have been found unlawful. In such cases the defendants were generally arrested after surveillance, in bad faith, on petty and discretionary charges, and solely as an excuse to obtain information on other matters. E.g., Green v. United States, 386 F.2d 953 (10th Cir. 1967) (vagrancy arrest); Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968) (traffic arrest). Here Smith was arrested after a citizen complaint, in good faith, on a serious and nondiscretionary charge of aiding and abetting fugitives, which charge did not come to the attention of the police during surveillance related to the primary crime. Such an arrest does not suffer from the severe dangers of abuse which mark arrests on more trivial grounds. Accord, Abel v. United States, 362 U.S. 217, 225-30 (1960). While Smith might not have been sought with such vigor had it not been for Fountain Valley, he could have been legitimately sought in any event.\\n2. Gereau. \\u2014 Gereau was initially arrested on the morning of September 8th, in Frederiksted at 46 Prince Street, by Officer Hodge. This arrest was apparently improper. Hodge is from St. Thomas and understood that a warrant for Gereau had been issued by the Municipal Court on that island. Gereau was taken into custody under this authority. As it happened, however, Hodge had only heard a St. Thomas judge state that a warrant would be issued. The warrant was not actually signed until September 8 \\u2014the day of Gereau's arrest \\u2014 and the record is cloudy as to whether it was signed before or after the arrest itself. I am unwilling to assume from that cloudy record that it was signed before the arrest, particularly since the Government failed to produce the witnesses who could have conclusively established these facts. While Officer Hodge's initiative would have been commendable in most circumstances, I must find, and I so ruled during the hearing, that here there was a warrantless arrest.\\nOf course, mere knowledge that a judge has determined to issue a warrant in the near future might itself constitute probable cause. But even with probable cause, a warrant-less arrest may be made only for certain categories of crimes. In the Virgin Islands, unless the offense is committed in the presence of the officer, a warrantless arrest may be made only for a felony. 5 V.I.C. \\u00a7 3562. In this instance, however, Gereau was not charged with a felony. The underlying charge on which the warrant finally issued was for simple assault and battery, a misdemeanor under 14 V.I.C. \\u00a7 299. Even if we assume that Gereau was also wanted for his failure to appear in Court on this charge, that contempt would likewise be only a misdemeanor under 14 V.I.C. \\u00a7 585. Since these offenses will not support a warrantless arrest, I hold that Gereau was improperly taken into custody on the morning of September 8th.\\nIt does not follow, however, that Gereau was never properly arrested or that his statements were taken during a period of illegal detention. As soon as information of Tuitt's statement reached the officers holding Gereau they had adequate legal grounds for his continued detention. Tuitt's statement implicated him as an accessory after the fact to the same degree as Smith. Gereau may therefore be considered as having been validly \\\"rearrested\\\" at the time this information became available. The law in general is admittedly and quite properly hostile to first arresting a suspect and subsequently developing information constituting \\\"probable cause\\\" for his detention. E.g., Rios v. United States, 364 U.S. 253, 261-62 (1960). But I believe such cases are distinguishable. The arresting officers here did not use the post-arrest period to uncover evidence justifying their original action. Instead, new and entirely different grounds were acquired independently of Gereau's arrest, grounds based solely on information in police hands before that arrest and thus in no sense \\\"fruits\\\" of any impropriety connected with it. The short period of time between Gereau's arrest and the acquisition of independent probable cause reflects not the kind of reprehensible police conduct which exclusionary rules combat, but rather, under the confused circumstances of the day, only the time necessary for information within various units of the police department to be exchanged and coordi nated. A number of cases therefore indicate that the invalidity vel non of a first arrest does not affect the validity of a second arrest based on independently acquired probable cause. See Brown v. United States, 365 F.2d 976, 979 (D.C. Cir. 1966) (Burger, J.); Klingler v. United States, 409 F.2d 299 (8th Cir. 1969), cert. denied, 396 U.S. 859 (1970); Feguer v. United States, 302 F.2d 214, 245-48 (8th Cir.) (Blackman, J.), cert. denied, 371 U.S. 872 (1962); Betancourt v. State, 224 So.2d 378 (Dist.Ct. App. Fla. 1969); Carter v. State, 236 Md. 450, 204 A.2d 322, 323 (Ct. App. 1964); State v. Potter, 3 Conn. Cir. 41, 207 A.2d 75 (1964).\\nThe record does not reveal whether the police ever formally told Gereau of the new charges against him, but for three reasons I do not believe this is material. First, informing an arrestee of the charges seems best understood as affecting his right to resist rather than as being a precondition to a valid arrest. Second, from the progress of his interrogation, Gereau was in fact aware of why the police were holding him, if only in an informal way. And thirdly, there is considerable precedent to the effect that whether or not a defendant is told of the cause for his arrest is not controlling \\u2014 custody plus probable cause are themselves sufficient to validate an arrest. See Brown v. United States, supra, at 979; Bailey v. United States, 389 F.2d 305 (D.C. Cir. 1967); United States v. Hensley, 374 F.2d 341 (6th Cir. 1967), cert. denied, 388 U.S. 923 (1967); Barnett v. United States, 384 F.2d 848 (5th Cir. 1967); Reed v. United States, 401 F.2d 756, 761 (8th Cir. 1968), cert. denied, 394 U.S. 1021 (1969). I understand the law of the Virgin Islands to follow this rule. See, e.g., Wilson v. Porter, 361 F.2d 412, 416 (9th Cir. 1966) (state law determines when an arrest is made). I therefore hold that Gereau was properly in custody when he gave his first statement on September 9th.\\nS. La Beet, Ballentine and Joseph. \\u2014 These three defendants were arrested under warrants charging them with the Fountain Valley murders. The defendants urge that these warrants were tainted because they were based on confessions improperly obtained from Smith and Gereau. As will be discussed below, this contention is correct as to Smith but not as to Gereau. The latter's statements alone, however, are sufficient support for the warrants.\\nQuite apart from the warrants, moreover, the police may have had probable cause to arrest the three for this crime. They had been seen with a gun the night before and in the vicinity of Fountain Valley shortly before the incident occurred. Most importantly, an inspection of the scene indicated that an automatic weapon had been used. The police had been informed for some time before that La Beet had a machine gun in his possession. To judge whether these leads rose to the level of probable cause, however, I would desire additional information about the source and credibility of these last reports.\\nV. SEARCHES AND SEIZURES\\nMany searches and seizures were carried out during the investigation of this crime. Of the ones which are relevant here, most were conducted on the premises where the various defendants were arrested and shortly after their arrests. The defendants have challenged the validity of all these searches. I will consider their contentions chronologically here. To anticipate, however, I believe that the searches were reasonable and valid. Accordingly, no evidence will be suppressed on this ground.\\n1. Protective Search at Grove Place. \\u2014 Just after Smith's arrest outside 160 Grove Place the arresting officers briefly entered his room. Although the policemen did not conduct a search for hidden evidence they did notice in plain view a golf ball, an envelope with letter enclosed addressed to Warren Ballentine, and a note without names of the author or addressee requesting camp supplies, gun oil and shotgun ammunition. These items were seized. The permissibility of this seizure will turn on the validity of the underlying search, which the defendants robustly challenge. It must be initially conceded, as the defendants assert, that the search cannot be justified as incident to Smith's arrest. Vale v. Louisiana, 399 U.S. 30, 33-34 (1970); Chimel v. California, 395 U.S. 752 (1969). Under the special circumstances present here, however, there is ample independent justification for the officers' entry.\\nThe police officers described the search as one for La Beet, Ballentine and Joseph; and for this purpose it was permissible. The officers had good reason to suspect that these three men might be inside. All five of the present defendants had been reported at the building the previous night, and Ballentine was known to be a sometime-resident there. The three were already strong suspects in the Fountain Valley murders and were therefore presumed to be heavily armed and dangerous. For two reasons their possible presence in the building created \\\"exigent circumstances,\\\" Coolidge v. New Hampshire, 403 U.S. 443, 471 (1971), which would justify an immediate warrantless search for them.\\nFirst, the officers' own safety had to be considered. They certainly were not required to remain outside, as possible targets for any gunmen within, while a search warrant was obtained. Warden v. Hayden, 387 U.S. 294, 298-99 (1967) (\\\"The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others\\\"). Nor was there a reasonable alternative to an immediate cursory search. The police should not be expected simply to leave and allow the possible occupants to escape. Thus in United States v. Holiday, 457 F.2d 912, 914 (3d Cir. 1972), a warrantless search of a house from which armed men had previously fled, and which \\\"officers had no way of knowing . . . was empty,\\\" was adjudged \\\"imperative and lawful.\\\" Accord, Kirkpatrick v. Cox, 321 F.Supp. 284, 286 (D.Va. 1971) (warrantless search of motel room for co-suspects valid even though not incident to defendant's arrest).\\nSecondly, the officers were justified in assuring themselves that the house was unoccupied in order to alleviate the danger that evidence would be removed or destroyed. True, in Coolidge v. New Hampshire, supra, at 460-61, the Supreme Court found that the guarding of the defendant's wife and premises pending a search warrant was sufficient to nullify any threat of evidentiary destruction. Three men with a machine gun, however, posed a far graver and more immediate threat to any evidence than did Mrs. Coolidge. The only way to parry this threat was an immediate warrantless search of 160 Grove Place for the co-suspects. Cf., e.g., Schmerber v. California, 384 U.S. 757, 770-71 (1966); Chambers v. Monroney, 399 U.S. 42, 51 (1970).\\nNeedless to say, once such a search is held to be justified, the objects inadvertently found by the police during their cursory sweep for La Beet, Ballentine and Joseph are admissible under the \\\"plain view\\\" doctrine. Harris v. United States, 390 U.S. 234 (1968).\\n2. Consent Search at (Grove Place. \\u2014 A second warrant-less search of 160 Grove Place occurred some two hours after Smith's arrest. At that time the officers asked Tuitt whether he would consent to a search of the northern section of the house. He signed a written consent form and removed the nail from the door to let them in. Restricting their search to Smith's room, the officers found a ban danna with eye and nose holes, bullets, and a Fountain Valley matchbook.\\nIt is firmly established that consent by one with actual authority validates a warrantless search. E.g., Schneckloth v. Bustamonte, 41 U.S.L.W. 4726 (May 29, 1973) (\\\"the community has a real interest in encouraging consent\\\"). On the other hand, the Supreme Court has frowned upon over-extensions of this exemption from the warrant requirement. E.g., Stoner v. California, 376 U.S. 483 (1964) (doctrine of \\\"apparent authority\\\" cannot justify search of room on consent of hotel clerk). In the present case, the defense has vigorously contended that Tuitt was not the legal owner of the property and had no authority to consent to a search of Smith's room.\\nI do not believe, however, that a precise ascertainment of legal title will be necessary. While Tuitt's exact legal interest is disputed, I find his quality of occupancy \\u2014 as compared to Smith's \\u2014 is unquestionably sufficient to create actual authority to consent. At minimum Tuitt possessed a 1/3 legal interest in 160 Grove Place. The 1972 tax assessment was sent in his name. He had himself constructed the southerly portion of the house. The police knew he resided at that address and believed that he was the owner. Smith, by contrast, did not have the quality of occupancy necessary to render ineffectual Tuitt's consent. He was neither owner nor tenant. Nor was 160 Grove Place his permanent residence: while Smith had lived there off and on for one year, in documents before this Court he repeatedly noted his place of residence as Plot No. 281 Es tate Grove Place. Nor did he any longer even have Tuitt's permission to stay at 160. Earlier in the week Tuitt had treated him as a trespasser, locked the door to the room where he was staying, and called the police. Considering all of these factors, I hold that Tuitt had full authority to consent to a search of the room where Smith had been staying.\\nS. Protective Search at 527 Hospital Street.\\u2014 Immediately following the arrests of La Beet, Ballentine and Joseph in the doorway of 527 Hospital Street, officers conducted a protective sweep of the premises. This warrantless search was necessary for much the same reasons as justified the search following Smith's arrest. The officers at this time had outstanding arrest warrants for \\\"Sanchez\\\" and \\\"Pepe,\\\" thought to be additional participants in the murders, who they might reasonably fear remained in one of the buildings on the premises. Further, La Beet indicated to the officers that at least one weapon had been left inside. Therefore, to safeguard themselves, prevent the escape of suspects, and forestall the destruction of evidence, it was reasonable for the officers to enter. See Warden v. Hayden, 387 U.S. 294 (1967); United States v. Kee Ming Hsu, 424 F.2d 1286 (2d Cir. 1970). The protective search was suitably cursory and upturned only evidence in plain view. 1 hold it to have been lawful.\\nThe defendants further claim that the search was illegal because the warrants for \\\"Sanchez\\\" and \\\"Pepe\\\" were invalid. They urge that these names constitute insufficiently precise identification for a proper warrant. This contention is puzzling, since the technical validity of these documents does not affect the reasonableness of the officers' concern that other armed persons might be present. Gereau had implicated the two named Puerto Ricans to the same extent as the remaining suspects, and the survivors of Fountain Valley indicated that the number of gunmen may have been as high as seven. The officers' concern was legitimate so long as they believed this underlying information on which the warrants were based.\\n4. Warrant Search of 527 Hospital Street. \\u2014 Some two hours after the arrest of La Beet, Ballentine and Joseph, a search warrant was issued supported by affidavits establishing probable cause. The warrant covered the \\\"premises\\\" at 527 Hospital Street. In the course of the ensuing search a machine gun was found in an outhouse behind one of the buildings. The defendants urge that this weapon be suppressed, with their main contention apparently being that the outhouse is not covered by the warrant. They rely primarily on Rising Sun Brewing Co. v. United States, 55 F.2d 827 (3d Cir. 1932) (search warrant does not cover premises across the street). See also United States v. Kaye, 432 F.2d 647 (D.C. Cir. 1970) (search of apartment with different address and entry than store below unlawful).\\nI believe that the defendants are here indeed clutching at straws. Unlike Rising Sun and Kaye, there can be no doubt that an outhouse is part of the premises described in the warrant. See United States v. Long, 449 F.2d 288 (8th Cir.) cert. denied, 405 U.S. 974 (1972) (outside trash barrel part of premises); United States v. Meyer, 417 F.2d 1020 (8th Cir. 1969) (\\\"premises\\\" construed to mean land and all buildings thereon); cf. United States ex rel. Stoner v. Myers, 329 F.2d 280 (3d Cir. 1964) (pile of concrete particles and coins near back porch). Whether or not under the same roof, toilet facilities are part and parcel of any living place. To require them to be independently described would be an absurd technicality. Further, the officers were in no way conducting a general exploratory sweep of an area. An automatic weapon was known to have been used in the robbery-murders and was covered by the warrant; when it failed to turn up within the buildings, it was reasonable to concentrate a search for it on the rest of the premises.\\nEven if warrants generally should not be construed to include outbuildings, the warrant here would still reach the outhouse on the facts of the present case. The judge who issued the warrant did so while standing on Hospital Street in front of the property. The records of that proceeding suggest that the premises to be searched were indicated with a wave of the arm. I believe this shows a desire on the part of the police to search comprehensively within the indicated area, and I believe that this warrant must be construed in light of these facts surrounding its origin.\\nVI. MIRANDA ISSUES\\nThere is no dispute that all defendants received timely Miranda warnings prior to confessing. Rather they contend either that they were denied counsel after requesting it, or that they were questioned improperly without their counsel present. The defendants will be considered individually.\\n1. Smith. \\u2014 Smith was questioned for four days before being allowed to contact an attorney. While his own testimony of repeated requests to call his lawyer is unsupported, there exists independent evidence that his rights were otherwise abused. Brought before Judge Marsh on September 7th, Smith in answer to the question, \\\"Do you have a lawyer,\\\" replied in the affirmative. Assistant Attorney General Resnick testified that on the 8th Smith inquired about an attorney. A full confession was not elicited until the 9th. I need not probe the evidence further; for me the above is sufficient to show Smith's constitutional entitlement to have counsel during interrogation was denied and that no intelligent waiver of rights was made. Miranda v. Arizona, 384 U.S. 436, 470-71, 475 (1966). While Smith may not at first have clearly articulated his desire for a lawyer, his wishes were made sufficiently clear at the time of his colloquy with Judge Marsh. Resnick's testimony confirms that Smith indeed desired counsel. After each of these occasions, I believe, the Government had an obligation to either procure a lawyer or else terminate the questioning. A knowing waiver certainly cannot be affirmatively found, and his statements will therefore be suppressed.\\n2. Joseph. \\u2014 Joseph testified that after being read his rights by an FBI agent he refused to sign the waiver form and told the agent he wanted to see his attorney. The agent's testimony and FBI records confirm this. Thereupon Joseph was left with local authorities who questioned him for over an hour. The agent then returned and ques tioned him for five and one-half hours. I find such procedure an obvious violation of Miranda. Joseph's demand for a lawyer was unequivocal and corroborated by the FBI itself. His statements must likewise be suppressed.\\n3. La Beet. \\u2014 La Beet claims that upon his arrival at Fountain Valley he demanded to be put in contact with his lawyer. The only corroboration comes from defense witness Powell, whose testimony I have already discounted. In opposition the Government has offered considerable testimony that La Beet made no request for an attorney. I cannot believe La Beet's account here, principally because I have found his relation of other matters to be untrustworthy. Moreover, had a request for a lawyer been made I believe this fact would have been recorded as it was for Joseph. I find, therefore, that La Beet made no request to speak with an attorney prior to questioning.\\nFurther, I find that the Government has carried its \\\"heavy burden\\\" of showing that La Beet knowingly and intelligently waived his right to counsel during interrogation. Miranda v. Arizona, supra, at 475. La Beet was read the Miranda warnings immediately after his arrest, again on the way to Fountain Valley, and again when he arrived. He then read the waiver form to himself, indicated that he understood it, but did not sign. He did answer questions, however, confessing that afternoon to his participation in the robbery-murders. I have found there was no compulsion by brutality. There was no lengthy incommunicado detention. La Beet's requests for drink, cigarettes, and use of a toilet were met. Nor was La Beet mentally intimidated or was his will overborne. He is twenty-five years old, has a 10th grade education, and has served in the military. I have personally observed that he is intelligent and articulate. In sum, I find his admissions were the result of his voluntary choice to forego the benefit of counsel.\\n4. Ballentine. \\u2014 As with La Beet, I give no weight to Ballentine's claim that he requested a lawyer due to his demonstrated untruthfulness. I find that no request for a lawyer was made by him and, further, that he knowingly and intelligently waived his right to counsel. Ballentine was advised of his rights at the arrest scene, en route to Fountain Valley, and again upon arrival. Some initial background questioning ensued. At 6:20 p.m., he was again advised of his rights by FBI agents. He told the agents that he understood, but that he did not wish to sign the waiver form. But he also said he would answer questions, which he did. During this interview Ballentine's requests for food and drink were satisfied and no coercion was applied. By 8:15 he had admitted his participation in the robbery-murders. Under such circumstances I do not hesitate to hold that he voluntarily waived his right to counsel during the interview.\\n5. Gereau. \\u2014 Gereau was informally questioned after his arrest on the 8th. The evidence showed that he received his advice of rights, read the waiver form, but declined to sign it. Within an hour he admitted aiding the fugitives, La Beet, Ballentine and Joseph. He concedes that no compulsion was exercised upon him during this interview. His requests for food and drink were met, and the interrogation ceased when he indicated after three and one-half hours that he was sleepy. Gereau is a mature individual of normal intelligence with an 11th grade education. I find a valid waiver of his rights to counsel on the 8th.\\nAfter a night's sleep Gereau was reinterviewed at 7:30 a.m. True, the period of incommunicado detention had by then lengthened to a point where serious doubts as to vol untary waiver might often be raised, Miranda v. Arizona, supra, at 476. I do not feel such doubts under the particular circumstances here, however. Gereau was again advised of his rights in the morning and a lengthy breakfast was permitted. The periods of actual questioning were not excessive. Gereau does not claim that at any time he requested an attorney. I therefore find that he continued the interview voluntarily on the morning of the 9th, and that his waiver of his rights was knowing and intelligent.\\nA different conclusion must be reached, however, with regard to a further interview of Gereau conducted on September 14 without an attorney present and without Miranda warnings. On September 9th, Judge Marsh had appointed counsel to represent him. A serious question thus arises as to the propriety of law officers interviewing detainees without contacting their attorneys. See United States v. Smith, 379 F.2d 628 (7th Cir. 1967), cert. denied, 389 U.S. 933 (1967). Indeed, at the end of the interview Gereau indicated that he wished to consult his attorney before showing officers the location of various evidence alluded to in the questioning. Thus it seems likely that Gereau did not affirmatively wish to waive his right to the presence of his attorney at this session. If he had been advised of his rights beforehand, he might well have insisted that counsel be present at all times. I will therefore suppress his statements made on that day.\\nVII. DELAY IN PRESENTMENT\\nFinally, although the confessions of Gereau, La Beet and Ballentine have not been suppressed on any of the previous grounds, these defendants have also sought to exclude them under an alternative theory. This is for violation of Rule 5(a) of the Federal Rules of Criminal Procedure, which provides that an arrestee shall be brought before the nearest available magistrate \\\"without unnecessary delay.\\\" This rule contemplates that a defendant should be judicially informed of his rights, given court appointed counsel where necessary, and admitted to bail where appropriate \\u2014 all at the earliest practical moment. The rule is premised on the fear that a defendant, if he is closeted with the police for a long period immediately after his arrest, may be overborne into giving damaging statements. See Mallory v. United States, 354 U.S. 449, 454-55 (1957); McNabb v. United States, 318 U.S. 332 (1943); 1 Wright, Federal Practice & Procedure \\u00a7 72. Statements in these circumstances may not be demonstrably \\\"involuntary,\\\" yet they are still at odds with our accusatorial scheme of criminal justice. Because erosion of this scheme would be so subtle the rule has been made a prophylactic one. Any statement taken during a period of \\\"unnecessary\\\" delay is to be excluded from evidence. Id.\\nAt first impression the defendants seem to have a strong argument under the McNabb-Mallory rule. There was a substantial interval between the arrest and presentment of each defendant. This interval was some eight and a quarter hours for La Beet and Ballentine, and some thirty-two hours for Gereau. Delays far shorter than these have been found unreasonable and have resulted in suppression of any confessions that the police had obtained. See, e.g., 18 U.S.C.A. Rule 5, nn. 53, 60.\\nNonetheless, on the facts of the present case I hold that these delays were not excessive. Rule 5 does not establish a bright-line test by specifying a particular time within which the defendant must be brought before a judge. It instead acknowledges the complexity of law enforcement by prohibiting only \\\"unnecessary\\\" delay, thus establishing, within limits, a \\\"totality of the circumstances\\\" test. In applying such a test here I am mindful that judicial construction should advance the underlying purpose of a rule; but it should do no more, and the rule should not be construed to reach further than its purpose and thus bring about the pointless exclusion of evidence. The purpose of Rule 5, as I understand it, may be formulated in two ways. It seeks to avoid delays that are not caused by compelling external circumstances; and it seeks to avoid delays which may be used in derogation of the defendant's rights. I believe that neither formulation of its purpose was jeopardized in this case. There was an important motivation for the delays here, in that an early statement could lead to the apprehension of other suspects who were still at large and apt to commit additional crimes. And the delays here were not in derogation of the defendant's rights, since by agreeing to talk with the police after receiving Miranda warnings the defendants had waived having prompt judicial advice of these same rights and the prompt presence of counsel. I will discuss these two considerations in that order.\\nCompelling circumstances may make a lengthy delay nonetheless a necessary one. The most obvious example is when a magistrate is unavailable at the moment. See, e.g., United States v. Brown, 459 F.2d 319 (5th Cir. 1971). But other circumstances are imaginable, and many cases contain dicta to the effect that the purpose or justification for the delay must be evaluated on a case-by-case basis. See id. at 324, Frazier v. United States, 419 F.2d 1161, 1165 (D.C. Cir. 1969); United States v. Hamilton, 409 F.2d 404, 406 (7th Cir. 1969). The police had a sufficient justification for delay here, since at the time of each delay they believed that additional killers were still at large. The possibility existed that Fountain Valley would be just the first of a number of incidents. Even if not, by this point the remaining participants may have been desperate men capable of committing any crime in order to effect their escape from the island. Any time saved in taking a statement from one of the defendants might contribute to the identification and arrest of the others before further violence was committed; and transportation to a judge would have consumed, if not a great deal of time, at least an hour.\\nRecognition of similar exigencies has been allowed in other cases. In United States v. Hensley, 374 F.2d 341, 349 (6th Cir. 1967) the defendant's presentment was likewise delayed for some hours. He had been caught attempting to dynamite a railroad bridge, and the Sixth Circuit held that the police had properly given their first priority to removing the explosives and attempting to capture the other parties to the crime. The case might be distinguishable in that Hensley was not questioned during the delay, but the court's discussion is at least suggestive as to the kind of situation that would justify questioning as well. A case more nearly in point is People v. Sirhan, 497 P.2d 1121, 1137-41 (Calif. 1972). The Supreme Court of California, in a unanimous and en banc decision, there upheld a warrantless search through the room of Senator Kennedy's assassin. The police need not have taken even the brief time to obtain a warrant since a political assassination raises the possibility of a more widespread plot (with perhaps additional targets) which should be investigated without delay. In other words, I assume, a warrantless search in such circumstances is still not an \\\"unreasonable\\\" one; and I believe that a delay in presentment, in analogous circumstances, is similarly not \\\"unnecessary.\\\"\\nAlthough I find that circumstances justified the delays involved here, I must underscore the narrowness of my determination. Under the McNabb-Mallory rule, any incremental delay is forbidden when its sole purpose is to extract a confession which will assure conviction for a closed and completed crime. Cf. 1 Wright, Federal Practice & Procedure \\u00a7 74, n. 93. Moreover, a \\\"reasonable\\\" delay for that purpose is in no way enlarged by the seriousness of the crime itself. See id. at \\u00a7 74, n. 86. The delay here was instead justified by the need for celerity in obtaining a statement which could aid in the arrest of other persons still at large. That need was brought to the level of a McNabb-Mallory exception due to the high apparent possibility of future violence. The delay was not independently justified by \\u2014 although it undoubtedly contributed to \\u2014 the chance that in his statement the defendant would also inculpate himself as a past participant in the crime. I should, moreover, stress that this portion of my opinion is directed solely to the procedural rule requiring speedy presentments. No risk of future violence will justify securing a statement which is not voluntary, and the requirements as to this issue must therefore be independently satisfied. See id. at \\u00a7 76, n. 51. Since I have previously determined that the statements were voluntary, however, only the procedural requirements of McNabb and Mallory are under consideration at this point. I believe them to have been satisfied under the exigent circumstances exception.\\nAlternatively, I hold that the delay was permissible because the defendants' Miranda waivers included a tacit waiver of the right to immediate presentment. The MeNabb-Mallory rule antedated the Miranda decision, and was intended to assure defendants of certain procedural rights which Miranda later secured to them still more definitely. The two lines of decision are thus cumulative and they have their most important feature in common. That is provision of mechanisms for promptly informing an arrestee of his basic rights \\u2014 through judicial warnings under MeNabb-Mallory and police warnings under Miranda. Since the two rules result in similar cautions being delivered, once the police have read a suspect his Miranda rights there is less urgency to bringing him before a judge. In these circumstances a somewhat longer delay would still be reasonable. See Frazier v. United States, 419 F.2d 1161 (D.C. Cir. 1969).\\nRule 5, to be sure, speaks in terms of \\\"necessary\\\" rather than \\\"reasonable\\\" delay. But even if one thinks this distinction significant in the context of a Miranda warning already delivered, it will still not aid the defendants in a case where they have given a valid Miranda waiver. An agreement to talk with the police necessarily contemplates the expenditure of time, and therefore fore-goes the right to be brought before a magistrate as quickly as possible. Moreover, the same agreement to talk immediately with the police also implies a waiver, at least for the moment, of the other two benefits which the magistrate might confer \\u2014 appointment of counsel, and release on bail, For these reasons a number of cases hold that a valid Miranda waiver is also a waiver of rights under the McNabb-Mallory rule. See United States v. Lopez, 450 F.2d 169 (9th Cir. 1971) (per curiam), cert. denied, 405 U.S. 931; Frazier v. United States, 419 F.2d 1161 (D.C. Cir. 1969); Prettyjohn v. United States, 419 F.2d 651 (D.C. Cir. 1969) (alternative ground), cert. denied, 397 U.S. 1058; 1 Wright, Federal Practice & Procedure \\u00a7 72, 74.\\nFor each of the foregoing reasons, and the more so as they are considered cumulatively, I believe that the delays in presentment were not improper.\\nVIII. THE QUESTION OF POISONOUS FRUIT\\nSince Smith and Joseph's statements have been suppressed, they now ask that I take the further step of suppressing all tangible evidence which came to light as a result of those statements. This request turns on application of the familiar \\\"fruit of the poisonous tree\\\" doctrine. If certain evidence has been illegally obtained by the Government, not only is that evidence inadmissible but so is all additional evidence which \\\"has been come at by exploitation of [the original] illegality.\\\" Wong Sun v. United States, 371 U.S. 471, 488 (1963), quoting Maguire, Evidence of Guilt 221 (1959); see Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). The reasons for this rule are persuasive and two-fold. First, the defendant in a particular case should not be placed in any worse position by permitting the Government to indirectly reap benefits from its illegal conduct. To do so would reduce his constitutional protections to a mere \\\"form of words,\\\" see Silverthorne, supra, at 392. Secondly, the rule excluding \\\"fruits\\\" also implements a more long-range deterrent strategy and is calculated to discourage further illegal police conduct in the future by denying them the benefits of having used it in the past. See Linkletter v. Walker, 381 U.S. 618, 634-39 (1965).\\nThe defendants have a strong case for invocation of the exclusionary rule here. Although the \\\"poisonous fruit\\\" doctrine was first developed in the context of controlling illegal searches and seizures under the Fourth Amendment, it has expanded into a vehicle for enforcing the other major constitutional rights as well. See, e.g., Gilbert v. California, 388 U.S. 263 (1967) (Sixth Amendment as applied to lineups); United States v. Wade, 388 U.S. 218 (1967) (same). It has also been applied, as the defendants would have me do here, to the fruits of -involuntary confessions under the Fifth Amendment. See Harrison v. United States, 392 U.S. 219 (1968); Tucker v. Johnson, 12 Cr.L. 2290 (E.D. Mich., Dec. 22, 1972); 3 Wigmore, Evidence \\u00a7 859 & n. 7 (Chadbourn rev. 1972). Application of such a rule at first appears appropriate on the facts of the present case, since there is little doubt that important tangible evidence was located only after a defendant had led officers to its hiding place.\\nBefore mechanically accepting this conclusion, however, I must also examine the one important exception to the rule excluding \\\"poisonous fruit.\\\" From the very beginning of the doctrine it was recognized that police illegality could not automatically make the information thus acquired \\\"sacred and inaccessible.\\\" Silverthorne, supra, at 392. Such information, and any resultant evidence, was still admissible if the police had also discovered it through an independent and legal source. This doctrinal exception is currently expressed through the question of \\\" 'whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' \\\" Wong Sun v. United States, 371 U.S. 471, 488 (1963), quoting Maguire, Evidence of Guilt 221 (1959). The exception is justified by the very considerations that led to the exclusionary rule in the first place. In these circumstances the two purposes of the rule are satisfied without the necessity for actually excluding the evidence. The defendant's rights are not compromised, since, given the alternative source of information, his position is no worse than if the illegality had not occurred. Deterrence of police illegality is similarly unweakened, since they have not been permitted to build any stronger a case than they would have had under purely legal means.\\nThe collateral-source rule alone may permit introduction of the Luger into evidence. This pistol was found on the roof of a house adjacent to the one which Smith occupied at the time of his arrest. On direct examination, Smith testified that he threw it there as he heard the police approach his room. Several officers testified that they heard the clang of a heavy object falling on a tin roof. In addition, one of them reported that this coincided with the swift opening and closing of a back window to Smith's room. Considering the number of policemen that were close to the house, and the loudness of an object striking a tin roof, I find this testimony credible. This information may in turn have led the police to the gun, since such strange noises would clearly have borne investigation.\\nThe record, however, is not entirely clear on this point. The Luger was found on the morning of September 9th, but the testimony does not reveal what prompted this search. We are told only that it was \\\"based on information received.\\\" If this \\\"information\\\" was a report from the arresting officers about the suspicious noises, then an independent source is sufficiently established. On the other hand, however, on the evening of the 8th Smith had told the investigators of how he threw the gun away. If this report was the motive for the search instead, then discovery of the weapon might appear to be a fruit of Smith's statement.\\nI do not think this issue is particularly material, however, since the Luger would be admissible in either event. One application of the independent-source rule will reach this case even if the searching policemen were motivated solely by knowledge of Smith's confession. For want of a better term I shall refer to this application as \\\"the rule of the would-have-been.\\\" The rule postulates that a legally independent source exists for the evidence if the police would have discovered it, in time, even without the benefit of the illegal confession. The rule does not require that the police have had an independent route to the evidence at the same time that they discovered it through the illegal means.\\nThe rule of the would-have-been may appear troublesome at first glance, for it is one thing merely to recognize the existence of an acceptable alternative basis for the evidence, and quite another to speculate as to whether one would have come into being in the future. Upon closer examination, however, it is clear that the two criteria are not as different as they first seem to be. Probative evidence is excluded from court only reluctantly, and only when necessary to serve some overriding social policy. The rule of the would-have-been must therefore be evaluated \\u2014 as was the original exception for independent sources \\u2014 according to whether it jeopardizes those important social goals which the \\\"poisonous fruit\\\" doctrine was formulated in order to protect. It is apparent that it does not. If the police would have found the evidence in any case, then the defendant is not injured as a result of the illegality; and the police remain untempted to enter into illegality, since they are permitted to retain only that evidence which they would also have found under proper means. Since the rule of the would-have-been thus does not conflict with the purposes of the poisonous fruit doctrine, it should be recognized as a valid application of the independent source rule. If there is a practical difficulty with this theoretical demonstration, it lies in the fact that one can seldom be entirely certain about the course of future events. But such a caveat is not truly directed toward the conception itself, but rather toward the need for carefully ascertaining the proper burden of proof to be placed on the Government. It is to that issue that I now direct my attention.\\nI believe the Government must show, by clear and convincing proof, that the tangible evidence would have been found even without the confessions. I have arrived at this standard of proof by a process of elimination. It would be too low and lax a standard for the Government to prove the matter by a mere preponderance, and particularly so in a criminal matter. Where the Government \\\"releases the spring\\\" by its own illegality, it should not be able to escape the consequences by setting \\\"too nice a measure of proof.\\\" See Harrison v. United States, 392 U.S. 219, 224-25 (1968), quoting DeCicco v. Schweizer, 221 N.Y. 431, 438, 117 N.E. 807, 810 (Cardozo, J.). On the other hand, it would be an impossibly high standard to demand that the Government prove the matter beyond a reasonable doubt. It is difficult enough to meet this standard in proving what actually happened in the past, let alone what would have happened in the future. The Supreme Court, in another context, has already recognized the difficulties of proving what would have happened if events had begun in a different way. See Harrison v. United States, supra, at 224, n. 10 (discussing whether police practices would be different if the exclusionary rule did not exist), citing Elkins v. United States, 364 U.S. 206, 218 (\\\"it is hardly likely that conclusive factual data could ever be assembled\\\").\\nIn a sense my holding will be narrower than the preceding discussion suggests. \\\"Clear and convincing evidence\\\" is not a single or static concept. One may demand that proof be made more or less clear and convincing, depending on the needs of the situation. It is difficult to say just how stringently this phrase should be read for purposes of applying the rule of the would-have-been. This should probably be determined on a case-by-case basis, and I make no attempt here to formulate a general rule. I will hold only that on the particular facts involved in this case, which will be discussed below, the Government has sustained its burden of proof.\\nIn concluding that the rule of the would-have-been is a legitimate exception to the general doctrine of \\\"poisonous fruit,\\\" I am supported by a considerable body of case law from other jurisdictions. The leading case appears to be Killough v. United States, 336 F.2d 929 (D.C. Cir. 1964). There a homicide defendant had led the police to his victim's body, as part of a general confession which was later ruled to be inadmissible. The coroner was nonetheless permitted to testify as to. the body itself \\u2014 although not the circumstances of its discovery \\u2014 with a view to establishing the corpus delicti. The D.C. Circuit upheld this action on the following grounds:\\nThe mere fact that the body was discovered at the particular time it was discovered because of Killough's disclosure of its whereabouts in his illegally secured confessions is not determinative. . . . In time the body (or its bones) would have been discovered and would have been identified as that of Mrs. Killough.\\nId. at 934. Other cases have reached similar conclusions. See Toohey v. United States, 404 F.2d 907, 910 (9th Cir. 1968); Wayne v. United States, 318 F.2d 205 (D.C. Cir. 1963) (Burger, J.) (discovery of body during illegal entry); People v. Ditson, 369 P.2d 714, 730 (Calif. Sup. Ct. 1962) (en banc); Duckett v. State, 240 A.2d 332, 341 (Md. 1968); Pfeifer v. State, 460 P.2d 125 (Okla. Cr. 1969) (although perhaps using a questionable burden of proof); 3 Wigmore, Evidence \\u00a7 859, n. 12 (Chadbourn rev. 1972). A related line of cases holds that if the police learn the identity of a living witness as a result of illegal activity, they may still call the witness if they show that they would have independently discovered him. See Smith v. United States, 344 F.2d 545, 547, n. 4 (D.C. Cir. 1965) (dictum); McLindon v. United States, 329 F.2d 238, 241 (D.C. Cir. 1964) (by implication); Commonwealth v. Cephas, 11 Cr. L. 2241 (Sup. Ct. Pa., May 25, 1972) (dictum).\\nWith the appropriate law thus identified, I will now turn to applying that law to the facts of the present case. Two pieces of tangible evidence are arguably admissible under the rule of the would-have-been, and I will examine them in sequence. These are the Luger found on the roof of a house at Grove Place, and the .410 shotgun found in the brush near Mahogany Road. I have already considered, where appropriate, the legal validity of the seizures themselves. The following discussion will therefore be confined to the question of whether the knowledge leading to those seizures came from a permissible source.\\nFirst, I believe that the Luger is admissible. Even if the officers who found the weapon knew only of Smith's confession, the rule of the would-have-been will still apply. I find as a matter of fact that several officers heard the gun strike the roof at the time of Smith's arrest, and that one of them noticed that this coincided with the swift opening and closing of a window to Smith's room. It might have taken a few days for this information to be conveyed to the appropriate investigators, but I have little difficulty finding that it would eventually have reached them. Several reasons lead me to this conclusion. The strange sounds were an obvious lead, and one which clearly needed to be related to the people doing the follow-up investigation. The arresting officers were aware of this significance and did not neglect the matter; I also find as a matter of fact that one of them mentioned the noises to his superior the following day. I do not think that the delay in searching is fatal to the conclusion that a search would have been made. In those early days the police suffered from a certain necessary confusion attendant upon building up and organizing so large an investigation. In addition, the search was at first concentrated on apprehending suspects rather than on locating evidence. But in time order was achieved, and loose leads could be systematically collated in the search for trial evidence. Moreover, by September 9, the FBI agents were arriving in substantial numbers. I think I may assume that they would have reviewed the progress of the investigation, and during the course of this review would have received reports of the suspicious noises. I then conclude that in an investigation as thorough as this one such a lead would have been followed up by a search of the roof and discovery of the gun.\\nOn the other hand, however, I believe that the .410 shotgun is inadmissible. This weapon was one of the more notable items in a small cache of material hidden near Mahogany Road. The defendant Joseph led the police to this spot, however, only on the morning after his inadmissible confession had been obtained. I believe that his assistance must be considered a fruit of the confession, since it was most likely prompted by his realization that the cat was already out of the bag. Nor can the admissibility of this cache be preserved under the would-have-been rationale. It was well concealed, being some 200 yards from the road and inside a large bush, and nothing in the record indicates that the police would have found it without Joseph's assistance. Since I have found that Joseph's statements must be suppressed, I also conclude that all tangible evidence taken from this, location must be suppressed as well.\\nIn terms of the new rule, the most interesting item of evidence can find its way into this opinion only by way of dictum. The defendant La Beet led the police to his machine gun during the course of a confession which I have held to be properly admissible. Yet I believe that this gun could be received in evidence even if the confession itself were suppressed. I think two purposes would be served by expanding on my reasons for saying this. First, the machine gun provides an excellent illustration for the rule of the would-have-been. And secondly, this application of the rule will show that \\u2014 even if I erred in admitting La Beet's confession \\u2014 the gun should still have come into evidence.\\nAlthough La Beet showed the investigators where the gun was hidden, it is virtually certain that it would have been speedily found in any event. The gun was admittedly well hidden, being buried beneath the outhouse at the rear of the Hospital Street property. But the forces which the police marshalled in order to locate it can only be described as overwhelming. About forty policemen were at Hospital Street on the evening of the 12th, of whom about twenty were digging around the yard looking exclusively for the machine gun. They were focusing their search outside because the inside of the buildings had already been searched, without locating it, and because the interiors could not be adequately illuminated for night work. The police had considerable equipment for this hunt, in- eluding a searchlight, a number of shovels, a device apparently akin to a roto-rooter, and ultimately what appears to be some heavy earth-moving machinery. It was, in short, an exceptionally formidable search. Moreover, there is every indication that it would have been pressed until the gun was found. Several officials testified that they were prepared to search the premises for several days. I find this testimony credible, for the police had considerable evidence indicating that the gun was there to be found. Several clips of machine gun ammunition were found in the house; the FBI agents had been told that La Beet was in the habit of always keeping the gun near him; and the other obvious hiding places had already been searched so that the investigators were willing to concentrate their efforts there. In addition, it appears to me that the sheer quantity of other material found at Hospital Street would have suggested that the defendants had made no effort to dispose of possibly-incriminating evidence.\\nIX. CONCLUSION\\n' It is difficult to write a conclusion for an opinion with such diverse issues as this one. In sum, however, I believe that the conduct of the investigating officers was generally reasonable in light of the situations with which they were confronted. An exception does arise with respect to the interrogation of some of the suspects which I think was unlawfully prolonged in the face of their demands for counsel. The fruits of this phase of the investigation will therefore be suppressed. The remaining facets of the investigation will be upheld, however, and the case will go to trial with the evidence so obtained.\\nAn Order has already been entered in conformity with this Opinion.\\nAn earlier motion to suppress was filed September 18, 1972, on behalf of defendants La Beet, Ballentine and Joseph. However this motion was never noticed for hearing and will be considered as having been merged in the motion of December 20.\\nThis location was offered by the golf course management and accepted because it could accommodate a large number of men while the local police stations could not.\\nIt appears that -in his direct examination Smith was occasionally confused about the sequence of days at Fountain Valley. The chronology used in this opinion appears the most reasonable interpretation of Smith's account, , considering his testimony as a whole and cross-checking it with that of the other defendants.\\nThis is the approximate time noted in the FBI logs. The three defendants estimated the time variously, hut all put it somewhat earlier in the afternoon. I do not think this point is particularly material, however, and so I will adhere to the FBI's time throughout as the more likely to be correct.\\nLa Beet claims that his assistance in this regard was ineffectual, since he would nod affirmatively to any question as to whether the gun was hidden in a particular place.\\nTheseyoung men claim that they were moved below the brow of a small hill, which would hide the tree from view. Still, the chances that one would stand up and look around seem sufficiently great to make them awkward potential witnesses in any event.\\nIndeed, Smith claims that the hanging was done with the knowledge of at least two_ FBI agents, who simply turned their backs and walked away.\\nThere is one other piece of circumstantial evidence against brutality. If Smith had indeed attracted so much attention from.the police, I would expect them to have kept him at Fountain Valley on the night of the 7th. It seems unlikely that they would have sent him to the Frederiksted jail, where he might tell others what had happened to him and which, it was testified, is physically quite insecure.-\\nI am reluctant to.press the limits of judicial notice too closely, and so my final observation on the hanging incident will be confined to secondary status here. It is worth noting, however, that' such repeated hangings as Smith claims would almost certainly have left marks on his neck. Yet, , ' no witness was presented who claims to have seen such signs on either him' or Gereau.\\n.Similarly, I might note that no medical reports were introduced, from the. time when these defendants had been transferred .to the regular jail,, which would confirm that they were severely beaten' as Smith claims. T find it hard to believe that such beating would not leave marks of a more- or'l\\u00e9ss lingering character which would have been observable then.'\\nThis observation -is to some extent relevant to. the credibility of all five de- \\u2022 fondants,'and'not-just to the-three'under discussion here. \\u2022 - - - . \\u2022' !\\nHe was also there on other days, but his testimony as to those events has little bearing on the issue of brutality.\\nAs is discussed below, McIntosh appeared as a witness for the defense and in other respects corroborated the defendants' accounts of tortures.\\nThe following colloquy will illustrate my reasons for hesitation on this point:\\nQ (Rauh) \\\"And didn't you feel at that time if you heard a scream that you had a duty to report it, take some action to stop any activities that were causing the screams?\\\"\\nA (Mary Mercer) \\\"I didn't know it was against the law to scream, Mr. Rauh.\\\"\\nThe Government, with commendable candor, made this memorandum available to the defendants during the suppression hearing.\\nI would imagine this was Patrolman Powell, although the record is silent on this point.\\nThere is also an alternative explanation of the Sacks-Hansen conversation, which I find rather interesting despite the fact that it has no support in the record. It is conceivable that Sergeant Hansen was annoyed, as perhaps were all local police, by the public credit accorded the FBI for its role in the investigation. He may have concocted a boastful but apparently harmless story to suggest to the prosecution that a greater contribution had been made by the Department of Public Safety. Thus Mr. Sacks would have heard correctly, but it would not follow that tortures were in fact used. I need not decide here which explanation is correct. -' Suffice it to say that either one would be consistent with, and justified by, the independent conclusion that no brutality occurred.\\nA bench warrant for him was issued on May 31, 1972, by this Court in Criminal No. 74/1972.\\nA bench warrant for Raphael Joseph was not issued until September 8, 1972, in Criminal No. 44/1972. The police had been looking for him for some time before then, however. There was no outstanding warrant for Ballentine, but in the later days of August he had failed to appear for sentencing in Criminal No. 83/1971. A bench warrant in that case was issued on September 8.\\nIn later testimony Tuitt seemed to indicate that the boxes were carried by Smith and Gereau alone when this incident occurred. Given the prior circumstances this would still constitute probable cause for an accessory charge. Even if it would not, however, the reasonableness of police conduct must be judged according to the information they had at the time.\\nBoth Tuitt and the sources of his information seem sufficiently reliable for the police to have acted on them. United States v. Harris, 403 U.S. 573 (1971). This is particularly true since Tuitt was a private citizen rather than a paid or otherwise professional informant. Tips from such quarters are more likely to be reliable, see United States v. Unger, 12 Crim. L. Rptr. 2250 (7th Cir. Nov. 28, 1972). Moreover, Miss Schrader had known Tuitt personally for many years.\\nI may also take judicial notice of the fact that Smith knew the police were seeking Ballentine for sentencing in Criminal No. 83/1971. In the weeks prior to Fountain Valley, Smith was in this Court twice as his bail bond surety to answer questions as to Ballentine's whereabouts. He was told that Ballentine had failed to appear and that his presence was desired.\\nAlternatively, the police arrested Smith on a second ground \\u2014 trespass\\u2014 again at the instance of Mr. Tuitt. Indeed, the officer who first arrested Smith told him only of this ground for doing so. The detachment of policemen had been told of both reasons, however, at a 3:00 a.m. meeting before they left for Grove Place. I therefore think it was merely inadvertent that only one was at first told to Smith. For the reasons which I will discuss in relation to Gereau's arrest, infra, I do not think the omission here is controlling; the police were sent to arrest Smith on two charges and, when they took him into custody, they did so on the strength of both grounds as to which the dispatching officer had information.\\nThe trespass charge is somewhat troublesome as an alternative basis for Smith's arrest, since it appears to be more nearly a \\\"pretext\\\" matter than does the charge of accessory after the fact. But even the trespass charge may be distinguished from those pretext arrests which have been held invalid. It is a somewhat more serious offense; and it was pressed by a private citizen who was entitled to a response, rather than being a product of the officers' discretionary authority. Even if the trespass charge were found invalid on pretext grounds, however, it would not taint Smith's simultaneous and nonpretextual arrest as an accessory. Klingler v. United States, 409 F.2d 299 (8th Cir. 1969), cert. denied, 396 U.S. 859 (1970) (arrest valid even though nonpretextual ground was not told to the arrestee).\\nThe police may also have had probable cause to arrest Smith on a third charge, as a participant in the Fountain Valley murders. He was known to have been associated with the activities of La Beet, Ballentine and Joseph shortly before. Whether there was probable cause to arrest him would therefore depend on whether there was probable cause to arrest the trio on this charge. That issue is discussed below in the text.\\nSome of the officers with Hodge at the time of Gereau's arrest may have been aware of Tuitt's information. This is by no means improbable, since about thirty policemen attended the 3:00 a.m. briefing before Smith's arrest. If so, then Gereau's arrest would be immediately justified on the same grounds as Smith's. More information would be needed to decide this point, however, since it was not explored at the hearing.\\nThe rearrest would have occurred no later than the evening of the 8th, since at that time Gereau and Miss Schrader were both present at Fountain Valley. It more probably occurred earlier that afternoon, when Gereau was suddenly removed from a car which was taking a number of interviewees away from Fountain Valley.\\nSee Ker v. California, 374 U.S. 23, 54-56 (1963) (Brennan, J., concurring and dissenting); Klingler v. United States, 409 F.2d 299, 306 (8th Cir. 1969), cert. denied, 396 U.S. 859 (1970). I construe 5 V.I.C. \\u00a7 3565(c) (officer must inform person arrested of charge) to have this purpose only, and thus not to apply to one already in custody.\\nGereau was also validly rearrested on a second charge, possession of firearms and dynamite. About two hours after his initial arrest at 46 Prince Street that house was searched by a number of policemen. Under the floorboards they discovered three unregistered rifles, about ten sticks of dynamite, and some detonators. Although it is not clear what prompted this search it is certain that it was not a fruit of Gereau's arrest. All parties deny that Gereau told the arresting officers of this contraband and the search was never justified as one incident to an arrest. It was instead properly based on permission from the owner of the house, Mrs. Hard-castle. As a result of this search and its discoveries, Gereau and four other young men were charged in Municipal Court with possession of this material. The decision to charge Gereau with this offense was made only a few hours after his arrest, and according to his own testimony Gereau was made aware of the police discoveries at about that same time.\\nThe Municipal Court admittedly reached a contrary decision as to the propriety of that search. Of the five defendants in the \\\"rifles and dynamite\\\" case, two moved to suppress the tangible evidence as the product of an illegal search. After a hearing the Municipal Court granted this motion, although without deciding on the merits whether the police had obtained a valid consent to their search. The trial judge instead ruled that the police could not testify as to the terms of consent given by Mrs. Hardcastle on the grounds that this would be hearsay. Since the police were not prepared to demonstrate the consent in any other way the search was ruled illegal. The remaining three defendants thereupon secured suppression of this evidence from the cases against them since the factual transaction was in each instance the same.\\nI believe, however, that the Municipal Court was incorrect in its interpretation of the hearsay rule. Although the rule is one of the most opaque areas of our law I do not think this testimony would fit the classical definition of hearsay. It would not be the out-of-court statement of a third party, offered to prove the truth of the matter asserted. That is, Mrs. Hard-castle's statements are not being offered to prove what she subjectively thought (although I do not imply by this that she had mental reservations). Rather, they are offered to show what she said, the form of words that were objectively given to the police. This is a matter as to which the listening officer can testify from his own experience, and so it is not hearsay. See Federal Rules of Evidence 801(c) and the Advisory Committee's Note thereon. Although the new Rules are not themselves in effect now, I consider them to be useful restatements of the pre-existing law on the issues that arise in this footnote.\\nThis resolution of the evidentiary problem is consistent with the constitutional policy behind consent searches. The law desires that the police make no \\\"unreasonable\\\" searches, and, by extension, that the consent searches which they do make be \\\"reasonable\\\" ones. But the reasonableness of the officers' conduct must depend on the words that are spoken to them, and if a valid consent is objectively given, then that is enough. We cannot require that the police analyze beneath an apparently valid consent \\u2014 at least in the absence of coercive circumstances which the record amply demonstrates were not present here. Moreover, even if the police were required to prove such subjective consent, and Mrs. Hardcastle's statement therefore became hearsay as to that issue, it would still be admissible hearsay under Rule 803(3).\\nFor three reasons, I do not believe that I am bound by the contrary decision of the Municipal Court. First, that decision turned on a purely \\\"legal\\\" question and so will not be conclusive in a higher court. Even if the trial court's decision were for some reason binding \\u2014 for example, because the_ Government failed to perfect its appeal reasonably \\u2014 it would still be binding only for the \\\"possession\\\" cases themselves. The decision did not embody the sort of factual determinations that should be uniformly decided in all prosecutions which touch upon the same transaction, and so I do_ not believe that res judicata will apply here. Nor, I may note, was the United States Attorney a party to the earlier cases.\\nSecondly, the Municipal Court lacked the power to rule on some of the matters that it did. Most notably, Gereau's alleged possession of dynamite would be a felony under 23 V.I.C. \\u00a7 712(a), 718, over which the Municipal Court does not have jurisdiction. Compare 4 V.I.C. \\u00a7 32(a) with 4 V.I.C. \\u00a7 74. The illegal possession of firearms would also be a felony if Gereau has been previously convicted of a crime of violence. See 23 V.I.C. ch. 5 and \\u00a7 452, 484. Issues relating to the dynamite matter, at least, are therefore open to original determination at this point.\\nGiven these difficulties with the Municipal Court's jurisdiction, and given the further difficulties of ascertaining whether the Government's appeal from the suppression orders had been properly brought, I have decided to transfer all of the \\\"rifles and dynamite\\\" cases to this court for trial. The appeals will therefore be dismissed as moot. Before the trial of these cases I will entertain argument as to the effect to be given to the Municipal Court's suppression order under the circumstances. At present it is enough to say that that order will not control in this aspect of the Fountain Valley case.\\nParenthetically, I should note that the police may also have had probable cause to arrest Gereau on a third charge. That would be as a participant in the Fountain Valley murders. The issues involved here are generally the same as for the defendant Smith, discussed at n. 20, supra. Probable cause against Gereau would have been somewhat stronger, however, since the police had one additional piece of information against him. He had been seen leaving his father's house with a \\\"long gun\\\" shortly before the murders. Although the informant in this matter was not identified, the Government's witness did specify that it was a private citizen who had not previously worked with the police. Cf. n. 18, supra.\\nIn addition to any offenses related to Fountain Valley, the police also had other warrants for two of these three defendants. See nn. 15-16, supra.\\nIn addition to the foregoing arguments, this search is independently justified by Tuitt's consent. Tuitt was the owner of the premises, at least to_ a degree which enabled him to give a valid authorization to search, as will be discussed below. He was outside around the time of Smith's arrest and gave the officers permission to enter. He may also be considered as having given tacit permission the day before, when he telephoned the police and asked them to remove Smith as a trespasser.\\nThat the golf ball was in plain view is not wholly certain from the record, although it apparently was.\\nA third search, pursuant to a warrant, was made some two days later. That search is challenged on the grounds that the probable cause for the warrant was established by a fruit of an earlier (and allegedly illegal) warrantless search. Since I have found the prior searches to he proper, however, the warranted search was also proper. In a simultaneous search next door, a Luger was recovered from the roof of the adjacent house. This search was made with the permission of the owner.\\nSmith claimed in his testimony to have inherited his part of the house from his mother. However, no proof of this assertion was offered. On the contrary, in an Affidavit of Financial Status dated 9/11/72, Smith listed Plot 281 Estate Grove Place as his sole asset. Further, he tacitly acknowledged Tuitt's authority over the premises when he sought permission for Gereau to stay there.\\nSmith, furthermore, was apparently not a tenant; at the suppression hearing he claimed neither to have paid rent nor to have held a lease.\\nIn addition to being justified by Tuitt's consent, this warrantless search was also proper under the doctrine of \\\"exigent circumstances.\\\" The doctrine is of course narrowly restricted lest it swallow the general policy in favor of warrants. But here it is properly invoked. Not only was the crime exceptionally serious, but there was ample reason to fear that the murderers, who were still at large, might commit additional crimes either by design or in an attempt to escape. The facts of this case are akin to those in People v. Sirhan, 497 P.2d 1121 (Calif. 1972). There the Supreme Court of California, in a unanimous and en banc opinion, upheld a warrantless search through the room of Sen. Kennedy's assailant. A political assassination creates, as did the murders here, an inherent threat of additional participants and future violence which should be investigated without delay.\\nTwo shotguns and some other evidence were concededly found under a mattress and out of sight, but this does not mean that the police were conducting a general search. When checking under beds for suspects it is evidently the standard practice to lift the mattress and look down through the springs. The officer is thus less exposed than he would be if he stooped down to peer under the bed directly.\\nMoreover, it is not entirely clear that these two warrants were invalid. Although the names of \\\"Pepe\\\" and \\\"Sanchez\\\" were incomplete they were believed to be correct as far as they went; these were not John Doe warrants. Additional limiting information was also available, both in the supporting affidavits and in the implication that these suspects might be found in the company of La Beet, Ballentine and Joseph.\\nI am aware that in Government v. Malone, 8 V.I. 459, 457 F.2d 548 (3d Cir. 1972), it was held that Miranda does not apply to cases where the person is interrogated about crimes unrelated to that for which his arrest was made. I do not believe Malone reaches the present case because of the close factual connection between the charge of accessory on which he was arrested and the crime at Fountain Valley.\\nPowell testified that someone went to call La Beet's lawyer and returned to report that his secretary said he was then in Court. The secretary testified that a telephone call was received after La Beet's arrest but thought it was on a day the lawyer was travelling to New York. It has been stipulated that the lawyer in fact left for New York on the next day.\\nOn the day that La Beet, Ballentine and Joseph were taken into custody the police still believed that two additional described persons had participated in the murders.\\nQuite apart from the demonstration in the main text that this result is consistent with the case law of the McNabb-Mallory rule, it is now also specifically authorized by statute. See 18 U.S.C. \\u00a7 3501. Subsection (e) provides that a statement shall not be inadmissible in evidence, solely by reason of delay in presentment, as long as it was voluntarily made. On its face this subsection modifies the McNabb-Mallory rule only for cases where the delay is less than six hours \\u2014 a period shorter than any involved here. I believe, however, that \\u00a7 3501 as a whole permits the trial judge to find a statement voluntary even if made after a longer delay\\u2014 the difference being that with more than six hours he may rely solely on the delay in his determination of voluntariness. But if he does find such a statement voluntary after deciding to consider all the other factors listed in- subsection (b), then he may admit it under subsection (a). See Wright, supra,' at \\u00a7 72, n. 411\\nIllustrating this point, I did not read La Beet, Ballentine and Joseph their full Miranda warnings when they were first presented before me, since I knew they had been given this information many times- that day and it was unnecessary to repeat it in detail. I instead concentrated on setting bail and securing the appointment of counsel since these are the most important functions left to be performed at the presentment.\\nIn assessing the delay involved in Gereau's presentment \\u2014 which was the most long-deferred \\u2014 one further consideration might be borne in mind. Judge Marsh of the Municipal Court was telephoned about 3:45 on the day of Gereau's arrest in an effort to decide the proper procedure for presentment. Although the decision reached was to bring him before a judge the next day, the judiciary was thus' kept informed of developments and was enabled to intervene if the judge deemed it proper.\\nA preliminary examination is not required in the Virgin Islands, for reasons which I explored in the habeas corpus action brought by these defendants. Ballantine v. Hendricks, 351 F.Supp. 208 (D.C.V.I. 1972).\\nI am not aware of any Third Circuit case on point. If one exists that is contrary to my holding here, however, I suspect it may be distinguishable on its facts. The very magnitude of the crime here created the most massive investigation in the history of this jurisdiction. This thoroughness would in turn allow an exceptionally confident prediction that certain evidence would have been found.\\nIronically, he denies that he gave any effective assistance in finding the machine gun. I do not believe his testimony on this point, however, and instead accept the accounts of several officers that he pointed out the precise spot where it was hidden.\"}"
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+"{\"id\": \"1113692\", \"name\": \"MARTHA PHILLIPE, Plaintiff v. MICHAEL DUDOVICK, Defendant\", \"name_abbreviation\": \"Phillipe v. Dudovick\", \"decision_date\": \"1972-08-08\", \"docket_number\": \"Civil No. 1378-1971\", \"first_page\": 113, \"last_page\": \"117\", \"citations\": \"9 V.I. 113\", \"volume\": \"9\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Virgin Islands Municipal Court\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T17:53:30.349687+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARTHA PHILLIPE, Plaintiff v. MICHAEL DUDOVICK, Defendant\", \"head_matter\": \"MARTHA PHILLIPE, Plaintiff v. MICHAEL DUDOVICK, Defendant\\nCivil No. 1378-1971\\nMunicipal Court of the Virgin Islands Div. of St. Thomas and St. John\\nAugust 8, 1972\\nJohn W. Newman, Esq., St. Thomas, V.I., for the plaintiff\\nEthel Carr Hunter, Esq., St. Thomas, V.I., for the defendant\", \"word_count\": \"1215\", \"char_count\": \"7338\", \"text\": \"HOFFMAN, Judge\\nMEMORANDUM OPINION AND JUDGMENT\\nThis matter arose out of the partial construction by the defendant of a retaining wall at the request of the plaintiff on plaintiff's premises at Scott Free Estates. It appears that the defendant submitted the following proposal dated December 2, 1970 for plaintiff's consideration in this matter:\\n\\\"I propose to build a retaining wall located at Scott Free Estates for Mrs. Martha Phillipa (sic). The wall shall be approximately 100' long starting at the level of 2' and gradually building up to 20' high. Construction shall be out of concrete and steel. The thickness of the wall shall start at 2' at the base and will taper to 1' at the top of the wall. Included with this wall is a driveway 10' wide by approximately 50' long. All materials will be furnished by me. Price for the complete project is $5,500.00. Hoping you favor me in this proposal.\\\"\\nThe signature of the defendant appeared below this offer.\\nFrom the testimony of both parties it is clear that they contemplated the construction of a wall approximately 100 feet long and one which was to rise from two feet at one end to 20 feet at the other. It is further evident that a price of $5,500.00 was agreed upon and that plaintiff has already advanced the amount of $3,300.00 to defendant who in turn has completed the greater part of the construction. Beyond these established facts, however, the Court finds that the plaintiff has failed to establish the existence of a contract on the terms which she contends were agreed to by the parties. The defendant denied plaintiff's acceptance of his December 2nd proposal and testified that due to her disapproval he attempted to gain her assent to another offer. The Court finds as a matter of fact that the plaintiff has not established her valid acceptance of defendant's proposal.\\nIn the Court's opinion the parties each acted as if a precise contract existed, but contemplated only those terms which were favorable to them. In this reliance the plaintiff tendered $3,300.00 as an advance to the defendant and the latter commenced construction. In June of 1971, however, the plaintiff became dissatisfied with the work as it was proceeding and refused to advance further funds to the defendant. As a result the defendant stopped work on the project. The plaintiff's action here is one for specific performance and damages. The plaintiff argues that the defendant breached their contract by construction contrary to the specifications contained in the December 2nd proposal. Specifically, the plaintiff objects to the defendant's performance in two respects. The plaintiff states that the wall is too thin, that is, not constructed in accordance with the thickness specified in the proposal. The plaintiff further contends that the defendant refused to use \\\"concrete and steel\\\" as specified in the proposal, but instead constructed the wall with concrete blocks and steel. In light of the Court's finding above, however, that the plaintiff did not accept the defendant's written proposal, there is little need for discussion of these contentions or of the testimony of the experts called by the parties. It may be noted in passing, however, that the Court is not convinced that plaintiff's proof of acceptance of the proposal would advance her prayer for relief. Restatement, Contracts, \\u00a7 71(a) is in point:\\nIf the manifestations of intention of either party are uncertain or ambiguous, and he has no reason to know that they may bear a different meaning to the other party from that which he himself attaches to them, his manifestations are operative in the formation of a contract only in the event that the other party attaches to them the same meaning. (Emphasis supplied.)\\nRestatement, Contracts, \\u00a7 19(b) and \\u00a7 501 are also relevant in this connection. In light of: (a) the ambiguous nature of the December 2nd proposal as evidenced by the testimony of the experts called; (b) the inconsistency latent in a proposal which called for \\\"concrete and steel\\\", but provided for a price which could only be sufficient for concrete blocks and steel; and (c) the defendant's inability to appreciate that his proposal would be susceptible to various interpretations, the plaintiff's acceptance on terms other than those contemplated by the defendant would not operate to create a binding contract.\\nIt is apparent then that each party proceeded on the mistaken assumption that a contract existed and that the defendant performed as authorized until plaintiff objected to his performance and refused to make further advances. Under this set of facts the plaintiff is certainly not entitled to a return of the purchase price advanced or restitution (see: Restatement, Contracts, \\u00a7 347) or to any damages stemming from an alleged delay. Specific performance as prayed for .must of course be denied. Restatement, Contracts, \\u00a7 358, 370. The plaintiff may, however, recover the difference between the amount advanced, $3,300.00, and the value of the benefits plaintiff received from the defendant, if such value is less than that of the advance. The defendant may retain that portion of the advance which constitutes the reasonable value of his performance. \\\"The generally recognized doctrine is that although there was no contract, because the minds of the parties did not meet as to some of the essential terms thereof, a party thereto who furnishes materials and renders services to the other party, relying on the terms as he understood them and thinking there was an express contract, is entitled to recover what the labor furnished was reasonably worth.\\\" 58 Am. Jur., Work & Labor, \\u00a7 36 and citations therein at n.s 17, 18. \\\"The law recognizes that services not gratuitous, and neither mala in se or mala prohibita, rendered under an agreement that is invalid or unenforceable, furnish a basis for an implied or constructive contract to pay for their reasonable value.\\\" 58 Am. Jur., Work & Labor, \\u00a7 85 and Winton v. Amos, 255 U.S. 373, 65 L.Ed. 684, cited therein.\\nIn this matter the plaintiff advanced to defendant $3,300.00 during the period between April 16, 1971 and June 29, 1971. With this money the defendant began construction of the wall. The Court finds that the defendant had completed 75-80% of the work before the plaintiff refused to make further advances. The plaintiff's own expert witness, Wells, a civil engineer and architect, testified that the value of the labor and materials of the completed wall would equal four to five thousand dollars. The Court is not swayed by the suggestion that the wall is of no value as a retaining wall and finds that the reasonable value of the defendant's services amounts to $3,300.00. Accordingly, the plaintiff is not entitled to any return of the price or to damages. It is therefore ORDERED, in light of the above which shall constitute the Court's findings of fact and conclusions of law,\\nThat the Defendant is entitled to Judgment against the Plaintiff dismissing the complaint. The parties will each bear their own costs and attorneys fees.\"}"
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+"{\"id\": \"1115661\", \"name\": \"WALTER I. M. HODGE v. HESS OIL VIRGIN ISLANDS CORP.\", \"name_abbreviation\": \"Hodge v. Hess Oil Virgin Islands Corp.\", \"decision_date\": \"1972-05-22\", \"docket_number\": \"Civil No. 78-1972\", \"first_page\": 649, \"last_page\": \"653\", \"citations\": \"8 V.I. 649\", \"volume\": \"8\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:48:48.678967+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WALTER I. M. HODGE v. HESS OIL VIRGIN ISLANDS CORP.\", \"head_matter\": \"WALTER I. M. HODGE v. HESS OIL VIRGIN ISLANDS CORP.\\nCivil No. 78-1972\\nDistrict Court of the Virgin Islands Div. of St. Croix\\nMay 22, 1972\\nMario N. deChabert, Esq., Christiansted, St. Croix, V.I., for plaintiff\\nBirch, DeJongh & Farrelly, Esqs. (Alexander A. Farrelly, of counsel), Charlotte Amalie, St. Thomas, V.I., for defendant\", \"word_count\": \"1395\", \"char_count\": \"8070\", \"text\": \"YOUNG, Judge\\nMEMORANDUM OPINION\\nDefendant moved this Court for an Order under Rule 60(b) (1) (6) to relieve defendant by vacating the Order of Default heretofore entered by this Court. I am denying defendant's motion and I could do it in a simple three line order. However, I have chosen to state my reasons for denying the motion in this memorandum, copies of which will be distributed to the members of the local Bar.\\nThe complaint herein alleged damage to plaintiff's cattle from defendant's alleged pollution of the waters and land. Defendant was personally served in St. Croix on February 14, 1972. The Rules provide a period of twenty (20) days for an answer or other pleading to the complaint. That period expired March 5, 1972. By stipulation dated March 15 (already ten days beyond the time for filing) the parties agreed to extend the time for answer to April 15, 1972 (making an additional forty-day period to the normal responsive pleading time). However, this stipulation was not filed until April 20, five days beyond the time established in the stipulation.\\nBy motion dated April 21, plaintiff moved for a default order. Before that motion reached the Judge's Chambers from the Clerk's Office on the first floor, an answer was filed by defendant, dated April 17, but actually filed April 25 (10 days after the stipulated time \\u2014 and without leave of Court to make a filing out of time). After reviewing the record and being dismayed by the cavalier attitude of the attorneys and their disregard for the rules pertaining to civil procedure, I entered an Order on April 28. I recited some of the pertinent facts above-mentioned and adjudged the defendant to be in default. In the same Order, I set May 12, 1972, for an evidentiary hearing on the question of damages.\\nApproximately a week after the entry of the Order of Default, defendant moved to vacate the default order pursuant to Rule 60(b) and attached a memorandum of law to the motion. The \\\"memorandum of law\\\" was actually a \\\"memorandum of facts\\\", attempting to show \\\"inadvertence and excusable neglect\\\". From the memorandum I was unable to satisfy myself that there was in fact in advertence or excusable neglect. Be that as it may, I can-celled the evidentiary hearing and scheduled a hearing on defendant's motion. At this hearing, plaintiff moved to dismiss defendant's motion and filed a memorandum of fact and law. The Court heard argument of counsel on both motions.\\nIn September of 1971, when I changed from one side of the Bench to the other, my first duties as a Judge of the District Court was to conduct a calendar call of a backlog of 820 civil cases and 120 criminal cases. At that time, it was mentioned to the members of the Bar attending that long calendar call that we had a very serious task ahead of us, and that the task would not be solved merely by adding another Judge. It had to be solved by settling cases that should be settled and expediting the others to be decided by the bench or jury. I recollect mentioning that prior to the appointment of Chief Judge Almeric Christian in 1969, our \\\"judgeless bar\\\" was embarrassed by the condoning and paternalistic attitude of some of the stateside judges assigned to temporary duty in St. Croix in treating us differently and not \\\"by the rules\\\".\\nShortly after the initial calendar call, we began a course of conduct of dismissing appeals for want of prosecution and for dismissing complaints for failure to respond to interrogatories or to make admissions of facts. The Court has gently but firmly tightened up on the rules in an attempt to expedite the business of the Court. The St. Croix Division of the District Court (with the help of Chief Judge Almeric Christian for one week out of each calendar month) has been able to dispose of 380 civil cases and eighty criminal cases, a total of 460 cases in eight months. However, during that same period, there were filed in St. Croix 644 civil cases and 116 criminal cases. If it is true that every why hath a wherefore, here is the wherefore. The St. Croix Division needs a shake up of its at torneys. There is no room for tranquillity in this litigious island of the Caribbean.\\nThe Federal Rules of Civil and Criminal Procedure are designed in part to keep litigation in a scheduled flow from the filing of the civil complaint and the criminal information to the recording of judgment. Not to follow these rules, is to lose much of their value. A cursory examination of the Court's logistic records discloses that it costs approximately $300,000 per year to run each division of the District Court of the Virgin Islands. This amounts to a $1,500 court day cost. With the tremendous increase in civil and criminal litigation, we no longer can fritter precious and costly court time on stipulations for enlarging filing periods, motions to accomplish the same with memoranda and affidavits to justify delays and non-conformance with the Rules.\\nOn May 15, the very day argument was presented in this action, the Court considered other motions for default judgment. In one case, an airport service truck collided with a parked cargo plane. The defendant's answer was long overdue. A default order had been given about a week before. On the 15th, plaintiff presented evidence on damages. After the entry of judgment, the law firm in Puerto Rico gave up its program of \\\"lawyer shopping\\\" and retained a local firm to re-open the case and vacate the judgment. Their petition was denied.\\nOn another motion on the very same day of May 15 the same attorney for the defendant in this action asked this Court to grant his client a default order for the failure of the defendant to respond to the complaint. I unhesitatingly granted the default order.\\nThere was even a third motion on that same day of May 15. The defendant was long overdue on a responsive pleading to the complaint. Motion granted!\\nOn the day of writing this Memorandum Opinion (May 22, 1972), there was presented to the Court a motion to dismiss a civil action appeal for failure to prosecute. Appellant's attorney filed an opposition statement, describing an intra-law office difficulty in getting the brief composed. The lawyer representing the appellant knew nothing of the facts of the case and was unable to advise the Court as to the merits of the appeal. Lacking a good reason for their neglect and showing no meritoriousness of the appeal, appellant \\\"had his day in court\\\".\\nIn the case sub judice, the firm of attorneys representing the defendant in default is one of the best and most aggressive firms of attorneys in the Virgin Islands. However, its excuses for failing to respond within the time agreed upon were so weak they do not deserve being mentioned. The attorney in this case, who pressed this Court for an Order of Default, is a recently admitted member of the Bar. It is refreshing to see a young neophyte stand up to the veterans. It gives us pause to think that we veterans can and should learn from the young set.\\nAfter the conclusion of the arguments in this case, I took the matter under advisement so that I would have more time to study the pleadings and memoranda annexed to the motions. I was looking for a meritorious defense. There may be a meritorious defense, but if there is, it has not been divulged to me. Under all the circumstances, I cannot justify vacating my default order.\\nFor the reasons above stated, I will enter an Order this date dismissing defendant's order [sic] to vacate and setting a time for an evidentiary hearing on the question of damages.\\nBohlke v. Interstate Air Service, No. 307/71.\\nKodak Caribbean Ltd. v. Russel & Zee, Inc., No. 58/72.\\nChase Manhattan Bank v. The Frigate & James Punter, No. 152/72.\\nJoseph v. Tyrell, No. 338/1971.\"}"
\ No newline at end of file
diff --git a/vi/1115688.json b/vi/1115688.json
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--- /dev/null
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+"{\"id\": \"1115688\", \"name\": \"ZINKE-SMITH, INC., a corporation of the State of Florida, Plaintiff v. WALTER MARLOWE, CLARE MARLOWE and HANS LOLLIK CORPORATION, a corporation of the United States Virgin Islands, Defendants\", \"name_abbreviation\": \"Zinke-Smith, Inc. v. Marlowe\", \"decision_date\": \"1971-03-16\", \"docket_number\": \"Civil No. 348-1970\", \"first_page\": 240, \"last_page\": \"243\", \"citations\": \"8 V.I. 240\", \"volume\": \"8\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:48:48.678967+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ZINKE-SMITH, INC., a corporation of the State of Florida, Plaintiff v. WALTER MARLOWE, CLARE MARLOWE and HANS LOLLIK CORPORATION, a corporation of the United States Virgin Islands, Defendants\", \"head_matter\": \"ZINKE-SMITH, INC., a corporation of the State of Florida, Plaintiff v. WALTER MARLOWE, CLARE MARLOWE and HANS LOLLIK CORPORATION, a corporation of the United States Virgin Islands, Defendants\\nCivil No. 348-1970\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nMarch 16, 1971\\nSee, also, 323 F.Supp. 1151\\nLoud, Campbell and Dennenberg, Esq. (Roger D. Campbell, Esq., of counsel), Charlotte Amalie, St. Thomas, V.I., for the plaintiff\\nSidney A. Cohen, Esq., Charlotte Amalie, St. Thomas, VX, for the defendants\", \"word_count\": \"725\", \"char_count\": \"4510\", \"text\": \"CHRISTIAN, Chief Judge\\nMEMORANDUM AND ORDER\\nIn its prayer for relief in this debt action, plaintiff seeks, among other things, the appointment of a receiver for the defendant corporation to collect and conserve its assets \\\"for the benefit of the creditors of the defendant corporation and the general public.\\\"\\nAlthough there is, in this record, some evidence that suggests mismanagement of the defendant corporation by the principal individual defendant, and notwithstanding the fact that on the evidence thus far adduced the corporation is apparently in financial difficulty, I nonetheless conclude that the application for the appointment of a receiver should be denied.\\nThe appointment of a receiver is a matter within the sound discretion of the court, and each case must be determined upon its own conditions and circumstances, and in exercising this right the courts should ever keep in mind that a receiver is, like an injunction, an extraordinary remedy, and ought never be made except in cases of necessity, and upon a clear and satisfactory showing that the emergency exists, in order to protect the interests of the plaintiff in the property involved. The power of appointing receivers is one which the courts have said should be sparingly exercised and with great caution and circumspection. (Citations omitted.) Ford v. Taylor, 137 Fed. 149, 150 (9 Cir. 1905).\\nThe passage of time has in no way diminished the soundness nor the vitality of the foregoing principles and absent a showing that the property of the defendant corporation is in grave and imminent danger of dissipation, the granting of this extraordinary relief could not be justified. Gordon v. Washington, 295 U.S. 30 (1935); Ford v. Taylor, supra; Mintzner v. Arthur L. Wright Co., 263 F.2d 823 (3 Cir. 1959).\\nIt is undeniable that virtually all of the proceeds of a loan from the Virgin Islands National Bank to the corporation has been spent. The evidence before the Court is insufficient, however, to warrant the conclusion that such monies have been improperly spent. If such be the case, this is a fact yet to be proved. The main asset of the corporation, though encumbered, remains intact and the likelihood of its loss or dissipation has not been demonstrated.\\nThe determination as to the claimed mismanagement or fraud which would justify appointment of a receiver must await a further evidentiary hearing. At that time, a more thorough exploration of the corporation's financial condition can be conducted. The matter of the necessity for services purchased and the reasonableness of fees charged (including those paid to defendant Walter Marlowe) may be examined. Further, the nature of the project or development being undertaken by the corporation would command that only on the most cogent and compelling grounds should a receiver be appointed at this time. The special promotional skills and experience which the individual defendants bring to the business could well be a most important factor to be considered. See, Cumberland Publishing Co. v. Adams Real Estate Corporation, 432 S.W.2d 808 (1968). Moreover, placing the corporation in receivership would be a move hardly calculated to improve its prospects of receiving the financial assistance which, in any case, must and will be needed.\\nResolution of the question of whether Zinke-Smith, Inc., is or is not a secured creditor likewise must await the taking of further testimony. Explication of the agreement of May 2, 1969, on which Zinke-Smith bottoms its claim to secured creditor' status, and of all the surrounding circumstances, is a must, as enough facts, which would enable the Court to conclude one way or the other, cannot be gleaned from the present state of the record. The present appointment of a receiver would be inappropriate.\\nORDER\\nThe premises considered, and the Court being fully advised,\\nIT IS ORDERED, that the application for- the appointment of a receiver for the defendant corporation be and is hereby denied.\"}"
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diff --git a/vi/1115705.json b/vi/1115705.json
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index 0000000000000000000000000000000000000000..8808bb4ce39b68c9678c7519956f36a235d1d702
--- /dev/null
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+"{\"id\": \"1115705\", \"name\": \"ALLAN NEAL & ANDREE NEAL, Husband and Wife, Plaintiffs v. GRAPETREE BAY HOTELS, INC., a Virgin Islands Corporation and CASSAVA GARDENS, LTD., a Virgin Islands Corporation, Defendants\", \"name_abbreviation\": \"Neal v. Grapetree Bay Hotels, Inc.\", \"decision_date\": \"1971-09-13\", \"docket_number\": \"Civil No. 383-1970\", \"first_page\": 267, \"last_page\": \"278\", \"citations\": \"8 V.I. 267\", \"volume\": \"8\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:48:48.678967+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ALLAN NEAL & ANDREE NEAL, Husband and Wife, Plaintiffs v. GRAPETREE BAY HOTELS, INC., a Virgin Islands Corporation and CASSAVA GARDENS, LTD., a Virgin Islands Corporation, Defendants\", \"head_matter\": \"ALLAN NEAL & ANDREE NEAL, Husband and Wife, Plaintiffs v. GRAPETREE BAY HOTELS, INC., a Virgin Islands Corporation and CASSAVA GARDENS, LTD., a Virgin Islands Corporation, Defendants\\nCivil No. 383-1970\\nDistrict Court of the Virgin Islands Division of St. Croix\\nSeptember 13, 1971\\nRussell B. Johnson, Esq., Christiansted, V.I., for the plaintiffs\\nWarren H. Young, Esq., Christiansted, V.I., for the defendants\", \"word_count\": \"2714\", \"char_count\": \"16600\", \"text\": \"CHRISTIAN, Chief Judge\\nOPINION\\nPlaintiffs have brought this action against the defendant corporation seeking injunctive relief. The facts necessary to a decision in this cause are virtually undisputed, and as hereinafter set forth they constitute my finding of fact in the case.\\nEast End Development Corporation, a Delaware corporation, not party to this suit and in no way involved in it, acquired substantial acreage in the East End quarter of St. Croix, Virgin Islands. The estates involved were originally known as Estates Grapetree Bay, Slob and Turner's Hole. Estates Slob and Grapetree Bay subsequently came to be divided into North and South Slob and North and South Grapetree Bay.\\nBy deed of June 9, 1959, East End Development Corporation conveyed a subdivision of North Slob described as Plot No. 11 to David C. and Melva D Schnabel. The Schnabels, in turn, conveyed that plot to the plaintiffs herein by deed of May 5, 1960. Plaintiffs also owned Plot No. 66 of South Slob and Plot No. 16 of Parcel No. 33 of North Slob.\\n. In subdividing Estate Slob and conveying plots in that subdivision, East End Development Corporation imposed certain covenants and restrictions, to the end, that a substantial portion of Slob including Plot No. 11 would forever remain a strictly residential subdivision, one single-family dwelling on each plot, with separate garage and guest house permitted. Servants quarters were also permitted so long as the same was included in either the main dwelling or the garage. Manufacturing, merchandising, trade and professional practice other than architecture was expressly forbidden and among the specifically enumerated types of operations excluded were hospitals and convalescent homes. The Schnabel deed recited that,\\n\\\"The premises herein conveyed are a part of Estate Slob. Grantor reserves the right to set aside from Estate Slob a beach, recreational area and yacht marina for the use of property owners in Estates Turner Hole, North and South Slob, and North and South Grapetree, and to have a hotel constructed therein. Grantor further reserves an area south of the public road for development as a community center, shopping center and for other facilities designed to serve the needs of property owners in the five aforementioned estates. All property owners in Estate Slob shall have a perpetual easement of use and enjoyment of recreational facilities herein-above described. Such use, however, shall be subject to the rules, regulations, dues, fees, and/or rates, if any, which may be established from time to time by the owner or operating management of said facilities. The balance of Estate Slob, which includes specifically the property above described and hereby conveyed (Plot No. 11 conveyed to David and Melva Schnabel) shall comprise the residential subdivision and shall be subject to the restrictions and covenants hereinbelow set forth.\\\"\\nPlaintiffs acquired Plot No. 11 subject to all of the conditions, covenants and restrictions contained in the Schnabel deed.\\nThe two corporate defendants are Virgin Islands corporations. Defendant, Cassava Gardens, Ltd., proposes to erect a convalescent home with an apartment complex on Plot No. 33 of Estate North Slob. The apartments are to be occupied by those who would staff the convalescent home, as well as any other persons who might rent such apartments in connection with their rest or treatment at the convalescent home. Plot No. 33 is a portion of the premises described as the area which the Schnabel grantor had reserved which lies south of the public road, and which had been reserved \\\"for development of a community center, shopping center, and for other facilities designed to serve the needs of the property owners\\\" in Estate North Slob and South Slob, North and South Grapetree Bay and Turner's Hole.\\nDefendant, Cassava Gardens, Ltd., applied to the Planning Board for a special exception and variance which would permit it to erect the proposed convalescent home and apartment complex on Plot No. 33. This application was made necessary by the fact that the area in which Plot No. 33 lies is zoned R-10 (One or Two-Family Residential. See 29 V.I.C. section 266). At the hearing before the Planning Board, these plaintiffs, among others, opposed Cassava Gardens, Ltd.'s, application. The Board ruled favorably on the application and plaintiffs appealed to the Board of Zoning, Subdivision and Building Appeals. This suit was brought while that appeal was pending. The Board of Zoning, Subdivision and Building Appeals has, since the pendency of this suit, upheld action of the Planning Board.\\nIt appears that one, Fairleigh S. Dickerson, Jr., was the sole stockholder of East End Development Corporation. That corporation conveyed to him the entire remainder of Estate Slob consisting of some 86 U.S. acres. Out of that remainder, Dickerson carved out a plot designated No. 27 and gave the same to Fairleigh Dickerson University which then proceeded to construct a marine biology laboratory thereon. Plot No. 27, like Plot No. 33, lies within the reserved area south of the public road to which reference was made above. Prior to the construction of the marine biology laboratory, the University applied for and obtained a special exception and variance from the Planning Board. It does not appear that any of the parcelists in Estate Slob, Grapetree Bay and Turner's Hole opposed the University's application. Admittedly, these plaintiffs, with full knowledge of the University's proposed laboratory, did not appear and filed no objection whatsoever. There was some suggestion that it had been their intention to offer opposition, but either through their inadvertence or through the inadvertence of their counsel, this was not done. In any event, it is undisputed that no objection was filed by them nor on their behalf to the proposal of the Fairleigh Dickerson University to erect the marine biology laboratory. That facility was substantially erected by the time this suit was brought and it would appear is now fully completed and functioning.\\nIt should be noted that the proposed convalescent home, in its first phase, will consist of a 50 bed unit with plans for expansion up to 100 beds. Initial plans for the apartment complex call for 50 apartments, again with plans for expansion which would double that number. The persons who will make use of the convalescent homes and apartments may include those residents of the five estates above mentioned who desire to utilize the facilities but it will not be limited to them. The facilities will be open to all persons residing in the Virgin Islands, presumably, and also to any mainland residents who find the use of such facilities necessary or desirable.\\nPlaintiffs seek to enjoin the use of Plot No. 33 for the construction and operation of the rest or convalescent home and integrated living operation for the erection of which Cassava Gardens obtained permission from the public authorities.\\nSeveral issues are raised by the pleadings, admissions of parties and the testimony adduced at trial, namely,\\n1. Are there any restrictions which would bar the proposed use of Plot No. 33?\\n2. Given the existence of the restrictions, have they been waived by plaintiffs?\\n3. Admitting the existence of the restrictions, do these plaintiffs have standing to raise them?\\n4. Does Cassava Gardens proposal fall within meaning of \\\". . . community center\\\" or \\\"other facilities designed to serve the needs of the property owners in the five before mentioned estates ?\\\"\\nI first deal with the matter of waiver. Defendants contend that whatever rights plaintiffs may have had, if any, to enforce restrictive covenants against the remainder of North Slob lying south of the public road, they waived the same by their failure to object to the erection of the marine biology laboratory by Fairleigh Dickerson University. It is true that such a marine biology laboratory cannot be said to be the type of community or other facility for the benefit of the home owners as contemplated by the parties in the Schnabel deed, but if these plaintiffs had the right to enforce restrictive covenants as they claim, such right is not so easily lost on the theory of waiver. The permission of one violation of a restrictive covenant without objection does not constitute a waiver as to other such violations. Eichlesbach v. Harding, 309 S.W.2d 681 (Mo. 1958). In Eichlesbach, 29 out of 160 parcelists had violated certain restrictions against erecting fences. Holding that the failure of lot owners to object despite relatively widespread violation did not constitute a waiver, the Court said:\\nReceiving universal recognition is the principle that where, as here, the restrictions apply to an entire subdivision, and are part of an overall scheme designed for the. benefit of all property owners in the restricted area, violations must be so general as to indicate an intention or purpose on the part of those residing in the subdivision to abandon the plan or scheme intended to be maintained by force of the restrictions, (citations omitted.)\\nSimilarly, in Titus v. Kopacz, 359 Mich. 671, 103 N.W.2d 344 (Mich. 1960), 14 violations on 163 lots were not deemed sufficient to establish a waiver. Nor would the \\u00e1cceptance of minor violations constitute such waiver as would bar objection against more serious violations of covenants. Hendricks v. Bowles, 20 Ill. App.2d 148, 155 N.E.2d 644 (Ill. 1959); Jeffrey v. Lathrup, 303 Mich. 15, 101 N.W.2d 827 (Mich. 1961). Even where parties have acquiesced in violations respecting lots some distance removed from theirs, they were still held to have reserved their right to object to similar violations as to. lots closer to theirs where no intention to abandon the general scheme or plan was shown. Brideau v. Grissou, 369 Mich. 661, 120 N.W.2d 829 (Mich. 1962).\\nIn the case at bar, I find nothing in the evidence which would indicate an intention on the part of plaintiffs to abandon their overall plan as originally conceived and stated in the covenants and restrictions in the Schnabel deed. The acceptance of the marine biology laboratory standing alone is not sufficient to evidence such intention. No other violations of the covenants and restrictions have been mentioned or suggested and I therefore assume that there have been none. Thus, I conclude that in these circumstances, no waiver may be ascribed to these plaintiffs of any right which they may have in the premises and that they cannot be barred from the relief they seek on the basis of waiver.\\nNext, defendants mount a challenge to plaintiffs standing to enforce the covenants and restrictions, assuming the existence of the same. The proposed convalescent home and apartment complex, as we have seen, is to be located in the area \\\"south of the public road\\\" which the grantor reserved,\\nfor development as a community center, shopping center and for other facilities designed to serve the need of the property owners in the five aforementioned estates.\\nPlaintiff's Plot No. 11, through which he acquired such rights of enforcement as he may have, is located in that portion of North Slob described as,\\n\\\"the balance of Estate Slob . . . shall comprise of the residential subdivision and shall be subject to the restrictions and covenants herein below set forth.\\\"\\nDefendants urge that plaintiffs being the owners having proprietary interest in the residential areas only, cannot be heard to complain about anything done or erected in the areas reserved \\\"south of the public road\\\", for the restrictions which burden Plot No. 11, defendants claim, have no application to that reserved area. Defendants conclude that if they are indeed violating any overall restrictions or plans, only their grantor, and no other person, can enforce compliance against them. I do not reach the same conclusion. I find an intention of the original grantor, \\\"East End Development Corporation\\\", to benefit Plot No. 11 owned by plaintiffs by the restrictions which it imposed on the reserved area. That intention, I glean from the language of the documents which I have examined and the surrounding restrictions.\\nPlaintiffs allege the existence of a general scheme or plan for the development of the entire area as a residential neighborhood. Whether or not such a plan does exist is the question of fact which the party urging such plan and the enforcement thereof have the burden of proving.\\nThe general theory behind the right to enforce restrictive covenants is that the covenants must have been made with or for the benefit of the one seeking to enforce them. The violation of a restrictive covenant creating a negative easement may be restrained at the suit of one for whose benefit the restriction was established irrespective of whether there is privity of estate or contract between the parties, or whether an action at law is maintainable. The action of court of equity in such cases is not limited by rules of legal liability and does not depend upon legal privity of estate, or require that the parties invoking the aid of the court should come in under the covenant, if they are otherwise interested. The rule is well established that where a covenant in a deed provides against certain uses of the property conveyed which may be morious [sic] or offensive to the neighborhood, inhabitants, those suffering from a breach of such a covenant, though not parties to the deed may be afforded relief in equity upon a showing that the covenant was for their benefit as owners of neighboring properties. Osius v. Barton, 147 S. 862, 865 (Fla. 1933).\\nI find that the plaintiffs have shown that the reservation of the area in question for use as a community center was for their benefit and that such restriction was a part of the general plan of development intended to benefit their plot. The Schnabel deed specifically states that the permitted use of the reserved area should be such as was \\\"designed to serve the needs of the property owners in the five aforementioned estates.\\\" Plaintiffs come squarely with in this classification. The deeds, other than the Schnabel deed, either by express terms or by reference, incorporated the terms, restrictions and covenants which were designed to insure the perpetuation of the overall plan which I have found to exist. I see no way of avoiding the conclusion that these restrictions, part of the overall plan of development, were to inure to the benefit of all of the parcelists in the five estates in question. It was within the grantor's (East End Development Corporation) power to reserve and restrict the use of that area as it saw fit. It was likewise within that grantor's power to benefit whom it chose. I find that it was the grantor's specific intention to benefit persons in the position of these plaintiffs and the reliance of these plaintiffs on the restrictions which would maintain the character of the neighborhood is not misplaced. See Community Builders, Inc. v. Scarborough, 149 So.2d 141 (Ga. 1963); See also the following annotations dealing with \\\"who may enforce restrictive covenants\\\", 21 A.L.R. 1286; 33 A.L.R. 676; 60 A.L.R. 1224; 89 A.L.R. 812.\\nDefendants point and would make something on the fact that the deed from East End Development Corporation to Dickerson executed in 1962 omitted the usual restrictions and covenants and included a provision not found in the other documents. I find no relevance in this to the issues of this case and, therefore, leave it out of consideration.\\nThe final issue for determination is whether or not the convalescent home and apartment complex, as planned, may be considered as \\\"designed to meet the needs of the property owners in the five aforementioned estates.\\\" Having in mind the size of that operation, the wide area to which its advertisement would be beamed, the type of service or services it would offer, I find that it cannot be so defined. Its benefits to the property owners, as such, would be minimal. I find that it is clearly excluded from the uses permitted in the reserved area within which Plot No. 33 falls.\\nAccordingly, I conclude that plaintiffs are entitled to the injunctive relief they seek. Let judgment be entered.\"}"
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+"{\"id\": \"1117137\", \"name\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. PATROLMAN LEON LENHARDT and Patrolman Spears, Defendants; GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. CASWELL CALLENDAR, Defendant\", \"name_abbreviation\": \"Government of Virgin Islands v. Lenhardt\", \"decision_date\": \"1969-11-14\", \"docket_number\": \"Crim. Case No. 1221-1969; Traffic Case No. 4674-1969\", \"first_page\": 406, \"last_page\": \"410\", \"citations\": \"7 V.I. 406\", \"volume\": \"7\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Virgin Islands Municipal Court\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T22:53:43.588677+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. PATROLMAN LEON LENHARDT and Patrolman Spears, Defendants GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. CASWELL CALLENDAR, Defendant\", \"head_matter\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. PATROLMAN LEON LENHARDT and Patrolman Spears, Defendants GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. CASWELL CALLENDAR, Defendant\\nCrim. Case No. 1221-1969\\nTraffic Case No. 4674-1969\\nMunicipal Court of the Virgin Islands Dist. of St. Thomas and St. John\\nNovember 14, 1969\", \"word_count\": \"1217\", \"char_count\": \"7411\", \"text\": \"HOFFMAN, Municipal Judge\\nSENTENCE\\nBefore calling on the Defendants, individually, prior to sentencing, the Court informs them and their counsel that the Presentence Reports submitted by the Probation Officer concerning them reflects the following:\\nAs to defendant LEON LENHARDT: He has no criminal record, but his departmental record reveals one commendation and three actions of a disciplinary nature;\\nAs to defendant JAMES SPEARS: He has no criminal record and no departmental disciplinary actions or commendations ;\\nAs to defendant CASWELL CALLENDAR: A conviction in 1961 for aggravated assault and battery.\\nJUDGMENT\\nI now have the sorry task to sentence two officers of the Virgin Islands Department of Public Safety found guilty, after a lengthy trial, of oppression in the making of an arrest for a traffic violation. I must also sentence the citizen traffic violator who pleaded guilty to going the wrong way in a one-way street.\\nOppression can be defined as the exercise of authority or power in a burdensome, cruel or unjust manner. It is this that the Court found both officers guilty of; that is, the use of force and violence disproportionate to the exigencies of the incident. It has been said that a jury in a case such as this ought not to weigh the conduct of the officer in gold scales; that the presumption is, he acted in good faith. This, the Court did do in this case but was compelled from the facts adduced at the trial to find that the officers' conduct was unnecessarily harsh and uncalled for. This was a simple traffic incident. Even if the Citizen traffic violator was impudent to Officer Lenhardt, it would seem to the Court that delivery of the ticket he was already in the process of issuing would have been sufficient. The subsequent use of billy and revolver on the traffic violator is, in the Court's opinion, not warranted. Further, the drawing of their revolvers by both officers was likewise uncalled for. In addition, the testimony that numerous \\u2014 twenty I believe the record indicated \\u2014 officers arrived on the scene to subdue and arrest one lone traffic violator is, to the Court, inexplicable; particularly, when later one Lieutenant was able to bring this about without great fuss. Also, inexplicable, is why none of those officers were present to testify unless their testimony would add nothing to the Court's understanding of the incident; which the Court is hard pressed to believe.\\nThe conduct of the defendant, James Spears, can only be condoned or understood when we bear in mind the fact that he was new to the force starting his service on June 24, 1969. But defendant Officer Lenhardt has been on the force since May 18,1964.\\nBoth officers entered the police service after honorable service and discharge from the Armed Forces; Defendant Officer Spears with six years in the U.S. Army Reserve and Defendant Officer Lenhardt with two years in the U.S. Army, leaving it with an award of the Good Conduct Medal.\\nThe probation officer's report reveals that Officer Spears had no departmental disciplinary actions nor any commendations during his short tenure in office. Officer Lenhardt, on the contrary; although his overall rating up to July 4, 1969 was considered satisfactory by his superiors, was before the Police Commission on May 3, 1966 for (1) Conduct Unbecoming a Police Officer; (2) Gross Disrespect of Superior Officer; (3) Drawing and Exhibiting a deadly weapon (his service revolver). He was found guilty of this third charge only and suspended five days. In 1969 \\u2014 January 9th, he was commended for his efforts in the rescue of the mother of Mrs. McIntyre Bridges and subsequently on May 8, 1969 was awarded the Departmental Medal of Honor. On April 18, 1969 he was given an oral warning by Police Captain Raymond Chesterfield for his discourteous conduct to one Mr. Don Smith. Finally, on April 22, 1969 he was reprimanded by then Commissioner Otis Felix for abusive conduct toward Bernard Lichtenstein, a citizen, which allegedly occurred during the time that he had stopped him for a traffic violation.\\nThe Court is mindful and sympathetic of the difficulties encountered by officers in the discharge of their duties. However, this incident highlights clearly the need for the Department of Public Safety to more carefully scrutinize the behaviour of their officers, where needed, so that the required education and training is afforded them so that the Department's image with the Public is improved and its officers receive intensive education in how to conduct themselves when dealing with the Public, as well as in the use of guns or other defensive weapons where an arrest is necessary.\\nCertainly, there should be some demarcation point between serious criminal violations and minor traffic violations. If this were not so, we would not permit officers to issue traffic tickets, as is done in the Virgin Islands since incorporation into our law of the Uniform Traffic ticket procedure.\\nFinally, in reference to Officer Lenhardt, the Court cannot but feel that despite the silence of the presentence report and the testimony, that the real reason for this traffic incident burgeoning into the sorrowful end it did, has not been divulged and that the true relationship that may have existed between Lenhardt and Citizen Callendar not revealed.\\nConviction of the two officers, carries I am sure, great stigma on their conduct and record. Further harsh punishment beyond the Departmental action that these two officers must still face is not needed, in the Court's opinion, to deter a repetition by these officers of their unseemly conduct in this affair.\\nAccordingly, the sentence of the Court as to Defendant Lenhardt is that he shall be fined One Hundred Dollars ($100.00).\\nThe sentence of the Court, as to Defendant Spear, is that he shall be fined Fifty Dollars ($50.00).\\nThe Court now considers the guilty plea of Defendant Callendar. Although the Court can understand that the Defendant might have been confused as to whether the street was one or two way because of the frequent changes made by the Department of Public Safety; it, nonetheless, deplores and specifically frowns upon the conduct of the defendant and his wife in the use of sarcastic and unflattering comments at the time of the incident in the hearing of Officer Lenhardt. The Court hopes that the defendant and others who may find themselves similarly situated reserve voicing their displeasure concerning an officer's conduct until they can report it to that officer's superiors for necessary disciplinary action, if warranted.\\nUnder the circumstances, and in view of the physical abuse suffered by defendant Callendar, he is fined Ten Dollars ($10.00) and payment of the fine is suspended.\\nA copy of this judgment shall be transmitted to the Commissioner of Public Safety with the suggestion that he obtain a copy of the transcript of the record in this case in order for him to determine what Departmental action he deems required, as reflected by the record.\\nThe payment of the fines ordered above is stayed, pending filing of appeal, if any.\"}"
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+"{\"id\": \"1117208\", \"name\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. LEE KELBERT, Defendant\", \"name_abbreviation\": \"Government of Virgin Islands v. Kelbert\", \"decision_date\": \"1970-07-27\", \"docket_number\": \"Traffic Nos. 153-1969, 8716-1969; Criminal Nos. 1745-1969, 1746-1969\", \"first_page\": 433, \"last_page\": \"436\", \"citations\": \"7 V.I. 433\", \"volume\": \"7\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Virgin Islands Municipal Court\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T22:53:43.588677+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. LEE KELBERT, Defendant\", \"head_matter\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. LEE KELBERT, Defendant\\nTraffic Nos. 153-1969, 8716-1969\\nCriminal Nos. 1745-1969, 1746-1969\\nMunicipal Court of the Virgin Islands Div. of St. Thomas and St. John\\nJuly 27, 1970\\nWilliam W. Bailey, Attorney (Bailey, Wood & Rosenberg), St. Thomas, V.I., for the defendant\\nArnold M. Selke, Assistant Attorney General, St. Thomas, V.I., in behalf of the Government\", \"word_count\": \"533\", \"char_count\": \"3046\", \"text\": \"HOFFMAN, Municipal Judge\\nOPINION\\nThe incidents in dispute occurred on the Macadam Road paralleling the main entrance to the Truman Airport in St. Thomas. The defendant contends that he may not be convicted of the motor vehicle infractions that he has been charged with violating because he contends this road is not a public highway.\\nWe hold that the area in question is open to and used by the public and that a person operating a vehicle in this area is within the purview of 20 VIC \\u00a7 497 and 20 VIC \\u00a7 503 and subject to these provisions. In statutes such as these it is well settled that the word \\\"highways\\\" is to be used in its popular rather than its technical sense so as to apply to all roads travelled on by the public. State v. Bartlett, 394 SW2d 434. Phillips v. Henson, 30 SW2d 1065. Kelly v. Lahey, 235 SW2d 177. The area here involved is certainly a \\\"road travelled on by the public\\\" so as to fall within the scope of both statutes.\\nOur holding in this case is in no sense inconsistent with our holding in Government of the Virgin Islands v. Kent Webster, 6 VI 28 (1968). In that case this Court held that the Bed Hook Dock was not a \\\"public highway\\\" within the purview of 20 VIC \\u00a7 503. On page 30 of the Webster Case this Court was careful to point out that \\\"the accident happened on the dock itself, rather than upon the road leading to it.\\\"\\nThe legislation creating the Port Authority (29 VIC \\u00a7 531 et seq.) although broad in scope does not appear to delegate to this agency police powers which would enable it to determine traffic violations and establish penalties for the same. In view of this holding and the concession by the Government that the no parking sign with which we are here concerned was posted by the Port Authority and not the Police as was testified to at the trial, the Court must dismiss Traffic Case No. 8716-1969. The defendant's conduct, however, in flaunting the officer's admonition not to park \\u2014 regardless of his expressed reasons \\u2014 is not to be condoned. It was the duty of the defendant to obey the officer's command to move. Had the defendant been charged with disregarding a policeman's lawful order (20 VIC \\u00a7 491 (b)) he could have been found guilty.\\nAfter due deliberation the Court further finds the defendant not guilty in: Criminal No. 1745-1969; Criminal No. 1746-1969; and in Traffic No. 153-1969. From the totality of the evidence adduced at the trial of these cases, the Court cannot in good conscience find that the Government has sustained its burden of establishing beyond a reasonable doubt that the defendant was guilty of negligent driving or of aggravated assault and battery.\"}"
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diff --git a/vi/1119586.json b/vi/1119586.json
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+"{\"id\": \"1119586\", \"name\": \"THE VIRGIN ISLANDS TERRITORIAL BOARD OF REALTORS, SAM PIVAR, d/b/a \\\"Pivar Real Estate\\\", GILMORE ERIKSON AND DONN SCHINDLER, d/b/a \\\"Erikson, Schindler & Associates\\\", and CARIBBEAN PROPERTIES, INC., Plaintiffs v. REUBEN WHEATLEY, Commissioner of Finance, Government of the Virgin Islands, Defendant\", \"name_abbreviation\": \"Virgin Islands Territorial Board v. Wheatley\", \"decision_date\": \"1967\", \"docket_number\": \"Civil No. 19-1965\", \"first_page\": 185, \"last_page\": \"195\", \"citations\": \"6 V.I. 185\", \"volume\": \"6\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T18:09:32.537959+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE VIRGIN ISLANDS TERRITORIAL BOARD OF REALTORS, SAM PIVAR, d/b/a \\u201cPivar Real Estate\\u201d, GILMORE ERIKSON AND DONN SCHINDLER, d/b/a \\u201cErikson, Schindler & Associates\\u201d, and CARIBBEAN PROPERTIES, INC., Plaintiffs v. REUBEN WHEATLEY, Commissioner of Finance, Government of the Virgin Islands, Defendant\", \"head_matter\": \"THE VIRGIN ISLANDS TERRITORIAL BOARD OF REALTORS, SAM PIVAR, d/b/a \\u201cPivar Real Estate\\u201d, GILMORE ERIKSON AND DONN SCHINDLER, d/b/a \\u201cErikson, Schindler & Associates\\u201d, and CARIBBEAN PROPERTIES, INC., Plaintiffs v. REUBEN WHEATLEY, Commissioner of Finance, Government of the Virgin Islands, Defendant\\nCivil No. 19-1965\\nDistrict Court of the Virgin Islands Div. of St. Croix Christiansted Jurisdiction\\nYoung, Isherwood & Marsh, Christiansted, St. Croix, Virgin Islands, for plaintiff\\nFrancisco Corneiro, Attorney General, Charlotte Amalie, St. Thomas, Virgin Islands, for Government\", \"word_count\": \"2439\", \"char_count\": \"15082\", \"text\": \"MARIS, Circuit Judge\\nOPINION\\nThis is an action against the Commissioner of Finance of the Government of the Virgin Islands in which a judgment is sought declaring that all gross receipts of Virgin Islands real estate brokers from fees and commissions earned in the course of conducting a real estate brokerage business come within the exemption clause of the Virgin Islands gross receipts tax statute, 33 V.I.C. \\u00a7 43 (a). This section, in pertinent part, reads:\\n\\\"(a) All .persons engaged in business including those trading in articles, goods, merchandise or commodities shall report their gross receipts and pay a tax of two percent on the gross receipts of such business . . . This section shall not apply to artisans, fishermen, tradesmen, or professionals, such as are commonly understood to include doctors, lawyers, engineers, plumbers, electricians, barbers, etc., selling their skills or services on an individual and personal basis . . . .\\\"\\nThe plaintiff, The Virgin Islands Board of Realtors, is a non-profit corporation composed of realtors who perform their services as sole operators, as partners, or for corporations. The Board does not itself engage in the real estate brokerage business nor does it pay gross receipts tax to the Government. The other plaintiffs in this action are three individuals and a corporation who represent among them three different ways of conducting the real estate brokerage business.\\nThe plaintiff Sam Pivar operates a real estate brokerage business under the trade name \\\"Pivar Real Estate\\\" from an office which he maintains on King Street in Christiansted. He is the sole proprietor of the business and individ ually and personally performs the major part of the various services required in connection with the performance of the functions of a real estate broker. On occasion plaintiff Pivar performs real estate services on a co-brokerage basis in cooperation with other brokers. In the conduct of such transactions, Pivar's services may be furnishing a property listing, furnishing a buyer, seller or tenant, or contributing to the various functions of advising, negotiating, showing properties, or attending to the closing of a sale. The rate of commission received by plaintiff Pivar as a result of such a transaction varies with the extent of his participation. He derives other income from appraisals and real estate counselling services and from rental management. Plaintiff Pivar maintains another real estate office on Kings Wharf in Christiansted in which he rents desk space to other independent brokers over whom he exercises no control or supervision and, for a consideration, furnishes them with clerical service.\\nThe plaintiffs Gilmore Erikson and Donn Schindler operate a real estate brokerage business in Christiansted as equal partners under the partnership name \\\"Erikson, Schindler & Associates\\\". They share their earnings and expenses equally, performing their professional services individually and personally. As in the case of Pivar, they engage in co-brokerage activities cooperatively with other real estate brokers. Two independent real estate brokers have desk space in their office. No specific sum is paid for office rental but these independent brokers contribute to the expense of maintaining the office by contributing to the partnership a share of their fees and commissions. The partnership exercises no supervision or control over those brokers who share in the office space and expense.\\nThe plaintiff Caribbean Properties, Inc., is a business corporation engaged in the real estate brokerage business in Christiansted. Robert Schlesinger, a licensed real estate broker; is the president and sole stockholder and is employed by the plaintiff corporation as a real estate broker. The corporation engages in co-brokerage transactions with two brokers who share office space and who contribute to the office expense from fees and commissions derived from these transactions.\\nThe plaintiffs contend in this suit and ask me to declare by judgment that all fees and commissions received by real estate brokers, whether acting as individuals, as partners, or as an officer of a corporation who is its sole shareholder, are earned as the result of \\\"selling their skills or services on an individual and personal basis\\\" and therefore are exempt from payment of the gross receipts tax under the express language of section 43(a) of title 33, V.I.C., which I have quoted above.\\nBefore considering this question, however, I note the contention of the Government that the plaintiff Virgin Islands Territorial Board of Realtors lacks standing to maintain the cause of action it seeks to present here. The Government's position in this regard is well taken. The Board says that it is not attacking the constitutionality of the tax statute but merely seeks a judicial interpretation of it, a matter in which all its members are interest. It is a well settled principle, however, that a party must present an actual controversy in which he is involved, that is, he must be able to show that he has sustained or is in immediate danger of sustaining some direct loss or injury to his rights or property. Doremus v. Board of Education, 1952, 342 U.S. 429, 434; Roberts and Schaefer Company v. Emmerson, 1926, 271 U.S. 50, 54-55. The Virgin Islands Declaratory Judgments Act, 5 V.I.C. \\u00a7 1261 et seq., under which the power of this court is invoked, does not extend the jurisdiction of this court to the adjudication of .rights other than those which are directly affected. I conclude that the Board is not a proper party to this action. It will accordingly be dismissed as a plaintiff.\\nThe validity of the Virgin Islands gross receipts tax, 33 V.I.C. \\u00a7 41 et seq., was raised in Port Construction Co. v. Government of Virgin Islands, 3 Cir. 1966, 5 V.I. 549, 359 F.2d 663. In that case the Court of Appeals observed that the equal protection clause does not impose a rigid rule of equality of taxation. It does not prohibit those inequalities which may result from singling out one particular class for taxation or for exemption therefrom. See also Jefferson Constr. Overseas, Inc. v. Government of the Virgin Islands, 3 Cir. 1966, 5 V.I. 543, 359 F.2d 668; Virgo Corporation v. Paiewonsky, 3 Cir. 1967, 6 V.I. 256, 384 F.2d 569, 586. And it is a well-settled rule that statutory provisions granting tax exemptions are to be strictly and narrowly construed. King Christian Enterprises v. Government of the Virgin Islands, 3 Cir. 1965, 5 V.I. 170, 178, 345 F.2d 633, 637. A state has a very wide discretion in imposing taxes, limited by the requirement that it may not resort to a classification that is palpably arbitrary. Allied Stores of Ohio v. Bowers, 1959, 358 U.S. 522, 526-527. And the territory of the Virgin Islands has similar wide legislative power in this regard. Virgo Corporation v. Paiewonsky, 3 Cir. 1967, 6 V.I. 256, 384 F.2d 569, 581.\\nThe Government contends that the present case is governed by the rule laid down by the Court of Appeals in Antilles Surveys, Inc. v. De Jongh, 3 Cir. 1966, 5 V.I. 560, 358 F.2d 787, that individual real estate brokers \\\"selling their skills or services on an individual and personal basis\\\" are professionals who come within the exemption clause but that the exemption does not apply to corporations engaged in such activity. I agree.\\nCertainly the words of the statute are too plain to require construction. They cannot reasonably be given any other meaning than this. But plaintiff Caribbean Properties, Inc., argues that the facts presented by it in this case are distinguishable from those presented by Antilles Surveys, Inc. It urges that in this case we should pierce the corporate veil and look to the sole stockholder whom we should consider the person who is selling his skills or services on an individual and personal basis. It is true that circumstances do arise where the court must, in the interest of justice, pierce the corporate veil when to recognize the separate entity of the corporation would result in an injustice to innocent persons. But such action is not called for in this case. The only question here is whether the plaintiff corporation derives its income from services on a personal and individual basis. The plaintiff Caribbean Properties, Inc. concedes that a corporation can derive income from services only through the labor of its officers and agents and as a fictional person can never earn income from its own services. I fail to see any significance in the fact that the sole stockholder of plaintiff Caribbean Properties, Inc. carries on its business as its president and authorized broker or that there is a valid distinction to be made on the ground that only one broker is employed by the corporation. I conclude that plaintiff Caribbean Properties, Inc., since it employs a professional real estate broker to carry on its business, is not itself engaged in selling its services on an individual or personal basis within the meaning of the exemption clause of section 43(a), title 33, V.I.C.\\nThe plaintiffs Erikson and Schindler contend that they come within the exemption,' as construed in the Antilles Surveys, Inc. case, since their receipts are not from the labor of others but from their own individual and personal services. The Government, on the other hand, contends that since these plaintiffs perform their services under the firm name \\\"Erikson, Schindler & Associates\\\" and share their earnings they do not perform their services on an individual and personal basis, because each earns some income from the labor of the other. I cannot agree. Under the Virgin Islands Uniform Partnership Act, 26 V.I.C. \\u00a7 et seq., a partnership is not regarded as an entity separate and apart from its members. A partnership is defined as \\\"an association of two or more persons to carry on as co-owners a business for profit.\\\" 26 V.I.C. \\u00a7 21. This was the concept at common law and the Uniform Partnership Act has not changed it in those states and territories which follow the common law. Helvering v. Smith, 2 Cir. 1937, 90 F.2d 590; Jung v. Bowles, 9 Cir. 1946, 152 F.2d 726; Randolph Products Co. v. Manning, 3 Cir. 1949, 176 F.2d 190, 193, Mazzuchelli v. Silberberg, 1959, 29 N.J. 15, 148 A.2d 8. See cases cited in 68 C.J.S. Partnership \\u00a7 67, footnote 74.\\nIt thus appears that a partnership, in the setting of the present case, is wholly different from a corporation. For a corporation is a legal entity which itself does business through its officers, employees and agents, whereas a partnership is simply an association for convenience of two or more individuals, the partners, who themselves conduct the business either individually and personally or through employees and agents. Where, as in the case of plaintiffs Erikson and Schindler each of the partners devotes his individual and personal services to the business his exemption from the gross receipts tax is not lost merely because the receipts from his individual and personal services go into a common fund which he and his partner have set up for their convenience under their partnership agreement and the net proceeds of which they share. I conclude, therefore, that the receipts from brokerage business conducted through the individual and personal services of Erikson and Schindler are exempt from gross receipts tax.\\nWith respect to the plaintiff Pivar, the Government fully concedes that income derived from the performance of his services for his clients, such as interviewing clients, listing properties, interviewing various interested persons, and attending to the closings of sales, is exempt from payment of the gross receipts tax, provided the services are performed by Pivar himself and not by others employed by him, since such professional services are to be considered as performed by him on an individual and personal basis within the meaning of section 43(a), title 33, V.I.C. But the Government contends that when the plaintiff Pivar engages in co-brokerage activities in cooperation with other brokers, either as the broker making the referral or the broker to whom the referral is made, he earns his share of the commissions derived from the transaction as the result of the labors of others and hence is required to pay the gross receipts tax on such commissions. I do not agree.\\nIt seems to me that this situation is indistinguishable in principle from that of partners rendering individual and personal services to the clients of their partnership. For a cooperative co-brokerage transaction is a species of joint venture as is a partnership. Each of the brokers who performs individual and personal brokerage services in a cooperative co-brokerage transaction receives a share of the commission ultimately earned from the transaction which represents compensation for his share of the total services rendered and hence is a payment for his \\\"selling\\\" his \\\"services on an individual and personal basis\\\" within the meaning of the statute. It is in no real sense a payment for the services of others, his co-brokers, as the Government urges, since they each receive their share of the commission in payment for their own services. What has been said applies equally, of course, to the share of commissions received by the plaintiffs Erikson and Schindler, as partners, from co-brokerage transactions.\\nThe Government contends that the payments to the plaintiffs Pivar and Erikson and Schindler for rental of desk space and for clerical services, although paid out of commissions and fees earned by the personal services of independent real estate brokers, do not come within the plaintiffs' exemption. In this regard the Government is clearly right for such receipts from other brokers for desk space and clerical services supplied to them by the plaintiffs are not derived from the plaintiffs' own individual and personal services as real estate brokers. Such receipts are, therefore, subject to gross receipts tax.\\nThe Court of Appeals in the Antilles Surveys case found the classification of the statute to be reasonable, saying: \\\"Since it is our duty, where possible, to give a statute a meaning that would support it, rather than invalidate it . . . and since that can readily be done in this case by construing the exemption provision as limited to receipts attributable solely to the taxpayer's own personal services as above defined, we adopt that construction.\\\" [5 V.I. p. 564, 358 F.2d p. 790.]\\nA judgment will be entered in conformity with this opinion.\"}"
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+"{\"id\": \"1119650\", \"name\": \"John W. Newman, Esq., Attorney in Fact for BENEFICIAL INDUSTRIAL BANK, Plaintiff v. BOYD MONSANTO, Defendant\", \"name_abbreviation\": \"Newman v. Monsanto\", \"decision_date\": \"1967-08-18\", \"docket_number\": \"Civil No. 164-1967\", \"first_page\": 126, \"last_page\": \"128\", \"citations\": \"6 V.I. 126\", \"volume\": \"6\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Virgin Islands Municipal Court\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T18:09:32.537959+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John W. Newman, Esq., Attorney in Fact for BENEFICIAL INDUSTRIAL BANK, Plaintiff v. BOYD MONSANTO, Defendant\", \"head_matter\": \"John W. Newman, Esq., Attorney in Fact for BENEFICIAL INDUSTRIAL BANK, Plaintiff v. BOYD MONSANTO, Defendant\\nCivil No. 164-1967\\nMunicipal Court of the Virgin Islands Div. of St. Thomas and St. John\\nAugust 18, 1967\\nJohn W. Newman, Esq., for plaintiff\", \"word_count\": \"358\", \"char_count\": \"2110\", \"text\": \"HOFFMAN, Municipal Judge\\nORDER\\nFor the reasons stated in the Court's opinion of even date herewith denying a similar motion in Civil No. 207-1967, the motion of plaintiff's counsel to transfer this case to Parti, is DENIED.\\nThe Court would like to stress the point, however, that it shall always require attorneys to submit authority for their course of action or for the judgment they seek whenever this Court has doubts as to the legality or propriety of the lawsuit or course of conduct. Counsel should not take offense at such requests made by the Court, but should welcome them as an opportunity to have their views on the law explained in full to the Court which, after all, has an obligation to administer the law fairly and impartially, even in the absence of opposing counsel or in the event of default.\\nIn the instant case, the Court notes that Counsel has denominated himself as a party plaintiff. As plaintiff, it is the Court's considered opinion that he is a party in interest within the meaning of 3 V.I.C. \\u00a7 777. He is thus precluded from acknowledging, as a notary public, the affidavit of the defendant herein to a confession of judgment.\\nThe Court at this time makes no decision on the legality or propriety of counsel notarizing the affidavit of an adverse party, unrepresented by counsel, to a confession of judgment. It is, however, the Court's opinion that 3 V.I.C. \\u00a7 777 implements the protection of the public against fraud and imposition on the part of a notary public, thus forbidding him from notarizing any instrument to which he is an interested party. This, when considered in conjunction with Canon 9, of the Canons of Professional Ethics, raises some fundamental issues which are not today presented.\\nThe Court wishes it clearly understood, however, that it is not suggesting any unprofessional conduct on the part of counsel.\"}"
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+"{\"id\": \"1121199\", \"name\": \"PATRICIA J. O'NEILL and BRIAN PETERSEN, Plaintiffs v. ALBERT JAMES ENTERPRISES, INC., Defendant, PAUL DU\\u00c9, Intervenor/Defendant\", \"name_abbreviation\": \"O'Neill v. Albert James Enterprises, Inc.\", \"decision_date\": \"2004-11-09\", \"docket_number\": \"Civil No. 211/2004\", \"first_page\": 59, \"last_page\": \"69\", \"citations\": \"46 V.I. 59\", \"volume\": \"46\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T00:48:23.521770+00:00\", \"provenance\": \"CAP\", \"judges\": \"DONOHUE, Judge\", \"parties\": \"PATRICIA J. O\\u2019NEILL and BRIAN PETERSEN, Plaintiffs v. ALBERT JAMES ENTERPRISES, INC., Defendant, PAUL DU\\u00c9, Intervenor/Defendant\", \"head_matter\": \"PATRICIA J. O\\u2019NEILL and BRIAN PETERSEN, Plaintiffs v. ALBERT JAMES ENTERPRISES, INC., Defendant, PAUL DU\\u00c9, Intervenor/Defendant\\nO\\u2019NEILL v. ALBERT JAMES ENTERPRISES, INC.\\nCivil No. 211/2004\\nTerritorial Court of the Virgin Islands Division of St. Croix\\nNovember 9, 2004\\nANDREW C. Simpson, Esq., Christiansted, U.S. Virgin Islands, Attorney for Plaintiff.\\nDOUGLAS A. BRADY, Esq., Jacobs & Brady P.C., Christiansted, U.S. Virgin Islands, Attorney for Defendant.\\nWARREN B. Cole, Esq., Hunter, Cole and Bennett, Christiansted, U.S. Virgin Islands, Attorney for Intervenor/Defendant. \\u25a0\\nDONOHUE, Judge\", \"word_count\": \"3194\", \"char_count\": \"19652\", \"text\": \"MEMORANDUM OPINION\\n(November 9, 2004)\\nTHIS MATTER is before the Court on Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction seeking to restrain and enjoin Defendant, Albert James Enterprises, Inc. from selling the restaurant known as Caf\\u00e9 Madeleine, or Villa Madeleine, in order that they may invoke their rights under the Virgin Islands Plant Closing Act and purchase the restaurant.\\nIn their verified complaint, Plaintiffs do not offer specific facts to provide a, clear showing that \\\"immediate and irreparable injury, loss, or damage\\\" would result before Defendants could be heard in opposition. Neither did the complaint clearly demonstrate that the facts of this case satisfy the elements required for issuing an injunction under the Virgin Islands Plant Closing Act. Therefore, rather than grant Plaintiffs' Motion for Temporary Restraining Order without notice to the defendants, a hearing on Plaintiffs' motion and the request for Preliminary Injunction was held on May 10, 2004 and May 11, 2004.\\nPaul Du\\u00e9 filed a motion to intervene pursuant to Fed. Rule Civ. PROCEDURE 24(a). This Court granted the request to intervene, since the current action seeks to void the contract for sale between the Defendant and Intervenor Paul Du\\u00e9. At the Hearing, after all testimony and exhibits were received into evidence, both Defendant Albert James Enterprises, Inc. (Albert) and Intervener Paul Du\\u00e9 (Du\\u00e9) requested that this Court merge the hearing for preliminary injunction and permanent injunction into one. Albert and Du\\u00e9 oppose Plaintiffs' action and contend that the Plant Closing Act does not apply to the current case, and that even if the Act did apply, this court cannot enjoin past violations.\\nI. STATEMENT OF FACTS\\nPlaintiffs are both employed by Albert James Enterprises, Inc. as employees of Caf\\u00e9 Madeleine, where they both have worked for at least the last two seasons. Plaintiff, Patricia J. O'Neill, has been employed by Caf\\u00e9 Madeleine as a server and bartender for the last three seasons. Plaintiff, Brian Petersen, is a part-time employee of the restaurant for the last four seasons. He is also currently employed with Security Administration under the Office of Homeland Security for the last two years on a full-time basis.\\nVilla Madeleine Greathouse in Estate Teague Bay, St. Croix, U.S. Virgin Islands includes real estate, a business office and the restaurant, Caf\\u00e9 Madeleine. The restaurant is a business that is contained within the' property. Caf\\u00e9 Madeleine, on the average, employs at least ten (10) employees who work on a seasonal basis. A season is generally eight to ten months long, but is dependent upon the amount of business generated during the tourist season. The restaurant's 2003 season lasted from October 2002 to July 2003. The recent 2004 season lasted from November 2003 to May 9, 2004.\\nVilla Madeleine Greathouse was put on the market for sale in June 2002. Sometime between December, 2003 and March, 2004, Albert James Enterprises, Inc. received a verbal offer to purchase the Greathouse from a Mr. Kevin Brandt. On March 31, 2004, Defendant Albert James Enterprises and Defendant/Intervenor Paul Du\\u00e9 entered into a contract for the sale of the Villa Madeleine Greathouse, which included Caf\\u00e9 Madeleine. The sale of the Villa Madeleine Greathouse to Mr. Du\\u00e9 was scheduled to close on May 14, 2004.\\nShortly after Albert and Du\\u00e9 entered into the contract for the sale of Villa Madeleine Greathouse, Kevin Brandt offered Mr. Du\\u00e9 $50,000.00 to purchase Du\\u00e9's right to purchase Villa Madeleine Greathouse. Mr. Du\\u00e9 then demanded $300,000.00 for his right to purchase the property. On April 19, 2004, Paul Du\\u00e9's attorney received a letter from Kevin Brandt's attorney, wherein Mr. Brandt again offered to purchase Mr. Du\\u00e9's contract for $50,000.00. That letter of April 19, 2004 also seemed to threaten the use of litigation under the Virgin Islands Plant Closing Act should Mr. Du\\u00e9 continue to reject Mr. Brandt's offer to purchase the contract. In a letter dated April 28, 2004, Mr. Brandt increased his original offer of $50,000.00 to $100,000.00. This letter stated that this was the final offer, that no counteroffer would be considered and that the offer expired at 10:00 a.m. on April 29,2004.\\nOn or about May 3, 2004, Plaintiffs signed a document titled \\\"Agreement to Finance\\\" with Kevin M. Brandt, President of Save the Caf\\u00e9, Inc. The purpose of this agreement was to induce Plaintiffs as employees of Caf\\u00e9 Madeleine to file an action for a temporary restraining order and preliminary injunction to enjoin the sale of Villa Madeleine Greathouse to Paul Du\\u00e9. That agreement also required that plaintiffs retain Attorney Andrew C. Simpson with all costs for litigation, including full indemnification, to be paid by Save the Caf\\u00e9, Inc. If Plaintiffs decide to use other counsel, then Plaintiffs would have to bear the cost.\\nAlbert James Enterprises, Inc. gave notice to the employees that the restaurant would be closing for the season following the Mothers' Day dinner on May 9, 2004. The employees were not advised, however, that the restaurant could possibly be closing permanently.\\nOn May 3, 2004, the same day that Plaintiffs entered into the \\\"Agreement to Finance\\\" with Kevin Brandt, the plaintiffs also filed the current Action and motion for Temporary Restraining Order and Preliminary Injunction with the Court. Plaintiffs assert that Defendant Albert James Enterprises, Inc. has violated the Virgin Islands Plant Closing. Act because it failed to provide employees of the restaurant with ninety (90) days notice of the closing of the restaurant and did not allow them to exercise their right of first refusal in the sale of the Villa Madeleine Greathouse. Neither the Attorney General nor the Commissioner of Labor was notified of the alleged violations of the Plant Closing Act.\\nIII. LEGAL STANDARD\\nRestraining Orders and Injunctions\\nFED. R. Civ. P. 65(b) provides in pertinent part:\\nA temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.\\nIn order to prevail in an action for injunction, Plaintiffs must demonstrate that: (1) they are likely to succeed on the merits; (2) if relief is not granted, they will experience irreparable harm; (3) granting relief will not cause greater harm to the defendants, Albert James Enterprises, Inc. and Paul Du\\u00e9; and (4) it is in the public interest to grant injunctive relief. C & C/Manhattan v. Government of the Virgin Islands, 40 V.I. 51, 68 (Terr. Ct. 1999), (citing Everett v. Schneider, 989 F. Supp. 720, 724 (D.V.I. 1997). \\\"A preliminary injunction is an extraordinary remedy which should be granted only when necessary to protect the moving party from irreparable injury and to preserve the court's ability to render a meaningful decision after a trial on the merits. Gladfelter v. Fairleigh Dickinson University, 25 V.I. 91, 95 (TCVI 1990) (quoting VanArsdel v. Texas A. & M. University, 628 F.2d 344 (5th Cir. 1980) (citing Canal Authority of the State of Florida v. Callaway, 489 F.2d 567 (5th Cir. 1974)). This drastic remedy should only be granted where a movant, by a clear showing, carries the burden of persuasion. Id. (citing 11 C. WRIGHT & A. Miller, Federal Practice and Procedure \\u00a7 2948 (1973).\\nThe Virgin Islands Plant Closing Act\\nThe implicit purpose of the Plant Closing Act is to protect the employees in the territory by assuring them that \\\"they are not left jobless overnight,\\\" and allowing them \\\"a reasonable period within which they may search for employment, and take advantage of any employment opportunities which may arise during that period.\\\" Stanley, 291 F. Supp. 2d 379, 381 (D.V.I. 2003) (quoting, 25 V.I. 91, 97 (1990). The Virgin Islands Plant Closing Act grants the Courts only the authority to restrain ongoing violations of the Plant Closing Act. Title 24 V.I.C. \\u00a7 477. \\\"However, the Court has held that it cannot enjoin a violation that is not continuing\\\". Llanos v. Davis Beach Co., 26 V.I. 367 (1991). In order for the Court to exercise this authority, there must be a \\\"plant closing\\\" within the meaning of the statute.\\nTitle 24 V.I.C. Section 471 states:\\n(1) \\\"Advance notification\\\" means a written declaration by an employer, in a form and manner prescribed by the Commissioner, that a plant closing will occur;\\n(2) \\\"Commissioner\\\" means the Commissioner of the Department of Labor of the Virgin Islands\\n(3) \\\"Employee\\\" means an individual who is or has performed services for wages, whether full-time or part-time, at a facility, who at the point of termination has received said wages for one consecutive year, and who is otherwise eligible for unemployment benefits;\\n(4) \\\"Employer\\\" means an individual, corporation, or other private business entity, whether for profit or not for profit, which owns or operates a facility, at least one year;\\n(5) \\\"Facility\\\" means a plant, factory, commercial business, institution or other place of employment located in the Virgin Islands; which had 10 or more employees during any month in the six month period prior to the date of plant closing;\\n(6) \\\"Plant closing\\\" means a permanent cessation or reduction of business at a facility which results or will result as determined by the Commissioner in the permanent separation of at least 50 percent of the employees of said facility within a period of six months prior to the date of actual or anticipated termination of business or within such other period as the Commissioner shall prescribe, provided that such period shall fall within the six month period prior to the date of actual or anticipated termination of business. Plant closing shall not include facilities which are closed under the provision of the Federal Bankruptcy Act, 11 U.S.C. 101 et seq., except for employers in reorganization proceedings and facilities closed due to a physical calamity or natural disaster.\\nTitle 24 V.I.C. \\u00a7 477 provides:\\n\\\"In addition to any other penalties prescribed by law, the Attorney General may bring action in any court in the Virgin Islands to restrain violations of this chapter.\\\"\\nIV. DISCUSSION\\nStanding\\nBefore this Court determines whether injunctive relief pursuant to the Plant Closing Act is appropriate, the court must first determine whether the parties requesting the relief have standing to pursue this specific course of action. Plaintiffs have not shown that they meet the definition of employees as defined by the Plant Closing Act. The Act defines an employee as \\\"an individual who is or has performed services for wages, whether full-time or part-time, at a facility, who at the point of termination has received said wages for one consecutive year, and who is otherwise eligible for unemployment benefits.\\\" Title 24 V.I.C. 471(3).\\nHere, the statute is clear and unambiguous, and the Court has no choice but to interpret it as written. See Christopher v. Davis Beach Co., 15 F.3d 38 at 42, 29 V.I. 388 (1994) (citing United States v. Clark, 454 U.S. 555, 102 S. Ct. 805, 70 L. Ed. 2d 768 (1982) (the court need not consult other indicia of intent or meaning when the literal meaning of the statute is plain or clear and unambiguous)). The Court construes the term \\\"one consecutive year\\\" to mean one continuous year or twelve consecutive months. Plaintiff Patricia O'Neill was employed at the restaurant from September 2002 until August 2003 (eleven months), and from November 2003 to May 2004 (six months). Defendant Brian Petersen was employed for a short period in June of 2001; from August, 2001 to July 2002 (eleven months); from October 2002 to August 2003 (ten months) and from November 2003 to May 2004 (five months). Neither has worked for one consecutive year, which, absent evidence of legislative intent to the contrary, this Court cannot find that they are employees within the meaning of the Plant Closing Act.\\nEven if the plaintiffs satisfy the aforementioned requirement, the Act also requires \\\"employees\\\" to be eligible for unemployment benefits at the time of termination. Plaintiff Brian Petersen testified at the hearing that he is employed, on a full time basis, with Homeland Security. The Court is not convinced that this plaintiff meets this requirement, as he is not eligible for unemployment benefits at the time of the restaurant's closing. As Plaintiffs argued at the hearing, he would possibly be eligible if he did not have other full time employment, however, the Court is not convinced that this is an accurate interpretation of legislative intent. As stated earlier \\\"the implicit purpose of the Plant Closing Act is to protect the employees in the territory by assuring them that 'they are not left jobless overnight,' and allowing them 'a reasonable period within which they may search for employment opportunities which may arise during that period'\\\" See Stanley, 291 F. Supp. 2d at 381. This purpose is defeated by the fact that this plaintiff will not be left jobless due to the closing of the restaurant and will not be required to apply for unemployment benefits. The Plant Closing Act further provides that: \\\"In addition to any other penalties prescribed by law, the Attorney General may bring an action in any court in the Virgin Islands to restrain violations of this chapter.\\\" Title 24 V.I.C. \\u00a7 477. The District Court held in Llanos v. Davis Beach Co., 26 V.I. 367 (D.C. 1991), that the Commissioner of Labor also has standing to bring an action to restrain violations of this chapter. Although the Attorney General was not the plaintiff, he did represent the Commissioner in that case. The Court also noted that the legislature has determined that the Commissioner has an interest in preventing violations of the Act. In the instant matter, there is nothing on the record that indicates that the Commissioner of Labor or the Attorney General was ever involved in addressing this matter as a plant closing. Only the plaintiffs, in conjunction with the Save the Caf\\u00e9, Inc. Corporation, have seen fit to bring an action for injunctive relief under the auspices of the Plant Closing Act.\\nThe statute is not ambiguous, but specifically confers standing only to the Attorney General to restrain violations. In keeping with this Court's earlier discussion on the interpretation of 24 V.I.C. \\u00a7 471(3) we now hold that 24 V.I.C. \\u00a7 477 is clear and unambiguous and that only the Attorney General has standing to seek an injunction to prevent further violations of the Act.\\nPlaintiffs Have Failed To State A Claim\\nPlaintiffs claim that Albert James Enterprises, Inc. violated the Virgin Islands Plant Closing Act by failing to provide the affected employees with 90 days notice that the restaurant was closing permanently and failing to allow the employees to exercise their right of first refusal to purchase Caf\\u00e9 Madeleine. Section 471(6) defines \\\"plant closing\\\" as\\n\\\"a permanent cessation or reduction of business at a facility which results or will result as determined by the Commissioner in the permanent separation of at least 50 percent of the employees of said facility within a period of six months prior to the date of actual or anticipated termination of business or within such other period as the Commissioner shall prescribe, provided that such period shall fall within the six month period prior to the date of actual or anticipated termination of business.\\\"\\nThe plaintiffs claim that \\\"on information and belief', Albert James Enterprises, Inc. entered into a contract of sale for Villa Madeleine Greathouse to Paul Du\\u00e9 and will permanently cease the operation of Caf\\u00e9 Madeleine. There is not a set of facts in this case that would entitle Plaintiffs to relief. The transaction that is the subject of the instant action is not a \\\"plant closing\\\" under the Plant Closing Act. What the Plaintiffs seek to enjoin is the sale of Villa Madeleine to the intervenor/defendant, so that they may purchase Caf\\u00e9 Madeleine themselves. There are no allegations that the contract between the Defendant and Defendant/intervenor is invalid. The Plant Closing Act does not prohibit facilities from selling or transferring property or property interests to parties other than their employees, but merely prohibits the closing of a plant without providing 90 days' notice to the employees, thereby allowing them time to exercise their right of first refusal. This Court cannot view Mr. Du\\u00e9's purchase of the Villa Madeleine Greathouse from Albert James Enterprises as a permanent cessation or reduction of business, but rather only as a transfer of interest in a commercial business. See Pourzal v. Marriott International, Inc., 305 F. Supp. 2d 544, 547-48, 45 V.I. 488 (2004).\\nThe plaintiffs testified that they were aware that Caf\\u00e9 Madeleine operated on a seasonal basis and that the 2004 season was scheduled to end on May 9, 2004. The restaurant has already closed for the season. This Court declines to order the restaurant to continue operating beyond the date it was scheduled to close for the season until this matter is resolved. Plaintiffs received notice of the closing and have no reasonable expectation that Caf\\u00e9 Madeleine would be operational beyond May 9, 2004, at least until the beginning of the next season. Furthermore, the allegation that the defendant/intervenor does not plan to reopen Caf\\u00e9 Madeleine next season is speculative at this point. The Court declines to restrain a purported violation that may or may not occur.\\nInjunctive Relief\\nThe Court finds that the Plaintiffs do not have standing to pursue injunctive relief under the provisions of the Plant Closing Act. The Court further finds that that the closing of Caf\\u00e9 Madeleine is not a \\\"plant closing\\\" within the meaning of the Virgin Islands Plant Closing Act. Because this action relies solely on the Plant Closing Act, this Court does not find it necessary to discuss the elements of injunctive relief, nor does it reach the issue of injunctive relief.\\nIV, DEFENDANT'S MOTION TO CONSOLIDATE THE HEARINGS\\nIn view of this Court's ruling that Plaintiffs do not meet the statutory definition of employee, nor do Plaintiffs have standing to enjoin violations of the Act, and that this Court does not have authority to void an otherwise legal contract for sale, the Court's previous ruling denying Defendant's request to merge the hearing on the preliminary injunction and the permanent injunction is hereby vacated and Defendant's request will now be granted.\\nKevin Brandt was never an employee of Caf\\u00e9 Madeleine and therefore could not bring an action pursuant to the Plant Closing Act on his own.\\nAttorney Andrew C. Simpson also represents Kevin Brandt.\"}"
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+"{\"id\": \"1121204\", \"name\": \"JOAN OAT, Plaintiff v. SEWER ENTERPRISES, LTD., f/k/a SEWER-DOLIN ASSOCIATES, LTD., ESTATE OF LLEWELLYN A. SEWER, Defendants\", \"name_abbreviation\": \"Oat v. Sewer Enterprises, Ltd.\", \"decision_date\": \"2004-08-30\", \"docket_number\": \"Civ. No. 2003-115\", \"first_page\": 286, \"last_page\": \"291\", \"citations\": \"46 V.I. 286\", \"volume\": \"46\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T00:48:23.521770+00:00\", \"provenance\": \"CAP\", \"judges\": \"MOORE, District Judge\", \"parties\": \"JOAN OAT, Plaintiff v. SEWER ENTERPRISES, LTD., f/k/a SEWER-DOLIN ASSOCIATES, LTD., ESTATE OF LLEWELLYN A. SEWER, Defendants\", \"head_matter\": \"JOAN OAT, Plaintiff v. SEWER ENTERPRISES, LTD., f/k/a SEWER-DOLIN ASSOCIATES, LTD., ESTATE OF LLEWELLYN A. SEWER, Defendants\\nOAT v. SEWER ENTERPRISES, LTD.\\nCiv. No. 2003-115\\nDistrict Court of the Virgin Islands Division of St. Thomas and St. John\\nAugust 30, 2004\\nGARRY Garten, ESQ., St. Thomas, U.S.V.I., For the Plaintiff.\\nGREGORY H. Hodges, esq., St. Thomas, U.S.V.I., For Defendant Estate of Llewellyn A. Sewer.\\nNANCY D\\u2019ANNA, Esq., St. John, U.S.Y.I., For defendant Sewer Enterprises, Ltd.\\nMOORE, District Judge\", \"word_count\": \"1684\", \"char_count\": \"10272\", \"text\": \"MEMORANDUM\\n(August 30, 2004)\\nThe Estate of Llewellyn A. Sewer [\\\"Sewer's Estate\\\"] has filed a motion to dismiss or stay, arguing that I should abstain from adjudicating this matter under the Supreme Court's Colorado River abstention doctrine or, alternatively that I should dismiss this matter because the plaintiff failed to present its claims to the administrator of Sewer's Estate before filing this lawsuit, as required under Virgin Islands law. I find it unnecessary to address the estate's Colorado River argument, because I agree that the plaintiff improperly filed this lawsuit before presenting her claims to the Estate. Accordingly, I will grant Sewer's motion to dismiss.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nJoan Oat's lawsuit, as well as several actions the plaintiff has pending in Territorial Court, involve a dispute related to real properly located on St. John. The foundation for this dispute was set on March 26, 1987, when Huldah Sewer, Victor Sewer, and Llewellyn A. Sewer, leased certain real property to Sewer Enterprises. Huldah Sewer, Victor Sewer, and Llewellyn A. Sewer are all now deceased. As well as being a lessor, Llewellyn A. Sewer was President of Sewer Enterprises and owner of 51% of its shares.\\nOn July 1, 1987, Sewer Enterprises allegedly executed and delivered a promissoiy note and leasehold mortgage securing payment of the note to Carpeteria, Inc. Employee's Pension Plan in the amount of $100,000, plus interest at the rate of twelve percent per year [\\\"First Note\\\"]. On September 6, 1988, the First Note was assigned to Donald Oat, the now-deceased husband of plaintiff Joan Oat. On December 3, 1989, Sewer Enterprises allegedly executed and delivered a second promissory note secured by a second priority leasehold mortgage to Donald Oat and the plaintiff for $554,612.38 plus interest at twelve percent per year on the same 1987 lease [\\\"Second Note\\\"]. When Donald Oat died in 1997, he left his interest in both the First Note and the Second Note to the plaintiff. Although the plaintiff is the minority shareholder in Sewer Enterprises, owning 49% of its shares, she and her family have allegedly been responsible for running the day-to-day operations of the company.\\nOn April 23, 1997, the plaintiff filed suit in Territorial Court, demanding foreclosure on the First Note and Second Note [\\\"Territorial Court Foreclosure Action\\\"]. The complaint in the Territorial Court Foreclosure Action contains requests for foreclosure based on Sewer Enterprises' alleged default on the First and Second Notes that are nearly identical to the demands of the plaintiff in her complaint in this Court. The complaint in this Court, which was filed on June 27, 2003, differs from the Territorial Court complaint only in the parties named and in the number of counts alleged. In addition to Sewer Enterprises, the Territorial Court Foreclosure Action named Huldah Sewer, Llewellyn Sewer, and Victor Sewer as defendants, whereas the complaint here named the Estate of Llewellyn A. Sewer in addition to Sewer Enterprises. Both actions are founded on allegations of default under the First and Second Notes, and request foreclosure under the mortgages securing them, except that the action filed in this Court includes two additional vaguely-worded counts claiming that the plaintiff lost an unspecified amount of money due to Sewer's fraudulent conduct and suffered emotional distress and \\\"other damages\\\" because of the conduct of the defendants.\\nIn addition to the 1997 foreclosure action, two separate probate proceedings have been filed in the Territorial Court relating to Oat's claims in this Court. First, on July 23, 1999, Oswin Sewer filed a petition for issuance of letters of administration for the estate of Huldah Sewer. On March 9, 2000, the plaintiff filed a creditor's claim against the estate of Huldah Sewer. After the estate failed to act on the claim, in September of 2001 the Territorial Court ordered Huldah Sewer's estate to pay the plaintiff $78,800 in partial satisfaction of the claim. On January 13, 2003, however, the Territorial Court vacated its order approving the payment to the plaintiff and required her to disgorge the money she had received because the judge found that the claim was barred by the statute of limitations. The judge also found that the plaintiff misrepresented her relationship with Sewer Enterprises as an arms-length transaction in a deliberate attempt to mislead the estate and the Court. The plaintiff filed a motion for reconsideration of the disgorgement order, which the Territorial Court denied on May 28, 2003. The plaintiffs appeal of the disgorgement order is pending before the Appellate Division of this Court.\\nSecond, on February 6, 2003, Llewellyn A. Sewer, Jr. [\\\"Sewer Jr.\\\"] petitioned the Territorial Court for the administration of his father's estate. The court approved the petition on March 20, 2003, and appointed Sewer Jr. as the administrator of Sewer's Estate. On April 8, 2003, the plaintiff moved to require that Sewer Jr. prove his legal capacity to act as the administrator of the estate. The Territorial Court denied this motion on August 11, 2003. The plaintiff has not alleged that she presented her claim against Sewer's Estate to its administrator before she filed suit against the estate in this Court. She takes the position in her opposition brief that it would have been futile to have first filed a claim with the administrator.\\nSewer's Estate has moved to dismiss or stay this matter on two grounds. First, it argues that I should abstain from hearing the case because the plaintiff has filed a virtually identical action for debt and foreclosure in the Territorial Court. Second, it claims the case should be dismissed because the action is precluded by 15 Y.I.C. \\u00a7 606(b) as the plaintiff has not presented her claim against the estate to the estate's administrator.\\nII. STANDARD OF REVIEW\\nThe standard of review for a motion to dismiss is well established, and I will only briefly summarize that standard here. In considering Sewer's Estate's motion to dismiss, I \\\"may dismiss [the] complaint if it appears certain the plaintiff cannot prove any set of facts in support of its claims which would entitle it to relief.\\\" See Bostic v. AT&T of the Virgin Islands, 166 F. Supp. 2d 350, 354 (D.V.I. 2001) (internal quotations omitted); see also Julien v. Committee of Bar Examiners, 34 V.I. 281, 286, 923 F. Supp. 707, 713 (1996); FED. R. Civ. P. 12(b)(6). I must accept as true all well-pled factual allegations, drawing all reasonable inferences in the plaintiffs favor. See Bostic, 166 F. Supp. 2d at 354; Julien, 34 V.I. at 286-87, 923 F. Supp. at 713.\\nIII. ANALYSIS\\nIn support of its motion to dismiss, Sewer's Estate argues that I should stay or dismiss the plaintiffs action pursuant to the abstention doctrine first enunciated by the Supreme Court in Colorado River Water Conservation District v. United States. 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976). It argues in the alternative that I should dismiss the claims against it because the plaintiff has not complied with 15 V.I.C. \\u00a7 606. That section provides:\\n(a) An action may be commenced against an executor or administrator at any time after the expiration of twelve months from the granting of letters testamentary or of administration and until the final settlement of the estate and discharge of such executor or administrator from the trust, and not otherwise.\\n(b) An action against an executor or administrator shall not be commenced until the claim of the plaintiff has been duly presented to such executor or administrator and by him disallowed. If such claim is presented after the expiration of the period of six months mentioned in sections 391 and 392 of this title, the executor or administrator in an action therefor shall only be liable to the extent of the assets in his hands at the time the summons is served upon him.\\nThe language of section 606(b) is mandatory. It forbids the plaintiff from commencing an action against Sewer's Estate until she has first presented a claim to Sewer, Jr. in his capacity as the administrator of the Estate and he has disallowed the claim. Although more than twelve months have elapsed since the Territorial Court issued letter of administration to Sewer, Jr., this passage of time does not obviate 606(b)'s requirement the plaintiff present claims directly to the Estate before filing suit. Accordingly, it is unnecessary to address the Estate's abstention argument, as section 606(b) demands that I grant the motion to dismiss. An appropriate order follows.\\nAt the time, the entity now known as Sewer Enterprises did business under the name Sewer-Dolin Associates, Ltd; thus, the name Sewer-Dolin Associates appears on the lease agreement.\\nAs evidence of the plaintiffs involvement in the operations of Sewer Enterprises, she accepted service on behalf of Sewer Enterprises of her own summons and complaint in this very lawsuit.\\nThe plaintiff filed her complaint in this Court less than one month later, on June 27, 2003.\\nThe plaintiff states the following in her opposition brief:\\nThe Estate has already made it abundantly clear that it will fight payment to Ms. Oat of any money owed her and has demonstrated its willingness to do anything to prevail, including physically threatening her and her family. This leaves one wondering why presentment is so important to the Estate if not part of a continuing effort to cause still more delays in resolution. The Estate has not represented to this Court that it intends to approve the claims or work with Ms. Oat to resolve claims as the presentment statute appears to contemplate. In this context, presentment is futile.\\n(Opp'n to Mot. to Dismiss or Stay at 13-14.)\"}"
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+"{\"id\": \"1130093\", \"name\": \"STALLWORTH TIMBER COMPANY, Appellant v. TRIAD BUILDING SUPPLY, Appellee\", \"name_abbreviation\": \"Stallworth Timber Co. v. Triad Building Supply\", \"decision_date\": \"1997-06-18\", \"docket_number\": \"D.C. Civ. App. No. 1993-255; T.C. Civ. No. 551-1991\", \"first_page\": 49, \"last_page\": \"57\", \"citations\": \"37 V.I. 49\", \"volume\": \"37\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:08:46.023537+00:00\", \"provenance\": \"CAP\", \"judges\": \"MOORE, Chief Judge, FINCH and MEYERS, Judges\", \"parties\": \"STALLWORTH TIMBER COMPANY, Appellant v. TRIAD BUILDING SUPPLY, Appellee\", \"head_matter\": \"STALLWORTH TIMBER COMPANY, Appellant v. TRIAD BUILDING SUPPLY, Appellee\\nD.C. Civ. App. No. 1993-255\\nT.C. Civ. No. 551-1991\\nDistrict Court of the Virgin Islands Div. of St. Croix\\nJune 18, 1997\\nNancy V. Young, Esq., (Rohn & Cusick) (of Counsel), and Michael M. Lee, Esq., Christiansted, St. Croix, U.S.V.I., for Appellant\\nDerek M. Hodge , St. Croix, U.S.V.I., for Appellee\\nMOORE, Chief Judge, FINCH and MEYERS, Judges\", \"word_count\": \"2517\", \"char_count\": \"15321\", \"text\": \"OPINION OF THE COURT\\nPER CURIAM\\nIn June 1990, Stallworth Timber Company, Inc. [\\\"Stallworth\\\"] and Triad Building Supply, Inc. [\\\"Triad\\\"] entered into an agree- merit whereby Stallworth was to supply lumber and plywood, as well as hardware, to Triad for the purpose of selling the items for a mutual profit. Before the formation of this agreement, Stallworth had shipped a large stock of lumber and plywood for a third party who eventually was unable to furnish Stallworth with the necessary financial guarantees for purchase of the material. These materials provided impetus for the Stallworth-Triad agreement under the terms of which Stallworth would supply Triad every six to eight weeks with certain lumber and plywood to be sold by Triad. The parties agreed that the retail selling margin was approximately 35%, to be split 60% to Triad, 40% to Stallworth. Triad would make payments of C.I.F. costs, plus 40% of the gross profits on sales to Stallworth on an \\\"as sold\\\" basis. Payments were due within 14 days of the end of each monthly reporting period. The parties also discussed the sale of hardware for which Triad agreed to make installment payments on a 30/60/90/120 day plan.\\nTriad drafted and forwarded a summary of the May 17 agreement to Stallworth for review and editing. The draft agreement was never formally executed but the parties nevertheless began dealing with one another to some extent consistently with the draft provisions.\\nIn July 1990, Triad's supply of certain fast-moving inventory (\\\"critical inventory\\\") became low and Triad placed a $120,000 order with Stallworth to replenish such inventory. Also, at an August hardware show, Triad ordered hardware which was to be shipped two weeks later. The orders of critical inventory and the hardware were shipped at the same time. During some time in August 1990, Triad began making untimely and sporadic payments. By September, Triad's orders for critical inventory had increased to a value of $217,000.\\nDue to unexpected maintenance problems, the barge carrying the critical inventory and hardware did not arrive in St. Croix until about November 21,1990. Upon arrival, Stallworth, however, only released to Triad approximately $40,000 of lumber and the $33,000 of hardware ordered at the hardware show.\\nThis action began on June 18, 1991 when Stallworth filed a suit for debt against Triad. In reply, Triad filed a counterclaim for breach of contract. A special master was appointed by the trial judge, who concluded the value of Stallworth's debt claim to be $104,641. A bench trial was conducted to determine Triad's breach of contract claim.\\nAfter receiving testimony and reviewing submitted proposed findings of fact and conclusions of law, the lower court found Stallworth entitled to judgment in the amount of $104,641 and awarded Triad damages in the amount of $213,744 on its counterclaim. Stallworth moved to amend the findings of fact, to alter or amend the judgment, or for a new trial with respect to the award to Triad. The trial court denied the motion and Stallworth appealed the award of damages to Triad on its breach of contract counterclaim. The judgment against Triad on Stallworth's debt claim was not at issue here.\\nDISCUSSION\\nI. Standard of Review\\nQuestions of law are subject to plenary review. Nibbs v. Roberts, 31 V.I. 196, 204 (D.C.V.I. 1995). The clearly erroneous standard of review is applied to the factual findings of the trial court. V.I. Code Ann. tit. 4, \\u00a7 33.\\nII. Stallworth's Breach of The Agreement Terms\\nThe crux of Stallworth's argument centers on the proposition that it did not breach the agreement by refusing to make further deliveries to Triad. Rather, Stallworth contends that its duty to deliver was excused by Triad's failure to pay for prior deliveries. The agreement is governed by the Uniform Commercial Code (\\\"U.C.C.\\\") as adopted in the Virgin Islands (V.I. Code Ann. tit. 11A, \\u00a7 1-101) because it involved the sale of goods. On those issues where the U.C.C. is silent, the panel then turns to common law, or the Restatement, for assistance. V.I. Code Ann. tit. 1, \\u00a7 4.\\nRestatement of (Second) Contracts \\u00a7 235 provides that when performance of a duty under a contract is due, any non-performance is a breach. A breach which would justify or excuse non-performance of a party's remaining duty, however, must be an uncured material breach. Restatement (Second) of Contracts \\u00a7 237. In determining whether a breach is material, the following circumstances are significant:\\n(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;\\n(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will deprived;\\n(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;\\n(d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;\\n(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.\\nRestatement (Second) of Contracts \\u00a7 241. Thus, in order for Stallworth to sustain its claim of excused performance, it was necessary for the court to have found that Triad materially breached the agreement by failing to make timely payments. If Triad was not in material breach, then Stallworth's failure to perform was not excused. No finding of material breach was made by the trial judge.\\nThe lower court clearly recognized that Triad breached the agreement and took it into account in its judgment, contrary to Stallworth's suggestion here on appeal. The judge held Triad liable for the undisputed amount of debt Triad was in arrears to Stallworth. The judge did not determine, however, whether or not that breach was a \\\"material\\\" breach. The court examined the agreement and simply concluded that Triad had detrimentally relied on representations made by Stallworth on which Stallworth failed to make good. In neither its analysis of Triad's liability nor its analysis of Triad's counterclaim did the judge make a finding on the materiality of Triad's breach.\\nIn this jurisdiction, a trial court must find and articulate the facts with particularity so the parties and the appellate court will be informed of the basis for the determination. See Pant v. Government of the Virgin Islands, 30 V.I. 259 (D.C.V.I. 1994); see also Kruger v. Purcell, 4 V.I. 361, 300 F.2d 830 (3d Cir. 1962); accord Fehringer v. Bluebeard's Castle, Inc., 6 V.I. 471, 395 F.2d 851 (3d Cir. 1968); Fed. R. Civ. R 52. A judge's failure to recite a finding necessary to the determination of liability has compelled this Court to vacate and remand a judgment for the trial judge to make such findings. Pant, 30 V.I. at 266-67. In Pant, this Court remanded a wrongful death award for the lower court to make specific findings whether the Government had notice of a dangerous condition, an essential element vital in such a fact-intensive case.\\nIn the case sub judice, the trial court's findings of fact and conclusions of law do not include whether Triad's breach of the agreement was material, which is an essential prerequisite for the determination of ultimate liability on the breach of contract counterclaim. On such an important issue as the materiality of Triad's breach of contract, we will not infer that Stallworth's performance was not excused and Triad's breach was not material simply because the judge found detrimental reliance and awarded damages on Stallworth's breach. Accordingly, we remand this matter to the trial court for a specific finding on whether Triad's breach was material.\\nIII. Calculation of Damages\\nSince the issue of damages may recur before the lower court on remand, we comment on the damages questions now before us.\\nA. Lost Margin and Lost Counter Sales\\nStallworth claims that Triad failed to meet its burden to prove that Stallworth's breach was the proximate cause of its alleged losses. Similarly, Stallworth claims that the damages alleged are speculative and therefore should not have been awarded. In the alternative, Stallworth contends the losses should have been allocated in proportion to the profit ratio agreed upon by the parties.\\nTo sustain a damage award for lost profits, there must be sufficient proof that the lost profits were proximately caused by the defaulter's breach. Where the loss cannot be allocated between those caused by the breach and those resulting from some other cause, the entire claim may be rejected. The court below found that a joint venture existed. Joint Appendix (\\\"J.A.\\\") Vol. I at 85. The allocation of lost profits should, therefore, be consistent with the terms of the agreement. To the extent the agreement fails to provide this information, an alternative means of allocation must be considered. The law regarding the allocation of losses in a joint venture where there is no express agreement by the joint venturers on the division of losses is not clearly established. In this case, we agree with the lower court that losses should be shared in the same proportion as profits were to be shared. The sharing of losses in proportion to agreed profit sharing is a generally accepted means of handling the issue in many jurisdictions.\\nThe record provides that the parties agreed to split gross profits 60% to Triad and 40% to Stallworth, and sought to achieve a gross margin of total sales of 35 to 36%. The final award determined by the lower court on remand should be adjusted accordingly, taking into account the costs Triad would have incurred in the normal course of its sale of such goods.\\nB. Loss of Goodwill\\nStallworth also challenges the lower court's acceptance of the findings of the Master's Report in its conclusion regarding the amount recoverable for loss of goodwill. Specifically, Stallworth contends that the report lacks sufficient probative value to sustain the award.\\nThe goodwill of a business represents the expectation of continued patronage by the public and its reputation with its customers. Goodwill is intangible in nature, although it does constitute a form of property that may be valued.\\nGoodwill is an amorphous concept which requires a sufficient and specific factual basis for support. The determination of the existence and the value of goodwill is a fact-intensive process which depends on the circumstances of the specific case. See Miller v. C.I.R., 333 F.2d 400 (8th Cir. 1964); Pacific Coast Med. Enter. v. Department of Benefit Payments, 140 Cal. App. 3d 197 (1983); Baldzoin v. Stuber, 610 P.2d 160 (Mont. 1980). The burden is on the party seeking to establish' goodwill to prove the components of goodwill in the particular situation. Although valuation need not be proved with mathematical precision, the best possible evidence must be considered. See generally Master Records Inc. v. Bachman, 652 P.2d 1017 (Ariz. 1982); Delano Growers Co-op Winery v. Supreme Wine Co., 473 N.E.2d 1066 (Mass. 1985). But see Kinetico, Inc. v. Independent Ohio Nail Co., 482 N.E.2d 1345 (Ohio Ct. App. 1984).\\nThe only evidence in the record to establish Triad's alleged loss of goodwill and its value came from the testimony of the Master, Mr. John Reed, who, incidentally, was also Triad's vice-president, director, and part owner. The record is devoid of any mathematical calculations used, nor was any value attached to the factors considered by Mr. Reed in arriving at his $100,000 estimation of the value of loss of goodwill. Mr. Reed testified that he made no calculations. In fact, he conceded that it was merely an estimate. In response to the judge's inquiry about the formula used for his estimation, Mr. Reed replied that it was based on customer relationships, Triad's ability to perform based on its past profit performance, the underlying value of any business (as determined by a third party who may be interested in purchasing the business), and the \\\"book value,\\\" which Mr. Reed testified as being that amount of company assets less its liabilities. J.A. Vol. III at 161,165.\\nWhile these factors may be generally accepted accounting principles and somewhat beneficial in valuing goodwill, Reed's testimony provides an inadequate foundation in the value of goodwill to be included in an award of damages.\\nWhile there is a presumption of validity normally attached to a master's factual findings, they must be supported by substantial evidence and must be based on more than mere estimation grounded on intuition and speculation. Devex Corp. v. GNC, 494 F. Supp. 1369 (D. Del. 1980), aff'd, 667 F.2d 347 (3d Cir. 1981); Fed. R. Civ. P. 53(e)(2). Furthermore, the youth of Triad makes a meaningful award for goodwill especially difficult. Chief elements in determining goodwill are the length of the business' existence, average profits, and likelihood of continuing business under the same name. See Agricultural Servs. Ass'n v. Ferry-Morse Seed Co., 551 F.2d 1057 (6th Cir. 1977). It follows, then, that a relatively new business would have little if any established goodwill and Triad had only been in business since February 1990, approximately one and half years before this lawsuit. Considering the youth of the company and the highly speculative nature of Mr. Reed's testimony, it is highly unlikely that Triad has proved a loss of goodwill.\\nCONCLUSION\\nBecause the lower court failed to make a specific finding of materiality on the breach of contract counterclaim, and because an inference may not be made that such breach existed, the trial court's judgment of August 3, 1993 is vacated and the matter is remanded for further proceedings in accordance with this opinion.\\nORDER OF THE COURT\\nAND NOW, this 18th day of June, 1997, having considered the arguments and submissions of the parties; and for the reasons set forth in the Courtss accompanying Opinion of even date;\\nIT IS ORDERED AND ADJUDGED that the August 3, 1993 ruling of the Territorial Court is VACATED and the matter is REMANDED to the Territorial Court for further proceedings consistent with this Opinion.\\nThe term \\\"C.I.F.\\\" means the costs of the goods, and the insurance and freight necessary to delivery the goods to a specified destination. V.I. Code Ann. tit. 11A, \\u00a7 2-320.\\nThe trial court specifically found that the parties entered into a joint venture. The determination of the nature of their agreement is not necessary for purposes of our analysis at this stage. Accordingly, the conduct of the parties will be referred to as an \\\"agreement.\\\"\\nAccord Bank of St. Louis v. Morrissey, 597 F.2d 1131 (8th Cir. 1978); Halloran v. Ohlmeyer Communications Co., 618 F. Supp. 1214 (S.D.N.Y. 1985); McNeill v. Allen, 534 P.2d 813 (Colo. Ct. App. 1975); Edwards v. Thompson, 336 N.W.2d 612 (N.D. 1983); Producer's Livestock Marketing Ass'n v. Christensen, 588 P.2d 156 (Utah 1978).\"}"
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+"{\"id\": \"11890233\", \"name\": \"ROBERTO SMALLS, Appellant v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee\", \"name_abbreviation\": \"Smalls v. Government of the Virgin Islands\", \"decision_date\": \"1994-05-11\", \"docket_number\": \"District Court Crim. No. 94-210; Territorial Court Crim. No. F12-94\", \"first_page\": 82, \"last_page\": \"88\", \"citations\": \"30 V.I. 82\", \"volume\": \"30\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T23:32:47.389276+00:00\", \"provenance\": \"CAP\", \"judges\": \"MOORE, Chief Judge, District Court of the Virgin Islands; GILES, Judge of the United States District Court for the Eastern District of Pennsylvania, Sitting by Designation; and BRADY, Judge of the Territorial Court of the Virgin Islands, St. Croix Division, Virgin Islands, Sitting by Designation.\", \"parties\": \"ROBERTO SMALLS, Appellant v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee\", \"head_matter\": \"ROBERTO SMALLS, Appellant v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee\\nDistrict Court Crim. No. 94-210\\nTerritorial Court Crim. No. F12-94\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nMay 11, 1994\\nVictor G. Schneider, Esq., (Territorial Public Defender), St. Thomas, V.I., for Appellant\\nPamela Lynn Wood, Esq., (V.I. Department of Justice), Asst. Attorney General, St. Thomas, V.I., for Appellee\\nMOORE, Chief Judge, District Court of the Virgin Islands; GILES, Judge of the United States District Court for the Eastern District of Pennsylvania, Sitting by Designation; and BRADY, Judge of the Territorial Court of the Virgin Islands, St. Croix Division, Virgin Islands, Sitting by Designation.\", \"word_count\": \"2185\", \"char_count\": \"13649\", \"text\": \"OPINION OF THE COURT\\nAppellant contends that the Territorial Court Judge erred in denying him pretrial release. For the reasons set forth below, this Court will affirm the Territorial Court's Order dated February 8, 1994.\\nFACTUAL BACKGROUND\\nOn January 9, 1994, appellant Smalls allegedly killed one individual and assaulted another with intent to kill in a drive-by shooting at a truck containing several individuals. Appellant was injured while being pursued and eventually captured. The Government charged appellant with first degree murder, assault in the first degree, and unauthorized possession of a firearm, in violation of V.I. Code Ann. tit 14, \\u00a7 921 and 922(a)(1), \\u00a7 295(1), and \\u00a7 2253, respectively. Bail was set in the amount of $200,000 after appellant pled not guilty to the charges. The Government moved to have appellant held without bail and appellant moved for release upon the posting of ten percent of the set bail. After receiving briefs and conducting a detention hearing, the Territorial Court granted the Government's motion for pretrial detention. This appeal ensued.\\nDISCUSSION\\nThe trial court appears to have applied both the local statute and the federal Bail Reform Act of 1984 governing release and detention. We hold that the Virgin Islands provision controls prosecutions in the Territorial Court. V.I. Code Ann. tit. 5, \\u00a7 3504a permits pretrial detention for individuals charged with first degree murder if certain conditions are first established:\\n(a) Who may be detained:\\n(1) Dangerous crime. A person charged with murder in the first degree,. . . may by order of the court be detained upon a hearing . . . prior to trial if the government certifies by motion that, based on the person's pattern of behavior consisting of his past and present conduct, the nature and circumstances of the offense charged, the weight of the evidence presented, his family ties, employment, financial resources, character and mental condition, length of residence in the community, record of convictions, and any other record of appearance at court proceedings, flight to avoid prosecution or failure to appear at court proceedings, there is no one condition or combination of conditions which will reasonably assure the safety of the community or, particularly in the case of a person charged with drug trafficking, that the person charged will appear for trial, (emphasis added)\\nSubsection (c) states:\\n(c) Issuance of an order of detention: No order of detention shall be issued upon a hearing under subsection (b) unless the court finds (1) that there is clear and convincing evidence that the person is a person described in subsection (a); (2) that there is no one or combined conditions which will reasonably assure the safety of any other person or the community or . . that the person charged will appear for trial; and (3) that . on the basis of information by proffer or otherwise there is a substantial probability that the person committed the offense for which he is present before the court. An order of detention shall be accompanied by written findings of facts and the reasons for its entry.\\nPursuant to section 3504a(b)(3), information may be considered by proffer, and the rules of evidence do not apply. The burden of proof is on the government to prove by clear and convincing evidence that not only is the defendant a person described in subsection (a), as explicitly stated in section 3504a(c)(l), but also that no conditions would otherwise ensure the safety of the community or that the person charged will not flee pursuant to section 3504a(c)(2). Subsection (c)(3) contains its own standard of proof of substantial probability that the defendant committed the offenses.\\nSince appellant challenges the sufficiency of the evidence, we review the judge's findings de novo to determine if this standard was met. In so doing, we adopt the standard for appellate review of district court release or detention orders. While we are not free to ignore the trial court's reasoning, we may amend or reverse a detention or release decision, if our review of the record compels a different result.\\nAppellant is person who may be detained\\nBeginning with section 3504a(c)(l), we first examine whether clear and convincing evidence exists that Smalls is an individual who may be detained pursuant to section 3504a(a)(l) by examining appellant's pattern of behavior. The first cognizable factor, appellant's past and present conduct, is evidenced by his frequent nonappearances in several pending felony prosecutions, indicating that flight is a realistic possibility. Appellant had no less than three pending criminal matters against him alleging violent assaults on others which continue to be pending due to his repeated failures to appear. Joint Appendix (\\\"J.A.\\\") at 21, 50, 62, 69-73, 150-68, 306-09.\\nThe second factor of section 3504a(a)(l) refers to the nature and circumstances of the offense for which Smalls is charged. Murder in the first degree carries a life sentence upon conviction. As noted by the trial judge, appellant's potential punishment if convicted is severe, and provides additional inducement for pretrial flight. J.A. at 314. Furthermore, the Government's proffer indicates that Smalls opened fire on a truck full of people in a crowded area. This Court cannot ignore the Government's allegation of reckless disregard that is further supported in an analysis of the third factor, the weight of the evidence against appellant, which the trial court found to be a compelling reason for pretrial detention.\\nFourth, the Territorial Court examined appellant's family ties. Appellant has lived most of his life with his mother, who testified on his behalf at the detention hearing. The record reflects that she has been totally ineffective as his third party custodian and that she can exert no control over appellant.\\nThe fifth and sixth factors, employment and financial resources, reveal appellant's poor financial state. Smalls, 23, is unemployed and has little or no financial resources. The lower court refrained from analyzing appellant's character and mental condition since no evidence was proffered other than conduct referred to in the first factor of section 3504a(a)(l). J.A. at 316. Smalls' length of residence in the community is the eighth factor under review pursuant to section 3504a(a)(l). Except for one year in a Mississippi school, and a brief career in professional baseball, appellant has resided in St. Thomas all his life. J.A. at 89-90.\\nThe next factor under consideration, appellant's record of convictions, reveals that although the Government only demonstrated that Smalls was convicted of simple assault, the tenth factor, his record of appearance at court proceedings is dismal. As previ ously noted, if not for Smalls' failure to appear at those proceedings, the prosecutions would have been resolved with acquittals or additional convictions. J.A. at 316-17. The Territorial Court found that no condition or combination of conditions would reasonably assure the safety of the community or that Smalls would appear for trial.\\nNo conditions will reasonably assure community safety or appellant's appearance at trial\\nWe have analyzed the trial court's findings pursuant to Section 3504a(c)(l) and find no error. In conjunction with the evaluation pursuant to subsection (a)(1), the judge dedicated most of discussion to the factors articulated above to find that the danger to the community combined with the risk of flight could not be avoided by any conditions that would simultaneously permit appellant's release. J.A. at 20-23, 317-20.\\nSubsection (c)(2) prohibits detention if any conditions would reasonably assure the safety of the community or that Smalls would appear for trial. If released, appellant offered to abide by restrictions imposed on him by the court. J.A. at 45. His mother offered to act as third party custodian responsible for appellant's behavior and court appearances. As noted above, however, she has been unable to fulfill those commitments in the past, and no new conditions convinced the Territorial Court that this circumstance would improve. In addition, appellant was charged with several crimes while on pretrial release for which probable cause was found. We therefore find no error in the Territorial Court's assessment that no conditions would assure the safety of the community or appellant's appearance for trial.\\nSubstantial probability that appellee committed charged offenses\\nFinally, section 3504a(c)(3) requires a finding that Smalls committed the crimes for which he is charged. Even though subsection (c)(3) only required proof of a substantial probability, the trial court found clear and convincing evidence that Smalls was the perpetrator of the offenses charged. The shooting occurred in a crowded, well-lighted area, and the Government proffered that it had at least two eye-witnesses, one of whom has known appellant for years, who positively identified Smalls as the perpetrator. J.A. at 21,131,314. Even after being apprehended and wounded, appellant fled and attempted to hide from the authorities rather than surrender. We find no error in the trial court's findings on this third requirement.\\nCONCLUSION\\nBased on the foregoing review and analysis, we find no error in the Territorial Court's decision to detain appellant prior to trial based on the proof that no condition or combination of conditions will reasonably assure the safety of the community or ensure that appellant will appear for trial. For this reason, the Territorial Court's Order dated February 8,1994 is affirmed, and this matter is remanded for expedited trial. An appropriate order will be entered.\\nORDER OF THE COURT\\nAND NOW, this 11th day of May, 1994, after careful review of the record and having considered the submissions of the parties; and for the reasons set forth in the Court's accompanying Opinion of even date;\\nIT IS ORDERED:\\nTHAT the Territorial Court's Order dated February 8, 1994 detaining the defendant is AFFIRMED.\\nThe Bail Reform Act of 1984 provides guidance, but its application is not required, in construing whether pretrial detention is warranted. See Terr. Ct. R. 141(b); see also 18 U.S.C. 3141-51. We find no error in the judge's references to both local and federal statute. See Government of the Virgin Islands v. O'Flaherty, St. T. Crim. No. 1990-239(B) (D.V.I. Jan. 25, 1991) (reaching the same conclusion).\\nSubsection (b) outlines that a pretrial detention hearing may be initiated before or after release immediately following a motion by the Government. The detainee has a right to counsel, may \\\"present information by proffer or otherwise,\\\" and has the right to testify and present witnesses. \\\"Rules pertaining to the admissibility of evidene in a court of law need not be followed.\\\"\\nThis construction of section 3504a(c)(l) and (c)(2) is consistent with the Bail Reform Act. 18 U.S.C. 3142(f).\\nSee United States v. Delker, 757 F.2d 1390, 1399 (3d Cir. 1985) (reviewing among other things, the legislative history regarding Rule 9(a) and the Bail Reform Act of 1984 regarding the applicable standard of review); see also United States v. Provenzano, 605 F.2d 85 (3d Cir 1979) (adopted in Delker and articulating the same standard for a matter involving release during appeal of conviction).\\nAppellant's sole previous conviction is for simple assault. Not included in the list of pending cases is a disputed drug and firearms matter; a shooting in which appellant states that another individual, Carl Johnson, was charged; and a possible conviction in Florida that was not confirmed on the record. Joint Appendix (\\\"J.A.\\\") at 50, 80, 129, 156, & 206.\\nThe other charges against appellant are also serious in nature. Assault in the first degree carries up to 15 years imprisonment, and unauthorized possession of a firearm could carry a minimum five year jail term.\\nSee infra (discussing section 3504a(c)(3) that based on the information, there is a substantial probability that Smalls committed the offenses for which he is charged).\\nAlthough appellant's mother could not remember, the record indicates that at a time she was acting as his third party custodian, probable cause was established to show he committed offenses while on release. J.A. at 195,211,307-08. In each of the pending cases against appellant, the record shows that he failed to appear at virtually all court appointments after being released on bail. J.A. at 306-10.\\nThe office of the Territorial Public Defender was appointed to represent Smalls based on appellant's financial inability to retain legal counsel. J.A. at 315.\\nSee supra note 5.\\nSee infra and J.A. at 317-20.\\nSee supra.\\nSee United States v. Powers, 622 F.2d 317, 323 (8th Cir. 1980) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 445 (1979) and emphasizing that the 'clear and convincing' standard is more stringent than 'substantial probability').\"}"
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+"{\"id\": \"12451382\", \"name\": \"CHRISTOPHER LEE GAYANICH, Plaintiff v. BRITTLEY DAWN GAYANICH, Defendant\", \"name_abbreviation\": \"Gayanich v. Gayanich\", \"decision_date\": \"2017-06-23\", \"docket_number\": \"Family No. SX-16-DI-103\", \"first_page\": 205, \"last_page\": \"217\", \"citations\": \"66 V.I. 205\", \"volume\": \"66\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Superior Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T02:49:49.834680+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHRISTOPHER LEE GAYANICH, Plaintiff v. BRITTLEY DAWN GAYANICH, Defendant\", \"head_matter\": \"CHRISTOPHER LEE GAYANICH, Plaintiff v. BRITTLEY DAWN GAYANICH, Defendant\\nFamily No. SX-16-DI-103\\nSuperior Court of the Virgin Islands Division of St. Croix\\nJune 23, 2017\\nMark W. Eckard, Esq. St. Croix, USVI, For Plaintiff.\\nH.A. Curt Otto, Esq., St. Croix, USVI, For Defendant.\", \"word_count\": \"4129\", \"char_count\": \"24993\", \"text\": \"HINDS ROACH, Judge\\nMEMORANDUM OPINION\\n(June 23, 2017)\\nTHIS MATTER came before this Court on April 4 and 5, 2017 for a Jurisdictional Hearing pursuant to Mr. Christopher Lee Gayanich's Complaint for Divorce filed September 20, 2016.\\nThe Court finds that the Virgin Islands has jurisdiction pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act (16 V.I.C. Ch. 4). However, this Court declines to exercise jurisdiction on the grounds that the United States Virgin Islands is an inconvenient forum and Oklahoma is the more appropriate forum for this proceeding.\\nPROCEDURAL POSTURE\\nOn September 20, 2016, Mr. Gayanich filed for divorce in the USVI. Thereafter, on October 3, 2016, Ms. Gayanich filed for divorce in Oklahoma. After Ms. Gayanich was served with notice of the suit in the USVI, she filed a Motion to Dismiss the USVI proceeding for lack of jurisdiction on October 28, 2016. In her Motion, Ms. Gayanich asserts that the USVI does not have jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act, and that the USVI is an inconvenient forum. On November 29, 2016, Mr. Gayanich submitted a Response in Opposition to Ms. Gayanich's Motion to Dismiss.\\nIn accordance with 16 V.I.C. sections 127-133, which governs child-custody jurisdiction and enforcement and requires that courts formally communicate to resolve jurisdictional issues, this Court held a telephone conference on January 24, 2017 with the Honorable Thomas K. Baldwin from the 20th Judicial District in Oklahoma. The courts agreed that a jurisdictional hearing should go forward in the United States Virgin Islands court to determine:\\n1. Whether the USVI has jurisdiction to determine custody issues pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act; and,\\n2. Whether the USVI is an inconvenient forum pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act.\\nFINDINGS OF FACT\\nThe parties married in Oklahoma on June 1, 2013. There are two young children born of the marriage, C.B.G. (male, DOB: 4/11/14) and B.D.G. (female, DOB: 3/13/15), both born in Oklahoma.\\nThe parties resided in Oklahoma until approximately January 28, 2016, when the parties, along with their two minor children, moved to St. Croix. Mr. Gayanich's family members are partial owners of the Chenay Bay Resort in St. Croix that he was hired to manage. The family moved into an apartment at Chenay Bay which had been renovated for their arrival. On March 22, 2016, Ms. Gayanich and the two children took a trip to Oklahoma. Mr. Gayanich joined them in Oklahoma on April 6, 2016. On April 10, 2016, the family of four returned to St. Croix where they remained until the end of August.\\nOn August 27, 2016, the younger child flew to Oklahoma with Mr. Gayanich's grandmother, and Ms. Gayanich followed with the older child a few days later, on August 31, 2016. Both children flew back to St. Croix on or around September 19, 2016 with Mr. Gayanich's grandmother. Ms. Gayanich remained in Oklahoma and continues to live in Oklahoma to date.\\nLAW AND DISCUSSION\\nThe Uniform Child-Custody Jurisdiction and Enforcement Act (\\\"UCCJEA\\\") was adopted by the USVI in 2005 and codified as 16 V.I.C. Chapter 4. The UCCJEA provides the basis for determining jurisdiction for child custody proceedings, as well as the criteria for assessing whether a forum is inconvenient.\\n1. Jurisdiction.\\nTitle 16 V.I.C. section 127(a), which provides the basis for jurisdiction to make a child custody determination, states in pertinent part:\\n(a) Except as otherwise provided in section 130, a court of this State has jurisdiction to make an initial child-custody determination only if:\\n(1) this State is the home State of the child on the date of the commencement of the proceeding, or was the home State of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;\\n(2) a court of another State does not have jurisdiction under paragraph (1), or a court of the home State of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under section 133 or 134, and:\\n(A) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and\\n(B) substantial evidence is available in this State concerning the child's care, protection, training, and personal relationships;\\n(3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under section 133 or 134; or\\n(4) no court of any other State would have jurisdiction under the criteria specified in paragraph (1), (2), or (3)\\n(emphasis added).\\nMs. Gayanich asserts that Oklahoma, rather than the USVI, is the home state of the two minor children. Mr. Gayanich contends that it is the USVI that is the home state of the children.\\nTitle 16 V.I.C. section 116(7) which defines \\\"home state\\\" states in relevant part:\\n\\\"Home State\\\" means the State in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding.... A period of temporary absence of any of the mentioned persons is part of the period.\\nMs. Gayanich asserts that the time the family spent in St. Croix was a temporary absence from Oklahoma. Mr. Gayanich asserts that the trips taken to Oklahoma from St. Croix during the six-month period before his filing of the USVI petition were temporary absences.\\na. Home State\\nThe Court's first inquiry is whether the USVI is the home state of the minor children. Each factor of 16 V.I.C. 127(a) need not be met, as these factors are written in the disjunctive. Therefore, establishing the home state of the children is sufficient to establish jurisdiction.\\nAs defined by 16 V.I.C. section 116(7), \\\"home state\\\" is the state in which the child lived for at least six months immediately prior the commencement of the custody proceeding.\\nIt is necessary to clarify what is meant by \\\"live\\\" under 16 V.I.C. section 116(7). The USVI has not yet adopted a standard for \\\"live\\\" for the purposes of a definition of home state, however other jurisdictions under the UCCJEA have provided persuasive guidance. ,\\nMost jurisdichons have adopted a physical presence standard rather than a domicile or residence inquiry, and have clarified that intent of the parents is not relevant in determining the home state of a child under the UCCJEA.\\nIn accordance with the prevailing case law, this Court declines to consider the intent of the parents in determining the home state. This Court likewise declines to adopt a domicile or legal residency inquiry. Instead, this Court is persuaded that the physical presence standard is the appropriate standard for establishing home state per 16 V.I.C. Chapter 4.\\nThe dates during which the children were present in Oklahoma versus St. Croix are uncontested. Mr. Gayanich filed for divorce on September 20, 2016. Six months prior to this date (on March 20, 2016), the children were in St. Croix. In fact, the children arrived in St. Croix on January 28, 2016, and remained in St. Croix until the date of filing, with the exception of two trips to Oklahoma.\\nAlthough the parties testified at length regarding their ties to the state of Oklahoma versus their connections to St. Croix, these factors are irrelevant in the determination of home state of the children. The children were physically present in St. Croix for the six months prior to the commencement of Mr. Gayanich's Petition for divorce, therefore, barring any non-temporary absence, St. Croix is the home state of the children.\\nThe remaining inquiry on this topic is whether the children's absences from St. Croix constituted temporary absences, such that they are counted towards the six-month time period establishing home state.\\nb. Temporary Absence\\nPer 16 V.I.C. \\u00a7 116(7), any temporary absences in the consecutive six-month period before custody proceedings are counted toward the period. The inquiry here is whether the children's absences from St. Croix are temporary within the meaning of the UCCJEA.\\nThis is an area of law which the USVI has not addressed, however, the numerous jurisdictions which have adopted the UCCJEA help clarify the meaning of temporary absence under the home state provision.\\nJurisdictions have employed various tests to determine what absences are temporary, however the intent of the parents is consistently considered.\\nHowever, a parent's assertion regarding the duration of a visit may be discounted if the record demonstrates a move rather than a visit.\\nAfter looking at the facts of the case as a whole, particularly noting the intention of the parents, this Court finds that the two trips to Oklahoma during the six months immediately prior to the commencement of the proceeding were temporary absences from the home state of St. Croix. The Court finds from the parties' testimony that each trip was intended by the parents to be a temporary visit to Oklahoma. Neither trip was of indefinite duration, rather the children returned to St. Croix, as expected by the parents.\\nAlthough Ms. Gayanich maintains that the trip to St. Croix was not a move, a temporary trip from Oklahoma, considering the record as a whole, this Court declines to consider the relocation to St. Croix a temporary absence from Oklahoma. The facts of this case demonstrate that Mr. and Ms. Gayanich intended moved to St. Croix from Oklahoma at the end of January 2016. Among other things, the record demonstrates that Ms. Gayanich moved the equipment to start an embroidery business in St. Croix, as well as household items from Oklahoma to St. Croix. Although Ms. Gayanich eventually decided to move back to Oklahoma, the actions of the parties in January 2016 and the subsequent months persuades this Court that the parties lived in St. Croix, and they were not simply taking a prolonged absence from Oklahoma.\\nTherefore, the Court finds from the parties' testimony and the full record, that the parties moved to St. Croix on January 28 2016, and, although the children were absent from St. Croix on two occasions, St. Croix remained the home state of the children, and the children's absences from St. Croix were temporary.\\nAccordingly, this Court finds that the USVI is the home state of the children within the meaning of 16 V.I.C. Chapter 4, and therefore the USVI has jurisdiction to determine custody.\\n2. Forum.\\nThe parties dispute the issue of forum non conveniens. It is Ms. Gayanich's position that St. Croix presents an inconvenient forum for litigation, and the case is better situated in Oklahoma. Mr. Gayanich disagrees, positing that St. Croix is the children's home state and has a much greater interest in resolving the custody dispute.\\nThis Court finds that, although St. Croix is the home state of the children, the USVI presents an inconvenient forum for the parties, and therefore this Court declines jurisdiction.\\nPer 16 V.I.C. section 133(b) an inconvenient forum is evaluated as follows:\\n(b) Before determining whether it is an inconvenient forum, a court of this State shall consider whether it is appropriate for a court of another State to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:\\n(1) whether domestic violence has occurred and is likely to continue in the future and which State could best protect the parties and the child;\\n(2) the length of time the child has resided outside this State;\\n(3) the distance between the court in this State and the court in the State that would assume jurisdiction;\\n(4) the relative financial circumstances of the parties;\\n(5) any agreement of the parties as to which State should assume jurisdiction;\\n(6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;\\n(7) the ability of the court of each State to decide the issue expeditiously and the procedures necessary to present the evidence; and\\n(8) the familiarity of the court of each State with the facts and issues in the pending litigation.\\nIn determining whether the USVI would be an inconvenient forum, this Court looked at all applicable factors and found three factors to be most relevant in this matter; that being, the length of time the children have resided outside this state, the relative financial circumstances of the parties, and the nature and location of the evidence required to resolve the pending litigation.\\nRegarding the length of time residing out of state: The children were both born in Oklahoma. The older child, C.B.G., was born on April 11, 2014, and the younger child, B.D.G., was born on March 23, 2015. The children lived in Oklahoma until the family moved to the USVI in January of 2016. As of the date of Mr. Gayanich's divorce filing, the children had lived in St. Croix for 236 days. Although the children are still quite young (both under three years of age at the date of filing), they have spent a significant portion of their young lives in both Oklahoma and St. Croix. This factor does not militate in favor of either party.\\nRegarding the relative financial circumstances of the parties: Based on the testimony of the parties and the entire record, the Court finds that this factor favors Ms. Gayanich's position that Oklahoma is the more appropriate forum. Ms. Gayanich testified that she performs part time work, and has no appreciable savings. Her parents have been financing the litigation thus far; however, the parents' resources have been depleted. Ms. Gayanich submitted documents demonstrating that the cost of a flight to St. Croix from Oklahoma is approximately $800 per person. Although the record demonstrates that Mr. Gayanich makes approximately $48,000 per year, testimony from his family confirmed that he is able to rely on his relatives for financial assistance.\\nRegarding the nature and location of the evidence: This factor provides the most compelling rationale for this Court to decline jurisdiction. Both parties are originally from Oklahoma. Mr. Gayanich's extended family resides in Oklahoma, as does Ms. Gayanich's family. The parties were married in Oklahoma on June 1, 2013 and resided on property owned by Mr. Gayanich's family until their move to St. Croix. Family members, friends, and coworkers who witnessed the marriage from its inception until the move to St. Croix are largely in Oklahoma. This Court is persuaded that the majority of the witnesses of both parties, as well as the evidence necessary to litigate this proceeding lie in Oklahoma.\\nCONCLUSION\\nThis Court finds that the USVI is the home state of the minor children, pursuant to 16 V.I.C. Chapter 4 and therefore has jurisdiction to hear the proceeding.\\nHowever, this Court declines jurisdiction because the USVI presents an inconvenient forum for the parties' litigation.\\nThereby, for the reasons stated in the above Opinion, it is ORDERED:\\n1. That the USVI is the home state of the children pursuant to 16 V.I.C. Chapter 4.\\n2. That the Motion to Dismiss for Forum Non Conveniens is GRANTED, and this case hereby transferred to the 20th Judicial District in Oklahoma for further disposition.\\n3. That the USVI has declined jurisdiction, and therefore this matter as it relates to the USVI is CLOSED\\nFURTHER ORDERED that a copy of this Order be served on the parties as well as the Honorable Thomas K. Baldwin of the 20th Judicial District in Oklahoma.\\nAs of January 28, 2016, the oldest child, C.B.G., was one year nine months, and the youngest child, B.D.G, was ten and a half months.\\nThrough her testimony and pleadings, Ms. Gayanich asserted that the family did not move to St. Croix, rather it was merely a temporary trip. At the hearing, she presented the testimony of her mother who said that Mr. Gayanich represented to the family that the trip to St. Croix would be a temporary assignment to help get a resort up and running smoothly. According to Ms. Gayanich's father, Mr. Gayanich stated the trip to St. Croix was a temporary assignment to run the resort which would take approximately two to three months, after which the family would return to Oklahoma where Mr. Gayanich would run the resort remotely, making occasional trips back to St. Croix. Ms. Gayanich testified that she was told she could return to Oklahoma at any time.\\nThe Court is unpersuaded by this characterization of the move as a temporary trip. In contrast to the testimony presented by Ms. Gayanich, in the record is evidence that Ms. Gayanich's father announced to the couple's home church that \\\"the kids are moving\\\" to St. Croix. Additionally, Ms. Gayanich moved equipment necessary to continue her embroidery business to St. Croix and the Chenay Bay apartment was outfitted to accommodate her business. Furthermore, on social media, Ms. Gayanich said she was \\\"completely moving\\\" to St. Croix. Although much evidence was introduced to support the notion that this relocation was temporary, based on the entire record, this Court finds that the family relocated to St. Croix and no longer resided in Oklahoma as of January 2016.\\nSee Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S. Ct. 2326, 60 L. Ed. 2d 931 (1979) (\\\"Cannons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise\\\"); (Friedman v. Eighth Judicial Dist. Court of Nev., 127 Nev. 842, 264 P.3d 1161, 1166 n.4 (Nev. 2011) (noting that when paragraphs are joined by \\\"or\\\" and not \\\"and\\\" they should be considered in the disjunctive).\\nSee Haynes v. Ottley, 61 V.I. 547, 564-65 (2014) (\\\"And when the Virgin Islands Legislature models a local statute after a statute adopted by another jurisdiction, 'judicial decisions interpreting [that] statute shall assist this Court in interpreting the same clause found in our' local statute.' \\\" (quoting People v. Pratt, 50 V.I. 318, 322 (V.I. 2008)).\\nNo Banks analysis is required in this interpretation because this is a statutory provision, and not an interpretation of common law.\\nSee Ocegueda v. Perreira, 232 Cal. App. 4th 1079, 181 Cal. Rptr. 3d 845, 850-52 (2015) (following the physical presence standard and rej ecting consideration of a parent's subjective intent to remain in a particular' state); Slay v. Calhoun, 332 Ga. App. 335, 772 S.E.2d 425, 430 (2015) (determining home state based on physical presence and declining to consider legal residence); Dekinderen v. Dekinderen, 2010 Mich. App. LEXIS 56, at *7 (Mich. Ct. App. 2010) (unpublished opinion) (finding physical presence test, which does not require intent, to be appropriate rather than residence or domicile); Sajjad v. Cheema, 428 N.J. Super. 160, 51 A.3d 146, 154 (Ct. App. Div. 2012) (finding consideration of legal residence or domicile unnecessary and interpreting \\\"lived\\\" as physical presence regardless of intent to remain); Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1, 9 (2008) (quoting Consford v. Consford, 271 A.D.2d 106, 711 N.Y.S.2d 199, 205 (App. Div. 2000) (noting that the home state inquiry is separate and distinct from a legal residence determination)); Powell-v. Stover, 165 S.W.3d 322, 326 (Tex. 2005) (establishing physical location as the central factor to be considered and rejecting a subjective intent inquiry); In the Interest of S.A.H., 465 S.W.3d 662, 666 (Tex. App. 2014) (recognizing home state based on child's physical presence and not the legal residence of the parents); In re Burk, 252 S.W.3d 736, 739 (Tex. App. 2008) (finding a child's physical location to be the central factor in determining home state); In re Tieri, 283 S.W.3d 889, 893 (Tex. App. 2008) (recognizing home state is based on physical presence and declining to consider parental intent); In re Brown, 203 S.W.3d 888, 891 (Tex. App. 2006) (rejecting a subjective intent or totality of the circumstances test and acknowledging the adoption of a physical presence standard).\\nMs. Gayanich provided substantial evidence of lingering ties to Oklahoma as proof that Oklahoma remained the home state of the family while they were physically present in St. Croix, and that they intended to return to Oklahoma. Ms. Gayanich provided evidence of her cosmetology license in Oklahoma, which she renewed while living in St. Croix, the house in Oklahoma where the family lived, which was still furnished when they relocated to St. Croix, the children's medical records in Oklahoma, daycare enrollment beginning in August of 2016 in Oklahoma, a house under construction in which the family may have intended to live upon their return from St. Croix, a vehicle left in Oklahoma and refinanced during their stay in St. Croix, as well as her voter's registration card in Oklahoma, insurance cards directed to the Oklahoma address, drivers licenses maintained in Oklahoma, a bank account maintained in Oklahoma, and bills received in Oklahoma. Mr. Gayanich likewise provided evidence of ties to St. Croix. He noted that Ms. Gayanich shipped her embroidery materials to St. Croix to begin a business when she arrived, that at least one child saw a doctor in St. Croix, that the family shipped their Jeep to St. Croix, that they maintained car insurance in St. Croix, opened a bank account in St Croix, and shipped many household items to St. Croix. The Court finds that in spite of the numerous lingering contacts with Oklahoma, the family did intend to move to St. Croix. One can move to a new location and maintain ties to their previous home. This is especially reasonable when one's new home is an island to which furniture items cannot be driven, and one's previous home is on the property of family members, as was the case with Mr. and Ms. Gayanich. Nevertheless, the matter of intent to move is irrelevant in establishing the home state of the children.\\nSee footnote 4.\\nSee In re Marriage of McDermott, 175 Wn. App. 467, 307 P.3d 717, 726 (2013) (considering a number of factors including the parent's purpose and whether the parent in the claimed home state believed the absence to be temporary, whether the absence was of indefinite duration, and the totality of the circumstances regarding the absence of the child); In re Parentage, Parenting, and Support of A.R.K.-K., 142 Wn. App. 297, 174 P.3d 160, 163 (2007) (finding a party's intent is relevant); Ex parte Siderius, 144 So. 3d 319, 325 (Ala. 2013) (quoting In re Marriage of McDermott, 175 Wn. App. 467, 307 P.3d 717, 728 (2013) (finding where both parents intend an absence of a child to be temporary, the absence must be counted toward the establishment of the home state).\\nSee In re Marriage of Willson, 2008 Cal. App. Unpub. LEXIS 5803, at *9 (Cal. Ct. App. 2008) (unpublished opinion) (finding that the parties had moved to Spain, despite the mother's assertion that it was a temporary two-month visit); C.G.O. v. R.A.O., 801 A.2d 938, 943 (Del. Fam. Ct. 2002) (determining that a 14-month stay in Philadelphia was not temporary simply because the father asserted that it was, where the mother established that she resided, conducted business, voted, and held a lease in in the city).\\nAccording to the record, the children were absent for approximately two and a half weeks in March and April, and again for approximately three weeks in August and September.\\nAlthough it is unclear from the record whether Ms. Gayanich intended for the children's trip in August to be temporary, it is evident from the record that Mr. Gayanich intended the visit to be temporary, and this Court examines whether the parent \\\"remaining in the claimed home state intended for the absence to be temporary.\\\" In re Marriage of McDermott, 175 Wn. App. 467, 307 P.3d 717, 726 (2013).\\nFor further analysis, see footnote 7.\\nMs. Gayanich appeal's to have relocated back to Oklahoma at the end of August 2016.\\nThis includes the dates the children returned to Oklahoma for temporary visits.\\nMs. Gayanich does part-time embroidery work, and also does cosmetology work in Oklahoma.\\nMs. Gayanich suggested that she would call approximately 25 witnesses from Oklahoma, however the Court does not presume that each of these witness would necessarily appeal' personally, rather than telephonically.\\nAlthough Mr. Gayanich refers to the Court's ability to utilize flexible methods of taking testimony pursuant to 16 V.I.C. \\u00a7 125(a) and (b), this Court finds that in this instance, both parties would be disadvantaged by proceeding with litigation in the USVI.\"}"
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+"{\"id\": \"12451416\", \"name\": \"MONICA BOYD-RICHARDS, Appellant v. ALFREDO LIMA, Appellee\", \"name_abbreviation\": \"Boyd-Richards v. Lima\", \"decision_date\": \"2017-06-14\", \"docket_number\": \"D.C. Civil App. No. 2004-116\", \"first_page\": 882, \"last_page\": \"891\", \"citations\": \"66 V.I. 882\", \"volume\": \"66\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T02:49:49.834680+00:00\", \"provenance\": \"CAP\", \"judges\": \"GOMEZ, Judge; and FINCH, Senior Judge.\", \"parties\": \"MONICA BOYD-RICHARDS, Appellant v. ALFREDO LIMA, Appellee\", \"head_matter\": \"MONICA BOYD-RICHARDS, Appellant v. ALFREDO LIMA, Appellee\\nD.C. Civil App. No. 2004-116\\nDistrict Court of the Virgin Islands Division of St. Thomas and St. John, Appellate Division\\nJune 14, 2017\\nMonica Boyd Richards, appellant, Pro se.\\nGregory H. Hodges, Dudley Topper & Feuerzeig, St. Thomas, USVI, For the appellee.\\nGOMEZ, Judge; and FINCH, Senior Judge.\\nWhile Judge Darryl Donohue of the Superior Court of the Virgin Islands, Division of St. Croix, sat on the panel that considered this matter, he retired before the decision was issued.\", \"word_count\": \"2692\", \"char_count\": \"16411\", \"text\": \"MEMORANDUM OPINION\\n(June 14, 2017)\\nMonica Boyd-Richards (\\\"Boyd-Richards\\\") filed this appeal from an August 12, 2004 Order of the Superior Court of the Virgin Islands, Division of St. Thomas and St. John granting Alfredo Lima (\\\"Lima\\\") restitution of his premises at Dronningens Gade No. 63, St. Thomas, Virgin Islands.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nIn 2003, Lima owned property described as Dronningens Gade Number 63 (the \\\"Property\\\"). Boyd-Richards was a month-to-month tenant of the Property. In October, 28, 2003, Lima sent Boyd-Richards a notice that he was terminating her month-to-month tenancy and giving her 30 days to vacate the premises. Boyd-Richards failed to vacate the property at the end of the 30 days.\\nThereafter, Lima initiated the underlying action for forcible entry and detainer against Boyd-Richards before the then-Virgin Islands Territorial Court. At a February 5, 2004, hearing, the trial court took evidence and heard arguments on the merits. Lima was not present at the hearing due to an illness. Lima's daughter, Margarita Kouns (\\\"Kouns\\\"), along with Lima's counsel, was present at the hearing. Kouns testified about the agreement between Lima and Boyd-Richards. A process server, Wilbur Marsh (\\\"Marsh\\\") testified that he served Boyd-Richards with the notice to quit the Property in October 2003. After the presentation of Lima's evidence, the court continued the hearing to a later date.\\nOn July 29, 2004, the trial court took further testimony from Lima and another one of his daughters, Lydia Lima Luton. After the presentation of this evidence, Boyd-Richards requested a continuance so that she could produce a witness. The court again continued the hearing until August 12, 2004. On that date, Boyd-Richards was unable to produce the witness, and the court then ruled that Lima was entitled to restitution of the Property.\\nThereafter, Boyd-Richards, proceeding pro se, initiated the present appeal. She essentially raises four issues: (1) whether the Territorial Court exceeded its jurisdiction by construing this action as one for forcible entry and detainer; (2) whether the presiding judge, the Honorable Audrey L. Thomas, was impermissibly biased due to her familial ties to the Limas, which she did not disclose; (3) whether the judge's admonishments of Boyd-Richards for her conduct during the three hearings were impermissible or prejudicial; and (4) whether the Territorial Court's failure to rule on Boyd-Richard's post-trial motions resulted in prejudice.\\nII. JURISDICTION AND STANDARD OF REVIEW\\nA. Jurisdiction\\nThis Court has jurisdiction to review final judgments and orders of the Superior Court of the Virgin Islands. See Revised Organic Act of 1954 23A, 48 U.S.C. \\u00a7 1613a; Act No. 6730 \\u00a7 54(d)(1) (Omnibus Justice Act of 2005).\\nB. Standard of Review\\nWhere the trial court's determination was based on its application of legal precepts or interpretation of a statute, such determination is subject to de novo review. See Saludes v. Ramos, 744 F.2d 992 (3d Cir. 1984); Mapes Monde, Ltd. v. A.H. Riise Gift Shop, Inc., 337 F. Supp. 2d 704, 707, 46 V.I. 297 (D.V.I. App. Div. 2004). Findings of fact made by the Superior Court are not to be disturbed unless they are clearly erroneous. Lenhardt v. Richards, 17 V.I. 619 (3d Cir. 1980); T-Shirt World, Inc. v. Artland, Inc., 20 V.I. 147 (D.V.I. 1983).\\nIII. ANALYSIS\\nA. Forcible Entry and Detainer Action\\nWhere a \\\"forcible entry is made upon any premises,\\\" or where a peaceable entry is made but \\\"the possession is held by force, the person entitled to the premises may maintain an action to recover the possession thereof.\\\" V.I. Code Ann. tit. 28, \\u00a7 782(a). Where the amount in controversy is less than $500, the Territorial Court has exclusive jurisdiction. Id. at \\u00a7 782(b). In all other cases, jurisdiction lies concurrently with the Territorial Court and the District Court of the Virgin Islands. Id.\\nSuch a forcible entry and detainer action (\\\"FED action\\\") is an action of limited applicability and \\\"is not available where the Defendant is occupying the property under a claim of right.\\\" Barnes v. Weber, 50 V.I. 167, 172 (V.I. Super. Ct. 2008). The adjudication of FED actions is conducted via a \\\"simple summary proceeding\\\" in which the deadlines typically used in civil actions are abbreviated and the issues considered are narrowly circumscribed. See Estate of Thomas Mall, Inc. v. Territorial Court of the Virgin Islands, 923 F.2d 258, 264 (3d Cir. 1991). The trade-off for the speedy resolution of FED actions is that \\\"the scope of an FED proceeding is very limited. . As soon as a defendant in possession in an FED action raises a colorable defense requiring construction of an agreement between the property owner and the party in possession, an FED action will not lie.\\\" Id.\\nBoyd-Richards contends that there was a contract between her and Lima for her purchase of the Dronningens Gade property. She thus asserts that the issues presented went beyond the scope of a summary FED action, and the trial court erred by not transferring the matter to its civil docket.\\nIn Estate of Thomas Mall, Inc. v. Territorial Courts of the V. I., 923 F.2d 258 (3d Cir. 1991), the United States Court of Appeals for the Third Circuit addressed a landlord-tenant dispute between the Territorial Court of the Virgin Islands and Estate of Thomas Mall, Inc. (\\\"Estate Thomas\\\"). The Territorial Court had leased property from Estate Thomas. Pursuant to the lease agreement Estate Thomas was to supply water to the bathrooms on the property. Id. at 259. Estate Thomas did provide well water for the bathrooms on the property for a period of time. Id. However, at some point, the well water became contaminated and was determined to be non-potable. Id. The Territorial. Court advised Estate Thomas of the water problems, but Estate Thomas failed to provide any remedy. Id. The Territorial Court then began withholding rent. Id. Estate Thomas responded by initiating an FED action in the District Court of the Virgin Islands. Id.\\nThe Third Circuit held that, given that Estate Thomas's claim rested on the interpretation of a lease agreement, proceeding with the matter as an FED action was in error:\\n[I]t should have been apparent to the District Court that resolution of Estate Thomas' action requires construction of the parties' lease agreement. For instance, the Court would need to construe the lease provision where Estate Thomas agrees to provide water to the bathrooms, determine whether the Territorial Court exceeded its remedies under the lease by withholding rent until Estate Thomas provides useable water, and decide whether the parties have a valid lease at all. While these may not be the precise issues that will be litigated in an action for rent and ejectment, they are the kind of issues that are appropriately resolved in an ordinary civil action, not the summary FED proceeding.\\nId. at 265.\\nIn this case, at the first hearing, Boyd-Richards sought to introduce a document she claimed was a lease agreement between her and Lima. First, Boyd-Richards questioned Kouns about the document:\\nQ: Do you recognize your father's signature on the bottom of that document, ma'am?\\nA: It looks like his signature, but I don't recognize the document. We do not have a copy of this.\\n(J.A. Vol. II at 54.) Boyd-Richards then argued that Lima's absence made it impossible to present her case:\\nYour Honor, Mr. Lima is not here. I asked for his presence. His daughter is now testifying that this is her father's signature .\\nYour Honor, I think that if it is as it is now, far enough into the sale, terms and conditions, enough have been said by someone who was not even there in June.\\nMr. Lima being ill, I would at this point, again, point out to the Court, please to allow a regular hearing on this matter because we are looking at a three quarter of a million dollar sale, that a negotiation, the buying and selling of property, which I did not want any rental.... This is not a regular landlord and tenant.\\n(App. Vol. II 54, 56-57.) The Court then continued the hearing and gave the parties the opportunity to brief the issue of whether there was any lease agreement and, if so, whether the case was properly brought as an FED action.\\nAfter hearing more evidence at the second hearing, including Lima's testimony, the Court concluded that Boyd-Richards was claiming only an equitable interest in the property, and thus Lima's claim was properly brought as an FED action:\\nAlthough there was testimony of an attempt to have Ms. Boyd Richards sign a lease, a lease was never signed. Basically, the lease was not signed because, according to the testimony of Ms. Lima Luton, when that lease was offered to Ms. Boyd Richards, Ms. Richards said she didn't want the lease option agreement; she wanted a lease purchase agreement.\\nNo one disputed that Ms. Boyd Richards was trying to get Mr. Lima to sell her the property, but there was never any agreement, never any meeting of the minds, never any acceptance of Ms. Boyd Richards' offer by Mr. Lima.\\n(J.A. Vol. II at 109.)\\nThe sole basis for Boyd-Richards's contention that this action is not an FED action is that the lease included as a term that Boyd-Richards would be given the option of purchasing the Property should Lima attempt to sell it. However, despite the trial court granting two continuances, Boyd-Richards was never able to produce any evidence of any agreement, written or otherwise, which contained such terms. Moreover, while Lima acknowledged that Boyd-Richards had sought to purchase the Property from him, he and his daughters denied that their agreement with Boyd-Richards ever contained any term concerning the ultimate purchase of the Property.\\nThus, the only issue before the trial court was whether Boyd-Richards had a right to remain on the Property. The evidence showed that Boyd-Richards was in default on her rent obligations and had been given timely notice to vacate. Nothing in this determination required the trial court to construe or otherwise consider any terms in the lease. Accordingly, given the evidence adduced below, we cannot say it was error for the trial court to construe this matter as an FED action.\\nB. Bias of the Trial Judge\\nBoyd-Richards claims that, after the conclusion of the FED proceedings, the trial judge revealed that she was related to the Limas. Boyd-Richards argues that this created an impermissible bias, and that the judge should have disclosed this information prior to the initiation of any proceedings.\\nIn the Virgin Islands, \\\"no judge may preside over any action or proceeding in which he is related to either party,... by blood or marriage within the third degree . . . .\\\" V.I. Code Ann. tit. 4, \\u00a7 284 (2) (\\\"Section 284 (2)\\\"). \\\"Generally, factual allegations of bias or prejudice of the judge must be accepted as true regardless of the truth or falsity thereof.\\\" Virgin Islands v. 8560 Square Feet of Land, 41 V.I. 126, 129 (V.I. Terr. Ct. 1999). However, \\\"the facts alleged by the party arguing disqualification [must] reflect a clear probability that the judge is biased against that party.\\\" Id. (quoting Government of the Virgin Islands v. Gereau, 502 F.2d 914, 11 V.I. 265 (3d Cir. 1974)) (internal quotation marks omitted).\\nIn Virgin Islands v. 8560 Square Feet of Land, 41 V.I. 126 (V.I. Terr. Ct. 1999), a condemnation action, the presiding judge of the Territorial Court signed a \\\"Declaration of Taking\\\" which stated that the condemnation was necessary to provide urgently needed parking. Id. at 127. Although the case was assigned to a different Territorial Court judge, the defendant sought to disqualify the entire Territorial Court. Id. The Territorial Court denied the defendant's motion to disqualify, noting that \\\"Defense counsel has not offered one factual allegation to support the conflict of interest claim against any judge. Instead, defense counsel . . . has resorted to conclusory statements completely unsupported by any person-specific factual allegations which raise a probability of bias.\\\" Id. at 129.\\nHere, Boyd-Richards likewise fails to allege bias with any specificity or particularity. Moreover, there is no record evidence that the judge is related to any of the parties. Further, even assuming there is a familial relationship between Judge Thomas and the Limas, we cannot determine whether the relationship falls within the scope of Section 284(2), which only applies to familial relationships \\\"within the third degree.\\\" V.I. Code Ann. tit. 4, \\u00a7 284(2). Thus we are unable to say that Judge Thomas was required to recuse herself.\\nC. Admonishments\\nBoyd-Richards contends that the Court's admonishments during her argument and examination of witnesses impaired her ability to put on her defense.\\nThe Supreme Court has made it clear that \\\"expressions of impatience, dissatisfaction, annoyance, and even anger\\\" do not establish bias or partiality. Liteky v. United States, 510 U.S. 540, 555-56, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994). \\\"A judge's ordinary efforts at courtroom administration \\u2014 even a stern and short tempered judge's ordinary efforts at courtroom administration \\u2014 remain immune.\\\" Id. at 556. Indeed, only in the most extreme cases may a predisposition to one side or another developed during the course of the proceedings demand recusal. Id. at 554.\\nIn the present case, after repeatedly attempting to get Boyd-Richards to temper her emotions in the courtroom, the trial judge had the following exchange with Boyd-Richards:\\nTHE COURT: Just a minute. One question at a time, otherwise, I am going to ask you to sit down and I will rule without the benefit of your examining witness.\\nTHE DEFENDANT: Yes.\\nTHE COURT: You are a former member of the Bar. You know how to conduct yourself in Court, so I am not going to be patient with you as I would be with a lay person.\\n(J.A. Vol. II at 51.) Additionally, during Boyd-Richards's cross-examination, the Court had to remind Boyd-Richards several times to allow the witness to respond to questions.\\nThese few instances do not suggest any bias on the part of Judge Thomas. In fact, Judge Thomas appears to have been engaging in nothing more than ordinary efforts at courtroom administration. See Liteky, 510 U.S. at 556. Requesting that a counsel permit witnesses to answer questions, or proceed in a calm and composed manner, do not reveal or imply any bias or prejudice on behalf of the court. Moreover, we note that the trial court was quite lenient with the presentation of Boyd-Richards's case, twice granting continuances for several months so that she could make arguments about the lease agreement or present the testimony of other witnesses. Thus we cannot say that Judge Thomas's conduct during the proceedings below prejudiced Boyd-Richards in any way.\\nD. Failure to Rule on Post-Trial Motions\\nBoyd-Richards asserts that the trial judge \\\"immediately left all post-trial pleas and Motions in the hands of the clerk to be processed and signed by any other Judge forced to rubberstamp her sentiments.\\\" (Appellant's Br. 2.) Boyd-Richards has failed to provide the Court with the docket sheet in this matter. Furthermore, she has not directed the Court to any motions of which the trial court failed to dispose. Rather, the record demonstrates that following its restitution order, the trial court promptly ruled on a motion by Boyd-Richards for a stay pending appeal. There is thus simply no evidentiary support for Boyd-Richards's claim that the trial judge neglected post-hearing motions in this matter.\\nIV. CONCLUSION\\nFor the reasons discussed above, the Court will affirm the Superior Court's Order granting Lima restitution of the Property. An appropriate judgment follows.\\nIn 2005, the Territorial Court of the Virgin Islands was renamed the Superior Court of the Virgin Islands. See Act of Oct. 29, 2004, No. 6687, sec. 6, 2004 V.I. Legis. 6687 (2004).\"}"
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+"{\"id\": \"12454728\", \"name\": \"FRANCIS EDWARD, Plaintiff v. GENOA INC., KEN BROWN and GEC, LLC, Defendants\", \"name_abbreviation\": \"Edward v. Genoa Inc.\", \"decision_date\": \"2016-07-12\", \"docket_number\": \"Case No. SX-11-CV-202\", \"first_page\": 50, \"last_page\": \"59\", \"citations\": \"67 V.I. 50\", \"volume\": \"67\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Superior Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:15:28.537615+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FRANCIS EDWARD, Plaintiff v. GENOA INC., KEN BROWN and GEC, LLC, Defendants\", \"head_matter\": \"FRANCIS EDWARD, Plaintiff v. GENOA INC., KEN BROWN and GEC, LLC, Defendants\\nCase No. SX-11-CV-202\\nSuperior Court of the Virgin Islands Division of St. Croix\\nJuly 12, 2016\", \"word_count\": \"3317\", \"char_count\": \"20422\", \"text\": \"WILLOCKS, Administrative Judge\\nMEMORANDUM OPINION\\n(July 12, 2016)\\nTHIS MATTER comes before the Court on Defendant GEC, LLC's (hereinafter, \\\"GEC\\\") motion for summary judgment (hereinafter, \\\"Motion\\\"), filed on October 22, 2015. On November 20, 2015, Plaintiff filed an opposition (hereinafter, \\\"Opposition\\\") and a response to Defendant GEC's statement of undisputed facts/counter-statement of undisputed material facts. On December 22, 2015, Defendant GEC filed a reply (hereinafter, \\\"Reply\\\").\\nBACKGROUND\\nOn or about June 1, 2010, Louis E. Brown I Ltd. contracted with Defendant GEC for construction services in connection with Louis E. Brown Phase I project (hereinafter, \\\"Construction Project\\\"). (Motion, p. 2; Opp., p. 1.) Subsequently, Defendant GEC contracted with Genoa Inc. (hereinafter, \\\"Genoa\\\") to provide labor assistance in connection with the Construction Project. (FAC \\u00b6 7; Mohon, Exhibit 1; Opp., p. 2.) In February 2011, despite the fact that no contract was in place, Genoa commenced working far the Construction Project in February 2011. (Motion, Exhibit 1; Opp., p. 3.)\\nPlaintiff was an employee of Genoa from February 17, 2011 until March 8, 2011, assigned as a laborer to work on the Construction Project. (Motion, p. 2, Exhibit 2; Opp., p. 3.) On March 8, 2011, Plaintiff was working on the Construction Project when he sustained a work-related injury. (FAC \\u00b6 18-13; Motion, p. 2; Opp., p. 3.) Plaintiff submitted a claim to the Virgin Islands Workers' Compensation Administration (hereinafter, \\\"Administration\\\") regarding his injury. (Motion, Exhibit 4; Opp., p. 4.) Thereafter, in a letter dated April 20, 2011, the Administration informed Genoa that Genoa was in violation of the Virgin Islands Workers' Compensation Act (hereinafter, \\\"VIWCA\\\") \\u2014 namely, Section 272(a) of Title 24 of the Virgin Islands Code \\u2014 for failure to secure workers' compensation insurance. (Motion, Exhibit 4; Opp., p. 4.)\\nA few months later, Plaintiff filed a lawsuit against Genoa, Ken Brown (hereinafter, \\\"Brown\\\"), and GEC, LLC as defendants. (FAC.) Plaintiff appears to allege a negligence cause of action against Defendants. Plaintiff seeks damages along with costs and fees. (FAC.) Subsequently, in an order dated January 17, 2013, the Court dismissed this action with prejudice as to Genoa and Brown pursuant to their stipulation.\\nSTANDARD OF REVIEW\\nA moving party will prevail on a motion for summary judgment where the record shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Walters v. Walters, 60 V.I. 768, 794 (V.I. 2014); Williams v. United Corp., 50 V.I. 191, 194 (V.I. 2008). As to materiality, \\\"only those facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.\\\" Id., at 195 (internal quotations omitted).\\nThe moving party must support the motion by \\\"identify[ing] those portions of the record that demonstrate the absence of a genuine issue of material fact.\\\" Chapman v. Cornwall, 58 V.I. 431, 436 (V.I. 2013). If the moving party does so, then \\\"the burden shifts to the non-moving party to present affirmative evidence from which a jury might reasonably return a verdict in his favor.\\\" Id. (internal quotation omitted). The nonmoving party then has the burden of \\\"setting] out specific facts showing a genuine issue for trial.\\\" Williams, 50 V.I. at 195 (internal citation omitted). \\\"[T]o survive summary judgment, the nonmoving party's evidence must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.\\\" Id. (internal quotations omitted).\\nThe Court must view all inferences from the evidence in the light most favorable to the nonmoving party, and take the nonmoving party's conflicting allegations as true if properly supported. Id.; see also Walters, 60 V.I. at 794; Perez v. Ritz-Carlton (Virgin Islands), Inc., 59 V.I. 522, 527; Joseph v. Hess Oil V.I. Corp., 54 V.I. 657, 668 (V.I. 2011). In deciding a motion for summary judgment, the Court's role is not to determine the truth, but to determine whether a factual dispute exists that warrants a trial on the merits. Williams, 50 V.I. at 195. Where such a factual dispute exists, the Court must deny the motion for summary judgment. Sealey-Christian v. Sunny Isle Shopping Ctr., 52 V.I. 410, 423 (V.I. 2009). \\\"Because summary judgment is a drastic remedy, it should be granted only when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.\\\" Williams, 50 V.I. at 194-95 (internal citation omitted) (internal quotations omitted).\\nDISCUSSION\\nIn support of its motion for summary judgment, Defendant GEC argued that he is entitled to the benefit of the VIWCA's immunity to lawsuit, found in Section 284 of Title 24 of the Virgin Islands Code (hereinafter, \\\"Section 284\\\"). Defendant GEC reasoned that, as a result of its subcontractor Genoa's failure to secure workers' compensation insurance for Plaintiff in violation of the VIWCA, Defendant GEC \\u2014 the general contractor \\u2014 became the employer of Plaintiff by virtue of Section 284(b). (Motion, p. 1, 6-7.) Defendant GEC further reasoned that, as the employer of Plaintiff, it is immune from lawsuit filed by Plaintiff pursuant to Section 284(a), which provides that the right established under VIWCA is the injured employee's exclusive remedy against the employer. (Id., at p. 2, 6-7.) Defendant GEC cited to Defoe v. Phillip, 56 V.I. 109 (V.I. 2012) and numerous non-binding cases to support his contention that the general contractor can be determined as the employer in the realm of workers' compensation, and therefore, be given the benefit of immunity from tort liability. (Motion, at p. 8-12.) Thus, Defendant GEC concluded that \\\"the VIWACA provides the general contractor with absolute immunity from suit.\\\" (Id., at p. 13.) Accordingly, Defendant GEC requested the Court to grant its Motion.\\nIn his Opposition, Plaintiff argued that there are material disputes regarding Defendant GEC's immunity from Plaintiff's lawsuit under the VIWCA. First, Plaintiff argued that Defendant GEC is not immune to his lawsuit because Plaintiff was a borrowed employee of Defendant GEC on the date of the incident, and as a borrowed employee, Plaintiff is not precluded from filing a tort action against Defendant GEC. (Opp., p. 8-12.) Plaintiff pointed out that Defendant GEC had total control over the Construction Project \\u2014 from work assignment, work inspection, provided materials and tools, etc., which demonstrated that Plaintiff was a borrowed employee of Defendant GEC. (Id., at p. 10-11.) Plaintiff also pointed out that the VIWCA expressly provides that \\\"statutory employer and borrowed servant\\\" doctrine is not recognized in this jurisdiction. (Id., at p. 11.) Thus, Plaintiff concluded that Defendant GEC is not immune from Plaintiff's lawsuit under the VIWCA. (Id.) Second, Plaintiff argued that Defendant GEC is not immune to his lawsuit because Defendant GEC was not the general contractor on the date of the incident, and therefore, Section 284(b) does not apply. (Id., at 12-18.) Plaintiff pointed out that \\\"the record is devoid of any evidence demonstrating that on March 8, 2011 . . . GEC had a contractor-subcontractor relationship with GENOA.\\\" (Id., at p. 13.) Plaintiff asserted that \\\"it could be reasonably inferred from the record that GENOA was merely an independent contractor labor broker\\\" that contracted with Defendant GEC. (Id., at p. 15.) Based on this inference, and based on Plaintiffs assertion that Defendant GEC retained total control over the Construction Project, Plaintiff concluded that \\\"[he] may sustain his cause of action for negligence pursuant to the law of the Virgin Islands, which provides that an injured employee of an independent contractor may sue the party contracting with the independent contractor pursuant to Restatement (Second) of Torts section 414 based on that contractor's own negligence where the contracting party retains sufficient control over the operative details of the work.\\\" {Id.) Thus, Plaintiff concluded that Defendant GEC is not immune from Plaintiffs lawsuit under the VIWCA. Third, Plaintiff argued that Defendant GEC is not immune to his lawsuit because Defendant GEC \\\"failed to satisfy its burden of proving that it was an Employer named in a certificate of insurance issued pursuant to section 272 [of the VIWCA].\\\" (Id., at p. 19.) Plaintiff pointed out that, despite the fact that Defendant GEC wishes to invoke the immunity protection under Section 284(b), Defendant GEC failed to provide \\\"any proof with its motion for summary judgment or in any discovery submitted to Plaintiff or this Court that on the date of Plaintiff s injury it was named in a certificate of insurance issued under section 272 [of the VIWCA].\\\" {Id.) Thus, Plaintiff concluded that Defendant GEC is not immune from Plaintiffs lawsuit under the VIWCA. Finally, Plaintiff argued that Defendant GEC is not immune to his lawsuit because Defendant GEC waived its right to this defense. (Id., at p. 20-21.) Plaintiff pointed out that Defendant GEC never raised the immunity defense as an affirmative defense, and that raising it \\\"over four years after this case commenced and after fact discovery has been completed\\\" is prejudicial to Plaintiff. (Id., at p. 21.) Thus, Plaintiff concluded that Defendant GEC is not immune from Plaintiffs lawsuit under the VIWCA. Accordingly, Plaintiff argued that the Court should deny Defendant GEC's Motion.\\nIn its Reply, Defendant GEC reiterated the arguments from his Motion. (Reply, p. 1-2.) Additionally, Defendant GEC argued that it was not required to raise this immunity defense as an affirmative defense in his answer, and therefore, it does not constitute a waiver. (Id., at p. 2.) Defendant GEC also pointed out that, regardless of the fact that he did not specifically raise the immunity defense, he raised \\\"an important defense, which in a sense encompasses the immunity granted by statute; that is, that 'plaintiff's complaint fails to state a cause of action which merits a legal or equitable remedy.' \\\" (Id.)\\nI. Defendant GEC is Not Entitled to Summary Judgment in its Favor\\nThe VIWCA, codified as Title 24 V.I.C. \\u00a7 250 through 292, \\\"is designed to provide prompt payment of benefits without regard to fault; and to relieve employers and employees of the burden of civil litigation.\\\" Robles v. Hovensa, LLC, 49 V.I. 491, 495 (V.I. 2008). The VIWCA \\\"creates a trade-off in legal rights.\\\" Robles, 49 V.I. at 495. An employee's injury must have \\\"aris[en] out of and in the course of his employment\\\" in order for the injury to be compensable under the VIWCA. Title 24 V.I.C. \\u00a7 252(a). If an employer is insured under the VIWCA and the injured employee is entitled to compensation under the VIWCA, then the employer is immune to lawsuit pursuant to the exclusive remedy provision of the VIWCA. Title 24 V.I.C. \\u00a7 284. Section 284 provides:\\n284. Exclusiveness of remedy\\n(a) When an employer is insured under this chapter, the right herein established to obtain compensation shall be the only remedy against the employer; but in case of accident to, or disease or death of, an employee not entitled to compensation under this chapter, the liability of the employer is, and shall continue to be the same as if this chapter did not exist.\\n(b) For the purposes of this section, a contractor shall be deemed the employer of a subcontractor's employees only if the subcontractor fails to comply with the provisions of this chapter with respect to being an insured employer. The \\\"statutory employer and borrowed servant\\\" doctrine are not recognized in this jurisdiction, and an injured employee may sue any person responsible for his injuries other than the employer named in a certificate of insurance issued under section 272 of this title.\\nIn this instant action, it is not in dispute that Plaintiff was employed by Genoa on the date of the incident and that Plaintiff sustained injuries while performing duties within the scope of his employment. It is also not in dispute that Genoa was not insured under the VIWCA on the date of the incident. Under this set of facts, Defendant GEC argued that, as the general contractor of Genoa, it should be deemed the employer of Plaintiff by virtue of Section 284(b) and be given the benefit of immunity from Plaintiff's lawsuit pursuant to Section 284(a). However, there is one major flaw in Defendant GEC's reasoning. Defendant GEC's argument is based on its erroneous interpretation of Section 284 that being deemed the employer of the injured employee is sufficient to immunize said employer from lawsuits filed by the injured employee.\\nIn construing a statute, \\\"[i]f the intent of [the Legislature] is clear, that is the end of the matter.\\\" In re Infant Sherman, 49 V.I. 452, 456 (V.I. 2008) (citations and internal quotations omitted). The Court must presume that \\\"[w]hen the legislature adopts a law . it intended that the entire statute be effective.\\\" Gilbert v. People, 52 V.I. 350, 356 (V.I. 2009) (citation omitted); see also Defoe v. Phillip, 56 V.I. 109, 128 (V.I. 2012). Section 284(a) is clear that only an employer who is insured under the VIWCA is immunized from lawsuits filed by the injured employees. Title 24 V.I.C. \\u00a7 284; see also Bertrand v. Mystic Granite & Marble, Inc., 63 V.I. 772, 785 (V.I. 2015) (\\\"An insured employer is immune from legal action by the injured employee [pursuant to Title 24 V.I.C. \\u00a7 284(a)].\\\") Furthermore, the Supreme Court made it clear in Defoe that, as to Section 284(b), \\\"the Legislature intended . [to] allow an injured employee to sue any person other than the party named in the certificate of insurance.\\\" 56 V.I. at 129. Here, Defendant GEC's self-serving interpretation of Section 284 \\u2014 that being deemed the employer of Plaintiff is sufficient to immunize Defendant GEC from Plaintiffs lawsuit \\u2014 clearly violates the rules of statutory interpretation by essentially writing out subsection (a) and the last clause of subsection (b) and render them ineffective.\\nAs explained above, the Court must presume that the Legislature intended for the entire Section 284 to be effective. See Gilbert, 52 V.I. at 356. While Defendant GEC wishes to invoke the immunity protection provided by Section 284, Defendant GEC failed to provide any evidence that Section 284 is applicable in this instance. Defendant GEC never claimed that, on the date of the incident, it was an insured employer under the VIWCA or that it was an employer named in a certificate of insurance. Furthermore, no such certificate of insurance, or affidavits or documents to that effect was attached to Defendant GEC's Motion. In fact, Defendant GEC was silent with regard to this issue in its Motion, and even after Plaintiff questioned whether Defendant GEC was an employer named in a certificate of insurance in his Opposition, Defendant GEC remained silent in its Reply. The Court finds that, in moving for summary judgment, Defendant GEC failed to meet its burden to provide proof showing that no dispute remains regarding its immunity from Plaintiff's lawsuit under the VIWCA. Thus, the Court must deny Defendant GEC's motion for summary judgment.\\nAt this juncture, in light of the Court's finding, the Court need not reach the remaining arguments raised by Plaintiff \\u2014 namely: (1) that Plaintiff was a borrowed employee of Defendant GEC on the date of the incident; (2) that Defendant GEC and Genoa did not have a contractor-subcontractor relationship on the date of the incident; and (3) that Defendant GEC waived this immunity defense under the VIWCA \\u2014 because regardless of the outcome, Defendant GEC is still not entitled to immunity from Plaintiff's lawsuit under the VIWCA because there is no evidence that Defendant GEC was an insured employer under the VIWCA on the date of incident or that it was an employer named in a certificate of insurance on the date of the incident.\\nCONCLUSION\\nBased on the foregoing, the Court finds that Defendant GEC is not entitled to judgment as a matter of law. Accordingly, the Court will deny Defendant GEC's Motion. An Order consistent with this Memorandum Opinion will follow.\\nBy an order dated December 3, 2015, the Court granted Plaintiffs motion for brief extension of time \\u2014 until November 20, 2015 \\u2014 to file his opposition to Defendant GEC's Motion.\\nSection 272(a) of Title 24 of the Virgin Islands Code provides: \\\"Every employer shall secure the payment of compensation under this chapter by insuring with the Government Insurance Fund created by this chapter.\\\"\\nPlaintiff originally named General Engineering Corporation instead of GEC, LLC as a defendant in the initial complaint. Plaintiff subsequently filed a first amended complaint removing General Engineering Corporation as a defendant and adding GEC, LLC as a defendant.\\nPlaintiff did not plead any claims by name in his three-page First Amended Complaint containing 18 paragraphs. The Court has taken a liberal view of the First Amended Complaint to infer plausible causes of action since \\\"[p]leadings must be construed so as to do justice.\\\" Fed. R. Civ. P. 8(e). Based on the following paragraph, the Court construed the First Amended Complaint to allege a negligence cause of action against Defendants:\\n17. Defendant GEC, LLC so controlled the work being done by Genoa and Brown and failed to provide the Plaintiff with the needed equipment among other acts of negligence.\\n18. As a direct and proximate result of the Defendants ' negligent acts and omissions, the Plaintiff suffered physical injuries, medical expenses, loss of income, loss of capacity to earn income, mental anguish, pain and suffering and loss of enjoyment of life all of which are expected to continue into the foreseeable future.\\nOn January 9, 2013, Plaintiff and Genoa and Brown filed a stipulation for Plaintiff to dismiss Genoa and Brown with prejudice. Defendant GEC filed a subsequent motion requesting the Court to set aside the dismissal of Genoa and Brown, but ultimately, the Court denied Defendant GEC's motion and did not set aside the dismissal of Genoa and Brown.\\nRestatement (Second) of Torts \\u00a7 414 provides:\\nOne who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.\\nAn uninsured employer, on the other hand, is not. Title 24 V.I.C. \\u00a7 261 (b)(1) (\\\"The injured employee of an uninsured employer... .insteadofreceivingcompensationunder this chapter may elect... to bring suit for damages against the employer, just as if this chapter were not applicable.\\\").\\nIn Defoe, the Supreme Court compared the Third Circuit's interpretations of Section 284 in Gass v. V.I. Telephone Corp., 45 V.I. 649 (3d Cir. 2002) and Tavarez v. Klingensmith, 372 F.3d 188 (3d Cir. 2004). In Gass, the Third Circuit expressly adopted the holding and reasoning of Figueroa v. Hess Oil V.I. Corp., 198 F. Supp. 2d 632, 643 (D.V.I. App. Div. 2002) \\u2014 namely, that \\\"the limitation to those 'named in the certificate' is a clear statement that there is no such limitation with respect to those not listed .\\\" \\u2014 and noted that \\\"the plain text of the [section 284(b)] authorizes suits against 'any person . other than the employer named in a certificate of insurance.' \\\" Gass, 45 V.I. at 661. In Tavarez, the Third Circuit held that \\\"scrutiny of the plain language of \\u00a7 284(b) fails to reveal any intent by the Virgin Islands' legislature to address whether an injured employee may initiate a civil action against a co-employee or a supervisor of the same employer\\\" because the term \\\"any person\\\" is a reference to statutory employers only. 372 F.3d at 191-92. Ultimately, the Supreme Court held that Gass and Figueroa courts' construction of Section 284(b) \\\"more accurately reflects the Legislature's intent in enacting the statute.\\\" Defoe, 56 V.I. at 128.\\nIf necessary, the Court will address these arguments at a later time.\"}"
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+"{\"id\": \"12454752\", \"name\": \"ANDREW WILSON, Plaintiff v. HESS OIL VIRGIN ISLANDS CORPORATION and HESS CORPORATION, Defendants\", \"name_abbreviation\": \"Wilson v. Hess Oil Virgin Islands Corp.\", \"decision_date\": \"2017-08-23\", \"docket_number\": \"Case No. SX-13-CV-480\", \"first_page\": 523, \"last_page\": \"543\", \"citations\": \"67 V.I. 523\", \"volume\": \"67\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Superior Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:15:28.537615+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ANDREW WILSON, Plaintiff v. HESS OIL VIRGIN ISLANDS CORPORATION and HESS CORPORATION, Defendants\", \"head_matter\": \"ANDREW WILSON, Plaintiff v. HESS OIL VIRGIN ISLANDS CORPORATION and HESS CORPORATION, Defendants\\nCase No. SX-13-CV-480,\\nConsolidated Under: In re Asbestos, Catalyst And Silica Toxic Dust Litigation, Case No. SX-15-CV-096\\nSuperior Court of the Virgin Islands Division of St. Croix\\nAugust 23, 2017\\nJ. Russell B. Pate, Esq., The Pate Law Firm, St. Thomas, USVI; Korey A. Nelson, Esq., Katie K. McGuire, Esq., Alayne K. Gobeille, Esq., C. Jacob Gower, Esq., Burns Charest LLP, New Orleans, LA; Warren T. Burns, Esq., DanielH. Charest, Esq., Burns Charest LLP, Dallas, TX; Stephen Murray, Sr., Esq., Stephen Murray, Jr., Esq., Devin A. Lowell, Esq., Murray Law Firm, New Orleans, LA, For Plaintiffs.\\nCarl A. Beckstedt III, Esq., Beckstedt & Associates, Christiansted, USVI, For Hess Oil Virgin Islands Corporation and Hess Corporation, Defendants.\\nAdmitted pro hac vice.\", \"word_count\": \"8056\", \"char_count\": \"49397\", \"text\": \"MOLLOY, Judge\\nMEMORANDUM OPINION\\n(August 23, 2017)\\nBEFORE THE COURT is a motion filed by Defendants Hess Oil Virgin Islands Corporation (\\\"HOVIC\\\") and Hess Corporation (\\\"Hess\\\") to compel Plaintiff Andrew Wilson to undergo a CT scan of his chest \\\"to determine whether or not there is any objective evidence of lung disease.\\\" (Defs.' Mot. to Compel Chest CT Scan of Wilson 5, filed June 1, 2017 (hereinafter \\\"Mot.\\\").) Wilson opposes. For the reasons stated below, the Court will deny the motion to compel.\\nI. BACKGROUND\\nAndrew Wilson alleges he was exposed to asbestos during the years he worked at the oil refinery on St. Croix in the U.S. Virgin Islands and has developed asbestosis. On December 19, 2013, Wilson filed a complaint, amended on February 25, 2015, against Hess and HOVIC for negligence, alleging premises liability and supply of a chattel known to be dangerous for its intended use. Hess and HOVIC appeared and answered the amended complaint. They deny liability.\\nBecause Wilson was not the only person to sue Hess and HOVIC in the Superior Court of the Virgin Islands in recent years, his case and over a hundred other cases were grouped together under a master case for pre-trial purposes. See generally In re Asbestos, Catalyst and Silica Toxic Dust Exposure Litigation, 67 V.I. 544, 546-550 (Super. Ct. 2017) (providing additional background regarding the master case). Because the number of individual cases grouped under the same master case exceeds one hundred, and further because counsel could not agree on the most efficient way to proceed with discovery, the Court ordered the plaintiffs to provide their medical records or authorize the release of their medical records and further to submit to a medical examination by a physician or other medical professional chosen by Defendants. Once Defendants obtained this enhanced information about each plaintiff, each side had to select four cases that would continue with discovery on an expedited basis and serve as bellwethers for the larger group. Further, because eight cases only represents about 7% of the entire group, and because each side presumably picked cases that best helped them \\u2014 the Court selected another four cases at random to ensure the bellwethers proceeding with expedited discovery fairly represented the entire group. The twelve cases are designated as Group A, with the other cases designated as Group B. Counsel selected Wilson for Group A.\\nWilson was diagnosed on April 4, 2014 with interstitial lung disease. He previously had a chest radiograph, more commonly known as an X-ray, taken on September 30, 2013 and again on July 12, 2014, both by Angelo K. Galiber, M.D. On February 21, 2017, the doctor Defendants selected to examine the Group A plaintiffs (hereinafter \\\"Plaintiffs\\\"), James D. Crapo, M.D., examined Wilson. Initially, Dr. Crapo had requested that Plaintiffs have a postanterior and lateral X-ray taken before he examined them and also a chest CT scan as well. Plaintiffs did not object to the X-ray exam, but they did object to the CT scan. So, Defendants offered to compromise.\\nDefendants agreed to request a CT scan only for those plaintiffs for whom Dr. Crapo, and the doctor Plaintiffs had hired, Christopher John, M.D., agreed should have a CT scan. In other words, if both Dr. John and Dr. Crapo agreed, then that Plaintiff would undergo the CT scan. \\\"In the event, Dr. Crapo and Dr. John disagree . . . then the parties agree[d] that . . . Defendants shall be entitled to seek a [c]ourt order compelling the diagnostic test.\\\" (Letter from C. Beckstedt to K. Nelson, p. 2, Feb. 11, 2017, Ex. 5 to Mot.)\\nDefendants informed Plaintiffs on March 17, 2017 that Dr. Crapo believed Wilson should undergo a CT scan based on \\\"Dr. Galiber's reading of a September 30, 2013 chest x-ray [which] indicates slight increase in interstitial markings while a reading of a subsequent July 12, 2014 chest x-ray indicates the lung fields are normal.\\\" (Letter from C. Beckstedt to K. Nelson, p. 1, Mar. 17,2017, Ex. 6 to Mot.) In other words, and according to Defendants' counsel, Dr. Crapo requested that Wilson undergo a CT scan \\u2014 not because he believed it necessary for diagnostic purposes \\u2014 but because another doctor, Dr. Galiber, had read two X-rays of the same person and got conflicting results. Wilson's counsel informed Defendants' counsel on May 22, 2017 that Dr. John did not believe a CT scan was necessary based on \\\"conflicting reports by a radiologist [who] is not a NIOSH Certified B-Reader.\\\" (Letter from K. Nelson to C. Beckstedt, May 22, 2017, Ex. 7 to Mot.)\\nOn June 1, 2017, Defendants filed a motion to compel Wilson to undergo the CT scan. Wilson filed a response in opposition on June 30, 2017. Defendants did not file a reply, which was due on or before July 28, 2017. Counsel argued the motion in court on August 14, 2017.\\nII. DISCUSSION\\nIn their motion, Defendants state that the \\\"court. . . may order a party whose mental or physical condition . is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.' \\\" (Mot. 6 (quoting V.I. R. Civ. R 35(a)(1)).) \\\"Dr. Crapo examined all but two of the bellwether Plaintiffs over the course of two days in February, 2017. Of all the patients examined, Dr. Crapo only requested a chest CT scan for Andrew Wilson.\\\" Id. at 3.\\nA chest CT scan will ultimately provide an objective image that will give greater detail to the condition of Plaintiff Wilson's chest and lungs . Perhaps the CT scan will confirm normal lungs, perhaps it will confirm interstitial markings. But, no one disagrees that it will provide a better, more accurate picture of the condition of Plaintiff Wilson's lungs and resolve any conflict in the chest radiographs. With this more accurate picture, the medical doctors will be able to properly determine Plaintiff Wilson's medical condition, and the experts will be able to obtain reliable objective information on which to determine that condition as opposed to speculation from less accurate, less detailed, less clear and, most importantly, conflicting image. Ultimately, having this objective test will greatly assist the jury in determining the Plaintiff s medical condition and whether or not he is ill.\\nId. at 8. Defendants claim that \\\"Plaintiff s sole objection to the chest CT scan is that Plaintiff's expert, Dr. John, is not persuaded to agree to a chest CT scan because the radiologist who read the images, Angelo Galiber, M.D., is not a NIOSH certified B-Reader, like Dr. John.\\\" Id. at 7. But \\\"[i]t 'is wholly inconsistent with the realities and complexities of modern medical practice,' \\\" Defendants argue, \\\"for a court to refuse to 'order exantination by more than one doctor.' \\\" Id. at 6 (quoting Sloan v. Cost-U-Less, 44 V.I. 79, 83 (Terr. Ct. 2001)). Moreover, \\\" '[w]here specialists from various branches of medicine are required, there is nothing in Rule 35 to prevent the court from ordering examination by all of them.' \\\" Id. (quoting Sloan, 44 V.I. at 83).\\nWilson counters that Defendants asked him to undergo a CT scan only because of Dr. Galiber's conflicting readings. Dr. Galiber read the September 30, 2013 X-ray on April 28, 2014 \\\"without the Plaintiff's permission\\\" and \\\"concluded that while there is some increase in interstitial markings consistent with slightly scattered fibrosis, there is no pleural disease evident.\\\" (Opp'n 2.) Two months later, Dr. Galiber read the July 13, 2014 X-ray and \\\"concluded that the lung field were normal. Based on these supposed conflicting x-rays, Defendants demand Mr. Wilson undergoes a CT scan.\\\" Id. Wilson objects.\\nHe '\\\"already underwent a medical examination as contemplated by this Court's Case Management Order. And in connection with that medical exam, the Defendant[s] re-took a series of chest x-rays,\\\" he argues. Id. at 3. To now have to '\\\"undergo a CT scan equal to the radiation produced by hundreds of x-rays, that create no medical benefit for him, [and] actually increase[s] his risk of developing cancer,\\\" Wilson says no. Id. He further notes that '\\\"Rule 35 requires 'good cause' for each particular examination.\\\" Id. at 4. But Defendants have not shown good cause, he argues, because '\\\"a CT scan is not necessary to diagnose Mr. Wilson with occupational lung disease.\\\" Id. at 5. Furthermore, '\\\"Defendants have access to at least two sets of chest x-rays taken pursuant to the ILO standard.\\\" Id.\\nThe Superior Court of the Virgin Islands may '\\\"order a party whose . . . condition . is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.\\\" V.I. R. Civ. P. 35(a)(1). This authority only took effect on March 31, 2017, when the Supreme Court of the Virgin Islands promulgated the Virgin Islands Rules of Civil Procedure. See In re Adoption of the V.I. Rules of Civ. P., S. Ct. Prom. No. 2007-001, 2017 V.I. Supreme LEXIS 22 (V.I. Apr. 3, 2017). Virgin Islands courts have not had occasion to construe Rule 35 yet. The Reporter's Note states that the rule '\\\"continues the traditional requirement of an 'order' of the court authorizing the examination unless the parties enter an agreement on the topic.\\\" V.I. R. Civ. P. 35 (Rptr.'s Note). The notes of the reporter concerning the intent of rules are controlling absent precedent to the contrary. Cf. Augustin v. Hess Oil V.I. Corp., 67 V.I. 488, 519 (Super. Ct. 2017); see also Mills-Williams v. Mapp, 67 V.I. 574, 585 (V.I. 2017) (\\\"Reporter's Note eliminates any doubt.\\\").\\nThere is no precedent, whether binding or persuasive, regarding Rule 35. So, the Reporter's Note is instructive here. But the note does not explain what is meant by \\\"traditional requirement.\\\" The practice in civil actions in the Superior Court, and previously the Territorial Court, was to apply the Federal Rules of Civil Procedure and the Local Rules of Civil Procedure as promulgated by the District Court of the Virgin Islands. See generally Vanterpool v. Gov't of the V.I., 63 V.I. 563, 576-82 (V.I. 2015) (discussing history and background to this topic); see also Mitchell v. Gen. Eng'g Corp., 67 V.I. 271, 283 (Super. Ct. 2017) (\\\"At the time when Mitchell filed his second motion to amend, the Superior Court routinely applied the Local Rules of Civil Procedure promulgated by the District Court of the Virgin Islands through Superior Court Rule 7.\\\" (citing Vanterpool)). Prior to March 31, 2017, the Superior Court would have applied Federal Rule of Civil Procedure 35, not through Superior Court Rule 7, but through Superior Court Rule 39. See Super. Ct. R. 39(a) (\\\"Depositions and discovery shall be had in the Superior Court of the Virgin Islands, pursuant to the provisions of Rules 26 to 37, inclusive of the Federal Rules of Civil Procedure.\\\"), repealed by In re Amend, to Rules Gov. the Super. Ct. of the V.I., ST-17-MC-019, 2017 V.I. LEXIS 60, at *1 (Super. Ct. Apr. 6, 2017), as approved by S. Ct. Prom No. 2017-006, 2017 V.I. Supreme LEXIS 23, at *1 (V.I. Apr. 7, 2017); accord Sloan v. Cost-U-Less, Inc., 44 VI. 79, 81 (Terr. Ct. 2001) (\\\"Rule 35 of the Federal Rules of Civil Procedure, applicable to this Court pursuant to Rule 39 of the Rules of the Territorial Court.\\\"). However, in recent years, the Supreme Court of the Virgin Islands has instructed that courts applying Virgin Islands law must look to local law, including precedent and rules of procedure, first, before considering law from outside this jurisdiction. See Vanterpool, 63 V.I. at 576 (\\\"Such uncritical application of the rules of another court to a proceeding in the Superior Court is wholly inconsistent with our admonition that 'the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, and the Local Rules of the District Court should represent rules of last resort rather than first resort, and should be invoked only when a thorough review of applicable Virgin Islands statutes, Superior Court rules, and precedents from this Court reveals the absence of any other applicable procedure.' \\\" (quoting Sweeney v. Ombres, 60 V.I. 438, 442 (V.I. 2014) (per curiam)). The question here is whether Sloan is the \\\"traditional requirement\\\" contemplated by the Reporter's Note. Sloan is the only decision of a local court discussing when a court can order a party to submit to an examination. But see also Bruce v. Bruce, 17 V.I. 37, 40 (Terr. Ct. 1980) (citing 5 V.I.C. App'x IR. 35, 5 V.I.C. App'x IV R. 7, and Schlagenhauf v. Holder, 379 U.S. 104, 85 S. Ct. 234, 13 L. Ed. 2d 152 (1964), and concluding without discussion that \\\"plaintiff clearly having put her mental and emotional condition in issue, the court believes defendant is entitled to such an exantination.\\\").\\nAs a decision of a trial court, Sloan is only persuasive on this Court. See Der Weer v. Hess Oil V.I. Corp., 60 V.I. 91, 101 (Super. Ct. 2014) (\\\"| I)]ccisions of trial level courts are not binding on any other court, including that same trial court.\\\" (citing In re Q.G., 60 V.I. 654, 661 n.8 (V.I. 2014); Gasperini v. Ctr. for Humanities, 518 U.S. 415, 430 n.10, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996)). But Sloan might be more than just persuasive if the reference in the Reporter's Note to \\\"tradition\\\" means that the past practices of Virgin Islands courts were folded into the new rules to bring some stability to court procedure. Cf. Lindell v. Kalugin, 353 Ore. 338, 297 P.3d 1266, 1272 (2013) (en banc) (\\\"Case law existing at the time of the adoption of the rule or its predecessor forms part of the context of the rule.\\\" (citations omitted)); Vega v. Piedilato, 154 N.J. 496, 713 A.2d 442, 454 (1998) (Handler, J., concurring) (\\\" 'Courts have an obligation to harmonize their case law so as to bring about consistent common law development.' \\\" (quoting parenthetically Smith v. Bridgeport Futures Initiative, No. 326697, 1996 Conn. Super. LEXIS 2158, at *6 (Super. Ct. Aug. 13, 1996) (other citation omitted)). Here, both sides cited Rule 35 of the new Virgin Islands Rules of Civil Procedure. But Defendants looked to Sloan for guidance. (See Mot. 6 (\\\"This jurisdiction has held that a court may order an examination under Fed. R. Crv. P. 35 even when the plaintiff has already had one examination.\\\" (citing Sloan, 44 V.I. at 81).) Wilson, however, looked to federal authority. (See, e.g., Opp'n 3 (citing Stinchcomb v. United States, 132 F.R.D. 29, 30 (E.D. Pa. 1990)); id. at 4 (citing Schlagenhauf, 379 U.S. at 118.)\\nBefore the Legislature established a supreme court for the Virgin Islands, and certainly before the new rules were promulgated, Virgin Islands courts looked to what precedent was available and on point. With over ninety federal judicial district courts and thirteen federal circuit courts, the approach taken by federal courts around the country will always vary. Cf. Gasperini, 518 U.S. at 430 n.10 (\\\"If there is a federal district court standard, it must come from the Court of Appeals, not from the over 40 district court judges in the Southern District of New York, each of whom sits alone and renders decisions not binding on the others.\\\")- Predictably, with so many sources to choose from, Virgin Islands courts varied in how they construed the same rules. Yet, neither the United States Court of Appeals for the Third Circuit, nor the Appellate Division of the District Court of the Virgin Islands \\u2014 the de facto court of last resort and the interim appellate court, respectively, over the Territorial and Superior Courts before the Supreme Court was established \\u2014 used their superintendent authority to guide the trial courts regarding what jurisdictions to look to when construing federal rules of procedure in the absence of binding precedent. Sloan, for example, did not explain why it looked to a decision of the United States District Court for the District of Maryland rather than a decision the District Court of the Virgin Islands had issued a few months earlier on the same topic. See Nyfield v. V.I. Tel. Corp., Civ. No. 1999/202, 2001 U.S. Dist. LEXIS 5305 (D.V.I. Apr. 17, 2001), overruled on other grounds by Theobles v. Indus. Maint. Corp. Co., 247 F.R.D. 483, 484 n. 1, 49 V.I. 537 (D.V.I. 2006). Nyfield, of course, was not binding on Sloan. Sloan may not have been aware of Nyfield. It was not reported. But the more important point here is that for far too long, Virgin Islands courts have looked far and wide, relying on rules adopted by other courts and authorities issued by other jurisdictions to guide how we construe and apply our rules of procedure locally. Cf. Antilles Sch., Inc. v. Lembach, 64 V.I. 400, 418-19 (V.I. 2014) (\\\" '[A]ny authority the federal rules have over territorial courts is a function of territorial law,' not federal law.\\\" (quoting In re Richards, 213 F.3d 773, 787 n.4, 42 V.I. 469 (3d Cir. 2000))). Yet, even though the Virgin Islands has now begun to promulgate its own comprehensive set of rules of procedure, we could be right back where we started, searching high and low for relevant authority instead of looking first to our own precedents.\\nAlthough Virgin Islands Rule of Civil Procedure 35 is nearly '\\\"word-for-word identical\\\" to Federal Rule of Civil Procedure 35, neither the Supreme Court '\\\"nor the Superior Court is required to follow the United States Supreme Court's interpretation of the Federal Rules . as binding precedent, since the interpretation of Virgin Islands . . . rules remains a question of Virgin Islands law.\\\" Id. (citations omitted). Although the rules at issue in Antilles School were the Federal Rules of Evidence, which the Legislature of the Virgin Islands had adopted in 2010, the Supreme Court's holding certainly would carry forward to any new rules patterned after, or even borrowed from, the federal rules. Yet, notwithstanding Supreme Court precedent, Wilson returns to federal precedent construing Federal Rule of Civil Procedure 35 to support his position. This Court declines the invitation to take one step back after we just took two steps forward. Rather, the Court believes that the references in the Reporter's Notes to traditional requirements, practices, custom, and the like should be read as embracing relevant decisions of Virgin Islands courts that addressed the same or similar practice or procedure. Cf. V.I. R. Civ. P. 1-3(a) ('\\\"When procedure is not prescribed by these Virgin Islands Rules of Civil Procedure, precedent from the Supreme Court of the Virgin Islands, or the Virgin Islands Code, a judge may regulate practice in any manner consistent with the law of the Virgin Islands.\\\"); In re Kelvin Manbodh Asbestos Litig. Series, 47 V.I. 215, 227 (Super. Ct. 2005) ('\\\"[C]ourts have interpreted 'local laws' to include both legislation and common law precedent.\\\"); see also V.I. R. Civ. P. 11(b)(5) ('\\\"By presenting to the court a pleading, written motion, or other paper . an attorney . certifies that to the best of the person's knowledge . formed after an inquiry . . . that the applicable Virgin Islands law has been cited.\\\").\\nIt benefits no one, least of all the Judiciary, to discard years of precedent such as Sloan, which considered the same or similar rules as those we recently promulgated, and instead start from scratch and go searching high and low for what we already have. Accord Joseph v. Guardian Ins. Co., 32 V.I. 49, 52 (Terr. Ct. 1995) ('\\\"The parties herein have needlessly confused the issue of this case with their citations of factually inconsistent federal law. The deposit at issue was made at the order of a Territorial Court judge in a Territorial Court case, pursuant to Federal Rule of Civil Procedure 62(d), a Territorial Court rule by adoption. Therefore, the law which should be looked to first is local law. Our case law is definitive on the purpose and nature of a supersedeas bond.\\\"). Where a new rule retains or incorporates a prior rule, whether a federal rule, a District Court local rule, or a Superior Court rule, and where local case law has addressed a prior rule, this Court believes \\u2014 absent precedent to the contrary or a compelling reason to depart from such prior case law \\u2014 that courts should look to this body of law first to harmonize our case law. Even though Sloan is not binding, the Court sees no reason to depart from it since Sloan discussed the standard for ordering a party to submit to a physical or mental examination.\\nThe plaintiff in Sloan claimed that she '\\\"was shopping at a Cost-U-Less store located in St. Thomas, Virgin Islands, when she reached for a two-jar pack of mayonnaise, and was struck on her head when another two-jar pack fell from a higher shelf.... [S]he was rendered unconscious, and . . . injured her head and neck.\\\" 44 V.I. at 81. She sued Cost-U-Less and during discovery Cost-U-Less moved for an order to compel her to submit to three different examinations: one '\\\"by a team of psychological experts,\\\" id., another \\\"by an endocrinologist,\\\" id. at 82, and the third \\\"by a vocational rehabilitationist.\\\" Id. at 83. Sloan opposed and moved for a protective order. See id. at 80. The court granted the motion and ordered Sloan to submit to the three examinations, notwithstanding that she \\\"already had one exantination.\\\" Id. at 81.\\nSloan concluded that, \\\"[w]hen a plaintiff puts her emotional condition in issue, the defendant is entitled to a mental examination.\\\" 44 V.I. at 81 (citing Bruce, 17 V.I. 37). Courts also \\\"may order an examination . . . even when . the plaintiff has already had one examination,\\\" but in that instance \\\"a stronger showing of necessity may be required for repeat exantinations.\\\" Id. (citations omitted). Further, \\\"[bjecause such an order may be made only on motion, it is incumbent upon the party seeking the order to provide necessary information to the court, i.e. the names of physicians and the type of examinations sought.\\\" Id. Some courts have \\\"refused to order exantination by more than one doctor.\\\" Id. at 83. But \\\"such limitation is wholly inconsistent with the realities and complexities of modern medical practice. Where specialists from various branches of medicine are required, there is nothing in Rule 35 to prevent the court from ordering exantination by all of them.\\\" Id. (quotation marks and citations omitted). Subjecting a party to an examination \\\"by a 'team' of experts over a period of three days, or eighteen hours . . [is] clearly unreasonable,\\\" however. Id. at 82 (footnote omitted). But \\\"tests so common that they go hand in hand with the very notion of a medical examination\\\" should be permitted Id. at 83 (citation omitted).\\nWilson has put his physical condition in controversy in this case. He claims he was exposed to asbestos during the \\\"approximately 40 years\\\" that he \\\"worked . . . inside the refinery.\\\" (Amend. Compl. \\u00b6 4.) He also claims he \\\"was diagnosed . with [i]nterstitial [l]ung [d]isease\\\" \\\"on April 4, 2014.\\\" Id. \\u00b6 8. Clearly, Wilson could be ordered to submit himself for a physical examination. Wilson objects because he was already ordered to submit for an exantination by Defendants. But as Sloan recognizes, \\\"the realities and complexities of modern medical practice\\\" may necessitate multiple examinations, 44 V.I. at 83 (quotation marks and citation omitted), especially when the condition, diagnosis, or disease may be complicated or uncommon. Accord id. at 82 n.1. Here, Wilson, himself, highlights the difficulties attendant to diagnosing pneumoconiosis, difficulties that necessitated the B reader program.\\nIn 1949, the International Labour Office (ILO) promulgated standards for systematically describing and recording radiographic appearances of certain abnormalities caused by the inhalation of dusts. The principle intent of the standards was to achieve uniformity in assessing pneumoconiosis across readers. However, it was found that readers, despite employing the classification scheme, still disagreed with each other and with themselves to an excessive degree. As a consequence, NIOSH concluded that a proficiency program was needed to provide a pool of qualified readers. The NIOSH B Reader Program began in 1974, although it was not until 1978 that the B reader examination was given extensively.\\nCDC, NIOSH, Chest Radiography: The NIOSH B Reader Program: Background, available at https://www.cdc.gov/niosh/topics/chestradiography/ breader.html (last visited August 10, 2017) (emphasis added) (citations omitted); see also Opp'n 1 n.l (citing same). Accordingly, Wilson's concern over having to undergo multiple examinations to assess pneumoconiosis lacks merit.\\nWilson next objects, claiming a CT scan \\\"will provide no benefit\\\" to him. (Opp'n 4 (bold font omitted).) \\\"[A] CT scan is not necessary to diagnose\\\" him \\\"with occupational lung disease,\\\" he argues, and \\\"Defendants [already] have access to at least two sets of chest x-rays taken pursuant to the ILO standard.\\\" Id. at 5. His expert concurs: \\\"After reviewing the x-rays done of Mr. Wilson and the reasoning provided by the Defendants' doctor, I do not believe that a CT scan of Mr. Wilson would provide any diagnostic value.\\\" (John Deck \\u00b6 8 (June 29, 2017), Ex. A to Opp'n.) Dr. John further remarks that \\\"[u]sing a CT scan in the diagnosis of occupational lung disease would go against 50 years of accepted practice . . . and the methodology of the B reader process.\\\" Id. \\u00b6 8c. Yet, Dr. John did not dispute Dr. Crapo's representation that \\\"Chest CT scan images provide more detailed information than do chest radiographs (i.e., x-rays).\\\" (Crapo Affid. \\u00b6 4a (emphasis added).) Rather, Dr. John's concern is that NIOSH does not use CT scans in its B reader certification program. But it may one day soon.\\nA memorandum and order issued jointly by a United States district court judge and a United States bankruptcy court judge provides some background here.\\nChest X-rays have been widely accepted as one of the most valuable tools in identifying asbestos-related conditions. The National Institute for Occupational Safety and Health (\\\"NIOSH\\\") of the Centers for Disease Control and Prevention (\\\"CDC\\\") awards B-Reader approvals to physicians who meet a specified level of proficiency in classifying chest X-rays according to the ILO scale; these B-Readers must be re-certified at 4 year intervals. Chest roentgenograms are graded according to the number of abnormalities in a given area of the chest film. An 0 corresponds to no abnormalities, 1 to slight, 2 to moderate, and 3 to severe. Since this process is to some degree inherently subjective, readers give two classifications, the category that they think most likely and next most likely. The result is a 12 point scale, with results ranging from 0/0 (normal roentgenologic appearance) to 3/3 (severe abnormalities). These results are commonly called ILO readings or ILO X-ray readings_Claimants today are diagnosed largely through plaintiff-lawyer arranged mass screening programs targeting possibly asbestos-exposed workers and ahraction of potential claimants through the mass media. The programs rely almost solely on chest X-rays and pro-plaintiff readers to identify the injured. There is a significant amount of controversy both over the reliability of mass screening programs in particular and over the use and accuracy of X-rays in general in identifying asbestos-related diseases. A number of studies have shown that some plaintiffs' doctors consistently over-diagnose asbestos-related conditions. A 1990 study published in the Journal of Occupational Medicine found that only 16 of 439 claimants that filed lawsuits as a result of a 1986 mass screening of tire workers at their worksite demonstrated chest abnormalities consistent with asbestos exposure. . . . The process is intrinsically subjective at the margins. Probable over-diagnosis is related to a larger problem concerning the accuracy of X-rays in screening for asbestos-related injury. It is particularly difficult to diagnose the less severe manifestations of an asbestos-related injury on the basis of an X-ray alone. A medical surveillance program using spiral CT scanning technology has been proposed as one alternative to the current mass X-ray screening procedures. The specifics of such a program have not yet been completely detailed, including who would be responsible for running it, but the concept can be generally sketched. Spiral CT, or computed tomography, scanning involves a computerized assimilation of multiple X-ray images to create a two dimensional cross-sectional image. It can reveal abnormalities in lung tissue that would not be shown by a conventional X-ray. Recent studies have suggested that a well designed program of spiral CT scanning for significantly asbestos-exposed workers could detect lung cancer early enough to possibly permit cure of a substantial percentage of the cases. Given the lack of current treatment options for mesothelioma and asbestosis, an earlier diagnosis, while allowing earlier compensation, might not make a greater number of cures of the most serious cases possible. There is substantial controversy surrounding the possibility of wide use of CT technology. There may be insufficient data to conclude that CT scanning provides a more accurate method of diagnosing asbestos-related conditions across the board. Substantial questions exist as to whether the use of CT scanning would be efficient and cost-effective. Further study on how best to structure a comprehensive CT screening program is necessary.\\nIn re Jt. E. & So. Dists. Asbestos Litig., 231 F. Supp. 2d 297, 308-10 (E.D.N.Y. 2002) (citations and paragraph breaks omitted). Further reports by NIOSH show that study in this area is underway:\\nScreening workers for pneumoconioses has employed chest x-rays acquired using film-based technology for more than 70 years. However, the use of film is rapidly being replaced by digital imaging. This alone demands that the use of digital chest images be researched and that reliable guidelines for their acquisition and use be developed. In addition, it may be that digital chest imaging has the potential for more accurate and reliable evaluation of the pneumoconioses and related diseases than previous technology. Towards these ends, NIOSH has embarked upon a program of research and evaluation of digital imaging methods, focused to date on chest x-rays, but not excluding other chest imaging modalities (e.g., computerized tomography).\\nCDC, NIOSH, Chest Radiography: Digital Imaging Updates, available at https://www.cdc.gov/niosh/topics/chestradiography/digital-imaging-upda tes.html (last visited August 10, 2017); accord Cecile Rose, M.D., M.P.H. & David Lynch, M.D., The Role of CT Scanning in Pneumoconiosis Screening 28, 29, The NIOSH B Reader Certification Program: Looking into the Future, DHHS (NIOSH) Publication No. 2009-140 (\\\"For asbestos-related pleural disease, several papers have demonstrated that CT is more sensitive and more specific than chest radiograph. Extrapleural fat on the chest films leads to over-diagnosis of pleural disease (particularly on oblique radio- graphs), while posterior plaques are not usually visible on chest radiograph. In patients with normal lung parenchyma by chest film, HRCT [or high-resolution computerized tomography] will show lung fibrosis in 13-54% of cases, depending on the population being screened. When the chest radio-graph shows abnormal lung parenchyma, CT will confirm abnormality in 67-97% of cases.\\\" (endnote omitted)).\\nAs Dr. Crapo explained in his affidavit:\\nIf the CT scan is negative, then it would assure Mr. Wilson and his doctors that he does not have significant lung disease. If the CT were positive for early interstitial fibrosis, then it would provide an important baseline to assess future changes or progression and it would help guide appropriate therapy for his symptom of shortness of breath (therapy which he is not now receiving).\\n(Crapo Affid. \\u00b6 4i.) Wilson's claim that a CT scan would not benefit him must be rejected. Cf. Jt. E. & So. Dists. Asbestos Litig., 237 F. Supp. 2d at 331-32 (\\\"Screening designed to identify lung cancer and other asbestos-related malignancies earlier might prove beneficial. Yet, given the apparent lack of an effective treatment and cure for asbestosis and mesothelioma, earlier detection of these more serious diseases, while making it possible for individuals to receive compensation more promptly, may not have significant medical benefits.\\\" (citation omitted)).\\nWilson's last two objections concern the risks associated with CT scans. \\\"[A] single CT scan of the chest can subject a patient to the same effective radiation dose as anywhere from 100 to 750 chest x-rays,\\\" he claims. (Opp'n 6 (footnote omitted).) \\\"One study of the estimated risks of radiation-related cancer among patients, aged 50-70, who received lung CT scans put the number of cancers at 230 out of 100,000 men screened.\\\" Id. (citing Martha S. Linet, M.D., M.P.H., et al., Cancer Risks Associated with External Radiation from Diagnostic Imaging Procedures 75, 81, CA: A Cancer Journal for Clinicians, vol. 62 (Mar./Apr. 2012)) (hereinafter \\\"Cancer Risks\\\").) \\\"While this may not seem a great number,\\\" he says, \\\"the risk here is certainly not as scientifically infinitesimal as Defendants argue.\\\" Id. He further argues that \\\"[i]t is unclear whether or not an examination performed by a defendant's hired doctor creates a doctor-patient relationship under Virgin Islands law. A court in the Virgin Islands has never ruled on the issue.\\\" Id. at 6. Other jurisdictions\\nrecognize that doctors hired by the Defendant have no doctor/patient relationship and have no duty to see that their evaluation takes into account the Plaintiff s health and wellbeing. So, any risk here created by subjecting Mr. Wilson to a CT scan is compounded by his potential lack of legal protections or recourse if he were to suffer any ill effect as a result of the scan.\\nId. at 6-7. But Wilson \\\"knows of no determination by Virgin Islands courts regarding the relationship between a plaintiff and a doctor hired by a defendant to perform an examination pursuant to Rule 35.\\\" Id. at 7. He worries that if he were injured \\u2014 given increased cancer risks associated with CT scans \\u2014 he might not have a recourse later.\\nThere's good reason why courts afford litigants an opportunity to reply. A reply from Defendants to Wilson's response to their motion would have helped the Court here because Wilson raises valid concerns: the risk and the possible lack of recourse if that risk became a reality. Although the Court heard argument on this motion, the arguments of counsel cannot unravel this Gordian knot. But one thing is clear: Wilson's second argument concerning doctor-patient relationships and whether he would have a right to sue for malpractice the doctor Hess and HOVIC have retained if he were injured by the CT scan \\u2014 this argument proceeds from a misunderstanding of how the common law develops. It too must be rejected.\\nIt is not for this Court, in ruling on a motion for an order requiring a party to submit to an exantination, to decide whether such exantination could or should give rise to a doctor-patient relationship. Wilson's authority to the contrary, Smith v. Welch, 265 Kan. 868, 967 P.2d 727 (1998), actually makes this very point. Smith was a malpractice case that grew out of a car accident case. Welch was the doctor who had been retained in the car accident case to examine Smith. See id. at 729. Smith later sued Welch for assault, battery, and invasion of privacy, in addition to other claims, claiming Welch had sexually assaulted her during the examination. The legal question \\u2014 \\\"[w]as there a physician-patient relationship between Dr. Welch and Smith,\\\" id. at 736 \\u2014 was not decided in the car accident case, but in the malpractice case. Similarly, whether to recognize a doctor-patient relationship between Wilson and Dr. Crapo (or whomever if the Court were to order Wilson to receive a CT scan) cannot be decided in this case. Dr. Crapo is not a party to this case and the concerns and objection of non-parties are not relevant when ruling on a Rule 35 motion. See Sloan, 44 V.I. at 84.\\nBut Wilson's concern about the potential risks associated with CT scans is relevant here. As he points out, \\\"[a] [defendant cannot endanger or increase the risk of harm to a [pjlaintiff in their medical testing. Courts recognize the need to balance the invasiveness or danger of any given requested procedure with its probative value.\\\" (Opp'n 5-6 (citing Lefkowitz v. Nassau Cty. Med. Ctr, 94 A.D.2d 18, 462 N.Y.S.2d 903 (App. Div. 1983) (per curiam); Il Grande v. DiBenedetto, 366 N.J. Super. 597, 841 A.2d 974 (App. Div. 2004)).) That said, Wilson also did not move for a protective order. Contra Sloan, 44 V.I. at 80-81 (plaintiff moved for a procedure order in response to motion for an order compelling an examination which \\\"permits the court to include appropriate protective measures when necessary.\\\" (citing Fed. R. Civ. P. 26(c)). Cf. Il Grande, 841 A.2d at 977 (\\\"Where a . . . medical examination involves an invasive procedure, we conclude that if plaintiff moves for a protective order . . . the burden of coming forward to establish the probative value of such procedure rests with defendant; plaintiff then must produce evidence that the proposed procedure presents a risk to plaintiffs health or is of such a nature that it will create substantial discomfort or distress; thereafter, the burden shifts back to defendant to establish the safety and reasonableness of the procedure. The judge must then engage in the weighing process that we have described, and if the judge concludes that the benefits outweigh the risks as we define them, the judge may issue an appropriate order having due regard for plaintiff's safety and comfort.\\\" (emphasis added)); accord Lefkowitz, 462 N.Y.S.2d at 905 (\\\"Plaintiff cross-moved for a protective order, arguing that the test presents some danger to her health since the use of radiated material might cause a severe reaction, including a flare-up of her pelvic infection.\\\" (emphasis added)). Further, Wilson also did not himself submit an affidavit or other documentation to place on record the concerns his counsel attribute to him. Those concerns \\u2014 fears and anxiety about the risks of CT scans \\u2014 are factual, not legal, and cannot be raised by counsel in unsworn statements. Cf. Henry v. Dennery, 55 V.I. 986, 994 (V.I. 2011) (footnote and citations omitted); see also V.I. R. Civ. R 26(c)(1) (\\\"The court may, for good cause, issue an order to protect a party or a person.\\\" (emphasis added)); accord Sloan, 44 VI. at 84 (\\\"Plaintiff has shown good cause for restricting the examination time to 3 hours, including the administration of any tests.\\\" (emphasis added)).\\nAlthough Wilson did not move for a protective order, he has raised a legitimate concern. Considering that the focus of this litigation is exposure to harmful substances that may have caused Wilson (and the other plaintiffs) to develop cancer, the Court is not persuaded that more exposure to harmful substances is in order here. But most importantly, Defendants have not asked that Wilson be ordered to undergo a CT scan because Dr. Crapo discovered something abnormal on his X-rays. That is, the reason for requesting a CT scan is not medical but legal: getting a clearer picture of Wilson's lungs for discovery purposes because Dr. Gabber read two X-rays of the same man and reached contradictory conclusions for each. A CT scan is not the same as a deposition. That is, the request here is not to recall or reopen Wilson's deposition to clarify some confusion. Rather, Defendants want to subject Wilson to a CT scan to get a better look at his lungs. But again, the only reason for the request is not because there is something concerning on the two or three X-ray films all the doctors have read. Rather, the basis is conflicting readings by the same doctor. Such conflicts are for cross-examination.\\nIII. CONCLUSION\\nFor the reasons stated above, the Court finds Defendants have not shown good cause for ordering Wilson to submit to a CT scan. Wilson did put his physical condition in controversy when he sued Hess and HO VIC for negligence and claimed they caused him to be exposed to asbestos. Wilson's concern that a CT scan would be his second examination in this litigation and that a CT scan would not benefit him are rejected as are his concerns over whether submitting to an exam requested by a doctor retained by opposing counsel could create a doctor-patient relationship. Even if it could, this case is not where that precedent can be established. But Wilson's concern about the risk from the increased amount of radiation in a CT scan is relevant. The reason why Defendants ask for a better look at Wilson's chest is not because of a spot or a mark on an X-ray that gives them pause. Rather, they want Wilson to undergo a chest CT scan to resolve contradictory X-ray readings given by the same doctor of the same individual. Cross-examination can resolve that issue.\\nAn appropriate order follows.\\nCounsel were directed to submit the list of eight cases jointly to ensure that the record did not reveal who chose which cases.\\nA CT or computerized tomography chest scan \\\"combines a series of X-ray images taken from different angles and uses computer processing to create cross-sectional images, or slices, of the bones, blood vessels and soft tissues inside the chest.\\\" (Crapo Decl. \\u00b6 4a, Ex. 8 to Mot.) A CT scan is also known as a CAT scan, meaning computer-assisted tomography scan. See Ford v. United States, 165 F. Supp. 3d 400, 406 n.8 (D. Md. 2016) (\\\"A CAT scan, also called a CT scan, is a sophisticated x-ray examination that reconstructs images of a part of the body to be examined . and produces a series of images called axial images, or slices, which are examined by doctors to help diagnose a patient.\\\" (quotation marks omitted)).\\nSection 3(b) of the Case Management Order issued in the master case extended the time to file responses to motions and replies to responses to twenty-eight days from the date the motion or the response was served and filed because the parties, per section 3(a), are under an obligation \\\"to meet and confer before filing any motion, including dispositive motions and motions related to discovery, so that the issues are crystallized... and ancillary issues, which the parties might resolve by communicating, are reduced.\\\" (Case Mgmt. Order 4, entered Mar. 19, 2015, In re Asbestos, Catalyst, & Silica Toxic Dust Exposure Litig., SX-15-CV-096.) \\\"Master case filings . . . [are] deemed . . . docketed and filed in the individual cases to the extent the master case filing applies to an individual case.\\\" Id, at 1. Wilson is one of the cases being managed under the master case. The Case Management Order governs the individual cases as well as the master case. Thus, per section 3(b), Wilson's response was due June 29, 2017, not June 30, 2017.\\nThe National Institute for Occupational Safety and Health (\\\"NIOSH\\\"). a division of the Centers for Disease Control, developed the \\\"B Reader\\\" program for those physicians with a valid U.S. state medical license who demonstrate proficiency in the classification of chest radiographs for pneumoconiosis (such as asbestosis) using the International Labour Office (\\\"ILO\\\") Classification. Pursuant to this process, the B-Reader certification is a rigorous process and applicants must be recertified every four years. The ILO's protocol provides World-wide rules for systematically examining the x-ray in a step-by-step method and recording the abnormalities on a chest x-ray that can be attributable to the inhalation of dusts and fibers, such as asbestos. When interpreting x-rays, B-readers compare the x-rays to a standardized set of films developed by the ILO. Simply put, the NIOSH B-reader program is the World-wide industry standard for diagnosing occupational lung diseases like asbestosis according to a standardized process.\\n(Opp'n 1-2 (footnotes omitted).)\\nUntil around 1994, the rules governing the District Court of the Virgin Islands, including the Appellate Division of the District Court, and the rules governing the Territorial Court of the Virgin Islands were printed as an appendix to title 5 of the Virgin Islands Code. The citation to Appendix I, Rule 35, was to Federal Rule of Civil Procedure 35, and the citation to Appendix IV, Rule 7, was to Territorial Court Rule 7.\\nBut see Sloan, 44 V.I. at 82, citing Hirschheimer v. Assoc. Metals & Minerals Corp., 94-cv-6155, 1995 U.S. Dist. LEXIS 18378 (S.D.N.Y. Dec. 12, 1995), specifically using the Westlaw citation format, which presumably means the Territorial Court had access to Westlaw at that time.\\nSubsection (a)(2)(C) of Virgin Islands Rule of Civil Procedure 35 is not found in Federal Rule of Civil Procedure 35.\\nSee. e.g.. V.I. R. Civ. P. 4 (Rptr.'s Note) (\\\"Subpart (e) provides the standard means of serving an individual within the Virgin Islands. In addition to the three traditional means . the Rule now specifically recognizes that the court may \\u2014 where the facts of a case demonstrate that these three methods are not workable \\u2014 order another method.\\\" (emphasis added)); id. (\\\"While the federal courts have reduced this period to 90 days, the provisions of Virgin Islands Rule of Civil Procedure 4( m) have kept this time period at 120 days, in keeping with traditional practice and in recognition of the burdens entailed in completion of service in the Islands.\\\"); V.I. R. Civ. P. 5 (Rptr.'s Note) (\\\"Rule 5 continues the traditional requirement that... everything that is filed with the court must be served on every party.\\\"); V.I. R. Civ. P. 26 (Rptr.' s Note) (\\\"Under Rule 26(b)(3) long-standing doctrines of trial preparation material protection, 'work product,' are continued, subject to the traditional doctrine that a showing of special need and an inability to obtain equivalent materials may overcome the protections of this doctrine.\\\"); V.I. R. Civ. P. 30 (Rptr.'s Note) (\\\"Subpart (e) retains traditional practice for review and correction of the deposition transcript by the witness.\\\").\\nWhile counsel did cite medical sources to support the concerns they raised about increased radiation exposure from CT scans, the timing could raise a question whether they are proceeding in good faith here. That is, if counsel really do object to CT scans because of the increased risk and the insignificant diagnostic value, then why did counsel \\\"agree to . [the] Chest CT Scan proposal\\\" Defendants' counsel \\\"outlined\\\" in then \\\"February 17, 2017 letter.\\\" (Letter from K. Nelson to C. Beckstedt, Ex. 5 to Mot.) Plaintiffs'counsel knew that all Group A Plaintiffs might have to submit to a CT scan if both doctors agreed. Here, if Dr. Crapo and Dr. John had agreed that Wilson needed a CT scan, the issue would not be before the Court. Yet, now that the issue is before the Court, counsel for Wilson claims that a CT scan \\\" 'would go against 50 years of accepted practice.' \\\" (Opp'n5 (quoting John Decl. \\u00b6 8c).) Either Plaintiffs' counsel genuinely agreed to all Plaintiffs (including Wilson) possibly having to submit to a CT scan \\u2014 but why, if the procedure is so risky \\u2014 or counsel only presented to agree, which means that counsel was either disingenuous with opposing counsel or with the Court. Or, perhaps counsel wised up between February 20, 2017, when they wrote to Defendants' counsel, and June 30,2017, when they filed Wilson's opposition to Defendants'motion. This Court previously warned counsel against playing games during discovery (See Hr'g Tr. 17:4-7 (Mar. 29, 2017) (\\\"Next time if it appears that there is some games being played, Hess or HO VIC will be responsible for paying the attorney's fees to litigate this particular' issue.\\\").) While the warning there was directed at Defendants, Plaintiffs too should have taken heed. No one is all knowing. If counsel determines, after research and review, that an earlier position was mistaken, counsel should disclose the change to the court to avoid appearing Janus-faced or disingenuous. Wilson's attorneys argued in court that the agreement with Defendants' counsel, to have Group A plaintiffs undergo a CT scan, presupposed that both doctors would have seen something suspicious on the X-rays to warrant a CT scan. Again, these representations are representations of fact \\u2014 facts about what the parlies agreed or understood their' agreement to be \\u2014 not arguments about what law governs. Facts are presented to courts through sworn testimony, not in unsworn statements of counsel. Cf. Henry, 55 V.I. at 994.\"}"
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+"{\"id\": \"12454763\", \"name\": \"FRANCIS EDWARD, Appellant/Plaintiff v. GEC, LLC, Appellee/Defendant\", \"name_abbreviation\": \"Edward v. GEC, LLC\", \"decision_date\": \"2017-08-01\", \"docket_number\": \"S. Ct. Civil No. 2017-0025\", \"first_page\": 745, \"last_page\": \"763\", \"citations\": \"67 V.I. 745\", \"volume\": \"67\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Supreme Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:15:28.537615+00:00\", \"provenance\": \"CAP\", \"judges\": \"HODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice.\", \"parties\": \"FRANCIS EDWARD, Appellant/Plaintiff v. GEC, LLC, Appellee/Defendant\", \"head_matter\": \"FRANCIS EDWARD, Appellant/Plaintiff v. GEC, LLC, Appellee/Defendant\\nS. Ct. Civil No. 2017-0025\\nSupreme Court of the Virgin Islands\\nAugust 1, 2017\\nRheaR. Lawrence, Esq., Law Offices of Lee J. Rohn andAssociates, LLC, St. Croix, USVI, Attorney for Appellant.\\nEugenio W.A. Geigel-Simounet, Esq., Law Offices of Wilfredo A. Geigel, St. Croix, USVI, Attorney for Appellee.\\nHODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice.\", \"word_count\": \"6636\", \"char_count\": \"41128\", \"text\": \"OPINION OF THE COURT\\n(August 1, 2017)\\nHodge, Chief Justice.\\nThe Superior Court, in a February 14, 2017 order, certified several issues addressed in its prior interlocutory orders for immediate appellate review pursuant to the procedure set forth in title 4, section 33(c) of the Virgin Islands Code. For the following reasons, we affirm in part and reverse in part.\\nI. BACKGROUND\\nGEC, LLC entered into a contract with Louis E. Brown I, Ltd. to provide construction services with respect to a construction project consisting of 102 units in three buildings, a clubhouse, 119 parking spaces, and all necessary utilities. GEC contracted with Genoa, Inc. to provide labor, supervision, and tools with respect to the carpentry work on the project. Although GEC had obtained a Certificate of Government Insurance Coverage under the Virgin Islands Workers Compensation Act (\\\"VIWCA\\\"), Genoa did not do so.\\nGenoa employed Francis Edward from February 17, 2011, until March 8, 2011, when he suffered an injury while working on the construction project. Although Genoa's contract with GEC had required it to obtain coverage under the VIWCA, Genoa failed to do so, and was thus uninsured at the time of Edward's injury. Edward filed suit against GEC in the Superior Court on April 28, 2011. In its answer, GEC pled several defenses \\u2014 including failure to state a claim \\u2014 but did not assert that it was immune from liability.\\nThe Superior Court, in a July 30, 2015 order, established a November 30, 2015 deadline for Edward to disclose his expert witnesses. (J.A. 209.) Edward, in fact, had disclosed four experts nearly two years earlier, including Doc Mitchell, his liability expert, who had been disclosed on October 31, 2013. Although it had the opportunity to do so, GEC did not oppose Mitchell or any of the other experts, or challenge their qualifications under the applicable rules of evidence.\\nGEC filed a motion for summary judgment on October 22, 2015. In its motion, GEC alleged that it was immune from liability under the VIWCA because it was deemed to be Edward's employer due to Genoa's failure to insure itself. See 24 V.I.C. \\u00a7 284(a) (\\\"When an employer is insured under this chapter, the right herein established to obtain compensation shall be the only remedy against the employer. . . .\\\"); 24 V.I.C. \\u00a7 284(b) (\\\"For the purposes of this section, a contractor shall be deemed the employer of a subcontractor's employees only if the subcontractor fails to comply with the provisions of this chapter with respect to being an insured employer.\\\"). However, GEC failed to file its Certificate of Government Insurance Coverage with the Superior Court \\u2014 even though such certificate is \\\"prima facie evidence\\\" that an employer is insured under the VIWCA, see 24 V.I.C. \\u00a7 273(d) \\u2014 or provide any other evidence to support its claim that it was an insured employer. Consequently, the Superior Court, in a July 12, 2016 opinion, denied GEC's summary judgment motion due to its failure to prove that section 284 was applicable to the case.\\nThe Superior Court, in a May 4, 2016 order, set the matter for trial on September 6, 2016. On May 11, 2016, Edward notified Mitchell that the Superior Court had set a September 6, 2016 trial date. However, Mitchell advised Edward, through a May 25, 2016 letter, that he could no longer testify due to \\\"serious health problems.\\\" (J.A. 220.) The letter contained a note from Mitchell's doctor, which explained that his health problems were \\\"severe enough to preclude him from being able to travel, sit for a long period [of] time, or provide testimony in any kind of civil or criminal trial.\\\" (J.A. 221.)\\nThereafter, Edward retained Terrance Fischer, an expert with qualifications similar to those of Mitchell, who reviewed the items relied upon by Mitchell and independently determined that the opinions in Mitchell's report were sound. On July 26, 2016, Edward filed a motion to substitute Fischer as his liability expert, which GEC first opposed only on grounds that the substitution was untimely, but subsequently filed a motion in limine to exclude both Mitchell and Fischer. The Superior Court initially denied Edward's motion, However, on September 2, 2016, GEC moved to continue the trial date, which the Superior Court subsequently granted. Edward subsequently moved for reconsideration of the substitution order on October 13, 2016, and the Superior Court, in a January 5, 2017 order, granted reconsideration and held that substituting Fischer for Mitchell would not be prejudicial to GEC if Fischer limits his testimony to the conclusions contained in Mitchell's report. However, the Superior Court reserved ruling on the substitution motion pending the outcome of a January 19, 2017 evidentiary hearing to address the qualifications of both Mitchell and Fischer.\\nOn December 14, 2016, GEC filed a renewed motion for summary judgment, to which it attached a copy of its Certificate of Government Insurance Coverage as an exhibit. Shortly thereafter, the Superior Court sua sponte ordered GEC to show cause at the January 19, 2017 hearing as to why it should not be sanctioned for its belated production of the Certificate.\\nAt the January 19, 2017 hearing, GEC maintained that its failure to include the Certificate with its first motion for summary judgment was an oversight, but further argued that the immunity provisions of the VIWCA were intended to deprive the Superior Court of subject-matter jurisdiction, and that GEC was therefore entitled to raise the immunity issue at any time in the proceeding. Edward, however, contended that immunity under the VIWCA is an affirmative defense that must be raised at the earliest opportunity, and that GEC waived its immunity defense by failing to assert it in its answer. With respect to the substitution motion, the Superior Court heard testimony from Fischer, but not Mitchell, who did not appear due to medical issues.\\nThe Superior Court subsequently issued two opinions on January 23, 2017. In the first opinion, the Superior Court determined that the VIWCA does not deprive the Superior Court of subject-matter jurisdiction, but also held that it is also not a waivable affirmative defense. Furthermore, the Superior Court held that the Certificate, without more, did not establish that GEC was entitled to summary judgment because the Certificate only constitutes prima facie evidence of coverage, and a genuine issue of material fact existed as to whether a contractor-subcontractor relationship existed between GEC and Genoa so as to allow GEC to be deemed Edward's employer pursuant to section 284(b).\\nThe Superior Court addressed Edward's substitution motion in its second opinion. Although Mitchell did not testify at the January 19, 2017 hearing and \\\"neither party made arguments as to [his] qualifications as an expert,\\\" (J.A. 51), the Superior Court held that it \\\"cannot discern whether he has sufficient knowledge, skill, experience, training or education to qualify as a liability expert in this matter,\\\" and therefore held him unqualified. (J.A. 53.) The Superior Court further held that, even assuming arguendo that Mitchell could be qualified as an expert, GEC would not have the ability to cross-examine him at trial, and that it would be \\\"a leap of faith that Terrance Fischer's interpretation and understanding of Doc Mitchell's report is what Doc Mitchell actually meant to state in his report.\\\" (J.A. 57.) Consequently, it denied the motion to substitute.\\nOn February 9, 2017, Edward and GEC filed a joint motion for the Superior Court to certify both of the January 23, 2017 opinions for immediate interlocutory appeal to this Court pursuant to title 4, section 33(c) of the Virgin Islands Code. The Superior Court granted the joint motion in a February 14, 2017 order, and certified the following four questions for interlocutory appeal:\\nAssuming an employer is insured under the Virgin Islands Workers Compensation Act and is entitled to the immunity protection pursuant to the exclusive remedy provision therein, does that deprive the Superior Court of subject matter jurisdiction or is that an affirmative defense that will be deemed waived if not timely asserted?\\nWhen a witness originally designated as an expert becomes unavailable, can the Superior Court permit the substitution of another expert in the original expert's place and permit the substitute expert to simply adopt the opinions of the original expert?\\nAssuming that the substitution is permissible,... [must] the witness originally designated as an expert... first be qualified and his methodology be found reliable under Daubert before a substitute expert is permitted to adopt and testify to that original expert's opinions?\\nIn assessing the qualifications and methodology of the witness originally designated as an expert that later becomes unavailable to testify at the Daubert hearing and trial, is the Superior Court required to look solely at the qualifications and methodology of the substitute expert and permit the substitute expert to draw inferences from the original expert's opinions based on the substitute expert's own interpretation and understanding ?\\n(J.A. 27; 44-45.)\\nEdward and GEC timely filed their petition for permission to appeal with this Court on February 23, 2017. See 4 V.I.C. \\u00a7 33(c). This Court, in a March 28, 2017 order, granted the petition and issued an expedited briefing schedule. V.I. R. App. R 6(b).\\nII. DISCUSSION\\nA. Jurisdiction and Standard of Review\\n\\\"Whenever [a] Superior Court judge, in making a civil action or order not otherwise appealable . is of the opinion that the order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of litigation, the judge shall so state in the order\\\" and \\\"[t]he Supreme Court of the Virgin Islands may thereupon, in its discretion, permit an appeal to be taken from the order, if application is made to it within ten days after entry of the order.\\\" 4 V.I.C. \\u00a7 33(c). Since the Superior Court made such a certification in its February 14, 2017 order, and Edward and GEC timely filed their joint petition on February 23, 2017, this Court possesses jurisdiction over this appeal by permission, based on this Court's March 28, 2017 order granting the petition. Island Tile & Marble, LLC v. Bertrand, 57 V.I. 596, 607 (V.I. 2012).\\nThis Court exercises plenary review of the Superior Court's application of law. Allen v. HOVENSA, L.L.C., 59 V.I. 430, 436 (V.I. 2013) (citing St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (V.I. 2007)). Although this Court ordinarily reviews the Superior Court's factual findings for clear error, see In re Estate of Small, 57 V.I. 416, 421 (V.I. 2012), and its evidentiary rulings for abuse of discretion, Samuel v. United Corp., 64 V.I. 512, 518 (V.I. 2016), this appeal does not arise from a final judgment or an interlocutory order that is appealable as of right, but is only before this Court because the Superior Court certified it for a discretionary appeal because it involves multiple \\\"controlling question[s] of law.\\\" 4 V.I.C. \\u00a7 33(c) (emphasis added). Therefore, while this Court has the authority to consider any question that is fairly included in the certification order, see In re City of Philadelphia Litigation, 158 F.3d 711, 720 (3d Cir. 1998), we limit our inquiry solely to controlling questions of law \\u2014 as is provided in the statute authorizing such an interlocutory appeal \\u2014 and accept, solely for the purposes of this appeal by permission, the facts and circumstances as they were found by the Superior Court. Cf. Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967, 972-73 (V.I. 2011).\\nB. Effect of VIWCA Immunity\\nThe first question certified to this Court is \\u2014 assuming an employer is entitled to immunity under the VIWCA \\u2014 whether immunity deprives the Superior Court of subject-matter jurisdiction, or if it is a waivable affirmative defense. As a threshold matter, we acknowledge that we previously stated \\\"that an employer may voluntarily waive the broad immunity conferred by a workers' compensation statute.\\\" Defoe v. Phillip, 56 V.I. 109, 135 (V.I. 2012). Because subject-matter jurisdiction may never be waived, see Brady v. Cintron, 55 V.I. 802, 815 (V.I. 2011), the acknowledgement that an employer could voluntarily waive VIWCA immunity would necessarily counsel against the requirement being jurisdictional. Yet, since this sentence was \\\"noted in passing and ha[d] no bearing on the outcome of that appeal,\\\" it \\\"was merely dictum,\\\" and thus not binding. Better Bldg. Maint. of the V.I., Inc. v. Lee, 60 V.I. 740, 755 n.8 (V.I. 2014). Consequently, we analyze the issue afresh, without viewing the Defoe dicta as having conclusively resolved this question.\\nAs both this Court and the Supreme Court of the United States have previously emphasized, \\\"a statute is 'jurisdictional' if 'it governs a court's adjudicatory capacity.' \\\" First Am. Dev. Group/Carib, LLC v. WestLB AG, 55 V.I. 594, 611 (V.I. 2011) (quoting Bowles v. Russell, 551 U.S. 205, 214, 127 S. Ct. 2360, 168 L. Ed. 2d 96 (2007)). \\\"It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction.\\\" Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998). That a requirement is mandatory does not, without more, render it jurisdictional. Henderson v. Shinseki, 562 U.S. 428, 131 S. Ct. 1197, 1205, 179 L. Ed. 2d 159 (2011). In other words, \\\"courts normally should not conflate subject matter jurisdiction with elements of an action's merits,\\\" for this would \\\"eviscerat[e] the distinction between the jurisdictional and merits inquiry\\\" and create the absurd result of \\\"requiring a court to dismiss a claim for lack of jurisdiction whenever the plaintiff does not prevail.\\\" Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 79-80 (3d Cir. 2003).\\nTo determine whether the Legislature intended for a statute to deprive the Superior Court of subject-matter jurisdiction, this Court considers factors such as whether the statute contains jurisdictional language, and whether courts of other jurisdictions have characterized similar statutory requirements as jurisdictional. Stewart v. V.I. Bd. of Land Use Appeals, 66 V.I. 522, 536 (V.I. 2017) (quoting Rivera-Moreno v. Gov't of the V.I., 61 V.I. 279, 300 (V.I. 2014)). \\\"Importantly, a statutory requirement is only jurisdictional if there is a 'clear sign' of the Legislature's intent.\\\" Stewart, 66 V.I. at 536 (quoting Rivera-Moreno, 61 V.I. at 300); Brooks v. Gov't of the V.I., 58 V.I. 417, 426 (V.I. 2013).\\nHere, there is no indication \\u2014 let alone a \\\"clear sign\\\" \\u2014 that the Legislature intended for the presence of VIWCA immunity to deprive the Superior Court of subject-matter jurisdiction. The statute codifying VIWCA immunity simply states that workers' compensation is the sole remedy against an insured employer, and does not contain any language that could be construed as stripping a court of subject-matter jurisdiction. Compare Brooks, 58 V.I. at 427 (holding statute is not jurisdictional when statute does not mention dismissal or other language commonly associated with jurisdictional statutes), with Brady, 55 V.I. at 815 (holding that a statute is jurisdictional when it states that \\\"[n]o action . . . may be commenced in court before [the statutory requirements are met].\\\"). In fact, the statute codifying VIWCA immunity does not even mention courts at all. See 24 V.I.C. \\u00a7 284(a) (\\\"When an employer is insured under this chapter, the right herein established to obtain compensation shall be the only remedy against the employer. . . .\\\").\\nThis conclusion is further bolstered by the language the Legislature utilized to determine whether an employer is entitled to immunity under the VIWCA. As we have previously held, \\\"an employer's status as an insured employer under the VIWCA is a mixed question of law and fact\\\" because the Legislature has provided that a Certificate of Government Insurance Coverage only constitutes \\\"prima facie evidence\\\" that an employer is insured. Island Tile & Marble, LLC, 57 V.I. at 612 (quoting 24 V.I.C. \\u00a7 273(d)). \\\"[U]se of the phrase 'prima facie evidence' in a statute 'only establishes a rebuttable presumption,' and 'cuts off no defense, interposes no obstacle to a full contestation of all the issues, and takes no question of fact from either court or jury.' \\\" Id. (quoting Meeker v. Lehigh Valley R.R. Co., 236 U.S. 412, 430, 35 S. Ct. 328, 59 L. Ed. 644 (1915)). That the Legislature intended for an employer's status as an insured employer to be subject to fact-finding by a court makes it highly unlikely that the Legislature also intended for the existence of VIWCA immunity to deprive a court of subject-matter jurisdiction. Mandico v. Taos Constr., Inc., 605 So. 2d 850, 854 (Fla. 1992) (\\\"The assertion that the plaintiff's exclusive remedy is under the workers' compensation law is an affirmative defense, and its validity can only be determined in the course of litigation. The court has jurisdiction to decide the question even if it is wrong . [I]t is incongruous to say that while the [trial] court has jurisdiction to make findings of fact, depending on the nature of the findings, it may thereupon lose jurisdiction.\\\").\\nMoreover, interpreting the VIWCA immunity statute to divest the Superior Court of subject-matter jurisdiction would produce absurd results that the Legislature could not have intended. Fawkes v. Sarauw, 66 V.I. 237, 248 (V.I. 2017) (citing Sonson v. People, 59 V.I. 590, 598 (V.I. 2012)). It is well-established that \\\"[u]nder Virgin Islands law, [a party] is not required to prove a negative.\\\" Bryan v. Fawkes, 61 V.I. 416, 473 (V.I. 2014). \\\"This is because the Legislature has decreed that '[i]n civil cases the affirmative of the issue shall be proved.' \\\" Rennie v. Hess Oil V.I. Corp., 62 V.I. 529, 544 (V.I. 2015) (quoting 5 V.I.C. \\u00a7 740(5)).\\nHowever, it is equally \\\"well-established that a party asserting jurisdiction bears the burden of establishing subject-matter jurisdiction.\\\" Gov't of the V.I. v. UIW-SIU, 64 V.I. 312, 323 (V.I. 2016) (citing Mendez v. Gov't of the V.I., 56 V.I. 194, 204 (V.I. 2012)). The requirement that the party asserting jurisdiction must prove the existence of subject-matter jurisdiction is not in tension with the rule that the affirmative of the issue be proved, since a party must typically prove the affirmative to establish subject-matter jurisdiction. See, e.g., St. Croix, Ltd. v. Shell Oil Co., 60 V.I. 468, 474 (V.I. 2014) (plaintiff must prove the defendant transacted business in the Virgin Islands); Joseph v. Daily News Publishing Co., Inc., 57 V.I. 566, 580 n.4 (V.I. 2012) (plaintiff must prove service of process on the defendant); Mendez, 56 V.I. at 204 (habeas petitioner must prove he is incarcerated under authority of the Virgin Islands government); Brady, 55 V.I. at 814 (plaintiff must prove that a proposed complaint was filed with the Medical Malpractice Action Review Committee). But were we to hold that the existence of VIWCA immunity deprives the Superior Court of subject-matter jurisdiction, plaintiffs would in fact be required to prove a negative in order to establish jurisdiction: that the defendant is not an insured employer under the VIWCA. It is doubtful that the Legislature would have intended for this to be the case.\\nAdditionally, courts in other jurisdictions have repeatedly interpreted similar workers' compensation immunity statutes as not establishing limits on subject-matter jurisdiction, but simply codifying affirmative defenses which may be waived if not timely asserted. See, e.g., Brown v. Ehlert, 255 Mont. 140, 841 P.2d 510, 514-15 (1992) (workers' compensation immunity is not jurisdictional, but a waivable affirmative defense); Bendar v. Rosen, 247 N.J. Super. 219, 588 A.2d 1264, 1267 (1991) (same); Doney v. Tambouratgis, 23 Cal. 3d 91, 151 Cal. Rptr. 347, 587 P.2d 1160, 1164 (1979) (same); Mandico, 605 So. 2d at 854 (same). But notwithstanding the fact that every jurisdiction to consider the question has seemingly held that workers' compensation immunity is a waivable affirmative defense, the Superior Court nevertheless held in its January 23, 2017 opinion that \\\"the immunity protection under the VIWCA... is not a waivable affirmative defense\\\" and considered GEC's claim notwithstanding the fact that it had never been pled in its answer. (J.A. 41.) To support its decision, the Superior Court relied solely on language from a prior opinion of this Court holding that \\\"an employer's status as an insured employer under the VIWCA is a mixed question of law and fact.\\\" Island Tile & Marble, LLC., 57 V.I. at 612.\\nIt is not clear why the Superior Court believed that the existence of immunity under the VIWCA being a mixed question of law and fact is relevant to whether VIWCA immunity is a waivable affirmative defense. For example, this Court has already held that the statute of limitations is a waivable affirmative defense, see Rennie, 62 V.I. at 536-37, even though that, too, will often constitute a mixed question of law and fact. See, e.g., Bartleson v. United States, 96 F.3d 1270, 1274 (9th Cir. 1996); Mills v. Garlow, 768 P.2d 554, 555 (Wyo. 1989); Eaton v. Herman Van Noy Drilling, 1981 OK 152, 637 P.2d 1249, 1250 (Okla. 1981). Rather, this Court has emphasized that affirmative defenses are all those which must be proven by the defendant, and that affirmative defenses are waived unless pled in an answer. Pedro v. Ranger Am. of the V.I., Inc., 63 V.I. 511, 519 (V.I. 2015); Maduro v. Am. Airlines, Inc., S. Ct. Civ. No. 2007-0029, 2008 V.I. Supreme LEXIS 24, at *8-9 (V.I. Feb. 28, 2008) (unpublished) (collecting cases). Consequently, in response to the first question certified we affirm the portion of the Superior Court's January 23, 2017 opinion holding that the presence of immunity under the VIWCA does not deprive a court of subject-matter jurisdiction, but reverse the portion of the same opinion which held that VIWCA immunity is not a waivable affirmative defense.\\nC. Substitution of Expert Witness\\nThe second, third, and fourth questions certified to this Court are largely intertwined. In the second question this Court has been asked to answer whether the Superior Court, after being advised that an expert witness is no longer available to testify, may permit a substitute expert to adopt the original expert's report and testify in place of the original expert. Assuming the answer to the second question is \\\"yes,\\\" the third and fourth questions both pertain to the relationship between the substitution and the Daubert standard this Court adopted in Antilles School, Inc. v. Lembach, 64 V.I. 400 (V.I. 2016)\\nWith respect to the second question, neither Francis nor GEC dispute the Superior Court's conclusion, as stated in its January 5, 2017 order, that such a substitution is permissible. We agree. Clearly, the substitution of an expert witness after the deadline set by the court should not be permitted if the reason for the substitution was foreseeable and resulted from a lack of diligence. See, e.g., McCool v. Bridgestone/Firestone North Am. Tire, LLC, 222 Fed. Appx. 847, 855 (11th Cir. 2007) (substitution not permitted when plaintiff failed to diligently prepare for Daubert challenge); Leibel v. NCL (Bahamas) Ltd., 185 F. Supp. 3d 1354, 1356 (S.D. Fla. 2016) (plaintiff failed to prepare original expert to present an admissible expert opinion); Smith v. Reynolds Transp. Co., No. 3:11-CV-2728-CMC, 2013 U.S. Dist. LEXIS 189826, at *4 (D.S.C. Jan. 23, 2013) (unpublished) (party waited several months to seek substitute expert after discovering original expert could not testify); Crandall v. Hartford Cas. Ins. Co., No. CV N0-00127-REB, 2012 U.S. Dist. LEXIS 173995, at *5 (D. Idaho Dec. 6, 2012) (unpublished) (plaintiff feared original expert's opinions would not withstand summary judgment); Taylor v. Dean, No. 5:05-CV-397-OC-10GRJ, 2007 U.S. Dist. LEXIS 102339, at *4-5 (M.D. Fla. Jan. 19, 2007) (unpublished) (substitute expert desired only to make up for poor preparation of original expert). Nevertheless, numerous courts have permitted the substitution of an expert witness when an unexpected event occurs that prevents the original expert from testifying at trial. See, e.g., Lincoln Nat'l Life Ins. Co. v. Transamerica Fin. Life Ins. Co., No. 04-396, 2010 U.S. Dist. LEXIS 103744 (N.D. Ind. Sept. 30, 2010) (unpublished) (original expert was subsequently incarcerated); Doctor's Assocs. Inc. v. QIP Holder LLC, No. 3:06-cv-1710 (VLB), 2009 U.S. Dist. LEXIS 119949 (D. Conn. Dec. 23, 2009) (unpublished) (original expert developed a legitimate conflict-of-interest); Jung v. Neschis, No. 01 Civ. 6993, 2007 U.S. Dist. LEXIS 97173, at *9, *29 (S.D. N.Y. Oct. 23, 2007) (unpublished) (original expert subsequently developed Alzheimer's disease).\\nIn this case, Edward disclosed Mitchell as an expert on October 31, 2013, and immediately sought to confirm Mitchell's availability for trial after being notified of the Superior Court's May 4, 2016 order setting a September 6, 2016 trial date, and sought a substitute expert shortly after being advised that Mitchell could not testify. Since it is undisputed that Mitchell's unavailability to testify was due to an unexpected event \\u2014 the serious health problems he developed in the intervening three years \\u2014 and the record contains no indication that Edward did not act diligently thereafter, the Superior Court was permitted to allow Edward to substitute another expert for Mitchell. Consequently, as to the second question certified we affirm the portion of the January 5, 2017 order and January 23, 2017 opinion in which the Superior Court concluded that it possessed the power to permit such a substitution.\\nThe third and fourth questions posed by the Superior Court, however, both presuppose that the Superior Court was compelled to conduct a full Daubert inquiry in this case. As noted earlier, this Court is not limited solely to the questions as phrased by the Superior Court in its certification order, but may consider other legal questions that are fairly related to or intertwined with the questions so certified. In re City of Philadelphia Litigation, 158 F.3d at 720; Aldridge v. Lily-Tulip, Inc. Salary Ret. Plan Benefits Comm., 40 F.3d 1202, 1207-08 (11th Cir. 1994). Therefore, before answering the third and fourth questions, it is appropriate to consider whether GEC waived its right to challenge Mitchell or Fischer pursuant to Daubert.\\nThis Court has already held that issues related to the qualification of expert witnesses \\u2014 including the need to conduct a Daubert inquiry \\u2014 are subject to waiver if not timely asserted by the opposing party. See V.I. Waste Mgmt. Auth. v. Bovoni Investments, LLC, 61 V.I. 355, 370-71 (V.I. 2014) (Daubert challenge waived when party failed to challenge expert's qualifications or methodology despite having been provided with the expert report months before trial); Malloy v. Reyes, 61 V.I. 163, 183 (V.I. 2014) (witness testified as an expert despite lack of formal qualification by Superior Court when party identified witness as an expert in all materials prior to trial and other party failed to object). This is because '\\\"[t]he truth-seeking function of litigation is best served by orderly progression, and because Daubert generally contemplates a 'gatekeeping' function, not a 'gotcha' junction.\\\" Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir. 2001).\\nHere, the record reflects that GEC did not take any step to exclude Mitchell's testimony on Daubert grounds \\u2014 even though it was aware of him since October 31, 2013 \\u2014 until almost a month before the scheduled trial date, and then only after Edward already filed his motion to substitute Mitchell with Fischer, at which point GEC was aware that Mitchell could not testify due to health issues. Even then, GEC never challenged Mitchell or Fischer's educational background or other qualifications to testify \\u2014 a fact which the Superior Court acknowledged (J.A. 51) \\u2014 but only the reliability of the procedure, method, and technique utilized and the potential prejudicial impact of the testimony.\\nYet even though Mitchell's qualifications had never been challenged, the Superior Court, in its January 23, 2017 opinion, held that Mitchell could not qualify as an expert due to a lack of specialized expertise. (J.A. 51-53.) Even if Mitchell's qualifications are still relevant in light of Edward's attempt to substitute Fischer for Mitchell \\u2014 which, as we explain below, we do not hold \\u2014 the Superior Court erred by examining his qualifications sua sponte notwithstanding GEC's waiver, especially considering that the record was incomplete with respect to Mitchell's qualifications given that he had not been present to testify at the January 19, 2017 hearing. V.I. Waste Mgmt. Auth., 61 V.I. at 370-71. Thus, the Superior Court erred when it held that Fischer could not testify as a result of Mitchell not having the requisite background to qualify as an expert.\\nLikewise, even though GEC challenged Mitchell's methodology in its motion in limine, this challenge has also been waived. As noted earlier, the Daubert standard is not intended to reward trial by ambush. See, e.g., Alfred, 262 F.3d at 1087. While GEC failed to file any motion objecting to Mitchell's expert testimony when it believed he was still available to testify at trial, it moved to exclude his testimony \\u2014 and by extension, the substitute testimony of Fischer \\u2014 one month before the scheduled trial date, and then only when it was placed on notice that Mitchell would not be able to testify due to his health issues. Essentially, GEC used Edward's motion to substitute as a vehicle to resurrect a challenge that otherwise may have already been untimely.\\nBut even if we were to overlook GEC's waiver, it is clear that Mitchell's qualifications and methodology are not in any way relevant to determining whether Fischer should be permitted to testify as an expert. Both Rule 702 of the Federal Rules of Evidence, which governed at the time Edward filed his motion to substitute, and Rule 702 of the Virgin Islands Rules of Evidence, which will govern the trial in this matter, provide that\\nA witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:\\n(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;\\n(b) the testimony is based on sufficient facts or data;\\n(c) the testimony is the product of reliable principles and methods; and\\n(d) the expert has reliably applied the principles and methods to the facts of the case.\\n(Emphases added). By its own terms, then, Rule 702 \\u2014 and by extension, the Daubert standard, which was expressly implemented in the current language of Rule 702 \\u2014 is concerned with the qualifications, knowledge, methodology, and so forth of the witness who will actually testify at trial. Not surprisingly, other courts that have considered challenges to a substitute expert under Daubert have focused solely on the qualifications and methodology of the substitute expert, without any regard to those of the original expert. See, e.g., Stephenson v. Wyeth, LLC, No. 04-2313-CM, 2011 U.S. Dist. LEXIS 112182, at *8 (D. Kansas Sept. 29, 2011) (unpublished) (defendants' motion to exclude testimony of original expert is moot when court has granted plaintiff permission to substitute experts, and defendants must file motion tailored to substitute expert); Keffer v. Wyeth, Civ. No. 2:04-0692, 2011 WL 3843688, at *2 (S.D. W. Va. Aug. 26, 2011) (unpublished) (holding Daubert challenge to original expert is moot when plaintiff successfully moves to substitute a new expert, for any Daubert challenge to the substitute must be \\\"crafted to the particulars of [the substitute expert's] background and opinions\\\"); Potoski v. Wilkes Univ., Civ. No. 3:06-CV-2057, 2010 U.S. Dist. LEXIS 99731, at *24 (M.D. Pa. Sept. 22,2010) (unpublished) (rejecting challenge to substitute expert under Daubert because \\\"[a]s long as the expert has specialized knowledge and expertise in the field in question . he can be qualified as an expert\\\").\\nHere, the Superior Court, in its January 23, 2017 order, excluded Fischer's expert testimony because he \\\"could not testify to the extent of Doc Mitchell's knowledge and could not pinpoint which specific provisions of these codes Doc Mitchell used to support Doc Mitchell's claims,\\\" but \\\"could only testify to the extent of his knowledge and to his own interpretation and understanding of Doc Mitchell's expert report.\\\" (J.A. 57.) Importantly, at no point did the Superior Court make any finding that Fischer's own knowledge or expertise failed to meet the standards required by Rule 702 or Daubert, and in fact expressly held that it \\\"need not address the qualification of Terrance Fischer as an expert.\\\" (J.A. 59.) Therefore, in response to questions three and four as certified, we reverse the portions of the January 23, 2017 opinion in which the Superior Court denied Edward's motion to substitute based solely on its findings with respect to Mitchell's qualifications and methodology.\\nIII. CONCLUSION\\nWe answer the first question certified by the Superior Court in the negative with respect to whether VIWCA immunity goes to subject-matter jurisdiction and in the affirmative as to whether VIWCA immunity is a waivable affirmative defense. As to the second question, we answer in the affirmative, and hold that the Superior Court may permit substitution of one expert witness for another when the original expert witness has become unavailable. Finally, we answer the third and fourth questions in the negative, and hold that the Superior Court need only look to the qualifications and methodology of the substitute expert \\u2014 provided, of course, that a challenge under Daubert has not already been waived. Accordingly, we affirm in part and reverse in part, and remand this matter to the Superior Court for further proceedings consistent with the answers to the certified questions provided herein.\\nThe parties dispute whether a contractor-subcontractor relationship existed between GEC and Genoa, or if Genoa was hired simply as a labor broker.\\nAlthough Edward also sued Genoa and another party \\u2014 Ken Brown \\u2014 in his complaint, he filed a stipulation for their voluntary dismissal with prejudice on January 9, 2013. Although Edward subsequently moved for the Superior Court to set aside that dismissal, no issues relevant to his claims against Genoa and Brown are pertinent to this interlocutory appeal.\\nAfter the Superior Corn! denied its first summary judgment motion, GEC requested that it take judicial notice of its Certificate of Government Insurance Coverage, which the Superior Court seemingly did in an October 3, 2016 order. However, the Superior Court subsequently vacated its order on the grounds that it had misspoken and had only intended to take judicial notice of the fact that such certificates are issued by the Virgin Islands Department of Labor. (J.A. 33 n.6.)\\nOf course, to the extent any of the parties believe that the Superior Court made clearly erroneous factual findings or abused its discretion with respect to its evidentiary rulings, they may appeal to this Court as of right after entry of a final judgment, at which point this Court would apply traditional standards of review.\\nIn his brief, Edward correctly notes that Rule 8(c)(l) of the Virgin Islands Rules of Civil Procedure identifies the workers' compensation bar as an affirmative defense that must be pled in an answer. GEC, however, argues that its answer should be construed under the pleading rules in effect at the time it filed its answer, given that the Virgin Islands Rules of Civil Procedure did not go into effect until March 31, 2017.\\nWe agree with GEC that the Virgin Islands Rules of Civil Procedure should not apply retroactively to a previously-pending action when doing so would work an injustice. See V.I.R. Civ. P. 1-1 (c)(2)(B). However, as applied to this case. Rule 8(c)( 1) of the Virgin Islands Rules of Civil Procedure simply restates existing law, since an employer's status as an insured employer must be proven, see 24 V.I.C. \\u00a7 273(d), and this Court has established that affirmative defenses are all those defenses which must be proven by the defendant. See Pedro, 63 V.I. at 519.\\nIn Antilles School, this Court recognized that the United States Supreme Court had interpreted Federal Rule of Evidence 702 to provide that\\n[a] trial judge must determine at the outset... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.\\nDaubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Although the Virgin Islands Rules of Evidence replaced the Federal Rules of Evidence with respect to proceedings in the Superior Court as of March 31, 2017 \\u2014 and thus will apply to the trial in this case \\u2014 Virgin Islands Rule of Evidence 702 was modelled after Federal Rule of Evidence 702, and neither this Court nor the Advisory Committee on Rules intended for a standard other than Daubert to govern, particularly after this Court in Antilles School identified the Daubert standard as the soundest rule for the Virgin Islands.\\nAlthough GEC included in its motion in limine a section titled \\\"The Witness Must Be An Expert,\\\" GEC nevertheless acknowledged that \\\"Mitchell and Fischer may appear to be in a position (sic) of the requisite degrees to allow them to testify,\\\" and instead challenged the admission of the expert opinion on grounds that it \\\"is biased and insubstantial because they have established no factual nor scientific basis to justify any conclusions in this case.\\\" (J.A. 436-37.)\\nAlthough this Corn! has held that the requirements of Daubert are subject to waiver, it has not yet determined whether the Superior Court may initiate a Daubert inquiry sua sponte notwithstanding a party's waiver. However, we decline to resolve this issue of first impres sion in this case. While some courts have held that a trial court may initiate a Daubert inquiry sua sponte even in the absence of a timely motion by a party, even these courts have emphasized that \\\"sua sponte consideration of the admissibility of expert testimony is permissible so long as the court has an adequate record on which to base its ruling.\\\" Miller v. Baker Implement Co., 439 F.3d 407, 413 (8th Cir. 2006) (citing Kirstein v. Parks Corp., 159 F.3d 1065, 1067 (7th Cir. 1998)). Here, the record with respect to Mitchell's qualifications as an expert was certainly not adequate, given that Mitchell never testified at the January 19, 2017 healing and the parties introduced no evidence with respect to his qualifications.\\nIt is worth noting that Edward stipulated that Fischer would only testify to the contents of Mitchell's expert report to reduce the potential prejudice to GEC, given that at the time Edward filed his motion for substitution the trial in the matter was scheduled to occur in approximately one month. However, since then, the trial date was continued by the Superior Court \\u2014 at GEC's request. In other words, it appears that GEC sought to exclude Fischer's expert testimony on grounds that Fischer is unable to adequately testify solely to the four corners of Mitchell's report, when Edward self-limited Fischer's testimony in such a manner to avoid prejudice to GEC from the substitution occurring one month prior to trial \\u2014 a trial which GEC subsequently moved to have continued to a later date. Cf. Najawicz v. People, 58 V.I. 315, 337-38 (V.I. 2013) (party cannot benefit by manufacturing a situation in which it can \\\"attempt to have it both ways\\\").\\nBecause the extent of Fischer's testimony is a matter of discretion and not a pure question of law, this matter is beyond the scope of this appeal by permission, and need not be addressed by this Court. However, on remand, the Superior Court may consider whether the circumstances that led to Edward self-limiting Fischer's testimony only to Mitchell's conclusions may have changed.\"}"
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+"{\"id\": \"1303683\", \"name\": \"UNITED STATES OF AMERICA, Plaintiff v. ABRAHAM NEE NTREH, Defendant\", \"name_abbreviation\": \"United States v. Abraham Nee Ntreh\", \"decision_date\": \"2003-11-24\", \"docket_number\": \"Crim. No. 2002-0007\", \"first_page\": 416, \"last_page\": \"420\", \"citations\": \"45 V.I. 416\", \"volume\": \"45\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T18:13:24.895257+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"UNITED STATES OF AMERICA, Plaintiff v. ABRAHAM NEE NTREH, Defendant\", \"head_matter\": \"UNITED STATES OF AMERICA, Plaintiff v. ABRAHAM NEE NTREH, Defendant\\nCrim. No. 2002-0007\\nDistrict Court for the Virgin Islands Division of St. Croix\\nNovember 24, 2003\\nCARL F. Morey, Asst. U.S. Atty., U.S. Virgin Islands, Attorney for the Government\\nJOMO Meade, Esq., U.S. Virgin Islands, Attorney for the Defendant\", \"word_count\": \"1211\", \"char_count\": \"7230\", \"text\": \"FINCH, Chief Judge\\nMEMORANDUM OPINION\\n(November 24, 2003)\\nThis matter comes before the Court on Defendant Abraham Nee Ntreh's Motion for Judgment of Acquittal or in the Alternative for New Trial. For the reasons expressed below, Defendant's motion will be denied.\\nI. Background\\nFollowing a mistrial for the jury's failure to reach a unanimous verdict as required by FED. R. CRIM. P. 31(a), Defendant Abraham Nee Ntreh was convicted at a second trial on one count of illegal reentry following deportation in violation of 8 U.S.C. \\u00a7 1326(a), and one count of false statement in violation of 8 U.S.C. \\u00a7 1326(a).\\nBy the instant motion, Defendant asks the Court for a judgment of acquittal on the basis of lack of jurisdiction and/or insufficient evidence. Alternatively, Defendant moves for a new trial. The Government opposes Defendant's motion.\\nII. Standard for Judgment of Acquittal and New Trial\\nA motion for judgment of acquittal and a motion for new trial are governed by two different standards. In determining a motion for judgment of acquittal for insufficiency of the evidence under FED. R. CRIM. P. 29, a district court \\\"must view the evidence in the light most favorable to the verdict, and must presume that the jury has properly carried out its functions of evaluating credibility of witnesses, finding the facts, and drawing justifiable inferences. A verdict will be overruled only if no reasonable juror could accept the evidence as sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt.\\\" United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1986) (citing United States v. Castro, 776 F.2d 1118, 1125 (3d Cir. 1985); United States v. Dixon, 658 F.2d 181, 188 (3d Cir. 1981)). The Court must determine \\\"whether all the pieces of evidence against the defendant, taken together, make a strong enough case to let the jury find him guilty beyond a reasonable doubt.\\\" United States v. Allard, 240 F.2d 840, 841 (3d Cir. 1957), cert. denied, 353 U.S. 939 (1957). A trial court has the duty to grant a judgment of acquittal when the evidence is so scant that the jury could only speculate as to the defendant's guilt. See 2 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: Criminal 2d \\u00a7 467, at 660-61 & n. 23 (West 1982). The Government must prove every element of the offense beyond a reasonable doubt. United States v. Samuels, 741 F.2d 570, 573 (3d Cir. 1984).\\nA motion for a new trial pursuant to FED. R. CRIM. P. 33, on the other hand, requires a broader standard of review than that applied to a motion for judgment of acquittal. Government of Virgin Islands v. Leycock, 93 F.R.D. 569, 571 (D.V.I. 1982); United States v. Pepe, 209 F. Supp. 592, 594 (D. Del. 1962), aff'd, 339 F.2d 264 (3d Cir. 1964) (per curiam). Under Rule 33, \\\"the Court... may grant a new trial... if required in the interest of justice.\\\" FED. R. CRIM. P. 33. Unlike a motion for judgment of acquittal, the motion for new trial is based upon the weight of the evidence, and the court may weigh evidence and consider the credibility of witnesses. United States v. Smith, 619 F. Supp. 1441, 1443 (M.D. Pa. 1985); Pepe, 209 F. Supp. at 595. The decision whether to grant a new trial is left to the discretion of the trial court. However, such an exercise of discretion is to be used only in exceptional circumstances. United States v. Kermidas, 332 F. Supp. 1312, 1316 (M.D. Pa. 1971), aff'd, United States v. Rohland, 468 F.2d 238 (3d Cir. 1972); 2 CHARLES A. Wright et al., Federal Practice and Procedure: Criminal 2d \\u00a7 553 (West 1982). The trial judge may not set aside the verdict simply because he came to a different conclusion than the jury. See Schirra v. Delaware L. & W. R. Co., 103 F. Supp. 812, 820 (M.D. Pa. 1952).\\nIII. Analysis\\nDefendant Abraham Nee Ntreh argues that based on the Court's lack of jurisdiction and/or the insufficiency of the Government's evidence, he is entitled to a judgment of acquittal. The Court finds no merit in Defendant's argument that the Court lacks jurisdiction based on the alleged invalidity of his deportation order. As this Court has previously noted, Defendant Nee Ntreh's deportation hearing has been reviewed generously, including by the Fifth Circuit Court of Appeals. This Court has also entertained several challenges by Nee Ntreh as to the validity and legality of his deportation. None of those challenges has raised a due process concern.\\nTurning to the issue of insufficient evidence, the Court must determine whether a reasonable jury could find that the Government proved all of the requisite elements beyond a reasonable doubt. The elements of Count 1 are as follows:\\n(1) The defendant is an alien;\\n(2) The defendant was either denied admission, excluded, deported, or removed, or has departed the United States while an order of exclusion, deportation, or removal is outstanding\\nA. at Dallas, Texas, on or about October 27,1997; or\\nB. at Niagara Falls, New York, on or about July 10,1998; or\\nC. at Washington, DC, on or about March 10,1999.\\n(3) The defendant thereafter either entered the United States, attempted to enter the United States, or was \\\"found in\\\" the United States; and\\n(4) (A) Without having obtained permission from the Attorney General to reapply for admission to the United States; or (B) With respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act.\\nThe elements of Count 2 are as follows:\\n(1) The defendant knowingly made a false, fictitious, or fraudulent statement or representation to the government as detailed in the Indictment;\\n(2) In making the false, fictitious, or fraudulent statement, the defendant acted willfully;\\n(3) The statement was made in a matter within the jurisdiction of a department or agency of the United States; and\\n(4) The statement made was material.\\nAt the second trial for this matter, the Government provided evidence including Defendant's passport, a deportation order entered against Defendant, testimony that Defendant was denied reentry to the United States on three occasions, testimony of Defendant's subsequent presence in the United States, and testimony alleging that Defendant told an INS officer that Defendant had mailed his passport to his brother when Defendant in fact had the passport with him in his suitcase. In light of these facts, this Court cannot find that \\\"no reasonable juror could accept the evidence as sufficient to support the conclusion of guilt beyond a reasonable doubt.\\\" See Coleman, 811 F.2d at 807. Furthermore, Defendant has made no arguments in support of a new trial and the Court does not find that the interests of justice dictate a new trial.\\nIV. Conclusion\\nFor the foregoing reasons, Defendant's Motion for Judgment of Acquittal or in the Alternative for New Trial is denied. An appropriate Order is attached.\"}"
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+"{\"id\": \"1329293\", \"name\": \"BERNARD GRIFFITH, WILBERFORCE CHARLES, JOHN V. PETER, OLIVER MARCELLE, JAMES THEOPHILUS GUMBS, JOHN STEDMAN, ARMANDO R. ROSA, GEORGE R. RAMOS, JOHN HUNT, FRANCIS GUIDE, BASIL RICHARDS, DAVID THOMAS, ANDRES NIEVES, GREGOR RICHELIEU, ANTHONY FATAL, THOMAS VIGILANT, CARLOS PENA, ARNOLD GREAVES, MALCOLM EVANS and DIMAS YANEZ, Plaintiffs v. HESS OIL VIRGIN ISLANDS CORP. and AMERADA HESS CORP., Defendants\", \"name_abbreviation\": \"Griffith v. Hess Oil Virgin Islands Corp.\", \"decision_date\": \"1998-05-13\", \"docket_number\": \"Civ. No. 1995-104\", \"first_page\": 460, \"last_page\": \"468\", \"citations\": \"38 V.I. 460\", \"volume\": \"38\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T17:29:13.587297+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BERNARD GRIFFITH, WILBERFORCE CHARLES, JOHN V. PETER, OLIVER MARCELLE, JAMES THEOPHILUS GUMBS, JOHN STEDMAN, ARMANDO R. ROSA, GEORGE R. RAMOS, JOHN HUNT, FRANCIS GUIDE, BASIL RICHARDS, DAVID THOMAS, ANDRES NIEVES, GREGOR RICHELIEU, ANTHONY FATAL, THOMAS VIGILANT, CARLOS PENA, ARNOLD GREAVES, MALCOLM EVANS and DIMAS YANEZ, Plaintiffs v. HESS OIL VIRGIN ISLANDS CORP. and AMERADA HESS CORP., Defendants\", \"head_matter\": \"BERNARD GRIFFITH, WILBERFORCE CHARLES, JOHN V. PETER, OLIVER MARCELLE, JAMES THEOPHILUS GUMBS, JOHN STEDMAN, ARMANDO R. ROSA, GEORGE R. RAMOS, JOHN HUNT, FRANCIS GUIDE, BASIL RICHARDS, DAVID THOMAS, ANDRES NIEVES, GREGOR RICHELIEU, ANTHONY FATAL, THOMAS VIGILANT, CARLOS PENA, ARNOLD GREAVES, MALCOLM EVANS and DIMAS YANEZ, Plaintiffs v. HESS OIL VIRGIN ISLANDS CORP. and AMERADA HESS CORP., Defendants\\nCiv. No. 1995-104\\nDistrict Court of the Virgin Islands Div. of St. Croix\\nMay 13, 1998\\nLee J. Rohn, Esq., (Law Offices of Rohn and Cusick), for Plaintiffs\\nBeth Moss, Esq., (Bryant, White & Barnes), RC. for Defendants\", \"word_count\": \"2708\", \"char_count\": \"17069\", \"text\": \"MOORE, Chief Judge\\nMEMORANDUM\\nThis Matter is before the Court on defendants' motion to dismiss for want of subject matter jurisdiction. Defendants move in the alternative for partial summary judgment on the plaintiffs' wage and promotion discrimination claims. Because both parties have included material in their memoranda which go beyond the pleadings, the Court will treat the motion to dismiss as one for summary judgment. Fed. R. Civ. P. 12(c).\\nThe Court has general civil jurisdiction equivalent with that of a district court of the United States under Revised Organic Act of 1954 \\u00a7 22, 48 U.S.C. \\u00a7 1612. As to the plaintiff's allegations of employment discrimination under federal law, the Court has cognizance of this case under the Employee Retirement Income Security Act [29 U.S.C. \\u00a7 1001, et. seq.], the Age Discrimination in Employment Act [29 U.S.C. \\u00a7 621, et. seq.], and Title VII of the Civil Rights Act [42 U.S.C. \\u00a7 2000e-2, et. seq.]. Regarding the related territorial law claims, the Court has supplemental jurisdiction under 28 U.S.C. \\u00a7 1367.\\nAlso before the Court is defendants' motion for sanctions and plaintiffs' cross motion for sanctions following a December 11, 1997, letter from plaintiffs' counsel to the Court.\\nFor the reasons set forth below, defendants' motions will all be denied. Plaintiffs' cross motion for sanctions will also be denied.\\nI. Facts\\nPlaintiffs are all black West Indian employees and former employees of defendant, Hess Oil Virgin Islands Corporation [\\\"HOVIC\\\"]. Defendant HOVIC is a Virgin Islands Corporation with its principal place of business on St. Croix; defendant Amarada Hess Corporation [\\\"AHC\\\"] is a foreign corporation and parent of HOVIC, with its principal place of business in Woodbridge, New Jersey.\\nPlaintiffs here allege that HOVIC delivered to them each a letter on March 17,1995, notifying them of their involuntary termination effective that date. Plaintiffs further assert that these terminations were not based on plaintiffs' job performance or on other proper grounds but were instead illegally and improperly discriminatory.\\nIn their Fourth Amended Complaint [\\\"Complaint\\\"], filed May 18,1996, plaintiffs assert nine causes of action. The eighth cause of action is for illegal discrimination in employment. (Complaint at \\u00b6 97 \\u2014 98.) Plaintiffs filed their claims with the Virgin Islands government and the federal Equal Employment Opportunity Commission [\\\"EEOC\\\"] complaining against defendant for discrimination in the plaintiffs' termination. (Complaint at \\u00a7 99, and Defendants' Memorandum in Support of Motion to Dismiss [\\\"Defendants' Memorandum\\\"], Exhibits A-l \\u2014 A-18.)\\nThe complaint alleges in the eighth cause of action that defendants discriminated against plaintiffs based upon their race and national origin with regard to pay scales and promotions. (Complaint at \\u00b6 96.) Defendants maintain that, because plaintiffs did not raise the issue of promotion and pay discrimination in their administrative complaints, but instead asserted discrimination in their terminations, plaintiffs may not sue here for promotion and pay discrimination. This defendants claim is grounds for dismissal on the instant motion.\\nFollowing submission of the memoranda on defendants' motion to dismiss, plaintiffs' counsel wrote a letter, dated December 11, 1997, bringing to the Court's attention a recent decision on parallel facts. Charles v. HOVIC & Amarada Hess Corp., Civ. No. 1994-81 (D.C.V.I. Dec. 8,1997), consolidated for decision with Rennie v. HOVIC & Amarada Hess Corp., Civ. No. 1994-82, and Elmour v. HOVIC & Amarada Hess Corp., Civ. No. 1994-104 [\\\"Charles v. HOVIC\\\"]. Defendants objected to the letter, moved to strike this \\\"unauthorized communication\\\" and sought sanctions in \\\"the high five figures.\\\" (Defendant's Memorandum on Motion to Strike, p. 2.) Plaintiffs countered with their own memorandum seeking sanctions for defendants' having \\\"[vexatiously] multiplied the proceedings in [the] case.\\\" (Plaintiffs' Response to Defendant's Motion to Strike [\\\"Response to Motion to Strike\\\"], p. 4.) Plaintiffs generously left the amount of sanctions up to the Court's good discretion.\\nII. Application of Law and Fact\\nBecause the Court will rely on Charles v. HOVIC, defendants' motion to strike the letter which brought this decision to the Court's attention, and the parties' cross-requests for sanctions must first be resolved. The motion to dismiss will then be addressed.\\nA. Motion to Strike and For Sanctions\\nDefendants allege that, because plaintiffs' counsel did not seek permission before submitting what defendants call a \\\"letter memorandum,\\\" the Court should not consider the letter or the attached opinion in Charles v. HOVIC in deciding the motion to dismiss, and, further, should impose a sanction on plaintiffs' counsel of more than $ 10,000. It is true that our local rules require leave of court to file any supplemental pleadings:\\nOnly a motion, a response in opposition, and a reply may be served on counsel and filed with the court; further response or reply may be made only by leave of court obtained before filing (counsel will be sanctioned for violation of this limitation).\\nLRCI 7.1(g).\\nThe text of the letter on the letterhead of \\\"The Law Offices of Rohn and Cusick\\\" is as follows:\\nDear Chief Judge Moore:\\nEnclosed, is a copy of Judge Finch's decision in Charles/Rennie.\\nThe issues were identical to those in Griffith.\\n/s/Maurice Cusick, Esq.\\nThis letter is not the kind of adversarial document prohibited by the rule. The statement that the issues were identical served to call the Court's attention to relevant case law decided after the filing. The same local rules remind all counsel of their ethical duty to bring to the Court's attention any relevant law, whether favorable or unfavorable to their client's position. See, LRCi 11.2. Thus it was as much the duty of defendants' counsel to make sure the Court was aware of this highly relevant case as it was plaintiffs' obligation. Since it was not improper for plaintiffs' counsel to bring Judge Finch's decision in Charles to the Court's attention here, defendants' motion to strike and for sanctions must be denied.\\nNext for consideration is plaintiffs' cross motion for sanctions against defendants' counsel for unreasonably and vexatiously multiplying the proceedings in the case under 28 U.S.C. \\u00a7 1927. (Response to Motion to Strike at 4.) The Court notes for future reference its inherent power to sanction attorney misconduct, including the particular misconduct alleged here, which authority is separate and apart from such statutory sanctioning authority.\\nSanctions under section 1927 require that the Court first find bad faith in the party's or attorney's action. See, e.g., In Re Tutu Wells Contamination Litig., 37 V.I. 398, 120 F.3d 368, 379 (3d Cir. 1997) (citing Fellheimer, Eichen & Braverman, P.C. v. Charter Technologies, Inc., 57 F.3d 1215, 1225 (3d Cir. 1995)). Section 1927 sanctions may also be in order where an attorney's or party's actions are frivolous. Prosser v. Prosser, 34 V.I. 139, 921 F. Supp. 1428, 1435 (D.C.V.I. 1996).\\nIt would seem by any objective standard that a conscious and deliberate effort by an attorney of the bar of this Court to withhold highly relevant case authority from the Court would constitute bad faith. It is the antithesis of an attorney's ethical duty as an officer of the court. And this is precisely what defense counsel here sought to accomplish in her motion to strike and request that this Court ignore a decision on parallel facts by a co-equal judge of this very same Court. Having found the necessary bad faith the Court turns to the appropriate sanction.\\nSection 1927 contemplates the award of costs equivalent to the attorney fees incurred in opposing the sanctioned pleading. Such a sanction is not appropriate here, for plaintiffs' costs were de minimus. Plaintiffs' response to the motion to strike consisted of only a four page memorandum to which copies of the letter and the decision in Charles were attached. Plaintiffs did not conduct any extensive research, document production or bear any other substantial burden as a result of defendants' motion. The Court accordingly declines to impose a monetary sanction under section 1927.\\nDefendants' counsel does not escape sanction, however. Since it was the Court and the integrity of its deliberations which were assaulted by defense counsel's efforts to prevent this Court from considering case law directly on point, the Court will rely on its inherent power to discipline members of the bar to sanction defense counsel for her conduct here.\\nA court's inherent power to discipline attorneys is broad and its boundaries somewhat nebulous. See, Tutu Wells, 120 F.3d at 383 (citing Eash v. Riggins Trucking Inc., 757 F.2d 557, 561 (3d Cir. 1985) (en banc)). Nonetheless, the inherent power carries with it a number of tools suitable to the task. Such tools include the power to fine, to disqualify counsel, to preclude claims or defenses, and to limit a litigant's future access to the courts. Id. (citing Gregory P. Joseph, Sanctions: The Federal Law of Litigation Abuse \\u00a7 28 at 440-47 (2d. ed. 1994) and Republic of the Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 73 n.10 (3d Cir. 1994)).\\nBecause of defense counsel's bad faith in attempting to prevent the Court from considering an earlier decision on parallel facts in the St. Croix Division, the Court will impose a f\\u00edne of $500 upon defendants' counsel to be paid from her personal funds and not passed on to her clients in any form or fashion.\\nSince defense counsel is being sanction under the Court's inherent authority over those attorneys who appear before it, the proceeds of the sanction shall be used for the betterment of the bar at large, namely, for the maintenance of the Law Library of the District Court of the Virgin Islands. Counsel shall make payment to the Clerk of the Court within 10 days of entry of the order implementing this memorandum.\\nThe Court cannot leave this subject without commenting upon the conduct of plaintiffs' counsel for the form and manner of their response comes just short of being sanctionable. Not content simply to reply to the substance of defendants' motion to strike, plaintiffs' Memorandum in Response to Defendant's Motion to Strike is littered with the kind of ad hominem attacks on opposing counsel which have no place in pleadings filed in this Court. E.g., Response to Motion to Strike at 1 (\\\"Defendants' motion rises to the utmost level of absurdity and abuse of the legal process.\\\"); id., (\\\"[defendants' motion] is legal harassment\\\"); id. at 2, (\\\"[defendants' position] is absurd\\\"); id. at 3, n.2., (\\\"[defendants' position is an] utter misrepresentation\\\"); and, id. at 4, (\\\"[defendants' actions constitute] unbelievable demonstration of . . . 'chutzpah'\\\"). Such language is not only unenlightening, it is unnecessary and undignified. This entire exchange between counsel exemplifies what happens when professionals allow their personal animosities to carry over into and infect the performance of their profession. The Court expects all counsel to put aside their personal differences and conduct themselves professionally in the enterprise of solving disputes through the judicial process. The Court's patience with antics such as both attorneys displayed in this case is at an end. Sufficient warnings have been given in the past. Future lapses of this kind by any counsel will be met by the appropriate sanction.\\nB. Defendant's Motion to Dismiss\\nThe Court now disposes of defendants' motion to dismiss by first noting the remarkable similarities of the facts in this case to those of Charles v. HOVIC.\\nPlaintiffs in both cases are former HOVIC employees claiming discrimination in their termination from employment; filed discriminatory firing claims with the EEOC and, subsequently, received \\\"right to sue\\\" letters; and alleged discrimination in promotions and wages in their complaints. Defendants in both cases asserted that plaintiffs' claims were barred because they had not first been raised with the EEOC, and cast their motion as one to dismiss or, in the alternative, for partial summary judgment. In both cases the parties included material beyond the pleadings, justifying treating defendants' motion as one for summary judgement.\\nDefendants here have also interposed the same authority relied upon in Charles, namely, Gillard v. New York Public Library System, 597 F. Supp. 1069 (S.D.N.Y. 1984). While the Gillard court did not permit plaintiffs to sue for discrimination in wages and promotions where their EEOC complaint was limited to discriminatory termination, this is not the settled standard applied in federal courts, as noted by Judge Finch. See Charles at 10 (citing Emrick v. Bethlehem Steel Corp., 539 F. Supp. 653, 656 (E.D. Pa. 1982) and Montano v. Amstar Corp., 502 F. Supp. 295, 296 (E.D. Pa. 1980)).\\nWhat is settled is that the parameters of a civil action for employment discrimination in district court are defined by the reasonable scope of an EEOC investigation of the incident which gave rise to the charges. Id. at 6 (citing Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976)). Just as they did in Charles, plaintiffs have put forward the affidavit of Mr. Bernadin Bailey, a long-time employee of the Virgin Islands Department of Labor. (Plaintiffs' Memorandum, exhibit 1.) Mr. Bailey's affidavit makes clear that the scope of an investigation of plaintiffs' complaint would undoubtedly have included an examination of wages and promotion patterns. Just as in Charles, defendants have failed to put forward evidence rebutting the assertions in the Bailey affidavit. For that reason, just as in Charles, their motion must be denied.\\nIII. Conclusion\\nThe Court has been burdened in this case by the need to referee yet another needless wrangle between attorneys who let their personal animosities infect the judicial process. Counsel for both parties are hereby admonished that the Court's patience with such antics has ended. All counsel who practice before this Court will henceforth conduct themselves with the highest standards of propriety expected of members of their profession, and the bar of this Territory.\\nFor the reasons set forth in the foregoing, the motion to dismiss or for summary judgment in the alternative will be denied. The motion to strike, the motion for sanctions and the cross motion for sanctions will also be denied. Sanctions in the amount of $500 are imposed, however, on counsel for the defendants, Attorney Beth Moss, under the Court's inherent authority. An appropriate order shall issue.\\nENTERED this 13th day of May, 1998.\\nORDER\\nFor the reasons set forth in the accompanying memorandum it is hereby\\nORDERED that defendants' motion to dismiss be and the same is hereby DENIED. And it is further\\nORDERED that defendants' motion to strike plaintiff's letter of December 11, 1997, be and the same is hereby DENIED. And it is further\\nORDERED that defendants' motion for sanctions be and the same is hereby DENIED. And it is further\\nORDERED that plaintiffs' cross-motion for sanctions under 28 U.S.C. \\u00a7 1927 be and the same is hereby DENIED. And it is further\\nORDERED that defendants' counsel is sanctioned under the Court's inherent authority in the amount of $500 payable to the Clerk of the Court for purposes of maintaining the Court's libraries.\\nENTERED this 13th day of May, 1998.\\nThe complete Revised Organic Act of 1954 is found at 48 U.S.C. \\u00a7 1541-1645 (1994), reprinted in V.I. Code Ann., Historical Documents, Organic Acts, and U.S. Constitution at 73-177 (1995 & Supp. 1997) (preceding V.I. Code Ann. tit. 1).\\n\\\"In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.\\\" See also Peacock v. Thomas, 516 U.S. 349, 354, n.5, 133 L. Ed. 2d 817, 116 S. Ct. 862, (1996) (\\\"Congress codified much of the common-law doctrine of ancillary jurisdiction as part of 'supplemental jurisdiction' in 28 U.S.C. \\u00a7 1367\\\").\\nvIt appears that some of these employees may have been rehired. See, Plaintiff's Memorandum in Response to Defendant's Motion to Dismiss, [\\\"Plaintiff's Memorandum\\\"], at 4 n.3.\"}"
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diff --git a/vi/179737.json b/vi/179737.json
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+"{\"id\": \"179737\", \"name\": \"ALEXANDER RAMOS, by and through his legal guardian, JACQUELINE RAWLINS, Plaintiff, v. ABRAMSON ENTERPRISES, INC. and WILLIAM PENNICK, Defendants\", \"name_abbreviation\": \"Ramos ex rel. Rawlins v. Abramson Enterprises, Inc.\", \"decision_date\": \"2000-04-28\", \"docket_number\": \"CIV. NO. 484/1999\", \"first_page\": 11, \"last_page\": \"14\", \"citations\": \"43 V.I. 11\", \"volume\": \"43\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T00:39:30.874643+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ALEXANDER RAMOS, by and through his legal guardian, JACQUELINE RAWLINS, Plaintiff, v. ABRAMSON ENTERPRISES, INC. and WILLIAM PENNICK, Defendants\", \"head_matter\": \"ALEXANDER RAMOS, by and through his legal guardian, JACQUELINE RAWLINS, Plaintiff, v. ABRAMSON ENTERPRISES, INC. and WILLIAM PENNICK, Defendants\\nCIV. NO. 484/1999\\nTerritorial Court of The Virgin Islands Division of St. Croix\\nApril 28, 2000\\nEszart A. Wynter, Sr., Esq., Law Offices of Eszart A. Wynter, Sr., P.C., Frederiksted, St. Croix, U.S. Virgin Islands, for Plaintiff\\nHenry L. Feuerzeig, Esq., Dudley, Topper and Feuerzeig, St. Thomas, U.S. Virgin Islands, for Defendants\\nWILLIAM PENNICK, St. Croix, U.S. Virgin Islands, Pro se\", \"word_count\": \"1271\", \"char_count\": \"7629\", \"text\": \"CABRET, Judge\\nMEMORANDUM OPINION\\n(April 28,2000)\\nThis matter is before the Court on the motion of Defendant, Abramson Enterprises, Inc. (\\\"Abramson\\\") to dismiss the complaint. Abramson contends that the complaint is time-barred. For reasons which follow, the Court disagrees and will therefore deny the motion.\\nI. FACTS AND PROCEDURAL HISTORY\\nThe relevant facts and procedural history are undisputed. On November 15, 1999, Jacqueline Rawlins, as the legal guardian of Alexander Ramos, filed a complaint against the defendants. In the complaint, Rawlins alleged that on January 28, 1997, the defendants negligently caused injuries to Ramos, a minor, while transporting him to his elementary school.\\nII. DISCUSSION\\nAbramson has moved to dismiss the complaint on the ground that is was filed after expiration the two-year statute of limitations applicable to personal injuries. See V.I. Code Ann. tit. 5, \\u00a7 31(5)(A) (1997). Rawlins opposes the motion arguing that the minority of Ramos, on whose behalf she filed the action, tolled the period of limitations. See V.I. Code Ann. tit. 5, \\u00a7 36(a)(1) (1997). Abramson acknowledges that section 36 tolls the period during which Ramos may personally file suit, but argues that it does not toll the period during which a legal guardian can sue. According to Abramson, Rawlins could have sued as guardian within two years of the accident, but because she did not, Ramos must now wait until he reaches the age of majority to assert his cause of action. The Court disagrees.\\nA plain reading of section 36 does not support Abramson's argument. This Code section provides:\\nIf any person entitled to bring an action mentioned in this chapter is, at the time the cause of action accrues (1) under the age of twenty-one years . the time of such disability shall not be a part of the time limited for the commencement of the action, but the period within which the action shall be brought shall not be extended in any case longer than two years after such disability ceases.\\nId. This Code section, which extends the time limit in which a minor may commence a civil action, does not preclude a minor's representative from suing on behalf of the minor during the period of disability. Likewise, Federal Rule of Civil Procedure 17(c), which authorizes a guardian to sue on behalf of an infant, does not impose the restriction urged by Abramson in the instant motion.\\nFurthermore, although the Court is unaware of any authority from this jurisdiction that addresses the issue, the Eighth Circuit addressed the question in Johnson v. United States, 87 F.2d 940 (8th Cir. 1937). There, the court rejected the same argument asserted by Abramson in this case, observing that such argument defies public policy and common sense:\\nThe general policy of the law is that causes of action ought to be tried in courts before the evidence is lost and while memory is fresh. It would be strangely lacking in common sense to compel an infant to wait helpless and without possibility of redress for his grievances during the period between the expiration of the limitation barring actions by those of full age and of sound mind and the time of reaching his majority. Such a meaning would not be adopted unless compelled by statutory language of unmistakable import. The reasonable construction of the section is that the action may be maintained by the minor at any time before it is finally barred. That is the conclusion reach by all courts, so far as we are aware, where the question has been raised.\\nId. at 943. Considering the plain language of the tolling statute, the policy considerations and what appears to be the rule in the majority of jurisdictions, the Court concludes that Rawlins' suit, filed on behalf of Ramos, is not barred by the two-year statute of limitations.\\nThe authority relied upon by Abramson does not require a different result. In Hatchette v. West Indian Co., 1980 U.S. Dist. LEXIS 8945, 17 V.I. 549 (D.V.I. 1980), the only case cited by both parties, the district court considered the implications of section 36 on a minor plaintiffs suit under the Virgin Islands wrongful death statute. In Hatchette, the minor plaintiff filed a wrongful death suit under title 5. section 76(d) of the Virgin Islands Code. Under the wrongful death statute, the action must have been \\\"brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate[.]\\\" V.I. Code Ann. tit. 5, \\u00a7 76(d) (1997). The claim was undisputedly filed more than two years after the cause of action accrued, and the defendant moved to dismiss based on the applicable two-year statute of limitation. The plaintiff opposed the motion arguing that, inter alia, the limitations period was tolled because she was a minor. In rejecting the plaintiffs argument, the court said: \\\"the flaw in plaintiffs argument . is that her disability does not extend to the personal representative authorized to bring suit.\\\" Hatchette, 17 V.I. at 551.\\nAlthough Abramson relies on this seemingly broad statement in support of its argument that the tolling provision at issue does not extend to the guardian in the instant case, a close reading of the statutes shows that the ruling in Hatchette must be limited to its facts. In Hatchette, the minor plaintiff was not the decedent's personal representative but merely, as stated by the court, a statutory beneficiary under the wrongful death act. Section 36, the tolling provision upon which the plaintiff relied, tolls the limitation period only for the \\\"person entitled to bring an action.\\\" title 5, \\u00a7 36(a). The wrongful death statute clearly differentiates between the person who is entitled to bring an action and a person who is a beneficiary of the action. See Title 5, \\u00a7 76(d). Because the plaintiff in Hatchette was merely a statutory beneficiary and was therefore not entitled to bring the action, the tolling provision of section 36(a) would not, as stated by the court, extend to the personal representative authorized to bring suit. See Gomez v. Leverton, 19 Ariz. App. 604, 509 P.2d 735 (Ariz. Ct. App. 1973) (analyzing almost identical statutes and cited in Engle Brothers, Inc. v. Superior Court of Pima, 23 Ariz. App. 406, 533 P.2d 714 (Ariz. Ct. App. 1975), which was relied on by the district court in Hatchette). Because the wrongful death statute is not at issue here, the reasoning in Hatchette does not apply.\\nIII. CONCLUSION\\nFor the reasons stated above, the Court concludes that this action is not barred by the statute of limitations. Rawlins filed the action as the legal guardian of Ramos, a minor. Under Virgin Islands law, the statute of limitations is tolled due to the disability of a person under the age of 21 years. In this case, the tolling provision allowed Rawlins to file the action during Ramos' period of disability.\\nORDER\\nTHIS MATTER is before the Court on a Motion to Dismiss filed by Defendant, Abramson Enterprises, Inc. For the reasons stated in the Court's Memorandum Opinion of the same date, it is hereby\\nORDERED that Defendant's Motion to Dismiss is DENIED.\"}"
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diff --git a/vi/233209.json b/vi/233209.json
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+"{\"id\": \"233209\", \"name\": \"SENATOR ALICIA HANSEN, JOSE RODRIGUEZ, and JAMES DOVER, Plaintiff v. UNITED STATES OF AMERICA, NATIONAL PARK SERVICE, GOVERNMENT OF THE VIRGIN ISLANDS and GOVERNOR CHARLES W. TURNBULL, Defendants\", \"name_abbreviation\": \"Hansen v. United States\", \"decision_date\": \"2000-02-29\", \"docket_number\": \"Civ. No. 1999-166\", \"first_page\": 456, \"last_page\": \"460\", \"citations\": \"42 V.I. 456\", \"volume\": \"42\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T23:39:38.818568+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SENATOR ALICIA HANSEN, JOSE RODRIGUEZ, and JAMES DOVER, Plaintiff v. UNITED STATES OF AMERICA, NATIONAL PARK SERVICE, GOVERNMENT OF THE VIRGIN ISLANDS and GOVERNOR CHARLES W. TURNBULL, Defendants\", \"head_matter\": \"SENATOR ALICIA HANSEN, JOSE RODRIGUEZ, and JAMES DOVER, Plaintiff v. UNITED STATES OF AMERICA, NATIONAL PARK SERVICE, GOVERNMENT OF THE VIRGIN ISLANDS and GOVERNOR CHARLES W. TURNBULL, Defendants\\nCiv. No. 1999-166\\nDistrict Court of the Virgin Islands Division of St. Croix\\nFebruary 29, 2000\", \"word_count\": \"1405\", \"char_count\": \"8705\", \"text\": \"ORDER DENYING PLAINTIFFS' MOTION TO REALIGN THE V.I. GOVERNMENT FROM DEFENDANT TO PLAINTIFF\\nTHIS MATTER is before the Court on Plaintiffs' Motion to Realign the Virgin Islands Government from Defendant to Plaintiff. The government filed opposition to the motion and the Plaintiffs filed a reply thereto.\\nThis matter was brought initially by plaintiffs as taxpayers, requesting a preliminary injunction to enjoin the defendant National Park Service [NPS] from demolishing a portion of historic property located in Christiansted, St. Croix and turning it into a park. The plaintiffs subsequently filed a Second Amended Corn- plaint, pursuant to, inter alia, 28 U.S.C. \\u00a7 1346(f) and 2409(a), adding the Government of the Virgin Islands and Governor Turnbull as defendants, and alleging that the property belongs to the people of the Virgin Islands. They also claimed that the NFS had a duty to comply with local laws regarding the alteration of historic property.\\nAt the hearing on the injunction the District Court ordered the NPS to continue its work unless the plaintiffs conclusively established that ownership of the subject property rested with the Government of the Virgin Islands. The Court also found that the plaintiffs lacked standing to maintain the action unless the Government of the Virgin Islands was made a party to the lawsuit. The court ordered the plaintiffs to join the Government of the Virgin Islands as a plaintiff. The property has since been made into a park.\\nThe government has refused to join the action as a plaintiff. Indeed, the government has sought dismissal of the action. The plaintiffs having served the government as a defendant, now request that the court realign the government as a plaintiff. The government opposes the request for realignment and steadfastly maintains that the current plaintiffs are not entitled to any relief whatsoever. Additionally, it argues that aligning the government as a plaintiff while leaving the governor as a defendant would \\\"create an untenable position\\\" for the attorney general who is obligated to represent both.\\nThe court must now determine whether the Government of the Virgin Islands should be realigned as a plaintiff in this matter, despite its refusal to do so voluntarily.\\nDISCUSSION\\nThe Federal Rules of Civil Procedure 19(a) allows a party, who is subject to service, to be served and joined as a defendant and then realigned by the Court in the \\\"character which [it] should assume.\\\" International Rediscount Corp. v. Hartford Accident and Indemnity Co., 425 F. Supp. 669, 674 (D. Del. 1977) (quoting Independent Wireless Company v. Radio Corp. of America, 269 U.S. 459, 468, 70 L. Ed. 357, 46 S. Ct. 166 (1926). This procedure was followed by the plaintiffs in this matter.\\nHowever, in deciding whether to realign the government as a plaintiff in this matter, the court is directed to \\\"Took beyond the pleadings and arrange the parties according to their sides in the dispute/\\\" Employers Insurance of Wausau v. Crown Cork & Seal Company, Inc., 905 F.2d 42, 44 (3d Cir. 1990) (quoting Dawson v. Columbia Trust Co., 197 U.S. 178, 180, 49 L. Ed. 713, 25 S. Ct. 420 (1905)). The issue of realignment is generally addressed in the context of diversity cases, however, where the case is based on the existence of a federal question, the Court of Appeals for the Third Circuit has held that alignment turns on the presence of a \\\"substantial controversy\\\". Development Finance Corp. v. Alpha Housing & Health Care, 54 F.3d 156, 159 (3d Cir. 1995); In re Texas Eastern Transmission Corp., 15 F.3d 1230, 1240 (3d Cir. 1994). Thus, as long as the parties with the same \\\"ultimate interests\\\" are on the same side of the controversy, they are aligned properly. Wright, Charles A., Miller, Arthur R., Cooper, Edward H., Federal Practice and Procedure, \\u00a7 3607 (1984).\\nApplying this analysis this court finds that the current plaintiffs and the government do not share the same interest in this matter. At the hearing on the preliminary injunction it became apparent that the plaintiffs lacked standing to bring the suit. The District Judge's order directing them to join the government as a party plaintiff implicitly assumed that the government shared plaintiffs' position. However, the government has indicated no interest in becoming a plaintiff in this matter and has, instead, sought dismissal of the suit asserting that the current plaintiffs are not entitled to any relief. The government states that the Governor, as Chief Executive Officer, \\\"has no intention to pursue litigation against the United States over this matter.\\\"\\nAlthough the plaintiffs argue that the government is somehow obligated to participate in the suit \\\"on behalf of the people of the Virgin Islands\\\" the reasoned opinion of the government, through its delegated representative, is that there is no dispute between it and the NPS or the United States of America. In the absence of any controversy, far less a substantial controversy with the United States defendants, this court finds that realigning the government with the present plaintiffs would not serve the purpose of the rule requiring parties with the same interest to be on the same side of a dispute.\\nMoreover, the plaintiffs are seeking to realign only the government as a plaintiff. The government argues that this would leave the Governor as a defendant, creating an untenable situation for the Attorney General who has a legal duty to defend them both. In defense of their position, plaintiffs cite United States v. Interstate Commerce Commission, et. al., 337 U.S. 426, 93 L. Ed. 1451, 69 S. Ct. 1410 (1949) for the proposition that the attorney general may represent the government as both plaintiff and defendant. However, that case involved a true dispute, while the instant case does not. In Interstate Commerce Commission the United States, in its capacity as a shipper, sued the Department of Commerce challenging the Department's decision ordering the United States to pay charges to certain railroad companies for services which the railroads refused to perform. The United States was also made a defendant because of the statutory requirement that, in a suit against the Commerce Department, the United States must be joined as a statutory defendant. The court had no difficulty finding that the United States' challenge of the Commerce Department's actions constituted a \\\"justiciable controversy\\\":\\n\\\"While this case is United States v. United States et. al., it involves controversies of a type which are traditionally justiciable. The basis question is whether railroads have illegally exacted sums of money from the United States. Unless barred by statute, the Government is not less entitled than any other shipper to invoke administrative and judicial protection. . . . The order [issued by the Commission] if valid would defeat the Government's claim to that money. But the government charged that the order was issued arbitrarily and without substantial evidence. This charge alone would be enough to present a justiciable controversy.\\\"\\nId. at 430.\\nIn this case, however, there is no dispute between the Government of the Virgin Islands and the Governor concerning this matter. The Attorney General has determined that this is not an appropriate case for the government to pursue. Moreover, the plaintiffs can cite to no statute requiring the government and the Governor of the Virgin Islands to be placed on opposite sides in an action brought pursuant to 28 U.S.C. \\u00a7 1346(f). Thus, in the absence of a real controversy or a statutory mandate, granting the plaintiffs' motion is not appropriate.\\nAccordingly, it is hereby\\nORDERED that the motion to realign the Government of the Virgin Islands as plaintiff is DENIED.\\n\\\"The district courts shall have exclusive original jurisdiction of civil actions under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States.\\\"\\nSee, Government of the V.I. Defendants' Answer to Second. Amended Complaint filed January 18, 2000. The United States of America has also filed a motion to dismiss based on plaintiffs' lack of standing.\\nThe government also maintains that plaintiffs have provided no evidence that the government owns the subject property other than the opinion of a former counsel to a former governor, which has no legal effect and is not binding on this Administration.\"}"
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diff --git a/vi/236482.json b/vi/236482.json
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+"{\"id\": \"236482\", \"name\": \"PANTHEON ENTERPRISES, INC., Plaintiff v. HOTEL ON THE CAY TIMESHARING ASSOCIATION, INC., et al., Defendants\", \"name_abbreviation\": \"Pantheon Enterprises, Inc. v. Hotel on the Cay Timesharing Ass'n\", \"decision_date\": \"1999-08-20\", \"docket_number\": \"Civil No. 553/1998\", \"first_page\": 104, \"last_page\": \"114\", \"citations\": \"41 V.I. 104\", \"volume\": \"41\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T21:10:00.309491+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"PANTHEON ENTERPRISES, INC., Plaintiff v. HOTEL ON THE CAY TIMESHARING ASSOCIATION, INC., et al., Defendants\", \"head_matter\": \"PANTHEON ENTERPRISES, INC., Plaintiff v. HOTEL ON THE CAY TIMESHARING ASSOCIATION, INC., et al., Defendants\\nCivil No. 553/1998\\nTerritorial Court of the Virgin Islands Div. of St. Croix\\nAugust 20, 1999\\nStacy L. White, Esq., St. Croix, U.S.V.I., for Plaintiff\\nEllen G. Donovan, Esq., St. Croix, U.S.V.Ifor Defendant Association\\nDonovan M. Hamm, Jr. Esq., St. Croix, U.S.V.I., for Individual Defendants\\nRichard Hunter, Esq., (Hunter, Colianni, Cole & Turner), St. Croix, U.S.V.I., for Individual Defendants\\nJeffrey Moorhead, Esq., St. Croix, U.S.V.I., for Individual Defendants\\nTodd H. Newman, Esq., (Nichols, Newman, Silverlight, Logan & D'Eramo), St. Croix, U.S.V.I., for Individual Defendants\\nEszart A. Wynter, Esq., (Law Offices of Eszart A. Wynter, Sr., P.C.), St. Croix, U.S.V.I., for Individual Defendants\\nBenedetto Cerilli, Esq., Providence, Rhode Island\\nJim Espoito, Esq., New York, New York\\nArthur H. Fink, Jr., Esq., Milwaukee, Wisconsin\\nMilton Strangler, Esq., Providence, Rhode Island\\nJoe L. Thorpe, Esq., Allentown, Pennsylvania\", \"word_count\": \"3322\", \"char_count\": \"21323\", \"text\": \"CABRET, Judge\\nMEMORANDUM OPINION\\nPantheon Enterprises, Inc. (\\\"Pantheon\\\") sued Hotel on the Cay Timesharing Association, Inc. (\\\"Association\\\"), the owners of vacation timeshare units at Hotel on the Cay and several other entities in an attempt to satisfy a foreclosure deficiency by judicial sale of the defendants' timeshare interests. The matter is before the Court on Motions to Dismiss for failure to state a claim filed by various defendants. For reasons which follow, Defendants' motions are granted.\\nI. MOTION TO DISMISS STANDARD\\nMotions to dismiss for failure to state a claim are governed by Federal Rule of Civil Procedure 12(b)(6). When deciding a 12(b)(6) motion to dismiss, a court must read the complaint in a light most favorable to the plaintiff, and all factual allegations in the complaint must be taken as true. Gov't Guar. Fund of the Republic of Finland v. Hyatt Corp., 35 V.I. 356, 363, 955 F. Supp. 441 (D.V.I. 1997). \\\"However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness.\\\" Id. And, although a court's review of a 12(b)(6) motion is generally restricted to the allegations in the complaint, courts may consider undisputed documents and matters of public record relied upon by the plaintiff even if such documents are not attached to the plaintiff's complaint. Id.\\nII. THE FACTS\\nPantheon's complaint in this case concerns a vacation timeshare community on Protestant Quay, a small island located in St. Croix's Christiansted Harbor. The complaint reveals that Protestant Quay is owned by the Government of the Virgin Islands. In 1964, the Government conveyed a long-term lease of Protestant Quay and its improvements to Hotel on the Cay, Inc. (\\\"Hotel on the Cay Leasehold\\\"). The Hotel on the Cay Leasehold was eventually assigned, to an individual named Oliver Plunkett. On August 4, 1980, Plunkett submitted his Hotel on the Cay Leasehold interests to a timeshare scheme by filing in the land records a document titled \\\"Declaration of Partial Leasehold Ownership Plan Establishing the Hotel on the Cay A Time-Sharing Vacation Ownership Plan\\\" (\\\"Declaration\\\").\\nPantheon relies on the Declaration to establish its rights in this case, and several of its provisions are relevant to the instant motions. Specifically, the Declaration refers to Plunkett as the \\\"'Declarant/\\\" and in the recitals provides that \\\"the Declarant desires to submit a portion of his leasehold estate in [Protestant Quay] and his ownership interest in some, but not all, of the leasehold improvements on such land, to a horizontal property regimef.]\\\" The horizontal property regime established by the Declaration consists of time-share estates. According to the Declaration, a time-share estate is a partial leasehold interest in a particular apartment unit for a specified period of time each year. The Declaration further provides that \\\"[e]ach owner of a timeshare estate in an apartment unit shall also own an undivided leasehold interest in the common elements and the apartment unit's respective interest in the limited common elements as an appurtenance to the ownership of each such time-share estate in the time-sharing vacation ownership plan.\\\" The periods of timeshare ownership, called \\\"unit-weeks\\\" have a minimum duration of seven days. There are a total of 2,912 unit-weeks created by the Declaration. Most of the individual defendants in this case are stateside residents who purchased a time-share estate which entitles them to occupancy of one or more unit-weeks.\\nUnder the Declaration, the operation of the time-share ownership plan is the responsibility of the Hotel on the Cay Time-Sharing Association, Inc. (\\\"Association\\\"). The Association membership consists of all the owners of time-share estates. In its operation and management of the community, the Association has the responsibility and authority to approve annual budgets and levy and collect annual and special assessments from the owners for the common expenses of the time-share property.\\nIn addition to these typical time-share declaration provisions, the Declaration in this case contains a paragraph 21 titled \\\"UNDERLYING MORTGAGES.\\\" Paragraph 21 lies at the heart of this litigation and in its entirety provides:\\nThe Declarant hereby gives notices that there is an existing mortgage on the premises recorded at P.C. page 151, Document number 2893/1979, in the Office of the Recorder of Deeds, Christiansted, St. Croix, U.S. Virgin Islands, in favor of First Bank, N.A. Milwaukee, Wisconsin, in the face amount of $1,735,000.00. All sales of partial leasehold units are subject to this existing mortgage, though the Declarant expressly acknowledges that the payment of this mortgage is exclusively the responsibility of the Declarant, and to that extent the Declarant hereby agrees to indemnify and hold harmless all owners of partial leasehold estates from any claims or liabilities incurred as the result of said mortgage. Further, the Declarant expressly reserves the right to further encumber the entire property in the future and all owners of partial leasehold estates take their interest subject to the Declarant's right to further encumber the property so that all owners of partial leasehold estates expressly agree in advance to subordinate their interests to such future encumbrances incurred by the Declarant. This paragraph is to be strictly construed and applied only to mortgages voluntarily incurred by the Declarant and to no other debts or liabilities which may be imposed against the Declarant.\\nAfter Plunkett recorded the Declaration, he apparently sold numerous time-share estates in Hotel on the Cay. Plunkett ultimately declared bankruptcy, however, and on October 16,1986 the bankruptcy trustee conveyed Plunkett's Hotel on the Cay Leasehold to Harborfront Properties, Inc. (\\\"Flarborfront\\\"). On December 28, 1990, Harborfront executed a mortgage in favor of lender Fairway Capital Corporation (\\\"Fairway\\\"), securing the repayment of a $1,700,000 note with its Hotel on the Cay Leasehold (\\\"the mortgage\\\"). According to the complaint, the mortgage was recorded on January 9, 1991.\\nThe Hotel on the Cay Leasehold and the mortgage were both subsequently assigned to other parties. Harborfront conveyed the Hotel on the Cay Leasehold, subject to the mortgage, to Legend Resorts, L.P. (\\\"Legend\\\"). The plaintiff in this case, Pantheon, was ultimately assigned the mortgage. In 1994, Pantheon foreclosed the mortgage, and the timeshare interests owned by Legend were sold at foreclosure sale on May 2, 1997. In its complaint in this case, Pantheon alleges that the Order Confirming Sale left a deficiency of $589,462. Pantheon further alleges that \\\"pursuant to the subordination of timeshare interests provided for by the Declaration and paragraph 20 of the Harborfront mortgage to Fairway, [Pantheon] now seeks to recover this deficiency by sale of individually named Defendants' timeshare interests as more fully set forth herein.\\\" In its prayer for relief, Pantheon requested, inter alia, that the mortgage\\nbe recognized as superior to the Declaration and the interests created thereunder; [and] that the leasehold timeshare units, and personal property of Defendants be sold free and clear of any of the liens of the Defendants and that all the Defendants be barred from any rights or claims against the Leasehold or under the Declaration; [and] that upon sale, the purchaser may join with the owner of the Hotel on the Cay timeshare units previously sold at Marshal's sale . . . and terminate the timeshare program, with said Declaration to be canceled and of no further force and effect[.]\\nNumerous individual time-share estate owners have been served with the complaint and filed answers, pro se. In most of these answers, the time-share owners express bewilderment that Pantheon is attempting to foreclose on their interests. The owners state that they have fully paid for their time-share interests and all Association assessments, and thus do not understand the basis for Pantheon's foreclosure action.\\nIII. DISCUSSION\\nThe defendants raise several potent arguments in support of their motion to dismiss. For instance, they argue that Harborfront never acquired the right to encumber the Association's interests or those of the individual time-share estate owners. In this regard, the defendants argue that while paragraph 21 of the Declaration purportedly gave the declarant the right to further encumber the time-share estates purchased by the defendants, the Declaration defines the \\\"Declarant\\\" as Oliver Plunkett, not Harborfront. And, although Harborfront acquired Plunkett's Hotel on the Cay Leasehold from the bankruptcy trustee, the Association contends that this acquisition did not result in Harborfront becoming a successor declarant. In support of this contention, the Association points out that the Declaration was never amended to name Harborfront as the declarant and according to its terms, paragraph 21 is to be \\\"strictly construed and applied only to mortgages voluntarily incurred by the Declarantf.] All the motions echo similar arguments, namely that Harborfront never had the authority to encumber the defendants' time-share estates, and even if it had such authority, the mortgage does not purport to encumber these interests.\\nThe Court need not reach these arguments, however, because it agrees with the defendants' other contention that paragraph 21 of the Declaration violates Virgin Islands law. Specifically, title 28, section 913 of the Virgin Islands Code, titled \\\"Blanket mortgages and other blanket liens affecting an apartment at time of first conveyance,\\\" provides:\\nAt the time of the first conveyance or lease of each apartment, every mortgage and other lien affecting such apartment, including the percentage of undivided interest of the apartment in the common areas and facilities, shall be paid and satisfied of record, or; the apartment being conveyed or leased and its percentage of undivided interest in the common areas and facilities shall be released therefrom by partial release duly recorded.\\nV.I. Code Ann. Tit. 28, \\u00a7 913 (1996). Similarly, title 28, section 908 (a) provides that \\\" [subsequent to recording the declaration as provided in this chapter, and while the property remains subject to this chapter, no lien shall thereafter arise or be effective against the property.\\\" Title 28, \\u00a7 908 (a). This latter provision is based on the Model Condominium Act and is fashioned to prevent a developer \\\"from encumbering the interests of others by giving a lien against the whole property once the [declaration] is filed.\\\" Resolution Trust Corp. v. Eagle Lake and Golf Condominiums, 427 S.E.2d 646, 648 (S.C. 1993). A mortgage violating the statute is void. Id. at 647. Inasmuch as the mortgage in this case, recorded on January 9, 1991, arose after the August 4, 1980 recording of the Declaration, it is clearly violative of section 908 and therefore void. Similarly, section 913 clearly prohibits blanket mortgages encumbering the individual apartment units. Thus, to the extent that Harborfront, or its successors, failed to satisfy the mortgage when they sold timeshare estates in the apartment units, these entities violated section 913 and any resulting liens on the units are void. See id.\\nPantheon argues that these provisions are inapplicable in the instant case because they are part of the Virgin Islands Condominium Act (\\\"Condominium Act\\\") and the Declaration did not create a condominium that is subject the restrictions. The Court disagrees.\\n\\\"The term 'condominium,' which is used to describe a system of ownership as well as an individually owned unit in a multi-unit development, is Latin in origin and means joint dominion or co-ownership.\\\" Nahrstedt v. Lakeside Village Condominium Ass'n, 878 P.2d 1275, 1280 (Cal. 1994). This is a hybrid form of ownership under which a unit owner owns not only his or her individual unit but also an undivided share in the community's common areas and facilities. See id.; Noble v. Murphy, 612 N.E.2d 266, 269 (Mass.App.Ct. 1993). Indeed, the Condominium Act defines \\\"condominium\\\" as \\\"real property within given bounds with separate ownership of individual units thereon and with all the unit owners owning, as tenants in common, an interest in the common areas.\\\" VI. Code Ann. tit 28, \\u00a7 901 (I) (1996).\\nA condominium is similar to, but should not be confused with other forms of common interests ownership. For example, a \\\"cooperative\\\" is \\\"a common interest community in which the real estate is owned by an association, each of whose members is entitled by virtue his ownership interest in the association to exclusive possession of a unit.\\\" 8 Rich\\u00e1rd R. Powell, Powell on Real Property, app. 54-14 (1998) (quoting Uniform Common Interest Ownership Act, \\u00a7 1-103 (10)). Either of these forms of ownership may be used in a timeshare community, see, e.g., Guerrero v. Bluebeard's Castle Hotel, Inc. 37 V.I. 344, 982 F. Supp. 343 (D.V.I. 1997), and each has advantages and disadvantages. See Powell, supra at Chap. 54F, \\u00b6 633.65 [4]-[6]. Interestingly, in his treatise on real property, Professor Powell remarks that one of the advantages of a timeshare cooperative is that the \\\"developer may be able to convey the property subject to a favorable existing mortgage, assuming the existing mortgage does not contain a due-on-sales clause. Condominium units, on the other hand, must be delivered to purchasers free and clear of all liens and encumbrances.\\\" Id. at \\u00b6 633.65[6].\\nThe condominium scheme is also described as horizontal property ownership. This is because the \\\"area above land can be divided into a series of strata or planes capable of severed ownership, making the ownership of things affixed to land separable from the ownership of the land itself.\\\" Nahrstedt, 878 P.2d at 1280. The Condominium Act uses the horizontal property ownership description in its requirements for submission to the Act. Specifically, the Condominium Act provides:\\n[ wjhenever the sole owner or sole lessee or all of the owners or all of the lessees of a property expressly declare, through the execution and recordation of a master deed or lease, together with a declaration, which declaration shall set forth the particulars enumerated by section 910 of this title, his or their desire to submit the property to the regime established by this chapter, there shall thereby be established a horizontal property regime with respect to the property, and this chapter shall be applicable to the property. In the event that the master deed or lease is airead}^ recorded, the recordation of the declaration shall be deemed sufficient to achieve the same result.\\nV.I. Code Ann. tit. 28, \\u00a7 902 (1996).\\nIn the instant case, the Declaration reveals that the declarant intended to establish a horizontal property regime in which individuals would own timeshare condominiums. As stated above, in the recitals to the Declaration, the declarant complied with section 902 by expressly declaring his \\\"desire[] to submit a portion of his leasehold estate in [Protestant Quay] and his ownership interest in some, but not all, of the leasehold improvements on such land, to a horizontal property regime[.]\\\" (Emphasis supplied). Under the horizontal property regime expressly created by the declarant, a timeshare owner owns a \\\"partial leasehold interest in a particular apartment unit with the exclusive right of use, possession and occupancy of the apartment unit\\\" and in addition owns \\\"an undivided leasehold interest in the common elements and the apartment unit's respective interest in the limited common elements.\\\" There is no discernable difference between this ownership scheme and that defined as a \\\"condominium\\\" in the Condominium Act. See tit. 28, \\u00a7 901 (I). Each regime contemplates separate ownership of individual units which includes an undivided share in the community's common areas and facilities. Finally, as required by section 902, the Declaration and its exhibits comply with the requirements of section 910. By executing and recording this Declaration, the declarant submitted the timeshare condominium project to the provisions of the Condominium Act. See Maas v. Cabrite Point Condominium Ass'n, 27 V.I. 115, 117 (Terr. Ct. 1992); Dunes South Homeowners Assn, Inc. v. First Flight Builders, Inc., 459 S.E.2d 477, 479 (N.C. 1995).\\nHaving determined that the timeshare regime established by the Declaration is a condominium subject to the Condominium Act, it is clear, as explained above, that Paragraph 21 of the Declaration could not authorize the declarant, or any of his successors, to encumber the timeshare interests of the individual owners. \\\"[T]he provisions of the declaration must conform to the statutory requirements, and to the extent that they conflict therewith, the statute must prevail.\\\" Winkelman v. Toll, 661 So.2d 102, 105 (Fla.App. 1995). See also Dunes South, 459 S.E.2d at 479-480. Furthermore, because the mortgage violated title 28, sections 908 and 913 of the Virgin Islands Code, it is void. See Eagle Lake, 427 S.E.2d at 648.\\nIV. CONCLUSION\\nFor the foregoing reasons, the Court concludes that the defendants' Motions to Dismiss should be granted. The defendants are owners of timeshare condominiums that were submitted by the declarant to the Condominium Act. The Act expressly prohibits blanket mortgages that encumber the interests of individual unit owners. Paragraph 21 of the Declaration and the subject mortgage both violate this prohibition. Because the Condominium Act prevails over Declaration provisions and mortgages that violate the Act, neither document effectively encumbered the interests of the defendants here. Without the mortgage, Pantheon's complaint fails as a matter of law to state a claim upon which relief can be granted.\\nAccording to the recitals of the timeshare declaration, cited infra, the lease will expire in the year 2013.\\nThe Declaration states that there are a total of 56 apartment units contained in two buildings and contains exhibits detailing the layout of each building and the floor plans of the apartment units. Id. at paragraph 2.A; Declaration Exhibits 1-15. In addition, the Declaration states the value of the entire property and that the value of each apartment unit is equal to the proportionate amount square-footage of each apartment and the appurtenant share of the common and limited common elements.\\nThe Declaration states that there are a total of 56 apartment units contained in two buildings and contains exhibits detailing the layout of each building and the floor plans of the apartment units. Id. at paragraph 2.A; Declaration Exhibits 1-15. In addition, the Declaration states the value of the entire property and that the value of each apartment unit is equal to the proportionate amount square-footage of each apartment and the appurtenant share of the common and limited common elements.\\nId. at paragraph 2.E. Paragraph 3 of the Declaration describes the apartment unit boundaries and the common elements and limited common elements appurtenant to each unit.\\nThe term \\\"stateside\\\" is a popular Virgin Islands colloquialism referring to the continental United States.\\nThe Declaration describes the Association as a non-profit corporation, existing under the laws of the Virgin Islands, with its principal office located at Protestant Cay, Christiansted, St. Croix.\\nMembership, voting rights, including the allocation of votes, and the Declaration amendment procedure are explained in paragraphs five and 15 of the Declaration. In addition, the paragraphs 10.C and 16 explain that, in the event the community is damaged or destroyed, \\\" [a]ll of the owners of unit-weeks may remove the time-sharing vacation ownership plan property from the provisions of [the] declaration[.]\\\" Id. at paragraph 16.\\nId. at paragraph 21.\\nId.\\nComplaint at paragraph 22.\\nId. at prayer for relief.\\nDeclaration at paragraph 21.\\nDeclaration at 1. The portion of the leasehold submitted to the Declaration is described in detail in paragraph l.B of the Declaration.\\nfd. at paragraph 2.E. Paragraph 3 of the Declaration describes the apartment unit boundaries and the common elements and limited common elements appurtenant to each unit.\\nSee notes 2-5, supra.\"}"
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+"{\"id\": \"2662417\", \"name\": \"EDWARD FEIN, Plaintiff v. FRANCIS PELTIER, individually, and in his official capacity, SCHULER BROWN, individually and in his official capacity, and the UNITED STATES OF AMERICA, Defendants\", \"name_abbreviation\": \"Fein v. Peltier\", \"decision_date\": \"1996-12-05\", \"docket_number\": \"Civ. No. 1996-201M\", \"first_page\": 344, \"last_page\": \"355\", \"citations\": \"35 V.I. 344\", \"volume\": \"35\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:21:26.611794+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EDWARD FEIN, Plaintiff v. FRANCIS PELTIER, individually, and in his official capacity, SCHULER BROWN, individually and in his official capacity, and the UNITED STATES OF AMERICA, Defendants\", \"head_matter\": \"EDWARD FEIN, Plaintiff v. FRANCIS PELTIER, individually, and in his official capacity, SCHULER BROWN, individually and in his official capacity, and the UNITED STATES OF AMERICA, Defendants\\nCiv. No. 1996-201M\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nDecember 5, 1996\\nAlan Smith, Esq., (Hodge & Francois), for Plaintiff\\nJames Carroll, Esq., (Assistant United States Attorney), and Patricia A. Hooks, Esq., (Office of the Solicitor), for Defendant\", \"word_count\": \"3701\", \"char_count\": \"23002\", \"text\": \"MOORE, Chief Judge\\nMEMORANDUM OPINION\\nEdward Fein [\\\"plaintiff\\\" or \\\"Fein\\\"] has moved for a preliminary and permanent injunction and the defendants have moved to dismiss the action for lack of jurisdiction. An evidentiary hearing was held on September 30 and October 1,1996. At the close of the evidence, the Court ruled from the bench denying plaintiff's motion for an injunction and granting defendants' motion to dismiss on a finding that the Court lacks subject matter jurisdiction over the case. This Memorandum amplifies and clarifies that ruling from the bench.\\nI. Factual and Procedural Background\\nThis case arises out of Mr. Fein's attempt to construct a house on property located in Estate Denis Bay on the island of St. John, United States Virgin Islands. The property in question is part of approximately 94 acres that was conveyed to the United States in 1975 for inclusion in the Virgin Islands National Park [\\\"VINP\\\"] administered under the United States Department of Interior by the National Park Service [\\\"NPS\\\"]. The deed conveying the land to the United States is subject to\\na right of use and occupancy reserved by the Grantors . . .for a period of sixty (60) years . of that area comprising one (1) acre . for noncommercial residential purposes. This right includes the right to construct . . . one single-family residential dwelling of traditional island architecture . The Grantors shall not disturb the historic ruins within the area reserved by them and will cooperate with the National Park Service by permitting representatives of the Service to enter upon the property at reasonable times to perform any necessary stabilization work on the ruins.\\nIt is the intention of the Grantors to convey all of their interest in all parts of Estate Denis Bay . . . and to release to the United States all of their interest therein except such interests as are specifically reserved in this deed.\\nThis land is being acquired by the National Park Service of the United States Department of the Interior for Virgin Islands National Park.\\n(Deed dated September 19, 1975, Defs' Ex. A [\\\"Deed\\\"].)\\nIn 1991, this reserved property right was assigned to the plaintiff, with the consent of the NPS, as required by the Deed. (Consent to Assignment, Pi's Ex. C and Assignment, Pi's Ex. D.) In 1994 Fein applied through the Department of Planning and Natural Resources [\\\"DPNR\\\"] for a minor Coastal Zone Management [\\\"CZM\\\"] permit to build a residence on the property covered by the Deed. Although the NPS had not received formal notice, it got wind of Fein's application and put DPNR on notice of the Park Service's interest in the project, (NPS Letter dated Feb. 2, 1994, Defs' Ex. B-l), warned of the project's possible impact on historical ruins on the land, (NPS Letter dated Aug. 11, 1994, Defs' Ex. B-2), and protested that the architectural plans did not conform to the Deed restrictions, (NPS Letter dated Sept. 20, 1994, Defs' Ex. B-2).\\nAlthough no evidence was presented that DPNR ever directly responded to the NPS, Fein was required to adjust the plans to meet traditional island architecture, incorporating the Service's suggestions. (DPNR Letter, Sept. 26, 1994, Pi's Ex. F.) The plans were revised and approved by DPNR, (Callwood-Daniels, Dec. 13, 1994, Pi's Ex. G); the permit was then issued to Fein. An adjoining landowner who had not received proper notice successfully appealed to the Virgin Islands Board of Land Use Appeals [\\\"Board\\\"], the initial permit was voided, and the permitting process started anew.\\nThis time the NPS received an official notice from DPNR on March 11,1996, of Fein's renewed application. (Notice dated March 6, 1996, Defs' Ex. D.) Francis Peltier, Superintendent of the Virgin Islands National Park Group, responded on April 9, 1996, with a letter to Mr. Carl Howard of DPNR which conveyed the findings of NPS employees who visited the site in 1995 and 1996 to determine the potential for disturbance of historical resources.\\nThe proposed construction on this site will: . . . likely impact subterranean archaeological resources associated with the plantation, particularly slave quarters. The proposed location. . . will be in an area adjacent to 5 existing ruins of slave quarter. The original 1850 Estate Appraisement indicates that an additional 26 slave quarters existed on the plantation and historically [sic] knowledge indi cates that all slave quarters were located in close approximation [sic]. Furthermore, existing drawings show that a water well and horsemill existed in the area proposed to be disturbed, not shown on some construction plans for the area. Other unknown features such as burials may also exist at that location.\\nBecause this property is owned by the NPS and significant historical disturbance is highly probable for construction at this location, the National Park Service cannot permit any construction at this site at this time. We also request that the . . . [DPNR] notify Mr. Fein that NPS National Historic Preservation Act Section 106 Compliance procedures must be implemented to determine the exact nature and extent of any site disturbance to historical features at this location. . . .\\n(Pi's Ex. I.) Peltier then informed DPNR that \\\"it is imperative that this application for a Minor Coastal Zone Permit not be approved at this time\\\" and that the NPS cultural resource compliance staff immediately would be initiating the section 106 compliance procedures required by the National Historic Preservation Act, 16 U.S.C. \\u00a7 470f.\\nWithout any response from DPNR to Peltier's April 9th letter, and before the NPS could complete the section 106 compliance procedures, DPNR issued the minor coastal zone permit on June 3, 1996, to \\\"construct one single family residence . at plot # 3A, Estate Denis Bay, St. John, Virgin Islands.\\\" (Pi's Ex. J.) In a letter dated June 28, 1996, the Commissioner of DPNR, Beulah Dalmida-Smith, finally responded to the NPS communications, informing Peltier after the fact of the reasons the permit was granted, which included DPNR's conclusion that section 106 did not apply because the construction of the dwelling was not a federal undertaking. (Pi's Ex. K. at pp. 3-4, 6.) Peltier responded that the National Historic Preservation Act was applicable and that the National Park Service was bound to follow applicable federal statutes and regulations and was not bound by DPNR's conclusions. (Letter dated Aug. 13, 1996, Pi's Ex. L.)\\nOn September 1, 1996, Fein's contractor began site preparation for construction of the residence. On September 6, 1996, Peltier addressed a letter to Fein stating that \\\"Section 106 of the National Historic Preservation Act applies to this proposed action,\\\" and further that\\n[t]he National Park Service has an obligation under the law to protect the cultural and natural resources under its jurisdiction. We therefore must inform you that work to construct the structure is potentially in violation of the Archeological Resources Protection Act (ARPA) and may result in your being cited for a felony. If you continue construction before acceptable resolution of this matter, we will have no recourse but to cite you for ARPA violation.\\n(Pi's Ex. E.) On September 9, 11, and 12, 1996, VINP enforcement officers entered the construction site and ordered plaintiff's contractor to cease all site preparation activities. Workers on the site were told that they would \\\"go to jail\\\" if work was not stopped and all activities ceased.\\nOn September 16, 1996, Fein brought this lawsuit seeking equitable relief, including a temporary restraining order. Plaintiff alleged in his first amended complaint that the actions of these representatives of the United States constituted a taking of his property without due process of law in violation of the Fifth Amendment of the Constitution. Fein asserted that this Court has jurisdiction under 28 U.S.C. \\u00a7 1331 and the government has waived sovereign immunity under the Administrative Procedure Act, 5 U.S.C. \\u00a7 702. The government argued that judicial review under section 702 of the Administrative Procedure Act is available only for \\\"final agency actions,\\\" and that the plaintiff has not exhausted his administrative remedies.\\nOn September 19, a hearing was held and a temporary restraining order was issued allowing certain aspects of Fein's project to proceed subject to certain conditions, which included not disturbing any of the historic ruins. A hearing on the preliminary and permanent injunction was then held on September 30 and October I, 1996, during which it was revealed that the contractor had disturbed some of the historic ruins by moving an historical stone wall. The Court ruled from the bench that a permanent and preliminary injunction would not be issued, and the matter would be dismissed for lack of subject matter jurisdiction. In addition the Court ruled that even if it had proper jurisdiction, the plaintiff would not be entitled to equitable relief because he had not come into court with clean hands.\\nII. Discussion\\nThe issue of the Court's jurisdiction turns on whether the National Historic Preservation Act of 1966, 16 U.S.C. \\u00a7 470 - 470x-6 [\\\"NHPA\\\"], and the Archaeological Resources Protection Act, 16 U.S.C. \\u00a7 470aa-mm ,[\\\"ARPA\\\"] are applicable. If applicable, this Court has jurisdiction under section 702 of the Administrative Procedure Act only if the plaintiff has exhausted his administrative remedies. The Court has found that NHPA and ARPA are applicable and that the plaintiff has not exhausted his administrative remedies. Accordingly, the case must be dismissed for lack of subject matter jurisdiction.\\nA. Applicability of the NHPA\\nThe Court concluded that the Section 106 Compliance Procedures of the National Historic Preservation Act apply to Mr. Fein's project for two reasons: (1) the NPS is required to manage and maintain property it owns to preserve historic, archeological, architectural and cultural values in compliance with section 106 and (2) the NPS is required by section 106 itself to take into account the effect Mr. Fein's undertaking will have on a site listed in the National Register, on which the Denis Bay property is included.\\nWe first note that the goal of the NHPA is\\nto provide the citizens of our nation with an understanding and appreciation of their cultural origins and heritage. It is to foster a long-range perspective of our human use of the land and its resources, of the development of our communities and politics, of our technologies and arts. It is directed toward protection and enhancement of modern remnants of our architectural and engineering traditions \\u2014 for our immediate appreciation and use \\u2014 and of the heritage information that is inherent in our prehistoric and historic resources \\u2014 which serve to tie us to the lessons and achievements of the past.\\nH.R. Rep. No. No. 1457, 96th Cong., 2nd Sess. (1980), reprinted in 1980 U.S.C.C.A.N. 6378; see also 16 U.S.C. \\u00a7 470-l(3)(\\\"It shall be the policy of the Federal Government . to administer federally owned, administered, or controlled prehistoric and historic resources in a spirit of stewardship for the inspiration and benefit of present and future generations.\\\").\\nSection 110(a) of NHPA, 16 U.S.C. \\u00a7 470h-2(a), affirmatively requires that the NPS manage and maintain property it has jurisdiction over in accordance with section 106, 16 U.S.C. \\u00a7 470f, as well as projects which require NPS approval. Section 110(a)(2)(B) requires that\\n(1) The heads of all Federal agencies shall assume responsibility for the preservation of historic properties which are owned . by such agency. . . . Each agency shall undertake, consistent with the preservation of such properties and the mission of the agency . . . , any preservation, as may be necessary to carry out this section.\\n(2) Each Federal agency shall establish . a preservation program for the . . . protection of historic properties. Such program shall ensure \\u2014\\n(B) that such properties under the jurisdiction . of the agency as are listed in . . the National Register are managed and maintained in a way that considers the preservation of their historic, archeological, architectural, and cultural values in compliance with section 106 [16 U.S.C. \\u00a7 470f]\\n(d) All Federal agencies shall carry out agency programs and projects (including those under which. . . any Federal . . . approval is required) in accordance with the purposes of this Act....\\n16 U.S.C. \\u00a7 470h-2 (a)(1), (2)(B), 2(d)(1996 Supp.) (emphasis added).\\nIt is undisputed that the property in question is owned by the United States for inclusion in the VINP under the administration of the NPS and is listed in the National Register of Historic Places. (See Deed, Defs' Ex. B, and Dennis Bay Historic District, Defs' Ex. F.) Accordingly, the NHPA applies to plaintiff's construction project proposed in the Dennis Bay Historic District, section 106 compliance procedures are required before it can be commenced, and this Court has no jurisdiction to interfere with that administrative procedure at this time, if ever.\\nFurther, section 106 of the NHPA provides in relevant part that\\n[t]he head of any Federal department . . . having the authority to license any undertaking shall,. . . prior to the issuance of any license,. . . take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.\\n16 U.S.C. \\u00a7 470f (emphasis added).\\n\\\"Undertaking\\\" is defined for purposes of NHPA as\\na project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including \\u2014\\n(C) those requiring a Federal . . . approval .\\n16 U.S.C. \\u00a7 470w(7). The definition of 'undertaking' is further refined in the federal regulations promulgated under the act as\\nany project, activity or program that can result in changes in the character or use of historic properties, if any such historic properties are located in the area of potential effects. The project, activity, or program must be . . . licensed or assisted by a Federal agency.\\n36 C.F.R. \\u00a7 800.2(o). In light of the interpretation given in the regulations and by simply parsing the language used by the Congress, the Court construes the statutory definition of undertaking as three separate nouns \\\"under the direct or indirect jurisdiction of a Federal agency\\\" \\u2014 a \\\"project\\\", an \\\"activity\\\", and a \\\"program funded in whole or in part\\\". The Court thus reads the phrase \\\"funded in whole or in part\\\" as modifying only the word \\\"program\\\" and not the nouns \\\"activity\\\" and \\\"project\\\". Accordingly, the Court finds that an undertaking for purposes of section 106 includes a project or activity under the direct or indirect jurisdiction of the NPS which requires its prior approval, regardless of whether the project or activity is funded in whole or in part by the federal government.\\nThe proposed project to construct Fein's home is under at least the indirect jurisdiction of the NPS; it clearly involves the potential for \\\"changes in the character or use of historic properties\\\" set forth in the regulations. Further, the construction of a single family residential home within the Dennis Bay Historical District is conditioned by the terms of the reservation in the Deed that Fein, as successor of the grantors who created the reservation, \\\"shall not disturb the historic ruins within the area reserved by them and will cooperate with the National Park Service by permitting representatives of the Service to enter upon the property at reasonable times to perform any necessary stabilization work on the ruins.\\\" (Deed, Def's Ex. A). The Court construes these restrictions on Fein's reserved property interest to require that he seek and obtain prior approval from the NPS before engaging in any construction authorized under the Deed which might have the potential to disturb historic ruins. Section 106 by its own terms thus applies for this reason to Fein's project under section 110 of the NHPA.\\nAccording to testimony at the hearing from William Cissel, Chief of Cultural Resources of the Virgin Islands National Park Group, the section 106 process has not been completed. (Transcript of Cissel's testimony on Oct. 1, 1996 at 22.) Cissel prepared a section 106 report which concluded that the proposed construction would have an adverse effect on the historical and cultural resources in the area. The report recommended that the project not be allowed to go forward, or in the alternative suggested mitigating measures that could be taken. This report and conclusion was submitted to the State Historic Preservation Officer, the Commissioner of DPNR, in accordance with federal regulations, who subsequently disagreed with the NPS's finding of a potential adverse effect. The report has since been sent to the Advisory Council for review and comment. No final decision about the effect of the construction and whether it can go forward as currently conceived has been rendered by the Advisory Council. Thus Fein has not exhausted his administrative remedies and there has been no final decision for this Court to properly review under section 704 of the Administrative Procedure Act, 5 U.S.C. \\u00a7 704. See generally Bethlehem Steel Corp. v. EPA, 669 F.2d 903 (3d Cir. 1982).\\nB. Applicability of the ARPA\\nThe purpose of the Archeological Resources Protection Act \\\"is to secure, for the present and future benefit of the American people, the protection of archaeological resources and sites which are on public lands . . . .\\\" 16 U.S.C. \\u00a7 470aa(b). Under ARPA, it is unlawful to \\\"excavate, remove, damage or otherwise alter or deface any archaeological resource located on public lands . . . unless such activity is pursuant to a permit issued under section 470cc(h)(2) of this title . . . .\\\" 16 U.S.C. \\u00a7 470ee(a).\\nThe term \\\"public lands\\\" is defined as \\\"(A) lands which are owned and administered by the United States as part of \\u2014 (i) the national park system, . . . and (B) all other lands the fee title to which is held by the United States 16 U.S.C. \\u00a7 470bb(3). Plaintiff argues that the United States does \\\"not own and administer as part of the national park system the Subject Parcel.\\\" (Pi's Mem. dated Sep. 16, 1996, at 12.) However, the plaintiff does not dispute that the United States does in fact hold fee title to the property in question, adding that it is subject to Fein's possessory interest for a term of years. Accordingly, the Court has found that the property is 'public lands' within the meaning of ARPA.\\nPlaintiff also argues that ARPA is not applicable because it is only directed at \\\"purposeful excavation and removal of archeological resources, not excavations which may, or in fact inadvertently do, uncover such resources.\\\" (Pi's Mem. at 12, quoting Attakai v. United States, 746 F. Supp. 1395, 1410 (D.Ariz. 1990).) The Attakai case involved the construction of fences and livestock watering facilities by federal agencies on portions of an Indian reservation. ARPA was inapplicable for many reasons, including the fact that the activities fell within an exemption under ARPA and thus the above quote is mere dicta. Furthermore, the actions of the plaintiff in this case are easily characterized as \\\"purposeful excavation and removal of archaeological resources\\\" inasmuch as Fein was made aware through the language of the Deed that historical ruins were present in the area he proposed to build a house. He and his agents were thus charged with the knowledge that any digging on the site would certainly cause the excavation and removal of archaeological resources, which would be 'purposeful' and not inadvertent. Thus this Court finds that ARPA is applicable and Fein was required to obtain the approval of the NPS before engaging in construction on the historic site.\\nAs with the NHPA, judicial review of the actions of the NPS taken in accordance with ARPA is premature. Since Fein has not even applied for a permit under ARPA, he may not challenge in this Court the Park Service's conclusion that his actions may violate ARPA. The necessary administrative procedures must be followed, and only in the event that such procedures result in an adverse decision to Fein, may he seek judicial review.\\nC. The doctrine of clean hands\\nEven if this Court were to conclude that the AREA and NHPA were inapplicable, equitable relief in the form of an injunction would not be warranted. When it fashioned the terms of the TRO, this Court made it very clear to plaintiff that the proposed site preparation he was asking the Court to allow pending the preliminary injunction hearing must not disturb any of the existing and known historical ruins. Contrary to the Court's clearly expressed direction, the plaintiff nevertheless removed a portion of one of the historical stone walls on the site. Given the Deed and the circumstances of this case, this destruction of a historical ruin during the time of the TRO cannot be characterized as inadvertent. It is a long established rule of equity that those who come into the Court seeking equity must do equity. Mr. Fein's actions demonstrate that he has not conducted himself with the equity which would entitle him to equitable relief. Accordingly, even if jurisdiction were well founded, injunctive relief would not be granted.\\nENTERED this 5th day of December, 1996.\\nORDER\\nFor the reasons stated at the hearing concluded on October 1, 1996, and for the reasons set forth in the accompanying memorandum of even date, it is hereby\\nORDERED that defendant's motion to dismiss the case for lack of subject matter jurisdiction is GRANTED.\\nENTERED this 5th day of December, 1996.\\nAlthough the letter was dated June 28, 1996, NPS did not receive it until August 1, 1996. (See NPS response of Aug. 13, 1996, Pi's Ex. L.)\\nThe Fifth Amendment to the Constitution is made applicable in the Virgin Islands via section 3 of the Revised Organic Act. The Revised Organic Act of 1954 is found at 48 U.S.C. \\u00a7 1541-1645 (1995), reprinted in V.I. Code Ann., Historical Documents, 73-177 (codified as amended) (1995) [\\\"Revised Organic Act\\\"].\\nSection 702 provides that \\\"a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action . is entitled to judicial review thereof.\\\" 5 U.S.C. \\u00a7 702.\\nThe procedures for complying with section 106 are found in the detailed regulations promulgated by the Advisory Council on Historic Preservation [\\\"Advisory Council\\\"], 36 C.F.R. \\u00a7 800.3 - 800.9.\"}"
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+"{\"id\": \"2662752\", \"name\": \"BARCLAYS BUSINESS CREDIT, INC., Plaintiff v. FOUR WINDS PLAZA PARTNERSHIP and QUINCY CORPORATION, Defendants\", \"name_abbreviation\": \"Barclays Business Credit, Inc. v. Four Winds Plaza Partnership\", \"decision_date\": \"1996-09-19\", \"docket_number\": \"Civ. No. 96-136M\", \"first_page\": 201, \"last_page\": \"212\", \"citations\": \"35 V.I. 201\", \"volume\": \"35\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:21:26.611794+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BARCLAYS BUSINESS CREDIT, INC., Plaintiff v. FOUR WINDS PLAZA PARTNERSHIP and QUINCY CORPORATION, Defendants\", \"head_matter\": \"BARCLAYS BUSINESS CREDIT, INC., Plaintiff v. FOUR WINDS PLAZA PARTNERSHIP and QUINCY CORPORATION, Defendants\\nCiv. No. 96-136M\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nSeptember 19, 1996\\nJoseph Bruce Wm. Arellano, Esq., St. Thomas, U.S.V.I., W. Michael Bond, Esq., James W. Robertson, Esq., (Weil, Gotshal & Manges LLP), Washington, D.C., for Plaintiff Barclays Business Credit, Inc.\\nJohn K. Dema, Esq., (Law Offices of John K. Dema, P.C.), Christiansted, St. Croix, U.S.V.I., for Defendant Four Winds Plaza Partnership\\nTom Bolt, Esq., (Tom Bolt & Associates, P.C.), St. Thomas, U.S.V.I., for Defendant Quincy Corporation\", \"word_count\": \"4215\", \"char_count\": \"25765\", \"text\": \"BROTMAN, Judge\\nThis is an action for recovery on a debt. On July 2, 1996, upon motion of plaintiff Barclays Business Credit, Inc. (\\\"Barclays\\\"), the Court issued a Temporary Restraining Order (\\\"TRO\\\") which enjoined defendants' use of settlement proceeds that defendant Four Winds Plaza Partnership (\\\"Four Winds\\\") reportedly received in another litigation (the \\\"Settlement Proceeds\\\"). Before the Court presently is Barclays' motion for a preliminary injunction continuing restraints with regard to the Settlement Proceeds. For the reasons stated below, the Court denies Barclays' motion.\\nI. FACTUAL BACKGROUND\\nIn 1993, Barclays extended a loan to Four Winds in the principal amount of $6,484,961.20 (the \\\"1993 Loan\\\"). Comp. \\u00b6 12. The 1993 Loan is reflected in a loan agreement and an installment note (the \\\"1993 Note\\\"). See id.-, Ex's. E and F to Barclays' Mot. for a TRO. (Exhibits from the TRO motion are hereinafter cited without reference to that motion.) The 1993 loan was for a term of one year, maturing on July 20, 1994. Comp. \\u00b6 13. As security for the 1993 Loan, Four Winds executed a first priority mortgage (Ex. G); a general security agreement in favor of Barclays which invokes Article 9 of the Virgin Islands Commercial Code (the \\\"1993 Security Agreement\\\"); a subordination agreement (Ex. I); and a conditional assignment of leases, rents and general revenues (the \\\"1993 Assignment of Rents\\\"; Ex. J). Barclays filed a Form UCC-1 Financing Statement. See Comp. \\u00b6 18; Quincy Mem. in Opp'n to Mot. for Prelim. Inj. (\\\"Quincy Opp'n\\\") at 3.\\nThe parties disagree about the contents of the 1993 Security Agreement. Barclays contends that the 1993 Security Agreement provides it with a security interest in \\\"general intangibles\\\" of Four Winds. Barclays' Reply to Defs.' Opp'ns to Mot. for Prelim. Inj. at 3-4. In support of this argument, Barclays has produced a copy of the 1993 Security Agreement in which a box is checked listing general intangibles as included in the secured collateral. Id. at 4. Barclays states that this copy of the agreement is from the files of the law firm of Dudley, Topper & Feuerzeig. Id. At the time it filed its Complaint and Memorandum in Support of its Motion for a TRO, Barclays had provided the Court with a different copy of the agreement in which the box in question was not checked. Ex. H. Defendants have cited this copy with the unchecked box in arguing that the 1993 Security Agreement did not include general intangibles in the secured collateral. Opp'n of Four Winds to PTs Mot. for Prelim. Inj. at 3; Quincy Opp'n at 3.\\nThe parties also disagree about whether, if Barclays is secured in Four Winds' general intangibles, does this mean that Barclays is also secured in the Settlement Proceeds. The parties agree that Four Winds received monies in settlement of an environmental tort action which Four Winds brought against Esso Standard Oil, S.A., Texaco and other parties alleging that such parties were responsible for contamination of Four Winds' real estate and underlying groundwater which Four Winds had obtained a permit to commercially exploit. Comp. \\u00b6 20. Defendants argue that \\u00a7 9-104(k) of the Virgin Islands Commercial Code (the \\\"Virgin Islands Code\\\"), which follows the Uniform Commercial Code (the \\\"UCC\\\"), excludes proceeds of settlement of a tort claim from the scope of Article 9 of the Code. Barclays argues that \\u00a7 9-104(k) should be read to rule out an Article 9 security interest in unliquidated tort causes of action but not proceeds of tort claims. Barclays claims that Four Winds defaulted on the 1993 Loan in July 1994 by failing to repay amounts due on the 1993 Note at maturity. As a result, Barclays contends, Four Winds is presently indebted to Barclays in an amount in excess of $6,779,504.97. Comp. \\u00b6 22.\\nBarclays filed the instant action on June 25, 1996, for injunctive relief with regard to the Settlement Proceeds, enforcement of Barclays' security interest, enforcement of an assignment of rents, and a money judgment against Four Winds and Quincy Corporation (\\\"Quincy\\\"), jointly and severally. Barclays has alleged in its Complaint that Quincy is the sole general partner of Four Winds, and both defendants have stated that \\\"Quincy Corporation is the general partner of Four Winds.\\\" Comp. \\u00b6 4, 26, and 47; Four Winds Answer at 2; Quincy Answer at 1.\\nBarclays moved for a TRO concerning the Settlement Proceeds. The Court heard argument on the motion on June 27,1996. On July 2,1996, the Court issued a TRO: a) enjoining Four Winds, Quincy, and their partners, agents, servants, employees, attorneys, representatives and any persons acting in concert or participation with them who received actual notice of the order from using any of the Settlement Proceeds; and b) ordering Four Winds to \\\"segregate all such Settlement Proceeds in Four Winds' possession or control, or that comes into Four Winds' possession or control, into an interest bearing account with a federally insured financial institution within the jurisdiction of the Court and provide to the Court and Barclays the location and amount of Settlement Proceeds so held.\\\"\\nThe Court, with consent of the parties, ordered that the terms of the TRO would remain in full force and effect until a hearing on Barclays' motion for a preliminary injunction. The Court heard the motion on August 15, 1996, and, upon further stipulation of the parties, ordered that the terms of the TRO would remain in full force and effect until it ruled on Barclays' preliminary injunction motion.\\nII. DISCUSSION\\nA. Standard for Preliminary Injunction\\nAn injunction is an \\\"extraordinary remedy which should be granted only in limited circumstances.\\\" American Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994) (citing Frank's GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988)), cert. denied, 115 S. Ct. 1838 (1995). \\\"This proposition is particularly apt in motions for preliminary injunctions, when the motion comes before the facts are developed to a full extent through the normal course of discovery.\\\" Id. at 1427.\\nPursuant to the Third Circuit's test for preliminary injunctions, this Court is to issue such an injunction only if the plaintiff \\\"produces evidence sufficient to convince the district court\\\" that each of four factors favor preliminary relief:\\n1) the likelihood that the plaintiff will prevail on the merits at the final hearing; 2) the extent to which the plaintiff is being irreparably harmed by the conduct complained of; 3) the extent to which the defendant will suffer irreparable harm if the preliminary injunction is issued; and 4) the public interest.\\nNew Jersey Hosp. Assoc, v. Waldman, 73 F.3d 509 (3d Cir. 1995) (quoting American Tel. and Tel. Co., 42 F.3d at 1427). Thus, a failure by Barclays to make the requisite showing regarding any one of these four factors must result in this Court denying its motion for a preliminary injunction. See In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982) (\\\"[A] failure by the moving party to satisfy these prerequisites: that is, a failure to show likelihood of success or a failure to demonstrate irreparable injury, must necessarily result in the denial of a preliminary injunction.\\\")\\nB. Likelihood of Success on the Merits at Final Hearing\\nTo satisfy the first prong of the preliminary injunction test in the Third Circuit, a movant must demonstrate a \\\"reasonable probability of eventual success in the litigation.\\\" Kershner v. Mazurkiezvicz, 670 F.2d 440, 443 (3d Cir. 1982). \\\"It is not necessary that the moving party's right to a final decision after trial be wholly without doubt; rather, the burden is on the party seeking relief to make a prima facie case showing a reasonable probability that it will prevail on the merits.\\\" Oburn v. Shapp, 521 F.2d 142, 148 (3d Cir. 1975).\\nBarclays' argument that it is likely to succeed on the merits of its money judgment claim is essentially uncontested. Indeed, as Barclays has noted, defendants admit the existence of the 1993 loan and Four Winds' inability to pay the loan back. See Comp. \\u00b6 20, 36; Four Winds Answer at 2; Quincy Answer at 1; Barclays' Reply at 2. Having reviewed Barclays' evidence that Four Winds is in default on the 1993 loan, the Court is convinced that Barclays is indeed likely to obtain a money judgment of at least $6.7 million. See Comp. \\u00b6 47.\\nAdditionally, Barclays has convinced the Court that it is likely that it will obtain a favorable judgment on its assignment-of-rents claim. The 1993 Assignment of Rents strongly supports Barclays' claim. Ex. J; Comp. \\u00b6 43. Indeed, defendants do not deny that Barclays is entitled to the assignment of rents it seeks. Four Winds Answer at 2; Quincy Answer at 2.\\nBarclays has not convinced the Court, however, that it is likely to prevail on the merits of its claim to a security interest in the Settlement Proceeds. Assuming arguendo that Barclays is secured in Four Winds' general intangibles, the Court is not persuaded of Barclays' likelihood of success with its argument that \\u00a7 9-104(k) of the Virgin Islands Code does not exclude tort settlement proceeds from the scope of Article 9.\\nThere is persuasive authority for the proposition that a Virgin Islands court should follow a majority rule of interpretation of a UCC provision when there is a majority rule. Abramson v. Small Business Development Agency, 20 V.I. 167 (D.V.I., 1983); Perez v. Bank of Nova Scotia, 12 V.I. 279 (D.V.I. 274); V.I. Code Ann. tit. 1, \\u00a7 4 (1967). There is no clear majority rule, however, with regard to the issue of whether Article 9 applies to tort proceeds. See In re Ore Cargo, Inc., 544 F.2d 80 (2d Cir. 1976) (holding that an Article 9 security agreement could not bestow a security interest in tort settlement proceeds); In re Monroe County, 29 B.R. 686 (Bankr. S.D.Fla. 1983) (same); Interdevco, Inc., v. Hollywood Federal Savings and Loan Assoc., 523 So.2d 773 (Fla. Dist. Ct. App. 1988) (same); contra In re Phoenix Marine Corp , 20 B.R. 424 (Bankr. E.D.Va. 1982) (holding that \\u00a7 9-104(k) does not exclude tort settlement proceeds from the scope of Article 9); Sicherman v. Falkenberg, 136 B.R. 481 (Bankr. N.D. Ohio 1992) (same). Indeed, Barclays counsel acknowledged at the hearing on the present motion that \\\"it's an unsettled and unusual issue.\\\" Tr. of Oral Arg. on Mot. for Prelim. Inj. at 25.\\n\\\"In the absence of a clear trend in either direction, the district court of the Virgin Islands may apply the 'better rule.' See Edwards v. Born, 792 F.2d 387, 390 (3d Cir. 1986). First the Court will explore the view that tort settlement proceeds are not excluded from the scope of Article 9. In both Phoenix Marine and Sicherman, the respective Bankruptcy Courts drew a distinction between a tort claim and proceeds from a settlement of that tort claim. The courts suggested that whereas \\u00a7 9-104(k) excludes transfers of tort claims, it does not exclude tort settlement proceeds.\\nAn Article 9 Study Committee of the Permanent Editorial Board of the UCC (the \\\"PEB\\\") concluded in a December 1992 report that this was the correct interpretation of Article 9. \\\"In the Committee's view,\\\" the report stated, \\\"existing Article 9 does not exclude a right to payment that derives from a tort claim, such as the right to payment under a settlement agreement or under a promissory note that evidences liability in tort.\\\" PEB Study Group, Uniform Commercial Code Article 9: Report, 1992 A.L.I. and Nat. Conf. of Commissioners on Uniform State Laws at 59. The Committee recommended, \\\"Article 9 or the official comments should be revised to make that result clear.\\\" Id.\\nThe philosophy underlying this view appears to be that \\\"a right to payment that derives from a tort claim\\\" is contractual in nature, and not the basis for a tort claim. Professor Harold R. Weinberg, who served as special advisor to the PEB Article 9 Committee on the issue of Article 9 treatment of tort claims and derivative rights, laid out the argument this way twenty years ago:\\nIn the typical sequence of events, settlement occurs at some point after suit is filed but prior to judgment. In the settlement a tort victim obtains a contractual right to payment from the tortfeasor, or his insurer, which constitutes a new form of intangible personal property derived from the original tort claim. When the tortfeasor or his insurer issues a check to satisfy this obligation another form of derivative property has come into existence \\u2014 the victim-payee's rights on the check. Still another intangible derivative right is produced when the check is cashed or deposited \\u2014 the rights in the fund. While the security assignment of the original tort claim is not within the scope of Article Nine, derivative settlement rights are excluded only if they are 'claim[s] arising out of tort.' Therefore, these rights could constitute original collateral within Article Nine.\\nHarold R. Weinberg, Tort Claims as Intangible Property: An Exploration from an Assignee's Perspective, 64 Ky. L. J. 49, 83 (1975-76); Harold R. Weinberg, Secured Party's Right to Sue Third Persons for Damage to or Defects in Collateral, 81 Com. L. J. 445,448 (Nov. 1976);\\nThis is quite a labored interpretation of \\u00a7 9-104(k). The Court is not convinced that this view on Article 9 treatment of tort settlement proceeds is likely to prevail at final hearing. As Professor Weinberg stated after setting forth the above argument, the language of the subsection would have limited effect if it excluded only tort claims but not derivative or insurance rights. \\\"If the scope provisions of Article Nine, with their accompanying official comments, are construed to include certain rights derived from a tort cause of action, the Code's exclusion of 'any claim arising out of tort' would become meaningless due to the ease with which it could be circumvented by assignment of these rights.\\\" Tort Claims as Intangible Property at 87. See also Weinberg, Harold R., Tort Claims and Related Rights as Article Nine Collateral: Preliminary Outline and Bibliography, in PEB Study Group, Uniform Commercial Code Article 9: Appendices to Report, 1992 A.L.I. and Nat. Conf. of Commissioners on Uniform State Laws at 549-550; William D. Hawkland, Richard A. Lord and Charles C. Lewis, Uniform Commercial Code Series, Sec. 9-104:12 (1996) (\\\"Although an assignment of the right to receive the proceeds of a settlement contract should theoretically constitute a secured transaction, a strong argument can be made that subsection 9-104(k) excludes this assignment as well, since it too would be a transfer of a claim that arose out of a tort.\\\")\\nFurther, as Professor Weinberg also noted, an interpretation including tort settlement proceeds in Article 9 seems to cut against the apparent intent of the drafters of \\u00a7 9-104(k). See Tort Claims as Intangible Property, 87-89. The Official Comment to \\u00a7 9-104(k) states that tort claims \\\"do not customarily serve as commercial collateral.\\\" V.I. Code Ann. tit 11A, \\u00a7 9-104, Uniform Laws Comments (1967); . Professor Grant Gilmore, one of the primary drafters of Article 9, wrote in a treatise that tort claims were specifically excluded from Article 9 as \\\"beyond the pale with respect to a statute devoted to commercial financing.\\\" 1 Grant Gilmore, Security Interests in Personal Property \\u00a7 10.7 (1965); see also Tort Claims as Intangible Property at 87 (noting that Professor Gilmore was \\\"intimately involved in the development of the Article\\\"). In Ore Cargo, Chief Judge Kaufman of the Second Circuit cited this comment from Professor Gilmore in finding tort settlement proceeds excluded from Article 9. Ore Cargo, 544 F.2d at 82.\\nMany take issue with the broad scope of \\u00a7 9-104(k). The PEB Article 9 Committee, for example, stated in its 1992 report that \\\"the Committee sees little reason to continue the general exclusion of tort claims that otherwise are assignable under non-UCC law.\\\" PEB Report at 59. The Committee noted that \\\"in many jurisdictions tort claims are assignable if they arise out of injury to property or breach of contract, but are not assignable if they result from injury to the person or reputation.\\\" PEB Report at 58. Similarly, Professor James White and Robert Summers state in a leading treatise that they \\\"see no good reason\\\" for the exclusion of otherwise assignable commercial tort claims from Article 9. 4 James J. White and Robert S. Summers, Uniform Commercial Code (4th ed. 1995). In April of this year, the Council to the Members of the American Law Institute released a discussion draft of a revised Article 9 which limited the exclusion to personal injury tort claims. Uniform Commercial Code Revised Article 9: Discussion Draft (April 16, 1996), 1996 A.L.I. and Nat. Conf. of Commissioners on Uniform State Laws at \\u00a7 9-104(11). To date, however, \\u00a7 9-104(k) excludes from Article 9 \\\"any claim arising out of tort.\\\" V.I. Code Ann. tit. 11A, \\u00a7 9-104(k) (1967) (emphasis added).\\nIn failing to persuade the Court of its likelihood of success on its Settlement Proceeds claim, Barclays has failed to convince the Court that the \\\"likelihood of success\\\" factor of the four-part injunction test favors the preliminary injunction Barclays seeks. Barclays' Settlement Proceeds claim is central to this litigation; indeed, each of the counts of Barclays' Complaint incorporates its Settlement Proceeds claim. Counts I and II of the Complaint specifically request that the Court order Four Winds to pay the Settlement Proceeds to Barclays. Comp. \\u00b6 37-41. Moreover, it is clear that a final determination regarding whether Barclays holds a security interest in the settlement proceeds is likely to \\\"materially alter the expected value\\\" of any judgment for Barclays in this case. See Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 201 n.22 (3d Cir. 1990).\\nAccordingly, the Court finds that the \\\"likelihood of success\\\" prong does not favor issuance of a preliminary injunction.\\nC. Irreparable Harm\\nA movant's burden with regard to establishing irreparable harm is quite heavy. \\\"More than a risk of irreparable harm must be demonstrated. The requisite for injunctive relief has been characterized as a 'clear showing of immediate irreparable injury/ or a 'presently existing actual threat; [an injunction] may not be used simply to eliminate a possibility of a remote future injury. . Acierno v. New Castle County, 40 F.3d 645, 655 (3d Cir. 1994) (citations omitted) (quoting Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 358 (3d Cir. 1980)).\\nAgainst the background of this exacting standard, \\\"[t]here is ample authority for the proposition 'that the unsatisfiability of a money judgment can constitute irreparable injury' for the purposes of granting a preliminary injunction.\\\" Gerardi v. Pelullo, 16 F.3d 1363, 1373 (3d Cir. 1994) (quoting Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 205-206 (3d Cir. 1990)). A finding of irreparable harm is warranted where the Court concludes that a money judgment \\\"probably would go unsatisfied\\\" absent issuance of the injunctive relief sought. Id.\\nWhereas Barclays has made a strong case that \\\"Four Winds' assets are dramatically insufficient to repay Four Winds' obligations to Barclays,\\\" Comp. \\u00b6 36 and Defs.' Answers, it has not made this case with regard to the assets of Quincy, whom it seeks to hold liable jointly and severally with Four Winds on its money judgment count. See Comp. \\u00b6 45-47.\\nAs stated above, the parties agree that Quincy is the general partner of Four Winds. Accordingly, Barclays is correct that \\\"Quincy, as the sole general partner of Four Winds, is jointly and severally liable with Four Winds for Four Winds' obligations to Barclays,\\\" if liability is found. Comp. \\u00b6 47; see also Comp. \\u00b6 26. The parties agree that Four Winds is a U.S. Virgin Islands limited partnership. Under the limited partnership statute of the U.S. Virgin Islands, \\\"A general partner shall have all the rights and powers and be subject to all the restrictions and liabilities of a partner in a partnership without limited partners.\\\" V.I. Code Ann. tit. 26, \\u00a7 209. The \\\"liabilities of a partner in a partnership\\\" includes liability for all \\\"debts and obligations\\\" of the partnership. V.I. Code Ann. tit. 26, \\u00a7 47.\\nAccordingly, a money judgment related to Four Winds' default on the 1993 loan would likely be \\u2014 as Barclays has requested \\u2014 entered against both Four Winds and Quincy jointly and severally. This means that Quincy's assets are relevant to the issue of whether a money judgment in this case would probably go unsatisfied. See Gerardi, 16 F.3d at 1373 n.18.\\nBarclays has failed to establish that Quincy's assets are insufficient to pay a money judgment. Indeed, Barclays has not offered any allegation or evidence with regard to Quincy's assets. Accordingly, Barclays has not proved that a money judgment \\\"probably would go unsatisfied,\\\" Gerardi, 16 F.3d at 1373, and this factor favors denial of Barclays' motion for a preliminary injunction.\\nIII. CONCLUSION\\nBarclays' failure to make the requisite showing regarding the \\\"likelihood of success\\\" and \\\"irreparable harm\\\" factors of the Third Circuit inquiry must result in this Court denying its motion for a preliminary injunction. See In re Arthur Treacher's Franchisee Litigation, 689 F.2d at 1143. Accordingly the Court will not reach the final two factors of the test. See Lindsay v. City of Philadelphia, 844 F. Supp. 224, 229 (E.D.Pa. 1994).\\nThis Court will issue an Order denying Barclays' motion for a preliminary injunction directed at the Settlement Proceeds.\\nTHIS MATTER having come before the Court on the motion of the plaintiff, Barclays Business Credit, Inc., for a preliminary injunction;\\nThe Court having entered a Temporary Restraining Order in this matter on July 2, 1996;\\nThe Court having conducted, on August 15, 1996, a hearing on the plaintiff's motion for a preliminary injunction;\\nThe Court having reviewed the briefs submitted by the parties, heard the witnesses, received evidence and heard the argument of counsel;\\nFor the reasons set forth in the Court's opinion of this date;\\nIT IS on this 19th day of September, 1996 hereby\\nORDERED that the plaintiff's motion for a preliminary injunction is DENIED. No costs.\\nSection 9-104, entitled \\\"Transactions excluded from article,\\\" provides: \\\"This article does not apply. . . (k) to a transfer in whole or in part of any of the following: any claim arising out of tort. . .\\\" V.I. Code Ann. tit. 11A, \\u00a7 9-104 (1967).\\nIn Count I of its Complaint, Barclays claims a security interest in the Settlement Proceeds and requests that the Court \\\"enter a TRO and preliminary and permanent injunctions: a) enjoining Four Winds from disposing of the Settlement Proceeds; b) ordering that the Settlement Proceeds be segregated into an interest-bearing, federally insured bank account; c) directing Four Winds to make an immediate and periodic accounting thereof to the Court and Barclays pending resolution of this proceeding on the merits, and d) ordering that the Settlement Proceeds be disgorged and paid over to Barclays, the amount so paid to be credited against the money judgment\\\" sought by Barclays. Comp. \\u00b6 39.\\nIn Count II of the Complaint, Barclays incorporates by reference its Settlement Proceeds claim, and:\\nBarclays respectfully requests that the Court enter an order enforcing Barclays' security interest in the Personal Collateral by reducing Barclays' claims to the money judgment sought in Count IV hereof and foreclosing Barclays' lien against the Personal Collateral, ordering a judicial sale of the Personal Collateral not already in the form of cash or cash equivalents, providing that any net proceeds of such sale shall be turned over to Barclays to be applied against the money judgment sought in Count IV hereof, and ordering Four Winds to forthwith pay or transfer to Barclays any of the personal collateral as is in the form of cash or cash equivalents, including without limitation the Settlement Proceeds, any such amount turned over to be applied against the money judgment sought in Count IV hereof.\\nComp. \\u00b6 40-41.\\nIn Count III Barclays incorporates its Settlement Proceeds and Personal Collateral claims of Counts I and II, and requests that the Court enter a declaratory judgment and preliminary and permanent injunctive relief declaring that all rents and other sums payable on account of occupancy of certain real estate referenced in the 1993 Assignment of Rents. Comp. \\u00b6 42-44.\\nIn Count IV, Barclays incorporates its Settlement Proceeds, Personal Collateral, and Assignment of Rents counts and:\\n. . . respectfully requests that the Court enter a money judgment against Four Winds and Quincy jointly and severally, in favor of Barclays in an amount equal to the unpaid principal balance, accrued but unpaid interest and late charges due under the terms of the 1993 Loan Documents, plus all court expenses, disbursements, and reasonable attorneys!'] fees that Barclays incurs in connection with this action, plus post-judgment interest, the total sum to be proven, but not less than $6,779,504.97.\\\"\\nComp. \\u00b6 45-47.\"}"
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+"{\"id\": \"3510971\", \"name\": \"ESTATE OF JAMES KEAN, EARNEST KEAN, ALVA MARSH, WARREN MARSH, JEWEL MARSH MOOLENAR, and PATRICIA LOONEY, individually, and as guardian for IRMA MARSH CALIGIONE, Plaintiffs v. UNITED STATES OF AMERICA, through the NATIONAL PARK SERVICE, TRUST FOR PUBLIC LAND, LEILA ADLER, IRMA CALIGIONI, CAROLYN ORTIZ, individually and as executor of the ESTATE OF HALLIE ORTIZ, OUIDA NELSON, JOSEPH ADLER, VALENTINO NELSON, NELINDA NELSON, and the ESTATE OF DOUGLAS NELSON, Defendants; UNITED STATES OF AMERICA, through the NATIONAL PARK SERVICE, Third-Party Plaintiff v. TRUST FOR PUBLIC LAND, Third-Party Defendant\", \"name_abbreviation\": \"Estate of Kean v. United States ex rel. National Park Service\", \"decision_date\": \"2008-08-05\", \"docket_number\": \"Civil No. 1998-176\", \"first_page\": 475, \"last_page\": \"484\", \"citations\": \"50 V.I. 475\", \"volume\": \"50\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:14:49.797499+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ESTATE OF JAMES KEAN, EARNEST KEAN, ALVA MARSH, WARREN MARSH, JEWEL MARSH MOOLENAR, and PATRICIA LOONEY, individually, and as guardian for IRMA MARSH CALIGIONE, Plaintiffs v. UNITED STATES OF AMERICA, through the NATIONAL PARK SERVICE, TRUST FOR PUBLIC LAND, LEILA ADLER, IRMA CALIGIONI, CAROLYN ORTIZ, individually and as executor of the ESTATE OF HALLIE ORTIZ, OUIDA NELSON, JOSEPH ADLER, VALENTINO NELSON, NELINDA NELSON, and the ESTATE OF DOUGLAS NELSON, Defendants UNITED STATES OF AMERICA, through the NATIONAL PARK SERVICE, Third-Party Plaintiff v. TRUST FOR PUBLIC LAND, Third-Party Defendant\", \"head_matter\": \"ESTATE OF JAMES KEAN, EARNEST KEAN, ALVA MARSH, WARREN MARSH, JEWEL MARSH MOOLENAR, and PATRICIA LOONEY, individually, and as guardian for IRMA MARSH CALIGIONE, Plaintiffs v. UNITED STATES OF AMERICA, through the NATIONAL PARK SERVICE, TRUST FOR PUBLIC LAND, LEILA ADLER, IRMA CALIGIONI, CAROLYN ORTIZ, individually and as executor of the ESTATE OF HALLIE ORTIZ, OUIDA NELSON, JOSEPH ADLER, VALENTINO NELSON, NELINDA NELSON, and the ESTATE OF DOUGLAS NELSON, Defendants UNITED STATES OF AMERICA, through the NATIONAL PARK SERVICE, Third-Party Plaintiff v. TRUST FOR PUBLIC LAND, Third-Party Defendant\\nCivil No. 1998-176\\nDistrict Court of the Virgin Islands Division of St. Thomas and St. John\\nAugust 5, 2008\\nCathy M. Smith, Esq., St. Croix, USVI, For the plaintiffs.\\nJOYCELYN Hewlett, Esq., St. Thomas, USVI, For the United. States of America through the National Park Service.\\nA. JEFFREY Weiss, ESQ., St. Thomas, USVI, For the Trust for Public Land.\\nCAROL Ann rich, ESQ., St. Thomas, USVI, For Carolyn Ortiz, individually and as executor of the Estate ofHallie Ortiz.\\nValentino Nelson, St. Thomas, USVI, Pro se\\nNelinda Nelson, St. Thomas, USVI, Pro se\", \"word_count\": \"3000\", \"char_count\": \"18213\", \"text\": \"G\\u00d3MEZ, Chief Judge\\nMEMORANDUM OPINION\\n(August 5, 2008)\\nBefore the Court is the motion of the Trust for Public Land (the \\\"Trust\\\") for judgment on the pleadings on Counts One and Three of its counterclaim to quiet title in certain real property against the Estate of James Kean, Ernest Kean, Alva Marsh, Warren Marsh, Jewel Marsh Moolenaar, and Patricia Looney, individually, and as guardian for Irma Marsh Caligione (collectively, the \\\"Plaintiffs\\\"). The Trust also moves for judgment on the pleadings on Counts One and Three of its cross-claim to quiet title against the Estate of Douglas Nelson, Valentino Nelson, and Nelinda Nelson (the \\\"Nelsons\\\"). Alternatively, the Trust moves for summary judgment on its counterclaim and cross-claim. For the reasons stated below the Court will grant the motion for judgment on the pleadings.\\nI. FACTS\\nOn March 27,1961, Harvey Monroe Marsh (\\\"Marsh\\\") executed a deed (the \\\"1961 Deed\\\") that conveyed life estates in certain real property described as Estate Maho Bay, Maho Bay Quarter, St. John, U.S. Virgin Islands (the \\\"Maho Estate\\\") to, amongst others, his children: lo L. Kean, Hallie Ortiz, Leila Adler, Irma Caligione, Carlyle Marsh, Aegis Marsh, Arnet Marsh, and Ouida Nelson. That deed also conveyed a remainder interest in the Maho Estate to the grandchildren of Marsh who were alive at the time of Marsh's death. Additionally, the deed reserved for Marsh a life estate and the right to make further conveyances of all or any part of the Maho Estate.\\nOn September 30,1965, Marsh executed a deed (the \\\"1965 Deed\\\") that conveyed to Hallie Ortiz a three-acre portion of the Maho Estate known as Parcel 3A-3 Abraham's Fancy (the \\\"Abraham's Fancy Property\\\"). That deed was recorded with the Recorder of Deeds for the District of St. Thomas and St. John, United States Virgin Islands (the \\\"Recorder\\\") on November 4, 1965.\\nIn 1971, Hallie Ortiz and her husband, Antonio Ortiz (together, the \\\"Ortizes\\\") occupied the Abraham's Fancy Property. The Ortizes cleared the land at the Abraham's Fancy Property and made various improvements thereto. They built a cistern, drilled a well, and put a mobile home on the premises.\\nOn December 1, 1971, Marsh died. At the time of Marsh's death, he had the following living grandchildren: James Kean, Ernest Kean, Jewel Marsh (now Jewel Marsh Moolenaar), Alva Marsh, Warren Marsh, Ronald Ortiz, Yvonne Ortiz, Carolyn Ortiz, Douglas Nelson, Patricia Ann Caligione, and Joseph Adler.\\nIn 1996, Marsh's grandchildren, James and Ernest Kean commenced an action in the Superior Court of the Virgin Islands, Division of St. Thomas and St. John (the \\\"Superior Court\\\") against Marsh's children, Leila Adler, Hallie Ortiz, Irma Caligione and Ouida Nelson. James and Ernest Kean sought, inter alia, the appointment of a receiver regarding the Maho Estate. When they brought the 1996 action, James and Ernest Kean were aware of the 1965 Deed conveying the Abraham's Fancy Property to Hallie Ortiz.\\nOn October 7, 1997, Hallie Ortiz executed her last will and testament, which bequeathed her interest in the Abraham's Fancy Property to her daughter, Carolyn Ortiz.\\nOn September 8, 1998, the Plaintiffs commenced this action in the Superior Court to quiet title and for partition of the life estates and remainder interests in the Maho Estate. The complaint acknowledged that Hallie Ortiz had a fee simple interest in the Abraham's Fancy Property portion of the Maho Estate. On October 14,1998, the matter was removed to this Court.\\nHallie Ortiz died on April 30, 1999. Carolyn Ortiz inherited the Abraham's Fancy Property pursuant to her mother's will. Thereafter, Joseph Adler sold to the Trust all of his purported interest in the Abraham's Fancy Property.\\nOn January 22, 2004, the United States filed a third party complaint in this matter, asserting an ownership interest in the Maho Estate and seeking to quiet title thereto. The United States claims that in 1970 Carolyn Ortiz, Yvonne and James Hopper, and Ronald Ortiz conveyed a 3/11 interest in the Maho Estate to the National Park Foundation, which, in 1975, conveyed such interest to the United States.\\nOn January 28, 2004, the Trust purchased Carolyn Ortiz' interest in the Abraham's Fancy Property. The United States subsequently amended its third-party complaint to include the Trust as a third-party defendant.\\nOn February 8, 2007, the Trust filed a counterclaim against the Plaintiffs, and a cross-claim against the United States, Irma Marsh Caligione, Ouida Nelson, and the Nelsons (collectively, the \\\"Cross-defendants\\\"). That document states that the Plaintiffs, as grandchildren of Marsh, claim an undivided interest the Abraham's Fancy Property. It also acknowledges that the\\nUnited States of America... is the holder of undivided interests in [the Abraham's Fancy Property], having acquired the interest of Hallie Ortizf] from her Estate, together with the interest of Carolyn Ortiz, Yvonne Hopper, and Roland Ortiz, to the extent each obtained an interest in [the Abraham's Fancy Property] pursuant to the Will of Hallie Ortiz.\\n(Id. at \\u00b6 9.) \\\"Cross-defendant Irma Marsh Caligione is the only remaining living child of Harvey Monroe Marsh, and she holds a life estate in [the Abraham's Fancy Property], upon the death on November 25, 2005, of OuidaNelson.\\\" (Id. a^ 10.) \\\"Cross-defendants [the Nelsons]... have been identified by the plaintiffs as holders of an interest or a future interest in 'Estate Maho Bay'... pursuant to the Replacement Deed.\\\" (Id. at \\u00b6 11.)\\nIn Count One of the counter-and-cross-claim, the Trust seeks a declaration and judgment quieting title to the Abraham's Fancy Property on statute of limitations grounds. Count Two states that the Plaintiffs and Cross-defendants are barred by the doctrines of unclean hands, estoppel, waiver, and laches, from asserting any claim or interest in the Abraham's Fancy Property, or from challenging the 1965 Deed. Count Three asserts that the Trust is entitled to a declaration quieting title to the Abraham's Fancy Property by adverse possession.\\nOn July 20, 2007, the Nelsons filed an answer to the Trust's cross-claims. The Plaintiffs answered the Trust's counterclaim on August 31, 2007.\\nOn February 2, 2008, the United States and the Trust filed a stipulation of dismissal of the United States' third-party complaint against the Trust. The stipulation stated that \\\"an amicable settlement has been reached and finalized\\\" with respect to the action of the United States against the Trust. Additionally, the United States withdrew its answer to the Trust's cross-claim.\\nII. DISCUSSION\\nPursuant to Federal Rule of Civil Procedure 12(c) (\\\"Rule 12(c)\\\"), \\\"[a]fter the pleadings are closed . any party may move for judgment on the pleadings.\\\" Fed. R. Civ. P. 12(c) (2007); see also Turbe v. Gov't of the V.I., 938 F.2d 427, 428 (3d Cir. 1991) (\\\"A Rule 12(c) motion for judgment on the pleadings may be filed after the pleadings are closed.\\\"). In reviewing a motion for a judgment on the pleadings, the Court \\\"view[sj the facts alleged in the pleadings and the inferences to be drawn from those facts in the light most favorable to the [non-movant].\\\" Mele v. Fed. Reserve Bank of N.Y., 359 F.3d 251, 253 (3d Cir. 2004) (first alteration in the original). The Court, however, \\\"need not accept as true legal conclusions or unwarranted factual inferences.\\\" Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999).\\n\\\"[J]udgment will not be granted unless the movant clearly establishes there are no material issues of fact, and he is entitled to judgment as a matter of law.\\\" E.I. DuPont de Nemours and Co. v. United States, 508 F3d 126, 131-32 (3d Cir. 2007) (quoting Sikirica v. Nationwide Ins. Co., 416 F3d 214, 220 (3d Cir. 2005)). When a plaintiff, counter-claimant, or cross-claimant moves for judgment on the pleadings,\\nthe question for judgment determination is whether on the undenied facts alleged in the complaint[, counterclaim, or cross-claim] and assuming as true all the material allegations of fact in the answer, the plaintiff is entitled to judgment as a matter of law.\\nMissouri Pacific R. Co. v. Nat'l Milling Co., 409 F.2d 882, 884-85 (3d Cir. 1969) (quoting United States v. Blumenthal, 4 V.I. 409, 315 F2d 351, 352-53 (3d Cir. 1963); see also Mingolla v. Minn. Min. and Mfg. Co., 893 F. Supp. 499,503 (D.V.I. 1995) (\\\"Judgment on the pleadings under [Rule] 12(c)... is not proper unless the undenied facts in both the complaint and the answer support judgment for the moving party as a matter of law.\\\").\\nIII. ANALYSIS\\nA. Count One\\nThe Trust argues that, based on the uncontested allegations in its counterclaim, it properly holds title to the Abraham's Fancy Property as against the Plaintiffs and the Nelsons. The Trust also contends that the Plaintiffs and the Nelsons are time-barred from asserting any rights in the Property. Accordingly, the Trust claims, it is entitled to a judgment on the pleadings quieting title in the Abraham's Fancy Property under Count One.\\nIn the Virgin Islands, \\\"[a]ny person in possession . of real property, may maintain an action of an equitable nature against another who claims an estate or interest therein adverse to him, for the purpose of determining such claim, estate, or interest.\\\" 28 V.I.C. \\u00a7 371. \\\"The claimant in an action to quiet title must prove the strength of his or her own title.\\\" Dudley v. Meyers, 7 V.I. 472, 422 F.2d 1389, 1394-1395 (3d Cir. 1970); see also Alexander Hamilton Life Ins. Co. of Am. v. Gov't of the V.I., 757 F.2d 534, 541 (3d Cir. 1985) (quoting United States v. Wilson, 433 F. Supp. 57, 66 (N.D. Iowa 1977) (\\\"[Generally, a claimant, whether a Plaintiff or a counterclaiming Defendant, has the burden of persuasion in a quiet title action as to the strength of his or her own title.\\\").\\nTitle 5, section 31 of the Virgin Islands Code (\\\"Section 31\\\") sets forth a twenty-year limitations period for:\\n(A) Actions for the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained for such recovery unless it shall appear that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the property in question within twenty years before the commencement of the action.\\nV.I. CODE Ann. tit. 5, \\u00a7 31(1)(A) (1977). Furthermore, \\\"[a]n action for the determination of any right or claim to or interest in real property shall be deemed within the limitations provided for actions for the recovery of the possession of real property.\\\" 5 V.I.C. \\u00a7 32(b) (1921); see also Club Comanche, Inc. v. Gov't of the V.I., 278 F.3d 250, 260 (3d Cir. 2002) (\\\"[T]here appears to be a twenty-year statute of limitations on quiet title actions.\\\").\\nThe twenty-year limitations period begins to run when the party's cause of action accrues. 5 V.I.C. \\u00a7 31. \\\"A cause of action for the recovery of real property accrues when a party \\u2014 or a predecessor in interest to that party \\u2014 has notice that another party has asserted an interest in his or her property.\\\" Peter Bay Owners Ass'n v. Stillman, 39 V.I. 432, 440 (D.V.I. 1998); see also Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir. 1985) (\\\"[A] claim accrues when the injured party learns of the injury and its immediate cause.\\\"). \\\"Notice may be actual or constructive, and actual notice may be express or implied.\\\" Netsky v. Sewer, 205 F. Supp. 2d 443, 457 (D.V.I. 2002); Stillman, 39 V.I. at 440. Count One of the Trust's counterclaim states that \\\"the [Pjlaintiffs and the [Nelsons], or their predecessors in interest have all been on actual or constructive notice of the conveyance of the [Abraham's Fancy Property] to Hallie Ortiz pursuant to the September 30, 1965[,] Deed for more than twenty . years.\\\" (Counter-and-Cross-Claim of the Trust for Public Land \\u00b6 39, Feb. 8, 2007.) Count One also asserts that \\\"the September 30, 1965[,] Deed was duly executed, notarized, and witnessed in accordance with the laws of the Virgin Islands.\\\" (Id. at \\u00b6 40.) \\\"As such, [P]laintiffs and [the Nelsons] . are barred from asserting any right, claim, or interest in the [Abraham's Fancy Property] . by the Virgin Islands Statute of Limitations . . . .\\\" (Id. at \\u00b6 41.) Consequently, the Trust claims, \\\"as a successor in interest to Hallie Ortiz, [it] is entitled to a declaration and judgment quieting title to [the Abraham's Fancy Property] . . . .\\\" (Id. at \\u00b6 42.)\\nThe Plaintiffs, in their counterclaim answer, admit all of the substantive allegations relevant to Count One of the Trust's action against them. In particular, the \\\"Plaintiffs admit that they were on notice of the conveyance of the [Abraham's Fancy Property] . to Hallie Ortiz, pursuant to the September 30, 1965[,] Deed, and admit that they are on notice of that conveyance for more than 20 years.\\\" (Plaintiffs' Answer to the Trust's Counterclaim \\u00b6 39.) The Plaintiffs also admit in their counterclaim answer that the September 30,1965, deed was duly recorded, executed, notarized, and witnessed; that Section 31(1) prohibits them from asserting any claim in the Property; and that the Trust is entitled to a judgment quieting title therein.\\nOn the other hand, the Nelsons' cross-claim answer states that \\\"[t]he Nelsons do not admit or deny\\\" the vast majority of the facts alleged in the Trust's cross-claim, including all of the substantive allegations relevant to Count One.\\nFederal Rule of Civil Procedure 8(b)(6) (\\\"Rule 8(b)(6)\\\") provides that \\\"[a]n allegation \\u2014 other than one relating to the amount of damages \\u2014 is admitted if a responsive pleading is required and the allegation is not denied.\\\" Fed. R. Crv. P. 8(b)(6) (2007). Furthermore, a party is required to respond to claims asserted against it by an opposing party. See FED. R. Civ. P. 7(a); Fed. R. Civ. P. 8(b)(1)(B). Thus, because the Trust filed a cross-claim against the Nelsons, the Nelsons were required to respond to the allegations asserted therein. See id.; see also Resolution Trust Corp. v. Rowe, 1993 WL 451475 at *1 (N.D. Cal. Oct. 22, 1993) (explaining that the cross-defendant \\\"was required to file an answer to [the] Cross-claim\\\" asserted against it). As such, the allegations which the Nelsons failed to deny are considered admitted. See Fed. R. Civ. P. 8(b)(6); see also, e.g., Russo v. Abington Memorial Hosp. Healthcare Plan, 1998 U.S. Dist. LEXIS 4857, *2 (E.D. Pa. March 31, 1998) (\\\"[B]oth [cross-defendants] . . . were deemed to have admitted the factual allegations in the amended cross-claim filed by their codefendant because neither [party] . . . filed an answer to the cross-claim.\\\"); Resolution Trust Corp., 1993 WL 451475 at *1 (awarding default judgment against the cross-defendant \\\"for his failure to answer or otherwise appear to defend against [the] Cross-claim\\\")). The Nelsons, like the Plaintiffs, are therefore deemed to have admitted that the Trust holds superior title to the Abraham's Fancy Property.\\nThe undenied facts alleged in the Trust's counter-and-cross-claim show that the parties agree as to the superiority of the Trust's title to the Abraham's Fancy Property. Accordingly, the Trust is entitled to a judgment on the pleadings quieting title to the Abraham's Fancy Property. See, e.g., Netsky v. Sewer, 205 F. Supp. 2d 443, 457 (D.V.I. 2002) (entering judgment quieting title to real property in favor of the claimant).\\nIV. CONCLUSION\\nBased on the foregoing, the Court will grant the motion for judgment on the pleadings as to Count One of the Trust's action against the Plaintiffs and the Nelsons. With respect to Count Three, the motion for judgment on the pleadings will be denied as moot. The motion for summary judgment on Counts One and Three will also be denied as moot. An appropriate Judgment follows.\\nPrior to 2005, the trial court was known as the Territorial Court of the Virgin Islands and its judges were referred to as Territorial Court Judges. Effective January 1,2005, however, the name of the Territorial Court changed to Superior Court of the Virgin Islands. See Act of Oct. 29,2004, No. 6687, sec. 6, \\u00a7 2, 2004 V.I. Legis. 6687 (2004). Recognizing this renaming, this Court employs the terms Superior Court and Superior Court Judge.\\nNotice \\\"is express when it consists of knowledge actually delivered into the hands of a person; notice may be implied when it consists of knowledge of facts so informative that would cause a reasonably cautious person to be led by them to the ultimate fact. \\\" Bennerson v. Smalls, 23 V.I. 113, 116 (D.V.I. App. Div. 1987); see also Netsky, 205 F. Supp. 2d at 457 (\\\"Constructive notice is a legal fiction designed to impute notice to a person not having actual notice where that person has knowledge of certain facts which should lead him to the ultimate fact.\\\").\\nThe Nelsons have denied only three of the Trust's allegations, paragraphs 46 through 48, all of which state legal conclusions regarding the equitable claims asserted in CountTwo, which is not at issue in the instant motion.\\nBecause it is uncontested that the Trust holds superior title to the Abraham's Fancy Property, the Court need not address the adverse possession claim alleged in Count Three.\"}"
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+"{\"id\": \"3558513\", \"name\": \"PEPPERTREE TERRACE, Appellant/Plaintiff v. CHERYL WILLIAMS, Appellee/Defendant\", \"name_abbreviation\": \"Terrace v. Williams\", \"decision_date\": \"2009-07-01\", \"docket_number\": \"S. Ct. Civ. No. 2007-099\", \"first_page\": 225, \"last_page\": \"246\", \"citations\": \"52 V.I. 225\", \"volume\": \"52\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Supreme Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T02:17:45.657078+00:00\", \"provenance\": \"CAP\", \"judges\": \"HODGE, Chief Justice', CABRET, Associate Justice', and SWAN, Associate Justice. SWAN, Associate Justice, concurs.\", \"parties\": \"PEPPERTREE TERRACE, Appellant/Plaintiff v. CHERYL WILLIAMS, Appellee/Defendant\", \"head_matter\": \"PEPPERTREE TERRACE, Appellant/Plaintiff v. CHERYL WILLIAMS, Appellee/Defendant\\nS. Ct. Civ. No. 2007-099\\nSupreme Court of the Virgin Islands\\nJuly 1, 2009\\nRochelle M. Bermudez, Esq., Gerald T. Groner, Attorney at Law, P.C., St. Croix, USVI, Attorney for Appellant.\\nVINCENT Colianni II, ESQ., Colianni & Colianni, St. Croix, USVI, Attorney for Appellee.\\nHODGE, Chief Justice', CABRET, Associate Justice', and SWAN, Associate Justice. SWAN, Associate Justice, concurs.\", \"word_count\": \"7312\", \"char_count\": \"45137\", \"text\": \"OPINION OF THE COURT\\n(July 1, 2009)\\nCabret, J.\\nCheryl Williams owns a mobile home located in the Peppertree Terrace mobile home community on St. Croix. Peppertree Terrace sued Williams in the Small Claims Division of the Superior Court alleging that she owed several thousand dollars in past due rent for occupying the lot in the community. After a bench trial, the trial court found that Peppertree Terrace's claim lacked merit and dismissed the claim. Peppertree Terrace filed this appeal asserting that the trial court erred in dismissing its claim because the evidence presented at trial showed that Williams failed to pay past due rent. We agree with Peppertree Terrace that the trial court erred in dismissing its claim and accordingly reverse the trial court's dismissal.\\nI. FACTS AND PROCEDURAL HISTORY\\nThe record shows that Williams owns a mobile home located on lot number fifty-one, Peppertree Terrace (\\\"Subject Property\\\"). Although Williams owns her mobile home, she does not own the Subject Property, and at trial she testified that when she purchased the home, she understood that she would pay Peppertree Terrace a \\\"maintenance fee\\\" for the lot. (App. at 29.) According to Williams, shortly after she purchased the mobile home, someone in the Peppertree Terrace office telephoned her to inform her about the amounts she was required to pay:\\nWhen I bought the place, I got a call about three weeks later telling me, do you know you are supposed to pay [a] maintenance fee; and I said, yes, how much; and she told me [$]361 and that was it. That's the only thing we've ever had. So, what I was doing was I was just paying on it, paying on it, paying on it....\\n(App. at 32.) In addition to the monthly fee, which Williams was told would cover grass cutting, water, and security, Peppertree Terrace also charged a fee for late payments. Williams and Peppertree Terrace did not have a written agreement providing for Williams' occupancy or any of these payments, and Williams testified that she complained to Peppertree Terrace that the amounts being charged were excessive for the services she received.\\nPeppertree Terrace's manager explained at trial that, although Williams owned the mobile home, she was required to pay rent \\\"[f]or the lot that the trailer is on.\\\" (App. at 28.) The manager thus characterized the amount charged for the lot as a \\\"lot rental fee,\\\" (App. at 36) and she testified that the amount due for rent each month was $385.00. The manager presented the trial court with monthly account statements purportedly evidencing the amounts Williams owed Peppertree Terrace. The first monthly statement is from May, 2006 and shows that as of March 31, 2006, Williams had a past due balance forward of $1,590.00. The May 2006 statement also reflects the only payment evidenced by any of the statements: a $550.00 remittance by Williams in April, 2006. The manager for Peppertree Terrace testified that this was the last time Williams paid rent. The account statements further reflect that late payment fees were initially assessed against Williams at the rate of $25.00 per month, that the late payment fee was increased to $50.00 per month in May, 2006, and that beginning in February, 2007, the late payment fees were further increased on a monthly basis and eventually included interest charges as well. According to these statements, as of July, 2007, the month of the trial, Williams owed Peppertree Terrace $8,111.79.\\nWilliams did not dispute that she was indebted to Peppertree Terrace in some amount. Upon being questioned by the trial judge about the amount she owed, Williams testified:\\nI don't know how [the property manager] came up with the figures. I know she needs to be paid. That's how we are coming to court, and we can't come up to agreement on how much and she can't make the decision as being the manager. Someone has to make the decision being over her because this is the fourth time we are coming [to court]____ I guess that's why the money is so high. It's been almost a year [sic].\\n(App. at 31.) (Paragraph indention omitted). Although the account statements presented to the court indicate that they were sent to Williams at a post office box, and Williams acknowledged that she received a letter on May 8, 2006 stating that she was in arrears in the amount of $1,885.00, Williams also testified that she never received anything in writing telling her the amount she was supposed to be paying. Williams acknowledged, however, that \\\"[t]hey told [her] over the phone\\\" the amounts she was supposed to be paying. (App. at 32.)\\nUpon receiving this evidence, the trial judge remarked on the difficulty he was having resolving the case due to the conflicting testimony of the parties:\\nI'm hearing two different things. [Peppertree Terrace is] talking about rental fee still, but at the same token, Ms. Williams owns her unit. So, how can she pay rent for something that she owns?\\n[T]he problem I'm having here is it would have been easier if both you and Ms. Williams were speaking in the same terms, but you're not. She's talking maintenance fees; you are talking rent. What does your record show that establish [sic] basically what she's supposed to be paying and what it's supposed to be for? . . . Why would she want a lease if she owns her unit?\\n(App. at 36, 38.) The Peppertree Terrace manager again explained that it is a lot rental fee and that Williams did not want a lease, although leases prevent rent increases during the year, and that without a lease, the rent can be increased by Peppertree Terrace at any time. The trial judge responded: \\\"I'm sorry, ma'am. This seems a little bit oily. Case dismissed.\\\" (App. at 39.) Peppertree Terrace subsequently filed this appeal.\\nII. JURISDICTION AND STANDARDS OF REVIEW\\nWe have jurisdiction over this appeal pursuant to title 4, section 32(a) of the Virgin Islands Code, which vests the Supreme Court with jurisdiction over \\\"all appeals arising from final judgments, final decrees, [and] final orders of the Superior Court.\\\" In considering the appeal of Peppertree Terrace, our standard of review is as follows:\\nThe standard of review for this Court in examining the Superior Court's application of law is plenary. Findings of fact are reviewed on appeal under a clearly erroneous standard of review. The appellate court must accept the factual determination of the fact finder unless that determination either (1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data.\\nSt. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (V.I. 2007) (citations and quotation marks omitted). In addition, because this was a small claims matter, we should remain mindful that the goal of the trial judge was \\\"to do substantial justice between the parties.\\\" Super. Ct. R. 64.\\nIII. DISCUSSION\\nThe trial court clearly erred in dismissing Peppertree Terrace's claim. The trial court was apparently confused as to why Williams would want to rent the Subject Property when she owned her mobile home, and this confusion seemed to be compounded by the varying characterizations of the monthly fee as a \\\"maintenance fee\\\" and a \\\"lot rental fee.\\\" But however one characterizes the fee, it is undisputed that: (1) Williams' mobile home was located on the Subject Property in Peppertree Terrace; (2) Williams knew she was required to pay Peppertree Terrace some amount, on a monthly basis, for occupying the Subject Property; and (3) Williams continued to occupy the Subject Property with her mobile home after being informed of the monthly fee.\\nIt is unclear why the trial court disregarded the fact that Williams was not renting her mobile home, but rather the land on which the home was situated. Again, there does not seem to be any dispute that Williams occupied the Subject Property or that Peppertree Terrace was charging Williams a monthly fee for this occupancy and the related services provided by Peppertree Terrace. As is discussed below, the transfer of possession of the Subject Property created a landlord-tenant contractual relationship between Peppertree Terrace and Williams under an oral lease with a month-to-month tenancy.\\nBefore discussing how the lease in this case was created, we note that, as a general rule, a landlord-tenant relationship can arise from an agreement under which one person, the landlord, gives another person, the tenant, a present right to possess a plot of land for a fixed period of time. See generally RESTATEMENT (Second) OF PROPERTY, LANDLORD AND TENANT \\u00a7 1.1-1.4 (1977); see also 49 Am. Jur. 2d Landlord and Tenant \\u00a7 1 (West Supp. 2008) (\\\"The relation of landlord and tenant generally arises from an agreement, or lease, which may be either express or implied, pursuant to which one person \\u2014 the tenant or lessee \\u2014 enters into possession and occupancy of the premises of another \\u2014 the landlord or lessor \\u2014 for a consideration, usually the payment of rent.\\\"). Under the Restatement (Second) of Property, \\\"[a] landlord-tenant relationship can be created orally if the duration of an oral lease does not exceed the period specified in the controlling Statute of Frauds.\\\" RESTATEMENT (SECOND) of Property, Landlord and Tenant \\u00a72.1 (1977). In the Virgin Islands, the Statute of Frauds, which generally requires that certain leases be in writing and executed with specified formalities, applies only to leases with terms exceeding one year. See V.I. Code Ann. tit. 28, \\u00a7 241, 242 (1996).\\nBecause the lease at issue in this case was for a term of less than one year, it could have been created orally. To be clear, it does not appear that Williams and Peppertree Terrace ever discussed, in express terms, the duration of Williams' lease. Rather, the evidence at trial showed only that Peppertree Terrace told Williams she was required to pay a monthly fee, and Williams acknowledged that she needed to pay the fee. The parties' dispute was not whether a monthly fee was due; they merely provided different characterizations of the fee and disputed the amount of the fee.\\nThis agreement that a monthly fee was due created a monthly tenancy under the Restatement (Second) of Property. Specifically, the Restatement provides:\\nThe parties may expressly state that the lease shall continue from period to period or their agreement may be apparent from the circumstances. Where the parties enter into a lease of no stated duration and periodic rent is reserved or paid, a periodic tenancy is presumed. The period thus presumed is equal to the interval for which rent is reserved or paid to a maximum periodic tenancy of year to year.\\nRestatement (Second) of Property, Landlord and Tenant \\u00a71.5 cmt. d (1977); see also id. \\u00a71.5 cmt. d, illus. 2 (\\\"L leases a residence to T to commence July 1, at a rent of $ 100 per month. No duration is specified. The lease creates a periodic tenancy continuing for successive periods of one month until terminated by proper notice.\\\"). In this case, although Williams and Peppertree Terrace disputed the amount of the fee, it is undisputed that the fee was to be paid monthly. Therefore, the circumstances created a month-to-month tenancy that continued until it was properly terminated by one of the parties. See id. \\u00a7 1.5 (\\\"A landlord-tenant relationship may be created to endure until one of the parties has given the required notice to terminate the tenancy at the end of a period.\\\"). There was no evidence pre sented at trial that either of the parties terminated the lease during the period in question. To the contrary, the undisputed evidence showed that Williams' knew when she purchased the mobile home that she was required to pay a monthly fee and that she continued to occupy the Subject Property up to the time of trial. Accordingly, the trial court's dismissal of Peppertree Terrace's claim, on the ground that the parties' agreement was a little too \\\"oily\\\" to be enforceable, was clearly erroneous.\\nAlthough we conclude that Williams was a tenant under an oral month-to-month lease, and that she was required to pay some amount of monthly consideration for her occupancy of the Subject Property, we are not able to determine the amount of that consideration. The evidence presented at trial showed that Peppertree Terrace told Williams that the fee for the Subject Property was $361.00 per month if you believe Williams, or $385.00 if you believe the Peppertree Terrace manager. Because the trial court apparently concluded that there was no lease, it did not query further as to the amount of consideration that was due. From the cold record before us, we cannot establish which of the two amounts \\u2014 $361.00 per month or $385.00 per month \\u2014 the parties agreed would be due to Peppertree Terrace for Williams' occupancy of the Subject Property or whether the parties agreed that penalties would apply for late payments. We can only say with certainty that Peppertree Terrace did not gratuitously give Williams possession of the Subject Property, that Williams knew she was required to pay at least $361.00 per month to Peppertree Terrace for occupying the Subject Property, and that the trial court did not do the parties substantial justice by dismissing the action. See Restatement (Second) of Property, Landlord and Tenant \\u00a712.1(1) (1977) (\\\"Except to the extent the tenant is legally excused from doing so, there is a breach of the tenant's obligation if he fails to pay the rent reserved in the lease on or before the date the rent is due.\\\"); id. \\u00a712.1(2)(a) (\\\"Except to the extent the parties to a lease validly agree otherwise, if there is a breach of the tenant's obligation to pay the rent reserved in the lease, the landlord may: (a) recover from the tenant the amount of the rent that is due . . . .\\\"); see also id. \\u00a712.1 cmt. m (\\\"The remedy generally available [for nonpayment of rent] is a suit at law to obtain a judgment for the amount of the rent and the collection of the rent by the usual procedure available to enforce a money judgment.\\\"); SUPER. Ct. R. 64 (stating that in small claims actions trial court is required \\\"to do substantial justice between the parties.\\\"). For these reasons, we will reverse the trial court's dismissal of this case.\\nIV. CONCLUSION\\nThe undisputed evidence presented at trial established that a landlord-tenant relationship existed between Peppertree Terrace and Williams. The undisputed evidence also established that Peppertree Terrace and Williams agreed that the rental fee for Williams occupying the Subject Property was no less than $361.00 per month, and Williams testified that she was withholding payment of rent. In light of this evidence, the trial court did not do substantial justice between the parties and clearly erred in dismissing the case. Accordingly, the trial court's judgment is reversed and this matter is remanded to the trial court for further proceedings to determine the amount Williams owes to Peppertree Terrace.\\nCONCURRING OPINION\\nAlthough Justice Swan's concurring opinion states that Williams relocated her mobile home to Peppertree Terrace's property, we have not found any support for this finding in the record. Rather, it appears that when Williams purchased the mobile home, it was already located on the Subject Property in Peppertree Terrace.\\nIt is unclear from the record when and how Peppertree Terrace informed Williams that she would be liable for late fees.\\nAlthough certain aspects of contract law govern the landlord-tenant relationship, see Boulevard Assocs. v. Sovereign Hotels, Inc., 72 F.3d 1029, 1031 (2d Cir. 1995) (recognizing that \\\"[t]he legal relationship between landlords and tenants is a strange hybrid of contract and property law\\\"), we believe that under the facts of this case, the parties' relationship and the obligations arising from that relationship should be analyzed under the applicable provisions of the Restatement (Second) of Property, Landlord and Tenant (1977).\\nBecause there are no local laws governing the question, we turn to the Restatement pursuant to title 1, section 4 of the Virgin Islands Code which provides:\\nThe rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary.\\nContrary to Justice Swan's concurring opinion, the oral lease creating a month-to-month tenancy did not violate the Statute of Frauds merely because it continued in effect for more than one year. \\\"It is well settled that the oral contracts invalidated by the Statute because they are not to be performed within a year include only those which cannot be performed within that period.\\\" 9 RICHARD A. Lord, Williston on Contracts \\u00a7 24-3 (4th ed. 1999) (emphasis in original). Because a monthly tenancy is, by definition, performed within one year, it does not violate the Statute even if successive one-month terms continue beyond one year. See, Hamilton v. Tanner, 962 So. 2d 997, 1002 n.6 (Fla. Dist. Ct. App. 2007); Carter v. Schick, 817 S.W.2d 238, 239-40 (Ky. Ct. App. 1991).\"}"
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+"{\"id\": \"3576868\", \"name\": \"ALBERT MARCELLE, JR., Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff\", \"name_abbreviation\": \"Marcelle v. People\", \"decision_date\": \"2011-06-17\", \"docket_number\": \"S. Ct. Crim. No. 2007-0128\", \"first_page\": 536, \"last_page\": \"549\", \"citations\": \"55 V.I. 536\", \"volume\": \"55\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Supreme Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T01:29:21.249410+00:00\", \"provenance\": \"CAP\", \"judges\": \"HODGE, Chief Justice; CABRET, Associate Justice', and SWAN, Associate Justice.\", \"parties\": \"ALBERT MARCELLE, JR., Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff\", \"head_matter\": \"ALBERT MARCELLE, JR., Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff\\nS. Ct. Crim. No. 2007-0128\\nSupreme Court of the Virgin Islands\\nJune 17, 2011\\nDEBRAS. WATLINGTON, Esq., Office of the Territorial Public Defender, St. Thomas, USVI, Attorney for Appellant.\\nMatthew Phelan, Esq., Assistant Attorney General, St. Thomas, USVI, Attorney for Appellee.\\nHODGE, Chief Justice; CABRET, Associate Justice', and SWAN, Associate Justice.\", \"word_count\": \"4438\", \"char_count\": \"26836\", \"text\": \"OPINION OF THE COURT\\n(June 17, 2011)\\nSwan, J.\\nAlbert Marcelle, Jr. (\\\"Marcelle\\\") and his girlfriend, Berlin Reyes (\\\"Reyes\\\"), were involved in a domestic dispute, which began with Reyes removing Marcelle's belongings from the apartment they jointly occupied, and culminated with Marcelle assaulting Reyes, inflicting injuries upon her body. Marcelle was arrested and charged with aggravated assault and battery, an act of domestic violence in violation of title 14, section 298(5) and title 16, sections 91(b)(1) and (2) of the Virgin Islands Code. At trial, Marcelle argued as a defense that he used only sufficient resistance to protect his property that was being removed from the apartment. The trial judge, sitting as the finder of fact in a bench trial, disagreed with Marcelle and adjudged him guilty of aggravated assault and battery as an act of domestic violence.\\nMarcelle now asserts that the trial court erred in finding him guilty because he raised a valid defense and that the People of the Virgin Islands (\\\"the People\\\") failed to satisfy its burden of disproving his defense. We conclude that the People proved the elements of an assault and battery and simultaneously disproved Marcelle's defense beyond a reasonable doubt. Accordingly, we affirm the judgment of the trial court.\\nI. FACTS AND PROCEDURAL HISTORY\\nMarcelle and Reyes, an unmarried couple, lived together in Reyes' apartment. The couple had maintained an intimate relationship with each other for approximately eight months until Reyes became displeased with Marcelle's behavior and traits, including his failure to secure employment and attempted to terminate the relationship. On April 7, 2007, while the couple was traveling to the laundromat, Reyes removed the keys to her apartment from Marcelle's key chain without Marcelle's knowledge. Upon returning from the laundromat, Reyes asked Marcelle to take her to a nearby grocery store and informed Marcelle that she would walk home from the store. Reyes also instructed Marcelle to wait for her at the front door of her apartment.\\nUpon returning to Reyes' apartment, Marcelle discovered that the keys to the apartment were missing from his key chain. Marcelle broke a window, unlocked the sliding door and entered Reyes' apartment. When Reyes arrived home from the grocery store, she discovered the laundry bags at the front door of her apartment. After entering the apartment, Reyes realized that Marcelle was in the bathroom taking a shower. Reyes asked Marcelle how he gained entry into her apartment. Although she did not receive a response from Marcelle, she soon discovered the window Marcelle had broken to gain entry. Reyes demanded of Marcelle that he leave her apartment immediately.\\nWhile Marcelle was still in the shower, Reyes began removing Marcelle's belongings from her apartment and depositing them outside the apartment. Marcelle exited the shower while Reyes continued to remove his belongings from her apartment. A verbal altercation ensued. Reyes repeatedly asked Marcelle to leave her apartment. Marcelle put on a pair of trousers, sat on the couch and continued the verbal exchange with Reyes, concerning her decision to have him leave her apartment.\\nAs the verbal altercation escalated, Marcelle rose from the couch. He immediately grabbed Reyes' neck, pushed her against the wall of the apartment, and started choking her. Reyes began to plead with Marcelle to release his grasp upon her neck and to stop assaulting her. Marcelle callously ignored her pleas and continued the assault, maintaining his grasp around her neck. As Reyes continued to plead with Marcelle, telling him she was only joking, Marcelle pushed Reyes onto the ground and promptly placed his knees on her arms, which resulted in black and blue contusions on Reyes' arms. Reyes also sustained scratches to her upper left chest and elbows from the physical altercation with Marcelle.\\nShortly thereafter, an anonymous person contacted the police. Upon arriving at the apartment, a police officer discovered a distraught Reyes with bruises upon her face and crying while standing alongside Marcelle. The items of clothing Reyes had removed from the apartment were scattered on the ground outside. The police officer escorted Reyes to the police station where he obtained a written statement from her concerning her altercation with Marcelle. Reyes informed the police officer that Marcelle had inflicted the contusions on her face. Other police officers transported Marcelle to the same police station, where he was subsequently arrested.\\nThe People charged Marcelle with \\\"aggravated assault and battery,\\\" under title 14, section 298 and title 16, sections 91(b)(1) and (2) of the Virgin Islands Code, which encompass \\\"assault\\\" and \\\"battery\\\" within the definition of \\\"domestic violence.\\\" On June 14, 2007, the trial court began a bench trial, during which Marcelle argued the defense of \\\"resistance by party to be injured\\\" under title 14, section 41 of the Virgin Islands Code and simultaneously alleged that he was resisting imminent injury to his clothing. On July 13, 2007, the trial court adjudged Marcelle guilty of aggravated assault and battery, as an act of domestic violence. On November 21, 2007, Marcelle filed a Motion for Reconsideration pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure \\u2014 in which he sought an acquittal and argued that he had established a defense to the charges. After due consideration, the trial court denied the Motion, concluding that Marcelle's conduct exceeded the level of resistance sufficient to preserve his wardrobe and that, as a result, Marcelle failed to prove his defense. (J.A. at 222.) This timely appeal ensued.\\nII. JURISDICTION\\nTitle 4, section 32(a) of the Virgin Islands Code provides that \\\"[t]he Supreme Court shall have jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law.\\\" A final order is a judgment from a court which ends the litigation on the merits, leaving nothing else for the court to do except execute the judgment. In re Truong, 513 F.3d 91, 94 (3d Cir. 2008) (citing Bethel v. McAllister Bros., Inc., 81 F.3d 376, 381 (3d Cir. 1996)). On March 25, 2008, the trial court entered a final Nunc Pro Tunc Order affirming Marcelle's conviction.\\nIII. ISSUE AND STANDARD OF REVIEW\\nOn appeal, Marcelle contends that the trial court erred in finding him guilty of aggravated assault and battery because the People failed to prove the absence of his defense, \\\"resistance sufficient to protect personal property\\\" under title 14, section 41 of the Virgin Islands Code beyond a reasonable doubt. We exercise plenary review over issues pertaining to the sufficiency of evidence, such as the one presented here. See Stevens v. People, 52 V.I. 294, 304 (V.I. 2009) and United States v. Bornman, 559 F.3d 150, 152, 51 V.I. 1170 (3d Cir. 2009). Much deference is afforded the trial court when examining whether there is substantial evidence upon which a reasonable trier of fact could convict the defendant. Id. The standard of review for a claim of insufficiency of evidence is whether there is substantial evidence, when viewed in the light most favorable to the government, to support the jury's verdict. Ritter v. People, 51 V.I. 354, 358, 361 (V.I. 2009); see also Gov't of the V.I. v. Williams, 739 F.2d 936, 940 (3d Cir. 1984).\\nWe review findings of fact for clear error and conclusions of law de novo. Blyden v. People, 53 V.I. 637, 646 (V.I. 2010); Pell v. E.I. Dupont de Nemours & Co. Inc., 539 F.3d 292, 300 (3d Cir. 2008). Under the clearly erroneous standard, a finding of fact may be reversed on appeal only if it is completely devoid of a credible evidentiary basis or bears no rational relationship to the supporting data. See St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (V.I. 2007); Jama v. Esmor Corr. Services, Inc., 577 F3d 169, 180 (3d Cir. 2009).\\nIV. DISCUSSION\\nA. The trial court did not err in finding Marcelle guilty of aggravated assault and battery because the People proved beyond a reasonable doubt the absence of the defense \\\"resistance sufficient to protect personal property\\\"\\nTo secure a conviction against Marcelle for assault and battery under title 14, section 298 and title 16, sections 91(b)(1) and (2) of the Virgin Islands Code, the People had to prove beyond a reasonable doubt that Marcelle (1) is an adult male, (2) who committed an assault or battery, (3) upon a female. 14 V.I.C \\u00a7 298(5). Assault and battery under the Virgin Islands Code is defined as the use of \\\"any unlawful violence upon the person of another with intent to injure him [or her], whatever be the means or the degree of violence used . . .\\\" 14 V.I.C \\u00a7 292. Once Marcelle raised defense of property under title 14, section 41 of the Virgin Islands Code, the People bore the burden of proving beyond a reasonable doubt that Marcelle did not act in defense of his property. Gov't of the V.I. v. Isaac, 50 F.3d 1175, 1179 (3d Cir. 1995) (citing Gov't of the V.I. v. Smith, 949 F.2d 677, 680, 27 V.I. 332 (3d Cir. 1991)).\\nMarcelle asserts that the trial court erred in finding him guilty of assault and battery because the People did not prove the absence of his defense beyond a reasonable doubt. In support of his defense, Marcelle argues that he used reasonable and necessary force to restrain an aggressor's threatened harm to his property and to a lesser extent upon his person under title 14, section 41 of the Virgin Islands Code. Title 14, section 41, titled \\\"Resistance by party to be injured,\\\" provides:\\nAny person about to be injured may make resistance sufficient to prevent \\u2014\\n(1) an illegal attempt by force to take or injure property in his lawful possession; or\\n(2) an offense against his person or his family or some member thereof\\nMarcelle argued in support of his defense under section 41 that he acted to protecthis clothes, which were being removed from Reyes' apartment, from becoming \\\"unsecured\\\" or from being \\\"exposed to [the] elements.\\\" In asserting the basis for his defense, Marcelle's attorney stated in his closing argument:\\nNow, if you take somebody's property and somebody's clothes without putting them in a bag and start flinging them loose out into the street, you know, I guarantee you that there would be \\u2014 many of those clothes would be rendered unusable. To use reasonable force, reasonable under those circumstances, to restrain that individual from doing that is not out of the question and not unheard of.\\n(J.A. at 182.) Marcelle's attorney further stated;\\nNow once there is an establishment of the fact that one's personal property was at risk of being destroyed, which is uncontroverted on this record, then it establishes a rebuttable presumption that the People must overcome beyond a reasonable doubt that he in turn... was not acting for the limited purpose of protecting his property. (J.A. at 182-183.)\\nAlthough Marcelle's attorney argued otherwise in his closing arguments, the evidence in the record discloses that the People proved the absence of this defense on various grounds. First, the evidence reveals that Marcelle's clothing was not \\\"about to be injured\\\" at the time he assaulted Reyes. Second, the evidence reveals that Marcelle did not use \\\"resistance sufficient\\\" to protect his clothing. And third, the evidence reveals that there was no attempt to \\\"injure property in his lawful possession.\\\"\\n1. The evidence reveals that Marcelle's clothing was not \\\"about to be injured\\\" at the time he attacked Reyes\\nMarcelle argues that he was restraining Reyes from removing his clothes from her apartment. Contrary to testimony given by both Reyes and Marcelle, Marcelle's attorney argued in his closing argument, in support of his defense, that Marcelle \\\"had to go run outside in his boxer [shorts] while his clothes were being thrown out and he had to go in between tussling with Ms. Berlin [and trying to hop into his pants] . . .\\\" However, the evidence discloses that when Reyes started discarding the clothes outside the apartment Marcelle was in the shower. When Marcelle exited the shower and saw Reyes still engaged in discarding the clothes outside, Marcelle did nothing to physically restrain her discarding of -the clothes. This contention is buttressed by the following excerpt from Reyes testimony;\\nQ. [Prosecuting Attorney] When did you put his clothes outside?\\nA. [Reyes] While he was in the shower.\\nQ. What happened when he . . got out [of] the shower?\\nA. He started putting on his clothes. I was arguing. I was asking him why he broke into my house.\\nQ. What happened while you were arguing?\\nA. He was just quiet and I was just putting his stuff outside coming back while I was arguing. I was cursing at him and taking his stuff, the rest of the stuff that was in my house because remember we went to the laundry and his clothes, he have his clothes in the bag, the ones that he washed...\\nSo while he was bathing, when he came out \\u2014 and actually, he just stand up in the hallway and I just was cursing at him and taking out the clothes outside. He sat there. Then he sat down on my couch. So I said, \\\"So are you planning to leave? I want you to leave . . my house.\\\"\\n(J.A. at 28-29.) The following excerpt from Marcelle's testimony further illustrates that he did nothing to prevent Reyes from removing his belongings from Reyes' apartment;\\nQ. [Defense Attorney] What was she doing at that time?\\nA. [Marcelle] Well. She stormed in the house and she was vex. And then she started to pull out all my stuff from around the house. And I was, like, baby, cool out, you know what I'm saying .\\nQ. Okay. Your stuff, what was she doing with it? She started pulling it out?\\nA. She start to pull it out and she start to throw it out the house.\\nQ. Was she exercising any care in putting [it] out or \\u2014\\nA. No, she was just furious and she was throwing it out. And I was on the chair and I was, like, yo, wait up, man. I'm going to put on my pants and my shirt.\\n(J.A. at 151-152.) These excerpts demonstrate that Marcelle did not engage in any physical resistance of Reyes at the time she was discarding his clothes. Specifically, Marcelle sat down for a long period of time and was still sitting well after Reyes had ceased discarding the clothes. Marcelle's belated actions of pushing Reyes against the wall, choking her, and holding her to the ground were not calculated to protect his clothes, because the assault upon Reyes occurred after Marcelle's clothes were outside and purportedly \\\"unsecure\\\" and \\\"exposed to the elements.\\\" Therefore, Marcelle's actions were not calculated to protect property \\\"about to be injured\\\" under section 41.\\n2. Marcelle did not use \\\"resistance sufficient\\\" to protect his clothing\\nTitle 14, section 41 of the Virgin Islands Code also provides that any person may exert resistance sufficient to prevent injury to his property. The force used to deflect an aggressor's threatened harm must be merely sufficient to stop the harm, and application of a greater force than that which is necessary is unlawful. Gov't of the V.I. v. Robinson, 29 F.3d 878, 884, 30 V.I. 428 (3d Cir. 1994).\\nMarcelle argues that the force he inflicted upon Reyes was necessary to protect his clothes from injury. There are several factual circumstances in \\u2022the record that refute Marcelle's argument. Although Marcelle provided testimony that he never assaulted Reyes, the evidence to the contrary is overwhelming. Reyes testified concerning the events that transpired that day. It is important to note that at the time of Reyes' trial testimony, the relationship between Marcelle and Reyes had rekindled and Marcelle was again living with Reyes. Therefore, Reyes' testimony was given at a time when Reyes may have been motivated to modify, or diminish her prior statement to police on the day of the altercation. Nonetheless, Reyes testified that Marcelle grabbed her by the neck, pushed her against the wall, and started choking her. Although Reyes pleaded with Marcelle to stop, he continued to assault her by maintaining his grasp around her neck and eventually pushing her onto the ground and placing his knees on her arms. Reyes sustained black and blue contusions to her arm, and scratches to her upper left chest and elbows from the physical altercation.\\nSeveral police officers testified about Reyes' physical condition and her injuries they observed on the day of the assault. Corroborating evidence of the injuries Reyes sustained from Marcelle's assault is depicted in the investigator's photographs that were admitted into evidence during the trial. The assault that Marcelle inflicted upon Reyes had nothing to do with securing his clothing that was removed from Reyes' apartment. Grabbing Reyes, forcing her against a wall and pinning her to the ground exceeded what was necessary to prevent any injury to Marcelle's clothing.\\n3. No evidence of an attempt to \\\"injure his property\\\"\\nIn support of his defense, Marcelle also argues that his clothing was in danger of being injured by its mere removal from inside the apartment to outside on the adjacent ground and grass. However, Marcelle fails to explain how the removal of his clothes from inside Reyes' apartment to the ground area in proximity to the apartment injured his clothes. Likewise, Marcelle failed to describe the nature or extent of the injury to his clothing.\\nWe find Marcelle's argument, that the clothes were harmed because they were \\\"unsecured\\\" or \\\"exposed to the elements,\\\" to be outlandish, hyperbolic, and unpersuasive. It is difficult to conceive, without credible evidence, what harm was inflicted upon Marcelle's clothes by their merely being outside \\\"exposed to the elements.\\\" In this jurisdiction, it is a common practice for residents to place clothes outside their residence \\u2014 sometimes on a clothesline, or over a tree stump, bush, or branch. We take judicial notice that this decades-old practice of exposing clothing to the elements to dry has not proven to inherently harm, damage or destroy clothing. See Farrell v. People, 54 V.I. 600, 615 (V.I. 2011) (explaining that under federal and local rules of evidence a court may take judicial notice of a fact if it represents general knowledge that cannot be reasonably questioned or disputed).\\nMarcelle's argument is devoid of any cogent or plausible explanation or credible evidence of the danger posed to the clothes by them being outside and \\\"exposed to the elements,\\\" in proximity to the apartment, when he was either inside the same apartment or outside in the presence of his clothing. Furthermore, Marcelle's actions on the day of the altercation do not suggest that he thought his clothes were in danger from being \\\"unsecure.\\\" Notably, Marcelle for some time observed Reyes throw his clothing outside her apartment and made no effort to retrieve them. Furthermore, it is difficult to fathom what \\\"unsecure\\\" means to Marcelle when the evidence also indicates that Marcelle left the bags containing the clothes from the laundry unattended outside the same apartment.\\nThe trial record before us is devoid of any attempt by Reyes to ignite a fire to Marcelle's clothing, to cut them with a pair of scissors, to alter their colors with a chemical agent, or to take any other action that would directly harm or destroy his clothing. Likewise, Marcelle failed to elucidate how, upon the record before us, his clothes would have been harmed or were actually harmed. Therefore, Marcelle's defense of \\\"resistance by a party to be injured\\\" or to prevent injury to property is specious and meritless.\\nThe judge, as the finder of fact in this case, found that the evidence supported a conviction for assault and battery. The judge noted in his reasoning that Reyes omitted information that she had previously given to the police. However, even though Reyes' motivation to prevaricate might have been greater at the time of the trial, when Marcelle and Reyes had resumed living together than on the day of the incident when she gave a statement to the police, the Judge found that the testimony substantiated an assault and battery charge. Furthermore, the fact that the testimony is contradictory does not mean the evidence is insufficient, only that the finder of fact must make credibility determinations. See United States v. Jannotti, 673 F.2d 578, 598 (3d Cir. 1982); accord Smith v. People, 51 V.I. 396, 401 (V.I. 2009) (explaining that \\\"[t]o the extent that there [are] conflicts in the testimony, these conflicts present. . . credibility issues for the [fact finder] to resolve\\\"). The People's case presented sufficient evidence to satisfy the requirements of title 14, section 298 of the Virgin Islands Code and likewise to disprove the defense. Therefore, we reject Marcelle's argument that the government did not present sufficient evidence on the record to rebut the defense of protection of property or person.\\nV. CONCLUSION\\nFinding that no error was committed by the Superior Court, we affirm Marcelle's conviction and affirm the Order and Judgment of the Superior Court.\\nRule 29(c) of the Federal Rules of Criminal Procedure states:\\n(c) After Jury Verdict or Discharge\\n(1) Timefor a Motion. A defendant may move for a judgment of acquittal, or renew such motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.\\n(2) Ruling on the Motion. If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal. If the jury has failed to return a verdict, the court may enter a judgment of acquittal.\\n(3) No Prior Motion Required. A defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as aprerequisite for making such a motion after jury discharge.\\nThe appellate court must affirm the convictions if a rational trier of fact could have found the defendants guilty beyond a reasonable doubt and the convictions are supported by substantial evidence. Latalladi v. People, 51 V.I. 137, 145 (V.I. 2009).\\n\\\"A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.\\\" Fed. R. Evid. 201(b). Judicial notice shall be taken without request by a party,... of such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute. 5 V.I.C. \\u00a7791. Farrell notes that this Court applies the evidence rules in effect at the time of the trial in the pending case; however, Rule 201, effective April 7, 2010, establishes the same legal standard as that applicable at the time of Marcelle's trial. Id. at 615.\"}"
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+"{\"id\": \"3576976\", \"name\": \"UNITED CORPORATION d/b/a PLAZA EXTRA, Appellant/Plaintiff v. TUTU PARK LIMITED and P.I.D., INC., Appellees/Defendants\", \"name_abbreviation\": \"United Corp. v. Tutu Park Ltd.\", \"decision_date\": \"2011-09-07\", \"docket_number\": \"S. Ct. Civ. No. 2010-0083\", \"first_page\": 702, \"last_page\": \"721\", \"citations\": \"55 V.I. 702\", \"volume\": \"55\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Supreme Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T01:29:21.249410+00:00\", \"provenance\": \"CAP\", \"judges\": \"HODGE, Chief Justice; CABRET, Associate Justice', and SWAN, Associate Justice.\", \"parties\": \"UNITED CORPORATION d/b/a PLAZA EXTRA, Appellant/Plaintiff v. TUTU PARK LIMITED and P.I.D., INC., Appellees/Defendants\", \"head_matter\": \"UNITED CORPORATION d/b/a PLAZA EXTRA, Appellant/Plaintiff v. TUTU PARK LIMITED and P.I.D., INC., Appellees/Defendants\\nS. Ct. Civ. No. 2010-0083\\nSupreme Court of the Virgin Islands\\nSeptember 7, 2011\\nJOHN K. Dema, ESQ., The Law Offices of John K. Dema, P.C., St. Croix, USVI, Attorney for Appellant.\\nTreston E. Moore, Esq., Moore, Dodson & Russell, PC., St. Thomas, USVI, Attorney for Appellees.\\nHODGE, Chief Justice; CABRET, Associate Justice', and SWAN, Associate Justice.\", \"word_count\": \"7435\", \"char_count\": \"45920\", \"text\": \"OPINION OF THE COURT\\n(September 7, 2011)\\nHodge, C.J.\\nAppellant United Corporation (\\\"United\\\") appeals from an October 12,2010 Opinion and Order entering summary judgment in favor of Appellees Tutu Park Limited (\\\"Tutu\\\") and P.I.D., Inc., and dismissing all of its claims with prejudice. For the reasons that follow, this Court reverses the Superior Court's grant of summary judgment and re-instates United's complaint.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nOn July 9, 2001, United filed a verified complaint against Tutu and P.I.D. \\u2014 a general partner in Tutu \\u2014 in the Superior Court, which sought damages for breach of contract. The complaint alleged that United and Tutu had entered into a contract on October 29, 1991 in which United had agreed to lease premises at the Tutu Park Shopping Mall in St. Thomas, U.S. Virgin Islands \\u2014 which is owned and operated by Tutu \\u2014 in order to operate a supermarket known as Plaza Extra. (J.A. 25-26.) According to the complaint, Tutu had granted United the exclusive right to operate a supermarket at the mall. (J.A. 26.) Although Tutu had entered into a lease with K-Mart \\u2014 a national retailer which sells food products in some of its stores \\u2014 in November 1989, United alleged in its complaint that the agreement between Tutu and K-Mart contained a provision prohibiting K-Mart from operating a supermarket at the mall, a provision which United contended had been incorporated into the October 1991 agreement. (J.A. 26-27.) Finally, the complaint alleged that K-Mart began to sell food at its store on or about June 7, 1993, and then expanded its food sales in November 1995 and again in November 2000, which, according to United, transformed K-Mart into a supermarket and resulted in Tutu breaching the October 1991 agreement. (J.A. 27-28.) United attached a copy of the October 1991 agreement to its complaint, as well as a copy of the November 1989 agreement between Tutu and K-Mart.\\nUnited filed a motion for partial summary judgment on August 22, 2002, and Tutu filed its opposition and cross-motion for summary judgment on September 16, 2002. Following additional motion practice, on July 7,2003, the Superior Court entered, nunc pro tunc to February 11, 2003, an order (1) deferring consideration of the summary judgment motions pending a decision by the United States Court of Appeals for the Third Circuit in Sunshine Supermarket, Inc. et al. v. Kmart Corporation, a c ase which involved interpretation of a contract similar to the November 1989 agreement; and (2) directing the parties to submit supplemental authorities on the meaning of the term \\\"supermarket\\\" in the context of the litigation within sixty days, which both parties timely filed.\\nOn October 5, 2004, the Superior Court directed the parties to file an informational motion with respect to the status of the Sunshine Supermarket appeal in the Third Circuit. But while United filed its informational response on October 13, 2004 \\u2014 which advised that the Sunshine Supermarket case had settled and that the appeal had been dismissed \\u2014 the Superior Court did not rule on the pending summary judgment motions. Instead, in June 30, 2005 and June 16, 2006, the Superior Court inquired sua sponte as to whether the matter should be referred to arbitration or mediation. After both parties filed status reports in July 2006, the matter lay dormant in the Superior Court for almost three years, when it was re-assigned to a different judge in February 2009. However, after re-assignment the matter again remained dormant for an additional year. On March 16, 2010, the Superior Court held a status conference and, in a March 25, 2010 Order, directed the parties to supplement their prior motions for summary judgment to address any new case law that may have developed during the intervening seven and a half years. Pursuant to the March 25, 2010 Order, Tutu supplemented its cross-motion for summary judgment on March 30, 2010, United supplemented its motion for partial summary judgment on April 13, 2010, and Tutu filed a reply to United's supplemental filing on May 3,2010. The Superior Court, in an October 12, 2010 Opinion and Order, denied United's motion for partial summary judgment, granted Tutu's motion for summary judgment, and dismissed United's action with prejudice. United timely filed its notice of appeal on November 4, 2010.\\nII. DISCUSSION\\nA. Jurisdiction and Standard of Review\\nThe Superior Court had jurisdiction pursuant to section 76 of title 4 of the Virgin Islands Code, while this Court possesses jurisdiction over the October 12, 2010 Opinion and Order, which constitutes a final judgment, pursuant to VI. CODE Ann. tit. 4 \\u00a7 32(a) (1997).\\n\\\"This Court exercises plenary review of a Superior Court's grant of summary judgment.\\\" Williams v. United Corp., 50 V.I. 191, 194 (V.I. 2008) (citing Maduro v. Am. Airlines, Inc., S.Ct. Civ. No. 2007-029, 2008 V.I. Supreme LEXIS 24, *7 (V.I. Feb. 28, 2008) (unpublished)). \\\"On review, we apply the same test that the lower court should have utilized.\\\" Id. \\\"Because summary judgment is a drastic remedy, it should be granted only when 'the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.' \\\" Id. (quoting former wording of Fed. R. Crv. R 56(c)). \\\"When reviewing the record, this Court must view the inferences to be drawn from the underlying facts in the light most favorable to the non-moving party, and we must take the non-moving party's conflicting allegations as true if 'supported by proper proofs.' \\\" Joseph v. Hess Oil V.I. Corp., 54 V.I. 657, 664 (V.I. 2011) (quoting Williams, 50 V.I. at 194-95 (V.I. 2008)). \\\"[T]o survive summary judgment, the nonmoving party's evidence must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.\\\" Id. (internal quotation marks omitted).\\nB. The Summary Judgment Award\\n\\\"To succeed on a breach of contract claim, a plaintiff must show four elements: (1) an agreement, (2) a duty created by that agreement, (3) a breach of that duty, and (4) damages.\\\" Arlington Funding Servs., Inc. v. Geigel, 51 V.I. 118, 134-35 (V.I. 2009) (quoting Galt Capital, LLP v. Seykota, Civ. Nos. 2002-63, 2002-134, 2007 U.S. Dist. LEXIS 53199, at *6 (D.V.I. July 18, 2007) (unpublished)). Ordinarily, when the terms of a contract are unambiguous, the Superior Court treats the issue of the meaning of those terms as a question of law, but if the terms are ambiguous, the issue of the meaning of the terms becomes a question of fact. As this Court has recently explained,\\n[T]o decide whether a contract is ambiguous, we do not simply determine whether, from our point of view, the language is clear . . . Before making a finding concerning the existence or absence of an ambiguity, we consider the contract language . . . and the extrinsic evidence offered in support of each interpretation. Extrinsic evidence may include . the conduct of the parties that reflects their under standing of the contract's meaning. Teamsters Indus. Employees Welfare Fund v. Rolls-Royce Motor Cars, Inc., 989 F.2d 132, 135 (3d Cir. 1993). Nevertheless, a finding that extrinsic evidence renders a contract latently ambiguous will typically defeat a motion for summary judgment and necessitate that the trier of fact resolve the ambiguity in light of the extrinsic evidence. See CAT Aircraft Leasing, Inc. v. Cessna Aircraft Co., [650 F. Supp. 57, 22 V.I. 442, 445] (D.V.I. 1986). Appellate courts, however, have held that, notwithstanding a latent ambiguity, \\\"if the court finds that a contract is ambiguous and that the extrinsic evidence is undisputed, then the interpretation of the contract remains a question of law for the court to decide\\\" at the summary judgment stage. In re Columbia Gas System, Inc., 50 F.3d 233, 241 (3d Cir. 1995) (emphasis added).\\nWhite v. Spenceley Realty LLC, 53 V.I. 666, 678-79 (V.I. 2010). Applying this standard, we reverse the Superior Court's October 12, 2010 grant of summary judgment.\\n1. Construction of Section 4.02 of the October 1991 Agreement\\nPursuant to section 4.01 of the October 1991 agreement, \\\"[United] shall have the exclusive right as set forth in Section 4.02 to operate a food supermarket at the Shopping Center as long as all the Demised Premises are open and are operated as a Supermarket Food type Retail outlet.\\\" (J.A. 74.) In its October 12, 2010 Opinion, the Superior Court found, in the context of United's motion for partial summary judgment, that it was not necessary to reach the issue of whether K-Mart operated a supermarket because, even if K-Mart was a supermarket, the restrictive covenant in section 4.02 of the October 1991 agreement between United and Tutu did not apply to K-Mart. Section 4.02 provides, in its entirety, as follows:\\nLandlord agrees that during the term of this Lease and as long as the Demised Premises are operated as a Supermarket, neither Landlord nor its successor or assigns will lease any premises in the Shopping Center set forth on EXHIBIT \\\"B\\\" to another food supermarket. This restriction shall not prohibit other tenants from selling the same products as Tenant as long as it is incidental to their normal business nor shall this restriction apply to the K-Mart premises nor to any Tenant of less than 10,000 square feet. K-MART has agreed that they will not operate a supermarket, pursuant to paragraph 22 of their lease with Landlord (which is attached hereto) as long as the supermarket is operated by Florida Supermarket or their successor. Landlord shall obtain an agreement with K-MART that PLAZA EXTRA shall be in- eluded as a successor of Florida Supermarket for purposes of that paragraph.\\n(J.A. 74.) Pursuant to paragraph 22 of the November 1989 agreement between K-Mart and Tutu,\\nTenant agrees with Landlord that so long as Florida Super Markets, Inc. d/b/a Sun Supermarkets its affiliates or successors is operating a supermarket or grocery store on the property described in Exhibit \\\"A\\\" Parcel B, Tenant agrees that it will not use the demised premises for the operation of a food supermarket or food department or for the sale of off-premises consumption of groceries, meat, produce, dairy products, baker products or any of these. The foregoing shall not, however, prohibit: (i) the sale by a restaurant operation, lunch counter, deli or fountain of prepared ready to eat food items, either for consumption on or off the premises (ii) the sale by Tenant, its successors and assigns, of candy, cookies and other miscellaneous foods in areas totalling [sic] not more than Five Thousand (5,000) square feet of sales area, exclusive of aisle space. This restriction shall be void if Florida Super Markets Inc. d/b/a Sun Supermarkets its affiliates or successors shall fail to operate a supermarket for a continuous period of one hundred eighty (180) days, except for non operation due to fire' and casualty.\\n(J.A. 44.)\\nAccording to United, the Superior Court erred in its analysis because (1) Tutu never disputed at any point in the Superior Court proceedings that the restrictive covenant encompassed K-Mart; and (2) the portion of section 4.02 which excluded K-Mart referred only to the reference to tenants selling products \\\"incidental to their normal business\\\" and not to the restrictive covenant prohibiting Tutu from leasing to another supermarket or K-Mart from operating a supermarket. Tutu, however, contends that the Superior Court interpreted this provision correctly, and states that it did make this argument in its opposition to United's motion for summary judgment and cross-motion for summary judgment.\\nFirst, we agree with United that Tutu never argued in its September 16, 2002 cross-motion for summary judgment that no portion of section 4.02 applied to K-Mart. Rather, Tutu only contended that there was no violation of section 4.02 because K-Mart was not actually operating a supermarket. (J.A. 476-79.) Likewise, in the portion of its September 16, 2002 filing which served as an opposition to United's August 22, 2002 motion for partial summary judgment, Tutu also never contested United's claim that section 4.02 prohibited K-Mart from operating a supermarket, but only opposed United's motion on other grounds. (J.A. 487-93.) Therefore, given that both parties had conceded \\u2014 at least for purposes of summary judgment \\u2014 that section 4.02 precluded K-Mart from operating a supermarket, the Superior Court erred in reaching this issue sua sponte in its October 12, 2010 Opinion without \\u2014 at an absolute minimum \\u2014 providing United with an opportunity to be heard with respect to any grounds for summary judgment being raised by the Superior Court sua sponte. See Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311-12 (9th Cir. 1982) (holding that court may sua sponte enter summary judgment against the party who moved for summary judgment, but only if that party has had a fair opportunity to dispute that issue); Ramsey v. Coughlin, 94 F.3d 71, 73-74 (2d Cir. 1996) (holding that, though trial court may in some circumstances raise issue of summary judgment sua sponte, \\\"[s]ummary judgment should not be granted . . . unless the losing party has been given an opportunity to demonstrate that there are genuine material issues for trial.\\\") (quoting Hispanics for Fair and Equitable Reapportionment v. Griffin, 958 F.2d 24, 25 (2d Cir. 1992)).\\nNevertheless, because this Court applies on appeal the same test that should have been applied by the Superior Court, and the parties have both addressed the proper interpretation of section 4.02 in their briefs, this Court shall, in the interests of judicial economy, reach this issue on the merits and hold that the Superior Court misinterpreted section 4.02. The first sentence of section 4.02 provides that \\\"neither Landlord nor its successor or assigns will lease any premises in the Shopping Center . . . to another food supermarket.\\\" (J.A. 74 (emphasis added)). Therefore, the first sentence of section 4.02 \\u2014 by its own unambiguous terms \\u2014 appears not to apply to leases that were already effectuated, such as the lease between K-Mart and Tutu which was signed in November 1989. Thus, if the first sentence is read to refer only to future leases, the meaning of the portion of the second sentence providing that \\\"nor shall this restriction apply to the K-Mart premises\\\" becomes readily apparent, in that it simply confirms that the first sentence of section 4.02 did not purport to override the agreement between Tutu and K-Mart, which had been entered into prior to the October 1991 agreement and contained its own terms with respect to what products K-Mart was permitted to sell. Importantly, this interpretation of the first sentence also places the third and fourth sentences into context, since the third sentence expressly invokes paragraph 22 of the November 1989 K-Mart agreement, and the fourth sentence provides that Tutu will ensure that United's Plaza Extra store \\\"be included as a successor of Florida Supermarket for purposes of that paragraph.\\\" In other words, with respect to K-Mart, section 4.02 (1) confirms that the portion of paragraph 22 of the November 1989 agreement that relates to whether K-Mart may operate a supermarket remains in effect; and (2) requires Tutu to take whatever steps necessary to ensure that Plaza Extra be a successor of Florida Supermarket under the November 1989 agreement, which would have the effect of continuing the prohibition against K-Mart operating a supermarket. Significantly, in its September 16, 2002 cross-motion for summary judgment, Tutu took this exact same position, and expressly conceded that the portion of paragraph 22 providing that K-Mart will not operate a supermarket was incorporated into section 4.02, even though it contended that the other portions of paragraph 22 were not incorporated. (J.A. 479.) Consequently, the Superior Court erred both by reaching this issue, and by holding that there is no restrictive covenant in effect that applies to K-Mart.\\n2. Tutu Possesses a Duty to Enforce Section 4.02 Against K-Mart\\nThe Superior Court, as an alternate ground for denying United's motion for partial summary judgment and granting Tutu's cross-motion for summary judgment, held that even if the pertinent portion of paragraph 22 of the November 1989 agreement was incorporated into the October 1991 agreement, United could not be entitled to any relief because section 4.02 provided that \\\"K-MART has agreed that they will not operate a supermarket, pursuant to paragraph 22 of their lease\\\" and did not include any provision mandating that Tutu enforce paragraph 22 against K-Mart on United's behalf. In other words, the Superior Court found that' \\\"[s]ection 4.02 would reflect only promises by Kmart to Tutu Park, and not by Tutu Park to Plaza Extra,\\\" and thus \\\"[b]ecause the Paragraph does not contain promises by Tutu Park to Plaza Extra, Plaza Extra has no claim against Tutu Park for breach of contract even if Kmart violated Paragraph 22.\\\" (J.A. 14.)\\nAgain, we note that Tutu, at no point in the Superior Court proceedings, ever contended that it did not owe the requisite duty to United, and thus the Superior Court should not have reached this issue sua sponte without providing United with a full and fair opportunity to address the issue. See Cool Fuel, 685 F.2d at 311-12. Nevertheless, we find that the Superior Court also erred on the merits because it viewed section 4.02 in isolation rather than in the context of the entire agreement. The first page of the October 1991 agreement expressly identifies United and Tutu as the parties to the agreement and provides that they \\\"desire to enter into this Lease on the terms and conditions herein set forth.\\\" (J.A. 58.) Importantly, section 14.01 of the October 1991 agreement expressly provides \\u2014 in its entirety \\u2014 that \\\"[e]very term, condition, agreement or provision contained in this Lease shall be deemed to be also a covenant,\\\" (J.A. 95), which, given that United and Tutu are the only parties to the October 1991 agreement, is sufficient to make the entirety of section 4.02 enforceable without the need for any additional language stating that section 4.02 binds Tutu. See Cedar Cove Homeowners-Ass'n, Inc. v. DiPietro, 368 S.C. 254, 628 S.E.2d 284, 291 (2006) (\\\"The word 'covenant' means to enter into a formal agreement, to bind oneself in contract, and to make a stipulation.\\\") (quoting 20 Am. Jur. 2d Covenants, Conditions, and Restrictions \\u00a7 1.1)). Moreover, although the Superior Court found that \\\"[t]he 'Kmart has agreed' language is more appropriately characterized as background language, rather than legally operative language creating [a]n obligation on Tutu's behalf,\\\" (J.A. 15 n.6), section 4.01 expressly provides that \\\"[United] shall have the exclusive right as set forth in Section 4.02 to operate a food supermarket at the Shopping Center,\\\" (J.A. 74), and thus would create a legal obligation under the October 1991 agreement even if the language in section 4.02, when read in conjunction with section 14.01, would have otherwise been insufficient to do so.\\nIn addition, to the extent the pertinent language in the October 1991 agreement could be subject to a different interpretation, the uncontradicted deposition testimony of both United and Tutu's corporate representatives with respect to their actions after the October 1991 agreement was signed conclusively established that \\u2014 notwithstanding any ambiguity in the text of section 4.02 \\u2014 both entities believed the agreement imposed a duty on Tutu to enforce section 4.02 on United's behalf against K-Mart. In his deposition, Fahti Yusuf \\u2014 a principal of United \\u2014 testified that, as early as 1994, he complained to William Lawrence Mahaffey \\u2014 Tutu's corporate representative \\u2014 about the products K-Mart was selling at its store, that he believed that \\\"Mr. Mahaffey is supposed to protect me,\\\" (J.A. 221), and that he also repeatedly complained to Larry Nelson and John Foster \\u2014 two other Tutu representatives \\u2014 after K-Mart remodeled its store in November 1995, with Foster telling him that he is \\\"fully covered\\\" pursuant to the October 1991 agreement. (J.A. 222-26.) Importantly, during his deposition Mahaffey testified that K-Mart had assured Tutu that its food product line was not violating Tutu's agreement with United, (J.A. 197), from which a trier of fact viewing the evidence in the light most favorable to United could infer that Tutu believed that it possessed a duty to United to ensure that K-Mart did not operate a supermarket. But even more significantly, Mahaffey also expressly stated that Tutu believed that it had a contractual obligation to enforce paragraph 22 against K-Mart on United's behalf pursuant to the October 1991 agreement:\\nWe don't have to enforce every one of the provisions in paragraph 22. We're not required to. The only person that we've ever made a promise to with regard to those would be Mr. Yusuf through Plaza Extra and that was to prevent it from becoming a supermarket.... If I choose to do something under 22,1 only have to be careful of the exclusion I gave Plaza Extra and that is there be no supermarket and there is no supermarket. And I don't think there will be a supermarket, so that's \\u2014 that's why I'm a little troubled with this.\\n(J.A. 205-06.) Thus, we conclude that the Superior Court not only erred in reaching this issue sua sponte, but erred on the merits when it held that section 4.02 of the October 1991 agreement was not binding on Tutu, since both the plain language of sections 4.02 and 14.01, as well as the undisputed extrinsic evidence, established that Tutu possessed a duty on behalf of United to enforce the terms of section 4.02 by ensuring that K-Mart did not operate a supermarket in contravention to paragraph 22 of its lease with Tutu.\\n3. The Meaning of \\\"Supermarket\\\" in the Context of this Case is a Question of Fact for the Jury\\nFinally, the Superior Court, relying on several cases discussing the meaning of \\\"supermarket\\\" that Tutu had cited in its 2010 supplemental brief, found that K-Mart did not operate a supermarket. In reaching this decision, the Superior Court declined to consider a report from Richard W. Moore \\u2014 an economist retained by United as an expert \\u2014 with respect to the industry definition of \\\"supermarket\\\" because, although it was signed and submitted in response to the Superior Court's July 7, 2003 Order, it was not sworn or based on personal knowledge. According to United, the Superior Court erred by (1) sua sponte excluding Moore's report in the absence of any objection from Tutu to its consideration; and (2) weighing the evidence and making factual findings that were not supported by evidence in the record. Tutu, however, contends that the Superior Court acted appropriately and, even if Moore's report had been considered, the authorities cited by Moore support the Superior Court's holding that K-Mart is not a supermarket. However, it is not necessary for this Court to determine if the Superior Court erred when it sua sponte excluded the Moore report, for even if the Superior Court could have properly excluded that document, it should not have resolved the question of whether K-Mart is a \\\"supermarket\\\" at the summary judgment stage.\\nFor purposes of section 4.02 of the October 1991 agreement, \\\"supermarket\\\" is an ambiguous term. Importantly, \\\"supermarket\\\" is not defined in the October 1991 agreement and the three cases relied upon by the Superior Court and Tutu in its 2010 supplemental brief recognize that there are at least two different \\\"industry\\\" definitions of the term \\\"supermarket,\\\" with what one of the cases identified as the \\\"dictionary\\\" definition of \\\"supermarket\\\" being different from both of those industry definitions. Nevertheless, despite this clear dispute about both the meaning of the term and whether K-Mart operated a supermarket, the Superior Court found that K-Mart did not qualify as a supermarket because (1) \\\"Kmart does not offer fish products or produce, and it does not have a 'very large rice and grains section;' \\\" (2) \\\"[i]t does not offer any meat products other than pre-packaged cold cuts;\\\" (3) \\\"its food sales are incidental to its full product line;\\\" (4) \\\"Kmart does not have a 'full line' of groceries, meat or produce but, rather, a limited selection of those categories\\\" which \\\"are not sold 'fresh;'\\\" and (5) \\\"Kmart does not have a service deli or a bakery.\\\" (J.A. 12-13.) In other words, it appears the Superior Court held that K-Mart is not a supermarket notwithstanding this ambiguity because it believed that K-Mart could not qualify as a supermarket under any of the three definitions Tutu cited in its 2010 supplemental brief.\\nThe Superior Court, however, failed to recognize that the three cases cited in Tutu's 2010 supplemental filing were not the only authorities on the meaning of \\\"supermarket\\\" that Tutu had made part of the record. In its initial September 16, 2002 motion, Tutu noted that the reference to 10,000 square feet in the sentence \\\"nor shall this restriction apply to the K-Mart premises nor to any Tenant of less than 10,000 square feet\\\" in section 4.02 \\\"may be used in defining 'supermarket' to the extent required\\\" because \\\"[s]ince (food) supermarket is not defined herein by the particular products it sells, nor can it since all tenants can sell the same products, it must be defined by size as a default.\\\" (J.A. 478.) However, in its 2003 supplemental filing, Tutu provided the Superior Court with four authorities that provided four additional definitions of \\\"supermarket,\\\" without (1) taking a position as to which of the five definitions the Superior Court should adopt; or (2) pointing to any evidence in the record demonstrating that K-Mart could not qualify as a supermarket under the four new definitions proposed by Tutu. Likewise, Tutu's 2010 supplemental filing again proposed three additional definitions \\u2014 for a total of eight definitions proposed by Tutu alone \\u2014 while still not taking any position as to which definition was controlling for purposes of the October 1991 agreement. Moreover, although Tutu did, in its 2010 filing, argue that K-Mart did not qualify as a supermarket under the three definitions set forth in the three cases it cited in that filing, it still did not make any argument \\u2014 let alone cite to any evidence in the record \\u2014\\u2022 with respect to why K-Mart would not qualify as a supermarket under the authorities it introduced into the record through its 2003 filings. In other words, Tutu failed to point to any evidence that indicated an absence of a genuine issue of material fact but \\u2014 on the contrary \\u2014 actually pointed to evidence that demonstrated the existence of an important factual issue: the meaning of \\\"supermarket.\\\"\\nAs this Court has previously held, when the party moving for summary judgment has introduced conflicting pieces of evidence into the record, the Superior Court cannot independently weigh the evidence to resolve the conflict, but must accept as true the evidence that is most favorable to the non-moving party. See Sealey-Christian v. Sunny Isle Shopping Center, Inc., 52 V.I. 410, 422 (V.I. 2009) (holding that Superior Court erred in making finding, at summary judgment stage, as to how often defendant had inspected door when one of defendant's agents testified in deposition that door was inspected weekly while another agent gave contradictory testimony that door was inspected daily). Although the Superior Court ordered the parties to file supplemental briefs in 2010, the authorities relied upon in the supplemental filings did not have the effect of erasing all the documents the parties had made a part of the record in their 2002 and 2003 filings. Therefore, although seven and a half years had lapsed since the parties had filed their initial summary judgment motions, the Superior Court continued to possess an obligation to consider all prior evidence, without granting any evidence submitted in 2010 any greater weight solely because the documents were filed more recently.\\nUnder these circumstances, the term \\\"supermarket\\\" in the October 1991 agreement is ambiguous. Accordingly, by providing the Superior Court with eight different definitions of the term, but only pointing to evidence that K-Mart is not a supermarket with respect to some of those definitions, Tutu failed to demonstrate that it was entitled to a grant of summary judgment. Therefore, because a genuine issue of material fact exists as to whether K-Mart operated a \\\"supermarket,\\\" we reverse the Superior Court's October 12, 2010 Opinion and Order and remand this matter to the Superior Court for proceedings consistent with this opinion.\\nIII. CONCLUSION\\nThe Superior Court erred when it sua sponte held that no restrictive covenant applies to K-Mart because (1) neither party disputed in its summary judgment motions that section 4.02 precluded K-Mart from operating a supermarket, and (2) to the extent it could reach the issue, its holding was based on a misinterpretation of the plain text of section 4.02 of the October 1991 agreement. Additionally, the Superior Court also erred when it held that section 4.02 was not binding on Tutu, since both the plain language of section 4.02, as well as the undisputed extrinsic evidence, established that Tutu possessed a duty on behalf of United to enforce the terms of section 4.02 by ensuring that K-Mart did not operate a supermarket. Finally, the Superior Court erred when it found, at the summary judgment stage, that K-Mart does not operate a supermarket because in the context of the October 1991 agreement, the term \\\"supermarket\\\" is ambiguous and, depending on which definition is used, a trier of fact could reasonably find that K-Mart operates a supermarket. Accordingly, we reverse the Superior Court's October 12, 2010 Opinion and Order, re-instate United's complaint, and remand the matter to the Superior Court.\\nIt is important to note that, although the Clerk of the Superior Court is required to prepare certified docket entries that accurately represent what documents were filed during the Superior Court proceedings, the docket entries in this case are very highly incomplete, and numerous documents \\u2014 including, but not limited to, Tutu's answer, United's motion for partial summary judgment, and Tutu's cross-motion for summary judgment \\u2014 are not listed as part of the docket even though they are included in the Joint Appendix and addressed in various Superior Court orders. Therefore, given the absence of accurate docket entries, all references to the dates of documents in this opinion are approximate based on the dates provided by the parties.\\nSince all of United's claims against P.I.D. are based on P.I.D. being a general partner in Tutu, unless otherwise noted all subsequent references to Tutu in this opinion refer to Tutu and P.I.D. collectively.\\nWe note that it is not clear if the Superior Court properly applied the summary judgment standard with respect to each of the two summary judgment motions that were before it. Pursuant to this Court's precedents, when considering United's motion for partial summary judgment, the Superior Court was required to view all the evidence in the light most favorable to Tutu, and, when considering Tutu's cross-motion for summary judgment, it was mandated to view the evidence in the light most favorable to United.\\nIn Part II.A. of the October 12, 2010 Opinion, the Superior Court, in the context of United's motion for partial summary judgment, held that it \\\"cannot grant summary judgment based on a violation of Section 4.0\\u00cd\\\" of the October 1991 agreement because United \\\"neither alleged in its Complaint a violation of this particular provision of its Lease, nor did it make this argument anywhere in its 2002 or 2010 Motions for Summary Judgment.\\\" (J.A. 11 (emphasis added).) Likewise, in Part n.B., the Superior Court held that even if United \\\"had properly raised the issue of a violation of Section 4.01, it still would not be entitled to a judgment in its favor because Kmart is not a 'food supermarket.' \\\" (J.A. 11 (emphasis added).) Moreover, in Part U.C., the Superior Court found \\\"that even if Paragraph 22 were incorporated, and even if Kmart violated Paragraph 22... [United] is not entitled to a judgment in its favor.\\\" (J.A. 13) (emphasis added).) Finally, in the concluding paragraph, the Superior Court held that \\\"[United] is not entitled to a judgment as a matter of law\\\" because \\\"there is no evidence that Tutu Park breached any promise it made to [United] in Section 4.02,\\\" and \\\"[therefore, Tutu Park is entitled to summary judgment in its favor.\\\" (J.A. 17.)\\nGiven this language in the October 12,2010 Opinion, it appears that the Superior Court entered summary judgment in favor of Tutu solely because United had failed to demonstrate that it was entitled to summary judgment in its favor. But, even if the Superior Court was correct that United was not entitled to have its motion for partial summary judgment granted, the Superior Court could not grant Tutu's motion for summary judgment without viewing all the evidence in the light most favorable to United to determine if a genuine issue of material fact should preclude entering summary judgment in Tutu's favor. Accordingly, the Superior Court, by analyzing all of the issues solely from the perspective of United's motion for partial summary judgment and then entering summary judgment in favor of Tutu without conducting any further analysis, erred by failing to apply the correct legal standard to Tutu's cross-motion for summary judgment.\\nNevertheless, as noted above, this Court, on appeal, applies the same test that the Superior Court should have performed. See Williams, 50 V.I. at 194. In other words, when reviewing the Superior Corut's decision to enter summary judgment in favor of a party, this Court grants the Superior Court no deference. Therefore, rather than vacating the Superior Court's October 12,2010 Opinion and Order with directions to apply the correct legal standard on remand, this Court may, notwithstanding this error, review the Superior Court's decision to enter summary judgment in favor of Tutu pursuant to the correct legal standard. See Martin v. Martin, 54 V.I. 379, 385 (V.I. 2010); Hodge v. McGowan, 50 V.I. 296, 310-11 (V.I. 2008).\\nWe note that, although section 4.02 provides that \\\"K-MART has agreed that they will not operate a supermarket, pursuant to paragraph 22 of their lease with Landlord... as long as the supermarket is operated by Florida Supermarket or their successor,\\\" (J.A. 74 (emphases added)), paragraph 22 provides that \\\"Tenant agrees that it will not use the demised premises for the operation of afood supermarket or food department,\\\" and that \\\"[t]his restriction shall be void if Florida Super Markets Inc. d/b/aSun Supermarkets its affiliates or successors shall fail to operate a supermarket for a continuous period of one hundred eighty (180) days____\\\" (J.A. 44 (emphases added).) However, because it is not necessary to our decision, this Court does not address the significance \\u2014 if any \\u2014 in the alternating use of the terms \\\"supermarket\\\" and \\\"food supermarket\\\" in paragraph 22.\\nGiven that our ultimate holding that Tutu is not entitled to summary judgment is not dependent on whether all or part of paragraph 22 was incorporated through section 4.02, this Court declines to resolve this issue as part of this appeal.\\nIn its October 12,2010 Opinion, the Superior Court held that section 4.01 \\\"may well give rise to an implied promise by Tutu Park to prevent or stop another business from operating a supermarket,\\\" but that United \\\"neither alleged in its Complaint a violation of this particular provision of its Lease, nor did it make this argument anywhere in its 2002 or 2010 Motions for Summary Judgment.\\\" (J.A. 11.) However, it is not clear why United would have had to specifically cite to section 4.01, given that the pertinent provision of section 4.01 simply invokes section 4.02, which United did clearly raise in its motion for partial summary judgment. Moreover, as noted above, section 14.01 would have rendered the provisions of section 4.02 a covenant between Tutu and United. In addition, at no point did Tutu argue (1) that it did not possess an obligation to enforce section 4.02 on behalf of United in the event K-Mart violated the provisions of paragraph 22 that had been incorporated through section 4.02; or (2) that United's complaint was ambiguous with respect to what provision of the October 1991 agreement it sought to enforce, and the Superior Court cited to no authority for the proposition that it was empowered to sua sponte raise these arguments on behalf of Tutu when Tutu had sought summary judgment on other grounds. On the contrary, even if United's complaint only selectively referenced portions of the October 1991 agreement, in its answer Tutu expressly stated that \\\"the subject agreement cannot be selectively referenced, must be read in its entirety and as a whole to determine the full and complete rights of and between those who are party to the referenced agreement,\\\" (J.A. 157), and reiterated the need for the Superior Court to read the entire contract even in the specific context of section 4.02. (J.A. 157-58), thus directing that the Superior Court consider the entire agreement in order to determine the parties' rights.\\nAs Tutu correctly noted in its September 16, 2002 cross-motion for summary judgment, some courts have held that \\\"where the cause of action rests entirely on an alleged oral understanding concerning a subject which is dealt with in a written contract, it is presumed that the writing was intended to set forth the entire agreement as to that particular subject.\\\" (J.A. 484 (quoting Gianni v. R. Russell & Co., 281 Pa. 320, 126 A. 791, 792 (1924).) However, as this Court has recently held, courts may consider evidence of how the parties have acted after a contract has been signed in order to determine what meaning the parties intended to give to its written terms. White, 53 V.I. at 678.\\nBecause the plain language of sections 4.02 and 14.01 appear to bind Tutu to enforce the terms of section 4.02, we decline to address United's argument that various provisions of the Restatement (Second) of Property: Landlord and Tenant and the Restatement (Second) of Contracts authorize a tenant to file suit against a landlord who breaches a non-compete promise in a lease.\\nIn re Manyfoods, Inc., No. 03-27989, 2009 WL 2886312 (Bkrtcy. D.N.J. Aug. 17, 2009); Slawsby v. Ciprino, No. 031515BLS, 2003 Mass. Super. LEXIS 186 (Mass. Super. Ct. June 13, 2003); Peter J. Schmitt, Co. v. Phar-Mor, 31 Pa. D. & C.3d 394 (Pa. Com. Pl. 1984).\\nThe Slawsby court observed that the industry definition of supermarket is \\\"[a] self-service retail food store, with annual sales of $2 million or more, which contains basic departments offering groceries, meat, fish, produce, dairy products and frozen foods.\\\" 2003 Mass. Super. LEXIS 186, at *15. However, the Manyfields court relied on expert testimony to find that a supermarket is \\\"a format offering a full line of groceries, meat and produce, which offers a service deli and frequently a bakery.\\\" 2009 WL 2886312, at *9. Moreover, in Schmitt, the court found that \\\"in the common parlance, 'supermarket' denotes an establishment offering the sale at retail not only candy, snacks and 'dry groceries' but also fresh meat, fresh produce, frozen foods and dairy products, as well as a full panoply of other items.\\\" 31 Pa. D. & C.3d at 399.\\nUnited accompanied its motion for partial summary judgment with an extensive list of numerous food products sold by K-Mart. (J.A. 130-54.) In their respective summary judgment motions, the parties disputed whether these products were sufficient to qualify K-Mart as a \\\"supermarket,\\\" as opposed to a \\\"food department\\\" or a store that sells some food products.\\nThe very first authority Tutu included in its 2003 filing \\u2014 Webster's New World Dictionary \\u2014 defines \\\"supermarket\\\" as \\\"a large, self-service retail food store or market, often one of a chain,\\\" (J.A. 635), without making any reference to a specific size of store, types of food products sold, freshness of products, or gross or net profits or revenue. Similarly, the second authority Tutu directed the Superior Court to consider \\u2014\\u2022 a definition authored by William H. Bolen, Ph.D., the Director of Retailing Studies at Georgia Southern University \\u2014 defines \\\"supermarket\\\" as \\\"a large store that sells food and various other products,\\\" stated that \\\"[s]upermarkets differ from other grocery stores chiefly in their volume of sales\\\" in that \\\"[a] supermarket sells at least $2 million worth of goods each year,\\\" and \\u2014 with respect to the types of products sold \\u2014 simply provided that they \\\"sell a variety of food products, including canned goods, dairy products, and frozen foods,\\\" (J.A. 636), without requiring that products be sold fresh, that any specific type of product be sold, or the presence of a bakery or deli. Moreover, Professor Bolen's definition also stated that \\\"many [supermarkets] also stock auto supplies, cleaning products, cooking utensils, greeting cards, and other nonfood items,\\\" and that \\\"[s]ome also have banking and post office facilities and offer such services as menu-planning and baby-sitting,\\\" (J.A. 636), implying that a store could qualify as a \\\"supermarket\\\" even if it generates substantial revenue from selling other goods and services. The other two authorities Tutu included in its 2003 supplemental filing are \\\"the remarks of (then) [Federal Trade Commission] Commissioner Christine A. Varney from her appearance before the Food Marketing Industry in Seattle, Washington, June 6,1995,\\\" and a \\\"definition contained in [a] reprint of an FTC Proposed Consent Decree in response to a Complaint before its Administrative jurisdiction.\\\" (J.A. 633-34.)\\nIt is worth noting that, although Tutu submitted its 2003 filing in response to the Superior Court's July 7, 2003 Order, that order did not direct Tutu to abandon its prior definition of \\\"supermarket,\\\" but only to provide it with additional authorities with respect to the term's meaning in the context of the litigation. Importantly, although Tutu technically met its initial burden on this issue in its original September 16, 2002 cross-motion for summary judgment, that document only devoted two sentences to the definition of \\\"supermarket,\\\" at least one of which contained language \\u2014 \\\"may be used in defining 'supermarket' to the extent required\\\" \\u2014 that could possibly be interpreted as not taking an actual position on the issue. (J.A. 478 (emphasis added).) Moreover, even if the Superior Court's July 7, 2003 Order could be construed as a rejection of Tutu's original definition of \\\"supermarket,\\\" it would not have excused Tutu's failure to (1) take aposition as to which of thefournew proposed definitions it believed represented the correct definition for purposes of the October 1991 agreement; or (2) point to evidence in the record indicating that no genuine issue of material fact existed with respect to whether K-Mart qualified as a supermarket under those definitions.\\nIt is also important to emphasize \\u2014 as Tutu did in its September 16,2002 cross-motion for summary judgment \\u2014 that\\\"[w]hen [a] [cjourt interprets [a] contract, its task is not to reveal the subjective intentions of the parties, but what their words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.\\\" (J.A. 480 (citing Halderman v. Pennhurst State Sch. and Hosp., 901 F.2d 311, 319 (3dCir. 1990) (emphasis added).) Thus, the Superior Court should also have considered Yusuf s deposition testimony that he entered into the October 1991 agreement with the understanding that K-Mart would only be permitted to sell candies, cookies, and other miscellaneous foods in areas totaling not more than 5,000 square feet exclusive of aisle space. (J.A. 231.)\\nSignificantly, although Tutu captioned its 2010 supplemental brief as \\\"Defendants' Motion for Summary Judgment,\\\" the first sentence of this document states that the purpose of the filing is \\\"to supplement the Cross-Motion for Summary Judgment filed on September 18 [sic], 2002.\\\" (J.A. 677 (emphasis added).) Likewise, United stated in its 2010 supplemental brief that it \\\"will not repeat the authorities and case law previously presented by United to the Court (so as to avoid duplication and repetition), but incorporates them by reference herein.\\\" (J.A. 699.) Accordingly, neither of the 2010 supplemental briefs could be construed as withdrawing any arguments or removing any previously-submitted documents from the record.\\nSince the Superior Court erred when it granted Tutu's cross-motion for summary judgment and dismissed United's claim for breach of contract, this Court declines to decide, in the first instance, United's claim that its complaint alleged that Tutu owed, and later breached, a duty of good faith and fair dealing. Likewise, we also decline to address in the first instance the other grounds in favor of summary judgment raised in Tutu's September 16, 2002 cross-motion for summary judgment but not addressed in the Superior Court's October 12, 2010 Opinion, such as its claim that P.I.D. should be dismissed from the litigation because it is not a real party in interest.\"}"
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+"{\"id\": \"3577368\", \"name\": \"MARCO A. MENDOZA, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff\", \"name_abbreviation\": \"Mendoza v. People\", \"decision_date\": \"2011-08-25\", \"docket_number\": \"S. Ct. Crim. No. 2010-0060\", \"first_page\": 660, \"last_page\": \"677\", \"citations\": \"55 V.I. 660\", \"volume\": \"55\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Supreme Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T01:29:21.249410+00:00\", \"provenance\": \"CAP\", \"judges\": \"HODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice.\", \"parties\": \"MARCO A. MENDOZA, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff\", \"head_matter\": \"MARCO A. MENDOZA, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff\\nS. Ct. Crim. No. 2010-0060\\nSupreme Court of the Virgin Islands\\nAugust 25, 2011\\nKele Onyejekwe, Esq., Territorial Public Defender, St. Thomas, USVI, Attorney for Appellant.\\nTerryln M. Smock, Esq., Department of Justice, St. Thomas, USVI, Attorney for Appellee.\\nHODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice.\", \"word_count\": \"5590\", \"char_count\": \"34935\", \"text\": \"OPINION OF THE COURT\\n(August 25, 2011)\\nHodge, C.J.\\nMarco A. Mendoza appeals his convictions for procuring false instruments under 14 V.I.C. \\u00a7 795 and making fraudulent claims upon the government under 14 V.I.C. \\u00a7 843(3). While there was sufficient evidence presented at trial to sustain Mendoza's conviction under section 795, the People failed to meet its burden with regards to section 843(3). Accordingly, the judgment of the Superior Court is affirmed in part and reversed in part.\\nI. STATEMENT OF RELEVANT FACTS AND PROCEDURAL POSTURE\\nIn December 2008, Mendoza, a safari taxi operator, sold his license plates and corresponding taxi medallion number 0285 and deposited them with Judith Wheatley, the Executive Director of the Virgin Islands Taxicab Commission (the Commission). That same day Mendoza presented a lease to Wheatley for taxi medallion number 0456 and its corresponding license plates. Subsequently, on June 5, 2009, Mendoza returned to the Commission to obtain his 2009 business license for medallion number 0456. Wheatley informed Mendoza, however, that he had outstanding fees that required being paid before she could issue him a business license. Mendoza refused to pay. Wheatley and Mendoza then proceeded to Wheatley's office where Wheatley informed Mendoza that he needed to retrieve the 0456 license plates and bring them to the Commission. Wheatley also asked Mendoza to hand her some papers that he had been holding during their conversation. Mendoza complied. Amongst the papers were a vehicle registration and an inspection lane checklist that indicated that a vehicle with the license plate number 0285 had been inspected on the day prior, and that an eighty-five dollar ($85.00) ticket had been paid at window #1 of the Bureau of Motor Vehicles (BMV). Further, the documents listed Mendoza as the owner of the vehicle. This information raised Wheatley's suspicion, as the 0285 license plates were in the possession of the Commission. Wheatley inquired as to the location of Mendoza's safari, which Mendoza eventually admitted was parked at his house. Wheatley then instructed Mendoza to go and bring her the license plates from the safari.\\nAfter Mendoza left Wheatley's office, she instructed Officer Javier Estrill, the Supervisor of Enforcement for the Commission, to go to Mendoza's house and take pictures of the safari. Officer Estrill testified that upon arriving at Mendoza's residence he observed Mendoza's safari, and that it was covered in soot, had flat tires, and appeared to be inoperable. He also noted that the safari was missing its license plates. While Officer Estrill was locating and photographing Mendoza's safari taxi, Wheatley contacted Myma George, the Assistant Director of the BMV, to inform George that Mendoza was in possession of documents indicating that a safari with the license plate number 0285 had been inspected by the BMV the day prior, even though the 0285 license plates were actually physically located at Wheatley's office at the time.\\nIn order to determine who had completed the vehicle registration and inspection lane checklist, Wheatley faxed the two documents to George. Upon review of the documents, George recognized the signature of the BMV inspector as belonging to St. Clair DeSilvia. George testified that the documents indicated that DeSilvia had inspected a safari taxi registered to Mendoza with the license plate number 0285, and that based on DeSilvia's inspection, the safari taxi was roadworthy. George testified that after DeSilvia had completed the inspection lane checklist and signed the vehicle registration \\u2014 certifying that he had inspected a safari taxi owned by Mendoza with the license plate number 0285 \\u2014 someone had taken those documents to window #1, inside the BMV, and paid an eighty-five dollar ($85.00) outstanding ticket. Although he was initially uncooperative, DeSilvia eventually admitted to George that he had never inspected Mendoza's safari taxi.\\nBased on this evidence, DeSilvia and Mendoza were arrested and charged under title 14, section 11(a) of the Virgin Islands Code with aiding and abetting one another in procuring false or forged instruments pursuant to title 14, section 795 and making fraudulent claims upon the government pursuant to title 14, section 843(3). Specifically, in regards to Mendoza, the People alleged that he procured and filed an inspection lane checklist and vehicle registration with the BMV for a vehicle with the license plate number 0285, knowing that the documents were false. A two day jury trial, which began on February 8, 2010, resulted in convictions against both Mendoza and DeSilvia on all counts. In a judgment entered on August 4, 2010, the trial court sentenced Mendoza to two years for procuring false or forged instruments and one year for making fraudulent claims upon the government. These sentences were ordered to run concurrently and were suspended. Mendoza filed his timely notice of appeal on July 23, 2010.\\nII. ANALYSIS\\nA.\\nAccording to title 4, section 32(a) of the Virgin Islands Code, we possess jurisdiction \\\"over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law.\\\" 4 V.I.C. \\u00a7 32(a). Since the Superior Court's August 4, 2010 Judgment constitutes a final judgment, this Court possesses jurisdiction over Mendoza's appeal.\\nOur standard of review in examining the Superior Court's application of law is plenary, while findings of fact are reviewed only for clear error. St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (V.I. 2007). When a defendant challenges the sufficiency of the evidence presented at trial, we must view the evidence in the light most favorable to the People, and affirm the conviction if \\\" 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' \\\" Stanislas v. People, S. Ct. Crim. No. 2009-0059, 2011 V.I. Supreme LEXIS 12, at *10 (V.I. May 24, 2011) (quoting Smith v. People, 51 V.I. 396, 397-98 (V.I. 2009)). We review a trial court's denial of a motion for acquittal under Rule 29 of the Federal Rules of Criminal Procedure de novo. See Stevens v. People, 52 V.I. 294, 304-05 (V.I. 2009).\\nB.\\nMendoza first argues that 14 V.I.C. \\u00a7 795, as applied in this case, is unconstitutionally vague and that his conviction under the statute violated due process. In support of this argument, Mendoza relies on the United States Supreme Court's holding in Skilling v. United States, 561 U.S. _, 130 S. Ct. 2896, 111 L. Ed. 2d 619 (2010). He contends that the provisions of section 795 are similar to those found in 18 U.S.C. \\u00a7 1346, the honest services statute. This argument, however, is misplaced.\\n\\\"To satisfy due process, a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.\\\" Skilling, 130 S. Ct. at 2927-28 (internal quotation marks omitted). Section 795 meets both of these requirements. According to title 14, section 795:\\nWhoever knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within the Virgin Islands, which instrument if genuine, might be filed, registered or recorded under the laws of the Virgin Islands or under the laws of the United States applicable to the Virgin Islands, shall be fined not more than $1,000 or imprisoned not more than 5 years, or both.\\nFirst, section 795's language clearly instructs ordinary people as to what conductis prohibited. See Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983); Gov't of V.I. v. Steven, 134 F.3d 526, 527-28 (3d Cir. 1998). The statute is concise, plain, and unambiguous. It criminalizes knowingly procuring or offering false or forged instruments to be filed, registered, or recorded in a public office in the Virgin Islands, which if genuine might have been filed, registered, or recorded in that public office. The text of the statute defines the criminal offense with sufficient definite ness that an ordinary person can understand. Second, section 795 also clearly states that any individual who knowingly commits the proscribed act is criminally hable. This provides clear guidelines for law enforcement, prosecutors, and juries, leaving little room for arbitrary enforcement. See Kolender, 461 U.S. at 357-58. Section795 thus provides unambiguous standards delineating what actions an individual must take to be criminally liable for procuring false instruments and it does not encourage arbitrary and discriminatory enforcement. See id.\\nMendoza's reliance on Skilling to support his argument that section 795 is unconstitutionally vague is misguided. In Skilling, the Court was asked to determine whether \\\"the intangible right of honest services\\\" language of 18 U.S.C. \\u00a7 1346 was unconstitutionally vague. Skilling, 130 S. Ct. at 2927. In that case, the appellant Skilling argued that \\\"the intangible right of honest services\\\" language did not adequately define what behavior is prohibited under the statute. Id. at 2928. Although the Supreme Court did acknowledge the potential breadth of section 1346, it declined to invalidate it as unconstitutionally vague. Id. Instead, it construed the phrase \\\"the intangible right of honest services\\\" to preserve what Congress clearly intended the statute to cover \\u2014 \\\"fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived.\\\" Id. Section 795, in contrast, does not contain any potentially broad language. Rather, it provides unambiguous language clearly defining what actions are prohibited under title 14, section 795. Therefore, 14 V.I.C. \\u00a7 795 is not unconstitutionally vague, and nothing in Skilling suggests otherwise.\\nC.\\nMendoza next argues that the People failed as a matter of law to prove that he knowingly procured or offered for filing any false or forged instrument under section 795. Specifically, he claims that neither a vehicle registration or inspection lane checklist constitute an \\\"instrument\\\" under section 795 because an instrument is defined as an agreement. Alternatively, Mendoza argues that the Legislature's enactment of title 14, sections 1782 and 1783 demonstrate that it did not intend to punish Mendoza under sections 795 or 843(3).\\nIn support of his contention that neither a vehicle registration or inspection lane checklist constitutes an instrument, Mendoza points to case law interpreting a similar California statute with almost identical language as section 795. Although Mendoza cites to older California case law which has interpreted the word \\\"instrument\\\" to mean \\\"an agreement expressed in writing, signed, and delivered by one person to another, transferring the title to or creating a lien on real property, or giving a right to a debt or duty,\\\" more recent authority has demonstrated that the limited definition of instrument articulated in those cases is no longer correct and should not be perpetuated. See People v. Powers, 117 Cal. App. 4th 291, 11 Cal. Rptr. 3d 619, 623 (2004). Instead, the prevailing authority in California is that the determination of whether a particular document constitutes an instrument is based on the legislative purpose behind the statute, which is to safeguard the integrity of official records. See People v. Parks, 7 Cal. App. 4th 883, 9 Cal. Rptr. 2d 450, 452 (1992). In fact, many of these later decisions suggest that any \\\"document entitled to be filed, registered, or recorded is of sufficient legal importance that it constitutes an instrument and is worthy of protection.\\\" See People v. Hassan, 168 Cal. App. 4th 1306, 86 Cal. Rptr. 3d 314, 321 (2008) (internal quotation marks omitted). Under this broader view of what constitutes an \\\"instrument,\\\" a variety of legal documents, including a temporary restraining order falsified to expand its requirements, a community work referral form falsified to show completion of a condition of probation, and a fishing activity report falsifying the amount of fish caught have been held to be instruments. Parks, 9 Cal. Rptr. 2d at 452; People v. Tate, 55 Cal. App. 4th 663, 64 Cal. Rptr. 2d 206, 207 (1997); Powers, 11 Cal. Rptr. 3d at 624. Moreover, the California Court of Appeals has specifically held that \\\"the definition of 'instruments' as the term is used in section 115 is very broad and would include at least most documents filed with the [Department of Motor Vehicles].\\\" People v. Alsayad, No. D048930, 2008 Cal. App. Unpub. LEXIS 3746, at *21 (May 7, 2008) (unpublished opinion) (citing Powers, 11 Cal. Rptr. 3d at 621-25).\\nThe Washington Supreme Court has also given the term instrument \\u2014 as it is used within its counterpart to 14 V.I.C. \\u00a7 795 \\u2014 a more expansive definition than Mendoza suggests. See State v. Price, 94 Wn.2d 810, 620 P.2d 994, 998-99 (1980). In Price, the court held that documents which are required or permitted by statute or valid regulation to be filed, registered, or recorded in a public office are considered instruments if\\n(1) the claimed falsity relates to a material fact represented in the instrument; and (2a) the information contained in the document is of such a nature that the government is required or permitted by law, statute or valid regulation to act in reliance thereon; or (2b) the information contained in the document materially affects significant rights or duties of third persons, when this effect is reasonably contemplated by the express or implied intent of the statute or valid regulation which requires the filing, registration, or recording of the document.\\nId. at 999. We find this analysis persuasive.\\nApplying this analysis to the facts of this case, we conclude that the contents of the vehicle registration and inspection lane checklist were materially false in representing that DeSilvia, a BMV inspector, had physically inspected Mendoza's safari taxi and that it had passed inspection and was roadworthy. Further, if undetected, the government would have necessarily relied and acted upon that information in issuing Mendoza a registration license to operate his safari taxi upon the public highways of the Virgin Islands. See 20 V.I.C. \\u00a7 331-333, 339. This could have potentially resulted in injury to other users of the public roads as well as passengers of the falsely registered safari taxi if Mendoza's vehicle was not in fact roadworthy. Accordingly, the vehicle registration and inspection lane checklist fall within the definition of instruments under title 14, section 795.\\nMendoza also argues that based on this Court's holding in Miller v. People, the People should have charged him with violating either section 1782 or 1783 of title 14, not sections 795 and 843(3). He thus contends that the People improperly charged him under sections 795 and 843(3) because sections 1782 and 1783 criminalize falsification of public records. Mendoza, however, has misinterpreted Miller. In Miller, this Court was asked whether Miller's prosecution for making a false or fraudulent statement or misrepresentation on his employment application under section 843(3) constituted a prosecution for the falsification of public records for which there is no limitation period under title 5, section 3541(a)(1). Miller v. People, 54 V.I. 398, 403-404 (V.I. 2010). We concluded that since the Legislature had expressly proscribed the falsification of public records in sections 1782 and 1783, but failed to include such an express proscription in section 843(3), it did not intend to criminalize the falsification of public records in the latter section. See id. As such, we noted that sections 1782 and 1783 criminalize the falsification of public records, while section 843(3) proscribes the making of false statements or representations to the government. See id. at 406. In the present case, the vehicle registration and inspection lane checklist would not have become public records until they were filed with the BMV. Thus, any falsification of these documents before they were filed would not constitute falsification of a public record under either section 1782 or 1783. See id. at 404-407; People v. Garfield, 40 Cal. 3d 192, 219 Cal. Rptr. 196, 707 P.2d 258, 260 (1985). However, filing these documents with the BMV, which falsely indicates that the vehicle had been physically inspected and was roadworthy, would constitute making a false representation upon the government under section 843(3) and filing a false instrument under section 795. Accordingly, Mendoza's argument that the People were prohibited from charging him under sections 843(3) and 795 because the facts alleged against him involved the falsification of public records is meritless.\\nD.\\nMendoza next argues that the Superior Court erred in denying his motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 because no rational jury could have found the essential elements of the crime of filing a forged instrument beyond a reasonable doubt. He contends that the vehicle registration and inspection lane checklist were not false or forged, that no \\\"filing\\\" occurred, and that these documents could not have been filed even if genuine. These arguments, however, are based on Mendoza's misinterpretation of section 795 and the evidence presented at trial.\\nThe elements of proof necessary to establish a violation of 14 V.I.C. \\u00a7 795 are: 1) a person procured or offered a false or forged instrument to be filed, registered, or recorded in a public office in this territory; 2) the instrument, if genuine, was one which might be filed, registered, or recorded; and 3) the person knew that the instrument was false or forged. At trial, the People presented evidence that Mendoza went to the Commission on June 5, 2009 to obtain a business license to operate a safari taxi with the license plates and corresponding taxi medallion number 0456. Wheatley testified that while at the Commission, Mendoza was in possession of a vehicle registration and inspection lane checklist from the BMV that indicated that a vehicle owned by Mendoza with the license plate number 0285 had been inspected on June 4, 2009, and that it was found to be roadworthy. However, Mendoza had sold his license plates and corresponding taxi medallion number 0285 and deposited them with the Commission several months before, in December 2008. Moreover, Wheatley confirmed that on June 4, 2009, the 0285 license plates were still in the possession of the Commission. Officer Estrill also testified that on June 5, 2009, he went to Mendoza's residence and observed that Mendoza's safari was covered in soot, had flat tires, and appeared to be inoperable.\\nViewing this evidence in the light most favorable to the People, as the standard of review requires, there is sufficient evidence to allow a jury to find Mendoza guilty beyond a reasonable doubt of knowingly procuring false instruments under section 795. Wheatley's testimony that the 0285 license plates and taxi medallion were physically located at the Commission on June 4, 2009, was sufficient to allow a reasonable jury to conclude that the vehicle registration and inspection lane checklist, which indicated that a vehicle owned by Mendoza and bearing the license plate number 0285 had been inspected on June 4, 2009, were false. Moreover, Wheatley's testimony that Mendoza physically deposited the 0285 license plates with the Commission when he sold the 0285 license plates and medallion in December 2008 would allow a reasonable jury to conclude that Mendoza knew the vehicle registration and inspection lane checklist were false. A jury could also reasonably infer from Mendoza's possession of the false vehicle registration and inspection lane checklist that he had procured those documents and that he had the intent to file them at the BMV. See United States v. Hall, 632 F.2d 500, 502 (5th Cir. 1980) (holding defendant's possession of forged checks was sufficient to allow inference of his intent to deposit them); People v. Rodriguez, 71 A.D.3d 450, 897 N.Y.S.2d 42, 45 (N.Y. App. Div. 2010) (holding defendant's possession of fake IDs was sufficient to infer his intent to defraud or deceive). These. instruments serve no purpose other than to register a vehicle with the BMV. And since registering a safari taxi requires filing a vehicle registration and inspection lane checklist with the BMV, the jury could rationally conclude that there was no reason for Mendoza to knowingly possess these two falsified documents unless he intended to file them at the BMV. See Rodriguez, 897 N.Y.S.2d at 45. This conclusion is supported by the fact that Mendoza was found in possession of these documents while attempting to obtain a business license, which was another instrument he needed to file with the BMV in order to register his safari taxi.\\nFinally, George's testimony that registering a safari taxi requires filing a host of documents with the BMV, including a vehicle registration and inspection lane checklist, sufficiently established that Mendoza's falsified vehicle registration and inspection lane checklist, if genuine, might be filed with the BMV under the laws of the Virgin Islands. Despite this evidence, Mendoza argues that the falsified vehicle registration and inspection lane checklist could not have been filed with the BMV because he had not yet obtained all the required documents to register his safari taxi, such as his business license. He thus claims that the vehicle registration and inspection lane checklist, even if genuine, could not have been filed with the BMV. This argument, however, misconstrues the statute. Determining whether an instrument, \\\"if genuine, might be filed, registered or recorded\\\" is not an inquiry dependent upon other possible requirements or contingencies. The plain language of the statute only requires that the false or forged instruments might have been filed, registered, or recorded. The relevant inquiry thus focuses on whether the false or fraudulent instrument is the type of instrument that might be filed, registered or recorded if it were genuine, and not whether it was in fact filed. And since George testified that vehicle registrations and inspection lane checklists are routinely filed with the BMV, there was sufficient evidence to allow a jury to conclude that Mendoza's falsified vehicle registration and inspection lane checklist are the type of instruments, if genuine, that might be filed under the laws of the Virgin Islands. The People therefore presented sufficient evidence to allow a reasonable jury to find Mendoza guilty of procuring false instruments under section 795.\\nE.\\nMendoza also argues that the People failed to prove the elements of 14 V.I.C. \\u00a7 843(3) beyond a reasonable doubt. He claims that the alleged false statements were made by DeSilvia, a government employee, and as such, fall outside the purpose of the statute. He also claims that the statements on the vehicle registration and inspection lane checklist are irrelevant because he had not obtained a business license, which is a condition precedent to the BMV exercising jurisdiction, and he was turned away at window #2 before he was able to file the false instruments. Finally, Mendoza asserts that there was no evidence presented at trial that he knew what DeSilvia was doing. These arguments are meritless and unsupported by either facts or case law. However, the People nevertheless failed to establish that Mendoza actually made a false or fraudulent statement or representation.\\nSection 843(3) imposes criminal liability upon \\\"[w]hoever . . . makes any false or fraudulent statements or representations . in any matter within the jurisdiction of any officer, department, board, commission, or other agency of the government of the Virgin Islands.\\\" Thus, the People were required to prove at trial that Mendoza 1) knowingly 2) made a false or fraudulent statement or representation 3) in a matter within the jurisdiction of any officer, department, board, commission, or other agency of the government of the Virgin Islands. The People specifically alleged that Mendoza violated section 843(3) by offering a vehicle registration and inspection lane checklist containing false representations to be filed with the BMV. In support of this allegation, the People relied on George's testimony describing the normal process of registering a safari taxi with the BMV. According to George:\\nAfter coming through [the] Inspection Lane in the back, customers then come inside the building. And the first stop would be to Window #1, which is the Superior Court. At the Superior Court they check for any outstanding traffic tickets they may have. In this particular case, Mr. Mendoza had one traffic ticket which was paid in the amount of $85 on 6/4/09. . . . After Window #1 the Bureau of Motor Vehicles starts at Window #2. Window #2 is the window that you take in all the documents for processing.\\n(J.A. at 217-18.) The People contend that based on this testimony there was sufficient circumstantial evidence to allow the jury to infer that Mendoza had attempted to file the vehicle registration and inspection lane checklist at window #2, but was turned away for not having a business license. The People claim that this inference is further supported by Wheatley's testimony that Mendoza attempted to obtain his 2009 business license on June 5, 2009, which he needed to register his safari at window #2.\\nThis is insufficient evidence to allow a rational jury to conclude that Mendoza offered the falsified vehicle registration and inspection lane checklist to be filed at window #2 of the BMV. Even assuming Mendoza went to window #1 and paid the outstanding traffic ticket, that in and of itself is not sufficient to allow a jury to reasonably infer that he then proceeded to window #2 after he paid the outstanding ticket. It is equally as likely that Mendoza chose not to immediately proceed to window #2, waiting instead until after he had obtained his business license. While George testified that people normally proceed directly from window #1 to window #2 when they register a vehicle, the People presented no evidence that tended to suggest that Mendoza actually went to window #2. No witness from the BMV testified that Mendoza actually presented any documents at Window #2. Instead, the People rely on circumstantial evidence that Mendoza went to window #1 to prove that he also went to window #2. Concluding that Mendoza went to window #2 based solely on evidence that he had gone to window #1 would be nothing more than speculation or conjecture. See People v. Clarke, S. Ct. Crim. No. 2009-0104, 2011 V.I. Supreme LEXIS 11, at *17 (V.I. April 12,2011) (holding evidence must rise above mere speculation); United States v. Pettigrew, 77 F.3d 1500, 1521 (5th Cir. 1996) (\\\"[A] verdict may not rest on mere suspicion, speculation, or conjecture, or on an overly attenuated piling of inference on inference.\\\"). Accordingly, we conclude that the Superior Court erred in denying Mendoza's Rule 29 motion with regard to his charge of making fraudulent claims upon the government under 14 V.I.C. \\u00a7 843(3).\\nIII. CONCLUSION\\nThere was sufficient evidence presented at trial to allow a rational jury to find Mendoza guilty beyond a reasonable doubt of procuring false instruments pursuant to title 14, section 795. However, there was insufficient evidence to sustain Mendoza's conviction for making fraudulent claims upon the government pursuant to title 14, section 843(3). Therefore, we affirm Mendoza's conviction for procuring false instruments and reverse his conviction for making fraudulent claims upon the government.\\nTo support this testimony the People introduced pictures of the safari that Officer Estrill had taken on June 5,2009.\\nGeorge was able to make this determination from viewing the vehicle registration that DeSilvia had signed.\\nAlthough the amended information charges both Mendoza and DeSilvia with aiding and abetting, it is clear from the specific allegations therein that Mendoza is actually being charged as the individual who committed the offenses. See 14 V.I.C. \\u00a7 11 (a) (\\\"Whoever commits a crime or offense or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.\\\").\\nDeSilvia's convictions are not part of this appeal.\\nMendoza was also placed on supervised probation for six months, ordered to perform fifty hours of community service, and fined two hundred and fifty dollars ($250.00) for each count.\\nSection 1346 of title 18 of the United States Code states: \\\"For the purposes of this chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services.\\\"\\nIt remains unclear why Mendoza would rely on Skilling, which involved a statute with much broader language than 14 V.I.C. \\u00a7 795, to support his argument that section 795 is unconstitutionally vague, especially since the United States Supreme Court declined to find the statute in Skilling unconstitutionally vague. If anything, the holding in Skilling supports the conclusion that section 795 is not unconstitutionally vague.\\nUnder section 115(a) of the California Penal Code:\\nEvery person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, registered, or recorded under any law of this state or of the United States, is guilty of a felony.\\nSee People v. Wood, 161 Cal. App. 2d 24, 325 P.2d 1014, 1017 (1958); People v. Fraser, 23 Cal. App. 82, 137 P. 276, 277 (1913).\\nUnder Wash. Rev. Code Ann. \\u00a7 40.16.030:\\nEvery person who shall knowingly procure or offer any false or forged instrument to be filed, registered, or recorded in any public office, which instrument, if genuine, might be filed, registered or recorded in such office under any law of this state or of the United States, is guilty of a class C felony and shall be punished by imprisonment in a state correctional facility for not more than five years, or by a fine of not more than five thousand dollars, or by both.\\nS. Ct. Crim. No. 2009-0045, 2010 V.I. Supreme LEXIS 40 (V.I. Sept. 16, 2010).\\nFederal Rule of Criminal Procedure 29 is made applicable to the Superior Court through Superior Court Rule 7.\\nOfficer Estrill's testimony describing Mendoza's safari on June 5, 2009, as inoperable further supports the conclusion that no physical inspection took place and that Mendoza was aware of as much.\\nMendoza argues that since he was turned away from Window #2 \\u2014 the place at the BMV where people actually file their vehicle registrations, inspection lane checklists, etc. \\u2014 for not having his business license, he never technically filed the instruments. And therefore he cannot be guilty of filing or recording forged instruments under section 795. This argument misconstrues the statute. Section 795 does not require that a false or forged instrument actually be filed. Rather, it states one must only \\\"knowingly procure[] or offer[] a false or forged instrument to be filed .\\\" See 14 V.I.C. \\u00a7 795 (emphasis added).\\nFirst, Mendoza argues that section 843(3)is intended only to prevent citizens from making false claims to the government. This argument, however, is contradicted by the plain language of the statute which states that \\\"[wJhoever... makes any false or fraudulent statement or representation\\\" may be held liable for the penalties it prescribes. 14 V.I.C. \\u00a7 843(3) (emphasis added). Further, it was allegedly Mendoza, a citizen, who made the false representation to the BMV that his safari taxi had been physically inspected and was roadworthy when he offered the vehicle registration and inspection lane checklist to be filed at window #2. Second, Mendoza argues that the BMV could not have exercised jurisdiction over him because he had not gotten his business license at the time he was claimed to have offered these documents for filing. This argument completely misconstrues the statute. Mendoza's vehicle registration and inspection lane checklist, which allegedly falsely represent that his safari taxi had been physically inspected and was roadworthy, are matters within the jurisdiction of the BMV. And whether he had a business license at the time he allegedly offered them to be filed at window #2 has no bearing on the matter. Finally, Mendoza's argument that there was no evidence presented at trial that he knew what DeSilvia was doing is contradicted by the facts. DeSilvia admitted to falsifying the vehicle registration and inspection lane checklist and Mendoza was in possession of the falsified instruments. Moreover, Officer Estrill testified that Mendoza's safari taxi was parked at Mendoza's house and appeared inoperable. Based on this evidence, the jury could have reasonably inferred that Mendoza and DeSilvia had acted in concert.\\nThe People conceded at trial that Mendoza was not being charged with violating section 843(3) for presenting a vehicle registration and inspection lane checklist containing false representations to Wheatley on June 5, 2009 at the Virgin Islands Taxi Cab Commission.\\nThere is no direct evidence which places Mendoza at window #2.\\nAlthough the issue was disputed at trial, in his brief Mendoza's counsel concedes the fact that Mendoza attempted to file the falsified vehicle registration and inspection lane checklist with the BMV through window #2. During oral arguments, however, Mendoza's counsel informed this Court that this concession was inadvertent, and after oral arguments, he filed an errata sheet deleting it from the brief. We will accordingly disregard it and rely on the trial court record instead.\\nWindow #1 is run by the Superior Court and is not actually part of the BMV, although it is located inside of the BMV building. Moreover, window #1 is not involved in the inspection and registration process, nor are any documents filed, registered, or recorded at that window. Window #1 only involves record checks for outstanding traffic liens on vehicles.\\nBecause on June 5,2009, Mendoza was in possession of the falsified vehicle registration indicating that on June 4, 2009, someone had paid an outstanding traffic ticket that he had, a jury could reasonably infer that Mendoza had paid the outstanding ticket.\"}"
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+"{\"id\": \"3577571\", \"name\": \"DIANA BANKS, ALOMA BARNABAS, FRANKLIN BARNABAS, PATRICIA JOSEPH, and MERLE PENHA-MURPHY, Appellants/Plaintiffs v. INTERNATIONAL RENTAL AND LEASING CORPORATION d/b/a BUDGET RENT A CAR, Appellee/Defendant\", \"name_abbreviation\": \"Banks v. International Rental & Leasing Corp.\", \"decision_date\": \"2011-12-15\", \"docket_number\": \"S. Ct. Civ. No. 2011-0037\", \"first_page\": 967, \"last_page\": \"985\", \"citations\": \"55 V.I. 967\", \"volume\": \"55\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Supreme Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T01:29:21.249410+00:00\", \"provenance\": \"CAP\", \"judges\": \"HODGE, Chief Justice; CABRET, Associate Justice, and SWAN, Associate Justice.\", \"parties\": \"DIANA BANKS, ALOMA BARNABAS, FRANKLIN BARNABAS, PATRICIA JOSEPH, and MERLE PENHA-MURPHY, Appellants/Plaintiffs v. INTERNATIONAL RENTAL AND LEASING CORPORATION d/b/a BUDGET RENT A CAR, Appellee/Defendant\", \"head_matter\": \"DIANA BANKS, ALOMA BARNABAS, FRANKLIN BARNABAS, PATRICIA JOSEPH, and MERLE PENHA-MURPHY, Appellants/Plaintiffs v. INTERNATIONAL RENTAL AND LEASING CORPORATION d/b/a BUDGET RENT A CAR, Appellee/Defendant\\nS. Ct. Civ. No. 2011-0037\\nSupreme Court of the Virgin Islands\\nDecember 15, 2011\\nROBERT L. king, Esq., Law Offices of Robert L. King, Esq., St. Thomas, USVI, Attorney for Appellants.\\nMichael J. Sanford, Esq., Sanford Amerling & Associates, St. Croix, USVI, Attorney for Appellee.\\nHODGE, Chief Justice; CABRET, Associate Justice, and SWAN, Associate Justice.\", \"word_count\": \"6018\", \"char_count\": \"36649\", \"text\": \"OPINION OF THE COURT\\n(December 15, 2011)\\nHodge, Chief Justice.\\nOn April 26, 2011, this Court received an April 19, 2011 Certification Order from the United States Court of Appeals for the Third Circuit, which .requested that this Court, pursuant to Supreme Court Rule 38 and Third Circuit Local Appellate Rule Misc. 110, resolve a question of Virgin Islands law related to a consolidated appeal pending in the Third Circuit. In a May 20, 2011 Order, this Court agreed to accept jurisdiction and to answer the question as formulated in the April 19,2011 Order:\\nWhether, under Virgin Islands law, including VI. Code Ann. tit. 1 \\u00a7 4, a plaintiff may pursue a strict liability claim against a lessor for injuries resulting from a defective product.\\nWe respond, for the reasons that follow, that Virgin Islands law permits a plaintiff to pursue such a claim.\\nI. JURISDICTION AND LEGAL STANDARD\\n\\\"The Supreme Court of the Virgin Islands may answer questions of law certified to it by a court of the United States . if there is involved in any proceeding before the certifying court a question of law which may be determinative of the cause then pending in the certifying court and concerning which it appears there is no controlling precedent in the decisions of the Supreme Court.\\\" V.I.S.CT.R. 38(a). While \\\"answering a certified question is not an adjudicative function,\\\" this Court possesses the inherent power to answer certified questions as the highest local court in this jurisdiction. See Seals v. H & F, Inc., 301 S.W.3d 237, 241 (Tenn. 2010); 4 V.I.C. \\u00a7 32(b) (\\\"The Supreme Court shall have all inherent powers . . . .\\\"). However, \\\"the certified question procedure . . . does not confer on us plenary jurisdiction over cases pending in the courts of other sovereign entities,\\\" and thus \\\"our answer must be confined to the circumstances of the case as established by the stipulated facts\\\" in the certification order. Sullivan v. Oracle Corp., 51 Cal. 4th 1191, 127 Cal. Rptr. 3d 185, 254 P.3d 237, 249 (2011). Rather, the United States Supreme Court has strongly endorsed the use of certification by federal courts to resolve questions of local law in order to \\\"save time, energy, and resources\\\" and \\\"help[] build a cooperative judicial federalism.\\\" Lehman Brothers v. Schein, 416 U.S. 386, 391, 94 S. Ct. 1741, 40 L. Ed. 2d 215 (1974). See also Salve Regina College v. Russell, 499 U.S. 225, 237 n.4, 111 S. Ct. 1217, 113 L. Ed. 2d 190 (1991) (\\\"[A] question of state law usually can be resolved definitely . if a certification procedure is available and is successfully utilized.\\\").\\nII. DISCUSSION\\n\\\"The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary.\\\" 1 V.I.C. \\u00a7 4. As the Third Circuit observed in its April 19, 2011 Order, an apparent conflict exists between Restatement (Second) of Torts \\u00a7 402A, 407, and 408 (\\\"Second Restatement\\\") and RESTATEMENT (THIRD) OF TORTS: Product Liability \\u00a7 1 and 20 (\\\"Third Restatement\\\"), in that the Third Restatement subjects a lessor of a defective product to strict liability, whereas several courts applying Virgin Islands law \\u2014 but not this Court \\u2014 have interpreted the Second Restatement to hold a lessor liable only for negligence. See, e.g., Pynes v. Am. Motors Corp., 19 V.I. 278, 280 (D.V.I. 1982); Pool v. Hertz Corp., 1977 St. X. Supp. 520 (D.V.I. 1977); Polius v. Clark Equip. Co., 802 F.2d 75, 78-79 (3d Cir. 1986); Harvey v. Sav-U Car Rental, No. 07-CV-115, 2010 U.S. Dist. LEXIS 73294 (D.V.I. July 21, 2010). Thus, prior to answering the certified question, as formulated, this Court must first determine (1) whether the phrase \\\"local law\\\" in section 4 encompasses judicial precedents from this Court; and (2) whether section 4 precludes this Court, as the highest local court in the Virgin Islands, from declining to follow the latest approved Restatement.\\nA. The Meaning of \\\"Local Law\\\"\\nThe Virgin Islands Legislature has instructed that \\\"[w]ords and phrases shall be read with their context and shall be construed according to the common and approved usage of the English language,\\\" but that \\\" [technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to their peculiar and appropriate meaning.\\\" 1 V.I.C. \\u00a7 42. Applying this directive, the phrase \\\"local law\\\" means \\\"[t]he law of a particular jurisdiction, as opposed to the law of a foreign state,\\\" Black's Law Dictionary 1023 (9th ed. 2009), with \\\"law\\\" referring to \\\"[t]he aggregate of legislation, judicial precedents, and accepted legal principles.\\\" Id. at 962 (emphasis added). See also Co-Build Cos., Inc., v. V.I. Refinery Corp., 570 F.2d 492, 494, 15 V.I. 528, 533 (3d Cir. 1978) (\\\"When no precedents relate specifically to the adjudication of a Virgin Islands dispute, the courts are directed to turn to the various Restatements of Law, approved by the American Law Institute, which are to provide the rules of decision for such cases 'in the absence of local laws to the contrary.' \\\") (emphasis added); In re Manbodh Asbestos Litig. Series, 47 V.I. 215, 227 (V.I. Super. Ct. 2005) (\\\"To date, courts have interpreted 'local laws' to include both legislation and common law precedent.\\\") (collecting cases). This Court has previously clarified what judicial opinions constitute \\\"precedent\\\" for both the Supreme Court and the Superior Court:\\nAlthough the establishment of this Court has changed the relationship between the local Virgin Islands judiciary and the Third Circuit, this Court's creation \\\"did not erase pre-existing case law,\\\" and thus \\\"precedent that was [extant] when [the Court] became operational continues unless and until [the Court] address [es] the issues discussed there.\\\" People v. Quenga, 1997 Guam 6 \\u00b6 13 n. 4. Accordingly, decisions rendered by the Third Circuit and the Appellate Division of the District Court are binding upon the Superior Court even if they would only represent persuasive authority when this court considers an issue.\\nIn re People of the V.I., 51 V.I. 374, 389 n.9 (V.I. 2009), cert. denied, No. 09-3492, slip op. at 1 (3d Cir. Nov. 5,2009). Cf. Estep v. Construction Gen., Inc., 546 A.2d 376, 382 n.5 (D.C. 1988) (explaining that decisions of highest local appellate court in District of Columbia constitute \\\"local law\\\" to which federal district courts and federal courts of appeals should defer, rather than the other way around).\\nImportantly, the Third Circuit has indicated that it will \\\"defer to decisions of the Supreme Court of the Virgin Islands on matters of local law unless [it] find[s] them to be manifestly erroneous.\\\" Pichardo v. V.I. Comm'r of Labor, 53 V.I. 936, 939, 613 F.3d 87, 89 (3d Cir. 2010). Significantly, the Third Circuit has recently clarified that, pursuant to the standard articulated in Pichardo, this Court is not required to follow the Third Circuit's interpretation of a local Virgin Islands statute when the Third Circuit's decision was rendered prior to this Court having the opportunity to interpret the statute in the first instance:\\nIn the absence of controlling Virgin Islands precedent, we believe that our analogy to [prior federal case law construing an analogous federal provision] is necessary to decide the case before us. We are mindful, of course, that the authority to interpret [a Virgin Islands Code provision] lies centrally with the newly created Supreme Court of the Virgin Islands. See Pichardo v. V.I. Comm'r of Labor, [53 V.I. 936, 939,] 613 F.3d 87, 89 (3d Cir. 2010) (holding that this Court will \\\"defer to decisions of the Supreme Court of the Virgin Islands on matters of local law unless we find them to be manifestly erroneous\\\"). We do not mean by our decision today to preclude the Supreme Court of the Virgin Islands from offering its own interpretation of [the Virgin Islands Code provision], and whether and under what circumstances a justification defense is available. Until that day comes, however, we decide this case applying our most analogous precedent.\\nGov't of the V.I. v. Lewis, 620 F.3d 359, 364 n.5, 54 V.I. 882 (3d Cir. 2010) (citation omitted). Based on these authorities, we conclude that \\\"local law,\\\" as used in section 4 of title 1, encompasses judicial decisions which are binding on the court required to apply section 4. Thus, this Court is bound only by those decisions of the Third Circuit Court of Appeals in which certiorari has been granted and this Court's interpretation of local law has been reversed.\\nB. Authority of this Court to Deviate from Third Restatement\\nAs noted above, while the Third Circuit and the District Court have previously applied the Second Restatement, as the Third Circuit instructed in Lewis, and as this Court observed in In re People, such decisions are not binding on this Court, and thus, with respect to this Court, there is an \\\"absence of local laws to the contrary\\\" as contemplated in 1 V.I.C. \\u00a7 4. Therefore, we must also determine whether this Court is bound to follow the most recent version of the Restatement approved by the American Law Institute whenever it is required to decide an issue of first impression, or whether, like other courts of last resort, this Court possesses the inherent power to shape the common law in the Virgin Islands.\\nWe conclude that the Legislature did not intend for section 4 of title 1 to compel this Court to mechanically apply the most recent Restatement. First we observe that the historical note that follows section 4 of title 1 states that the purpose of enacting section 4 was to rewrite section 6 of chapter 13 of title IV of the 1921 Codes, which had provided that \\\"[t]he common law of England as adopted and understood in the United States shall be in force in this District, except as modified by this [Code].\\\" But more importantly, the historical note states that the Legislature chose to replace that provision with section 4 so as to \\\"more accurately . . . express the concept of the Common Law as constituting a body of rules established by precedent, as distinguished from a body of statutory law . . . .\\\" (emphasis added). Thus, any claim that this Court lacks the authority to decline to follow a Restatement provision is wholly inconsistent with the historical note, in that such an interpretation of section 4 would essentially require this Court to treat the Restatements as if they are statutes, an approach which could not be reconciled with the Legislature's clear intent to develop the common law through judicial precedent.\\nWe recognize that the Supreme Court of the Northern Mariana Islands, in interpreting 7 CMC. \\u00a7 3401 \\u2014 a provision similar to section 4 \\u2014 held that it \\\"is not vested with a similar degree of freedom in formulating [its] common law as that exercised by courts in other jurisdictions, because of the statutory dictate that we apply the Restatement.\\\" Ito v. Macro Energy, 4 N. Mar. I. 46, 56 (N. Mar. I. 1993). But despite this holding, we note that the Northern Marianas Islands Supreme Court has departed from this early interpretation of 7 CMC \\u00a7 3401, and now recognizes its authority to adopt common law rules that differ from the majority approach if it believes a departure is warranted. See Marine Revitalization Corp. v. Dep't of Land and Natural Resources, 2010 MP 18 \\u00b636 (N. Mar. I. 2010) (\\\"While we do not follow the majority approach blindly, absent sufficient reasons, this Court adopts the majority's interpretation of the common law when our law is silent.\\\") (citing 7 CMC \\u00a7 3401); Tan v. Younis Art Studio, Inc., 2007 MP 11 \\u00b6 31 (N. Mar. I. 2007) (\\\"[C]ourts must first look to local written law, which includes our case law adopting and/or adapting Restatement provisions. To the extent local written law is lacking, the Restatement fills the gaps.\\\") (emphasis added). Moreover, as noted above, the historical note accompanying section 4 provides strong support for the proposition that the Virgin Islands Legislature intended for the common law to be shaped by judicial precedents, which is wholly inconsistent with blindly following the Restatements. See also Pichardo, 613 F.3d at 95 (noting that establishment of the Supreme Court of the Virgin Islands will allow the Virgin Islands to \\\"begin developing indigenous jurisprudence\\\" (quoting Edwards v. HOVENSA, LLC, 497 F.3d 355, 362 n.3 (3d Cir. 2007))).\\nNevertheless, even in the absence of the historical note, we would find that section 4 does not deprive this Court \\u2014 or, in the absence of binding precedent, the Superior Court \\u2014 of the ability to shape the common law. We cannot ignore that, at the time both section 4 of title 1 and its predecessor in the 1921 Codes were initially enacted, the Virgin Islands lacked a fully developed local judiciary, with the District Court \\u2014 a federal court established by Congress rather than the Legislature and consisting of judges selected by the President of the United States rather than the Governor of the Virgin Islands \\u2014 possessing jurisdiction over most civil actions, and local courts only exercising jurisdiction over only relatively minor civil claims. Thus, at the time the Legislature enacted section 4, the most significant Virgin Islands judicial decisions were being rendered by the District Court, which \\u2014 although hearing cases that in other jurisdictions would ordinarily be heard by a local court \\u2014 was \\\"essentially a federal creature\\\" that \\\"was created by federal law\\\" and consisted of \\\"federal judges\\\" appointed by the President and confirmed by the United States Senate. BA Props. Inc. v. Gov't of the V.I., 299 F.3d 207, 212 (3d Cir. 2002). Moreover, even though the Virgin Islands local judiciary continued to expand and receive greater jurisdiction over local matters in the decades that followed, all decisions rendered by the Superior Court and its predecessor courts continued to be reviewed on appeal by the District Court, which made it \\\"very difficult to attain\\\" the goal of establishing \\\"an indigenous Virgin Islands jurisprudence\\\" given that local judges lacked the ability to issue decisions that would constitute binding precedent in the territory. Id.\\nA pivotal change occurred, however, when Congress subsequently amended the Revised Organic Act of 1954 to authorize creation of a local appellate court. 48 U.S.C. \\u00a7 1613a. When the Legislature established this Court in 2004, it reposed in this Court \\\"the supreme judicial power of the Territory.\\\" 4 V.I.C. \\u00a7 21. This includes the power to both interpret local law and modify the common law. See, e.g., Ford v. Norris, 364 F.3d 916, 919 (8th Cir. 2004) (\\\"The Arkansas Supreme Court is the final authority on the interpretation of Arkansas law. As the supreme judicial authority of the state, it decides what state law is . . . .\\\"); Virmani v. Presbyterian Health Services, 350 N.C. 449, 515 S.E.2d 675, 691 (1999) (\\\"[A]s the common law originally was, and largely continues to be, a body of law discovered and announced in court decisions, this Court, as the court of last resort in North Carolina, may modify the common law of North Carolina . . . .\\\"). Significantly, section 21 of title 4 represents both the first time that a local court created by the Legislature \\u2014 as opposed to Congress \\u2014 was invested with \\\"supreme judicial power,\\\" as well as the first time that a local appellate court consisting entirely of local judges appointed by the Governor with the advice and consent of the Legislature would review on direct appeal decisions issued by a local trial court. Given that section 21 and section 4 were both passed by the same legislative body, and section 21's conferral of \\\"supreme judicial power\\\" upon on this Court is inconsistent with section 4's mandate that courts follow the Restatements, we conclude that the adoption of section 21 of title 4 in 2004 supersedes and alters section 4 of title 1, which is one of the initial provisions of the Virgin Islands Code that were adopted in 1957, 1 V.I.C. \\u00a7 3, and that therefore this Court and \\u2014 to the extent not bound by precedent, the Superior Court, see In re People, 51 V.I. at 389 n.9 \\u2014 may determine the common law without automatically and mechanistically following the Restatements. See New Jersey Air Nat'l Guard v. Fed. Labor Relations Auth., 677 F.2d 276, 282 (3d Cir. 1982) (explaining that, when two statutes are in apparent conflict, court possesses a duty to harmonize both enactments) (quoting Morton v. Mancari, 417 U.S. 535, 551, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974)).\\nWe recognize that it is theoretically possible to harmonize section 4 of title 1 and section 21 of title 4 by construing section 4 of title 1 as the Legislature exercising its own inherent power to alter or abrogate the common law. Such an interpretation, however, is inconsistent with the historical note, which clearly reveals that the Legislature intended for judicial precedents to shape the common law. Moreover, while we acknowledge that the Legislature possesses concurrent authority to alter the common law, and that the will of the Legislature will generally prevail in the event of a conflict between a statute and a judicial decision, we can find no authority for the proposition that the Legislature possesses the authority to adopt a statute which not only completely deprives this Court of the ability to exercise its supreme judicial power to shape the common law, but delegates that power to the American Law Institute and to the governments of other jurisdictions. See Kendall v. Russell, 572 F.3d 126, 136, 52 V.I. 1021 (3d Cir. 2009) (explaining that power to establish qualifications for judges and to confirm judges \\u2014 a legislative power \\u2014 does not encompass the power to delegate the power to remove judges \\u2014 a judicial power \\u2014 to an administrative agency due to separation of powers principles inherent in the Revised Organic Act); see also Ada v. Sabian, 1 N. Mar. I. 415, 418 n.2 (N. Mar. I. Super. Ct. 1990) (observing that 7 CMC \\u00a7 3401, if interpreted to mandate automatic application of the majority rule in all instances, may violate \\\"the right to self-government guaranteed to the people of the Commonwealth . because the legislatures of Virginia, California, etc., now decide, albeit indirectly, what the law should be in the Commonwealth.\\\").\\nFor the forgoing reasons, we conclude that 1 V.I.C. \\u00a7 4 does not incorporate all of the Restatement provisions as if they were actual statutory text; nor does it delegate to the American Law Institute the authority to enact changes in the law of the Virgin Islands in all of the areas covered by the Restatements. See Dunn v. HOVIC, 1 F.3d 1371, 1392, 28 V.I. 467 (3d Cir. 1993) (Alito, J., concurring). Rather, we hold that, because our own decisions constitute \\\"local law\\\" within the meaning of section 4 \\u2014 and, unless found to be manifestly erroneous by the Third Circuit, are binding on all other courts applying Virgin Islands local law \\u2014 we therefore possess the discretion to decline to follow the most recent Restatement provision.\\nC. Conflict Between Second Restatement and Third Restatement\\nFinally, with the above standard in mind, we reach the merits of the question the Third Circuit has certified to us. To determine whether to change the common law by judicial decision, a court should consider whether \\\"changing circumstances compel [the] court[] to 'renovate' outdated law and policy\\\" by \\\"creating new public policy.\\\" Wholey v. Sears Roebuck, 370 Md. 38, 803 A.2d 482, 489 (2002). In other words, \\\"this Court must weigh the benefits versus the burdens of the proposed change.\\\" Gilbert v. Barkes, 987 S.W.2d 772, 774 (Ky. 1999). In their brief, Diana Banks and the other appellants in the Third Circuit proceeding (collectively \\\"Banks\\\") contend that a change in the common law is warranted primarily because all of the cases, beginning with Pynes, which interpreted the Second Restatement as precluding holding a lessor strictly liable were wrongly decided.\\nAlthough this Court is not bound to continue to follow the Pynes court's interpretation of the Second Restatement, it is important to emphasize \\u2014 as the District Court correctly observed in this case \\u2014 that \\\"section 402A [of the Second Restatement] has received widespread acceptance in Virgin Islands courts.\\\" Banks v. Int'l Rental & Leasing Corp., Civ. Nos. 2002-200 through-203, 2008 U.S. Dist. LEXIS 12214, at *10 n.5 (D.V.I. Feb. 13, 2008). Therefore, while this Court possesses the discretion to reject the decision in Pynes, doing so has a definite burden associated with it, since it would disrupt the state of the law in the Virgin Islands. Accordingly, Pynes and its progeny, while only representing persuasive authority for this Court, should nevertheless still be \\\"entitled to great respect.\\\" People v. Todmann, 53 V.I. 431, 438 n.6 (V.I. 2010) (quoting M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971)), cert. denied, No. 10-2738, slip op. at 1 (3d Cir. Aug. 18, 2010). See also Johnson v. Calado, 159 Wis. 2d 446, 464 N.W.2d 647, 653 (1991) (\\\"We do not imply that there is no argument for the Restatement rule, but hypothetical advantages do not outweigh the salutary experience Wisconsin has had with the rule.\\\").\\nNevertheless, we decline to endorse the Pynes rule. While International Rental and Leasing Corporation correctly recognizes in its brief that the Third Restatement has only been adopted by a minority of jurisdictions and, in several subject matters, endorses minority rules instead of simply restating the majority rule \\u2014 the reason the Legislature included the Restatements within the ambit of section 4 \\u2014 it fails to acknowledge (1) that a strong preference exists for following the most recent Restatement over an older version, see, e.g., Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 180, 13 V.I. 666 (3d Cir. 1977); DeLoach v. Alfred, 191 Ariz. 82, 952 P.2d 320, 322 n.2 (Ariz. Ct. App. 1997), vacated on other grounds, 192 Ariz. 28, 960 P.2d 628 (Ariz. 1998) (agreeing to adopt most recent Restatement but reversing its application to facts of case); (2) that courts generally do not adopt the \\\"Third Restatement\\\" as a whole, but typically consider adopting specific sections, see Wright v. Brooke Group Ltd., 652 N.W.2d 159, 169 (Iowa 2002), and (3) that the jurisdictions that have adopted the relevant Third Restatement provisions, when combined with the jurisdictions that have interpreted section 402A of the Second Restatement to apply to lessors of chattels, constitute a clear majority. Importantly, an outright majority of jurisdictions had adopted this rule even before publication of the Third Restatement, and \\u2014 in fact \\u2014 this rule was already adopted by a majority of the jurisdictions that had considered the question at the time the Pynes case was decided in 1982. See Brimbau v. Ausdale Equipment Rental Corp., 440 A.2d 1292, 1297-98 (R.I. 1982) (\\\"Despite the early cases and the language of \\u00a7 402A, however, the majority of jurisdictions that have considered the issue have extended the doctrine of strict tort liability to commercial lessors of personal property.\\\") (collecting cases). In other words, Banks is correct that, with respect to the issue of whether a lessor may be held strictly liable for a defective product, this Court must ultimately decide whether to continue to follow the minority interpretation of the Second Restatement adopted by Pynes simply because it has been utilized by Virgin Islands local courts, or to recognize and apply the majority rule articulated in the Third Restatement and endorsed by a majority of jurisdictions.\\nUnder these circumstances, we find no compelling reason to perpetuate the Pynes interpretation of the Second Restatement to the exclusion of the Third Restatement. First, this Court has previously observed that section 4 of title 1 \\\" 'is impressive evidence that the Virgin Islands legislature intends [majority] rule to govern in the absence of specific legislation.' \\\" Robles v. HOVENSA, L.L.C., 49 V.I. 491, 498-99 (V.I. 2008) (quoting Dyndul v. Dyndul, 541 F.2d 132, 134, 13 V.I. 376 (3d Cir. 1976)). While, for the reasons given earlier, this is not a dispositive factor with respect to this Court, the fact that a majority of jurisdictions endorse holding lessors of chattels strictly liable for introducing defective products into the stream of commerce \\u2014 regardless of whether that authority is based on the Second or Third Restatement \\u2014 makes abandoning the Pynes decision \\\"consistent with Virgin Islands jurisprudence and policy.\\\" Island Insteel Sys., Inc. v. Waters, 296 F.3d 200, 204, 44 V.I. 389 (3d Cir. 2002) (identifying factors Virgin Islands courts should consider when resolving questions of Virgin Islands law that are not clearly controlled by other authorities). Moreover, Pynes, while entitled to some deference, is not a strong candidate for stare decisis, in that \\u2014 in addition to being issued by the District Court acting in its capacity as a trial court \\u2014 the decision is only slightly more than two pages long, cites to no case law from other jurisdictions construing section 402A of the Second Restatement, and \\u2014 perhaps most significantly \\u2014 relied on the mistaken belief that only \\\"several other jurisdictions have extended \\u00a7 402A strict liability to include lessors of goods,\\\" 19 V.I. at 280, when, in fact, a majority of jurisdictions to consider the question had already done so by this time. Brimbau, 440 A.2d at 1297-98. But even more importantly, holding lessors strictly liable represents the sounder rule, in \\\"that a commercial lessor acts much like a retailer and manufacturer in placing products in the stream of commerce, and . a lessor will in most instances be in a better position than a consumer to prevent the circulation of defective products.\\\" 52 A.L.R.3d 121. Accordingly, we answer the certified question presented in the affirmative and advise the Third Circuit that, under Virgin Islands local law, lessors may be held strictly liable for injuries resulting from a defective product.\\nIII. CONCLUSION\\nAlthough judicial precedents constitute local law for purposes of section 4 of title 1 of the Virgin Islands Code, this Court, as the highest local court in the Virgin Islands, is not bound by any of the decisions applying the Second Restatement, since none constitute binding precedent for this Court. Moreover, since this Court possesses the inherent authority to shape Virgin Islands common law, we are not strictly bound by section 4 to always apply the most recent Restatement provisions, since this Court's decisions constitute \\\"local law\\\" that may or may not be consistent with the Restatements. Applying this standard, we conclude that (1) we will not follow the Pynes decision, (2) the majority of United States jurisdictions follow the Third Restatement and allow a lessor to be held strictly liable for injuries resulting from a defective product, and (3) rather than continue to apply the Pynes decision based on stare decisis or some other doctrine, Virgin Islands local courts should apply sections 1 and 20 of the Third Restatement and allow lessors to be held strictly liable for injuries resulting from a defective product.\\nWe note that, in their respective briefs, the parties address numerous issues that are obviously beyond the scope of the certification order, including, but not limited to, whether the District Court erred in dismissing Franklin Barnabas's claim for loss of consortium; and whether Diana Banks and the other appellants in the Third Circuit matter may proceed with warranty-based claims against International Rental and Leasing Corporation. Accordingly, this Court declines to address any of these issues.\\nPursuant to section 23 of the Revised Organic Act, \\\"for the first fifteen years following the establishment of the [Supreme Court of the Virgin Islands], the United States Court of Appeals for the Third Circuit shall have jurisdiction to review by writ of certiorari all final decisions of the highest court of the Virgin Islands from which a decision could be had.\\\" 48 U.S.C. \\u00a7 1613.\\nWe pass no opinion on whether the Third Circuit's consideration of common law doctrines on certiorari from this Court will continue to function as \\\"local law to the contrary\\\" for this Court once the period of review pursuant to 48 U.S.C. \\u00a7 1613 lapses.\\nBecause \\\"[t]he microfilm containing legislative history between February 28, 1957 and April 13, 1959 . was lost,\\\" this Court is permitted to consult \\\"the referenced history and prior law notes to decipher the intent of the drafters of the Code and provide a historical context.\\\" Manbodh, 47 V.I. at 228 n.8.\\n\\\"In all proceedings, the rales of the common law, as expressed in the restatements of the law approved by the American Law Institute and, to the extent not so expressed as generally understood and applied in the United States, shall be the rales of decision in the courts of the Commonwealth, in the absence of written law or local customary law to the contrary; provided, that no person shall be subject to criminal prosecution except under the written law of the Commonwealth.\\\" 7 CMC \\u00a7 3401.\\nWhen the 1921 Codes were in effect, the local judiciary consisted of three Police Courts, which were not courts of record and only possessed concurrent jurisdiction with the District Court over civil claims not exceeding $200.00. See Carty v. Beech Aircraft Corp., 679 F.2d 1051, 1054 & n.4 (3d Cir. 1982). When the Legislature replaced the Police Courts with the Municipal Court \\u2014 a court of record which served as the predecessor to the Superior Court \\u2014 in 1957, it vested the Municipal Court with exclusive jurisdiction over civil cases up to $500.00 and concurrent jurisdiction with the District Court over civil cases exceeding $500.00 but no more than $10,000.00. See Steffey v. Estate of Savain, 15 V.I. 260, 262 (V.I. Super. Ct. 1978).\\nSee, e.g., Valerie M. v. Ariz. Dept. of Econ. Sec., 219 Ariz. 331, 336, 198 P.3d 1203, 1208 (2009) (\\\"[A] valid statute specifying the burden of proof prevails over common law or court rules adopting a different standard.\\\"); Commonwealth ex rel. Cowan v. Wilkinson, 828 S.W.2d 610, 614, 39 3 Ky. L. Summary 12 (Ky. 1992) (\\\"[Jjudicially created common law must always yield to the superior policy of legislative enactment and the Constitution.\\\").; Program Admin. Servs., Inc. v. Dauphin Cnty. Gen. Auth., 593 Pa. 184, 928 A.2d 1013, 1017-18 (2007) (\\\"[I]t is the Legislature's chief function to set public policy and the courts' rule to enforce that policy, subject to constitutional limitations.\\\").\\nSee, e.g., Wright v. Newman, 735 F.2d 1073, 1077 (8th Cir. 1984) (applying Missouri law); Bachner v. Pearson, 479 P.2d 319, 328 (Alaska 1970); Price v. Shell Oil Co., 2 Cal. 3d 245, 85 Cal. Rptr. 178, 466 P.2d 722, 723 (1970); Baird v. Power Rental Equip., Inc., 35 Colo. App. 299, 533 P.2d 941, 944 (1975); Martin v. Ryder Truck Rental, Inc., 353 A.2d 581, 586-87 (Del. 1976); Futch v. Ryder Truck Rental, Inc., 391 So.2d 808, 810 (Fla. Ct. App. 1980); Stewart v. Budget Rent-A-Car Corp., 52 Haw. 71, 470 P.2d 240, 243 (1970); Galluccio v. Hertz Corp., 1 Ill. App. 3d 272, 274 N.E.2d 178, 182 (1971); Gilbert v. Stone City Constr. Co., 171 Ind. App. 418, 357 N.E.2d 738, 742 (1976); Cardwell v. Jefferson Rentals Div. of J-R Equip. Corp. Assur. Co., 379 So.2d 255, 256 (La. Ct. App. 1979); Gabbard v. Stephenson's Orchard, Inc., 565 S.W.2d 753, 757 (Mo. Ct. App. 1978); Hawkins Constr. Co. v. Matthews Co., 190 Neb. 546, 209 N.W.2d 643, 654 (1973); Cintrone v. Hertz Truck Leasing & Rental Serv., 45 N.J. 434, 212 A.2d 769, 778 (1965); Stang v. Hertz Corp., 83 N.M. 730, 497 P.2d 732, 736-37 (1972); Waters v. Patent Scaffold Co., 75 A.D.2d 744, 427 N.Y.S.2d 436, 437 (N. Y. App. Div. 1980); Dewberry v. La Follette, 598 P.2d 241, 242 (Okla. 1979); Fulbright v. Klamath Gas Co., 271 Ore. 449, 533 P.2d 316, 321 (1975); Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736, 738-39 (1977). See also Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744, 353 S.E.2d 340, 341 (1987) (\\\"In those states which recognize the doctrine of strict liability in tort, the vast majority hold the doctrine applicable to bailments and leases in a commercial setting) (citing 52 A.L.R.3d 121).\\nWe recognize that, in some of our earliest cases, we have cited to section 4 to apply Restatement provisions without first determining whether this Court agrees that the Restatement approach represents the sounder rule or is consistent with Virgin Islands jurisprudence and policy. See, e.g., Williams v. United Corp., 50 V.I. 191, 195 n.3 (V.I.2008). However, in none of those cases did the parties expressly request that this Court exercise its inherent power to adopt a different rule, and this Court is not inclined to do so sua sponte without receiving the benefit of briefing by the parties. See Tigera Group, Inc. v. Commerce & Indus. Ins. Co., 753 F.Supp. 858, 860 n.1 (N.D. Cal. 1991).\\nMoreover, at the time these cases were decided, this Court had not yet issued its In re People opinion, and the Third Circuit had not yet issued Pichardo and Lewis. In other words, during the first two and a half years of this Court's existence, the issue of the extent to which this Court is required to follow the Third Circuit's prior interpretations of section 4 and other local Virgin Islands statutes remained an open question which had not been expressly considered by either court. Under these circumstances, fleeting references to section 4 in this Court's earliest opinions should not be construed as conclusively resolving the deeper issue of the relationship between section 4 and this Court's inherent authority to shape the common law in the Virgin Islands. See Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir. 1985) (\\\"We do not view these cases as controlling precedent on the applicability of the commerce clause to Guam. In those cases, this court simply assumed that the commerce clause applied, but the issue was never raised or discussed. Such unstated assumptions on non-litigated issues are not precedential holdings binding future decisions.\\\" (citing United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 37-38, 73 S. Ct. 67, 97 L. Ed. 54 (1952))).\\nStare decisis \\\"is not an inexorable command.\\\" McDonald v. City of Chicago, 561 U.S. _, 130 S. Ct. 3020, 3063, 177 L. Ed. 2d 894 (2010) (Thomas, J., concurring) (quoting Lawrence v. Texas, 539 U.S. 558, 577, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003)). Indeed, as the Supreme Court of the United States has made clear, \\\"\\\\s\\\\tare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.\\\" Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct.2597, 115 L. Ed. 2d 720 (1991) (citing Vasquez v. Hillery, 474 U.S. 254, 265-266, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986)). \\\"Nevertheless, when governing decisions are unworkable or are badly reasoned,\\\" the Court \\\"has never felt constrained to follow precedent.\\\" Id. (quoting Smith v. Allwright, 321 U.S. 649, 665, 64 S. Ct. 757, 88 L. Ed. 987 (1944)). This is so because stare decisis is \\\"a principle of policy and not a mechanical formula of adherence . however... questionable, when such adherence involves collision with a... doctrine more embracing in its scope, intrinsically sounder, and verified by experience.\\\" Helvering v. Hallock, 309 U.S. 106, 119, 60 S. Ct. 444, 84 L. Ed. 604, 1940-1 C.B. 223 (1940). We agree, and therefore do notbelieve that stare decisis would require us to continue to adhere to Pynes, because we have concluded, after critically examining that decision, that holding lessors strictly liable consistent with the Restatement (Third) OF Torts: Products Liability \\u00a7 1 and 20 represents the sounder rule.\"}"
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+"{\"id\": \"3588808\", \"name\": \"FATHI YUSUF and UNITED CORPORATION, Appellants/Defendants v. MOHAMMAD HAMED, by his authorized agent, WALEED HAMED, Appellee/Plaintiff\", \"name_abbreviation\": \"Yusuf v. Hamed ex rel. Hamed\", \"decision_date\": \"2013-09-30\", \"docket_number\": \"S. Ct. Civil No. 2013-0040\", \"first_page\": 841, \"last_page\": \"861\", \"citations\": \"59 V.I. 841\", \"volume\": \"59\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Supreme Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T01:29:19.686143+00:00\", \"provenance\": \"CAP\", \"judges\": \"HODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice.\", \"parties\": \"FATHI YUSUF and UNITED CORPORATION, Appellants/Defendants v. MOHAMMAD HAMED, by his authorized agent, WALEED HAMED, Appellee/Plaintiff\", \"head_matter\": \"FATHI YUSUF and UNITED CORPORATION, Appellants/Defendants v. MOHAMMAD HAMED, by his authorized agent, WALEED HAMED, Appellee/Plaintiff\\nS. Ct. Civil No. 2013-0040.\\nSupreme Court of the Virgin Islands\\nSeptember 30, 2013\\nJoseph DiRuzzo III, ESQ., Fuerst, Ittleman, David & Joseph, PL, Miami, FL, Attorney for Appellants.\\nJoelH. Holt, Esq., CarlJ. Hartmann III, Esq., St. Croix, USVI, Attorneys for Appellee.\\nHODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice.\", \"word_count\": \"8342\", \"char_count\": \"51333\", \"text\": \"OPINION OF THE COURT\\n(September 30, 2013)\\nCabret, Associate Justice.\\nFathi Yusuf and United Corporation appeal the Superior Court's preliminary injunction requiring them to maintain joint management of the three Plaza Extra stores with Mohammad Hamed pending trial on his claim of a partnership interest in the stores. Yusuf and United argue that the injunction must be vacated because Hamed has failed to meet his burden of establishing the need for an injunction and the amount of injunction bond was legally insufficient. For the following reasons, we affirm the Superior Court's April 25, 2013 Order granting Hamed's preliminary injunction motion, but remand for the Superior Court to reconsider the sufficiency of the bond.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nYusuf and Hamed grew up as neighbors in a village in the West Bank. In 1973, Hamed immigrated to the United States, settling on St. Croix, where Yusuf lived with his wife. Several years later, in 1979, Yusuf incorporated United Corporation as a Virgin Islands corporation \\u2014 which continues to be owned and operated by Yusuf and members of his immediate family \\u2014 and began constructing the Plaza Extra supermarket in a shopping center owned by United in Estate Sion Farm on St. Croix. After Yusuf was unable to secure funding to complete the store, Hamed sold his two grocery stores and invested a total of $400,000 into the Sion Farm store. According to Hamed, this investment resulted in an equal partnership between Yusuf and Hamed after other investors abandoned the project.\\nThe Sion Farm store opened in 1986, with Yusuf handling the financial aspects of the business, and Hamed managing the store's inventory and warehouse. The Sion Farm store (colloquially known as \\\"Plaza East\\\") proved successful, leading to the construction of two more stores, one in Tutu Park Mall on St. Thomas in 1993 and another in Grove Place on the west end of St. Croix (referred to colloquially as \\\"Plaza West\\\") in 2002. In 1996, Hamed retired from his role in the operations of the business due to illness, giving a power of attorney and delegating his management responsibilities to one of his sons, Waleed Hamed. After Mohammad Hamed's retirement, the Yusuf and Hamed families continued joint management of the stores, with members of both families co-managing each store. At the time the Superior Court issued the preliminary injunction, Mufeed Hamed, Waleed Hamed, and Yusuf Yusuf managed Plaza East; Waheed Hamed, Fathi Yusuf, and Nejah Yusuf managed the St. Thomas store; and Hisham Hamed and Mahar Yusuf managed Plaza West. These three stores currently employ approximately 600 persons in the Territory.\\nIn 2003, United and members of the Yusuf and Hamed families were indicted in the United States District Court of the Virgin Islands for tax evasion, resulting in a plea agreement entered in 2011. Pursuant to the agreement, United agreed to plead guilty to tax evasion and the charges against the individual members of both families were dismissed. As a result of the criminal proceeding, a federal receiver was appointed to oversee the profits from the Plaza Extra stores in 2003, holding these funds \\u2014 currently amounting to approximately $43 million \\u2014 in escrow outside of the parties' control.\\nAround the time of the plea agreement in 2011, management cooperation between the two families began to break down. The store managers started requiring that a member of both the Yusuf and Hamed families sign off on any distribution of funds from Plaza Extra accounts, and Fathi Yusuf alleged that a review of financial records required by the plea agreement revealed that members of the Hamed family had been stealing money from the stores. Yusuf then attempted to evict Plaza East from United's shopping center by increasing the store's rent, indicating in a letter that \\\"United Corporation would like its location back,\\\" and that \\\"as of January 1, 2012 the rent will be $200,000.00 per month, only for the coming three months. If you do not give up the keys before three months, it will be $250,000.00 per month until further notice.\\\" (J.A. 67.) This went unpaid, and a later rent statement demanded payment of $2,168,609.80 for the months of January to September 2012. A few months later, Yusuf informed Mohammad Hamed of his intention to end their business relationship, sending a proposed \\\"Dissolution of Partnership\\\" agreement to Hamed on March 12, 2012, and initiating unsuccessful settlement negotiations. Later, on August 15, 2012, Yusuf wrote a check for $2,784,706.25 to himself and his son Mahar Yusuf from one of Plaza Extra's operating accounts over the written objections of Waleed Hamed. Mahar Yusuf, who is also the president of United Corporation, later provided conflicting testimony as to what United did with these funds.\\nUsing his power of attorney for Mohammad Hamed, Waleed Hamed initiated this action on September 17, 2012, filing a complaint against Fathi Yusuf and United Corporation in the Superior Court. The complaint alleged that Fathi Yusuf and Mohammad Hamed had formed a partnership in 1984, through which they agreed to jointly manage the stores and equally share the profits and losses. Hamed alleged that Yusuf acted in a manner \\\"designed to undermine the partnership's operations and success,\\\" citing Yusuf's eviction attempts and his removal of $2.7 million from Plaza Extra's operating accounts, which Hamed alleged violates the partnership agreement and \\\"threatens the financial viability\\\" of the stores. (J.A. 44-48.) Hamed also alleged that Yusuf had threatened to close the Plaza Extra stores and terminate the employment of Hamed family members, \\\"discredited] the operations of these three stores by making defamatory statements about [Mohammad] Hamed,\\\" changed the management structure to undermine Hamed's partnership interest, \\\"jeopardized] the good will\\\" of the three stores, unilaterally canceled inventory orders, and used Plaza Extra funds in unrelated business deals. (J.A. 46-48.) Based on these allegations, Hamed sought legal and equitable relief, including declaratory and injunctive relief, and compensatory damages for Hamed's financial losses.\\nThe next day, Hamed moved for a preliminary injunction against Yusuf and United to prevent them from \\\"interfering with Hamed's partnership rights . in operating . the three Plaza Extra supermarkets,\\\" and from \\\"withdrawing any funds from any partnership bank accounts or brokerage accounts without the consent of Hamed.\\\" (J.A. 82-87.) Following Yusuf and United's unsuccessful attempt to remove the case to District Court, Hamed renewed his motion for a preliminary injunction \\\"on an emergency basis\\\" on January 9, 2013, alleging that \\\"supermarket operations may be so compromised that they will no longer be viable if the [c]ourt does not intervene.\\\" (J.A. 301 (emphasis omitted).) The Superior Court held hearings on January 25 and 31, 2013, taking judicial notice of deposition testimony given by Fathi Yusuf on February 2, 2000, in an unrelated civil action in Territorial Court, and admitting the \\\"Dissolution of Partnership\\\" agreement over Yusuf and United's objection. The court also heard testimony from several members of both the Yusuf and Hamed families, as well as other Plaza Extra employees.\\nThe Superior Court issued a preliminary injunction on April 25, 2013, requiring the Yusuf and Hamed families to maintain joint management of the stores and requiring that any distribution of funds from Plaza Extra accounts be approved by a representative for both Yusuf and Hamed. The court ordered that Hamed post a $25,000 bond with the court, and that his interest in the $43 million of profits held in escrow by the District Court \\\"serve as additional security.\\\" (J.A. 4, 27.) Hamed posted the $25,000 bond with the court on May 1, 2013. Yusuf and United then moved for reconsideration of the injunction and the bond, which the Superior Court denied on May 31, 2013.\\nII. JURISDICTION\\nThis Court has jurisdiction over \\\"[i]nterlocutory orders of the Superior Court of the Virgin Islands . . . granting, continuing, modifying, refusing or dissolving injunctions.\\\" V.I. Code Ann. tit. 4, \\u00a7 33(b)(1). Additionally, Yusuf and United filed a timely notice of appeal on May 13, 2013. See 4 V.I.C. \\u00a7 33(d)(5); First Am. Dev. Group/Carib, LLC v. WestLB AG, 55 V.I. 594, 600-01 (V.I. 2011) (holding that the jurisdictional thirty-day filing deadline in section 33(d)(5) applies to appeals under section 33(b)). Therefore, we have jurisdiction to review the Superior Court's April 25, 2013 Order granting Hamed's motion for preliminary injunction, while the underlying claims in Hamed's action remain pending before the Superior Court. Petrus v. Queen Charlotte Hotel Corp., 56 V.I. 548, 554 (V.I. 2012) (citing In re Najawicz, 52 V.I. 311, 324-25 (V.I. 2009)).\\nIII. DISCUSSION\\nYusuf and United argue that the Superior Court erred in granting the preliminary injunction because Hamed failed to meet his burden of demonstrating that an injunction is necessary. They also argue that the court erred in failing to conduct a separate bond hearing and that the injunction bond is legally insufficient and illusory. We address each argument in turn.\\nA. Preliminary Injunction\\nIn deciding whether to grant a preliminary injunction, the Superior Court must consider four factors:\\n(1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest.\\nPetrus, 56 V.I. at 554 (quoting lies v. de Jongh, 638 F.3d 169, 172, 55 V.I. 1251 (3d Cir. 2011)). \\\"A preliminary injunction is an 'extraordinary and drastic remedy'. . never awarded as of right,\\\" Munaf v. Geren, 553 U.S. 674, 689-90, 128 S. Ct. 2207, 171 L. Ed. 2d 1 (2008) (citation omitted), and \\\"may only be awarded upon a clear showing that the plaintiff is entitled to such relief.\\\" Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008); see also Direx Israel, Ltd. v. Break through Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991) (a preliminary injunction \\\"involv[es] the exercise of a very far-reaching power, which is to be applied only in the limited circumstances which clearly demand it\\\" (internal quotation marks omitted)). Yusuf and United argue that Hamed did not meet his burden on any of the preliminary injunction factors, and therefore the injunction must be vacated. While this Court reviews the Superior Court's overall decision to grant or deny an injunction for abuse of discretion, Petrus, 56 V.I. at 554 (citing In re Najawicz, 52 V.I. at 328), we review the Superior Court's factual findings regarding likelihood of irreparable harm, harm to the nonmoving party, and whether the injunction is in the public interest only for clear error. Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharms. Co., 290 F.3d 578, 595 (3d Cir. 2002).\\n1. Reasonable probability of success on the merits\\nIn addressing the first factor, the Superior Court held that there was a reasonable probability that Hamed would succeed on the merits of his partnership claim. The court found that there was evidence showing the formation of an at-will partnership, including equal sharing of profits and losses, joint management, and joint contributions to operating expenses. Yusuf and United argue that there was no admissible evidence of profit sharing, and that the statute of frauds requires an indefinite, at-will partnership to be in writing.\\nIn order to show a reasonable probability of success on the merits, Hamed did not need to show that he will actually prevail on the merits at trial, or that his success is \\\"more likely than not,\\\" only that he has \\\"a reasonable chance, or probability, of winning.\\\" Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 229 (3d Cir. 2011); see also Northeast Ohio Coalition for Homeless v. Husted, 696 F.3d 580, 591 (6th Cir. 2012) (\\\"At the preliminary injunction stage, a plaintiff must show more than a mere possibility of success, but need not prove his case in full.\\\" (internal quotation marks and citation omitted)). In order to do this, Hamed must introduce evidence supporting each element of his cause of action. Punnett v. Carter, 621 F.2d 578, 583 (3d Cir. 1980) (\\\"the burden is on the party seeking relief to make a prima facie case showing a reasonable probability that it will prevail on the merits\\\").\\nAlthough this Court has yet to speak to the elements that a patty must prove in order to establish the existence of a partnership, the Virgin Islands Code incorporates the Uniform Partnership Act of 1997 (\\\"UPA\\\"). See 26 V.I.C. \\u00a7 1-274. The UPA provides that \\\"the association of two or more persons to carry on as co-owners a business for profit forms a partnership, whether or not the persons intend to form a partnership,\\\" 26 V.I.C. \\u00a7 22(a). \\\"In determining whether a partnership is formed,\\\" section 22(c) prescribes that neither joint property ownership nor \\\"[t]he sharing of gross returns\\\" standing alone will establish a partnership. 26 V.I.C. \\u00a7 22(c)(1)-(2). But \\\"[a] person who receives a share of the profits of a business is presumed to be a partner in the business\\\" unless those profits were received as payment of a debt, for services of an independent contractor, employee compensation, rent, \\\"an annuity or other retirement or health benefit,\\\" loan interest, or \\\"for the sale of the goodwill of a business.\\\" 26 V.I.C. \\u00a7 22(c)(3)(i)-(vi); UNIR PARTNERSHIP Act 1997 \\u00a7 202(c)(3)(i)-(vi). Other jurisdictions interpreting these UPA provisions have held that in the absence of a written partnership agreement, a court should consider \\\"the [express or implied] intent of [the parties], whether there was joint control and management of the business, whether there was a sharing of the profits as well as a sharing of the losses [ ] and whether there was a combination of property, skill or knowledge.\\\" Griffith Energy, Inc. v. Evans, 85 A.D.3d 1564, 925 N.Y.S.2d 282, 283 (App. Div. 2011); see also Redland v. Redland, 2012 WY 148, 288 P.3d 1173, 1213 (Wyo. 2012) (\\\"The basic elements of a partnership . are that the parties agree to share in some way the profits and losses of the business venture.\\\"). While a subjective intent to form a partnership is not required under the UPA, the parties must \\\"inten[d] to do things that constitute a partnership.\\\" Redland, 288 P.2d at 1213; see also Brown v. 1401 New York Ave., Inc., 25 A.3d 912, 913-14 (D.C. 2011) (\\\"While the manner in which the parties themselves characterize the relationship is probative of whether their relationship is a partnership, the question ultimately is an objective one: whether the parties intended to do the acts that in law constitute partnership.\\\" (internal quotation marks and alterations omitted)). But no single factor is determinative, and \\\"it is necessary to examine the . . . relationship as a whole.\\\" Griffith Energy, 925 N.Y.S.2d at 283 (citation omitted); see also Tedeton v. Tedeton, 87 So. 3d 914, 924 (La. App. Ct. 2012) (\\\"There are no hard and fast rules in making the determination of whether a partnership exists and each case must be considered on its own facts.\\\"); Wood v. Phillips, 823 So. 2d 648, 653 (Ala. 2001) (\\\"There is no settled test for determining the existence of a partnership. That determination is made by reviewing all the attendant circumstances.\\\").\\nYusuf and United argue that the Superior Court erred in finding that Hamed had shown a reasonable probability of success on the merits because this finding was based on the proposed \\\"Dissolution of Partnership\\\" agreement, which Yusuf and United argue should not have been admitted because it was a \\\"privileged settlement communication \\\" (Appellants' Br. 25-26.) Without this document, they argue \\\"there was no evidentiary support for any partnership distributions to [Hamed].\\\" (Appellants' Br. 25-26.) But regardless of whether the proposed dissolution agreement was erroneously admitted, it was undisputed at the injunction hearings that Yusuf and Hamed share the profits from the Plaza Extra stores. Hamed presented the testimony of Waleed Hamed and Mufeed Hamed, who both testified that Yusuf and Hamed share in the profits and losses from the stores, and Mohammed Hamed testified that he owns half of the business \\\"in the winning or loss.\\\" (J.A. 532.) This evidence was further supported by the testimony of Mahar Yusuf, one of the managers of Plaza West and the president of United Corporation, who stated that Yusuf and Hamed have \\\"a business agreement. . . [t]o operate the store,\\\" sharing the profits \\\"50/50.\\\" (J.A. 546.) After this testimony, Yusuf and United called Yusuf Yusuf, Fathi Yusuf's son and one of the managers of Plaza East, who testified that Mohammed Hamed is his father's \\\"partner\\\" and that \\\"there is an agreement. . . [according to profits.\\\" (J.A. 696.) While this uncontested evidence alone creates a presumption that Hamed is a partner in the business under the UPA, see 26 V.I.C. \\u00a7 22(c)(3), Hamed also introduced evidence of \\\"a combination of property, skill or knowledge,\\\" as well as \\\"joint management and control\\\" in the Plaza Extra stores. Griffith Energy, 925 N.Y.S.2d at 283. This evidence included the testimony that Hamed sold his business and invested the proceeds in the construction of Plaza East, that he and Fathi Yusuf jointly managed the store after it opened, and that all three stores continue to be jointly managed by members of the Yusuf and Hamed families.\\nYusuf and United argue that despite this evidence, Hamed did not show a reasonable probability of success because the partnership agreement violated the statute of frauds. The Superior Court found that as an at-will agreement of indefinite duration, the partnership agreement did not violate the statute of frauds under 28 V.I.C. \\u00a7 244(1). As a matter of statutory interpretation, we review this holding de novo. Brady v. Gov't of the V.I., 57 V.I. 433, 438 (V.I. 2012). \\\"[Mjost courts have held that the Statute of Frauds does not have any application to a contract of partnership that fixes no definite time for the duration or continuance of the partnership.\\\" 72 Am. Jur. 2D Statute of Frauds \\u00a7 31. And this Court has held that the statute of frauds has no application to oral contracts that, while intended to last for more than a year, have no stated durational terms and could conclude within a year. Peppertree Terrace v. Williams, 52 V.I. 225, 232 n.5 (V.I. 2009) (\\\" 'It is well settled that the oral contracts invalidated by the [sjtatute [of frauds] because they are not to be performed within a year include only those which cannot be performed within that period.' \\\" (quoting 9 Richard A. Lord, Williston on CONTRACTS \\u00a7 24-3 (4th ed. 1999))); see also Smith v. Robson, 44 V.I. 56, 62 (V.I. Terr. Ct. 2001) (\\\"It is immaterial that the performance of the contract actually exceeds one year. . [A] contract for lifetime employment need not be in writing because the employee's death could occur at any time.\\\" (citing Cooper v. Vitraco, Inc., 320 F. Supp. 239, 8 V.I. 112 (D.V.I. 1970))). Accordingly, because the Superior Court found that the partnership is an indefinite at-will agreement \\u2014 a finding that Yusuf and United do not challenge \\u2014 the statute of frauds is not implicated.\\nFinally, Yusuf and United argue that the evidence only establishes competing inferences regarding the existence of a partnership agreement that must be resolved by a jury. While they are correct that a jury will ultimately have to determine the factual issues presented in this case, it is appropriate \\u2014 and necessary \\u2014 for the trial judge to make findings of fact in deciding a preliminary injunction. Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981). These findings are only for the purposes of the injunction, and do not bind the jury. Id. (\\\"the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits\\\"); see also William G. Wilcox, D.O., P.C. Employees' Defined Ben. Pension Trust v. United States, 888 F.2d 1111, 1114 (6th Cir. 1989) (\\\"As a general rule, decisions on preliminary injunctions do not constitute law of the case and 'parties are free to litigate the merits.' \\\" (quoting Golden State Transit Corp. v. City of L.A., 754 F.2d 830, 832 n.3 (9th Cir. 1985))); Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000). Accordingly, in light of the evidence presented at the hearings, the Superior Court did not err in holding that Hamed had established a reasonable probability of success on the merits of his partnership claim, as he introduced evidence that he invested in the construction of Plaza East, that he continues to receive one-half of the profits from the Plaza Extra stores, and that each store is jointly managed by members of both the Yusuf and Hamed families.\\n2. Likelihood of irreparable harm to Hamed\\nThe Superior Court next held that Hamed had established that he was likely to suffer irreparable harm, as the case \\u2014 while also concerning money damages \\u2014 implicated Hamed's legal rights to equal participation in the management of the business, \\\"reflecting] his loss of control of the reputation and goodwill of the business which constitute irreparable injury, not compensable by an award of money damages.\\\" (J.A. 24.) Yusuf and United argue that \\\"[a]ny meaningful review of the record evidence shows that this commercial dispute concerns only money,\\\" and therefore Hamed cannot show that he is likely to suffer irreparable harm. (Appellants' Br. 20.)\\nIrreparable harm is \\\"certain and imminent harm for which a monetary award does not adequately compensate.\\\" Wisdom Imp. Sales Co. v. Labatt Brewing Co., 339 F.3d 101, 114 (2d Cir. 2003); see also Danielson v. Local 275, Laborers lnt'l Union of N. Am., AFL-CIO, 479 F.2d 1033, 1037 (2d Cir. 1973) (\\\"Irreparable injury is suffered where monetary damages are difficult to ascertain or are inadequate.\\\"). Thus, when \\\"the record indicates that [a plaintiff's loss] is a matter of simple mathematic calculation,\\\" a plaintiff fails to establish irreparable injury for preliminary injunction purposes. Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546, 551-52 (4th Cir. 1994) (quoting Graham v. Triangle Pub., 344 F.2d 775, 776 (3d Cir. 1965)).\\nHamed argues that the Superior Court properly found that Yusuf's interference with Hamed's right to equal management of the business constituted irreparable harm. The UPA establishes that \\\"[e]ach partner has equal rights in the management and conduct of the partnership business,\\\" 26 V.I.C. \\u00a7 71(f), and although the loss or interference with a party's right to control a business implicates money damages, courts have recognized that it can also constitute irreparable harm. Gitlitz v. Bellock, 171 P.3d 1274, 1280 (Colo. App. 2007) (the \\\"loss of a contractual right to manage and control a business may constitute irreparable harm[ and] monetary damages are an inadequate remedy for such a loss\\\"). This is because a party's right to control a business \\\"has intrinsic value\\\" that cannot be compensated by money damages. Wisdom Imp. Sales, 339 F.3d at 114 (holding that irreparable harm was established where a partner was excluded from exercising management rights); see also Mack v. Davis, 2013 Guam 13 \\u00b6 23 (\\\"Diluting a party's ownership in a company, which results in loss of control of a business, may constitute irreparable injury.\\\") (collecting cases).\\nGiven this standard, the Superior Court did not clearly err in finding that Hamed was likely to suffer irreparable harm absent an injunction in light of the evidence that Yusuf attempted to unilaterally fire employees, including Hamed's sons Mufeed and Waleed, repeatedly threatened to close down the stores, increased the rent for Plaza East in an attempt to evict the store from its location in United's shopping center, and removed $2.7 million from a Plaza Extra operating account over Hamed's objections, violating the two-signature requirement. In addition to this, after the Superior Court proceedings but before the court issued its order, Fathi Yusuf instructed the bank to deny Hamed access to Plaza Extra accounts and revoked the signature authorization of Hamed family members. This evidence of Yusuf's course of conduct, which was ongoing during the litigation, supported the Superior Court's finding that Yusuf had interfered with Hamed's management rights in Plaza Extra by making decisions on business operations without consulting Hamed, and at times doing so with the purpose of excluding Hamed from participating in the management of the business. See Wisdom Imp. Sales, 339 F.3d at 114 (affirming a finding of irreparable harm where nonmoving party's actions had allowed \\\"the vast majority of [the business]'s day-to-day business affairs [to] be conducted with or without the consent of the [entity's] directors\\\" in violation of their contractual management rights); Int'l Equity Investments, Inc. v. Opportunity Equity Partners, 427 F. Supp. 2d 491, 498 (S.D.N.Y. 2006) (\\\"[c]onduct that unnecessarily frustrates efforts to obtain or preserve the right to participate in the management of a company, may constitute irreparable harm\\\" (alteration in original; internal quotation marks omitted)), aff'd, 246 F. App'x 73 (2d Cir. 2007). In light of this evidence, the Superior Court did not clearly err in finding that irreparable harm was likely, given that Hamed's loss of control of a business that he has the legal right to co-manage \\\"would be irreparable by its very nature.\\\" Simenstad v. Hagen, 22 Wis. 2d 653, 126 N.W.2d 529, 535 (Wis. 1964).\\n3. Likelihood of irreparable harm to Yusuf and United\\nThe Superior Court found that injunctive relief would not inflict even greater harm on Yusuf and United as the nonmoving parties, as it would not deprive Yusuf of his rights in the business, but \\\"simply assure[] that Hamed is not deprived of the same legal rights to which he is entitled.\\\" (J.A. 25.) Yusuf and United argue that this finding \\\"effectively stripped United of virtually all its assets and its income stream, and devolved the assets and income stream to a disputed, at-will, oral partnership,\\\" (Appellants' Br. 28), \\\"tum[ing] the status quo on its head.\\\" (Appellants' Br. 29.)\\nIn determining whether Yusuf and United will be harmed by the injunction, the Superior Court was required to examine \\\"whether, and to what 'extent[,j . the [the nonmoving parties] will suffer irreparable harm if the preliminary injunction is issued.' \\\" Kos Pharms., Inc. v. Andrx Corp.., 369 F.3d 700, 727 (3d Cir. 2004) (quoting Opticians Ass'n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990)) (alteration and ellipsis in original). Yusuf and United argue that they are harmed by the injunction because it destroys the status quo, giving Hamed management rights he did not previously have. As the Superior Court observed, \\\"[o]ne of the goals of the preliminary injunction analysis is to maintain the status quo, defined as 'the last, peaceable, noncontested status of the parties.'\\\" (J.A. 25 (quoting Opticians, 920 F.2d at 197).) We cannot say here that the Superior Court clearly erred in finding that the injunction maintained the status quo by assuring that Hamed retained equal control over the business pending trial. Although the evidence regarding the extent of Hamed's control over Plaza Extra's operations was contested at the hearings, there was no dispute that each Plaza Extra store has two or more co-managers, at least one from the Yusuf family and one from the Hamed family. There was also testimony that in 2009 or 2010, Yusuf and Hamed \\\"came to an agreement\\\" that all funds distributed from Plaza Extra accounts required two signatures, one from a manager from the Yusuf family, and one from a manager from the Hamed family. (J.A. 432.) The testimony presented by Yusuf and United contradicted this in part, with Mahar Yusuf testifying that Fathi Yusuf imposed the two-signature system only to ensure that members of the Hamed family did not remove funds without his knowledge. But despite this conflicting evidence, there is evidentiary support for the Superior Court's finding that Yusuf and United would not be harmed by the injunction because it merely maintained the status quo, requiring two signatures from a member of each family to distribute funds and preserving the co-management of the stores between the families. Therefore, we cannot say that any of the Superior Court's findings were \\\"completely devoid of minimum evidentiary support or bear[ ] no rational relationship to the supportive evidentiary data.\\\" In re Estate of Small, 57 V.I. 416, 430 (V.I. 2012) (identifying the standard for holding a finding of fact to be clearly erroneous) (quoting Rainey v. Hermon, 55 V.I. 875, 880 (V.I. 2011)) (internal quotation marks and alteration omitted). And despite Yusuf and United's dire assertions that the injunction renders United \\\"effectively insolvent,\\\" (Appellants' Br. 28-29), they cite nothing to support this and never raised this argument or presented evidence to this effect before the Superior Court. Accordingly, the Superior Court did not err in finding that Yusuf and United would not be harmed by the preliminary injunction.\\n4. Public interest\\nFinally, the Superior Court found that the public interest was best served \\\"by the continued success of Plaza Extra Supermarkets, or . by the orderly dissolution or winding down of the business relationship,\\\" and the \\\"continued employment of 600 Virgin Islanders and the continuity of this Virgin Islands institution operated according to law and [the parties'] agreement.\\\" (J.A. 26.) \\\" 'In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.' \\\" Winter, 555 U.S. at 24 (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982)). In considering the public interest, courts should seek to prevent the parties from halting \\\"specific acts presumptively benefiting the public . . . until the merits [can] be reached and a determination made as to what justice require[s].\\\" Cont'l Grp., Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 358 (3d Cir. 1980).\\nYusuf and United's argument on this factor amounts to a single sentence: \\\"Because the injunction is completely unworkable and legally deficient, every employee likely will be terminated upon the partnership's dissolution.\\\" (Appellants' Br. 29-30.) Yusuf and United provide no citation to any legal authority, point to no evidence in the record, and completely fail to identify any finding that is \\\"completely devoid of minimum evidentiary support or . . . bears no rational relationship to the supportive evidentiary data.\\\" Estate of Small, 57 V.I. at 430. This lack of citation to legal or evidentiary support demonstrates that \\\"the consequences predicted . are speculative, hyperbolic, and almost entirely of the [parties'] own making.\\\" NML Capital, Ltd. v. Republic of Argentina, 727 F.3d 230, 2013 U.S. App. LEXIS 17645, *33, 2013 WL 4487563, at *8 (2d Cir. Aug. 23, 2013) (rejecting public interest arguments where the party \\\"failed to present the [trial] court with any record evidence to support its assertions\\\"). Furthermore, although \\\"[p]ublic interest can be defined a number of ways,\\\" Opticians, 920 F.2d at 197, the Superior Court appropriately identified the success of Plaza Extra and the continued employment of 600 Virgin Islanders as significant public interests. See Miller for & on Behalf of N.L.R.B. v. California Pac. Med. Ctr., 991 F.2d 536, 545 (9th Cir. 1993) (identifying employee layoffs as one of the \\\"weighty concerns\\\" a court should take into account in issuing an injunction); Lineback v. Chauffeurs, Teamsters, & Helpers Local Union No. 414, 513 F. Supp. 2d 988, 999 (N.D. Ind. 2007) (finding that preventing the potential loss of business, jobs, and tax revenue in a community weighed in favor of granting a preliminary injunction).\\nTherefore, because the Superior Court did not err in finding that Hamed has a reasonable probability of success on the merits, that he would likely suffer irreparable harm absent an injunction, that Yusuf and United would not be harmed by the injunction, and that the injunction is in the public interest, the Superior Court did not abuse its discretion in granting the preliminary injunction. Consequently, we affirm the portion of the Superior Court's April 25, 2013 Order granting the preliminary injunction.\\nB. Injunction Bond\\nThe Superior Court's April 25, 2013 Order directed Hamed to post a $25,000 bond with the Clerk of the Superior Court and ordered that Hamed's interest in the approximately $43 million in Plaza Extra profits held in escrow by the District Court to \\\"serve as additional security to pay any costs and damages incurred by [Yusuf and United] if found to have been wrongfully enjoined.\\\" (J.A. 4.) Yusuf and United argue that the Superior Court erred in setting the bond because it is insufficient and \\\"illusory.\\\" (Appellants' Br. 32-35.) This Court reviews the Superior Court's determination of bond for an abuse of discretion. Sprint Commc'ns Co. L.P. v. CAT Commc'ns Int'l, Inc., 335 F.3d 235, 239 (3d Cir. 2003).\\nYusuf and United argue that using the funds held in escrow as security was improper because the funds are held by the District Court as part of the ongoing criminal action. These funds are currently frozen and have not been distributed since 2003, and as of the time of this appeal remain outside of the parties' control. Federal Rule of Civil Procedure 65(c) provides that a court may issue a preliminary injunction \\\"only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.\\\" The purpose of this security is to guarantee that the enjoined party will be compensated for the expenses of complying with an erroneously issued injunction, as well as placing the moving party on notice of the maximum amount of compensation it could be forced to pay. Sprint, 335 F.3d at 240. Because \\\"[i]t is generally settled that, with rare exceptions, a defendant wrongfully enjoined has recourse only against the bond,\\\" Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 804 (3d Cir. 1989) (collecting cases), \\\"courts should err on the high side\\\" in setting the amount of security. Mead Johnson & Co. v. Abbott Laboratories, 201 F.3d 883, 888 (7th Cir. 2000).\\nIn light of these considerations, the Superior Court abused its discretion in using the funds held by the District Court as security for the preliminary injunction. These funds are outside of both Hamed's and the Superior Court's control and may only be accessed by the parties in limited circumstances. Further, the record is unclear as to how much of this money will remain once the criminal proceedings have concluded, as the plea agreement in that case indicates that these funds are to be used to pay \\\"(a) restitution; (b) fine; and (c) substantial monetary penalty. After sentencing, the Government agrees to release all lis pendens, restraining orders, liens, or other encumbrances or property except to the extent necessary to assure valid security for payments of all amounts referenced above.\\\" (J.A. 1101 (emphasis added).) Given the uncertain availability of these funds, they cannot adequately \\\"assure[] the enjoined party that it may readily collect damages from the funds posted or the surety provided in the event that it was wrongfully enjoined, without further litigation and without regard to the possible insolvency of the assured.\\\" Continuum Co. v. Incepts, Inc., 873 F.2d 801, 803 (5th Cir. 1989).\\nThe status of these funds, held in escrow outside of the court's control, stands in contrast to situations in which the security is held in escrow pursuant to an order of the enjoining court, in which case the enjoining court itself could allow a wrongfully enjoined party access to the restricted funds at any time. See, e.g., Anthony v. Texaco, Inc., 803 F.2d 593, 599 (10th Cir. 1986) (affirming security of $350,000 that the enjoining court ordered to be held \\\"in an interest-bearing escrow account\\\"); Scarcelli v. Gleichman, 2:12-CV-72-GZS, 2012 U.S. Dist. LEXIS 57776, *14, 2012 WL 1430555, at *5 (D. Me. Apr. 25, 2012) (unpublished) (allowing funds held in \\\"escrow established by this injunction\\\" to serve as security). Here, the Superior Court cannot release the funds held pursuant to the District Court's order, and therefore is unable to assure that Yusuf and United can \\\"readily collect damages\\\" in excess of the $25,000 bond in the event that they ultimately succeed on the merits. Accordingly, ordering the funds held by the District Court to be used as part of the injunction bond constituted an abuse of discretion, and we vacate the portion of the Superior Court's order directing these funds to serve as security. Because the Superior Court's decision to set the $25,000 cash bond was premised on these funds serving as additional security, we remand for the Superior Court to consider whether additional bond is required in light of this holding.\\nIV. CONCLUSION\\nThe Superior Court did not err in finding that Hamed has a reasonable probability of success on the merits, that the likelihood of irreparable harm to Hamed absent the injunction is greater than the harm Yusuf and United will face as a result of the injunction, and that granting the injunction is in the public interest. Therefore, the Superior Court did not abuse its discretion in issuing the preliminary injunction. Nevertheless, the Superior Court did abuse its discretion in ordering that funds outside of Hamed's and the Superior Court's control serve as security. Accordingly, we affirm the portion of the Superior Court's April 25, 2013 Order granting Hamed's motion for a preliminary injunction, but vacate the portion of the order using funds held by the District Court as security and remand for reconsideration of the injunction bond.\\nBefore October 29, 2004, the Superior Court of the Virgin Islands was known as the Territorial Court of the Virgin Islands. See 2004 V.I. Sess. Laws 179; see also Mendez v. Gov't of the V.I., 56 V.I. 194, 201 n.3 (V.I. 2012).\\nBecause Federal Rule of Civil Procedure 65, governing preliminary injunctions and temporary restraining orders, applies in Superior Court pursuant to Rule 7, we rely on federal case law in reviewing the Superior Court's order. See SUPER. Ct. R. 7 (\\\"The practice and procedure in the Superior Court shall be governed by the Rules of the Superior Court and, to the extent not inconsistent therewith, by . the Federal Rules of Civil Procedure .\\\").\\nIn Petrus, we adopted the injunction standard used by the United States Court of Appeals for the Third Circuit. The Third Circuit recently indicated that it applies a sequential injunction test, requiring the moving party to fully satisfy each of the four injunction factors. Conestoga Wood Specialities Corp. v. Sec'y of U.S. Dep't of Health & Human Servs., 2013 U.S. App. LEXIS 2706, 2013 WL 1277419, at *1-2 (3d Cir. Feb. 8, 2013). This sequential test is at odds with the holdings of other circuit courts, which apply different variations of a \\\"sliding-scale test,\\\" allowing the moving party to obtain an injunction even where the probability of success on the merits is low if the court determines that the moving party's likelihood of irreparable harm is great and the nonmoving party's likelihood of irreparable harm is very low. See, e.g., Hoosier Energy Rural Elec. Co-op.,Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) (\\\"[h]ow strong aclaim on the merits is enough depends on the balance of harms: the more net harm an injunction can prevent, the weaker the plaintiff's claim on the merits can be\\\"). We have applied such a test in previous cases, indicating that a party may obtain a stay pending appeal (which applies the same test as a preliminary injunction) even where the party makes a weak showing on the likelihood of success if the \\\"balance of the equities\\\" favors a stay. Rojas v. Two/Morrow Ideas Enters., S. Ct. Civ. No. 2008-0071, 2009 V.I. Supreme LEXIS 6, *6, 2009 WL 321347, at *2 (V.I. Jan. 22, 2009) (unpublished). There is significant disagreement regarding whether the United States Supreme Court mandated a sequential test in Winter, with some courts holding that it did, and others holding that variations of the sliding-scale test survive. Compare Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346-47 (4th Cir. 2009) (holding that Winter requires a sequential test), vacated on other grounds by 559 U.S. 1089, 130 S. Ct. 2371, 176 L. Ed. 2d 764 (2010), with Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011) (\\\"[W]e join the Seventh and the Second Circuits in concluding that the ' serious questions ' version of the sliding scale test for preliminary inj unctions remains viable after the Supreme Court's decision in Winter.\\\"); see also Rachel A. Weisshaar, Hazy Shades of Winter: Resolving the Circuit Split over Preliminary Injunctions, 65 Vand. L. Rev. 1011, 1032-47 (2012) (detailing pre- and post-Winter tests). We decline to address here whether a sequential test, a sliding-scale test, or another formulation is more appropriate, as Hamed satisfied the more stringent sequential test by establishing all four preliminary injunction factors.\\nYusuf and United also argue that any partnership agreement is unenforceable under the statute of limitations. However, Yusuf and United made a single passing reference to the statute of limitations before the Superior Court during the January 25, 2013 hearing, and did not make any substantive arguments regarding this issue until their motion to stay the injunction pending appeal. A party asserting the statute of limitations must do so in a timely fashion, usually in their first response to the complaint. See Fed. R. Civ. P. 8(c)(1) (requiring aparty to \\\"affirmatively state\\\" the statute of limitations in responding to a pleading). Because Yusuf and United failed to do this, this argument is waived. Brady v. Cintron, 55 V.I. 802, 817 n.15 (V.I. 2012) (\\\"It is well-established... that Virgin Islands statutes of limitation... may be waived if not timely asserted by a defendant or equitably modified by a court.\\\" (citing Jensen v. V.I. Water & Power Auth., 52 V.I. 435, 442 (V.I. 2009) and Fed. R. Civ. P. 8(c))). Yusuf and United also argue that Hamed's retirement ended the partnership, and that because \\\"the [injunction] at issue interferes with employer-employee relations, it is void ab initio as a matter of law\\\" under 24 V.I.C. \\u00a7 341. (Appellants' Br. 35.). But they did not raise these arguments with the Superior Court either, and so they are also waived. V.I.S.CT.R. 4(h) (\\\"Only issues and arguments fairly presented to the Superior Court may be presented for review on appeal....\\\").\\nIn a related argument, Yusuf and United assert that the Superior Court erred by taking judicial notice of, and \\\"reifying] almost exclusively on,\\\" Yusufs February 2000 deposition testimony because \\\"courts may not take judicial notice of either factual findings or the record of another case, including testimony, as substantive proof of the matters asserted.\\\" (Appellants' Br. 19.) But as Hamed notes, Yusuf and United have waived this argument, as they did not object to the admission of the deposition testimony on these grounds before the Superior Court. See V.I.S .Ct.R. 22(m) (issues that were \\\"not raised or objected to before the Superior Court\\\" are waived); Fed. R. Eved. 103(a)(1)(B) (\\\"A party may claim error in a ruling... if the ruling admits evidence, afnd the] party... timely objects or moves to strike; and... states the specific ground____\\\"). Although Yusuf and United did object when Hamed moved for the court to take judicial notice of the testimony, they objected only \\\"under the rule of completeness,\\\" indicating that Hamedhad introduced \\\"cherry pickfed]\\\" portions of the testimony transcript. (J.A. 339.) To preserve an objection on appeal, a party must object on the specific grounds raised on appeal, and \\\"a general objection or an objection on other grounds will not suffice.\\\" United States v. Gallo-Chamorro, 48 F.3d 502, 507 (11th Cir. 1995). Furthermore, to the extent the Superior Court committed any error in taking judicial notice of the deposition testimony, Yusuf and United invited this error when they stated that \\\"we intend to offer the entire deposition. As a matter of fact, we submitted a certified copy of the deposition before today's hearing, so it's already in the court record.\\\" (J.A. 340); Castillo v. People, 59 V.I. 240 (V.I. 2013) (invited error does not provide grounds for reversal).\\nAt oral argument, counsel for Yusuf and United described the payment of Plaza Extra profits to Hamed as an \\\"annuity,\\\" which would serve to rebut this presumption. 26 V.I.C. \\u00a7 22(c)(3)(iv). But Yusuf and United presented no evidence to support this assertion during the hearings, and did not raise this argument until oral argument before this Court. See Allen v. HOVENSA, S. Ct. Civ. No. 2010-0053, 2013 V.I. Supreme LEXIS 39, *8 (V.I. My 31, 2013) (holding that arguments presented for the first time at oral argument are waived). Similarly, Yusuf and United characterize Yusuf and Hamed's relationship as a \\\"joint venture,\\\" but \\u2014 aside from this repeated assertion \\u2014 they have waived this argument by failing to cite any authority or make any substantive arguments regarding joint ventures. V.I.S.Ct.R. 22(m). And given that \\\"[r]elationships that are called 'joint ventures' are partnerships if they otherwise fit the definition of a partnership,\\\" this argument lacks any merit. Unif. PARTNERSHIP act 1997 \\u00a7 202 cmt. 2.\\nThe cases cited by Yusuf and United are clearly distinguishable on this point. For example, Ebker v. Tan Jay Int'l, Ltd., 739 F.2d 812, 827 (2d Cir. 1984), applied the statute of frauds to an agreement with \\\"a stated term of five years,\\\" and Fountain Valley Corp. v. Wells, 98 F.R.D. 679, 683, 19 V.I. 607 (D.V.I. 1983), applied the statute of frauds to an agreement to purchase property, an issue not implicated here.\\nWith regard to the attempted termination of Wadda Charriez, Yusuf and United elicited a significant amount of testimony regarding the alleged misconduct that warranted Charriez's termination, testimony Yusuf and United repeatedly refer to in their appellate brief. But this argument entirely misses the point. Whether or not a particular management decision was justified given the circumstances is not at issue in this appeal, just as it was not at issue before the Superior Court. Instead, the issue is whether Fathi Yusuf s unilateral decision to terminate Charriez and other employees without consulting Mohammad Hamed violated his partnership rights to co-manage the business.\\nThis evidence of Yusuf s post-hearing conduct was brought to the Superior Court's attention through a motion to supplement the record with an affidavit from Waleed Hamed. The court granted the motion over Yusuf and United's objection. Although Yusuf and United recount their objections to the motion in their appellate briefs \\\"Statement of the Case,\\\" they do not make any arguments to this Court regarding the admissibility of this evidence, and therefore we do not address whether this evidence was properly admitted. See George v. People, 59 V.I. 368 n.3 (V.I.2013) (holding that an issue referred to outside of the argument section of an appellate brief, but not argued in the brief, is waived).\\nYusuf and United argue in passing that the injunction \\\"pierced the corporate veil,\\\" (Appellants' Br. 29), an argument they also raised in their filings with the Superior Court. But their appellate brief only references this argument once in a single sentence, with citation to a single case and no explanation or argument regarding its applicability to this appeal. Therefore, this argument is waived. V.I.S.Ct.R. 22(m) (\\\"Issues that... are only adverted to in a perfunctory manner or unsupported by argument and citation to legal authority, are deemed waived for purposes of appeal.\\\").\\nSee generally Or\\u00edn H. Lewis, \\\"The Wild Card That Is the Public Interest\\\": Putting A New Face on the Fourth Preliminary Injunction Factor, 72 Tex. L. Rev. 849, 854 (1994) (examining the widely varying conceptions of \\\"public interest\\\" in federal case law); see also American Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 n.8 (3d Cir. 1994) (\\\"As a practical matter, if a plaintiff demonstrates both a likelihood of success on the merits and irreparable injury, it almost always will be the case that the public interest will favor the plaintiff.\\\").\\nThe restraining order preventing the parties from accessing these funds will remain in place until United's sentencing in District Court. According to the District Court docket entries, the sentencing hearing was initially scheduled for July 16, 2013, but was continued to an undetermined date. United States v. United Corporation, Crim. No. 2005-0015, docket entry no. 1379 (D.V.I. July 16, 2013) (\\\"[s]entencing hearing held and continued to a date to be set by the [cjourt\\\").\\nYusuf and United also argue that the Superior Court erred in finding they had admitted that Hamed is entitled to fifty percent of the Plaza Extra profits. But because we remand for the reasons outlined above, we do not reach the question of whether Yusuf and United admitted that Hamed is entitled to these funds for the purposes of the preliminary injunction proceedings. Further, Yusuf and United also argue that the Superior Court was required to hold a separate bond hearing, but Rule 65 imposes no such requirement, and the cases cited in their appellate brief do not support this argument. See Howmedica Osteonics v. Zimmer Inc., 461 Fed. Appx 192, 198 (3d Cir. 2012) (remanding for hearing where trial court failed to set bond at all); Deborah Heart & Lung Ctr. v. Children of World Found., 99 F. Supp. 2d 481, 495 n.2 (D.N.J. 2000) (indicating that the court would hold a separate bond hearing at a later date); EH Yacht, LLC v. Egg Harbor, LLC, 84 F. Supp. 2d 556, 572 (D.N.J. 2000) (same); Doebler's Pa. Hybrids, Inc. v. Doebler, 2003 U.S. Dist. LEXIS 27098, at *5-6 (M.D. Pa. 2003) (granting motion for reconsideration where court failed to require bond). We leave it to the Superior Court's discretion to determine whether a hearing is necessary on remand.\"}"
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+"{\"id\": \"3589095\", \"name\": \"PEOPLE OF THE VIRGIN ISLANDS, Plaintiff v. JAHZEEL FENTON, Defendant\", \"name_abbreviation\": \"People v. Fenton\", \"decision_date\": \"2013-08-22\", \"docket_number\": \"Case No. SX-10-CR-347\", \"first_page\": 163, \"last_page\": \"177\", \"citations\": \"59 V.I. 163\", \"volume\": \"59\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Superior Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T01:29:19.686143+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"PEOPLE OF THE VIRGIN ISLANDS, Plaintiff v. JAHZEEL FENTON, Defendant\", \"head_matter\": \"PEOPLE OF THE VIRGIN ISLANDS, Plaintiff v. JAHZEEL FENTON, Defendant\\nCase No. SX-10-CR-347\\nSuperior Court of the Virgin Islands Division of St. Croix\\nAugust 22, 2013\", \"word_count\": \"4664\", \"char_count\": \"29134\", \"text\": \"BRADY, Judge\\nMEMORANDUM OPINION\\n(August 22, 2013)\\nTHIS MATTER is before the Court on the People of the Virgin Islands' Motion in Limine to Introduce Prior Bad Acts, filed March 29, 2012 (\\\"Motion\\\"); Defendant's Opposition to People's Motion in Limine to Introduce Prior Bad Acts, filed September 4,2012 (\\\"Opposition\\\"); and the People's Supplemental Memorandum in Support of Motion in Limine/Motion to Introduce Prior Bad Acts, filed March 19, 2013 (\\\"Supplemental Memorandum\\\").\\nThe People argue that various prior bad acts of Defendant must be admitted to help \\\"complete the story.\\\" Motion, at 5. The People argue that these acts are admissible as permitted uses of character evidence pursuant to Federal Rule of Evidence 404(b)(1) and (2), which state in relevant part:\\nEvidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.\\nDefendant contends that \\\"Rule 404(b) does not allow for the introduction of prior bad acts evidence for the purposes of.. . completing the story.\\\" Opposition, at 2. The People, according to Defendant, are attempting to package character evidence demonstrating Defendant's criminal propensities with inadmissible hearsay and non-probative evidence immaterial to the present charges.\\nThe People, in their Supplemental Memorandum, reaffirm their need \\\"to complete the story of Defendant's pattern of isolation and control of the victim.\\\" Supplemental Memorandum, at 5. They argue the need to identify Defendant as the criminal perpetrator, to establish motive and to prove Defendant's intent in order satisfy the People's burden of proof under the law.\\nFor the reasons that follow, the People's Motion is granted in part and denied in part.\\nFACTS\\nPresent Incident.\\nOn March 19, 2010, Jo-Ana Lang (\\\"the Victim\\\"), was shot in her home while in the presence of her boyfriend, Defendant Jahzeel Fenton. Her four minor children were living with her and were home at the time of the shooting. The Victim suffered extensive injuries from the gunshot but survived, although with permanent crippling injuries, following weeks of hospitalization and treatment.\\nPolice recovered DNA samples from the scene and a firearm under a stairwell on the western side of the building. When the Victim recovered her health sufficiently to speak with police, she initially gave a video statement on October 13, 2010 wherein she identified Defendant as her assailant. However, on July 8, 2011, the Victim recanted her previous video statement in writing, claiming she could no longer identify Defendant as the shooter. Defendant maintains that he was not the shooter; but that the culprit is still on-the-loose and yet to be the subject of police investigations.\\nTo refute Defendant's contention that he was not the shooter, the People seek to introduce evidence of Defendant's prior bad acts. This evidence \\\"complete[s] the story\\\" and, according to the People, is essential in establishing the intent, motive and identity of Defendant as the perpetrator. Motion, at 5.\\nProposed Evidence.\\nIn its Motion and Supplemental Memorandum, the People request in limine that this Court admit the following when offered at trial:\\n1) Evidence of an August 3,2009 incident of domestic violence involving Defendant and a previous girlfriend, Betsaida Santiago, through the testimony of Officer Quailey;\\n2) Prior acts of domestic violence involving Defendant and the Victim that occurred between January and March 19, 2010, through testimony of social worker Mary Dupigny, of neighbor David Henry, of other unnamed neighbors of the Victim, of Margarita Ayala, the Victim's mother, and of Sandra Brannigan, the aunt of the Victim's minor children;\\n3) Prior acts of child abuse that allegedly occurred between January and March 19, 2010 against the Victim's four minor children, specifically the possession of a firearm and ammunition, through testimony of Vanessa Gonzales, another aunt of the Victim's children;\\n4) Threats allegedly made by Defendant against Sandra Brannigan approximately four months prior to March 19, 2010, through testimony of Sandra Brannigan and Mary Dupigny;\\n5) Statements pertaining to the March 19, 2010 shooting and statements pertaining to prior domestic violence against the Victim and her minor children, as told by the minor children to Sandra Brannigan, who would testify at trial.\\nDISCUSSION\\nI. The \\\"Intent\\\" and \\\"Identity\\\" exceptions of Rule 404(b)(2) permit the People to \\\"complete the story\\\" relative to the present charges through evidence of a prior incident of domestic violence by Defendant against his former girlfriend.\\nThe People seek to introduce evidence of prior domestic violence involving Defendant and former girlfriend Betsaida Santiago by offering the testimony of Officer Quailey. The People argue that this evidence meets the intent and identity exceptions, among others, to the prohibition against admission of prior bad acts as set out within Fed. R. Evid. 404(b)(2).\\nAt the outset, whether or not a 404(b) exception to inadmissibility may apply, the Court must review whether this information is admissible through the testimony of Officer Quailey rather than through testimony of the former girlfriend herself. Any attempt to admit the statement of the victim of the prior incident solely by reference to the police report of the prior incident would constitute impermissible hearsay. See Krepps v. Gov't of the Virgin Islands, 47 V.I. 662, 672, (D.V.I. App. 2006).\\nAs such, evidence of any prior incident of domestic violence involving Defendant and his former girlfriend may not be admitted through the hearsay testimony of Officer Quailey or through any contemporaneous police report of such incident.\\nTurning to whether direct evidence from the former girlfriend alleged victim of any prior incident of domestic abuse may be admitted, we begin with the premise that Rule 404 generally prohibits evidence that is intended to show a defendant's propensity for crime or a disposition to commit a particular crime. See U.S. v. Scarfo, 850 F.2d 1015, 1018-1019 (3d Cir. 1988). \\\"Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.\\\" Fed. R. Evid. 404(b)(1). This rule keeps information that might pigeonhole a defendant into a criminal class from the jury's ears.\\nThe framers of the current evidentiary rule deemed it necessary to carve out exceptions to the general rule against the admissibility of character evidence: \\\"This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.\\\" Fed. R. Evid . 404(b)(2). The United States Supreme Court designed a three-part test for considering proffered Rule 404 evidence:\\nIn considering the admissibility of such evidence, the Court should consider whether (1) the evidence is being offered for a proper purpose, (2) the evidence is relevant to a material issue in dispute, and (3) the probative value of the evidence is substantially outweighed by the danger of unfair prejudice under Rule 403. Huddleston v. United States, 485 U.S. 681, 691-92, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988).\\nIf those conditions are met, the trial judge admitting the evidence must provide the jury with a limiting instruction, directing that jurors consider the testimony only for a particular, limited purpose. Id.\\nRule 404(b) has been described as \\\"a rule of inclusion rather than exclusion.\\\" United States v. McClain, 313 Fed. Appx. 552, 555 (3d Cir. 2009). In United States v. Haukaas, the Court held that the government was entitled to introduce Rule 404(b) evidence to show an absence of mistake or accident as well as to rebut the claim of self-defense. Prince v. Virgin Islands, 797 F. Supp. 2d 640, 55 V.I. 1026, (D.V.I App. 2011), citing United States v. Haukaas, 172 F.3d 542, 544 (8th Cir. 1999).\\nThe District Court Appellate Division in Prince v. Virgin Islands concluded that: \\\"Evidence of prior bad acts is also admissible to demonstrate that a defendant did not unwittingly commit a crime, but possessed the requisite knowledge.\\\" Prince, 55 V.I. at 1036, 797 F. Supp. 2d at 646. The Prince Court found that testimony concerning the defendant's prior assault was relevant and admissible in establishing Prince's criminal intent under Rule 404(b)(2).\\nThe Supreme Court of the Virgin Islands has held that evidence of a defendant's prior bad acts is admissible to \\\"complete the story of the crime as well as to explain the relationship of the parties or the circumstances surrounding a particular event.\\\" Chinnery v. Virgin Islands, 55 V.I. 508, 526-527 (V.I. 2011), citation and internal quotation omitted. See also United States v. Rock, 282 F.3d 548, 551 (8th Cir.2002).\\nVirgin Islands courts have \\\"recognized that evidence of other acts may be admitted to provide background information . to explain the circumstances, background or development of the crime charged\\\" as well as to complete the story of the crime on trial. Ledesma v. Gov't of Virgin Islands, 159 F Supp. 2d 863, 869 (D.V.I. 2001), citing Gov't of Virgin Islands v. Harris, 938 F.2d 401, 420 (3d Cir. 1991) (citations omitted) (upholding admission of evidence of prior threats and other acts of domestic violence against defendant's wife as background information for murder charge and to show intent). See also Colon v. Gov't of the Virgin Islands, 30 V.I. 119, 124 (D.V.I. App. 1994).\\nOnce the trial court decides that a 404(b) exception applies, it must decide \\\"if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice under Rule 403.\\\" Huddleston, 485 U.S. at 691-92. Any analysis pursuant to Rule 403 must begin with a determination as to whether the evidence has probative value. Next, the court must decide if the evidence \\\"invite[s] a degree of prejudice which outweighs the probative value of that evidence under a proper balancing pursuant to Rule 403.\\\" U.S. v. Himelwright, 42 F.3d 777, 785 (3d Cir. 1994). \\\"The [trial] court must appraise the genuine need for the challenged evidence and balance that necessity against the risk of prejudice to the defendant.\\\" United States v. Bradley, 173 F.3d 225, 230 (3d Cir.1 999) (quoting Gov't of the Virgin Islands v. Archibald, 987 F.2d 180, 186, 28 V.I. 228 (3d Cir. 1993)) (internal quotation marks and citations omitted). Evidence that is probative and relevant can be admitted or excluded at the trial court's discretion as long as that court's decision is not \\\"arbitrary or irrational.\\\" In re Paoli R.R. Yard PCB Litig., 113 F.3d 444, 453 (3d Cir. 1997).\\nIn the present case, the People seek to introduce a report of prior domestic violence, involving the Defendant and a previous girlfriend. They argue that this evidence meets the exceptions for intent and identity contained within Rule 404(b)(2). The People argue that the prior victim's testimony, along with other testimony, \\\"helps complete the story\\\" by showing that Defendant \\\"systematically isolated, abused and controlled\\\" both his both ex-girlfriend (Santiago) and the Victim. Supplemental Memorandum, at 4. The People claim they need to introduce prior abusive acts \\\"to prove the defendant's identification\\\" by introducing evidence of Defendant's method of operation (modus operandi) following the Victim's recanted statement and in light of Defendant's denial of his involvement. Id.\\nAs noted, Rule 404(b) is characterized as a \\\"rule of inclusion rather than exclusion.\\\" McClain, 313 Fed. Appx. at 555. The Virgin Islands Supreme Court in Chinnery determined that evidence of prior bad acts is admissible to allow the People to \\\"complete the story of the crime\\\" as well as to \\\"explain the relationship of a particular event.\\\" Chinnery, 55 V.I. at 526-527.\\nEvidence of Defendant's prior domestic assault on a female partner is not character evidence but rather establishes a pattern of systematic abuse and control by Defendant over his domestic. partner. It shows Defendant's intent, plan and modus operandi and it completes the story in that the former assault and the presently alleged assault have certain similarities, e.g. the systematic isolation, abuse and control by the Defendant over a female partner.\\nFurther, since Defendant contends that the Victim in this case was shot by another individual, the People need to establish the identity of the shooter. Under Rule 404(b)(2), the People are allowed to introduce evidence of prior bad acts to establish identity. Since Defendant has put the identity of the shooter into contention, the People are allowed to \\\"complete the story of the crime\\\" by showing that Defendant was involved in a similar instance of domestic abuse, which is admissible as relevant to the identity of the perpetrator. Id.\\nDefendant is protected from concerns that unfairly prejudicial evidence may be admitted under Rule 404(b) by \\\"the assessment the trial court must make under Rule 403 to determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.\\\" Huddleston, 485 U.S. at 691-92. In this matter, the proffered evidence is of value to a trial jury in demonstrating the Defendant's intent and identity through evidence of a prior act of Defendant. While the admission of such evidence prejudices Defendant (as does all evidence presented by the People), it is not so unduly prejudicial as to substantially outweigh its value to the trier of fact. Additionally, this Court will fashion a very specific limiting instruction to insure that the jury only considers the evidence for the limited purpose for which it is admissible.\\nAs such, non-hearsay evidence of the former act of assault committed by Defendant against his former domestic partner will be admitted through the testimony of the victim or other eyewitness of such assault, but will not be admitted through the hearsay testimony of Officer Quailey or any other person or through the admission of a police report of the former incident.\\nII. Except for Neighbor David Henry's testimony, proffered testimonial evidence of Defendant's prior acts of domestic violence perpetrated against the Victim are inadmissible hearsay\\nThe People seek to introduce prior reports of domestic violence allegedly perpetrated by Defendant against the same Victim during the period of January to March 19, 2010. The People seek to present such evidence through a variety of witnesses, none of whom has first-hand knowledge of these acts of domestic violence. Hearsay is defined as \\\"a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.\\\" Fed. R. Evid. 801(c). Hearsay is inadmissible under Rule 802 unless one of the hearsay exceptions apply, none of which the People offer for the statements in question.\\na. Testimony by Mary Dupigny\\nThe People ask the Court to allow Mary Dupigny to testify about prior instances of domestic violence based upon what a) Sandra Brannigan told her; or b) Margarita Ayala (Victim's 'mother) told her; or c) what the Victim's children told their aunt Sandra Brannigan, who in turn told her. Such testimony would clearly constitute hearsay, as it is to be presented for the truth of the matter asserted \\u2014 namely, that Defendant committed the prior acts referenced in the statements of those who so advised Ms. Dupigny. The only way these statements may properly be introduced is to have the declarants themselves testify in court where they will be subject to cross-examination. Therefore, absent any exception to the bar' against hearsay testimony, none of which is proffered by the People, Ms. Dupigny cannot testify as to what other parties told her about prior instances of domestic violence involving Defendant and the Victim.\\nb. Testimony by Sandra Brannigan\\nSimilar problems arise when the People seek to introduce Aunt Sandra Brannigan's testimony as to what the Victim's children told her about prior instances of domestic violence. These statements are also hearsay and are not, as the People argue, subject to the \\\"Tender Years Exception.\\\" No such exception exists under the Federal Rules of Evidence or under the laws of the Virgin Islands. Therefore, Ms. Brannigan's testimony as to what the Victim's children told her about past abuse is inadmissible hearsay.\\nc. Testimony by Margarita Avaia\\nMargarita Ayala appears to have limited or no first-hand knowledge of specific instances of abuse. According to Ms. Dupigny, Ms. Ayala \\u2022 \\\"learned from relatives that Jo-Ana was in an abusive relationship.\\\" Supplemental Memorandum, Exhibit 5. As such, her proposed testimony constitutes inadmissible hearsay pursuant to Rule 802.\\nd. Testimony by the Victim's Neighbors\\nTestimony by the \\\"neighbors\\\" as to what they heard in prior altercations between the Victim and Defendant is not admissible unless each testifying neighbor can state with reasonable certainty that the two parties involved in the altercation were the Victim and Defendant. Even first-hand testimony \\\"is only relevant if the jury can reasonably conclude that the act occurred and the Defendant was the actor.\\\" Huddleston, 485 U.S. at 689. Evidence which lacks crucial identifying elements presents juries with unreliable and therefore irrelevant evidence. Therefore, the Court will need to specifically examine each piece of proposed evidence before determining its admissibility. This shall be done on a case-by-case basis.\\nIt would appear, however, that proffered testimony of David Henry as to what he observed on March 19, 2010 should be admissible. To be admissible, testimony must consist of reliable, non-hearsay statements relevant to an issue in question. \\\"When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.\\\" Fed. R. Evid. 104(b).\\nDavid Henry's account of the March 19, 2010 incident does not constitute evidence of \\\"prior bad acts.\\\" It is admissible as it is not hearsay, if the testimony is delivered by Mr. Henry and it is relevant to the facts surrounding the March 19, 2010 incident. It is not unreliable just because the declarant does not know the Defendant's name. See Supplemental Memorandum, Exhibit 3. If Mr. Henry can identify the Defendant's voice or provide other reliable identifying elements, he satisfies the reliable witness standard of Rule 104(b).\\nIII. Aunt Vanessa Gonzales's testimony concerning Defendant's possession of a firearm within the home is admissible as direct evidence.\\nThe People seek to introduce Defendant's acts of child abuse against the Victim's four minor children through testimony of their aunt Vanessa Gonzales. The People have charged Defendant by its March 20, 2012 Superseding Information with four counts of Child Abuse in violation of 14 V.I.C. \\u00a7505 alleging, inter alia, Defendant's possession of a firearm and ammunition within their home, discharging a firearm in the presence of the minors and shooting their mother.\\nAccording to the People's Motion, Ms. Gonzales will testify that \\\"she observed the defendant with a weapon in the home where the minors also resided.\\\" Motion, at 2. Rather than evidence of prior bad acts, in fact, the proffered testimony is direct evidence of the allegations of the crime charged. As such, the proposed testimony will not be barred at this stage under Rule 404(b). admitted, to \\\"complete the story\\\" and to \\\"explain the relationship of the parties or the\\nIV. Defendant's alleged threats against Sandra Brannigan are admissible to \\\"complete the story\\\" and to \\\"explain the relationship of the parties.\\\"\\nThe People seek to introduce various threats allegedly made by Defendant against Sandra Brannigan during a visit of Ms. Brannigan to the residence of Defendant and the Victim some four months before March 19, 2010, through testimony by Sandra Brannigan and Mary Dupigny. Mary Dupigny will not be permitted to testify as to Ms. Brannigan's statements: that would constitute impermissible hearsay.\\nThe direct testimony of Sandra Brannigan as to the events of the day of her visit will be circumstances surrounding a particular event\\\" and the domestic life of Defendant, the Victim and her children. Chinnery, 55 V.I. at 526-527.\\nEvidence pertaining to threats allegedly made by Defendant against Sandra Brannigan is admissible only in the context of Ms. Brannigan's description of the domestic scene as she found it on the day of her visit. Pursuant to Rule 404(a), testimony regarding Defendant's threats against Ms. Brannigan is not admissible to prove Defendant's character or to prove that on March 19, 2010 he committed acts of violence consistent with threats he had previously made. Rather, such evidence may be admitted only to show Defendant's motive, opportunity, intent, plan and the like, and to complete the story of describing the relationships between Defendant and the Victim and her children.\\nAt trial, the Court will consider objections to evidence as presented, but at this time will not exclude evidence of Ms. Brannigan's previous visit to the home and Defendant's threats against her under Rule 404(b).\\nV. Sandra Brannigan's testimony concerning the children's reports of what occurred during the shooting is impermissible hearsay.\\nThe People seek to introduce evidence pertaining to the March 19, 2010 shooting involving Defendant, the Victim and her minor children, of statements made by the Victim's children to Sandra Brannigan, who would testify at trial. As with Ms. Brannigan's proposed testimony concerning the children's reports of prior domestic violence, this proffered testimony is also hearsay. Ms. Brannigan was not at the crime scene on March 19, 2010 and, therefore, cannot testify of her personal knowledge as to what occurred. The proposed evidence of the statements made to Ms. Brannigan by the minor children who were present is offered for the truth of the assertions of the children.\\nAs noted, the \\\"Tender Years\\\" exception to the hearsay rule does not apply in the Virgin Islands and the People's reliance upon New Jersey case law is unpersuasive. See Supplemental Memorandum, at 6, citing State v. Coder, 198 N.J. 451, 968 A. 2d 1175 (N.J. 2009). New Jersey's statutory hearsay exception as to the admissibility of statements of a child relative to a sexual offense are not found in the Federal Rules of Evidence and are not applicable in this jurisdiction. As such, without any valid exception to the hearsay rule, the proposed testimony of Ms. Brannagan as to what the Victim's minor children told her will be excluded.\\nCONCLUSION\\nPursuant to Rule 802, the People may only solicit non-hearsay testimony from Defendant's former girlfriend Betsaida Santiago concerning the alleged prior acts of domestic violence by Defendant against her. While Rule 404(a) generally prohibits evidence concerning prior bad acts, Rule 404(b)(2) contains several exceptions applicable in the present case. Prior evidence of Defendant's violent actions towards a previous domestic partner show Defendant's intent, plan and modus operandi; it completes the story of the crime and helps explain the circumstances surrounding a particular event.\\nThe People seek to introduce the testimony of witnesses who will offer accounts of past abuse concerning the Victim and Defendant as told to them by other people. This testimony is inadmissible hearsay and will not be allowed. David Henry's observations of the March 19, 2010 incident do not relate to prior bad acts, are not hearsay and are admissible. Only witnesses who observed first-hand acts of abuse will be considered qualified to testify as to what they perceived.\\nThe People seek to introduce through testimony of Vanessa Gonzales the fact of Defendant's prior possession of a firearm and ammunition within the home, which the People allege constitutes child abuse against the Victim's four minor children. This is not evidence of prior bad acts but is direct evidence of the allegations of the crimes charged. As such, this testimony is admissible for the purpose of proving the crimes charged.\\nThe People seek to introduce the various threats allegedly made prior to March 19, 2010 by Defendant against Sandra Brannigan. The direct testimony of Sandra Brannigan as to the events of the day of her prior visit to the home will be admitted, to \\\"complete the story\\\" and to \\\"explain the relationship of the parties or the circumstances surrounding a particular event,\\\" including the domestic setting of Defendant, the Victim and her children. Ms. Brannigan's testimony is not admissible to establish Defendant's character or to prove that on March 19, 2010, he committed acts of violence consistent with threats he had previously made, and an appropriate limiting instruction will be given.\\nFinally, the People seek to introduce through the testimony of Sandra Brannigan evidence pertaining to the March 19, 2010 shooting involving Defendant, the Victim and her minor children, as told by the Victim's children to Sandra Brannigan. As there is no applicable \\\"Tender Years\\\" hearsay exception in the Virgin Islands, only the children themselves may testify as to what they observed on March 19, 2010.\\nAn appropriate Order will issue simultaneously herewith.\\nBecause of reliability concerns, the rules expressly exclude police reports as inadmissible hearsay. See Fed. R. Evid. 801(a)-(b) (defining hearsay); 803(8) and advisory committee notes (excluding from the \\\"public records\\\" hearsay exception matters observed by police officers and other law enforcement personnel in criminal cases, noting that because of the adversarial nature between police and the defendant, such reports do not bear the reliability of other official reports). Police reports containing the statements of others are similarly regarded as unreliable, the underlying concern being that such reports simply reflect the statements of third parties who have no duty to report and whose reliability cannot be tested, with all the reliability concerns such hearsay statements present. See e.g. United States v. De Peri, 778 F.2d 963 (3d Cir.1985).\\n\\\"In United States v. Haukaas, 172 F.3d 542, 544 (8th Cir. 1999), after a night of drinking, the defendant, Haukaas, stabbed two of his companions. He was tried and convicted of one count of assault with a dangerous weapon, two counts of assault resulting in serious bodily injury, and one count of simple assault. At trial, the government presented evidence of an altercation between the defendant and his girlfriend that had taken place two years prior. The defendant's girlfriend testified that the defendant had held a knife to her throat and threatened to kill her.\\n\\\"Addressing whether the testimony about a prior incident involving the defendant brandishing a knife was proper 404(b) evidence, the court noted that: 'During the investigation, Haukaas told an FBI agent that the stabbing was an accident. Haukaas then testified at trial that he was holding the knife stationary when the victims thrust themselves on the blade. He later claimed that he acted in self-defense. Thus, the government was entitled to introduce the Rule 404(b) evidence to show an absence of mistake or accident and to rebut the claim of self-defense.' \\\" Prince, 55 V.I. at 1035-1036, 797 F. Supp. At 645-646.\\nSee United States v. Stanley, 405 Fed. Appx. 662, 664 (3d Cir. 2010) (unreported) (holding that evidence that Defendant had told government agent that \\\"he's done this before for other individuals,\\\" was admissible under 404(b) to prove knowledge); United States v. Andujar, 209 Fed. Appx. 162 (3d Cir. 2006) (unreported) (finding that evidence of prior \\\"bad acts\\\" with respect to defendant's tax filings was admissible to establish willfulness on charges of failure to file tax returns).\\nWhen applicable, a typical Tender Years Statute \\\"provides for an exception to the hearsay rule. For the Tender Years Statute to apply, the court must find that the child victim is unavailable to testify and that the statements sought to be introduced are relevant and have sufficient indicia of reliability.\\\" See Lyons v. Wilson, 2010 U.S. Dist. LEXIS 53909 (W.D. Pa 2010).\\nThe issue is not before the Court and no opinion is expressed and no ruling is made as to whether the fact of the possession of a firearm in the home of minor children, without more, constitutes sufficient evidence for conviction on the charge of Child Abuse in violation of 14 V.I.C. \\u00a7 505.\"}"
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+"{\"id\": \"3589372\", \"name\": \"IN THE MATTER OF THE PETITION OF THE VIRGIN ISLANDS BAR ASSOCIATION COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW RE: WILSON J. CAMPBELL\", \"name_abbreviation\": \"In re Virgin Islands Bar Ass'n Committee\", \"decision_date\": \"2013-09-16\", \"docket_number\": \"S. Ct. Misc. No. 2012-0016\", \"first_page\": 701, \"last_page\": \"741\", \"citations\": \"59 V.I. 701\", \"volume\": \"59\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Supreme Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T01:29:19.686143+00:00\", \"provenance\": \"CAP\", \"judges\": \"HODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice.\", \"parties\": \"IN THE MATTER OF THE PETITION OF THE VIRGIN ISLANDS BAR ASSOCIATION COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW RE: WILSON J. CAMPBELL\", \"head_matter\": \"IN THE MATTER OF THE PETITION OF THE VIRGIN ISLANDS BAR ASSOCIATION COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW RE: WILSON J. CAMPBELL\\nS. Ct. Misc. No. 2012-0016\\nSupreme Court of the Virgin Islands\\nSeptember 16, 2013\\nK. Glenda Cameron, Esq., Law Offices of K.G. Cameron, Attorney for Petitioner Virgin Islands Bar Association Committee on the Unauthorized Practice of Law.\\nWilson J. Campbell, Newark, New Jersey, Pro se.\\nHODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice.\", \"word_count\": \"14630\", \"char_count\": \"92265\", \"text\": \"OPINION OF THE COURT\\n(September 16, 2013)\\nPer curiam.\\nThis matter comes before the Court pursuant to a petition filed by the Unauthorized Practice of Law Committee of the Virgin Islands Bar Association (\\\"UPLC\\\"), in which it alleges that Wilson J. Campbell, a New Jersey attorney, has engaged in the unauthorized practice of law while employed with the Virgin Islands Department of Justice. For the reasons that follow, we grant the petition, as modified.\\nI. BACKGROUND\\nThe Department of Justice initially employed Campbell as an Assistant Attorney General in its St. Croix office beginning in October 2004. Although not a regular member of the Virgin Islands Bar, Campbell practiced as a specially admitted attorney pursuant to the former Superior Court Rule 302 until he separated from the Department of Justice and returned to New Jersey in September 2006, where he served as a part-time municipal judge.\\nEventually, Campbell received an offer to rejoin the Department of Justice as an Assistant Attorney General who would also serve as \\\"Chief of the Criminal Division\\\" on St. Thomas. On July 30, 2009, the Department of Justice moved this Court for Campbell's special admission. However, unlike former Superior Court Rule 302, Supreme Court Rule 202 requires an applicant for special admission to establish, by clear and convincing evidence, the good moral character necessary to practice law in the Virgin Islands. Campbell disclosed to the Committee of Bar Examiners (\\\"CBE\\\") that a complaint had been filed against him by New Jersey's Advisory Committee on Judicial Conduct, which alleged that Campbell violated that court's rules on judicial conduct and the judicial canon of ethics by failing to report an intimate relationship with a bailiff to his supervisors. As a result of the then-pending New Jersey judicial discipline proceedings, the CBE temporarily stayed scheduling a formal character and fitness hearing. See In re Application of Campbell, S. Ct. BA. No. 2009-0230, 2011 V.I. Supreme LEXIS 28, *1-4 & n.2 (V.I. Mar. 3, 2011) (unpublished).\\nCampbell commenced his employment with the Department of Justice in October 2009. On May 28, 2010, the UPLC received a complaint from Ernest Bason, an Assistant Attorney General assigned to the Criminal Division, alleging that Campbell had engaged in the unauthorized practice of law during his tenure. On June 2, 2010, the UPLC received a second complaint against Campbell, filed by Eugene Irish, the Vice President of the United Industrial Workers Union \\u2014 the organization representing a bargaining unit containing most of the Assistant Attorneys General \\u2014 which set forth largely the same allegations as those of Bason. The UPLC, in letters dated June 1, 2010, and June 4, 2010, provided Campbell with notice of the complaints, and requested an answer. Campbell responded to the charges in a June 7, 2010 letter, and on June 25, 2010, the UPLC elected to initiate a formal investigation.\\nEventually, Campbell requested that the CBE schedule a character and fitness hearing notwithstanding the pendency of the New Jersey proceedings. Although the CBE held a hearing on January 28, 2011, it conducted no inquiry into the unauthorized practice of law allegations. While the New Jersey Supreme Court subsequently issued a decision publicly reprimanding Campbell for violating Canons 1 and 2A of New Jersey's Code of Judicial Conduct, a majority of the CBE agreed to recommend Campbell's admission because the public reprimand did not adversely affect Campbell's right to practice law in New Jersey and the underlying conduct did not reflect that he lacked good moral character. Campbell, 2011 V.I. Supreme LEXIS 28 at *4.\\nThis Court, in its March 3, 2011 Opinion, agreed that the New Jersey Supreme Court's public reprimand should not preclude Campbell's special admission on character and fitness grounds, but declined to adopt the ultimate recommendation to grant the motion for special admission because the CBE failed to conduct a complete inquiry into Campbell's moral character. Id. at *6. Specifically, this Court found that the CBE and the UPLC possessed concurrent jurisdiction to investigate the unauthorized practice of law allegations. Id. at *13 (quoting In re Application of Coggin, 49 V.I. 432, 438 (V.I. 2008)). Accordingly, this Court remanded the matter to the CBE for further investigation. Id. at *13.\\nSince the UPLC had already begun its formal investigation, the CBE stayed its inquiry pending the outcome of the UPLC proceedings. However, in August 2011, Campbell resigned from the Department of Justice, which shortly thereafter moved to withdraw its application for his special admission. Once this Court granted that motion, any further character and fitness investigation by the CBE became moot, leaving the UPLC as the sole entity investigating the unauthorized practice of law allegations.\\nThe UPLC completed its investigation and filed a report with the Board of Governors of the Virgin Islands Bar Association on June 8, 2012, which concluded that Campbell engaged in the unauthorized practice of law at various times between October 2009 and August 2011. The Board of Governors approved the report on July 10, 2012, and the UPLC filed its petition with this Court shortly thereafter. After docketing the UPLC's petition, this Court established deadlines for briefing and transmission of the record. Now that this Court is in receipt of Campbell's response and the record, this matter is ripe for decision.\\nII. JURISDICTION\\nThis Court possesses, pursuant to both its statutory and inherent authority, the exclusive jurisdiction to regulate the practice of law in the Virgin Islands. 4 V.I.C. \\u00a7 32(e); In re Rogers, 56 V.I. 618, 623 (V.I. 2012). As a result, this Court has also been vested with jurisdiction to adjudicate actions alleging that an individual has engaged in the unauthorized practice of law, including granting injunctive relief and imposing monetary fines. 4 V.I.C. \\u00a7 443(b); see also In re Rogers, 57 V.I. 553, 558 (V.I. 2012).\\nIII. DISCUSSION\\nIn his response, Campbell primarily argues that the UPLC incorrectly applied section 443 of title 4 to the exclusion of the American Bar Association's Model Rules of Professional Conduct. As to the merits, Campbell declines to address the claims against him, choosing to \\\"leaveQ the [UPLC] to its proofs.\\\" (Resp. 2.) Likewise, Campbell has not briefed this Court on the issue of what remedy to grant in the event we agree with the UPLC, other than a general request for leniency. We address each issue in turn.\\nA. Title 4, Section 443 Governs Unauthorized Practice of Law in the Virgin Islands\\nThis Court, in its March 3, 2011 Opinion declining to accept the CBE's recommendation to specially admit Campbell, held that title 4, section 443 of the Virgin Islands Code prohibits the unauthorized practice of law in the Virgin Islands. Campbell, 2011 V.I. Supreme LEXIS 28 at *3. This statute reads, in pertinent part, as follows:\\nExcept as otherwise provided by law or rule of court, and excepting court personnel acting in the performance of their court duties, the unauthorized practice of law shall be deemed to mean the doing of any act by a person who is not a member in good standing of the Virgin Islands Bar Association for another person usually done by attorneys-at-law in the course of their profession, and shall include but not be limited to:\\nthe appearance, acting as the attorney-at-law, or representative of another person, firm or corporation, before any court, referee, department, commission, board, judicial person or body authorized or constituted by law to determine any question of law or fact or to exercise any judicial power, or the preparation and/or filing of pleadings or other legal papers incident to any action or other proceeding of any kind before or to be brought before the same.\\n4 V.I.C. \\u00a7 443(a) (emphasis added). Notwithstanding our explicit invocation of section 443, Campbell argues, for several reasons, that section 443 is inapplicable. We address each argument in turn.\\n1. Relationship Between Supreme Court Rule 203 and Section 443\\nFirst, Campbell argues that the Model Rules of Professional Conduct, which Campbell states this Court has \\\"adopted verbatim,\\\" (Resp. 12), apply to the exclusion of section 443. Since section 443, by its own terms, provides that this Court may, through court rule, modify the statutory definition of unauthorized practice of law, Campbell is correct that rules adopted by this Court may take precedence over section 443. Campbell, however, is incorrect that this Court has adopted the Model Rules for all purposes. Supreme Court Rule 203 provides, in pertinent part, as follows:\\nThe Supreme Court, in furtherance of its inherent and statutory powers and responsibility to supervise the conduct of all attorneys who are admitted to practice before it, hereby adopts the ABA's Rules of Professional Conduct and Rules of Disciplinary Enforcement, superseding all of its other rules pertaining to disciplinary enforcement heretofore promulgated.\\nV.I.S. Ct. R. 203(a) (emphases added). By its own terms, Rule 203 establishes that the Model Rules govern the conduct of individuals who have actually been admitted to the Virgin Islands Bar, and makes no reference to extending the Model Rules to govern the conduct of nonmembers such as Campbell. More importantly, Rule 203 expressly states that the Model Rules only supersede previously-promulgated court rules \\\"pertaining to disciplinary enforcement,\\\" and does not purport to modify the statutory definition of unauthorized practice of law found in section 443. Thus, the UPLC committed no error when it identified section 443 as the applicable legal authority.\\n2. Section 443 and the Powers of the Attorney General\\nCampbell also correctly notes that the phrase \\\"[e]xcept as otherwise provided by law\\\" in section 443(a) authorizes other statutory exceptions to the definition of unauthorized practice of law. Since section 113(b) of title 3 of the Virgin Islands Code provides that \\\"[a]ny Assistant Attorneys General appointed under [section 113(a)] shall perform such duties as the Attorney General prescribes,\\\" and section 112(c) of title 3 states that the Department of Justice \\\"shall be administered under the supervision and direction of the Attorney General,\\\" Campbell argues that all Assistant Attorneys General are, in effect, supervised by the Attorney General, who is statutorily permitted to delegate whatever duties to them that he sees fit.\\nWe disagree. While Campbell is correct that the Attorney General serves as the head of the Department of Justice and is permitted to delegate duties to Assistant Attorneys General, authorization to practice law is a prerequisite to performing the duties of an Assistant Attorney General. See People v. Murrell, 56 V.I. 796, 804 (V.I. 2012) (\\\"an attorney general. . . may delegate prosecutorial duties to assistants authorized to practice law\\\") (collecting cases) (emphasis added); 4 V.I.C. \\u00a7 117 (prohibiting Assistant Attorneys General from engaging in the private practice of law). Moreover, although sections 112 and 113 grant the Attorney General the authority to delegate duties to Assistant Attorneys General, these provisions do not authorize the Attorney General to order Assistant Attorneys General to commit illegal acts. Importantly, section 114 of title 3 provides that any rule, regulation, or other practice employed by the Attorney General with respect to the administration of the Department of Justice and its personnel may not be \\\"inconsistent with law or other regulations authorized by law.\\\" 3 V.I.C. \\u00a7 114(a)(14). Not only does section 443 prohibit the unauthorized practice of law, but Supreme Court Rules 201 and 202 \\u2014 which constitute \\\"other regulations authorized by law\\\" by virtue of this Court's statutory and inherent authority to regulate the practice of law \\u2014 establish two classes of Virgin Islands Bar Association membership to allow individuals licensed to practice law in other jurisdictions to practice law in the Virgin Islands under the supervision of the Attorney General without sitting for the bar exam: pro hac vice admission (for up to three causes), and special admission (unlimited causes for a period not to exceed three years). Thus, the Attorney General's statutorily-mandated supervision of Assistant Attorneys General does not permit an Assistant Attorney General to practice law without obtaining Virgin Islands Bar admission.\\n3. Constitutionality of Section 443\\nCampbell also challenges the constitutionality of section 443 on the grounds that the enactment is vague to such an extent that enforcing it would violate his due process rights under the Fourteenth Amendment of the United States Constitution. According to Campbell, \\\"[t]he language contained in Section 443 is vague in its terms as it provides no definition for 'the doing of any act' or the definition of such 'acts' that are 'usually done by attomeys-at-law in the course of their profession.' \\\" (Resp. 9.) Campbell further alleges that the statute is overbroad in \\\"that attorneys perform 'acts' that are performed by non-lawyers which may include interviewing witnesses, fact investigation and fact analysis regarding legal actions or proceedings,\\\" which \\\"are performed by law enforcement personnel, private investigators, experts and lawyers alike.\\\" (Id.) Thus, Campbell has brought both facial and as-applied challenges to section 443.\\nFor Campbell to succeed in his facial challenge, he must prove that vagueness and imprecision so heavily permeate the statute that it is incomprehensible and vague in all of its applications. See In re Discipline of Lerner, 124 Nev. 1232, 197 P.3d 1067, 1076-77 (2008) (\\\"To succeed on a facial challenge for vagueness, the complainant must demonstrate that the law is impermissibly vague in all of its applications. A complainant who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.\\\") (internal quotation marks omitted). While Campbell is correct that section 443 does not delineate every single instance of prohibited conduct, the statute unquestionably provides specific examples of what constitutes the unauthorized practice of law, including, \\\"acting as the attorney-at-law, or representative of another person, firm or corporation, before any court\\\" and \\\"the preparation and/or filing of pleadings or other legal papers incident to any action or other proceeding of any kind before or to be brought before the same.\\\" Since the statute is not incomprehensible in all of its applications, Campbell's facial challenge must fail. See People v. Shell, 148 P.3d 162, 172-73 (Colo. 2006) (rejecting facial challenge to unauthorized practice of law statute because prohibitions on \\\"drafting documents and pleadings,\\\" \\\"giving advice with respect to the law,\\\" and \\\"presenting cases before courts\\\" were sufficiently clear to provide notice to person of common intelligence).\\nFor similar reasons, we reject Campbell's as-applied challenge. None of the charges against Campbell \\u2014 as set forth in the petition the UPLC filed with this Court \\u2014 stem from \\\"interviewing witnesses, fact investigation and fact analysis regarding legal actions or proceedings,\\\" or any other situation where the same functions could potentially be permissibly performed by a law enforcement officer, private investigator, or expert. See LeBlanc v. People, 56 V.I. 536, 541 (V.I. 2012) (holding, in as-applied challenge, that \\\"we must analyze the specific allegations against [him] and determine whether this statute is vague as applied to the facts of the particular charge against him.\\\"). On the contrary, virtually all of the charges against Campbell stem from conduct that is explicitly prohibited by the plain text of section 443.\\nB. Burden of Proof and Standard of Review\\nHaving resolved all of Campbell's challenges to applying section 443 to his case, we must now determine whether his conduct constituted the unauthorized practice of law. In his petition, Campbell \\\"denies the allegations contained in the [UPLC]'s complaint\\\" and, rather than addressing the merits of any of the charges, \\\"leaves the [UPLC] to its proofs.\\\" (Resp. 2.) Neither Campbell nor the UPLC, however, addresses the standards that apply when the UPLC files a petition with this Court. Therefore, prior to considering the unauthorized practice of law charges on the merits, we must ascertain the burden of proof and standard of review.\\nWhile section 443 confers original jurisdiction upon this Court in proceedings for unauthorized practice of law initiated by the Attorney General or the Virgin Islands Bar Association, the statute does not specify the burden of proof that applies to these actions. Nor do any published decisions of this Court \\u2014 or, before this Court's creation, the Superior Court or District Court \\u2014 provide any guidance. And although Supreme Court Rule 203(1) vests the UPLC with \\\"the duty . to investigate unauthorized practice,\\\" and to \\\"take steps to prevent or stop the unauthorized practice of law, including the initiation of legal proceedings,\\\" the rule is silent as to both the burden of proof, as well how much deference \\u2014 if any \\u2014 this Court should afford to the results of the investigation. Therefore, before addressing the merits of the UPLC's petition, we must determine both the burden of proof necessary to establish a violation of section 443, as well as the standard of review that applies to our consideration of the UPLC's factual findings and legal conclusions.\\nWe agree with the UPLC that section 443 is not a penal statute. Therefore, we must ascertain the standard from the two burdens of proof applicable to civil cases: preponderance of the evidence, and clear and convincing evidence. To prevail under a preponderance of the evidence standard, one needs only to prove that \\\"it is more likely than not that an event occurred;\\\" that is, that Campbell violated the statutory prohibition on the unauthorized practice of law. United States v. Soileau, 686 F.3d 861, 867 (8th Cir. 2012). The clear and convincing evidence standard, however, requires evidence sufficient to \\\"enable the [trier of fact] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue,\\\" although \\\"[i]t is not necessary that the evidence be uncontradicted . . . provided it carries conviction to the mind or carries a clear conviction of its truth.\\\" In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883, 886 (1986) (citations and internal quotation marks omitted). Generally, the lesser preponderance of the evidence standard applies to ordinary civil cases, while the higher clear and convincing evidence standard attaches in quasi-criminal cases where \\\"particularly important individual interests or rights are at stake\\\" in the proceeding. Herman & MacLean v. Huddleston, 459 U.S. 375, 389, 103 S. Ct. 683, 74 L. Ed. 2d 548 (1983). Thus, this Court applies the clear and convincing evidence standard to attorney discipline proceedings, given the obvious detrimental effect suspension or disbarment will have on a lawyer's livelihood. See V.I. Bar v. Brusch, 49 V.I. 409, 411-12 (V.I. 2008). Nevertheless, if a statute is silent on a burden of proof and no obvious liberty interests are affected by the proceeding, the preponderance of the evidence standard is sufficient to satisfy due process even if a finding that one violated the statute may result in \\\"imposition of even severe civil sanctions.\\\" Herman & MacLean, 459 U.S. at 389-90. See also El Paso Ref. Co. v. Scurlock Permian Corp., 77 S.W.3d 374, 381 (Tex. App. 2002) (holding that statutory silence on burden of proof militates \\\"in favor of applying the same burden of proof as any other civil action\\\").\\nWe conclude that the clear and convincing evidence standard applies to an unauthorized practice of law proceeding. Pursuant to our decision in In re Rogers, 57 V.I. 553, 564 (V.I. 2012), all complaints alleging that a Virgin Islands attorney has engaged in the unauthorized practice of law are referred exclusively to the Ethics and Grievance Committee (\\\"EGC\\\"), which applies the clear and convincing evidence standard. Brusch, 49 V.I. at 411-12. Thus, requiring the UPLC to prove its claims against Campbell by a preponderance of the evidence would, in effect, adopt a rule that privileges Virgin Islands attorneys for no justifiable reason. Moreover, since a holding that an individual has engaged in the unauthorized practice of law may adversely impact a future application for membership in the Virgin Islands Bar, see Coggin, 49 V.I. at 438, or potentially result in imposition of reciprocal discipline by another jurisdiction, we find that the proceedings sufficiently impact liberty interests to warrant the higher evidentiary standard.\\nWe also find that a de novo standard of review is appropriate, and therefore hold that the UPLC is entitled to no deference with respect to either its factual findings or conclusions of law. First, we note that the general structure of section 443 contemplates an adversarial process, as reflected by the fact that the Attorney General is ordinarily expected to initiate such proceedings in this Court. While the Legislature \\u2014 perhaps envisioning a situation similar to this one \\u2014 vested concurrent authority with the Virgin Islands Bar Association to maintain such an action, the statute does not even mandate that it participate in the proceeding. While it is certainly desirable for a Virgin Islands Bar Association committee to investigate an unauthorized practice of law claim \\u2014 as evidenced by this Court promulgating Supreme Court Rule 203(1) \\u2014 we simply cannot conclude that a petition filed by the Virgin Islands Bar Association after an investigation conducted by the UPLC should receive any greater deference than a petition filed by the Attorney General. Therefore, we consider the UPLC's petition and the report outlining its findings the same as we would any other document filed by a party in an original proceeding before this Court, and afford it no special deference.\\nC. The Unauthorized Practice of Law Charges\\nIn its petition, the UPLC identifies numerous instances of Campbell engaging in the unauthorized practice of law in violation of section 443. We address each broad category of claims in turn.\\n1. Control of Case Strategy, Plea Offer, Dismissal, and Other Decisions\\nCampbell's control over the Assistant Attorneys General assigned to the Criminal Division represents the main thrust of the UPLC's petition. The UPLC argues that Campbell exercised an exorbitant amount of control over the trial strategies of individual prosecutors, and essentially completely divested his subordinates of any discretion with respect to offering plea agreements or dismissing charges in felony cases. Although Campbell has not disputed any of these underlying factual allegations in his response, we summarize the evidence gathered by the UPLC as part of our obligation to independently review the record to determine whether Campbell violated section 443.\\nThe UPLC based its findings, in part, on correspondence between Campbell and the Assistant Attorneys General assigned to the Criminal Division. In a November 13, 2009 email, tiled \\\"Plea Agreements and Victims' Rights,\\\" Campbell directed these attorneys that \\\"all plea agreements involving a case with any felony charge must be brought directly to [him] for approval.\\\" On November 17, 2009, Campbell issued a memorandum to all Criminal Division attorneys mandating that, at sentencing, all prosecutors recommend a sentence \\\"at or near the high end of the sentencing range\\\" unless they first obtain an exception from him. In a January 8, 2010 email, Campbell informed the Assistant Attorneys General that they \\\"are not to have direct contact with the Attorney General by way of e-mail, memo or otherwise unless he makes such a request or unless you have presented the matter to me first,\\\" because \\\"[t]he Attorney General does not have the time, or the desire to serve as both Chief of the Criminal Division and as Attorney General for the Virgin Islands.\\\" After the Legislature enacted a new statute governing expungement of certain criminal records, Campbell, in a January 11, 2010 email, required all Assistant Attorneys General to obtain his approval before taking a position on behalf of the government in such matters. On March 23, 2010, Campbell had also sent an email to the Assistant Attorneys General, which stated \\\"that there shall be NO plea offer of dismissal in a case containing a felony charge without my prior approval or the approval of the AG,\\\" and that Campbell \\\"must see the written offer BEFORE it is presented to the defense counsel.\\\" Campbell sent another email to the Assistant Attorneys General on August 24, 2010, where he reiterated that \\\"[n]o gun cases (or felony cases) are to be dismissed without prior approval of the Chief of the Criminal Division or the Attorney General period,\\\" and further instructed that \\\"[w]hen a defendant is arrested on a gun charge all prosecutors are required to seek the maximum bail and shall not request an unsecured bond,\\\" even if they are a first-time offender.\\nThe UPLC also relied on deposition testimony from Assistant Attorneys General assigned to the Criminal Division during the pertinent period. One Assistant Attorney General, Loften Holder, Esq., testified that after he received the November 13, 2009 email, he spoke with Campbell, both in person and through email, about several felony cases in which he wished to present plea offers to the defendants, and that Campbell assumed \\\"total discretion in disposing of these cases,\\\" with him making \\\"the ultimate decision\\\" in every case. (Holder Dep. Tr. 11.) Holder provided the UPLC with copies of email correspondence between himself and Campbell, in which Holder would submit a summary of the case and Campbell would reply with the specific plea offer that Holder would be permitted to present.\\nCourtney Reese, Esq., another lawyer who served as an Assistant Attorney General during the pertinent period, also testified that, shortly after assuming his position as \\\"Chief of the Criminal Division,\\\" Campbell instituted a system in which the Assistant Attorneys General would have \\\"to get permission from him to offer pleas\\\" in felony cases, and that he \\\"threatened that if we didn't do that we would be disciplined.\\\" (Reese Dep. Tr. 15.) Reese further testified that Campbell informed him and the other Assistant Attorneys General that they could offer pleas in misdemeanor cases on their own \\\"unless there was some other problem,\\\" in which case they would also need to obtain his permission before offering a plea. (Id.) Reese, like Holder, testified that Campbell had \\\"the final say\\\" with respect to whether a particular criminal prosecution could be dismissed, and that neither he nor the other Assistant Attorneys General possessed the authority to dismiss a case on their own. (Id. at 22.) Moreover, Reese stated that Campbell had forbidden them from requesting permission directly from the Attorney General, and mandated them \\\"to go through him first.\\\" (Id. at 22-23.) According to Reese, the Assistant Attorneys General in the Criminal Division were \\\"basically like a secretary\\\" during Campbell's tenure, for they were not permitted to use their independent judgment, but were treated like \\\"how you tell a secretary to like just type up a particular draft and send it out.\\\" (Id. at 30.)\\nThe UPLC also heard from Michael Motylinski, Esq., who also served as an Assistant Attorney General for part of this period. During his deposition, Motylinski testified that Campbell exercised control over how he could proceed with respect to decisions beyond pleas and dismissals. For instance, Motylinski stated that Campbell once mandated that he seek a continuance in a particular case because Campbell believed the evidence was weak, and in another case directed him to present his case in a particular way. (Motylinski Dep. Tr. 6, 12-13.) Motylinski testified that Campbell's directives \\\"weren't optional,\\\" and identified several cases where Campbell made the ultimate decision with respect to plea offers. (Id. 7-8, 13.) Another Assistant Attorney General, Edward Veronda, Esq., testified similarly, and provided email correspondence between himself and Campbell in which he provided the facts of a case, with Campbell responding with the authorized plea offer.\\nBason, the Assistant Attorney General who filed the initial grievance with the UPLC, corroborated Motylinski's testimony. Bason testified during his deposition, among other things, that in one case he had filed a motion for voluntary dismissal because two Federal Bureau of Investigation reports exonerated the defendant, and was then ordered by Campbell to withdraw the motion and proceed with the case, a directive which Campbell memorialized in a January 15, 2010 email. Likewise, Bason testified that Campbell did not merely want to know each prosecutor's trial strategy, but would tell them \\\"what [the] trial strategy should be.\\\" (Bason Dep. Tr. 16.) When Bason repeatedly refused to obtain Campbell's approval prior to dismissing cases, Campbell submitted a May 24, 2010 memorandum to the Attorney General recommending immediate termination of Bason's employment.\\nThe UPLC attempted to question Campbell about these allegations during his deposition. However, Campbell asserted numerous privileges when asked about his role as the \\\"Chief of the Criminal Division,\\\" and declined, on that basis, to answer any substantive questions with respect to his role in the plea agreement process or in the development of trial strategies. Based on our independent review of the record, it appears the only factual evidence that is in any way in tension with the evidence described above is the deposition testimony of Assistant Attorney General Renee Gumbs-Carty, who declined to say that Campbell exercised \\\"control\\\" over her ability to offer a plea, but \\u2014 at least with her \\u2014 simply engaged in \\\"detailed discussion\\\" with respect to plea offers. (Gumbs-Carty Dep. Tr. 6.)\\n\\\"[P]lea negotiations fall squarely within the practice of the law,\\\" and thus \\\"may not be delegated to a non-attorney,\\\" for the plea bargaining process \\\"require[s] the training, skill and accountability of an attorney.\\\" In re Lexington County Transfer Court, 334 S.C. 47, 512 S.E.2d 791, 793-94 (1999). See also Matter of Coburn, 181 Ariz. 250, 889 P.2d 608, 609 (1995) (a suspended attorney committed unauthorized practice of law by engaging in plea negotiations). We recognize that \\u2014 with the exception of the one allegation which we decline to consider \\u2014 Campbell is not alleged to have personally participated in plea negotiations with defense counsel or particular defendants. Nevertheless, we find that this is a distinction without a difference, since the record establishes, by clear and convincing evidence, that Campbell exercised complete and apparently unfettered control over plea negotiations in felony and gun cases, in that (1) Assistant Attorneys General were forbidden from proposing their own plea offers to defense counsel, but were required to submit all potential plea offers to him; (2) if Campbell and an Assistant Attorney General disagreed, Campbell possessed the final word, and the Assistant Attorney General was required to submit Campbell's plea offer and forbidden from using his or her independent professional judgment to negotiate a different plea; and (3) if an Assistant Attorney General nevertheless defied Campbell, he or she would be subject to disciplinary action, including potential termination of employment. As Reese put it in his deposition, this arrangement required Assistant Attorneys General to operate \\\"basically like a secretary.\\\"\\nThe same holds true for other significant prosecutorial decisions. It is difficult to imagine any decision that requires greater exercise of an attorney's professional judgment than the decision of a prosecutor to dismiss, before trial, criminal charges that he or she believes are not supported by the evidence. See In re Richards, 213 F.3d 773, 782, 42 V.I. 469 (3d Cir. 2000) (\\\"[PJrosecutors have the power to decide whether to proceed with the prosecution of a charged defendant. Absent a controlling statute or rule to the contrary, this power resides solely in the prosecutor's hands until the impanelment and swearing of a jury.\\\"). Likewise, it has long been established that questions over trial strategy \\u2014 including what bail to recommend, decisions about whether or not to offer particular evidence, whether or not to file particular motions, and what sentence to recommend at a sentencing hearing \\u2014 are entrusted to the judgment of licensed attorneys. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 93, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977) (Burger, C.J., concurring) (explaining that the criminal trial process requires attorneys, and not laymen, to bear \\\"the immediate \\u2014 and ultimate \\u2014 responsibility\\\" to decide questions of trial strategy); Leake v. State, 737 N.W.2d 531, 536 (Minn. 2007) (\\\"Decisions about which witnesses to call at trial and what information to present to the jury are questions of trial strategy, which lie within the discretion of trial counsel.\\\"). As with plea negotiations, Campbell usurped this discretion from the Assistant Attorneys General he supervised, and vested it in himself.\\n2. Court Appearances\\nIn its petition, the UPLC also argues that Campbell impermissibly appeared before the Superior Court in three criminal cases. We address each appearance in turn.\\na. The George Hearing\\nAt his deposition, Holder testified that he had been assigned to prosecute People v. Reuben George, Super. Ct. Crim. No. 126/2009 (STT) and People v. Isaiah George, Super. Ct. Crim. No. 127/2009 (STT), and wished to introduce a videotape into evidence at the defendants' trial. However, he received an email from Campbell on November 2,-2009, directing him not to admit the videotape into evidence because Campbell believed it had been illegally obtained. (Holder Dep. Tr. 4-5.)\\nWhen' Holder refused to follow his directive, Campbell appeared with Holder at a November 5, 2009 hearing before the Superior Court. According to the hearing transcript, Holder and counsel for both defendants requested a sidebar conference, at which point Holder first introduced Campbell to the Superior Court judge as the new \\\"Chief of the Criminal Division,\\\" and then stated that he \\\"would like to bring to the Court's attention the facts and circumstances surrounding the retrieval of the videotape,\\\" including how the detective he had called as a witness \\\"came into custody of the tape.\\\" (George Hearing Tr. 3.) Once Holder finished speaking, the following discussion occurred:\\n[CAMPBELL]: And just to elaborate, Your Honor, so you know how things are coming \\u2014 first of all, I'd like to state for the record I'm currently not admitted into the Virgin Islands Bar. I'm a member of the State of New Jersey, an active member in the Bar. I had been previously admitted to the Virgin Islands. I recently returned and my paperwork is going through for my admission.\\nI was speaking with Attorney Holder \\u2014\\nATTORNEY HOLDER: Why don't you just let \\u2014\\n[CAMPBELL]: I just need to give the Judge some background so he knows what's going on.\\nATTORNEY HOLDER: Okay, share it. Would you let \\u2014 Judge, just ask [the detective] how he came into possession of the tape. Just ask.\\nTHE COURT: Well, I take it there is an ongoing investigation with regard to the shooting?\\nATTORNEY HOLDER: That's correct.\\n[CAMPBELL]: And we believe that there may have been an issue with respect to \\u2014 an impropriety with respect to how the videotape was obtained.\\nATTORNEY HOLDER: No, not we. He. I don't. I don't. So we disagree with that.\\n[CAMPBELL]: So, I felt that as an officer of the court we need to advise the Court of it and the Court can make its decision as to whether or not there is an impropriety.\\nTHE COURT: Okay, thank you. Go right ahead.\\n(George Hearing Tr., 4-6.) The sidebar concluded and, shortly thereafter, the judge permitted Holder to admit the videotape into evidence.\\nWe agree with the UPLC that Campbell violated the prohibition on unauthorized practice of law in making this appearance. Section 443, by its own terms, prohibits an individual who is not a member in good standing of the Virgin Islands Bar Association from \\\"the doing of any act by a person who is not a member in good standing of the Virgin Islands Bar Association for another person,\\\" such as \\\"the appearance, acting- as the attorney-at-law, or representative of another person, firm or corporation, before any court, referee, department, commission, board, judicial person or body authorized or constituted by law to determine any question of law or fact or to exercise any judicial power.\\\" 4 V.I.C. \\u00a7 443(a). In this case, Campbell sought to influence the judge's determination of a question of law or fact \\u2014 the admissibility of the videotape \\u2014\\u2022 and did so as a \\\"representative\\\" of the People of the Virgin Islands, by being introduced as the \\\"Chief of the Criminal Division.\\\" And while we recognize that Campbell disclosed that he had not been admitted to the Virgin Islands Bar, we emphatically reject any implication that one can simply state \\\"I'm not currently admitted into the Virgin Islands Bar,\\\" proceed to engage in precisely the activities forbidden by section 443, and then rely on those magic words as a talisman to escape liability under the statute. See Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214, 214 (1917). Accordingly, we conclude that Campbell violated the prohibition on unauthorized practice of law through his appearance at the November 5, 2009 hearing.\\nb. The Subdhan Hearings\\nThe UPLC also alleges that Campbell violated section 443 when he participated in two hearings in People v. Subdhan, Super. Ct. Crim. No. 499/2008 (STT). At a January 5, 2010 hearing, the Superior Court judge presiding over the matter, in light of defense counsel's frustration at the court's rejection of a plea agreement mandating a seven year prison sentence and the refusal of the government to offer an alternate plea agreement, required Campbell, as \\\"Chief of the Criminal Division,\\\" to appear and explain the Department of Justice's policies and procedures in offering pleas in cases involving firearms. At the hearing, Campbell stated that the Attorney General made the decision in this particular case, but nevertheless explained and defended the Department of Justice's policies and procedures in firearm cases. Finding the response unsatisfactory, the judge ordered Campbell, as well as the Attorney General, to attend another hearing on the matter, which occurred on March 5, 2010.\\nAlthough the Superior Court judge heard from the Attorney General, defense counsel, and the Assistant Attorney General assigned to the matter at the March 5, 2010 hearing, he never recognized or addressed Campbell. Nevertheless,' Campbell asked to be heard, defended the decision to offer the defendant a plea agreement requiring a seven year incarcerative sentence, and explained what factors led to that decision, as well as the decision to not offer a lesser plea. While Campbell had represented at the January 5, 2010 hearing that the Attorney General had personally made the decision in this case, throughout his statement Campbell used the pronoun \\\"we\\\" when describing the process, e.g., \\\"We, as Attorney Generals for the Virgin Islands, have a duty to protect the community.\\\" (Subdhan Hearing Tr. 20.) Once Campbell concluded his statement, defense counsel orally moved to strike Campbell's remarks in their entirety, on the grounds that he was not admitted to the Virgin Islands Bar. The judge, however, denied the oral motion because he \\\"let him appear in this case for a limited purpose of representing to the Court what the position of the Attorney General is.\\\" (Subdhan Hearing Tr. 25.)\\nWe agree with the UPLC that Campbell's appearances at both hearings constituted the unauthorized practice of law. Like the George hearing, Campbell appeared at the Subdhan hearings in a representative capacity, namely, \\\"for [the] purpose of representing to the Court what the position of the Attorney General is,\\\" and section 443 unequivocally prohibits \\\"the appearance, acting as the . . . representative of another person, firm or corporation, before any court.\\\" Moreover, Campbell's statements were clearly calculated to influence the Superior Court's decision to exercise judicial power in the Subdhan case \\u2014 namely, whether or not to proceed to trial.\\nIn both his response and his deposition testimony, Campbell defends his conduct by noting that the Superior Court judge had ordered his appearance, and states that he \\\"could have been held in contempt if he chose not to appear in Court when Ordered to do so by a judge of the Superior Court.\\\" (Resp. 11.) First, we note that the Superior Court ordered Campbell to appear because he had held himself out as the \\\"Chief of the Criminal Division.\\\" As we explain in greater detail below, Campbell, as a non-lawyer, violated section 443 by using this title, since the \\\"Chief of the Criminal Division\\\" position always required supervision of licensed attorneys assigned to the Criminal Division, and Campbell expanded the role of the position even further by, among other things, divesting his subordinates of any and all discretion over plea offers in felony and gun cases. Consequently, Campbell himself bears responsibility for the Superior Court ordering his appearance in criminal cases where a question arose with respect to an Assistant Attorney General's conduct, since his appearance would not have been ordered in the first place if he had not violated section 443 by performing and expanding the functions of the position associated with his job title.\\nIn any case, we agree with Campbell that lawyers and non-lawyers both possess an obligation to comply with a valid order directing their appearance before the Superior Court. But section 443 does not prohibit non-lawyers from appearing before the Superior Court \\u2014 rather, it prohibits \\\"the appearance, acting as the attorney-at-law, or representative of another person, firm or corporation.\\\" 4 V.I.C. \\u00a7 443(a) (emphasis added). Thus, Campbell could have appeared at both hearings, but declined to respond to the Superior Court's questions on the grounds that doing so may constitute the unauthorized practice of law. And rather than explaining and defending the Department of Justice's policies, Campbell could have simply told the Superior Court that the Attorney General made the decision in this particular case. In the event the Superior Court would have nevertheless persisted with its inquiry \\u2014 which, based on the record, we are not confident would have been the case \\u2014 Campbell possessed other alternatives besides standing in contempt, such as asserting the very same privileges he raised when UPLC representatives questioned him about the Department of Justice's plea agreement policies. (Campbell Dep. 30-32, 42, 46.) Campbell could have filed a petition for writ of prohibition with this Court, requesting that we enjoin the Superior Court judge from requiring him, an individual not admitted to the Virgin Islands Bar, from representing the position of the Department of Justice in a criminal case. See V.I.S.Ct.R. 13(a). And, of course, Campbell could have simply filed an application with this Court for pro hac vice admission in the Subdhan case. See V.I.S.Ct.R. 201.\\nLikewise, we find it immaterial that the Superior Court judge denied defense counsel's oral motion to strike Campbell's statements. Clearly, Superior Court judges and magistrates play a critical role in enforcing, in individual cases, the legal ethics and bar admissions rules promulgated by this Court, as well as the prohibition on unauthorized practice of law adopted by the Legislature through section 443. Individual judges and magistrates are, among other things, expected to disqualify licensed attorneys from representation if it results in an impermissible conflict of interest, and to refer professional misconduct that occurs in their, presence to the EGC, and \\u2014 of course \\u2014 only allow appearances by members of the Virgin Islands Bar Association.\\nNevertheless, it is ultimately this Court, having both the statutory and inherent authority to regulate the legal profession, which has the final word on these issues. It goes without saying that a Superior Court judge's denial of a motion to disqualify an attorney despite the presence of an obvious unwaivable conflict of interest would not preclude the Office of Disciplinary Counsel from initiating attorney discipline proceedings or prohibit the EGC from ultimately imposing sanctions consistent with the procedure set forth in Supreme Court Rule 207. This is because Disciplinary Counsel and the EGC would not have been parties to the earlier Superior Court proceeding or in privity with any of the parties, see Smith v. Turnbull, 54 V.I. 369, 375 (V.I. 2010) (citing CoreStates Bank, N.A. v. Huls America, Inc., 176 F.3d 187, 194 (3d Cir. 1999)); Gilbert v. People, 52 V.I. 350, 364 (V.I. 2009) (quoting Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970)), and \\u2014 in any event \\u2014 the Superior Court would have lacked jurisdiction to impose any formal attorney discipline as part of the earlier proceeding. See Smith, 54 V.I. at 376.\\nWe can find no reason to impose a different rule with respect to unauthorized practice of law allegations. The UPLC was clearly not a party to the Subdhan proceeding, nor was it in privity with the defendant. Even if the defendant possessed an interest in establishing an unauthorized practice of law violation as grounds for striking Campbell's statements, section 443 only confers the Attorney General and the Virgin Islands Bar Association with standing to obtain the enumerated statutory remedies for instances of unauthorized practice. Therefore, the Superior Court's denial of defense counsel's motion to strike does not preclude the UPLC from requesting relief from this Court pursuant to section 443.\\nc. The Greenaway Hearing\\nFinally, the UPLC contends that Campbell violated section 443 when he appeared at a June 17, 2011 show cause hearing in People v. Greenaway, Super. Ct. Crim. No. 176/2000 (STT). Based on the record of proceedings prepared by the Clerk of the Superior Court, it appears that Brenda Scales, Esq., an Assistant Attorney General, appeared late at a sentencing hearing scheduled for June 11, 2011, which led to the Superior Court judge presiding over the matter to direct both Scales and Campbell \\u2014 as \\\"Chief of the Criminal Division\\\" \\u2014 to appear at the subsequent show cause hearing. At the hearing, Campbell stated that he was not specially admitted, but then proceeded to apologize and state that the late appearance would not be the status quo. Based on this representation, the judge imposed a $100.00 fine on Scales, but suspended the fine so long as no subsequent violation would occur.\\nAt the outset, we note that the Greenaway hearing represents a somewhat closer case than the Subdhan and George hearings, in that Campbell did not formally present legal arguments to the Superior Court. However, we again must recognize that section 443 prohibits \\\"the appearance, acting as the attomey-at-law, or representative of another person, firm or corporation before any court. . . authorized or constituted by law to determine any question of law or fact or to exercise any judicial power.\\\" 4 V.I.C. \\u00a7 443(a). Here, the record reflects that Campbell \\u2014 who was not sworn in as a witness \\u2014 made statements to the Superior Court judge which were calculated to persuade the judge to either impose no sanction or a lenient sanction against Scales; statements which the judge ultimately relied on in crafting the $100.00 suspended fine. Moreover, while not determinative to our result, we note that the record of proceedings prepared by the Clerk of the Superior Court identifies Campbell as an attorney of record for the June 17, 2011 show cause hearing, rather than as a witness. Under these circumstances, we hold that Campbell assumed the role of Scales's advocate at the hearing, and therefore engaged in the unauthorized practice of law. Accord In re Ferguson, 326 B.R. 419, 423 (Bankr. N.D. Ohio 2005) (\\\"The unauthorized practice of law occurs when a non-attorney acts as an intermediary to advise, counsel, or negotiate on behalf of an individual. . . .\\\").\\n3. Legal Advice to Police Officers\\nAccording to the UPLC, Campbell also engaged in the unauthorized practice of law by providing legal advice to members of the Virgin Islands Police Department. To support its claim, the UPLC relies primarily on various documents that evidence interactions between Campbell and individual detectives. In a February 23, 2010 memorandum to Detective Jose Allen, Campbell states that he has reviewed a case submitted to him and concludes that he \\\"do[es] not believe that there is sufficient evidence to support an arrest warrant.\\\" The UPLC also considered a December 27, 2010 police report prepared and submitted by Detective Sofia Rachid, in which she states that \\\"[o]n 12/27/10 Attorney William (sic) Campbell from the Attorney General's Office contacted me via cell and stated that I could go ahead and arrest [the suspect] without a warrant because there was probable cause for the arrest.\\\"\\nSection 443 prohibits an individual who is not a member in good standing of the Virgin Islands Bar Association from performing acts \\\"usually done by attomeys-at-law in the course of their profession.\\\" Unquestionably, the giving of legal advice falls squarely within the definition of activities that must be performed by a duly-licensed attorney. It should go without saying that the existence or absence of probable cause for an arrest is an inquiry which requires legal analysis. See Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003). In fact, the United States Supreme Court has expressly characterized a prosecutor advising a police officer as to the existence of probable cause to arrest a suspect as \\\"legal advice\\\" that entitles the prosecutor to receive qualified immunity from civil liability. See Burns v. Reed, 500 U.S. 478, 492-93, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991). Accordingly, we agree with the UPLC that Campbell violated section 443 when he advised Detectives Allen and Rachid in these matters.\\n4. Holding Oneself Out as a Licensed Virgin Islands Attorney\\nThe petition also states that Campbell violated section 443 by holding himself out as a Virgin Islands attorney despite the fact that he was not a member of the Virgin Islands Bar Association, both through specific representations made to certain individuals and generally through his use of the \\\"Chief of the Criminal Division\\\" and \\\"Assistant Attorney General\\\" job titles and \\\"Esquire,\\\" \\\"Esq.,\\\" and \\\"Attorney\\\" honorifics. See 4 V.I.C. \\u00a7 443(b)(1) (authorizing action \\\"against any person who renders, offers to render or holds himself out as rendering any service which constitutes the unauthorized practice of law.\\\"). We address each claim in turn.\\na. Specific Representations\\nThe UPLC considered a sworn affidavit by Lee J. Rohn, Esq., counsel to the defendant in People v. Donastorg, Super. Ct. Crim. No. F109/2010 (STT), prior to his arrest. In her affidavit, Rohn outlines an incident that occurred in April 2010, when she accompanied the defendant to a police station before charges were filed and encountered Campbell when they arrived. According to Rohn, when asked who he was, Campbell stated that \\\"he was the attorney handling the Donastorg case,\\\" and \\\"that as the attorney on the case, he had been investigating the allegations against Donastorg for a month.\\\" Rohn further states in her affidavit that Campbell \\\"engaged in a conversation with her as the prosecutor\\\" and \\\"explained his view of the evidence.\\\" Rohn states that Campbell contacted her later that night on her cell phone stating that he had decided to charge Donastorg and that \\\"[h]e further agreed as the prosecutor to allow [him] to be released under his own recognizance.\\\"\\nIn addition to the Rohn affidavit, the UPLC considered a July 22, 2010 letter Campbell sent to Kema Rezaire, an individual against whom a complaint had been filed with the Virgin Islands Police Department. The letter, which was issued on Department of Justice letterhead and contains Campbell's signature, reads, in pertinent part, as follows:\\nDear Ms. Rezaire:\\nMrs. James has filed a complaint with the Virgin Islands Police Department and this office against you. Your actions, as alleged, may constitute:\\n1. Disturbing the Peace, in violation of Title 14 Virgin Islands Code Section 622(1), punishable by a fine of up to $100 and ninety (90) days in jail or both; and\\n2. Simple Assault and B attery, in violation of Title 14 Virgin Islands Code Section 299(2), punishable by a fine of up to $250 and up to six (6) months in jail or both.\\nMs. Rezaire if you are engaging in such behavior, please CEASE IMMEDIATELY. This letter should serve as a WARNING. If Mrs. James should contact this office again, indicating that you have committed any unlawful acts against her, we will conduct an investigation, and if warranted Ms. Rezaire, you may be arrested and criminal charges filed against you.\\nSincerely,\\nWilson J. Campbell, Esq.\\nChief of the Criminal Division\\n(emphasis in original). Again, Campbell does not respond to either document in his response.\\nWe find that both representations unquestionably fall within the purview of \\\"hold[ing] [one] self out as rendering any service which constitutes the unauthorized practice of law.\\\" 4 V.I.C. \\u00a7 443(b)(1). Campbell's letter to Rezaire represents the textbook example of conduct which violates section 443(b)(1): a letter threatening a layman with arrest and criminal prosecution that was issued on Department of Justice letterhead and using the \\\"Esq.\\\" honorific and the \\\"Chief of the Criminal Division\\\" job title. See, e.g., Cincinnati Bar Ass'n v. Davis, 590 N.E.2d 916, 918 (Ohio Bd. Unauth. Prac. 1992) (identifying oneself as an individual's attorney and proceeding to negotiate contract with another on their behalf); Morgan v. State Bar, 51 Cal. 3d 598, 274 Cal. Rptr. 8, 797 P.2d 1186, 1188 (1990) (negotiations with opposing counsel). In fact, although doing so would not have rendered the conduct acceptable, we note that the letter does not even contain a disclaimer that Campbell is not admitted to practice law in the Virgin Islands. Viewing the document in its totality, we can reach no conclusion other than that Campbell deliberately intended to mislead Rezaire into believing that the letter came from a licensed attorney who possessed the power to order her arrest and prosecution.\\nThe oral representations to Rohn, while not as egregious, are also squarely within this prohibition. Although Rohn \\u2014 a member of the Virgin Islands Bar \\u2014 is less likely to be misled about Campbell's bar admission status than a layman, we emphasize that section 443(b)(1) does not require that an individual actually be confused or misled; the statute, by its own terms, prohibits Campbell from holding himself out as an individual who may perform any act constituting the practice of law in the Virgin Islands.\\n' b. General Representations\\nThe UPLC also contends that Campbell's use of the \\\"Chief of the Criminal Division\\\" and \\\"Assistant Attorney General\\\" job titles, as well as repeated use of \\\"Esquire,\\\" \\\"Esq.,\\\" and \\\"Attorney,\\\" in emails and court pleadings \\u2014 including those filed pro se in both this matter and the special admission proceeding \\u2014 also violates section 443. In his deposition, Campbell admitted that he presented himself to others as \\\"Attorney Campbell\\\" because \\\"that's a cultural thing here,\\\" but denied that, in doing so, he ever conveyed that he was representing the government in any particular case. (Campbell Dep. 43.) Additionally, the record reflects that Campbell referred to himself as \\\"Attorney Campbell\\\" in one of the first emails he sent to the Assistant Attorneys General in the Criminal Division.\\nWe hold that Campbell's general use of \\\"Esquire,\\\" \\\"Esq.,\\\" and \\\"Attorney\\\" in emails and other correspondence, even when not issued in conjunction with a specific legal matter, constitutes \\\"holding] [one]self out as rendering any service which constitutes the unauthorized practice of law.\\\" 4 V.I.C. \\u00a7 443(b)(1). We agree with the numerous courts that have held that these terms, by their very nature, imply that one possesses the authority to provide legal services as a licensed attorney. See, e.g., Kentucky Bar Ass'n v. Brooks, 325 S.W.3d 283, 289 (Ky. 2010) (listing business under \\\"Attorneys\\\" heading in Yellow Pages); Disciplinary Counsel v. Brown, 121 Ohio St. 3d 423, 2009 Ohio 1152, 905 N.E.2d 163, 171 (2009) (use of \\\"Esq.,\\\" \\\"Esquire,\\\" \\\"J.D.,\\\" and \\\"Juris Doctor\\\"); In re Mittower, 693 N.E.2d 555, 558 (Ind. 1998) (use of \\\"esquire,\\\" \\\"general counsel,\\\" and \\\"attorney-in-fact\\\"). The fact that Campbell is licensed to practice law in New Jersey is irrelevant, given that these communications occurred in, and were clearly targeted to, residents of the Virgin Islands. See, e.g., Florida Bar v. Lister, 662 So.2d 1241, 1241-42 (Fla. 1995) (use, by Wisconsin attorney in Florida, of \\\"Esquire\\\" in correspondence and identification as \\\"attorney\\\" in telephone conversations).\\nWe also reject Campbell's claim that the \\\"culture\\\" of the Virgin Islands legal community permitted him to hold himself out as \\\"Attorney Campbell.\\\" First, the record contains absolutely no evidence pertaining to Virgin Islands legal culture, and the UPLC possessed no obligation to create a record on this issue, given that it was raised in only a fleeting manner in Campbell's deposition testimony and \\u2014 in any event \\u2014 Campbell possessed the burden of establishing his affirmative defense that Virgin Islands culture somehow authorized conduct that is otherwise explicitly prohibited by statute. Cf. Attorney Grievance Comm'n v. Bakas, 322 Md. 603, 589 A.2d 52, 53 (1991) (in attorney discipline context, the respondent attorney bears the burden of proof with respect \\\"to factual matters sought to be established by the attorney in defense of the attorney's position\\\"). But even if we were inclined to consider judicial opinions, oral argument transcripts, and other public records to which this Court has access, we can identify no instances in which we have ever referred to an individual who is not a regular, special, or pro hac vice member of the Virgin Islands Bar Association as \\\"Attorney.\\\"\\nThe same is true for use of the \\\"Assistant Attorney General\\\" title. As noted above, the term \\\"Assistant Attorney General\\\" itself connotes that one is a licensed Virgin Islands attorney. However, even the formal description of the position states that \\\"this position requires legal professional work which is related to innumerable legal areas,\\\" and then identifies numerous job duties that clearly constitute the practice of law. While there is no evidence that Campbell fulfilled every single one of the duties which require Virgin Islands Bar membership \\u2014 even though, as described above, he did perform several of them during his tenure \\u2022\\u2014 his use of this title clearly rose to the level of \\\"hold[ing] [one] self out as rendering any service which constitutes the unauthorized practice of law.\\\" 4 V.I.C. \\u00a7 443(b)(1).\\nSimilarly, the titles \\\"Chief of the Criminal Division\\\" and \\\"Criminal Division Chief,\\\" when used in the context of the Virgin Islands Department of Justice, inherently conveys that one is authorized to practice law in the Virgin Islands, by virtue of the ability to supervise attorneys in the Criminal Division. We note that, unlike the \\\"Assistant Attorney General\\\" position, the formal job description primarily contains routine administrative duties which \\u2014 with some exceptions \\u2014 could be permissibly performed by a non-lawyer. However, the description of the position requires the \\\"Chief of the Criminal Division\\\" to prepare guidelines for plea agreements, sentencing, and settlement of civil cases up to $25,000.00. A non-attorney simply cannot limit the discretion of licensed attorneys in such a manner. Moreover, the record in this case reveals that Campbell interpreted the position as authorizing him to completely divest prosecutors of any discretion over pleas and sentencing, as well as numerous other matters that are not even set forth in the job description. Therefore, we agree with the UPLC that Campbell's use of the \\\"Chief of the Criminal Division\\\" and \\\"Criminal Division Chief' titles violated section 443.\\nD. Remedies\\nHaving concluded that Campbell has engaged in the unauthorized practice of law, we must now determine the appropriate remedies for the violations. In its petition, the UPLC requests that this Court issue an injunction and a declaratory judgment, assess costs, and impose the discretionary monetary penalties provided for by statute, which is \\\"a fine not exceeding $500 for each such violation\\\" of the unauthorized practice of law statute. 4 V.I.C. \\u00a7 443(b)(2). The UPLC, however, has not proposed a specific penalty, nor filed an itemized bill of costs.\\nSimilarly, Campbell's response does not specifically address the issue of what remedies this Court should order in the event it rules in the UPLC's favor. However, Campbell cites to In re Mitchell, 901 F.2d 1179 (3d Cir. 1990), a case where the United States Court of Appeals for the Third Circuit declined to hold that two suspended attorneys engaged in the unauthorized practice of law because the particular issues presented in that case were novel and had never been previously addressed, and announced that the analysis set forth in the opinion would only apply prospectively. Additionally, Campbell implies that leniency is warranted because he \\\"[a]cted in good-faith and diligently consistent with then existing law.\\\" (Resp. 16.)\\nUpon considering the totality of the circumstances, we agree with Campbell that leniency is warranted. As noted earlier, section 443, and not the Model Rule of Professional Conduct 5.5, defines the unauthorized practice of law in the Virgin Islands. Likewise, Supreme Court Rules 201, 202, and 204, and not Model Rule 5.5, govern admission to the Virgin Islands Bar. Nevertheless, the relationship between Model Rule 5.5, section 443, and the Supreme Court Rules was not always clear, and an individual such as Campbell could \\u2014 in the absence of prior guidance \\u2014 reasonably conclude that Model Rule 5.5 applied in lieu of section 443. Importantly, we note that Model Rule 5.5 provides that \\\"a lawyer admitted in another United States jurisdiction . . . may provide legal services on a temporary basis in this jurisdiction that . are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer . is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized.\\\" Model R. Prof'l Conduct 5.5(c)(2) (emphasis added). Having been previously been specially admitted by the Superior Court prior to this Court's creation, during a period in which special admission was routinely granted without the completion of a thorough character and fitness review, Campbell could, based on his past experience as a specially admitted attorney, have reasonably expected, at the time he commenced his employment as \\\"Chief of the Criminal Division,\\\" that the Department of Justice's motion for his special admission would be granted.\\nWe do not believe, however, that Campbell should receive no sanction for his misconduct. In Mitchell, the Third Circuit did not impose any sanction on the suspended attorneys because \\\"until now the rules governing suspended attorneys in the practice of law were unclear.\\\" 901 F.2d at 1191 (emphasis added). However, over the course of the nearly two years in which he was employed as the \\\"Chief of the Criminal Division,\\\" Campbell received notice that his conduct constituted the unauthorized practice of law. As a threshold matter, Model Rule 5.5 provides that a non-admitted attorney \\\"may provide legal services on a temporary basis in this jurisdiction,\\\" (emphasis added), and the record reflects that the Department of Justice notified Campbell, before he accepted the job, that the \\\"Chief of the Criminal Division\\\" position constituted full-time, permanent employment in the Virgin Islands. And while Campbell may have \\\"reasonably expect[ed]\\\" for this Court to grant the Department of Justice's motion for his special admission during the first few months the motion was pending, any reasonable expectation of the motion being granted should have evaporated once the CBE informed Campbell that it would convene a due process hearing to determine whether he possessed the good moral character necessary for his admission. Therefore, even if Campbell believed Model Rule 5.5 applied to the exclusion of section 443, he should have known that his conduct violated that rule as well.\\nLikewise, the UPLC's June 1 and June 4, 2010 letters should have placed Campbell on notice both of section 443's existence, and the Virgin Islands Bar Association's position that section 443, and not Model Rule 5.5, governed the unauthorized practice of law in the Virgin Islands. Perhaps most importantly, this Court's March 3, 2011 Opinion, by identifying section 443 as the applicable legal authority, and noting that Campbell's use of the \\\"Chief of the Criminal Division\\\" and \\\"Esquire\\\" titles, as well as his assertion of authority to direct how prosecutors may proceed with criminal cases could constitute the unauthorized practice of law, should have placed Campbell on notice that his conduct violated Virgin Islands law. Thus, unlike the respondents in Mitchell, Campbell was alerted to the fact that his conduct was wrongful, and received an opportunity to modify his behavior in light of that guidance. But rather than even reexamine \\u2014 let alone modify \\u2022 \\u2014 \\u2022 his behavior in light of these developments, Campbell chose to remain willfully ignorant, and simply proceeded with his unauthorized conduct without making even the most minimal of changes.\\nAfter considering these and other relevant factors, we grant the UPLC's requests for a declaratory judgment that Campbell engaged in the unauthorized practice of law in the Virgin Islands, and an order permanently enjoining Campbell from engaging in further unauthorized practice, and require Campbell to pay a $1500.00 fine to the Government of the Virgin Islands. We also direct Campbell to reimburse the Virgin Islands Bar Association for the costs of the UPLC's investigation, in an amount this Court shall fix after reviewing an itemized bill of costs. See In re Suspension of Joseph, 56 V.I. 490, 506 (V.I. 2012). Post-judgment interest on the $1500.00 fine and cost award shall accrue at the same rate that applies to judgments rendered in Superior Court proceedings. See 5 V.I.C. \\u00a7 426. If Campbell fails to pay the fine and cost award, along with any accrued interest, by December 31, 2013, this Court may refer the matter to the appropriate authorities for collection or cite him for contempt. Finally, we direct the Clerk of this Court to transmit copies of this Opinion and the accompanying Judgment to the Clerk of the Supreme Court of New Jersey and the New Jersey Office of Disciplinary Counsel.\\nIV. CONCLUSION\\nWe hold, for the foregoing reasons set forth above, that Campbell violated the statutory prohibition against the unauthorized practice of law. Accordingly, we grant the UPLC's petition, as modified, and order a remedy consistent with the seriousness of the violations: the UPLC's requests for a declaratory judgment and an order permanently enjoining Campbell from engaging in further unauthorized practice are granted, and Campbell shall be required to pay a fine of $1500.00 to the Government of the Virgin Islands and costs to the Virgin Islands Bar Association.\\nOriginally, the UPLC's petition also charged Attorney General Vincent F. Frazer, Esq., with facilitating Campbell's unauthorized practice of law. However, this Court, in an October 30, 2012 Order, dismissed that portion of the petition without prejudice and referred the matter to the Ethics and Grievance Committee of the Virgin Islands Bar Association (\\\"EGC\\\") for further proceedings, consistent with our decision in In re Rogers, 57 V.I. 553 (V.I. 2012).\\n\\\"After 1991, but prior to establishment of the Supreme Court in 2007, the Superior Court, as the highest non-federal local court of the Virgin Islands, governed admissions to the Virgin Islands Bar.\\\" In re Application of Payton, S.Ct. BA No. 2007-0146, 2009 V.I. Supreme LEXIS 17, *2 (V.I. Mar. 20, 2009) (unpublished) (citing In re Application of Moorhead, 27 V.I. 74, 93 (V.I. Super. Ct. 1992)). \\\"This Court assumed jurisdiction over bar admissions matters in 2007.\\\" Id. (citing In re Application of Coggin, 49 V.I. 432, 436 (V.I. 2008)).\\nAlthough title 4, section 443(b) provides for \\\"an action for injunctive relief in the District Court of the Virgin Islands,\\\" all references to the District Court in the Virgin Islands Code enacted prior to the subsequent reduction in the District Court's jurisdiction over purely local matters have been implicitly repealed, and thus section 443 authorizes the Virgin Islands B ar Association to file an unauthorized practice of law complaint with this Court. See In re Rogers, 57 V.I. at 558.\\nIn his response to the UPLC's petition, Campbell also alleges that his special admission never expired when his initial employment with the Department of Justice terminated in September 2006, and that he therefore remained continuously specially admitted from October 2004 through August 2011. However, this Court previously rejected this argument on the merits in a May 20, 2011 Order entered in In re Application of Campbell, S. Ct. BA No. 2009-0230, and neither Campbell nor the Department of Justice ever sought certiorari review of our decision with the United States Court of Appeals for the Third Circuit. We recognize that, notwithstanding res judicata, collateral estoppel, law of the case, and similar doctrines, we have permitted, in very limited instances, re-litigation in this Court of bar admissions decisions previously rendered by the Superior Court. See Payton, 2009 V.I. Supreme LEXIS 17 at * 1. Yet it should go without saying that this narrow exception is wholly inapplicable when the adverse prior decision was rendered by this Court. Accordingly, we hold that Campbell is barred from collaterally attacking the May 20, 2011 Order in this proceeding.\\nCampbell also argues that the ABA's \\\"Model Rule on Practice Pending Admission,\\\" adopted in August 2012, fully authorized all of the conduct described in the UPLC's petition. Pursuant to this rule, \\\"[a] lawyer currently holding an active license to practice law in another U.S. jurisdiction who has been engaged in the active practice of law for three of the last five years, may provide legal services in this jurisdiction through an office or other systematic and continuous presence for no more than [365] days.\\\" However, this rule \\u2022 \\u2014 \\u2022 in addition to never being adopted by this Court \\u2014 was promulgated by the ABA well after all of the events that were the subject of the UPLC's inquiry concluded, and thus Campbell could not have relied on it. Moreover, the record reflects that Campbell maintained a systematic and continuous presence in the Virgin Islands that exceeded 365 days, and thus he would not be protected by the \\\"Model Rule on Practice Pending Admission\\\" even if that rule had been adopted by this Court.\\nOf course, this Court considers the AB AModel Rules in assessing the conduct of applicants to the Virgin Islands Bar. However, \\\"[w]e turn to the ABA Rules not because Virgin Islands ethical rules actually governed [an applicant's] conduct. . . but because the ABA Rules 'guidef] ' us in our inquiry as to whether [an applicant] is fit to practice law in our community.\\\" In re Application of Shea, 59 V.I. 552, 558 (V.I. 2013) (quoting Coggin, 49 V.I. at 436). For this reason, certain portions of the ABA Rules \\u2014 such as the choice of law provisions found in ABA Model Rule 8.5 \\u2014 do not apply to applicants to the Virgin Islands Bar, even though they apply to Virgin Islands lawyers. Id.\\nThe Due Process Clause of the Fourteenth Amendment is applicable to the Virgin Islands pursuant to section 3 of the Revised Organic Act. See The Revised Organic Act of 1954, \\u00a7 3, 48 U.S.C. \\u00a7 1561, reprinted in V.I. Code Ann., Historical Documents, Organic Acts, and U.S. Constitution at 86 (1995) (preceding V.I. Code Ann. tit. 1) (\\\"The following provisions of and amendments to the Constitution of the United States are hereby extended to the Virgin Islands . the second sentence of section 1 of the fourteenth amendment____\\\"). Accord, Richards v. People, 53 V.I. 379, 384 n.2 (V.I. 2010); In re Kendall, 53 V.I. 459, 463 n.7 (V.I. 2010).\\nThis Court is aware that, in the supplemental report it submitted to the Board of Governors, the UPLC references an affidavit from an attorney who states that he received discovery in a criminal case which listed Campbell as having been present at the interrogation of two witnesses. This allegation, however, was omitted from the petition that was filed with this Court, and it does not appear that the discovery referenced in the affidavit was ever supplied to the UPLC. Likewise, although several Assistant Attorneys General testified during their depositions of the fact that Campbell performed \\\"intakes\\\" for the Criminal Division \\u2014 that is, interview complainants in cases where the police had deferred a decision on whether to make an arrest \\u2014 neither the UPLC ' s petition nor its supplemental report allege that Campbell's participation in the \\\"intake\\\" process constituted the unauthorized practice of law.\\nWe recognize that some of the charges brought against Campbell \\u2014 such as that he provided legal advice to police officers \\u2014 do not arise from acts specifically enumerated in the statute, but fall within the general prohibition on non-lawyers performing acts \\\"usually done by attomeys-at-law in the course of their profession.\\\" 4 V.I.C. \\u00a7 443(a). However, with respect to his as-applied challenge, Campbell solely argues that the statute allegedly prohibits non-lawyers from \\\"interviewing witnesses, fact investigation and fact analysis regarding legal actions or proceedings.\\\" In other words, Campbell does not contend that a person of reasonable intelligence would not understand that section 443 prohibits the giving of legal advice, making legal arguments, engaging in legal analysis, or similar activities.\\nFor instance, as we noted earlier, the UPLC's original petition sought sanctions against both Campbell and Attorney General Frazer, with this Court referring the accusations against Attorney General Frazer to the EGC consistent with the Rogers decision. We can think of no legitimate reason for the higher clear and convincing evidence standard to apply to the claim that Attorney General Frazer aided and abetted Campbell's unauthorized practice of law, but for Campbell himself to be subjected to the lower preponderance of the evidence standard.\\nSince the UPLC never moved for this Court to compel Campbell to answer these questions, we decline to determine whether any of the privileges Campbell asserted at his deposition justified his failure to respond. However, as noted below, we question whether all of the privileges were actually applicable, in light of Campbell answering similar questions during the Subdhan hearings.\\nThe UPLC considered, along with the other evidence summarized above, a document summarizing an \\\"interview\\\" with Lee J. Rohn, Esq., who was the criminal defendant in People v. Rohn, Super. Ct. Crim. No. 113/2003 (STX). However, since the \\\"interview\\\" was not transcribed, and it does not appear that Rohn was under oath when she made these statements, we decline to rely on this document.\\nOf course, a senior attorney possesses the authority, to the extent not inconsistent with ethical rules and other pertinent authorities, to direct the legal practice of subordinate attorneys. Had a member in good standing of the Virgin Islands Bar Association served as \\\"Chief of the Criminal Division\\\" and engaged in the same conduct, it clearly would not have violated section 443. But while Campbell served as \\\"Chief of the Criminal Division,\\\" he was not a Virgin Islands lawyer, and \\u2014 as explained above \\u2014 the mere fact that he was appointed to this position did not grant him a license to violate the prohibition on the unauthorized practice of law by performing acts that can only be performed by licensed attorneys.\\nWe recognize that Gumbs-Carty testified that she did not believe Campbell exercised \\\"control\\\" over her ability to offer a plea. (Gumbs-Carty Dep. Tr. 6.) However, like the UPLC, we find that Campbell's own correspondence \\u2014 particularly the November 13,2009, March 23,2010, and August 24,2010 emails to all the Assistant Attorneys General assigned to the Criminal Division, and the January 15,2010 email to Bason \\u2014 establishes that compliance with Campbell's directives with respect to plea offers and dismissals was not optional.\\nThe record reflects that the Superior Court, after being told by Campbell at the January 5, 2010 hearing that the Attorney General had been the decision maker with respect to the plea offer in the Subdhan case, responded by continuing the matter and directing the Attorney General to be present at the March 5,2010 hearing. Moreover, as noted above, the transcript of the March 5,2010'hearing reflects that the Superior Court judge directed no questions to Campbell whatsoever, and instead exclusively addressed the Attorney General and the Assistant Attorney General prosecuting the case \\u2014 that is, until Campbell requested permission to be heard.\\nAlthough not determinative to our analysis, we note that the record of proceedings for the January 5,2010 hearing contains no indication that the Superior Court judge was aware, prior to ordering his appearance, that Campbell was holding the \\\"Chief of the Criminal Division\\\" title despite not being a member of the Virgin Islands Bar Association.\\nAgain, we recognize that the Superior Court judge had ordered Campbell to appear at the June 17, 2011 hearing. However, for the same reasons given earlier in the context of the Subdhan hearings, this does not serve as a defense to the unauthorized practice of law charge.\\nDuring Veronda's deposition testimony, a member of the UPLC introduced into evidence other documents that apparently contained information regarding Campbell's interaction with other police officers. However, since neither the UPLC nor Campbell has provided this Court with copies of these documents, we decline to consider them, or Veronda's representation of their contents, as evidence in this matter.\\nIn reaching the decision herein, we emphasize that not every use of \\\"Esquire,\\\" \\\"Esq.,\\\" and similar terms will violate section 443, and that every inquiry will necessarily be heavily dependent on the facts of the particular case. We do not believe, for example, that an out-of-Territory attorney violates section 443 by simply using the suffix \\\"Esq.\\\" when making a reservation for a Virgin Islands hotel. Additionally, we recognize that our March 3, 2011 Opinion in his bar admissions matter was captioned \\\"In the Matter of the Application of Wilson J. Campbell, Esquire, for Special Admission to the Virgin Islands Bar,\\\" and that the captions of other special admission and pro hac vice admission matters before this Court have included the \\\"Esquire\\\" designation to reflect the fact that the applicant is admitted to the practice of law in another jurisdiction, as is required by Supreme Court Rules 201 and 202. See, e.g., In re Application of Alvis, 54 V.I. 408, 410 (V.I. 2010). However, we do not believe that this Court's inclusion of \\\"Esquire\\\" in this context is in tension with section 443 because the remainder of the caption \\u2014 which clearly reflects the matter is one for admission to the Virgin Islands Bar \\u2014 unquestionably eliminates any possibility that one may believe that the applicant is presently authorized to practice law in the Virgin Islands. This is particularly true with respect to our March 3, 2011 Opinion, where the text of the document outright directed the CBE to consider whether that Campbell's use of \\\"Esq.\\\" and \\\"Esquire\\\" constituted the unauthorized practice of law in violation of section 443. Campbell's use of \\\"Esq.\\\" and \\\"Esquire\\\" does not fall into any permissible use of the terms, however, given that the honorifics were often coupled with terms such as \\\"Chief of the Criminal Division,\\\" often appeared in professional correspondence on Department of Justice letterhead, and contained no indication that Campbell was not licensed to practice law in the Virgin Islands.\\nThe duties set forth in the job description, which are not all inclusive, are as follows:\\nAppears for and represents the executive branch of the Government of the Virgin Islands in all civil and criminal proceedings in which the Government has an interest. Prosecutes all offense [sic] against the law of the Virgin Islands in the Superior Court of the Virgin Islands.\\nRepresents the Government of the Virgin Islands in all appeals before the Supreme Court of the Virgin Islands and federal appeals courts.\\nPerforms legal research regarding representation before the courts in [sic] behalf of the Government of the Virgin Islands.\\nInterviews witnesses, victims and law enforcement officers to ascertain facts of each case and correlates findings to prepare cases before the courts.\\nProvides legal advice to all executive departments, boards, commissions, agencies, instrumentalities and officers of the Government of the Virgin Islands.\\nDrafts pleadings, briefs, motions, orders and other court related documents required for prosecuting cases.\\nResearches and drafts legal opinions related to the government departments and their operations.\\nDrafts regulations, contracts and other legal instruments in which the Government of the Virgin Islands has an interest.\\nReviews legal instruments prepared by other government attorneys and advises as to legal sufficiency.\\nPrepares correspondence related to innumerable legal areas.\\nAttends conferences related to innumerable legal areas'.\\nPerforms other related work as required.\\n(Att'y Gen. Resp. to UPLC Subpoena, 12-13.)\\nThe job description sets forth the following duties:\\nI. Responsible for daily management of GLS inclusive of:\\nA. Assignment of criminal and civil cases.\\nB. Assignment of intake or duty officer.\\nC. Development of policy and guidelines for:\\n1) Plea agreements\\n2) Sentencing\\n3) Settlement of civil cases up to $25,000\\nD. Supervision of time and attendance of all staff assigned.\\nE. Completion of all assignments in a timely manner by staff.\\nF. Meeting of all court imposed due dates by staff.\\nG. Provide guidance to staff on Department policy effective case management and case handling.\\nII. Determine the training needs of staff and:\\nA. Implement an effective training program both in service professional and in house or off-island.\\nHI. Prepare performance appraisals for all staff (legal and support).\\nIV. Assist in the recruitment of candidates for position in GLS.\\nA. Participation as a member of the Hiring Committee to review applicant resumes and writing sample, interview candidates selected by the Committee and make hiring recommendations to the Attorney General.\\nV. Timely review and completion of such tasks or projects as may be assigned by the Attorney General or Deputy Attorney General.\\nVI. Oversight and responsibility for the effective management of the Sections of White Collar Crime and Paternity and Child Support.\\nVII. Appear and/or represent the Department at public functionfs].\\nVm. Implement departmental policies established by the Attorney General and management for the Division in accordance with department policy.\\n(Att'y Gen. Resp. to UPLC Subpoena, 16.)\\nOf course, it goes without saying that non-attorneys, when serving as the client in an attorney-client relationship, may place certain limitations on their counsel, including controlling the decision to settle or dismiss a case filed on their behalf. Campbell, however, was clearly not the \\\"client\\\" of any of the prosecutors he supervised as \\\"Chief of the Criminal Division.\\\"\\nFor example, this Court notes that, in his June 7,2010 letter, Campbell represented to the UPLC that he had already received \\\"a satisfactory background check.\\\" However, the record reflects that the CBE had already informed him, several months earlier, that it possessed serious concerns about his conduct in New Jersey, and intended to convene a due process hearing after the New Jersey Supreme Court issued a decision.\\nFor instance, the record in this case, as well as S. Ct. BA. No. 2009-0230, reflects that Campbell continued to use the \\\"Chief of the Criminal Division\\\" title and \\\"Esq.\\\" honorific in court filings and correspondence even after this Court issued its March 3, 2011 Opinion.\\nIn mitigation, we recognize that, with respect to his appearance at the George hearing, Campbell may have potentially believed that, as Holder's supervisor, he possessed an ethical obligation to notify the Superior Court that he intended to introduce potentially illegally obtained evidence. See In re Anonymous Member of S.C. Bar, 346 S.C. 177, 552 S.E.2d 10, 13 (2001) (noting that supervisor of subordinate attorney who engages in misconduct may be held vicariously liable for that misconduct if supervisor fails \\\"to take remedial measures to avoid or mitigate the consequences of that behavior.\\\"). However, since serving as Holder's supervisor itself violated the prohibition on unauthorized practice, we view this as only a very slight mitigating factor, particularly given that Campbell possessed other options to take correction action besides making a court appearance, such as notifying the Attorney General or referring Holder to the EGC.\\nIn aggravation, we cannot ignore Campbell's lack of remorse, seemingly willful ignorance of the prohibition on unauthorized practice, and apparent contempt for the special admissions process. For instance, in his response to the UPLC's petition filed in this Court, Campbell maintains that he believed he could engage in any conduct he wished without obtaining Virgin Islands Bar membership, with the sole exceptions of signing motions in his own name and arguing in court without the presence of a licensed attorney. We have been unable to identify any United States jurisdiction with such an exceptionally narrow definition of the unauthorized practice of law, including New Jersey, where Campbell is presently licensed to practice law. See In re Jackman, 165 N.J. 580, 761 A.2d 1103, 1106-07 (2000) (rejecting argument that law firm associate not licensed to practice law in New Jersey could engage in transactional work, interview and counsel clients, prepare and sign documents, negotiate with other lawyers, or otherwise \\\"handlfe] legal matters implicating the rights and remedies of clients,\\\" and noting that \\\"[o]ther states with similar licensing requirements have likewise concluded when confronted with comparable circumstances.\\\") (collecting cases). Likewise, from his claim at the George hearing that \\\"[his] paperwork is going through for [his] admission,\\\" to his misrepresentation in his June 7, 2010 letter to the UPLC that he received \\\"a satisfactory background check\\\" and that \\\"[his] admission to the Virgin Islands Bar has been temporarily postponed\\\" due to the then-pending New Jersey complaint, it is clear to us that Campbell viewed the special admission process as a formality, where the CBE simply receives \\\"paperwork\\\" that it and this Court proceeds to rubber stamp without performing any meaningful inquiry.\\nAlthough Campbell resigned from the Department of Justice in August 2011 while the UPLC's investigation was ongoing, and there is no indication that Campbell has engaged in the unauthorized practice of law since he resigned, we do not believe his voluntary departure renders the request for injunctive relief moot. For instance, we note that Campbell rejoined the Department of Justice in October 2009 after his earlier resignation in September 2006.\\nAdditionally, our permanent injunction should not be construed as a prohibition against Campbell filing, at some future date, an application for admission to the Virgin Islands Bar, since we enjoin solely the unauthorized practice of law, and Campbell would be authorized to practice law in the event he became licensed to practice law in the Virgin Islands. However, prior to such an application being granted, Campbell would be required to prove his moral character and fitness to practice law, which would include addressing his instances of the unauthorized practice of law as well as the other issues identified in our March 3,2011 Opinion.\\nIn its petition, the UPLC also requested that this Court enter a permanent injunction that would enjoin the Attorney General \\\"from permitting employees of the Department of Justice from engaging in the practice of law in the Virgin Islands without due licensure or authorization.\\\" (Pet. 14.) As noted earlier, our October 30, 2012 Order in this matter dismissed, without prejudice, the portion of the UPLC's petition charging the Attorney General with facilitating Campbell's unauthorized practice of law, and referred those charges to the EGC for investigation and adjudication consistent with Supreme Court Rule 207. In light of the pending proceedings before the EGC, it is not necessary or proper for this Court, as part of this proceeding, to issue an injunction or order any other relief against the Attorney General. Nevertheless, we are confident that, going forward, the Attorney General, as well as the heads of other departments, agencies, organizations, and law firms, will be guided by our decision herein in determining how to utilize individuals who are licensed to practice law in other jurisdictions but who have not yet obtained admission to the Virgin Islands Bar Association.\\nWe emphasize, in the strongest terms possible, that the $1500.00 fine represents a substantial downward departure from the maximum penalty this Court could have imposed. Pursuant to section 443, this Court may impose a separate $500.00 fine for each instance of unauthorized practice of law. By our calculations, the UPLC presented clear and convincing evidence that Campbell committed approximately 35 individual violations of section 443, which would have authorized this Court to impose a $17,500.00 aggregate fine. In addition, the record reflects that Campbell earned a $105,500.00 annual salary while employed as the \\\"Chief of the Criminal Division,\\\" despite lacking the qualifications to hold the position, and \\u2014 unlike admitted attorneys \\u2014 did not pay $200.00 annual Bar dues or certify compliance with annual continuing legal education requirements. Pursuant to its inherent power to regulate the practice of law, this Court could also order him to disgorge and reimburse this wrongfully earned compensation to the Government. Accord, In re Suspension of Welcome, 58 V.I. 604, 618 n.8 (V.I. 2013). Our decision not to order disgorgement or to impose a greater fine should be viewed as an expression of leniency in light of the mitigating factors outlined above.\"}"
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+"{\"id\": \"3634559\", \"name\": \"RANDY BURKE, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff\", \"name_abbreviation\": \"Burke v. People\", \"decision_date\": \"2013-12-06\", \"docket_number\": \"S. Ct. Criminal No. 2013-0014\", \"first_page\": 257, \"last_page\": \"268\", \"citations\": \"60 V.I. 257\", \"volume\": \"60\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Supreme Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T22:26:38.137160+00:00\", \"provenance\": \"CAP\", \"judges\": \"HODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice.\", \"parties\": \"RANDY BURKE, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff\", \"head_matter\": \"RANDY BURKE, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff\\nS. Ct. Criminal No. 2013-0014\\nSupreme Court of the Virgin Islands\\nDecember 6, 2013\\nCarlA. Beckstedt III, Esq., Beckstedt & Associates, St. Croix, USVI, Attorney for Appellant.\\nTiffany V. monrose, Esq., Assistant Attorney General, St. Thomas, USVI, Attorney for Appellee.\\nHODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice.\", \"word_count\": \"4233\", \"char_count\": \"25639\", \"text\": \"OPINION OF THE COURT\\n(December 6, 2013)\\nSwan, Associate Justice.\\nAppellant, Randy Burke, was found guilty of the charges in a Third Amended Information of first degree murder and reckless endangerment. Burke appeals his convictions on the grounds that there was insufficient evidence to find that his actions caused the victim's death, that the trial court failed to properly instruct the jury, that it was error to admit the testimony of the emergency room physician, and that it was error not to allow the impeachment of a witness. For the reasons elucidated below, we affirm.\\nI. FACTS AND PROCEDURAL HISTORY\\nThe facts are as follows. On October 21, 2006, Julius Kevin Cupid (\\\"Cupid\\\") and Asheba Benjamin (\\\"Benjamin\\\"), cousins, resided at the Aureo Diaz Heights Housing Complex on St. Croix with their grandmother, Christineta Benjamin (\\\"Christineta\\\"). (J.A. 401-02.) At a few minutes past 6 o'clock, Randy Burke (\\\"Burke\\\"), Christineta's grandson, entered Christineta's home and proceeded to Cupid's bedroom, where he was ironing clothing in preparation for an evening event. (J.A. 403, 406.) After a conversation between Burke and Cupid ended, Burke proceeded to a third bedroom in the apartment where he rummaged through a bag of clothing and thereafter returned to Cupid's bedroom. When Burke returned to Cupid's room, he asked Cupid if he had taken his rolling paper and leaf tobacco, to which Cupid responded that he had not. (J.A. 407.) The conversation escalated to a verbal altercation in which Burke continued to accuse Cupid of taking his property. Burke said to Cupid, \\\"You's a punk, and if you go on too bad I will take everything from you.\\\" (J.A. 408.) Benjamin left her bedroom and entered Cupid's bedroom when she heard Burke say, \\\"Don't go on too bad 'cause he [sic] will lick his head top off.' \\\" (J.A. 409.) At that time, she interposed herself between Cupid and Burke because they were already truculently and bellicosely arguing with each other. Benjamin asked Burke to leave the apartment. (J.A. 422.) Burke left Cupid's bedroom and returned to the third bedroom to attend to his property. However, Burke again returned to Cupid's bedroom. Benjamin immediately returned to Cupid's room as well. (Id.) Benjamin parted her cousins. However, Burke left and returned multiple times to Cupid's bedroom. (Id.) On one of the occasions, Benjamin entered the room and saw Cupid with a knife held at his side. (J.A. 423.) Cupid never pointed the knife in Burke's face because Benjamin had positioned herself between her cousins during the altercation. (J.A. 423-24.)\\nThe knife prompted Burke to state that he was leaving but would return. (J.A. 424.) Thereupon, he left the apartment. (Id.) Benjamin followed Burke and, as he departed, she locked the main and back doors. Then Benjamin moved to the balcony where she could observe Burke going towards the Charles Emanuel School and stopping at a silver car at the side of the road. (J.A. 424-25, 458.) Benjamin then returned to the inside of the apartment to calm down Cupid, who had remained in his bedroom. (J.A. 426-27.) She then heard the sound of female voices outside the apartment screaming fearfully. Benjamin proceeded to the porch where she saw Burke returning to the apartment carrying something that she could not identify. (J.A. 434-35, 437, 440.) Benjamin ran inside the apartment to call her mother but failed to complete the telephone call. Meanwhile, Burke was attempting to kick in the door, simultaneously saying \\\"Open the door. I gone kill yuh muddahskunt. Open the door. Wait until I get you and lick your head top off,\\\" which was obviously directed at Cupid. (J.A. 448.) Cupid proceeded towards the door but was restrained by Benjamin who importuned him not to open the door. (J.A. 450.) At the time, Cupid was unarmed. After approximately five minutes, Cupid complied with Benjamin's request and returned to his bedroom. (Id.)\\nWhen the commotion at the apartment door ceased, Benjamin returned to the telephone to call her mother. Suddenly, Cupid bolted past Benjamin and continued on to the front balcony of the second story apartment. (J.A. 451.) Benjamin ran after him but before she could pull him back into the apartment, she heard a gunshot. (J.A. 451.) Benjamin retreated to the back porch, climbed down to the ground level and ran away from her home. (J.A. 453.) Subsequently, she returned to the apartment with a crowd of onlookers who were running towards her apartment. (Id.) Benjamin saw Cupid's limp body hanging over the porch railing. (J.A. 455.)\\nEmergency Medical Technicians (EMTs) responded to the incident and found a police officer holding a towel to Cupid's face. (J.A. 504.) The EMTs found him gurgling blood. (J.A. 505.) Cupid had a faint pulse and was rushed to the hospital with \\\"a laceration, puncture wound to the lower lip . a major laceration to his tongue, and a couple of his teeth were missing.\\\" (J.A. 512.) Cupid was transported to the Juan Luis Hospital and transferred to the care of emergency room physician, Dr. Jennifer Kolodchak. (J.A. 514-15.) Life saving measures were performed upon Cupid but they were unsuccessful. He was declared dead at 7:20 pm. (J.A. 527.)\\nBurke was arrested on October 23, 2006 and charged in a Second Amended Information as follows: Count I, murder in the first degree in violation of 14 V.I.C. \\u00a7 922(a)(1); Count II, possession of a firearm during the commission of a crime of violence in violation of 14 V.I.C. \\u00a72253(a); and Count III, reckless endangerment in violation of 14 V.I.C. \\u00a7 625(a). The trial commenced on December 14, 2009. The People presented their case after which Burke moved for a Judgment of Acquittal under Federal Rule of Criminal Procedure Rule 29; however, the court denied the motion. Burke renewed his Rule 29 motion at the close of his case. The trial court granted the Rule 29 motion only in regards to Count II and denied the motion in regards to Counts I and III. The jury deliberated and found Burke guilty of Counts I and III.\\nII. JURISDICTION\\nTitle 4, section 32(a) of the Virgin Islands Code states that \\\"[t]he Supreme Court shall have jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law.\\\" A final order is a judgment from a court which ends the litigation on the merits, leaving nothing else for the court to do except execute the judgment. Ramirez v. People, 56 V.I. 409, 416 (V.I. 2012) (citing In re Truong, 513 F.3d 91, 94 (3d Cir. 2008); Bethel v. McAllister Bros., Inc., 81 F.3d 376, 381 (3d Cir. 1996)). Burke filed a post-trial Motion for Judgment of Acquittal and Motion for a New Trial which were denied by the Superior Court in an order dated February 1, 2013, and entered on February 4, 2013. Burke timely filed this appeal on February 22, 2013. Therefore, this Court has jurisdiction over this matter.\\nIII. STANDARD OF REVIEW\\nThe standard of review for this Court's examination of the trial court's application of law is plenary and its findings of facts are reviewed for clear error. Rodriguez v. Bureau of Corr., 58 V.I. 367, 371 (V.I. 2013); Blyden v. People, 53 V.I. 637, 646 (V.I. 2010); Pell v. E.I. DuPont de Nemours & Co. Inc., 539 F.3d 292, 300 (3d Cir. 2008). When the Court is presented with a challenge to the sufficiency of the evidence, we will \\\"examine the totality of the evidence, both direct and circumstantial, and interpret the evidence in the light most favorable to the government as the verdict winner.\\\" Allen v. People, 59 V.I. 631, 635 (V.I. 2013) (quoting United States v. Pavulak, 700 F.3d 651, 668 (3d Cir. 2012) (citations and internal quotation marks omitted). A defendant seeking to overturn his conviction on the basis of the sufficiency of the evidence \\\"bears a very heavy burden.\\\" Castor v. People, 57 V.I. 482, 488 (V.I. 2012) (quoting Latalladi v. People, 51 V.I. 137, 145 (V.I. 2009) (internal quotation marks omitted)). The standard of review for challenges to jury instructions given by the trial court is for an abuse of discretion. Ostalaza v. People, 58 V.I. 531, 556 (V.I. 2013); United States v. Hoffecker, 530 F.3d 137, 167 (3d Cir 2008) (citing United States v. Leahy, 445 F.3d 634, 642 (3d Cir. 2006)).\\nIV. DISCUSSION\\nA. The People presented sufficient evidence that a rational jury could find beyond a reasonable doubt that Burke was the cause of Cupid's death.\\nBurke asserts that there is insufficient evidence for him to be convicted on either count of the Information. Specifically, he points out that \\\"[n]o witness testified that the Defendant, in fact, shot Cupid.\\\" (Appellant's Br. at 14.) Burke's arguments amount to a challenge to the sufficiency of the evidence because the evidence was circumstantial, and there was no direct testimony presented that definitely stated that Burke murdered Cupid. However, the circumstantial evidence in this case was more than sufficient to permit the jury to find beyond a reasonable doubt that Burke was guilty.\\nIn determining whether the defendant has met the heavy burden of showing insufficiency of the evidence to support this conviction, we review the evidence in the light most favorable to the People, considering the totality of the circumstances and all the evidence presented. Allen, 59 V.I. at 635. \\\"The Government may prove guilt based on circumstantial evidence alone. Morton v. People, 59 V.I. 660, 671 (V.I. 2013) (citing United States v. Kemp, 500 F.3d 257, 293 (3d Cir. 2007)). The People did not present a witness who said that he or she saw Burke shoot Cupid. Nonetheless a review of all the evidence demonstrates that it was more than sufficient to support his convictions for these crimes beyond a reasonable doubt. Benjamin testified that Burke repeatedly threatened that he would \\\"lick [Cupid's] head top off.\\\" (J.A. 409.) At another point, Benjamin testified that Burke said, \\\"Open the door. I gone kill yuh muddahskunt. Open the door. Wait until I get you and lick your head top off.\\\" (J.A. 448.) She also testified that she saw Burke approaching the apartment building with an object in his hand she could not identify. (J.A. 434-35.) Benjamin further stated that as soon as Cupid stepped onto the balcony, she heard a gunshot. (J.A. 451.)\\nAlthough Beatrice Lawrence (\\\"Lawrence\\\") was designated as a hostile witness, in her signed statement to police on the night of the incident, she stated that she heard a gunshot after she saw Burke brandish a gun. (J.A. 713.) At this juncture, Lawrence was only three feet from Burke, whom she knew exceptionally well, including having had a past intimate relationship with him. (J.A. 720, 728.) Lawrence observed Burke shooting upwards which coincided with Cupid being shot on the second floor balcony. (J.A. 723.) When Lawrence heard the shot, she retreated to her apartment, which was located below the one where Cupid was shot. (J.A. 713.) After the shooting, she observed Burke hurriedly departing the area of the crime. (J.A. 724.)\\nNo testimony was elicited which contradicted the testimony of Benjamin and Lawrence. Significantly, Dr. Kolodchak, a licensed emergency room physician pronounced Cupid dead with the cause of death being a gunshot wound to the face with ensuing cardiac arrest. (J.A. 527.)\\nThe trial court also included a discussion of circumstantial evidence in the final jury instructions. The court stated,\\nThere are two types of evidence from which you may properly find the facts in this case, one is the direct evidence, such as the testimony of an eyewitness or someone who asserts actual knowledge of facts. The other is indirect, or circumstantial evidence. Circumstantial evidence or indirect evidence consists of facts that lead to a reasonable inference of the existence or nonexistence of another fact.\\n(J.A. 978.) Considering the entire body of evidence, it was reasonable for the jury to find Burke guilty beyond a reasonable doubt on both charges.\\nB. The trial court did not err in not using the exact jury instruction language proposed by Burke in relation to the victim's cause of death.\\nBurke asserts that the trial court erred when it decided not to use his proposed jury instruction from a volume of pattern federal jury instructions relating to the cause of the victim's death. (Appellant's Br. at 18.) He specifically argues that the jury instructions given by the trial court did not cover the points contained in his proffered instruction, because they failed to break down causation for the jury in the careful manner of the model instructions. (Appellant's Br. at 18-19.) He further asserts that he was prejudiced because his conviction is based on causation that was not addressed in the final jury instructions given but was included in his proposed instruction. (Appellant's Br. at 19.)\\n\\\"It is a recognized principle that a defendant is entitled to an instruction on any cognizable defense 'for which there exists evidence sufficient for a reasonable jury to find in his favor.' \\\" Prince v. People, 57 V.I. 399, 411-12 (V.I. 2012) (citations omitted). \\\"When a timely objection to a final jury instruction was made, we review the objection for abuse of discretion.\\\" Id. at 404 (citing Gov't of the V.I. v. Fonseca, 274 F.3d 760, 765, 44 V.I. 336 (3d Cir. 2001)). A jury is to be instructed on each essential element of the offenses charged, and failure to do so constitutes error. Nanton v. People, 52 V.I. 466, 479 (V.I. 2009). \\\"[T]he validity of a challenge to jury instructions must be considered against the complete jury instructions and the whole trial record.\\\" Id. (citation omitted.) Further, \\\"[i]n determining whether the [trial] court abused its discretion, [this] Court evaluates whether the proffered instruction was legally correct, whether or not it was substantially covered by other instructions, and whether its omission prejudiced the defendant.\\\" Phillips v. People, 51 V.I. 258, 269 (V.I. 2009) (quoting United States v. Pitt, 193 F.3d 751, 755-56 (3d Cir. 1999)).\\nReviewing the jury instructions as a whole, no basis exist to find that the trial court erred in failing to give Burke's proposed jury instruction. The proposed instruction includes elements substantially covered in other instructions that were given by the court and thus it would have been duplicative and unnecessary. The proposed instruction stated that the People must prove the defendant committed the unlawful killing beyond a reasonable doubt. (Appellant's Br. at 18.) The actual instructions given in this case stated the same proposition, for example: \\\"Before the Defendant may be found guilty of a crime, the People must prove, beyond a reasonable doubt, that the Defendant committed an act that the law declared to be a crime.\\\" (J.A. 984.) The actual instructions went further and provide a definition of the meaning of the concept of proof beyond a reasonable doubt. (J.A. 994-96.) Burke's proposed instruction stated that the People must \\\"prove that the defendant's conduct was the direct cause of [the victim's] death.\\\" (Appellant's Br. at 18.) The actual instructions given in this case stated that the jury must find \\\"that the Defendant Randy Burke, unlawfully killed a human being, to wit, Julius Cupid.\\\" The proposed language was therefore substantially the same as that in the instructions actually given. Phillips, 51 V.I. at 269. The proposed instruction gave a definition of the term \\\"unlawful,\\\" which the actual instructions also include. (J.A. 987.) As a whole, the trial court's final jury instructions were more than sufficient to address each of the required elements and concepts applicable in this case, and its discretionary decision not to include Burke's proposed instruction on the same principles was not error.\\nC. The trial court did not abuse its discretion by admitting the testimony of Dr. Kolodchak.\\nBurke argues that the testimony elicited from Dr. Kolodchak was expert opinion that had not been disclosed as planned expert testimony during discovery, and he contends that she was not qualified as an expert at trial. (Appellant's Br. at 19-20.) In its Memorandum Opinion dated February 1, 2013, the trial court held that Dr. Kolodchak's testimony was not that of an expert because she consulted the records of Cupid's visit at the hospital, including the notice of death and other records. The trial court further stated that she never \\\"testifie[d] in the form of an opinion regarding a fact that [wa]s within the scope of [her] special knowledge, skill, experience, or training. . . .\\\" See Ritter v. People, 51 V.I. 354, 366 (V.I. 2009). The trial court further differentiated the testimony of the physician in Ritter from Dr. Kolodchak's testimony in the present case, noting that Dr. Kolodchak never informed the jury about the life threatening potential of Cupid's injuries, and did not give any forecasting of the results of his injuries. The trial court concluded that Dr. Kolodchak testified as a treating physician only. We review these challenges to the trial court's admission or exclusion of expert testimony only for abuse of discretion. People v. Todmann, 53 V.I. 431, 436 (V.I. 2010); see Ritter, 51 V.I. at 359)).\\nBurke is correct that the People never provided him with any disclosure regarding expert opinions. Even so, the alleged violation of the discovery rules by the People is unfounded because the People never took the position before, during, or after trial that Dr. Kolodchak was an expert witness. There could be no disclosure about an expert where a party has not designated the witness as an expert. There is, then, no discovery violation where the purported expert does not give testimony constituting an expert opinion.\\nBurke argues that Dr. Kolodchak's testimony was that of an expert because she was allowed \\\"to speculate without direct recollection as to the life-threatening injuries sustained by Julius Cupid.\\\" (Appellant's Br. at 20.) The trial court concluded, however, that this witness never testified as an expert witness but as a treating physician. (J.A. 20.) The trial court further stated that Dr. Kolodchalc never told the jury whether Cupid's injuries were life-threatening. (J.A. 21.) The record in this case supports the conclusion of the trial court. Dr. Kolodchak's testimony was basic and direct. She made no new revelations and primarily relayed the information that she had previously, years earlier, recorded as part of her responsibilities as the treating physician on duty that evening at Juan Luis Hospital emergency room where the victim was treated. It was not an abuse of discretion for the trial court to treat this witness' testimony in this manner.\\nD. The trial court's decision not to inform the jury of its decision to grant Burke's Rule 29 Motion during final jury instructions was not an abuse of discretion.\\nBurke asserts that the trial court's failure to inform the jury during final jury instructions that he was no longer charged under Count II with the offense of possession of a firearm during the commission of a crime of violence, was a fatal error because the granting of his motion was exculpatory. (Appellant's Br. at 25.) Burke presents this argument but fails to support it with any relevant case law precedent, rules of procedure or court rules. Burke admits, \\\"The problem presented by the omission of instructing the jury of an acquittal within the same trial has been hard to research for analogous cases.\\\" (Appellant's Br. at 23.) This illustrates that Burke's argument is meritless. He continued that assertion by attempting to analogize his case to that of Hess v. State, 20 P.3d 1121 (Alaska 2001), which the trial court found to be inapplicable and this Court agrees. In Hess the defendant was not acquitted by a Rule 29 Motion of one of the counts in the information lodged against him, as in this matter, but he was arguing to have the jury be told of his acquittal in a previous case involving a separately alleged offense of a similar nature, offered to rebut proof of an unrelated prior incident. Id. at 1122. The nature, purpose, and effect of the proof offered in Hess is simply not analogous to the present case in any respect. Moreover, the purported need to advise the jury of Burke's exoneration on Count II in the Second Amended Information, the firearms possession charge, was non-existent since the instructions as given focused the jury on the only two offenses remaining.\\nFurther, Burke's argument is spurious because of the following. When the trial commenced, Burke was charged with three counts in the Second Amended Information. After the trial court granted the Rule 29 Motion for Judgment of Acquittal, it became absolutely necessary to delete Count II of the charges, which prompted the filing of a Third Amended Information with the two remaining charges. Additionally, in the final jury instructions, the trial judge explicitly informed the jurors that Burke was only on trial for acts alleged in the Third Amended Information. (J.A. 982-83.) See Ostalaza, 58 V.I. at 555 (citing Augustine v. People, 55 V.I. 678, 686 (V.I. 2011) (recognizing presumption that jurors will follow final jury instructions).\\nE. The trial court was correct in denying Burke's motion to impeach Lawrence by use of her previous conviction.\\nBurke asserts that the trial court committed an error when it denied his request to impeach Lawrence using her prior conviction for drug trafficking. (Appellant's Br. 25.) Burke contends that the facts of this conviction should have been admitted to demonstrate her bias and to impair her credibility. (Appellant's Br. 26.) He also includes a brief discussion of the Superior Court's transition from the Uniform Rules of Evidence (\\\"URE\\\") to the Federal Rules of Evidence (\\\"FRE\\\") and correctly notes that, at the time of the present trial, the Superior Court was bound to apply the URE. (Appellant's Br. 27.) Burke then ends his argument with what seems to be an admission that the trial court was correct when he states:\\nEven though this Court was bound to follow the URE at trial, the Court erred in not allowing this testimony as Lawrence's conviction was a crime of dishonesty that was admissible to show both bias and impair her credibility. Since the URE has now been repealed, it is in the interest of justice to allow Defendant a new trial to present this testimony for a jury to consider.\\n(Appellant's Br. 28.) Burke seems to be importuning this Court to grant a new trial solely for the purpose of applying what he perceives to be the more favorable impeachment provisions applicable under the FRE. We find this argument unavailing. It is apparent that the trial court did not err in ruling on the scope of permissible impeachment under the governing URE provision, which was 5 V.I.C. \\u00a7 835.\\nBurke also argues that United States v. Hayes, 553 F.2d 824, 828 (2d Cir. 1977), is persuasive because in hypothetical dicta it specifically mentions the use of false customs forms as conduct that might be treated as a crime involving dishonesty for impeachment purposes under the prior version of FRE 609 applicable in the 1970s, which like section 835 makes admissibility of a prior conviction contingent on the crime involving a dishonest or false statement. The Hayes court, in the same discussion on which Burke relies, stated that where \\\"nothing more than the bare fact of conviction\\\" is raised during attempted impeachment, there is no basis for treating a drug importation offense as a crime of false statement for impeachment purpose. Id. at 828. Moreover, in the much more recent case of FedEx Ground Package Sys. v. Futch, 944 So.2d 469, 471 (Fla. Dist. Ct. App. 2006), the Hayes discussion about the customs form is relegated to mere dicta. That court further pointed out that the Second Circuit held that the conviction in Hayes was not admissible. Id. It further stated, \\\"Notably, the Hayes court did not hold that the crime of cocaine importation is in any way a crime involving dishonesty or a false statement.\\\" Id. We agree with the majority of modern decisions which reach this same conclusion. Lawrence's convictions were for conspiracy to import cocaine and for possession of cocaine on board an aircraft with intent to distribute, and not for falsification of a U.S. customs form. (J.A. 668.) The assertion that Lawrence falsified information on a U.S. customs form is solely Burke's assertion which is unsupported in the record. The trial court's ruling on this scope of impeachment issue was not an abuse of discretion.\\nV. CONCLUSION\\nFor the reasons discussed above, there is no abuse of discretion in the Superior Court's Order Denying Defendant's Motion for Judgment of Acquittal or in the Alternative, Motion for a New Trial or in the Order denying Defendant's Motion for a New Trial dated February 1, 2013. Therefore, Burke's convictions are affirmed.\\nThe trial court read the Third Amended Information to the jury as part of the giving of the instructions. The Third Amended Information designated the reckless endangerment charge as Count II; it did not include the possession of a firearm charge, which had been designated as Count II in the Second Amended Information. (12/17/09 Trial Tr. at 113-14; J.A. 982-83.)\"}"
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+"{\"id\": \"3634657\", \"name\": \"IN THE MATTER OF THE APPLICATION OF: YVETTE DE LUNA, ESQUIRE, FOR PRO HAC VICE ADMISSION TO THE VIRGIN ISLANDS BAR\", \"name_abbreviation\": \"In re De Luna\", \"decision_date\": \"2014-03-06\", \"docket_number\": \"S. Ct. BA. No. 2014-0005\", \"first_page\": 683, \"last_page\": \"687\", \"citations\": \"60 V.I. 683\", \"volume\": \"60\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Supreme Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T22:26:38.137160+00:00\", \"provenance\": \"CAP\", \"judges\": \"HODGE, Chief Justice-, CABRET, Associate Justice-, and SWAN, Associate Justice.\", \"parties\": \"IN THE MATTER OF THE APPLICATION OF: YVETTE DE LUNA, ESQUIRE, FOR PRO HAC VICE ADMISSION TO THE VIRGIN ISLANDS BAR\", \"head_matter\": \"IN THE MATTER OF THE APPLICATION OF: YVETTE DE LUNA, ESQUIRE, FOR PRO HAC VICE ADMISSION TO THE VIRGIN ISLANDS BAR\\nS. Ct. BA. No. 2014-0005\\nSupreme Court of the Virgin Islands\\nMarch 6, 2014\\nHODGE, Chief Justice-, CABRET, Associate Justice-, and SWAN, Associate Justice.\", \"word_count\": \"1201\", \"char_count\": \"7328\", \"text\": \"OPINION OF THE COURT\\n(March 6, 2014)\\nPer Curiam.\\nThis matter comes before the Court pursuant to a \\\"Motion for Reconsideration or Rehearing as to Order Granting Pro Hac Vice Admission of Yvette De Luna, Esq.,\\\" filed by Creative Communication Technologies of Arizona, Inc. (\\\"CCTA\\\"), as well as De Luna's opposition. For the following reasons, we revoke our order granting De Luna's pro hac vice admission and refer this matter to the appropriate authorities.\\nI. BACKGROUND\\nOn January 13, 2014, Daryl C. Barnes, Esq., an active member of the Virgin Islands Bar, filed a motion to admit De Luna pro hac vice to represent Nolasco Communication, Inc., in SX-13-CV-360, in which CCTA is the opposing party. This Court, in a February 6, 2014 Order, granted the motion. Although the February 6, 2014 Order explicitly stated that her pro hac vice admission was effective \\\"upon execution of the Oath with the Clerk of the Court,\\\" In re De Luna, 60 V.I. 685 (V.I. 2014) , De Luna never executed the Oath, and her pro hac vice admission therefore has never become effective.\\nThe next day, February 7, 2014, CCTA filed its motion with this Court. In its motion, CCTA states that De Luna engaged in ex parte communications with management employees and representatives of CCTA, which it alleges violates both Rules 4.1 and 4.2 of the ABA Model Rules of Professional Conduct and Supreme Court Rules 211.4.1 and 211.4.2. Along with its motion, CCTA provided this Court with the following email from De Luna to various CCTA employees, which reads, in pertinent part, as follows:\\nFrom: Leda. Yvette De Luna Col\\u00f3n\\nTo: Edward Santamar\\u00eda\\nCc: [various other CCTA employees]\\nSubject: Direct Communication of Clients in Case Nolasco Communication vs.\\nCreative Communication SX-13-CV-360\\nGood afternoon everyone... for those of you who have no idea of who I am, let me introduce myself.\\nMy name is Yvette De Luna and I am the attorney for Nolasco Communication in the matter referenced in the subject line of this email. It has been brought to my attention that direct communication has been established between Creative Communication representatives and Nolasco Communication regarding the Nolasco Communication vs. Creative Communication SX-13-CV-360 litigation, including certain partial payments that were made directly to our client and which are directly related to the case.\\nPlease be advised that direct communication regarding the pending litigation between the parties is not appropriate, since everyone is duly represented by attorneys. Therefore, no direct communication should be made between the parties to discuss matters related to the claim. If there are matters related to the litigation that require discussion, communication or if there are proposals to be made regarding the litigation said communication must be channeled through the attorneys. As far as Nolasco is concerned, I have advised my client to reject all future communication approaches regarding the litigation not done through me.\\nAny other type of business dealings and communications can and should be freely pursued.\\nPartial payments should also be filtered through the attorneys. If there are any doubts, please have your attorneys contact me.\\nThank you,\\nLeda. Yvette Pilar De Luna\\n(Mot. Exh. 1. at 1.) In its motion, CCTA represents that it was in the process of drafting a notice informing this Court of the communication, but that the February 6, 2014 Order was issued before it had the opportunity to do so. CCTA requests, as a remedy, that this Court vacate its February 6, 2014 Order and deny the motion for De Luna's pro hac vice admission. In her opposition, De Luna admits to having sent this email, but argues that the email did not constitute an unethical ex parte communication with a represented party.\\nII. DISCUSSION\\nThis Court, as the highest court of the Virgin Islands, possesses both the statutory and inherent authority to regulate the practice of law in the Virgin Islands. 4 V.I.C. \\u00a7 32(e); In re Rogers, 56 V.I. 618, 623 (V.I. 2012). This authority encompasses jurisdiction over admission to the Virgin Islands Bar, see In re Application of Shea, 59 V.I. 552, 556 (V.I. 2013), the power to discipline attorneys, see In re Suspension of Adams, 58 V.I. 356, 361 (V.I. 2013), and to adjudicate claims that an individual has engaged in the unauthorized practice of law in the Virgin Islands, see In re Campbell, 59 V.I. 701, 709 (V.I. 2013). \\\"While this Court may, in appropriate cases, refer such matters to the Ethics and Grievance Committee, the Committee of Bar Examiners, or the Unauthorized Practice of Law Committee, issues relating to whether pro hac vice admission should be granted, denied, or revoked are ordinarily resolved by this Court in the first instance when the underlying facts are undisputed and this Court need only consider a pure question of law.\\\" In re Gonzalez, 59 V.I. 862, 864-865 (V.I. 2013).\\nGiven that De Luna has admitted to sending the email that CCTA has provided to this Court, we find that more than sufficient reason exists to vacate our February 6, 2014 Order and deny the motion to admit De Luna pro hac vice, without reaching the issue of whether the communication violated Model Rules 4.1 and 4.2 or Supreme Court Rules 211.4.1 and 211.4.2. As we have repeatedly emphasized, holding oneself out as a licensed Virgin Islands attorney, such as through communications with other parties, constitutes the unauthorized practice of law in the Virgin Islands. See, e.g., In re Motylinski, 60 V.I. 623, 648 (V.I. 2014); In re Campbell, 59 V.I. 701, 731-732. In her January 23, 2014 email to the CCTA employees, De Luna identified herself as Nolasco's attorney in the proceeding docketed as SX-13-CV-360 and directed that all communication with respect to that litigation be directed exclusively to her. However, as of the date of that email, De Luna had not executed the Oath, and therefore was not authorized to act as Nolasco's attorney with respect to SX-13-CV-360; in fact, at that point this Court had not even granted the motion to admit De Luna pro hac vice contingent upon execution of the Oath. Since the underlying conduct may potentially warrant action beyond the denial of De Luna's pro hac vice admission, we also refer this matter to the Virgin Islands Attorney General, the Unauthorized Practice of Law Committee, and the Office of Disciplinary Counsel for the purpose of taking any additional action which they may deem appropriate.\\nIII. CONCLUSION\\nFor the foregoing reasons, we vacate our February 6, 2014 Order admitting De Luna pro hac vice contingent upon execution of the Oath, and deny the petition for her admission.\\nPrior to February 1,2014, Supreme Court Rule 203 provided that the ABA's Model Rules of Professional Conduct governed the conduct of members of the Virgin Islands Bar. However, effective February 1, 2014, Supreme Court Rule 211, which establishes the Virgin Islands Rules of Professional Conduct, governs the conduct of Virgin Islands attorneys. See Promulgation Order No. 2013-0001 (V.I. Dec. 23,2013).\"}"
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+"{\"id\": \"3661831\", \"name\": \"PATRICK ANTHONY and VERNA DAGOU, Appellants v. INDEPENDENT INSURANCE ADVISORS, INC., PAUL LICHTMAN, FRANK MCLAUGHLIN, CONTANT VIEW CONDOMINIUM ASSOCIATION for itself and on behalf of the individual unit owners therein, ARTHUR POMERANTZ, SERAPHINE ST. HILAIRE, GIFFORD ST. HILAIRE, LAURA FELICIANO-STOUT, ULRIC FRAITES, SHERON FRAITES, and McLAUGHLIN MANAGEMENT INC., Appellees\", \"name_abbreviation\": \"Anthony v. Independent Insurance Advisors\", \"decision_date\": \"2012-04-02\", \"docket_number\": \"S. Ct. Civ. No. 2010-0002 Consolidated Cases S. Ct. Civ. Nos. 2010-0002, 2010-0003\", \"first_page\": 516, \"last_page\": \"535\", \"citations\": \"56 V.I. 516\", \"volume\": \"56\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Supreme Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T23:17:47.775746+00:00\", \"provenance\": \"CAP\", \"judges\": \"CABRET, Associate Justice; BRADY, Designated Justice; and WILLOCKS, Designated Justice\", \"parties\": \"PATRICK ANTHONY and VERNA DAGOU, Appellants v. INDEPENDENT INSURANCE ADVISORS, INC., PAUL LICHTMAN, FRANK MCLAUGHLIN, CONTANT VIEW CONDOMINIUM ASSOCIATION for itself and on behalf of the individual unit owners therein, ARTHUR POMERANTZ, SERAPHINE ST. HILAIRE, GIFFORD ST. HILAIRE, LAURA FELICIANO-STOUT, ULRIC FRAITES, SHERON FRAITES, and McLAUGHLIN MANAGEMENT INC., Appellees\", \"head_matter\": \"PATRICK ANTHONY and VERNA DAGOU, Appellants v. INDEPENDENT INSURANCE ADVISORS, INC., PAUL LICHTMAN, FRANK MCLAUGHLIN, CONTANT VIEW CONDOMINIUM ASSOCIATION for itself and on behalf of the individual unit owners therein, ARTHUR POMERANTZ, SERAPHINE ST. HILAIRE, GIFFORD ST. HILAIRE, LAURA FELICIANO-STOUT, ULRIC FRAITES, SHERON FRAITES, and McLAUGHLIN MANAGEMENT INC., Appellees\\nS. Ct. Civ. No. 2010-0002 Consolidated Cases S. Ct. Civ. Nos. 2010-0002, 2010-0003\\nSupreme Court of the Virgin Islands\\nApril 2, 2012\\nJOSEPH Caines, Esq., St. Thomas, USVI, Attorney for Appellants.\\nSIMONE R.D. Francis, Esq., Ogletree, Dealdns, Nash, Smoak & Stewart, LLC, St. Thomas, USVI, Attorney for Appellees Independent Insurance Advisor's, Inc. and Paul Lichtman.\\nArthur pomerantz, Esq., Law Office of Arthur Pomerantz, St. Thomas, USVI; Marcia B. Resnick, Esq., Law Offices of Marcia Resnick, St. Thomas, USVI, Attorneys for Appellees Frank McLaughlin, etal.\\nCABRET, Associate Justice; BRADY, Designated Justice; and WILLOCKS, Designated Justice\\nChief Justice Rhys S. Hodge and Associate Justice Ive Arlington Swan have been recused from this matter. The Honorable Julio A. Brady and the Honorable Harold W.L. Willocks sit in their place by designation pursuant to title 4, section 24(a) of the Virgin Islands Code.\", \"word_count\": \"6385\", \"char_count\": \"39725\", \"text\": \"OPINION OF THE COURT\\n(April 2, 2012)\\nCABRET, Associate Justice.\\nThis consolidated appeal concerns appellant Patrick Anthony's appeal from an order of the Superior Court granting summary judgment and appellant Verna Dagou's appeal from an order denying her motion to intervene. The case revolves around a condominium that was destroyed by Hurricane Marilyn in 1995. The condominium association and several individual owners, including Anthony, sued the insurance broker who had provided the contact to an Illinois insurance company who subsequently became insolvent without paying insurance premiums. Two and a half years after the case was filed, defendants moved for summary judgment. Similarly, three years after the case was initially filed, Dagou moved to intervene. Thereafter, before the Superior Court addressed either outstanding motion, all of the plaintiffs except Anthony settled the case and signed a release of their claims against the defendants. Approximately eight years after the settlement with the other plaintiffs, the Superior Court granted the summary judgment motion against Anthony and denied Dagou's application to intervene as untimely. For the reasons which follow, we affirm the trial court's grant of summary judgment against Anthony and its denial of Dagou's motion to intervene, but remand to permit the Superior Court to consider Anthony's motion to amend the complaint.\\nI. FACTS AND PROCEDURAL HISTORY\\nWe begin by recounting the facts that are common to both appellants, and then set out, below, those facts important to their individual issues on appeal. This appeal stems from a complaint filed on April 23, 1998 alleging negligent misrepresentation, fraudulent misrepresentation, breach of fiduciary duties, bad faith, and breach of contract against each defendant. The three defendants listed in the complaint are Independent Insurance Advisors, Inc. (\\\"Independent\\\"), a Pennsylvania Corporation engaged in the insurance business; Paul Lichtman, the President of Independent; and C.E. Brathwaite and Associates, a Virgin Islands Corporation in the insurance business. The four plaintiffs listed in the original complaint are the Contant View Condominium Association (\\\"Association\\\"), for itself and on behalf of the individual unit owners; Frank McLaughlin, a resident of the Virgin Islands; McLaughlin Management, Inc., a Virgin Islands corporation through which McLaughlin conducted his business; and Arthur Pomerantz, Esq., a resident of the Virgin Islands and the attorney who signed the initial complaint.\\nThe plaintiffs amended the complaint on My 27, 1999. The first amended complaint added many of the individual unit owners, including Anthony, as plaintiffs, removed the Association as a plaintiff, and made McLaughlin the lead plaintiff, individually and as manager of the Association. The plaintiffs amended the complaint for a second, and final, time on June 14, 2000, which restored the Association as a plaintiff on the suit, retained the individual owners, and removed McLaughlin's status as manager. On May 9, 2001, Anthony filed a motion to amend the pleadings yet another time, to include crossclaims against the Association, McLaughlin, and Pomerantz. The plaintiffs, except Anthony, settled and and signed a release of their claims against Independent and Lichtman on January 16, 2002.\\nThe crux of the plaintiffs' claims centered around an insurance policy purchased by the Association on behalf of the condominium for the common areas of the building. Plaintiffs alleged that McLaughlin, on behalf of the Association, sought the assistance of Independent and Lichtman in purchasing disaster insurance, which the Association subsequently purchased on April 28, 1995. Independent and Lichtman used Geneva Assurance Syndicate Inc. (\\\"Geneva\\\"), a corporation that was a member of the Illinois Insurance Exchange, as the lead syndicate for the policy sold to the Association. Less than a month after the purchase, in May 1995, the Illinois Insurance Exchange declared Geneva insolvent. Four months later, on September 15, 1995, Hurricane Marilyn caused extensive damage to the Contant View Condominiums. When Geneva was unable to pay on the Association's claim, the plaintiffs initiated this suit against Independent and Lichtman for negligent misrepresentation, fraud, breach of fiduciary duty, bad faith, and breach of contract. The Association was the only entity listed as insured on the Declaration Page for the insurance.\\n1. Appellant Patrick Anthony.\\nThe defendants first moved for summary judgment on October 30, 2000. After the settlement that released the defendants from the claims of all of the other plaintiffs, defendants again moved for summary judgment against Anthony on January 24, 2002. After three renewals of that motion on April 17, 2002, October 8, 2002, and January 7, 2003, the Superior Court entered an order on December 17, 2009 granting the motion for summary judgment and dismissing Anthony's claims with prejudice.\\nIn granting the defendants' motion for summary judgment, the Superior Court focused on three issues: (1) the Association's settlement bound Anthony and barred his suit; (2) the defendants never made any representations to Anthony on which he could rely; and (3) Anthony did not own Unit 2D as of September 15, 1995 and thus no fiduciary duty extended to him nor could there be any breach to him for the purposes of bad faith insurance practices or contract law. The Superior Court found that there was no material issue of genuine fact on any of those issues.\\nThus, having determined that Anthony failed to present a material issue of genuine fact, the Superior Court granted summary judgment to the defendants and dismissed the case. Anthony timely filed a Notice of Appeal on January 15, 2010. In his appeal, Anthony argues (1) that summary judgment was inappropriate on all claims and (2) that the Superior Court erred by dismissing the case without allowing him leave to file crossclaims against the Association, McLaughlin, and Pomerantz.\\n2. Appellant Verna Dagou.\\nDagou moved to intervene as of right on May 9, 2001, the same day Anthony moved to amend the pleadings to assert crossclaims against Pomerantz, McLaughlin, and the Association. The Superior Court's docket indicates that her motion to intervene followed approximately three years after the original complaint's filing, and approximately eleven months after the filing of the last amended complaint. The Superior Court issued a Scheduling Order on October 12, 2000, which set the deadline for completion of factual discovery at October 30, 2000 and for expert discovery at January 31, 2001. The Superior Court's docket indicates that the parties largely followed those timelines and that discovery was complete as of January 31, 2001, four months prior to Dagou's motion to intervene. The defendants filed the first dispositive motion, a motion for summary judgment, with the Superior Court on October 30, 2000. That motion was still pending at the time of both Dagou's motion and the settlement. However, despite not being an individually named plaintiff, counsel represented Dagou at all depositions and at the settlement discussions.\\nOn December 17, 2009, the Superior Court entered an order, accompanied by a memorandum opinion, denying Dagou's motion to intervene. In denying the motion, the Superior Court focused on four issues: (1) the timeliness of the motion; (2) the applicant's interest in the litigation; (3) whether that interest could be affected or impaired by the litigation; and (4) whether the applicant's interest was already represented by an existing party in the litigation. See McLaughlin v. Indep. Ins. Advisors, Civil Case No. ST-98-CV-338 (V.I. Super. Ct. Dec. 17, 2009) (citing Gen. Star Indem. Co. v. V.I. Port Auth., 224 F.R.D. 372, 374-75, 46 V.I. 351 (D.V.I. 2004)). The Superior Court found that Dagou's motion, which needed to only fail one part of the test to warrant denial, failed all four.\\nThe trial court rejected Dagou's contention that her motion was timely. In applying the standard articulated in Mountain Top Condominium Ass'n v. Dave Stabbert Master Builder, 72 F.3d 361, 33 V.I. 311 (3d Cir. 1995), the court reasoned that allowing intervention at such a late stage of the proceedings \\u2014 three years into litigation, at the end of discovery, and after dispositive motions had been filed \\u2014 would cause prejudice to the parties to the litigation and thus found the motion was untimely. The Superior Court also noted that Dagou had failed to provide any justification or reason for the delay in requesting intervention. Additionally, the Superior Court determined that Dagou lacked a sufficient interest in the litigation, as the pleadings deal with alleged misrepresentations from the defendants to McLaughlin on behalf of the Association, during negotiations to which Dagou was not a party, and that the condominium property itself was not directly the \\\"subject of the claims of the parties.\\\" (App. 5-6.) Finally, the trial court compared the interests of Dagou in the litigation to the interests already asserted in the litigation, and found her interests \\\"identical\\\" to those of the already present named parties. (App. 6-7.)\\nOn December 17, 2009, having determined that Dagou failed to meet the requirements for intervention as a matter of right, the Superior Court dismissed her motion to intervene. Dagou timely filed her Notice of Appeal on January 15, 2010.\\nII. JURISDICTION AND STANDARDS OF REVIEW\\nWe have jurisdiction over this civil appeal pursuant to title 4, section 32(a) of the Virgin Islands Code, which provides that \\\"[t]he Supreme Court shall have jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law.\\\" \\\"A Superior Court order granting a party's motion for summary judgment is a final order within the meaning of Section 32 of the Code.\\\" Sealey-Christian v. Sunny Isle Shopping Ctr., Inc., 52 V.I. 410, 418 (V.I. 2009). Likewise, title 4, section 32(a) of the Virgin Islands Code provides jurisdiction over Dagou's claim because \\\"the denial of a motion to intervene is a final, appealable order.\\\" United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1179 (3d Cir. 1994).\\n\\\"A trial court's grant of summary judgment is subject to plenary review.\\\" Sealey-Christian, 52 V.I. at 418. A grant of summary judgment is appropriate where the pleadings, the discovery and disclosure materials on file, and any affidavits show that \\\"there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.\\\" Fed. R. Civ. P. 56(c)(2).\\nIn essence, appellate courts reviewing the granting of motions for summary judgment are charged with undertaking three basic tasks; namely to: (1) accept, (2) allow, and (3) ask. Initially, the court must accept \\\"[the non-moving party's] allegations . as true, even if in conflict with those of the moving party.\\\" Next, the court must allow \\\"[a]ny inference drawn from the underlying facts contained in the evidentiary sources\\\" to be viewed in the light most favorable to the nonmoving party. Finally, the court must ask whether, \\\"from the evidence available at the time of the motion's disposition, a jury could reasonably have inferred either directly or circumstantially that plaintiff's injuries [were proximately caused by the defendant.]\\\"\\nSealey-Christian, 52 V.I. at 420 (citations omitted) (quoting Bushman v. Halm, 798 F.2d 651, 656-57 (3d Cir. 1986)).\\nThe standard of review for a denial of a motion to intervene is abuse of discretion. Alcan Aluminum, 25 F.3d at 1179. However, the review in intervention as of right cases is more searching than the normal abuse of discretion standard. See Harris v. Pernsley, 820 F.2d 592, 597 (3d Cir. 1987). Despite that, the appellate court should \\\"not upset the [trial] judge's determination unless he has applied an improper legal standard or reached a decision that we are confident is incorrect.\\\" United States v. Hooker Chems. &. Plastics Corp., 749 F.2d 968, 992 (2d Cir. 1984); see also Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 380, 107 S. Ct. 1177, 94 L. Ed. 2d 389 (1987) (Brennan, J\\\" concurring) (\\\"Federal Rule of Civil Procedure 24 distinguishes a permissive intervenor from an intervenor of right by the stake each has in the litigation. The intervenor of right has an interest in the litigation that it cannot fully protect without joining the litigation, while the permissive intervenor does not. Accordingly, a district court has less discretion to limit the participation of an intervenor of right than that of a permissive intervenor.\\\").\\nIII. DISCUSSION\\nWe begin our discussion by turning first to Dagou's argument that she should have been permitted to intervene as of right, and then we address Anthony's arguments that the Superior Court erred by granting summary judgment to the defendants.\\n1. The Superior Court correctly determined that Dagou's motion to intervene was untimely.\\nFederal Rule of Civil Procedure 24(a) provides:\\n(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:\\n(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.\\nTo determine if the trial court has abused its discretion in denying an application for intervention, this Court must consider the four requirements that must be met in order to be eligible for intervention as of right under Federal Rule of Civil Procedure 24(a)(2), that \\\"(1) the application for intervention is timely; (2) the applicant has a sufficient interest in the litigation; (3) the interest may be affected or impaired, as a practical matter by the disposition of the action; and (4) the interest is not adequately represented by an existing party in the litigation.\\\" Harris, 820 F.2d at 596. The would-be intervenor must meet all four requirements to be eligible for intervention as of right. Mountain Top Condo. Ass'n, 72 F.3d at 366. The applicant bears the burden of persuading the court that each element is met. See id.\\nTo intervene as of right, the applicant must first show that the motion to intervene was made in a timely manner. Harris, 820 F.2d at 596. The Superior Court determined that Dagou's motion to intervene was untimely, as it was not filed until three years after the filing of the complaint, after the close of all discovery, and after the dispositive motions had been filed. Finally, the court also noted that Dagou failed to present any justification for why she waited three years to file to intervene. For the reasons that follow, we agree with the Superior Court.\\nThe determination of timeliness is a review of the totality the circumstances. Mountain Top Condo. Ass'n, 72 F.3d at 369. A court should be reluctant to refuse a motion to intervene by right solely due to untimeliness, given the important interest an otherwise-eligible intervenor by right would be denied. Id. In ruling on the timeliness of a motion to intervene as of right, the Court of Appeals for the Third Circuit has instructed that three factors must be considered: (1) the stage of the proceeding; (2) the prejudice that delay may cause the parties; and (3) the reason for the delay. Id.\\n\\\"The mere passage of time . . . does not render an application untimely.\\\" Id. Instead, \\\"the critical inquiry is: what proceedings of substance on the merits have occurred?\\\" Id. The focus on the proceedings rather than the time is due to \\\"the stage of the proceeding [being] inherently tied to the question of the prejudice the delay in intervention may cause to the parties already involved.\\\" Id. at 370.\\nWhether the litigation has reached a stage that is too advanced for a motion to intervene to be deemed timely depends on the circumstances of each particular case. Compare Princeton Biochemicals, Inc. v. Beckman Coulter, Inc., 223 F.R.D. 326, 328-29 (D.N.J. 2004) (allowing intervention as of right mid-trial due to a failure of any party to claim prejudice in the face of the intervention); with Kitzmiller v. Dover Area Sch. Dist., 229 F.R.D. 463, 466-67 (M.D. Pa. 2005) (denying intervention as of right due to timeliness only seven months after the initial complaint was filed and while discovery was still pending because the would-be intervenor knew of the suit from inception and gave no reason for the delay). However, there are some general guidelines that can be gleaned from the cases at large, primarily focused around the concept that the later in the proceedings the motion comes, the more compelling the justification for that delay must be.\\nIf the litigation has reached its final stage, generally with the entry of a final order, the courts deny intervention as untimely except in \\\"extraordinary cases.\\\" In re Fine Paper Antitrust Litig., 695 F.2d 494, 500 (3d Cir. 1982). Moving backwards through the stages of trial, the eve of and/or beginning of trial is the next stage in the litigation which is considered important. Courts will generally find a motion to intervene at the eve of trial or after it has begun untimely unless there is a showing of no prejudice to existing parties or a particularly compelling reason for the delay. Compare Princeton Biochemicals, Inc., 223 F.R.D. at 328-29 (permitting intervention mid-trial due to no prejudice being argued by then-litigating parties); with Iowa State Univ. Research Found., Inc. v. Honeywell, Inc., 459 F.2d 447, 448-49 (8th Cir. 1972) (denying intervention during trial as untimely because would-be intervenor knew of the suit \\\"long before it made any effort to intervene\\\" and because \\\"[a]ny efforts to conduct additional discovery and to recall witnesses would result in substantial delay\\\" and cost); Sur. Adm'r's, Inc. v. Samara, No. 04-05177, 2006 U.S. Dist. LEXIS 40889, *12 (E.D. Pa. June 20, 2006) (unpublished) (denying intervention on the \\\"eve of trial\\\" due to prejudice and lack of justification).\\nThe next timeframe that courts consider is the end of discovery/the filing of dispositive motions, where courts generally find intervention untimely unless there is a compelling reason for the delay in filing. See Choike v. Slippery Rock Univ. of Pa., 297 Fed. Appx. 138, 141 (3d Cir. 2008) (unpublished) (denying intervention after completion of discovery because appellant failed to \\\"convincingly explain its reason for the delay in filing its motion to intervene\\\"); In re Safeguard Scientifics, 220 F.R.D. 43, 47 (E.D. Pa. 2004) (denying intervention after completion of discovery due to appellant's justification for intervention being foreseeable earlier in the case); Liddell v. Bd. Of Educ., 98 F.R.D. 548, 549-50 (D.C. Mo. 1983) (rejecting intervention as untimely after discovery due to an inadequate justification for delay). However, where discovery has begun but is not yet closed, courts generally find intervention timely so long as some acceptable explanation is given for the delay. Compare Mountain Top Condo. Ass'n, 12 F.3d at 369-70 (permitting intervention four years after the complaint's filing, but with discovery still pending, because movant just learned that the movant's interest was in jeopardy); Jansen v. City of Cincinnati, 904 F.2d 336, 341 (6th Cir. 1990) (holding that intervention was timely with discovery only partially completed and an acceptable justification for delay provided); Martinez v. City of Oxnard, 229 F.R.D. 159, 162 (C.D. Cal. 2005) (same); with Kitzmiller v. Dover Area Sch. Dist., 229 F.R.D. 463, 466-67 (M.D. Pa. 2005) (denying intervention as untimely even though discovery was still ongoing, where reasons for the movant's delay were unpersuasive); Rosa v. V.I. Water & Power Auth., 32 V.I. 89, 92 (Terr. Ct. 1995) (denying intervention as untimely despite discovery still being open as no justification was given at all for delay in filing). Finally, courts generally find that motions to intervene filed shortly after the complaint do not need any justification, as there was no delay to justify. See, e.g., Brody v. Spang, 957 F.2d 1108, 1115 (3d Cir. 1992) (finding a motion filed the day after the complaint to be timely, without question). The two most commonly accepted justifications for delay are closely related \\u2022 \\u2014 that the would-be intervenor has only recently learned of the lawsuit or, despite having knowledge of the existence of the suit, only recently learned that its interest was at risk and/or that its interest was no longer being adequately represented by the current parties. See, e.g., Mountain Top Condo. Ass'n, 12 F.3d at 370 (late motion for intervention was justified where the movant only recently discovered that its interest was in jeopardy). However, a court is free to consider any justification for the delay offered by the movant, so long as it explains the \\\"lapse in time\\\" before filing a motion to intervene. See Princeton Biochemicals, Inc., 223 F.R.D. at 328 n.3.\\nIn this case, the trial court noted that discovery was completed at the time the motion to intervene was filed. Thus, Dagou would have had to present a compelling justification for her delay in filing the motion to intervene for this Court to determine that the trial court had abused its discretion. However, a review of her motion to intervene discloses that Dagou presented no justification for the delay to the trial court.\\nIn her appeal to this Court, Dagou claims that discovery was still open at the time of intervention. Nevertheless, this claim is not supported by the trial court's docket. Furthermore, as stated previously, a failure to present any justification at all will still cause a motion to intervene to fail, even when the application is made during the pendency of discovery. See, e.g., Rosa, 32 V.I. at 92. Dagou also presents on appeal, for the first time, a purported justification for her delay, claiming that McLaughlin and Pomerantz were spearheading the litigation for personal reasons, rather than in the interest of protecting the unit owners, and that they exercised increasing control as the litigation went forward. However, because Dagou never raised this argument before the trial court, we treat the argument as waived and decline to consider it. V. I. Port Auth. v. Joseph, 49 V.I. 424, 428 (V.I. 2008).\\nUnder these circumstances, the trial court did not abuse its discretion finding the motion untimely where Dagou failed to present any reason for her delay in moving to intervene after the close of discovery and the filing of dispositive motions. Because the trial court need only have correctly determined that Dagou failed to meet one of the requirements for intervention, we need not address any of the other requirements to affirm the trial court's denial of the motion to intervene as of right. See Mountain Top Condo. Ass'n, 72 F.3d at 366.\\n2. The Superior Court correctly granted summary judgment against Anthony on all of his claims, but erred by failing to address his motion to amend the pleadings.\\nOn appeal, Anthony argues that the Superior Court erroneously granted summary judgment because (1) the Association's settlement with and release of claims against the defendants does not bind Anthony, (2) there is a genuine issue of material fact as to whether Anthony relied on the misrepresentations from the defendants to the Association, (3) the trial court improperly determined that the defendants owed Anthony no fiduciary duty because it incorrectly calculated the date on which he became an owner of one of the units at Contant View, (4) likewise, the trial court improperly determined the date he became an owner and thus wrongly dismissed his breach of contract claim against the defendants, and (5) the trial court erred by failing to rule on his outstanding motion to amend the pleadings to assert crossclaims against McLaughlin and Pomerantz. Because we find the first argument determinative of the second, third, and fourth, we address only the first and fifth of Anthony's arguments.\\nAt the outset of this discussion, we note that it is undisputed that neither Anthony nor First Bank Virgin Islands (\\\"FVI\\\"), as Anthony's predecessor in interest, took part in the negotiations which form the basis for the action in this case. (See Pl.'s Br. 7-8.) It is likewise undisputed that the only entity which contracted for the insurance was the Association and that neither Anthony nor FVI were named parties to any contract involved in this case with the defendants. Therefore, all of Anthony's causes of action are derivative of his status as an owner of a unit at Contant View and a member of the Association.\\nA. The trial court correctly determined that Anthony's claims are barred by the Association's settlement.\\nOn January 16, 2002, all of the plaintiffs other than Anthony, including the Association, settled with the defendants and signed a release of their claims against the defendants. The lower court dismissed Anthony's claims as barred by the release signed by the Association, because the Association represented the interests of all of the Contant View owners in the litigation and Anthony's claims were all derivative of his status as an owner. Anthony argues that under title 28 section 926 of the Virgin Islands Code, his right as an owner-in-common of the common areas of the condominium was greater than, and could not be affected by, the rights of the Association. Therefore, he argues, the Association's release of the defendants from all claims was not binding on him, and thus trial court erred. Section 926 gives the board of directors of any condominium association the right to bring litigation \\\"with respect to any cause of action relating to the common areas\\\" but this provision also expressly indicates that this authorization for an association to bring legal action does not \\\"limit[] the rights of any apartment owner.\\\" V.I. Code Ann. tit. 28, \\u00a7 926. All parties acknowledge that the Association has the right, under Virgin Islands Law, to purchase and maintain insurance coverage over the common areas. 28 V.I.C. \\u00a7 924.\\nThe defendants, on the other hand, stress that the Declaration that established the Contant View Condominium notes that\\nthe Board of Directors acting on behalf of the Association and all Unit Owners, shall have the exclusive right to bind such parties in respect to all matters affecting insurance carried by the Association, the settlement of a loss claim, and the surrender, cancellation, and modification of all such insurance.\\n(Supplemental App. 337 (emphasis added).) Since the negotiations surrounding the purchase of the insurance qualifies as a \\\"matter[] affecting insurance carried by the Association,\\\" the defendants argue that the exclusive right to bind applies and Anthony is bound to the Association's settlement with the defendants. (Def.'s Br. 10-11.)\\nAnthony is correct in asserting that Virgin Islands law provides an owner and the Association co-extensive rights to sue for damages to common areas. See 28 V.I.C. \\u00a7 926. Section 926 gives the Association, despite generally being an unincorporated entity that would not otherwise have the capacity to sue, a limited capacity to sue and be sued on behalf of the owners for issues concerning the property as a whole or dealing with two or more apartments within the property. See Bd. of Dirs. of Shibui v. McGuire, 16 V.I. 300, 307 (V.I. Super. Ct. 1979). Anthony rightly draws particular attention to the beginning of section 926, which authorizes the Association to sue for damages \\\"[w]ithout limiting the rights of any apartment owner.\\\" 28 V.I.C. \\u00a7 926. Therefore, as Anthony argues, no matter what the Association does in its decisions to sue, not sue, or settle its suits, an owner may bring an action in his individual capacity.\\nWhat Anthony fails to recognize, however, is that he has restricted his ability to exercise that right in \\\"all matters affecting insurance\\\" by purchasing a condominium pursuant to that covenant in the Declaration. Section 906 of title 28 states that \\\"[e]ach apartment owner shall comply strictly with the . . . covenants, conditions and restrictions set forth in the declaration . . . .\\\" Section 906 even authorizes the Association to bring injunctive action against the individual owners to enforce the covenants of the Declaration. 28 V.I.C. \\u00a7 906 (\\\"Failure to comply with any of the [covenants, conditions and restrictions set forth the in the declaration] shall be ground[s] for an action to recover sums due, for damages or injunctive relief or both maintainable by the manager or Board of Directors . . . .\\\"). In the Declaration, Anthony gave the Association the authority to bind him in all matters affecting insurance, and section 906 makes that covenant binding on him. Whatever right Anthony had under section 926 to sue before the Association settled was extinguished the moment the Association exercised its right to bind all of the owners in this \\\"matter[] affecting insurance.\\\"\\nSince Anthony is bound by the Association's settlement of all of the claims in the Complaint, we affirm the Superior Court's grant of summary judgment in the defendant's favor against all of Anthony's claims. Because the Superior Court correctly found that the release entitled the defendants to summary judgment against all of Anthony's claims, we need not consider whether Superior Court correctly determined that Anthony did not raise a genuine issue of material fact for each count individually.\\nB. The Superior Court erred by failing to address Anthony's outstanding motion to amend the pleadings to assert his crossciaims against McLaughlin, Pomerantz, and the Association.\\nThe Superior Court docket reflects that Anthony filed a motion for leave to amend the complaint on May 9, 2001 to assert crossclaims against McLaughlin, Pomerantz, and the Association. The Superior Court never ruled on Anthony's motion. On December 17, 2009, the Superior Court entered an Order ordering that the \\\"file may be closed.\\\" (App. 15.) Since the Superior Court dismissed all claims and closed its case, this Court construes the motion to amend as having been implicitly denied. See Addington v. Farmer's Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981) (\\\"We find that the district court's order of October 27, 1980, granting the defendant's motion for summary judgment and dismissing the plaintiff's suit, was so inconsistent with the plaintiff's request for leave to amend to state a new claim for relief as implicitly to deny the motion to amend.\\\").\\n\\\"[Wjhile the Superior Court may allow a party to 'amend any . pleading for any omission or defect therein'... such amendments are not as of right, but are vested in the sound discretion of the Superior Court.\\\" Harvey v. Christopher, 55 V.I. 565, 577-78 (V.I. 2011) (quoting SUPER. Ct. R. 8); see also Caribbean Healthways, Inc. v. James, 55 V.I. 691, 699 n.4 (V.I. Sept. 2, 2011) (\\\"[A]ny motion to amend filed on remand would not be granted as of right, but would be instead vested in the sound discretion of the trial court and its decision would be subject only to a review for an abuse of that discretion.\\\"). However, while \\\"the grant or denial of an opportunity to amend is within the discretion of the [trial court],\\\" the \\\"outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion . . . .\\\" Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962). Because the Superior Court refused the motion to amend \\\"without any justifying reason,\\\" it abused its discretion, and thus we remand the case for consideration of the motion to amend to add the crossclaims in a manner not inconsistent with this Opinion. See id. (listing \\\"undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.\\\" as reasons to deny a motion to amend).\\nV. CONCLUSION\\nBecause Dagou filed her motion to intervene as of right after the close of all discovery without any justification for her delay, the Superior Court did not abuse its discretion by finding her motion untimely. The Superior Court also correctly found that Anthony's claims were barred by the Association's settlement with the defendants, and thus its grant of summary judgment on all of those claims is affirmed. However, the Superior Court did abuse its discretion in failing to give a reason for its denial of Anthony's motion for leave to amend to file crossclaims against the Association, McLaughlin and Pomerantz. Thus we remand Anthony's case to the Superior Court for determination of the motion to amend in accordance with this Opinion.\\nAll of the defendants and the plaintiffs other than Anthony have filed appellee briefs opposing both Anthony and Dagou's appeals in the instant appeal. For clarity, we cite and refer to (he parties on appeal either by name or by their designation before the trial court (i.e. defendants or plaintiffs).\\nThe trial court construed Anthony's misrepresentation claim as negligent misrepresentation, instead of fraudulent misrepresentation, due to a failure on Anthony's part to claim any \\\"knowing\\\" misrepresentation of facts. (App. 11.) Anthony has accepted this construction on appeal.\\nThe third defendant, C.E. Brathwaite, Inc. appears to no longer be a viable entity from which Anthony can receive a judgment, thus the trial court dismissed all claims against it because continuing against it would be \\\"futile.\\\" (App. 7 n.l.) Anthony's Notice of Appeal does not include that dismissal in the issues before this Court.\\nAccording to Superior Court Rule 7, the Federal Rules of Civil Procedure apply in the Superior Court to the extent they are not inconsistent with any other Superior Court Rule. Federal Rule of Civil Procedure 56 was completely \\\"re-styled\\\" effective December 1,2010, and the language above states the current version. While this re-written version was not in effect when the trial court ruled in this case, since no substantive change was effected by the revision, the current language of the Rule is used in this opinion.\\nAlthough Dagou also argues that the Superior Court should have allowed her to intervene through permissive intervention, we limit our discussion to Dagou's motion to intervene as of right, pursuant to Federal Rule of Civil Procedure 24(a). Dagou's assertion that she should be granted permissive intervention was never placed before the Superior Court, and \\\"[i]t is well established that failure to raise an issue in the [trial] court constitutes a waiver of the argument on appeal.\\\" V. I. Port Auth. v. Joseph, 49 V.I. 424, 429 (V.I. 2008) (internal marks and citation omitted).\\nThe question of prejudice to the parties, which is the second requirement to find a motion timely, is generally tied intimately to the stage of the proceedings and courts often do not discuss them separately. Mountain Top Condo. Ass 'n, 72 F.3d at 370 (describing the stage of the litigation and the prejudice to the parties as \\\"inherently tied\\\"). Where there is a specific motion or settlement pending, however, the court may take into consideration the impact of the intervention on those pending matters. See, e.g., id. (discussing impact on \\\"deep-sixing\\\" settlement discussions); see also Choike v. Slippery Rock Univ. of Pa., 297 Fed. Appx. 138, 141 (3d Cir. 2008) (unpublished) (considering impact of intervention on pending settlement agreement); Liddell v. Bd. of Educ., 98 F.R.D. 548, 551 (E.D. Mo. 1983) (same). Here, because the trial court did not identify any specific motion or settlement which would have been affected by permitting Dagou to intervene, we will review the first and second timeliness requirements together.\\nDagou asserts that discovery deadlines were set by an order signed two months after her motion to intervene on July 20, 2001, and thus discovery was still open at the time of her motion. The order was actually signed and entered on July 20, 2000, approximately ten months before Dagou's motion to intervene. Dagou's confusion was likely the result of a typographical error in the lower court's opinion, where it refers to the July 20 order as being filed in 2001, not 2000. Regardless, the July 20,2000 order was later superseded by the dates set in the October 12,2000 order, and both that order and the docket show that discovery was closed by the time Dagou moved to intervene.\\nAnthony also argues that he has a due process right to assert the claims against the defendants, but his discussion of due process rights was never raised to the trial court, and is thus waived. V. I. PortAuth. v. Joseph, 49 V.I. at 428.\\nAnthony did not challenge the Settlement on its own terms. The terms of the Settlement are not before this Court on this appeal.\\nThis conclusion is in accord with the cases that have addressed the point in other jurisdictions and with the principles of judicial efficiency and finality. In Cigal v. Leader Development Corp., 408 Mass. 212, 557 N.E.2d 1119 (Mass. 1990), the Massachusetts Supreme Court noted that one of the purposes of a condominium association was to represent the owners in situations affecting the common areas/expenses, and that \\\"[p]iecemeal litigation by individual unit owners would frustrate the statutory scheme, in which the association acts as the representative of all owners in common.\\\" Id. at 1122. Accord Siller v. Hartz Mountain Assocs., 93 N.J. 370, 461 A.2d 568, 573 (N.J. 1983) (\\\"It would be impractical indeed to sanction lawsuits by individual unit owners in which their damages would represent but a fraction of the whole. If the individual owner were permitted to prosecute claims regarding common elements, any recovery equitably would have to be transmitted to the association to pay for repairs and replacements.\\\"); see also Calloway v. St. Paul Fire & Marine Ins. Co., No. Civ. A. 9801-ST-04742, 2000 Mass. App. Div. LEXIS 30, at *8 (Mass. Ct. App. Mar. 22, 2000) (unpublished) (affirming summary judgment against unit owner in favor of insurance company where insurance company paid association under the policy directly).\"}"
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+"{\"id\": \"3671546\", \"name\": \"WILBERT WILLIAMS, M.D., Plaintiff v. GOVERNMENT OF THE VIRGIN ISLANDS, BOARD OF MEDICAL EXAMINERS: THELMA R. WATSON, FRANK A. ODLUM, and JOSEPH DeJAMES, Defendants\", \"name_abbreviation\": \"Williams v. Government of the Virgin Islands\", \"decision_date\": \"2009-01-06\", \"docket_number\": \"Civil No. 2005-97\", \"first_page\": 443, \"last_page\": \"448\", \"citations\": \"51 V.I. 443\", \"volume\": \"51\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T02:17:40.836479+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WILBERT WILLIAMS, M.D., Plaintiff v. GOVERNMENT OF THE VIRGIN ISLANDS, BOARD OF MEDICAL EXAMINERS: THELMA R. WATSON, FRANK A. ODLUM, and JOSEPH DeJAMES, Defendants\", \"head_matter\": \"WILBERT WILLIAMS, M.D., Plaintiff v. GOVERNMENT OF THE VIRGIN ISLANDS, BOARD OF MEDICAL EXAMINERS: THELMA R. WATSON, FRANK A. ODLUM, and JOSEPH DeJAMES, Defendants\\nCivil No. 2005-97\\nDistrict Court of the Virgin Islands Division of St. Croix\\nJanuary 6, 2009\\nJOEL H. Holt, ESQ., St. Croix, USVI, For the plaintiff.\\nAquannette Y. Chinnery-Montell, Esq., Tamika Archer, Esq., Terrlyn Smock, Esq., Carol Thomas-Jacobs, Esq., St. Thomas, USVI, For the defendants.\", \"word_count\": \"1494\", \"char_count\": \"9285\", \"text\": \"G\\u00d3MEZ, Chief Judge\\nMEMORANDUM OPINION\\n(January 6, 2009)\\nBefore the Court is the motion of the plaintiff, Wilbert Williams (\\\"Williams\\\"), for a stay pending appeal.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nThe Court has already set forth the factual and procedural background of this case in great detail. See Williams v. Gov't of the V.I., 50 V.I. 852 (D.V.I. 2008). The Court therefore recites only those facts necessary for the resolution of Williams' motion.\\nWilliams has been a family medical doctor on St. Croix, U.S. Virgin Islands since 1983. After one of his patients died in 2005, the Virgin Islands Board of Medical Examiners (the \\\"Board\\\") first suspended his license for one year and subsequently revoked it for life. Williams sued the Board and its members (together, the \\\"Defendants\\\") in this Court, alleging various constitutional and Virgin Islands statutory violations. Williams sought a temporary retraining order (\\\"TRO\\\") to prevent the Board from enforcing its decisions regarding his license.\\nOn July 12, 2005, the Court granted Williams' motion for a TRO and enjoined the Board from enforcing its suspension of Williams' license. On March 30,2006, the parties stipulated on the record to an extension of the TRO until further order of the Court. The Court approved the parties' stipulation. As such, the TRO became, in effect, a preliminary injunction. See United States v. Bayshore Assocs., Inc., 934 F.2d 1391, 1397 (6th Cir. 1991).\\nThereafter, the Defendants moved to dismiss this matter on the basis of the abstention doctrine articulated by the Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). After an evidentiary hearing, the Court ruled that abstention from considering Williams' claims was appropriate.\\nWilliams has appealed the Court's ruling. He now seeks a stay pending appeal and asks the Court to reinstate the injunction. The Defendants have filed an opposition to the motion.\\nII. DISCUSSION\\nWhen evaluating a motion for a stay pending an appeal, a court should consider: (1) whether the stay applicant made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will suffer irreparable injury absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. See Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 95 L. Ed. 2d 724 (1987); Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 658 (3d Cir. 1991). \\\"[Tjhe traditional stay factors contemplate individualized judgments in each case.\\\" Hilton, 481 U.S. at 777.\\nIII. ANALYSIS\\nIn support of his request for a stay pending appeal and the restoration of the injunction, Williams makes no real effort to demonstrate how any of the stay factors favor him. Instead, Williams states that: he has practiced medicine in the Virgin Islands for many years with nary a complaint; he has abided by all of this Court's deadlines and will continue to do so as he pursues his appeal; the arguments he presented to this Court were not frivolous; and, since the Court dismissed this case, he has filed suit against the Defendants in the Superior Court of the Virgin Islands on the claims he asserted in this Court. Despite Williams' nearly total silence on the stay-pending-appeal analysis, the Court will determine whether Williams is entitled to the relief he seeks.\\nThe first factor strongly disfavors Williams. He has made no showing that he is likely to succeed on the merits on appeal. In determining that abstention was appropriate under Younger, the Court carefully considered Williams' evidence in support of his argument that the Board exhibited bad faith and was biased against him and that this matter presented exceptional circumstances warranting federal attention. The Court found that the evidence Williams adduced was insufficient to bring him within any of those well established exceptions to the Younger doctrine. The Court perceives no reason to disturb that finding now.\\nThe second factor likewise counsels against a stay. \\\"The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough.\\\" Wisconsin Gas Co. v. Fed. Energy Reg. Comm'n, 244 U.S. App. D.C. 349, 758 F.2d 669, 674 (D.C. Cir. 1985) (emphasis in original; citation omitted). \\\"Impact on business . . . 'may constitute irreparable harm only where the loss threatens the very existence of the movant's business.' \\\" In re Verizon Internet Servs., 257 F. Supp. 2d 244, 272 (D.D.C. 2003).\\nWilliams avers in an affidavit attached to his motion that he will suffer irreparable harm because he cannot practice medicine without a medical license. Williams' license was suspended, and later revoked, more than three years ago. Williams does not assert, nor does the record reflect, that he has suffered irreparable injury during that time. Furthermore, there is nothing in the record to suggest that Williams has not been practicing medicine notwithstanding the suspension and revocation of his license. Indeed, the testimony at the abstention hearing reflects that Williams has been practicing medicine throughout the pendency of this lawsuit but has been unable to submit insurance claims. In other words, Williams has lost one source of income from his medical practice. That loss hardly qualifies as irreparable injury for stay purposes. See, e.g., CityFed Fin. Corp. v. Office of Thrift Supervision, 313 U.S. App. D.C. 178, 58 F.3d 738, 747 (D.C. Cir. 1995) (noting that courts \\\"require the moving party to demonstrate at least 'some injury.' \\\"); CFTC v. Equity Fin. Group, LLC, Civ. No. 04-1512, 2007 U.S. Dist. LEXIS 34706, at *5 (D.N.J. May 11, 2007) (denying a motion to stay where, inter alia, the movant made no showing of irreparable injury).\\nThe third factor \\u2014 substantial injury to the non-moving party \\u2014 is a wash. The Defendants claim that to reimpose the injunction on them at this point would disserve the public. As discussed below, the Court does not dispute that claim. However, the Defendants fail to pinpoint any real injury they might suffer if they are enjoined anew from enforcing their decision regarding Williams' license. In 2006, the Defendants themselves stipulated on the record to an indefinite extension of this Court's TRO. That extension lasted for more than two years. The Court fails to see how the Defendants would be substantially injured if the injunction were reinstated during Williams' appeal. As such, this factor is neutral.\\nThe fourth factor militates strongly against a stay. As the Court noted in its ruling on abstention, \\\"the Virgin Islands has an overriding interest in the regulation of its medical professionals.\\\" Williams, 2008 U.S. Dist. LEXIS 99954, at *14 (citations omitted). The Court further found that in investigating Williams' conduct and later delicensing him, the Board had the public interest very much in mind. Id. at *32. These principles speak with as much force now as they did then. Indeed, the Legislature of the Virgin Islands created the Board to safeguard the \\\"public health, safety and welfare\\\" of Virgin Islands residents against \\\"the unprofessional, improper and incompetent practice of medicine[.]\\\" VI. CODE Ann. tit. 27, \\u00a7 2. The Board acted on Williams' license because it concluded, based on the evidence before it, that Williams' practice fell within at least one of those categories. To prohibit enforcement of the Board's decision now would thwart the public interest.\\nIV. CONCLUSION\\nFor the foregoing reasons, the Court will deny the motion for a stay pending appeal. An appropriate order follows.\\nWilliams filed his motion on December 15, 2008. Under normal circumstances, the Defendants' opposition had to be filed no later than December 31, 2008. See LRCi 7.1(e) (2008) (\\\"A party shall file a response within ten (10) days after service of the motion.\\\"). The Defendants did not file their opposition on that date. Instead, on that date, the Defendants filed a document entitled \\\"Notice of Intention to File Response to Plaintiff's Motion for Stay.\\\" The record does not reflect that the Defendants sought or were granted an extension of time. The Defendants filed their opposition on January 5, 2009. As such, the opposition is untimely.\\nIn addition, the effect, if any, of a stay is unclear. The record reflects that Williams' last license expired on September 30,2005. The record does not reflect that he has since renewed his license. Accordingly, preventing the enforcement of the Board's decisions to suspend and to revoke Williams' license, would serve no purpose. That is so because Williams has no license to suspend or to revoke. That circumstance also weighs against a stay.\"}"
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+"{\"id\": \"3671577\", \"name\": \"ELIJAH RITTER, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff\", \"name_abbreviation\": \"Ritter v. People\", \"decision_date\": \"2009-05-13\", \"docket_number\": \"S. Ct. Crim. No. 2007-087\", \"first_page\": 354, \"last_page\": \"373\", \"citations\": \"51 V.I. 354\", \"volume\": \"51\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Supreme Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T02:17:40.836479+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ELIJAH RITTER, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff\", \"head_matter\": \"ELIJAH RITTER, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff\\nS. Ct. Crim. No. 2007-087\\nSupreme Court of the Virgin Islands\\nMay 13, 2009\\nJOMO Meade, Esq., St. Croix, USVI, Attorney for Appellant.\\nTiffany V. Robinson, Esq., AAG (Argued), Dolace McLean, Esq., AAG, Dept, of Justice, St. Thomas, USVI, Attorney for Appellee.\", \"word_count\": \"7172\", \"char_count\": \"43996\", \"text\": \"HODGE, Chief Justice; SWAN, Associate Justice; and MEYERS, SR., Designated Justice.\\nOPINION OF THE COURT\\n(May 13, 2009)\\nPer CURIAM.\\nAppellant, Elijah Ritter (hereafter \\\"Ritter\\\"), challenges the Superior Court's July 5, 2007 Judgment and Commitment, which sentenced him to seven and one-half years of incarceration for possession of a dangerous weapon during the commission of a crime of violence and one year of suspended incarceration for assault in the third degree, to run consecutively. On appeal, Ritter argues that: (1) the trial court erred in denying his motion for judgment of acquittal on grounds of insufficient evidence; (2) expert testimony as to the medical treatment of the victim was improperly admitted; and (3) his constitutional right to a fair trial was violated when the trial court failed to dismiss the venire panel or instruct the petit panel during the trial. For the reasons which follow, we will affirm the Judgment and Commitment.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nOn the morning of December 2, 2005, Ritter and Joshua Powell (hereafter \\\"Powell\\\") were involved in a physical altercation at St. Croix Educational Complex High School, where they were both students. On his way to his second period class, Ritter walked through an area of the school where students from the Williams Delight neighborhood gather. There was conflicting testimony as to whether the fight began because Ritter brushed up against Powell or because Powell tapped Ritter on his shoulder. After the two students exchanged words, Powell punched Ritter in his face, causing Ritter to fall to the ground. As he got back up, Powell punched Ritter several more times. The students then briefly parted but the fight continued. Powell held Ritter in a chokehold, and, according to some of the witnesses, Ritter held Powell in a lock around the middle of Powell's body. Eventually Ritter took a knife from his pocket and stabbed Powell several times. Ritter broke free of Powell's hold and ran from the area of the fight. Powell ran to the office where the principal, upon seeing his condition, drove him to the hospital in his personal vehicle. At the hospital, Powell was treated for numerous stab wounds to his back, neck, stomach, and chest including one that left his ear hanging loose and one that caused his lung to collapse.\\nAt trial, Ritter testified that he used the knife only because he was dazed, blood was trickling in his eyes, and he was unable to breathe due to the chokehold. Ritter additionally testified that he was scared because the area where the fight occurred was the Williams Delight \\\"posse\\\" turf where Powell and his friends gathered and because he had been told during first period that Powell was after him. (Trial Tr., 95, Nov. 8, 2006.) Powell, on the other hand, testified that he initially punched Ritter only because Ritter had come toward him aggressively with his hand in his pocket.\\nIn December 2005, the People of the Virgin Islands (hereafter \\\"the People\\\") filed an Information, charging Ritter with assault in the first degree, in violation of title 14, section 295(1) of the Virgin Islands Code, possession of a dangerous weapon \\u2014 a knife \\u2014 \\u2022 during the commission of a crime of violence \\u2014 assault in the first degree \\u2014 in violation of title 14, section 2251(a)(2)(B), and assault in the third degree, in violation of title 14, section 297(2). On November 3, 2006, the People filed an Amended Information, adding the charge of possession of a dangerous weapon during the commission of a crime of violence \\u2014 assault in the third degree.\\nThe trial began on November 6, 2006. At the end of the People's case-in-chief, Ritter moved for a judgment of acquittal, which the trial judge denied. Ritter again moved for a judgment of acquittal at the end of his case-in-chief, which the court also denied. Ritter also requested, and the court instructed, the jury on his theory of self-defense. On November 10, 2006, the jury returned a verdict that acquitted Ritter of assault in the first degree (Count 1) and the accompanying charge of possession of a dangerous weapon during a crime of violence (Count 2) but found Ritter guilty of assault in the third degree (Count 3) and the accompanying charge of possession of a dangerous weapon during a crime of violence (Count 4). By motion filed on December 27, 2006, Ritter requested a judgment of acquittal, or, alternatively, a new trial. In a March 3, 2007 Memorandum Opinion, the court denied Ritter's motions.\\nIn a July 5, 2007 Judgment and Commitment, the trial court sentenced Ritter to one year of suspended incarceration for count three and seven and one-half years of incarceration for count four, to be served consecutively. On July 11, 2007, Ritter filed a notice of appeal.\\nII. DISCUSSION\\nA. Jurisdiction and Standards of Review\\n\\\"The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final decrees [and] final orders of the Superior Court. . . .\\\" V.I. CODE Ann. tit. 4 \\u00a7 32(a) (1997). Because the Judgment and Commitment was entered on July 5, 2007 and the notice of appeal was filed on July 11, 2007, this appeal is timely. See V.I. S. CT. R. 5(b)(1) (\\\"In a criminal case, a defendant shall file the notice of appeal in the Superior Court within ten days after the entry of... the judgment or order appealed from.\\\").\\nOur standard of review in examining the Superior Court's application of law is plenary, while findings of facts are reviewed only for clear error. St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (V.I. 2007). We review the trial court's decision regarding admissibility of evidence for abuse of discretion. See Corriette v. Morales, 50 V.I. 202, 205 (2008). Finally, in Latalladi v. People, Crim. No. 2007-090, 2009 V.I. Supreme LEXIS 10, *13 (V.I. Feb. 11, 2009), we clarified the standard with which we review a challenge to the sufficiency of the evidence leading to conviction:\\n\\\"When appellants challenge the sufficiency of the evidence presented at trial, it is well established that, in a review following conviction, all issues of credibility within the province of the jury must be viewed in the light most favorable to the government.\\\" United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (citing Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942)). The appellate court \\\"must affirm the convictions if a rational trier of fact could have found the defendants guilty beyond a reasonable doubt and the convictions are supported by substantial evidence.\\\" Id. This evidence \\\"does not need to be inconsistent with every conclusion save that of guilt\\\" in order to sustain the verdict. United States v. Allard, 240 F.2d 840, 841 (3d Cir. 1957) (citing Holland v. United States, 1954, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150, rehearing denied 348 U.S. 932, 75 S. Ct. 334, 99 L. Ed. 731 (1955)). An appellant who seeks to overturn a conviction on insufficiency of the evidence grounds bears \\\"a very heavy burden.\\\" United States v. Losada, 674 F.2d 167, 173 (2d Cir. 1982).\\nB. The Trial Court Did Not Err in Denying Ritter's Motion for Judgment of Acquittal\\nThe jury found Ritter guilty of assault in the third degree, in violation of title 14, section 297(2), and possession of a dangerous weapon during the commission of a crime of violence, in violation of title 14, section 2251(a)(2)(B). As his first ground for appeal, Ritter argues that, because there was insufficient evidence from which the jury could convict him of either offense, the trial court erred in denying his motion for judgment of acquittal.\\n1. There Was Sufficient Evidence to Convict Ritter of Assault in the Third Degree as Charged in Count Three\\nAs to Count Three, assault in the third degree, Ritter argues that the People failed to prove beyond a reasonable doubt that Ritter intended to harm Powell and that Ritter was not acting in self-defense. In support, Ritter points to the testimony of all of the People's witnesses, including Powell, that Powell was the aggressor in the fight. He contends that he stabbed Powell only to free himself of the chokehold, which was preventing him from breathing properly, and that there was no evidence that Ritter continued to stab Powell once he was released from the chokehold. The People counter that Powell's testimony and the medical evidence as to the severity of Powell's injuries are sufficient evidence from which the jury could conclude that Ritter's use of the knife was intentional and disproportionate to the threat posed by Powell's hands.\\nAssault in the third degree, as charged in this case, is defined as an assault upon \\\"another with a deadly weapon.\\\" 14 V.I.C. \\u00a7 297(2). Assault is itself defined as the attempt to commit a battery or the making of \\\"a threatening gesture showing in itself an immediate intention coupled with the ability to commit a battery.\\\" 14 V.I.C. \\u00a7 291. As the trial court correctly pointed out, Ritter not only attempted to commit a battery, but was successful in doing so. Because Ritter admitted at trial that he used a knife to stab Powell several times, our inquiry on appeal centers on whether the People sufficiently disproved Ritter's self-defense theory. See Gov't of the Virgin Islands v. Smith, 27 V.I. 332, 949 F.2d 677, 680 (3d Cir. 1991) (prosecution must prove beyond a reasonable doubt that defendant did not act in self-defense).\\nTitle 14, section 293(a)(6) states that violence used against a person does not amount to an assault when used in self-defense against unlawful violence to his person. Importantly, section 293(b) clarifies that \\\"where violence is permitted to effect a lawful purpose, only that degree of force must be used which is necessary to effect such purpose.\\\" Therefore, we must determine whether there was sufficient evidence from which the jury could conclude that Ritter's use of the knife was greater force than necessary to defend against Powell's attack with his hands. We note that, in denying Ritter's motion for judgment of acquittal, the trial court specifically concluded that \\\"a reasonable jury could have found that the resistance or retaliation [by Ritter] . . . was excessive or out of proportion to the danger, and therefore not justified.\\\" (Mem. Op. 5.)\\nAs Ritter correctly points out, overwhelming testimony, including Powell's own testimony, indicates that Powell was the initial aggressor. However, as section 293(b) provides, it was the jury's duty to determine whether Ritter used more force than necessary to escape from Powell's headlock. The jury heard testimony from Powell that Ritter stabbed him many times about his body, as well as extensive testimony from Dr. Moorman regarding the number and severity of the stab wounds Powell suffered, including testimony that one stab wound caused Powell's lung to collapse. The jury was also presented with photographs of Powell's injuries and testimony from one witness that, after the initial struggle, Ritter and Powell separated momentarily before the fight continued. In contrast, Ritter testified that he pulled the knife from his pocket only because he could not breathe from Powell's headlock, was dizzy, and had blood running into his eyes from Powell's punches.\\nFrom the testimonial and photographic evidence concerning Powell's stab wounds in combination with the other evidence, a reasonable jury could undoubtedly have found that Ritter's use of the knife was greater force than necessary to escape Powell's hold. See, e.g., Illinois v. Franklin, 74 Ill. App. 2d 392, 220 N.E.2d 872, 874-75 (Ill. App. Ct. 1966) (\\\"It was . . . proper for the State to present evidence of the number of stabbings and the injuries sustained by the victim of the assault in order to show that the force used by defendant was unreasonable even if such force was being utilized in defense of his person.\\\"); Morrison v. Indiana, 613 N.E.2d 865, 868 (Ind. Ct. App. 1993) (\\\"Based on the extent and severity of [the victim's] injuries, the jury could have believed the degree of force [defendant] exerted exceeded the bounds justified to defend himself.\\\"); Louisiana v. Dietrich, 567 So. 2d 623, 626-27 (La. Ct. App. 1990) (evidence that defendant stabbed victim sixteen times in throat, chest and upper back supports lack of self-defense). Additionally, the jury may well have found it significant that Ritter did not endeavor to retreat when the two boys separated in the middle of the fight. See, e.g., Weiand v. Florida, 732 So. 2d 1044, 1049 (Fla. 1999) (recognizing common law duty to retreat). Viewing the evidence in the light most favorable to the People, as the standard of review requires, we hold that substantial evidence supports the jury's decision that Ritter committed assault in the third degree.\\n2. There Was Sufficient Evidence to Convict Ritter of Possession of a Dangerous Weapon as Charged in Count Four\\nAs to his Count Four conviction for possession of a dangerous weapon during the commission of a crime of violence, Ritter similarly argues that the People failed to prove beyond a reasonable doubt that he did not act in self-defense. Specifically, he contends that \\\"[b]ut for Powell's aggression, the knife would not have been used\\\" and that \\\"no reasonable fact finder could find that the People established [that] Ritter possessed the knife with the intent [to] unlawfully hurt or harm Powell.\\\" (Appellant's Br. 17.)\\nTitle 14, section 2251(a)(2)(B) criminalizes the possession of a dangerous weapon during the commission or attempted commission of a crime of violence, as defined in title 14, section 2253(d). Section 2253(d) refers to title 23, section 451(e), which specifically defines assault in the third degree as a crime of violence. As a knife is defined as a dangerous weapon and as assault in the third degree is defined as a crime of violence, the only remaining question on this issue is whether the evidence sufficiently proves that Ritter did not act in self-defense. As discussed previously with respect to Ritter's Count Three conviction, the jury could reasonably have found that Ritter used a greater amount of force than necessary in defending himself from Powell's headlock. See, e.g., Franklin, 220 N.E.2d at 874-75; Morrison, 613 N.E.2d at 868. Thus, again mindful of our standard of review, we hold that the jury's guilty verdict on Count Four was supported by substantial evidence. Accordingly, the trial court did not err in denying Ritter's motion for judgment of acquittal with respect to either count. See Gov't of Virgin Islands v. Joseph, 770 F.2d 343, 345 (3d Cir. 1985).\\nC. The Admission of the Treating Physician's Expert Opinion was Harmless Error\\nDuring trial preparation, Ritter sent the People a discovery letter dated December 28, 2005, requesting disclosure of any expert witnesses the People intended to call at trial. However, no expert witnesses were disclosed. Consequently, Ritter orally moved in limine at trial to preclude the People from eliciting any expert opinion from Dr. Gregory Moorman, the physician who treated Powell at the hospital, regarding the life-threatening nature of Powell's injuries. Citing to Federal Rule of Criminal Procedure 16(a)(1)(G) and Federal Rules of Evidence 702, 703, and 705, Ritter argued undue prejudice and a denial of due process because he was unable to get a rebuttal expert at such a late stage in the proceedings. Ritter additionally noted that in prior discussions with the People he had been told that Dr. Moorman would testify only as a treating physician and not as an expert.\\nAt trial, the People argued that the local evidence rules, particularly title 5, section 911 of the Virgin Islands Code, provide that when a witness is not testifying as an expert he may testify in the form of opinion or inference as long as the judge finds the testimony rationally based on the perception of the witness and helpful to a clear understanding of his testimony or determination of a fact at issue. The People maintained that the number and severity of Powell's injuries was relevant to whether Ritter intended to murder Powell when he assaulted him with the knife, i.e. whether Ritter committed first degree assault, as charged in Count One of the Information. Accordingly, the People concluded that the court could inquire of Dr. Moorman as a treating physician without qualifying him as an expert and without requiring compliance of Federal Rule of Criminal Procedure 16's notice requirement.\\nAfter hearing arguments from both parties, the court stated that the testimony as to the severity of the injuries is not an issue of expert testimony but rather of opinion testimony and that the local evidence rules allow a witness not testifying as an expert to testify in the form of opinion if it is limited to facts personally known to him and facts within the scope of his special knowledge, skill, and experience. The judge ultimately held that he would not allow Dr. Moorman to give any formal, expert opinion, but he would allow the doctor to testify as a treating physician. The court also held that title 5, section 911 of the Virgin Islands Code governs in this case, rather than the Federal Rules of Evidence. Ritter objected to this ruling.\\nOn appeal, Ritter argues that admission of Dr. Moorman's testimony that Powell's injuries were life-threatening and that he could have died within thirty minutes after Powell's lung collapsed was clear error, because there was neither notice by the People nor qualification of Dr. Moorman as an expert. The People counter that Dr. Moorman's testimony as to the life-threatening nature of Powell's injuries was not expert testimony, because it is \\\"merely common medical knowledge that would be within the province of an emergency room surgeon who routinely works on trauma patients.\\\" (Appellee's Br. at 23.)\\n1. The Trial Court Erred in Allowing Dr. Moorman to Testify Regarding the Life- Threatening Nature of Powell's Injuries\\nFirst, we briefly address the parties' disagreement regarding the appropriate evidentiary rule to be applied in this case. Specifically, the trial judge, in agreement with the People, concluded that title 5, section 911 of the Virgin Islands Code applies to expert testimony in the Superior Court, whereas Ritter argued that Federal Rules of Evidence 702, 703, and 705 are applicable.\\nSuperior Court Rule 7 states that \\\"[t]he practice and procedure in the [Superior] Court shall be governed by the Rules of the [Superior] Court and, to the extent not inconsistent therewith, by . . . the Federal Rules of Evidence.\\\" (emphasis added). Importantly, the Legislature of the Virgin Islands has adopted virtually all of the 1953 version of the Uniform Rules of Evidence, codified as 5 V.I.C. \\u00a7 771-94. See 5 V.I.C. \\u00a7 772 (\\\"[Chapter 67] shall apply in every proceeding, conducted by or under the supervision of a court, in which evidence is produced.\\\"). Notably, these rules of evidence, which have not been repealed, treat expert testimony differently than the federal rules. In particular, Federal Rule of Evidence 701 includes the additional requirement that non-expert witnesses may testify in the form of opinion only if the opinion is not based on \\\"scientific, technical, or other specialized knowledge.\\\" Title 5, section 911(1) of the Virgin Islands Code, however, contains no such specific requirement. Accordingly, it appears that the two rules are inconsistent and that a conflict exists as to the standards by which such evidence is to be admitted in trials in the Superior Court.\\nIn Phillips v. People, Crim. No. 2007-037, 2009 V.I. Supreme LEXIS 16, *22 (V.I. Mar. 13, 2009), this Court recognized that Virgin Islands courts have not been consistent in their decisions regarding the evidentiary rules to be applied in local criminal cases. After extensive analysis, we held that the rules adopted by the Legislature apply to criminal cases in the Superior Court. Accordingly, in this case, we apply, as did the trial judge, the expert testimony provisions contained in title 5, section 911.\\nHaving determined that the title 5, section 911 applies in this case, we now address Ritter's contention that expert opinion testimony was admitted despite the People's failure to disclose any expert and despite the fact that Dr. Moorman was never qualified as an expert. When describing the various wounds he observed on Powell's body, Dr. Moorman testified that \\\"[a]nytime you have a zone two neck injury . you know it's life-threatening and needs to be explored.\\\" (Trial Tr., 136, Nov. 9, 2006). As stated above, the People contend that Dr. Moorman's testimony was admissible as a non-expert opinion because it was based on his perception of Powell's injuries and aided in the determination of a fact in issue. See 5 V.I.C. \\u00a7 911(1).\\nUnlike the correlating Federal Rule of Evidence 701, title 5, section 911(1) does not have the third requirement that lay testimony may not be based on scientific, technical, or other specialized knowledge. See, e.g., Musser v. Gentiva Health Servs., 356 F.3d 751, 756 n. 2 (7th Cir. 2004) (\\\"[Under the federal rule] a treating doctor . is providing expert testimony if the testimony consists of opinions based on 'scientific, technical, or other specialized knowledge' regardless of whether those opinions were formed during the scope of interaction with a party prior to litigation.\\\" Significantly, however, title 5, section 911(2) indirectly incorporates the same standard as Federal Rule 701 for determining when testimony is considered expert:\\nIf the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (a) based on facts or data perceived by or personally known or made known to the witness at the hearing and (b) within the scope of the special knowledge, skill, experience or training possessed by the witness.\\n(emphasis added). Thus, when a witness testifies in the form of an opinion regarding a fact that is \\\"within the scope of [his] special knowledge, skill, experience, or training,\\\" he is not testifying as a non-expert.\\nNotably, other courts construe testimony that an injury is life-threatening as expert testimony. See, e.g., Bolanos v. United States, 938 A.2d 672, 678-79 (D.C. 2007) (\\\"There was no expert testimony presented regarding the effects of the knife wounds, or whether these types of wounds could be considered life-threatening.\\\"); Delaware v. Tice, Nos. IK91-09-0310-R1-IK91-09-0314-RI, 1995 Del. Super. LEXIS 373, *14-15 (Del. Super. Ct. Aug. 21, 1995) (medical expert explained full extent of victim's injuries and testified that injury to spine was life-threatening); Hawaii v. Ah Choy, 70 Haw. 618, 780 P.2d 1097, 1102 (Haw. 1989) (\\\"Members of the jury, not being trained in medicine, benefited from the expert testimony on the life threatening nature of stab wounds to the internal structures located close to the wound actually inflicted.\\\"); Kansas v. Rogers, 78 P.3d 497, at *2 (Kan. Ct. App. 2003) (unpublished) (nurse's expert testimony that injuries were life-threatening was \\\" 'within the scope of the special knowledge, skill, experience or training possessed by the witness.' \\\" (construing rule identical to 5 V.I.C. \\u00a7 911(2))); North Carolina v. Bearthes, 329 N.C. 149, 405 S.E.2d 170, 177 (1991) (permitting expert testimony by medical examiner who performed autopsy as to life-threatening nature and severity of wounds); Ohio v. Purdon, No. CA97-03-009, 1997 Ohio App. LEXIS 4982, *5 (Ohio Ct. App. Nov. 10, 1997) (\\\"The state also presented the expert testimony concerning the seriousness of Howard's injuries. Dr. Scott Longevin, the doctor who initially treated Howard, testified that Howard's head injury was life threatening.\\\"); Johnston v. Texas, 150 S.W.3d 630, 639 (Tex. App. 2004) (\\\"Expert testimony confirmed that the injury was life-threatening . . . .\\\").\\nIn this case, Dr. Moorman testified that Powell's neck injury was life-threatening and that a deep stab wound to the chest can cause the lung to deflate and push the lung against the heart, moving the heart out of place, likely resulting in death within fifteen minutes. (Trial Tr., 128-29, Nov. 9, 2006.) As a treating physician, Dr. Moorman may testify to the condition discovered in examining Powell and to the particular treatment rendered without being considered an expert witness. However, his statements regarding the life-threatening nature of Powell's injuries, the effect that a deflated lung has on the heart, and the length of time in which a victim of a stab wound to the chest is likely to die are clearly based upon his special knowledge, experience, and training. Thus, in accordance with title 5, section 911 and the multitude of jurisdictions construing such testimony as expert opinion, we hold that Dr. Moorman's statement as to the life-threatening nature of Powell's injuries was expert opinion, because it was \\\"within the scope of [his] special knowledge, skill, experience, or training\\\" as a trauma surgeon. Accordingly, the trial court erred in admitting Dr. Moorman's expert opinion testimony.\\n2. The Trial Court's Error in Admitting the Expert Opinion was Harmless\\nImportantly, holding that the trial court erred in admitting Dr. Moorman's expert opinion does not end our inquiry. Instead of claiming error in the trial judge's failure to qualify Dr. Moorman as an expert prior to permitting his expert testimony, Ritter contends that the People's failure to provide notice that Dr. Moorman would give expert testimony resulted in prejudice to Ritter. Consequently, we must determine whether the admission of Dr. Moorman's statement prejudiced Ritter's case so as to require a reversal of his convictions.\\nFederal Rule of Criminal Procedure 16(a)(1)(G) states:\\nAt the defendant's request, the government must give to the defendant a written summary of any testimony that the government intends to use under [the rules of evidence governing expert testimony] during its case-in-chief at trial____The summary provided under this subparagraph must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.\\nAs stated above, Ritter's discovery demand letter requested from the People disclosure of any expert opinions, but the People failed to provide any such disclosure. Federal Rule of Criminal Procedure 16(d)(2) provides that when a party fails to comply with Rule 16 the court may order the People to provide disclosure, grant a continuance, exclude the undisclosed testimony, or enter any other order that is just under the circumstances. In accordance with the rule's permissive language, a trial judge has broad discretion in determining whether exclusion of the undisclosed testimony is the appropriate remedy for the People's failure to disclose. See United States v. Lopez, 44 V.I. 311, 271 F.3d 472, 483 (3d Cir. 2001) (stating thatRule 16(d)(2)'s use of the word \\\"may\\\" means that district court is not required to do anything when the state fails to disclose an expert); United States v. Sarracino, 340 F.3d 1148, 1170 (10th Cir. 2003) (abuse of discretion standard for judge's decision under Rule 16(d)(2)).\\nHowever, even if we were to accept that the trial court erred in not granting Ritter's motion to exclude Dr. Moorman's expert testimony regarding the life-threatening nature of Powell's injuries, this Court must determine whether such an error was harmless. As we stated in St. Louis v. People, \\\"[w]ithout a showing of prejudice, the error, if any, is harmless.\\\" No. 2007-086, 2008 V.I. Supreme LEXIS 40, *7 (V.I. Oct. 10, 2008). See also United States v. Mathis, 264 F.3d 321, 342 (3d Cir. 2001) (\\\"Our final step is to consider whether the District Court's error in excluding parts of Dr. Loftus's testimony was legally harmless. . . This court has held that a non-constitutional error committed at trial does not warrant reversal in circumstances where it is highly probable that the error did not contribute to the judgment. And the applicable standard for [h]igh probability requires that we have a sure conviction that the error did not prejudice the defendants.\\\" (internal quotations and citations omitted)); United States v. Sarracino, 340 F.3d 1148, 1171 (10th Cir. 2003) (applying harmless error standard after concluding evidence improperly admitted)); United States v. Jones, 913 F.2d 174, 178 (4th Cir. 1990) (analyzing whether erroneous use of expert testimony was harmless); Ferguson v. United States, 866 A.2d 54, 65 (D.C. 2005) (determining whether defendant was prejudiced by government's failure to comply with Rule 16). In considering whether there is harmless error, we note that \\\"unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is not required.\\\" Schneble v. Florida, 405 U.S. 427, 432, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972); see also Mathis, 264 F.3d at 342 (\\\"[W]e may be firmly convinced that the error was harmless without disproving every 'reasonable possibility' of prejudice.\\\").\\nIn this case, Ritter does not point to any particular prejudice that he suffered as a result of the admission of Dr. Moorman's testimony that Powell's injuries were life-threatening. He summarily states that the testimony \\\"affected [his] substantive rights and was unduly prejudicial\\\" and that \\\"[w]hile he cannot state with certainty the effect the testimony had on the jury's deliberation, it is fair to conclude that it was adverse.\\\" (Appellant's Br. 18-19.) Our examination of the record, however, reveals that there is no reasonable possibility that the admission of Dr. Moorman's expert opinion prejudiced Ritter's case. Considering the acceptable portion of Dr. Moorman's non-expert testimony as Powell's treating physician, as well as the testimony of various other witnesses, a jury could reasonably have concluded that Powell's injuries were life-threatening. See, e.g., United States v. Rainbow, 178 Fed. Appx. 622, 625 (8th Cir. 2006) (holding that jury could reasonably conclude that victim's injuries were life-threatening from photographs depicting and testimony explaining that beating by defendant caused \\\"a scalp laceration, intercranial bleeding, a fractured nose, and a fractured orbital socket\\\"); Todd v. Maryland, 161 Md. App. 332, 868 A.2d 944, 954 (Md. Ct. Spec. App. 2005) (holding that expert opinion not necessary for jury to conclude that injuries were life-threatening because testimony and medical records established that victim suffered \\\"severe cranial injury\\\" that bled profusely and required several surgeries to repair); Lambert v. Palmateer, 187 Ore. App. 528, 69 P.3d 725, 730 (Or. Ct. App. 2003) (noting that expert testimony is unnecessary when the substantial risk of death posed by an injury is apparent to a layperson and citing case where it was within jury's common experience to infer that a gunshot wound to the chest with a large caliber handgun from a distance of no more than three feet posed a substantial risk of death).\\nIn this case, Dr. Moorman testified extensively as to the type and location of Powell's injuries, including a collapsed lung. In addition, Powell's medical records, as well as numerous photographs depicting the stab wounds, were admitted into evidence. The jury also heard testimony from the school's principal as to the substantial amount of blood flowing from Powell's neck and back wounds. Therefore, even if the trial court had precluded Dr. Moorman's testimony as to the life-threatening nature of Powell's wounds, the jury reasonably could have concluded from the ample other testimony that his injuries were life-threatening. See Schneble, 405 U.S. at 432, 92 S. Ct. at 1060 (\\\"[W]e conclude that the 'minds of an average jury' would not have found the State's case significantly less persuasive had the testimony as to Snell's admission been excluded. The admission into evidence of these statements, therefore, was at most harmless error.\\\"). Moreover, we note that Dr. Moorman's testimony regarding the life-threatening nature of Powell's injuries was offered to prove the intent to murder element of first degree assault, a charge for which the jury found Ritter not guilty. See, e.g., Montana v. Teters, 321 Mont. 379, 91 P.3d 559, 563 (Mont. 2004) (error harmless because defendant acquitted of charge for which alleged erroneous evidence was admitted). Accordingly, as there is no reasonable likelihood that Ritter suffered prejudice from the admission of Dr. Moorman's expert opinion, the trial judge's error in admitting the expert opinion testimony was harmless.\\nD. Ritter's Right to an Fair Trial Was Not Violated\\nAs his final grounds for appeal, Ritter maintains that his right to a fair trial by an impartial jury was violated when the trial court failed to dismiss the jury venire or instruct the petit panel that a defendant has a right to cross-examine witnesses. During jury selection, while the court was in recess, an assistant public defender told defense counsel that he had overheard one member of the jury venire express an opinion that Ritter was guilty before the trial had begun. At a side bar conference during voir dire, however, defense counsel was unable to identify which prospective juror allegedly made the statement. Thus, the court did not dismiss the venire panel. Notably, after the parties had exercised their challenges and the petit panel was seated, the trial court asked whether the parties were satisfied with the jury, and defense counsel answered in the affirmative.\\nRitter additionally argues that his right to a fair trial was violated when the court refused to immediately instruct the jury after defense counsel heard several members \\\"sucking their teeth\\\" and uttering comments, such as \\\"[W]hy you asking that question, how she supposed to know,\\\" during defense counsel's cross-examination of two of the People's witnesses. (Trial Tr., 91, Nov. 9, 2006.) Defense counsel specifically requested an immediate jury instruction that Ritter has a right to cross-examine witnesses and that the jury should keep an open mind until the close of all the evidence. The trial judge stated that he would give the jury such an instruction at a later time when he usually instructs the jury. Additionally, the trial judge stated that the jury was merely reacting to the heated exchange between defense counsel and the People's witnesses. In denying Ritter's post-trial motion for a new trial, the trial court also noted that it had already \\\"instructed the jury that questions and statements by lawyers are not evidence and further informed the jury that lawyers had a duty to object to evidence and that jurors should not be prejudiced in any way against either the lawyer or his client.\\\" (Mem. Op. 6.) During final instructions, the court similarly instructed the jury on the adversarial role of lawyers.\\nOn appeal, the People contends that the trial court did not err in denying Ritter's motion for a new trial because Ritter did not demonstrate that the jury was actually or impliedly biased. When a defendant asserts a general Sixth Amendment challenge as to the partiality of a jury based upon circumstances occurring outside of voir dire, \\\"the remedy . is a hearing in which the defendant has the opportunity to prove actual bias.\\\" Smith v. Phillips, 455 U.S. 209, 215, 102 S. Ct. 940, 945, 71 L. Ed. 2d 78 (1982); see also Fitzgerald v. Greene, 150 F.3d 357, 364 (4th Cir. 1998). However, because \\\"a convicted defendant should not be allowed to waste the time of a [trial] judge or inconvenience jurors merely to conduct a fishing expedition,\\\" a hearing is necessary only when reasonable grounds exist to believe that the jury may have been exposed to an extraneous influence. United States v. Moten, 582 F.2d 654, 667 (2d Cir. 1978); see, e.g., United States v. Old Chief, 121 F.3d 448, 451 (9th Cir. 1997) (\\\"Old Chief argues that the district court should have conducted [a post-verdict evidentiary] hearing to determine whether [a] juror's whispers during the jury poll improperly influenced the jury's deliberations. Despite Old Chief's attempt to characterize the whispers of one juror to another during the jury poll as an 'outside influence,' he made no showing of improper external influence sufficient to warrant a post-verdict evidentiary hearing.\\\"); United States v. Barshov, 733 F.2d 842, 851 (11th Cir.1984) (\\\"The duty to investigate arises only when the party alleging misconduct makes an adequate showing of extrinsic influence to overcome the presumption of jury impartiality.\\\"); United States v. Barber, 668 F.2d 778, 787 (4th Cir. 1982) (\\\"[Sjomething more than such an unverified conjecture [of juror bias] is required to justify grant of a new trial.\\\").\\nIn this case, both at trial and on appeal, Ritter failed to raise any indication of the sort of extraneous information or outside influence that may have prejudiced the empanelled jury against him. See, e.g., Capella v. Baumgartner, 59 F.R.D. 312, 315 (S.D. Fla. 1975) (no post-verdict evidentiary hearing necessary without some indication that juror misconduct actually occurred); United States v. Hall, 424 F. Supp. 508, 538-39 (W.D. Okla. 1975) (\\\"Defendants cite no 'extraneous prejudicial information' or 'outside influence' having been improperly brought to the jury's attention . . . [T]he desired interviews of the trial jurors on these assertions . are obviously sought for the purpose of browsing among the thoughts of the members of the jury interviews which would amount to a pure fishing expedition inspired by adverse verdicts of conviction. The Defendants cite no authority that permits such an excursion unsupported at the outset by any allegation of impropriety.\\\"); but see Moten, 582 F.2d at 666 (\\\"[T]he instant case is an unusual one . because a series of events [including improper private contact with a juror, who was ultimately excused,] occurred at trial that support a reasonable suspicion that the jury may have been corrupted. An inquiry is certainly warranted.\\\"). In fact, Ritter admits on appeal that he \\\"cannot state with certainty whether extraneous information or outside influence improperly bore upon the jury decision.\\\" (Appellant's Br. at 20.)\\nMoreover, when asked by the trial judge, defense counsel could not identify which jurors allegedly expressed bias against him during jury selection. In fact, he was unable to state whether those jurors had later been seated on his petit panel. As to the jurors on the petit panel, the allegation of bias stemmed solely from defense counsel's interpretation of the jury's reaction to his cross-examination of the People's witnesses. In the absence of any evidence of juror misconduct, it is a more reasonable conclusion that the teeth-sucking and murmurings by the certain jurors were a reaction to defense counsel's aggressive questioning of the People's witnesses, as the trial judge opined. Furthermore, the only remedy sought by Ritter at trial was a generalized instruction that the jury should keep an open mind and that a defendant has a right to cross-examine the People's witnesses. Notably, the trial court twice instructed the jury about the adversarial roles of attorneys and that the jury should consider only the testimony and other admitted evidence in making their decision. Finally, that the jury did not convict Ritter of the greater charge of assault in the first degree diminishes Ritter's claim that the jury was biased against him. See United States v. DiSalvo, 34 F.3d 1204, 1226 (3d Cir. 1994) (\\\"[W]hen the jury is instructed to base its verdict solely on the evidence and it acquits the defendant of certain counts, such factors indicate that the jury was not biased.\\\").\\nBecause Ritter did not raise the slightest indication that the jury was improperly influenced by extraneous information and could not state which, if any, particular juror was biased against him, there is no adequate ground upon which to hold that the trial court erred in denying his motion for a new trial. Accordingly, we hold that Ritter's right to an impartial jury was not violated.\\nIII. CONCLUSION\\nBecause there was sufficient evidence to support Ritter's Count Three and Count Four convictions, this Court holds that the trial court did not err in denying Ritter's motion for a judgment of acquittal. Additionally, as there was substantial evidence from which the jury could conclude on its own that Powell's injuries were life-threatening, the trial court's error in admitting the treating physician's expert opinion was harmless. Finally, we hold that the trial court did not err in denying Ritter's motion for a new trial, because Ritter failed to make an adequate showing that any member of the jury was influenced by extraneous information. Accordingly, we affirm the trial court's July 5, 2007 Judgment and Commitment.\\nAssociate Justice Maria M. Cabret has been recused from this matter. Designated Justice Ishmael A. Meyers, Sr., a senior sitting judge of the Superior Court, sits in her place by designation pursuant to 4 V.I.C. \\u00a7 24(a).\\nWe do not decide at this time whether Virgin Islands law imposes a duty to retreat under the circumstances here presented.\\nRitter states in his brief that the trial court ruled that it would allow Dr. Moorman to testify as an expert. (Appellant's Br. 17). As the record makes clear, however, the trial court explicitly stated that he would not allow Dr. Moorman to testify as an expert. (Trial Tr., 5, Nov. 9, 2006).\\nTitle 5, section 911 states, in full:\\n(1) If the witness is not testifying as an expert his testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clear understanding of his testimony or to the determination of the fact in issue.\\n(2) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (a) based on facts or data perceived by or personally known or made known to the witness at the hearing and (b) within the scope of the special knowledge, skill, experience or training possessed by the witness.\\n(3) Unless the judge excludes the testimony he shall be deemed to have made the finding requisite to its admission.\\n(4) Testimony in the form of opinions or inferences otherwise admissible under this chapter is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.\\n(emphasis added).\\nWe note that the Uniform Rules of Evidence were last revised in 2005 and now largely resemble the Federal Rules of Evidence. However, the Legislature has not amended 5 V.I.C. \\u00a7 771-94 to reflect the changes to the Uniform Rules of Evidence.\\nFederal Rule of Evidence 701 provides that:\\nIf the witness is nottestifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.\\n\\\" 'Extraneous influence' has been construed to cover publicity received and discussed in the jury room, consideration by the jury of evidence not admitted in court, and communications or other contact between jurors and third persons, including contacts with the trial judge outside the presence of the defendant and his counsel.\\\" Gereau, 523 F.2d at 149.\"}"
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+"{\"id\": \"3672001\", \"name\": \"ROLAND MURRELL, Appellant v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee\", \"name_abbreviation\": \"Murrell v. Government of the Virgin Islands\", \"decision_date\": \"2009-06-26\", \"docket_number\": \"D.C. Criminal App. No. 2005-66\", \"first_page\": 1095, \"last_page\": \"1115\", \"citations\": \"51 V.I. 1095\", \"volume\": \"51\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T02:17:40.836479+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ROLAND MURRELL, Appellant v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee\", \"head_matter\": \"ROLAND MURRELL, Appellant v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee\\nD.C. Criminal App. No. 2005-66\\nDistrict Court of the Virgin Islands St. Thomas and St. John Division\\nJune 26, 2009\\nHAROLD W.L. Wilcocks, TPD, St. Thomas, USVI, For the appellant.\\nMaureen Phelan, AAG, St. Thomas, USVI, For the appellee.\", \"word_count\": \"6586\", \"char_count\": \"39369\", \"text\": \"G\\u00d3MEZ, Chief Judge of the District Court of the Virgin Islands; FINCH, Judge of the District Court of the Virgin Islands', and BRADY, Judge of the Superior Court of the Virgin Islands, Division of St. Croix, sitting by designation.\\nMEMORANDUM OPINION\\n(June 26, 2009)\\nFollowing a bench trial conducted in the Superior Court of the Virgin Islands, Division of St. Thomas and St. John (the \\\"Superior Court\\\"), Roland Murrell (\\\"Murrell\\\") was convicted of resisting arrest. Murrell now appeals his conviction. For the reasons stated below, we will affirm Murrell's conviction.\\nI. FACTS\\nAt approximately 11:45 p.m. on July 18, 2004, Officers Shawn Stapleton and Kent Bellot of the Virgin Islands Police Department were dispatched to the residence of Tricia Taylor (\\\"Taylor\\\"), at 143A-2 Anna's Retreat in St. Thomas, U.S. Virgin Islands, pursuant to a 911 call from Taylor. When the officers first arrived at Taylor's residence the officers observed a broken bathroom window. At approximately 1:00 a.m. on July 19, 2004, Taylor called 911 again, and Officers Stapleton and Bellot were again dispatched to Taylor's residence. On the second visit to the Taylor's house, Officers Stapleton and Bellot encountered Murrell on the premises. At the time, Murrell was in a relationship with Taylor. The officers arrested Murrell on the porch of Taylor's house.\\nOn July 26, 2004, the government of the Virgin Islands (the \\\"Government\\\") filed a three-count criminal complaint against Murrell. Count One charged Murrell with maliciously destroying personal property in an act of domestic violence, in violation of title 14, section 1266 of the Virgin Islands Code and title 16, section 91(b)(9) of the Virgin Islands Code. See VI. Code Ann. tit. 14, \\u00a7 1266 (1921); V.I. CODE ANN. tit. 16, \\u00a7 91(b)(9) (1998). Count Two charged Murrell with resisting Officer Stapleton in the lawful discharge of the duty of his office, in violation of title 14, section 1508 of the Virgin Islands Code (\\\"Section 1508\\\"). Count Three charged Murrell with disturbing the peace of Tricia Taylor by destroying her personal property in an act of domestic violence, in violation of title 14, section 622(1) of the Virgin Islands Code. See V.I. Code Ann. tit. 14, \\u00a7 622 (1936).\\nA bench trial in this matter was conducted on February 5, 2005. At the trial, the prosecutor asked Taylor:\\nQ: At approximately between 1 T.00 and 11:30 p.m. [on July 18,2004], did something happen at your home involving Mr. Murrell?\\nA: Something like what? What you mean, \\\"something?\\\"\\nTHE COURT: Anything unusual.\\nQ: That gave rise to these charges?\\nA: Nothing really like should have give rise to these charges.\\nQ: Well, what happened that caused \\u2014 that caused the police to come to your home that night?\\nA: Attorney, I don't even remember.\\nTHE COURT: Miss Taylor, do you remember anything regarding an alleged incident that occurred on July 18, 2004, at your residence at 143A-2 . ?\\n(Trial Tr. 21, Feb. 5,2005.) Thereafter, the court excused Taylor as a witness.\\nAdditionally, Officer Bellot testified on behalf of the Government at Murrell's trial. The prosecutor questioned Officer Bellot regarding his two visits to Taylor's residence on July 18, 2004:\\nQ: Now, what happened when you \\u2014 after you spoke with [Taylor], what happened?\\nA: Oh, well, when my partner was talking to her, I went, had my flashlight. I was looking in the bush to see if the person or the male was still in the bushes hiding.\\nQ: And who were you looking for?\\nA: I was looking for her boyfriend, Mr. Roland [Murrell].\\nQ:.. . . And did you find him?\\nA: At the first time, no, he wasn't there at that time.\\nQ: And what happened when you arrived the second time?\\nA: When I got there \\u2014 when we arrived there, we went downstairs. Officer Stapleton went one way, I went the other way around the house.\\nQ: And what did you do?\\nA: When I was coming around the comer, I made contact with a male.\\nQ: And what did [Taylor] do?\\nA: Point out Mr. Murrell as the person who shatter her window.\\nQ: And what did you do when she pointed at him?\\nA: At that time, we advised Mr. Murrell that he was under arrest, and while we was putting on the handcuff, he sort of \\u2014 a little straggle ensued and we had to use more force to subdue him.\\nQ: What exactly did he do?\\nA: He was pulling away, struggling away. Pulling away.\\nQ: How many times did he do it?\\nA: About on[ce] or twice he pulled away.\\nQ: And did you require assistance in order to subdue him?\\nA: Yes. Officer Stapleton assisted. [Murrell] was trying to pull away from both of us.\\nQ: At the same time?\\nA: Yes.\\nCId. at 49-51, 54.)\\nOfficer Stapleton also testified at the trial. During the trial, the prosecutor engaged in the following inquiry with Officer Stapleton:\\nQ: And what happened when you approached [Murrell]?\\nA: He put up a little struggle.\\nQ: How did he struggle?\\nA: He pulled his hands away several times.\\nQ: And what else did he do?\\nA: Basically, he just pulled his hands away and put up a little resistance.\\nQ: Did he say anything during this \\u2014\\nA: A few words, but I cant's remember.\\nQ: What type of words were they?\\nA: They weren't curse words.\\nQ: How long did it take for him to be subdued?\\nA: I would say about 45 seconds, a minute.\\nQ: And did you need assistance in order to do so?\\nA: Yes.\\nQ: And who assisted you?\\nA: Officer Bellot.\\nQ: And what did you tell [Murrell] when you approached him?\\nA: Told him he was under arrest for destroying the window and then I read him his rights.\\nQ: And what happened after you did that?\\nA: Basically, he put up a little struggle then we took him to the station.\\n(Id. at 36.)\\nAfter the defense attorney cross examined Officer Stapleton, the trial judge stated:\\nTHE COURT: Well, let me ask you this because you are saying that when you went to put [Murrell] under arrest, he pulled away his hands several times and you mentioned that he put up resistance.\\nWhat do you mean, \\\"put up resistance?\\\"\\nTHE WITNESS: Basically, when he pulled his hands away.\\nTHE COURT: Oh, I see. That's what you call that he resisted. Oh, I thought that maybe there was something more that he had done, overt conduct on his part, other than pulling his hands away.\\n(Id. at 43.)\\nAfter the Government rested, Murrell moved for a judgment of acquittal on all three counts of the complaint. The Government did not object to the dismissal of Counts One and Three, and the court dismissed those charges. Murrell also moved to dismiss Count Two of the complaint for failure to allege the offense of resisting arrest under Section 1508. The trial judge denied Murrell's motion to dismiss, reasoning that the complaint was sufficient because it alleged \\\"the nature of the crime, the citation of the statute, it parrots the statute and says the date and place.\\\" (Id. at 62.) In the Superior Court's view, the absence of any specific allegations regarding the manner in which Murrell purportedly resisted or interfered with Officer Stapleton did not render the complaint fatally defective. Regarding the sufficiency of the evidence supporting the resisting arrest charge in Count Two, the trial judge stated:\\nTHE COURT: Inoticedthat [title 14, section 1508 of the Virgin Islands Code] doesn't say how long he has to resist. It doesn't say how he has to resist. All he has to do is resist, and you could resist in several ways. He could have give[n] [] a football tackle to the officer. He could have shoot some shots at him to keep him from getting arrested. He could have engaged him in a knock-down, break-down, and the other side of town struggle.\\nAnytime that he impedes or obstructs the progress of the officer in arresting him, then, he has resisted arrest. So, when the officer attempted to arrest [Murrell] and he pull[ed] away his hand, or didn't let the officer get the handcuffs on him, he is preventing, and precluding, and impeding, and obstructing the officer from arresting him....\\n(Id. at 64.) The court denied Murrell's mid-trial motion for a judgment of acquittal on grounds that a reasonable jury viewing the evidence in the light most favorable to the Government could find that Murrell willfully resisted arrest, as charged in Count Two.\\nFinally, Murrell took the stand in his own defense at the bench trial. The defense attorney asked Murrell:\\nQ: What happened? [D]id anything happened wile you were being arrested?\\nA: No, no. This officer lies. They lie. [The trial judge] know that, too.\\nTHE COURT: Don't implicate me in that.\\nTHE WITNESS: You know that.\\nThe officer them come by the house, arrest me. I didn't give them no problems. I went to the station. When I removed my shoes hit him on his foot and he push me to the wall. That's what happened].\\n(Id. at 69-70.)\\nAfter both parties rested, the Superior Court concluded:\\nTHE COURT: I find that [Murrell] did resist arrest, in terms that he willfully resisted and delayed and obstructed the officer, because when they attempted to put the handcuffs on him, he pulled his hand away. He pulled his hand away several times____But once you are going to pull away several times, the officer can't put handcuffs on you, then you are impeding and obstructing them from arresting you, and he put up resistance when they attempted to arrest him when he was told that he was under arrest.\\nSo, I find that the governmenthas proven that [Murrell] has willfully resisted, delayed, and obstructed Officer Stapleton in the lawful discharge of his duty when Officer Stapleton attempted to effectuate an arrest on the defendant....\\n(Id. at 75.)\\nImmediately following the trial, the parties waived the preparation of a pre-sentence report, and the Superior Court conducted a sentencing hearing regarding Murrell's conviction on Count Two. The court sentenced Murrell to six month in prison, and fined him $500, plus $75 in court costs. On February 24, 2005, the Superior Court issued a written judgment memorializing its February 5, 2005, verbal conviction and sentence imposed on Murrell.\\nMurrell timely appealed the February 24,2005, judgment, raising three issues. First, whether the complaint filed against Murrell was sufficient to support a prosecution for resisting arrest. Second, whether the Government presented sufficient evidence at trial for a rationale fact-finder to conclude beyond a reasonable doubt that Murrell willfully resisted, delayed, or obstructed Officer Stapleton in the lawful discharge of his duties. Third, whether Murrell's conviction for resisting arrest must be set aside as inconsistent with the dismissal of the charges that lead to the arrest.\\nII. JURISDICTION\\nThis Court has jurisdiction over appeals of final judgments and orders of the Superior Court filed before January 29, 2007, the date on which the Supreme Court of the Virgin Islands was certified as ready to assume such jurisdiction. See Revised Organic Act of 1954 23A, 48 U.S.C. \\u00a7 1613a; Act No. 6730 \\u00a7 54(d)(1) (Omnibus Justice Act of 2005).\\nIII. STANDARD OF REVIEW\\n\\\"We review de novo questions of law, issues implicating rights protected under the U[nited] S[tates] Constitution, and the interpretation of statute[s]. However, we afford the more deferential clear error review to [the trial court's] factual determinations.\\\" Garcia v. Gov't of the V.I., 48 V.I. 530, 534 (D.V.I. App. Div. 2006) (citing Gov't of the V.I. v. Albert, 42 V.I. 184, 89 F. Supp. 2d 658, 663 (D.V.I. App. Div. 2001)).\\nThis Court reviews de novo the sufficiency of a criminal charging document \\u2014 here, the criminal complaint. See United States v. Vitillo, 490 F.3d 314, 320 (3d Cir. 2007) (explaining that plenary review applies to a challenge to the sufficiency of a charging document); Bigby v. Gov't of V.I., 125 F. Supp. 2d 709, 712 (D.V.I. App. Div. 2000) (\\\"The sufficiency of an information presents a question of law over which our review is plenary.\\\").\\nThe sufficiency of the evidence supporting an appellant's conviction is also subject to plenary review. See United States v. Taftsiou, 144 F.3d 287, 290 (3d Cir. 1998); Castillo v. Gov't of the V.I., 48 V.I. 519, 523 (D.V.I. App. Div. 2006).\\nReversal may be avoided if trial errors are found to be harmless. See Fed. R. CRIM. P. 52(a) (2002) (\\\"Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.\\\"); United States v. Hakim, 344 F.3d 324 (3d Cir. 2003). Where trial counsel fails to object to an error, we reverse only if the asserted violation amounts to \\\"plain error.\\\" See Fed. R. CRIM. P. 52(b) (2002) (\\\"A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.\\\"); United States v. Davis, 407 F.3d 162, 164 (3d Cir. 2005).\\nIV. ANALYSIS\\nA. Sufficiency of the Complaint\\nMurrell argues that his conviction on Count Two should be reversed because the complaint, on its face, fails to sufficiently charge the offense of resisting arrest.\\n1. Timing of the Challenge\\nThe record in this case shows that Murrell did not challenge the complaint on grounds that it failed to charge an offense until the day of his trial. The Government claims that, because Murrell failed to raise that issue prior to trial, he should be prohibited from doing so on appeal.\\nHowever, the failure of a charging document to sufficiently state an offense is a fundamental defect, which may be raised at any time. See Fed. R. CRIM. P. 12(b)(3)(B); see also United States v. Wander, 601 F.2d 1251, 1259 (3d Cir. 1979) (\\\"Failure of an indictment sufficiently to state an offense is a fundamental defect however, and it can be raised at any time.\\\"); see also, e.g., United States v. Hedaithy, 392 F.3d 580, 587 (3d Cir. 2004) (explaining that Rule 12(b)(3)(B) permits a defendant to challenge the indictment for first time on appeal on grounds that the specific facts alleged therein did not amount to a criminal offense); United States v. Panarella, 277 F.3d 678, 680 (3d Cir. 2002) (\\\"[A] defendant. . . [may] argue on appeal that the specific facts alleged in the charging document do not amount to a criminal offense.\\\"); Gov't of V.I. v. Pemberton, 813 F.2d 626, 631 (3d Cir. 1987) (\\\"[A]n objection to an information on the ground that it fails to charge an offense may be raised for the first time on appeal.\\\").\\n\\\"Although the failure . to state an offense is a fundamental defect which can be raised at any time, judicial interests require that such challenges be made at the earliest possible moment.\\\" United States v. Vitillo, 490 F.3d 314, 324 (3d Cir. 2007) (citations and quotations omitted)). In reviewing a charging document for sufficiency on appeal after a conviction, the document will be upheld \\\"unless it is so defective that it does not, by any reasonable construction, charge an offense.\\\" Vitillo, 490 F.3d at 324 (quoting United States v. Childress, 58 F.3d 693, 720, 313 U.S. App. D.C. 133 (D.C. Cir. 1995)).\\nAccordingly, the Court will consider Murrell's argument that the complaint fails to charge an offense, notwithstanding that he waited until trial to move for such relief in the Superior Court. In doing so, the Court will construe the complaint liberally. See, e.g., Vitillo, 490 F.3d at 324 (reviewing de novo the trial court's order denying the defendant's Rule 12(b)(3)(B) motion to dismiss the indictment for insufficiency, even though the motion was filed six months after the trial ended).\\n2. 14V.1.C. \\u00a71508\\nMurrell contends that the allegations in Count Two are insufficient because they merely parrot the language of Section 1508 and lack the requisite factual allegations to fairly inform Murrell of the charges he must face.\\nThe Sixth Amendment to the United States Constitution guarantees that \\\"[i]n all criminal prosecutions, the accused shall enjoy the right... to be informed of the nature and cause of the accusation.\\\" See U.S. CONST, amend. VI.\\nTo sufficiently allege an offense, a charging document must: \\\"(1) contain[] the elements of the offense intended to be charged, (2) sufficiently appriseQ the defendant of what he must be prepared to meet, and (3) allow[] the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.\\\" Vitillo, 490 F.3d at 321; see also Gov't of the V.I. v. Moolenaar, 39 V.I. 457, 133 F.3d 246, 248 (3d Cir. 1998) (applying the above test to charging documents alleging offenses against the Virgin Islands); People v. Leach, 3 Ill. App. 3d 389, 279 N.E.2d 450, 452 (Ill. App. 1 Dist. 1972) (\\\"It is a general rule of criminal pleading that a complaint, information or indictment which does not set forth the nature and elements of the crime sought to be charged fails to state an offense and is subject to dismissal.\\\").\\nSection 1508 makes it unlawful to \\\"willfully resist[], delay[] or obstruct^ any public officer in the discharge, or attempt to discharge any duty of his office . . . .\\\" 14 V.I.C. \\u00a7 1508 (1921). To sustain a charge for resisting arrest in violation of Section 1508, the Government was required to allege: (1) that the defendant willfully resisted, delayed, or obstructed a public officer; and (2) that the officers were lawfully discharging or attempting to discharge their official duties office at the time of the offense. See id.\\nMurrell does not dispute that the complaint in this matter contains the essential elements of the offense of resisting arrest under Section 1508. Rather, Murrell argues that the complaint in this matter was required to do more than recite the bare-bones elements of Section 1508.\\nAs a general rule, a charging document that tracks the statutory language adequately states the essential elements of the offense charged. See Russell v. United States, 369 U.S. 749, 763-64, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962); see also United States v. Addonizio, 451 F.2d 49, 58 n.7 (3d Cir. 1971) (\\\"[An] indictment which charges a statutory crime by following substantially the language of the statute is amply sufficient, provided that its generality neither prejudices defendant in the preparation of his defense nor endangers his constitutional guaranty against double jeopardy.\\\"). Yet,\\n[i]t is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species,-it must descend to particulars.\\nRussell, 369 U.S. at 763 (quoting United States v. Cruikshank, 92 U.S. 542, 558, 23 L. Ed. 588 (1875)). Indeed, \\\"mere tracking of the statutory language is insufficient where additional information is necessary to provide the accused with a clear understanding of the specific charges against him.\\\" Horton, 676 F.2d at 1169.\\nFor a complaint tracking the statutory language to adequately apprise the defendant of the charges against him, \\\"the language of the statute . . . must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.\\\" Hamling v. United States, 418 U.S. 87, 117-18, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974); see also United States v. Pirro, 212 F.3d 86, 93 (2d Cir. 2000) (\\\"[T]he indictment must state some fact specific enough to describe a particular criminal act, rather than a type of crime.\\\"); United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000) (\\\"[W]e require, at a minimum, that [an indictment] provide some means of pinning down the specific conduct at issue.\\\"); cf. Russell, 369 U.S. at 766 (\\\"A cryptic form of indictment . . . requires the defendant to go to trial with the chief issue undefined.\\\"). Charging documents that track the statutory language have been held to be insufficient in cases where \\\"factual information that is not alleged in the [charging document] goes to the very core of criminality under the statute.\\\" Kay, 359 F.3d at 756-57 (emphasis in original).\\nNeither this Court nor the United States Court of Appeals for the Third Circuit has addressed the level of specificity required to allege the offense resisting, delaying, or obstructing an officer under Section 1508. Cf. United States v. Kay, 359 F.3d 738, 756 (5th Cir. 2004) (\\\"[Relatively few reported opinions have analyzed . . . whether an indictment that sets out the elements of the offense charged merely by tracking the words of the statute itself, is insufficient.\\\" (emphasis in original)).\\nThe Superior Court has, however, considered the requirements for charging an offense under Section 1508. In Government of the Virgin Islands v. David, 20 V.I. 259, 265 (V.I. Terr. Ct. 1984), the Superior Court evaluated the sufficiency of two complaints charging Section 1508 violations against different defendants in separate matters. The complaint filed against defendant Lloyd David (\\\"David\\\") charged that \\\"defendant David on or about the 23rd day of August, 1983, in St. Thomas '[d]id resist arrest and obstruct police officers Sgt. J. Gifft and Det. Daniel Liburd, in violation of [Section] 1508.' \\\" David, 20 V.I. at 262. The complaint filed against defendant Adrian Francis (\\\"Francis\\\"), charged that \\\"defendant Francis[,] on or about the 30th day of September, 1983, in St. Thomas/St. John[,] '[w]illfully resisted, delayed and obstructed Officer E. Prescod in the discharge or attempt to discharge the duties of his office in violation of [Section] 1508.' \\\" Id. Defendants David and Francis both filed pre-trial motions to dismiss, arguing that the respective complaints alleged insufficient facts to inform the defendants of the charges against them. Id. at 263.\\nThe Superior Court granted the motions to dismiss with respect to both defendants. Regarding the charges against David, the court found:\\n[T]he Government has failed to include two essential elements of the offense of resisting arrest. First, there is no allegation that the defendant' s alleged actions were willful as required by the statute, and, sec ond that these police officers were lawfully discharging or attempting to discharge the duties of their office. Additionally, the Government failed to specify the manner in which the defendant resisted arrest and obstructed the officers. The Court, therefore, concludes that these counts are fatally defective and must be dismissed.\\nId. With respect to the complaint against Francis, the court stated: \\\"the counts in question, although parroting the language of the statutory sections, are also fatally defective. For example, [the complaint] again failed to specify which of the many possible ways the defendant resisted arrest and obstructed the police officer from discharging his official duties.\\\" Id. at 263-64. As to both defendants, the Superior Court reasoned that \\\"[w]ithout any factual statements as to their alleged misconduct, these defendants are not being apprised of what they must be prepared to defend against.\\\" Id. at 264.\\nCourts construing resisting or obstructing officer statutes in other jurisdictions have also required the charging document to specify the manner in which the defendant allegedly resisted or obstructed the officer. See, e.g., People v. Hilgenberg, 223 Ill. App. 3d 286, 585 N.E.2d 180, 183, 165 Ill. Dec. 784 (Ill. App. 2 Dist. 1991) (\\\"A complaint which charges resisting or obstructing a peace officer must sufficiently describe the physical acts which constitute the crime.\\\"); Pope v. State, 528 S.W.2d 54 (Tenn. Crim. App. 1975) (holding that, in order to validly charge the offense of interfering with a police officer, an indictment must recite facts respecting the lawfulness of the officer's acts, the official character of the officer, and the nature of the resistance); State v. White, 3 N.C. App. 443, 165 S.E.2d 19 (N.C. App. 1969) (holding that an indictment \\\"must point out, in a general way at least, the manner in which defendant is charged with having resisted or delayed or obstructed such public officer\\\"); cf. State v. Tibbs, 772 S.W.2d 834, 842 (Mo. App. S.D. 1989) (holding that it may be necessary to specify the conduct constituting the offense in an information charging a defendant with resisting arrest).\\nIn, People v. Leach, 3 Ill. App. 3d 389, 279 N.E.2d 450 (Ill. App. 1 Dist. 1972) the court addressed the sufficiency of a criminal complaint charging the defendant with obstructing a peace officer. The statute in question stated:\\nA person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both.\\n111. Rev. Stat. 1969, ch. 38, par. 31-1. The complaint charged:\\nMALINDALEACH has, on or about October 11,1969 at Madison & LaSalle, Chicago, Cook County, Illinois, committed the offense of Resisting or Obstructing a peace officer in that she knowingly obstructed the performance of ROBERT GALLOWAY known to her to be a peace officer of CHICAGO POLICE DEPARTMENT while said officer was acting within his official capacity, in violation of Chapter 38, Section 31-1, Illinois Revised Statutesf.]\\nLeach, 279 N.E.2d at 452-53 (quoting the complaint). The court held that, while the complaint tracked the language of the statute, it was nonetheless insufficient. Id. at 395. The court reasoned:\\nIll. Rev. Stat. 1969, ch. 38, par. 31-1 which proscribes the resisting or obstructing of a peace officer, does not particularize the offense nor does it describe the acts which constitute the crime. Therefore, a complaint, such as the one in this case, which contains a charge solely in the language of the statute is not sufficient. It does not give the defendant notice of the crime; and it will not support a judgment of conviction.\\nId.\\nThe court in People v. Lauer, 273 Ill. App. 3d 469, 653 N.E.2d 30, 33, 210 Ill. Dec. 443 (Ill. App. 1st Dist. 1995), reviewed the sufficiency of a complaint charging a violation of the same statute as in Leach. The complaint in Lauer, alleged:\\nErick W. Lauer, 8359 Maynard Rd., Niles, EL has, on or about 8, May 1991 at 8359 Maynard Rd. Niles Cook County Illinois, committed the offense of RESISTING A PEACE OFFICER in that he knowingly resisted the performance by [the police officers] known by him to be [ ] police officer[s] of an authorized act, placing him under arrest, within the official capacity os [sic] said peace officer[s].\\nLauer, 653 N.E.2d at 33. The court emphasized that, while the statute prohibited either obstructing or resisting a peace officer, the complaint in Lauer specifically alleged that the defendant resisted a peace officer. In upholding the complaint as sufficient, the court acknowledged that \\\"a complaint that uses the statutory language to charge resisting or obstructing a peace officer in the disjunctive is too general because resisting can be different from obstructing, which can involve a wide range of physical acts.\\\" Id. \\\"In contrast, resisting arrest is a physical act that necessarily involves a physical struggle. It does not potentially involve the broad range of actions that obstructing a peace officer can involve. For that reason, a complaint charging resisting a peace officer does not need to specify particular physical acts.\\\" Id.\\nHere, Count Two of the complaint against Murrell reads:\\nOn or about July 18,2004, in St. Thomas, Virgin Islands, Roland Gary Murrell, of St. Thomas, Virgin Islands, did willfully resist, delay, or obstruct Officer Shawn Stapleton in the lawful discharge of the duty of his office, in violation of [Section 1508], (RESISTING ARREST)\\n(Compl. 1, Super. Ct. Crim. No. 247/2004, July 26, 2004.)\\nThose allegations track the statutory language and summarize the essential elements of a Section 1508 violation. The complaint informs Murrell of the approximate date of the offense and narrows the location down to the island of St. Thomas. It also identifies \\\"Officer Shawn Stapleton\\\" as the officer whose duties were impeded and states that the duty being discharged was \\\"lawful,\\\" which could be construed liberally as \\\"official.\\\" (Id.) Given the references in Counts One and Three to the broken window at Taylor's house on July 18, 2004, the complaint may be read liberally to notify Murrell that Officer Stapleton was one of the police officers who arrested him on July 18, 2004.\\nThe text of Count Two charges Murrell in the disjunctive with resisting, delaying, or obstructing Officer Stapleton. However, the parentheses that follow describe the charge as resisting arrest only. That parenthetical language serves to limit the otherwise broad language of Count Two, and puts Murrell on notice that he is being accused of the specific crime of resisting arrest. See, e.g., State v. Morgan, 133 LA. 1033, 63 So. 509, 512-13 (La. 1913) (upholding a charging document as sufficient based on parenthetical language because \\\"[t]he parenthesis was inserted . in order to explain that the charge, as otherwise expressed in the bill, was intended to carry a meaning different from that which, without the parenthesis, the words used would import\\\"). Accordingly, the complaint in this matter was sufficiently specific to notify Murrell of the offense he must defend in Count Two, and to enable him to raise double jeopardy claims in the event of future prosecution for resisting arrest, in violation of Section 1508.\\nB. Sufficiency of the Evidence\\nMurrell also argues that his conviction on Count Two of the complaint should be reversed because the Government failed to produce sufficient evidence at trial to sustain a conviction for resisting arrest.\\nIn evaluating the sufficiency of the evidence, the Court is \\\"required to determine whether the evidence and all reasonable inferences which may be drawn therefrom, viewed in the light most favorable to the government as verdict winner, would permit a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt of every element of the offense.\\\" Castillo, 48 V.I. at 523; see also United States v. Wolfe, 245 F.3d 257, 261 (3d Cir. 2001) (holding that a conviction may be sustained \\\"if any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence\\\"). The inquiry requires an \\\"examination] the totality of the evidence, both direct and circumstantial.\\\" United States v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003). \\\"[A] claim of insufficiency of the evidence places a very heavy burden on an appellant.\\\" United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (citation and quotations omitted)); see also Abiff v. Gov't of the V.I., 313 F. Supp. 2d 509, 511 (D.V.I. App. Div. 2004) (\\\"[T]his Court may overturn the appellant's conviction only when the record contains no evidence, regardless of how it is weighted, from which the jury could find guilt beyond a reasonable doubt, (citations and quotations omitted)).\\nTo sustain a conviction for a violation of Section 1508, the Government must present evidence to prove, beyond a reasonable doubt, that (1) Murrell willfully \\\"resisted,\\\" \\\"obstructed,\\\" or \\\"delayed\\\" a public officer, (2) in the discharge of \\\"any duty of his office.\\\" See 14 V.I.C. \\u00a7 1508; Gov't of the V.I. v. David, 20 V.I. 259, 265 (V.I. Terr. Ct. 1984). Although the statute encompasses a broad range of conduct, the Government is arguably require to prove some overt act showing that the defendant intended to impede the officer in the performance of his duties. See Gov't of the V.I. v. Gilliam, 17 V.I. 14, 20 (V.I. Terr. Ct. 1980) (holding that Section 1508 does not require \\\"an actual or technical assault upon the officer; but there must be acts clearly indicating an intention on the part of the accused to prevent the officer from performing his duty, and to aid and assist the party whom he is seeking to arrest in avoiding such arrest\\\").\\nMurrell does not challenge the evidence that the arrest was lawful. Nor does he question Officer Stapleton's status as a \\\"public officer\\\" under Section 1508. Rather, Murrell claims that the facts described by Officers Stapleton and Bellot during the trial did not amount to evidence that he willfully resisted, obstructed, or delayed Officer Stapleton, as required by Section 1508.\\nConstrued in the Government's favor, the evidence presented at trial shows that Murrell pulled away his hands and put up a struggle when Officer Stapleton tried to arrest him. Murrell was clearly aware that the officers were members of the Virgin Islands Police Department, as they were in uniform when they encountered him. A rational jury believing the Government's evidence could have found beyond a reasonable doubt that Murrell willfully resisted Officer Stapleton when the officers tried to arrest him at Taylor's house on July 18, 2004. See, e.g., People v. Crawford, 152 Ill. App. 3d 992, 505 N.E.2d 394, 106 Ill. Dec. 88, (Ill. App. 4 Dist. 1987) (holding that the evidence of resistance was sufficient to support a conviction for resisting a peace officer because the arresting officer testified that, after he placed the defendant under arrest, the defendant pulled away, and two officers were required to subdue the defendant); cf. Gov't of the V.I. v. Fleming, 10 V.I. 129 (V.I. Terr. Ct. 1972) (finding that the evidence was insufficient to show that the defendant willfully resisted, delayed, or obstructed an officer by fleeing from the officer because the facts showed that the defendant was too far away to hear that the officer said he was under arrest, and thus he did not know he was under arrest).\\nC. Consistency of the Verdicts\\nFinally, Murrell argues that his conviction on Count Two should be reversed as inconsistent with the dismissal of Counts One and Three. He claims that it was illogical to convict him for resisting arrest given the absence of any evidence that he committed the underlying crime for which he was arrested.\\nMurrell acknowledges that it is axiomatic that inconsistency in a verdict is not a sufficient reason for setting the verdict aside. See United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984) (explaining that inconsistent verdicts, even those that acquit on a predicate offense while convicting on a compound offense, should not necessarily be interpreted as windfall to government at defendant's expense, as it is equally possible that the jury properly reached its conclusion on compound offense, and then through mistake, compromise, or lenity, arrived at inconsistent conclusion on lesser offense); Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932) (holding inconsistency between verdicts on separate charges against one defendant is not grounds for setting aside the verdict); see also United States v. Dotterweich, 320 U.S. 277, 279, 64 S. Ct. 134, 135, 88 L. Ed. 48 (1943) (holding that inconsistency is not a basis for reversal of verdicts that treat co-defendants in a joint trial inconsistently). Rather, Murrell cites United States v. Maybury, 274 F.2d 899 (2d Cir. 1960) as support for the proposition the upholding jury verdicts in criminal cases despite inconsistency between counts is not applicable when criminal case has been tried before a judge. United States v. Maybury, 274 F.2d 899 (2d Cir. 1960) (\\\"There is no need to permit inconsistency in the disposition of various counts so that the judge may reach unanimity with himself; on the contrary, he should be forbidden this easy method for resolving doubts.\\\").\\nHowever, in Harris v. Rivera, 454 U.S. 339, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981), the United States Supreme Court held that \\\"an apparent inconsistency in a trial judge's verdict [does not] give[] rise to an inference of irregularity in his finding of guilt that is sufficiently strong to overcome the well-established presumption that the judge adhered to basic rules of procedure.\\\" Harris, 454 U.S. at 346-47. Accordingly, even assuming, arguendo, that Murrell's conviction on Count Two is inconsistent with the dismissal of Counts One and Three, such inconsistency would not be grounds for reversal of his conviction on Count Two.\\nV. CONCLUSION\\nFor the foregoing reasons, the Court will affirm the February 24, 2005, judgment. An appropriate Order follows.\\nPrior to 2005, the trial court was known as the Territorial Court of the Virgin Islands and its judges were referred to as Territorial Court Judges. Effective January 1, 2005, however, the name of the Territorial Court changed to Superior Court of the Virgin Islands. See Act of Oct. 29,2004, No. 6687, sec. 6, \\u00a7 2,2004 V.I. Legis. 6687 (2004). Recognizing this renaming, this Court employs the terms Superior Court and Superior Court Judge.\\nThe Court notes that, because the offenses for which Murrell was charged were misdemeanors, they were permitted to be prosecuted by criminal complaint. See Fed. R. Crim. R 7(a)(2) (explaining that misdemeanors may be prosecuted in accordance with Federal Rule of Criminal Procedure 58(b)(1)); Fed. R. Crim. P. 58(b)(1) (\\\"The trial of a misdemeanor may proceed on an indictment, information, or complaint.\\\"). Rules 7(a)(2) and 58(b)(1) of the Federal Rules of Criminal Procedure are made applicable in the Superior Court via Rule 7 of the Rules of the Superior Court. See V.I. SUPER. Ct. R. 7 (providing that the Federal Rules of Criminal Procedure apply in the Superior Court, to the extent not inconsistent with the Rules of the Superior Court); see also V.I. Super. Ct. R. 123(f) (explicitly incorporating the provisions of Federal Rule of Criminal Procedure 7).\\nFederal Rule of Criminal Procedure Rule 52(a) is made directly applicable to the Superior Court by Rule 7 of the Rules of the Superior Court.\\nRule 12(b)(3)(B) sets forth a list of motions that must be made prior to trial, including \\\"a motion alleging a defect in the indictment or information \\u2014 but at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense .\\\" Fed. R. Crim R 12(b)(3)(B).\\nThese judicial interests include \\\"avoiding the needless waste of judicial resources,\\\" and \\\"discouraging tactical delays by defendants seeking a convenient ground of appeal in the event of a guilty verdict.\\\" Vitillo, 490 F.3d at 324 (citations and quotations omitted).\\nThe Sixth Amendment applies to the Virgin Islands by virtue of the Revised Organic Act. See Revised Organic Act of 1954, \\u00a7 3, as amended by 48 U.S.C. \\u00a7 1561 (1984) (extending to citizens of the Virgin Islands the Sixth Amendment right of the accused to be apprised of \\\"the nature and cause of the accusation\\\"); see also Abiff v. Gov't of the V.I., 313 F. Supp.2d 509, 512 (D.V.I. App. Div. 2004) (\\\"The Sixth Amendment is made applicable to the Virgin Islands by section 3 of the Revised Organic Act.\\\").\\nThe Superior Court consolidated the two underlying cases in David solely for the purposes of determining the respective motions to dismiss for failure to charge an offense under Section 1508. David, 20 V.I. at 261.\\nOtherwise, there is no indication of what type of \\\"officer\\\" Officer Stapleton is.\"}"
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+"{\"id\": \"3672282\", \"name\": \"IN RE: JADE MANAGEMENT SERVICES, d/b/a CROWN MOUNTAIN WATER SERVICES, Appellant\", \"name_abbreviation\": \"In re Jade Management Services\", \"decision_date\": \"2009-05-20\", \"docket_number\": \"Civil No. 2005-148\", \"first_page\": 930, \"last_page\": \"946\", \"citations\": \"51 V.I. 930\", \"volume\": \"51\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T02:17:40.836479+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"IN RE: JADE MANAGEMENT SERVICES, d/b/a CROWN MOUNTAIN WATER SERVICES, Appellant\", \"head_matter\": \"IN RE: JADE MANAGEMENT SERVICES, d/b/a CROWN MOUNTAIN WATER SERVICES, Appellant\\nCivil No. 2005-148\\nDistrict Court of the Virgin Islands Division of St. Thomas and St. John\\nMay 20, 2009\\nBenjamin A. Currence, Esq., St. Thomas, USVI, For Jade Managment Services d/b/a Crown Mountain Water Services.\\nCAROLA. Rich, Esq., St. Thomas, USVI, For Nancy D\\u2019Anna, Esq.\", \"word_count\": \"5181\", \"char_count\": \"31516\", \"text\": \"G\\u00d3MEZ, Chief Judge\\nMEMORANDUM OPINION\\n(May 20, 2009)\\nBefore the Court is the appeal of Jade Management Services, d/b/a Crown Mountain Water Services (\\\"Jade\\\") from the Bankruptcy Division's September 8, 2005, order awarding attorneys' fees and costs to Nancy D'Anna, Esquire. For the reasons stated below, the Court will affirm the September 8, 2005, order.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nJade was a business primarily engaged in the sale of water flowing from a well located at 13C Estate Linberg Bay, St. Thomas, U.S. Virgin Islands (the \\\"Property\\\"). Crown Mountain Water, Incorporated (\\\"CMW\\\") was a sister corporation of Jade, which owned and operated a water business on the Property. Jade and CMW were owned and managed by Jeannie Benjamin (\\\"Benjamin\\\").\\nIn 1995, Jade and CMW filed merger documents with the Office of the Lieutenant Governor of the United States Virgin Islands. However, the Office of the Lieutenant Governor did not process the documentation for the Jade-CMW merger for several years after it was filed, due to missing annual reports for the companies. Nonetheless, Jade and CMW have operated as if they were merged since 1995.\\nOn September 11, 2002, Jade and Benjamin filed a voluntary petition pursuant to chapter 11 of the United States Bankruptcy Code, 11 U.S.C. \\u00a7 1101, et seq. (\\\"Chapter 11\\\"). The Chapter 11 matter was captioned, In re: Jade Management Services, d/b/a Crown Mountain Water Services, Bankruptcy Case Number 02-00032 (\\\"In re: Jade\\\").\\nOn September 12, 2002, Benjamin, individually, filed a voluntary petition under chapter 13 of the United States Bankruptcy Code, 11 U.S.C. \\u00a7 1301, et seq. (\\\"Chapter 13\\\"). The Chapter 13 matter was captioned, In re Benjamin, Bankruptcy Case Number 02-00033 (\\\"In re Benjamin\\\").\\nAt the time In re Jade and In re Benjamin were commenced, a personal injury action filed by Alvin and Eleanor Whyte, Whyte v. Jade, et al., was pending against Jade and CMW in the Superior Court of the Virgin Islands (the \\\"Superior Court\\\").\\nOn October 9, 2002, the Bankruptcy Division entered an order in In re Jade dismissing Benjamin from the matter.\\nOn January 9, 2003, Jade filed a motion to employ Attorney D'Anna as counsel in In re Jade. No objections were filed to the motion to employ counsel, and the Bankruptcy Division granted the motion on January 17, 2003.\\nOn January 13, 2003, the Whytes appeared in In re Jade, asserting an unsecured claim (the \\\"Whyte Claim\\\") against Jade based on Whyte v. Jade, et al., which was pending in the Superior Court.\\nOn August 15, 2003, Jade filed a disclosure statement and proposed a plan to provide payment to its creditors, which contemplated selling the business and using the proceeds to pay all creditors. According to the proposed plan, \\\"the Debtor [Jade] has paid Nancy D'Anna, Esq. the sum of $2,500.00 for services, costs and expenses in these proceedings, and has agreed to pay additional sums as the Court may allow upon application.\\\" (Debtor's Plan of Reorganization 3, In re Jade, Bankr. No. 02-00032, Aug. 15, 2003.)\\nOn September 3, 2003, Jade filed an objection to the Whyte Claim in In re Jade. The objection argued in essence that no legal basis existed for the Whyte Claim.\\nOn January 10, 2005, the court entered an order scheduling the sale of Jade's assets pursuant to the Chapter 11 plan for February 15, 2005.\\nOn February 11, 2005, Ursula and the Eleven Thousand Virgins, LLC (\\\"Ursula\\\") and Benjamin entered into a stock purchase agreement. That agreement contemplated that Ursula would buy all shares of Jade's capital stock from Benjamin, and was made subject to the approval of the court in In re Benjamin.\\nAlso on February 11, 2005, Ursula filed a motion in In re Jade to stay the February 15, 2005, sale of Jade's assets in light of the stock purchase agreement. The court in In re Benjamin approved the stock purchase agreement. On February 15, 2005, Jade was sold to Ursula in accordance with the agreement.\\nOn April 11, 2005, Jade filed a notice of substitution of counsel in In re Jade. The notice stated that Benjamin A. Currence, Esquire had replaced Attorney D'Anna as counsel for Jade.\\nOn May 12, 2005, Attorney D'Anna filed an application for compensation in In re Jade. The application stated that Attorney D'Anna had received a retainer fee in the amount of $2,000 from Jade. It also sought reimbursement for $70,251.36 in outstanding fees and costs incurred throughout the pendency of the matter.\\nOn May 16, 2005, Jade, under new ownership by Ursula, submitted a second amended disclosure statement and a second amended Chapter 11 plan of reorganization. That plan stated that \\\"[t]he administrative expenses of the Debtor's Chapter 11 case allowed pursuant to [11 U.S.C. \\u00a7 503(b)] and given priority pursuant to [11 U.S.C. \\u00a7 507(a)(1)] shall be paid in full upon the Effective Date . . . .\\\" (Debtor's Second Am. Plan of Reorganization 5.)\\nOn July 15, 2005, Jade filed an opposition to Attorney D'Anna's fee application in In re Jade. It argued that the Bankruptcy Division erroneously approved the employment of Attorney D'Anna as counsel for Jade because she \\\"was not a disinterested person as required by [11 U.S.C. \\u00a7 327(a)] in that she represented interests materially adverse to the interests of the Debtor's estate, including the interests of Jeanie Benjamin, who until recently was the sole shareholder of the debtor.\\\" (Opp'n to D'Anna's Fee App. 1, July 15, 2005.) Alternatively, Jade contended that, \\\"[i]n the event that the employment of D'Anna is authorized, the compensation sought is unreasonable in light of what was actually accomplished over approximately three years.\\\" (Id. at 2.)\\nOn September 11, 2005, Jade submitted a memorandum in support of its opposition to Attorney D'Anna's fee application.\\nThe Bankruptcy Division conducted a hearing on Attorney D'Anna's fee application on September 8, 2005. At the hearing, the United States Trustee stated on the record that it had no objection to Attorney D'Anna's fee application. The bankruptcy judge rejected Jade's argument that Attorney D'Anna's appointment was approved in error. The bankruptcy judge further questioned Jade's standing to object to Attorney D'Anna's employment, noting:\\nTHE COURT: I don't know where the standing comes up for your clients, in the position of reorganized debtors, to do nothing more than fund this case. I don't know where they came up with the ability to raise the conflict at this stage when they stand in the shoes of the pre-confirmation debtor, who didn't raise the issues at the time they were... ripe before the Court, nor have any creditors come forward or the U.S. Trustees office, to raise those issues.\\n(Hr'g Tr. 5, Sept. 8, 2005.) Despite her reservations, the judge was willing to assume that Jade had standing to object to Attorney D'Anna's fee petition. The bankruptcy judge ruled on the merits that Attorney D'Anna's \\\"fees, as charged, were reasonable. The work done was required in order to prosecute the estate to conclusion, whether through liquidation or reorganization.\\\" (Id. at 16.) Ultimately, the Bankruptcy Division overruled Jade's objection and awarded the full amount of requested fees and costs to Attorney D'Anna.\\nAlso on September 8, 2005, the Bankruptcy Division entered a written order overruling Jade's objections and approving Attorney D'Anna's application for fees and costs in the amount of $70,251.36.\\nJade timely appealed from the September 8, 2005, order.\\nII. JURISDICTION AND STANDARD OF REVIEW\\nThe Court has jurisdiction to review this case pursuant to Title 28 U.S.C. \\u00a7 158(a). The Court will review the Bankruptcy Division's findings of fact for clear error and will exercise plenary review over questions of law. In re Barbel, No. 01-221, 2004 U.S. Dist. LEXIS 19417, at *2 (D.V.I. Sept. 21, 2004) (\\\"A district court reviews the Bankruptcy Division's conclusions of law de novo but may only review findings of fact that are clearly erroneous.\\\") (citing Fed. R. Bankr. R 8013; In re Excalibur Auto. Corp., 859 F.2d 454, 457 (7th Cir. 1988)), aff'd 183 Fed. Appx. 227 (3d Cir. 2006).\\n\\\"[A] question of standing . is subject to de novo review.\\\" Otto v. Pennsylvania State Educ. Ass'n-NEA, 330 F.3d 125, 130 (3d Cir. 2003). The issue of estoppel is also reviewed de novo. In re RFE Industries, Inc., 283 F.3d 159, 164 (3d Cir. 2002). The Bankruptcy Division's \\\"[f]ee awards are reviewed for an abuse of discretion, which can occur if the judge fails to apply the proper legal standard or to follow proper procedures in making the determination, or bases an award upon findings of fact that are clearly erroneous.\\\" Zolfo, Cooper & Co. v. Sunbeam-Oster Co., Inc., 50 F.3d 253, 257 (3d Cir. 1995) (citations and quotations omitted).\\nIII. ANALYSIS\\nA. Standing\\nAlthough neither party has addressed the issue of Jade's standing to bring this appeal, the Court must consider Jade's standing as a threshold issue. See In re Combustion Eng'g, Inc., 391 F.3d 190, 214 (3d Cir. 2004) (\\\"As a threshold matter, we must determine whether appellants have standing . . . .\\\") (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 n.8, 106 S. Ct. 1326, 89 L. Ed. 2d 501 (1986)).\\nThe United States Court of Appeals for the Third Circuit employs the \\\"persons aggrieved\\\" test to determine if a person may appeal a bankruptcy court order. In re Combustion Engineering, Inc., 391 F.3d 190, 214 (3d Cir. 2004). A person is aggrieved \\\"only if the bankruptcy court's order 'diminishes their property, increases their burdens, or impairs their rights.' \\\" In re PWS Holding Corp., 228 F.3d 224, 249 (3d Cir. 2000) (quoting In re Dykes, 10 F.3d 184, 187 (3d Cir. 1993)). \\\"Thus, only those 'whose rights or interests are directly and adversely affected pecuniarily' by an order of the bankruptcy court may bring an appeal.\\\" Id. (quoting In re Dykes, 10 F.3d at 187).\\n\\\"The 'person aggrieved' standard, which is more stringent than the constitutional test for standing, serves the acute need to limit collateral appeals in the bankruptcy context.\\\" In re O'Brien Envtl. Energy, Inc., 181 F.3d 527, 530 (3d Cir. 1999) (citing In re Dykes, 10 F.3d at 187). The United States Court of Appeals for the Ninth Circuit has explained that the need to limit such appeals\\nsprings from the nature of bankruptcy litigation which almost always involves the interests of persons who are not formally parties to the litigation. In the course of administration of the bankruptcy estate disputes arise in which numerous persons are to some degree interested. Efficient judicial administration requires that appellate review be limited to those persons whose interests are directly affected.\\nFondiller v. Robertson, 707 F.2d 441, 443 (9th Cir. 1983), cited with approval in In re O'Brien Envtl. Energy, 181 F.3d at 530-31. \\\"The question whether a party has standing to appeal in a bankruptcy case is generally an issue of fact for the district court.\\\" In re O 'Brien Envtl. Energy, Inc., 181 F.3d at 531 (citing In re Dykes, 10 F.3d at 188).\\nThe Court acknowledges the general rule that \\\"a bankrupt that has no hope of obtaining any return from its estate consistently has been held to lack standing to contest orders affecting the size of the estate.\\\" In re J. M. Wells, Inc., 575 F.2d 329, 331 (1st Cir. 1978) (holding that a bankrupt company whose assets were substantially exceeded by its debts could not appeal from an allegedly excessive award of attorneys' fees paid out of the estate). Here, however, there is no evidence in the record that Jade's assets were substantially exceeded by its debts. To the contrary, the stock purchase agreement approved by the Bankruptcy Division expressly stated that it would result in the recapitalization of Jade in an amount sufficient to pay its secured and unsecured creditors in full. Thus, to the extent the Bankruptcy Division's September 8, 2005, order awarding attorneys' fees and costs to Attorney D'Anna increases the amount of administrative expenses Jade will have to pay, it directly and adversely affects Jade's rights pecuniarily. Accordingly, Jade is a \\\"person aggrieved\\\" and has standing to bring this appeal.\\nB. Estoppel\\nAttorney D'Anna argues that Jade should be estopped from challenging her employment in In re Jade.\\nA party claiming equitable estoppel must establish that \\\"(1) a representation of fact was made to them, (2) upon which they had a right to rely, and (3) the denial of the represented fact by the party making the representation would result in injury to the relying party.\\\" In re RFE Industries, Inc., 283 F.3d 159, 164 (3d Cir. 2002) (quoting Wheeling-Pittsburgh Steel Corp. v. McCune, 836 F.2d 153, 162-163 (3d Cir. 1987)).\\nHere, Attorney D'Anna correctly points out that Jade sought and obtained the Bankruptcy Division's approval to employ her in 2003. She also correctly asserts that Jade stated in its amended disclosure statement and plan of reorganization that all administrative expenses, including attorneys' fees would be paid in full. However, there is nothing in the record to directly or indirectly suggest that Jade ever represented to Attorney D'Anna that it would accept all future awards of attorneys' fees, or waive the right to object to such awards. Attorney D'Anna does not assert, nor does the record reveal that Jade made any affirmative representation of fact to Attorney D'Anna upon which she had a right to rely. Accordingly, Jade is not estopped from challenging the Bankruptcy Division's September 8, 2005, order awarding attorneys' fees and costs to Attorney D'Anna. Cf. id. (holding that a Chapter 11 debtor was not estopped from objecting to a settlement despite the fact that the debtor previously proposed that the bankruptcy court retain limited jurisdiction to approve the settlement because, inter alia, the debtor did not plainly state it was waiving any opportunity to object to settlement).\\nC. Merits\\nJade contends that the Bankruptcy Division erred by awarding attorneys' fees and costs to Attorney D'Anna because Attorney D'Anna was not qualified to serve as counsel for Jade in In re Jade in the first instance. In Jade's view, the Bankruptcy Division lacked the discretion to award Attorney D'Anna compensation because Attorney D'Anna failed to disclose her connections with Benjamin in her employment application and was not a \\\"disinterested person\\\" under 11 U.S.C. \\u00a7 327(a) (\\\"Section 327(a)\\\").\\nSection 327(a) \\\"restricts retention of lawyers and other professionals to those who do not hold or represent an interest adverse to the estate and are disinterested.\\\" In re: Congoleum Corp., 426 F.3d 675, 688-89 (3d Cir. 2005); 11 U.S.C. \\u00a7 327(a)(1986).\\nTitle 11 U.S.C. \\u00a7 101(14) (\\\"Section 101(14)\\\") defines a \\\"disinterested person\\\" as\\na person that \\u2014\\n(A) is not a creditor, an equity security holder, or an insider;\\n(B) is not and was not, within 2 years before the date of the filing of the petition, a director, officer, or employee of the debtor; and\\n(C) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor, or for any other reason.\\n11 U.S.C. \\u00a7 101(14) (2006). Subsection (C) of Section 101(14), referred to as the \\\"catch-all clause,\\\" is \\\"broad enough to include anyone who in the slightest degree might have some interest or relationship that would even faintly color the independence and impartial attitude required by the Code and the Bankruptcy Rules.\\\" In re BH & P Inc., 949 F.2d 1300, 1308 (3d Cir. 1991) (quotation omitted).\\nTo enforce the requirements of Section 327(a), the Federal Rules of Bankruptcy Procedure mandate that any application for employment as a professional \\\"shall be accompanied by a verified statement of the person to be employed setting forth the person's connections with the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee.\\\" Fed. R. BANK. P. 2014(a) (emphasis added). \\\"There must be at a minimum full and timely disclosure of the details of any given arrangement. Armed with knowledge of all the relevant facts, the bankruptcy court must determine, case by case, whether [a conflict exists].\\\" In re Martin, 817 F.2d 175, 182 (1st Cir. 1987). Counsel who fail to disclose conflicts of interest proceed at their own risk because such failure is grounds for denial of compensation. See Rome v. Braunstein, 19 F.3d 54, 59 (1st Cir. 1994) (\\\"An attorney's failure to sufficiently disclose a conflict of interest may be grounds for denial of compensation.\\\"); cf. In re Bressman, 327 F.3d 229, 240 (3d Cir 2003) (\\\"[A] bankruptcy court may order the disgorgement of fees received by an attorney when he or she has ignored reporting and court approval duties imposed by the Code.\\\").\\nFurthermore, 11 U.S.C. \\u00a7 328(c) (\\\"Section 328(c)\\\") provides that\\nthe court may deny allowance of compensation for services and reimbursement of expenses of a professional person employed under section 327 . of this title if, at any time during such professional person's employment under section 327 . of this title, such professional person is not a disinterested person, or represents or holds an interest adverse to the interest of the estate with respect to the matter on which such professional person is employed.\\nId. at \\u00a7 328(c) (2005). The plain language of Section 328(c) makes clear that a bankruptcy court has the discretion to deny compensation to a professional who ceases to be disinterested subsequent to her appointment. Here, however, Jade claims that the Bankruptcy Division should have denied Attorney D'Anna's application for compensation because she was not a \\\"disinterested person\\\" at the time her employment was approved by the Bankruptcy Division.\\nAppellate courts disagree as to whether a bankruptcy court has the discretion to award fees and costs to an attorney who was improperly employed in violation of Section 327(a) at the outset because she was not a \\\"disinterested person.\\\"\\nIn In re Federated Dept. Stores, Inc., 44 F.3d 1310 (6th Cir. 1995), the United States Court pf Appeals for the Sixth Circuit held the a bankruptcy court lacks the discretion to award compensation to a professional who was improperly appointed in the first place. The court reasoned that Section 328(c) does not apply to a professional whose initial appointment was in error. \\\"Rather, the decision to grant compensation is governed by [Section] 330(a) and that provision, like [Section] 328(c), clearly requires a valid professional appointment under [Section] 327(a) as a prerequisite to an award of compensation.\\\" Id. at 1320 (internal citations and quotations omitted).\\nIn contrast, in In re Crivello, 134 F.3d 831 (7th Cir. 1998), the United States Court of Appeals for the Seventh Circuit held that a bankruptcy court has discretion to award compensation to a professional, even if the appointment of the professional was improper from the outset. The court explained that\\n[i]f abankruptcy court has the capacity to deny compensation when \\\"at any time during such professional person's employment\\\" that person is not disinterested, then only explicit language in the Code may limit this grant of discretion. Since the Code contains no such language, the bankruptcy court has discretion even if \\\"at any time during . . . employment\\\" refers to the onset of employment. If a bankruptcy court errs in approving a professional person's employment, that person is either \\\"not a disinterested person\\\" or \\\"represents or holds an interest adverse to the interest of the estate\\\" for the entire duration of that person's employment. Under the plain language of the provision, [Section] 328(c) covers questions about whether this erroneously employed professional merits compensation.\\nId. at 837 (noting that \\\"[a] reviewing court may not insert additional language into the Code to conform it with the court's view of bankruptcy law\\\").\\nWhile the Third Circuit has not directly considered the issue of whether a bankruptcy court has the discretion to award compensation to a professional who was improperly appointed in the first instance, its reasoning in United States Trustee v. Price Waterhouse, 19 F.3d 138 (3d. Cir. 1994), lends some guidance. In Price Waterhouse, the court rejected the debtor's argument that the word \\\"may\\\" in Section 328(c) created ambiguity concerning the meaning of Section 327(a). The court explained: \\\"we interpret Section 328(c) to mean that if a non-'disinterested' professional person is improperly employed, or if a professional person ceases to be 'disinterested' 'at any time during such professional person's employment,' the court may deny compensation and reimbursement.\\\" Id. at 142. The Third Circuit's reading of Section 328(c) in Price Waterhouse arguably suggests that Section 328(c) should apply to professionals whose initial appointment was erroneous.\\nThis Court finds that the balance of authorities as well as the plain language of Section 328(c) give the Bankruptcy Division discretion to grant or deny compensation, even to an attorney who was not \\\"disinterested\\\" when appointed. Even assuming that Attorney D'Anna's appointment was erroneous from the outset due to her failure to disclose a conflict or because she was not \\\"disinterested,\\\" the Bankruptcy Division was not per se bound to deny her request for compensation. See In re Crivello, 134 F.3d at 837; see also In re Prince, 40 F.3d 356, 359 (11th Cir. 1994) (\\\"[T]he language of 11 U.S.C. \\u00a7 328(c) permits a court to deny compensation to professionals found not to be disinterested persons, but does not require a denial of fees in those instances.\\\"); In re Authorized Factory Serv., Inc., a/k/a AFS, 283 B.R. 684, 690 (Bankr. W.D. Pa. 2002) (\\\"There is no per se rule that we must deny compensation to a professional who was not disinterested at the time their appointment was approved.\\\"). Rather, the Bankruptcy Division correctly ruled that it had the sound discretion to grant or deny compensation to Attorney D'Anna. See id.\\nJade alternatively claims that the Bankruptcy Division abused its discretion under Section 328(c) when it awarded $70,251.36 in fees and costs to Attorney D'Anna.\\nTitle 11 U.S.C. \\u00a7 330(a)(3) (\\\"Section 330(a)(3)\\\") guides the bankruptcy court's discretion in awarding attorneys' fees and costs. Pursuant to the statute,\\nIn determining the amount of reasonable compensation to be awarded to an examiner, trustee under chapter 11, or professional person, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including \\u2014\\n(A) the time spent on such services;\\n(B) the rates charged for such services;\\n(C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title;\\n(D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed;\\n(E) with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and\\n(F) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title.\\n11 U.S.C. \\u00a7 330(a)(3) (2005).\\nJade does not take issue with the $180 per hour rate charged by Attorney D'Anna. Instead, Jade contends that Attorney D'Anna was not entitled to compensation for any fees or costs incurred in connection with the Whyte Claim or the CMW merger. Jade asserts that such services were neither reasonably likely to benefit the Chapter 11 estate nor necessary to the administration of the case.\\nWith respect to compensation for services related to the Whyte Claim, Jade argues that such services were duplicative and unnecessary because Jade purportedly had independent legal representation in defending that claim through its insurance carrier. Jade claims that any work done in connection with the Whyte Claim conferred no benefit on the Chapter 11 estate in In re Jade. At the September 8, 2005, hearing, counsel for Jade raised the issue to the bankruptcy judge:\\n[JADE'S ATTORNEY:] [0]ne of the issues . is the amount of time that was spent... Regarding the [Whyte] claim, especially, in light of the fact [that] the debtor's insurance carrier provided legal representation with regard to that claim .\\nTHE COURT: [T]he response to that point indicates that Ms. D'Anna had to go right up to the day of trial before the \\u2014 [Whytes'] counsel agree to enter into a stipulation, and then, in fact, there was a recess taken the first day of trial for that purpose, of finalizing the negotiation. So, as a litigator, you have to prepare your witnesses. You have to show up to court if the court has set a trial, so I can't see why the activities she took were inappropriate.\\n(H'rgTr. 10-11, Sept. 8, 2005.)\\nThe bankruptcy judge further acknowledged that\\nTHE COURT: [T]he value in the estate had to be determined, whether it was for liquidation purposes or for reorganization purposes, and fixing the amount of a contingent, unliquidated, and disputed $1.7 million claim is something that the debtor's counsel has to do. Unfortunately, if it gets settled the day of trial, then you spend a lot of time getting ready for a trial that doesn't take place. But the liquidation of that claim is still to the benefit of all creditors in the estate and would have been necessary whether this was liquidated or reorganized. So in that respect the work is both necessary, the amount of time spent appears to me to be reasonable, the hourly rate charged is certainly reasonable under these circumstances and given the fact that this case was filed in 2002, which was some time ago and there has not been an increase in the rates charged throughout that time. . . . The work benefitted the estate and the reorganized debtor, and I think the fee application is itself reasonable and well-stated. And therefore I'm going to overrule the objection, assuming there is standing on behalf of the objecting party, and award fees as requested.\\n(Id. at 17) (emphasis added).\\nThe Bankruptcy Division did not explicitly address the issue of Attorney D'Anna's contribution to the litigation of the Whyte Claim in light of the representation provided by the insurance company. The record does not reveal whether or not Jade and CMW were ever in fact represented by counsel hired by an insurance carrier in the Whyte v. Jade Mgmt Servs., et al. Even assuming, arguendo, that a portion of the legal services related to the Whyte Claim were performed by a different attorney, it does not follow that Attorney D'Anna incurred no expenses in connection with that matter. The circumstance of more than one attorney representing an insured is an ordinary occurrence, as a defense provided by an insurer is often limited to the policy amount. Jade has not presented, nor is the Court aware of any reason to doubt the finding of the bankruptcy judge that Attorney D'Anna actually performed worked in connection to the Whyte Claim that was necessary, reasonable, and beneficial to the estate.\\nRegarding Attorney D'Anna's request for compensation for services related to the Jade-CMW merger, Jade argues that such services conferred no benefit on the Chapter 11 estate because the merger resulted in the assumption of the Whyte Claim, which was of no value for Jade. Jade contends that compensation is inappropriate for such merger-related legal services.\\nWith respect to this objection, the bankruptcy judge stated during the September 8, 2005, hearing that\\nthe . . . objection is based on something that happened many years pre-petition, based on the fact that a merger apparently was never completed, at least appropriately completed under Virgin Islands law. Whether its ever been subsequently completed or not, I don't know. None of the papers tell me that. But whether it was or not completed, that was something in purchasing this business the way [Ursula] did, [Ursula] could certainly check the records in the Virgin Islands to find out whether or not that merger ever took place or was completed. I don't know how they can stand to raise an obj ection to somebody ' s fee application based on the fact that if they're unhappy with their due diligence, their due diligence didn't reveal it before they entered this agreement. You know, I can't base... an objection to a fee application on something that happened several years before the bankruptcy was even filed.\\n(Id.)\\nThis Court agrees with the Bankruptcy Division that, at the time it entered into the stock purchase agreement, Ursula should reasonably have known about Attorney D'Anna's services in connection with the Jade-CMW merger. The Bankruptcy Division did not err in awarding compensation for fees and costs incurred by Attorney D'Anna in connection with the Jade-CMW merger. Furthermore, Jade has failed to present any other reason why the services rendered by Attorney D'Anna were unnecessary or unreasonable. On the contrary, the Court finds that it would be reasonable for counsel in Attorney D'Anna's shoes to work to complete the Jade-CMW merger, which had been pending for approximately a decade.\\nAccordingly, the Court finds that the Bankruptcy Division did not abuse its discretion in awarding Attorney D'Anna $70,251.36 in fees and costs.\\nIV. CONCLUSION\\nFor the foregoing reasons, the Court will affirm the Bankruptcy Division's September 8, 2005, fee award. An appropriate Order follows.\\nTitle 28 U.S.C. \\u00a7 158(a) provides that \\\"[t]he district courts of the United States shall have jurisdiction to hear appeals . of bankruptcy judges entered in cases and proceedings referred to the bankruptcy judges under [28 U.S.C. \\u00a7 157]. An appeal under this subsection shall be taken only to the district court for the judicial district in which the bankruptcy judge is serving.\\\" 28 U.S.C. \\u00a7 158(a) (2008).\\nSection 327(a) provides:\\nExcept as otherwise provided in this section, the trustee, with the court's approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee's duties under this title.\\n11 U.S.C. \\u00a7 327(a). \\\"Section 327 applies to a debtor in possession as well as a trustee.\\\" In re: Congoleum Corp., 426 F.3d at 689 n.13; see also United States Trustee v. Price Waterhouse, 19 F.3d 138 (3d Cir.1994) (\\\"Under 11 U.S.C. \\u00a7 1107(a), the power of a debtor in possession to employ accountants or other professionals is the same as that of a trustee.\\\").\\nThe version of S ection 101 (14) in effect at the time the B ankruptcy Division approved Attorney D'Anna's employment contained identical substantive provisions as the current version of the statute. See 11 U.S.C. \\u00a7 101(14)(A), (D)-(E) (2000).\"}"
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+"{\"id\": \"4019226\", \"name\": \"MARIA CONCEPCION, INDIVIDUALLY AND ON BEHALF OF HER CHILDREN RAQUEL CONCEPCION, JENNIFER CONCEPCION, BRENDA CONCEPCION, DIANA CONCEPCION and BETHA ABRIEU, Plaintiffs v. VIRGIN ISLANDS HOUSING AUTHORITY And GOVERNMENT OF THE VIRGIN ISLANDS, Defendants\", \"name_abbreviation\": \"Concepcion ex rel. Concepcion v. Virgin Islands Housing Authority\", \"decision_date\": \"2005-06-28\", \"docket_number\": \"Civil No. 516/1998\", \"first_page\": 112, \"last_page\": \"122\", \"citations\": \"47 V.I. 112\", \"volume\": \"47\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Superior Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T02:17:36.247837+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARIA CONCEPCION, INDIVIDUALLY AND ON BEHALF OF HER CHILDREN RAQUEL CONCEPCION, JENNIFER CONCEPCION, BRENDA CONCEPCION, DIANA CONCEPCION and BETHA ABRIEU, Plaintiffs v. VIRGIN ISLANDS HOUSING AUTHORITY And GOVERNMENT OF THE VIRGIN ISLANDS, Defendants\", \"head_matter\": \"MARIA CONCEPCION, INDIVIDUALLY AND ON BEHALF OF HER CHILDREN RAQUEL CONCEPCION, JENNIFER CONCEPCION, BRENDA CONCEPCION, DIANA CONCEPCION and BETHA ABRIEU, Plaintiffs v. VIRGIN ISLANDS HOUSING AUTHORITY And GOVERNMENT OF THE VIRGIN ISLANDS, Defendants\\nCivil No. 516/1998\\nSuperior Court of the Virgin Islands Division of St. Thomas and St. John\\nJune 28, 2005\\nFor Plaintiffs: ARCHIE Jennings, Esquire, St. Thomas, V.I.\\nFor The Virgin Islands Housing Authority: RHONDA HOSPEDALES, ESQUIRE, The Bomn Firm, Christiansted, St. Croix, Virgin Islands\\nFor the Government of the Virgin Islands'. WAYNE ANDERSON, ESQUIRE, Assistant Attorney General, Department of Justice, St. Thomas, V.I.,\", \"word_count\": \"3808\", \"char_count\": \"24201\", \"text\": \"SWAN, Judge\\nMEMORANDUM OPINION\\n(June 28, 2005)\\nBefore the Court is Defendant Virgin Islands Housing Authority's (\\\"VIHA\\\" or \\\"Defendant\\\") Motion for Partial Summary Judgment pursuant to the Federal Rules of Civil Procedure Rule 56. Defendant's motion is in opposition to Plaintiff Maria Concepcion's demand for punitive damages against VIHA both individually and on behalf of her children, Raquel Concepcion, Jennifer Concepcion, Brenda Concepcion, Diana Concepcion, and Bethal Abrieu's (\\\"Plaintiffs\\\"). For the following reasons, VIHA's Motion for Partial Summary Judgment will be granted.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nPlaintiffs are residents of Parcel 148-61, Estate Annas Retreat, on St. Thomas, Virgin Islands. On or about July 10, 1996, an incident occurred at the Tutu Hi-Rise Housing Project, which is located in proximity to, but uphill from Plaintiffs' residence. The main underground sewer line or lines which service the Tutu Housing Project malfunctioned, discharging enormous quantities of raw sewage and noxious fumes and gas onto and over Plaintiffs' property and into their residence, damaging furniture and clothes, as well as physically affecting them. Plaintiffs likewise suffered extensive property damage, causing them to discard all their belongings. Plaintiffs also suffered physical discomfort, excruciating pain, and mental anguish when their skins erupted with rashes, prompting them to seek medical treatment at the local hospital.\\nOn July 6, 1998, Plaintiffs filed this case seeking damages against the Government of the Virgin Islands (\\\"Government\\\") and VIHA. In the complaint, Plaintiffs assert that VIHA, which owns and operates the Tutu Hi-Rise Housing Project, is responsible for the design, construction and maintenance of the buildings comprising the Tutu Housing Project. Plaintiffs further assert that the Government either alone or in conjunction with VIHA is responsible for the design construction, installation and maintenance of the underground sewer lines, which service the Tutu Hi-Rise Housing Project. Plaintiffs also assert that Defendants caused the sewer lines to be constructed and installed on, near, under and through Plaintiffs' property without legal right or authority to do so, constituting a trespass upon Plaintiffs' property. Lastly, Plaintiffs allege that the malfunctioning of the sewer lines was solely and proximately caused by Defendants' negligence. Consequently, Plaintiffs seek compensatory and punitive damages from Defendants for their personal injuries and property losses. On June 25, 2002, Defendant VIHA filed a motion for partial summary judgment, asserting that VIHA cannot be liable for punitive damages, because public and/or municipal corporations are immune from punitive damages.\\nII. SUMMARY JUDGMENT STANDARD\\nRule 56 of the Federal Rules of Civil Procedure provides that summary judgment is proper,\\n. if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. A summary judgment interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.\\nFed. R. CIV. P. 56(c). Rule 56(d) allows the court to \\\"make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy\\\". Fed. R. Civ. P. 56(d). Therefore, the court may enter partial summary judgment on an issue where there is no proof to support liability and on issues of certain categories of damages. In resolving a motion for partial summary judgment, the court will apply the same standards used for evaluating a motion for summary judgment. Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985). However, a partial summary judgment does not become a final order until the court enters a judgment disposing of the entire case. Selkridge v. United Omaha Life Ins. Co., 360 F.3d 155, 161, 45 V.I. 712 (3d Cir. 2004). In considering a motion for summary judgment the court must draw all reasonable inferences, resolving all doubts against the moving party and looking at the evidence in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-249, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Hunt v. Cromartie, 526 U.S. 541, 550-555, 110 S. Ct. 1545, 1551-52, 143 L. Ed. 2d 731 (1999). The moving party has the initial burden of showing that there is no \\\"genuine\\\" issue of material fact to support the nonmoving party's claims. Celotex Corporation v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Once the moving party has met its burden, the nonmoving party must then demonstrate to the Court that there are facts in dispute that are essential to determining the outcome of the issues being litigated. See Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358 (3d Cir. 1992). Lastly, summary judgment is to be rendered when one party is unable to show a genuine issue as to a material fact on which that party will bear the burden of proof at trial so long as judgment against that party is appropriate as a matter of law. Department of Commerce v. United States House of Representatives, 525 U.S. 316, 327, 119 S. Ct. 765, 772, 142 L. Ed. 2d 797 (1999).\\nIII. DISCUSSION\\nIn its Motion for Partial Summary Judgment, VIHA asserts that it cannot be held liable for punitive damages, because it is a public corporation and instrumentality of the Government. Therefore, it is immune from punitive damages. Specifically, VIHA asserts that the law and public policy considerations preclude Plaintiffs from recovering punitive damages against VIHA.\\nPlaintiffs filed an opposition to the motion for Partial Summary Judgment, contending that a pivotal issue in this case is whether VIHA is an \\\"arm\\\" or \\\"alter ego\\\" of the Virgin Islands Government, thereby entitling it to Eleventh Amendment sovereign immunity. Plaintiffs further assert that VIHA is a separate and distinct entity from the Government; therefore, it is not exempt from punitive damages. Plaintiffs remind the Court that from its inception VIHA was intended to be a legal entity, separate from the Government, having its own debt and obligations, and the power to sue or be sued in its own corporate name. Consequently, VIHA is not entitled to sovereign immunity consideration.\\nIn its reply, VIHA argues that Plaintiffs' reliance on the issue of sovereign immunity is severely misplaced, because VIHA has not attempted to shield itself from total liability on the pretext or presumption that it enjoys sovereign immunity. Rather, VIHA seeks only to preclude an award of punitive damages against it. More succinctly, VIHA's motion does not involve a claim under the Eleventh Amendment; it involves, however, its opposition to a claim for punitive damages against an independent governmental instrumentality. Therefore, the determinative issue is whether VIHA, as an independent governmental instrumentality that is statutorily mandated to provide low-rent dwelling accommodation and not to operate such housing for profit, is immune from claims for punitive damages. The Court agrees with VIHA.\\n\\\"Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and [to] deter him and others like him from similar conduct in the future.\\\" Restatement (Second) of Torts \\u00a7 908(1) (1979). Generally, punitive damages are not allowed against a municipality unless expressly authorized by statute. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 261, 101 S. Ct. 2748, 2756, 69 L. Ed. 2d 616 (1980). In City of Newport, the Supreme Court enunciated a \\\"two-part approach\\\" for \\\"scrutinizing a claim of immunity proffered by a municipality.\\\" Id. at 259. Such a claim requires \\\"careful inquiry into considerations of both history and policy\\\" to determine \\\"both the policies that [the immunity] serves and its compatibility with the purposes\\\" of statutes. Id.\\nConsidering the Supreme Court's analysis in City of Newport, this Court must examine the purpose for municipal immunity from punitive damages. Punitive damages imposed on a municipality does not penalize the municipality or serve as a deterrent but instead punish the community whose members may have to pay higher taxes and excessive fees for services, in order to secure funds to pay punitive damages. Additionally, immunity from punitive damages protects the public from unjust punishment and the municipality from undue financial exposure. Id. 453 U.S. at 263. Furthermore, punitive damages are not intended to compensate the injured party, but to punish the wrongdoer for malicious, outrageous or intentional conduct and to deter others from similar extreme conduct. Id. at 266. However, this goal will not be accomplished or realized when an award of punitive damages is made against public corporations or instrumentalities that are created by the government to serve the needs of the public or the community. Consequently, punitive damages against public corporations and instrumentalities would be an unreasonable financial burden on innocent taxpayers and residents of the affected community.\\nNonetheless, Plaintiffs argue that punitive damages should be assessed against VIHA for the following reasons: (1) VIHA is an independent entity separate from the Government; (2) VIHA does not have to rely on the Government's general fund for operations, and that any judgment rendered against it could be satisfied only from funds of VIHA; and (3) VIHA has the ability to raise revenue by raising fares, leasing property, and leasing the use of its facilities. However, Plaintiffs' arguments are specious, because they ignored some salient and operative facts about VIHA. While any judgment against VIHA would be satisfied from the agency's funds, VIHA was expressly created as a non-profit entity when its enabling statute mandates that it \\\"shall not operate such housing for profit\\\"; therefore, an award of punitive damages against VIHA would indirectly harm the Virgin Islands Community VIHA was created to serve. 29 V.I.C. \\u00a761 (1996). VIHA's enabling statute provides:\\nIt is declared to be the policy of the Virgin Islands that the Authority shall manage and operate housing projects established for low-income families in the most economical and efficient manner consistent with applicable requirements, so as to enable it to fix rentals or charges for dwelling accommodations at low rents, in consonance with the purpose of providing safe, decent, and sanitary housing for families of low income, and shall not operate such housing for profit or as a source of revenue to the Government of the United States Virgin Islands or any division or subdivision thereof. To this end, the Authority shall fix the rentals or charges for dwellings in such housing projects at rates no higher than those it shall determine to be necessary to produce revenues which, together with all other available moneys, revenues, incomes, and receipts of the Authority, from all sources, including Federal financial assistance provided to maintain the low-rent character of the housing projects, will be sufficient to:\\n(1) pay, as they become due, the principal and interest on bonds and obligations of the Authority;\\n(2) establish and maintain such reserves as may be required to assure the payment of such principal and interest, as they become due;\\n(3) meet the cost of, and to provide for, the maintenance and operation of the housing projects, including necessary reserves therefore, and for costs of insurance protection, as well as the administrative expenses for the Authority; and\\n(4) make payments in lieu of taxes as provided for in this chapter.\\nRentals and charges for dwellings shall be established, and the housing projects shall be administered, to the greatest degree possible, so as to assure that any Federal financial assistance required shall be in the minimum amounts and periods necessary to maintain the low-rent character of the projects. (Emphasis added)\\n29 V.I.C. \\u00a7 61 (1996) (emphasis added). The above unambiguous language consigned VIHA to a non-profit operation and precludes it from operating as a source of revenue to the Government of the Virgin Islands or any of its divisions or subdivisions. Importantly, VIHA's specific mandate is to provide a social and governmental service by making available low-income dwelling for the people of the community.\\nThe United States Third Circuit Court of Appeals in Evans v. Port Authority of New York and New Jersey, 273 F.3d 346 (3d Cir. 2001), emphasized the importance of these public policy considerations and firmly decried an award of punitive damages against governmental instrumentalities that exclusively provide social and community services. The Court reasoned in that case that, \\\"[a]lthough taxes would not be affected by the award of punitive damages against the Port Authority because it receives no tax revenues and is financially independent of New York and New Jersey, an award of punitive damages might result in increased tolls, fares, and other expenses borne by the public generally.\\\" Id. at 357. Likewise, an award of punitive damages against VIHA can deplete the agency's funds, resulting in less affordable housing available for the low-income families in the Virgin Islands, as well as less money available for maintenance expenses of these housing projects. More succinctly, an award of punitive damages defeats, impedes and obstructs the statutorily mandated objectives of VIHA. The Restatements of Law emphasize that a damage award is distinguished by its purpose, and \\\"[o]nly those damages will be awarded that tend to carry out . these proposes.\\\" Restatement (Second).of Torts \\u00a7 901 cmt. a. (1979). The Court finds that the purpose punitive damages are incongruous with the statutory purpose and objectives of VIHA.\\nAdditionally, VIHA is severely limited in its ability to raise revenues, which is inconsistent with Plaintiffs' suggestions and arguments. VIHA's statutory mandate and Federal Laws and Regulations require that the VIHA set fixed charges for rent that is no greater than necessary to maintain the housing and pay all its obligations. Title 29 \\u00a7 61 provides in pertinent part: \\\"the Authority shall fix the rentals or charges for dwelling in such housing projects at rates no higher than those it shall determine to be necessary to produce revenues which, together with all other available moneys, revenues,, incomes, and receipts of the Authority, from' all sources, including Federal financial assistance provided to maintain the low-rent character of the housing projects, will be sufficient to . pay . the principal interest on bonds and obligations of the Authority 29 V.I. Code \\u00a7 61 (1996).\\nA review of VIHA's enabling statute demonstrates and confirms that the purpose of VIHA is compatible with the public policy, rejecting punitive damage awards against municipalities and governmental instrumentalities. The Virgin Islands Housing Authority was created in 1950 pursuant to 29 V.I. CODE \\u00a7 31(a) as a \\\"public body corporate and politic of the Virgin Islands\\\" and was formed to constitute a \\\"public housing agency\\\". As a public agency, VIHA is a government instrumentality, even though it is considered an autonomous corporation. The mandate of VIHA, as enumerated in 29 V.I. CODE \\u00a7 1(0, is to provide \\\"safe, decent, and sanitary dwellings for low-income families\\\" in the Virgin Islands. 29 V.I. Code \\u00a7 l(i) (1996). VIHA's revenues are derived from the rents collected from public housing tenants and from Federal and local government appropriations and grants. Importantly, VIHA is mandated not to operate as a business for profit, while simultaneously providing low-income public dwellings, thereby confirming its governmental and social services mandate and purpose. In enacting Title 29 V.I.C. \\u00a7 35, the Virgin Islands Legislature gave VIHA \\\"all the powers necessary and convenient\\\" to \\\"carry out and perform\\\" its purposes including the power to \\\"sue and be sued\\\". 29 V.I.C. \\u00a7 35 (1996).\\nSince the Supreme Court's ruling in Newport, courts in many jurisdictions have extended the rule and have held that punitive damages may not be recovered against governmental entities such as municipal corporations, public utilities, and other government instrumentalities. Morris v. Lindau, 196 F.3d 102 (2d Cir. 1999); Clements v. Airport Authority of Washoe County, 69 F.3d 321 (9th Cir. 1995). This rule has also been applied to a Virgin Islands public utility, which is an independent governmental instrumentality. In Powell v. Virgin Islands Water and Power Authority, 20 V.I. 579, 582 (D.V.I. 1984), the District Court held that punitive damages cannot be assessed against the Virgin Islands Water and Power Authority (\\\"WAPA\\\"), an autonomous public utility, because the people in the community would bear the cost of an excessive damage award through higher rates for water and electricity. Like VIHA, WAPA was created to serve the needs of the public. Pursuant to Title 30 Chapter 5 of the Virgin Islands Code, WAPA was established as an autonomous governmental instrumentality for the purpose of supplying adequate water and electrical power to the people of the United States Virgin Islands. 30 V.I.C. \\u00a7 103(a) (1998).\\nSignificantly, the Virgin Islands Port Authority, a similarly situated entity much like VIHA, and established as a \\\"body corporate and politic constituting a public corporation and autonomous governmental instrumentality\\\" for the Government of the Virgin Islands, is immune from punitive damage awards. 29 V.I.C. \\u00a7 541 (1996). Relying on its holding in Powell, the District Court in Codrington v. The Virgin Islands Port Authority, 911 F. Supp. 907, 912-913, 33 V.I. 215, 33 V.I. 245 (1996), held that punitive damages awarded against the Virgin Islands Port Authority, although an independent instrumentality, would be a cost borne by the public and therefore cannot be allowed. The United States Third Circuit Court of Appeals in Bolden v. Southeastern Pennsylvania Transport Authority, 953 F.2d 807 (3d Cir. 1991), held that the transit authority created by the Commonwealth of Pennsylvania, could not be assessed punitive damages. In a more recent case, the United States Third Circuit Court of Appeals concluded that the Port Authority of New York and New Jersey \\\"as a hybrid entity with substantial connections to government\\\", is immune from punitive damages. Evans v. Port Authority of New York and New Jersey, 273 F.3d 346 (3d Cir. 2001) (quoting King v. Port Authority of New York and New Jersey, 909 F. Supp. 938 (D.N.J. 1995), aff'd, 106 F.3d 385 (3d Cir. 1996)). Thus, a legitimate public policy is the primary reason that courts disapprove of punitive damage awards against municipalities, public corporations, and other governmental entities. Newport, 453 U.S. at 263. Moreover, an award of punitive damages against VIHA will have a debilitating affect on the financial ability of VIHA to comply with its statutory mandate.\\nTherefore, the Court concludes that despite being an independent entity, VIHA, like the Virgin Islands Port Authority and Water and Power Authority, is a government instrumentality serving the needs of the community and is not subject to punitive damage awards. See Codrington, 911 F. Supp. 907, 33 V.I. 215, 33 V.I. 245; Powell, 20 V.I. 579.\\nSignificantly, Plaintiffs will not be without a remedy, if Defendants are found liable. Compensatory damages, which are designed to restore the injured person or persons to the same or similar position they were in before the tort was committed, are available to Plaintiffs. Restatement (Second) of Torts \\u00a7 903 (1979). Importantly, compensatory damages are not just limited to out of pocket expenses that Plaintiffs may have incurred because of their injury but also include damages for pain and humiliation. Restatement (Second) of Torts \\u00a7 903 cmt. a. (1979).\\nIV. CONCLUSION\\nIt is a well settled legal principles that public corporations and government instrumentalities cannot be assessed punitive damages. As a matter of public policy, punitive damage awards are considered to be more harmful to the public than as punishment to the offending government agency. The primary goal of tort claims is to compensate the plaintiff for any injury caused by the defendant. Since Plaintiffs will have the opportunity to be fully compensated if they prevail on their claims, it is unnecessary to punish the innocent people of the Virgin Islands and make them suffer for the alleged actions of the Virgin Islands Housing Authority. For the foregoing reasons, the Court holds that VIHA, a nonprofit and independent government instrumentality expressly established to provide low-income public housing, and statutorily mandated not to operate for a profit, is immune from claims of punitive damages. Accordingly, Plaintiffs' claim for punitive damages against VIHA will be dismissed, and Defendant's Motion for Partial Summary Judgment is granted. An appropriate Order will follow.\\nWhen a motion for summary judgment is made and supported . an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.\\\" Fed. R. Civ. P. 56(e).\\nSee 29 V.I.C. \\u00a7 1 which provides the \\\"Declaration of findings and policy\\\" for creating VIHA.\\nThe Legislature of the Virgin Islands in enacting Title 29 V.I. Code \\u00a7 35, gave VIHA autonomy with the authority to have perpetual existence as a corporation; to borrow money; acquire property by any lawful means; own, hold, improve, clear or prepare for redevelopment any such property; and the power to sell, lease, exchange, transfer, assign, mortgage, pledge, or other wise dispose of such property.\\n29 V.I.C. 35 provides in pertinent part: \\\"The Authority shall have all the powers necessary and convenient to carry out and perform the purposes and provisions of this chapter (except the power to levy and collect taxes or special assessments), including the following powers in addition to other powers granted in this chapter, and may - (1) have perpetual succession; (2) sue and be sued; (3) have a seal and modify it; (4) enter into and execute contracts and instruments of every kind and nature, necessary or convenient to the exercise of its powers and functions; (5) make, and from time to time modify, and repeal, bylaws, rules and regulations, not inconsistent with this chapter, providing for the internal organization and management of the Authority, for the administration of its affairs and operations, and for carrying into effect the powers and purposes of the Authority; (6) borrow money from public and private sources, and give such security therefor as may be required; (7) apply for and accept advances, loans, grants, contributions, gifts, donations, appropriations of funds and any other form of financial assistance from the Federal Government, the Government of the United States Virgin Islands, or other public body or agency, or from any sources, public or private, for the purposes of this chapter, and enter into and carry out contracts in connection therewith...\\\"\"}"
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+"{\"id\": \"4236691\", \"name\": \"DALE FLEMING, Appellant/Plaintiff v. PEDRO CRUZ, COMMISSIONER OF THE DEPARTMENT OF HOUSING, PARKS, AND RECREATION, AND CRAIG WILLIAMS, ASSISTANT COMMISSIONER OF THE DEPARTMENT OF HOUSING, PARKS, AND RECREATION, IN THEIR PERSONAL AND PROFESSIONAL CAPACITIES, ET AL., Appellees/Defendants\", \"name_abbreviation\": \"Fleming v. Cruz\", \"decision_date\": \"2015-06-16\", \"docket_number\": \"S. Ct. Civil No. 2011-0092\", \"first_page\": 702, \"last_page\": \"722\", \"citations\": \"62 V.I. 702\", \"volume\": \"62\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Supreme Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T00:30:21.626342+00:00\", \"provenance\": \"CAP\", \"judges\": \"CABRET, Associate Justice; SWAN, Associate Justice, and CHRISTIAN, Designated Justice.\", \"parties\": \"DALE FLEMING, Appellant/Plaintiff v. PEDRO CRUZ, COMMISSIONER OF THE DEPARTMENT OF HOUSING, PARKS, AND RECREATION, AND CRAIG WILLIAMS, ASSISTANT COMMISSIONER OF THE DEPARTMENT OF HOUSING, PARKS, AND RECREATION, IN THEIR PERSONAL AND PROFESSIONAL CAPACITIES, ET AL., Appellees/Defendants\", \"head_matter\": \"DALE FLEMING, Appellant/Plaintiff v. PEDRO CRUZ, COMMISSIONER OF THE DEPARTMENT OF HOUSING, PARKS, AND RECREATION, AND CRAIG WILLIAMS, ASSISTANT COMMISSIONER OF THE DEPARTMENT OF HOUSING, PARKS, AND RECREATION, IN THEIR PERSONAL AND PROFESSIONAL CAPACITIES, ET AL., Appellees/Defendants\\nS. Ct. Civil No. 2011-0092\\nSupreme Court of the Virgin Islands\\nJune 16, 2015\\nDale Fleming, Appellee, St. Thomas, USVI, Pro se.\\nAtiim D. Abraham, Esq., Assistant Attorney General, Department of Justice, St. Thomas, USVI, For Appellees.\\nCABRET, Associate Justice; SWAN, Associate Justice, and CHRISTIAN, Designated Justice.\\nChief Justice Rhys S. Hodge is recused from this case. The Honorable Adam G. Christian has been designated to sit in his place pursuant to title 4, section 24(a) of the Virgin Islands Code.\", \"word_count\": \"7084\", \"char_count\": \"43953\", \"text\": \"OPINION OF THE COURT\\n(June 16, 2015)\\nSwan, Associate Justice.\\nDale Fleming appeals from the Order dismissing his complaint which alleged employment-related constitutional and civil rights violations. The trial court also liberally construed the complaint to have alleged tort claims under the Virgin Islands Tort Claims Act, 33 V.I.C. \\u00a7 3401-3416 (the \\\"VITCA\\\"). Because we find that Fleming failed to comply with the statutory requirements for asserting tort claims against the Government of the Virgin Islands, and because Fleming has made no factual allegations upon which relief can be granted, we affirm.\\nI. FACTUAL AND PROCEDURAL HISTORY\\nThe Appellant, Dale Fleming, was employed on a construction site in Yacht Haven on September 22, 2005. Constant arguing and animosity between Fleming and his coworker, Sylvan Joseph, reached a climax on this date, when Fleming's supervisor, Daniel Wes Moore, observed Fleming threatening Joseph. Because of his threats directed at Joseph, Fleming was terminated from his employment at the end of the work day.\\nLater that day, Fleming approached Joseph as he was in his vehicle at an intersection waiting for a traffic light to change. Fleming immediately struck Joseph on the left side of his face and broke the rear windshield of Joseph's vehicle with a bottle. Because of his injury Joseph was treated with six sutures at Roy L. Schneider Hospital. Fleming was subsequently arrested and charged in an amended information with third degree assault, using a dangerous weapon during the commission of a crime of violence, and vehicle tampering. A jury convicted Fleming of all charges.\\nFleming appealed his convictions to the Appellate Division of the District Court of the Virgin Islands (\\\"Appellate Division\\\"). On April 5, 2011, the Appellate Division vacated Fleming's dangerous weapon conviction finding that there was insufficient evidence presented at trial for a jury to find beyond a reasonable doubt that Fleming used anything other than his fists in assaulting Joseph. See Fleming v. Virgin Islands, 775 F. Supp. 2d 765, 768-9, 55 V.I. 1016 (D.V.I App. Div. 2011). Nevertheless, the Appellate Division affirmed Fleming's conviction for third degree assault.\\nOn remand, the Superior Court resentenced Fleming on the two remaining convictions to time he had already served while incarcerated and ordered Fleming's release from the Bureau of Corrections. Following his release from incarceration, Fleming approached Appellee, Stanley Smith, who at the time was the assistant commissioner of the Department of Housing, Parks, and Recreation (the \\\"Department\\\"). Fleming tendered to Smith the Appellate Division's decision vacating one of his convictions and simultaneously requested to be reinstated to his former position of plumber with the Department. Smith informed Fleming that he would have to review the matter and thereafter contact him because Fleming's circumstance was unique.\\nFleming next visited Eugene Irish, the union vice-president of the United Industrial Service, Transportation, Professional and Government Workers of North America's Virgin Islands branch, and presented Irish with the documentation, confirming that his conviction for possession of a dangerous weapon was reversed. Fleming further requested assistance in being reinstated with the Department. Subsequently, Irish sent Fleming a letter informing him that his past membership in the Union was noted, but due to the length of time that had elapsed since his convictions, there were no remedies available to him based upon his past union membership. When Fleming contacted Smith to inquire about the status of his reinstatement request, Smith informed Fleming that the Department did not have funds in its budget earmarked for reinstating him to his former position.\\nFleming then filed a suit in the Superior Court against Smith and St. Claire Williams, the Commissioner of the Department at the time, in their personal and professional capacities, alleging that the failure to reinstate him as a plumber with the Department violated his constitutional and civil rights. In his complaint, Fleming sought equitable and injunctive relief as well as damages in a tort claim for a total amount of one million dollars. The Government filed a motion to dismiss Fleming's suit and in a September 23, 2011 order and a memorandum opinion of the same date, the Superior Court granted the Government's motion and ordered the case dismissed with prejudice for \\\"failure of Fleming to state a claim upon which relief can be granted.\\\" This timely appeal ensued.\\nII. JURISDICTION\\nTitle 4, section 32(a) of the Virgin Islands Code provides, in pertinent part, that \\\"[t]he Supreme Court shall have jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law.\\\" The Superior Court issued a final order, dated September 23, 2011, dismissing Fleming's case with prejudice. Accordingly, we have jurisdiction over this appeal. See, e.g., Pichierri v. Crowley, 59 V.I. 973, 977 (V.I. 2013) (order dismissing a case with prejudice is a final order from which an appeal lies for purposes of 4 V.I.C. \\u00a7 32 (a)).\\nIII. ISSUES AND STANDARD OF REVIEW\\nFleming appeals the September 23, 2011 order and memorandum opinion dismissing his complaint alleging tort claims and violations of his constitutional rights. In the complaint, Fleming alleges that the Government violated 42 U.S.C. \\u00a7 1983, the Fourteenth Amendment, and the Sixth Amendment to the United States Constitution for failing to reinstate him as an employee of the Department following the reversal of one of his convictions. He purported to invoke the trial court's jurisdiction under 33 V.I.C. \\u00a7 3401-3416.\\nHowever, in his pro se brief, Fleming failed to address any of the issues in the order dismissing his complaint. Rather, he propounded the following issues: (1) whether the Government proved beyond a reasonable doubt that he used a dangerous weapon during the commission of a crime of violence in violation of 14 V.I.C. \\u00a7 2251, and (2) whether the Government proved beyond a reasonable doubt that the reversal of his conviction for using a dangerous weapon during the commission of a crime of violence had no effect on his conviction for assault in the third degree. Normally, the failure to brief any issues raised results in a waiver of those issues. V.I. SUP. Ct. R. 22(m). However, in the case of pro se litigants we \\\"liberally construe purported notices of appeal... and allow an appeal to proceed so long as the intent to appeal the judgment is apparent, and there is not prejudice to the adverse party.\\\" Rodriguez v. Bureau of Corr., 58 V.I. 367, 374 (V.I. 2013). The Appellees are aware that this matter is an appeal of the Superior Court's order granting their motion to dismiss and have submitted their brief arguing that the order be affirmed. Accordingly, we will review the trial court's order of dismissal.\\nA review of a trial court's grant of a motion to dismiss a complaint is made in accordance with the principles espoused in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), construing pleading requirements under Rules 8(a) and 12(b)(6) of the Federal Rules Civil Procedure. Federal Rules 8 and 12 are made applicable to the Superior Court by Superior Court Rule 7, which provides that \\\"[t]he practice and procedure in the Superior Court shall be governed by the Rules of the Superior Court and, to the extent not inconsistent therewith, by . the Federal Rules of Civil Procedure.\\\" See Brady v. Cintron, 55 V.I. 802, 822 n.24 (2011) (\\\"Federal Rule of Civil Procedure 8 is made applicable to the Superior Court by Superior Court Rule 7.\\\"). In Iqbal the United States Supreme Court expanded the holding in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), requiring that a plaintiff's complaint aver facts plausibly supporting entry of judgment on the claim, clarifying that this requirement is applicable to all civil complaints and not only to those involving antitrust. Iqbal, 556 U.S. at 684. Accordingly, \\\"[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' \\\" Id. at 678 (citing Twombly, 550 U.S. at 570). On appeal, questions of law are afforded plenary review. Phipps v. People, 54 V.I. 543, 546 (V.I. 2011) (\\\"Ordinarily, the standard of review for this Court's examination of the Superior Court's application of law is plenary....\\\") (citing St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (2007)); Williams-Jackson v. Pub. Emps. Relations Bd., 52 V.I. 445, 450 (2009) (citation omitted).\\nIV. DISCUSSION\\nFleming makes audacious claims of entitlement to be reinstated as a plumber with the Department by virtue of the Appellate Division's reversal of one of his three felony convictions. Fleming asserts that the Department's failure to reinstate him resulted in a violation of his Fourteenth Amendment right to due process as well as a violation of his civil rights under 42 U.S.C. \\u00a7 1983. Fleming insists that, based on these alleged violations, he is entitled to declaratory and injunctive relief, or alternatively damages in the amount of one million dollars. As the trial court enunciated below, Fleming has failed to articulate any claim or cause of action for which relief may be granted to him.\\nIn his complaint, Fleming attempted to sue the Government and Government officials in their official capacity. Fleming purported to invoke the Superior Court's jurisdiction under 33 V.I.C. \\u00a7 4-5. However, the Superior Court liberally construed the complaint and concluded that Fleming was attempting to invoke the Court's jurisdiction under 33 V.I.C. \\u00a7 3401-3416.\\nGenerally, the Government and its officials are immune from suit in tort. However, the provisions of the VITCA embody an express waiver of the Government's sovereign immunity. See 33 V.I.C. \\u00a7 3408. The VITCA also specifies the guidelines and procedures for bringing a claim pursuant to the waiver of sovereign immunity under the Act's provisions. In dismissing Fleming's complaint for failure to state a claim, the trial court concluded that Fleming's complaint was not filed within the mandatory time limitations for a tort claim suit against the Government. We agree. Even if the suit was not outside the statutory requirements, we conclude that Fleming's complaint is devoid of any allegations cognizable in tort for which the Torts Claim Act would be applicable. Likewise, the complaint's allegations failed to state valid federal civil rights claims.\\nA. Fleming failed to adequately plead a claim for entitlement to re-employment with the Department and failed to plead a constitutional violation.\\nIn his complaint, Fleming asserts that his termination from employment and his failure to be reinstated to that employment position resulted in a deprivation of his property interest in continued employment, a violation of his due process rights under the Fourteenth Amendment, and a violation of section 1983. The trial court also liberally construed Fleming's complaint to have asserted a claim under section 1983 and under the Equal Protection Clause.\\nSection 1983 creates a federal cause of action for anyone deprived of a right or privilege under the Constitution or laws of the United States. The Fourteenth Amendment only provides procedural protection of property interests that a person has already acquired in specific benefits. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). For such a procedural due process claim to succeed a plaintiff must establish that \\\"(1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of life, liberty, or property, and (2) the procedures available to him did not provide due process of law.\\\" Iles v. deJongh, 638 F.3d 169, 173 (3d Cir. 2011). There is no constitutional guarantee of an established right to continued employment. McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir. 1994) (en banc) (\\\"Supreme Court precedent demonstrates that an employee with a property right in employment is protected only by the procedural component of the Due Process Clause, not its substantive component. Because employment rights are state-created rights and are not 'fundamental' rights created by the Constitution, they do not enjoy substantive due process protection.\\\"). See also Roth, 408 U.S. at 577 (\\\"Property interests, of course, are not created by the Constitution.\\\"). Further, there is no substantive due process interest in continued employment. See Wrench Transportation Systems, Inc. v. Bradley, 340 Fed. Appx. 812, 815 (3d. Cir. 2009). Whether an employee has a procedural due process protected property right in continued employment is a question of territorial law, and such a property right must flow either from a statutory policy or contractual agreement. lies, 638 F.3d at 173; Roth, 408 U.S. at 578. To succeed on a claim alleging a violation of procedural due process rights to continued employment, a plaintiff must prove that he had a property right in continued employment. Wilson v. MVM, Inc., 475 F.3d 166, 111 (3d Cir. 2007).\\nUnder the pleading-sufficiency standards articulated by the Supreme Court in Twombly, and recognized in our precedent,\\nto survive a motion to dismiss for failure to state a claim upon which relief can be granted, a complaint must survive a three-step analysis undertaken by a trial court:\\nFirst, the court must take note of the elements a plaintiff must plead to state a claim so that the court is aware of each item the plaintiff must sufficiently plead. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. These conclusions can take the form of either legal conclusions couched as factual allegations or naked [factual] assertions devoid of further factual enhancement. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief. If there are sufficient remaining facts that the court can draw a reasonable inference that the defendant is liable based on the elements noted in the first step, then the claim is plausible.\\nPollara v. Chateau St. Croix, LLC, 58 V.I. 455, 471 (V.I. 2013). See Brady, 55 V.I. at 822-24; Joseph v. Bureau of Corrections, 54 V.I. 644, 649-50 (V.I. 2010). In his complaint, Fleming fails to present sufficient factual matter which, when accepted as true, would state a claim to relief that is plausible on its face as required under these standards. See Iqbal, 556 U.S. at 678. Although under Rule 8 of the Federal Rules of Civil Procedure, Fleming need not make detailed factual allegations, he was required to present \\\"more than an unadorned, the-defendant-unlawfully-harmed-me accusation.\\\" Id. Fleming's complaint is exactly the kind of complaint that Iqbal warns against in that it contained labels and conclusions, and baldly asserted that the defendants' actions resulted in unlawful harm without the \\\"factual enhancements]\\\" needed in order to support such claims. Id. (quoting Twombly, 550 U.S. at 557). Fleming claimed to have a property interest in his continued employment with the Department, but he dismally failed to articulate the statutory or contractual basis from which such a property interest is derived. He also failed to articulate any factual premise which would conjure a due process violation of any property interest in his employment. It is unclear whether Fleming was employed by the Department in 2005 when he was working at the construction site in Yacht Haven. Fleming further failed at a minimum to state in his complaint that he was an employee of the Department and the dates of such employment. If he were an employee of the Department, it is unclear what his employment status was, and whether such status would have afforded him a property interest in continued employment with the Department.\\nRegular employees of the Virgin Islands Government are a category of public employees that have a statutorily created property interest in continued employment, protected by due process. See 3 V.I.C. \\u00a7 530. See also lies, 638 F.3d at 174. Only regular employees are afforded such protection under the Virgin Islands Code. Id. In his complaint, Fleming did not allege that he is or was a regular employee, nor does he allege that his property interest in continued employment flows from any other source. Fleming further failed to state whether the actions of the Department in terminating him failed to comport with due process requirements. A regular employee can only be deprived of his right to continued employment after compliance with statutorily required safeguards. For example, a regular employee may be terminated only for cause and only after he has been furnished with a written statement of the charges against him. 3 V.I.C. \\u00a7 530(a). Fleming has failed to allege any noncompliance with this requirement for terminating a regular employee, as a basis for the claimed due process violation. If he was not a regular government employee, and his complaint fails to allege that he is, then the complaint failed adequately to allege that Fleming had a constitutionally protected due process interest in his employment.\\nAlthough we treat liberally the filings of pro se litigants, to hold that Fleming pled sufficient plausible supporting facts to survive a motion to dismiss would require us to make many assumptions regarding his status while employed with the Department. Fleming, at minimum, needed to allege in his complaint that he was an employee with the Department, state why he has a property interest in continued employment with the Department, and state how his due process rights in this property interest were violated. Fleming dismally fails in this regard.\\nEven if Fleming had alleged that he was a regular employee as defined by 3 V.I.C. \\u00a7 530, he has exceeded the deadline established by statute to appeal his employment termination. 3 V.I.C. \\u00a7 530(a) gives a regular employee 10 days after the issuance of a written statement of charges to appeal a termination to the Public Employees Relations Board (\\\"PERB\\\"). Fleming does not offer any justifiable or cogent reason for not pursuing this course of action if he disputed the reason offered as the cause for his termination. Incarceration, alone, is not a sufficient basis for failing to file a timely appeal of his termination. Innumerable court filings are made by persons who are incarcerated, and Fleming, a filer of numerous pro se claims, should have been able to comply with the deadline for perfecting an appeal of his termination irrespective of his incarceration. Further, such an appeal would be made to the PERB, and not the Superior Court, under the provisions of 3 V.I.C. \\u00a7 530(a)(1).\\nSimilarly, Fleming has also failed to sufficiently plead a section 1983 claim under the Equal Protection Clause. The Equal Protection Clause guarantees United States citizens a \\\"right to be free from invidious discrimination in statutory classifications and other governmental activity.\\\" Harris v. McRae, 448 U.S. 297, 322, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980). \\\"When a state actor turns a blind eye to the Clause's command, aggrieved parties . . . can seek relief pursuant to 42 U.S.C. \\u00a7 1983.\\\" Nabozny v. Podlesny, 92 F.3d 446, 454 (7th Cir. 1996).\\nAt the pleadings stage of a claim of a section 1983 violation against a local government, \\\"only an allegation of the existence of a policy, practice, or custom and its causal link to the constitutional deprivation suffered is required to state a claim; however, if plaintiff's constitutional rights were not violated his \\u00a7 1983 claims must fail.\\\" Colleen R. Courtade, Annotation, What constitutes policy or custom for purposes of determining liability of local government unit under 42 U.S.C.A. \\u00a71983 \\u2014 modern cases, 81 A.L.R. Fed. 549 (1987) (collecting cases). To plead a viable equal protection claim, a plaintiff must allege facts indicating selective treatment \\\"compared with others similarly situated . based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.\\\" Barrington Cove Ltd. P'ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 7 (1st Cir. 2001) (emphasis omitted). Fleming's complaint fails to satisfy this requirement because he does not assert that he was treated differently from other persons who were similarly situated to him, or that the defendants acted with the purpose of punishing him for exercising his constitutional rights. In the absence of such allegations, the complaint was properly dismissed by the Superior Court. See Aponte-Torres v. Univ. of Puerto Rico, 445 F.3d 50, 57 (1st Cir. 2006).\\nAccordingly, because Fleming has failed to state a claim upon which relief can be granted, his complaint cannot possibly survive the Government's motion to dismiss; therefore, the trial court's order dismissing the complaint is affirmed.\\nB. Fleming failed to state a viable claim under the VITCA and he failed to follow the procedures to bring such claims under the Act.\\nThe trial court liberally construed Fleming's complaint to assert a claim under the VITCA. Under the VITCA, the Government waives its sovereign immunity from liability for actions involving loss of property, personal injury or death resulting from \\\"the negligent or wrongful act or omission of an employee of the Government of the United States Virgin Islands.\\\" 33 V.I.C. \\u00a7 3408(a). Generally, \\\"a state court may not decline to hear an otherwise properly presented federal claim because that claim would be barred under a state law requiring timely filing of notice.\\\" Felder v Casey, 487 U.S. 131, 152, 108 S. Ct. 2302, 101 L. Ed. 2d 123 (1988). The trial court, however, appears to have liberally construed Fleming's complaint to have also established tort claims against the Virgin Islands and individuals acting in their official capacity. Even if he had made a viable claim under the VITCA, Fleming failed to follow the necessary procedure required by statute to bring a timely claim under the VITCA.\\nThe VITCA provides the mechanism by which persons may sue the Government in tort in the courts of the Virgin Islands. It contains the Government's waiver of immunity from tort suits, but it must be invoked by using specific statutory procedures. Legislative intent to limit the Government's waiver of tort litigation immunity is explicit. The VITCA states that:\\nNo judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim:\\n(c) a claim to recover damages for injuries to property or for personal injury caused by the tort of an officer or employee of the Government of the United States Virgin Islands while acting as such officer or employee, shall be filed within ninety days after the accrual of such claim unless the claimant shall within such time file a written notice of intention to file a claim therefor, in which event the claim shall be filed within two years after the accrual of such claim.\\n33 V.I.C. \\u00a7 3409(c) (emphasis added). This statute categorically outlines the procedure for waiving the Government's immunity from suit. The very terms of the statute presumptively preclude any claimant from obtaining a favorable judgment if the claimant fails to comply with the statutory filing deadlines.\\nIn its memorandum opinion, the trial court correctly states that if Fleming had asserted a viable local tort claim, the court would be outside its jurisdictional limitations if it were to hear the claim. The trial court correctly notes that in order for a plaintiff to take advantage of the Government's waiver of sovereign immunity, the plaintiff must file the suit within the time allotted by the Act. See 33 V.I.C. \\u00a7 3409. Under the VITCA, tort claims or written notices of intent to file a claim against the Government must be filed within 90 days of the accrual of such claims. See 33 V.I.C. \\u00a7 3409(c). The VITCA allows the trial court to exercise discretion in permitting late filings; however, this discretion is only allowed on claims filed within two years after the accrual of the cause of action, if reasonable excuse for late filing is shown, if the late filing does not cause substantial prejudice to the Government, and if the late filing contains the Information required by 33 V.I.C. \\u00a7 3410. Id..\\nEven if Fleming had alleged a viable tort claim, the trial court properly declined to hear it for several reasons. First and foremost, Fleming's employment was terminated on September 22, 2005, approximately six years prior to the filing of his pro se complaint. His filing is thus exceedingly dilatory and outside the time limits prescribed by statute for filing a claim, and outside the time allotted for the trial court to exercise its discretion to allow for a filing of a late claim.\\nThus, because Fleming failed to meet statutory filing requirements, his claim was properly dismissed.\\nC. Fleming's criminal convictions have no relevance to this civil appeal.\\nIn his complaint, Fleming emphasizes the Appellate Division's reversal of one of his criminal convictions and suggests that this reversal should have some relevancy to his alleged right to be reinstated with the Department. Indeed, Fleming dedicates the vast majority of his appellate brief to arguing the lack of sufficient evidence to uphold his criminal convictions. Fleming's criminal convictions, however, are not on appeal before this court. Rather, the trial court's order dismissing Fleming's complaint is the only basis for this appeal.\\nFleming appears resolutely convinced that the Appellate Division's reversal of one of his convictions is crucial to his entitlement to be reinstated with the Department. Assuming arguendo that Fleming was employed with the Department at the time of the incident with Joseph, his criminal convictions have no relevance to the legal issues relating to his termination. It is evident from the record that Fleming's assault, arrest, and subsequent convictions could not have been the cause of his termination from the Department. Fleming's criminal convictions emanated from an incident that occurred after he was terminated from his employment. The trial record confirms that Fleming was terminated because of a continued conflict with Joseph, his coworker at the time, which culminated in threats made by Fleming to Joseph on the Yacht Haven property complex. To reiterate, it is noteworthy that the assault which prompted Fleming's arrest resulted from Fleming's attack upon Joseph after he was terminated from his employment. Therefore, Fleming was terminated for the initial confrontation and altercation he had with Joseph on the job site, and not for his subsequent attack upon Joseph at the traffic light after Joseph had departed the Yacht Haven complex. Accordingly, his criminal convictions for the assault upon Joseph can have no influence on or significance with respect to his reinstatement to the Department, when Fleming's assault upon Joseph was not the cause of his termination. Moreover, even if Fleming was wrongfully arrested and convicted, as he asserts, his arrest and conviction had no role in his termination. Accordingly, the Appellate Division's reversal of one of his convictions should play no role with respect to, and have no effect regarding, his sought-after reinstatement.\\nObviously, Fleming does not truly comprehend the ramifications of the Appellate Division's reversal of his conviction for use of a dangerous weapon. He seems to assume that the reversal of one conviction together with his immediate release from prison qualified as some form of complete expungement of his criminal record. However, only one of Fleming's three criminal convictions was overturned, and thus he remains a convicted felon. The assault and the vehicle tampering charges were affirmed. Review of the present record demonstrates that his immediate release from incarceration was not a result of an expungement of his criminal record, but resulted from his resentencing to time he already served in prison on his convictions.\\nFleming further argues in this civil appeal that the Appellate Division's reversal of his conviction for use of a dangerous weapon during the commission of a crime of violence necessitates a reversal of his third degree assault charge. Even if Fleming's criminal convictions were properly before this court on this appeal this argument is rejected. As Fleming has been previously informed, he was convicted of third degree assault in violation of 14 V.I.C. \\u00a7 297(3) which is \\\"assaulting] another with premeditated design and by use of means calculated to inflict great bodily harm.\\\" He was not convicted of third degree assault under 14 V.I.C. \\u00a7 297(2), which is assault with a deadly weapon. Accordingly, although the Appellate Division found a lack of sufficient evidence to establish the use of deadly weapon, this finding has no significance with respect to Fleming's conviction for third degree assault because he was not charged with the subsection of third degree assault that involves the use of a dangerous weapon.\\nV. CONCLUSION\\nThe Superior Court did not err in granting the Department's motion to dismiss because Fleming dismally failed to state a claim in his complaint for which any relief can be granted. Fleming did not timely file a claim under the YITCA. Further, Fleming has not established any cause of action against the Government because he did not demonstrate any entitlement to continued employment with the Department, or that any constitutional or due process right was violated.\\nFinally, Fleming's criminal convictions have no relevancy to his current civil appeal because his criminal judgment and commitment are not properly before this Court. According to the record before us, the criminal convictions as a group, and the reversal of one conviction by the Appellate Division, had no bearing upon Fleming's alleged termination with the Department, and accordingly have no bearing upon whether he should be reinstated. Fleming is adamant in his assertions that the reversal of his conviction for using a dangerous weapon completely exonerates his criminal record which is fallacious, and he remains a convicted felon to this day although he is no longer incarcerated.\\nFor the reasons elucidated above, the September 23, 2011 Order of the Superior Court is AFFIRMED.\\nFleming raised no issue in this appeal concerning his conviction for vehicle tampering and he remains convicted for that offense.\\nAt the time the suit was filed, Fleming bought action against Smith and Williams in their personal and official capacities. Since Smith and Williams no longer hold the positions of assistant commissioner and commissioner, the caption of this case has been updated to reflect the succession of these offices pursuant to V.I.S.Ct.R. 34(c)(1) (\\\"When a public officer who is a party to an appeal or other proceeding in the Supreme Court in his or her official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his or her successor is automatically substituted as a party.\\\"). Further, the Department of Housing, Parks, and Recreation has since been divided between the Virgin Islands Housing Finance Authority and the recently created Department of Sports, Parks, and Recreation. Since it cannot be clearly determined from the record which successor entity would be the appropriate replacement, and because we find that Fleming has not made any valid claims against the Government, we shall retain all references to the former Department of Housing, Parks, and Recreation throughout this opinion.\\nThe Sixth Amendment applies only to criminal cases, and is therefore not applicable here. U.S. CONST, amend. VI (\\\"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.\\\") (emphasis added); United States v. Ward, 448 U.S. 242, 248, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980) (\\\"[T]he protections provided by the Sixth Amendment are available only in 'criminal prosecutions.' \\\"). Therefore, Fleming's Sixth Amendment allegations will not be considered.\\nIn his complaint, Fleming stated that \\\"[\\u00a1jurisdiction is hereby invoked according to.. .Virgin Islands Code Title 33, Section 4&5.\\\" Because these sections refer to taxation and finance and are not relevant to Fleming's claims, the Superior Court liberally construed Fleming's complaint to be referring to 33 V.I.C. \\u00a7 \\u00a7 3401-3416, under which individuals may bring tort cases against Government officials.\\nThis Court summarized these requirements in Brady v. Cintron, 55 V.I. 802 (2011):\\nUnder Federal Rule of Civil Procedure 12(b)(6), a party may move to have a claim dismissed \\\"for failure to state a claim upon which relief can be granted.\\\" The adequacy of a complaint is governed by the general rules of pleading set forth in Rule 8 of the Federal Rules of Civil Procedure. In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the United States Supreme Court interpreted Rule 8 to require a complaint to set forth a plausible claim for relief, and articulated the proper standard for evaluating motions to dismiss for failure to state a claim: \\\"a claim requires a complaint with enough factual matter (taken as true) to suggest the required element.\\\"\\nId. at 822, citing Robles v. HOVENSA, LLC, 49 V.I. 491, 501 (V.I. 2008); Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).\\nThe provisions of 33 V.I.C. \\u00a7 4-5 regulate inheritance taxes, and are irrelevant to the jurisdiction of Virgin Islands courts over this claim and irrelevant to any issue in this case.\\n33 V.I.C. \\u00a7 3408(a) states in pertinent part:\\nSubject to the provisions of section 3416 of this chapter, the Government of the United States Virgin Islands hereby waives its immunity from liability and action and hereby assumes liability with respect to injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of an employee of the Government of the United States Virgin Islands while acting within the scope of his office or employment, under circumstances where the Government of the United States Virgin Islands, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.\\n42 U.S.C. \\u00a7 1983 states in pertinent part:\\nEvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.\\nThe concurring opinion, in very strongly worded language, admonishes the majority for addressing this issue. The concurring opinion states that this issue is a \\\"new\\\" and \\\"hypothetical\\\" one and that the Court's policy of liberally construing pro se filings does not condone addressing this issue. However, the concurring opinion fails to note that our rules declare that \\\"issues and arguments fairly presented to the Superior Court may be presented for review on appeal; provided, however, that when the interests of justice so require, the Supreme Court may consider and determine any question not so presented.\\\" V.I.S.Ct. R. 4(h). The September 23, 2011 memorandum opinion of the Superior Court is directly on appeal before this Court. The trial court liberally construed Fleming's complaint to be asserting a claim under the VITCA. Therefore, this Court possesses clear statutory authority to review the decision of the trial court that is directly before us on appeal. See 4 V.I.C. \\u00a7 32(a) and 4 V.I.C. \\u00a7 32(c) (\\\"[ujpon an appeal from a judgment or an order, the Supreme Court may reverse or affirm, wholly or in part, or may modify the judgment or order appealed from\\\"). In his brief, Fleming demands to be reinstated to his former position with the Department of Housing, Parks, and Recreation, as well as one million dollars in damages. (Br. of Appellant at 19.) It is certainly not hypothetical to liberally construe these demands to assert a form of tort claim against the Government.\\nFleming asserts in his appellate brief that he was a member of a union and covered under a collective bargaining agreement. However, Fleming did not make this or any other allegation in his complaint which might have justified a claim of entitlement to a property interest in continued employment with the Department based on the union contract. Fleming further does not present on appeal the terms of the bargaining agreement which might have granted him a property interest in employment. In addition, if Fleming was a union member he should have explored the avenues established by the union to seek relief from any allegedly unlawful termination.\\nThe trial court dismissed Plaintiff's complaint and the entire action pursuant to Fed. R. Crv. P. 12(b)(6). However, with respect to the claims which were dismissed for failure to state a claim, the trial court should have granted Plaintiff leave to amend his complaint unless any proposed amendments would have been futile. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008) (collecting cases). This opportunity should have been afforded to Plaintiff notwithstanding the fact that he did not request it. Id. In this case, the record reflects that any amendments would have been futile, and, therefore, a remand to the trial court on this matter is unnecessary. As discussed above, based on the record, all of Plaintiff's claims under 42 U.S.C. \\u00a7 1983 lack any legal support, he has waived many issues by failing to raise them at the trial and/or appellate levels, and now the deficiencies cannot be corrected by amending the pleading.\\nAt page 3 of its opinion, the Superior Court stated that \\\"the Court's jurisdiction over government officials . for claims sounding in tort is limited by the requirements of the Virgin Islands Tort Claims Act.\\\" Virgin Islands trial courts have held on more than one occasion that the failure to comply with the claim-filing procedures of the VITCA deprives the trial court of subject matter jurisdiction to hear tort claims against the Government and its officials. E.g., Brewley v. Government, 59 V.I. 100, 103 (V.I. Super. Ct. 2012); Hobson v. Government, 22 V.I. 87, 91 (Terr. Ct. 1986). However, this Court has never endorsed this legal principle. Moreover, persuasive precedent exists which counsels otherwise. See, e.g., United States v. Kwai Fun Wong, 135 S. Ct. 1625, 191 L. Ed. 2d 533 (2015) (construing comparable provisions of the Federal Tort Claims Act). In this case, we do not decide whether the VITCA's claim-filing requirements are jurisdictional, and affirm the trial court's decision on this aspect of the appeal based only upon the clear and unexcused failure of Fleming to comply with plain language of the statutory requirements. We leave a decision on whether the VITCA's claim-filing mandates are jurisdictional for another day.\\nThe concuixing opinion takes issue with the majority opinion for addressing an issue not directly discussed in Fleming's Appellant's brief, while simultaneously taking issue with addressing this issue that was directly raised in the Appellant's brief. We agree with the concurring opinion that this issue is not property before this Court. However, we do not, as the concurrence claims, address this issue on the merits. Rather we explain to the Appellant why this issue is not properly before this Court.\\nWe reiterate that it is not clear from the record before us whether Fleming was employed with the Department when he worked at the Yacht Haven construction site on September 22, 2005. Although the record implies that he might have been an employee with the Department at some point, it is not precisely clear when this may have been so.\"}"
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+"{\"id\": \"4237241\", \"name\": \"QUINTON STANLEY, Plaintiff/Counterclaim Defendant v. ERIC A. BROWNE, Defendant/Counterclaim Plaintiff\", \"name_abbreviation\": \"Stanley v. Browne\", \"decision_date\": \"2015-04-30\", \"docket_number\": \"Case No. SX-09-CV-602\", \"first_page\": 384, \"last_page\": \"395\", \"citations\": \"62 V.I. 384\", \"volume\": \"62\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Superior Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T00:30:21.626342+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"QUINTON STANLEY, Plaintiff/Counterclaim Defendant v. ERIC A. BROWNE, Defendant/Counterclaim Plaintiff\", \"head_matter\": \"QUINTON STANLEY, Plaintiff/Counterclaim Defendant v. ERIC A. BROWNE, Defendant/Counterclaim Plaintiff\\nCase No. SX-09-CV-602\\nSuperior Court of the Virgin Islands Division of St. Croix\\nApril 30, 2015\", \"word_count\": \"3579\", \"char_count\": \"21590\", \"text\": \"BRADY, Judge\\nMEMORANDUM OPINION\\n(April 30, 2015)\\nTHIS MATTER came on for bench trial (\\\"Trial\\\") on September 4, 2014, and a Post-Trial Briefing Order was entered that date. Plamtiff/Counterclaim Defendant Quinton Stanley's (\\\"Plaintiff' or \\\"Stanley\\\") Post-Trial Memorandum was filed December 4, 2014. Defendant/Counterclaim Plaintiff Eric A. Browne (\\\"Defendant\\\" or \\\"Browne\\\") did not submit a post-trial brief. For the reasons that follow, Judgment will enter in favor of Plaintiff directing Browne to remove any and all portions of his fence that encroach onto Stanley's property.\\nBACKGROUND\\nStanley filed his Verified Complaint on December 18, 2009 (\\\"Complaint\\\"), alleging that in 1998, Browne orally agreed that Defendant could erect a temporary fence encroaching on Plaintiff's property, located on Plot No. 293 L Estate Grove Place (\\\"Property\\\"). Complaint, at \\u00b65. Plaintiff further alleged that when he asked Defendant to remove the fence in September 2009, Defendant refused. Id. at \\u00b6 6. In his Answer and Counterclaim, filed April 19,2010, Defendant alleged that the parties' agreement permitted Defendant to build a permanent wall, and that Plaintiff's demand that Defendant remove the wall constituted breach of contract. Answer and Counterclaim, at 2-3.\\nAt Trial, Plaintiff, Defendant, and Kirtly Stanley testified. At the conclusion of the Trial, Defendant made an oral \\\"Rule 50 Motion,\\\" which the Court took under advisement. Based upon the Trial evidence and arguments of the parties, the merits of Plaintiff's Complaint and Defendant's Counterclaim are decided below.\\nFINDINGS OF FACT\\nDefendant Browne lives at 293-1 Estate Grove Place, St. Croix, consisting of approximately three-quarters of an acre, which he purchased in or about 1987. Tr. at 8. Shortly thereafter, Defendant built a house on his property. Tr. at 8-9. The house was constructed entirely on Defendant's Plot 293-1, but too close to the northern boundary line with Plaintiff's adjoining Property, in violation of the applicable 10-foot setback, and at one comer of the house, \\\"it sort of meets it.\\\" Tr. at 9-10. Defendant first realized that his house did not comply with the 10-foot setback requirement after Hurricane Hugo, when he planned to erect a chain link fence around his property. Tr. at 11.\\nBrowne discussed the issue with Plaintiff after identifying the problem. Tr. at 15. Browne testified that the substance of the discussion was that \\\"[t]he intent was to move the boundary where the fence \\u2014 where the fence would have touched the house, out ten feet, and to do the same at the bottom, sort of, you know, equalizing what was taken and what is given. That was the discussion.\\\" Tr. at 15. Defendant further testified as to the events in question:\\nAttorney Wynter (\\\"Wynter\\\"): Can you tell the Judge what was Mr. Stanley's response to your proposal?\\nDefendant: He said it's not a problem.\\nWynter: He said it's not a problem?\\nDefendant: Mm-hmm.\\nWynter: Okay. And what date was that?\\nDefendant: That was \\u2014 this was right after Hugo, late ' 89 or early ' 90, somewhere around there, because it was after Hugo that I started making the fence.\\nWynter: Now did you ever took steps to get a surveyor to survey the property?\\nDefendant: No.\\nWynter: Did you ever reduce your conversation, an agreement as you said, with Mr. Stanley?\\nDefendant: Reduce it? When you say \\u2014\\nWynter: In writing.\\nDefendant: Reduce it to writing, no.\\nWynter: Okay. Did you ever give any compensation to Mr. Stanley?\\nDefendant: No.\\nTr. at 21. Defendant Browne further testified as to his understanding of the agreement under cross-examination by his own attorney:\\nAttorney Henderson (\\\"Henderson\\\"): Okay. And did Mr. Stanley agree with you, as well as his brother, that that fence can be perpetual, meaning it would be up for as long as it needed to be there?\\nDefendant: At least that's my understanding.\\nHenderson: And at no point did Mr. Stanley ever say to you, when you all agreed to erect this fence and follow your recommendation, that he only wanted your fence up there for a time certain.\\nDefendant: No.\\nTr. at 29. Browne then erected the chain link fence, with the help of two other men, with a portion of the fence on Plaintiffs abutting Property, to comply with the ten-foot setback. Tr. at 35-36. Defendant did not pay for the fence, having obtained if for free at the dump, and estimated that he paid the two men who helped him erect the fence $200 for their labor. Tr. at 35.\\nPlaintiff's brother Kirtly Stanley also testified as to his understanding of the agreement:\\nKirtly: Well, the \\u2014 the problem was, Quinton told me that Eric house was too far over, and they make a verbal agreement, was to give Eric \\u2014 supposed to give him piece of the land to the bottom and he take use of the top.\\nHenderson: Okay. And that was your understanding of the agreement between mister \\u2014 wait, let me finish, between Mr. Stanley, your brother, and Mr. Browne.\\nKirtly: Yes.\\nHenderson: Okay, and this agreement was told to you by Mr. Stanley, your brother.\\nKirtly: Both parties.\\nHenderson: By both of them.\\nKirtly: Yes.\\nHenderson: Okay. And were there any conversations about this agreement between the two of them while you were present? In other words\\nKirtly: No.\\nTr. at 46.\\nPlaintiff Quinton Stanley testified as to the alleged oral agreement thusly:\\nPlaintiff: I \\u2014 I gave him permission to temporarily construct a chain-link fence, due to the fact that when he was constructing his house \\u2014 before he constructed his house, he built a \\u2014 he built a storeroom on \\u2014 and half of his tool room was on \\u2014 on my property, and the agreement \\u2014 and the agreement was when he finish his house, he would take down the storeroom.\\nSo before he got \\u2014 to that point, to take down the storeroom, he wanted to construct the fence. So in order to constmct the fence, and to secure his property, he \\u2014 he had to go around his tool room or inside, which is he \\u2014 he choose to go around it. I \\u2014 I had no problem with it at the time, because it was a temporary thing.\\nWynter: Now, after the fence was constructed, did you and Mr. Eric Browne reach any agreement that was reduced to writing?\\nPlaintiff: No, sir. In fact \\u2014 in fact, a couple of time, I asked him when are you going to remove the fence? And he \\u2014 and he never respond.\\nTr. at 59-60.\\nBased on the testimony of both parties, the Court finds that the oral agreement between the parties permitting Browne to construct the chain link fence on Stanley's adjoining Property did not include any timeframe or duration for which the encroachment would be permitted. Although Defendant testified that it was his \\\"understanding\\\" that the fence line agreement was permanent, and although he stated that he was never told the arrangement was \\\"temporary,\\\" he also offered no testimony alleging that Plaintiff understood or ever stated that the arrangement was permanent. He did not testify or present any evidence to explain what led him to believe that the arrangement was permanent, and did not testify that the duration of the agreement was discussed between the two parties, at the time of the agreement or at any point thereafter.\\nOn the other hand, Plaintiff plainly testified that he \\\"gave [Defendant] permission to temporarily construct a chain-link fence.\\\" Tr. at 59. The Trial evidence established that the agreement was not the Court concludes that no definite timeframe for the duration of the agreement was included in the parties' oral agreement.\\nThe Court also finds, based on the testimony at Trial, that there would be little cost to Defendant to move the fence back to his own property. In fact, Plaintiff testified that he would remove Defendant's fence, and replace it with his own fence or wall on the correct boundary line at no cost to Defendant. When asked about the estimated cost to remove the fence, Defendant stated that he had \\\"no idea.\\\" Tr. at 3.\\nDISCUSSION\\nI. Defendant's \\\"Rule 50 Motion\\\"\\nAfter Plaintiff completed the presentation of his evidence at Trial, Defendant made an oral motion for directed verdict on the grounds that \\\"the plaintiff [had not] established the grounds for which he has filed his petition.\\\" Tr. at 104. Although Defendant chose not to file a post-trial brief, he argued at Trial that \\\"[t]here's been nothing before the Court to clearly indicate through expert testimony that there has been a boundary departure.\\\" Tr. at 105. However, based on the testimony quoted above, both parties clearly testified that a boundary departure had taken place. The encroachment of Defendant's fence onto Plaintiff's adjoining Property was never a fact in dispute. Defendant has offered no reason why expert testimony is required to establish an issue that is not disputed and on which both parties agree. Defendant's \\\"Rule 50 Motion\\\" will be denied.\\nII. Plaintiff could not orally grant Defendant a permanent interest in Plaintiffs real property\\nThe Statute of Frauds, codified in the Virgin Islands at V.I. Code Ann tit. 28, \\u00a7 241(a), requires that the conveyance of any interest in real property, outside of a lease for no more than one year, must be in writing. As made clear by all parties in this action, no part of the alleged agreement was ever in writing. Therefore, even if the Court had found that Plaintiff and Defendant had made an oral agreement granting Defendant the right to permanently place his fence on Plaintiff's Property, the agreement would be unenforceable and void or voidable. See Fountain Valley Corp. v. Wells, 19 V.I. 607 (D.V.1. 1983), aff'd, 728 F.2d 209 (3d Cir. 1984).\\nTherefore, because the agreement was oral and without a specified period of time, the Court finds that Plaintiff granted Defendant a revocable license to place his fence on Plaintiff's Property, which license was revoked when Plaintiff demanded that Defendant remove the portion of the fence that encroached onto Plaintiff's land. See Felker v. Stewart Title Guar. Co., 1998 U.S. Dist. LEXIS 17937, at *19 (M.D. Pa. Mar. 30, 1998) (stating that a license is where possession remains in the licensor and the licensee has a mere privilege of being on the land without being treated as a trespasser, and further, that a license is generally revocable).\\nIII. Defendant's equitable estoppel theory\\nDefendant made no legal argument identifying what property right Plaintiff granted Defendant by their oral agreement. Instead, Defendant's primary legal argument at Trial was that Plaintiff's claim should be denied based on an equitable estoppel theory. Tr. at 105, 112-16. Defendant cited Gov't Guar. Fund of Fin. v. Hyatt Corp., 955 F. Supp. 441, 35 V.I. 356 (D.V.I. 1997) for the general rule governing equitable estoppel:\\nThe first element of equitable estoppel isa representation of some kind made by the party to be estopped which often consists of some verbal statement that something is true or not true contrary to the actual facts and the estopped party's later claim. The second element is an intention or expectation that one's conduct shall be acted upon by, or influence, the party seeking estoppel. The third element is full knowledge by the party sought to be estopped of the true facts at the time of the representation. Finally, the party claiming estoppel must have, as a result of the other party's conduct, acted or failed to act so that his position was changed in such a way that he will suffer injury if the other party is not estopped, and the party claiming estoppel must not have had knowledge of the misrepresented facts.\\nGov't Guar. Fund of Fin. v. Hyatt Corp., 35 V.I. at 381 (internal quotations and citations omitted).\\nThe most glaring shortcoming in Defendant's reliance upon an equitable estoppel theory is his failure to show any substantial reliance or any injury. As to reliance, Defendant does not allege that any agreement took place until after his home was built. Therefore, the only \\\"reliance\\\" on the agreement that Defendant acted upon resulted in him erecting a fence, which he obtained at no cost, and his payment of $200 for labor to erect the fence. That fence has now stood for roughly 25 years. Only a portion of the fence encroaches onto Plaintiff's Property and only that portion would have to be removed or relocated. Therefore, Defendant's insistence that he substantially \\\"relied\\\" on the alleged agreement is unsupported by the record.\\nDefendant's claim as to any injury he may suffer if faced with an order to remove the fence is also lacking. Defendant's counsel argued that \\\"[wjhen [Defendant] relied on the fact that Mr. Stanley would give him that ten \\u2014 that ten feet buffer zone, that then would obviate the issue of the Department of Planning and Natural Resources (\\\"DPNR\\\") coming to an \\u2014 coming in there to create any issues for him or fine him.\\\" Tr. at 116. But Defendant has not argued that a valid property transfer has taken place and that he is now the owner of that portion of Plaintiff's land required to give him the proper 10-foot setback from the boundary with Plaintiff's Property. He argues only that he has an agreement to permit his fence to encroach onto Plaintiff's Property. But, whether the fence is allowed or not, Defendant remains in violation of the 10-foot setback requirement, as the setback requirement relates to the boundary line, not to the placement of any fence. Therefore, any issue raised over any possible future action by DPNR over Defendant's misplacement of his own home is irrelevant to the only issue before the Court, whether there was a temporary or permanent agreement as to the placement of that fence by Defendant on Plaintiff's Property, and the enforceability of that agreement.\\nIV. Defendant's Counterclaim\\nDefendant's Counterclaim alleges breach of contract in that \\\"eleven years after the agreement to erect the permanent wall, [Stanley] demanded that [Browne] remove the wall. [Stanley's] conduct in demanding the removal was a breach of the oral agreement. As a result of [Stanley's] actions, [Browne] has sustained economic damages.\\\" Defendant's Answer and Counterclaim, at 3.\\nAs stated above, 28 V.I.C. \\u00a7 241 requires that any agreement granting Defendant an interest in Plaintiff's Property must have been in writing to be effective. Defendant admitted that the agreement was never reduced to writing. Therefore, no enforceable \\\"contract\\\" was created and Defendant's claim is without merit. Further, Browne at no time offered any evidence of \\\"economic damages\\\" resulting from Stanley's demand for the removal or relocation of the encroaching portion of the fence on his Property. No evidence was presented at Trial and no legal theory offered giving credence to the claim that Stanley breached the parties' oral agreement by demanding that Browne remove the fence from his Property. Therefore Defendant's Counterclaim will be dismissed with prejudice.\\nCONCLUSION\\nRoughly twenty-five years ago, two neighbors made a vague oral agreement that one could erect a chain-link fence, a portion of which would encroach on the other's land. Nothing was put in writing and the duration of the permitted encroachment was never discussed. Plaintiff, the neighbor whose land is being encroached upon, now seeks judgment requiring the removal of that portion of the fence that encroaches onto his Property. The removal or relocation of this portion of fence will cause no substantial injury to Defendant. Therefore, the Court will enter judgment ordering Defendant to remove any and portions of his fence encroaching onto Plaintiff's Property.\\nA Judgment Order consistent with this Memorandum Opinion will issue herewith.\\nPlaintiff is represented by Eszart A. Wynter, Sr., Esq. Defendant was represented at Trial by Emile A. Henderson, III, Esq. By Stipulation for Substitution of Counsel, filed December 31, 2014, granted by Order entered January 12, 2015, Yvette D. Ross-Edwards, Esq. became counsel for Defendant.\\n\\\"Kirtly Stanley\\\" was also referred to as \\\"Carl\\\" throughout the Trial. See Trial Transcript (Tr.) at 37. Kirtly Stanley is the brother of Plaintiff.\\nFed. R. Civ. P. 50, applicable per SUPER. Ct. R. 7, relates to amotion seeking judgment as a matter of law following the presentation of evidence by the party bearing the burden of proof in a jury trial. Here, the oral motion was accepted as seeking entry of judgment in favor of Defendant for Plaintiff's failure to meet its burden of proof.\\nNo evidence was presented and no reference was made at Trial to the applicable zoning provisions of Title 29 of the Virgin Islands Code, or to the zoning district within which the Property lies, but both parties concurred that the Property is subject to a 10-foot setback requirement.\\nPlaintiff later stated that Defendant's house is between five to seven feet from Plaintiffs Property boundary at its closest point. Tr. at 56.\\nThere was no testimony at Trial, from Plaintiff, Defendant or Kirtley Stanley, that alleged that either party made any reference as to the length of the agreement at the time the agreement was made. Although Defendant repeatedly argued that Plaintiff did not state to Defendant that the fence agreement was \\\"temporary,\\\" he offers no argument why the Court should interpret the lack of a specific duration of time should cause the Court to interpret the agreement to be permanent, especially when the overall nature of the agreement was so casual and informal in nature.\\nFrom the Trial:\\nWynter: Would it be, from your opinion, costly to move it, or him to move his fence and put it where it belongs?\\nPlaintiff: My \\u2014 I'll say no.\\nWynter: Okay.\\nPlaintiff: And if you want \\u2014 and if you want me to remove it, you know, I'll remove it. Wynter. You'll remove it for him?\\nPlaintiff: Free of cost.\\nWynter: Okay.\\nPlaintiff: Just want my property.\\nWynter: And then you would put up your own fence?\\nPlaintiff: Yes, sir.\\nTr. at 102.\\nA point of confusion at Trial was whether the central issue of this case is a land swap by the parties, thereby changing the boundaries of each party's property, or whether the agreement only concerned the right of Defendant to place his fence on Plaintiff s Property. The Court attempted to make a distinction between any issue about the placement of the fence and the location of the boundary during the Trial:\\nThe Court: Excuse me. You say move the boundary. There's been testimony already that there was no surveyor brought in, so I'm not clear when you say move \\u2014 \\u2022\\nHenderson: Well, when Isay \\u2014 I'm talking about the fact that the plaintiffs have argued that mister \\u2014 that the fence is on their boundary. So assuming that it is on Mr. Stanley's property, I'm asking, based on his agreement, whether or not that fence, or that boundary, ever had been moved within the ten feet that they agreed to.\\nThe Court: So when you say \\u2014\\nHenderson: Not necessarily that \\u2014 that anything officially has been moved, or entered into, to show that, but that, based on their agreement, had that issue been moved over ten feet.\\nThe Court: Okay. And are you \\u2014 is the construction of the fence a part of your question, or are you equating movement of the boundary as being the same as construction of the fence?\\nMr. Henderson: No, no. It's two separate things.\\nThe Court: Okay.\\nTr. at 26-27. Defendant's assertion at Trial that the boundary and the fence are distinctly different; and Defendant's Counterclaim alleging only breach of the oral \\\"contract\\\" that Defendant \\\"would erect a permanent wall which would have been on Plaintiff/Counterclaim Defendant's property\\\" suggest that the sole disputed issue in this case relates to the alleged agreement concerning the placement of a fence by Defendant on Plaintiff's Property, not to any actual land transfer between the parties, or a dispute about the property boundary line. See Defendant's Answer and Counterclaim, at 2.\\nPlaintiff s Post-Trial Brief argues that Plaintiff granted Defendant a revocable license/easement. Plaintiff's Post-Trial Memorandum, at 1.\\nThe United States Supreme Court has stated that \\\"a hallmark of the [equitable estoppel] doctrine is its flexible application .\\\" and that \\\"the party claiming the estoppel must have relied on its adversary's conduct in such a manner as to change his position for the worse, and that reliance must have been reasonable in that the party claiming the estoppel did not know nor should it have known that its adversary's conduct was misleading.\\\" Heckler v. Community Health Sens., 467 U.S. 51, 59, 104 S. Ct. 2218, 81 L. Ed. 2d 42 (1984) (internal quotations and citations omitted). The record reflects that the only \\\"change in position\\\" that Defendant took based on his interpretation of the agreement is the placement of the fence, which only amounted to a deviation from the boundary by a few feet, over a relatively small portion of fence line.\\nThe testimony of all parties supports this sequence of events, as does the argument of Defendant's attorney, who stated at Trial that \\\"the house was built and close on the boundary. Mr. Browne then discovered that issue and brought it to the attention of Mr. Stanley.\\\" Tr. at 115. Defendant's counsel then seemingly contradicted himself and the testimony of all parties, stating that \\\"[t]he damages in this case, Your Honor, speak specifically to the fact that Mr. Browne has relied on where that fence is for purposes of his home.\\\" Tr. at 115.\\nDefendant testified that he has never been contacted by DPNR about his apparent violation of the 10-foot setback requirement. Tr. at 36.\"}"
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+"{\"id\": \"4237422\", \"name\": \"BRAD ROBBINS, Plaintiff v. PORT OF SALE, INC., MOJO'S RUM & SURF SHACK, LLC, THE ROCK NIGHT CLUB & LOUNGE, LLC, and ASHANA N. POWELL, Defendants; THE ROCK NIGHT CLUB & LOUNGE, LLC, Third-Party Plaintiff v. INTERSCOPE SECURITY, INC., and COMMERCIAL SECURITY SERVICES LTD., INC., Third-Party Defendants\", \"name_abbreviation\": \"Robbins v. Port of Sale, Inc.\", \"decision_date\": \"2015-03-06\", \"docket_number\": \"Case No. ST-12-CV-90\", \"first_page\": 151, \"last_page\": \"159\", \"citations\": \"62 V.I. 151\", \"volume\": \"62\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Superior Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T00:30:21.626342+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BRAD ROBBINS, Plaintiff v. PORT OF SALE, INC., MOJO\\u2019S RUM & SURF SHACK, LLC, THE ROCK NIGHT CLUB & LOUNGE, LLC, and ASHANA N. POWELL, Defendants THE ROCK NIGHT CLUB & LOUNGE, LLC, Third-Party Plaintiff v. INTERSCOPE SECURITY, INC., and COMMERCIAL SECURITY SERVICES LTD., INC., Third-Party Defendants\", \"head_matter\": \"BRAD ROBBINS, Plaintiff v. PORT OF SALE, INC., MOJO\\u2019S RUM & SURF SHACK, LLC, THE ROCK NIGHT CLUB & LOUNGE, LLC, and ASHANA N. POWELL, Defendants THE ROCK NIGHT CLUB & LOUNGE, LLC, Third-Party Plaintiff v. INTERSCOPE SECURITY, INC., and COMMERCIAL SECURITY SERVICES LTD., INC., Third-Party Defendants\\nCase No. ST-12-CV-90\\nSuperior Court of the Virgin Islands Division of St. Thomas and St. John\\nMarch 6, 2015\\nDaryl C. Barnes, Esq., Bryant, Barnes, Blair & Benoit, LLP, Christiansted, St. Croix, US VI, Attorney for Commercial Security Services, Ltd., Inc.\\nJoseph J. Goldberg, Esq., Cole, Scott & Kissane, P.A., Miami, EL, Attorney for Port of Sale, Inc.\\nRYAN C. Meade, esq., Quintairo, Prieto, Wood & Boyer, P.A., Miami, FL, Attorney for Interscope Security, Inc.\\nCharles S. Russell, Jr., Esq., Moore, Dodson & Russell, P.C., St. Thomas, USVI, Attorney for Mojo\\u2019s Rum & Surf Shack, LLC.\\nSTACEY L. White, Esq., Stacy L. White, P.C., Christiansted, USVI, Attorney for Port of Sale, Inc.\\nMichaelL. Sheesley, Esq., Michael L. Sheesley, PC., St. Thomas, USVI, Attorney for Brad Robbins.\\nW. Mark Wilczynski, Esq., Law Office of W. Mark Wilczynski, P.C., St. Thomas, USVI, Attorney for The Rock Nightclub & Lounge, LLC.\", \"word_count\": \"2836\", \"char_count\": \"17879\", \"text\": \"MACKAY, Judge\\nMEMORANDUM OPINION\\n(March 6, 2015)\\nTHIS MATTER is before the Court on Third-Party Defendant Interscope Security's Motion to Dismiss Third-Party Complaint. Interscope moves to dismiss Third-Party Plaintiff The Rock Night Club & Lounge's Third Party Complaint pursuant to Fed. R. Civ. P. 12(b)(6) (as incorporated by Super. Ct. R. 7) for failure to state a claim upon which relief can be granted. Interscope argues that The Rock's third-party actions for contribution and indemnity are impermissible, because the statute of limitations for the predicate tort has expired and Interscope can no longer be found liable to the plaintiff in tort.\\nI. Background\\nPlaintiff Brad Robbins alleged in his Complaint that he sustained serious bodily injury and permanent physical disability after Defendant Ashana N. Powell attacked him with a broken beer bottle on March 1, 2010 in a parking lot at Havensight Mall. Complaint at 1-4, Robbins v. Port of Sale, ST-12-CV-90 (V.I. Super. Ct. Mar. 1, 2012). On March 1, 2012, he filed a Complaint with the Court naming as defendants Powell and three businesses located near the attack, including The Rock. Id. at 1-2. Robbins alleged that ah altercation that began in The Rock spilled into a nearby parking lot, and there culminated in the beer bottle assault. Id. at 2-3. His pleadings included claims against The Rock for negligent and reckless conduct on the grounds that The Rock's security was not adequate to prevent his injuries. Id. at 6.\\nOn September 10,2014, the Rock filed a Third Party Complaint against Interscope and Commercial Security Services, Ltd. with the Court's permission. The Rock alleged that it had contracted with Interscope to provide security at The Rock and that another of the Havensight businesses, Port of Sale, had contracted with Commercial to provide security for the common areas between the businesses. Third Party Complaint at 1-3, Robbins v. Port of Sale, ST-12-CV-90 (V.I. Super. Ct. Sept. 10, 2014). The Rock sued for indemnity and contribution, arguing that Interscope, as the party responsible for security by contract, should be liable for some or all of the damages, if any, which resulted from inadequate security. Id. at 3-4.\\nInterscope moved to dismiss, arguing that indemnity and contribution actions can only succeed when the defendant is \\\"or may be liable\\\" for the same harm as the plaintiff. Motion to Dismiss Third-Party Complaint at 7, 9, Robbins v. Port of Sale, ST-12-CV-90 (V.I. Super. Ct. Nov. 14, 2014) (citing Restatement (Third) of Torts \\u00a7 22-23 (2000)). The statute of limitations for personal injury actions in the Virgin Islands is two years, V.I. CODE Ann. tit. 5, \\u00a7 31 (West, Westlaw through 2013 Act 7578), and that statute of limitations had long expired by the time The Rock filed its third-party complaint. Therefore, Interscope claims it is not possibly liable to Robbins and, as a result, The Rock cannot maintain a claim for indemnity or contribution against Interscope. Id. at 7-10. Or, stated another way, Interscope claims that the definitions of indemnity and contribution incorporate the statute of limitations for the predicate tort by implication. The Rock opposed the motion arguing that indemnity and contribution are derivative actions separate from the predicate tort and not subject to the same filing limitations as the original tort itself.\\nSince all sides agree that The Rock filed its Third Party Complaint more than two years after Robbins's alleged attack, the question presented to the Court is a question of pure law that is dispositive for Interscope's motion.\\nII. Analysis\\nNeither party has identified a statute or a binding decision from an authoritative court that plainly establishes whether the limitations of actions for indemnity and contribution are the same as the predicate tort's. Both parties agree, therefore, that it is incumbent on the Court to establish the rule for the Virgin Islands' nascent common law, pursuant to Banks v. International Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011), and Government of the Virgin Islands v. Connor, 60 V.I. 597 (V.I. 2014). Banks and Connor provide some guidance to the common law-making process by encouraging a three-step analysis: first, the Court should \\\"ascertain whether any . . . local courts have considered the issue\\\" of the scope of limitations of actions for indemnity and contribution \\\"and rendered any reasoned decisions upon which litigants may have grown to rely.\\\" Connor, 60 V.I. at 603. Second, the Court should take notice of the \\\"position taken by a majority of courts from other jurisdictions\\\" and consider \\\"the potentially different ways that other states and territories have\\\" limited actions for indemnity and contribution. Id. Finally, the Court must, in light of the findings from the Virgin Islands and elsewhere, determine and adopt the best and most appropriate rule \\\"based on the unique characteristics and needs of the Virgin Islands.\\\" Id. The analysis is straightforward in this case.\\nA. Virgin Islands Case Law\\nOnly one pre-Banks Virgin Islands case squarely addressed whether the limitation of action for contribution is coterminous with the predicate tort's. Beloit Power Systems, Inc. v. Hess Oil Virgin Islands Corp., 561 F. Supp. 279, 19 V.I. 519 (D.V.I. 1983), overruled on other grounds by Beloit Power Systems, Inc. v. Hess Oil Virgin Islands Corp., 757 F.2d 1427 (3d Cir. 1985). In Beloit, Beloit Power sued Hess Oil for contribution for injuries sustained by a worker who was installing Beloit equipment at the Hess Oil refinery in My 1974. Id. 19 V.I. at 522. Hess Oil argued that Beloit's contribution claim, filed in April 1980, was long since time-barred. Relying on the Restatement (Second) of Torts, the District Court of the Virgin Islands held that \\\"[a] cause of action for contribution does not arise until Ml payment has been made by the tortfeasor seeking contribution,\\\" id., 19 V.I. at 531, and that because Beloit's insurer had not paid the injured worker until January 1980, the clock had only been running for three months when Beloit filed' for contribution. Beloit's situation is nearly identical to The Rock's: both filed for contribution past the date by which the plaintiff in tort could have sued the third-party defendant. The primary difference is that Beloit had already paid a judgment to the injured worker and so had started its clock, whereas The Rock is even earlier in the process, not having sustained a judgment or settlement in favor of Robbins to date.\\nA different line of cases suggests that actions for contribution and indemnity generally have different limitations than the predicate tort, particularly in terms of the date on which the cause of action accrues. See Dublin v. Virgin Islands Telephone Corp., 15 V.I. 214 (V.I. Terr. Ct. 1978) (holding that a claim for contribution or indemnity does not accrue on the date of the tort); Martinez v. Frazer, 23 V.I. 53, 57 n.2 (V.I. Terr. Ct. 1987) (\\\"We agree with the Dublin court that an action for contribution is distinct from the underlying cause of action on which it is based\\\"); Remy v. Kmart Corp., 2008 U.S. Dist. LEXIS 41584, at *3 (D.V.I. 2008) (Maj. Op.) (\\\"Defendant asserts that its third-party complaint is not time-barred because actions for contribution are derivative and accrue from the date of judgment or satisfaction of the judgment. Generally, this assertion is correct\\\"). However, despite providing commentary on contribution and indemnity limitations generally, usually in dicta, these particular cases ultimately concerned limitations of actions arising under the Virgin Islands Tort Claims Act, V.I. Code Ann. tit. 33, \\u00a7 3408-3413 (West, Westlaw through 2013 Act 7578), which is not implicated here.\\nThe parties also cited to a handful of cases that address contribution and indemnity more generally, often relying heavily on the Restatements. However, they do not address the limitation question at issue in this case. See Beloit Power Systems, Inc. v. Hess Oil Companies, Inc., 18 V.I. 317 (D.V.I. 1981); Kelvin Manbodh v. Hess Oil Virgin Islands Corporation, 47 V.I. 375 (V.I. Super. Ct. 2006); Vandenhouten v. Olde Towne Tours, LLC, 52 V.I. 551 (D.V.I. 2009); Whitecap Inv. Corp. v. Putnam Lumber & Exp. Co., 2013 U.S. Dist. LEXIS 39062 (D.V.I. March 21, 2013); Davis v. Sunrise Med. US, LLC, 2013 U.S. Dist. LEXIS 99711 (D.V.I. July 17, 2013). The modest volume of relevant cases does not suggest that Virgin Islands litigants \\\"have grown to rely\\\" on a particular rule, although it does point weakly toward a finding against coterminous limitations of actions.\\nB. Practice in Other Common Law Jurisdictions\\nThe practice of the wider world of American common law is substantially more helpful to the Court's analysis. \\\"The rule generally recognized in most jurisdictions is that the cause of action for contribution or indemnity based upon tort is distinct from the cause of action for the underlying tort, and the time when the statute of limitations starts to run upon such cause of action is not when the tort is committed, but when the underlying claim, a judgment thereon, or a settlement thereof is paid or discharged.\\\" Maurice T. Brunner, Annotation, When Statute of Limitations Commences to Run Against Claim for Contribution or Indemnity Based on Tort, 57 A.L.R.3D 867, *2 (February 10, 2015). The Restatement (Third) of Torts, which both parties agree is the most persuasive secondary source for issues of contribution and indemnity, is unambiguous in saying that the limitation of action for the predicate tort does not similarly time-bar derivative indemnity and contribution actions. See Restatement (Third) of Torts: Apportionment of Liability \\u00a7 22 cmt. d (2000) (\\\"A potential indemnitor is not protected from indemnity when the indemnitor would not have been liable to the plaintiff solely because of a statute of limitation.\\\"); Restatement (Third) of Torts: Apportionment of Liability \\u00a7 23 cmt. k (2000) (\\\". . . a person is not protected from contribution by the fact that the plaintiff would be precluded from recovery because of a statute of limitation.\\\"). For each cause of action, the particular law of the relevant jurisdiction governing limitations of actions should establish the deadlines for indemnity and contribution actions. Restatement (Third) of Torts: Apportionment of Liability \\u00a7 22 cmt. d (2000); Restatement (Third) of Torts: Apportionment of Liability \\u00a7 23 cmt. k (2000).\\nThe Restatement (Second) of Torts, although more prescriptive than the Restatement (Third), aligns with the same result. See RESTATEMENT (Second) of Torts \\u00a7 886A cmt. g (1979) (\\\". . . the cause of action for contribution cannot arise until full payment has been made, which may be a great deal later than the original injury. The contribution suit should therefore be made subject to its own statute of limitations, sufficiently short to afford protection against undue extension of the tortfeasor's liability.\\\"). The Third Circuit confirmed the same rule in Sea-Land Service Inc. v. United States, 874 F.2d 169 (3d Cir. 1989), holding that \\\"the general rule [is] that a cause of action for contribution does not arise until the party seeking contribution has paid, or had a judgment rendered against [it] for, more than [its] fair share of common liability.\\\" Id. at 171. Interscope provided no evidence that its preferred rule has been adopted anywhere.\\nC. Virgin Islands Public Policy\\nHaving found that the practice in the Virgin Islands and elsewhere favors treating limitations of actions for indemnity and contribution differently than limitations on their predicate torts, it still remains for the Court to satisfy itself that the reasoning behind this practice is sound for the Virgin Islands moving forward. The Court is persuaded on this score. The primary purpose of giving separate limitations \\\"is that otherwise the injured party could foreclose a tortfeasor's right to contribution [or indemnity] by waiting to bring his action until just before the statute of limitations ran on his claim.\\\" Maurice T. Brunner, Annotation, When Statute of Limitations Commences to Run Against Claim for Contribution or Indemnity Based on Tort, 57 A.L.R.3D 867, *3A (February 10, 2015). The Rock's situation demonstrates the problem perfectly. Robbins did not file his complaint until exactly two years after the attack. Under Interscope's theory, The Rock would have had to implead Interscope on the very same day (in the unlikely event The Rock even received notice of the filing that day) or preemptively file for contribution and indemnity before knowing whether there would be a suit at all.\\nThe best argument in favor of coterminous limitations of actions stems from the observation that indemnity and contribution cases will turn on substantially similar evidence as the predicate tort itself. Because\\nit is with rare exceptions that tortious conduct... is subject to documentation. [Generally, the proof rests on the testimony of the parties and their witnesses. The longer the delay of the plaintiff in the institution of his suit, the greater the likelihood that the evidence will be lost, memories blurred, or the witnesses become altogether unavailable. Potential defendants, therefore rightly are protected from the fear of litigation by the requirement that the injured party act with due diligence.\\nDublin, 15 V.I. at 232-33. The same policy considerations that compel short limitations on tort actions might therefore similarly compel short limitations on the derivative indemnity and contribution actions. Although these considerations are forceful, the Court nonetheless holds that adopting the same rule as the majority of jurisdictions is the better course for the Virgin Islands, because it avoids the peculiar result of forcing responsible persons who fear potential litigation to preemptively file for indemnity or contribution before the plaintiff in tort files a complaint. Moreover, this decision does not require that the limitations on indemnity and contribution actions be non-existent; although the Court need not establish the precise limitations of actions for indemnity and contribution here, as it is not required for the decision, there is no reason those limitations cannot be made sufficiently short so as to vindicate the parties' interest in avoiding stale litigation.\\nTherefore, the Court holds that the statute of limitations for contribution and indemnity in the Virgin Islands is not coterminous with the statute of limitations for the predicate tort; the causes of action for contribution and indemnity do not accrue at the time of the tort, but only when liability is discharged.\\nIII. Conclusion\\nHaving found that the limitations of actions for contribution and indemnity in the Virgin Islands are not coterminous with the limitation of action for the predicate tort, Interscope's Motion to Dismiss Third-Party Complaint will be denied. An appropriate order will accompany this opinion.\\nFiled on November 14,2014. Defendant and Third-Party Plaintiff The Rock Night Club & Lounge filed its opposition on November 19, 2014. Interscope did not file a reply.\\nRequested on March 19, 2014 and granted on August 27, 2014.\\nThat is, the plaintiff in the indemnity or contribution action, not the plaintiff in the predicate tort action.\\nSection 31 of Title 5 of the Virgin Islands Code only identifies a two-year limitation for personal injury actions and a ten-year residual limitation of all actions not otherwise specified. The clock begins to run when \\\"the cause of action shall have accrued.\\\"\\nIn fact, Martinez and Remy found that, despite the general rule, the limitations of actions for indemnity and contribution are coterminous with the predicate tort under the statute.\\nThe Restatement (Second) does not offer any equivalent commentary on Indemnity.\\nThis Third Circuit case originated in New Jersey in a federal admiralty action, although its conclusions concerning the statute of limitations quoted here do not rely on either New Jersey law or federal admiralty law. Had the case originated in the Virgin Islands, it might have resolved the question presented in this case such that recourse to Banks and Connor would be unnecessary.\\nIn Martinez, the Territorial Court concluded that this irregular timing issue was not a fatal problem. However, the Territorial Court decided Martinez based on the Virgin Islands Tort Claims Act, which provides litigants the option to extend the filing deadline by filing a notice of intent to file suit against the Government. The Tort Claims Act is not implicating in the current case as Interscope is not a government agency.\"}"
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+"{\"id\": \"4345419\", \"name\": \"LORI GILMORE MALLOY f/k/a LORI GILMORE, Appellant/Plaintiff v. CARMEN REYES, MARY J. FLORES, JEAN PAUL, Executor of the Estate of Earl Christian, LEAYLE BATTISTE, Administrator of the Estate of Buelah Battiste, KARL R. PERCELL and CAROLYN P. HERMON-PERCELL, Co-Trustees of the Trust Agreement of Karl R. Percell dated January 28, 1999 and the Trust Agreement of Carolyn P. Hermon-Percell dated January 28, 1999, HARRY GAURILOFF, and GOVERNMENT OF THE VIRGIN ISLANDS, Appellees/Defendants\", \"name_abbreviation\": \"Malloy v. Reyes\", \"decision_date\": \"2014-07-22\", \"docket_number\": \"S. Ct. Civil No. 2012-0081\", \"first_page\": 163, \"last_page\": \"186\", \"citations\": \"61 V.I. 163\", \"volume\": \"61\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Supreme Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T01:38:47.190280+00:00\", \"provenance\": \"CAP\", \"judges\": \"HODGE, Chief Justice-, CABRET, Associate Justice-, and SWAN, Associate Justice.\", \"parties\": \"LORI GILMORE MALLOY f/k/a LORI GILMORE, Appellant/Plaintiff v. CARMEN REYES, MARY J. FLORES, JEAN PAUL, Executor of the Estate of Earl Christian, LEAYLE BATTISTE, Administrator of the Estate of Buelah Battiste, KARL R. PERCELL and CAROLYN P. HERMON-PERCELL, Co-Trustees of the Trust Agreement of Karl R. Percell dated January 28, 1999 and the Trust Agreement of Carolyn P. Hermon-Percell dated January 28, 1999, HARRY GAURILOFF, and GOVERNMENT OF THE VIRGIN ISLANDS, Appellees/Defendants\", \"head_matter\": \"LORI GILMORE MALLOY f/k/a LORI GILMORE, Appellant/Plaintiff v. CARMEN REYES, MARY J. FLORES, JEAN PAUL, Executor of the Estate of Earl Christian, LEAYLE BATTISTE, Administrator of the Estate of Buelah Battiste, KARL R. PERCELL and CAROLYN P. HERMON-PERCELL, Co-Trustees of the Trust Agreement of Karl R. Percell dated January 28, 1999 and the Trust Agreement of Carolyn P. Hermon-Percell dated January 28, 1999, HARRY GAURILOFF, and GOVERNMENT OF THE VIRGIN ISLANDS, Appellees/Defendants\\nS. Ct. Civil No. 2012-0081\\nSupreme Court of the Virgin Islands\\nJuly 22, 2014\\nJAMES M. Derr, Esq., St. Thomas, USVI, Attorney for Appellant.\\nAtom D. Abraham, Esq., Assistant Attorney General, St. Thomas, USVI, Attorney for Appellee Government of the Virgin Islands.\\nKarlR. Percell, Esq., Law Offices of Percell & Hermon-Percell, P.C., St. Thomas, US VI, Attorney for Appellees Leayle Battiste, Mary J. Flores, Jean Paul, and Carmen Reyes.\\nLemuel F. Callwood, Esq., St. Thomas, USVI, Attorney for Appellees Carolyn P. Hermon-Percell and Karl R. Percell.\\nHODGE, Chief Justice-, CABRET, Associate Justice-, and SWAN, Associate Justice.\\nAlthough Karl R. Percell, Esq., and Lemuel F. Callwood, Esq., filed notices of appearance, they did not file briefs or otherwise participate in this appeal.\", \"word_count\": \"8397\", \"char_count\": \"50736\", \"text\": \"OPINION OF THE COURT\\n(July 22, 2014)\\nCABRET, Associate Justice.\\nLori Gilmore Malloy appeals a Superior Court judgment holding that an unpaved trail providing access to her property on St. John is no longer a public right-of-way. We reverse because the Superior Court erred in concluding that the trail was abandoned and that, as a result, the trail lost its public status. Furthermore, we remand for the Superior Court to set out the metes and bounds of the public easement.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nFirst settled by Danish colonists in the 1720s, the east end peninsula of St. John was an isolated and sparsely populated area of the Danish West Indies. In 1780, Peter Oxholm surveyed the islands of the Danish West Indies for the Danish government. At that time, there were five settlements on the east end, linked to Cruz Bay on the west end \\u2014 the administrative and economic center of the island \\u2014 by a road Oxholm marked in yellow. This road connected the wider network of roads throughout the island to the settlements in the east end peninsula by first running south near the coast then turning east, toward Newfound Bay, to reach inland settlements at higher elevations. Another map created by Oxholm in 1800 depicted the same road marked in yellow connecting the east end community to the rest of St. John.\\nBetween 1822 and 1913, the east end was divided into fifty-one parcels, with deeds from this time referencing a public road in the area. Then, in 1916, Denmark and the United States entered into a treatytransferring the Danish West Indies \\u2014 comprising the islands of St. John, transferring the Danish West Indies \\u2014 comprising the islands of St. John, St. Thomas, St. Croix, Water Island, and associated islands and cays \\u2014 to the United States. Soon after assuming control over these islands on March 31,1917, the U.S. government \\u2014 like Denmark before it \\u2014 sent a survey team to the newly established United States Virgin Islands. The resulting survey map, produced by the U.S. Coast and Geodetic Survey (\\\"CGS\\\"), depicted the east end road turning inland into the hills of the east end like Oxholm's maps before it.\\nSt. John's east end peninsula as depicted in the U.S. Coast and Geodetic Survey map. Malloy introduced the full map as an exhibit at trial.\\nThe CGS's accompanying descriptive report explained that \\\"[t]he roads are scarcely more than good mountain trails. As they are all public roads and maintained they are shown in full.\\\" This map was republished in 1934, still marking the road as originally depicted in Oxholm's maps, but later 1958 and 1982 reproductions showed the road on the east end taking a different path \\u2014 continuing south along the coast instead of turning inland. Later maps maintained by the Virgin Islands Government similarly showed the road continuing south along the coast. This road, running to Long Bay at the southern tip of the east end peninsula, is commonly referred to as East End Road and is officially designated as Route 10 by the Virgin Islands Government. The portion of this road turning inland toward Newfound Bay remains unpaved, and is still marked on more recent survey maps with notes indicating uncertainty as to whether this portion of the road \\u2014 commonly referred to as Old Broad Road \\u2014 is a public right-of-way or just a trail on private property.\\nIn 1993, Malloy purchased one of the parcels on the east end, Parcel 6S of Estate Hansen Bay, also called \\\"Pleasant Lookout.\\\" After purchasing Parcel 6S, Malloy used Old Broad Road several times to access her property before leaving the island in 2000. In 2004, the owners of neighboring Parcel 6T, \\\"Estate Hard Labor,\\\" and Parcel 9A of Newfound Bay, agreed to grant one another easements over the portion of the road crossing their properties, and to divide the cost of paving and expanding Old Broad Road to make Parcels 6T and 9A accessible by vehicle. On April 11, 2008, Malloy was informed by email that the Virgin Islands Department of Public Works (\\\"DPW\\\") issued a permit allowing the owners of Parcels 6T and 9A to develop a private roadway that she would not be able to use without obtaining an easement. See 20 V.I.C. \\u00a7 7(a) (\\\"No person shall cut, grade, construct or cover with concrete or any other surface material any private road or driveway which intersects with a public road without first applying for, and obtaining, a permit from the Commissioner of Public Works.\\\").\\nMalloy returned in 2009 to discover a chain and \\\"no trespassing\\\" sign blocking Old Broad Road. She then brought this action against the owners of the neighboring properties and the Government of the Virgin Islands, seeking a declaratory judgment that Old Broad Road is a public right-of-way \\u2014 or alternatively that she is entitled to a private prescriptive easement, easement by implication, or easement by necessity \\u2014 and seeking injunctive relief ensuring access to her property.\\nThe Superior Court held a two-day bench trial beginning May 8, 2012. During the course of trial, Malloy testified first, followed by longtime east end residents Violet Sewer Mahabir, Guy Benjamin, and Kendell Antony, who agreed that Old Broad Road has always been considered a public right-of-way by the community, with Mahabir and Benjamin testifying that a DPW employee maintained a portion of the road from 1956 to sometime in the 1970s. This maintenance included relocating and straightening a portion of the road that was blocked by a boulder, allowing people to reach the house immediately west of Parcel 6S on Old Broad Road by vehicle.\\nMalloy also called historian George Tyson to provide expert testimony on the history of roads on the east end. Tyson testified that he had examined the historical documents, including the Oxholm and CGS maps, and concluded that Old Broad Road was a public right-of-way, or \\u2014 as described in Danish times \\u2014 a \\\"King's Road.\\\" He based this conclusion partly on his determination that by marking this right-of-way in yellow in the 1780 and 1800 maps, Oxholm was marking it as a public road maintained by Danish colonial authorities. During Tyson's research, he also came across two deeds \\u2014 one from 1835 and another from 1912 \\u2014 transferring land in the area, both referencing a public road in the area of what is now called Old Broad Road. Finally, Tyson testified that based on his analysis, the road depicted in the Oxholm and CGS maps ended at the top of the hill where Parcel 6S is located.\\nMalloy also introduced the video deposition testimony of Marvin Berning. In his deposition, Beming stated that he has extensive experience surveying the east end of St. John and served as a Special Master in property disputes in the Virgin Islands. He testified that he has done extensive surveying in the east end to determine property boundaries, searching through property records in the Virgin Islands and Denmark, interviewing longtime residents, and commissioning aerial photography. Beming's analysis resulted in the same conclusion as Tyson's, that the road marked in the Oxholm and CGS maps ran to the top of the hill on Parcel 6S, and was consistently identified in these historical maps as a public right-of-way. Following Beming's testimony, Malloy rested.\\nThe Government then called Chester Paul, a DPW Territorial Surveyor. On cross-examination, Paul initially agreed that the CGS map showed the road going \\\"to the plateau at the top of the hill,\\\" but then immediately following this statement testified that \\u2014 based on an analysis conducted two days before trial \\u2014 the road depicted in the CGS map ends on Parcel 6T, 350 feet short of Parcel 6S. Malloy objected, moving to strike Paul's testimony because he failed to supplement his expert report with this new evidence, but the Superior Court denied this motion. The Government then called Wayne Callwood, a Public Surveyor with the Lieutenant Governor's Office, who testified that he was not aware of any surveys done by the Government that include Old Broad Road and that he has never seen anything suggesting that the Government maintains any roads in that area. In a July 26,2012 Opinion and Order, the Superior Court held that even though the evidence showed that Old Broad Road was once a public trail, it is no longer a public right-of-way because it was abandoned, but held that Malloy has a prescriptive easement by necessity over the road because she has no other means of accessing her property. Malloy filed a timely notice of appeal on August 17, 2012.\\nII. JURISDICTION\\n\\\"The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law.\\\" 4 V.I.C. \\u00a7 32(a). Because the Superior Court's July 26, 2012 Order \\\"dispose[d] of all of the claims submitted to the Superior Court for adjudication,\\\" it was a final order, and this Court has jurisdiction over Malloy's appeal. Chapman v. Cornwall, 58 V.I. 431, 436 (V.I. 2013) (quoting Matthew v. Herman, 56 V.I. 674, 677 (V.I. 2012)).\\nIII. DISCUSSION\\nMalloy argues that this Court should reverse because the undisputed historical evidence established that Old Broad Road was a public right-of-way under both Danish and American administration, and the Superior Court erred in holding that it was subsequently abandoned by the Virgin Islands Government. She also asserts that the Superior Court erred in characterizing Berning as a lay witness and admitting Paul's testimony that Old Broad Road ended before reaching Parcel 6S. We agree on all counts.\\nA. Status of Old Broad Road\\nThe crux of Malloy's arguments is her assertion that because Old Broad Road was a public right-of-way before the Virgin Islands became part of the United States in 1917, it remains a public right-of-way today. The Superior Court found that \\\"[t]he Oxholm maps and other evidence indicate that rights of way of unknown dimensions and passable only on foot or horseback were recognized as public 'riding trails' in Danish times,\\\" and continued to be recognized as public trails shortly after the Virgin Islands became a U.S. territory. Notwithstanding the finding that the roads outlined on the Oxholm and CGS maps \\u2014 including Old Broad Road \\u2014 were historically public, the Superior Court held that \\\"Virgin Islands law has not generally recognized nor established standards for a 'public trail,' and [Malloy] has presented no evidence that the disputed right-of-way has been laid out and accepted by the Virgin Islands government as a public road.\\\" The Superior Court further held that even if Old Broad Road retained its historical status as a public right-of-way, \\\"there is clear and convincing evidence that the disputed roadway has been abandoned.\\\" We examine each holding in turn, reviewing the Superior Court's application of law de novo, and its findings of fact for clear error. Brunn v. Dowdye, 59 V.I. 899, 904 (V.I. 2013).\\n1. Significance of Old Broad Road's historical status\\nMalloy insists that Old Broad Road's historical status as a public right-of-way must control here, regardless of whether the Virgin Islands Government has accepted it as a public highway under title 20, chapter 1 of the Virgin Islands Code. We agree. The United States S\\u00fapreme Court has long recognized that when a territory is transferred to the United States by a foreign country, ownership of public property transfers to the U.S. government, while private property rights remain unaffected. See, e.g., Vilas v. City of Manila, 220 U.S. 345, 357, 31 S. Ct. 416, 55 L. Ed. 491 (1911) (\\\"By the cession[,] public property passes from one government to the other, but private property remains as before.\\\"); More v. Steinbach, 127 U.S. 70, 78, 8 S. Ct. 1067, 32 L. Ed. 51 (1888) (\\\"By the cession of California to the United States . . . [p]olitical jurisdiction and sovereignty over the territory and public property . . . passed to the United States.\\\"); Tyler v. Magwire, 84 U.S. 253, 278, 21 L. Ed. 576 (1872) (upon the transfer of the Louisiana territory from France to the United States, \\\"legal title to the land vested . in the United States, as the successor of the former sovereign\\\"); United States v. Forbes' Heirs, 40 U.S. 173, 174, 10 L. Ed. 701 (1841) (with the transfer of Florida from Spain to the United States, \\\"[a]ll the public domain of Spain was ceded to this government... and the title in fee to the same vested in the United States\\\"). Moreover, the 1916 treaty transferring the Virgin Islands from Denmark to the United States clearly followed this longstanding legal principle, providing that \\\"[t]his cession includes the right of property in all public, government, or crown lands . . . and all other public property of every kind or description now belonging to Denmark.\\\" See also Red Hook Marina Corp. v. Antilles Yachting Corp., 9 V.I. 236, 242 & n.14 (D.V.I. 1971) (\\\"[Property rights in the islands are rooted in the law existing while the islands were under Danish sovereignty, which law remained in force even after the transfer of sovereignty to the United States in 1917.\\\") (collecting cases); Callwood v. Kean, 189 F.2d 565, 582 n.6, 2 V.I. 526 (3d Cir. 1951) (\\\"Rights to property in St. Thomas which vested under the Danish law in force in that island . . . were not affected by the change of sovereignty.\\\"); cf. Newfound Mgmt. Corp. v. Lewis, 131 F.3d 108, 118-19, 37 V.I. 612 (3d Cir. 1997) (examining property titles executed before 1917 to determine boundary lines on the east end of St. John); Smith v. deFreitas, 329 F.2d 629, 631-35, 4 V.I. 525 (3d Cir. 1964) (examining Danish property law to determine a party's right to an easement by necessity). So while it is true that Malloy presented no evidence that the Virgin Islands Government accepted Old Broad Road as a public right-of-way pursuant to title 20, chapter 1 of the Virgin Islands Code, this has no bearing on its status given the Superior Court's finding that it was a public trail before the transfer of sovereignty in 1917. Cf. Hodge v. Bluebeard's Castle, Inc., 44 V.I. 242, 247-48 (V.I. Super. Ct. 2002) (\\\"[I]t is not correct that [the statutory] procedure represents the only way a road may become a 'public road.'... Thus, the [c]ourt cannot conclude that noncompliance with the dedication provisions means that the road is not public.\\\").\\nInstead, because Old Broad Road was recognized as a public trail by the Danish government before 1917, and by the U.S. government after, it is clear that the Danish government's interest in Old Broad Road was among the public property interests transferred to the U.S. government on March 31, 1917. And following the transfer, Congress provided in the Organic Act of 1936 that \\\"[a]ll property which may have been acquired by the United States from Denmark in the Virgin Islands under the convention . is placed under the control of the Government of the Virgin Islands.\\\" 48 U.S.C. \\u00a7 1405c(a); see generally Water Isle Hotel & Beach Club, Ltd. v. Kon Tiki St. Thomas, Inc., 795 F.2d 325, 327 (3d Cir. 1986). Later, in a 1974 amendment to the Revised Organic Act of 1954, Congress provided that \\\"[a]ll right, title, and interest of the United States in the property placed under the control of the government of the Virgin Islands by section 1405c(a) of this title . is hereby conveyed to such government.\\\" 48 U.S.C. \\u00a7 1545(b)(1). Accordingly, in light of the Superior Court's finding that the roads outlined on the Oxholm and CGS maps \\u2014 including Old Broad Road \\u2014 were \\\"recognized as public riding trails\\\" both in Danish times and after 1917, this public interest in Old Broad Road was acquired by the Virgin Islands Government in 1974 by virtue of 48 U.S.C. \\u00a7 1545(b)(1).\\n2. Abandonment\\nDespite the Superior Court's finding that Old Broad Road was historically public, the court found \\\"there is clear and convincing evidence that the disputed roadway has been abandoned.\\\" Malloy argues that the Superior Court misapplied the common law doctrine of abandonment, and therefore Old Broad Road remains a public right-of-way.\\nAlthough many witnesses described the road as \\\"abandoned\\\" in their testimony, no party raised the common law doctrine of abandonment at any time during the trial proceedings. Instead, the Superior Court raised and decided this issue sua sponte, without providing notice to the parties or an opportunity to brief this issue. This in itself constitutes error because in raising and deciding an issue without providing notice or a chance to respond, the Superior Court denied Malloy her right to be heard. Brunn, 59 V.I. at 905 (citing Mendez v. Gov't of the V.I., 56 V.I. 194, 205 (V.I. 2012)).\\nThe Superior Court compounded this error by applying a common law doctrine this Court has never addressed without conducting the appropriate analysis as set forth in Banks v. International Rental & Leasing Corp., 55 V.I. 967, 981-84 (V.I. 2011). As we explained in Banks and subsequent cases, when the Superior Court confronts an issue of common law that this Court has yet to address \\u2014 or has only addressed through erroneous reliance on former 1 V.I.C. \\u00a7 4 (repealed 2004) \\u2014 it must conduct a three-factor Banks analysis: \\\"first examining which common law rule Virgin Islands courts have applied in the past; next identifying the rule adopted by a majority of courts of other jurisdictions; and then finally \\u2014 but most importantly \\u2014 determining which common law rule is soundest for the Virgin Islands.\\\" Better Bldg. Maint. of the V.I., Inc. v. Lee, 60 V.I. 740, 757 (V.I. 2014) (citing Gov't of the V.I. v. Connor, 60 V.I. 597, 603 (V.I. 2014)); see also Simon v. Joseph, 59 V.I. 611, 623 (V.I. 2013); Matthew, 56 V.I. at 680-81; Banks, 55 V.I. at 979 (\\\"[T]his Court and \\u2014 to the extent not bound by precedent, the Superior Court \\u2014 may determine the common law.\\\"). Here, the Superior Court erred in failing to give the parties an opportunity to brief the issue of abandonment of an easement under the Banks framework, and further erred by failing to conduct a Banks analysis at all \\u2014 instead merely citing a single case from another jurisdiction as though it were binding authority.\\nAlthough it does not appear that any other Virgin Islands court has ever addressed the abandonment of a public easement at common law, virtually every United States jurisdiction recognizes that \\\" '[ojnee a highway always a highway - is an ancient maxim of the common law.\\\" Hansen v. Green, 275 Ill. 221, 113 N.E. 982, 984 (1916); see also Central Pac. Ry. Co. v. Alameda Cnty., 284 U.S. 463, 468, 52 S. Ct. 225, 76 L. Ed. 402 (1932) (\\\"[P]roof of the establishment of a road raises a presumption of its continuance.\\\"); E & J Holding Corp. v. Noto, 126 A.D.2d 641, 510 N.Y.S.2d 899, 901-02 (N.Y. 1987). This maxim only \\\"gives way to the rules of law concerning the abandonment or vacation of a highway\\\" which serve as a narrow (and disfavored) exception to the rule. 39 Am. JUR. 2d Highways, Streets, and Bridges \\u00a7 150 (\\\"The discontinuance of a public highway is not favored in the law.\\\") (collecting cases); see also Davenhall v. Cameron, 116 N.H. 695, 366 A.2d 499, 500 (1976) (\\\"Once a highway is established, it is presumed to exist until discontinued, and discontinuance is not favored in the law.\\\" (citation omitted)); Bownes v. Winston Cnty., 481 So. 2d 362, 363 (Ala. 1985) (\\\" '[0]nce a highway, always a highway,' . is subject to the qualification that a highway . . . continues until it ceases to be such by the action of the general public . . or by action of the public authorities.\\\"); 39A C.J.S. Highways \\u00a7 128 (same) (collecting cases). And while it appears that nearly every jurisdiction at one time allowed the abandonment of a public right-of-way at common law, these jurisdictions disagreed on what a party must show in order to establish such abandonment \\u2014 with some jurisdictions allowing mere nonuse over a prolonged period to be sufficient, and others holding that there must also be evidence of an affirmative governmental act showing \\\"an intention never to make use of it again.\\\" D.C. Transit Sys., Inc. v. State Roads Comm'n of Md., 265 Md. 622, 290 A.2d 807, 810 (1972); see also S.C. Dep't of Transp. v. Hinson Family Holdings, LLC, 361 S.C. 649, 606 S.E.2d 781, 784 (2004) (\\\"strict proof of intent to abandon a public right-of-way\\\" is required at common law). This second line of cases, requiring evidence of nonuse and an affirmative governmental act demonstrating the intent to abandon an easement \\\"has been applied in most jurisdictions.\\\" D.C. Transit Sys., Inc., 290 A.2d at 810 (collecting cases).\\nFinally, and most importantly, limiting abandonment of a public easement to only those instances where the evidence shows both nonuse by the public and that the Government has taken an affirmative step demonstrating a clear intention \\\"never to make use of it again\\\" is the soundest rule for the Virgin Islands. Allowing the extinguishment of the public's right to an easement through simple neglect would make little sense given that no other public property interest may be lost this way. See 28 V.I.C. \\u00a7 11 (the Government is not subject to an action for adverse possession); New 52 Project, Inc. v. Proctor, 122 Ohio St. 3d 1, 2009 Ohio 1766, 907 N.E.2d 305, 308 (2009) (\\\"If one cannot adversely possess public property, then clearly an action for common-law abandonment of an easement due to nonuse of a public highway cannot be permitted.\\\"). Furthermore, the last century has seen significant changes in the administration of the Territory \\u2014 transitioning from a Danish colony to a U.S. territory, first under the administration of the Navy, then the Department of the Interior, then attaining greater local autonomy \\u2014 providing countless opportunities for the loss of records and the neglect of certain governmental functions. See, e.g., Banks, 55 V.I. at 976 n.4 (noting the loss of \\\"microfilm containing legislative history\\\" from a critical juncture in Virgin Islands history). Such simple neglect should not prejudice Virgin Islanders' right to the use of historically public rights-of-way that have existed for centuries. Under this standard, once nonuse is shown, an explicit act of abandonment \\u2014 such as an official action by DPW or the Legislature \\u2014 is not required, as the intent to abandon a public easement can be shown through evidence \\\"unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its future existence.\\\" Lague, Inc. v. Royea, 152 Vt. 499, 568 A.2d 357, 359 (1989); see also Picayune Wood Products Co. v. Alexander Mfg. Co., 227 Miss. 593, 86 So. 2d 480, 484 (1956) (\\\"[T]he burden is on the one who asserts abandonment to prove it by clear and satisfactory evidence.\\\" (quoting 39 C.J.S. Highways \\u00a7 130)).\\nHere, not only was there no evidence of an affirmative intent to abandon by the Government, but the record did not support a finding of nonuse either. As the Superior Court acknowledged, there was evidence that \\\"the family members of Anton George . . . used the road,\\\" as did Malloy and other east end property owners to access their properties. This alone was sufficient to prevent a finding of nonuse. Gay v. Dube, 2012 ME 30, 39 A.3d 52, 55-56 (2012) (reversing a finding of abandonment by nonuse where the road was continuously used by the adjacent property owners, i.e., \\\"the people for whom it was intended to be used\\\"); Small v. Binford, 41 Ind. App. 440, 83 N.E. 507, 510 (1908) (\\\"The fact that the road is rarely, if ever, used by persons other than the appellants, makes it none the less a public highway.\\\"). Moreover \\u2014 even if the record supported a finding of nonuse \\u2014 there was no evidence here of an intent to abandon by the Government. While Old Broad Road was omitted from the 1958 and 1982 republications of the CGS map and was never included as a public road in official DPW maps, simply omitting a public right-of-way from an official map \\u2014 or even failing to maintain it \\u2014 is not sufficient to allow a court to infer the intent to permanently abandon. See Laney v. Garmon, 66 So. 3d 766, 770 (Ala. Civ. App. 2010) (\\\"The fact that the county did not consider the disputed roadway to be a county road and that it did not maintain the disputed roadway is . . . insufficient to prove abandonment.\\\"); Moody v. Lindsey, 202 Va. 1, 115 S.E.2d 894, 898 (1960) (\\\"[Mjere failure of the public authorities to keep a road in repair, like mere nonuser, does not constitute an abandonment.\\\"); cf. Bockstiegel v. Bd. of Cnty. Comm'rs of Lake Cnty., 97 P.3d 324, 332 (Colo. App. 2004) (\\\"Construction of an alternate route, in addition to nonuse, reflects an intention to abandon by an official act.\\\"). Finally, even though DPW issued a permit to the owners of Parcels 6T and 9A allowing them to \\\"excavat[e] . a thirty foot. . . right of way,\\\" the permit makes no reference to Old Broad Road and only provides for the division of Parcel 6T into nine parcels and the construction of a \\\"right of way to access the new parcels.\\\" This does not demonstrate a present intent to relinquish Old Broad Road, nor is the permit inconsistent with Old Broad Road's continued existence as a public right-of-way.\\nAccordingly, the evidence did not support the Superior Court's finding that the public's right to Old Broad Road was extinguished through abandonment, and we reverse the Superior Court's holding that Old Broad Road is no longer a public right-of-way. Furthermore, because \\\"a judgment which affects an interest in real property must describe the interest with such certainty that the rights and liabilities of the parties are clearly fixed,\\\" we remand for the Superior Court to determine the metes and bounds of Old Broad Road. Phillips Indus. v. Firkins, 121 Idaho 693, 827 P.2d 706, 711 (Ct. App. 1992); see also Las Vegas Pecan & Cattle Co. v. Zavala Cnty., 682 S.W.2d 254, 257 (Tex. 1984) (remanding for the trial court to \\\"describe by metes and bounds the easement held by the County\\\"); Polhemus v. Cobb, 653 So. 2d 964, 968 (Ala. 1995) (remanding for the trial court to \\\"set out the exact scope of the easement\\\" where the trial court \\\"did not specify its dimensions\\\" in its original order); Sprague v. Waite, 34 Mass. 309, 320, 17 Pick. 309 (1836) (where no document defines the dimensions of an ancient road, the \\\"precise width, in what precise direction, and precisely how much surface of land, is thus appropriated . . . must be inferred from circumstances\\\").\\nB. Expert Testimony\\nBecause we reverse on the ground that the Superior Court erred in holding that Old Broad Road was abandoned, it is not necessary for this Court to reach Malloy's evidentiary arguments. We nevertheless address these issues because they will undoubtedly recur on remand when the Superior Court determines the metes and bounds of the public right-of-way. Hard Rock Caf\\u00e9 v. Lee, 54 V.I. 622, 640 (V.I. 2011) (\\\"[A]n appellate court . . . may, in the interests of judicial economy, . . . consider other issues that, while no longer affecting the outcome of the instant appeal, are likely to recur on remand.\\\" (internal quotation marks omitted)). Malloy argues that the Superior Court erred in characterizing Beming's testimony as lay testimony because she presented him as an-expert, and that the Superior Court abused its discretion in admitting Paul's testimony that Old Broad Road ended on Parcel 6T before ever reaching Malloy's property because he failed to supplement his expert report before trial.\\n1. Marvin Berning's testimony\\nMalloy asserts that the Superior Court erred in failing to credit Beming's testimony as expert testimony. The Superior Court noted in its opinion that Beming was not offered as an expert witness. The question of whether Malloy offered Beming as an expert witness is one of fact that this Court reviews only for clear error: Najawicz v. People, 58 V.I. 315, 325 (V.I. 2013) (reviewing the Superior Court's findings regarding a party's trial conduct for clear error); Yusuf v. Hamed, 59 V.I. 841, 857 (V.I. 2013) (a finding of fact is clearly erroneous where it is \\\"completely devoid of minimum evidentiary support or [has] no rational relationship to the supportive evidentiary data\\\").\\nWhile lay testimony has to be \\\"rationally based on the witness's perception,\\\" Fed. R. Evid. 701(a), expert testimony does not, and instead is rooted in the \\\"expert's scientific, technical, or other specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue.\\\" Fed. R. Evid. 702(a). Further, \\\"[o]pinions or inferences based on scientific, technical, or other specialized knowledge within the scope of Rule 702 are not admissible as lay testimony under [Rule] 701. Such opinions or inferences, drawn from facts outside the witness's first-hand knowledge of the case, are admissible only as expert testimony.\\\" United States v. York, 572 F.3d 415, 420 (7th Cir. 2009) (citing United States v. Conn, 297 F.3d 548, 553-54 (7th Cir. 2002)) (internal quotation marks omitted); see also James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1214 (10th Cir. 2011) (\\\"Rule 701 does not permit a lay witness to express an opinion as to matters which are beyond the realm of common experience and which require the special skill and knowledge of an expert witness.\\\" (internal quotation marks omitted)). Therefore, if Beming did in fact testify only as a lay witness, any testimony given that was \\\"beyond the realm of common experience\\\" would have been inadmissible and \\u2014 because this was a bench trial \\u2014 we would presume the Superior Court did not consider it in rendering its judgment. Farrell v. People, 54 V.I. 600, 620 (V.I. 2011).\\nIt is clear here that Beming qualified as an expert witness under Rule 702. He testified in his video deposition that he has a graduate-level education in engineering and worked as a surveyor in the Virgin Islands for several decades, conducting extensive research on property ownership and boundaries on the east end of St. John. This research included examining property records in the Territory and Denmark, speaking to property owners and residents on the east end, conducting multiple surveys, commissioning aerial photographs, serving as a Special Master in property disputes, and testifying as an expert numerous times before. Moreover, the Government did not object to any of his qualifications, and \\u2014 as the United States Court of Appeals for the Third Circuit explained in another case involving an east end property dispute \\u2014 \\\"Beming had extensive experience in surveying activity on St. John. In addition, he had prepared an aerial survey of the East End and done personal research into documents of title in Denmark. Understandably, the defendants' counsel did not challenge Beming's qualifications as an expert at trial.\\\" Newfound Mgmt. Corp., 131 F.3d at 118.\\nAnd although Malloy did not specifically move for the Superior Court to formally admit Beming as an expert witness, \\\"[a] judge is not obliged to look into the questions posed by Rule 702 when neither side either requests or assists.\\\" York, 572 F.3d at 421 (quoting United States v. Moore, 521 F.3d 681, 685 (7th Cir. 2008)). This is particularly so when all parties involved in this case understood that Beming was testifying as an expert, with pre-trial documents identifying Beming as an expert witness \\u2014 such as Malloy's \\\"Motion for Leave to Permit Marvin Beming to Testify by Deposition,\\\" the Joint Pre-Trial Conference Order, and the exhibit list. Furthermore, the Government did not object when Berning's video deposition was played in court, Beming repeatedly made clear during the deposition that he was retained and testifying as an expert, and his expert report was later admitted into evidence without objection. York, 572 F.3d at 420-22 (a witness not offered as an expert at trial nonetheless properly presented expert testimony where opposing counsel did not object to his testimony); cf. Tribble v. Evangelides, 670 F.3d 753, 759-60 (7th Cir. 2012) (finding that a witness presented expert testimony even where she was not offered as an expert, and finding harmful error where that witness was not disclosed as an expert before trial).\\nConsequently, the Superior Court clearly erred in finding that Beming was not offered as an expert where both parties knew he was called to provide expert testimony based exclusively on his specialized knowledge as a longtime surveyor in the east end of St. John. Although expert testimony is not necessarily afforded any greater weight simply by virtue of the witness's \\\"expert\\\" status, see United States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012) (an expert witness is subject to the same credibility evaluations as a lay witness), to the extent the Superior Court disregarded Beming's testimony because it was \\\"beyond the realm of common experience,\\\" the Superior Court must give appropriate consideration to this expert testimony on remand.\\n2. Chester Paul's testimony\\nMalloy next argues that Paul's testimony that Old Broad Road ended on Parcel 6T, 350 feet short of Parcel 6S, was based on an undisclosed analysis done two days before trial, and therefore should not have been admitted. Malloy objected at trial, and Paul acknowledged that this opinion was not included in his expert report. We review the Superior Court's admission of evidence for an abuse of discretion. George v. People, 59 V.I. 368, 386 (V.I. 2013).\\nFederal Rule of Civil Procedure 26(e)(2) requires a party to supplement its experts' reports and deposition testimony when the party learns of new information. Davis v. Varlack Ventures, Inc., 59 V.I. 229, 234 (V.I. 2013). \\\"This . . . requirement is a continuous one, requiring a party to supplement its disclosures when it becomes aware of new evidence.\\\" Id. If the party fails to do so, this evidence must be excluded unless the omission is substantially justified or harmless. FED. R. Civ. P. 37(c)(1) (\\\"If a party fails to provide information . as required by Rule 26(a) or (e), the party is not allowed to use that information . to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.\\\"). The burden of showing substantial justification or harmlessness rests with the party that failed to meet its continuing disclosure obligation \\u2014 in this case the Government. R & R Sails, Inc. v. Insurance Co. of Pa., 613 F.3d 1240, 1246 (9th Cir. 2012) (\\\"The party facing sanctions bears the burden of proving that its failure to disclose the required information was substantially justified or is harmless.\\\"); see generally Davis, 59 V.I. at 236-38.\\nDuring cross-examination, Paul initially agreed that the CGS map showed Old Broad Road reaching the top of the hill where Parcel 6S is located. Immediately after this statement though, he stated that he \\\"did a thorough analysis of the road that goes up to the hill and it falls 350 feet short of [Malloy's] property.\\\" Paul then acknowledged that he did this \\\"thorough analysis\\\" two days before trial and did not supplement his expert report. Despite this, the Superior Court overruled Malloy's objection, stating that \\\"[i]t's a bench trial so I'll consider it.\\\" Unquestionably, discovery rules apply with equal force during a bench trial, as they are intended to prevent unfair surprise or prejudice to litigants by providing notice of the evidence that will be introduced against them, see Reed v. Iowa Marine & Repair Corp., 16 F.3d 82, 85 (5th Cir. 1994) (the \\\"basic purpose\\\" of Rule 26(e) is to \\\"prevent[] prejudice and surprise\\\"), a concern that persists even when a court tries a case without a jury. And notably, the Government did not argue \\u2014 either before the Superior Court or this Court \\u2014 that its failure to supplement Paul's expert report was substantially justified or harmless. Instead, the Government acknowledges in its appellate brief that this new information \\\"was not included in the report proffered to the [Superior] Court, nor [were] the results of [Paul's] recent analysis provided to the [Superior] Court,\\\" and asserts in a single sentence \\u2014 in a conclusory fashion \\u2014 that this admitted discovery violation \\\"was not prejudicial to [Malloy] and consequently, [Malloy's] argument is without merit.\\\" In light of the Government's admitted discovery violation, and its complete failure to make any attempt to show that this violation was substantially justified or harmless, the Superior Court abused its discretion in admitting this testimony and must disregard it in making a metes and bounds determination on remand.\\nIV. CONCLUSION\\nThe Superior Court erred in holding that Old Broad Road was abandoned as a public right-of-way because the record did not support a finding of nonuse, and there was no evidence that the Government ever took an affirmative act demonstrating its intent to abandon it. Furthermore, the Superior Court clearly erred in characterizing Beming as a lay witness and abused its discretion in admitting evidence that was not disclosed to Malloy before trial in violation of the discovery rules. Accordingly, we reverse the Superior Court's holding that Old Broad Road is not a public right-of-way due to abandonment, and remand for the Superior Court to determine the metes and bounds of this public easement.\\nThe complete Convention Between the United States and Denmark for Cession of the Danish West Indies is reprinted in V.I. CodeAnn., Historical Documents, Organic Acts, andU.S. Constitution at 27-38 (preceding V.I. CodeAnn. tit. 1). This treaty was signed on August 4, 1916, and later ratified by the United States Senate on September 7, 1916. The Danish andU.S. governments exchanged ratifications on January 17, 1917, and the transfer became effective March 31,1917. See 1 V.I.C. \\u00a7 171 (recognizing March 31 as \\\"Transfer Day\\\").\\nAs Malloy points out, the Superior Court incorrectly stated that this house, referred to at trial as the Anton George house, is located on Parcel 6AE. All evidence introduced at trial indicates that the Anton George house is located to the west of Parcel 6S, whereas Parcel 6AE is located to the east of Parcel 6S. Therefore, the Superior Court's finding that the house is located on Parcel 6AE was clearly erroneous. Yusuf v. Hamed., 59 V.I. 841, 857 (V.I. 2013) (a finding of fact is clearly erroneous where it is \\\"completely devoid of minimum evidentiary support or [has] no rational relationship to the supportive evidentiary data\\\"). But it is unclear how this erroneous finding \\u2014 likely a typographical error \\u2014 affected the Superior Court's ultimate holding.\\nAlthough the Superior Court rejected Malloy ' s claim that Old Broad Road is a public right-of-way, it ruled in her favor on an alternative cause of action in her complaint: that she had an easement by necessity because the road is the only means of accessing her property. Federal appellate courts maintain that \\\"if [the district court] grants the ultimate relief a party requested, even though on grounds other than those urged by the prevailing party, that party is generally not aggrieved by the judgment and may not appeal.\\\" Concerned Citizens of Cohocton Valley, Inc. v. N.Y. State Dep't of Envt'l Conservation, 127 F.3d 201, 204 (2d Cir. 1997) (internal quotation marks omitted); but see Camreta v. Greene, 131 S. Ct. 2020, 2029-30, 179 L. Ed. 2d 1118 (2011) (\\\"[tjhat the victor has filed the appeal does not deprive us of jurisdiction\\\" where the prevailing party \\\"may yet have a sufficient interest in the outcome of a litigated issue to present a case or controversy\\\" (internal quotation marks and citation omitted)). But regardless of whether Malloy's appeal presents a \\\"case or controversy,\\\" 4 V.I.C. \\u00a7 32(a) vests this Court with \\\"jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court\\\" without restricting that jurisdiction only to appeals taken by aggrieved parties. Farrell v. People, 54 V.I. 600, 607 (V.I. 2011). Thus, the requirement that a party be aggrieved by a Superior Court ruling to have standing to appeal \\u2014 to the extent it applies at all \\u2014 is at best \\\"a claims processing rule\\\" subject to waiver by the parties. Id. at 608. None of the parties raise this issue, and therefore it is waived.\\nChapter 1 of title 20 of the Virgin Islands Code, governing public highways in the Territory, provides that \\\"[t]he duty of keeping the public highways . in good serviceable condition is incumbent upon the government of the United States Virgin Islands,\\\" 20 V.I.C. \\u00a7 1(a), and that \\\"[t]he Commissioner of Public Works shall maintain official maps showing in detail the boundaries and rights of way of all public highways in the Virgin Islands.\\\" 20 V.I.C. \\u00a7 2(a). Furthermore, the Commissioner of Public Works may accept easements on behalf of the Government to construct new highways, 20 V.I.C. \\u00a7 3 (a), and is \\\"authorized to receive offers to dedicate private roads to public use throughout the Virgin Islands\\\" subject to the approval of the Legislature. 20 V.I.C. \\u00a7 3a(a).\\nConvention Between the United States and Denmarkfor Cession of the Danish West Indies, art. 1, Aug. 4, 1916, 39 Stat. 1706.\\nThe complete Organic Act of 1936 is reprinted in V.I. Code ANN., Historical Documents, Organic Acts, and U.S. Constitution at 45-71.\\nThe complete Revised Organic Act of 1954 is reprinted in V.I. Code Ann., Historical Documents, Organic Acts, and U.S. Constitution at 73-177.\\nFurthermore, raising the issue of abandonment sua sponte was all the more inappropriate here because Malloy brought this suit to compel the Government to recognize Old Broad Road as a public right-of-way, meaning that abandonment acted essentially as an affirmative defense in this case. It is unquestionably error for the Superior Court to raise an affirmative defense sua sponte on behalf of a defending party where that party has waived the issue by failing to raise it or support it with evidence. Better Bldg. Maint. of the V.I., Inc. v. Lee, 60 V.I. 740, 761 (V.I. 2014).\\nMalloy argues that the Danish government owned all public roads on St. John in fee simple \\u2014not merely as easements\\u2014and therefore abandonment does not apply here at all. Because Malloy cited no relevant legal authorities in support of this argument \\u2014 such as an authority on Danish property law \\u2014\\u2022 it is waived, V.I.S.Ct.R. 22(m), and we assume for the purposes of this appeal that the Virgin Islands Government's interest in Old Broad Road is the same as any other public road in the Territory; an easement. See 28 V.I.C. \\u00a7 412(1)-(2) (the Government can only acquire a fee simple interest in land \\\"when taken for public buildings or grounds or for permanent buildings, for reservoirs and dams, and permanent floodings thereby,\\\" and acquires an easement in land \\\"taken for any other use\\\"); 20 V.I.C. \\u00a7 3(a) (\\\"the Commissioner of Public Works may accept... easements [to construct or widen a highway] on behalf of the government\\\"). Because we ultimately conclude that the Superior Court erred in holding that Old Broad Road was abandoned, this assumption does not affect the outcome here.\\nMany jurisdictions have since adopted statutes governing abandonment, largely abrogating the common law. See, e.g., McHenry v. Foutty, 223 Ind. 335, 60 N.E.2d 781, 782 (1945) (\\\"There must be a full and substantial compliance with the provisions and requirements of [the statute] to cause a vacation of an existing highway.\\\"); Taggart v. Highway Bd. for N. Latah Cnty. Highway Dist., 771 P.2d 37, 38 (Idaho 1988) (\\\"[T]he legislature has specified... the method for abandonment and vacation of county and highway district system highways.\\\"). Because the Virgin Islands Legislature has not adopted such a statute, we address this issue solely as one of common law and exclude cases relying on state statutes from our review of authorities. Better Bldg. Maint. of the V.I., Inc., 60 V.I. at 757 (the second Banks factor requires us to identify the \\\"rule adopted by a majority of courts of other jurisdictions\\\").\\nSee, e.g., Auerbach v. Parker, 544 So. 2d 943, 945 (Ala. 1989) (\\\"[N]onuser for a period of twenty years . will operate as a discontinuance of a public road.\\\"); Shadan v. Town of Skowhegan, 1997 ME 187, 700 A.2d 245, 247 (1997) (\\\"The common law of abandonment recognizes that rights in public ways may be lost through neglect.\\\").\\nSee, e.g., Picayune Wood Products Co. v. Alexander Mfg. Co., 227 Miss. 593, 86 So. 2d 480, 484 (1956) (\\\"To effect an abandonment there must be an intention to abandon.\\\"); Polk Cnty. v. Brown, 260 Iowa 301, 149 N.W.2d 314, 317 (1967) (\\\"Nonuser is not enough, unless coupled with affirmative evidence of a clear determination to abandon.\\\"); Koenig v. Gaines, 165 Colo. 371, 440 P.2d 155, 157 (1968) (nonuse for thirty years alone was not sufficient to show abandonment); Mueller v. Hoblyn, 887 P.2d 500, 505 (Wyo. 1994) (\\\"Abandonment requires more than simple nonuse of an easement, no matter how long the period of nonuse.\\\"); Chicago & E. Ill. Ry. Co. v. Road Dist. No. 10, 187 N.E. 155, 156 (Ill. 1933); Heath v. Parker, 30 P.3d 746, 749 (Colo.App. 2000) (\\\"Abandonment of apublic road requires proof of intent to abandon and proof of nonuse.\\\"); Montanaro v. Aspetuck Land Trust, Inc., 137 Conn. App. 1, 48 A.3d 107, 120 (2012) (\\\"Most frequently, where abandonment has been held established, there has been found present some affirmative act indicative of an intention to abandon.\\\"); Lague, Inc. v. Royea, 152 Vt. 499, 568 A.2d 357, 359 (1989) (\\\"[A]n abandonment may be established only by acts by the owner of the dominant tenement conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its future existence.\\\" (internal quotation marks omitted)); Parlante v. Brooks, 363 Mass. 879, 294 N.E.2d 424, 425 (1973) (\\\"Mere nonuse of an easement does not of itself constitute abandonment.\\\"); Bank of Fayetteville, N.A. v. Matilda's, Inc., 304 Ark. 518, 803 S.W.2d 549, 550 (1991) (\\\"We recognize the rule that an easement may be lost by abandonment. Abandonment in this context means to relinquish or give up with the intent of never again resuming or claiming one's rights or interests.\\\" (citation omitted)); United States v. Steinmetz, 973 F.2d 212, 222 (3d Cir. 1992) (\\\"[T]he United States cannot abandon its own property except by explicit acts.\\\" (citing United States v. California, 332 U.S. 19, 40, 67 S. Ct. 1658, 91 L. Ed. 1889 (1947))).\\nCarty v. Beech Aircraft Corp., 679 F.2d 1051, 1054 n.3, 19 V.I. 641 (3d Cir. 1982) (\\\"From 1917 until 1931, the Virgin Islands [was] under the administration of the Navy Department . In 1931, administration of the Virgin Islands was transferred to the Interior Department.\\\"); see also Kristen David Adams, The Folly of Uniformity? Lessons from the Restatement Movement, 33 Hofstra L. Rev. 423, 456 n.143 (2004) (summarizing Virgin Islands history); Jon M. Van Dyke, The Evolving Legal Relationships Between the United States and Its Affiliated U.S.-Flag Islands, 14 U. Haw. L. Rev. 445, 494-99 (1992) (same).\\nThere may be instances where this rule will negatively impact private property rights, like when a property owner is under the impression her property is unencumbered, only to discover an ancient Danish road bisecting it. See Eric Goldwarg, Known Unknowns: Ancient Roads in Northern New England, 33 Vt. L. Rev. 355 (2008) (summarizing a similar fact pattern giving rise to litigation in Vermont); but see Red Hook Marina Corp., 9 V.I. at 245 (because the shoreline was public property under Danish law it remains public, and a deed's \\\"boundary description 'the sea' should reflect the presumed intent of the grantor to convey only as much land as he actually owned\\\"). But determining whether the public's interest in these ancient rights-of-way is outweighed by the interests of private property owners is more appropriately left to the Legislature. See Town of Bethel v. Wellford, 186 Vt. 612, 987 A.2d 956, 958 (2009) (\\\"In an effort to quell the uncertainty that the existence of ancient roads places on private property rights, in 2006, the Vermont Legislature passed Act 178, giving towns the option of... adding the roads to town highway maps by 2010____and on July 1, 2015, all unidentified corridors will be discontinued.\\\").\\nEven if abandonment was established here, this would not terminate Malloy ' s right to use the road to access her property. See Wright v. City of Monticello, 345 Ark. 420, 47 S.W.3d 851, 857 (2001) (\\\"[WJhen a public road is abandoned, it does not affect the private right of the occupants to the use of the abandoned road for purposes of ingress and egress.\\\"); Moses v. State Highway Comm'n, 261 N.C. 316, 134 S.E.2d 664, 666 (1964) (\\\"Abutting property owners having a private access to a highway cannot be denied the right to enter and use a road constructed for public benefit.\\\").\\nThe Federal Rules of Evidence apply in the Superior Court pursuant to section 15(b) of Act No. 7161 of the Virgin Islands Legislature. 2010 V.I. Sess. Laws 50. Act No. 7161 took effect upon the Governor's signature on April 7, 2010, and was in force at the time of trial in this case in May 2012. Simmonds v. People, 59 V.I. 480, 498-99 (V.I. 2013).\\nFederal Rules of Civil Procedure 26 through 37 govern discovery in the Superior Court pursuant to Superior Court Rule 39. SUPER. Ct. R. 39(a) (\\\"Depositions and discovery shall be had in the Superior Court of the Virgin Islands, pursuant to the provisions of Rules 26 to 37, inclusive of the Federal Rules of Civil Procedure.\\\").\"}"
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+"{\"id\": \"455041\", \"name\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff, vs. LOUIS TURNBULL, Defendant\", \"name_abbreviation\": \"Government of the Virgin Islands v. Turnbull\", \"decision_date\": \"1998-11-17\", \"docket_number\": \"T.C. Crim. No. 542/97\", \"first_page\": 179, \"last_page\": \"185\", \"citations\": \"39 V.I. 179\", \"volume\": \"39\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Territorial Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T23:36:03.481459+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff, vs. LOUIS TURNBULL, Defendant.\", \"head_matter\": \"GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff, vs. LOUIS TURNBULL, Defendant.\\nT.C. Crim. No. 542/97\\nTerritorial Court of Virgin Islands Division of St. Thomas and St. John\\nNov. 17, 1998\\nDouglas Dick, Esq., Assistant Attorney General, V.I. Department of Justice, St. Thomas, Virgin Islands, Counsel for the Government of the Virgin Islands\\nBernard M. Vansluytman, Esq., St. Thomas, Virgin Islands, Counsel for Defendant Louis Turnbull\", \"word_count\": \"2193\", \"char_count\": \"13303\", \"text\": \"DIASE, Judge\\nMEMORANDUM OPINION\\nAt issue before the Court is (1) whether 14 V.I.C. \\u00a7 485(b), a penal statute which prohibits, in pertinent part, the owner of a night club that serves alcohol from having minors on the premises after 9:00 p.m., is constitutional and (2) whether it imposes strict criminal liability regardless of the violator's knowledge of the person's minority. The Court holds that the statute is constitutional and that knowledge is a necessary element of the crime.\\nI.\\nThe Defendant is allegedly the owner of a night club on St. Thomas, Virgin Islands known as Insomnia that serves alcohol to its patrons. He has been charged with six separate counts of allowing six minors to enter his premises after 9:00 p.m. on December 14, 1997, unaccompanied by an adult and for reasons other than for a school function or for emergency assistance resulting from a life threatening situation, in violation of V.I. Code Ann. tit. 14 \\u00a7 485(a) and (b) (1996). He filed a document entitled Pretrial Motions in which he asks the Court to dismiss the charges against him pursuant to Rule 12(b)(1) and (2) of the Federal Rules of Criminal Procedure and asserts three basis for doing so: the statute is void because its terms are too vague; the charges are defective as they fail to allege the required mens rea-, and the Government of the Virgin Islands (\\\"Government\\\") has engaged in selective prosecution by singling him out while not prosecuting others who have violated the statute. The Defendant subsequently filed a Motion to Dismiss incorporating all the reasons set forth in the Pretrial Motions and further arguing that dismissal is justified as the Government failed to respond to his Pretrial Motions within the time prescribed by this Court.\\n14 V.I.C. \\u00a7 485 (a) provides that minors are prohibited from entering night clubs, dance halls or bars after 9:00 p.m. if alcohol is served, except in three very limited circumstances. Subsection (b) provides that any owner, operator or employee of such an establishment who violates subsection (a) can be penalized with a fine of up to Five Hundred and 00/100 Dollars ($500.00) for each minor found on the premises and imprisonment of not more than thirty days. Rule 12(b)(1) and (2) of the Federal Rules of Criminal Procedure allow a defendant in a criminal case to raise those defenses and objections that are based on defects in the institution of the prosecution or in the information and that can be deter mined without a trial of the general issue. The Court will address each of the Defendant's arguments.\\nII.\\nVoid for Vagueness\\nThe Defendant centers his first argument on the void for vagueness doctrine. He asserts that the statute is void because it does not clearly set forth what criminal conduct or omissions are proscribed for night club owners. The wording of section 485(a), according to the Defendant, evinces that the only proscribed conduct is that of the minor. As a result, he claims that his due process rights have been violated.\\nIn Connally v. General Construction Co., 269 U.S. 385, 393 (1926) (citation omitted), the Supreme Court reiterated the requirements of this doctrine:\\nThat the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.\\nThus, the doctrine is comprised of two elements: notice and arbitrary enforcement. The notice element requires that a penal statute \\\"define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited.\\\" Government v. Ayala, 29 V.I. 123, 124 (D. Ct. 1993) (citation omitted). The arbitrary enforcement element requires that a penal statute be designed \\\"in a manner that does not encourage arbitrary and discriminatory enforcement.\\\" Id.\\nIn regard to section 485, it is evident that the notice element has been met as the prohibited conduct is clearly set forth. The heading of the section is \\\"[s]elling or serving alcoholic beverages to minors; employing minors to make or dispense alcoholic beverages.\\\" These phrases succinctly describe the conduct which the statute seeks to proscribe. Furthermore, section 485(a) provides that minors are prohibited from \\\"entering any night club, dance hall or bar after 9:00 p.m. where alcohol is served . . . .\\\" There can be no argument that this,provision is ambiguous. Also, subsection (b) specifically lists those individuals who can be found violating the statute \\u2014 an owner, operator or employee of any night club, bar, or dance hall \\u2014 and sets forth the penalties for such a violation. Together, these clauses provide adequate notice to the ordinary citizen as they clearly describe the conduct prohibited; the class of persons who are prohibited from engaging in that conduct; and the sanctions that can be imposed for a violation.\\nThe statute is also sufficiently specific so as to prevent arbitrary enforcement. A careful reading of section 485(a) and (b) reveals that the only requirement for a violation of the statute is that an owner, operator or employee of a night club, bar, or dance hall where alcohol is served allows a minor to enter the establishment after 9:00 p.m., and the strict exceptions do not apply. This standard is straightforward and applies to all owners, operators and employees of night clubs, bars, and dance halls in the United States Virgin Islands. If these individuals are found in violation of the statute, they are subject to being prosecuted. There is no room for the arbitrary enforcement of the statute.\\nMens Rea\\nThe Defendant next asserts that the charges against him fail to allege the appropriate mens rea or knowledge of the minors' ages and that he should be allowed to raise ignorance or mistake of fact as a defense to disprove criminal intent. The Government, in its response to the Defendant's motion, does not specifically address this issue but simply states that the Defendant is charged with having \\\"allowed\\\" these minors to enter his night club. The Court is hot certain whether, by this statement, the Government is conceding the Defendant's argument.\\nMens rea is defined as the guilty knowledge and wrongful intent needed to constitute a crime. United States v. Greenbaum, 138 F.2d 437, 438 (3d Cir. 1943). Sections 485(a) and (b) do not describe any particular knowledge or intent requirement.\\nA legislature has wide latitude to declare what act constitutes a criminal offense and \\\"to exclude elements of knowledge and diligence from its definition.\\\" Lambert v. California, 355 U.S. 225, 228 (1957). Historically, statutes providing for strict criminal liability regardless of intent developed in the area of what were referred to as \\\"public welfare offenses.\\\" Morissette v. United States, 342 U.S. 246, 254-260 (1957). \\\"Many of these offenses [were] not in the nature of positive aggressions or invasions . . . but [were] in the nature of neglect where the law requires care, or inaction where it imposes a duty.\\\" Id. at 255. Importantly, the penalties were relatively small and \\\"conviction does no grave damage to an offender's reputation.\\\" Id. at 256. Almost uniformly, the courts \\\"turned to construing statutes . . . which make no mention of intent as dispensing with it\\\" and held \\\"that the guilty act alone makes out the crime.\\\" Id.\\nThe strict criminal liability doctrine, though, later came under much criticism. And, the Supreme Court has refused to extend it to more traditional crimes such as theftirf.; Government of the Virgin Islands v. Rodriguez, 423 F.2d 9 (3d Cir. 1970). The modern rule, as adopted by the Third Circuit Court of Appeals, is for the court to determine whether there was a deliberate legislative choice that knowledge is not an essential element of the crime. Rodriguez, 423 F.2d at 13. Additionally, specifically in regard to penal statutes which prohibit persons in certain similar establishments from allowing a minor on the premises, many state courts have held that, if the statute does not expressly or by clear implication make ignorance or mistake a defense, they cannot be invoked as defenses. E.R. Tan, Annotation, Criminal Offense of Selling Liquor to a Minor or Permitting Him to Stay on Licensed Premises as Affected by Ignorance or Mistake Regarding His Age, 12 A.L.R. 3d 991 (1967 & Supp. 1998).\\nThere is no legislative history available on section 485. Since it was enacted in 1956 and through the various amendments over the years, it has never contained a mens rea ingredient. Importantly, however, another section of the Virgin Islands Code, 14 V.I.C. \\u00a7 14(5), addresses criminal intent, as it provides as follows:\\n\\\"All persons are capable of committing crimes or offenses except \\u2014 .\\n(5) persons who committed the act . . . under an ignorance or mistake of fact which disproves any criminal intent.\\\"\\nIn Rodriguez, 423 F.2d at 14, the Third Circuit Court of Appeals, while interpreting another Virgin Islands statute, held that section 14 was \\\"indicative of a legislative intention\\\" to require the element of knowledge. Specifically, the Court addressed a local vagrancy statute that prohibited loitering in a house of ill fame, the former 14 V.I.C. \\u00a7 2221(8) which has since been redesignated section 2221(a)(7). The statute is silent as to whether knowledge of the nature of the place as a house of ill fame is an essential element of the crime. The Court read section 2221(8) in conjunction with section 14(5) and found that section 14(5) was \\\"a legislative expression which adds affirmative support to the rule against reading a statute as abandoning a requirement of knowledge unless the statute exhibits such a deliberate legislative choice.\\\" Id.\\nFollowing Rodriguez, this Court holds that section 485(b), when read with section 14(5), contains the essential element of knowledge and is not a strict criminal liability statute. The Government must, therefore, prove beyond a reasonable doubt that a defendant knowingly allowed a minor on the premises. As a result, a defendant can raise as a defense ignorance or mistake of fact as to the minor's age.\\nThe Government has not charged the Defendant specifically with such guilty knowledge and the Court does not deem the word \\\"allowed\\\" in the charge to infer same. An indictment or information is defective if it fails to allege this critical element. 1 Charles A. Wright, Federal Practice and Procedure \\u00a7 125 (2d ed. 1982). Since this case has not been tried, the Court will allow the Government to amend the Complaint to properly charge that element of the crime.\\nSelective Prosecution\\nFinally, the Defendant asks the Court to exercise its \\\"administrative authority\\\" and dismiss the Complaint due to the Government's selective prosecution of him. The Defendant does not cite the Court to any legal authority by which it can do so. But, he does refer to section 485's \\\"history and revision notes\\\" and stresses that there are no cases cited and hence, there have been \\\"little if any prosecutions under the section in its over forty (40) years of existence.\\\" The Government responds that the juvenile bureau of the Virgin Islands Police Department has made a good faith effort to avoid prosecuting the Defendant and at least one officer will testify at the trial that she has warned the Defendant on numerous occasions about minors in his establishment, to no avail.\\nThe Court finds the Defendant's arguments to be very weak. Simply because there are no cases cited after section 485 in the Virgin Islands Code does not mean that no one has ever been prosecuted. What it does mean is that no judge or court has issued a written, published opinion concerning that section. With the publication of the instant opinion, that will no longer be the situation.\\nIII.\\nAn appropriate Order will be entered denying the Defendant's motions and directing the Government to file an Amended Complaint.\\nThe Virgin Islands Legislature is, of course, free to amend the statute to require that owners, operators and employees of such establishments use due diligence in ascertaining the age of a patron. Various methods are available to do so, such as requiring the presentation of a driver's license with a photograph or an identification card issued by the appropriate licensing authority. The state of Pennsylvania, for example, has further authorized a representative of such an establishment to require a person whose age is in question to fill in and sign a \\\"declaration of age\\\" card. 47 Pa. Const. Stat. \\u00a7 4-495 (1998).\"}"
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+"{\"id\": \"455070\", \"name\": \"GARY E. BERNE, individually and in the right of and for the benefit of B&B CORPORATION, BERNE CORPORATION, and GERARD LOUIS BERNE TRUST, Plaintiff v. LOUIS BOSCHULTE, GUSTAVE A DANIELSON, MARJORIE LEWIS, and DELSA CAPDEVILLE, Defendants\", \"name_abbreviation\": \"Berne v. Boschulte\", \"decision_date\": \"1998-05-28\", \"docket_number\": \"Civ. No. 1997-228\", \"first_page\": 217, \"last_page\": \"219\", \"citations\": \"39 V.I. 217\", \"volume\": \"39\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T23:36:03.481459+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GARY E. BERNE, individually and in the right of and for the benefit of B&B CORPORATION, BERNE CORPORATION, and GERARD LOUIS BERNE TRUST, Plaintiff v. LOUIS BOSCHULTE, GUSTAVE A DANIELSON, MARJORIE LEWIS, and DELSA CAPDEVILLE, Defendants\", \"head_matter\": \"GARY E. BERNE, individually and in the right of and for the benefit of B&B CORPORATION, BERNE CORPORATION, and GERARD LOUIS BERNE TRUST, Plaintiff v. LOUIS BOSCHULTE, GUSTAVE A DANIELSON, MARJORIE LEWIS, and DELSA CAPDEVILLE, Defendants\\nCiv. No. 1997-228\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nMay 28, 1998\\nJames M. Derr, Esq., (Law Offices of James Derr), St. Thomas, U.S.V.I., for plaintiff\\nAlan D. Smith, Esq., (Hodge and Francois, P.C.), St. Thomas, U.S.V.I., for defendants\", \"word_count\": \"775\", \"char_count\": \"4824\", \"text\": \"Thomas K. Moore, Chief Judge\\nMEMORANDUM\\nDefendants' have moved to dismiss this action for want of subject matter jurisdiction. Since that motion will be granted, plaintiff's application for a temporary restraining order need not be decided.\\nFACTS\\nIt is conceded by all parties that plaintiff, Gary Berne, as well as the corporate entities and the trust on whose behalf he has filed suit are all domiciliaries of the Virgin Islands. Mr. Berne and the Gerard Louis Berne Revocable Trust [\\\"Berne Trust\\\"] together own all the stock of B&B Corporation and Berne Corporation. Mr. Berne is also a beneficiary of the Berne Trust.\\nIt is similarly conceded by all parties that each of the defendants are likewise domiciliaries of the Virgin Islands. Defendant Louis Boschulte is a director and officer of both corporations and a trustee of the Berne Trust. Defendant Gustav Danielson is similarly a director and officer of both companies. Together, Mr. Berne and Messrs. Boschulte and Danielson constitute the full board of directors of both corporations. Defendant Marjorie Lewis is an officer of both corporations and a trustee of the Berne Trust. Defendant Dilsa Capdeville is a trustee of the Trust. Defendants Boschulte, Lewis and Capdeville constitute all the trustees of the Berne Trust.\\nIn his complaint filed December 4, 1997, plaintiff brings seven causes of action, none of which involve a federal question. Plaintiff nevertheless claims the Court has jurisdiction over this case under V.I. Code Ann. tit. 13, \\u00a7 341 (1982).\\nAPPLICATION OF LAW AND FACT\\nSection 341 appears to give the District Court jurisdiction over the plaintiff's claims of breach of fiduciary duty by corporate officers. \\\"The District Court of the Virgin Islands shall have jurisdiction over the directors, managers, trustees and other officers of a corporation 13 V.I.C. \\u00a7 341.\\nAt the time 13 V.I.C. \\u00a7 341 was enacted, the District Court had jurisdiction over a substantial number of strictly local civil actions. In 1984, the Revised Organic Act of 1954 was amended to give the local legislature the authority to divest the District Court of all non-federal question, non-diversity jurisdiction. See Section 22 of the Revised Organic Act of 1954, 48 U.S.C. \\u00a7 1612. Effective October 1,1991, the legislature exercised this authority and vested original jurisdiction in all local actions in the Territorial Court. 4 V.I.C. \\u00a7 76(a). Unfortunately, the legislature has never taken the trouble to make technical, conforming amendments to all the code provisions which previously implemented the District Court's local civil jurisdiction, including, 13 V.I.C. 341. This divestiture of the District Court by 4 V.I.C. \\u00a7 76 of jurisdiction over all local civil actions has nevertheless repeatedly been recognized. See, e.g., Moravian Sch. Advisory Bd. v. Rawlins, 33 V.I. 280, 70 F.3d 270 (3d Cir. 1995) (pre-existing authority of District Court contained in 4 V.I.C. \\u00a7 32(b) and 77(b) to transfer cases to the Territorial Court void even though not expressly repealed); Trusdale v. V.I. Tax Review Bd., 35 V.I. 295, 946 F. Supp. 412, 413 (D.V.I. 1996)(District Court of the Virgin Islands has no jurisdiction over purely local civil matters absent independent basis for federal jurisdiction); United States v. Charles, 30 V.I. 143, 147-48 (Dist. Ct. 1994) (District Court of the Virgin Islands divested of jurisdiction over all civil matters except where diversity jurisdiction pled or supplemental jurisdiction asserted in civil case arising under federal law); and, Dawson v. Gov't Employees Svc. Comm'n and Dep't of Econ. Dev. Agriculture, Civ. No. 1992-10, (D.V.I. May 19, 1994) (4 V.I.C. \\u00a7 76 repeals authority for writs of review under 5 V.I.C. \\u00a7 1423).\\nCONCLUSION\\nSince the Court lacks subject matter jurisdiction over the plaintiff's complaint, it must be dismissed per Fed. R. Civ. R 12(h)(3) (\\\"Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter, the court shall dismiss the action.\\\") (emphasis added). An appropriate order shall issue.\\nThe complete Revised Organic Act of 1954 is found at 48 U.S.C. \\u00a7 1541-1645 (1994), reprinted in V.I. Code Ann., Historical Documents, Organic Acts, and U.S. Constitution at 73-177 (1995 & Supp. 1997) (preceding V.I. Code Ann. tit. 1).\"}"
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+"{\"id\": \"5312556\", \"name\": \"JEFFREY J. PROSSER, Appellant v. MARGARET S. PROSSER, Appellee\", \"name_abbreviation\": \"Prosser v. Prosser\", \"decision_date\": \"1995-12-05\", \"docket_number\": \"Civ. App. No. 1995-0095; T. Ct. Fam. No. 210-1994\", \"first_page\": 115, \"last_page\": \"118\", \"citations\": \"33 V.I. 115\", \"volume\": \"33\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T00:10:10.224032+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JEFFREY J. PROSSER, Appellant v. MARGARET S. PROSSER, Appellee\", \"head_matter\": \"JEFFREY J. PROSSER, Appellant v. MARGARET S. PROSSER, Appellee\\nCiv. App. No. 1995-0095\\nT. Ct. Fam. No. 210-1994\\nDistrict Court of the Virgin Islands Div. of St. Croix\\nDecember 5, 1995\", \"word_count\": \"1127\", \"char_count\": \"6814\", \"text\": \"MEMORANDUM OPINION\\nAppellant Jeffrey J. Prosser has again appealed to this Court for relief from the Territorial Court's Order rejecting appellant's posting of a supersedeas bond. On October 13, 1995, this Court remanded this matter to the Territorial Court \\\"for further statement by the court regarding the court s reasons for lifting the stay, more particularly, for a finding by the trial court as to the manner in which the conditions set forth in the [Territorial] [C]ourf s July 27, 1995 Order Granting a Stay of Judgment have not been met.\\\" Execution on the judgment was stayed pending further action by this Court. As a preliminary matter, we reject appellant's request to convene a three judge panel of the Appellate Division to decide this procedural issue.\\nThe record reveals that Mr. Prosser appealed the Territorial Court's Order dated July 6,1995 and moved that court for a stay of execution and setting of a nominal supersedeas bond. The court granted the stay \\\"conditioned upon [appellant's] posting of a cash bond in the amount of $1,000,000.00 AND a $1,622,809.09 property bond within ten days.\\\"(emphasis added) Instead of actual cash, appellant posted a surety bond executed by Robert Armstrong of Companion Incorporated. In addition, appellant \\\"promisefd] to the effect that [he would] pay all costs that may be adjudged due and owing . . . in an amount not exceeding . . . $1,632,809.09,\\\" listing personal property owned as 150,000 shares of stock issued by Atlantic Tele-Network, Inc. To satisfy the property bond, appellant filed his personal check made payable to the Territorial Court s Registry in the amount of $10,309.09 on August 7,1995, but attached only copies of the stock certificates.\\nThe Territorial Court \\\"f[ound] that the conditions set forth in the July 27,1995 Order have not been satisfied\\\" and lifted the stay of execution on August 24, 1995. The matter was referred to this Court and remanded to the Territorial Court as noted above. On October 10,1995, the Territorial Court explained that the $1,000,000 surety bond did not meet the requirement to post a \\\"cash\\\" bond. This Court agrees.\\nTerr. Ct. R. 110, applicable to this divorce proceeding, provides that \\\"[t]he court may require any person. . . against whom a judgment has been rendered to give a cash bond or bond with good and sufficient sureties in such form as the court shall order, to secure the payment of any sum awarded by the court; applying the wording of this rule, \\\"cash\\\" means the deposit of actual cash or its equivalent in a form approved by the court (e.g.- certified check, currency, money order)/ As noted by the Territorial Court, the purpose of requiring cash was to ensure that sufficient resources will be available to satisfy any judgment awarded to the party who prevailed below if the appeal is unsuccessful. The judge could have permitted the appellant to post a surety bond instead of a cash bond, but he chose not to do so.\\nAs the Territorial Court also pointed out, filing copies of the stock certificates and posting a personal uncertified check do not satisfy the property bond. We agree with this observation as well. Lodging of mere copies of stock certificates clearly does not irrevocably transfer control of the property. Even if appellant had posted the original certificates, he would not have satisfied the court's requirement without also posting fully executed stock pledges. Finally, even filing the original certificates with stock pledges or assignments would not have been sufficient, since there is no assurance that the market value of such a publicly traded stock would be sufficient to satisfy the sum required if the appeal fails.\\nIn short, appellant has failed to comply with the Territorial Court's Order dated July 27,1995. This Court is unable to find any abuse of discretion in either the Territorial Court's order granting the stay of execution upon the satisfaction of certain conditions or the August 24th order lifting the stay. Because the Territorial Court is uniquely familiar with the history of this divorce action leading up to July 27, 1995 Order, this Court yields to that court's specifications for a supersedeas bond needed to stay execution of the July 6, 1995 Order. We accordingly would not be inclined to modify those specifications, even if appellant had requested this Court to do so. An appropriate order will be entered.\\nORDER\\nAND NOW, this 5th day of December, 1995, after careful review of the record and having considered the submissions of the parties; and for the reasons set forth in the Court s accompanying Opinion of even date;\\nIT IS ORDERED:\\nTHAT appellant's motion for relief from the Territorial Court s Order rejecting appellant's posting of surety bond, in lieu of the cash bond in the amount of $1,000,000.00 and conditional stock power of 150,000 shares of stock issued by Atlantic Tele-Network, Inc. and a personal check made payable to the Territorial Court's Registry of $10,309.09 is DENIED; and\\nTHAT the parties shall be prepared to participate in oral argument before this Court on the merits of this appeal on Wednesday, December 20, 1995 at 2:00 p.m.\\nThe Chief Judge of the District Court, as presiding judge, is authorized to rule on matters such as are involved in this memorandum opinion. Section 23A(b), Revised Organic Act of 1954. 48 U.S.C. \\u00a7 1613a(b), reprinted in V.I. Code Ann., Historical Documents, 159-160 (codified as amended) (1995) [\\\"Revised Organic Act\\\"].\\nThe July 27th Order recited that the judgment at issue was $2,500,000 plus interest, arising out of the parties' 1990 divorce decree.\\nSee Appellant's Notice of Emergency Motion filed August 28,1995 [\\\"Notice\\\"], Exhibit 'C.\\nSee id.\\nAppellant promised to retain the stock in an unencumbered condition and to deliver the stock certificates to the Territorial Court's Registry upon further order.\\nA \\\"supersedeas\\\" bond is any form of security, whether in the form of cash, property, or surety bond, which a court may require \\\"of one who petitions to set aside a judgment or execution and from which the other party may be made whole if the action is unsuccessful. Black's Law Dictionary 1289 (5th ed. 1979); see Fed. R. App. P. 7 & 8.\\nThis interpretation is consistent with the provisions of another Territorial Court Rule, Terr. Ct. R. 141(c), which again makes clear that a cash bond is different from a surety bond provided by an insurance company, which is merely a promise to pay a certain amount, conditioned on the occurence of certain events.\\nThe July 6th Order denied appellant's motion to stay and vacated the writ of execution entered on March 15,1995.\"}"
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+"{\"id\": \"5312680\", \"name\": \"KIM D. DAWSEY, Petitioner v. GOVERNMENT OF THE VIRGIN ISLANDS, Respondent, HONORABLE TERRITORIAL COURT JUDGE BRENDA J. HOLLAR, Nominal Respondent\", \"name_abbreviation\": \"Dawsey v. Government of the Virgin Islands\", \"decision_date\": \"1995-11-13\", \"docket_number\": \"District Court Civ. No. 129-95; Terr. Ct. Crim. No. 232/1995\", \"first_page\": 110, \"last_page\": \"114\", \"citations\": \"33 V.I. 110\", \"volume\": \"33\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-11T00:10:10.224032+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: THOMAS K. MOORE, Chief Judge, District Court of the Virgin Islands; RAYMOND L. FINCH, District Court Judge for the District of the Virgin Islands-, and ALPHONSO G. ANDREWS, Territorial Court Judge, Division of St. Croix, Sitting by Designation.\", \"parties\": \"KIM D. DAWSEY, Petitioner v. GOVERNMENT OF THE VIRGIN ISLANDS, Respondent, HONORABLE TERRITORIAL COURT JUDGE BRENDA J. HOLLAR, Nominal Respondent\", \"head_matter\": \"KIM D. DAWSEY, Petitioner v. GOVERNMENT OF THE VIRGIN ISLANDS, Respondent, HONORABLE TERRITORIAL COURT JUDGE BRENDA J. HOLLAR, Nominal Respondent\\nDistrict Court Civ. No. 129-95\\nTerr. Ct. Crim. No. 232/1995\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John Appellate Division\\nNovember 13, 1995\\nCharles Herndon, Esq., for Petitioner\\nRichard Davis, Esq., Assistant Attorney General, for Respondent\\nLeon Kendall, Esq., General Counsel, Territorial Court, for Nominal Respondent\\nBEFORE: THOMAS K. MOORE, Chief Judge, District Court of the Virgin Islands; RAYMOND L. FINCH, District Court Judge for the District of the Virgin Islands-, and ALPHONSO G. ANDREWS, Territorial Court Judge, Division of St. Croix, Sitting by Designation.\", \"word_count\": \"1516\", \"char_count\": \"9312\", \"text\": \"MEMORANDUM\\nPER CURIAM\\nThis matter is before the Court upon petition by Kim D. Dawsey for writ of mandamus on the ground that the nominal respondent, Territorial Court Judge Brenda J. Hollar, has erroneously refused to grant the Government's motion for dismissal of the criminal charges filed against him. Judge Hollar has moved to dismiss the petition based on lack of jurisdiction, failure to state a claim upon which relief can be granted, and because the petition is somehow inappropriate. While this Court will rule on the motion to dismiss, we will withhold ruling on the petition and will request information on the present status of the criminal action below. Upon receipt of this information, we will be able to determine whether the nominal respondent may already have taken action which would make further proceedings unnecessary.\\nThe facts, as asserted by the parties, indicate that petitioner was involved in domestic violence, was arrested on May 6, 1995, and was charged with aggravated assault and battery in violation of V.I. Code Ann. tit. 14, \\u00a7 298. After the Government did further investigation, it filed a motion to dismiss the criminal matter on July 9,1995 supported by an affidavit from the Assistant Attorney General prosecuting the case. Among the reasons recited by the Government in the affidavit as the basis for the requested dismissal, counsel stated that the victim no longer wishes to pursue the matter, that the victim, a minor and child of the petitioner, has recanted his original factual rendition of the incident and has provided a different version which has been verified by another individual. After consulting with the victim's psychologist, who substantiated the new version of the incident, counsel indicated that the Government intended to pursue the matter in the Territorial Court's Family Division. Government of the Virgin Islands v. Dawsey, Terr. Ct. Crim. No. 232/1995, Affidavit of Deborah Kleinman Robinson dated July 11, 1995.\\nPetitioner moved for expedited review of the Government's motion to dismiss on July 17, 1995, and on July 26th, the nominal respondent ordered the Government to demonstrate \\\"that the dismissal is not 'contrary to the public interest' and that the motion is made in 'good faith.'\\\" Government of the Virgin Islands v. Dawsey, Terr. Ct. Crim. No. 232/1995, Order dated July 26, 1995 (citing United States v. Cowan, 524 F.2d 504 (5th Cir. 1975)). The nominal respondent required the Government to submit affidavits from the victim and his mother \\\"setting forth what portion of the original version of the facts is false; the reason they wish to discontinue the present action; whether they have been threatened or coerced in any manner regarding the prosecution of this matter; and whether their present position, not to pursue this matter, has been influenced in any way by the defendant.\\\" The judge also ordered the prosecutor to produce statements from additional witnesses, including a statement from the psychologist explaining \\\"why he believes the complaining witness concocted the original version.\\\"\\nPetitioner responded by filing this petition for a writ of mandamus. On August 2,1995, General Counsel for the Territorial Court, on behalf of Judge Hollar, filed a motion to dismiss the petition, contending that this Court lacks subject matter jurisdiction over petitions for writ of mandamus because 5 V.I.C. \\u00a7 1361 no longer gives the Appellate Division of the District Court any authority over the Territorial Court. This Court took the matter under advisement on September 22, 1995.\\nThere absolutely can be no doubt that the Appellate Division has the power and jurisdiction to hear and determine petitions for writs of mandamus to the judges of the Territorial Court. The Virgin Islands Code states that \\\"[t]he district court may . . . issue writs and make mandatory orders and all other orders necessary or appropriate in aid of its original or appellate jurisdiction\\\" over matters appealed from the Territorial Court. 4 V.I.C. \\u00a7 34 (empha sis added). It is similarly crystal clear that no appeal need be pending, if immediate appellate review is not available by alternative means. Because petitioner has no opportunity to appeal the Territorial judge's decision since this matter is not a 'final order' and not subject to direct appeal, this Court has jurisdiction over the petition \\\"in aid of its . . . appellate jurisdiction . . . .\\\" Id.\\nHaving shown this Court's jurisdictional authority, we now turn to respondent's next two challenges, namely, that (1) the petition is inappropriate and thus fails to state a claim upon which relief can be granted and that, more importantly, (2) the petition has been made moot by the Territorial Court's subsequent Order. If the Petition has been mooted by the Territorial Courfi s subsequent Order, then this Court will refrain from further review. If, however, the appropriateness of the Territorial Court's reluctance to dismiss the action is still at issue, then this Court must determine whether the respondent judge has erred in her refusal to grant the Government's motion for dismissal. For example, we do not know whether the Government has supplied the additional filings required under the nominal respondent's July 26th Order, and if a response has been filed, we do not have a copy, nor do we know if the judge has issued any subsequent orders. Because several months have elapsed since the filing of the petition, in part due to the effects of Hurricane Marilyn, we are hopeful that the issue is now moot. If not, this Court, armed with the information it is requesting, will be in a position to rule on the merits of the petition. A separate order follows.\\nORDER\\nPER CURIAM\\nAND NOW, this 13th day of November, 1995, having considered the submissions of the parties; and for the reasons set forth in the Court's accompanying Memorandum of even date;\\nIT IS ORDERED:\\nTHAT the motion to dismiss is DENIED,\\nTHAT the Government's motion for leave to file its brief is GRANTED and the brief is deemed filed nunc pro tunc,\\nTHAT, no later than November 22, 1995, the parties shall file with this Court a report no more than 5 pages in length explaining the history of this matter in the Territorial Court since nominal respondent's July 26th Order and current status of this matter, and\\nTHAT, no later than November 17, 1995, the Clerk of the Territorial Court shall prepare and file with this Court a certified list of docket entries filed in Criminal No. 232/1995, together with copies of any orders and/or opinions entered in this matter after July 26, 1995.\\nPetitioner and the Government claim that the Motion to Dismiss was filed on July 6,1995, while the Territorial Court contends that the Motion was filed on July 9, 1995.\\nThe Government moved for leave to file an amicus brief. Because the motion was made before the petition went to the panel for review, the brief is currently on file, and no prejudice will result from allowing consideration of the Government's brief, we will make an exception and grant the leave.\\nSect\\u00edon 23A(a) of the Revised Organic Act of 1954, 48 U.S.C. \\u00a7 1613a(a). The Revised Organic Act of 1954 is found at 48 U.S.C \\u00a7 1541-1645 (1995), reprinted in V.I. Code Ann., Historical Documents, 73-177 (codified as amended) (1995) [\\\"Revised Organic Act\\\"]. Section 23A is the basis for the Legislature's enactment of 4 V.I.C. \\u00a7 34, subsection (a) of which states that, until the Legislature establishes an appellate court to handle appeals from the Territorial Court, \\\"the District Court of the Virgin Islands shall have such appellate jurisdiction over the courts of the Virgin Islands established by local law to the extent now or hereafter prescribed by local law . . . .\\\"\\nWe need not reach the question whether the transfer of original jurisdiction implicitly repealed 5 V.I.C. \\u00a7 1361 since our authority to issue the writ is clear under 4 V.I.C. \\u00a7 34. We only note that the Legislature may not preclude review of a judgment which involves a constitutional right. See Government of the Virgin Islands v. Warner, 48 F.3d 688, 693 (3d Cir. 1995).\\nLa Buy v. Howes Leather Co., 352 U.S. 249 (1957); see Virgin Islands Housing Finance Authority v. Smith, 26 V.I. 248, 252-53 (D.V.I. App. 1991) remanded and dismissed as moot, No. 91-3229 (3d Cir. 1992).\\nTo determine whether mandamus is appropriate or whether the petition states a claim upon which relief can be granted, this Court must examine the substantive issue. Accordingly, we find that dismissal based on these grounds would be premature.\"}"
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+"{\"id\": \"5678150\", \"name\": \"JESUS A. GARCIA, Appellant v. GLENYS B. HERBERT, Appellee\", \"name_abbreviation\": \"Garcia v. Herbert\", \"decision_date\": \"2006-11-22\", \"docket_number\": \"D.C. Civ. App. No. 2002/76\", \"first_page\": 599, \"last_page\": \"611\", \"citations\": \"48 V.I. 599\", \"volume\": \"48\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:11:03.604297+00:00\", \"provenance\": \"CAP\", \"judges\": \"GOMEZ, Chief Judge, District Court of the Virgin Islands', FINCH, Judge of the District Court of the Virgin Islands', and SWAN, Judge of the Superior Court of the Virgin Islands, Sitting by Designation.\", \"parties\": \"JESUS A. GARCIA, Appellant v. GLENYS B. HERBERT, Appellee\", \"head_matter\": \"JESUS A. GARCIA, Appellant v. GLENYS B. HERBERT, Appellee\\nD.C. Civ. App. No. 2002/76\\nDistrict Court of the Virgin Islands Division of St. Croix\\nNovember 22, 2006\\nDARWIN CARR, Esq., St. Croix, U.S.V.I., For Appellant.\\nGlenys Herbert, Pro se, St. Croix, U.S.V.I.\\nGOMEZ, Chief Judge, District Court of the Virgin Islands', FINCH, Judge of the District Court of the Virgin Islands', and SWAN, Judge of the Superior Court of the Virgin Islands, Sitting by Designation.\", \"word_count\": \"4277\", \"char_count\": \"26001\", \"text\": \"MEMORANDUM OPINION\\n(November 22, 2006)\\nAppellant Jesus Garcia (\\\"Garcia\\\" or \\\"appellant\\\") appeals from a judgment in the Small Claims Division of the Superior Court in favor of the appellee, Glenys Herbert (\\\"Herbert\\\" or \\\"appellee\\\"). He presents the following issues for review:\\n1. The trial court erred in dismissing his counterclaim.\\n2. The trial judge erred in considering the case after initially stating on the record his intent to recuse himself.\\n3. The factual findings of the court were clearly erroneous.\\nFor the reasons offered below, we affirm the judgment of the Superior Court.\\nI. STATEMENT OF FACTS AND PROCEDURAL POSTURE\\nIn August 2001, the appellant entered into an oral agreement to lease residential property at No. 348 Estate Williams Delight to Herbert. Both parties acknowledge the oral agreement, and a written receipt and other correspondence appear in the record evidencing the agreement. Pursuant to the parties' agreement, the appellee paid the appellant $900, which a receipt indicates was for one month's rent and the security deposit for the lease. The receipt also indicates that rent would be due monthly, on the 30th or 31st of each month. However, the evidence on record also points to negotiations for the purchase of the property and to have the $900 serve as a deposit for such purchase. That evidence includes several correspondence from Garcia's attorney referring to the purchase agreement and testimony by both parties to the fact of ongoing negotiations for the purchase of the home.\\nAfter payment of the money, Garcia turned over keys to the property to Herbert. Herbert contends she never moved into the property, however, because the landlord never made repairs which were a condition of her tenancy. As evidence of an agreement to repair, Herbert submitted at trial various correspondence from both parties referring to such an agreement. Garcia said he moved to Santo Domingo and was unaware whether Herbert ever moved in; however, in his testimony he acknowledged the existence of an agreement to make repairs, although he testified those repairs were to be made as rent was paid.\\nDespite that testimony, Garcia now argues he did not agree to make prior repairs and argues that Herbert agreed to do such repairs during her tenancy and charge it off the rent. In support of that argument, Garcia points to an unsigned memorandum, purportedly from Herbert, summarizing her understanding of the parties' agreement.\\nAttorney Darwin Carr (\\\"Attorney Carr\\\"), who represented Garcia in the transactions following the parties' agreement, wrote several correspondence to Herbert attempting to settle the apparent dispute over the repairs. In a letter written on September 25, 2001 and again on October 4, 2001, Attorney Carr indicated the parties had been negotiating since August regarding the repair of the home and made offers to settle the dispute, which included a four-month rent credit proposal. Attorney Carr also sent to the appellant several proposed offers to purchase, along with cover letters in which he referred to purchase negotiations and assured Herbert that if the offer was unacceptable, he would return her deposit of $900.\\nOn October 2, 2001, Herbert wrote to Attorney Carr advising him that $4,000 in repairs was required \\\"in order for me to move in\\\" to the house. A repair estimate from a contractor was included with that letter.\\nOn October 4, 2001, the appellant, through his counsel, notified Herbert that he had become aware that the locks had been changed to the property and requested copies of keys in her possession. In response, by letter dated October 5, 2002, Herbert advised Attorney Carr not to contact her further or enter the property, on threat of legal process. In that letter, she referred to herself as a tenant, although she also noted her \\\"impending\\\" tenancy. At trial, Herbert explained she wrote the letter in response to what she viewed as harassment by Attorney Carr.\\nFollowing Herbert's response, Attorney Carr served Herbert with notice to quit the premises within 30 days. The appellee subsequently filed a small claims complaint seeking to recoup her $900 deposit, claiming she never took actual possession of the premises because of Garcia's failure to repair.\\nAttorney Carr filed a counterclaim in his own name, seeking reimbursement of $393.85. Of that amount, he claimed $93.85 was incurred in replacing the locks to the property and the remainder for representing Garcia in the transactions with Herbert. Attached to the counterclaim was the unsigned memorandum, addressed to Garcia from Herbert and purporting to memorialize an oral agreement that would have made Herbert responsible for repairs.\\nAt the initial hearing on the matter, Garcia did not appear. However, Attorney Carr appeared on his behalf, although he referred to himself not as Garcia's legal counsel, but as his agent. At that hearing on February 5, 2002, the trial judge dismissed the appellant's counterclaim and struck it from the record, after noting that the counterclaim was brought in Attorney Carr's name. Moreover, the judge stated that because Garcia, the named defendant in the action, failed to appear, the matter would be decided on the pleadings. The court also set a new date for hearing, after it came to the court's attention that Garcia may have had no knowledge of the proceedings, because Attorney Carr served notice through a mailbox that only Attorney Carr had access to.\\nAlthough the trial judge indicated at the February hearing that he would recuse himself from the matter, he nonetheless considered the merits at a new hearing on April 23, 2002. At that hearing, Garcia appeared but did not file a counterclaim for damages, nor did he offer any evidence of damages. He testified he had offered to refund Herbert's money on several occasions, but she did not accept it because of the ongoing purchase negotiations. He acknowledged that Herbert had indicated to him that she had never occupied the house, but he lived off-island and was unaware whether she had.\\nMoreover, contrary to the unsigned memorandum submitted by Attorney Carr in the counterclaim, Garcia testified to an agreement to repair the premises, which he said he agreed to do little by little as Herbert paid the rent. On questioning by the court, Garcia asserted he did not believe Herbert was entitled to refund of the deposit because she had previously refused such refund and because she had held the property for two months, thereby preventing him from securing another tenant. He acknowledged, however, that during that two-month period, he was engaged in negotiations to sell the property to Herbert and was unable to provide the court with evidence that he had lost potential tenants.\\nAt the conclusion of the hearing, the court found in favor of Herbert and awarded her a refund of $900. This timely appeal followed. Herbert has not filed an appellate brief.\\nII. DISCUSSION\\nA. Jurisdiction and Standards of Review\\nWe exercise appellate jurisdiction to review this appeal from a civil judgment, pursuant to The Omnibus Justice Act of 2005, Act No. 6730, \\u00a7 54 (amending Act No. 6687 (2004), which repealed 4 V.I.C. \\u00a7 33-40, and reinstating appellate jurisdiction in this Court) and the Revised Organic Act of 1954 \\u00a7 23A, 48 U.S.C. \\u00a7 1613a.\\nWe generally review findings of fact for clear error and afford plenary review to the trial court's determinations of law. See Poleon v. Gov't, of the V.I., 184 F. Supp. 2d 428 (D.V.I. App. Div. 2002); Bryan v. Government of the V.I., 150 F. Supp. 2d 821, 827 n.7 (D.V.I. App. Div. 2001); Nibbs v. Roberts, 31 V.I. 196, 204 (D.V.I. App. Div. 1995). On appeal, we must give due regard and deference to the credibility determinations of the trial court, which is in the best position to make such assessments.\\nB. Whether the Trial Court Erred in Dismissing the Appellant's Counterclaim.\\nAppellant contends the trial judge erred in dismissing his counterclaim, without offering reasons on the record or findings of fact supporting such dismissal. We disagree.\\nIn pleadings filed with the court, a party to the action is required to set forth the nature of the claim \\\"showing that the pleader is entitled to relief.\\\" FED. R. Crv. P. 8(a) (applicable through SUPER. CT. R. 32); SUPER. Ct. R. 34. Moreover, the action must name all the parties to that action and shall, if brought pro se, be signed by the party seeking relief. See SUPER. CT. R. 30(a); see also FED. R. ClV. P. 10, 11(a) (applicable through SUPER. Ct. R. 29). Although small claims actions require some liberal construction and are not held to formal procedures, the statute governing such actions similarly requires that \\\"parties shall in all cases appear in person except for corporate parties, associations and partnerships which may appear by a personal representative.\\\" 4 V.I.C. \\u00a7 111-112; see also SUPER. Ct. R. 61-63 (procedures in small claims division). Accordingly, no party may be represented by counsel in such actions, in furtherance of the statute's intent to provide an informal, summary, and simple procedure for seeking relief. Given these standards and the facts established on the record, the appellant's argument that the trial judge arbitrarily dismissed his counterclaim is unpersuasive.\\nAttorney Carr noted he was not a party to the challenged oral agreement and was not around at the time of its making. Despite the assertions in the pleading, indicating that Herbert's alleged actions and resulting injury were against Garcia, the counterclaim named as a party Attorney Carr. Moreover, Attorney Carr signed that pleading and, on questioning by the Court, acknowledged that Garcia had not seen any correspondence, although he was notified of the proceedings by phone. Attorney Carr additionally acknowledged on the record that he brought the counterclaim, not on his own behalf, but as Garcia's \\\"agent.\\\" Finally, a substantial part of the counterclaim was for attorney's fees, which are not permissible in a small claims action.\\nThe trial judge pointed out on the record that the counterclaim was defective, in that it named Attorney Carr, rather than Garcia, as the claimant and was signed by the attorney, and the hearing was continued until Garcia could be personally present. Garcia later appeared at a rescheduled hearing and responded to the complaint, but did not file a counterclaim on his own behalf.\\nAlthough the trial court did not specially enter findings on the record surrounding this dismissal, as required under FED. R. Civ. P. 52(a), its reasoning is adequately set forth on the record to permit review. See FED. R. ClV. P. 52 (requiring findings of fact in non-jury settings and finding oral findings sufficient to satisfy this requirement); see also, Ross v. Bricker, 770 F. Supp. 1038, 1042, 26 V.I. 314 (D.V.I. App. Div. 1991) (noting that, \\\"If the record sufficiently informs the appellate court of the basis of decision of the material issues, then it is appropriate for it to determine the merits of the appeal without remanding for more specific findings.\\\") (citations omitted). Given the clear statutory prohibition against representation by an attorney or agent in a small claims action, and the statutory mandate that such claims be brought in the name of the party who shall personally appear, the trial court did not err in determining that Attorney Carr's counterclaim and appearance were improper.\\nC. Whether the Trial Judge Erred in Considering the Case After Stating on the Record His Intent to Recuse Himself.\\nAppellant next complains the trial judge erroneously considered the matter, despite initially stating on the record his intent to recuse himself. Because there is no indication the appellant challenged the judge's ability to hear the case or requested recusal, our scope of review is constrained to plain error. See United States v. Vampire Nation, 451 F.3d 189, 207-08 (3d Cir. 2006) (court's decision not to sua sponte recuse is reviewed for plain error) (citing Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 166, 45 V.I. 712 (3d Cir. 2004)).\\nUnder that standard, we may reverse the trial court's determination where there was a plain error that affected the litigant's substantial rights. Seikridge, 360 F.3d at 167. (citing United States v. Antar, 53 F.3d 568, 573 (3d Cir. 1995); United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993)). Such error generally requires some \\\"affirmative showing that the error [was] prejudicial. It must have affected the outcome of the district court proceedings.\\\" Id. (quoting Olano, 507 U.S. at 734) (internal quotation marks omitted). However, the Seikridge Court noted that, in the context of recusal challenges, prejudice may be presumed without affirmative evidence that the alleged error affected the outcome where the trial judge failed to recuse himself \\\"despite an appearance of partiality.\\\" Id. The Court noted, \\\"Because the touchstone of recusal is the integrity of the judiciary . prejudice is presumed once the appearance of partiality is shown.\\\" Id. (citations omitted).\\nAppellant correctly points to Virgin Islands law prohibiting a judge from considering a matter in which he has a personal interest, whether as a party, or through relationship to a party, or as prior representative, or \\\"When it is made to appear probable that, by reason of bias or prejudice of such judge, a fair and impartial trial cannot be had before him.\\\" 4 V.I.C. \\u00a7 284. However, he points to no evidence of partiality, and the record is devoid of any evidence of bias or personal interest in the case that would bring this case within section 284 or within the Selkridge presumption.\\nWe note that although the trial judge suggested at the initial hearing that he might be inclined to recuse himself from the case, there is nothing on the record from which we can discern the reason for the trial judge's suggestion or to conclude that this evidenced partiality, as the appellant suggests. That statement could have been made for any number of reasons without suggesting partiality concerning the merits of the action, given the procedural posture of the case at the time. (For example, at the time of the judge's statement, Attorney Carr was the named counterclaimant, and the relief sought was to recover his costs as representative of Garcia. When the matter was finally considered, Attorney Carr was no longer a named party nor appeared as a witness to the action.).\\nOn such a bare record, we cannot determine that the judge's failure to recuse himself amounted to plain error.\\nD. Whether The Factual Findings of the Court Were Clearly Erroneous.\\nFinally, the appellant argues the trial court's findings supporting its judgment were clearly erroneous as they relate to whether the tenant never took possession of the premises because of needed repairs.\\nIn determining whether Herbert assumed possession of the leased premises, we turn first to the Restatement (Second) of Property. Under the restatements, a landlord-tenant relationship is regarded as having been formed \\\"only if the landlord transfers the right to possession of the leased property.\\\" RESTATEMENT (SECOND) OF PROPERTY LANDLORD & TENANT \\u00a7 1.2. As the comment to the Restatement notes:\\nThe landlord-tenant relationship will not commence until the tenant has a present right to possession . Whether an arrangement between two parties with respect to leased property transfers to one of them the right to possession of the property depends on the intention of the parties, as revealed by the terms of their arrangement and the circumstances. The right to possession is normally transferred if the arrangement contemplates that the transferee will assume a physical relationship to the leased property which gives him control over and the power to exclude others from the property.\\nId. at cmt. a. However, the existence of the landlord-tenant relationship may be made conditional on the occurrence of some other event, as the following provision explains:\\nWhen a stipulated event must occur before an otherwise validly created landlord-tenant relationship is to commence, the relationship is not established until such event occurs. The event stipulated may be one that is certain to occur and the time of its occurrence may be definitely determinable, as when the event is the passage of a fixed or computable period of time. . The event may be uncertain of occurrence, as when the event is the completion of a building.\\nRestatement (Second) of Property \\u00a7 1.8 and comment a (noting that the landlord-tenant relationship \\\"cannot begin until the tenant has the right to possession. Prior to that time, the arrangement between the parties is not one of landlord and tenant though the agreement they have entered into may impose current obligations on one or the other.\\\").\\nHerbert asserted in her complaint and testified at the hearing that although she agreed, sometime in August 2001, to rent Garcia's house, Garcia agreed to first bring the house \\\"into living condition\\\" in order for her to move in by the end of August. However, she asserted the necessary repairs were never made and she was, therefore, never able to occupy the house. Herbert also presented other evidence on the record tending to show a conditional rental agreement. She produced a letter which she wrote to Attorney Carr on October 2, 2001, in which she submitted an estimate of repairs, noting, \\\"The cost to repair, this house is four thousand one hundred thirty-seven and fifty cents ($4,137.50) to make it [liveable] in order for me to move in.\\\" On the same day, Attorney Carr responded to that letter on behalf of Garcia, acknowledg ing that the parties \\\"have been attempting to reach an agreement\\\" regarding repairs \\\"since the end of August.\\\" The letter concludes by extending an offer \\\"with regard to renting the subject property,\\\" as follows:\\nMr. Garcia is willing to credit you the rent for the months of October, November, December and January 2002 towards making the repairs to the house. Your first months rent of Four Hundred and Fifty $450 dollars will be due on January 31, 2002 . If these terms are acceptable to you, please sign, have notarized, and initial each page Of the rental agreement. Otherwise, please make arrangements to have the keys delivered to me so that your Nine Hundred Dollar ($900.00) deposit can be refunded in a timely manner.\\n[See Letter from Attorney Carr to Glenys Herbert dated Oct. 2, 2001] (emphasis added). Another letter two days later, again from Attorney Carr to Herbert suggesting that someone had changed the locks to the property, also noted that \\\"apparently someone has entered the main house and turned on lights and left them on for several days.... If you did enter the house and turn on the lights, please cease and desist from doing so immediately.\\\" [Letter dated Oct. 4, 2001]. The language of that letter, which was issued prior to the notice to vacate, also suggests Herbert was not in possession of the house at that time.\\nMoreover, while the appellant argues that the language of the October 5, 2001 letter to Attorney Carr from Herbert threatening Attorney Carr with legal process if he entered the property evinces clear evidence of possession, he ignores other language in the same document referring to Herbert's \\\"impending residence\\\" and all of the other contrary evidence at trial. Further supporting the evidence that there were ongoing negotiations regarding the conditional lease agreement was Garcia's testimony at trial that, \\\"At the end of September when I see, you know, we are not reaching where we are suppose to be I was willing to return her money.\\\" [Tr. at 39].\\nGarcia also testified that, because he had relocated to Santo Domingo, he did not know whether Herbert ever moved into the home, although he acknowledged she had previously told him she had not. He also offered a different account of the agreement regarding repairs, however. In that regard, Garcia testified that Herbert had agreed to pay rent and that he had agreed to make repairs as the rent was paid, since he had no up-front money to do the repairs.\\nTaken as a whole, this evidence supports the trial court's finding that Herbert never assumed possession of the premises and was entitled to a refund.\\nIn the face of contrary evidence and testimony at the hearing, we also view as unpersuasive Garcia's appellate argument that a purported memorandum by Herbert on August 31, 2001 precluded the court from crediting Herbert's testimony that her tenancy was conditioned on the landlord making repairs. We note first that the memorandum was attached to the counterclaim, which was stricken from the record. Moreover, the document was not signed by either party, although it purports to express Herbert's understanding of the oral agreement. Nonetheless, Garcia did not argue at trial that there was such an agreement, nor did he attempt to offer that document into evidence. Indeed, he gave contrary testimony that he had, indeed, agreed to make repairs to the property as funds became available. Therefore, the trial court was faced with two different versions regarding whether the landlord agreed to repair the premises prior to Herbert's tenancy or after she moved in. To the extent the trial court made a credibility determination in resolving the dispute regarding the scope of the agreement to repair, we will not disturb that determination. See e.g., Petillo v. New Jersey, 562 F.2d 903, 907 (3d Cir. 1977); Georges v. Gov't of the V.I., 119 F. Supp. 2d 514, 523 (D.V.I. App. Div. 2000); see also United States v. Delerme, 457 F.2d 156, 160, 8 V.I. 515 (3d Cir. 1972) (noting that appellate court should afford great deference to credibility determinations by the factfinder, who is uniquely positioned to view a witness' demeanor and to assess credibility).\\nWe find equally supportable the trial court's finding that the evidence presented pointed to an agreement to purchase the property and to apply the $900 deposit toward that purchase. Attorney Carr presented offers to purchase the property to Herbert \\u2014 on September 25, 2001 and October 1, 2001 \\u2014 in which he indicated that if no agreement was reached, \\\"your $900 deposit will be refunded to you (provided that you return the keys to the house).\\\" Consistent with such negotiations, Garcia testified that he offered to return Herbert's money on several occasions, through his attorney, but said she refused to accept it because she wanted to continue with the purchase of the home.\\nGiven all of the evidence on the record, we find no grounds for reversal.\\nIII. CONCLUSION\\nFor the foregoing reasons, the trial court's determination in favor of the appellee will be affirmed.\\nThe appellant did not raise the Statute of Frauds at trial. Nonetheless, we conclude the agreement in this instance does not violate the statute.\\nContracts affecting property are subject to the Virgin Islands Statute of Frauds, which provides that, \\\"Every contract for the leasing for a longer period than one year from the making thereof, or for the sale of any lands, or any interest in lands, shall be void unless the contract or some note or memorandum is in writing, and signed by the party to be charged, or by his lawful agent under written authority.\\\" V.I. Code Ann. tit. 28, \\u00a7 241, 244. Therefore, \\\"[a] landlord-tenant relationship can be created orally if the duration of an oral lease does not exceed\\\" one year. Restatement (Second) of Property \\u00a7 2.1 (1976); See 28 V.I.C. \\u00a7 241.\\nHere, the parties acknowledge the oral agreement, and there is no assertion in any of the documents or the testimony that the parties' rental agreement was to exceed one year, to bring it within the Statute of Frauds. See See Flight Sys., Inc. v. Electronic Data Sys. Corp., 112 F.3d 124, 127 (3d Cir. 1997) (noting that statute of frauds is waived if the defendant \\\"admits to the existence of a contract in pleadings or testimony\\\").\\nMoreover, a written receipt evidencing the, agreement indicates that rent would become due on the 30th or 31th of each month and does not otherwise specify a term of duration. In such instance, a periodic (or month-to-month) tenancy is presumed. Restatement \\u00a7 1.5 comment d (\\\"Where the parties enter into a lease of no stated duration and periodic rent is reserved or paid, a periodic tenancy is presumed. The period thus presumed is equal to the interval for which rent is reserved or paid to a maximum periodic tenancy of year to year.\\\"). Accordingly, the V.I. Statute of Frauds was not violated.\\nThe complete Revised Organic Act of 1954 is found at 48 U.S.C. \\u00a7 1541-1645 (1995 & Supp. 2003), reprinted in V.L Code Ann. 73-177, Historical Documents, Organic Acts, and U.S. Constitution (1995 & Supp. 2003) (preceding V.I. Code Ann. tit. 1).\\nEven if the counterclaim were considered, the appellant would not be entitled to relief. The counterclaim requested damages totaling $393.85 for \\\"costs in engaging his agent in preparing to evict Counter-Defendant from subject property, purchasing new locks, and engaging his agent to represent him in the instant case.\\\" Of that amount, $300 were for attorney's fees, as evidenced by the receipts attached to the counterclaim as Plaintiff's Exhibit 6. On the remaining sum, the evidence was disputed. Herbert denied changing locks or ever occupying the premises. Garcia offered no evidence at the hearing on this issue.\\nThe Virgin Islands Code adopts the Restatements of Law in the absence of local law to the contrary. See 1 V.I.C. \\u00a7 4.\"}"
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+"{\"id\": \"5678340\", \"name\": \"HAKIM POTTER, Appellant v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee\", \"name_abbreviation\": \"Potter v. Government of the Virgin Islands\", \"decision_date\": \"2006-08-23\", \"docket_number\": \"D.C. Crim. App. No. 2003-131\", \"first_page\": 446, \"last_page\": \"460\", \"citations\": \"48 V.I. 446\", \"volume\": \"48\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:11:03.604297+00:00\", \"provenance\": \"CAP\", \"judges\": \"FINCH, Chief Judge, District Court of the Virgin Islands', GOMEZ, Judge of the District Court of the Virgin Islands', and STEELE, Judge of the Superior Court of the Virgin Islands, Sitting by Designation.\", \"parties\": \"HAKIM POTTER, Appellant v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee\", \"head_matter\": \"HAKIM POTTER, Appellant v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee\\nD.C. Crim. App. No. 2003-131\\nDistrict Court of the Virgin Islands Division of St. Thomas and St. John\\nAugust 23, 2006\\nDebra Smith Watlington, TPD, St. Croix, U.S.V.I., For Appellant.\\nMAUREEN Phelan, AAG, St. Croix, U.S.V.I., For the Government, Appellee.\\nFINCH, Chief Judge, District Court of the Virgin Islands', GOMEZ, Judge of the District Court of the Virgin Islands', and STEELE, Judge of the Superior Court of the Virgin Islands, Sitting by Designation.\", \"word_count\": \"4403\", \"char_count\": \"27498\", \"text\": \"MEMORANDUM OPINION\\n(August 23, 2006)\\nHakim Potter [\\\"Potter\\\"] appeals his fourteen-year imprisonment sentence imposed by the Superior Court following his conviction for two counts of unlawful sexual contact in the first degree, and one count of disturbing the peace.\\nI. Facts\\nOn the night of November 11, 2002, the Virgin Islands police responded to a call from a Carl \\\"Touncou\\\" Sprauve [\\\"Sprauve\\\"], who reported that a woman had just been sexually assaulted in the Bovoni area of St. Thomas. The police arrived at Lima's Superette [hereinafter \\\"Lima's\\\"] in Bovoni to find a young woman crying and in a generally frightened and disheveled state. She identified herself as Tameka Andrews [\\\"Andrews\\\"], and stated that she had nearly been raped by a man in the Bovoni Projects. Thereafter, Andrews accompanied the police in a search of the Bovoni Projects. Near Building D, Andrews saw and positively identified a man, later identified as Potter, as her attacker. The police arrested Potter after a second unit arrived on the scene.\\nPotter was charged with two counts of using force to accomplish a sexual contact. 14 V.I.C. \\u00a7 1708(1). He was also charged with one count of disturbing the peace. 14 V.I.C. \\u00a7 622(1).\\nA jury trial was held in the Superior Court of the Virgin Islands. During opening statements, the prosecuting attorney remarked that she believed she had met her burden of proof. Potter's counsel objected to this statement. The trial court sustained Potter's objection and immediately instructed the jury that attorneys' personal beliefs or opinions are not proper in opening and closing statements. Also during her opening statement, the prosecutor stated her intention to introduce certain statements by the defendant that had not been produced during discovery. Again, Potter objected, and the Superior Court instructed the jury to disregard \\\"any statement or any commentary that [Potter] made a statement.\\\" [J.A. 28-29.]\\nDuring the trial, Andrews testified that she had a boyfriend whom she had been dating for two years at the time of the incident. Andrews testified that she had argued with her boyfriend the day of the incident. She also testified that her boyfriend had not assaulted her. During redirect, the prosecutor asked Andrews whether she was \\\"absolutely certain that the person that attacked you was not your boyfriend that you knew for two whole years and lived with at the time of the attack?\\\" [Id. at 76-76A.] Potter objected to the question as testifying for the witness. The Superior Court did not rule on the objection, but the Court instructed the prosecuting attorney to rephrase the question, which the prosecutor did.\\nIn her closing argument, the prosecutor referred to \\\"some kind of unspoken rule in Bovoni Housing Project... that a woman walking down the street in Bovoni, if she look [sic] good to one of the \\u2014 \\\". [Id at 150.] Potter objected to this comment before the prosecutor could finish it, and moved for a mistrial. The Superior Court denied the motion for mistrial, and instructed the prosecutor to be aware that many people live in Bovoni. The prosecuting attorney finished her closing argument without incident.\\nDuring his closing arguments, Potter questioned the reliability of the government's witnesses, two police officers and Andrews. In rebuttal, the prosecutor stated that Andrews \\\"has no reason to lie.\\\" [Id. at 151.] Potter objected to this statement and again moved for a mistrial. The Superior Court did not rule on the objection, but denied the mistrial motion.\\nAlso during her rebuttal, the prosecutor stated that Andrews' out-of-court statements and in-court testimony were consistent. Potter promptly objected. The Superior Court stopped the prosecutor's rebuttal and brought both counsel to sidebar. After a sidebar discussion, the Superior Court again instructed the jury to \\\"disregard entirely any reference made to any statement being consistent with anybody's testimony.\\\" [Id. at 174.]\\nIn its instructions to the jury, the Superior Court reminded the jurors that they were the sole judges of credibility and believability of the witnesses. The Superior Court also instructed the jury that any statements made during the opening and closing arguments were not evidence.\\nThe jury convicted Potter of each of the counts against him. He received concurrent fourteen-year prison sentences for each of the felony sexual assault counts. Potter timely filed this appeal on July 25, 2003.\\nPotter presents three arguments to this Court. First, he argues that the prosecution's conduct during the trial, both in individual instances and taken cumulatively, constituted prosecutorial misconduct. He argues that the Superior Court erred when it denied his motions for mistrial based on these statements. Second, Potter argues that the evidence presented at trial was insufficient to support his conviction. Third, he argues that his prison sentence violates the Eighth Amendment's stricture against cruel and unusual punishment.\\nII. DISCUSSION\\nA. Standard of Review\\nThis Court has jurisdiction to review final judgments and orders of the Superior Court. See The Omnibus Justice Act of 2005, Act No. 6730, \\u00a7 54 (amending Act No. 6687 (2004) which repealed 4 V.I.C. \\u00a7 33-40, and reinstating appellate jurisdiction in this Court); Revised Organic Act of 1954 \\u00a7 23A; 48 U.S.C. \\u00a7 1613a. This Court exercises plenary review over the trial court's conclusions of law. Saludes v. Ramos, 744 F.2d 992 (3d Cir. 1984). Findings of fact are reviewed for whether they are clearly erroneous. Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985). This Court reviews the trial court's rulings on contemporaneous objections under an abuse of discretion standard. See United States v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003). Constitutional claims are given plenary review. Warner v. Gov't of the V.I., 332 F. Supp. 2d 808, 810, 46 V.I. 251 (D.V.I. App. Div. 2004).\\nIII. ANALYSIS\\nA. Prosecutorial Misconduct\\nPotter first argues that the Superior Court abused its discretion in denying his motions for mistrial due to the misconduct of the prosecuting attorney.\\nWhen reviewing prosecutorial misconduct claims, this Court considers: (1) the scope of the comments within the context of the whole trial; (2) the effect of any curative instructions given; and (3) the weight of the evidence against the defendant. See United States v. Gambone, 314 F.3d 163, 179 (3d Cir. 2003). Curative instructions, which the jury is presumed to follow, are generally sufficient to overcome improper statements. See United States v. Hakim, 344 F.3d 324, 329-31 (3d Cir. 2003) (holding that a thirty-minute delay in providing curative instructions to a jury for improper conduct did not result in prejudice against the defendant).\\n\\\"This Court will reverse a criminal conviction upon demonstrations of prosecutorial misconduct 'only in those situations in which prejudice inures to the defendant from the challenged improprieties.\\\"' Baptiste v. Gov't of the V.I., 240 F. Supp. 2d 381, 388 (D.V.I. App. Div. 2003) (quoting Plaskett v. Gov't of the V.I., 147 F. Supp. 2d 367, 376 (D.V.I. App. Div. 2001)). \\\"If our review of the record convinces us that the jury would have convicted the defendant even had it not been exposed to the allegedly improper prosecutorial comments, we must conclude that no actual prejudice accrued.\\\" Plaskett, 147 F.2d at 376.\\n1. Opening statement remarks.\\nHere, the prosecutor noted that she believed she had satisfied her burden of proof. Statements of personal belief or opinion about a case or client are improper. See United States v. Young, 470 U.S. 1, 17, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985) (\\\"[T]he prosecutor's statement of his belief that the evidence showed Apeo had been defrauded should not have been made; it was an improper expression of personal opinion.\\\").\\nHowever, Potter immediately objected, and the trial judge instructed the jury to disregard the prosecution's remarks. Additionally, the trial judge reminded the jurors to disregard the counsel's opening and closing arguments in their deliberations at the close of the trial. These instructions, as well as the comments taken in the context of the entire trial, were sufficient to overcome the prosecutor's improper statements. See Baptiste, 240 F. Supp. 2d at 388 (noting that, even if a prosecutor's comments had been inappropriate, the \\\"trial judge's curative instruction to the jury protected Baptiste from any actual prejudice\\\").\\nSimilarly, the prosecutor's opening comment regarding a written statement that was not allowed as evidence does not merit reversal. At the time she made it, the prosecutor did not know the statement she alluded to would not be admitted into evidence. Even assuming that this comment was improper, the trial judge cured the impropriety by promptly instructing the jury to disregard any testimony about statements not entered into evidence. See United States v. Vaulin, 132 F.3d 898, 901 (3d Cir. 1997) (denying a new trial due to alleged prosecutorial misconduct where \\\"the trial judge immediately gave a strong curative instruction\\\"). The trial court did not abuse its discretion in refusing to grant a mistrial because of these statements.\\n2. Prosecutorial testimony.\\nDuring redirect of Andrews, the prosecutor asked Andrews whether she had fought with her boyfriend on the night of the alleged attack, and whether she was \\\"absolutely certain that the person who attacked you was not your boyfriend that you knew for two whole years and lived with at the time of the attack?\\\" [J.A. 76-76A.] Potter argues that this question constitutes improper testimony by the prosecutor for the witness and that a mistrial should have been declared because of it.\\nEven assuming that the prosecutor's question to Andrews was improper, to be reversible the comments must have resulted in prejudice to the defendant. Plaskett, 147 F.2d at 376. Courts have found reversible error where prosecutors were allowed to introduce extraneous information through questioning. See, e.g., United States v. Urban, 404 F.3d 754, 778 (3d Cir. 2003) (noting that the introduction of extraneous information may result in prejudice to the defendant).\\nHere, Andrews had already testified that she and her boyfriend had argued earlier that day. Andrews had also testified that her boyfriend had not assaulted her. Further, she had earlier testified that she knew Potter, and that he had assaulted her. Any response Andrews would have given to the prosecutor's question would merely have reiterated a statement Andrews had previously made. Because the prosecutor's question would not have elicited new information, the trial court did not err in denying a motion for mistrial based on that question. Cf id.\\n3. Closing argument and rebuttal.\\nPotter also argues that the prosecutor's remarks during her closing argument concerning a \\\"custom\\\" in Bovoni and a statement not admitted during the trial constitute reversible prosecutorial misconduct.\\nAssuming, without deciding, that the prosecutor's reference to a \\\"custom\\\" in Bovoni was improper, the statement must have prejudiced the jury to be reversible. See Gabone, 314 F.3d at 179 (noting that prosecutorial misconduct must result in prejudice to defendant to be reversible). Here, the trial judge cured whatever impropriety there was in this statement by instructing the jury both after these statements were made as well as in the jury instructions to disregard as evidence anything said by either counsel during the opening or closing remarks. See Baptiste, 240 F. Supp. 2d at 388 (\\\"Even if [the prosecutor's comments during closing] had been improper, the trial judge's curative instruction to the jury protected Baptiste from any actual prejudice.\\\"). Accordingly, the trial judge did not err in denying Potter's motion for a mistrial based on these comments.\\nPotter also contends that the prosecuting attorney improperly noted that Potter had not presented any evidence regarding a statement not allowed into the trial. That comment, however, took place entirely at sidebar before the judge, outside of the presence of the jury. As the United States Court of Appeals for the Third Circuit has noted, \\\"information never revealed to the jury could not have prejudiced its deliberations.\\\" United States v. Hedgepeth, 434 F.3d 609, 613 (3d Cir. 2006).\\nMoreover, after the sidebar discussion, the trial court instructed the jury to \\\"disregard entirely any reference made to any statement being consistent with anybody's testimony.\\\" [J.A. at 174.] Even if the sidebar discussion had occurred before the jury, the curative jury instruction cured any prejudice to the jury the comment may have had. Baptiste, 240 F. Supp. 2d at 388. Accordingly, the trial judge thus did not err in denying a mistrial based on this statement.\\nFinally, Potter argues the prosecutor improperly vouched for Andrews during closing arguments by saying that Andrews \\\"has no reason to lie.\\\" [J.A. 174.] The government counters that the prosecutor was merely responding to Potter's attorney's accusations that Andrews' testimony was a lie.\\nThe Third Circuit has established two criteria that must be met to show an attorney improperly vouched for a witness:\\n(l)the prosecutor must assure the jury that the testimony of a Government witness is credible; and (2) this assurance is based on either the prosecutor's personal knowledge, or other information not contained in the record. . The defendant must be able to identify as the basis for [the prosecutor's comment on witness credibility] explicit or implicit reference to either the personal knowledge of the prosecuting attorney or information not contained in the record.\\nUnited States v. Walker, 155 F.3d 180, 184 (3d Cir. 1998). Prosecutors are allowed some leeway when responding to arguments made by defense counsel. See Young, 470 U.S. at 14 (noting that courts allow prosecutors to respond to a defense counsel's accusations during closing remarks).\\nHere, the prosecutor said that the victim \\\"has no reason to lie.\\\" [J.A. 174.] She did so in response to Potter's attack on Andrews' veracity during his closing argument. Thus, the comment does not constitute reversible error. Young, 470 U.S. at 17-18 (upholding a conviction despite an improper remark by the prosecutor during closing because \\\"any potential harm from this remark was mitigated by the jury's understanding that the prosecutor was countering defense counsel's repeated attacks on the prosecution's integrity error\\\").\\nMoreover, the prosecutor's comment merely assured the jury that the testimony of a government witness was credible. There is no indication from the comment that the assurance was based on information other than that contained in the record. Cf. Choi Chun Lam v. Kelchner, 304 F.3d 256, 271 (3d Cir. 2002) (noting that vouching is \\\"an assurance by the prosecuting attorney of the credibility of a government witness through personal knowledge or by other information outside of the testimony before the jury\\\").\\nAssuming, arguendo, that the comment constituted improper vouching, it must have prejudiced the jury. Gabone, 314 F.3d at 179. Notably, before allowing the jury to retire to discuss its decision, the trial judge instructed them that opening and closing statements are not evidence. Additionally, the \\\"vouching\\\" statement was one comment imbedded within two days of trial. The jury instruction and the statement's place within the context to the trial are sufficient to overcome any presumption of prejudice muring to Potter from the arguably improper vouching. See United States v. Zehrbach, 47 F.3d 1252, 1267 (3d Cir. 1995) (holding that vouching statement that took up two-sentences in a forty-page closing argument, and which was countered by curative jury instructions, did not prejudice defendant).\\nAccordingly, the Superior Court did not abuse its discretion in refusing to grant Potter's motion for a mistrial based on this statement.\\nB. Sufficiency of the Evidence\\nPotter argues that the evidence adduced at trial was insufficient to sustain his conviction because the only eyewitness testimony against him was from Andrews.\\nUnlawful sexual contact in the first degree accomplished through force or coercion has three elements. The government must prove, beyond a reasonable doubt, that: (1) the perpetrator engaged in sexual contact; (2) the person with whom the perpetrator engaged in sexual contact was not the person's spouse; and (3) the sexual contact was accomplished by force or coercion. 14 V.I.C. \\u00a7 1708(1).\\nWhen reviewing the sufficiency of the evidence presented at a trial resulting in conviction, all issues of credibility within the province of the jury must be viewed in the light most favorable to the government, which obtained the verdict below. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942); see also United States v. Taftsiou, 144 F.3d 287, 290 (3d Cir. 1998). The Court must ask whether the evidence presented at trial would allow a rational trier of fact to find the defendant guilty of every element of the offense beyond a reasonable doubt. Phipps v. Gov't of the V.I., 241 F. Supp. 2d 507, 510-11 (D.V.I. 2003). \\\"We must . presume that the jury properly evaluated credibility of the witnesses, found the facts, and drew rational inferences.\\\" United States v. Iafelice, 978 F.2d 92, 94 (3d Cir. 1992). Additionally, a jury may convict an individual on the testimony of the victim alone. Lewis v. Gov't of the V.I., 77 F. Supp. 2d 681, 684 (D.V.I. App. Div. 1999).\\nHere, the only eyewitness testimony came from Andrews, the victim. She testified she was not married, had prior knowledge of Potter's identity, and that she recognized him on the night in question. She further testified that Potter had used physical force to touch her sexually against her will. She also identified Potter to the police almost immediately after the alleged event, and without hesitation in the courtroom.\\nThe police officers who responded to Andrews' call the night of the incident also testified at trial, and their testimony corroborated with Andrews'. The officers testified that Andrews looked frightened and had been crying when they arrived at the scene. They stated that her clothing was dirty in the areas she described as having been touched by Potter. The police officers also identified Potter in court as the individual pointed out to them by Andrews as her assailant.\\nViewing the testimony and the physical evidence in a light most favorable to the Government, a reasonable juror could have found that Potter had touched Andrews sexually, that Andrews was not Potter's spouse, and that the sexual contact was accomplished by force. See Georges v. Gov't of the V.I., 119 F. Supp. 2d 514, 523 (D.V.I. App. Div. 2000) (upholding a conviction where the testimony elicited at trial was sufficient to connect the defendants to the crimes for which they were convicted); see also Peters v. Gov't of the V.I., 121 F. Supp. 2d 825, 830 (D.V.I. App. Div. 1998) (noting that the credibility and weight that is attached to witnesses are matters left to the jury). Accordingly, there is sufficient evidence to sustain Potter's conviction.\\nC. Cumulative misconduct.\\nPotter argues that even if the individual errors are harmless, when considered cumulatively they amount to harmful errors requiring a reversal.\\n\\\"Trial errors which in isolation are harmless might, when aggregated, alter the course of a trial so as to violate a petitioner's right to due process of law.\\\" Taylor v. Kentucky, 436 U.S. 478, 487 n.15, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978). The cumulative effect analysis has two elements: (1) that at least two errors were committed in the course of the trial; and (2) that considered together, along with the entire record, the errors so infected the jury's deliberation that they denied the petitioner a fundamentally fair trial. United States v. Copple, 24 F.3d 535, 547 n.17 (3d Cir. 1994).\\nAssuming here that two errors were committed by the court below, Potter's appeal nonetheless must fail. During the two day trial, the trial court gave prompt limiting instructions, both contemporaneously with the objected-to comments and following the trial. Additionally, the record demonstrates sufficient evidence to allow a reasonable jury to conclude, beyond a reasonable doubt, that Potter had committed the crimes for which he was charged. See Gambone, 314 F.3d at 179 (evidence must weigh against the defendant to uphold a verdict of guilty despite prosecutorial misconduct).\\nTaken together, the trial judge's limiting instructions, coupled with the weight of the evidence and the length of the trial, any errors committed below did not prejudice the jury against Potter. See Gov't of the V.I. v. Joseph, 770 F.2d 343, 349 (3d Cir. 1985) (finding defendant was not prejudiced by prosecutor's closing argument in light of curative jury instructions); see also United States v. Gallagher, 576 F.2d 1028, 1042 (3d Cir. 1978) (holding that any prejudice to defendant was cured by trial judge's instructions to ignore, for the purposes of the verdict, the opening statements).\\n[D]. Eighth Amendment Challenge\\nFinally, Potter asserts that his fourteen-year sentence violates the Eighth Amendment's stricture against cruel and unusual punishment because it is \\\"grossly disproportionate\\\" to the offense he was found guilty of having committed.\\nThe Eighth Amendment states that \\\"[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.\\\" U.S. CONST, amend. VIII. Prison sentences violate the Eighth Amendment when they \\\"(1) make no measurable contribution to acceptable goals of punishment...; or (2) are grossly out of proportion to the severity of the crime.\\\" Coker v. Georgia, 433 U.S. 584, 591-2, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977). The appellant bears the burden to show that \\\"the gravity of his crime of conviction is so outweighed by the harshness of his sentence that we are led to reach an inference of gross disproportionality.\\\" United States v. MacEwan, 445 F.3d 237, 250 (3d Cir. 2006).\\nPotter argues that his sentence of fourteen years for using force to accomplish sexual contact is harsh because the victim suffered no physical harm. Potter presents no evidence in support of this contention. Thus, he has failed to meet the initial burden imposed upon him to demonstrate that his sentence is unduly harsh compared with the severity of his crime. See id. (noting that the appellant bears the burden of proving that a punishment is unduly harsh compared to a crime).\\nMoreover, while punishments must be somewhat proportional to the crime committed, strict proportionality in non-capital punishment cases between a punishment and a crime is not required. See Ewing v. California, 538 U.S. 11, 20, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003) (calling for a \\\"narrow proportionality principle\\\" in non-capital cases) (citing Harmelin v. Michigan, 501 U.S. 957, 996-7, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991)). Courts are to give substantial deference to the legislature's authority to determine the types and appropriate sentences for crimes. See Atkins v. Virginia, 536 U.S. 304, 312, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (noting that legislatures provide \\\"the clearest and most objective evidence of contemporary values\\\"). \\\"In light of the deference to be accorded the legislature's determination of appropriate penalties, a sentence within the terms prescribed by the legislature will not be disturbed absent a showing of improper procedure, illegality or abuse of discretion.\\\" Hunt v. Gov't of the V.I., D.C. Crim. App. No. 2003-030, 2005 U.S. Dist. LEXIS 4164, 46 V.I. 534, at *13 (D.V.I. App. Div. March 14, 2005). Generally, \\\"once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end.\\\" Dorszynski v. United States, 418 U.S. 424, 431, 94 S. Ct. 3042, 41 L. Ed. 2d 855 (1974).\\nVirgin Islands law prescribes a maximum sentence of fifteen-years for those convicted of unlawful sexual contact. 14 V.I.C. \\u00a7 1708(6). Potter's fourteen-year sentence clearly falls within the statutorily defined range. Potter presents no facts \\\"to suggest that sentence resulted from illegality or improper procedures or is unconventional for that type of crime.\\\" Hunt, 2005 U.S. Dist. LEXIS 4164, at *15. Thus, Potter's sentence of fourteen years is not clearly excessive, nor does it violate the Eighth Amendment.\\nIV. CONCLUSION\\nAccordingly, for the reasons stated above, this Court will affirm Potter's conviction and sentence.\\nAt all times relevant to this appeal, the trial court was known as the Territorial Court of the Virgin Islands and its judges were referred to as Territorial Court Judges. Effective January 1, 2005, however, the name of the Territorial Court changed to Superior Court of the Virgin Islands. See Act of Oct. 29, 2004, No. 6687, sec. 6, \\u00a7 2, 2004 V.I. Legis. 6687 (2004). Recognizing this renaming, we employ the terms Superior Court and Superior Court Judge.\\nSpecifically, the prosecuting attorney stated that she takes the burden of proof on the government \\\"very seriously. And I realize that in order for me to do what I do, that I have to meet that burden. And that's what I believe I've done.\\\" [J.A. 20.]\\nThe judge instructed the jury that:\\n[Tjhere was a reference made by Attorney Smith that \\\"I believe,\\\" or otherwise. On opening statement and closing arguments, lawyers are not suppose [sic] to give their belief, their personal beliefs, personal opinions, or anything. Therefore, disregard entirely that section of her-that small narrow section concerning her belief. Okay? So disregard that entirely.\\n[J.A. 21.]\\nThese statements were not subsequently admitted into evidence.\\nThe court here instructed:\\nLadies and gentlemen of the jury, there was a statement or some reference made to an alleged statement made by the defendant. Disregard entirely any statement or any commentary or statement that the defendant made a statement. So, in your deliberation of this case, do not consider any statement by any of the lawyers concerning anything the defendant might have said outside of the courtroom. All right. Or any statements he might have made or otherwise. All right. Disregard it entirely.\\n[J.A. 28-29.]\\nThe prosecutor was only able to say \\\"As far as a statement is concerned, we have [the alleged victim's] testimony. Her statement was consistent with her testimony,\\\" before the appellant's counsel objected. [J.A. 161.]\\nOur jurisdiction in this regard was previously provided under 4 V.I.C. \\u00a7 33.\\nCongress has made the Amendment applicable to the Virgin Islands pursuant to section 3 of the Revised Organic Act of 1954. The Revised Organic Act of 1954 is found at 48 U.S.C \\u00a7 1541-1645, reprinted in V.I. Code Ann., Historical Documents, 73-177 (codified as amended) (1995 & Supp. 2004).\"}"
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+"{\"id\": \"5678749\", \"name\": \"LESLIE L. PAYTON, ESQ., Plaintiff v. PUBLIC DEFENDER ADMINISTRATION BOARD, OFFICE OF THE PUBLIC DEFENDER, VINCENT FRAZER, MARTIAL WEBSTER, and MICHAEL JOSEPH, Defendants\", \"name_abbreviation\": \"Payton v. Public Defender Administration Board\", \"decision_date\": \"2007-01-22\", \"docket_number\": \"Civil No. 2006-98\", \"first_page\": 733, \"last_page\": \"743\", \"citations\": \"48 V.I. 733\", \"volume\": \"48\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:11:03.604297+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LESLIE L. PAYTON, ESQ., Plaintiff v. PUBLIC DEFENDER ADMINISTRATION BOARD, OFFICE OF THE PUBLIC DEFENDER, VINCENT FRAZER, MARTIAL WEBSTER, and MICHAEL JOSEPH, Defendants\", \"head_matter\": \"LESLIE L. PAYTON, ESQ., Plaintiff v. PUBLIC DEFENDER ADMINISTRATION BOARD, OFFICE OF THE PUBLIC DEFENDER, VINCENT FRAZER, MARTIAL WEBSTER, and MICHAEL JOSEPH, Defendants\\nCivil No. 2006-98\\nDistrict Court of the Virgin Islands Division of St. Thomas and St. John\\nJanuary 22, 2007\\nGeorge H. Hodge, Jr., Esq., For the plaintiff.\\nMichael A. Joseph, Esq., In his individual capacity and for the defendant Public Defender Administration Board.\\nVincent A. Frazer, Esq., Pro Se.\\nMartial Webster, Esq., Pro Se.\", \"word_count\": \"3507\", \"char_count\": \"21519\", \"text\": \"GOMEZ, Chief Judge\\nMEMORANDUM OPINION\\n(January 22, 2007)\\nBefore the Court is the motion of defendants Michael Joseph (\\\"Joseph\\\"), the Public Defender Administration Board (\\\"PDAB\\\"), and Vincent Frazer (\\\"Frazer\\\") (collectively, the \\\"Moving Defendants\\\") to dismiss the complaint of Leslie Payton (\\\"Payton\\\") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (\\\"Rule 12(b)(1)\\\" and \\\"Rule 12(b)(6),\\\" respectively). For the reasons stated below, the Court will grant the motion to dismiss.\\nI. FACTS\\nFrom 1990 to 1998 and from 1999 to the present, Payton has been employed as an attorney with the Virgin Islands Office of the Public Defender (\\\"OPD\\\"), a quasi-independent governmental agency. Title 5 section 3522 of the Virgin Islands Code (\\\"Section 3522\\\") states that the attorneys of the OPD shall serve at the will of the PDAB, a governing body created and authorized by the same statute to hire and terminate all personnel of the OPD. V.L Code Ann. tit. 5, \\u00a7 3522 (1992). The OPD has created a Territorial Public Defenders Office Manual (the \\\"OPD Office Manual,\\\" or the \\\"Manual\\\"), which states that all OPD employees serve at the pleasure of the PDAB and the Chief Public Defender. The OPD Office Manual also sets forth some examples of grounds for suspension or termination. The manual also describes a grievance process for OPD employees, which requires written notice to the employee of the charges against him and review of the facts of the problematic situation by the Chief Public Defender, followed by a recommendation regarding the type of disciplinary action, if any, that should be taken.\\nAround April 2006, Payton filed suit in the Superior Court of the Virgin Islands (the \\\"Superior Court\\\"), alleging defamation against the PDAB, two of its members individually, the Chief Public Defender, and an investigator in the OPD.\\nOn approximately May 1, 2006, Payton notified the Defendants in writing of his intent to retire beginning September 29,2006.\\nIn a letter dated June 7, 2006, Joseph informed Payton that on May 11, 2006, he, Frazer, and Martial Webster (\\\"Webster\\\") had voted to place Payton on administrative leave without pay from June 9, 2006, through September 29, 2006. Joseph further advised Payton not to enter the premises of the OPD without authorization after 12:00 p.m. on June 9, 2006, or he would be treated as a trespasser and his September 29, 2006, date of retirement would be considered the date of his resignation.\\nAside from the June 7,2006, letter, Payton's suspension was effectuated without notice or a hearing. Payton was told only that his suspension was authorized because he was employed on an \\\"at will\\\" basis pursuant to Section 3522.\\nPayton filed the underlying complaint with this Court on June 22, 2006, alleging that the OPD and PDAB were liable under title 42, section 1983 of the United States Code (\\\"Section 1983\\\") because Frazer, Webster, and Joseph had suspended him without due process of law. The original complaint further alleged that Frazer, Webster, and Joseph were liable in their individual and official capacities under Section 1983 for placing him on administrative leave in retaliation against Payton for filing his defamation suit in the Superior Court, in violation of his due process rights.\\nOn July 28, 2006, before any answer was filed, Joseph and the PDAB moved to dismiss the initial complaint. They contended that the this Court lacked subject matter jurisdiction because the Defendants were not amenable to suit under Section 1983.\\nPayton, however, amended his complaint on August 2, 2006. The amended complaint (the \\\"Complaint\\\") alleges that Joseph, Frazer, and Webster are liable under Section 1983 in their individual capacities for placing him on administrative leave without pay. The Complaint contends that Joseph, Frazer, and Webster acted under the color of law, and their conduct constituted:\\nwillful wrongdoing or gross negligence intended to deprive [Payton] of property interests or entitlements to continued employ ment between June 9, 2006, and September 29, 2006, wages, health insurance, and other job related benefits protected under the 14th Amendment....\\nIt further alleges that the conduct of Joseph, Frazer, and Webster was the direct and proximate cause of Payton's injuries. Finally, Payton claims that the OPD and the PDAB are vicariously liable for the actions of Joseph, Frazer, and Webster pursuant to Section 3414 of the Virgin Islands Tort Claim Act, V.I. CODE Ann. tit. 33, \\u00a7 3408-3414.\\nOn August 22, 2006, Joseph and the PDAB filed this motion to dismiss the Complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6). Frazer later joined in the motion. The Moving Defendants contend that the Complaint fails to cure the jurisdictional defect in the initial complaint. Accordingly, they argue that the action should be dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted.\\nII. STANDARDS FOR MOTIONS TO DISMISS\\nA. Facial Attacks Under Rule 12(b)(1)\\nThe Moving Defendants argue that the facts alleged in the Complaint do not constitute a violation of Section 1983. Additionally, they have moved to dismiss the Complaint before filing an answer. In considering the Moving Defendants' facial challenge to subject matter jurisdiction under Rule 12(b)(1), all material allegations in the Complaint are taken as true. See Mortensen v. First Federal Savings and Loan Ass'n, 549 F.2d 884, 891-92 (3d Cir. 1977) (explaining that facial challenges contest the sufficiency of the pleadings, whereas factual challenges, which \\\"cannot occur until plaintiffs allegations have been controverted,\\\" attack the truth of the facts alleged therein); Taliaferro v. Darby Township Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006) (summarizing the standard for facial attacks under Rule 12(b)(1) as \\\"whether the allegations on the face of the complaint, taken as true, allege facts sufficient to invoke the jurisdiction of the district court\\\"). Indeed, the \\\"standard is the same when considering a facial attack under Rule 12(b)(1) or a motion to dismiss for failure to state a claim under Rule 12(b)(6).\\\" Petrusha v. Gannon Univ., 462 F.3d 294, 299 (3d Cir. 2006).\\nUnder title 28, section 1367 of the United States Code (\\\"Section 1367\\\"), if a district court has subject matter jurisdiction over a party's federal claim, it may also have supplemental jurisdiction over his territorial law claims. Section 1367 provides that:\\nthe district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.\\n28 U.S.C. \\u00a7 1367(a) (1990). However, district courts may decline to exercise supplemental jurisdiction over state law claims if \\\"the district court has dismissed all claims over which it has original jurisdiction . .\\\" Id. at \\u00a7 1367(c)(3).\\nB. Rule 12(b)(6)\\nIn considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, all material allegations in the complaint are taken as true, and the court must construe all facts in a light most favorable to the non-moving party. Christopher v. Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002). Additionally, all reasonable inferences are drawn in favor of the non-moving party. Alston v. Parker, 363 F.3d 229, 233 (3d Cir. 2004). The complaint should not be dismissed unless the \\\"plaintiff can prove no set of facts in support of his claim which would entitle him to relief.\\\" Wheeler v. Hampton Twp., 399 F.3d 238, 242 (3d Cir. 2005) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)).\\nIII. ANALYSIS\\nA. Subject Matter Jurisdiction\\nThe Moving Defendants argue that the Complaint does not allege sufficient facts to invoke this Court's subject matter jurisdiction. The Complaint asserts that subject matter jurisdiction is proper under title 28, section 1343(a)(3) of the United States Code (\\\"Section 1343\\\"), and that the Court may exercise supplemental jurisdiction over its territorial law claims pursuant to Section 1367.\\nUnder Section 1343(a)(3), district courts only have subject matter jurisdiction over claims\\nbased on alleged violations of provisions of the federal Constitution that secure rights against those who act under color of state law and over claims arising from federal statutes providing for the protection of \\\"equal rights.\\\"\\nEddy v. V.I. Water and Power Auth., 961 F. Supp. 113, 115, 36 V.I. 200 (D.V.I. 1997) (\\\"Eddy IF). Indeed, \\\"section 1343(a)(3) 'is the jurisdictional counterpart' of the substantive law contained in section 1983.\\\" Id. (quoting Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 613, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979)).\\nHere, Payton alleges that the Defendants infringed upon his constitutional due process rights, in violation of Section 1983. Accordingly, if the Complaint has properly stated a Section 1983 claim against Joseph, Frazer, and Webster, this Court will have subject matter jurisdiction pursuant to Section 1343(a)(3).\\n1. Persons Amenable to Suit Under 42 U.S.C. \\u00a7 1983\\nThe Complaint charges Joseph, Frazer, and Webster \\u2014 in their individual capacities \\u2014 with violating Section 1983. Payton does not allege a Section 1983 violation against Joseph, Frazer, or Webster in their official capacities, nor against OPD or PDAB.\\nBy its own terms, Section 1983 may only be violated by \\\"persons.\\\" Virgin Islands government employees acting in their official capacities are not considered \\\"persons\\\" under Section 1983. Brow v. Farrelly, 994 F.2d 1027, 1037, 28 V.I. 345 (3d Cir. 1993); Eddy v. V.I. Water and Power Auth., 955 F. Supp. 468, 476, 35 V.I. 441 (D.V.I. 1997) (\\\"Eddy i\\\"); see also Ngiraingas v. Sanchez, 495 U.S. 182, 110 S. Ct. 1737, 109 L. Ed. 2d 163 (1990) (holding that neither the Territory of Guam nor an officer of the Territory acting in his official capacity were \\\"persons\\\" under Section 1983). Accordingly, \\\"[a] suit for money damages under [Section] 1983 may only be maintained against officers and employees of the Territory of the Virgin Islands individually, in their individual capacities and not in their official capacities . .\\\" Eddy I, 955 F. Supp. at 476.\\nAs employees of the Territory of the Virgin Islands being sued in their individual capacities, Joseph, Frazer, and Webster amenable [sic] to suit under Section 1983. Id Accordingly, the allegations in the Complaint are sufficient to show that this Court could have subject matter jurisdiction over Payton's Section 1983 claim against Joseph, Frazer, and Webter [sic], in their individual capacities, pursuant to Section 1343(a)(3).\\nB. Elements Required to State a Section 1983 Claim\\nThe Moving Defendants also contend that the Complaint has failed to state a claim upon which relief may be granted under Section 1983.\\nIn order to state a Section 1983 claim against a territorial employee in his individual capacity, a plaintiff must show: (1) that the defendant's conduct violated his federal constitutional or statutory rights, causing the injury complained of; and (2) that the defendant acted under color of law. Anderson v. Davila, 125 F.3d 148, 159, 37 V.I. 496 (3d Cir. 1997).\\n1. Deprivation of Rights\\nPayton claims that Joseph, Frazer, and Webster violated his due process rights under the Fourteenth Amendment. The Court must therefore determine \\\"whether the asserted individual interest . is encompassed within the Fourteenth Amendment's protection of life, liberty, or property.\\\" Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). Here, Payton asserts a property interest in his continued paid employment with the OPD from June 9, 2006, through September 29, 2006.\\nIn order to assert a constitutionally protected property interest in a job, a plaintiff must have a legitimate entitlement to continued employment in that job. Id. (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)). As the Supreme Court has explained, \\\"a person clearly must have more than an abstract need or desire for [continued employment]. He must have more than a unilateral expectation of it.\\\" Roth, 408 U.S. at 577.\\nIt is well-settled that \\\"an at-will employee does not have a legitimate entitlement to continued employment because she serves solely at the pleasure of her employer.\\\" Hill v. Borough of Kutztown, 455 F.3d 225, 235 (3d Cir. 2006) (quoting Elmore, 399 F.3d at 282); see also Chabal v. Reagan, 841 F.2d 1216, 1223 (3d Cir. 1988). A finding that a plaintiff is an at-will employee establishes that the employee did not have a property interest in the job sufficient to implicate due process concerns. Elmore, 399 F.3d at 282 (quoting Bishop v. Wood, 426 U.S. 341, 346 n. 8, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976)); see also Robertson v. Fiore, 62 F.3d 596, 601 (3d Cir. 1995) (per curiam). Whether a territorial government employee is employed on an at-will basis is determined by Virgin Islands law. See Kelly v. Borough of Sayreville, 107 F.3d 1073, 1077 (3d Cir. 1997) (\\\"State law creates the property rights protected by the Fourteenth Amendment.\\\").\\nPursuant to Section 3522, public defenders \\\"shall be appointed by and serve at the will of the [PDAB].\\\" Despite this Virgin Islands statutory designation of public defenders as at-will employees, Payton alleges that the OPD Office Manual mandates that he could only be suspended after written notice of the charges against him and a recommendation by the Chief Public Defender. However, Section 2 of the OPD Office Manual states that all OPD employees \\\"serve at the pleasure of the Chief [Public Defender] and/or the [PDAB].\\\" Nowhere does the Manual state that employees shall be suspended or terminated only for cause. The Manual thus reinforces the status of Virgin Islands public defenders as employees at-will, and the fact that it also imposes a procedure for disciplinary action does not detract from this at-will status.\\nMoreover, even if the procedure imposed by the OPD Office Manual were found to contradict the at-will status of public defenders, an administrative agency cannot override the Virgin Islands statutory designation that the public defenders shall serve at the will of the PDAB unless there is express statutory authority for it to do so. See Elmore, 399 F.3d at 282-83 (holding that public employees in Pennsylvania take their jobs on an at-will basis under state law, despite a Pennsylvania local government Personnel and Policy Handbook stating that town workers could only be fired for cause). Payton has not demonstrated that any Virgin Islands law grants the PDAB or the OPD the authority to alter the at-will status of public defenders at the OPD. Therefore, Payton was employed on an at-will basis, notwithstanding any contraiy provisions in the Territorial Public Defenders Office Manual.\\nBecause Virgin Islands law dictates that Payton was employed at the will of the PDAB, as a matter of law he has no legitimate entitlement to continued employment. See Elmore, 399 F.3d at 282 (holding that a public employee on an at-will basis in Pennsylvania had no legitimate entitlement to continued employment). Payton has failed to assert a property interest sufficient to trigger due process concerns under the Fourteenth Amendment, and has thus failed to state a claim under Section 1983. Accordingly, the Court will dismiss Payton's Section 1983 claims.\\nC. Other Claims\\nBecause Payton's only federal claim is dismissed, it is within the sound discretion of the Court to determine whether or not to exercise supplemental jurisdiction over his remaining claims. Annulli v. Panikkar, 200 F.3d 189, 202 (3d Cir. 1999) (explaining that the decision to exercise supplemental jurisdiction is reviewed for abuse of discretion, \\\"focusing on whether the dismissal of the pendent claims best serves the principles of judicial economy, convenience, fairness, and comity\\\").\\nThe Court declines to exercise supplemental jurisdiction regarding his remaining claims.\\nIV. CONCLUSION\\nBased on the foregoing, Payton has failed to state a claim upon which relief can be granted under Section 1983. Furthermore, the Court declines to exercise supplemental jurisdiction over the remaining claims. Therefore, the Court will grant the motion to dismiss. An appropriate judgment follows.\\nThe Manual defines employee as \\\"everyone employed at the Office of the Territorial Public Defender.\\\"\\nSection 8.1(c) of the Manual states that:\\nAn employee may be suspended without pay when he/she has committed a serious infraction or has continued with the problem, performance, or conduct that the Chief [Public Defender] had a meeting with that employee about.\\nAn attorney may also be suspended or terminated for ill preparation of a case or cases, insubordination, misconduct, ineffective counsel, dishonesty, any violation of the Professional Code of Ethics, failure to appear in court, or arriving in court too late.\\nSection 8.2 of the Manual provides that:\\nBefore an employee of the [OPD] can be subjected to disciplinary action he/she must first receive in writing from the Chief [Public Defender] or his immediate supervisor (if applicable), a statement of the charge against him/her which must be filed not later than one (1) week after the occurrence of the incident. .\\nWhen a situation occurs that appears to warrant disciplinary action, the Chief [Public Defender] shall conduct a thorough review of the situation and gather facts in order to determine what, if any, action should be taken against the employee.\\nThe term the \\\"Defendants\\\" refers to all parties named as defendants in the caption. This includes Martial Webster (\\\"Webster\\\") and OPD, as well as the Moving Defendants.\\nIn their first motion to dismiss, Joseph and the PDAB claimed that neither the Territory of the U.S. Virgin Islands nor its officers acting in their official capacities should be considered \\\"persons\\\" under Section 1983.\\nPayton was able to amend his initial complaint as a matter of right without leave of the Court, since no responsive pleading had been filed at the time Joseph and the PDAB first moved to dismiss. See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (\\\"[I]n the typical case in which a defendant asserts the defense of failure to state a claim by motion, the plaintiff may amend the complaint once 'as a matter of course' without leave of court.\\\" (citations omitted)).\\nSection 3414 of the Virgin Islands Tort Claim Act provides, in relevant part, that:\\nWhenever an officer or employee of the Government of the Virgin Islands has been sued in a civil action authorized by statutes of the United States of America and arising out of his employment with the Government of the Virgin Islands, and when the court which heard the case has ruled that said officer or employee acted reasonably and within the scope of his employment, the Government of the Virgin Islands shall pay the amount of the judgment entered against such officer or employee, or the amount of a settlement approved by the Governor of the Virgin Islands; Provided, however, no such payment shall exceed one hundred thousand dollars ($100,000).\\nV.I. Code Ann. tit. 33, \\u00a7 3414 (1980).\\nSection 1983 provides, in relevant part:\\nEvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen .of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.\\n42 U.S.C. \\u00a7 1983.\\nThe Moving Defendants argue that Payton failed to cure the jurisdictional defect in the initial complaint when he amended it to bring a Section 1983 claim against Joseph, Frazer, and Webster in their individual capacities rather than their official capacities, citing Brow v. Farrelly as support. However, Brow, clearly held, as discussed above, that officers of the Virgin Islands government acting in their official capacities were not amenable to suit under Section 1983. Brow, 994 F.2d at 1037.\\nPayton interprets title 5, section 3520(b) of the Virgin Islands Code (\\\"Section 3520\\\") as precluding the PDAB from hiring or terminating any personnel or staff except upon the recommendation of the Chief Public Defender. Section 3520(b), however, provides merely that the PDAB \\\"shall hire and be authorized to terminate all personnel and staff for the Office of Public Defender upon the recommendation of the Chief Public Defender.\\\" V.L Code Ann. tit. 5, \\u00a7 3520(b) (1992). This provision does not contradict the express terms of Section 3522, which states that public defenders shall \\\"serve at the will of the PDAB,\\\" and it certainly does not grant the OPD the authority to mandate otherwise.\"}"
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+"{\"id\": \"5679446\", \"name\": \"JIMMY DAVIS, Appellant v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee\", \"name_abbreviation\": \"Davis v. Government of the Virgin Islands\", \"decision_date\": \"2007-04-03\", \"docket_number\": \"D.C. Crim. App. No. 2002/085\", \"first_page\": 860, \"last_page\": \"891\", \"citations\": \"48 V.I. 860\", \"volume\": \"48\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T20:11:03.604297+00:00\", \"provenance\": \"CAP\", \"judges\": \"GOMEZ, Chief Judge, District Court of the Virgin Islands; FINCH, Judge of the District Court of the Virgin Islands; and HOLLAR, Judge of the Superior Court of the Virgin Islands, Sitting by Designation.\", \"parties\": \"JIMMY DAVIS, Appellant v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee\", \"head_matter\": \"JIMMY DAVIS, Appellant v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee\\nD.C. Crim. App. No. 2002/085\\nDistrict Court of the Virgin Islands Division of St. Croix\\nApril 3, 2007\\nSTEPHEN Brusch, Esq., St. Croix, U.S.V.I., Attorney for Appellant.\\nGABRIELLA HALEY, AAG, St. Thomas, U.S.V.I., Attorney for Appellee.\\nGOMEZ, Chief Judge, District Court of the Virgin Islands; FINCH, Judge of the District Court of the Virgin Islands; and HOLLAR, Judge of the Superior Court of the Virgin Islands, Sitting by Designation.\", \"word_count\": \"11222\", \"char_count\": \"68913\", \"text\": \"MEMORANDUM OPINION\\n(April 3, 2007)\\nEi this appeal, we are asked to decide:\\n1) Whether the prosecutor violated the appellant's rights to due process guaranteed under the Fifth Amendment to the United States Constitution \\\"by denigrating Appellant's credibility because of Appellant's post -Miranda failure to tell the police that \\\"Goofy\\\" had fired the shots,\\\" requiring reversal of the appellant's conviction.\\n2) Whether the appellant was denied his right to a fair and impartial jury when the court sua sponte excused a potential juror \\\"Simply Because the Juror's Brother Was a Former Police Officer, Who, According to the Court, 'Was in a Lot of Trouble for Writing Bad Checks,' and When the Court Excused Another Juror Without Making a Proper Inquiry of the Juror,\\\" requiring a new trial.\\n3) Whether the doctrine of transferred intent is inapplicable to the offense of assault with intent to commit murder, requiring reversal of the appellant's conviction on Counts I through 4.\\n[See Br. of Appellant at 2].\\nAlthough the prosecutor's cross-examination of the appellant seriously impinged on rights guaranteed under the Fifth and Fourteenth Amendments to the U.S. Constitution, such error was harmless and does not warrant reversal. Having fully considered the appellant's remaining arguments, we further determine they also present no grounds for reversal. Accordingly, for the reasons herein stated, we will affirm the appellant's conviction.\\nI. STATEMENT OF FACTS AND PROCEDURAL POSTURE\\nFacts of Crime\\nOn the afternoon of December 23, 2001, Shan Francis (\\\"Francis\\\") was driving a small truck and approached the intersection of Estate Whim Road and the Queen Maiy Highway (Centerline Road) on St. Croix, preparing to turn eastward onto the Queen Mary Highway. Francis' female companion, Erica Parilla (\\\"Parilla\\\") and their infant daughter, Shanadalis Francis (\\\"Shanadalis\\\"), rode in the cabin with Francis. Sean Petrus (\\\"Petrus\\\") rode alone in the bed of the truck. [Appendix (\\\"App.\\\") Vol. I at 145; 187-88]. The traffic was heavy in the area at the time. [Id. at 194],\\nAs Francis' truck came to a stop and prepared to turn right onto the highway, multiple gunshots were fired from the back of another truck traveling past Francis, from east to west on the Queen Mary Highway. Francis, Petrus, and Parilla, who all previously knew the appellant, identified Davis as the only individual in the back of that truck. [App. Vol I. at 99-100, 190, 146-47, 278]..Francis and Parilla both knew Davis from childhood \\u2014 Parilla knew him from the time she was a young child, as her aunt was married to Davis' father, and Francis attended elementary school with Davis. [Id. at 98-99; Vol. II at 422-23], Davis' brother, Hector Davis, rode in the front cabin, along with the driver, Luis Rivera or \\\"Bugsy\\\".\\nBoth Francis and Petrus said they saw Davis holding a gun; Francis saw Davis take aim and fire those shots. [See App. Vol. I. at 190-92; 144-47]. Although Parilla testified that Davis was the only person in the truckbed, she took cover as the shots rang out and did not see who fired the shots. [Id. at 100-01].\\nMultiple shots were fired, at least three of which struck Francis' vehicle in the windshield and door on the driver's side. [Id. at 103-05]. However, none of the four individuals were struck. The jury was permitted to view the truck at trial.\\nSeveral days after the shooting, Davis was arrested and charged with four counts of assault with intent to kill each of the occupants of Francis' truck: Francis, Parilla, Shanadalis, and Petrus. See 14 V.I.C. \\u00a7 295(1) (assault first degree). He was additionally charged with reckless endangerment and unauthorized possession of a firearm during a crime of violence, in violation of 14 V.I.C. \\u00a7 625 and 2253(a).\\nExculpatory Testimony\\nAt trial, Davis took the stand and admitted he was riding in the back of the truck from which shots were fired, but said another man, whom he knew only as \\\"Goofy,\\\" had fired those shots. [App. Vol. II at 420-21]. He also testified that Francis had engaged in a \\\"shootout\\\" with Goofy and that Davis had simply taken cover. [Id. at 421-22]. Neither the Government nor the defense called to the stand any of the occupants of the truck carrying Davis.\\nDavis admitted knowing Francis and Parilla but testified he had no ill-feelings toward them. [Id. at 432-34]. He also testified he saw only Petrus in the truck with Francis at the time of the shooting and was unaware of Shanadalis or Parilla. [Id. at 423].\\nOn cross-examination, the Government attempted to impeach Davis with the fact that he had never told police about Goofy, despite the fact that the information would tend to exculpate him of the crimes. [Id. at 449-55]. The trial court overruled the defense's objections to such cross-examination and permitted the questioning, as well as several additional references to the appellant's silence by the prosecutor in closing arguments.\\nAssault with Intent to Kill\\nDavis was charged with having assaulted all four victims with the specific intent to kill each one. The jury was instructed on the elements of intent and specific intent. The trial court, at the government's behest and over the appellant's objections, also instructed the jury on the alternative theory of transferred intent for the charge of assault with intent to kill the occupants of Francis' vehicle. [App. Vol. II at 374-79; Supplemental App. at 674-76].\\nThe jury returned guilty verdicts oh all counts. Davis received concurrent sentences for his assault convictions under Counts I through IV. He was sentenced to a total of 15 years on the two. remaining counts. This timely appeal followed.\\nII. DISCUSSION\\nA. Jurisdiction and Standards of Review\\nThis Court has jurisdiction to review final judgments and orders of the Superior Court. See The Omnibus Justice Act of 2005, Act No. 6730, \\u00a7 54 (amending Act No. 6687 (2004) which repealed 4 V.I.G. \\u00a7 33-40, and reinstating appellate jurisdiction in this Court); Revised Organic Act of 1954 \\u00a7 23A; 48 U.S.C. \\u00a7 1613a. We afford plenary review to constitutional claims and generally review the court's factual determinations for clear error. See Quetel v. Gov't of V.I., 178 F. Supp. 2d 482, 484-85 (D.V.I. App. Div. 2001) (citations omitted); Gov't of V.I. v. Albert, 89 F. Supp. 2d 658, 663, 42 V.I. 184 (D.V.I. App. Div. 2001).\\nB. Whether the Prosecutor's References to Appellant's Post-Arrest Silence Violated the Appellant's Right to Due Process.\\n1. References to Appellant's Post-Arrest Silence Was Constitutional Error.\\nThe most concerning and, indeed, most meritorious, issue raised by the appellant surrounds the prosecutor's cross-examination regarding Davis' post-arrest silence. Such cross-examination to impeach' his exculpatory testimony that another person nicknamed \\\"Goofy\\\" was the actual shooter, Davis contends, trampled on his constitutional due process right to a fair trial. In light of the well-established precedent on this issue, we determine that it did.\\nImpeachment through use of a defendant's post-arrest and post-Miranda silence has been held to violate the defendant's constitutional right against self-incrimination and right to due process, for it is the antithesis of the implicit assurances of Miranda v. Arizona and the protections against self-incrimination. See United States v. Hale, 422 U.S. 171, 177-80, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975) (determining such questioning improper in federal prosecutions under Fifth Amendment); Doyle v. Ohio, 426 U.S. 610, 617-19, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976) (holding questioning impermissible in state prosecutions under Fourteenth Amendment); see also, Wainwright v. Greenfield, 474 U.S. 284, 291, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986). The impermissible boundaries of this questioning go to the defendant's failure at the time of arrest to discuss the facts of the crime, after having been given Miranda warnings. See Doyle, 426 U.S. at 619 (noting, however, that post-arrest statements may be used for impeachment if inconsistent with trial testimony); see also, United States v. Agee, 597 F.2d 350, 353-55 (3d Cir. 1979) (no violation where defendant does not invoke his Fifth Amendment privilege to remain silent after arrest and then offers inconsistent testimony at trial).\\nThis type of questioning to refute a defendant's exculpatory version of events, courts have repeatedly held, goes to the very heart of the defendant's defense and is, additionally, inconsistent with the spirit of the Miranda warnings, which caution arrestees of their right to remain silent. See Hale, 422 U.S. at 177; United States v. Harp, 536 F.2d 601, 602-03 (5th Cir. 1976) (noting that such errors rarely harmless); United States v. Cummiskey, 728 F.2d 200, 204 (3d Cir. 1984) (due process violated where references to silence strikes at heart of defense). This is particularly the case when the questioning is prolonged, arid where the focus of the questions directly attack the defendant's exculpatory testimony at trial, suggesting that his prior silence supports an inference of a belated fabrication. See Hale, 422 U.S. at 180; see also, Harp, 536 F.2d at 602-03 (noting repetitive remarks and emphasis on silence); Williams v. Zahradnick, 632 F.2d 353, 361-62 and n. 13 (4th Cir. 1980) (noting that, \\\"One reference is less damaging than four; a lengthy colloquy is more prejudicial than a brief one.\\\") (citations omitted); compare, Phelps v. Duckworth, 772 F.2d 1410 (7th Cir. 1985) (noting single, brief reference coupled with curative instruction militated against reversal).\\nThe rationale for precluding such references to a defendant's post-Miranda silence is the absence of any probative value of post-arrest silence, given the' fact that there could be innumerable reasons for a defendant's silence following an arrest and Miranda warnings, rendering such silence necessarily ambiguous. Doyle, 426 U.S. at 619-20. As the Court enunciated in Doyle,\\nThe warnings mandated by [the Miranda decision], as a prophylactic means of safeguarding Fifth Amendment rights, require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights'. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.\\nId. at 617-18 (citing Hale, 422 U.S Tat 177) (internal citation omitted).\\nThe following factors are \\\"considered in assessing alleged Doyle violations: 1) the use to which the prosecution puts the post-arrest silence; 2) whether the defendant or the prosecution initiated reference to the post-arrest silence, the latter being more egregious; 3) other evidence indicative of defendant's guilt, including whether the evidence against the defendant was overwhelming; 4) the intensity and frequency of the reference; and 5) whether a curative instruction was given. See, e.g., Greer v. Miller, 483 U.S. 756, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987) (noting no Doyle violation where curative instructions given); United States v. Johnson, 302 F.3d 139, 148 (3d Cir. 2002) (no violation where only one question asked and objections sustained); United States v. Massey, 687 F.2d 1348, 1353-54 (10th Cir. 1982); Phelps v. Duckworth, 772 F.2d 1410 (7th Cir. 1985).\\nIn this instance, after taking the stand and offering testimony that there was another man, to whom he referred as \\\"Goofy,\\\" in the bed of the truck with him and who fired the shots, [App. at 421-22, 430-32], Davis was impeached with repetitive and lengthy questioning regarding his failure to report those purportedly exculpatory facts to police both pre- and post-arrest, as reflected in the following colloquy:\\nQ And after hearing all of the evidence that you have heard, you come in here today and you say there were some guy named Goofy in your car in the back with you and he was the one that fired the shots?\\nA Not my car. I was paying them to carry me to buy a water pump.\\nQ But you come in here and you said it was a guy named Goofy in the back of that truck and Goofy who fired the shots. Is that what you are saying . Where is Goofy today?\\nA Me ain't know. I am in jail....\\nQ Is it also your testimony that you were unable to find Goofy in order to help you here in Court today?\\nA Yes.\\nQ You were arrested, sir, were you not approximately a week after this incident, December 23; is that correct?\\nA Afterward.\\nQ After you were arrested in this case, sir, you did not make any statements to the police. Did you concern yourself whether or not Goofy, and not you, fired the shots on December 23?\\nMR. MEADE: Objection, Your Honor.\\nTHE COURT: Overruled.\\nQ (MR. GEOCARIS) Mr. Davis, do you understand the question?\\nA Repeat.\\nQ After you were arrested in this case you never made any statement to the police. Did you concern yourself that it was Goofy, and not you, that fired the shots on December 23?\\nA The police never asked me for no statement.\\nQ You understand my question?\\nA Yes. They say they don't have a warrant for my arrest.\\nQ My question was, did you ever make any statements to the police that it was Goofy, and not you, that fired the shots; yes or no?\\nA No.\\nQ And since the time of your arrest up until the present time, now April, have you ever supplied any information to the police about who Goofy is; where he can be found in relation to what you said happen here; yes or no?\\n[App. Vol. II at 426-27, 449-51]. At that juncture, defense counsel again objected, arguing at sidebar that the line of questioning was impinging on rights protected under the Fifth Amendment. [Id. at 451]. The court having overruled that objection, the prosecutor persisted in the same line of questioning:\\nMR. GEOCARIS: May I have the court reporter read back the last question please.\\nTHE COURT: Court reporter will read back the last question.\\n(Reporter read back the last question.)\\nQ (MR. GEOCARIS) Mr. Davis, answer the question please.\\nA No. I didn't give no statement to the police.\\nQ About Goofy?\\nA About nobody. The police never ask me.\\nQ I understand. .\\n[452]. On redirect, defense counsel elicited testimony from Davis that, after he was arrested he was told of his right to remain silent and understood that to mean that he did not have to talk to police unless an attorney was- present. [App. at 455-56]. He also testified that he has remained imprisoned since his arrest.\\nIn closing argument, however, the Government again drew emphasis from Davis' failure to discuss the facts of the crime with police prior to trial and inferred that this failure evidenced his guilt or, at minimum, a fabricated story:\\nI want to talk a little bit about the defendant's testimony. The defendant said it wasn't him that shot at Mr. Francis' car that day with his baby in the car; with his girlfriend in the cab; it wasn't him. It was Goofy. It was the Goofy defense claims. It was this Goofy guy. Goofy person that did it . It's up to you whether you believe what they say or not. You can take what you know and your ways of the world to decide whether the people who testify before you are telling the truth. Who have a motive in here to lie? Mr. Jimmy Davis does. He have a motive to lie, ves. He does, ladies and gentlemen, because he's brought up on charges. So for the first time we hear Goofy: don't know the person named Goofy. The only person Goofy I know is in Disney World. Goofy did the shooting . Goofy defense doesn't fly.\\n[Id. at 493-94] (emphasis added). The Government again continued with this tact in its rebuttal argument, telling the jury:\\nWhat does [Jimmy Davis] have to lose by inventing some person named Goofy notwithstanding the fact Erica, Shawn and Sean testified it was only Jimmy in the back of the truck. . Jimmy has nothing to lose by inventing a character named Goofy and saying it was Goofy who fired the shots.\\nConsider your own common experiences and common sense when thinking about on cross-examination. I asked Mr. Davis between January and April, now, have you ever supplied the police with any information concerning where Goofy can be found so the police can arrest him? Where Goofy can be located? Have you ever given? No. no. no. Can you believe that? Do you really feel if. God forbid, one of you all were in the same situation and if the truth was really the truth there was a guv named Goofy and somebody else fires the shots, would you not use everything within your power if it was the truth to notify the police to at least give them a statement that would exonerate yourself. No he didn't do it. but it's a fantom. [sicl. Goofy doesn't exist. I hate to use that word again, but more than that let's forget about that character....\\nHe has nothing to lose by inventing a couple of characters putting him in the back of the truck . and have you think maybe there is a guy named Goofy.\\n[App. at 521-523] (emphasis added).\\nThe prosecutor's repetitive questioning directly attacked the defendant's exculpatory story that there was another person who was the shooter in the truck with him. These repetitive and emphatic references expressly invited the jury to draw an adverse inference of guilt and recent fabrication from Davis' post-arrest silence and were constitutionally impermissible under Doyle and its progeny. That questioning, and the continued onslaught in closing and rebuttal arguments, went unchecked and without a cautionary instruction from the court. Moreover, the prosecutor's line of questioning was not done in response to inconsistent testimony by the defendant regarding his post-arrest conduct and, therefore, was not proper impeachment under Doyle. We accordingly find that the prosecutor's references to the appellant's post-arrest silence, both in cross examination and closing arguments, violated the appellant's right to due process. We must now decide whether that error was harmless.\\n2. Harmless Error\\nA Doyle violation warrants reversal only if it was not harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); Marshall, 307 F.3d at 72-73. Under this standard, the reviewing court must satisfy itself that there is no reasonable possibility that the error, viewed in the context of all the evidence presented, contributed to the guilty verdict, undermining confidence in the trial. See Chapman, 386 U.S. at 23; Marshall, 307 F.3d at 73-75 (considering weight of evidence at trial in determining error was harmless); see also, United States v. Hasting, 461 U.S. 499, 510-11, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983) (noting it must be determined whether, \\\"absent the prosecutor's allusion to [the defendant's] silence and demeanor, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty\\\"); United States v. Balter, 91 F.3d 427, 440 (3d Cir. 1996) (noting that \\\"Doyle violations are harmless beyond a reasonable doubt where the evidence against the defendant is 'overwhelming'\\\") (quoting United States v. Dunbar, 767 F.2d 72, 76 (3d Cir. 1985)); cf. Hassine v. Zimmerman, 160 F.3d 941, 958 (3d Cir. 1998) (noting that harmless error would not be found, \\\"notwithstanding the weight of the evidence presented by the prosecution . if, apart from the violation, the phase of the trial most directly impacted, namely, [the defendant's] testimony, presented a strong counter to the state's evidence\\\").\\nIn the case sub judice, there was no dispute several shots were fired into the small truck carrying the four victims, and no dispute that Davis was in the back of the truck from which those shots emanated. The only dispute raised by the appellant was whether he was the person who fired those shots. Three of the victims testified to seeing only Davis in the back of the truck. Both Francis and Petrus also testified they saw Davis pointing the gun in their direction. Francis testified he subsequently saw Davis pull the trigger. Significantly, the victims all knew Davis prior to the incident; two of them knew him from childhood. There was, therefore, no issue of mistaken identity, and the reliability of the eyewitnesses' identification was not called into doubt.\\nThis eyewitness identification testimony, by victims who had prior knowledge of Davis is, we think, significant evidence from which the jury could have found guilt. See Balter, 91 F.3d at 440 (finding that a-Doyle error was not harmless beyond a reasonable doubt where sufficient evidence in support of the guilty verdict was presented at trial); United v. Dunbar, 767 F.2d 72, 76 (3d Cir. 1985); Lieberman v. Washington, 128 F.3d 1085, 1096 (7th Cir. 1997) (noting evidence of guilt was \\\"so persuasive\\\" that it was almost impossible to conceive how the Doyle violation could have contributed significantly to the jury's determination of guilt\\\"). In the face of this unimpeached eyewitness evidence, we conclude the Doyle violation could not have affected the outcome of the trial. See, e.g., Hassine, 160 F.3d at 958 (finding harmless error, in habeas context, where error occurred in context of testimony that was, on its own, not likely to be viewed as credible and where defendant's story did not present a strong, counter to prosecution's evidence).\\nC. Discharge of Jury Members\\nThe appellant additionally raises two challenges to the selection of his jury.\\nWe review the trial court's actions during the voir dire process, as well as its response to allegations of jury misconduct, for abuse of discretion. See United States v. Console, 13 F.3d 641, 666 (3d Cir. 1993); United States v. Vega, 285 F.3d 256, 265-66 (3d Cir. 2002); United States v. Howell, 231 F.3d 615, 627 (9th Cir. 2000); see also, Mu'Min v. Virginia, 500 U.S. 415, 427, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991) (noting broad discretion of court in inquiry to ferret out jury bias). In that regard, we note that voir dire is designed to assist in determining the ability of a venire person to fairly and objectively participate in the process as a juror, and that determination includes an assessment of \\\"demeanor and credibility that are peculiarly within a trial judge's province.\\\" Wainwright v. Witt, 469 U.S. 412, 428, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). A venire person's failure to answer, or to accurately answer, a question on voir dire also may properly factor into the trial court's assessment of credibility and may suggest bias. See, e.g, McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 558, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984) (Brennan, J. and Marshall, J., concurring) (\\\"Because the bias of a juror will rarely be admitted by the juror himself . it necessarily must be inferred from surrounding facts and circumstances . . Whether the juror answered a particular question on voir dire honestly or dishonestly, or whether an inaccurate answer was inadvertent or intentional, are simply factors to be considered\\\" in determining bias).\\nThe trial court, in conducting voir dire, \\\"must rely largely on [its] immediate perceptions, and its voir dire determinations are entitled to deference on direct review.\\\" Wainwright, 469 U.S. at 428 (noting that a trial court is not required to enter express findings prior to excluding juror); see also United States v. Salamone, 800 F.2d 1216, 1223-24 (3d Cir. 1986) (discretion limited only by demand of fairness).\\nWith these precepts in mind, we turn to the appellant's argument that the court's exclusion of a venire member and a juror deprived him of a fair trial.\\n1. Discharge of venire member\\nAppellant first contends the trial court erred in sua sponte excusing a member of the venire panel merely because her brother was a former police officer who had found himself in problems with the law.\\nAs it neared completion of the voir dire process, the Court called venire member No. 24 to the bench and questioned her about her brother, who was a former police officer. [App. at 81-82]. During such questioning, the venire member denied any knowledge of her brother's legal troubles. Thereafter, the court struck the venire member over the appellant's objection. [App. at 84].\\nThe record does not bear out the appellant's assertion that No. 24, identified as Ms. Roberts in the record, was excluded merely because her brother was a former police officer. Indeed, as the appellant acknowledges, several venire members had similar relationships and were not similarly excluded. [App. 66-82]. Rather, from the record, it is apparent the court was concerned with Ms. Roberts' failure to respond to relevant questions on voir dire, her failure, upon further questioning, to disclose her brother's legal troubles, and her denial of any knowledge of those circumstances. Indeed, the court, without objection from the appellant, also excused another panel member for failing to give a candid response regarding her relationship to a police officer. [See Supplemental App. at 631-32].\\nObviously, the record before us cannot paint a picture [of] Ms. Roberts' demeanor as the trial court conducted its questioning, or other factors bearing on the court's credibility determination. Accordingly, we will defer to the trial court's determination in that regard. See United States v. Ferri, 778 F.2d 985, 994 (3d Cir. 1985); McDonough, 464 U.S. at 558.\\n2. Discharge of Juror No. 2\\nAppellant next argues the court erred in striking Juror No. 2, identified on the record as Mrs. Sarauw, for sleeping. The defense objected at trial.\\nWe note initially that the juror was not stricken merely for sleeping, as the appellant asserts. At trial, the government moved to strike Juror No. 2, after she was seen at the end of the day having a conversation with the appellant's father. The government further brought to the court's attention the fact that the juror had previously disclosed that she knew the appellant's father and that they resided in the same area, compounding its concerns regarding their interaction. The trial court also raised a concern that it had observed the juror sleeping throughout a substantial portion of the final jury instructions. The court then further inquired of that juror, who contended there was only a brief exchange when the appellant's father offered her a ride home.\\nDuring that inquiry, the juror singled out the prosecutor as the person who walked by as she spoke with the appellant's father and asserted that she had expressly delayed answering the' appellant's father and had spoken loud enough to ensure the prosecutor heard the substance of their exchange. [App. at 475-76], She further strenuously asserted that she had done nothing wrong and expressed strong sentiments about others suggesting that she had. Additionally, when questioned about how she was feeling during the time the court observed her prolonged slumber, the juror also revealed that she had been feeling ill with a flu and had taken medication. [App. at 475-76, 478].\\nIn the arguments following the voir dire of Juror No. 2, the prosecutor expressed concerns that the combative demeanor of that juror during the voir dire suggested that she believed the prosecutor had reported her interaction with Appellant's father and that the juror harbored prejudice against the government as a result. [App. at 481]. The court agreed and struck Juror No. 2, noting:\\nI am striking her for two reasons. One, she was seen communicating with a relative of Jimmy Davis. Two, she slept throughout my entire delivery of the first portion of the jury instructions. Now, I can understand why. She was not feeling well and had taken medicine which was making her feel sleepy and actually; third reason, I do agree with the Government that she seemed very defensive and may now harbor a bias against the Government. For those reasons she is stricken.\\n[App. at 482]. Flaving reviewed the lengthy voir dire and the court's findings based on its observation of demeanor and credibility evidence, we determine the court did not abuse its discretion in striking Juror No. 2. See, e.g., United States v. Vega, 285 F.3d 256, 266 (3d Cir. 2002) (discussing presumptive prejudice arising from private communication, contact, or tampering, directly or indirectly, with a juror during a trial); Console, 13 F.3d at 666 (\\\"[T]he trial judge has discretion . to decide how to deal with a situation in which there is an allegation of jury misconduct . [and] [t]his discretion extends to the determination of whether prejudice has been demonstrated.\\\") (citation omitted); United States v. Bradley, 173 F.3d 225, 230-31 (3d Cir. 1999) (noting that a sleeping juror may properly be stricken under Federal Rule of Criminal Procedure 24(c), based on inability to perform their duties); see also United States v. Freitag, 230 F.3d 1019, 1023-24 (7th Cir. 2000).\\nD. Whether the doctrine of transferred intent was improperly applied.\\nUnder the common law, the transferred intent theory may be used to impose like criminal- culpability where an intended act directed at another resulted in inadvertent harm to an unintended victim. See e.g. United States ex rel. Jackson v. Follette, 462 F.2d 1041, 1047 n.10 (2d Cir.), cert. denied, 409 U.S. 1045, 93 S. Ct. 544, 34 L. Ed. 2d 496 (1972); Yates v. Evatt, 500 U.S. 391, 111 S. Ct. 1884, 114 L. Ed. 2d 432 (1991); State v. Fekete, 120 N.M. 290, 901 P.2d 708 (1995) (noting doctrine generally applied in \\\"bad aim\\\" situations and also protects the unintended victim in cases where the criminal statute matches the required specific intent with the specific victim); State v. Wilson, 71 Wash. App. 880, 863 P.2d 116, 121 (1993) (\\\"The doctrine of transferred intent was created to avoid the specific intent requirement and thus hold the defendant accountable for the consequences of his behavior when he injures an unintended victim.\\\"), rev'd in part, 125 Wash. 2d 212, 883 P.2d 320 (1994). That doctrine was found necessary to avoid the absurd result of absolving from criminal culpability crimes for which it would otherwise be impossible to establish specific intent to harm the unintended victim.\\nAppellant contends the doctrine of transferred intent cannot be applied to the crime of assault with the intent to murder, because conviction for that crime requires that the assault must be committed upon the intended murder victim. Thus, Davis argues that in the absence of evidence he expressly shot at or intended to murder Petrus, Parilla or Shanadalis, his conviction may not lie.\\nDavis was convicted of assault with intent to commit murder as to each victim, under title 14, section 295(1). The V.I. Code defines \\\"assault\\\" as any \\\"attempt^ to commit a battery; or . a threatening gesture showing in itself an immediate intention coupled with an ability to commit a battery.\\\" 14 V.I.C. \\u00a7 291. Accordingly, conviction for assault in the first degree, under section 295(1), requires proof that the defendant: willfully attempted or threatened to inflict bodily harm upon another, while having the present ability to inflict such an injury; that the attempt or threat to inflict injury was accompanied by an intentional display of force which gave the person reason to fear immediate bodily harm, and; that the defendant did so with the specific intent to kill the victim. See Rivera v. Gov't of V.I., 42 V.I. 203, 210, *4 (D.V.I. App. Div. 2000) (noting that \\\"intent to commit murder\\\" has been construed to mean that \\\"the defendant acted for the specific purpose of unlawfully killing\\\").\\nThe element of intent presents a question of fact. See Drew v. Drew, 971 F. Supp. 948, 951, 37 V.I. 61 (D.V.I. App. Div. 1997) (citing Gov't of the V.I. v. Frett, 14 V.I. 315, 325 (Terr. Ct. 1978)); see also Rosa v. Gov't of the V.I., D.C. Crim. App. No. 2001/068, 2006 U.S. Dist. LEXIS 76255, at 7 (D.V.I. App. Div. Sept. 22, 2006). As we have repeatedly explained, and as is by now hornbook law, the state of mind of the actor often cannot be shown through direct evidence and must, instead, be discerned from the facts and circumstances of the defendant's conduct. See Rosa, supra, 2006 U.S. Dist. LEXIS 76255, at 7 (citing Gov't of V.I. v. Roldan, 612 F.2d 775, 16 V.I. 683 (3d Cir. 1979), cert. denied, 446 U.S. 920, 100 S. Ct. 1857, 64 L. Ed. 2d 275 (1980); Gov't of V.I. v. Lanclos, 477 F.2d 603, 9 V.I. 579 (3d Cir. 1973); Gov't of V.I. v. Lake, 362 F.2d 770, 776 (3d Cir. 1966)). Therefore, although the actor's intent cannot be inferred from the mere fact of the assault, it is well-settled that the nature or character of an assault, and the use of a deadly weapon or other manner reasonably likely to result in death are factors that may support a jury inference of intent. See id.; see also Lake, 362 F.2d at 776 (noting that \\\"every sane man is presumed to intend all the natural and probable consequences flowing from his deliberate acts\\\") (citing Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896)).\\nHere, it was shown that Davis fired multiple shots at the small truck in which all four victims rode. At least three of those shots struck that truck, one of which lodged in the windshield. Given the use of a deadly weapon and the manner of the assault, which could have reason ably resulted in the death of all four occupants, the element of intent to kill as to each of the occupants was sufficiently established.\\nMoreover, the jury was instructed on the elements of the crime and that it was required to find that Davis acted with specific intent as to each victim:\\nBefore the defendant maybe [sic] found guilty of a crime the Government must prove beyond a reasonable doubt that the defendant committed the act which the law declares to be a crime and that the defendant intentionally committed the acts . An act is intentionally done if done deliberately, purposefully, and consciously, rather the product of a mistake or accident.\\nNow, intent maybe proved by circumstantial evidence. Indeed, it can rarely be established by any other means. We simply cannot look into the head or the mind of another person. It is physically impossible to do that. So while witnesses may see and hear and so be able to give direct evidence of what a defendant does or fails, to do, they cannot give an account of the state of mind with which the acts were done or omitted. But what a defendant does or fails to do may indicate intent or lack of intent to commit the partic\\u00falar offense charged.\\nIn deciding the issue of what a person knew or what a person intended at a particular time, you may consider any statement made or acts done by that person and all other facts and circumstances received in evidence which may help you to determine that person's knowledge or intent.\\nYou may infer, but you are certainly not required to infer, that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted .\\nThe crimes charged in this case are serious crimes which require proof of specific intent before the defendant can be convicted. Specific intent as the term implies means more th\\u00e1n the general intent to commit the act. To establish specific intent, the Government must prove that the defendant knowingly did an act which the law forbids, purposely intending to violate the law. Such intent may be determined from all of the facts .and circumstances surrounding the case.\\n[App. at 530-32], The court then instructed the jury that, as to each victim, it was required to find that Davis assaulted the victims with the specific intent to murder each and, additionally, that it could consider culpability under the lesser-included offense only if such specific intent was not proven. [App. at 534-36] (separately outlining elements of the crime as to each victim). The court further instructed:\\nIf you find that the defendant assaulted Shawn Francis with the intent to murder him and by mistake or accident assaulted Sean Petrus, Erica Parilla [and] Shanadalis Francis, the element of intent is satisfied even though the defendant did not assault, with the intent to murder Sean Petrus, Erica Parrilla and Shanadalis Francis. The law transfers the intent from the original victim to any unintended victims.\\n[App. at 532].\\nIn light of the trial evidence establishing the appellant's direct intent as to each victim, we need not resolve the broader issue whether the transferred intent doctrine is applicable to the charged crimes or where neither the intended nor unintended victim is harmed. Even assuming the trial court's instruction on that theory constituted error, however, such error would be harmless in light of the evidence pointing to a direct intent as to each victim, as outlined above. See e.g., Al Qaadir v. Gallegos, 56 F.3d 70 (Table), 1995 U.S. App. LEXIS 13607 (9th Cir. June 2, 1995) (declining to reach issue of whether transferred intent instruction violated due process and finding that if erroneous, it was nonetheless harmless, where defendant's act of firing multiple shots into a truck in which his intended victim was riding was sufficient to support finding of intent to kill all the victims, even without resorting to transferred intent doctrine); Affinito v. Hendricks, 366 F.3d 252, 262 (3d Cir. 2004) (noting that, \\\"Overwhelming evidence that a defendant acted with intent may also render an erroneous jury instruction harmless.\\\") (citing Kontakis v. Beyer, 19 F.3d 110, 118 (3d Cir. 1994)); Czahara, 203 Cal. App. 3d 1468, 250 Cal. Rptr. 836 (holding resort to transferred intent doctrine was unnecessary where the conduct of defendant established intent to kill all individuals); Ford, 625 A.2d at 994-95 (holding convictions sustainable based on specific intent as to multiple individuals, although transferred intent inapplicable where crime is complete even before instrument of assault reaches its intended target); State v. Brady, 745 So.2d 954, 957-58 (Fla. 1999) (noting that action of intentionally firing weapon in close proximity to two individuals established intent element, though only one was the intended target, and transferred intent instruction was unnecessary; jury did not rely on transferred intent doctrine where it convicted defendant of lesser-included offense, for which no such instruction was given); Miles v. State, 88 Md. App. 248, 594 A.2d 634, 639 (holding that transferred intent does not apply when there is no \\\"unintended victim\\\"), cert. denied, 325 Md. 95, 599 A.2d 447 (1991). We will accordingly affirm.\\nIII. CONCLUSION\\nIn light of the foregoing, we will affirm the appellant's conviction. An appropriate order follows.\\nOur jurisdiction in this regard was previously provided under 4 V.I.C. \\u00a7 33.\\nThe complete Revised Organic Act of 1954 is found at 48 U.S.C. \\u00a7 1541-1645 (1995 & Supp. 2000), reprinted in V.I. Code Ann. 73-177, Historical Documents, Organic Acts, and U.S. Constitution (1995 & Supp. 2003) (preceding V.I. Code Ann. tit. !)\\u2022\\nMiranda v. Arizona, 384 U.S. 436, 467-473, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).\\nDoyle is generally applicable only where Miranda warnings are given, and it is the Government's burden to establish that no Miranda warnings were given and that Doyle protections are, therefore, applicable. See United States v. Cummiskey, 728 F.2d 200, 205-206 (3d Cir. 1984) (remanding for determination); see also, United States v. Johnson, 302 F.3d 139, 146 (3d Cir. 2002) (noting Hale-Doyle protections applicable only to post-Miranda silence).\\nThe Government has not raised that issue in its brief, nor was evidence offered at trial to refute the defendant's testimony that he was, in fact, given Miranda warnings at the time of his arrest. Therefore, there being no dispute that Davis was given Miranda warnings and that the prosecutor's references were to his post-Miranda conduct, we apply the principles stated in Doyle. Id.\\nContrary to the government's assertions, the standard instruction regarding burden of proof and presumption of innocence would not suffice to cure the error, because it did not specifically direct the jury not to improperly consider the appellant's silence as evidence of guilt or to infer from the prior silence that the exculpatory testimony was a fabrication.\\nBut see U.S. v. Wiley, 29 F.3d 345, *349 (C.A.8 (Minn.), 1994) noting that harmless error analysis based on consideration of the following factors: [1] whether the government made repeated Doyle violations, [2] whether any curative effort was made by the trial court, [3] whether the defendant's exculpatory evidence is 'transparently frivolous,' and [4] whether the other evidence of the defendant's guilt is 'otherwise overwhelming.') (citations omitted; United States v. Dixon, 593 F.2d 626 (5th Cir. 1979) (weighing various non-exclusive actors, including the use to which the Doyle reference was put; curative instructions, frequency of references; what party originated the reference, and weight of evidence, in determining harmless error); Williams v. Zahradnick, 632 F.2d 353, 361-65 (4th Cir. 1980) (weighing factors, including plausibility of the defendant's exculpatory testimony, in determining harmless error); Harp, 536 F.2d 601 (applying apparent per se harmful error test where Doyle reference attacks defendant's exculpatory story).\\nCompare, Com. v. Hunter, 434 Pa. Super. 583, 644 A.2d 763, 763-64 (1994) (rejecting argument that intent to injure under aggravated assault not shown where actor fired shots into home, from car and holding that intent shown as to each individual from act of discharging shots into occupied home where there exists great probability that any occupants would be harmed) (citing Commonwealth v. Eaddy, 419 Pa. Super. 48, 614 A.2d 1203 (1992) (finding intent to do serious bodily harm, under assault statute, where defendant, while targeting a specific individual, fired shots through window of home and struck another person inside the home)); California v. Czahara, 250 Cal. Rptr. 836, 203 Cal. App. 3d 1468 (1988) (where the conduct of defendant is such that it creates a \\\"killing zone\\\" or zone of harm, jury may reasonably infer direct intent to kill all individuals within that zone); Ford v. Maryland, 330 Md. 682, 625 A.2d 984, 994-95 (1992) (holding that conviction for throwing large rocks unto highway as vehicles passed may be had for multiple specific intent crimes from one act when it can be inferred that defendant intended to so harm each victim; intent shown by such widespread conduct that was reasonable likely to cause injury to both drivers and' passengers); see also Ruffin v. United States, 642 A.2d 1288 (D.C. Cir. 1994) (upholding conviction for assault with intent to kill, holding that act of spraying a car with a hail of bullets permitted jury finding that the defendant had the intent to kill everyone in the path of bullets and all occupants); Com. v. Rosado, 454 Pa. Super. 17, 684 A.2d 605, 610 (1996) (defendant's act of firing shots into upper windows of building established intent to injure occupants, notwithstanding his assertions that he was unaware the victims used the second floor of their grocery business as their residence); State v. Brady, 745 So. 2d 954, 957-58 (Fla. 1999) (noting that act of firing deadly weapon toward several individuals supports finding of intent as to either ope); Ruffin v. United States, 642 A.2d 1288 (D.C. Cir. 1994) (upholding conviction for assault with intent to kill, holding that act of spraying a car with a hail of bullets permitted jury finding that the defendant had the intent to kill everyone in the path of bullets and all occupants).\"}"
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+"{\"id\": \"5749260\", \"name\": \"NICKEY DAVIS, Plaintiff v. HOVENSA, LLC AND UHP PROJECTS, INC., Defendants\", \"name_abbreviation\": \"Davis v. Hovensa, LLC\", \"decision_date\": \"2015-10-28\", \"docket_number\": \"SX-02-CV-333\", \"first_page\": 475, \"last_page\": \"498\", \"citations\": \"63 V.I. 475\", \"volume\": \"63\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Superior Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T19:34:26.926101+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"NICKEY DAVIS, Plaintiff v. HOVENSA, LLC AND UHP PROJECTS, INC., Defendants\", \"head_matter\": \"NICKEY DAVIS, Plaintiff v. HOVENSA, LLC AND UHP PROJECTS, INC., Defendants\\nSX-02-CV-333\\nSuperior Court of the Virgin Islands Division of St. Croix\\nOctober 28, 2015\\nLee J. Rohn, Esq., Lee J. Rohn and Associates, LLC, Christiansted, USYI, For Nickey Davis, Plaintiff.\\nKevin L. Keller, Esq., Willcox & Savage, P.C., Norfolk, VA, For UHP Projects, Inc., Defendant.\\nSunshine S. Benoit, Esq., Barnes & Benoit, LLP, Christiansted, USVI, For Hovensa, LLC, Defendant.\", \"word_count\": \"8271\", \"char_count\": \"51559\", \"text\": \"WILLOCKS, Administrative Judge\\nMEMORANDUM OPINION\\n(October 28, 2015)\\nTHIS MATTER comes before the Court on Defendant UHP Projects, Inc.'s (hereinafter, \\\"UHP\\\") Motion for Summary Judgment (hereinafter, \\\"Summ. J. Mot.\\\") and Statement of Undisputed Facts (hereinafter, \\\"Defendant UHP's SOF\\\"), filed on October 13, 2011. On December 28, 2011, Plaintiff filed an Opposition (hereinafter, \\\"Summ. J. Opp'n\\\") and a Response to Defendant UHP's Statement of Undisputed Facts/Counter-Statement of Material Facts (hereinafter, \\\"Plaintiff's SOF\\\"). On February 9, 2012, Defendant UHP filed a Reply and a Reply to Plaintiff's Counter-Statement of Material Facts. Subsequently, in June 2013, Plaintiff filed a Supplemental Opposition and a Supplemental Counter-Statement of Material Facts. Defendant UHP filed a Reply to Plaintiff's Supplemental Opposition and a Response to Plaintiff's Supplemental Counter-Statement of Material Facts. Additionally, in August 2015, the Court entered an Order sua sponte and granted the parties leave to file a supplemental brief if they want to, in light of Government of the Virgin Islands v. Connor, 60 V.I. 597 (V.I. 2014) and Banks v. International Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011). In response, Plaintiff filed a supplemental brief on September 1, 2015. Defendant UHP did not file a supplemental brief.\\nBACKGROUND\\nOn January 22, 2001, Plaintiff was an employee of Jacobs Industrial Maintenance Company, L.L.C. (hereinafter, \\\"Jacobs\\\"), working at Defendant Hovensa's refinery in St. Croix, U.S.V.I. (Compl. \\u00b6 5; Answer \\u00b6 13; Plaintiff's SOF \\u00b6 1.) Defendant Hovensa and Jacobs had previously entered into a general service agreement, dated September 6, 1999, whereby Jacobs agreed to provide the services described within the agreement to Defendant Hovensa (hereinafter, \\\"General Service Agreement\\\"). (General Service Agreement.) The General Service Agreement identified the duties and responsibilities of each party. (Id.) More specifically, the General Service Agreement provided that, inter alia, Jacobs was required to: (1) provide project training, safety programs, and quality assurance required to control the assigned services and employees; (2) administer a safety test designed to ensure that employees have a basic knowledge to perform their work safely; and (3) administer a training program for employees to improve their job related skills and knowledge. (Id.)\\nAs part of Plaintiff's duty at Defendant Hovensa's refinery, he was required to operate an ultra high pressure water blasting equipment (hereinafter, \\\"ultra high pressure water blaster\\\"). (Summ. J. Opp'n at 2.) The ultra high pressure water blaster was owned by Defendant UHP and leased to Defendant Hovensa pursuant to a term service agreement (hereinafter, \\\"Term Service Agreement\\\"), a lease agreement (hereinafter, \\\"Lease Agreement\\\") and an addendum to the Term Service Agreement (hereinafter, \\\"Addendum\\\"). (Compl. \\u00b6 7; Term Service Agreement; Lease Agreement; Addendum.) The Term Service Agreement, the Lease Agreement and the Addendum identified the duties and responsibilities of each party. (Term Service Agreement; Lease Agreement; Addendum.) Schedule A and Schedule C to the Term Service Agreement required, inter alia, Defendant UHP to provide a safety orientation and monitor personnel training and productivity. (Term Service Agreement.) Exhibit 12 to Schedule C to the Term Service Agreement further required that, inter alia: (1) Defendant UHP to ensure that all employees receive Defendant Hovensa's safety orientation before being permitted to work Defendant Hovensa's refinery; (2) Defendant UHP to ensure that his employees hold daily pre-job safety discussion, weekly tool box meetings and monthly safety meetings; (3) Defendant UHP to train all fire watches, safety watch and/or safety standby personnel; and (4) Defendant UHP to maintain records concerning safety and health training for employees working on their project. (Id.) However, under the Lease Agreement'and the Addendum, Defendant Hovensa was required to provide a safety orientation, and that it was exclusively Defendant Hovensa's responsibility to ensure that the employees are adequately trained. (Addendum; Lease Agreement.)\\nPlaintiff claimed that prior to the alleged incident, he had only been hydroblasting for approximately a week to a week-and-a-half. (Davis Dep. 47:19-25, 48:1-5.) Plaintiff further claimed that he never received any training before he started hydroblasting. (Davis Dep. 46:23-25.)\\nOn the day of the alleged incident, Plaintiff was instructed to use the ultra high pressure water blaster to hydroblast the paint from in his assigned area. (Summ. J. Opp'n at 2.) The ultra high pressure water blaster uses up to 40,000 pounds per square inch (PSI) of water and was connected to two guns, the \\\"East Gun\\\" and the \\\"West Gun.\\\" (Plaintiff's SOF \\u00b6 24, \\u00b6 25.) Plaintiff was using the East Gun and his co-worker was using the West Gun. (Plaintiffs SOF \\u00b6 25.) Plaintiff claimed that, all of a sudden, the East Gun got a \\\"kick,\\\" so Plaintiff grabbed onto the railing and in the process, loosened the trigger in his right hand and dropped the East Gun. (Davis Dep. 60:3-6, 20-25.) The point of the East Gun blasted Plaintiff's foot and Plaintiff sustained injuries as a result. (Compl. \\u00b6 14, \\u00b6 15; Davis Dep. 60:6-7.)\\nOn May 20, 2002, Plaintiff filed a lawsuit against Defendant Hovensa and Defendant UHP. (Compl.) Plaintiff's complaint appeared to allege two causes of action against Defendant UHP and Defendant Hovensa \\u2014 a product defect claim and a negligence claim for failure to provide proper training. (Compl.) Plaintiff seeks damages along with costs and fees. (Compl. \\u00b6 15.)\\nSTANDARD OF REVIEW\\nA moving party will prevail on a motion for summary judgment where the record shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Williams v. United Corp., 50 V.I. 191, 194 (V.I. 2008). As to materiality, \\\"only those facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.\\\" Id. at 195 (citations omitted).\\n\\\"[T]o survive summary judgment, the nonmoving party's evidence must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.\\\" Williams, 50 V.I. at 195 (quotation omitted). The nonmoving party then has the burden of \\\"setting] out specific facts showing a genuine issue for trial.\\\" Id. (citation omitted). The Court must view all inferences from the evidence in the light most favorable to the nonmoving party, and take the nonmoving party's conflicting allegations as true if properly supported. Id.; see also Perez v. Ritz-Carlton (Virgin Islands), Inc., 59 V.I. 522, 527; Joseph v. Hess Oil V. I. Corp., 54 V. I. 657, 668 (V.I. 2011).\\nDISCUSSION\\nI. DESIGN DEFECT CLAIM\\nIn moving for summary judgment with regard to Plaintiff's design defect claim, Defendant UHP asserted that expert testimony is required as to any alleged defect to the ultra high pressure water blaster since the equipment is complex and beyond the knowledge and experience of an average person. (Summ. J. Mot. at 3.) To support its proposition, Defendant UHP cited to Belofsky v. General Electric Co., 1 F. Supp. 2d 504, 507-08 (D.V.I. 1998), Jones v. Toyota Motor Sales, USA, Inc. 282 F. Supp. 2d 274, 276-77 (E.D. Pa. 2003), Oddi v. Ford Motor Co., 234 F.3d 136, 159 (3d Cir. 2000), Cipriani v. Sun Pipe Line Co., 393 Pa. Super. 471, 574 A.2d 706, 710 (1990), Lauder v. Teaneck Volunteer Ambulance Co., 368 N.J. Super. 320, 845 A.2d 1271, 1277 (2004), and Scanlon v. General Motors Corp., 65 N.J. 582, 326 A.2d 673, 677 (1974). (Id.) Defendant UHP pointed out that Plaintiffs expert, Dr. Andrew Rentschler, \\\"expressly withdrew his opinion that the equipment malfunctioned or that an equipment malfunction caused Plaintiff's alleged injuries.\\\" (Id.) Thus, Defendant UHP argued, since Plaintiff will not be able to offer any expert testimony as to the alleged defect to the ultra high pressure water blaster, or that said defect caused Plaintiff's alleged injuries, the Court should grant Defendant UHP's Motion for Summary Judgment with regard to Plaintiff's design defect claim. (Id. at 3-4.)\\nIn his Opposition, Plaintiff claimed that Defendant UHP improperly argued that design defect claims must be supported by expert testimony. (Summ. J. Opp'n at 5.) Plaintiff noted that the Belofsky court did not rule that expert evidence was required to prevent a ruling on summary judgment, but that there must to be some evidence. (Id. at 5-6.) Moreover, Plaintiff claimed that Defendant UHP mischaracterized Dr. Rentschler's testimony. (Id. at 6.) For example, Plaintiff pointed out that Dr. Rentschler \\\"consistently stated that he had no specific opinion if the ultra high power water blaster did surge, but that a surge is 'certainly a plausible explanation as to why, what happened or how it could have happened.' \\\" (Id.) Plaintiff also pointed out that Dr. Rentschler testified that \\\"even a small change in the force exerted by the ultra high pressure water blaster, such as a couple of pounds of force, 'would have been sufficient to actually cause [Davis] to have to step down off the step he was standing on.' \\\" (Id.) Plaintiff further argued that evidence regarding a change in pressure or a surge in the ultra high pressure water blaster is not the type of \\\"scientific, technical, or other specialized knowledge\\\" requiring an expert opinion by Fed. R. Evid. 702, and that his own testimony of the surge based on his experience and perception is sufficient. (Id. at 7-8.) Additionally, Plaintiff argued that under section 3 of the Third Restatement , circumstantial evidence may be used to show that a defect existed \\u2014 the fact that surge occurred when the ultra high pressure water blaster was designed to provide consistent pressure. (Id. at 9-10.) Furthermore, Plaintiff argued that a spoliation reference should be applied in this case given that Defendant UHP had significant control over the subject ultra high pressure water blaster and that it was subsequently destroyed. (Id. at 7.) Accordingly, Plaintiff asserted that there are genuine issues of material fact in dispute and the Court should deny Defendant UHP's Motion for Summary Judgment with regard to the design defect claim. (Id. at 10.)\\nIn its Reply, Defendant UHP cited to Anders v. Puerto Rican Cars, Inc., et al., 409 Fed. Appx. 539 (2011) to support his argument that expert testimony is necessary to prove the existence of a product defect. (Summ. J. Reply at 2.) Defendant UHP emphasized that the ultra high pressure water blaster involved and pressure surges are not simple matters within the common understanding of the jurors. (Id.) Defendant UHP argued that Plaintiff failed to provide any evidence that a pressure surge was even possible in the subject ultra high pressure water blaster. (Id. at 3.) Defendant UHP also argued that Plaintiff failed to provide evidence of an alternative design. (Id.) Defendant UHP further argued that Plaintiff failed to rule out other possible causes of the alleged incident, including third party's misuse of the equipment or Plaintiff's own misuse of the equipment. (Id.) Defendant UHP asserted that, in short, the only piece of evidence Plaintiff offered for the alleged design defect is his own testimony. (Id.) Additionally, Defendant UHP argued that a spoliation inference is improper here because there is no evidence of the required fraudulent intent in the destruction of evidence, and even if it is applicable, it is insufficient to survive summary judgment. (Id. at 6-7.)\\nIn June 2013, Plaintiff filed a supplemental opposition, wherein he argued that the newly produced discovery revealed additional evidence in support of his design defect claim, namely, there was a leak in the East Gun approximately two weeks prior to the alleged incident, and a swivel repair was made to the West Gun approximately three days prior to the alleged incident.\\nIn response to Plaintiff's supplemental opposition, Defendant UHP filed a supplemental reply, and reiterated the fact that Plaintiff is still unable to offer any expert testimony to support the alleged design defect in the ultra high pressure water blaster.\\nIn September 2015, per the Court's Order, Plaintiff filed a supplemental in light of Banks and Connor. In his brief, Plaintiff advocated the Court to adopt sections 2 and 3 of the Third Restatement as the soundest rule of law for the Virgin Islands. Defendant UHP did not file a supplemental brief.\\nA. Applicable Law for Design Defect Claims\\nIn Banks and later cases, the Supreme Court of the Virgin Islands (hereinafter, \\\"Supreme Court\\\") instructed the superior courts to engage in a three-factor analysis when confronting an issue of common law that it has yet to address. Banks, 55 V.I. 967; Connor, 60 V.I. 597. While the Supreme Court adopted the general rule for products liability under the Third Restatement, the Supreme Court was silent with regard to the applicable law for products liability cases specifically based on design defect. Id. at 985. Because it appears that no binding precedent exists in this jurisdiction regarding the applicable law for design defect claims, the Court must undertake a Banks analysis. A Banks analysis consists of a balancing of the following three non-dispositive factors: (1) past practices of courts in this jurisdiction; (2) approaches taken by other jurisdictions; and most importantly, (3) which approach represents the soundest rule for the Virgin Islands. King v. Appleton, 61 V.I. 339, 349-50 (V.I. 2014).\\na. Past practices of courts in this jurisdiction\\nIn Banks, the Supreme Court acknowledged that \\\"section 402A [of the Second Restatement ] has received widespread acceptance in Virgin Islands courts.\\\" 55 V.I. at 981. Nonetheless, the Supreme Court recognized that abandoning Pynes ' minority interpretation that lessors of chattel cannot be held strictly liable under Section 402A, and adopting the majority position of holding lessors of chattel liable, is the sounder rule and more consistent with Virgin Islands jurisprudence and policy. Id. at 983. As such, the Supreme Court adopted sections l (hereinafter, \\\"Section 1\\\") and 20 of the Third Restatement. Id. at 986.\\nPrior to Banks, there are only a limited number of cases where the courts applied the products liability law as set forth in the Third Restatement. See, e.g., Paul v. Electric Ave., 2001 U.S. Dist. LEXIS 14261 (D.V.I. App. Div. 2001) (unpublished) (applying the Third Restatement); Hamlet v. Oliver Exterminating Inc., 44 V.I. 99 (Terr. Ct. 2001) (noting recent approval of the Third Restatement but finding summary judgment warranted under either version); Hartzog v. United Corp., 59 V.I. 58 (2011) (applying the Third Restatement).\\nb. Approaches taken by other jurisdictions\\nThe Second Restatement contained a single provision dealing with products liability: Section 402A. RESTATEMENT (SECOND) OF Torts (1965). Majority of the jurisdictions adopted Section 402A as the test for a defective product. Richard W. Right, ARTICLE: The Principles of Product Liability, 26 Rev. Litig. 1067, 1068 (2007). Section 402A provides a unitary test of liability for all three types of defects: manufacturing, design, and defects based on inadequate instruction or warnings, and the standard is based on a \\\"product in a defective condition unreasonably dangerous to the user or consumer.\\\" Restatement (Second) of Torts \\u00a7 402A(1). In other words, under Section 402A, liability was hinged on the consumer's expectations of product safety and performance. Restatement (Second) of Torts \\u00a7 402A cmts. g & i. Subsequently, due to problems applying Section 402A to design defects cases, many states supplemented or replaced Section 402A's consumer expectation approach with some version of the risk-utility test embraced by section 2(b) of the Third Restatement. Wright, 26 Rev. Litig. at 1079 (iciting Dan B. Dobbs, The Law of Torts 974, 975, 981-85 (2000)).\\nUnlike Section 402A's one-size-fits-all approach, section 2 of the Third Restatement (hereinafter, \\\"Section 2\\\") provides separate standards of liability for manufacturing defects, design defects, and defects based on inadequate instructions or warnings. Restatement (Third) of Torts: Products Liability \\u00a7 2 cmt. a. Under Section 2(b), \\\"A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.\\\" Restatement (Third) of Torts: Products Liability \\u00a7 2(b). Since the shift in paradigm for design defect cases, the majority of the jurisdictions now support and require, whether explicitly or implicitly, the reasonable alternative design requirement. Restatement (Third) of Torts: Products Liability \\u00a7 2, Reporter's notes to cmt. d. Nevertheless, a minority of jurisdictions still rely on the consumer expectations approach and do not require proof of a reasonable alternative design. Id.\\nc. The soundest rule of law for the Virgin Islands\\nThe Court finds that Section 2(b), read in conjunction with the recently-adopted Section 1, is the soundest rule of law for the Virgin Islands for design defect cases.\\nAs mentioned, the Third Restatement treats products liability significantly different than the Second Restatement in that Section 2 separates the analysis for each type of defect. Restatement (Third) of Torts: Products Liability \\u00a7 2 cmt. a. Section 402A was created to deal with manufacturing defects and could not be appropriately applied to cases of design defect and defects based on inadequate instructions or warnings. Restatement (Third) of Torts: Products Liability \\u00a7 1 cmt. a. On the other hand, Section 2 distinguishes design defects from the other types of defects and establishes a separate standard requiring that the product in a design defect case could have been made safer by a reasonable alternative design. Restatement (Third) of Torts: Products Liability \\u00a7 2(b).\\nThis new standard provides a clearer test for design defect claims than the standard previously relied upon by the courts in this jurisdiction. Furthermore, this is consistent with the trend of the Virgin Islands courts' routine transition to newer restatements upon approval, or even before final approval, by the American Law Institute, especially in light of the recent adoption of Section 1.\\nB. Application or the Spoliation Inference\\nIn Bright v. United Corp., 50 V.I. 215 (2007), the Supreme Court stated:\\nBefore the spoliation inference can be applied \\\"it is essential that the evidence in question be within the spoliator's possession or control,\\\" and \\\"it must appear that there has been an actual suppression or withholding of evidence.\\\" Gumbs v. Int'l Harvester, Inc., 718 F.2d 88, 96, 19 V.I. 642 (3rd Cir. 1983). \\\"Such a presumption or inference arises, however, only when the spoliation or destruction [of evidence] was intentional, and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.\\\" Gumbs, 718 F.2d at 96 (citing 29 Am. Jur. 2d Evidence \\u00a7 177) (brackets in original).\\nPlaintiff claimed that Defendant UHP had control over the ultra high pressure water blaster through the Lease Agreement with Defendant Hovensa. However, Plaintiff did not provide any evidence that Defendant UHP \\\"destroyed\\\" the subject ultra high pressure water blaster with fraudulent intent. Plaintiff's conclusory sentence that \\\"it is the common sense observation that UHP is more likely to have been threatened by the blaster\\\" does not establish Defendant UHP's fraudulent intent. Plaintiff noted in his opposition that he will file a separate motion regarding Defendant UHP and Defendant Hovensa's spoliation of evidence. In February 2012, Plaintiff filed a Motion for Sanctions for Spoliation of Evidence, but only against Defendant Hovensa. As such, the spoliation inference should not be applied to Defendant UHP.\\nC. Defendant UHP is Entitled to Summary Judgment in its Favor on the Design Defect Claim\\nHere, Plaintiff alleged that the ultra high pressure water blaster he was using contained a design defect, to wit: that \\\"whenever one of the water guns on the system was depressurized it would cause a surge to the other gun and related equipment,\\\" and that he was injured as a result. Thus, Plaintiff stated a claim under Section 1. The Court now turns to Section 2 for the standard of liability for a design defect claim. Under Section 2(b), a product \\\"is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.\\\" Restatement (Third) of Torts: Products Liability.\\nHere, despite the fact that Plaintiff advocated for the adoption of Section 2, Plaintiff never once discussed or provided any evidence of a reasonable alternative design. Instead, Plaintiff argued that circumstantial evidence, as permitted by section 3 of the Third Restatement (hereinafter, \\\"Section 3\\\"), will show that the ultra high pressure water blaster was defective in design.\\nPlaintiff is correct that, under the Third Restatement, Section 3 provides an alternative method for the plaintiff to establish defective design without having to meet the requisites of Section 2(b). Restatement (Third) of Torts: Products Liability \\u00a7 2 cmt. b (a reasonable alternative design is not the exclusive method for establishing design defect). However, the Supreme Court has yet to address whether Section 3 is applicable in the Virgin Islands. Nevertheless, it is the Court's position that a Banks analysis is not necessary at this time, given that even if Section 3 is applicable, Plaintiff did not meet his burden.\\nTo satisfy the criteria of Section 3(b), Plaintiff must establish some evidence that the alleged incident was not solely the result of causes other than defect existing at the time of sale or distribution. Section 3(b). Plaintiff never negated evidence pointing to other reasonable, alternative causes of the alleged incident, to wit: Plaintiff's own negligence in operating the East Gun and/or Plaintiff's co-worker's negligence in operating the West Gun. \\\"[Pjlaintiff has the burden of proof by a preponderance of the evidence; and in any case where there is no doubt that it is at least equally probable that the negligence was that of a third person, the court must direct the jury that the plaintiff has not proved his case.\\\" Restatement (Third) of Torts: Products Liability \\u00a7 3 cmt. d. Moreover, Plaintiff's own misuse of the equipment could have also been another reasonable, alternative cause of the alleged incident. Again, Plaintiff never negated this cause. In fact, to the contrary, Plaintiff argued adamantly throughout his case that he was not properly trained and he did not have the required knowledge to operate the ultra high pressure water blaster. Thus, Plaintiff has not proved his case under Section 3.\\nFurthermore, contrary to Plaintiff's contention, the Court finds that the inner workings of the ultra high pressure water blaster and pressure surges is the type of evidence that is \\\"scientific, technical, or other specialized knowledge\\\" that falls within the scope of Fed. R. Evid. 702. Ultra high pressure water blaster is a specialized equipment that most people are not familiar with. Accordingly, most people are not familiar with the inner workings of the ultra high pressure water blaster and whether pressure surges are possible. As such, expert testimony is required as to the alleged defect of the ultra high pressure water blaster and the reasonable alternative design.\\nAccording to Plaintiff's expert, Dr. Rentschler's deposition testimony, he will no longer offer an opinion and he no longer has an opinion on whether the equipment malfunctioned. More specifically, Dr. Rentschler testified that: (1) he cannot say whether the equipment actually malfunctioned or not, or at least have any evidence at this point that it did; (2) he has no opinion as to whether or not this accident was a result of equipment malfunction; (3) he will not be offering any opinions as to whether or not a surge in the equipment did or did not actually occur because he does not think there is any evidence, except for testimony, as to whether it actually did or did not; (4) he does not believe there is any evidence that actually demonstrates that there was an equipment malfunction or a surge in the equipment that caused Plaintiff's injury; (5) he will not be opining with regard to equipment malfunctions; and (6) he will no longer offer an opinion on whether the equipment malfunctioned.\\nPlaintiff is left with his own testimony as the only evidence to support his claim that there was a design defect that caused the surge in the ultra high pressure water blaster. The Court disagrees with Plaintiffs assertion that his testimony of the surge, combined with Patrick Courville and Richard Dupuy's testimony that a surge was not possible, is sufficient to establish that the ultra high pressure water blaster had a design defect. While Plaintiff can certainly testify to his perception of what happened, he cannot testify to the inner workings and the alleged defect of the ultra high pressure water blaster. Fed. R. Evid. 701. Similarly, unless Patrick Courville and Richard Dupuy are qualified to testify under Fed. R. Evid. 702, they cannot give expert testimony regarding the inner workings and the alleged defect of the ultra high pressure water blaster. Regardless, even if they are qualified as experts, their testimony does not help Plaintiff \\u2014 both Patrick Courville and Richard Dupuy testified that a surge was not possible in the subject ultra high pressure water blaster. Other than his own testimony, Plaintiff failed to provide any evidence that there was a design defect, or that a surge was even possible in the subject ultra high pressure water blaster.\\nPlaintiff subsequently pointed out in his supplemental filings that there was a leakage in the East Gun approximately two weeks prior to the alleged incident and that a swivel repair was made on the West Gun three days before the alleged incident. However, again, Plaintiff failed to provide any evidence that a leakage in the East Gun from approximately two weeks prior and/or a swivel repair to the West Gun approximately three days prior will lead to a pressure surge in the East Gun on the day of the alleged incident as the result of a design defect. In fact, as pointed out by Plaintiff in his opposition, both Patrick Courville and Richard Dupuy testified that a surge was not possible in the subject ultra high pressure water blaster. (Summ. J. Opp. at 9-10.)\\nPlaintiff failed to raise a genuine issue of material fact as to his design defect claim. As such, Defendant UHP's Motion for Summary Judgment will be granted as to Plaintiff's design defect claim.\\nII. NEGLIGENCE CLAIMS\\nA. Negligence Claim for Failure to Provide Proper Training\\nIn moving for summary judgment with regard to the negligence claim for failure to provide proper training, again Defendant UHP argued that, \\\"the equipment involved is complex and beyond the knowledge and experience of an average person, so expert testimony as to plaintiff's negligent training claim is required.\\\" (Summ. J. Mot. at 3-4.) Defendant UHP pointed out that Dr. Rentschler expressly withdrew his opinion that Plaintiff was not properly trained in the use of the water jetting equipment. (Id. at 3.) Thus, Defendant UHP argued, since Plaintiff will be unable to offer any expert testimony to Defendant UHP's failure to provide proper training,' and thereby, unable to prove that said failure caused Plaintiff's alleged injuries, the Court should grant Defendant UHP's Motion for Summary Judgment with regard to Plaintiff's negligence claim for failure to provide proper training. (Id. at 3-4.)\\nAside from Defendant UHP's self-serving, conclusory sentences, Defendant UHP failed to cite to any authority to support his assertion that expert testimony is required for a negligence claim for failure to provide proper training. The Supreme Court has established that in order for a motion to be properly before the court, parties must support their arguments by citing the proper legal authority, statute or rule. See Bernhardt v. Bernhardt, 51 V.I. 341, 345-46 (V.I. 2009); see also Davis v. Varlack Ventures, Inc., 59 V.I. 229, 238-239 (V.I. 2013) (The rules of this Court require an appellant's brief to \\\"contain the contentions of the appellant with respect to each of the issues presented, and the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on.\\\").\\nAlthough Defendant UHP cited to some cases to support its assertion that expert testimony is required for negligent training and belatedly developed its analysis in its reply brief, this deprived Plaintiff of the opportunity to respond. When an argument is raised for the first time in a reply brief, that argument is deemed waived because Plaintiff will not receive a chance to respond. Christopher v. People, 57 V.I. 500, 513 n.7 (V.I. 2012) (\\\"Any argument that is raised for the first time in a reply brief is considered waived, because the [opposing party] will not have a chance to respond.\\\"); see also Benjamin v. AIG Ins. Co. of P.R., 56 V.I. 558, 567-68 (V.I. 2012). Here, Defendant UHP's conclusory sentences without the support of any legal authority was a deficient argument in its Motion for Summary Judgment. Plaintiff should not be ambushed by unbriefed, unargued and unsupported claims without the opportunity to respond. By citing cases only in its reply brief, Plaintiff did not have the opportunity to distinguish and refute these cases, and to cite to opposing cases. Permitting Defendant UHP to belatedly brief, argue and support an argument it failed to argue sufficiently in its Motion for Summary Judgment would promote gamesmanship in motion practice where the moving party could simply make conclusory statements without any support in its motion and wait for the reply brief to cite to legal authority and develop its analysis. Accordingly, Defendant UHP's argument that Plaintiff's negligence claim for failure to provide proper training should be dismissed due to Plaintiff's inability to offer the required expert testimony is considered waived. In its Motion for Summary Judgment, Plaintiff's inability to offer expert testimony was Defendant UHP's sole argument against Plaintiff's negligence claim for failure to provide proper training. As such, Defendant UHP's Motion for Summary Judgment will be denied as to Plaintiff's negligence claim for failure to provide proper training.\\nB. Defendant UHP is Not Entitled to Summary Judgment in its Favor on the Negligence Claim for Failure to Provide Proper Training\\nEven if Defendant UHP had not waived its arguments against the negligence claim for failure to provide proper training, the facts in the record show that there is a genuine dispute of material fact concerning whether it was Defendant UHP, or Defendant Hovensa, or Plaintiff's employer, Jacobs, that was responsible for providing training to Plaintiff. As such, the trier of fact must determine these issues, and Defendant UHP is not entitled to judgment as a matter of law with regard to the negligence claim for failure to provide proper training.\\nC. Negligence Claim for Failure to Provide Proper Personal Protective Equipment\\nAs noted above, supra, n.6, Plaintiff did not plead this negligence claim for failure to provide proper protective equipment in his Complaint and never moved to amend the Complaint. And at this point of the litigation, Plaintiff cannot amend the Complaint without leave from the Court. V.I. Super. Ct. R. 8. Accordingly, the Court will reject Plaintiff's negligence claim for failure to provide proper protective equipment.\\nCONCLUSION\\nDefendant UHP's motion for summary judgment will be granted in part and denied in part. There are no genuine issues of material fact in dispute with regard to the design defect claim, and thus, Defendant UHP is entitled to a judgment as a matter of law. In addition to Defendant UHP waiving its arguments against the negligence claim for failure to provide proper training, there are genuine issues of material fact in dispute, and thus, Defendant UHP is not entitled to judgment as a matter of law. An Order consistent with this Memorandum Opinion will follow.\\nPlaintiff had filed a Motion for Leave to Supplement in March 2013, after Defendant UHP produced new discovery responses. However, in June 2013, while Plaintiffs Motion for Leave was still pending, Plaintiff went ahead and filed the supplemental documents without leave of the Court.\\nIn September 2015, the Court granted Plaintiffs Motion for Leave to Supplement, but in lieu of granting Plaintiff leave at that time to supplement, Plaintiffs supplemental filings from June 2013 were accepted. In the same Order, the Court deemed Defendant UHP's Reply to Plaintiffs Supplemental Opposition and Response to Plaintiffs Supplemental Counter-Statement of Material Facts as accepted.\\nAlthough Plaintiff attached the Lease Agreement and the Addendum to Plaintiffs SOF, Plaintiff did not include the Term Service Agreement to which the Addendum was a part of. For the completeness of the record, the Court wanted to review the Addendum in conjunction with the Term Service Agreement, and was able to find a copy of the Term Service Agreement from the file.\\nThe Term Service Agreement was dated November 21, 2000. The Lease Agreement was dated November 22,2000. The Addendum was dated December 4, 2000.\\nHowever,Plaintiff was still holding onto theEast Gun with hisleft hand. (Davis Dep. 60:13-15.)\\nPlaintiff did not plead any claims by name in his three-page Complaint containing 15 paragraphs. The Court has taken a liberal view of Plaintiffs Complaint to infer all plausible causes of action since \\\"[p]leadings must be construed so as to do justice.\\\" Fed. R. Civ. P. 8(e). Based on the following paragraphs, the Court construed Plaintiffs Complaint to allege a product defect claim:\\n10. The equipment was further in a defective condition that whenever one of the water guns on the system was depressurized it would cause a surge to the other gun and related equipment.\\n12. Ultra High Pressure stated that the equipment should not be surging as a result of the discontinuance of blasting by one of the guns.\\n15. As a direct and proximate result of the negligent acts and omissions of the Defendant as well as the defective condition of the equipment, Plaintiff suffered physical injuries\\nBased on the following paragraphs, the Court construed Plaintiffs Complaint to allege a negligent claim for failure to provide proper training:\\n8. Neither HOVENSA nor Ultra High Pressure made any attempt to ascertain if the Plaintiff had been trained or had the required knowledge to use the equipment\\n9. Plaintiff hd [sic] not received the proper training to use the equipment.\\n15. As a direct and proximate result of the negligent acts and omissions of the Defendant as well as the defective condition of the equipment, Plaintiff suffered physical injuries...\\nDefendant UHP's Motion for Summary Judgment addressed the product defect claim and, albeit briefly, the negligence claim for failure to provide proper training as well. Plaintiff's Opposition responded to Defendant UHP's arguments regarding the product defect claim and the negligence claim for failure to provide proper training, but also raised another negligence claim against Defendant UHPfor failure to provide proper personal protective equipment. Defendant UHP's Reply again addressed the product defect claim and the negligence claim for failure to provide proper training, but also addressed Plaintiff's negligence claim for failure to provide proper personal protective equipment. In the supplemental filings, both Plaintiff and Defendant UHP's addressed the product defect claim, the negligence claim for failure to provide proper training, and the negligence claim for failure to provide proper personal protective equipment. Plaintiff argued the negligence claim for failure to provide proper personal protective equipment in his Opposition based on the assumption that the question was properly before the Court. Plaintiffs Complaint only alleged that he had \\\"not received the proper training to use the equipment\\\" and that the \\\"equipment was further in a defective condition...\\\" There was no mention in the Complaint that Defendant UHP and Defendant Hovensa had a duty to provide proper personal protective equipment to Plaintiff and that Plaintiff was not so provided. It appears that Defendant UHP was not even aware of this claim given that there was no discussion in its Motion for Summary Judgment. By adding the negligence claim for failure to provide proper personal protective equipment in his Opposition, Plaintiff essentially amended his Complaint. Plaintiff never moved to amend the Complaint to include a negligence claim for failure to provide proper protective equipment, and could not have amended the Complaint at this point of the litigation without leave from the Court. V.I. Super. Ct. R. 8, and not Fed. R. Civ. P. 15, govern amendments to complaints in this jurisdiction. Santiago v. V.I. Housing Auth., 57 V.I. 256, at 275 n.11 (2012). Amendment under V.I. Super. Ct. R. 8 is not as of right, but is instead, \\\"vested in the sound discretion of the Superior Court.\\\" Harvey v. Christopher, 55 V.I. 565, 578 (2011). A claim must be contained in the complaint and cannot be raised for the first time on a summary judgment motion. Caribbean Healthways, Inc. v. James, 55 V.I. 691, 699 (2011) (affirmed the superior court's decision to reject the plaintiff's implied easement argument because it was not in the complaint and was raised for the first time in the motion for summary judgment). Accordingly, the Court will reject Plaintiff's negligence claim forfailure to provide properprotective equipment.\\nBoth Defendant UHP and Plaintiff cited to Fed. R. Civ. P. 56 as the applicable rule for Defendant UHP's Motion for Summary Judgment. However, in light of the Supreme Court of the Virgin Islands' ruling in Vanterpool v. Gov't of the V.I., \\\"the Federal Rules of Civil Procedure... should be invoked only when a thorough review of applicable Virgin Islands statutes, Superior Couft rules, and precedents from this Court reveals the absence of any other [applicable] procedure.\\\" 63 V.I. at 576. Since there are precedents from the Supreme Court regarding motions for summary judgment, the Court will use the standard of review set forth in said precedents.\\nIn the Complaint, Plaintiff did not specify whether he was claiming a manufacturing defect, a design defect, or a defect based on inadequate instructions or warnings. See supra, n. 6. Nevertheless, both Plaintiff and Defendant UHP addressed Plaintiff s claim solely as a design defect claim in their respective Motion for Summary Judgment, Opposition, Reply, and supplemental filings. Most notably, Plaintiffs Opposition and Supplemental Opposition both had the heading: \\\"The Ultra High Pressure Water Blaster Contained a Design Defect.\\\" Accordingly, the Court will treat Plaintiff's claim as a design defect claim.\\nAmerican Law Institute's Restatement (Third) of Torts: Products Liability (1998) (hereinafter, \\\"Third Restatement\\\").\\nAmerican Law Institute's Restatement (Second) of Torts (1965) (hereinafter, \\\"Second Restatement\\\").\\nSection 402A of the Second Restatement provides, in pertinent part: \\\"One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property .\\\"\\nSection 1 of the Third Restatement states: \\\"One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.\\\"\\nSection 20 of the Third Restatement defines \\\"One Who Sells or Otherwise Distributes.\\\"\\nSection 402A cmt. g provides, in pertinent:\\ng. Defective condition. The rule stated in this Section applies only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.\\nSection 402A cmt. i provides, in pertinent:\\ni. Unreasonably dangerous. The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer.\\n\\\"While the strict liability standard of \\u00a7 2(a) is the superior standard for assessing liability for harm caused by manufacturing defects, the 'risk-utility' balancing of costs and benefits embraced by \\u00a7 2(b) and 2(c) is the proper method of defining defects in design, instructions, and warnings.\\\" Restatement (Third) of Torts: Products Liability \\u00a7 2, Reporter's notes to cmt. a.\\nBut a reasonable alternative design is not the exclusive method for establishing design defect. Restatement (Third) of Torts: Products Liability \\u00a7 2 cmt. b (noting that Section 3, Section 4, and cmt. e to Section 2 provide alternative approaches to establish design defect other than that provided in Section 2(b)).\\nSee, e.g., General Motors Corp. v. Edwards, 482 So. 2d 1176, 1191 (Ala. 1985) (\\\"The existence of a safer, practical, alternative design must be proved by showing that: (1) The plaintiff's injuries would have been eliminated or in some way reduced by use of the alternative design . . .\\\"); Betts v. Robertshaw Controls Co., CIV. A No. 89 C-08-28, 1992 Del. Super. LEXIS 528 (Del. Sup. Ct. Dec. 28,1992) (\\\"Feasibility of designing a safe product must be determined at the time the product was designed.\\\"); Hull v. Eaton, 825 F.2d 448, 454, 263 U.S. App. D.C. 311 (D.C.Cir. 1987) (applying District of Columbia law) (upheld summary judgment granted to defendant on the grounds that the design proffered by plaintiff was not a reasonable alternative to that originally chosen): Reeves v. Cincinnati, Inc., 176 Mich. App. 181, 439 N.W.2d 326 (1989): Smith v. Keller Ladder Co., 275 N. J. Super. 280, 645 A.2d 1269 (1994); Cantrell v. Hennessy Indus., 829 S.W.2d 875 (Tex.Ct. App. 1992), cert. denied, 508 U.S. 912, 113 S. Ct. 2347, 124 L. Ed. 2d 256 (1993): Allen v. Minnstar, Inc., 8 F.3d 1470 (10th Cir. 1993) (applying Utah law): St. Gemain v. Husqvarna Corp., 544 A.2d 1283 (Me. 1988): Claytor v. General Motors Corp., 277 S.C. 259, 286 S.E.2d 129 (1982); Krueger v. General Motors Corp., 240 Mont. 266, 783 P.2d 1340 (1989); Banks v. ICI Americas, Inc., 264 Ga. 732, 450 S.E.2d 671 (1994).\\nSee, e.g., Soule v. General Motors Corp., 8 Cal. 4th 548, 34 Cal. Rptr. 2d 607, 882 P.2d 298 (1994); Ray v. BIC Corp., 925 S.W.2d 527 (Tenn. 1996); Sumnicht v. Toyota Motors Sales, I.S.A., Inc., 121 Wis. 2d 338, 360 N.W.2d 2 (1984); French v. Grove Mfg. Co., 656 F.2d 295 (8th Cir. 1981) (applying Arkansas law).\\nIn Manbodh v. Hess Oil V.I., 47 V. I. 215, 226 fn. 6 (2005), while the court did not adopt the Third Restatement, the court recognized the ineffectiveness of applying Section 402A to design defects and defects based on inadequate instructions or warnings and viewed \\\"this development [sections 1 and 2 of the Third Restatement] as a welcome departure from the previous, clumsy, formalistic scheme [section 402A of the Second Restatement].\\\"\\nSee, e.g., Banks, 55 V.I. 967; Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 13 V.I. 666 (3d Cir. 1977) (held that Restatement (First) of Torts had been superseded by Tentative Draft #19 of the Second Restatement); DeWindt v. Hess Oil V.I. Corp., 15 V.I. 22, 47 (D.V.I. 1978) (\\\"To ascertain what rights the imported employee has under this agreement, we next look to the applicable Virgin Islands contracts law, contained in the tentative drafts of the Restatement (Second) of Contracts.\\\"); Clarenbach v. Consolidated Parts, Inc., 17 V.I. 123, 130-31 (Terr. Ct. 1980) (\\\"It is the opinion of this Court... that the Restatement (Second) of Judgments \\u00a7 88 (Tent. Draft No. 2,1975) supersedes the position adopted by the first Restatement with respect to application of collateral estoppel by a non-party.\\\").\\nThe subject ultra high pressure water blaster was not actually \\\"destroyed,\\\" but at some point after this alleged incident, Defendant Hovensa returned the subject ultra high pressure water blaster to Defendant UHR It is reasonable to assume that subsequent maintenance was performed by Defendant UHP on the subject ultra high pressure water blaster and likely resulted in the potential destruction of evidence, to wit: the subject ultra high pressure water blaster is no longer in the same state it was in at the time of this alleged incident.\\nOn July 8,2013, the Court entered an Order granting Plaintiff's Motion for Sanctions for Spoliation of Evidence against Defendant Hovensa. On July 30,2013, Defendant Hovensa filed a Motion for Reconsideration and it is still currently pending before the Court.\\nSection 3 provides: It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:\\n(a) was of a kind that ordinarily occurs as a result of product defect; and\\n(b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution. Restatement (Third) of Torts: Products Liability \\u00a73.\\nIn People of the Virgin Islands v. Todmann, the Supreme Court stated that the Uniform Rules of Evidence (\\\"URE\\\"), codified as 5 V.I.C. \\u00a7 771-956, applied in the local Virgin Islands courts. Todmann, 53 V.I. 431 (2010) (held that the trial court improperly applied Fed. R. Evid. 702 because V.I. Code Ann. tit. 5, \\u00a7 911(2) applied when a party sought to admit expert testimony in the Virgin Islands courts). However, 5 V.I.C. 911, and the rest or the Uniform Rules of Evidence, was subsequently repealed and replaced with the FRE. Fontaine v. People, 56 V.I. 571 n.10 (V.I. 2012).\\nThe Court is not ruling on whether all design defect claims must be supported by expert testimony. The Court is only holding that expert testimony is required here for the ultra high pressure water blaster because it fails within the scope of Fed. R. Evid. 702.\\nRentschler Dep. 33:18-23.\\nQ And what is your opinion regarding the equipment malfunction?\\nA Well, at this point, again, as I said before, I don't think anyone can say whether the equipment actually malfunctioned or not, or at least have any evidence at this point that it did.\\nRentschler Dep. 33:24-25, 34:1-2.\\nQ If I understand you correctly then, are you stating that you have no opinion as to whether or not this accident was as a result of equipment malfunction?\\nA Yes, that would be correct.\\nRentschler Dep. 37:4-9.\\nQ And you won't be offering any opinions as to whether or not a surge in the equipment did or did not actually occur; is that correct?\\nA That's correct. I don't think there's any evidence, except for testimony, as to whether it actually did or didn't happen.\\nRentschler Dep. 43:4-8.\\nQ And do you have any evidence that, in fact, there was an equipment malfunction or a surge in the equipment that caused Mr. Davis's injury?\\nA No, I don't believe there's any evidence that actually demonstrates that.\\nRentschler Dep. 66:12-18.\\nQ You also state on page 11 of your opinion that \\\"UHP failed to provide properly functioning equipment which did not cause surges when one gun was turned off.\\\" [sic]\\nYou are not being [sic] opining with regard to equipment malfunctions; is that correct?\\nA That's correct.\\nRentschler Dep. 104:6-9.\\nQ And you've previously said that you are no longer offering an opinion on whether the equipment malfunctioned; is that right?\\nA That's correct.\\nAccording to Plaintiffs Counter-Statement of Fact, Patrick Courville was the technician at the time of the alleged incident. (Plaintiffs SOFf 6.) Patrick Courville testified at his deposition that he was trained and certified to operate the ultra high pressure water blaster. (Courville Dep. 12:4-23.) However, it is unclear from the evidence before the Court whether Patrick Courville is qualified to testify in the capacity of an expert witness with regard to the inner workings and the alleged defect of the ultra high pressure water blaster.\\nAccording to Plaintiffs Counter-Statement of Fact, Richard Dupuy was designated as Defendant UHP's legal representative for his deposition. (Plaintiff s SOF \\u00b6 6.) At his deposition, Richard Dupuy testified that there is no way for a surge to occur. (Dupuy Dep. 68:2-12.) However, there is no evidence before the Court that indicate Richard Dupuy received any training and certification and is qualified to testify in the capacity of an expert witness with regard to the inner workings and the alleged defect of the ultra high pressure water blaster. In fact, at Richard Dupuy's deposition, his attorney represented that he was being produced as a fact witness. (Dupuy Dep. 37:13.)\\nDupuy Dep. 68:2-12.\\nQ There's some documentation that this was said. \\\"When his co-worker released the trigger, there was a surge on his end\\\", meaning Mr. Davis's end. Is that considered to be standard operation of the equipment?\\nMR. BLAKE: Object to the form.\\nA No, it's not and I don't think it could occur.\\nQ Why do you say that?\\nA Because of the system that's set at the pump, there is no way for that surge to occur.\\nCourville Dep. 104:18-25,105:1-8.\\nQ Nickey Davis alleges that he told you before his incident that he was feeling surges in the equipment when the other hydroblaster would release the trigger of his gun.\\nWhat is your position on that?\\nA That can't happen. I don't know what his definition of surge is. Is that to mean that he's feeling \\u2014\\nQ Increased pressure?\\nA That can't happen.\\nQ Did he ever complain do [sic] you about that before his accident?\\nA No. It's like putting the finger over the end of a garden hose. It holds resistance against that pressure. There would be a decrease if anything in the system.\\nSupra, n.34.\\nIn its Reply, Defendant UHP argued for the first time that it had no duty to train Plaintiff. Since Defendant UHP raised this argument for the first time in its reply brief, and thus deprived Plaintiff of the opportunity to respond, this argument is deemed waived. Christopher, 51 V.I. at 513 n.7; see also Benjamin, 56 V.I. at 567-68. Thus, the Court will decline to address it at this time.\\nSee supra, \\\"BACKGROUND.\\\"\"}"
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+"{\"id\": \"5749613\", \"name\": \"JOE HAROLD VANTERPOOL d/b/a VANTERPOOL ENTERPRISES, Appellant/Plaintiff v. GOVERNMENT OF THE VIRGIN ISLANDS through the DEPARTMENT OF PROPERTY & PROCUREMENT, DEPARTMENT OF EDUCATION, DEPARTMENT OF HOUSING, PARKS, AND RECREATION, DEPARTMENT OF TOURISM, and THE OFFICE OF THE LIEUTENANT GOVERNOR OF THE VIRGIN ISLANDS, Appellees/Defendants\", \"name_abbreviation\": \"Vanterpool v. Government of the Virgin Islands\", \"decision_date\": \"2015-08-10\", \"docket_number\": \"S.Ct. Civil No. 2013-0072\", \"first_page\": 563, \"last_page\": \"594\", \"citations\": \"63 V.I. 563\", \"volume\": \"63\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"Supreme Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T19:34:26.926101+00:00\", \"provenance\": \"CAP\", \"judges\": \"HODGE, Chief Justice; CABRET, Associate Justice; and MOLLOY, Designated Justice.\", \"parties\": \"JOE HAROLD VANTERPOOL d/b/a VANTERPOOL ENTERPRISES, Appellant/Plaintiff v. GOVERNMENT OF THE VIRGIN ISLANDS through the DEPARTMENT OF PROPERTY & PROCUREMENT, DEPARTMENT OF EDUCATION, DEPARTMENT OF HOUSING, PARKS, AND RECREATION, DEPARTMENT OF TOURISM, and THE OFFICE OF THE LIEUTENANT GOVERNOR OF THE VIRGIN ISLANDS, Appellees/Defendants\", \"head_matter\": \"JOE HAROLD VANTERPOOL d/b/a VANTERPOOL ENTERPRISES, Appellant/Plaintiff v. GOVERNMENT OF THE VIRGIN ISLANDS through the DEPARTMENT OF PROPERTY & PROCUREMENT, DEPARTMENT OF EDUCATION, DEPARTMENT OF HOUSING, PARKS, AND RECREATION, DEPARTMENT OF TOURISM, and THE OFFICE OF THE LIEUTENANT GOVERNOR OF THE VIRGIN ISLANDS, Appellees/Defendants\\nS.Ct. Civil No. 2013-0072\\nSupreme Court of the Virgin Islands\\nAugust 10, 2015\\nDavid J. Cattie, Esq., The Cattie Firm, St. Thomas, USVI; Daniel L. Cevallos, Esq., Philadelphia, PA, Attorneys for Appellant.\\nPamela R. Tepper, Esq., Jennifer Lynn Augspurger, Esq., Assistant Attorneys General, St. Thomas, USVI, Attorneys for Appellee.\\nHODGE, Chief Justice; CABRET, Associate Justice; and MOLLOY, Designated Justice.\\nAssociate Justice Ive Arlington Swan is recused from this appeal. The Honorable Robert A. Molloy, a Judge of the Superior Court of the Virgin Islands, sits in his place by designation pursuant to title 4, section 24(a) of the Virgin Islands Code.\", \"word_count\": \"11743\", \"char_count\": \"72738\", \"text\": \"OPINION OF THE COURT\\n(August 10, 2015)\\nHODGE, Chief Justice.\\nAppellant Joe Harold Vanterpool appeals from a series of Superior Court rulings granting summary judgment to the Government of the Virgin Islands and later refusing to reconsider that ruling. For the reasons that follow, we reverse the grant of summary judgment and remand the case to the Superior Court for further proceedings.\\nI. BACKGROUND\\nHurricane Marilyn caused devastating damage to the Virgin Islands in September 1995. On April 2, 1996, the Government and Vanterpool entered into two separate contracts to repair the Charlotte Amalie High School (\\\"CAHS\\\") and the Ulla F. Muller Elementary School (\\\"Muller School\\\") on the island of St. Thomas. The respective contracts provided that the Government would pay Vanterpool $3,262,300 for repairing CAHS and $660,750 for repairing the Muller School. Both of these contracts were stamped \\\"Public Exigency.\\\"\\nBoth contracts provided detailed specifications for what work should be performed. However, various government officials, including the Lieutenant Governor, the Commissioner of Education, the Commissioner of Tourism, and the Commissioner of Housing, Parks, and Recreation, requested that Vanterpool perform additional repair work in light of the emergency. After Vanterpool completed this additional work \\u2014 which involved repairing several other schools and government facilities \\u2014 he submitted invoices requesting payment of $6,792,589.35, in addition to the $3,262,300 and $660,750 provided for in the written contracts. While the Commissioner of Education transmitted these invoices to Governor Roy L. Schneider on November 19, 1998, and requested a confirming written order, no such order ever issued. Thus, the Government paid only the $3,262,300 and $660,750 authorized by the original written contracts, and did not issue any payments for the excess invoices. Although the Government entered into a third written contract with Vanterpool to retroactively pay him $649,789.50 for a portion of this additional work, Vanterpool continued to demand full payment for all of the work he performed pursuant to those oral requests.\\nOn September 24, 2004, Vanterpool sued the Government in the Superior Court, requesting payment of the unpaid sums plus any applicable interest. The Government, after requesting an extension of time, filed its answer on February 22, 2005. After numerous proceedings not related to this appeal, as well as a nearly three-year period in which the case languished with no activity, Vanterpool filed a single document on October 14, 2011, titled \\\"Plaintiff's Memorandum of Law in Support of its Motion for Summary Judgment,\\\" and then filed an amended version on October 18, 2011. The Government filed an opposition to that motion, as well as its own cross-motion for summary judgment, on November 8, 2011. Vanterpool filed a joint reply and opposition on November 30, 2011, and the Government filed its reply on December 20, 2011.\\nAlthough the matter had been fully briefed, the Superior Court did not immediately act on either parties' motions. Throughout the Superior Court proceedings, the matter had been assigned to the Honorable Brenda J. Hollar. After Judge Hollar retired in November 2012, the case was not immediately reassigned to a different judge. In this situation, Vanterpool filed motions for a ruling on the outstanding motions on August 23, 2012, November 20, 2012, and May 20, 2013.\\nEventually, on July 8, 2013, Vanterpool's case was assigned to the Honorable Kathleen Y. Mackay. However, on July 12, 2013, the Superior Court issued an opinion and order, which was signed \\\"Hon. Michael C. Dunston for the Hon. Kathleen Mackay.\\\" (J.A. 544.) In its decision, the Superior Court held, in a footnote, that Vanterpool had failed to comply with Local Rule of Civil Procedure 56.1 of the United States District Court of the Virgin Islands, in that he failed to submit a separate undisputed statement of material facts. The Superior Court held that, as authorized by District Court Rule 56.1, it would treat the statement of facts set forth in the Government's opposition and cross-motion as undisputed. Accepting the Government's factual representations as true, the Superior Court concluded that Vanterpool failed to prove that the oral modifications to the original contracts were authorized. The Superior Court also rejected Vanterpool's alternate argument that he could recover under a quantum meruit or unjust enrichment theory, relying on prior decisions of the District Court and the United States Court of Appeals for the Third Circuit. Thus, the Superior Court denied Vanterpool's motion for summary judgment, and granted the Government's cross-motion for summary judgment.\\nDespite the Superior Court having issued a seemingly final decision resolving the case on July 12, 2013, Judge Mackay nevertheless entered an order on August 2, 2013, recusing herself from the case because she had represented Vanterpool when she was in private practice. In that order, Judge Mackay further stated that she \\\"did not author nor participate in the memorandum opinion or order entered on July 1 [2], 2013, nor did she have any knowledge of them until after they were entered.\\\" (LA. 556.) Three days later, on August 5, 2013, Vanterpool filed two motions. One, captioned as a \\\"Motion to Vacate,\\\" requested that the July 12, 2013 opinion be vacated as a void judgment because, despite her denial of authorship, the \\\"Hon. Michael C. Dunston for the Hon. Kathleen Mackay\\\" signature block could only be interpreted as the opinion having been authorized by Judge Mackay, and that in any event Judge Dunston would have lacked jurisdiction to enter an order in a case that was not assigned to him. The second motion, captioned as a \\\"Motion for Reconsideration,\\\" challenged the Superior Court's application of District Court Rule 56.1, as well as its interpretation of various provisions of the Virgin Islands Code in rejecting Vanterpool's quantum meruit claim.\\nOn August 7, 2013, the case was formally assigned to Judge Dunston, who then issued two separate opinions on September 4, 2013. The first opinion, which denied Vanterpool's \\\"Motion for Reconsideration,\\\" defended the use and application of District Court Rule 56.1 to treat the Government's statement of facts as undisputed without ever considering any contrary evidence in the record. The Superior Court also defended its interpretation of the pertinent Virgin Islands Code provisions, again emphasizing that it was following District Court and Third Circuit precedent.\\nThe second September 4, 2013 opinion denied the \\\"Motion to Vacate.\\\" In that opinion, Judge Dunston explained that there had been a gap between Judge Hollar's last day on the bench and Judge Mackay's first day, and that during this period he ruled on motions in such cases using the \\\"Hon. Michael C. Dunston for the Hon. Kathleen Mackay\\\" signature block. Judge Dunston stated that this signature block was used to \\\"signify\\\" that those cases should be assigned to Judge Mackay once she assumed her duties. He further characterized any claim that he lacked the authority to rule on the summary judgment motions as \\\"specious.\\\" Vanterpool timely filed his notice of appeal with this Court on September 4, 2013. See V.I.S.Ct.R. 5(a)(1) (\\\"In a civil case . if the Government of the Virgin Islands or the United States of America or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days after such entry [of judgment].\\\").\\nII. DISCUSSION\\nA. Jurisdiction and Standard of Review\\n\\\"The Supreme Court [has] jurisdiction over all appeals arising from final judgment^, final decrees [and] final orders of the Superior Court.\\\" V.I. CODE Ann. tit. 4, \\u00a7 32(a). Because the September 4, 2013 opinions resolved all issues between the parties, they constitute final appealable judgments under section 32(a). Ottley v. Estate of Bell, 61 V.I. 480, 487 (V.I. 2014) (citing Allen v. HOVENSA, L.L.C., 59 V.I. 430, 434 (V.I. 2013)).\\nThe standard of review for this Court's examination of the Superior Court's application of law is plenary, while the Superior Court's findings of fact are reviewed for clear error. Blyden v. People, 53 V.I. 637, 646 (V.I. 2010).\\nB. Judge Dunston's Authority\\nAlthough Vanterpool included a copy of the \\\"Motion to Vacate\\\" in the Joint Appendix, his appellate brief did not renew his argument that Judge Dunston lacked authority to issue orders in a case that had been duly assigned to another judge. Nevertheless, at oral argument, Vanterpool, through his counsel, stated that he does not wish to abandon his claim that Judge Dunston should not have ruled on the summary judgment motion.\\nOrdinarily, an appellant's failure to raise an issue in an appellate brief renders it waived on appeal. V.I.S.Ct.R. 22(m) (\\\"Issues that were . raised or objected to but not briefed . are deemed waived for purposes of appeal.\\\"). We note that Vanterpool frames his argument in jurisdictional terms by claiming that the July 12, 2013 opinion constituted a nullity, a characterization typically reserved only for orders entered without jurisdiction. In re Guardianship of Smith, 54 V.I. 517, 531 (V.I. 2010). This characterization is not without support, for several courts in other jurisdictions have held that a judge acts without subject-matter jurisdiction when he issues an order in a case that was duly assigned to a different judge, and that the resulting order is a nullity without legal effect. See, e.g., Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177, 179-80 (1995); People v. Madrigal, 37 Cal. App. 4th 791, 43 Cal. Rptr. 2d 498, 500-01 (1995); Ksiezyk v. City of Cleveland, No. 78881, 2001 Ohio App. LEXIS 5417, *6-8 (Ohio Ct. App. Dec. 6, 2001) (unpublished). Were we to agree, we would be required to consider this argument even though Vanterpool did not assert it in his appellate brief. See V.I. Waste Mgmt. Auth. v. Bovoni Invs., LLC, 61 V.I. 355, 363 (V.I. 2014) (holding that the Supreme Court may review the Superior Court's jurisdictional determinations sua sponte) (citing Smith, 54 V.I. at 527).\\nWe are not persuaded that the error Vanterpool has identified is jurisdictional in nature. The phrase \\\"jurisdictional\\\" refers to \\\"a court's adjudicatory capacity.\\\" First Am. Dev. Group/Carib, LLC v. WestLB AG, 55 V.I. 594, 611 (V.I. 2011) (emphasis added). Under Virgin Islands law, the judicial power of the Territory is clearly vested in courts, and not to individual judges. 4 V.I.C. \\u00a7 2 (\\\"The judicial power of the Territory is vested . in courts of local jurisdiction to be designated the 'Superior Court of the Virgin Islands' and the court of last resort. . . 'The Supreme Court of the Virgin Islands.' \\\"). Similarly, the statute conferring the Superior Court with original jurisdiction over all civil actions omits any reference to vesting jurisdiction to particular judicial officers. 4 V.I.C. \\u00a7 76(a) (\\\"[T]he Superior Court shall have original jurisdiction in all civil actions regardless of the amount in controversy . . . .\\\").\\nThis is consistent with how other United States jurisdictions view the exercise of judicial power. See, e.g., Carter v. Jones, 967 So. 2d 615, 621 (La. Ct. App. 2007) (holding that statute granting jurisdiction to a \\\"district court\\\" does not vest jurisdiction \\\"to the smaller segments of that court's internal structure, including its judges.\\\"); People v. Gray, 363 Ill. App. 3d 897, 845 N.E.2d 113, 116, 300 Ill. Dec. 692 (2006) (\\\"We agree that jurisdiction is vested in courts, not in individual judges.\\\"); Peoples State Bank ex rel. Madison Nat'l Bank v. Becker, No. 227121, 2002 WL 1797246, at *5 (Mich. Ct. App. Aug. 2, 2002) (unpublished) (\\\"[The statute] confers jurisdiction upon courts, not individual judges.\\\"). Notably, one of the states that has characterized a decision rendered by a non-assigned judge as a jurisdictional defect has nevertheless held that a judge other than the assigned judge may issue a ruling if the assigned judge is unavailable and time is of the essence, see Rosenberg v. Gattarello, 49 Ohio App. 2d 87, 359 N.E.2d 467, 471 (1976), thus indicating that the error may not actually have any jurisdictional significance. Arbaugh v. Y & H Corp., 546 U.S. 500, 511, 126S. Ct. 1235, 163 L. Ed. 2d 1097 (2006) (recognizing the existence of \\\"drive-by jurisdictional rulings\\\" in which legal rules are erroneously labeled \\\"jurisdictional\\\" through \\\"unrefined dispositions\\\").\\nNevertheless, we conclude that Vanterpool's claim is properly before us pursuant to other exceptions to the waiver rule. The issue of Judge Dunston's authority to rule on a case assigned to Judge Mackay was \\\"fairly presented to the Superior Court,\\\" V.I.S.Ct.R. 4(h), in that the claim was briefed by both parties and resolved on the merits in the first September 4, 2013 opinion. Additionally, \\\"the Supreme Court, at its option, may notice an error not presented that affects substantial rights.\\\" V.I.S.Ct.R. 22(m). Although it does not constitute a jurisdictional defect, courts have characterized claims that a particular judge or other individual lacked authority to issue dispositive rulings in a case as \\\"affecting substantial rights\\\" since they \\\"involv[e] a fundamental question of judicial authority.\\\" State v. Irby, 848 N.W.2d 515, 518 (Minn. 2014) (quoting State v. Harris, 667 N.W.2d 911, 920 (Minn. 2003)); accord, In re Guardianship of Hughes, 2013 Cal. App. Unpub. LEXIS 1643, *34 (Cal. Ct. App. 2013) (unpublished) (\\\"[A] litigant's constitutional rights are violated where the trial court improperly delegates its judicial authority.\\\") (citing Aetna Life Ins. Co. v. Superior Court, 182 Cal. App. 3d 431, 227 Cal. Rptr. 460 (1986)).\\nUnder Virgin Islands statutory law, it is the responsibility of the Presiding Judge of the Superior Court to \\\"divide the business and assign the cases among all the judges of the court in such manner as will secure the prompt dispatch of the business of the court.\\\" 4 V.I.C. \\u00a7 72b(a). No provision of the Virgin Islands Code permits the Presiding Judge to delegate this statutory assignment power to a different judge, nor do the applicable statutes authorize one Superior Court judge to essentially ignore the Presiding Judge's assignment by issuing an order in a case assigned to another judge.\\nBased on these authorities, we conclude that Judge Dunston exceeded his authority by issuing the July 12, 2013 opinion despite the fact that the case remained assigned to Judge Mackay. Although, in his September 4, 2014 opinion denying Vanterpool's \\\"Motion to Vacate,\\\" Judge Dunston stated that the matter had not been assigned to any judge at the time he issued the July 12, 2013 opinion because Judge Mackay was still serving in the Magistrate Division and had yet to assume her duties as a Superior Court judge, the certified docket sheet maintained by the Clerk of the Superior Court reflects that the case was formally reassigned to Judge Mackay four days earlier on July 8, 2013. Significantly, in this case there is no indication that Judge Mackay was ill or otherwise unavailable, or that the summary judgment motions were emergency matters that required immediate action. Rosenberg, 359 N.E.2d at 471.\\nNevertheless, while Judge Dunston lacked the authority to issue a dispositive order in a case that was assigned to another judge, this action, standing alone, does not compel reversal. When a trial judge takes actions that exceed the scope of his authority because authority was vested in another judge, \\\"the decision to deny those proceedings legal effect 'is grounded not in metaphysical notions regarding transfer of power, but on practical considerations concerning efficient judicial administration.' \\\" Hansen v. O'Reilly, 62 V.I. 494, 510 (V.I. 2015) (quoting Harvey v. Christopher, 55 V.I. 565, 569 n.2 (V.I. 2011)). While this case was assigned to Judge Mackay when Judge Dunston issued the July 12, 2013 opinion, the record reflects that the case was formally reassigned to Judge Dunston on August 7, 2013, five days after Judge Mackay issued her August 2, 2013 recusal order. Consequently, were we to agree with Vanterpool that the July 12, 2013 opinion is a nullity and remand the case, it would simply return to Judge Dunston. Thus, remanding for the Superior Court to \\\"issue a new decision . . . would serve absolutely no purpose other than [to impose] additional expense and delay,\\\" since the same judge would be asked to make the same legal determination based on the same evidence and arguments. Hansen, 62 V.I. at 510-511. Thus, while we would ordinarily be required to vacate the July 12, 2013 opinion and order and remand for the judge assigned to the case to consider and decide the dispositive motion, we decline to do so here in the interest of judicial economy. Id. at 511 (collecting cases).\\nC. District Court Rule 56.1\\nVanterpool, as his first issue on appeal, asserts that the Superior Court should not have \\\"rigidly applied\\\" District Court Rule 56.1. (Appellant's Br. 8.) In its appellate brief, the Government contends that Vanterpool failed to comply with District Court Rule 56.1 \\\"at his peril\\\" and that condoning his defective filing would \\\"plac[e] the onus on the [Superior] Court to determine what he could possibly be able to offer to defeat summary judgment.\\\" (Appellee's Br. 20-21.)\\nBefore addressing this issue on the merits, we are troubled by the fact that neither Vanterpool nor the Government explain in their appellate briefs why they believe District Court Rule 56.1 \\u2014 a rule promulgated by the United States District Court of the Virgin Islands to govern proceedings in that court \\u2014 is in any way applicable to this case. Perhaps even more troubling is that the Superior Court, in its July 12, 2013 opinion, also provided no such explanation, but instead simply cited to District Court Rule 56.1 mechanically and without explanation. Such uncritical application of the rules of another court to a proceeding in the Superior Court is wholly inconsistent with our admonition that \\\"the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, and the Local Rules of the District Court should represent rules of last resort rather than first resort, and should be invoked only when a thorough review of applicable Virgin Islands statutes, Superior Court rules, and precedents from this Court reveals the absence of any other [applicable] procedure.\\\" Sweeney v. Ombres, 60 V.I. 438, 442 (V.I. 2014).\\nAlthough the parties and the Superior Court have essentially stipulated to the application of District Court Rule 56.1 to this matter, \\\"[t]his Court has repeatedly cautioned that parties may not, through explicit agreement or implicitly by omission, stipulate to the law.\\\" Simmonds v. People, 59 V.I. 480, 493 (V.I. 2013) (collecting cases). Consequently, this Court possesses an obligation independently to determine which court rules actually apply to the underlying proceeding even if the parties mistakenly believe' that they have identified the correct rules. See Phillips v. People, 51 V.I. 258, 272-73 (V.I. 2009) (determining, sua sponte, that the Uniform Rules of Evidence, rather than the Federal Rules of Evidence, applied to the underlying case); Gov't of the V.I. v. Durant, 49 V.I. 366, 371-72 (V.I. 2008) (holding, sua sponte, that substantive aspects of Federal Rule of Criminal Procedure 12.2(c)(1)(A) were not applicable to Superior Court proceedings).\\nHere, it is almost certain that the parties and the Superior Court believe that District Court Rule 56.1 was applicable to this case through Superior Court Rule 7, even though Rule 7 is not cited in the parties' briefs or the July 12, 2013 opinion. Rule 7 reads, in its entirety, that\\n[t]he practice and procedure in the Superior Court shall be governed by the Rules of the Superior Court and, to the extent not inconsistent therewith, by the Rules of the District Court, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure and the Federal Rules of Evidence.\\nSUPER. Ct. R. 7. Superior Court Rule 7 traces its origins to a predecessor rule adopted by the District Court for the Superior Court during the period in which the District Court possessed both appellate jurisdiction over the Superior Court and the authority to promulgate rules for the Superior Court. Gov't of the V.I. v. Seme Corp., 6 V.I. 621, 627 (V.I. Super. Ct. 1967).\\nAs we have previously explained, under the 1984 amendments to the Revised Organic Act of 1954, Congress granted the Virgin Islands Judiciary the authority to promulgate rules governing practice and procedure. Corraspe v. People, 53 V.I. 470, 482 n.2 (V.I. 2010); see also In re Application of Moorhead, 27 V.I. 74, 81-82 (V.I. Super. Ct. 1992) (explaining that Congress, in enacting section 21(c) of the Revised Organic Act through the 1984 amendments, intended to divest the District Court of its rulemaking authority over the Superior Court). The Superior Court, as the sole local court at that time, exercised that power for the first time in 1994, in order to cover the expanded criminal jurisdiction that went into effect on January 1,1994, as well as to govern the Virgin Islands Bar. See id.; see also Preface to the First Gen. Amendments to the Rules of the Superior Ct. of the U.S. Virgin Islands (1994) (\\\"[T]he Court's expanded jurisdiction and its added responsibility to regulate the admission and disciplining of members of the Bar required a comprehensive revision of the rules consistent therewith.\\\"). Nevertheless, the Superior Court retained Superior Court Rule 7 in largely the same form in order to allow for Superior Court practice to \\\"be as consistent as possible with the rules of the District Court of the Virgin Islands for the convenience of the members of the V.I. Bar.\\\" Id.\\nSince then, this Court has questioned the validity of Superior Court Rule 7 under section 21(c) of the Revised Organic Act. The United States Court of Appeals for the Third Circuit first recognized the possibility of a facial challenge to the validity of Superior Court Rule 7 in In re Richards, 213 F.3d 773, 786, 42 V.I. 469 (3d Cir. 2000), a case decided during the period when the Superior Court served as the only local court in the Virgin Islands Judicial Branch. The Third Circuit did not then address the validity of Superior Court Rule 7 because it was able to resolve the case on other grounds, but it did reaffirm the fact that \\\"[a]ny authority the federal rules have over territorial courts is a function of territorial law that must be consistent with the [Revised Organic Act],\\\" and that \\\"[although the [Superior] Court may adopt whatever rules it chooses, those rules must still comport with the [Revised Organic Act].\\\" Id. at 784 n.4.\\nOn January 29, 2007, this Court assumed its role as the court of last resort in the Virgin Islands, Hodge v. Bluebeard's Castle, Inc., 62 V.I. 671, 677-78 (V.I. 2015), and now exercises \\\"general oversight of the judicial branch of the Government of the Virgin Islands.\\\" 4 V.I.C. \\u00a7 31(d)(3). In that capacity, this Court has questioned whether Superior Court Rule 7 comports with the Revised Organic Act's requirement that the court rules employed in proceedings before Virgin Islands courts actually be promulgated by the Virgin Islands Judiciary:\\nOn its face, this rule appears to incorporate the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Local Rules of Civil Procedure, and the Local Rules of Criminal Procedure into Superior Court proceedings as promulgated and amended by the United States Supreme Court and the United States District Court of the Virgin Islands. While apparently intended to make local and federal practice as similar as possible, Gov't of the V.I. v. Thomas, 32 V.I. 64, 66-68 (V.I. Super. Ct. 1995), the wholesale adoption by reference of four sets of rules promulgated by courts outside of the Virgin Islands Judiciary to govern proceedings in the Superior Court may be prob lematic given that Congress provided in section 21(c) of the Revised Organic Act that \\\"[t]he rules governing the practice and procedure of the courts established by local law . shall be governed by local law or the rules promulgated by those courts.\\\"\\nPercival v. People, 62 V.I. 477, 486 n.1 (V.I. 2015) (quoting 48 U.S.C. \\u00a7 1611(c)) (emphasis in original); see also Estick v. People, 62 V.I. 604, 619 n.7 (V.I. 2015) (questioning Superior Court Rule 7 ' s validity, but noting that \\\"regardless of the validity of Superior Court Rule 7, this Court's holdings in [prior cases] addressing a defendant's duty to provide notice of an alibi witness to the People when requested remain controlling authority until this Court sets those rulings aside\\\"); People v. Velasquez, 62 V.I. 3, 15 (V.I. Super. Ct. 2014) (observing that reliance on Superior Court Rule 7 to incorporate federal rules is problematic, in that repeal of a federal rule \\u2014 as was the case with District Court rule governing waiver of the right to a jury trial \\u2014 may have unexpected and immediate negative consequences in Superior Court proceedings). In making these observations, we referenced our prior decisions holding that \\\"mechanistic and uncritical reliance on the Restatements\\\" pursuant to former 1 V.I.C. \\u00a7 4 \\\"has the effect of inappropriately delegating the judicial power of the Virgin Islands to the American Law Institute and to the governments of other jurisdictions.\\\" Gov't of the V.I. v. Connor, 60 V.I. 597, 602 (V.I. 2014) (citing Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967, 980 (V.I. 2011)); see also Dunn v. HOVIC, 1 F.3d 1371, 1392, 28 V.I. 467 (3d Cir. 1993) (Alito, L, concurring) (\\\"I do not interpret 1 V.I.C. \\u00a7 4 to mean that the Restatements . are tantamount to Virgin Islands statutes____1 V.I.C. \\u00a7 4 does not incorporate all of the Restatement provisions... as if they were actual statutory text; nor does it delegate to the American Law Institute the authority to enact changes in the law of the Virgin Islands in all of the areas covered by the Restatements.\\\").\\nBoth this Court and the Superior Court have made similar observations in the related context of whether Act No. 7161 \\u2014 in which the Legislature adopted \\\"the Federal Rules of Evidence, Pub. L. [No.] 93-595, \\u00a7 1, January 2, 1975, 88 Stat. 1926, and all subsequent amendments thereto,\\\" 2010 V.I. Sess. Laws 50 (Act No. 7161, \\u00a7 15(b)) \\u2014 only adopted the Federal Rules of Evidence as they existed when Act No. 7161 became law on April 7, 2010, or as later amended after this date as well. See Bovoni Invs., LLC, 61 V.I. at 368 n.13 (\\\"[S]ince every provision of the Federal Rules of Evidence is just as much a part of Virgin Islands law as any other enactment passed by the Legislature and approved by the Governor, the resolution of this question depends on whether the Legislature may delegate its authority to adopt provisions of Virgin Islands law to another body \\u2014\\u2022 in this case Congress and the United States Supreme Court \\u2014 when lawmaking authority is vested exclusively in the Legislature by the Revised Organic Act of 1954.\\\") (internal quotation marks and citations omitted); People v. Ventura, Super. Ct. Crim. No. 76/2012 (STX), 2014 V.I. LEXIS 53, *24 n.4 (V.I. Super. Ct. July 25, 2014) (unpublished) (\\\"[Cjonstruing Act 7161 to have anticipated any subsequent amendments to the Federal Rules of Evidence after April 7, 2010 . . . requires finding that the Legislature intended to delegate its authority for promulgating laws in the Virgin Islands to the agencies and branches of the federal government tasked with considering, revising, adopting, and approving changes to the federal rules of evidence, see 28 U.S.C. \\u00a7 2702-04, a form of laissez-faire legislating the Supreme Court of the Virgin Islands has resoundingly rejected.\\\").\\nNeither this Court nor the Superior Court has resolved the delegation-of-power issue with respect to 1 V.I.C. \\u00a7 4 or Act No. 7161, given that the Legislature implicitly repealed 1 V.I.C. \\u00a7 4 in 2004, see King v. Appleton, 61 V.I. 339, 348-50 (V.I. 2014), and the pertinent amendments to the Federal Rules of Evidence after April 7, 2010, were stylistic rather than substantive, see Bovoni Invs., LLC, 61 V.I. at 368 n.13; Ventura, 2014 V.I. LEXIS 53, at *22 n.4. Nevertheless, all of these enactments raise serious delegation-of-power concerns, in that authority vested in one branch of the Virgin Islands Government by virtue of the Revised Organic Act of 1954 has been delegated, in its entirety, to other entities that are not a part of the Virgin Islands Government. Accord, Dep't of Transp. v. Assoc. of Am. Railroads, 135 S. Ct. 1225, 1237, 191 L. Ed. 2d 153 (2015) (Alito, L, concurring); Mistretta v. United States, 488 U.S. 361, 372, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989); Brown v. Gerdes, 321 U.S. 178, 183, 64 S. Ct. 487, 88 L. Ed. 659 (1944); Carter v. Carter Coal Co., 298 U.S. 238, 311, 56 S. Ct. 855, 80 L. Ed. 1160 (1936); J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 407, 48 S. Ct. 348, 72 L. Ed. 624 (1928); Marshall Field & Co. v. Clark, 143 U.S. 649, 692, 12 S. Ct. 495, 36 L. Ed. 294 (1892); Krielow v. Louisiana Dept. of Agriculture & Forestry, 125 So. 3d 384, 398-97 (La. 2013); cf. Gumbhir v. Kansas Bd. of Pharmacy, 228 Kan. 579, 618 P.2d 837, 843 (1980) (holding that a statute mandating applicants for licensure as pharmacists to graduate from a school accredited by the American Council on Pharmaceutical Education held to be unconstitutional delegation of power from the Kansas government to a nongovernmental association); Duson v. Poage, 318 S.W.2d 89,97 (Tex. Civ. App. 1958) (holding that a rule delegating power to determine qualifications of hospital staff to the American Medical Association to be invalid because \\\"the American Medical Association may change its rules and they thus become the test of whether a physician is qualified for the staff'); Ada v. Sab\\u00edan, No. 89-419, slip op. at 3 n.2 (N. Mar. I. Super. Ct. 1993) (holding that a statute requiring automatic application of the majority rule in all instances may violate \\\"the right to self-government guaranteed to the people of the Commonwealth . . . because the legislatures of Virginia, California, etc., now decide, albeit indirectly, what the law should be in the Commonwealth.\\\").\\nAlthough we have reservations regarding the continued validity of Superior Court Rule 7 that we cannot simply ignore, especially in light of our prior observations in Percival and Estick, we need not resolve that issue as part of this case because District Court Rule 56.1 would be inapplicable to Superior Court proceedings even if Superior Court Rule 7 were valid. \\\"[E]ven where it is applicable Rule 7 does not mandate verbatim adoption of the practice and procedure of the District Court.\\\" Gov't of the V.I. v. Quetel, 18 V.I. 145, 149 (V.I. Super. Ct. 1982).\\nHere, it is clear that Vanterpool failed to comply with the requirements of District Court Rule 56.1. The Superior Court never considered, however, why District Court Rule 56.1 imposes these requirements. As we have previously emphasized, \\\"the Local Rules of the District Court should represent rules of last resort rather than first resort.\\\" Sweeney, 60 V.I. at 442 (emphasis added). Consequently, the Superior Court should not have reflexively and mechanistically applied District Court Rule 56.1 through Superior Court Rule 7, but instead should have independently determined whether the rule served a valid purpose when applied to the Superior Court rather than to the District Court. In fact, in a decision interpreting a prior version of District Court Rule 56.1, a different Superior Court judge held that, notwithstanding Superior Court Rule 7, District Court Rule 56.1 does not apply to proceedings in the Superior Court, because it merely established a filing requirement for which there was no basis to extend to the Superior Court. Citibank, N.A. v. Chammah, 44 V.I. 85, 93-94 (V.I. Super. Ct. 2001).\\nSignificantly, the Superior Court's rigid application of District Court Rule 56.1 to this case is in clear conflict with prior precedent of this Court. See Estick, 62 V.I. at 619 n.7 (\\\"[R]egardless of the validity of Superior Court Rule 7, this Court's holdings . . . remain controlling authority until this Court sets those rulings aside.\\\"). As we have previously held, federal rules such as District Court Rule 56.1 \\\"should be invoked only when a thorough review of applicable Virgin Islands statutes, Superior Court rules, and precedents from this Court reveals the absence of any other [applicable] procedure.\\\" Sweeney, 60 V.I. at 442 (emphasis added). Although not cited by the Superior Court in either its July 12, 2013 or September 4, 2013 opinions, this Court has already held that the fact that a summary judgment motion is deemed uncontested due to a procedural defect \\u2014 such as not filing a timely opposition \\u2014 is not grounds for accepting the moving party's undisputed facts as true. Martin v. Martin, 54 V.I. 379, 389 (V.I. 2010). Significantly, we held that \\\"[t]he trial court may not accept as true the moving party's itemization of undisputed facts; instead, the court must satisfy itself that the evidence in the summary judgment records supports this relief.\\\" Id. Based on this holding \\u2014 which must take precedence over the Superior Court's interpretation of District Court Rule 56.1, see Estick, 62 V.I. at 619 n.7; Sweeney, 60 V.I. at 442 \\u2014 it was clearly error for the Superior Court to disregard the record and treat the facts set forth in the Government's cross-motion for summary judgment as uncontested simply because Vanterpool's summary judgment motion failed to include a serially-numbered separate statement of undisputed facts. Accordingly, the Superior Court erred when it applied District Court Rule 56.1 to this proceeding, and used Vanterpool's non-compliance with that provision as the basis for treating the Government's statement of facts as undisputed.\\nD. The Merits\\nWhen reviewing a summary judgment decision on appeal, this Court applies the same test that the Superior Court should have applied. Machado v. Yacht Haven U.S.V.I., LLC, 61 V.I. 373, 379-80 (V.I. 2014). Consequently, this Court, in its early cases, often overlooked errors made by the Superior Court in the interest of judicial economy, and proceeded to perform a correct summary judgment analysis for the first time on appeal rather than remanding the matter to the Superior Court. See, e.g., United Corp. v. Tutu Park Ltd., 55 V.I. 702, 708 n.3 (V.I. 2011); Martin, 54 V.I. at 385; Hodge v. McGowan, 50 V.I. 296, 310-11 (V.I. 2008). However, in more recent cases, barring exceptional circumstances, we have declined to do such an analysis on appeal \\u2014 notwithstanding the fact that on appeal this Court would accord no deference to the Superior Court's analysis \\u2014 and instead have remanded the case to the Superior Court so that it could address the question in the first instance. See, e.g., Connor, 60 V.I. at 604; Browne v. Gore, 57 V.I. 445, 453 n.5 (V.I. 2012). In these later cases, we have emphasized that \\\"independent decisions of [the Superior Court] will improve the quality of [our] decisions\\\" and that addressing questions of law \\u2014 such as whether summary judgment should be granted \\u2014 for the first time on appeal is inconsistent with the hierarchical system of judicial decision-making. Connor, 60 V.I. at 604 (quoting Lewis A. Kornhauser, Adjudication by a Resource-Constrained Team: Hierarchy and Precedent in a Judicial System, 68 S. CAL. L. REV. 1605, 1626 (1995)); accord, In re Suspension of Welcome, 58 V.I. 236, 259 (V.I. 2013) (\\\"[W]hile we possess the power to completely disregard the EGC's findings, we do not believe that it would be desirable to do so. Although we do not defer to its recommended sanction, this Court clearly benefits from the EGC's input.\\\").\\nUnlike United Corp., Martin, and Hodge, where the Superior Court actually conducted a summary judgment analysis but potentially made other errors of law \\u2014 such as issuing a ruling sua sponte, or before considering a recusal motion \\u2014 in this case the Superior Court, as in Connor and Browne, conducted no analysis at all. While the Superior Court purported to do a summary judgment analysis, it repeatedly emphasized that it did not look at the record, but instead treated the Government's statement of facts as true without independently verifying whether any of those facts were disputed or even had an evidentiary basis at all. For example, in one part of the July 12, 2013 opinion, the Superior Court made the following holding:\\nGiven that the Governor and the Commissioner of Property and Procurement signed the contracts, either would constitute the \\\"Contracting Officer.\\\" As [Vanterpool] has not submitted a Statement of Undisputed Material Facts, there is no evidence properly before the Court indicating that: (1) the Commissioner of Education is an authorized representative of the Governor or the Commissioner of Property and Procurement under the contracts; (2) the Contracting Officer issued a change order under Section 3(b); (3) [Vanterpool] gave the Contracting Officer written notice stating the date, circumstance, and source of the change order, regarded the order as a change order, and submitted the notice within 20 days of when the costs were incurred; (4) [Vanterpool] submitted to the Contracting Officer a written statement within 30 days of a written notice that set forth the general nature and monetary extent of his claim for an equitable adjustment; or (5) [Vanterpool] sought an equitable adjustment before final payment under the contracts was made.\\n(J.A. 541.) Moreover, in its September 4, 2013 opinion denying Vanterpool's \\\"Motion for Reconsideration,\\\" the Superior Court expressly stated that, although it had cited to some portions of the record in its July 12, 2013 opinion, it had \\\"grant[ed] summary judgment in favor of [the Government] based on the application of LRCl 56.1(d).\\\"\\nThus, rather than conducting our own review of the record for the first time on appeal to determine whether summary judgment was warranted, we will remand to the Superior Court so that it may perform a proper summary judgment analysis in the first instance. Connor, 60 V.I. at 604; Browne, 57 V.I. at 453 n.5; accord, Pedro v. Ranger Am. of the V.I., Inc., 63 V.I. 511, 521 n.6 (V.I. 2015) (\\\"[T]his Court is one of review, not first instance.\\\"). Nevertheless, in light of the fact that more than 10 years have passed since Vanterpool first filed his complaint in the Superior Court, with much of the delay attributable to the Superior Court's failure to rule on dispositive motions in a timely manner, see Rennie v. Hess Oil V.I. Corp., 62 V.I. 529, 539 (V.I. 2015), we will, in the interests of judicial economy, address two pure questions of law that do not require us to comb through the voluminous evidentiary record: (1) what statutory requirements are waived by a public exigency contract, and (2) whether the Government may be sued for quantum meruit.\\n1. Public Exigency Contracts\\nTitle 31, section 236 of Virgin Islands Code provides, in pertinent part, that\\n[a]ll purchases of, and contracts for, supplies, materials, equipment, and contractual services, and all sales of personal property which has become obsolete and unusable, shall be based on competitive bids, except as provided in section 239 of this title. If the amount of the expenditure is estimated to exceed $50,000 or the amount of the sale if estimated to exceed $50,000 the contract shall be in writing.\\n31 V.I.C. \\u00a7 236(a). Section 239, however, establishes that\\nSupplies, material and equipment may be purchased and contractual services negotiated for, in the open market without observing the provisions of section 236 of this title provided \\u2014\\nthere exists a threat to public health, safety or welfare under emergency conditions as defined in regulations prescribed by the Commissioner; provided, that such emergency procurements shall be made with such competition as is maximally practicable under the circumstances; and provided further, that all procurements made pursuant to this item shall be clearly stamped \\\"PUBLIC EXIGENCY\\\".\\n31 V.I.C. \\u00a7 239(a)(2). In its July 12,2013 opinion, the Superior Court concluded that section 239 of title 31 only eliminates the competitive bidding requirement for public exigency contracts, but not the writing requirement.\\nWe agree. At first glance, it appears that section 239(a) supports Vanterpool's position that a public exigency dispenses of the writing requirement, in that it provides that a contract may be negotiated \\\"without observing the provisions of section 236.\\\" 31 V.I.C. \\u00a7 239(a). However, Vanterpool ignores the remainder of the section, which mandates \\\"that all procurements made pursuant to this item shall be clearly stamped 'PUBLIC EXIGENCY.'\\\" 31 V.I.C. \\u00a7 239(a)(2) (emphasis added). Moreover, section 239(b) unquestionably contemplates that there be a writing:\\nWhere an open market purchase is made, or a contract for services negotiated for, pursuant to clauses (1) and (2) of subsection (a) of this section, the approval of the Governor shall be necessary and, in addition, if the purchase is made pursuant to clause (2) of subsection (a) of this section, the Commissioner of Property and Procurement shall attach to the requisition stamped \\\"Public Exigency\\\" a brief but concise description of the nature of the public exigency involved.\\n31 V.I.C. \\u00a7 239(b) (emphases added).\\nThe Virgin Islands Legislature has instructed that, when interpreting the Virgin Islands Code, \\\"[w]ords and phrases shall be read with their context and shall be construed according to the common and approved usage of the English language.\\\" 1 V.I.C. \\u00a7 42. Unquestionably, only a written document can be \\\"stamped\\\" with the phrase \\\"Public Exigency.\\\" 31 V.I.C. \\u00a7 239(a), (b). Moreover, in ordinary meaning, a \\\"requisition\\\" means an \\\"act of formally requiring or calling upon someone to perform some action.\\\" Perlera v. Vining Disposal Service, Inc., 47 Mass. App. Ct. 491, 713 N.E.2d 1017, 1022 n.11 (1999) (quoting Webster's Third New International Dictionary 1929 (1993)); see also North Haven Const. Co. v. Banton Constr. Co., No. CV990427298, 2008 Conn. Super. LEXIS 2053, *23 (Conn. Super. Ct. Aug. 7, 2008) (unpublished) (\\\" 'Requisition' is commonly defined as 'a formal written request for something that is needed.' \\\" (quoting American Heritage Dictionary (2d College ed. 1985))). That the Commissioner of Property and Procurement is required by the governing Virgin Islands statutory provisions to \\\"attach\\\" a description of the public exigency is further evidence that the statute clearly contemplates that the requisition agreement between the Government and the vendor be in writing. To hold otherwise would impermissibly render that portion of the statute ineffective. Gilbert v. People, 52 V.I. 350, 356 (V.I. 2009).\\n2. Quantum Meruit\\nIn its July 12, 2013 opinion, the Superior Court also held that Vanterpool could not bring a claim for quantum meruit against the Government, relying exclusively on decisions of the Third Circuit and the District Court holding that the Government can never be sued for quantum meruit or unjust enrichment. See, e.g., Smith v. Dep't of Educ., 942 F.2d 199, 201-02, 27 V.I. 323 (3d Cir. 1991); Heyl & Patterson Int'l, Inc. v. F.D. Rich Housing, 663 F.2d 419, 432 (3d Cir. 1981); Sargeant v. Gov't of the V.I., 10 V.I. 245, 252-53 (D.V.I.. 1973). In those cases, these federal courts held that 31 V.I.C. \\u00a7 249(a), providing that \\\"[a]ny purchase order or contract executed in violation of this chapter... shall be null and ineffective,\\\" had the effect of banning quantum meruit lawsuits against the Government.\\nFirst, we note that the Superior Court properly applied pre-2007 Third Circuit precedent on Virgin Islands law issued when that court sat as the defacto court of last resort for the Virgin Islands, as it was required to do under this Court's prior precedents. Hamed v. Hamed, 63 V.I. 529, 534 (VI. 2015) (citing In re People of the V.I., 51 V.I. 374, 389 n.9 (V.I. 2009)); Defoe v. Phillip, 56 V.I. 109, 118 (V.I. 2012). Nevertheless, we note that the decisions in Smith and Heyl & Patterson did not consider whether section 249(a) is consistent with the Revised Organic Act of 1954. Thus, while the Third Circuit's interpretation of section 249(a) is \\\"entitled to great respect,\\\" Defoe, 56 V.I. at 120, we must conduct our own independent analysis to determine whether the statute should be interpreted in a way that would prohibit any and all quantum meruit claims against the Government.\\nThe Revised Organic Act, which serves as the defacto constitution for the Virgin Islands, provides that \\\"[t]he government of the Virgin Islands . . . shall have the right to sue by such name and in cases arising out of contract, to be sued.\\\" 48 U.S.C. \\u00a7 1541(b) (emphasis added). A cause of action for quantum meruit is one that sounds in contract. Cacciamani & Rover Corp. v. Banco Popular, 61 V.I. 247, 251 (V.I. 2014) (\\\"Unjust enrichment is an equitable quasi-contract cause of action.\\\"); see also Int'l Data Products Corp. v. United States, 492 F.3d 1317, 1325 (Fed. Cir. 2007) (\\\"A recovery in quantum meruit is based on an implied-in-law contract.\\\"). Importantly, numerous courts have interpreted similar \\\"sue or be sued\\\" clauses, as contained in the Revised Organic Act, as waiving immunity for quantum meruit claims. See, e.g., Bor-Son Building Corp. v. Heller, 572 F.2d 174, 178, 181 (8th Cir. 1978) (\\\"sue and be sued\\\" clause waived immunity from suit in claim for monetary relief based on quantum meruit, equitable lien, constructive trust, unjust enrichment, and joint venture); Mar v. Kleppe, 520 F.2d 867, 870 (10th Cir. 1975) (\\\"sue and be sued\\\" clause waived immunity of Administrator of Small Business Administration in suit for money damages for breach of contract and quantum meruit); White v. Bloomberg, 501 F.2d 1379, 1386 (4th Cir. 1974) (\\\"sue and be sued\\\" clause authorized suit against Postal Service for post-judgment interest). Since the Virgin Islands Legislature may not pass a statute that is inconsistent with the Revised Organic Act, see Bryan v. Fawkes, 61 V.I. 201, 230 (V.I. 2014) (citing Limtiaco v. Camacho, 549 U.S. 483, 489 n.2, 127 S. Ct. 1413, 167 L. Ed. 2d 212 (2007)), any interpretation of 31 V.I.C. \\u00a7 249(a) that would completely prohibit any quantum meruit lawsuit against the Government based on a contract that failed to meet statutory formalities would raise serious questions about the statute's validity.\\nIn any case, we need not determine whether the Government may permissibly insulate itself from quantum meruit lawsuits because section 249(a) offers no such protection. In their decisions construing section 249(a) as prohibiting quantum meruit claims against the Government, the Third Circuit and the District Court heavily emphasized that allowing a quantum meruit claim would undermine the powers of the executive and legislative branches by potentially allowing lower-level government officials to enter into quasi-contracts without proper approval. Smith, 942 F.2d at 202; Sargeant, 10 V.I. at 253. But in addition to not fully considering the waiver of immunity for cases arising in contract codified at 48 U.S.C. \\u00a7 1541(b), these courts overlooked the fact that these same policy considerations apply to claims against the federal government and potentially more so, given the proliferation of federal agencies with contracting authority. Yet the United States Court of Appeals , for the Federal Circuit \\u2014 the federal appeals court vested with jurisdiction to hear appeals from the United States Court of Federal Claims, which hears monetary claims against the federal government \\u2014 has' repeatedly permitted quantum meruit claims to proceed against the United States. Significantly, the Federal Circuit, like the Court of Claims, has held that even when a contract between a contractor and the federal government is a \\\"nullity\\\" because the contract was entered into without statutory authorization, the contractor may in some cases recover under a quantum meruit theory:\\nWe start with the proposition that the failure of a contracting officer to comply with statutory requirements in making an award renders the contract a nullity\\u2014 Administrative actions taken in violation of statutory authorization or requirement are of no effect. As the board stated, a contractor \\\"assumed the risk\\\" that an ag\\u00e9ncy \\\"had actual authority to enter into the bargain to which the parties agreed.\\\" The courts are bound to strike down illegal contracts. Thus, no damages can be awarded for \\\"breach\\\" of a nullity.\\nOn the other hand, in many circumstances it would violate good conscience to impose upon the contractor all economic loss from having entered an illegal contract. Where a benefit has been conferred by the contractor on the government in the form of goods or services, which it accepted, a contractor may recover at least on a quantum valebant or quantum meruit basis for the value of the conforming goods or services received by the government prior to the rescission of the contract for invalidity. The contractor is not compensated under the contract, but rather under an implied-in-fact contract.\\nUnited States v. Amdahl Corp., 786 F.2d 387, 392-93 (Fed. Cir. 1986) (emphasis in original) (citations omitted); see also Prestex, Inc. v. United States, 320 F.2d 367, 373 (Ct. Cl. 1963) (\\\"Even though a contract be unenforceable against the Government, because [it was] not properly advertised, not authorized, or for some other reason, it is only fair and just that the Government pay for goods delivered or services rendered and accepted under it.... No one would deny that ordinary principles of equity and justice preclude the United States from retaining the services, materials, and benefits[,] and at the same time refusing to pay for them on the ground that the contracting officer's promise was unauthorized, or unenforceable for some other rea son.\\\"). This is consistent with how courts treat contracts between private parties that are determined to be null and void after one party has already received the benefit of the bargain. See Cacciamani, 61 V.I. at 251-52; see also Fischer v. Estate of Flax, 816 A.2d 1, 11 (D.C. 2003) (holding that quantum meruit recovery may lie if a contract is deemed to be a nullity).\\nImportantly, the existence of a quantum meruit action does not have the effect of reinstating the null-and-void contract, for damages are not measured pursuant to the contract. Instead, liability is imposed only to the extent that \\\"fairness dictates that the plaintiff receive compensation for services provided.\\\" Cacciamani, 61 V.I. at 251 (internal quotation marks omitted). The Federal Circuit has reasoned that such a rule is necessary in government contracting because, while statutory procurement provisions must be honored, innocent contractors should not be punished for the failure of procurement officers to comply with the \\\"maze of statutes and regulations\\\" governing government contracts. Amdahl Corp., 786 F.2d at 395 (quoting Trilon Educ. Corp. v. United States, 578 F.2d 1356, 1360 (Ct. Cl. 1979)). Of course, a quantum meruit recovery would be disallowed if the Government came forth with evidence that the contractor knew or should have known of the contract's illegality or contributed to the statutory procedures not being followed. See Amdahl Corp., 786 F.2d at 395; Prestex Inc., 320 F.2d at 373; Schoenbrod v. United States, 410 F.2d 400, 404 (Ct. Cl. 1969).\\nGiven this substantial case law from the Federal Circuit \\u2014 the appellate court with exclusive jurisdiction over appeals relating to government contracts \\u2014 we conclude that section 249(a)'s reference to contracts that do not meet title 31's requirements as being \\\"null and ineffective\\\" should not be interpreted as a complete ban on quantum meruit claims. Federal law also provides that contracts that do not meet statutory requirements are nullities, yet the Federal Circuit has nevertheless permitted quantum meruit claims to proceed' so that innocent contractors can be compensated for the services provided under those void contracts.\\nAnd while the Third Circuit arrived at its interpretation of section 249(a) by focusing on the unfairness in an official binding the Government to an agreement without authorization, we cannot ignore that the Legislature enacted chapter 23 of title 31 of the Virgin Islands Code with the purpose of establishing \\\"an economic and efficient system for the procurement and supply of all property and non-personal services.\\\" 31 V.I.C. \\u00a7231. Were we to agree with the Superior Court and categorically deny Vanterpool any possibility of being compensated for the services performed for the Government's benefit, allegedly at the invitation of the Commissioner of Education and other high-level government officials in order to assist the Territory in reconstructing its schools and other public facilities after one of the worst natural disasters in Virgin Islands history, it would render the procurement system anything but \\\"economic and efficient\\\" going forward.\\nIf a comparable natural disaster were to devastate the Territory's infrastructure in the future, potential vendors could well decline to do business with the Government at all, or perform emergency work only if they receive a full upfront payment, given the risk that the Government may refuse to honor the promises of its officials after the work has been performed. And reconstruction efforts might be delayed while a multitude of lawyers on both sides pore through the myriad of statutes and regulations pertaining to procurement and government contracts, given that even the most minor violation of procurement statutes and regulations could cause the agreement to become completely unenforceable.\\nTherefore, we decline to interpret section 249(a) as prohibiting all quantum meruit causes of action against the Government. Accordingly, a contractor may recover in a quantum meruit action against the Government in the absence of a valid contract where the Government was enriched at a contractor's expense, the Government had knowledge of the benefit, and \\\"the circumstances were such that in equity or good conscience\\\" the Government should compensate the contractor for the services provided. Cacciamani, 61 V.I. at 251 n.2 (quoting Walters, 60 V.I. at 776). Thus, the grant of summary judgment to the Government must be reversed on the quantum meruit claim as well.\\nIII. CONCLUSION\\nThe Superior Court erred when it invoked District Court Rule 56.1 as a basis to accept the Government's statement of undisputed facts without conducting an independent review of the entire record, we reverse the grant of summary judgment, and direct the Superior Court, on remand, to conduct a proper summary judgment analysis in light of this Court's interpretation of sections 236, 239, and 249 of title 31 of the Virgin Islands Code. Accordingly, we reverse the July 12, 2013 opinion granting the Government's cross-motion for summary judgment, and vacate the September 4, 2013 opinions denying Vanterpool's post-judgment motions.\\nAlthough all of the contracts that give rise to this appeal were entered into between the Government of the Virgin Islands and Vanterpool Enterprises, the record reflects that Vanterpool Enterprises is a sole proprietorship operated by Vanterpool that lacks a separate legal existence. Thus, unless context requires otherwise, all references to Vanterpool in this opinion should also be construed as references to Vanterpool Enterprises.\\nLike 48 U.S.C. \\u00a7 1611(a), section 2 continues to provide that, in addition to the Superior Court and Supreme Court, \\\"[t]he judicial power of the Territory is vested in a court. . . designated the 'District Court of the Virgin Islands.' '4V.I.C. \\u00a7 2; see 48 U.S.C. \\u00a7 1611(a) (\\\"The judicial power of the Virgin Islands shall be vested in a court of record designated the 'District Court of the Virgin Islands.' \\\"). But as we recently explained, the language in section 1611(a) was superseded by subsequent amendments to the Revised Organic Act, and \\\"the District Court no longer exercises the judicial power of the Virgin Islands.\\\" Hodge v. Bluebeard's Castle, Inc., 62 V.I. 671, 683 n.6 (V.I.2015) (citing Edwards v. HOVENSA, LLC, 497 F.3d 355, 359-61, 49 V.I. 1133 (3d Cir. 2007)). This remains so despite the language appearing in 4 V.I.C. \\u00a7 2, since the Virgin Islands Legislature cannot expand the authority of the District Court of the Virgin Islands beyond that provided by Congress. Bryan v. Fawkes, 61 V.I. 201, 220 (V.I. 2014).\\nIn reaching this decision, we emphasize that the Presiding Judge may delegate the enforcement of a case assignment policy to other individuals, such as by directing the Clerk's Office to assign new cases at random, or pursuant to a predetermined rotation system. However, once a case has actually been assigned to a judicial officer, no individual other than the assigned judicial officer (through recusal) or the Presiding Judge (through exercise of the statutory reassignment power) may interfere with that assignment.\\nAt the time the District Court promulgated the predecessor to Superior Court Rule 7, the Superior Court was known as the Municipal Court and was a court of limited jurisdiction. Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967, 978 n.6 (V.I. 2011). The Legislature created two Municipal Courts in 1957, one for St. Croix and the other for St. Thomas-St. John, replacing the three Police Courts that had existed since 1921. Homer v. Lorillard, 6 V.I. 558, 567 (V.I. Super. Ct. 1967). The two Municipal Courts were consolidated into a single court in 1965, id., and later renamed the Territorial Court in 1976.1976 Sess. Laws 197 (Act No. 3876, \\u00a7 5). Finally, in 2004, the Legislature again redesignated the court as the Superior Court of the Virgin Islands. 2004 V.I. Sess. Laws 179 (Act No. 6687, \\u00a7 1(b)). That court has been the Territory's court of general jurisdiction in both civil and criminal cases since 1994. Hodge v. Bluebeard's Castle, Inc., 62 V.I. 671, 677-78 (V.I. 2015). We nevertheless refer to the former Municipal Court and Territorial Court by its current name to avoid confusion.\\nWe must also note that while Rule 7 was intended to make practice in Virgin Islands courts less complex, the practical application of Rule 7 requires litigants to be intimately familiar with the Superior Court Rules, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Local Rules of Civil Procedure, the Local Rules of Criminal Procedure, and every provision of the Virgin Islands Code dealing with judicial proceedings in order to know when a federal rule or District Court rule is not \\\"inconsistent\\\" with a Superior Court Rule or local statute, and therefore applies to Superior Court proceedings. The sheer volume of case law from this Court, the Superior Court, the Appellate Division of the District Court, and the Third Circuit attempting to figure out which rule applies speaks to the complications inherent in Rule 7, and underscores the fact that Rule 7 has done exactly the opposite of what it was intended to do. See, e.g., Estick v. People, 62 V.I. 604, 619 n.7 (V.I. 2015); Bryan v. Fawkes, 61 V.I. 201, 239 n.30 (V.I. 2014); Sweeney, 60 V.I. at 442-43; Joseph v. People, 60 V.I. 338, 344-50 (V.I. 2013); Fuller v. Browne, 59 V.I. 948, 953-56 (V.I. 2013); Benjamin v. People, 59 V.I. 572, 576 (V.I. 2013); DeGroot v. People, S. Ct. Civ. No. 2008-0107, 2013 V.I. Supreme LEXIS 16, *5 n.1 (V.I. Apr. 29,2013) (unpublished); Chciuk-Davis v. People, 57 V.I. 317, 324-25 (V.I. 2012); Santiago v. V.I. Housing Auth., 57 V.I. 256, 275-78 (V.I. 2012); Tindell v. People, 56 V.I. 138, 149-50 (V.I. 2012); Terrell v. Coral World, 55 V.I. 580, 590-91 & n.12 (V.I. 2011); Blyden v. People, 53 V.I. 637, 659 (V.I. 2010); Corraspe, 53 V.I. at 482; Phillips v. People, 51 V.I. 258, 273-76 (V.I. 2009); Gov't of the V.I. v. Durant, 49 V.I. 366, 373-74 (V.I. 2008); People v. Velasquez, 62 V.I. 3, 14-15 (V.I. Super. Ct. 2014); Bertrand v. Cordiner Enters., 55 V.I. 247, 254-57 (V.I. Super. Ct. 2011); In re Richards, 213 F.3d 773, 786, 42 V.I. 469 (3d Cir. 2000); Gov't of the VI. v. Greenidge, 41 V.I. 200, 208 n.5 (D.V.I. App. Div. 1998).\\nTo some extent this must be obvious; for example, Federal Rule of Criminal Procedure 1(b) defines \\\"court\\\" as \\\"a federal judge performing functions authorized by law,\\\" but this definition cannot govern when a Federal Rule of Criminal Procedure is applied through Superior Court Rule 7. Similarly, explicit references to federal statutes that have not been extended to the Virgin Islands also must be disregarded. Durant, 49 V.I. at 375-76.\\nLooking beyond the letter of District Court Rule 56.1 and into its purpose, it is clear that the enactment was modeled after a common rule adopted by more than 60 federal district courts, virtually all of which are also labelled as Rule 56.1. See Nathaniel S. Boyer, The Tail Wagging the Dog: Local Summary Judgment Rules That Deem Facts Admitted, 30 Cardozo L. Rev. 2223, 2236 n.93 (2009) (collecting rules). To the extent that adoption of many of these local rules has coincided with the implementation of CM/ECF \\u2014 the federal judiciary's case management and electronic filing system \\u2014 by federal district courts beginning in 2002, the system has been designed in a way to encourage submission of exhibits, proposed orders, and other supporting'documents as separate attachments within a single docket entry. See United States Courts, Court Records, Electronic Filing (CM/ECF), http://www.uscourts.gov/courtrecords/electronic-filing-cmecf/faqs-case-management-eIect ronic-case-files-cmecf, archived at http://perma.cc/K5AX-UA9K; DISTRICT COURT OF THE Virgin Islands, CM/ECF Most Common Docketing Errors, http://www.vid.uscourts.gov/ sites/vid/files/dc_ecf_IO_common_ecf_errors.pdf, archived at http://perma.cc/UTZ8-EJNF (identifying the failure to upload supporting documents as separate documents attached to a single docket entry as a common error). \\\"For each case filed in the [CM/ECF] system, a table appears which organizes the case documents and orders, among other things, in an organized manner.\\\" Vargas Torres v. Toledo, 672 F. Supp. 2d 261, 263 n.2 (D.P.R. 2009). Therefore, while District Court Rule 56.1' s separate document requirement serves a useful function in the District Court, it serves no practical'purpose in the Superior Court, given that the Superior Court does not use CM/ECF \\u2014 or any electronic filing system for that matter \\u2014 and instead only accepts paper copies of filings. Thus, there is no legitimate reason to extend District Court Rule 56.1 to proceedings in the Superior Court. Citibank, N.A., 44 V.I. at 94.\\nAt the time of the Citibank decision, District Court Rule 56.1 prohibited a party from filing a summary judgment motion directly with the court, and instead required the party seeking summary judgment to send a copy of its motion to the other parties and to \\\"file only the notice of motion with the Clerk.\\\" 44 V.I. at 93. The party moving for summary judgment was expected to await responses from the other parties, and then file the motion, opposition, and any other filings at the same time, along with a cover letter stating that the motion had been circulated to all the parties and was ready for submission to the court. Id. at 93-94.\\nEffective December 1, 2010, Federal Rule of Civil Procedure 56 was rewritten substantially to incorporate some \\u2014 but not all \\u2014 aspects of local rules similar to District Court Rule 56.1. Nevertheless, this Court's Martin decision, which adopted the standard contained in a prior version of the rule, remains controlling in Virgin Islands courts. Estick, 62 V.I. at 619 n.7; Sweeney, 60 V.I. at 442 (\\\"[Tjhe Federal Rules of Civil Procedure . should represent rules of last resort rather than first resort, and should be invoked only when a thorough review of applicable Virgin Islands statutes, Superior Court rules, and precedents from this Court reveals the absence of any other [applicable] procedure.\\\" (emphasis added)).\\nSee State v. DeJesus, 288 Conn. 418, 953 A.2d 45, 59 (2009) (recognizing the inherent power of a jurisdiction's court of last resort to \\\"develop and change [the] rules of evidence on a case-by-case basis\\\").\\nAs noted above, in holding that the Superior Court erred when it applied District Court Rule 56.1 to this case, we do not reach the question of whether Superior Court Rule 7 represents an unlawful delegation of power to the United States District Court and other entities outside of the Virgin Islands Judiciary. See Percival, 62 V.I. at 486 n.1; accord Frett v. People, 58 V.I. 492, 504 n.11 (V.I. 2013).\\nIn its opinion, the Superior Court also held that a contract labelled as a public-exigency contract does not eliminate section 234's requirement that all purchase orders made by a department or agency be approved by written order of the Commissioner of Property and Procurement, implying that Vanterpool's contracts with the Government were purchase orders. However, a \\\"purchase order\\\" is not the same as a \\\"purchase,\\\" in that a \\\"purchase\\\" is \\\"[t]he act or an instance of buying,\\\" while a \\\"purchase order\\\" is \\\"[a] document authorizing a seller to deliver goods with payment to be made later.\\\" Black's Law Dictionary 1270 (8th ed. 2004) (emphasis added); see also Olympic, Inc. v. Providence Wash. Ins. Co. of Alaska, 648 P.2d 1008, 1013 n.9 (Alaska 1982) (rejecting argument that a \\\"purchase order\\\" can be a lease agreement); Abbate v. Basser-Kaufman Management Corp., 32 Misc. 3d 1212(A), 930 N.Y.S.2d 173 (2011) (unpublished) (stating that a \\\"purchase order... should be used for goods and not services,\\\" and that a contract for flooring installation \\\"should not really be titled 'Purchase Order' \\\"). Since the contracts between Vanterpool and the Government called for Vanterpool to make repairs to CAHS and the Muller School, we question the Superior Court's application of section 234 to this case. Nevertheless, as we shall explain, any error in this regard is harmless, since section 239 provides a role for the Commissioner of Property and Procurement with respect to all purchases, rather than only purchase orders.\\nBecause we decline to scour through the record to determine whether any disputed issues of material fact may exist so as to preclude summary judgment, our holding that section 239(b) requires that public-exigency contracts entered into pursuant to section 239(a)(2) be in writing should not be construed as an endorsement of the Superior Court's decision to grant the Government's cross-motion for summary judgment on Vanterpool's breach-of-contract claim. On remand, the Superior Court must independently examine the record to determine whether summary judgment is appropriate based on our interpretation of the pertinent statutes.\\nIn reaching this decision, we emphasize that the pertinent language of section 239(b) applies to public-exigency contracts as provided for in section 239(a)(2). However, we note that section 239(a)(4) exempts from the requirements of section 236 all contracts for \\\"professional services; provided that such services shall be procured by competitive negotiation, wherever practical.\\\" 31 V.I.C. \\u00a7 239(a)(4). Because Vanterpool has not asserted that his construction contracts are contracts for professional services under section 239(a)(4), we express no opinion as to whether a professional services contract is exempt from section 236's writing requirement.\\nAs we have previously explained, the terms \\\"quantum meruit\\\" and \\\"unjust enrichment\\\" refer to the same cause of action, which is available where there is no enforceable contract, but it is alleged that \\\"the defendant 'receive[sj something of value to which he is not entitled and which he should restore' to the plaintiff.\\\" Walters v. Walters, 60 V.I. 768, 776 (V.I. 2014) (quoting Maso v. Morales, 57 V.I. 627, 635 n.9 (V.I. 2012)); see also Cacciamani & Rover Corp. v. Banco Popular, 61 V.I. 247, 252 (V.I. 2014) (\\\"[A] claim for unjust enrichment cannot stand where an express contractual agreement exists between the parties.\\\").\\nIn fact, the property damage caused by Hurricane Marilyn was so extensive that \\\"five months after the hurricane, many low-income residents of St. Thomas were still living in emergency shelters or in condemned homes.\\\" Hawksbill Sea Turtle v. Federal Emergency Mgmt. Auth., 126 F.3d 461, 466, 37 V.I. 526 (3d Cir. 1997).\\nIt bears emphasizing that we only hold that a quantum meruit claim against the Government is not barred from proceeding as a matter of law, and make no comment on the merits of Vanterpool's claims in this case. We leave it to the Superior Court to determine on remand whether Vanterpool submitted sufficient evidence at summary judgment to create a genuine issue of material fact on the elements of his quantum meruit claim. And, as stated earlier, this action must fail if Vanterpool knew or should have known that the contract was illegal, if he contributed to the violation of the statutory contracting procedures, or the contract involved any form of fraud or collusion. See Amdahl Corp., 786 F.2d at 395 (emphasizing that the \\\"goal [of a quantum meruit action against the government] was to protect innocent contractors\\\" (emphasis added)).\\nIn its cross-motion for summary judgment, the Government also argued that Vanterpool's claims are all barred under the statute of limitations. The Superior Court, however, never addressed the Government's statute-of-limitations argumentinits July 12,2013 opinion, and the Government has not addressed the statute-of-limitations issue in its appellate brief or requested that this Court affirm the Superior Court on that alternate ground. Therefore, we do not address the statute-of-limitations issue as part of this appeal. United Corp., 55 V.I. at 720 n.16. Nevertheless, we note that this Court has previously held that the statute of limitations on a cause of action begins to run from the date the cause of action accrued, which ordinarily is the date upon \\\"occurrence of the essential facts that give rise to that cause of action.\\\" Anthony v. FirstBank V.I., 58 V.I. 224, 230 (V.I. 2013) (quoting Burton v. First Bank of P.R., 49 V.I. 16, 20 (V.I. Super. Ct. 2007)); see also Sunoco, Inc. (R&M)v. 175-33 Horace Harding Realty Corp., 969 F. Supp. 2d 297, 304 (E.D.N.Y. 2013) (\\\"[A] cause of action for breach of contract did not accrue until . the Defendant refused to pay.\\\"); Olson v. Rugloski, 277 N.W.2d 385, 387-88 (Minn. 1979) (stating that a contract is breached when a party \\\"refuses to pay or unreasonably delays payment of an undisputed amount\\\"). These principles apply in quantum meruit cases as well. See, e.g., Zic v. Italian Gov't Travel Office, 149 F. Supp. 2d 473, 476 (N.D. Ill. 2001) (citing Rohter v. Passarella, 246 Ill. App. 3d 860, 617 N.E.2d 46,52 (1993)) (quantum meruit \\\"cause of action accrues upon presentment and subsequent rejection of a bill for services \\\"); Maglica v. Maglica, 66 Cal. App. 4th 442, 78 Cal. Rptr. 2d 101,106-08 (1998) (when the statute of limitations begins to run depends upon the nature of the parties' relationship and expectations as to when compensation would be due); Generation Partners, LP v. Mandell, 2011 Conn. Super. LEXIS 1913, at *10 (Conn. Super. Ct. July 22,2011) (statute of limitations began to run on claims of quantum meruit and unjust enrichment when defendants refused demand for payment, as this was \\\"the earliest point in time that the plaintiffs could have suffered an injury\\\").\"}"
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+"{\"id\": \"745269\", \"name\": \"NEWFOUND MANAGEMENT CORPORATION, GENERAL PARTNER OF NEWFOUND LIMITED PARTNERSHIP, Plaintiff, v. IRVIN A. SEWER, CEDRIC LEWIS, LUCINDA ANTHONY, EARLE SEWER, VIOLET SEWER, JASMINE SEWER, LOREL SEWER, JUDITH CALLWOOD, LEON CALLWOOD, LORNE CALLWOOD, and PERSONS UNKNOWN WHO HAVE ATTEMPTED TO OBSTRUCT CONSTRUCTION WORK ON PLAINTIFF'S LAND, Defendants\", \"name_abbreviation\": \"Newfound Management Corp. v. Sewer\", \"decision_date\": \"1999-01-19\", \"docket_number\": \"Civ. No. 91-315\", \"first_page\": 335, \"last_page\": \"361\", \"citations\": \"40 V.I. 335\", \"volume\": \"40\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T23:55:35.150213+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"NEWFOUND MANAGEMENT CORPORATION, GENERAL PARTNER OF NEWFOUND LIMITED PARTNERSHIP, Plaintiff, v. IRVIN A. SEWER, CEDRIC LEWIS, LUCINDA ANTHONY, EARLE SEWER, VIOLET SEWER, JASMINE SEWER, LOREL SEWER, JUDITH CALLWOOD, LEON CALLWOOD, LORNE CALLWOOD, and PERSONS UNKNOWN WHO HAVE ATTEMPTED TO OBSTRUCT CONSTRUCTION WORK ON PLAINTIFF\\u2019S LAND, Defendants.\", \"head_matter\": \"NEWFOUND MANAGEMENT CORPORATION, GENERAL PARTNER OF NEWFOUND LIMITED PARTNERSHIP, Plaintiff, v. IRVIN A. SEWER, CEDRIC LEWIS, LUCINDA ANTHONY, EARLE SEWER, VIOLET SEWER, JASMINE SEWER, LOREL SEWER, JUDITH CALLWOOD, LEON CALLWOOD, LORNE CALLWOOD, and PERSONS UNKNOWN WHO HAVE ATTEMPTED TO OBSTRUCT CONSTRUCTION WORK ON PLAINTIFF\\u2019S LAND, Defendants.\\nCiv. No. 91-315\\nDistrict Court of the Virgin Islands Division of St. Thomas and St. John\\nJanuary 19, 1999\\nAlan Garber, Esq., Clair A. Carlson, Jr., Esq., Mason & Martin, Boston, MA., Attorneys for Plaintiffs\\nRobert L. King, Esq., St. Thomas, U.S.V.I., for Newfound Management Corporation, Plaintiff\\nGeorge Marshal Miller, Esq., St. Thomas, U.S.V.I.,/or defendant Irvin A. Sewer\\nMario Bryan, Esq., St. Thomas, U.S.V.I., for defendant Cedrick Lewis, Administrator the Estate of Bernard Williams\\nBenjamin A. Currence, Esq., St. Thomas, U.S.V.I., for defendant Cederick Lewis\", \"word_count\": \"8320\", \"char_count\": \"51499\", \"text\": \"BROTMAN, United States District Judge\\nI. INTRODUCTION\\nA complete discussion of the background of this case is set forth in Newfound Management Corporation, General Partner of Newfound Limited Partnership v. Sewer, et al., 885 F. Supp. 727 (D.V.I. 1995) (the 1995 Opinion/ and should be referred to where relevant.\\nThe underlying issues concerning the boundaries and title to various parcels of property on the East End including the quieting of title of Parcel 6p and Parcel 7a, Estate Hansen Bay, East End Quarter, St. John, U.S. Virgin Islands, were tried to the bench pursuant to V.I. Code Ann. tit. 28 \\u00a7 372 from October 3 to October 5, 1994. The remaining issues included actions in trespass, libel, slander, slander of title, intentional interference with business relations and permanent injunction which were reserved for jury-trial once a determination was made by the Court as to boundaries and title. On March 27, 1995, this Court rendered its decision regarding the disputed land. However, as to Parcels 6p and 7a, the Court could not determine the boundaries, and therefore directed that a survey be obtained of these parcels. See 1995 Opinion at 771-772. The Defendants appealed this decision to the Third Circuit.\\nWhile the Defendants appeal was still pending in June of 1996, the parties, pursuant to a settlement agreement, provided that in the event the Third Circuit affirmed this Court's decision and order of March 27, 1995, the plaintiff would withdraw its tort claims against the defendants and the defendants would relinquish to the plaintiff their ownership interest in parcels 6f and 6p. Deeds for 6p and 6f were placed in escrow with an appropriate release of the reserved claims. It was also agreed that the preliminary injunction that was entered in September of 1991 would be continued until modified by the Court. On October 3, 1996 in accordance with the agreement, this Court ordered a Certification of Final Judgment pursuant to Fed. R. Civ. P. 54(b) of the March 27, 1995 Order.\\nSubsequently, the Third Circuit, on November 12,1997, affirmed this Court's opinion, remanding to this Court for further proceedings, including Newfound's application for a permanent injunction and completion of the survey of parcels 6p and 7a. The Circuit Court also ordered the Court to give full effect to the waiver of claims set out in the October 3, 1996 order and the Waiver of Damage Claims dated July 3, 1997. See Newfound Management Corporation, General Partner of Newfound Limited Partnership v. Cedrick Lewis, et al., 37 V.I. 612, 131 F.3d 108 (3d Cir. 1997)\\nThis Court in compliance with the remand will now determine: (1) the validity of the Survey for Parcels 6p and 7a which includes Defendant's Motion to Reject Survey Map No. 1919 (i.e. Exhibit 1); and (2) Plaintiff's Motion for Permanent Injunction. In addition, the Court will also determine Plaintiff's Motion to File an Amended Complaint and Plaintiff's Motion for Counsel Fees. A hearing was held on November 5, 1998 on these issues.\\nPART ONE: THE SURVEY\\nI. INTRODUCTION\\nAfter a careful, detailed review of the entire record, including expert testimony, exhibits presented by the parties, and argument of all counsel and defendants Sewer and Lewis individually, the Court enters the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.\\nn. FINDINGS OF FACT\\nA. THE SURVEY\\n1. Harry Gauriloff (\\\"Gauriloff\\\") is a registered land surveyor in St. Thomas, United States Virgin Islands, experienced in surveying land on the East End of St. John. He has been a land surveyor for approximately 15 years and has been a licensed surveyor in the Virgin Islands for the past 8 years. See Hearing on Motions dated November 5, 1998 (\\\"Hearing on Motions\\\"), Tr. 8.13 - 10.2. He commenced his employment with Marvin Berning (\\\"Berning\\\") in 1991, working with him for four years before Berning retired. Berning had nearly thirty years of experience, surveying the East End of Saint John. See 1995 Opinion at 752. At Berning's retirement in August 1995, Gauriloff purchased Berning's business, including all of its records and has continued to operate the company under the name Marvin Berning and Associates. See Hearing on Motions, Tr. 10.3 - 10.18.\\n2. Gauriloff traveled to the East End of St. John on five (5) occasions in 1998, spending approximately 40 hours on site to survey the boundaries of Parcels 6p and 7a. He was assisted in the survey of these parcels by his field crew which spent additional time on site. Gauriloff also spent approximately 40 hours in his office preparing the survey map of these parcels. See Hearing on Motions, Tr. 11.9 - 13.4.\\n3. The Gauriloff survey of Parcels 6p and 7a, is dated July 11, 1998 and is designated as a survey of Parcels 6p Rem., 7a & 7c, Estate of Hansen Bay A, East End Quarter, St. John, U.S.V.I. See Exhibit l.\\n4. Defendants submitted no surveys of their own, nor did they produce any expert to testify to refute the Gauriloff survey, identified as Exhibit 1.\\nB. PARCEL 6p\\n1. The northern boundary of Parcel 6p is also the southern boundary of Parcel 6f as shown on Public Survey No. G9-1668-T70 (Exhibit 172*). The northern boundary of Parcel 6p is in accordance with Public Survey No. G9-1668-T70 (Exhibit 172*). See Exhibit 1 and Hearing on Motions, Tr. 19.5-19.18.\\n2. Traveling counterclockwise on Exhibit 1, the northwestern boundary of Parcel 6p runs along the mean high water line of Long Bay to Point A, established at south 45 degrees, 45 minutes, 50 seconds west, of the George-Sewer Line (the \\\"George-Sewer Line\\\") as set forth in Exhibit 1. See Exhibit 1 and Hearing on Motions, Tr. 19.20-19.24.\\n3. The southwestern boundary of Parcel 6p forms the newly created A-B portion of the George- Sewer Line. This segment was located through fence lines and bound posts which follow the ridge line toward the sea and honors the boundaries of the existing subdivision in Parcel 7B Water Rock specifically Parcels 3-1, 3-6, 3-19, 3-13, 3-12, and 3-14 as indicated in the 1995 Opinion. See 1995 Opinion at 771-2. It also honors the boundaries of Parcel 6p-l which are shown on Public Survey No.D9-5293-T92 (Exhibit 41*) as being established by adverse possession in the Eric Christian litigation (District Court of the Virgin Islands Probate No. 398/1980). See Exhibit 1 and Hearing on Motions, Tr. 20.4-20.20; 21.15-21.23.\\n4. The southern boundary of Parcel 6p follows a portion of the George-Sewer Line running from Point B towards Point C as determined in the 1995 Opinion. See 1995 Opinion at 754-5. See Hearing on Motions, Tr. 22.2.-22.5. The southern boundary of Parcel 6p is also the northern boundary of Parcel 7a. It also follows old fence lines and the ridge line. See Exhibit 1 and Hearing on Motions, Tr. 22.9-22.18.\\n5. The eastern boundary of Parcel 6p follows fence lines running northward up to a tamarind tree, which forms the southeasterly corner of Parcel 6f. The fence line is determined to be the boundary line and is consistent with an unrecorded survey performed for an unrelated party with respect to a parcel of land located to the east of Parcel 6p which is identified on Exhibit 1 as \\\"A Portion of Remainder 6A # 6 Estate Hansen Bay A.\\\" See Exhibit 1 and Hearing on Motions, Tr. 22.6 - 22.14.\\n6. Parcel 6p consists of 7.01 acres of land, as shown on Exhibit 1, designated as \\\"Parcel 6p Rem. Long Bay # 2.\\\"\\nC. PARCEL 7a\\n1. The northern boundary of Parcel 7a is the southern boundary of Parcel 6p and runs along an old fence line and ridge line. The northern boundary follows a portion of the George-Sewer Line running from Point B towards Point C as set forth in Exhibit 1, consistent with the 1995 Opinion. See Exhibit 1 and 1995 Opinion at 754-5.\\n2. Running counterclockwise on Exhibit 1, the northwestern boundary of Parcel 7a begins at Point B and runs to the sea. This boundary accounts for Floyd George's southeastern boundary of Parcel No. 3 and does not disturb the boundaries of Parcels 3-14,3-15,3-20 and Rem PCL # 3 in Parcel 7B, Water Rock. See 1995 Opinion at 117. The boundary line initially runs from Point B following a ridge line to the southwest where old pieces of fence were located. The boundary line then diverges and follows the bound posts set for Parcel 3. The northwestern boundary of Parcel 7a has been located and surveyed consis tent with the 1995 Opinion. See 1995 Opinion at 744-5; Exhibit 1; and Hearing on Motions, Tr. 22.21-23.15.\\n3. The western boundary of Parcel 7a was located as following the shoreline of Pond Bay. See Exhibit 1 and Hearing on Motions, Tr. 23.16-24.1.\\n4. The southern boundary of Parcel 7a splits Southside Pond in half. Property north of this boundary line lies within Parcel 7a, while property to the south represents land owned by the Stevens family. See Exhibit 1 and Hearing on Motions, Tr. 24.2 - 25.18.\\n5. The eastern boundary line of Parcel 7a follows a fence line which begins at a fence post on the eastern side of Southside Pond and continues northerly to an intersecting fence line at the northwestern boundary of the fenced-in portion of Parcel 7c (Well Site). The eastern boundary of Parcel 7a continues northerly until it meets the B-C portion of the George-Sewer Line. In locating this boundary it was necessary to survey Parcel 7c, a parcel known to consist of approximately 4 3/4 acres according to the 1894 deed of Parcel 6C (renamed Parcel 7c in the 1913 Agreement - Exhibits 16* and 173*) to Martin Sewer recorded at book U, Page 157, No. 1 (Exhibit 43*). See Exhibit 1 and Hearing on Motions, Tr. 25.19 - 25.25.\\n6. Parcel 7a consists of 9.47+\\u2014 acres of land and a 5.2+\\u2014 acre portion of Southside Pond, as shown on Exhibit 1.\\nHI. CONCLUSIONS OF LAW\\nA. EXHIBITS\\nDefendant Sewer argues that Gauriloff's survey should be rejected because \\\"Plaintiff merely marked its exhibits, including Mr. Gauriloff's survey, but never introduced them into evidence. They were never admitted into evidence.\\\" Memorandum of De fendant Irvin A. Sewer Re: Acceptance or Rejection of Survey ( \\\"Defendant's Memo.\\\") at 1. Sewer cites no legal support for this proposition. Plaintiff's exhibits 1,2, and 199* of the 1995 Opinion were identified in the hearing, but were not formally admitted into evidence. Defendant's attorney, George Marshall Miller (\\\"Miller\\\") objected to the introduction of Exhibit 1, requesting to voir dire Gauriloff on the exhibit. See Hearing on Motions, Tr. 14.22. The Court, however, overruled this objection, stating that Miller could cross-examine Gauriloff on the exhibit after direct examination was completed. See Id. at 15.10-15.15. Consequently, after Gauriloff's direct examination, Miller was given the opportunity to cross-examine the witness. See Id. at 29.20-48.6.\\nIn United States v. Barrett, 111 F.3d 947, 324 U.S. App. D.C. 188 (D.C. Cir. 1997), the Court of Appeals for the District of Columbia Circuit found that where exhibits were never formally admitted into evidence but only marked for identification and treated as if admitted into evidence, they are deemed admitted. Id. at 951; 324 U.S. App. D.C. at 192. Likewise, in the instant action, notwithstanding Miller's objection to the first exhibit and its subsequent overruling, all exhibits were identified and treated as if admitted into evidence. Miller himself utilizes the exhibits and treats them accordingly. For example, Miller states that \\\"and when you made your survey, which is represented by Exhibits 1 and 2, you in fact did Hearing on Motions, Tr. 38.1 - 38.2; see also, e.g. Hearing on Motions, Tr. 36.14 36.15; Hearing on Motions, Tr. 36.4-36.5. Therefore, this Court shall treat these Plaintiff's exhibits as admitted into evidence.\\nB. GAURILOFF AS EXPERT WITNESS\\nDefendant also argues that Plaintiff's survey should be rejected because \\\"nowhere in the transcript does it appear that Plaintiff ever tendered or offered Mr. Gauriloff as an expert witness.' Defendant's Memo, at p. 1. Again, Defendant offers no legal support for this proposition.\\nPlaintiff's counsel, Alan Garber, questioned Gauriloff on his experience as a surveyor. For example, Garber asked Gauriloff to \\\"tell the Court briefly your educational background. . . .\\\" Hearing on Motions, Tr. 9.6 - 9.7. Garber also asked Gauriloff to describe his \\\"familiarity with the East End of St. John. . . .\\\" Id. at 9.16-9.18. Furthermore, Gauriloff testified that he had previously been an expert witness in court. See Id. at 10.19 - 10.21. Defendants did not at any time object to Gauriloff's testifying as an expert who surveyed the land in question. In fact, Defendant Sewer's attorney asked Gauriloff if he would agree \\\"that it's standard practice, or customary for a surveyor, before starting a survey, to inform the adjoining land owners. . . .\\\" Id. at 37.21 - 37.24. Such a question would not be posed to a non-expert in the field of surveying.\\nRule 702 provides:\\nIf scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.\\nFed. R. Evid. 702. In United States v. Vastola, et al., 899 F.2d 211 (3d Cir. 1990), vacated on other grounds by, 497 U.S. 1001, 110 S. Ct. 3233, 111 L. Ed. 2d 744 (1990), the Third Circuit stated that \\\"Rule 702 does not condition the admissibility of expert testimony on the proponent's incantation of any particular phrases.\\\" Id. 899 F.2d at 234. In Vast\\u00f3la, the prosecutor had not formally moved to have a witness admitted as an expert. Id. In the instant action, Defendant has raised the same issue. This Court finds Gauriloff's testimony properly admitted under Rule 702.\\nC. THE SURVEY OF PARCELS 6P AND 7A\\nThe Court proceeds to a consideration of the survey of the two parcels, 6p and 7a as directed by the Third Circuit. This analysis follows the law and protocol in the 1995 Opinion in bringing finality to the boundaries of the parcels involved.\\n1. SURVEYING ON THE EAST END\\nThe Court turns its attention to the survey marked as Exhibit 1 prepared and presented by Plaintiff's expert witness Gauriloff.\\na. DISCUSSIONS WITH INFORMED PARTIES\\nDefendant Sewer argues that notice to adjacent and interested landowners was insufficient. He states that \\\"there is nothing to corroborate [Gauriloff's] self-serving testimony that he 'mailed letters to them all.\\\" Despite this contention, Sewer has provided no evidence negating Gauriloff's testimony that he went \\\"to the Recorder of Deeds' Office and . . . got as many addresses of the adjoining owners as we could, and we mailed letters to them all.\\\" Hearing on Motions, Tr. 38.5-38.8. Furthermore, the physical survey was completed in June of 1998. See Hearings on Motions, Tr. 6.7-24-67.25. Exhibit DIB is a letter dated February 24,1998 requesting Louise Sewer to provide input regarding the land. Defendant contends that this letter was not postmarked until March 26, 1998, eleven (11) days after the notification of input deadline. See Defendant's Memo, at 3. Even if notification took place after the letter's stated deadline, the mailing still occurred before the survey was completed. All or any recipients could have contacted Gauriloff. Finally, Sewer corresponded with Plaintiff via mail several times. During examination, Gauriloff agreed with the statement that he had invited Sewer \\\"at one point to come in and discuss boundary lines. . . .\\\" Hearings on Motions, Tr. 68.8 - 68.10. In addition, Gauriloff reviewed and relied upon this Court's 1995 Opinion that discussed historical suggestions by interested parties. The Court finds that Gauriloff made a reasonable attempt to contact interested parties, and that no input was made regarding the survey is not sufficient to affect the Court's regard of Gauriloff's findings.\\nb. PARCELS 6p and 7a\\nDefendant Sewer makes several objections to the proposed survey created by Gauriloff (Exhibit 1). Defendant had access to Gauriloff's findings prior to the hearing and, despite this, chose not to hire an independent surveyor to survey the area. First, Sewer argues that the survey was based on the erroneous assumption that the Court in its March 27, 1995 opinion, determined the location of the A-B segment of the George-Sewer line. See Hearing on Motions, Tr. 31.11 - 33.2. This contention, however, is not accurate. Gauriloff testifies that unlike the rejected A-B segment created by the prior surveyor Beming, Gauriloff's A-B line follows 'the ridge line, and it abuts the existing survey of George that was done on Water Rock.' Hearing on Motions, Tr. at 78.15 - 79.10. In addition, Gauriloff testified that \\\"Berning stated he never surveyed the line. But I physically did.\\\" Id. at 79.9 - 79.10. Given that Defendant offers no affirmative evidence demonstrating another surveyor who has surveyed the land and would come to a different conclusion, and given that Gauriloff has testified as a competent surveyor with satisfactory technique, this Court accepts his placement of the A-B line.\\nMoreover, although Gauriloff's Point A does not correspond to Anderson's point A, the Court in its 1995 Opinion did not decide to accept Andersen's point A as the beginning of the George-Sewer line. In fact the 1995 Opinion notes repeatedly that Anderson's map created in 1893 was only a rough sketch that did not fully measure the land or detail its description. See, e.g. 1995 Opinion at 733, 751. Gauriloff had reviewed the Andersen map, but decided, based upon his survey, that his survey of the land followed the Court's instructions in the 1995 Opinion to \\\"identify and acknowledge the boundaries of adjacent parcels.\\\" 1995 Opinion at 771. This Court accepts Gauriloff's determination of point A.\\nNext, Defendant Sewer argues that point B on Gauriloff's survey is incorrect because he relied upon Berning's survey in determining the A-B segment of the George-Sewer line. Defendant's Memo, at 2. Despite this contention, the 1995 Opinion found the B-C-D segment was valid, so that point B was satisfactory to the Court. See 1995 Opinion at 754. It was the depiction prior to Point B that the Court had rejected. Therefore, Gauriloff's determination of Point B is accepted by the Court.\\nDefendant Sewer further charges Gauriloff with guessing as to the location of boundaries. Sewer's attorney Miller examined Gauriloff, asking \\\"you said the boundary in blue maybe followed the natural gut, but you're just guessing is that correct?\\\" Hearing on Motions, Tr. 70.11 - 70.13 Gauriloff, however, is a trained surveyor with over eight years of experience in St. John. See id. at 9.15. Gauriloff's survey is based on several days he spent surveying the area with a crew. He testifies that he \\\"visited the site five times\\\" for the purpose of this survey. Id. at 11.15. Although Defendant is quick to call Gauriloff's survey an endeavor in guessing, Sewer and the other defendants have not produced a survey of their own. Based on Gauriloff's technique, depiction, and testimony, this Court finds Gauriloff's survey to be well-founded and not in danger of being labeled as guess-work.\\nNext, Defendant points to Gauriloff's division of Southside Pond as contravening this Court's 1995 opinion. It is true that in the 1995 Opinion, the Court states that \\\"according to Harry Sewer's reported statements, the pond was historically split in two, with the western portion belonging to parcel 7a, and tire eastern parcel belonging to parcel 7d.\\\" 1995 Opinion at 744. Notwithstanding this historical division, the Court had not fixed the boundaries of either 7a or 7d. Gauriloff has determined through his survey that the pond had been split upon a north/south axis, \\\"there would be no way - the land would not be able to be subdivided, the remainder, for the heirs of the family.\\\" Hearings on Motions, Tr. 25.1 - 25.3. Given that the defendants have not offered expert testimony to controvert this statement, and based on Gauriloff's expertise in surveying, the Court accepts Gauriloff's division.\\nSimilarly, the Court accepts Gauriloff's survey indicating that 6p constitutes 7.01 acres, more or less. The area in question was not previously surveyed for purposes of the 1995 Opinion. It now has been. Any description of Parcel 6p as approximately four acres, as in the 1994 Stipulation for Entry of Consent Judgment, was included to further identify the parcel, not to define its size or boundaries. The 1995 Opinion orders the survey of the parcel, acknowledging that 6p had yet to be properly surveyed prior to that time. See 1995 Opinion at 116.\\nIV. CONCLUSION\\nFor the reasons stated above, Defendant's Motion to Reject the Survey is denied. In addition, this Court accepts and approves Gauriloff's location and boundaries of parcels 6p and 7a with his findings as reflected in Exhibit 1.\\nThe hotly contested issues of title, location, and boundaries have been decided. This Court and the Third Circuit have now brought finality to these questions, binding all parties accordingly. This Court will, however, continue to maintain jurisdiction over this case.\\nPART II: THE PERMANENT INJUNCTION\\nI. INTRODUCTION\\nPlaintiff seeks a permanent injunction restraining Defendants Irvin A. Sewer, Lucinda Anthony, Earle Sewer, Violet Sewer Mahabir, Jasmine Sewer, Lorel Sewer, Judith Callwood, Leon Callwood, and Cedric Lewis (collectively \\\"Defendants\\\") from certain actions. A preliminary injunction was agreed to by both parties and entered in this matter on September 30, 1991, restraining Defendants from:\\n(1) interfering with Plaintiff's contractors and agents in the construction of Plaintiff's road upon Plaintiff's property, Parcels 6-0, 6-0-1, 6-0-2, 6Y, and 6Z Estate Hansen Bay, East End Quarter, St. John, USVI, and in the marketing and sale of lots by Plaintiff from these properties; and\\n(2) from publishing defamatory statements about Plaintiff's title to its property and about Plaintiff's business operations.\\nSee Stipulation and Order Re: Preliminary Injunction (\\\"Preliminary Injunction\\\") at 2. The Preliminary Injunction was continued pursuant to the Settlement Agreement of June 24,1996. See Settlement Agreement of June 24, 1996 at 3.19 -3.22.\\nAt the time the preliminary injunction was entered, title, location, and boundaries of the parcels were in dispute. In addition, Plaintiff's allegations charged the defendants with trespass, vandalism, harassment, threats, coercion, attempted obstruction of construction work upon Plaintiff's land, slander, and libel. See Complaint Generally. The defendants denied trespass and all allegations, predicating their defense on their understanding that they, and not the plaintiffs, were the titleholders of the relevant parcels. See Answer Generally. The preliminary injunction put the complicated case into perspective. Before any consideration of the tort allegations, the title, location, and boundaries had to be determined. These above title and boundary issues have been now determined, and Plaintiff seeks a permanent injunction.\\nH. THE PROPOSED ORDER\\nNewfound's draft injunctive order proposes seven actions from which Defendants should be enjoined. Newfound urges that this Court prohibit the Defendants:\\n1. From directly or indirectly interfering with Plaintiff's contractors and agents engaged in and involved with construction of the road and underground utilities upon property owned by Newfound Limited Partnership and its successors in interest (collectively \\\"Newfound\\\") consisting of Parcels 6-0, 6-0-1, 6i-0-2, 6f, 6Y and 6Z, Estate Hansen Bay A., No. 6 East End Quarter, St. John, U.S. Virgin Islands, as shown on surveys filed as P.W.D. No. G9-1667-T70 submitted as Plaintiff's Exhibit 125* (Parcel 6-0), P.W.D. No. D9-4313-T88 (Parcel 6-0-1), P.W.D. No. D9-4848-T89 (Parcel 6-0-2), P.W.D. No. G9-1668-T70 (Parcel 6f), P.WD. No. B9-425-T74 (Parcel 6Y) and P.WD. No. B9-243-T69 (Parcel 6Z) (collectively the \\\"Newfound Property\\\");\\n2. From directly or indirectly interfering with Plaintiff's employees, consultants and agents engaged in and involved with the marketing and sale of house lots divided out of the Newfound Property;\\n3. From directly or indirectly making verbal or written defamatory statements about the title to the Newfound Property and about Plaintiff's business operations;\\n4. From directly or indirectly asserting claims or ownership interest in any portion of Newfound Property;\\n5. From asserting in proceedings before the Virgin Islands Department of Planning and Natural Resources, the Coastal Zone Management Commission, the Committee on Planning and Environmental Protection and the Legislature, in any newspaper or in any other forum or to any other persons that Newfound does not own the Newfound Property, or, more specifically, that Newfound does not own its dock and the beachfront portion to the mean high watermark of Parcel 6-0 (Longbay No.l), Estate Hansen Bay A., No. 6 East End Quarter, St. John, U.S. Virgin Islands, as shown on the plan prepared by V.I. Engineering and Surveying, Inc. filed as P.W.D. No. G9-1667-T70;\\n6. From directly or indirectly asserting by way of pleading, correspondence or oral argument in the action entitled Emanual Sewer v. Heirs of James Herbert Stevens, et al., Territorial Court of the Virgin Islands Civil No. 537/1988, or in any other legal proceeding or forum that (i) the location of the B-C-D segment of the dividing line between the land belonging to the heirs of William Henry George and the land belonging to the heirs of Eve Marie Sewer as described in the 1894 Agreement recorded with the Office of the Recorder of Deeds at Book U. Page 183, No. 3 (the \\\"George-Sewer line\\\") is otherwise than as drawn by Marvin Berning, Surveyor, and attached as Appendix A to the Opinion of this Court dated March 27, 1995, (ii) the location and boundaries of Parcel 6Y are otherwise than as shown on the survey filed as P.W.D. No. B9-425-T74, and (iii) the location and boundaries of any portions of the Newfound Property are otherwise than as set forth in this Court's Opinion and Order dated March 27, 1995; and\\n7. From writing letters to the editor, publishing newspaper articles, preparing correspondence or making oral statements to judges, public officials or private parties which assert, imply of suggest that any surveys prepared by H. Marvin Berning, Virgin Islands Engineering and Surveying, Inc. or Marvin Berning & Associates, which involve parcels of land owned by Newfound or its successors in interest are erroneous.\\nSee Order of Entry of Permanent Injunction.\\nHI. ISSUES ARISING FROM THE PROPOSAL\\nSeveral issues arise from Plaintiff proposals. The Court will discuss each potential problem in turn.\\nA. THE WORDS \\\"DIRECTLY OR INDIRECTLY\\\"\\nIn its proposed order, Newfound uses the phrase \\\"directly or indirectly\\\" in \\u00b6 1,2,3,4, and\\n6. The Federal Rules of Civil Procedure Rule 65(d) states:\\n(d) Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained . . .\\nFed. R. Civ. Proc. Rule 65(d). The Supreme Court in Schmidt v. Lessard, 414 U.S. 473, 94 S. Ct. 713, 38 L. Ed. 2d 661 (1974), has noted the importance of this Rule:\\nAs we have emphasized in the past, the specificity provisions of Rule 65(d) are no mere technical requirements. The Rule was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, . The requirement of specificity in injunction orders performs a second important function unless the trial court carefully frames its orders of injunctive relief, it is impossible for an appellate tribunal to know precisely what it is reviewing.\\nId. at 476-477, citing Gunn v. University Committee to End the War, 399 U.S. 383, 388, 90 S. Ct. 2013, 2016, 26 L. Ed. 2d 684 (1970). The Third Circuit, in a case concerning Rule 65(d) injunctions, has stated that \\\"the party constrained is entitled to 'fair and precisely drawn notice of what the injunction actually prohibits' because serious consequences may befall those who do not comply with court orders.\\\" Louis V. Epstein Family Partnership v. KMART Corporation, 13 F.3d 762, 771 (3d Cir. 1994), citing Granny Goose Foods, Inc. v. Brotherhood of Teamsters, Local No. 70, 415 U.S. 423, 444, 94 S. Ct. 1113, 1126, 39 L. Ed. 2d 435 (1974). \\\"Broad, non-specific language that merely enjoins a party to obey the law or comply with an agreement, however, does not give the restrained party fair notice of what conduct will risk contempt. Id., citing Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665, 669 (8th Cir. 1987).\\nAs applied in the instant case, the words \\\"indirectly or directly\\\" do not give Defendants a specific understanding of the restrictions that must be followed. The word indirectly could be construed to encompass any action by the Defendants. Furthermore, such restrictive language could infringe upon Defendants' Constitutional rights, as will be discussed below.\\nB. FIRST AMENDMENT ISSUES\\n1. DEFAMATORY STATEMENTS\\nNewfound's proposal in \\u00b63 precludes any \\\"verbal or written defamatory statements about the title to the Newfound Property and about Plaintiff's business operations.\\\" Such a proposal raises issues concerning Defendant's First Amendment rights. Generally, allegedly defamatory publications may not be enjoined. Floyd Abrams, Prior Restraints, 420 PLI/Pat 343, 495 (1995). For example, in Bailey v. Systems Innovation, Inc., et al., 852 F.2d 93 (3d Cir. 1988), the Third Circuit found that the civil litigants' first amendment right to freedom of speech was violated by a district court order that imposed upon them requirements governing Extrajudicial Statements by Attorneys in Civil Cases. Id. The Court stated that the order was \\\"a prior restraint on speech, that carries with it 'heavy presumption against its constitutional validity.'\\\" New York Times Co. v. United States, 403 U.S. 713, 714, 91 S. Ct. 2140, 2141, 29 L. Ed. 2d 822 (1971) (citations omitted). Furthermore, the court stated that \\\"if any method other than a prior restraint can effectively be employed to further the governmental or private interest threatened here, then the order is invalid.\\\" Id. In the instant action, Newfound has not presented any evidence to defeat this \\\"heavy burden of unconstitutionality\\\" and therefore such language should be omitted from any permanent injunction issued by the Court.\\nFurthermore, in People v. Rothschild Francis, 1 VI 66 (DCVI1925), the court stated that \\\"individuals are free to talk, and the press is at liberty to publish, and neither may be restrained by injunction, but they are answerable for the abuse of this privilege in an action for libel and slander under the common law . . .\\\" Id. at 78, citing Stuart v. Press Pub. Co., 83 A.D. 467, 82 N.Y.S. 401. Applying Rothschild to the instant action, this Court will not accept Newfound's proposal to enjoin permanently Plaintiff from defaming Newfound, as a remedy exists after the \\\"abuse\\\" (if it ever actually occurs) and not before it.\\n2. LETTERS OR PUBLICATIONS\\nThe discussion above applies even more strikingly to Newfound's proposal in \\u00b67 to prohibit Defendant from publishing articles or opinions in the newspaper. Newfound's proposal does not even allege that such statements would be defamatory. Therefore, such a prohibition would be inexcusable under the First Amendment.\\nC. FUTURE CLAIMS BY DEFENDANTS\\n\\u00b64, 5, and 6 of Newfound's proposals concern preclusion of any future claims by the Defendants against Newfound, with regard to any aspect of the property determined to be owned by Newfound. Defendants respond by objecting to any injunction against their right to assert claims against any of Plaintiff's property.\\nIn O'Hara v. Board of Education of the Vocational School in the County of Camden, 590 F. Supp. 696 (D.N.J.), the Court held that a terminated teacher would not be enjoined from filing further legal actions concerning matters stemming from her past employment given the public's fundamental rights of access to the courts. Id. at 705. The Court stated that:\\nthe public has a fundamental right of access to the courts. Any injunction limiting that access must be exercised sparingly and only in those situations in which 'the exclusive harassment purpose is not merely a matter of the suitor's subjective intent but is, rather, objectively determinable/ . . . There are innumerable issues that could arise concerning plaintiff's past employment and such a far-ranging prospective injunction would be inappropriate.\\nId. at 705, citing D'Amore v. D'Amore, 186 N.J. Super. 525, 530, 453 A.2d 251 (App.Div. 1982). In the instant action, the consequences of prohibiting future suits in such a comprehensive manner would also be far reaching and inappropriate. In addition, Newfound has not provided any evidence stating that Defendant has brought objectively harassing claims in the past.\\nThis Court in O'Hara further stated that:\\nThe court believes that defendant will have an adequate remedy should plaintiff institute further litigation. If plaintiff attempts to relitigate precluded matters regarding her past employment, defendant can move for summary judgment, and an award of counsel fees. If plaintiff attempts to raise new matters regarding her past employment, defendant always may move for an award of counsel fees if a suit was commenced or prosecuted in bad faith, vexatiously, wantonly, or for oppressive reasons.\\nId. 590 F. Supp. at 705, citing Hall v. Cole, 412 U.S. 1, 5, 93 S. Ct. 1943, 1946, 36 L. Ed. 2d 702 (1973). Accordingly, in the present case, an injunction should not preclude Defendant from bringing future claims. If Defendant should bring a claim, Newfound may move for summary judgment based on res judicata or collateral estoppel, as the case may warrant.\\nIt is important to note that injunctions precluding relitigation have been upheld by various circuit courts. See, e.g., Clinton v. United States, 297 F.2d 899 (9th Cir. 1961); and Green v. Warden, U.S. Penitentiary, 699 F.2d 364 (7th Cir. 1983). However, in such cases, the respective courts noted that enjoined parties had brought harassing, repetitive, and/or frivolous suits in the past. Here, no such suits have been brought by the defendants and therefore this action is not analogous to those cases.\\nD. REMAINDER OF PLAINTIFF'S PROPOSAL\\nAs to the remainder of Plaintiff's proposal, title, location, and boundaries have been determined. See, supra, generally. Consequently, the reasons to provide Plaintiff with injunctive relief cease to exist as they did before the determination of title, location, and boundaries.\\nIV. CONCLUSION\\nFor the above reasons, Plaintiff's motion for a permanent injunction is denied. The Court will, as noted in Part I, continue to maintain jurisdiction over this case and expects that the parties will abide by its findings.\\nPART III: PLAINTIFF'S MOTION TO AMEND THE COMPLAINT\\nI. INTRODUCTION\\nPlaintiff seeks to amend its Complaint pursuant to Federal Rule 15 and Local Rule 15 in order to add, as an additional Plaintiff, Privateer Bay Management Corporation, General Partner of Privateer Bay Limited Partnership (\\\"Privateer\\\"). See Plaintiff's Revised Motion to Amend Complaint.\\nII. DISCUSSION\\nRule 15 allows a party to amend a pleading:\\nonce as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.\\nFed. R. Civ. P. 15 and LRCi 15.\\nGenerally, leave to amend a pleading should be liberally given when justice so requires and such an amendment would not cause prejudice to the opposing party. Simmons v. Catamaran Cruises, Inc., 17 V.I. 333 (1980). In reaching a determination on a motion to amend pleadings, the particulars of the specific claim must be analyzed to ascertain whether or not any prejudice to the opposing party is sufficient to deny leave to amend the complaint. Choate v. Skinner, 19 V.I. 399 (Terr. Ct. 1983).\\nNewfound alleges that it gave to its lender \\\"a deed in lieu of foreclosure, which transferred the assets of Newfound Limited Partnership to a successor entity, Privateer Bay Limited Partnership.\\\" See Plaintiff's Revised Motion to Amend Complaint at 1-2. However, Privateer is a separate entity distinct from Newfound, which was the subject of this litigation. It is simply a grantee company that has received property from Newfound's mortgagee. Newfound's Second Amended Complaint repeats alleged acts directed by Defendants against Newfound, not Privateer. None of the actions alleged against the defendants, including trespass, vandalism, harassment, threats, coercion, attempted obstruction of construction work upon Plaintiff's land, slander, and libel, have been alleged to occur against Privateer, nor is there evidence of any contemplation or threat by Defendants of committing these acts against Privateer.\\nAt this final stage of an eight-year litigation, where boundaries, location, title, and tort disputes have been resolved, see supra Parts I and n, this proposed Second Amended Complaint has no relevance. The prejudice to the defendants is obvious.\\nIII. CONCLUSION\\nThe Court will deny Newfound's Motion to Amend the Complaint for the reasons set forth above.\\nPART IV: MOTION FOR ATTORNEY'S FEES\\nI. REQUESTED FEES\\nPlaintiff has brought a motion for an award of counsel fees and costs pursuant to 5. V.I. \\u00a7 541(a)(6) and Fed. R. Civ. P. 54(d)(2).\\nPlaintiff's attorney originally requested $397,647.65 in counsel fees in connection with this action. At the hearing of November 5, 1998, Plaintiff conceded costs under the heading of \\\"prelitigation costs\\\" and fees not supported by affidavits. See Hearing on Motions, Tr. 112.18 - 118.24. Plaintiff, in addition, does not ask for travel, copying/communication expenses, and construction costs. See Hearing on Motions, Tr. 113.4 - 113.12.\\nFees were divided by the two law firms that are representing Newfound in this action, and each is divided into exhibits. The law firm of Cooper & Graves claims the following hours that have not been conceded by Plaintiff:\\nExhibit 186: 70.65 hours x $ 175.00 = $ 12,363.75\\nThe law firm of Mason & Martin claims the following hours that have not been conceded by Plaintiff:\\nExhibit 186: 303 hours x $ 175.00 = 260.8 hours x $ 200.00 = 34.8 hours x $ 150.00 = 237.9 hours x $ 125.00 = $ 53,025.00 $ 52,160.00 $ 5,220.00 $ 29,737.50\\nExhibit 187: 114.1 hours x $ 200.00 = 5.7 hours x $ 150.00 = 3.90 hours x $ 125.00 = $ 22,820.00 $ 855.00 $ 487.50\\nExhibit 227: 145.6 hours x $ 200.00 = 1.1 hours x $ 150.00 = $ 29,120.00 $ 165.00\\nExhibit 229: 79 hours x 200.00 = 33.6 hours x 175.00 = 58.6 hours x 150.00 = $ 15,800.00 $ 5,880.00 $ 8,790.00\\nExhibit 233 164.7 hours x 200.00 = 169 hours x 150.00 = $ 32,940.00 $ 25,350.00\\nTotal: $ 307,077.50\\nH. AWARD OF FEES\\nAlthough the Court is generally reluctant to mass all the fees of the litigation together, there is great overlap between all aspects of the litigation and this is reflected in the billing details. Therefore, it is necessary to factor all the aspects of the case before determining whether attorney's fees are appropriate.\\nPursuant to 5 V.I. \\u00a7 541(b) (Michie 1997), the Court has discretion to award Plaintiff's counsel their counsel fees and costs. See 5 V.I. \\u00a7 541(b) (\\\"There shall be allowed to the prevailing party in the judgment such sums as the court in its discretion may fix by way of indemnity for his attorney's fees in maintaining the action or defenses thereto.\\\" The purpose of 5 V.I.C. \\u00a7 541 is \\\"to indemnify the prevailing party.\\\" Bedford v. Pueblo Supermarkets of St. Thomas, Inc., 18 V.I. 275, 278 (D.V.I. 1981). The reasoning behind the statute \\\"is that a party should not have to bear the legal expenses of demonstrating either that it is not at fault or that it is the victim of another's fault.\\\" Id. By extension then, if neither party is at fault in a litigation, then no attorneys fees are appropriately awarded. The decision not to award attorney's fees is not aberrant under Virgin Island law. See e.g., Laltoo v. Bank of Nova Scotia, 18 V.I. 479 (D.C.V.I. 1981); Figueroa v. Trans-Oceanic Ins. Co., 12 V.I. 140 (D.V.I. 1975); Daly v. Kier, 2 V.I. 227, 228 (D.V.I. 1952); Stoner v. Bellows, 2 V.I. 172, 187 (D.V.I. 1951); and Chase v. A.M.E. Church, 108 F.2d 977, 2 V.I. 411 (3d Cir. 1940) (a case arising under the less discretionary provisions of an earlier statute.).\\nDefendant Sewer argues that his and co-Defendants' actions were undertaken in \\\"the context of a genuine, bona fide land dispute due to the variances and discrepancies in deeds and land records recorded over more than a century.\\\" Defendant's Opposition at \\u00b67. Where parties cannot agree on title and boundaries of land parcels, the Court has an important role in determining the outcome of the disputed issues. See V.I. Code Ann. tit. 28 \\u00a7 372.\\nThis Court agrees with Defendants that the subject of this litigation constituted a genuine land dispute. Indeed, in the 1995 Opinion, this Court noted that \\\"land recording practices and a perplexing mixture of unsurveyed land, conflicting surveys, uncertain genealogies and unprobated estates complicate the title and boundary issues presented to the court.\\\" 1995 Opinion at 3. In addition, Defendants adamantly argued that the parcel was their property and had been stolen from them, while Plaintiff argued the land was properly Newfound's as the result of a legitimate business transaction. For these reason, the action to quiet title was necessary and not a result of bad faith or malicious behavior on the part of the defendants. Furthermore, Newfound was not the only successful party in the action to quiet title. In its 1995 Opinion and Order, this Court found that title to parcel 6p was in part in favor of Defendants Bernard Williams and Irvin Sewer, for the heirs of Martin Sewer, and that title to parcel 7a was in part in favor of the Estate of Bernard Williams, Irvin Sewer and Violet Sewer, and Newfound. See generally, 1995 Opinion and Order.\\nAs to the fees for work in preparation for the preliminary injunction, Plaintiff argues that the cost of preparation was necessary in order to reach the stipulation. See Hearing on Motions, Tr. 114.13-114.18. What Plaintiff does not state, however, is that it did receive something in return for its preparation for the preliminary injunction stage of this litigation. That is, Plaintiff received an injunction in a litigation where title was not clear at the time it was entered. Given the contested state of title and boundaries at the time the parties stipulated to the injunction, a Court may not have issued such an injunction.\\nPlaintiff also argues that because of Defendants' actions \\\"what should never have occurred and what should certainly have taken a short period of time, took seven years to conclude.\\\" See Id., 134.8-134.10. Such an argument, however, does not support Plaintiff's motion. The issues within this litigation were extremely complex and had to be resolved accordingly. While a more expeditious course may have been possible, it cannot be said that Defendants maliciously slowed these proceedings.\\nHI. CONCLUSION\\nIn considering the complexity of the circumstances surrounding the litigation, the need to work out the boundaries between the properties, and the successful outcome for both parties, this Court will deny Plaintiff's request for attorney's fees and costs.\\nPART V: MISCELLANEOUS\\nThis case is now completed. The title, location, and boundary lines are fully determined. The Court recognizes that the defen dants, as well as the plaintiff, are not entirely pleased with the outcome. However, peace must now prevail, as it is to the advantage of all parties to this litigation to co-exist as good neighbors with respect for each other.\\nThe statute states:\\nIn any case where any dispute or controversy exists, or may hereafter arise, between two or more owners of adjacent or contiguous lands in the Virgin Islands, concerning the boundary lines thereof, or the location of the lines dividing such lands, either party or any party to such dispute or controversy may bring and maintain an action of an equitable nature in the district court, for the purpose of having such a controversy or dispute determined, and such boundary line or lines, or dividing lines, ascertained and marked by property monuments, upon the ground where such line or lines may be ascertained to be, and established in such action.\\nV.I. Code Ann. tit. 28 \\u00a7 372 (1976); see also 1A C.J.S. Actions \\u00a7 129 (1955) (An action to quiet title is an equitable proceeding).\\nPresent at the hearing were: 1) Alan Garber, Esq., Claire A. Carlson, Jr., Esq., and Robert King, Esq. on behalf of Plaintiff, Newfound; 2) George Marshall Miller, Esq. on behalf of the defendant, Irvin A. Sewer; 3) Mario E. Bryan, Esq. (\\\"Bryan\\\") on behalf of defendant, Cedric Lewis as Administrator of the Estate of Bernard Williams. Vincent Fuller, Esq. (\\\"Fuller\\\") presented himself to the Court on behalf of Cedric Lewis (\\\"Lewis\\\"), the individual, but was not prepared to enter his appearance. See Hearing on Motions, Tr. 4.11 - 4.20. The Court, at side bar conference, in response to its inquiry of defendant Sewer's counsel George Miller, Esq., was informed that both he and Fuller shared office space together as well as the same telephone number. The Court was concerned as to a possible conflict, but that issue was not reached since Fuller continued to decline to enter his appearance. The Court excused him from counsel table, suggesting he remain and sit in the main area of the courtroom. Defendant Lewis was given an opportunity to address the Court. Lewis chose, for the most part, to discuss the merits of the 1995 Opinion. See Hearing on Motions, Tr. 125.16 - 132,18 and Tr. 136.7 - 136.11. The Court also heard from Defendant Irving Sewer. Sewer also utilized his time before the Court to discuss (he merits of the 1995 Opinion. See Hearing on Motions, Tr. 136.20 - 144.17.\\nSince plaintiff seeks counsel fees against defendants Sewer and Lewis, Mario Bryan, Esq., who had represented Cedric Lewis in both his individual and representative capacity, conceived it to be a conflict of interest at this point and sought permission of the court to be relieved of representation of Cedric Lewis individually, but continue to represent him in his capacity as administrator of the estate of Bernard Williams. Such request was granted. Cedric Lewis obtained the services of Ben Currence, Esq., who in a letter dated August 31, 1998, informed the Court of his representation. At the date of the hearing, November 5,1998, this Court was advised by Lewis that he had discharged Currence the day before. No application to the Court was made to relieve Attorney Currence. Lewis also personally cross-examined Gauriloff. See Hearing on Motions, Tr. 64.21-65.16.\\nIt should be noted that Bryan, although representing Lewis as Administrator, at the discretion of the Court was allowed to cross-examine Gauriloff. See Hearing on Motions, Tr. 48.19-65.12. Bryan's cross-examination during this time also supported Lewis in his individual capacity. See id.\\nGauriloff's survey utilizes capital letters in indicating the parcels that were surveyed. This Court, in its 1995 Opinion, utilized lower-case letters to indicate the same parcels, e.g. 6P is the same as 6p. For purposes of consistency, this Court will continue to utilize lower case letters in labeling the discussed parcels, but these letters should be considered the same as Gauriloff's equivalent use of capital letters.\\nExhibit 1 is the same map as the map introduced as Exhibit 2, except that Exhibit 2 utilizes colored lines to assist the reader. See Tr., 16.9-16.15. For purposes of this Opinion, any references to Exhibit 1 will also implicitly include a reference to Exhibit 2.\\nExhibits that were provided in the October 7, 1994 Opinion are indicated with a *.\\nAlthough not indicated on Exhibit 1, point A was testified to being 45 degrees, 45 minutes, 50 seconds, as indicated on Exhibit 1. See Hearing on Motions, Tr. 36.7-36.10 and 31.11-31.12.\\nIn its 1995 Opinion, the Court determined the B-C-D segment of the George-Sewer line. See 1995 Opinion at 773. The Court had rejected the A-B segment, as that portion of land had yet to be surveyed and ordered that segment to be part of a future survey. See 1995 Opinion at 756-757. Gauriloff's survey complied with this order.\\nIn the 1995 Opinion, the historical division of the pond is described as being on a east/west axis. See 1995 Opinion at 744. However, Gauriloff found, and the Court now agrees that the pond is best subdivided on a somewhat different axis. See Hearing on Motions, Tr. 25.5 - 25.10. The 1995 Opinion, to such extent, is amended accordingly.\\nAlthough this Court did not order the survey of Parcel 7c in its 1995 Opinion, to the extent that Gauriloff found it necessary to survey such parcel, this Court accepts the findings reflected on Exhibit 1.\\nPlaintiff's tort claims against Defendants were not litigated, as by agreement they were dismissed. Thus, there is no finding by this Court of liability on the part of Defendants as to these issues. Nevertheless, the Court will proceed with an analysis and. determination of Plaintiff's Motion for a Permanent Injunction.\\nIn Kramer v. Thompson, 947 F.2d 666 (3d 1991), the Court stated that 'after a plaintiff has, by judgment at law, established the fact that certain published statements are libelous, he may, on a proper showing, have an injunction to restrain any further publication of the same or similar statements.' Id. at 677, citing 42 Am.Jur.2d injunctions \\u00a7 135, at 892 (1969). However, this reasoning is inapplicable here, as no adjudication has taken place over any libel claims against Defendants.\\nThis is not a situation where Plaintiff seeks only to change its name and in all other respects to remain within its original legal format. Instead, it seeks to bring a stranger into this litigation.\"}"
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+"{\"id\": \"745280\", \"name\": \"ROBERT SPINK and VIVIAN SPINK, Plaintiffs v. GENERAL ACCIDENT INSURANCE COMPANY OF PUERTO RICO, LTD., MANGROVE MARINE CENTER, INC., LEVETTE RUAN, and CARMEN RUAN, Defendants\", \"name_abbreviation\": \"Spink v. General Accident Insurance\", \"decision_date\": \"1999-02-11\", \"docket_number\": \"Civ. No. 1998-042\", \"first_page\": 396, \"last_page\": \"403\", \"citations\": \"40 V.I. 396\", \"volume\": \"40\", \"reporter\": \"Virgin Islands Reports\", \"court\": \"District Court of the Virgin Islands\", \"jurisdiction\": \"Virgin Islands\", \"last_updated\": \"2021-08-10T23:55:35.150213+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ROBERT SPINK and VIVIAN SPINK, Plaintiffs v. GENERAL ACCIDENT INSURANCE COMPANY OF PUERTO RICO, LTD., MANGROVE MARINE CENTER, INC., LEVETTE RUAN, and CARMEN RUAN, Defendants\", \"head_matter\": \"ROBERT SPINK and VIVIAN SPINK, Plaintiffs v. GENERAL ACCIDENT INSURANCE COMPANY OF PUERTO RICO, LTD., MANGROVE MARINE CENTER, INC., LEVETTE RUAN, and CARMEN RUAN, Defendants\\nCiv. No. 1998-042\\nDistrict Court of the Virgin Islands Div. of St. Thomas and St. John\\nFebruary 11, 1999\\nJames M. Derr, Esq., St. Thomas, U.S.V.I., for plaintiffs\\nFranklin G. Quow, Esq., St. Thomas, U.S.V.I., for defendants\", \"word_count\": \"2774\", \"char_count\": \"17181\", \"text\": \"MOORE, Judge\\nMEMORANDUM\\nThis matter remains before the Court on plaintiffs Robert and Vivian Spink's [\\\"Spinks\\\"] motion for summary judgment. As mortgagees of a property insured by defendant General Accident Insurance Company of Puerto Rico, Ltd. [\\\"General Accident\\\"], the Spinks seek judgment in the amount of $114,731 for insurance proceeds that they contend General Accident erroneously disbursed to the defendant mortgagor, Mangrove Marine Center, Inc. [\\\"MMC\\\"], and defendant guarantors of the mortgage note, Levette and Carmen R\\u00faan [\\\"Ruans\\\"]. For the reasons set forth below, the Court will grant the Spinks' motion for summary judgment.\\nOn December 29, 1989, the Spinks sold their fee simple title to Parcels 29 and 35, Estate Nadir, No. 2 Red Hook Quarter, St. Thomas to MMC, a Virgin Islands corporation. The Spinks took back a $300,000 note and mortgage from MMC, which Levette and Carmen Ruan personally guaranteed as President and Secretary of MMC, respectively. As obligated by the mortgage, MMC obtained an insurance policy from General Accident providing coverage for casualty losses, including loss from windstorm.\\nMMC's policy covers the period from February 10, 1995, to February 10, 1996, and identifies the Spinks as loss payees in their capacity as mortgagees of the property. In addition, it stipulates that \\\"no suit shall be brought on this policy unless the insured . . . has commenced the suit within one year after the loss occurs.\\\" (Pl.'s Mot. for Summ. J., Ex. A, at 1.)\\nOn September 15 and 16, 1995, Hurricane Marilyn damaged buildings located on the mortgaged property. MMC promptly presented a claim to General Accident. Although MMC's policy already identified the Spinks as loss payees; General Accident's authorized representative in St. Thomas wrote to the company on March 7, 1996, to remind it of the plaintiffs' interest in the policy. The Spinks and their attorney later did the same.\\nGeneral Accident informed the Spinks on September 3,1997, that it had paid $114,731.00 to MMC for loss to the insured property. General Accident had made the settlement check payable only to MMC. The Spinks filed this action on February 18, 1998.\\nDISCUSSION\\nAlthough the District Court of the Virgin Islands is not a United States district court established under Article III of the Constitution, Congress nevertheless has seen fit to grant it diversity jurisdiction over plaintiffs' claim under 28 U.S.C. \\u00a7 1331. When an Article III United States district court exercises its limited diversity jurisdiction, it must apply the substantive law of that forum state or territory, or try to predict how the state's highest court would resolve the issue if the substantive law is unsettled. This Court need not predict local law, however, because it is vested with the authority to decide novel questions as a local trial court.\\nGeneral Accident asserts that the one-year limitation clause for suits on its policy with MMC bars the Spinks' claim. Whether the general limitations clause for suits against the insurer by the mortgagor bars a mortgagee's claim is an issue of first impression in this jurisdiction. The Court therefore will decide this question by applying \\\"the rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States.\\\" See 1 V.I.C. \\u00a7 4 (identifying rules of decision \\\"in the absence of local laws to the contrary\\\").\\nSummary judgment is appropriate when \\\"the pleadings . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\\\" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Once the moving party properly supports its motion for summary judgment, the non-moving party must establish a genuine issue of material fact in order to preclude a grant of summary judgment. See Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Since the parties agree that there are no issues of fact, and the Spinks' motion presents only the legal question of the proper construction of unambiguous contractual terms, this matter is ripe for summary judgment. See Tamarind Resort Assocs. v. Government of the Virgin Islands, 138 F.3d 107, 110-11 (3d Cir. 1998).\\nWithout question, the Spinks were entitled to insurance proceeds for the loss that Hurricane Marilyn inflicted on the mortgaged property. The Restatement (Third) of Property, which provides the applicable rule of law, states that\\n[ujnless a different disposition is provided in the mortgage, the mortgagee has a right to . . . funds paid on account of loss or damage to the mortgaged real estate, to the extent that the mortgagee's security has been impaired by the loss or damage, . . . [including] the proceeds paid by a casualty insurer due to the occurrence of an insured loss to the real estate, if the mortgagor promised the mortgagee, in the mortgage or otherwise, to purchase the insurance.\\nRestatement (Third) of Property \\u00a7 4.7(a)(1) (1997). Since the Ruans promised the Spinks that they would insure the mortgaged property, and Hurricane Marilyn impaired the Spinks' security by driving the value of the property below the outstanding balance on the mortgage, the plaintiffs are entitled to the insurance proceeds because the mortgage does not provide otherwise. Further, the Special Multi-Peril Conditions and Definitions section of the policy provides, \\\"[l]oss to buildings shall be payable to the named mortgagee as interest may appear.\\\" (Pl.'s Mem. of P.& A. at 2.) As the named mortgagees, the Spinks should have received the insurance proceeds.\\nGeneral Accident does not dispute this conclusion. Rather, it asserts that the suit limitations provision present in MMC's policy bars the Spinks' claim. That clause states that \\\"no suit shall be brought on this policy unless the insured . . . has commenced the suit within one year after the loss occurs.\\\" (PL's Mot. for Summ. J., Ex. A, at 1.) Such one-year suit limitations clauses are generally enforceable in the Virgin Islands. See 22 V.I.C. \\u00a7 820(a)(3) (\\\"In contracts of property insurance . . . such limitation shall not be [for] a period of less than one year from the date of the loss.\\\").\\nThe suit limitations provision applies to the Spinks, even though MMC's policy designates them as loss payees, not 'insureds.' At first glance, the plaintiffs appear to be third-party creditor beneficiaries whose claim to insurance proceeds depends on the mortgagor's own right to payment. See Couch on Insurance 3d \\u00a7 65:22 (1996 & Supp. 1998) (\\\"[A] mortgage loss-payable clause . . . does not make the mortgagee an assignee of the policy, but merely an appointee to collect the insurance; consequently, the mortgagee must claim in the right of the insured.\\\") Logically, any limit on MMC's right to sue the insurer would apply to its third-party beneficiaries as well.\\nCloser scrutiny of MMC's policy reveals that the Spinks are not third-party beneficiaries. The policy contains the following proviso, commonly termed a \\\"standard\\\" mortgage clause:\\nAs it applies to the interest of any mortgagee designated in the Declarations, this insurance shall not be affected by any of the following:\\n(a) any act or neglect of the mortgagor or owner of the described buildings;\\nb) any foreclosure or other proceedings or notice of sale relating to the property;\\n(d) occupancy of the premises for purposes more hazardous than are permitted by this policy;\\nWhen the Company shall pay the mortgagee any sum for loss under this policy . . . the Company shall, to the extent of such payment, be thereupon legally subrogated to all of the rights of the mortgagee to whom such payment shall have been made, under the mortgage debt.\\n(PL's Mem. of P. & A. at 5.) As explained by one court, \\\"the standard clause expressly protects the mortgagee against mortgag- or's misdeeds . . . and subrogates the Company to the mortgagee's rights versus the mortgagor when payment is made to the mortgagee.\\\" Conner v. Northwestern Nat'l Cas. Co., 774 P.2d 1055, 1056 (Okla. 1989) (citation omitted). The prevailing view among American jurists and commentators is that this provision creates a separate contract between the mortgagee and the insurance company, dissolving the third-party beneficiary relationship between mortgagee and mortgagor by insulating the former's rights from the latter's actions. The Court adopts this view as territorial law under its statutory power to discern and apply \\\"the common law as generally understood and applied in the United States.\\\" See 1 V.I.C. \\u00a7 4.\\nThe Spinks are \\\"insureds\\\" under a separate contract of insurance with General Accident created by the standard mortgage clause. Contrary to the plaintiffs' contention, however, this contract incorporates terms from MMC's policy that do not conflict with the standard clause, such as the suit limitations provision. See Evans Prods. Co., 736 F.2d at 927 (\\\"The mortgagee's protection cannot be nullified or diminished by acts of the mortgagor, but the mortgagee is no more free to ignore the one-year limitations provision than is the mortgagor.\\\") (Adams, J., dissenting) (citations omitted). The plaintiffs need not rely on MMC's rights, but they cannot sleep on their own.\\nAccording to the policy, the limitations period commences when the insured suffers a \\\"loss.\\\" Assuming that the word \\\"loss\\\" refers to the occurrence of the peril insured against rather than the denial of the insured's claim, the insurer must be estopped from enforcing the limitations provision against the Spinks. General Accident recorded the Spinks' stake in the policy as mortgagees well before Hurricane Marilyn struck the Virgin Islands, and was repeatedly reminded of that interest in the hurricane's aftermath. The insurer did not disclose that it had paid MMC in violation of the policy's loss-payable clause until September 3,1997. Such delay clearly contravened the duties of good faith and fair dealing that General Accident owed to the Spinks. See 22 V.I.C. \\u00a7 2 (\\\"The business of insurance is one affected by the public interest, requiring that all persons be actuated by good faith, abstain from deception, and practice honesty and equity in all insurance matters.\\\"). General Accident spent nearly two years ignoring the plaintiffs' contractual rights. It cannot now invoke the suit limitations clause of that contract to extinguish their claim. Accord Bowler v. Fidelity & Cas. Co., 53 N.J. 313, 250 A.2d 580 (N.J. 1969) (estopping defendant from pleading limitations clause as defense where insurer failed to pay benefits that were clearly due); see Closser, 457 A.2d 1081 at 1086, 56 N.J. 514 (recognizing that limitations provision may not be enforced if insurer led insured to delay suit); General State Auth. v. Planet Ins. Co., 464 Pa. 162, 346 A.2d 265, 268 (Pa. 1975) (same).\\nCONCLUSION\\nThe Court will grant specific enforcement of the Spinks' contract under the standard mortgage clause because the suit limitations provision does not bar their otherwise valid claim for insurance proceeds. An Order granting judgment to the plaintiffs in the amount of $114,731 will issue.\\nENTERED this 11th day of February, 1999.\\nAlthough the plaintiffs style their suit as an \\\"action for breach of contract, negligence, [or] unjust enrichment,\\\" they have alleged only the elements of a contract or quasi-contract action. Their motion will be reviewed solely on those grounds.\\nAt a hearing on September 4,1998, the Court denied General Accident's cross-motion for summary judgment pursuant to this Court's ruling in Carson v. Scandia Insurance Co., 19 V.I. 138 (D.V.I. 1982).\\nUnder Section 22 of the Revised Organic Act of 1954, 48 U.S.C. \\u00a7 1612, the Court has general civil jurisdiction equivalent to that of a United States district court. The complete Revised Organic Act of 1954 is located at 48 U.S.C. \\u00a7 1541-1645 (1994), reprinted in V.I. Code Ann. 73-177, Historical Documents (1995 & Supp. 1998) [hereinafter \\\"Rev. Org. Act\\\"] (preceding Title One of Virgin Islands Code).\\nSee Erie R.R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938).\\nSee Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 18 L. Ed. 2d 886, 87 S. Ct. 1776 (1967); Borman v. Raymark Indus., Inc., 960 F.2d 327, 331 (3d Cir. 1992). The Third Circuit Court of Appeals recently observed that \\\"when state law is unclear, efforts by federal courts to 'predict' how a state's highest court would rule 'raise judicial federalism concerns.'\\\" Michaels v. New Jersey, 150 F.3d 257, 259 (3d Cir. 1998) (quoting Bradford R. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. Pa. L. Rev. 1459, 1564 (1997)). Assuming that federalism principles apply in a territory where the United States is the sole sovereign, this Court's power to exercise federal jurisdiction and decide territorial law creates no federalism problem because this Court is not yet an Article III United States District Court.\\nSee 4 V.I.C. \\u00a7 2 (\\\"The judicial power of the Territory is vested in . . . the 'District Court of the Virgin Islands,' and in a court of local jurisdiction to be designated the 'Territorial Court of the Virgin Islands.'\\\"); Government of the Virgin Islands v. Virgin Islands Paving, Inc., 714 F.2d 283, 285-86 (3d Cir. 1983) (\\\"When. . . suit is brought in the District Court of the Virgin Islands to enforce provisions of Virgin Islands law, that court sits essentially as a local court.\\\"); United States v. George, 625 F.2d 1081, 1088 (3d Cir. 1980) (observing that District Court \\\"is a territorial court, indeed, the chief court of the territory\\\"); In re Jaritz Indus., 207 B.R. 451, 466, 36 V.I. 225, 252-253 (D.V.I. 1997) (\\\"the district court... is classified as territorial and institutionally is not federal in nature\\\"), rev'd on other grounds, 151 F.3d 93 (3d Cir. 1998). The District Court of the Virgin Islands also acts as a local appellate court. See Rev. Org. Act \\u00a7 23A(b), 48 U.S.C. \\u00a7 1613a(b) (\\\"appeals to the District Court of the Virgin Islands . . . shall be heard and determined by an appellate division of the court\\\").\\nSee Couch on Insurance 3d \\u00a7 65:9 (\\\"the standard mortgage clause operates as a distinct and separate contract\\\"), 65:32 (\\\"the effect is the same as though the mortgagee had procured a separate policy naming himself. . . as the insured\\\"); see also Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 395, 81 L. Ed. 1177, 57 S. Ct. 809 (1937) (\\\"The mortgagee clause created a contract of insurance between [the mortgagee] and the company and effected separate insurance upon [its] interest.\\\"), aff'g 87 F.2d 683, 684 (3d Cir. 1936) (applying Pennsylvania law); Evans Prods. Co. v. West Am. Ins. Co., 736 F.2d 920, 926 (3d Cir. 1984) (Adams, ]., dissenting) (addressing issue not reached by majority and acknowledging that, under Pennsylvania law, standard mortgage clause creates discrete contract in favor of mortgagee); Kimberley & Carpenter, Inc. v. Fireman's Fund Ins. Co., 78 F.2d 62, 64 (3d Cir. 1935) (reaching identical conclusion under Delaware law).\\nBut see United States v. Commercial Union Ins. Cos., 821 F.2d 164 (2d Cir. 1987) (construing insurance policy strictly against insurer under Vermont law and concluding that limitations period did not apply to mortgagee because provision applied only to \\\"insured\\\"). This Court rejects the Second Circuit's technical interpretation. The Spinks' right to insurance proceeds sprang from the insurance transaction between MMC and General Accident. In ordinary parlance, the Spinks are \\\"insureds\\\" whose claim was \\\"brought on the policy.\\\"\\nMost courts have held that suit limitation provisions run from the time of property damage, not the date that the insurer denies coverage. See, e.g., Closser v. Penn Mut. Fire Ins. Co., 457 A.2d 1081, 1086 n.6 (Del. 1983) (following majority rule but acknowledging that \\\"there is authority for either of these two results\\\"). Our sister courts in the Third Circuit have split on the issue. See id.; Peloso v. Hartford Fire Ins. Co., 56 N.J. 514, 267 A.2d 498, 501 (N.J. 1970) (adopting minority rule because limitation clause sought to provide insured with twelve month period to commence suit); Guarantee Trust & Safe Deposit Co. v. Home Mut. Fire Ins. Co., 180 Pa. Super. 1, 117 A.2d 824, 827 (Pa. Super. Ct. 1955) (recognizing that statute of limitations barred mortgagee's action to recover on separate insurance contract).\\nUpon payment to the plaintiffs, the Spinks' cause of action against MMC and the Ruans for collection of insurance proceeds will subrogate to General Accident.\"}"
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