S. Ct. Civ. No. 2014-0067

After two prior litigations-one of which was decided on appeal in Thomas v. V.I. Board of Land Use Appeals, 60 V.I. 579 (V.I. 2014)-the landowner plaintiffs brought this third litigation against a church, the Virgin Islands Board of Land Use Appeals as well as the Virgin Islands Department of Planning & Natural Resources and its Commissioner, alleging that defendants violated their right to due process by failing to provide them with personal notice under 12 V.I.C. § 914, and by failing to issue a notice of violation and stop work order to enjoin the church from undertaking construction work under an expired Coastal Zone Management permit. Res judicata (claim preclusion) bars relitigation of claims that were raised or could have been raised in a prior action, where (1) the prior judgment was valid, final, and on the merits; (2) the parties in the subsequent action are identical to or in privity with the parties in the prior action; and (3) the claims in the subsequent action arise out of the same transaction or occurrence as those in the prior action. Dismissal for failure to comply with a jurisdictional precondition to suit is not on the merits because the court lacks jurisdiction over the claim. Here neither the language of 12 V.I.C. § 913(d) nor case law indicates that the appeals period in the CZM Act is to be treated as jurisdictional. If a precondition is a claims-processing rule, a dismissal based on a litigant's noncompliance is on the merits unless the noncompliance can be cured by later action. Because the appeal period in 12 V.I.C. § 913(d) is a claims-processing rule and the plaintiffs cannot cure their earlier noncompliance by filing an even later, less timely petition for writ of review, the prior decision was on the merits. In deciding whether claims arise out of the same transaction or occurrence, it must be determined whether the legal theories or rights asserted in this case were raised or could have been raised in the prior case based on the conduct, transaction, or occurrence giving rise to that action, regardless of the legal elements or the evidence upon which that petition depended, or the particular remedies sought. The first count of the present complaint arises out of the same transaction or occurrence as the Thomas petition-the pleadings in both cases allege in part that the BLUA and former Commissioner Mathes violated the plaintiff's statutory and constitutional due process rights by failing to personally serve them with notice that the church had appealed the CZM Committee's decision. Since Thomas previously resolved these issues, the Superior Court did not err in ruling that the first count of the present complaint is barred by res judicata. A portion of the second count of the present complaint challenging issuance of a permit to the church more than 30 days after the public hearing is also barred because it was actually raised in the prior case. Another portion of this count, alleging that the permit lacked required approvals, was also correctly found to be barred because it could have been raised in the earlier petition had plaintiffs exercised due diligence. A bright-line rule that res judicata does not apply to claims arising from events occurring after the filing of the prior complaint represents the soundest rule for the Virgin Islands. Here the complaint's remaining allegation-that the church failed to begin construction within the time period prescribed by the permit-cannot be said to have arisen out of the same transaction or occurrence as the earlier petition for writ of review. It is not barred by res judicata because it arises from events occurring after the complaint was filed in the prior action. Collateral estoppel (issue preclusion) bars relitigation of any issues of law or fact conclusively determined in a prior action, where (1) the previous determination was necessary to the decision; (2) the identical issue was previously litigated; (3) the issue was resolved in a decision that was final, valid, and on the merits; and (4) the party being precluded from relitigating the issue was adequately represented in the previous action. The delayed construction claim was not litigated in the prior case, and the Superior Court erred in ruling that it is barred by the doctrine of collateral estoppel. That claim is not barred by either res judicata or collateral estoppel because the transaction or occurrence upon which it is based arose after the complaint in the prior litigation, and it was not actually decided in that prior case. Therefore, the Superior Court's dismissal of the first count of the appellant's complaint is affirmed, but its dismissal of the second count of that complaint-insofar as it includes the claim relating to the church's failure to begin construction within the time period prescribed by the permit-is reversed.