2017 Unpublished Opinions News Summary

Tue, 19 Mar 2019 14:28:00 GMT

Considering a petition to appeal from an interlocutory order of the Superior Court pursuant to title 4, section 33(c) of the Virgin Islands Code, the Supreme Court denies permission to appeal. To qualify for permissive review under section 33(c), an immediate appeal must not only materially advance the ultimate termination of the litigation, but resolve a controlling question of law as to which there is substantial ground for disagreement. Because all of the issues the petitioner attempts to raise may be resolved by application of binding precedent, the appeal does not involve a controlling question of law for which there is substantial ground for difference of opinion.

Tue, 19 Mar 2019 14:27:00 GMT

Upon petition for entry of a stay pending appeal, the Court considers: (1) whether the litigant has made a strong showing of likely success on the merits; (2) whether the litigant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties; and (4) where the public interest lies. In this case the appellant attorney has failed to meet his burden of demonstrating that consideration of the pertinent four factors favors granting a stay with regard to a contempt ruling of the Superior Court. While it is alleged that required constitutional protections were not provided and that the order below was not remedial in nature, the hearing transcript has not been provided by the appellant with the motion, thus it must be presumed that the Superior Court acted correctly and that its factual findings are not clearly erroneous. There has been no showing that the orders violated by the contemnor were unconstitutional, and the appellant has not shown a likelihood of success on the merits. Nor has the required showing been made of any irreparable harm that has not already occurred. Thus the motion for a stay is denied.

Tue, 19 Mar 2019 14:26:00 GMT

Considering a petition for writ of mandamus, the Supreme Court denies the petition without prejudice to its re-filing in the Superior Court. Because the Superior Court and the Supreme Court possess concurrent original jurisdiction over proceedings for writ of mandamus, the availability of mandamus relief from the Superior Court constitutes an adequate alternate means to obtain the desired relief unless the petitioner presents a good and sufficient reason for applying in the first instance to the Supreme Court. Because the petitioner in this case provided no reason for filing the petition with the Supreme Court in the first instance, the petition is denied.

Tue, 19 Mar 2019 14:25:00 GMT

On a motion for full panel review, the denial of two motions to dismiss is reaffirmed. Appellants timely filed their notice of appeal of the February 6, 2013 order on March 7, 2013 under V.I.S.CT.R. 5(a)(1). Because the Superior Court cannot rule on a pending attorney's fees motion while this appeal is pending, the pendency of an attorney's fees motion does not defeat the finality of an otherwise final judgment. However, the Superior Court also could not have ruled on a March 23, 2007 motion for attorney's fees while a prior appeal was pending and should have refused to exercise jurisdiction over that motion. Thus, the May 17, 2007 order constitutes a nullity in that it was issued despite an effective notice of appeal having been filed with this Court, and the Superior Court applied the wrong legal standard in according it deference. Consequently, this appeal presents no substantial question and the disposition is wholly controlled by prior precedent. The motions to dismiss are denied. The February 6, 2013 opinion and order is summarily vacated and the Superior Court is directed, on remand, to adjudicate the appellants' March 23, 2007 motion without reference to or deference towards the May 17, 2007 order.

Tue, 19 Mar 2019 14:24:00 GMT

In review of multiple submissions in an appeal from denial of injunctive relief in a matter arising in part from commercial rent arrangements, in light of multiple scheduling and extension orders by this Court, failure to file appendix volumes on the schedule and in the manner prescribed, filing of an oversized brief, and other procedural disputes, and considering responses filed to an order to show cause, as well as applications for a dismissal of the appeal for want to timely prosecution, a petition for mandamus, and other applications of the parties - while the actions and statements of counsel for appellants throughout this appeal demonstrate a lack of effort to comply this Court's rules and Orders, including numbering of pages of the joint appendix, and failure to meet deadlines, the Court will not prejudice appellants by dismissing this case for want of timely prosecution solely due to their counsel's conduct, because they are appealing, inter alia, a published opinion that conducted an extensive Banks analysis regarding an issue of first impression. Moreover, this is an issue capable of repetition in numerous other cases. However, the Court strongly advises all counsel for appellants to fully comply with all of this Court's rules and orders in the future. Failure to do so may result in sanctions, including - but not limited to - referral to the Disciplinary Counsel for further investigation. Due to failure to comply with Rules 15 and 24 joint appendix Volume V is rejected and appellants' brief is sua sponte rejected due to its citations to joint appendix Volume V. The Court will require appellants to file a corrected Volume V and an amended brief correcting the page numbers cited in the appendix. Since these matters were not addressed for some time, the Court will allow appellants to update their brief factually, and substantively (with legal authority issued after April 4, 2016). The brief must comply with the Virgin Islands Rules of Appellate Procedure effective March 1, 2017 and must total no more than 10,800 words exclusive of the table of contents, table of authorities and certifications, and cannot include any new arguments. Both the Amended Brief and the Corrected Volume V of the joint appendix must be filed within seven (7) days of the date of entry of this Order. Failure to comply with this Order may result in sanctions imposed upon all counsel for the appellants. Unlike other cases that have considered applications for a writ of mandamus in the discovery context, none of the orders challenged in this matter involves an issue of first impression, nor have appellants/petitioners shown that they constitute a judicial usurpation of power, a clear abuse of discretion, or a manifest injustice. Thus, exercising jurisdiction to consider a writ of mandamus for these discovery orders is not appropriate and the petition for writ of mandamus is denied.