2013 Published Opinions News Summary

Mon, 18 Mar 2019 16:32:00 GMT

In a small claims proceeding by a former employee seeking to enforce a Department of Labor order for recovery of $915 in unpaid overtime compensation, the former employer's challenge to the order of the Appellate Division of the Superior Court affirming a magistrate's ruling is rejected. While the notice of appeal in this case was not filed within the required 30 days after the date of entry of judgment as required by V.I.S.CT. R. 5(a)(1), this provision is a case-processing rule and may, therefore, be waived by an opposing party's failure to object. Because it is apparent from the record that the employer's claim lacks merit, the interests of judicial economy are best served by direct review of the proceedings before the magistrate. In response to the Small Claims Division proceeding the former employer could have filed a written answer with a counterclaim, and had a number of opportunities to argue his counterclaim to the court in three separate appearances before a judge and the magistrate, but never mentioned any such counterclaim. Nor was there anything to prevent the employer from filing a separate small claims action for the amount he claimed that the former employee owed him. Because the employer had an adequate opportunity to raise his counterclaim before the magistrate-but failed to do so- the matter is deemed waived, as provided in V.I.S.CT. R. 4(h). Thus the Appellate Division did not err when it declined to address the arguments the employer raised in his brief on review, and its February 1, 2012 decision upholding a magistrate's ruling in favor of the former employee is affirmed.

Mon, 18 Mar 2019 16:31:00 GMT

Under the Court's exclusive jurisdiction to discipline members of the Virgin Islands Bar pursuant to 4 V.I.C. § 32, a petition by the Ethics and Grievance Committee of the Virgin Islands Bar Association for approval of its recommendation to suspend an attorney from the practice of law for a period of 12 months and requesting entry of an order requiring him to pay a specified monetary amount as restitution to the client is granted. A client who did not receive proceeds from settlement of a personal injury action for over one year, filed a grievance, and unsuccessful efforts to contact the attorney rendered the matter dormant for several years. Model Rule 8.1 is violated when an attorney who has been provided with numerous opportunities to respond to a grievance, inexplicably fails to do so. In addition, here the attorney violated Model Rule 1.15(d) by failing to provide the client with any of the proceeds from settlement of a civil action, and failing to respond to any of his inquiries. The Committee correctly classified the attorney's failure to participate in the disciplinary proceedings as an aggravating factor, and its recommendation for a 12-month suspension combined with $2,500 in restitution, plus interest, is approved. Given that a suspension for non-payment of dues is purely administrative, while the suspension ordered in this case is a sanction for serious professional misconduct, the suspension imposed as a sanction for the ethical violations shall run consecutive to administrative suspensions. The attorney shall be suspended from the practice of law for 12 months, which shall be consecutive to his present suspension for non-payment of dues, with the 12 month period beginning to run on the date the attorney pays all delinquent dues and late fees to the Virgin Islands Bar Association and would otherwise qualify for reinstatement under Supreme Court Rule 205(d). In addition, after receiving the Committee's calculation of prejudgment interest on the $2,500 restitution award, this Court shall issue an order requiring the attorney to pay restitution to the client. If he did not already do so after his prior suspension for non-payment of dues, the attorney shall also comply with Supreme Court Rule 207.5.5. Upon expiration of the 12-month period, the attorney may petition for reinstatement in accordance with Supreme Court Rule 203(h).

Mon, 18 Mar 2019 16:28:00 GMT

Concerning a petition for a writ of prohibition filed by an attorney under a fictitious name, requesting that the Supreme Court enjoin a panel of the Virgin Islands Bar Association Ethics and Grievance Committee from conducting further proceedings with respect to two pending grievances, the petitioner has not established that he or she is entitled to the writ. The language of Supreme Court Rule 207.1.3(a) providing that “[t]he Committee shall investigate all charges of professional misconduct that may be brought to its attention in writing, or it may initiate such investigation on its own," authorizes the Committee to investigate alleged misconduct even if the matter was not brought to its attention by a “grievant,” and this interpretation of the rule's language does not render the definition of “grievant” in Supreme Court Rule 207.1.2(a) meaningless. Thus, in this case, where Disciplinary Counsel initiated the first investigation sua sponte, and the second grievance came before the Committee as a result of a referral from a Superior Court magistrate, the Committee has not exceeded its authority by permitting both matters to proceed. In addition, the petitioner possesses an adequate alternate means of attaining the relief he or she desires, in that he or she may simply allow both pending proceedings to run their natural course, and if the Committee ultimately disagrees with his or her interpretation of the standing requirements of Rule 207, the petitioner could appeal the adverse decision to this Court, pursuant to Supreme Court Rule 207.4.11(a)-(b). Accordingly, the petitioner failed to establish that he or she has no adequate means to attain the desired relief other than the desired writ of prohibition, and failed to establish that his or her right to the writ is clear and indisputable; thus, the petition is denied.

Mon, 18 Mar 2019 16:27:00 GMT

In a foreclosure action by a bank against the purchaser of a condominium destroyed by a hurricane, in which insurance recovery became unavailable, the Superior Court erred in granting the bank's summary judgment motion by failing to view the evidence presented in the light most favorable to the non-movant, in this case the debtor. On the issue whether the debtor was in default under the terms of the note, his answers to interrogatories state that he suspended payments because he believed the debt was already paid in full due to a settlement the bank received from a previous lawsuit involving the insurance underwriter. The answers cannot be read as an admission by the debtor that he actually owed any remaining amount on the debt, and other information submitted showed at least one report to the IRS by the bank indicating that the loan had been repaid in full. Thus the Superior Court engaged in impermissible weighing of contested evidence on the material fact question of whether the debtor was in default under the note, and erred in granting the drastic remedy of summary judgment rather than permitting the case to go to trial on this material issue. However, the debtor's tort and contract counterclaims, filed against the bank 12 years after the alleged misrepresentations or breach of contract occurred, were barred by the statute of limitations, and the “continuing violations” doctrine deferring the running of the statutory period until the date of the last injury or when the wrongful conduct ceased, was correctly rejected by the Superior Court because he failed to set out a course of conduct which would be actionable and did not point to any particular wrongful act that occurred during the statute of limitations as required under the doctrine. The trial court's grant of summary judgment in favor of the bank on all of the counterclaims is affirmed, but its grant of summary judgment on the bank's claim on the note is reversed and the order of foreclosure is vacated.

Mon, 18 Mar 2019 16:19:00 GMT

The defendant's convictions under 20 V.I.C. § 493(a)(1) for driving while intoxicated, and 20 V.I.C. § 493(a)(2) for operating a motor vehicle while having 0.08 percent or more by weight of alcohol in his blood, are affirmed. The first count of the criminal complaint was not duplicitous in purportedly charging defendant with violating two distinct sections of the Virgin Islands Code, because § 493(b)(1) does not establish a separate offense, but only codifies the punishment for a violation of § 493(a)(1). Application of § 493(b)(1) did not violate the requirement set forth in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, since this is precisely what the Superior Court did in this case, when it required the jury to issue a special verdict as to whether the defendant was involved in a traffic accident at the time he violated § 493(a)(1). Nor was the special verdict itself invalid. The constitutional challenge to the portion of § 493(b)(1) prescribing an enhanced penalty for defendants involved in an accident is rejected: this section does not, in any way, criminalize “inherently innocent activity,” since it only applies if the person was involved in an accident violating subsection (a), and no authority exists for holding § 493(b)(1) unconstitutional. Defendant's challenge to the sufficiency of the evidence on a second count is also without merit, since the People clearly introduced evidence sufficient for conviction on the charge of operating a motor vehicle while having 0.08 percent or more by weight of alcohol in his blood. The breathalyzer device was explained and the witness testified to its administration in this case. However, the People agree that imposition of separate sentences for the convictions under both § 493(a)(1) and § 493(a)(2) violates the “one crime, one punishment” rule of 14 V.I.C. § 104. This establishes plain error, since the acts of driving under the influence and operating a motor vehicle with a blood alcohol content of 0.08 percent or greater clearly arose from “an indivisible course of conduct” and were part of an indivisible state of mind or coincident error of judgment, given that both offenses arose from the single act of operating an automobile after having consumed an excessive amount of alcohol. Therefore, this matter is remanded to the Superior Court with instructions to sentence the defendant for only one offense, refund any excess fine that has been paid, and dismiss the remaining count.

Mon, 18 Mar 2019 16:17:00 GMT

Considering an appeal from the Superior Court's February 3, 2012 Judgment and Commitment adjudicating the defendant guilty of third degree assault in violation of 14 V.I.C. § 297(2) and use of a deadly weapon during the commission of a crime of violence in violation of 14 V.I.C. § 2251(a)(2)(B) and imposing separate sentences for these offenses to be served consecutively, the defendant's argument that the Revised Organic Act of 1954, the Fifth Amendment of the United States Constitution, and 14 V.I.C. § 104 precluded the Superior Court from imposing separate punishments is rejected. Congress did not intend to confer greater double jeopardy protections upon the Virgin Islands than are provided under the Fifth Amendment to the Constitution of the United States, and in enacting 14 V.I.C. § 2251, the Virgin Islands Legislature intended to establish an exception to the general rule set forth in 14 V.I.C. § 104 and allow individuals to be punished for both violating 14 V.I.C. § 2251 and for committing the underlying crime of violence. In addition, because 14 V.I.C. § 104 and 14 V.I.C. § 2251 are not ambiguous, the rule of lenity does not apply so as to render the latter statute void. However, because restitution, when ordered as part of a criminal case, is part of the defendant's sentence, and because fixing the specific amount of restitution is a judicial act under Virgin Islands law as provided in 34 V.I.C. § 203(d)(3), the Superior Court erred when it delegated to the victim the authority to set the restitution amount. Thus, the matter is remanded to the Superior Court with respect to the restitution award. In addition, since 14 V.I.C. § 2251 allows either consecutive or concurrent sentences to be imposed, and it cannot be determined from the record whether the Superior Court imposed a consecutive sentence because it fully adopted the prosecution's position that it lacked the discretion to order a concurrent sentence, or if it was aware of applicable case law permitting it to impose either a concurrent or a consecutive sentence and simply exercised its discretion to impose the latter, on remand the Superior Court is authorized to correct the defendant's sentence in the event it imposed the consecutive sentences out of a mistaken belief that 14 V.I.C. § 2251 created a mandatory duty to impose consecutive sentences. The defendant's convictions are affirmed, but the February 3, 2012 Judgment and Commitment is vacated and the matter is remanded for re-sentencing.

Mon, 18 Mar 2019 16:15:00 GMT

In an action arising from a professional services agreement involving multiple businesses in the construction industry - with claims and counterclaims sounding in contract, fraud, breach of fiduciary duty, conversion and unjust enrichment - the Superior Court did not err by finding that a party was unjustly enriched because she exerted undue influence over the plaintiff in acquiring a parcel of property, but erred in granting an equitable lien in property owned by her. The Superior Court erred by denying a motion for a directed verdict on plaintiff's conversion claim, and abused its discretion by dismissing a counterclaim without considering whether good cause existed to grant the defendant an extension to serve the counterclaim or whether such an extension was otherwise warranted. The Superior Court did not err by prevented the jury from considering claims relating to certain projects under the services agreement because defendant testified that plaintiff recovered no money on these contracts, and hence the defendant's percentage of those contracts was zero and plaintiff owed him no money relating to those contracts. The judgment appealed from is affirmed in part and reversed in part. The portion of the judgment finding unjust enrichment at plaintiff's expense is affirmed. Other portions of the decrees and orders are reversed, and the matter is remanded to the Superior Court for further proceedings consistent with this opinion, including the entry of a new judgment affording a remedy on the unjust enrichment claim upheld in this appeal.

Mon, 18 Mar 2019 16:14:00 GMT

In a criminal trial where the defendant contended that the jury was hopelessly deadlocked after five and one-half days of deliberation, and that further instruction would be reversible error since a supplemental instruction in the nature of an Allen charge had already been given, the Superior Court did not abuse its discretion in declaring a mistrial. The test of manifest necessity in this context requires that a trial court make a sound decision, and close cases regarding the propriety of a mistrial are resolved in favor of the liberty of a citizen. Here the Superior Court was confronted with extraordinary and striking circumstances demonstrating a high degree of necessity that the trial come to a premature end, including sidebar conferences, non-unanimous verdict forms, a note from the jury foreman, the complexity of the charges, as well as the length of both the trial and deliberations. The Superior Court's action appears reasonable, and it cannot be concluded that it acted irrationally or irresponsibly, or upon reasons completely unrelated to trial problems, in finding that additional time for deliberations would not make a difference and that declaration of a mistrial was necessary due to the jury's inability to reach a unanimous verdict. The ultimate result reached by the Superior Court is affirmed based on this Court's consideration of the entire record and the totality of the circumstances, even if the Superior Court itself failed to do so. Thus there was no error in the later decision which denied the defendant's motion to dismiss the information on grounds that continued prosecution would violate the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution.