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vi/1063430.json

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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.\"}"

vi/1064489.json

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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.\"}"

vi/1066336.json

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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).\"}"

vi/1066400.json

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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.\"}"

vi/1068013.json

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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.\"}"

vi/1068058.json

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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).\"}"

vi/1068080.json

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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.\"}"

vi/1070444.json

@@ -0,0 +1 @@
+"{\"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.\"}"

vi/1070520.json

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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.\"}"

vi/1071655.json

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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.\\\"\"}"

vi/1071664.json

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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.\"}"

vi/1075094.json

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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.\"}"

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.\"}"

vi/1075226.json

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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.\"}"

vi/1076540.json

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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.\"}"

vi/1079338.json

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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.\"}"

vi/1079342.json

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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.\\\"\"}"

vi/1080444.json

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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.\"}"

vi/1080475.json

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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.\"}"

vi/1083067.json

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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.\\\"\"}"

vi/1084372.json

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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.\"}"

vi/1087487.json

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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.\"}"

vi/1090933.json

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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.\"}"

vi/1090949.json

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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.\"}"

vi/1092117.json

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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.\"}"

vi/1092126.json

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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.\"}"

vi/1094787.json

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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\"}"

vi/1095488.json

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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.\"}"

vi/1095534.json

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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.\"}"

vi/1098504.json

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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.\"}"

vi/1098535.json

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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).\"}"

vi/1099698.json

@@ -0,0 +1 @@
+"{\"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.\"}"

vi/1099715.json

@@ -0,0 +1 @@
+"{\"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.\"}"

vi/1099724.json

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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).\"}"

vi/1101017.json

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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.\"}"

vi/1103435.json

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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.\"}"

vi/1104501.json

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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).\"}"

vi/1104530.json

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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.\"}"

vi/1109937.json

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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.\"}"

vi/1112107.json

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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.\"}"

vi/1113692.json

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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.\"}"

vi/1115661.json

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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.\"}"

vi/1115688.json

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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.\"}"

vi/1115705.json

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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.\"}"

vi/1117137.json

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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.\"}"

vi/1117208.json

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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.\"}"

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.\"}"