Case Caption: Dawn Montgomery v. Virgin Grand Villas St. John Owners’ AssociationCase Number: S. Ct. Civ. No. 2018-0043Date: 07/17/2019Author: Hodge, Rhys S. Citation: 2019 VI 27Summary: In an action by an owners’ association for unpaid dues against a deed holder of two unit-weeks of time share ownership in a condominium complex, while defendant’s notice of appeal was untimely, and she has not demonstrated excusable neglect or good cause for the delay, here the plaintiff has waived its right to challenge the timeliness of the appeal by failure to raise the issue. In this case the plaintiff association filed an untimely motion for summary judgment under formerly applicable provisions of Federal Rule of Civil Procedure 56(b), which allowed a party to file a motion for summary judgment at any time until 30 days after the close of all discovery. Accordingly, the April 23, 2018 judgment and order of foreclosure is vacated and the case is remanded for trial. In addition, the plaintiff association has failed to comply with the statutory mediation requirement under 28 V.I.C. § 531(b). On the facts presented, the Superior Court erred when it granted the plaintiff’s motion to deem mediation waived. Rather than constituting evidence of a good faith effort to resolve the matter through mediation, the substantial misrepresentations in plaintiff’s email an letter communications appear calculated to discourage the defendant from participating in mediation and – to the extent she may have failed to act in good faith by not responding to the correspondence – the Superior Court was obligated to consider appropriate alternate remedies to obtain her compliance and waive the application of § 531(b) only as a last resort. Consequently, the November 29, 2016 order granting the motion to deem mediation waived is vacated, and the Superior Court is directed to immediately refer this matter to mediation on remand. The case will be assigned to a different judge on remand.Attachment: Open Document or Opinion