2014 Published Opinions News Summary

Fri, 15 Mar 2019 20:13:00 GMT

In consolidated petitions for disciplinary action filed by the Ethics & Grievance Committee of the Virgin Islands Bar Association requesting approval of its recommendation, among other things, to disbar an attorney as a member of the Virgin Islands Bar, the petition is granted. Considering the duties violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors, involving multiple grievances and ethical violations, and aggravating factors, the appropriate aggregate sanctions for the 10 matters total an 84-month-or seven year-suspension from the practice of law. Disbarment is generally appropriate when a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client, and the attorney's conduct over all of these matters, when viewed in the aggregate, clearly establishes a pattern of negligent-and sometimes intentional-misconduct in unrelated client matters, over the span of several years, that caused serious or potentially serious injuries to clients, third parties, and the administration of justice in the Virgin Islands. The record is also replete with numerous aggravating factors-most notably failure to participate in the disciplinary proceedings despite receiving numerous opportunities to do so-and virtually nothing to support mitigation. Therefore, disbarment, the most serious sanction that can be imposed in an attorney discipline proceeding, represents the appropriate aggregate sanction for this attorney's repeated instances of ethical misconduct. The petition to disbar this attorney effective immediately, is granted and the payment of restitution as directed by the Committee, and payment of its costs in this proceeding, is ordered.

Fri, 15 Mar 2019 20:11:00 GMT

The defendant's convictions for first-degree murder, reckless endangerment, and use of a dangerous weapon during the commission of a crime of violence are affirmed, while his convictions for unauthorized possession of a firearm and third-degree assault are reversed. The jury instructions properly laid out the elements of first-degree murder under 14 V.I.C. § 922(a)(1) and - under the common law doctrine of transferred intent - the evidence was sufficient for the jury to find that defendant fired a weapon with the premeditated intent to kill one individual but killed another victim in the process, supporting his conviction for first-degree murder. Evidence that defendant fired a gun into a gathering of people was sufficient to support his convictions for reckless endangerment and for use of a dangerous weapon. On the charge of third-degree assault of a minor at the scene of the shooting, there was no evidence at trial that defendant intended to assault this youth, and his intent to kill another individual cannot be transferred to support the assault conviction, leaving the evidence insufficient to support that conviction. On the charge of unauthorized possession of a firearm during the commission of a crime of violence under 14 V.I.C. § 2253(a), the Superior Court denied defendant's confrontation rights by limiting his cross-examination of the firearms records witness who prepared two absence-of-entry forms indicating that search of firearms records revealed that he did not have a license to possess a firearm in the Virgin Islands at the time of the shooting. Those forms were clearly testimonial statements as defined by the Supreme Court of the United States, and - while the official who prepared both forms did testify at trial - a defendant is still denied the right to confront a witness where constitutionally impermissible restrictions are placed on cross-examination. Because the absence-of-entry forms were the only evidence supporting conviction for unauthorized possession of a firearm, it cannot be said that this error was harmless because the jury must have relied on them in returning a guilty verdict. Thus the conviction for unauthorized possession of a firearm during a crime of violence is reversed. The Superior Court did not deny defendant the right to an impartial jury or abuse its discretion by failing to strike three jurors or declare a mistrial following three incidents during trial. There is nothing in the record supporting the assertion of juror bias, and the Superior Court appropriately responded to each of these incidents. The Judgment and Commitment in this case is inconsistent in identifying the charges considered by the jury and the sentence announced at the sentencing hearing, and the case is remanded for amendment of the Judgment and Commitment to reflect the convictions and sentences imposed at the sentencing hearing.

Fri, 15 Mar 2019 20:09:00 GMT

No reversible error was committed during defendant's trial for several crimes relating to the rape of his minor daughter, and his convictions are affirmed. Biblical references made during closing arguments and at sentencing by the prosecutor were improper, but it is clear beyond a reasonable doubt that this error did not seriously affect the fairness or integrity of the proceedings. The testimony of the victim was sufficient to establish the elements of all the crimes charged, and sufficient to support his convictions. The defendant's convictions for child abuse under 14 V.I.C. § 505 are not unconstitutional on vagueness grounds as the statute is applied to this case since this defendant's conduct clearly fell within the ambit of what is prohibited by this statute, and defendant does not have standing to challenge the vagueness of the statute as applied to other situations. The sentences to periods of incarceration with five years suspended and credit for time served for four counts of the information are not split sentences. The provisions of 5 V.I.C. § 3711 are not applicable to these convictions, and defendant did not show how the suspensions affected his substantial rights. Since the trial court did not suspend any portion of the statutory minimum period of incarceration, or impose a term of probation or parole that would lower the period of incarceration below fifteen years, the suspension of sentence in this case was not error. All of the defendant's convictions are affirmed.

Fri, 15 Mar 2019 20:08:00 GMT

An order of the Superior Court dismissing this medical malpractice action based upon Federal Rule of Civil Procedure 25 for failure to make a motion for substitution in relation to a deceased party within 90 days of a notice of the defendant's death is summarily reversed. While Superior Court Rule 7 provides that the practice and procedure in that court shall be governed by the Rules of the Superior Court and, to the extent not inconsistent therewith, by the Federal Rules of Civil Procedure, that Rule does not vest litigants or the Superior Court with a license to ignore local Virgin Islands statutes and court rules and replace those requirements with federal law. In this case, 5 V.I.C. § 78 governs substitution of parties in a civil case upon death, and allows up to two years for a motion to allow the action to be continued by or against a decedent's personal representatives or successor in interest. This two-year limitations period, and not the 90-day period in Federal Rule of Civil Procedure 25, that governs substitution of deceased parties in Superior Court proceedings. Consequently, the Superior Court committed error when it applied Federal Rule 25 to the exclusion of 5 V.I.C. § 78. The August 23, 2013 Order is reversed and the case is remanded to the Superior Court for further proceedings.

Fri, 15 Mar 2019 20:06:00 GMT

In a disciplinary action brought by petition of the Ethics and Grievance Committee of the Virgin Islands Bar Association, requesting among other things an order suspending an attorney from the practice of law for six months, because the Committee violated this attorney's due process rights by allowing one of its members to serve as his counsel, the petition is denied without prejudice and the matter is remanded for the Committee to conduct a new hearing before a different panel. Under Model Rule for Lawyer Disciplinary Enforcement 2.6(1) as well as Model Rules of Professional Conduct 1.7 and 1.12 counsel could not permissibly represent this attorney while simultaneously serving on the Committee, let alone actually presiding over other grievances involving this attorney. To waive a conflict Model Rule of Professional Conduct 1.7(b)(4) requires informed consent and nothing in the record reflects that the attorney was ever informed that his counsel was also a member of two panels assigned to adjudicate other grievances that were pending against him. The attorney was likely prejudiced by the representation and even assuming, without deciding, that the attorney did not suffer direct prejudice, a new hearing is warranted because to hold otherwise would cause the public to question the integrity of the attorney discipline system.

Fri, 15 Mar 2019 20:04:00 GMT

In a proceeding to enforce a mediated settlement in an action for conversion and declaratory relief involving ownership of shares in a marine mass transit company, the Superior Court's order enforcing the agreement and ordering the plaintiff to sell his shares of stock to the corporation is affirmed in part and reversed in part. A mediated settlement agreement is an enforceable contract governed by basic contract principles, and a trial court has inherent power to supervise and enforce settlement agreements entered into by parties to a pending action. Thus the Superior Court did not err in concluding that it had the authority to enforce the parties' agreement. However, it erred in ordering plaintiff to sell his shares for $0.00 without the parties having first exhausted the agreed procedure for determining the fair market value of those shares. Because both parties failed to comply with the procedures outlined in the agreement, it was impossible for the two designated accountants to agree upon a firm fair market value for the stock that the parties could accept. The Superior Court should have enforced the terms of the entire agreement by requiring the parties to complete the specified valuation and appraisal process by retaining a third, independent accountant to establish a binding fair market value in light of the fact that the parties disagreed as to a firm value of the stock. The Superior Court's order of February 14, 2013 is reversed and the matter is remanded with instructions that the Superior Court administer the appointment of a third accountant to independently appraise the fair market value of the stock under strict deadlines, as contemplated under the parties' agreement.

Fri, 15 Mar 2019 20:03:00 GMT

In an action by owners and operators of numerous apartments in three complexes seeking to recover compensatory, consequential, and punitive damages allegedly caused by faulty polybutylene plumbing in their complexes, in a proposed class action, dismissal of the action against two of the corporate defendants based on lack of personal jurisdiction is affirmed. The Superior Court may exercise personal jurisdiction over an out-of-state defendant only where the plaintiff has satisfied the requirements of the long-arm statute, 5 V.I.C. § 4903, and the exercise of personal jurisdiction satisfies the requirements of due process. Because these defendants challenged the Superior Court's exercise of personal jurisdiction by pre-answer motion, it was the plaintiffs' burden to show that the court had personal jurisdiction. Because the Superior Court allowed jurisdictional discovery but did not hold an evidentiary hearing, plaintiffs were only required to establish a prima facie case for jurisdiction through evidence supporting their factual allegations. Nonetheless, nothing in any evidence plaintiffs submitted shows that these two defendants engaged in any activity at all in the Territory, let alone transacted any business in this territory as required for personal jurisdiction under 5 V.I.C. § 4903(a)(1). Similarly, under § 4903(a)(4), plaintiffs failed to show that these defendants regularly transacted or solicited business in the Virgin Islands, engaged in any other persistent course of conduct in the territory, or derived substantial revenue from goods or services consumed in the Virgin Islands. General assertions that these two defendants and other companies engaged in a nationwide campaign to create a market for polybutylene piping does not change the fact that plaintiffs failed to submit any evidence that either defendant engaged in business activities in the Territory as required by § 4903. Even if plaintiffs could proceed on a theory that these defendants were co-conspirators of another company that was subject to jurisdiction here, an issue not decided in this appeal, the general rule that a plaintiff must make a prima facie showing of the pertinent jurisdictional facts applies to any theory of conspiracy-based jurisdiction, and here there was no evidence that these two defendants knew or should have known that another company's activities would cause injury in the Virgin Islands. Consequently, plaintiffs failed to establish a prima facie case in support of the Superior Court's assertion of personal jurisdiction over these two defendants, it was not error to grant their motions to dismiss for lack of personal jurisdiction. Arguments concerning alleged failures to comply with discovery obligations relate to rulings that were not designated in the plaintiffs' notice of appeal as required V.I.S.CT.R. 4(c), and will not be addressed. The judgment appealed from is affirmed.

Fri, 15 Mar 2019 20:01:00 GMT

An attempted appeal from convictions for simple assault and battery and disturbing the peace is dismissed because the notice of appeal was filed well outside of the time allotted by Supreme Court Rule 5. Nothing in the present records supports the assertion that the Judgment and Commitment was not served upon defense counsel until shortly before the notice of appeal was filed. Supreme Court Rule 5(b)(1) provides that a notice of appeal must be filed within 30 days after the entry of a final order issued in a criminal case. While Rule 5(b)(6) allows this deadline to be extended by an additional 30 days upon a showing of excusable neglect or other good cause, the Superior Court lacked the authority to extend the deadline to 105 days after the entry of a final order. Under 4 V.I.C. § 31(b)(1) the Court sitting as a panel is vested with the authority to dismiss untimely appeals; the provision that the “Chief Justice alone” may dismiss an appeal does not mean that only the Chief Justice acting alone may dismiss an appeal, as noted in V.I.S.CT.I.O.P. 9.3.1. No statute or court rule allows the Superior Court to grant a defendant 105 days to file an appeal with this Court after the entry of a final judgment and, accordingly, despite its finding of good cause for the late appeal, the Superior Court erred in granting the motion for extension of time in this case. This notice of appeal is dismissed as untimely.