AUBREY WALTERS, Appellant/Plaintiff v. ELVIRA WALTERS, Appellee/Defendant
Walters v. Walters
HODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice. SWAN
AUBREY WALTERS, Appellant/Plaintiff v. ELVIRA WALTERS, Appellee/Defendant
AUBREY WALTERS, Appellant/Plaintiff v. ELVIRA WALTERS, Appellee/Defendant
S. Ct. Civil No. 2010-0040
Supreme Court of the Virgin Islands
April 28, 2014
Aubrey Walters, St. John, USVI, Pro se.
Elvira Walters, St. John, USVI, Pro se.
HODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice. SWAN
Although Kenth W. Rogers drafted Appellant’s Brief and otherwise served as counsel to Aubrey Walters, this Court ordered his disbarment after this matter was submitted for consideration but before issuance of this Opinion. In re Disbarment of Rogers, 60 V.I. 295, 300 (V.I. 2013).
OPINION OF THE COURT
(April 28, 2014)
Hodge, Chief Justice.
Appellant Aubrey Walters appeals from a May 7, 2010 Order of the Superior Court dismissing his case for "insufficiency of evidence." He alleges that the trial court erred by denying his motion for summary judgment in his action for debt against his former wife, Elvira Walters, and that the court's actions were motivated by the trial judge's bias against him. Since Aubrey failed to introduce sufficient evidence at the summary judgment stage, and because there is no evidence the trial judge harbored any bias against him, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Aubrey and Elvira were married in 1993. At some point during their marriage, it appears that Elvira entered into a contract with Dina Alford under which she would make installment payments towards the purchase of Parcel No. 10-6D-1 Estate Glucksburg, 22 Cruz Bay Quarter, St. John, Virgin Islands. Although Aubrey apparently gave Elvira ten payments of $300 each towards the purchase, Aubrey avoided placing his name on the purchase contract because of unspecified "tax problems." Aubrey claimed to have "performed labor and supplied material for the construction of a residence" on that property in 2001, and that the value of the work was approximately $25,000. (J.A. 4.) He further alleged that he performed the work because Elvira had asserted that she was making payments on the property pursuant to a land purchase contract, and so Aubrey believed that Elvira owned the property. On May 21, 2002, Elvira "transferred" her interest in the property to her son, Garvin A. Hodge. Aubrey contends that he "made numerous demands for payment of the money owed" but that Elvira refused to pay him. (J.A. 5.) He further alleged that between February 1 and February 10, 2005, Elvira stole checks and forged his signature, obtaining $3,931.67, which she has never repaid despite demand.
On May 4, 2006, Aubrey sued Elvira in the Civil Division of the Superior Court, and the matter was assigned to the Honorable Brenda J. Hollar. After Aubrey filed his complaint, nothing further occurred until November 15, 2006, when he filed a summary judgment motion. During this time, Elvira and Aubrey were also parties to a divorce action before the Family Division of the Superior Court, which was assigned to the Honorable Audrey L. Thomas.
Judge Hollar held a hearing in the debt action on December 1, 2006, and directed Elvira — who appeared pro se — to respond to the summary judgment motion by January 8, 2007. When Elvira failed to file an opposition, Aubrey filed a motion on February 2,2007, to have the motion deemed conceded. Judge Hollar scheduled another hearing on the summary judgment motion for March 18, 2010, where she heard arguments. Although Aubrey was not present, his counsel attended the hearing and argued the summary judgment motion, stating that Aubrey performed work on the house, and that he was requesting $23,400 as the value of his work. When Aubrey's counsel noted that the house was not owned by Elvira, but instead by her son, Judge Hollar asked why Aubrey had filed an action against Elvira. Counsel responded that "[i]f someone request you to do work, then that person has a contract with you." (J.A. 27.) However, Aubrey's counsel could not point to evidence as to whether Aubrey was living at the house after he completed its construction, and conceded that "[t]here is no agreement that she would pay him." (J.A. 32.) Judge Hollar then denied the summary judgment motion because she found that there were questions of fact "as to whether a [cjontract was consummated, whether there was ever a meeting of the minds and what was the meeting[] of the mind[s] and when." (J.A. 33.) Counsel argued that because Elvira had never filed a response to the motion, the facts ought to have been deemed conceded. Before the hearing concluded, Judge Hollar advised Elvira and Aubrey's counsel that trial would occur on May 5, 2010.
Approximately 10 minutes before the scheduled start of trial on May 5, 2010, Aubrey filed a "Motion for Disqualification of Judge Brenda Hollar" with the Superior Court Clerk's Office. In his motion, Aubrey alleged that Judge Hollar and Judge Thomas were colluding together against Aubrey, based on their common religious activities, and that Judge Thomas had refused to set a trial date in the divorce action.
Because Aubrey's counsel filed the document less than 30 minutes before scheduled start of trial and failed to orally notify Judge Hollar of its filing, Judge Hollar did not rule on the motion — apparently unaware that it had even been filed — and proceeded with trial as scheduled. Although Elvira did not appear, Judge Hollar elected to proceed in her absence. Aubrey testified at the trial, and explained that he was suing Elvira for debt owed for his work on the Glucksberg property, which included clearing trees and brush, and constructing a home. He stated that he learned in "2006, 2007, somewhere around there" that the property was actually owned by Elvira's son. (J.A. 18.) However, he testified that he never asked Elvira to pay him for the work that he did.
After Aubrey concluded his testimony, and after his counsel's summation, Judge Hollar found that Aubrey and Elvira were married at the time of the construction; that he never asked her to pay for the work; that he did not know the value of the work performed; that he did not testify as to the location of the home nor did he provide any documentary evidence. From this, the court concluded that "there's insufficient evidence to establish that the debt is owed." (J.A. 20-21.) Consequently, Judge Hollar orally dismissed Aubrey's complaint, and later memorialized that decision in a May 7, 2010 Order.
On June 4, 2010, Aubrey filed a timely notice of appeal. Nevertheless, four months later, on September 9, 2010, Aubrey again moved for Judge Hollar's disqualification. In this motion, Aubrey alleged that Judge Hollar had "pervasive bias," and that "[i]t is obvious that Judge Hollar and Judge Thomas . are acting in concert," because they were members of the same church. Consequently, Aubrey alleged, Judge Hollar's alleged bias against Aubrey must be imputed to Judge Thomas, who "willfully refused to set a trial date based upon ex-parte communications between the court and Elvira Walters." (J.A. 47.) Judge Hollar denied the motion as moot, noting that the action was already on appeal.
II. JURISDICTION
"The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law." V.I. Code Ann. tit. 4, § 32(a). The Superior Court's May 7, 2010 Order dismissing the case with prejudice ended the litigation on the merits. Accordingly, it is a final order, and we therefore possess jurisdiction over this appeal. See, e.g., Pichierri v. Crowley, 59 V.I. 973, 977 (V.I. 2013) (order dismissing case with prejudice is a final order for purposes of 4 V.I.C. 32(a)).
III. DISCUSSION
In his appellate brief, Aubrey only challenges the denial of his summary judgment and recusal motions. We address each claim in turn.
A. The Summary Judgment Motion
We exercise plenary review over a decision granting or denying summary judgment. Pollara v. Chateau St. Croix, LLC, 58 V.I. 455, 468 (V.I. 2013); United Corp. v. Tutu Park Ltd., 55 V.I. 702, 707 (V.I. 2011); Williams v. United Corp., 50 V.I. 191, 194 (V.I. 2008) (citing Maduro v. Am. Airlines, Inc., S. Ct. Civ. No. 2007-0029, 2008 V.I. Supreme LEXIS 24, *7 (V.I. Feb. 28, 2008) (unpublished)). "On review, we apply the same test that the lower court should have utilized." United Corp., 55 V.I. at 707; see also Pollara, 58 V.I. at 468. "Because summary judgment is a drastic remedy, it should be granted only when 'the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.' " United Corp., 55 V.I. at 707 (quoting former wording of Fed. R. Civ. R 56(c)) (citations omitted); see also Anthony v. FirstBank V.I., 58 V.I. 224, 228-29 (V.I. 2013).
Before we consider the Superior Court's summary judgment decision, we must determine what causes of action Aubrey actually asserted. Although Aubrey failed to identify any substantive theory of liability in his complaint, his summary judgment motion argued that Elvira is liable to him in quantum memit, and owes him restitution under a theory of fraudulent conveyance. In light of Aubrey's judicial admissions, including his counsel's statement that no actual agreement existed between Aubrey and Elvira, as well as the Superior Court adjudicating the motion as if Aubrey had only raised quantum meruit and fraudulent conveyance claims, we construe Aubrey's complaint as only asserting these two causes of action.
1. Quantum Meruit
A cause of action for quantum meruit, also known as unjust enrichment, will ordinarily lie in a case where the defendant "receive[sj something of value to which he is not entitled and which he should restore" to the plaintiff. Maso v. Morales, 57 V.I. 627, 635 n.9 (V.I. 2012) (quoting Smith v. Whitener, 42 Ark. App. 225, 856 S.W.2d 328, 329 (1993)). Previously, this Court held that to prevail on a claim for unjust enrichment, the plaintiff bears the burden of proving (1) that the defendant was enriched, (2) that such enrichment was at the plaintiff's expense, and (3) "that the circumstances were such that in equity or good conscience [the defendant] should return the money or property to [the plaintiff]." Martin v. Martin, 54 V.I. 379, 394 (V.I. 2010) (citing Gov't Guarantee Fund of Republic of Finland v. Hyatt Corp., 955 F. Supp. 441, 460, 35 V.I. 356 (D. V.I. 1997)). However, this Court summarily adopted those elements of unjust enrichment by citing a single District Court of the Virgin Islands case, without determining whether that rule represents the sounder rule for the Virgin Islands. See Gov't of the V.I. v. Connor, 60 V.I. 599, 607 n.1 (V.I. 2014); Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967, 979 (V.I. 2011) (recognizing that the Legislature implicitly repealed 1 V.I.C. § 4 through its adoption of 4 V.I.C. § 21 in 2004). Moreover, after this Court issued its Martin decision, the American Law Institute adopted the Restatement (Third) of Restitution and Unjust Enrichment (2011), which differs from the three-factor test this Court previously endorsed.
Rather than blindly following our Martin decision, we shall consider "three non-dispositive factors" to determine the appropriate elements for an unjust enrichment claim under Virgin Islands common law: "(1) whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions; and (3) most importantly, which approach represents the soundest rule for the Virgin Islands." Simon v. Joseph, 59 V.I. 611, 623 (V.I. 2013) (citing Matthew v. Herman, 56 V.I. 674, 680-81 (V.I. 2012)). Because this Court in Martin adopted the three-element test discussed above, the focus of our analysis is whether the remaining two factors justify "disrupting] the state of the law in the Virgin Islands" by modifying that test. Banks, 55 V.I. at 981.
As to the second factor, the three elements adopted in Martin are the same elements that various jurisdictions follow including Colorado, Connecticut, Georgia, Illinois, Iowa, Kansas, Michigan, New Mexico, New York, Pennsylvania, and Washington. Appendix: Unjust Enrichment Cause of Action by State, 54 S. Tex. L. Rev. 265, 267-68 (2012) (collecting cases). Nevertheless, a clear majority of states have also adopted a fourth element — that the defendant has "appreciated the benefit" and "had knowledge or awareness that it was, in fact, receiving a benefit." Id. at 265-66. Moreover, a minority of jurisdictions also follow a position endorsed by the Restatement (Third) of Restitution and Unjust Enrichment, which has taken the position that no strict formula or test for unjust enrichment should exist, but that courts should simply be guided by the principle that "[a] person who is unjustly enriched at the expense of another is subject to liability in restitution." RESTATEMENT (THIRD) OF Restitution and Unjust Enrichment § 1 (2011). According to the authors of the Restatement, "[t]he attempt to make the list [of categories of liability] comprehensive cannot make it exclusive: cases may arise that fall outside every pattern of unjust enrichment except the rule of' section 1. Id. at § 1 cmt. a. Nevertheless, the Restatement proceeds to set forth five chapters and forty-four sections addressing particular liability issues. Notably, the United States Court of Appeals for the Third Circuit and the District Court, in recent cases adjudicated pursuant to their diversity jurisdiction, have predicted that this Court would adopt section 1 of the Third Restatement. Addie v. Kjaer, 737 F.3d 854, 865 n.5 (3d Cir. 2013); Hall v. Hall, Civ. No. 2011-54, 2013 U.S. Dist. LEXIS 112879, *20 (D.V.I. Aug. 9, 2013) (unpublished).
Turning to the third, and most important, factor — ascertaining the soundest rule for the Virgin Islands — we first reject the minority approach endorsed by section 1 of the Third Restatement. Although the authors of the Third Restatement maintain that setting forth specific elements for an unjust enrichment cause of action is "not helpful" and "can lead to serious errors" because "[tjhey lend a specious precision to an analysis that may be simple or complicated but which at any rate is not susceptible of this form of statement," Restatement (Third) of Restitution and Unjust Enrichment § 1 cmt. d, this section discounts the costs associated with an ad hoc case-by-case approach and the benefits of uniform and predictable outcomes. Tort law serves two fundamental purposes: "deterrence and compensation." Dickhoff v. Green, 836 N.W.2d 321, 336 (Minn. 2013); Jackson v. Chandler, 204 Ariz. 135, 61 P.3d 17, 19 (2003) ("[T]he basic policies underlying tort law [are] to deter wrongful conduct and compensate victims." (quoting DeLoach v. Alfred, 192 Ariz. 28, 960 P.2d 628, 633 (1998))); Steigman v. Outrigger Enters., Inc., 126 Haw. 133, 267 P.3d 1238, 1247 (2011) ("[T]ort law seeks to prevent injury where possible by providing incentive to deter negligent acts."); see also Jeffrey S. Quinn, Comment, Does Mass Product Tort Litigation Facilitate or Hinder Social Legislative Reform? A Comparative Study of Tobacco Regulation, 9 Rutgers J.L. & Pub. Pol'Y 106, 169-70 (2012) ("The deterrent theory of tort law is rather simple: tort law threatens people with having to pay for the injuries they produce; therefore, people will alter their behavior by taking into account the interests of others in a socially desirable and less injury-producing way."). While case-by-case adjudication of unjust enrichment claims, unbound by any particular set of elements, may allow for compensation in cases that would not otherwise fit the traditional test of an unjust enrichment claim, it does nothing to further society's interest in deterrence, in that neither individuals nor the attorneys that advise them will have any way of predicting whether a particular type of conduct will result in civil liability. Accordingly, we conclude that an unjust enrichment cause of action must have a concrete set of elements in order to further the deterrence purpose of tort law.
Nevertheless, we do conclude that the rule established in Martin requires modification. As noted earlier, a majority of United States jurisdictions have adopted a four-element test for unjust enrichment, consisting of the three Martin elements and an additional requirement that the defendant knew he or she was receiving a benefit or appreciated the benefit. The purpose of the knowledge element should be clear — the unjust enrichment tort, as its name implies, is concerned with preventing an unjust conferral of a benefit onto the defendant at the expense of the plaintiff. See Morris Pumps v. Centerline Piping, Inc., 273 Mich. App. 187, 729 N.W.2d 898, 904 (2006) ("[N]ot all enrichment is necessarily unjust in nature."). In the absence of a knowledge element, an individual could simply provide services for another, without their knowledge or consent, and then seek compensation for the value of the benefit conferred. See, e.g., Loewen v. Grand Rapids Medical Education Partners, No. 1:10-CV-1284, 2012 U.S. Dist. LEXIS 49476, *38 (W.D. Mich. Apr. 9, 2012) (unpublished) (no unjust enrichment when doctor exceeded 80-hour per week workload limit, when hospital did not request that doctor work extra hours and no evidence that doctor could expect additional compensation for excess work); Hughes v. Monnahan, 282 Minn. 407, 165 N.W.2d 231, 233 (1969) (no unjust enrichment when dwelling owner was unaware that dwelling occupants had contracted to remodel unit and failed to pay); Absher Constr. Corp. v. Collin, 233 A.D.2d 279, 649 N.Y.S.2d 174, 175 (1996) (no quantum memit damages when construction corporation performed services with no expectation of compensation). Thus, we reformulate the elements of the unjust enrichment cause of action to require the plaintiff to prove (1) that the defendant was enriched, (2) that such enrichment was at the plaintiff's expense, (3) that the defendant had appreciation or knowledge of the benefit, and (4) that the circumstances were such that in equity or good conscience the defendant should return the money or property to the plaintiff.
Applying this reformulated test, we conclude that Aubrey failed to meet his burden. Unquestionably, Aubrey's labor resulted in improvements to the property that enriched Elvira, and caused him to incur expenses, both for the actual costs of supplies and the opportunity cost of his labor. However, even if we were, as a result of Elvira's failure to respond, to accept as true all of the factual allegations in Aubrey's summary judgment motion, see Fed. R. Civ. R 56(e)(2) ("If a party fails . to properly address another party's assertion of fact as required by Rule 56(c), the court may: . . . consider the fact undisputed for purposes of the motion."), neither the undisputed statement of facts nor any record evidence establishes that Elvira ever requested that Aubrey perform these services, or that Aubrey had ever even broached the question of compensation or reimbursement with Elvira — who at the time was still his wife — during the pertinent time period. Consequently, since the finder of fact could — and ultimately did — conclude that Aubrey performed these services gratuitously without any expectation of payment, the Superior Court correctly denied summary judgment on the unjust enrichment or quantum meruit claim. See, e.g., Loewen, 2012 U.S. Dist. LEXIS 49476 at *38; Hughes, 165 N.W.2d at 233; Absher Constr. Corp., 649 N.Y.S.2d at 175.
2. Fraudulent Conveyance
In his summary judgment motion, Aubrey also argued that Elvira fraudulently conveyed the property to Hodge. Under Virgin Islands law, as it existed at the time Elvira transferred whatever interests she had in the Glucksburg property to Hodge, "[e]very conveyance made and every obligation incurred with actual intent as distinguished from intent presumed by law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors." 28 V.I.C. § 207. Where there is such a fraudulent conveyance, the creditor may maintain an action to have the transfer set aside. 5 V.I.C. § 1229.
Again, the Superior Court correctly denied Aubrey's motion for summary judgment on the fraudulent conveyance claim. First, we note that, despite asserting a fraudulent conveyance cause of action, at no point in the litigation did Aubrey ever request that the Superior Court provide the remedy authorized by section 1229: setting aside the transfer. More importantly, since a holding of fraudulent conveyance would impact Hodge's interest in the Glucksburg property, the Superior Court could not rule that Elvira fraudulently conveyed the property to Hodge until and unless Aubrey joined Hodge to the litigation as a necessary third party and provided him with a right to be heard on the matter. See Harvey v. Christopher, 55 V.I. 565, 574 n.6 (V.I. 2011) (explaining that the Superior Court may not affect the property rights of a third individual who is not a party to the underlying action). In any case, as explained above in the discussion of unjust enrichment, the record contains no evidence that Aubrey was Elvira's creditor, given that Aubrey failed to establish that Elvira was required to compensate or reimburse him for the services he performed. Furthermore, the fact that Elvira transferred the property to Hodge without consideration does not, without more, conclusively establish intent to defraud Aubrey — who prior to the transfer had never even demanded payment — so as to warrant the drastic remedy of summary judgment, since a rational trier of fact could infer that Elvira simply wished to provide a gift to her son. Thus, the Superior Court committed no error when it denied Aubrey's summary judgment motion.
B. The Recusal Motions
We now turn to the two motions demanding Judge Hollar's recusal, which were filed, respectively, 10 minutes before the start of the May 5, 2010 trial, and on September 9, 2010. As noted earlier, Judge Hollar never ruled on the May 5, 2010 motion, and denied the September 9, 2010 motion as moot because it was filed three months after Aubrey filed a notice of appeal with this Court. Because Aubrey does not include any legal argument in his brief challenging the denial of his September 9, 2010 motion, he has waived his right to appellate review of that decision. See V.I.S.Ct.R. 22(m) (issues not raised, or raised in a perfunctory manner, are waived). In any event, we agree that, by appealing the final judgment in this case on June 4, 2010, Aubrey divested the Superior Court of any jurisdiction to rule on his subsequently filed motion. See In re Rogers, 56 V.I. 325, 342 (V.I. 2012) ("[A]n effective notice of appeal of a final order typically divests the trial court of jurisdiction.") (citing In re Burke, 50 V.I. 346, 351 n.1 (V.I. 2008)). Consequently, we limit our review solely to the May 5, 2010 recusal motion.
In the Virgin Islands, section 284 of title 4 establishes the substantive standard for recusal of Superior Court judges, and it provides, in pertinent part, that "[n]o judge . . . shall sit or act as such in any action or proceeding . [w]hen it is made to appear probable that, by reason of bias or prejudice of such judge, a fair and impartial trial cannot be had before him." 4 V.I.C. § 284(4). "Section 286 of title 4 controls the procedure by which a complaining party may bring a motion for recusal and requires (1) that the motion be in writing and (2) that the motion be made first before the judge that the party seeks to disqualify." Benjamin v. AIG Ins. Co. of P.R., 56 V.I. 558, 569 (V.I. 2012) (citing 4 V.I.C. § 286).
We question whether Aubrey complied with the procedural requirements for filing a recusal motion. While Aubrey technically complied with section 286 by making a written motion for Judge Hollar's disqualification, the act of filing it with the Superior Court Clerk's Office literally 10 minutes before trial, combined with not informing Judge Hollar at the outset of trial that a recusal motion had been filed, unquestionably frustrated the clear purpose of section 286, which is to permit a judge to pass on his or her own competency in the first instance. Gov't of the V.I. v. Gereau, 502 F.2d 914, 932 (3d Cir. 1974). Some-appellate courts, when faced with similar abuses, have refused to entertain any claim of error, notwithstanding technical compliance with procedural rules. See, e.g., State v. Hansen, 42 Wn. App. 755, 714 P.2d 309, 313 (1986) (declining to review recusal issue, despite counsel's literal compliance with statute, because act of filing written request for disqualification minutes before trial constituted "a flagrant abuse of legislative intent" that if condoned "would lead to disruption of the orderly administration of justice for no legitimate reason").
In any event, we need not determine whether Aubrey's actions should result in waiver of the recusal issue because the May 5, 2010 motion — like numerous similar motions filed by Aubrey's counsel in -other cases — was wholly without merit, if not frivolous. "[B]efore a judge is required to recuse him or herself based on bias, the facts alleged by the party arguing for disqualification must 'reflect a clear probability that the judge is biased against that party.' " Benjamin, 56 V.I. at 569 (quoting Gereau, 502 F.2d at 932). In his May 5, 2010 motion, Aubrey simply made a naked claim that Judge Hollar is biased, supported solely by unsubstantiated allegations that (1) Judge Hollar and Judge Thomas share common religious activities, and (2) Judge Thomas had not set a trial date in the divorce action pending in the Family Division. In other words, Aubrey provided "no facts that would permit us to draw any inference that the trial judge was biased or prejudiced in any way," and premised his request for disqualification on nothing but "broad and completely unexplained assertions [that] fall well below the 'clear probability' standard." Id. (emphasis in original) (quoting Gereau, 502 F.2d at 932). Therefore, we hold that Judge Hollar committed no error by presiding over the May 5,2010 trial and issuing the May 7, 2010 Order dismissing Aubrey's complaint with prejudice.
IV. CONCLUSION
Because we find no error with the Superior Court's denial of Aubrey's motions for summary judgment and recusal, and Aubrey has failed to challenge the dismissal of his claims after trial on appeal, we affirm the May 7, 2010 Order.
CONCURRING OPINION
Because some of the individuals involved in this case possess the same last name, we refer to them by their first names to minimize confusion.
While Aubrey indicated that his name was not placed on the contract because of his purported tax problems, he also stated in his affidavit in support of his summary judgment motion that he was separated from Elvira at the time of the contract.
Aubrey's summary judgment motion indicates that Hodge purchased the property directly from Dina Alford. Consequently, it appears that Aubrey alleges that Elvira transferred whatever interest she might have had in the property as a result of the installment plan to her son.
However, soon thereafter counsel stated that "[y]ou know, an assumption or agreement, the point is, this is someone who is married to someone who did work based on an oral agreement." (J.A. 33.)
In his notice of appeal, Aubrey indicated that he intended to appeal the May 7,2010 Order dismissing his complaint with prejudice after trial. Because his brief contains no legal argument with respect to the May 7,2010 Order or a sufficient objection to the oral ruling that preceded it, Aubrey has waived his right to have that decision reviewed by this Court. See V.I.S.CT.R. 22(m) (issues not objected to before the Superior Court, not briefed, or only briefed in a perfunctory manner, are waived).
Although "unsworn representations of an attorney are not evidence," Henry v. Dennery, 55 V.I. 986, 994 (V.I. 2011), an attorney's client may nevertheless be bound by such statements under the doctrines of judicial admissions and judicial estoppel. See Arlington Funding Services, Inc. v. Geigel, 51 V.I. 118, 133 (V.I. 2009) (recognizing judicial admissions doctrine in the Virgin Islands), overruled in part on other grounds by Benjamin v. AIG Ins. Co. of P.R., 56 V.I. 558, 564 (V.I. 2012); see also Sobratti v. Tropical Shipping & Constr. Co., 267 F. Supp. 2d 455, 463 (D. V.I. 2003) ("Hence, a party is precluded from retreating from a factual claim, which he affirmatively asserted in support of his cause of action, simply to avoid summary judgment.") (collecting cases).
As noted earlier, Aubrey's complaint contained allegations that Elvira stole several checks from Aubrey, forged his signature, and obtained funds from his bank account without authorization. However, since Aubrey did not seek summary judgment for any cause of action even remotely related to this purported theft, the Superior Court correctly declined to determine whether summary judgment should have been granted or denied sua sponte. United Corp., 55 V.I. at 711.
The jurisdictions that follow this approach include Arkansas, Georgia, Hawaii, Kentucky, Massachusetts, Minnesota, Mississippi, Montana, Oklahoma, Vermont, Washington, and West Virginia. Powers v. Lycoming Engines, 245 F.R.D. 226, 231 n.16 (E.D. Pa. 2007), vacated on other grounds by 328 Fed. Appx. 121 (3d Cir. 2009).
"[W]hen exercising jurisdiction over cases requiring the application of Virgin Islands law," federal courts are "required to predict how the Supreme Court of the Virgin Islands would decide an issue of territorial law." Edwards v. HOVENSA, LLC, 497 F.3d 355, 362 n.3, 49 V.I. 1133 (3d Cir. 2007). Such predictions by the Third Circuit and the District Court, however, are not binding on either this Court or the Superior Court. Najawicz v. People, 58 V.I. 315, 328-29 (V.I. 2013).
In Walters v. Parrott, 58 V.I. 391, 404 (V.I. 2013), this Court quoted section 28 of the Third Restatement — which addresses equitable distribution of property by unmarried cohabitants — in providing an example of the Superior Court's jurisdiction over equitable actions. This citation to the Restatement was not necessary to the result in that case, and therefore was merely dictum. See Lander v. Schundler, 168 F.3d 92, 98 n.6 (3d Cir. 1999) ("we have repeatedly held that dicta are not binding"). Furthermore, we recognize that in Walters this Court cited 1 V.I.C. § 4 as authority despite its repeal. See Banks, 55 V.I. at 974-80 (recognizing that the statute vesting this Court with the "supreme judicial power" of the Territory implicitly repealed 1 V.I.C. § 4). But we recently explained that the Superior Court is not bound by this Court's "prior erroneous reliance" on 1 V.I.C. 4. Connor, 60 V.I. at 607 n.1 ("this Court has elected not to perpetuate its own prior erroneous reliance on 1 V.I.C. § 4, [and] the Superior Court... should not be foreclosed from departing from those holdings in an appropriate case").
We acknowledge that, even amongst the majority of jurisdictions, "[t]he necessary level of awareness varies from jurisdiction to jurisdiction." Powers, 245 F.R.D. at 231. On one extreme, "the defendant must have engaged in fraud, coercion, or other intentional conduct to induce (he benefit." Id. However, at (he other extreme, "a defendant's mere awareness of receipt of a benefit at the plaintiff's expense will suffice." Id. Since Aubrey failed to produce any evidence that Elvira was aware that he intended to make the improvements to the property, we need not resolve the extent of the knowledge requirement as part of this appeal.
The undisputed facts that Aubrey set forth in his summary judgment motion are as follows:
1. A warranty deed dated May 21, 2002 between Garvin A. Hodge of P.O. Box 1177, Cruz Bay, St. John, Virgin Islands and Dina Alford in the amount of $30,000 transferred property known as Parcel No. 10-6d-l Estate Glucksburg, St. John. The transfer was secured by a mortgage from Banco Popular dated October 22, 2002 in the sum of $22,803.00. (Exhibit 7)
2. The photographs attached hereto as Exhibits 1 to 6 inclusive show that there is a building structure located at Parcel No. 10-6d-l Estate Glucksburg, St. John.
3. The affidavit of Plaintiff establishes that said building was constructed with his labor and materials in the sum of $23,000.
4. The affidavit also establishes that defendant has never paid plaintiff for the labor or materials.
5. Public records clearly show that defendant transferred the property to Garvin Hodge without consideration.
6. Garvin Hodge is the adult son of Defendant.
7. Public records show that defendant owns Parcel 14-105 Frenchman's Bay, St. Thomas. The records also show that she claims to be a New York resident. (Exhibit 8)
(J.A. 54-55.)
In November 2011, the Legislature repealed chapter 9 of title 28 of the Virgin Islands Code — including section 207 — and replaced it with the Uniform Fraudulent Transfers Act. See Act No. 7322, § 1 (V.I. Reg. Sess. 2011). However, statutes, including the UFTA, are presumed to be applied prospectively, and not retroactively. Davis v. Omitowojou, 883 F.2d 1155, 1170 (3d Cir. 1989). Therefore, section 207 remains the applicable law for this case.
In his appellate brief, Aubrey also asserts, without providing any legal argument or citing to supporting authority, that this Court should reverse the denial of summary judgment "because Judge Hollar's bias caused her to intentionally misinterpret the uncontroverted facts and apply the incorrect law to those facts." (Appellant's Br. 12.) As we explain in greater detail in the following section, Aubrey's claim that Judge Hollar should have been disqualified from the underlying matter is wholly without merit. However, since our review of a summary judgment decision "is de novo with no deference given to any of the Superior Court's findings or conclusions," our decision to affirm the denial of summary judgment would render any potential error in this regard harmless. Martin, 54 V.I. at 388 n.5 (citing Hodge v. McGowan, 50 V.I. 296, 309 (V.I. 2008)).
Although not relevant to our disposition of the instant appeal, we cannotignore the fact that Aubrey's counsel, Kenth W. Rogers, has engaged in a pattern of filing vexatious recusal motions in all Virgin Islands courts. See, e.g., In re Disbarment of Rogers, 60 V.I. 295, 305 n.1; In re Rogers, 57 V.I. 553, 560 (V.I. 2012); In re Rogers, 56 V.I. at 329; Benjamin, 56 V.I. at 569. Notably, all of these recusal motions have either been clearly filed for the purposes of delaying the underlying proceedings, or have been so lacking in merit — in some instances, even containing demonstrably provable falsehoods, such as in the matter that contributed to his disbarment — so as to rise to the level of ethical misconduct. Had this Court not recently disbarred Rogers, we might be inclined to refer his similarly outrageous conduct in this case to the Ethics and Grievance Committee of the Virgin Islands Bar Association for further disciplinary proceedings. However, in light of his disbarment, we take this opportunity to emphasize and point to Supreme Court Rules 211.3.1, 211.3.3, 211.3.5(d), and 211.8.2(a), which provide, respectively, that it is ethical misconduct for an attorney to bring frivolous claims, to knowingly make false statements of fact to a tribunal, to engage in activities designed to disrupt a tribunal, and to knowingly make false statements concerning the integrity of a judge.