For Publication

            IN THE SUPREME COURT OF THE VIRGIN ISLANDS

 NELSON CRUZ                                       )    S Ct Civ No 2019 0060
 Appellant/Plaintiff                               )    Re Super Ct Civ No 209 2018 (STX)
                                                   )
 v                                                 )
                                                   )
 ST CROIX FINANCIAL CENTER INC                     )
 d/b/a TAMARIND REEF HOTEL                         )
 Appellee/Defendant                                )
                                                   )

                       On Appeal from the Superior Court of the Virgin Islands
                                        Division of St Croix
                           Superior Court Judge Hon Douglas A Brady

                                     Argued February 9 2021
                                       Filed February 9 2024

                                        Cite as 

]

BEFORE         RHYS S HODGE Chief Justice MARIA M CABRET Associate Justice and
               IVE ARLINGTON SWAN Associate Justice

APPEARANCES

Rhea R Lawrence, Esq
Lee J Rohn, Esq
Law Offices of Lee J Rohn and Associates LLC
St Croix, U S V I
       Attorneysfor Appellant,

Andrew C Simpson, Esq
Andrew C Simpson P C
St Croix, U S V I
       AttorneyfiJr Appellee

                                 OPINION OF THE COURT

CABRET, Associate Justice

{[1    Nelson Cruz appeals from the Superior Court’s June 25 2019 and March 2, 2020 orders
Cruz v St Crozx Fmanna] Center               

S Ct Civ No 2019 0060
Opinion of the Court
Page 2 of 10
which compelled arbitration and dismissed his complaint without prejudice           For the reasons

discussed below, we affirm

                                        I BACKGROUND

112     St Croix Financial Center, Inc (“SCFC”) owns and operates the Tamarind Reef Resort

and Green Cay Marina       In November 2016, SCFC hired Cruz as a maintenance worker at the

resort As part of the hiring process, Cruz signed an arbitration agreement that read, in its entirety

as follows

        I agree that I will settle any and all previously asserted claims, disputes or
        controversies arising out of or relating to my application or candidacy of
        employment, employment and/or cessation of employment with the Tamarind Reef
        Hotel, [and] the Deep End Bar      , exclusively by final and binding arbitration
        before a neutral Arbitrator By way of example only, such claims include claims
        under federal, state and local statutory or common laws, such as Age
        Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, as
        amended, including amendment of the Civil Rights Act of 1991, the Americans
        with Disabilities Act, the law of contract and law of tort

(J A 93)

113     After a series of incidents, SCFC terminated Cruz’s employment on May 8, 2017 On June

7, 2018, Cruz filed a complaint against SCFC in the Superior Court, asserting multiple causes of

action, including wrongful discharge SCFC filed an answer to the complaint on July 9, 2018, and

the parties then engaged in discovery However, on January 28, 2019, SCFC filed a motion to

compel arbitration and to dismiss Cruz’s complaint for lack of subject matter jurisdiction, based

on the arbitration agreement he had signed at hiring

114     Cruz filed a timely opposition to SCFC’s motion on February 19, 2019, which opposed

arbitration on numerous grounds, including that the agreement was unconscionable On May 7,

2019, Cruz filed a motion, which SCFC later opposed, that requested leave to file a supplemental

brief in opposition, to argue that the arbitration agreement did not extend to the causes of action
Cruz v St Crozx FImmoral Center             2024 VI II
S Ct Civ No 2019 0060
Opinion of the Court
Page 3 of 10
asserted in his complaint because he had agreed only to arbitrate “previously asserted claims ”

115     In a June 25, 2019 order, the Superior Court denied Cruz’s motion for leave to file a

supplemental brief on grounds that the arguments made therein were unpersuasive, and granted

SCFC’s motion to compel arbitration       The Superior Court, however, did not dismiss Cruz’s

complaint, but only ordered the proceeding stayed for 30 days so that the parties could meet and

confer to agree upon an arbitrator

1|6    Even though the Superior Court had not dismissed his complaint, Cruz filed a notice of

appeal with this Court on July 25 2019 which requested that the appeal be held in abeyance until

the Superior Court issued a final judgment dismissing the case       In addition, the parties never

agreed on an arbitrator or otherwise participated in the arbitration ordered by the Superior Court

The Superior Court, in a March 2, 2020 order, sua Sponte dismissed Cruz’s complaint without

prej udice in order to permit Cruz to proceed with his appeal of the June 25, 2019 order

                                        11 DISCUSSION

                             A Jurisdiction and Standard of Review

117    This 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)

Although on July 25, 2019, Cruz filed a notice of appeal with this Court from the Superior Court’s

June 25, 2019 order, that order did not dismiss his complaint, but only compelled arbitration and

stayed the proceeding for 30 days While courts remain deeply split on the question of whether an

order compelling arbitration but declining to dismiss the case constitutes an appealable final

judgment,l we need not decide that question because the Superior Court subsequently entered an


WGear Chevrolet C0 , 26 So 3d 1026, 1034 (Miss 2010); Kremer v
Rural Cmty Ins Co 788 N W 2d 538 549 (Neb 2010) Wem v Moms 944 A 2d 642 650 (N J
Cruz v S! Crozx Fmancml Center               2024 VI I l
S Ct Civ N0 2019 0060
Opinion of the Court
Page 4 of 10
order of dismissal on March 2 2020        See Rohn v People 57 V I 637 642 n 4 (V I 2012)

(observing that “subsequent events may ripen a prematurely filed appeal”) (quoting Harvey v

Chrzstopher 55 V I 565 571 (V I 2009)) accord V I R APP P 5(a)(l) (providing that a notice

of appeal filed before entry of a judgment or order “is treated as filed on the date of and after the

entry ofjudgment”)

1l8     “Our review ofthe Superior Court's application of law is plenary, while findings of fact are

reviewed for clear error ” Whyte v Bockmo, 69 V I 749, 754 (V I 2018) (internal quotation marks

and citation omitted) Because it constitutes a question of law, we “exercise plenary review [over

the Superior Court’s] conclusion that an arbitration clause is enforceable ” Id

                           B Construction of Arbitration Agreement

1|9     On appeal, Cruz renews his argument that the arbitration agreement he executed as part of

the hiring process does not encompass the causes of action in his complaint 2 Specifically, Cruz

maintains that he had only agreed to arbitrate “previously asserted claims,” I A 93, and that the

causes of action asserted in his complaint could not have been “previously asserted” because they


2008) Cabrmz Med Ctr v Desma 479 N E 2d 217 (N Y 1985) (holding that decisions denying
or compelling arbitration are final appealable orders) With Andrew v Am Imp Ctr , I 10 A 3d 626,
630 (D C 2015) Powell v Cannon 

 (Utah 2008) McGraw v Am Tobacco Co
681 S E 2d 96 106 (W Va 2009) Dennis v Jack Dennis Sports Inc 

 (Wyo
2011) (holding that such orders are not immediately appealable)
2 In its appellate brief, SCFC contends that this argument is not properly before this Court because
it had been made for the first time in Cruz’s motion to file a supplemental brief, which the Superior
Court ultimately denied We disagree Pursuant to Rule 4(h) of the Virgin Islands Rules of
Appellate Procedure, “[o]nly issues and arguments fairly presented to the Superior Court may be
presented for review on appeal ” “To determine whether an issue was fairly presented and
preserved for appeal, th[is] court disregards fonn and relies upon substance ” Ubiles v People, 66
V I 572, 583 (V I 2017) (internal quotation marks omitted) While, as a technical matter, the
Superior Court denied Cruz’s motion to file a supplemental brief, it expressly did so because “[t]he
substantive content” ofthe arguments made therein were “unpersuasive ” (J A 324 n 1) Because
the Superior Court had the opportunity to consider, review, and address his argument, Cruz fairly
presented this issue to the Superior Court See World Fresh Markets LLC v Henry, 71 V I 1161 ,
1172 (VI 2019)
Cruz v St Cram Fmancml Center                

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Opinion of the Court
Page 5 of IO
involve events that occurred after he signed the agreement in November 2016

1[10   We disagree Because arbitration agreements are contracts, we construe them in accordance

with general principles of contract law Whyte, 69 V I at 764 Thus, as with any other contract,

we “strive to most appropriately implement the intent of the parties ” Gov’t of the VI Dep’t of

Educ v St Thomas/St John Educ Admmzstrators Assn Local 10] 67V] 623 638 (VI 2017)

“Where the language of a contract is clear and unambiguous, the parties’ intent must be derived

from the plain meaning of its terms ” thlltp v Marsh Monsanto, 66 V I 612, 625 (V I 2017)

Importantly, in construing a contract, courts cannot interpret individual words or phrases “in

isolation” but rather must do so “in the context of the entire agreement ” Unzted Corp v Tutu

Park Ltd , 

 (V I 2011) In doing so, it must consider “what the[] words would

mean in the mouth of a normal speaker of English, using them in the circumstances in which they

were used ” Id at 719 n 14

1111   Here, Cruz places tremendous emphasis on the phrase “previously asserted claims ” (J A

93 ) He ignores, however, the language that occurs immediately after that phrase that he agrees

to arbitrate “previously asserted claims, disputes or controversies arising out of or relating to my

application or candidacy of employment, employment and/or cessation of employment ” (J A 93 )

Under traditional rules of English grammar, an adjective modifies a noun that immediately follows

it See Gzlbert v People 52 V I 350 357 (V I 2009) And as this Court has previously explained

pursuant to another traditional rule of English grammar the rule of the last antecedent          “a

limiting clause or phrase” is typically “read as modifying only the noun or phrase that it

immediately follows ’ Carty v People 

, 11 85

1[12   Here, the adjective phrase “previously asserted” immediately precedes the word “claims”

and the limiting clause “arising out of or relating to my application candidacy of employment,
Cruz v St Crozx Fmancml Center                

 I
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Opinion of the Court
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employment and/or cessation ofemployment” appears afier the phrase “disputes or controversies ”

As such, under traditional rules of English grammar, Cruz agreed to arbitrate two distinct and

independent types of matters with SCFC (1) “previously asserted claims,” and (2) “disputes or

controversies arising out ofor relating to my application or candidacy of employment, employment

and/or cessation ofemployment ” This construction is consistent not only with the rules of English

grammar, but common sense because Cruz executed the arbitration agreement as part of the hiring

process and had not yet commenced his employment with SCFC, it is literally impossible for him

to have “previously asserted” any “claims, disputes or controversies arising out of or relating to”

his “employment and/or cessation of employment ” In other words, were this Court to interpret

the arbitration agreement in the manner Cruz proposes, it would render the phrase “employment

and/or cessation of employment” completely superfluous See Weary v Long ReefCondo Ass'n,

57 V I 163, 175 (V I 2012) (“Any             reading which renders contract provisions pointless

superfluous, or ineffective violates basic notions of contract interpretation[] and leads to an absurd

result which should not be entertained”) (citations omitted) Because the causes of action asserted

in his complaint all relate to his employment and/or cessation of employment” with SCFC, the

Superior Court committed no error when it held that those claims are subject to arbitration

                                       C Unconscionability

‘13     Cruz flirther argues that the arbitration agreement he signed as part of the hiring process is

substantively unconscionable because it was a contract of adhesion “offered by [SCFC] on a take

it or leave it basis    and “had no waiver of costs provisions where financial hardship is

demonstrated ” (Appellant’s Br 21 ) SCFC counters by asserting that the Federal Arbitration Act,

9 U S C § 1 et seq (the “FAA”), governs this dispute and that the Supreme Court of the United

States has already held that an arbitration agreement’s silence as to allocation of costs, without
Cruz v St Crmx Fmanual Center                 

]
S Ct Civ No 20l9 0060
Opinion of the Court
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more, “is plainly insufficient to render it unenforceable” under the FAA Green Tree Fm Corp

v Randolph, 531 U S 79, 89 (2000)          Cruz, however, maintains that it is the Virgin Islands

common law of arbitration, and not the FAA, that governs this issue

1114     We agree with Cruz that the FAA is not applicable to this dispute Both this Court and the

United States Court of Appeals for the Third Circuit have held that “because the FAA is premised

on Congress’s power to regulate interstate commerce        and not Congress's plenary powers under

the territorial clause—even in the context of Virgin Islands local courts, ‘a contract comes within

the purview of the FAA only when an interstate nexus is shown,’ which ‘coincides with that of the

Commerce Clause         Allen v HOVENSA LLC 59 V I 430 442 n 2 (V I 2013) (quoting Gov t

ofthe VI v Unzted Indus Workers 169 F 3d 172 176 (3d Cir 1999)) It is the party seeking to

compel arbitration under the FAA that must “show that the contract evidences an interstate nexus ”

Whyte 69 VI at 761 62

{[15     In its June 25, 2019 order the Superior Court determined that “the activities of SCFC affect

interstate commerce” because the Tamarind Reef Resort provides lodging and a marina for off

island guests’ and because ‘ posted reviews at www tripadvisor com” include reviews “from guests

from at least 18 states in the United States and three foreign countries ” (J A 330) But these

findings are deficient in one very important respect they are not supported by any evidence in the

record

1116     SCFC as the party seeking to apply the FAA to this proceeding, possessed the burden of

proving an interstate nexus But while this burden is “relatively low,” Whyte, 69 V I at 761, it “is

not so low as to be non existent ” Johnson v Altamtrano 418 F Supp 3d 530, 564 (S D Cal

2019) In its motion to compel arbitration, SCFC stated that

                There is more than a sufficient interstate nexus in this case     Cruz was a
         maintenance worker at the Tamarind Reef Resort See Exhibit 2 (Letter, offer for
Cruz v St Crow: Fmanual Center                

S Ct Civ No 2019 0060
Opinion of the Court
Page 8 of IO
          full time employment) The resort provides lodging and a marina for off island
          resort guests and visitors See www taman'ndreefresort com See also the reviews
          at tripadvisor com, which frequently include the home location of the persons
          providing the review The Tamarind Reef Resort’s general business of providing
          lodging and marina berths for visitors from the Caribbean, the Continental United
          States, and abroad satisfies the interstate nexus requirement Thus, the FAA applies
          in this case

(J A 43 44 ) But “unswom representations of an attorney are not evidence ” Henry v Dennery,

55 V I      986   994 (V I    2011)    And while SCFC directed the Superior Court to the

www tamarindreefresort com and wwwtripadvisor com websites, it failed to provide copies of

those websites (or relevant portions thereof), and thus there is no way to ascertain the contents of

those websites and whether they provide the minimum evidentiary basis needed to establish those

facts This is particularly problematic given the naked citation to www tripadvisor com without

even referencing any particular review Importantly, it is well established that the truth or veracity

ofthe contents on a party’s own website are not facts amenable to judicial notice See V I R EVID

201(b)(2) (providing that judicial notice may be taken with respect to “a fact that is not subject to

reasonable dispute because it         can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned ’) see also See Rivera v Marmot! Int'l Inc , 456 F

Supp 3d 330 337 39 (D P R 2020) (denying a party 3 request for the court to take judicial notice

of a website for the truth of its contents) Judmal Nance ofMaterial on Internet, 29 AM J[JR 2D

Evidence § 95 (“A court may take judicial notice of Internet material, including Internet archive

documents, as well as the existence of websites and blogs, but it may not accept their contents as

true ”)    As a result, SCFC failed to meet even the ‘ relatively low” burden of establishing an

interstate nexus due to its complete failure to support its motion with any admissible evidence

1H7       Yet although the FAA is inapplicable to this matter due to SCFC’s failure to establish an

interstate nexus, we disagree with Cruz that the arbitration agreement is unconscionable under
February 9, 2024