SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
KARISMA M ELIEN
PLAINTIFF, Civil No SX 18 CV 195
V ACTION FOR DAMAGES
NAUTI ENTERPRISES WORLDWIDE JURY TRIAL DEMANDED
INC D/B/A NAUTI BAR & GRILL COLLIN
TRAINOR AND CARLYLE BRYAN CITE AS 2022 v1 511111311194
DEFENDANTS
Appearances
Trudy Fenster, Esq
Law Office of Trudy Fenster P C
St Croix U S Virgin Islands
For Plamtlfl
William E Crabill, Esq
Cole Scott & Kissane, P A
Miami Florida
For Defendant Carlfle Bryn:
Eric Hill, Esq
Justin E King, Esq
Kennedys Law LLP
Miami Florida
For Defendant Nam: Enterpm es
Worldwzde Inc d/b/a Nam: Bar & Grill
MEMORANDUM OPINION AND ORDER
WILLOCKS Presiding Judge
‘1[ 1 THIS MATTER came before the Court for review sua sponte
BACKGROUND
‘l[ 2 On December 30 2021 Plaintiff Karisma M Elien (hereinafter Plaintiff’ ) filed a motion
to appoint a personal representative for the estate of Defendant Collin Trainor (hereinafter
Trainor ) to substitute the same for Defendant Trainer and a hearing on the matter
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‘|[ 3 On January 19, 2021 Plaintiff filed a notice of filing proof of service of her December 30
2021 motion upon Joel Treanor On that same date, Eric A Hiller Esq and Justin E King Esq
of Kennedys CMK LLP counsel for Defendant Nauti Enterprises Worldwide Inc d/b/a Nauti Bar
& Grill (hereinafter Nauti ) and former counsel for Defendant Trainor, filed a corrective notice
regarding the estate of Collin Trainor
‘][ 4 On January 25 2022 order the Court entered an order whereby the Court ordered inter
alia that within thirty (30) days from the date of entry of this Order Plaintiff shall SERVE a
copy of her December 30 2021 motion and a copy of this Order on Joel Treanor with the method
of service in compliance with the Virgin Islands Rules of Civil Procedure and FILE THE
PROOFS OF SERVICE thereto and UPON THE TIMELY F[LING OF THE PROOFS OF
SERVICE Plaintiff s December 30 2021 motion for the appointment of Joel Treanor as the
personal representative of Defendant Trainor s estate is GRANTED Plaintiff’s December 30,
2021 motion for the substitution of Joel Treanor as the personal representative of Defendant
Trainor s estate in place of Defendant Trainor is GRANTED Joel Treanor is APPOINTED as
the personal representative of Defendant Trainor s estate and Joel Treanor as the personal
representative of Defendant Trainor’s estate is SUBSTITUTED in place of Defendant Trainor
and that ‘Plaintiff’s December 30 2021 motion for a hearing on the matter is DENIED (Jan 25
2022 Order) (emphasis in original )'
' In the January 25 2022 order the Court explained
Plaintiff’s December 30a 2021 motion to appoint a personal regresentative for the estate of Defendant
Trainor, to substitute the same for the deceased Defendant, and a hearing on the matter
In her motion Plaintiff moved the Court to “substitute Mr [Joel] Treanor as the personal
representative for the deceased party in accordance wtth Title 5 V I C § 78 and Rule 25 of the Virgin Islands
Rule 0t Civil Procedure and a hearing on the matter (Dec 30 2021 Motion pp 1 “1 ) Plaintiff advised the
Court that “[oln September 16 2021, former counsel tor Collin Treanor [sic] deceased, informed
undersigned counsel that Joel Tremor, the brother of the deceased who resides at 1490 Stacey Road
Fairview Texas 75069, is handling the affairs ot the deceased in Texas ’(Id at p 2 )Plaintitt further advised
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(II 5 On January 25, 2022 Plaintiff refiled a notice of filing proof of service of her December
30 2021 motion upon Joel Treanor
‘|[ 6 On January 27 2022 Plaintiff filed a notice whereby Plaintiff advised the Court of her
compliance with the Court 3 January 25 2022 order to wit a copy of the January 25 2022 order
and a copy of her December 30 2021 motion were served upon Joel Treanor On the same date,
Eric A Hiller Esq filed a notice whereby he advised the Court that the January 19 2021 notice
shall serve as [its] response to [P]laintiff’s Motion, which is due to be summarily denied (Jan
27 2022 Hiller Notice)
that “[a] process server has been engaged to personally serve Mr [Joel] Treanor and that [nlotice of service
will be filed with the Court once received (Id ) As of the date of this Order no opposition was filed in
response to Plaintitf’s December 30 2021 motion
Under Rule 25 01 the Virgin Islands Rule 01 Civil Procedure (hereinafter Rule 75 ) [ill a party
dies and the claim is not extinguished the court may order substitution of the proper party and ‘[a] motion
for substitution may be made by any party or by the decedent‘s successor or representative which “may be
granted at any time within two years alter the death V I R Civ P 25(1) Under Title 5 V I C § 78 lnlo
action shall abate by the death or disability of a party or by the transfer 01 any interest therein, if the cause 01
action survives 0r continues’ and “[iln case of the death or disability of a party the court may at any time
within tw0 years thereafter on motion allow the action to be continued by or against his personal
representatives or successor in interest Title 5 V I C § 78 Having been advised on the premises the Court
is inclined to grant Plaintifl 5 December 30 2021 motion tor the appointment of Joel Treanor as the personal
representative of Detendant Trainor s estate and for the substitution of Joel Treanor as the personal
representative of Detendant Trainor s estate in place 01 Defendant Trainor However the record does not
reflect that Plaintiff served a copy 01 her December 30 2021 motion upon Joel Treanor to wit as 01 the
date of this Order no proof of service has been filed Accordingly the Court will order Plaintiff to serve a
copy of her December 30 2021 motion and a copy of this Order on Joel Treanor and file the proofs of service
thereto Upon the timely tiling ot the proofs of service Plaintitf 5 December 30 2021 motion is granted for
the appointment of Joel Treanor as the personal representative 0! Defendant Trainor s estate and for the
substitution 01 Joel Treanor as the personal representative of Defendant Trainor s estate in place of Defendant
Trainor Joel Treanor is appointed as the personal representative of Defendant Trainor s estate and Joel
Treanor as the personal representative of Defendant Trainor s estate is substituted in place of Detendant
Trainor The Court will deny Plaintiff 5 December 30 2021 motion for a hearing on the matter
(Jan 25 2022 Order pp 2 3)
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DISCUSSION
‘7 For reasons unknown, the two notices filed on January 19, 2021 were not reflected on the
docket and the Court was unaware of those notices when the Court prepared and entered the
January 25 2022 order
Y8 In their January 19, 2022 notice Eric A Hiller Esq and Justin E King, Esq advised the
Court of the following
12 On September 15, 2021, the undersigned received information, which later
provided to be inaccurate, that the brother of the deceased, Joel Treanor, was next of kin
and would be handling his brother’s affairs Acting in good faith, the undersigned served
Joel Treanor with the Suggestion ofDeath on September 28, 2021 and provided his address
to plaintiff
13 Thereafter, the parties submitted a Joint Notice and Motion to Modify the
Scheduling Order, providing time for plaintiff to move to appoint Joel Treanor as a personal
representative to the estate Plaintiff served Joel Treanor with such motion on or about
January 6 2022
14 Following receipt of service, Joel Treanor contacted undersigneds on January
14 2022, and informed them that he was not an administrator, beneficiary or even heir to
his brother’s estate
15 In good faith undersigned immediately emailed plaintiff’s counsel to inform
her and drafted the instant notice
16 The undersigneds’ “attorney client relationship” with Collin Treanor “was
severed at the time of [his] death”, Id at 2, and they no longer have “standing, to file a
motion [or opposition] on his behalf ” Id at *2, n 5 At this time, the undersigneds have
not been retained to represent the Estate of Collin Treanor, nor Joel Treanor
17 Therefore, undersigned files this notice only to correct the record and clarify
that Joel Treanor is neither a beneficiary, administrator, nor heir to his brother’s estate In
short, Joel Treanor was not the proper party to accept service of the Suggestion of Death
18 As it now stands, undersigneds are unaware of the status of any probate matters
or whether the Superior Court has appointed an administrator for Collin Treanor’s estate
(Jan 19 2022 Hiller and King Notice)
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‘]l 9 In light of Eric A Hiller Esq and Justin E King Esq slanuary 19 2022 notice the Court
must revisit Plaintiff’s December 30 2021 motion to appoint Joel Treanor as the personal
representative of Defendant Trainer 5 estate and substitute Joel Treanor as the personal
representative of Defendant Trainor s estate in place of Defendant Trainer
‘11 10 Before the Court proceeds any further the Court must clarify that an estate exists upon the
death of the decedent regardless of whether someone has purported to open the estate in a formal
probate proceeding See Augustin v Hess 011 Virgin Islands Corp 67 V I 488 514 (VI Super
Ct Aug 23, 20l7)( The Personal Representatives are correct in one regard an estate exists upon
the death of the decedent, whether a probate has been opened or not The opening of probate does
not create an estate ) The formal probate proceedings are for the administration of the estate of
the decedent Cf. V I R Prob 3(a) ( ‘The initial step in the administration of the estate of a person
who died testate I e , leaving a will is the filing of the petition for probate of the will and for
issuance of letters testamentary approving appointment of an executor or administrator authorized
to administer the estate ), VI R Prob 4(a) (“If the deceased died intestate ie without leaving
a will the initial step in the administration of the estate is the filing of a petition for administration
and for letters of administration )
A Standard of Review
‘1] l 1 Under Title 5 V I C § 77, claims arising out of a wrong which results in physical injury to
the person or out of a statute imposing liability for such injury shall not abate by reason of the
death of the wrongdoer or any other person liable for damages for such injury nor by reason of
the death of the person injured or of any other person who owns any such thing in action Title 5
V I C § 77 If a claim has been filed and is still pending when the person dies, the procedure for
the substitution of the decedent 3 personal representatives or successor requires a motion and is
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governed by Title 5 V I C § 78 (hereinafter Section 78 ) and Rule 25 of the Virgin Islands Rules
of Civil Procedure (hereinafter Rule 25 ) Title 5 V [C § 78 ° V I R CIv P 25 1 Both Section
78 and Rule 25 set forth a two year deadline after the date of the death to file the motion for
substitution Id While some jurisdictions require a personal representative such as an executor or
an administrator to be appointed first by opening an estate via a formal probate proceeding the
Virgin Islands Supreme Court, in promulgating Rule l7(e) of Virgin Islands Rules of Civil
Procedure (hereinafter Rule l7(e) ) expressly eliminated the requirement to open an estate via a
formal probate proceeding as a prerequisite for a plaintiff bringing or maintaining wrongful death
Title 5 V I C § 78 provides
§ 78 Substitution 0t parties
No action shall abate by the death or disability of a party or by the transter 01 any interest therein it the cause
0! action survives or continues In case of the death or disability of a party the court may at any time within
tw0 years thereafter on motion allow the action to be continued by or against his personal representatives
or successor in interest
Title5 VIC §78
‘ Rule 25(a) provides in relevant part
Rule 25 Substitution of Parties
(a) Death
(l) Substimnnn 1f the Clam: Is Not Emugmshed If a party dies and the claim is not extinguished the court
may order substitution ot the proper party A motion for substitution may be made by any party or by the
decedents successor or representative The motion may be granted at any time within two years after the
death
(2) Continuation Among the Remammg Pames Atter a partys death, it the right sought to be enforced
survives only to or against the remaining parties the action does not abate but proceeds in tavor 01 or against
the remaining parties The death should be noted on the record
(3} Sen ((9 A motion to substitute together with a notice of hearing, must be served on the parties as provided
in Rule 5 and on nonparties as provided in Rule 4 A statement noting death must be served in the same
manner
V! R CIV P 25(a)
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suits filed under Title 5 V I C § 76 and survival actions filed under Title 5 V I C § 77 See V I
R Clv P l7(e) 4 see also Raymond v Assefa 69 v 1 953 (v I 2018) 5
B Analysis
‘|[ l2 The Court notes at the outset that Plaintiff’s December 30 2021 motion was timely filed
within the two year deadline set forth in Section 78 and Rule 25
1! 13 In the Virgin Islands, personal injury claims survive after a person 5 death See Title 5
V I C § 77 In her first amended complaint Plaintiff alleged that Defendant Trainer 5 conduct
caused her to sustain physical injury 6 As such, the Court finds that Plaintiff’ 5 personal injury claim
against Defendant Trainor did not abate by reason of Defendant Trainor 5 death
4 Rule l7(e) of Virgin Islands Rules 0t Civil Procedure provides
Rule l7 Plaintitt and Defendant Capacity Public Otfieers
(e) Actions tor Wrongful Death and Survival
In wrongful death suits filed under 5 V I C § 76 and in survival actions filed under 5 V I C § 77 the action
may be prosecuted in the name of a plaintift identified in the complaint as acting as a personal representative
The named plaintift shall servg as personal representative throughout the proceeding unless replaced by order
ot the court
Vl R CIV P [7(e)
‘ The Virgin Islands Supreme Court pointed out in Ratmoud
Importantly the accompanying Advisory Committee Note emphasizes that the purpose of Rule l7(e) is to
clarify that a probate estate need not be opened as a prerequisite to appointment of a personal representative
under sections 76 or 77
Subpart (e) is a provision dealing specifically with wrongful death and survival actions under 5
V I C §76 and § 77 To avoid am mmecessar) requirement to open an estate and to permit swift
commencement 0t proceedings where required for statute 0t limitations or other purposes, this
subpart oi the rule provides that an action may be prosecuted in the name of a plaintiff who is
identified in the complaint as acting as a personal representative although court appointment to that
position has not at that time been made The named plaintift will serve as personal representative
throughout the proceeding unless replaced by order of the court VI R Clv P 17 ADVISORY
COMMITTEE NOTE (emphasis added)
Ratmrmd 69 VI at 958 59
“ In her first amended complaint Plaintitt alleged inter alia
2| That as a direct and proximate result 0t one or more of these negligent acts and/or omissions of the
Delendants individually and by and through their agents servants and employees the Plaintiff was caused to
fall in grease on the floor and injure herself
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1] 14 However, in this instance, Rule l7(e) is not applicable here since Rule 17(e) only expressly
eliminates the requirement to open an estate as a prerequisite for a plaintiff bringing or
maintaining wrongful death suits filed under Title 5 V I C § 76 and survival actions filed under
Title 5 V I C § 77, and does not contemplate whether an estate must be Opened first via a formal
probate proceeding when the decedent is the defendant 7 See V I R Civ P 17, Advisory
Committee Note (“Subpart (e) is a provision dealing specifically with wrongful death and survival
actions under 5 V I C §76 and § 77 To avoid any unnecessary requirement to open an estate, and
to permit swift commencement of proceedings where required for statute of limitations or other
purposes, this subpart of the rule provides that an action may be prosecuted in the name of a
plaintiff who is identified in the complaint as acting as a personal representative, although
court appointment to that position has not at that time been made The named plaintiff will serve
as personal representative throughout the proceeding unless replaced by order of the court ”)
(emphasis added) Thus, the Court must determine whether an estate must be opened first via a
formal probate proceeding for Defendant Trainer before the appointment of a personal
representative to substitute in place of Defendant Trainor in this matter Currently, there are no
22 That as a direct and proximate result of this fall the Plaintiff has suffered severe extensive recurring and
permanent injuries both externally and intemally and was and will continue to be hindered in attending to
usual duties and affairs and has lost and will in the future lose the value of this time
(PAC)
7 The Court finds the pertinent language of Rule l7(e) plain and unambiguous, and thereby the Court will give effect
to the plain words of the rule See Banks quS v Dore 57 Vl 105 113 14 (Super Ct Oct 19 20l2)
(citing Conaspe v People, 53 V 1 470 480 481 (V l 2010) (“The rules of this Court are applied using the same
standards which govern the construction of statutes’ and “the primary objective of the trial court is to give effect to
plain words utilized in the subject rule ’)' People v Rivera 54 V l l 16, 125 (Super Ct 2010) (“The procedural rules
of courts are construed in accordance with the canons of statutory construction ”), In re People, 49 V 1 297 306 (V l
2007)) (“We believe the pertinent language is plain and unambiguous, thereby dispensing with a resort to the canons
of construction ‘) If the drafter of the Virgin Islands Rules of Civil Procedure intended to eliminate the requirement
to open an estate as a prerequisite for both plaintiffs and defendants they clearly could have done so by including such
language
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Virgin Islands laws or rules and no prior precedent from the Virgin Islands Supreme Court
addressing this issue Assume for argument 5 sake that an estate need not be opened first via a
formal probate proceeding, can anyone be appointed as the personal representative of Defendant
Trainor s estate, even an unwilling participant to this fiduciary role? The Court 5 concern is that
an unwilling participant may not litigate with the best interest of Defendant Trainor’s estate in
mind and instead may simply concede to everything or do nothing to make the case go away On
the other hand assume for argument 5 sake that an estate must be opened first via a formal probate
proceeding then must the Court appoint the executor/administrator of the probated estate to be the
personal representative or can anyone be appointed as the personal representative? In Augustm,
the court pointed out that Virgin Islands law does not define the phrase personal representative
at least not in the context of prosecuting 0r defending civil actions in court and thus, the court
had concerns regarding the capacity of the personal representative 67 V I at 506 The Augustin
court also pointed out that Title 5 V IC § 4901 and Title 15 V I C § 60| support viewing the
terms “executor administrator and “personal representative synonymously and also noted the
resulting conflict between Title [5 V I C § 601 and Title 5 V I C § 78 if these terms of art are not
synonymous 8 Moreover, the Augustm court had the following concerns regarding the appointment
of a personal representative without first opening an estate via formal probate proceeding
8 The Augustin court stated
ltthe phrase personalreprcsentative does not include‘executor and ‘administrator”meaningtheseterms
0t art are not synonymous then section 60! which directs that the executor or administrator must continue
the action alter death directly conflicts with sections 78 of title 5 which directs that the personal
representative continues the action after death Compare IS VIC § 601 ( When the cause of action
survives as herein provided the executors or administrators may maintain an action thereon against the party
against whom the cause 0t action accrued or alter his death against his personal representatives ) mth 5
V I C § 78 ( In case ot the death or disability ot a party the court may allow the action to be continued
by his personal representatives ) But if executors and administrators are simply two types or species as
the Personal Representatives put it, of personal representatives just as magistrates judges and justices are
all types of judicial officers then there is no conflict A personal representative would include both an
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The Personal Representatives are correct in one regard an estate exists upon the death
of the decedent whether a probate has been opened or not The opening of probate does
not create an estate (Supp Br 13 )
“The term probate is commonly used with reference to the formal establishment of
a document as the last will and testament of the testator as a basis for the distribution
of his property and the issuance of letters testamentary to the persons named therein
as executors The term probate, however, also has a broader meaning
including all proceedings incident to the administration and settlement of estates
and perhaps also the establishment of the meaning of a will as well as its execution
In re Estate ofAlexander 63 A D 2d 612 405 N Y S 2d 613 614 (1978) (Murphy P J
dissenting) (quoting Chase Natl Bank v Chicago Title & Trust Co 164 Misc 508 299
N Y S 926 941 (Sup Ct 1934)) accord In re WI” ofLamb 303 N C 452 279 S E 2d
781 786 (1981)( The word probate means the judicial process by which a court of
competent jurisdiction in a duly constituted proceeding tests the validity of the instrument
before the court, and ascertains whether or not it is the last will of the deceased (citing In
re WI” ofMarks 259 N C 326 130 S E 2d 673 (I963) Brwsze v Craig 232 N C 701 62
S E 2d 330 (1950) Steven s Executors 11 Smart 3 Executors 4 N C 83 (1814))
It is this broader and more general sense of the word probate the Court had in mind, the
proceedings to administer settle, and transfer one persons property both real and
personal including choses in action to another and how courts in the Virgin Islands
empower a personal representative to take on some of this responsibility if letters
testamentary or of administration are not issued If the Court was imprecise earlier, the
Court elaborates here, because one of the reservations the Court had concerned potential
creditors particularly if the phrase personal representative was intended to be synonymous
with the terms executor or administrator as well as other heirs of the decedent
If personal representatives are appointed in the Superior Court of the Virgin Islands through
what are essentially ex parte non adversarial miscellaneous proceedings that give a
semblance of legal status to an estate but without formally opening an estate or for
example giving notice to creditors or requiring that the personal representative acting on
the estate 3 behalf be bonded Alumina Dust Claims 2017 V I LEXIS 2 at *33
n 3 (citing 15 V IC § 239(a)) then indeed [c]oncerns could arise Id First the judge
presiding over the civil action has no assurances that the personal representative appointed
by the Probate Court is the proper party But see V I R CIv P 25(a)(l) ( If a party dies
and the claim is not extinguished the court may order substitution of the proper party )
That is the judge presiding over the civil action does not determine whether the proposed
executor and an administrator That would also mean that a personal representative must be either an executor
or an administrator
67 V I at 507 08
Nevertheless the issue of whether the terms executor, ‘administratort and personal representative are
synonymous in the context oi prosecuting or defending civil actions in court was not resolved in Augustin
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personal representative is the proper party Instead, the probate court makes the
appointment through an ex parte, non adversarial miscellaneous probate proceeding that
occurs outside of the civil action The tail wags the dog here What else can the judge
presiding over the civil action do other than allow substitution by the person the probate
court appointed? If that is correct it effectively deprives the judge of any discretion to
decide whether to allow substitution and who to substitute Cfi In re Estate of Johnson,
2010 WY 63
231 P 3d 873 881 (2010) ( The only test of who is appointed as personal
representative, despite the lack of guidance within the wrongful death act cannot simply
be who first gets to the courthouse )
Similarly regarding creditors must the personal representative appointed through a
miscellaneous probate proceeding give notice to creditors? Virgin Islands law requires that
‘[e]very executor or administrator shall immediately after his appointment publish a
notice Such notice shall require all persons having claims against the estate to present
them with the proper vouchers within six months from the date of the notice to the
executor or administrator 15 V I C § 391 If executors and administrators are a ‘ specie
of personal representatives then shouldnt even the personal representative appointed to
take over a pending civil action have to give notice to creditors? Or, does the personal
representative only have to commence probate proceedings and formally open an estate
once judgment is entered or a settlement reached assuming money exchanges hands? Or
can the personal representative bypass probate entirely? If so it could mean that Virgin
Islands courts are unknowingly complicit in helping the heirs avoid the creditors' claims of
the deceased Assume for arguments sake that a jury awards Mrs Calixte or Clarke
Baptiste three million dollars in damages Assume further that Mr Calixte or Mr Clarke
before they died left a two thousand dollar balance due on a credit card or a five hundred
dollar bill with a local vendor Mrs Calixte and Clarke Baptiste 3 response to the Courts
concerns is that that s not their concern They do not have to give notice to creditors at any
time even if after they receive a sizeable settlement, because they do not have to commence
formal probate proceedings at any time Instead the onus is on the creditor to open
probate All awards for the decedent s estate are subject to the claims of creditors who
have complled With the requirements ofprobate law concerning claims (Supp Br 7 8
(quoting 5 V I C § 76(e)) )
Lastly if the person appointed personal representative to maintain or commence a survival
action does not have to be named in a will or qualified under the law as an
administrator see 15 V I C §§ 235(a), 236, then disputes could arise later over whether
that person was in fact the proper party or even a proper party Cfi VI R Clv P
25(a)(1) ( [T]he court may order substitution of the properparty (emphasis added» Two
other Superior Court judges have raised similar concerns See generally Brown v
Lorzllard Inc ST 10 CV 692 2012 V I LEXIS 107 at *5 7 (Super Ct Mar 30
20l2) ( While this Court cannot disregard the persuasive authority allowing an individual
who has not received letters testamentary or letters of administration to represent a yet to
be probated estate, the Court does question the wisdom of eliminating the initiation of
probate proceedings at least the acquisition of letters testamentary or letters of
administration and only reluctantly follows the holdings cited by Plaintiff This Court has
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Significant reservations about allowmg the substztutwn to take place Among those
reservations are (1) it is not clear whether decedent s son, Christian Brown, is decedent's
only heir at law, (2) it is not clear whether Christian Brown will be able to actually
participate as the legal representative of the estate (3) it is not clear whether there are any
assets other than the ‘choice in action belonging to the estate (4) if the will is probated
and counsel for Plaintiff becomes the executor there could be a conflict of interest, (5) it
is unclear whether the creditors of the estate are being timely advised of existing or
potential assets to satisfy any indebtedness of the estate, and (6) it is unclear whether there
exist any other heirs at law who may contest the will In light of these concerns although
the Court will allow the substitution, the Court will keep a watchful eye on the proceedings,
and reserve the right to reverse its decision on substitution should sufficient information
surface confirming inequities (footnote omitted» England v Lorzllard Inc , ST 10 CV
631 2012 VI LEXIS 106 at *3 4 (Super Ct Jan 23 2012)( The Defendants argue that
without being appointed executor of Mr England 3 estate, Gerald has no authority to act as
a ‘personal representative or successor in interest The Plaintiff asserts that because a
wrongful death claim is a unified claim it must be brought by the personal representative
if only one child wants it It does not matter whether one of the children disagrees The
Court agrees with the Plaintiff that the Wrongful Death Statute governs a party 5 right of
action, not procedure, and as such does not prevent the Court from substituting Gerald as
the Plaintiff at this time However there does appear to be a question as to Gerald s ability
to bring a wrongful death claim without being appointed executor by the probate division
The Defendants represented that they will not contest Gerald s appointment as executor As
such in an exercise of caution the Court will order that the Plaintiff offer Mr England 5
will for probate before requiring that Gerald file an amended complaint (quoting 5 V I C
§ 78)) Here for example, Burton King petitioned for appointment as personal
representative to continue Mr Burtons lawsuit, but after the Burtons had petitioned to
settle Mr Burton 5 estate without administration Because the probate court already entered
its final adjudication and distributed Mr Burton s estate the Buttons might not be able to
seek relief from that final order later should they be unable to agree among themselves on
how to distribute whatever damages may be awarded or settlement amounts received from
this lawsuit Cf In re Estate of Watson SX 91 PB 126 2015 VI LEXIS 151 at *1] 15
(Super Ct App Div Mar 19 2015) (reopening estates governed by same law regarding
relief from final judgments)
Augustin 67 V I at 514 17(emphasis in original)
11 15 The Court has the same concerns here In Augustin those concerns were mooted by the
promulgation of Rule l7(e) because the decedent was the plaintiff However as noted above Rule
17(e) is not applicable in this matter As such at this juncture the Court will vacate the portions
of the January 25 2022 order granting Plaintiff’s December 30 2021 motion appointing Joel
Treanor as the personal representative of Defendant Trainor s estate and substituting Joel Treanor
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as the personal representative of Defendant Trainor’s estate in place of Defendant Trainor, and
give the parties an opportunity to address the Court’s concerns The Court will reserve ruling on
Plaintiff‘s December 30, 2021 motion to appoint a personal representative for the estate of
Defendant Trainor and to substitute the same for Defendant Trainor
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that the portions of the January 25, 2022 order granting Plaintiff’s December
30, 2021 motion, appointing Joel Treanor as the personal representative of Defendant Trainor s
estate, and substituting Joel Treanor as the personal representative of Defendant Trainor’s estate
in place of Defendant Trainor shall be and is hereby VACATED And it is further
ORDERED that on or before June 30, 2022 Plaintiff SHALL file a supplemental brief
and Defendant Nauti and Defendant Carlyle Bryan MAY file a supplemental brief addressing the
following questions
1 Whether an estate must be opened first via a formal probate proceeding for Defendant
Trainor before the appointment of a personal representative to substitute in place of
Defendant Trainor in this matter?
2 Assuming that an estate need not be opened first via a formal probate proceeding, can
anyone be appointed as the personal representative, even an unwilling participant to
this fiduciary role?
3 Assuming that an estate must be opened first via a formal probate proceeding, then
must the Court appoint the executor/administrator of the probated estate to be the
personal representative, or can anyone be appointed as the personal representative?
4 If disputes arises later over whether the person appointed as the personal representative
and substituted in for Defendant Trainor was in fact the proper party or even a proper
party, how could these disputes be prevented?
The parties are reminded to perform a Banks analysis when required and cite the proper legal
authority, statute, and/or rule in support of their respective supplemental briefs The Court will
Ellen l Nam: Enterpnse: WorIdmde Inc d/b/a Naun' Bar & Grill e! a!
SX 18 CV I95
Memorandum Opinion and Order 2022 VI SUPER 22%
Page 14 of 14
reserve ruling on Plaintiff’s December 30, 2021 motion to appoint a personal representative for
the estate of Defendant Trainor and to substitute the same for Defendant Trainer To be clear each
party has the opportunity to file one supplemental brief and will not be permitted to file additional
briefs in response to another party 5 supplemental brief without leave of the Court
MA
DONE and so ORDERED this h?) day of February 2022
ATTEST ?EMfld 42E
Tamara Charles HAROLD W L WILLOCKS
Clerk of the Court Presiding Judge of the Superior Court
iéourt Clerk Supenusorfl
Dated <9] / 71224—9
SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
KARISMA M ELIEN
PLAINTIFF, Civil No SX 18 CV 195
V ACTION FOR DAMAGES
NAUTI ENTERPRISES WORLDWIDE JURY TRIAL DEMANDED
INC D/B/A NAUTI BAR & GRILL COLLIN
TRAINOR AND CARLYLE BRYAN
DEFENDANTS
ORDER
THIS MATTER is before the Court sua sponte for review
On February 14, 2022, Eric A Hiller, Esq and Justin E King, Esq , of Kennedys CMK
LLP, counsel for Defendant Nauti Enterprises Worldwide, Inc d/b/a Nauti Bar & Grill (hereinafter
“Nauti’) and former counsel for Defendant Collin Trainor (herienafter “Trainor”), filed a motion
to reconsider, set aide, and/or vacate order appointing Joel Treanor as personal representative for
the estate of Defendant Trainer In light of the memorandum opinion and order entered
contemporaneously herewith, the Court will deny as moot Eric A Hiller, Esq and Justin E King,
Esq ’s motion to reconsider
Additionally, Eric A Hiller, Esq and Justin E King, Esq previously representated in their
January 19, 2022 Notice that they were “unaware of the status of any probate matters or whether
the Superior Court has appointed an administrator for Collin Treanor s estate ” (Jan 19, 2022
Notice 1] 18 ) It has now come to the Court’s attention that a probate matter has been Open in
connection with the estate of “Collin Burroughs Treanor, 1 probate case no SX 2021 PB 098, but
no administrator or executor has been appointed 2
Having been advised of the premises, it is hereby
' The parties have spelled Defendant Trainor 5 last name as “Trainer" and as “Treanor
’ In probate case no SX 202] PB 098, a petition for settlement without administration pursuant to Title IS V I C §
19] was filed by petitioner John G Treanor aka John Treanor the decedent’s father, and petitioner Vicki L Wilson
aka Victoria L Wilson aka Victoria Lynn Wilson the decedent 3 mother
Elfen v Nam: Enterprises Worldwide, Inc Wb/a Nam: Bar & Grill, e! a!
SX 18 CV [95
Order
Page 2 of 2
ORDERED that Eric A Hiller, Esq and Justin E King, Esq ’s motion to reconsnkr, set
aide, and/or vacate order appointing Joel Treanor as personal representative for the estate of
Defendant Trainor filed on February 14 2022 is DENIED AS MOOT
DONE and so ORDERED this $38“ day of February 2022
ATTEST % fl KM i
Tamara Charles HAROLD W L WILLOCKS
Clerk of the Court Presiding Judge of the Superior Court
$937444th
Court Clerk WI
Dated £1 / g(ffl? 92.