IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
****~k*****‘k**
MELVILLE SAMUEL )
) CASE NO ST 18 CV 441
Plaintiff, )
v ) ACTION FOR BREACH OF
) CONTRACT CONVERSION &
CENTURY HILL INC LAURIE CRANDALL ) PUNITIVE DAMAGES
and CRAIG CRANDALL )
)
Defendants )
Cite as 2020 VI Super 30U
MEMORANDUM OPINION
111 Pending before the Court are
1 Motion for Commission to Take the Deposition of Robert Marshall, Esq and
Marshall, Crane & McAloon, P C , filed on May 9, 2019;
2 Motion to Quash Motion for Commission and Subpoena of Robert Marshall, filed on
May 16 2019
3 Opposition to Defendants Motion to Quash Motion for Commission and Subpoena
of Robert Marshall Esq filed on June 11 2019
4 Reply in Support of Motion to Quash Motion for Commission and Subpoena of
Robert Marshall filed on July 17 2019'
5 Request for Ruling on Motion for Commission, filed on July 17, 2019;
6 Second Request for Ruling on Motion for Commission, filed on August 19, 2019,
7 Third Request for Ruling on Motion for Commission, filed on November 13, 2019;
and
8 Fourth Request for Ruling on Motion for Commission filed on February 5 2020
I FACTUAL BACKGROUND
'12 Plaintiff Melville Samuel is the owner of Parcel No 15C 8 Estate Rendezvous, St John,
VI (the “Property ) Effective September 15, 1986, Samuel, as landlord, and Century Hill Inc , as
tenant, entered into a forty year Ground Lease for the Property As an Assistant Secretary of
Century Hill, Laurie Crandall attested to the signature of Maurice Poulin who signed the Ground
Lease as President of Century H111 on September 16, 1986
113 In exchange for the leasehold interest it received in the Property, Century Hill was
responsible for paying a monthly rent starting at $385 01 and ending at $473 51 during the last
five years of the lease term As additional rent, Century Hill was responsible for payment of real
property taxes Century Hill was also responsible for the care and repair of the Property, as well
Samuel v Century H11! Inc et a! 2020 VI Super 30U
Case No ST 18 CV 441
Memorandum Opinion
Page 2 of 8
as providing for and maintaining public liability insurance and casualty insurance for not less than
100% of the Property’s full replacement value The Ground Lease specified that the required
casualty insurance include Windstorm coverage
1% According to the Complaint, in 2011, Beverly Poulin and Maurice Poulin, officers of
Century Hill, began experiencing cognitive difficulties as well as health issues I The Poulins are
the parents of Laurie Crandall Defendant Craig Crandall is the husband of Laurie Crandall The
Complaint alleges that Laurie2 took over the financial affairs of Century Hill and the Poulins
became non functioning officers This allegation is denied in the Defendant 5 answer However,
in the Motion to Dismiss, Defendants state ‘In 2015 his daughter, Defendant Laurie Crandall,
took on the role of Manager and assumed the daily management of the Property and the financial
responsibilities of Century Hill from Maurice and Beverly Poulin, who became non functioning
officers due to suffering from dementia 3
115 In September 2017, Hurricanes Irma and Maria struck the Virgin Islands causing
catastrophic damage and caused substantial damage to the Property As of May 13 2018, the
estimated cost to repair the two buildings on the Property is $1 336,730 004 which covers labor
and materials
116 In a letter dated January 15 20185, which ended with Sincerely Craig and Laurie’, the
Landlord was advised that [Century Hill] is destroyed beyond repair there is just no money to
rebuild My parents did have liability insurance for guest and tenants but not nearly enough to
cover rebuilding The letter goes on to say I am hopeful that we will be out of there and cleaned
by the end of the month
117 By letter dated June 5, 2018, Robert Marshall, the Crandalls lawyer wrote to both Laurie
and Craig stating
Since I was recently made aware of the fact that Century Hill, Inc ( Century
Hill ) received $300,000 of casualty insurance proceeds, I now realize that
David and I may have personal liability for unpaid obligations of Century Hill,
including any income taxes owed for 2017 and 2018 Our responsibilities with
respect to the creditors of the Corporation would not be an immediate concern
except for the fact that you have withdrawn $223,000 of the insurance proceeds
from Century Hill for your personal use without adequate substantiation 6
1 Pl Complaintfil 11 and Defs Answer1l 11
2 To avoid confilsion the Crandalls will be referred to by their first names
3 Defs s Mot to Dismiss Craig Crandall
4 Pl 8 Complaint Ex B
5 Pl 5 Complaint Ex C
6 Pl 3 Complaint Ex G
Samuel v Century H11] Inc et a! 2020 VI Super 30U
Case No ST 18 CV 441
Memorandum Opinion
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18 Samuel filed his Complaint on August 30, 2018, alleging breach of contract and
conversion
11 ANALYSIS
A Motion for a Commission
19 Samuel seeks a commission ‘ which would allow Samuel to serve subpoenas on Attorney
Marshall and the Marshall Firm requiring the production of documents critical to Samuel s case 7
The Subpoena Duces Tecum seeks
1 Copies of all records related to Century Hill, Inc including all records showing assets of
the corporation and any books and records of the corporation relating to income and
expenses
2 Copies of all communications between Laurie Crandall and/or Century Hill, Inc and
Robert Marshall Esq
1110 Section 4921 of Title 5 of the Virgin Islands Code permits the taking of a deposition outside
this territory to obtain testimony or documents or other things in an action pending in this territory
before a person commissioned by the Court Section 4921 is part of the Virgin Islands Uniform
Interstate Depositions and Discovery Act 8 Samuel has shown that he is entitled to have Attorney
Marjorie Whalen appointed as a Commissioner
B Samuel May Obtain Discovery Regarding Any Nonprivileged Matter That is
Relevant to Any Party’s Claim or Defense
1111 Virgin Islands Rule of Civil Procedure 26(b) provides that a party may obtain discovery
regarding any nonprivileged matter that is relevant to a party’s claim or defense, and that the
information does not need to be admissible as evidence to be discoverable
(1) Scope m General Unless otherwise limited by court order, the
scope of discovery is as follows Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s
claim or defense Information within this scope of discovery need
not be admissible in evidence to be discoverable
1112 Virgin Islands Rule of Evidence 401 defines relevant evidence as evidence tending to make
a fact more or less probable than it would be without the evidence and the fact is of consequence
in determining the action ‘The test for relevance is whether proffered evidence has ‘any tendency
7 Pl ’8 Request for Ruling on Mot for Commission 3
8 5 VIC § 492513
Samuel v Century Hill Inc et a! 2020 VI Super 30U
Case No ST 18 CV 441
Memorandum Opinion
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to make the existence of any fact that is ‘of consequence to the determination of the action ‘more
probable or less probable than it would be without the evidence ” 9 The ‘ any tendency ’ language
makes the standard for Rule 401 relevance very easy to satisfy ‘0 Rule 401 does not require the
evidence to be dispositive of a fact in issue the bar is much lower and simply requires that the
evidence makes the existence (or non existence) of such fact more or less likely ”
W3 Based upon the permissible scope of discovery and 5 V I C section 4921, Samuel is
entitled to have Attorney Whalen appointed as a Commissioner to subpoena Marshall and his law
firm to produce certain documents in Massachusetts At a minimum, Samuel may subpoena any
non privileged document from Marshall and his firm that would tend to make any fact of
consequence in determining this action, more or less probable Relevant documents would include
corporate records regarding obtaining the insurance coverage required by the Ground Lease, any
insurance proceeds paid to cover casualty losses such as hurricane damage and the insurance
proceeds used, applied or dissipated Century Hill, Inc 5 records showing assets of the corporation
and any books and records of the corporation relating to income and expenses are relevant to
determine whether the Crandalls were ever compensated by Century Hill in the past or whether
the Crandalls only sought to be compensated when the insurance proceeds were received In other
words, the Subpoena seeks relevant information
1H4 It is clear from Marshall 5 June 5 2018 letter that Century Hill received $300 000 00 in
casualty insurance proceeds and that the Crandalls withdrew $223,000 of the insurance proceeds
from Century Hill for their personal use without adequate substantiation Therefore, Samuel is
entitled to the records of Century Hill regarding its obligations under the Ground Lease, and any
books and records of the corporation related to income and expenses and non privileged
communications between Laurie Crandall and/or Century Hill, Inc and Robert Marshall
1115 Rather than file a response or opposition, the Defendants filed their Motion to Quash
Motion for Commission and Subpoena of Robert Marshall (‘ Motion to Quash”) In their Motion
to Quash, the Defendants argue that “[i]n this case it is clear from the facts that attorney client
privilege attaches to the documents and deposition requested by Plaintiff and that Defendant has
not waived this privilege ‘2 Defendants further argue that ‘ any documents and communications
sought by the Subpoena fall under the attorney client privilege "3
9 Thomas v People oft/re VI
60 VI 183 196 (VI 2013) (citing Fed R Evid 401) While the VI Supreme Court
cited to Federal Rule of Evidence 401, the Court finds that the analysis provided by Thomas is convincing and
instructive because Federal Rule of Evidence 401 and Virgin Islands Rule of Evidence 401 have identical text with
respect to the definition of relevance
10 Id
” 0mm av People ofthe V1 58 v1 531 564 (v1 2013)
‘2 Defs Mot to Quash 3
‘3 Defs Mot to Quash 3
Samuel v Century ”I”, Inc et a!
2020 VI Super 30U
Case No ST 18 CV 441
Memorandum Opinion
Page 5 of 8
1116 The Defendants claim the Subpoena is improper because it requests documents and
communications generated by Marshall and his law firm in connection with their representation
of the Crandalls and Century Hill and thus are subject to attorney client privilege, work product
doctrine, and/or the lawyers ethical duty to maintain their client 3 confidences 14 The Motion
does explain that it was Marshall who sent a copy of his June 5, 2018 letter to Plaintiff‘s counsel
However, according to the Defendants, [t]he fact that Attorney Marshall sent a copy of his letter
to Plaintiff‘s counsel does not waive the privilege as it is Defendants, and not the attorney, who
are the holders of the privilege ”'5 The Defendants conclude their Motion by affirming that they
do not waive the privilege
1 The Attorney Client Privilege
1117 Section 852 of Title 5 of the Virgin Islands Code governs attorney client privilege and
the work product doctrine in the Virgin Islands In order for the attorney client privilege to
attach to a communication, it must be (1) a communication (2) made between privileged persons
(3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client "6
In addition,
[t]he attorney client privilege is personal belongs solely to the client, and
generally cannot be asserted by anyone other than the client Addltionally, the
burden of showing the existence of circumstances justifying the recognition of
the attorney client privilege rests with the party asserting the privilege, and
[b]ecause it impedes full and free discovery of the truth the attorney client
privilege is strictly construed ‘7
1118 The Defendants argue that because Samuel seeks documents from ‘ active matters with the
Crandalls ’ and because “Marshall and his firm provide the Crandalls and Century Hill with
confidential communications for the purpose of providing legal assistance to them,’ that “any
documents and communications sought by the Subpoena fall under the attorney client
privilege According to the Defendants the Subpoena requests documents and communications
generated or transmitted by Marshall and his firm in their representation of the Crandalls and
Century Hill and thus are subject to attorney client privilege Such a blanket assertion fails to take
into consideration exceptions to the attorney client privilege Title 5 V I C section 852 provides
for 9 exceptions to the privilege Notably, the following three privileges may apply to the instant
case since it appears that Marshall may be an officer or director of Century Hill, in which case, the
14 Defs Mot to Quash 3
15 Defs Mot to Quash 3 4
l6Fensterv Dechabert No SX 16 CV 343 2017 WL 4969896 at *11 (VI Super Sept 27 2017) (citations
omitted)
‘7 Fenster v Dechabert No SX 16 CV 343
2017 WL 4969896 at *11 (VI Super Sept 27 2017) (citing
Browne v People ofthe V I , 56 V I at 235 n 21 (citations omitted)
Samuel v Century H111 Inc et a]
2020 VI Super 30U
Case No ST 18 CV 441
Memorandum Opinion
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Crandalls may have breached a duty to Century Hill or to Marshall by taking money from the
corporation 5 insurance proceeds
(3) Breach of Duty by a Lawyer or Client As to a communication
relevant to an issue of bleach of duty by the lawyer to the client or by the client
to the lawyer ‘8
(5) Document Attested by a Lawyer As to a communication ielevant to
an issue concerning an attested document to which the lawyer is an attesting
witness '9
(8) Physical Evidence Fee Arrangements Pre existing Documents The
privilege does not apply to physical evidence that the client provides to the
lawyer attorney fee arrangements agleements and payments and documents
pre existing the attorney client relationship 7“
1119 The Court finds that Defendants assertion of the attorney client privilege does not operate
as a complete bar to the records and communications sought by Samuel The list of corporate
records that are not subject to the privilege is endless For example, any document that Century
Hill is required by statute to file with a government agency is not protected by the attorney client
privilege Every corporation organized or formed under the laws of the U S Virgin Islands is
required to maintain (1) correct books of account of its business transactions and (2) a stock
ledger in the form prescribed in section 189 of Title 13 of the Virgin Islands Code 2‘ Corporate
records such as minutes, annual reports, resolutions empowering or authorizing officers, directors,
managers and employees to act are not privileged As a corporation organized under the laws of
the Virgin Islands with its principal place of business on St John”, Century Hill, Inc must file
annual reports and financial statements with the Office of the Lieutenant Governor 23 Such
required filings are not protected by the attorney work product privilege or the attorney work
product doctrine Defendants assertion that the attorney client communication privilege applies
to all records of Century Hill is overly broad Corporate bylaws are not privileged If corporate
records exist, they are not protected by the attorney client privilege
‘8 5 VIC § 852(3)
‘9 5 VIC § 852(5)
20 5 VIC § 852(8)
2‘ Title l3VIC §73
22 P1 Compl 1] 2 and Defs Ans 1] 2
23 Title 13 VIC § 371
Samuel v Century HI” Inc et a] 2020 VI Super 30U
Case No ST 18 CV 441
Memorandum Opinion
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1120 The Court finds that the Defendants have failed to meet their burden of showing the
existence of circumstances justifying the recognition of the strictly construed attorney client
privilege as to all information sought by Samuel’s Subpoena
2 The Attorney Work Product Doctrine
1121 The Defendants also assert the attorney work product doctrine as a bar to produce the
information sought by the Subpoena This doctrine is also codified at Title 5 V I C § 852(c)
(1) Qualified Immunity Work product immunity may protect an attorney from
disclosing to a third party some of the information the attorney creates or
acquires while preparing for litigation Work product materials may be subject
to discovery if the party requesting them proves (i) a substantial need for
materials, and (ii) an inability to obtain a substantial equivalent of those
materials by another method
(2) Absolute Immunity An attorney possesses absolute immunity from
disclosing work products when they divulge the attorney's ‘mental impressions,
conclusions, opinions, or legal theories regarding litigation
1122 The work product doctrine promotes the adversary system directly by protecting the
confidentiality of papers prepared by or on behalf of attorneys in anticipation of
litigation 24 When materials are prepared merely in the ordinary and regular course of a party's
business, they are outside the scope of work product protection ’25 Because it is an
evidentiary privilege the work product doctrine, like that of the attorney client communication
privilege, should be strictly construed ”26
1123 Based upon the statute, if Samuel can Show that he has a substantial need for the materials
and is unable to obtain the substantial equivalent of those materials by another method, then,
assertion of the attorney work product doctrine will not operate an absolute bar to production in
response to the Subpoena unless the materials are subject to absolute immunity as an attorney 5
mental impressions, conclusions, opinions, or legal theories regarding litigation The two
categories of documents sought by the Subpoena do not ask for Marshall 5 legal impressions,
conclusions, opinions, or legal theories regarding litigation Should Marshall contend that he has
responsive documents that do contain legal impressions, conclusions opinions, or legal theories
regarding litigation, then they should be identified as such in a privilege log as required by V I R
Civ P 26(b)(5)(A)
24 Josephv PricesmaitLLC Super Cr Civ No ST 15 CV 62 2016 WL 852095 at *5 (VI Super Feb 29 2016)
(citations omitted)
25 Id
26 Id
Samuel v Century HI” Inc et al
2020 VI Super 30U
Case No ST 18 CV 441
Memorandum Opinion
Page 8 of 8
fil24 After the foregoing Motions were filed, Samuel learned that Marshall is the trustee of two
trusts which, between them, hold 100% of the shares of Century Hill Marshall 5 role as a trustee
of the trusts that own Century Hill27 and can therefore elect a board of directors that select the
officers who run the corporation, underscore that he is a fact witness who possesses relevant
information and is therefore subject to be deposed
III CONCLUSION
1125 Based upon the foregoing, Plaintiff’s Motion for Commission to Take the Deposition of
Robert Marshall, Esq and Marshall, Craine & McAloon, P C will be granted Defendants’ Motion
to Quash Motion for Commission and Subpoena of Robert Marshall will be denied An Order
consistent with this Memorandum Opinion follows
DATED ZlZSlZOLO EVE; Mg m 2gwuv3
DENISE M F NCOIS
Judge of the Superior Court of the Virgin Islands
ATTEST
TAMARA CHARLES
Clerk of the Court
BYQ/efi M I
DO NA D DONOVAN
L urt L lerk Superv sor a / 2 l /89C$
27 Third Request for Ruling 2