IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
VI CASINO CONTROL COMMISSION }
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Petitioner/Defendant ) SX 15 SM 88
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CARPET MASTERS ) PETITION FOR REVEIW
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Respondent/ Plaintiff ]
W4
Cite as 2020 VI Super 102U
Appearances
Bernard Cuffy, Pro Se
Carpet Masters
Bernard Cuffy
#lA Old Hospital Ground
Chnstiansted VI 00820
Marvin Pickering Chairman
VI Casino Control Commission
#3005 Orange Grove
Christiansted VI 00820
MEMORANDUM OPINION
Meade, Judge
‘11 1 Petitioner VI Casino Control Comrmssion (hereinafter Petitioner
or Casino Control Commission) appeals the denial of its request for
continuance and the Default Judgment entered by the Magistrate Court on
November 15 2016 in favor of Respondent Carpet Masters (hereinafter
Respondent or Carpet Masters)
Factual and Procedural Background
9[ 2 On April 22 2015 Carpet Masters filed an action in the Small
Claims Division of the Superior Court alleging that the Casmo Control
Commission failed to pay for services rendered by Carpet Masters
Specifically the complaint alleged that the Casino Control Comrmssion failed
to pay invoice number 24487 in the amount of One Thousand Three Hundred
CarpetMasters v VICasino Control Conumssion 2020 v1 Super 1021}
Memorandum Opinion
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and Fifteen [$1 315 00) Dollars for an emergency water extraction after its
Offices became flooded and further failed to pay for an invoice in the amount
of One Thousand One Hundred and Twenty ($1 120 08) Dollars and eight
cents pursuant to a contract for monthly janitorial services
'11 3 The matter was scheduled for hearing on September 22 2O 15 By
letter dated September 21 2015 the Casino Control Commission requested
a continuance of the September 22 hearing The Magistrate granted the
continuance and rescheduled the hearing for November 17 2015 By letter
dated November 17 2015 the Petltioner requested a continuance of the
November 17 2015 hearing The Court granted the continuance and
rescheduled the hearing to December 1 2015 Subsequentiy the Court
continued the December 1 hearing to January 26 2016 because the Petitioner
was not served For reasons that are not evident in the record the Magistrate
rescheduled the January 26 hearing from 9 30a m to 1 00p m In response
to this change in the time of the hearing the Petitioner requested a
continuance because its representative Ms Ann Golden had a previous
engagement The Magistrate granted the continuance and scheduled the
hearing for February 23 2016 The Magistrate continued the February 23
hearing because the Petitioner was not served and rescheduled the hearing
for March 8 2016 At the March 8 hearing the Respondent requested a
continuance to allow its witness to appear The Court granted the request and
scheduled the hearing for March 22 2016
‘11 4 At the March 22 2016 hearing the Petitioner failed to appear or
request a continuance The Magistrate after taking testimony and other
evidence entered judgment in favor of the Respondent in the amount of Two
Thousand Four Hundred and Thirty Five (82 435 08) Dollars and eight cents
and costs of One Hundred ($100 00) Dollars The Court entered its judgment
by Order dated April 7 2016
‘11 5 Thereafter Petitioner filed a motion to reopen dated July 15
2016 The Magistrate construed the motion to reopen as a motion for
reconsideration or a motion to vacate the Judgment entered on April 7 2016
By order dated July 20 2016 the Magxstrate granted the motion vacated the
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judgment and scheduled the matter for hearing on September 20 2016 At
the September 20 hearing the parties agreed to continue the matter to
November 1 5 2016 The Petitioner did not appear at the November 15 hearing
but filed a request for continuance dated November 14 2016 The Court
denied the request for continuance and reinstated the judgment entered on
April 7 2016 Petitioner filed a Petition for Review on January 9 2017
Respondent filed its response to the Petition for Review on January 19 2017
Jurisdiction and Standard of Review
‘11 6 The Superior Court has jurisdiction to review the orders and
Judgments issued by a Magistrate 4 VI C §125 On review the Superior
Court adheres to the standards of an appellate court VI Super Ct R
322 303) Ordinarily a reviewing court examines a trial court 3 factual findings
for clear error and exercises plenary review over the trial courts application of
law Frett 1) People 58 V I 492 503W 1 2013) The standard of review for this
Court 5 examination of the Magistrate 3 entry of default judgment is abuse of
discretion Martinez v Columbian Emeralds 51 VI 174 188 (V I 2009} This
Court reviews the Magistrate 5 denial of a motion for continuance for abuse of
discretion Gore 1) Tilden
50 VI 233 237 {V I 2008) {citing Fontanav United
Bonding Ins Co 468 F 2d 168 169 (31rd Cir 1972)
Discussion
A Denial of the Motion for Continuance
‘11 7 An abuse of discretion arises only when the decision rests upon
a clearly erroneous finding of fact an errant conclusion of law or an improper
application of the law to the facts Stevens 0 People 55 VI 550 556 (V I
2011) At the hearing convened on September 20 2016 the parties agreed to
a hearing date of November 15 2016 The Petitioner filed a request for
continuance of the November 15 hearing on November 14 2016
‘1! 8 A motion for continuance must be filed at least 5 business days
prior to the scheduled hearing If the motion is filed and served less than five
business days before the hearing it will only be considered upon a showing
of exceptional circumstances VI Super Ct R 10 Md) (2013)
‘11 9 The Petitioner 3 request for a continuance of the November 15
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2016 hearing was filed one day before the date of the hearing The reason
given for the request was that the Petitioner s representative Ms Violet Ann
Golden was attending a forum in Miami However the representative 5
attendance of a forum resulting in the Petitioners failure to appear at the
hearing does not amount to exceptional circumstances warranting a
continuance The Petitioner through its representative was aware of the
scheduled hearing date of November 15 as early as September 20 2016
when the parties agreed to that hearing date The Petitioner had ample time
to file its motion for continuance in a timely manner Moreover based on other
incidents arising during the pendency of this action the Petitioner was well
aware of the possibllity of Ms Goldens unavailability for the hearing For
instance Petitioner failed to appear at the March 22 2016 hearing where the
Magistrate entered his judgment in favor of the Respondent The Petitioner
filed a motion to set aside that judgment stating as its reason that Ms Golden
was out of the territory at the time of the hearing and Ms Debra Audain the
employee who was familiar with the case could not be reached to attend the
hearing as the Petitioners representative The Petitioner requested a
continuance of the hearing scheduled for November 17 2015 because Ms
Golden was scheduled to appear before the Senate Finance Committee The
Petitioner requested a continuance for a hearing rescheduled from 9 30am to
1 00pm on J anuary 26 2016 because its representative Ms Golden had a
previous engagement that would conflict with the hearing at 1 00p m In
addition the Petitioner filed a motion for a continuance of the September 22
2015 hearing because Ms Golden was on jury duty In that same motion the
Petitioner also requested that the Court not schedule the hearing on a date
that would conflict With Ms Goldens attendance at a gaming conference in
Lima Peru in October 2015 and her attendance at a forum in Miami in
November of 2015
‘11 10 It is evident that Ms Golden would have been aware of her
schedule long before November 14 20 16 Therefore not only did the Petitioner
have the opportunity to file a timely motion for continuance of the November
15 2016 hearing but Petitioner had sufficient time to prepare another
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employee to act as the Petitioner s representative since the potential for Ms
Golden s unavailability became obvious This Court sees no exceptional
circumstances in Ms Golden s failure to attend the November 15 2016
hearing to warrant consideration of the untimely filed motion for continuance
Superior Court Rule 10 1(d) expressly states that untimely filed motions for
continuance will only be given consideration upon a showing of exceptional
circumstances Accordingly the Magistrate 3 denial of the motion for
continuance is not an improper application of the law that would constitute
an abuse of dlscretion
B Entry of Default Judgment
‘11 1 1 Upon denial of the motion for continuance of the November 15
2016 hearing the Magistrate reinstated the previously vacated default
Judgment that was initlally entered at the hearing on March 22 2O 16 Virgin
Islands law requires the court to hold an evidentiary hearing to determine the
measure of damages before entering a default judgment ng v Appleton 61
VI 339 347 [V I 2014) A Court may not rubber stamp a non defaulting
partys damages calculation but must determine the basis for the damages
sought Appleton v Harrigan 61 V I 262 272 (V I 2014)
CH 12 The Petitioner did not attend the hearing on March 22 2016 and
neither requested a continuance nor informed the Court of the reasons for its
failure to attend Since the Magistrate mereiy reinstated the judgment at the
November 15 2016 hearing the issue for this Court 3 determination is
whether the Magistrate s entry ofjudgment after the March 22 2016 hearing
was in error At the March 22 2016 hearing the Magistrate accepted
testimony and other evidence and entered judgment in favor of the
Respondent in the absence of the Petitioner However the Magistrate did not
memorialize the findings of fact and conclusions of law in its written order of
judgment While this deficiency may impose limitations on review it is not
fatai to this Court 8 review at this time In its role as an Appellate Court the
Superior Court may nevertheless determine the appeal Without further
elaboration by the trial judge if the record sufficiently informs it of the trial
court s decision on the material issues in the case Spencer 1) Navarro 2009
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VI Supreme LEXIS 25 The appellate court may decide the appeal without
further findings if it feels it is in a position to do so Defrattes Bergin 0 Bd Of
Dirs OfBumett Towers Condo Assoc 2008 V I Supreme LEXIS 22
<II 13 Obviously the validity of the judgment turns on the factual
evidence submitted to and considered by the Magistrate The record reflects
that Respondents invoices checks issued by the Petitioner and paid to the
Respondent were accepted into evidence in addition to the testimony of the
Mr Bernard Cuffy Respondent s representative and Ms Avril Luke the
custodian at the premises of the Casino Control Commission The Magistrate
is in the best position to determine credibility weight and sufficiency of this
factual evidence The Magistrate 5 factual findings will not be disturbed in the
absence of clear error St Thomas St John Board of Education v Daniel 49
VI 322 3290/ I 2007) The appellate court must accept the factual
determination of the fact finder unless that determination is either completely
devoid of minimum evidentiary support displaying some hue of credibility or
bears no rational relationship to the supportive evidentiary data Hodge v
McGowan 50 V I 296 305 {V I 2008] Here the evidentiary record is
sufficient to support the Magistrate 5 decision There is no indication that the
Magistrate entered judgment upon factual findings that are clearly erroneous
‘31 14 Neither the Petition for Review nor the Petitioner s argument
raises issues which assign error to the Magistrate 8 factual findings or legal
conclusions The Petitioners brief merely argues that Petitioners factual
evidence provided a valid defense against Respondent 3 claims The role of the
Superior Court in addressing a Petition for Review is not to conduct a de novo
review of the parties factual contentions but to address the errors the parties
raise in their briefs Sitting as an Appellate Court the Superior Court may
only disturb the factual determinations of the Magistrate where there is clear
error In the Matter of the Estate of Small 57 VI 416 428 (V I 2012] This
Court finds no clear error in the Magistrate 3 factual determination and the
evidence on the record satisfactorily represents the damages Moreover
because Petitioner had adequate notice of the hearing and was aware of the
consequences of the failure to attend the Magistrate did not abuse his
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Carpet Masters v VI Casino Control Comrmssion 2020 VI Super 102U
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discretion in entering Judgment at the March 22 2016 hearing or reinstating
that Judgment at the November 15 2016 hearing
CONCLUSION
‘II 15 The Magistrate Court did not abuse its discretion in denying the
motion for continuance or reinstating the default judgment The judgment of
the Magistrate is therefore AFFIRMED /(
\
DONE AND SO ORDERED this g day of December 2020
éNORABLE JOMO MEADE
JUDGE OF THE SUPERIOR COURT
A '1‘ T E S T
TAMARA C_I;IA_RLES
Clerk of the Court
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