For Publication

           IN THE SUPREME COURT OF THE VIRGIN ISLANDS

 JANET V JULIEN                                )    S Ct Civ No 2022 0023
     Appellant/Defendant                       )    Re Super Ct Civ No 8X 2020 RV
                                               )    00003 (STX)

 v                                             )
                                               )
 VICTOR S MATTHEW                              ;
       Appellee/Plaintiff                      )
                                               )


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

                                Argued November 14 2022
                                  Filed March 26 2024

                                    Cite as 

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

APPEARANCES


Janet Jalien
St Croix U S VI
       Pro Se,

Victor Matthew
St Croix U S V l
       Pro Se
Julie" 1 Matthew                                     

S Ct Civ No 2022 0023
Opinion of the Court
Page 2 of 22


                                     OPINION OF THE COURT


SWAN, Associate Justice

111      Appellant Janet V Julien (‘ Julien ) challenges the Superior Court Appellate Division 3

affirmation of a Magistrate Division judgment declaring that she owes appellee Victor S Matthew

( Matthew”) $1,706 for the balance of the cost for work he completed in remodeling her kitchen

For the reasons elucidated below, we affirm the Appellate Division’s order '


                             I         FACTS AND PROCEDURAL HISTORY


112      In April 2019, Julien decided to remodel the kitchen and to retile the floors in the dining

room and kitchen in her home in St Croix, U S Virgin Islands After researching options, Julien

selected cabinets from a Home Depot store in North Carolina and floor tiles from Home Depot in

St Croix In J une 2019, while shopping at the Home Depot store in St Croix, Julien learned that

Matthew is an inexpensive contractor The Home Depot employee who recommended Matthew to

Julien also provided Julien with Matthew’s contact information Subsequently, Matthew visited

Julien’s home to discuss the work she wanted completed


113      Ultimately, Matthew quoted Julien a price of $6,000 to complete the remodel However,

Matthew required Julien to make a deposit before he would commence work Accordingly, Julien

gave Matthew a $2,000 check After obtaining the $2 000 deposit, Matthew sent Julien

photographs of cabinets he had previously completed and emailed her a copy of a document stating

the work he would perform In the email, Matthew delineated the principal areas of work as the


' Pursuant to rule changes promulgated on June I, 2019, the Virgin Islands Superior Court no longer has an
Appellate Division and reference to that division in this opinion is made merely to preserve prior terminology
Therefore final orders or judgments from the Magisttate Division are merely appealable to the judges of the
Superior Court of the Virgin Islands SeeVI Super Ct R 322
Julten t Matthen                            

S Ct Civ No 2022 0023
Opinion of the Court
Page 3 0f 22

removal and installation of kitchen cabinets, backsplash, granite bar top, granite countertop, and

floor tiles The email also stated that Julien was responsible for purchasing all materials for the

remodel project


114     In the last week of June 20l9, Matthew commenced the remodeling project by removing

the old kitchen cabinets, backsplash, and countertops On June 29, 2019, Matthew wanted to start

tiling the kitchen floor However, Matthew told Julien that the kitchen floor was uneven To correct

the problem, Matthew informed Julien that he needed to cover the kitchen floor with a layer of

concrete ready mix To obtain the concrete, Matthew traveled with Julien to Home Depot in St

Croix where she purchased five bags of concrete and a one gallon bottle of concrete bonding After

returning to Julien’s home, Matthew poured the concrete on Julien’s kitchen floor


1|5     On July 15, 2019, Matthew received a second installment payment of $2,000 and began to

tile the kitchen floor, which remained uneven (presumably because the procedure Matthew

employed to level the kitchen floor was unsuccessful) J ulien claimed that at no time did Matthew

inform her that the kitchen floor remained uneven


116     At some juncture during the remodeling work, Matthew began cutting J ulien’s new kitchen

cabinets When Julien saw what Matthew was doing, she ordered him to stop, but he persisted

because the uneven kitchen floor made it necessary to cut the bottom of the cabinets so they would

lie properly on the floor However, when the new appliances arrived, Julien claimed that the

cabinets over the refrigerator were too low, and she had to hire another contractor to install them

and to replace the granite countet‘top which cracked when Matthew admittedly installed it

incorrectly
Julian v Maltln w                            

S Ct Civ No 2022 0023
Opinion of the Court
Page 4 of 22


117     Finally, Matthew, who Julien said was not a licensed electrician, relocated an electrical box

that was inside one of Julien’s old kitchen cabinets Matthew advised Julien that the electrical

box’s location inside the cabinet was a fire hazard and, therefore, illegal Thus, Matthew surmised

the electrical box needed to be relocated to another location According to Matthew, the cost to

relocate the electrical box was normally more than $1,000, but he agreed to relocate Julien’s

electrical box for $850 However, although she purchased a new electrical box so Matthew could

relocate the box, Julien claimed in her appellate briefthat she never authorized Matthew to relocate

the electrical box Ultimately, Julien became frustrated with Matthew’s performance and perturbed

by the money she expended to remedy his mistakes Therefore, she opted to terminate her contract

with Matthew before the remodel project was completed

118    On February 10, 2020, Matthew filed a small claims complaint against J ulien for the unpaid

balance of the contract price $2,850 Julien counterclaimed for $5,000 for emotional anguish and

for the money she spent to rectify Matthew’s alleged mistakes


119    On March 10, 2020, the Magistrate Division held a hearing on Matthew’s complaint

During the proceeding, Matthew explained the relationship between himself and Julien, which he

claimed was exacerbated by Julien’s frequent excuses for not purchasing necessary materials for

the pI’OJCCt and her decision to not allow him to complete the job In response, Julien presented the

court with invoices, canceled checks, and testimony to demonstrate that she found Matthew’s work

unacceptable and, therefore, exasperating; she testified that she paid different workmen to correct

Matthew’s numerous mistakes Moreover, J ulien also claimed to have witnesses who could

substantiate her claims and discuss Matthew’s unprofessional behavior However, the court
Julian Matthew                                  

S Ct Civ No 2022 0023
Opinion of the Court
Page 5 of 22

declared that those witnesses were unnecessary because they would not add new evidence to the

record Therefore, the court refused to allow Julien to call them

1|10       Ultimately, the court declared that its duty was to assess whether Matthew was entitled to

damages (balance of the contract price) because of the agreement he had with Julien Moreover,

the court also opined it had to simultaneously ascertain whether Julien was entitled to damages

because of the costs she incurred as a result of correcting Matthew s frequent job mistakes


        Regarding the electrical work, the court concluded that Julien sanctioned the relocation of the

electrical box which, according to the court, was supported by Julien’s purchase of a new electrical

panel box The court concluded that Julien was entitled to $150           the price she paid to correct

Matthew s substandard electrical workmanship


111 l      Concerning the cabinetry, the court concluded that Matthew’s cutting of the cabinets was

not exceedingly unusual, as Matthew explained during the proceeding Specifically, the court

referenced the unevenness of floors as a reason why cutting the cabinets might have been

necessary Despite Matthew’s efforts to stabilize the floor, the court said it was apparent that

Matthew’s attempts to level Julien 3 kitchen floor were unsuccessful, if he still needed to cut the

cabinets The cout’t concluded that it could not hold Matthew liable for cutting the cabinets because

he adhered to the standard to which the parties agreed a clearance of 71 inches

1112       Pertaining to the cracked granite countertop, the court stated that Matthew admitted to

cracking the countertop as he installed it However, the court also acknowledged that Matthew

could have fixed the countertop but he was never afforded the opportunity to do so because Julien

refused to let him finish the remodeling work The court stated that Julien only claimed that the
Julien 1 Matthew                            2024 V I 15
S Ct Civ N0 2022 0023
Opinion of the Court
Page 6 of 22

cracked countertop was never repaired Therefore, the court assigned a modest value of $200 for

the damaged countertop because there was no evidence in the record that established its value

1113    Regarding the backsplash, the court concluded it was installed incorrectly because

Matthew failed to seal the limestone tile and it became discolored when he applied grout to it

However, the court further stated that Julien opted to replace the tile although Matthew said he

could have cleaned it Therefore, the court assigned a nominal value of $200 for the replaced tile

because there was no evidence in the record that established the cost to replace it


1114    Regarding the granite bar top the court said that Matthew admitted that he failed to

complete it Julien provided evidence to verify that she paid another contractor a $275 deposit and

an additional $319 to have it installed The court concluded that these amounts resulted in a total

of $594 in costs


1115    Finally, the court reconciled the amounts owed to both Matthew and Julien The court

opined that Julien was entitled to $150 for the electrical work, $200 for the cracked granite

countertop $200 for replacing the backsplash and $594 for the bar top which totaled $1 144 Next

the court concluded that Matthew was entitled to $2,850 for the balance of the remodeling and the

electrical work Lastly, the court subtracted Julien s damage award from Matthew’s damage award

and adjudged that Julien still owed Matthew $1 706


1H6     Following entry of the Magistrate 5 March 10, 2020 amended judgment, Julien filed a

notice of appeal in the Superior Court Appellate Division on March 17, 2020


1H7     On March 21, 2022, the Appellate Division entered an order that affirmed the Magistrate

Division’s judgment In the order, the Superior Court proclaimed that it had reviewed all evidence
Julient Matthew                                

S Ct Civ No 2022 0023
Opinion of the Court
Page 7 of 22

in the record, including the transcript fi'0m the March 10, 2020 hearing Following the review, the

court declared that it found no error in the magistrate’s factual findings nor legal conclusions

Therefore, the Appellate Division affirmed the Magistrate Division’s 2020 decision

1] 18    On April 13 2022 Julien perfected the instant appeal


                                        [I      JURISDICTION

1|l9     “The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final

decrees, and final orders of the Superior Court ’ 4 V l C § 32(a)        An order that disposes of all

claims submitted to the Superior Court is considered final for the purposes of appeal ’ Jung v

Razz 59 V I 1050 1057 (V I 2013) (citing Matthew v Herman 56 V I 674 677 (V I 2012)) In

this case, the Superior Court Appellate Division’s March 21, 2022 order disposed of all claims

submitted for adjudication Therefore, the order is final and we exercise jurisdiction over Julien’s

appeal


                                  III        STANDARD OF REVIEW

1|20     We review the trial court’s factual findings for clear error and exercise plenary review over

its legal determinations Thomas v People 63 V I 595 602 03 (V I 2015) (citing Simmonds v

People 53 V I 549, 555 (V I 2010)) Moreover, ‘ [w]hen reviewing decisions of a judge of the

Appellate Division of the Superior Court, we typically consider the underlying rulings made by

the magistrate only to the extent that they were adopted or affirmed by the judge of the Appellate

Division ” Maso v Morales, 57 V I 627, 632 (V l 2012) However, “[i]n most cases, we will

decline to directly review the magistrate's rulings, out of consideration for the ‘unique relationship’

between the Magistrate [Division] and Appellate Division[] of the Superior Court, and traditional
Juhen v Matthew                                        

S Ct Civ No 202’ 0023
Opinion of the Court
Page 8 of 22


appellate practices ” Id Furthennore, an order from the Appellate Division affirming a final

judgment, order, or decree of the Magistrate Division is a final order fi'om which an appeal lies

Moore v Walters 61 V I 502 506 (V I 2014) Finally the purpose of the Small Claims Division

is to do substantial justice between the patties V I SMALL CLAIMS R 1(d) 2 3 See Greene v Merck

Mkt No ST 2015 SM 292 

 at *2 (V I Super Ct Oct 5 2015) (unpublished)

(‘ The purpose of the small claims statute is “to permit individuals with small claims access to the

court in a simple inexpensive manner and without the need to retain counsel ’)


                                                 IV       DISCUSSION


1l21     On appeal, Julien asserts three central issues First, she contends that the Superior Court

Magistrate Division impermissiny shified the burden of proof from Matthew to her Second, she

argues that the Magistrate Division erred in refusing to allow her to call witnesses Third, J ulien

contends the Magistrate Division erred in awarding Matthew damages for his electrical work

However, before we address Julien s allegations, we will review the law of contracts in the Virgin

Islands and briefly evaluate the legitimacy ofJulien’s notice of appeal Accordingly, we commence

the analysis with a brief review of Julien’s deficient notice of appeal


1122     Rule 4(c) of the Virgin Islands Rules of Appellate Procedure, in pertinent part, states that

a notice of appeal shall identify the order appealed from and the issues to be presented on appeal 4


2 ‘ Construction These rules shall be construed to implement the simple, speedy, and inexpensive trial of actions in
the Small Claims Division, and in such manner as to do substantial justice between the parties according to the rules
of substantive law V I SMALL CLAIMS R 1(d)

3 4 V I C § 123(4) empowers the Magistrate Division to hear small claims cases See 4 V I C 9 123(4)

“ “The notice of appeal shall specify the party or parties taking the appeal and, even if the notice is electronically
filed, it shall contain their physical addresses and telephone numbers, shall designate the judgment, order, or part
thereof appealed from and the reason(s) or issue(s) to be presented on appeal An appeal shall not be dismissed
Julian \ Matthew                                       2024 V I 15
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Opinion of the Court
Page 9 of 22

Here, Julien’s April I3, 2022 notice of appeal lacks reference to the order being appealed or the

issues to be presented on appeal Although we have consistently stated that pro se litigants enjoy

considerable latitude regarding the structure and contents of court documents and the procedure to

file them, we remind all litigants that this Court’s rules should be reviewed prior to submitting

court documents to ensure filings comport with those stipulations See Marsh Monsanto v

Clarenbach 66 V I 366 376 (V I 2017)( [I]t is our policy to give pro se litigants greater leeway

in dealing with matters of procedure and pleading                  ”), compare Serzeux v Schneider Clmzc, 74

V I 429 435 (V I 2021) (‘ [P]ro se litigants need [to] follow court procedures and rules Pro se

litigants are still expected to comply with the rules                , and a pro se litigant's apparent ignorance

of the rules of the Court does not provide good cause to excuse failure to comply with those

rules ”) Usually, as we have observed, “[w]hen a notice of appeal fails to designate an order [being

appealed], that order is not properly before this Court for consideration                       V1 Taxz Ass'n v V 1

Port Auth 67 V I 643 673 (V I 2017) (citing Dessout v Brm 66 V I 308 & n 2 (V I 2017))

Nonetheless, in this case, Matthew has not claimed any prejudice arising from Julien’s deficient

notice of appeal, and the issues on appeal have been briefed, as well as the question whether the

Appellate Division was correct in affirming the Magistrate Division’s March 10, 2020 amended

judgment Under these circumstances, applying our established precedent, and the policy favoring

lenity in pro se matters, it is appropriate for this Court to exercise its discretion to consider the

appeal, notwithstanding the deficient notice of appeal See, e g , V 1 Tax: Ass'n, 67 V I at 674

(failure to identify Appellate Division's order with specificity did not preclude the Virgin Islands




solely for defects of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is
gztfrwise clear from the notice, but any omission of matters of substance may be grounds for sanctions ” APP P R
Julieni Matthew                                      

S Ct Civ No 2022 0023
Opinion of the Court
Page 10 of 22

Supreme Court from addressing the appellant’s claim that such order should be reversed, where

both parties briefed the issue of whether that order should be affirmed or reversed and the appellee

claimed no prejudice arising from the failure to specify the order in the notice of appeal) Thus,

we proceed to evaluate the merits of this appeal


123      In the Virgin Islands, a contract is a promise that is either stated in oral or written words

(express contract), or a promise that can be inferred wholly or partially by conduct (implied

contract) Essential to the creation of a contract are the elements of offer and acceptance, and

acceptance may be inferred through conduct Peppertree Terrace v Williams 52 V I 225, 241

(V l 2009) “Additionally, an enforceable contract also requires                     a bargained for legal benefit

or detriment, commonly known as consideration,5 and a manifestation of mutual assent A

manifestation of mutual assent or a meeting of the minds requires that the two parties that intend

to form a contract are in agreement to the same terms[, which] must be proven objectively ”

Williams v Umv ofthe VI No ST 00 CV 148 

 at *2 (V I Super Ct Jan 18

2019) (unpublished) (citations omitted) See RESTATEMENT (SECOND) OF CONTRACTS § 18 (1981)

(“Manifestation of mutual assent to an exchange requires that each party either make a promise or

begin or render a performance ”) Hawkeye Commodzty Promotions Inc v Miller, 

 (N D Iowa 2006) (‘ In addition to offer and acceptance, another essential element of a

binding contract is consideration ”); Ecore International Inc v Downey, 343 F Supp 3d 459, 487

(E D Pa 2018) (“To establish the existence of an agreement one must show that (1) both parties



5 (1)To constitute consideration, a performance or a retum promise must be bargained for (2) A performance or
return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the
promisee in exchange for that promise (3) The performance may consist of (a) an act other than a promise or
(b) a forbearance, or (c) the creation, modification, or destruction of a legal relation (4) The performance or return
promise may be given to the promisor or to some other person It may be given by the promisee or by some other
person RESTATEMENT(SECOND) 0F CONTRACTS§ 71 (1981)
Julian v Matthew                            2024 V I 15
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Opinion of the Court
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have manifested an intention to be bound by the terms of the agreement; (2) the terms of the

agreement are sufficiently definite to be specifically enforced; and, (3) there is mutuality of

consideration ); see also Tourism Indus Inc v Benjamm, No 3601979, 

, at

*2 (V I Terr Ct May 27, 1982) (unpublished) (explaining that adequate consideration entails an

exchange of promises rather than the performance of the promises); Dame] v Shamar Pemberton

& Carly Enters No ST 2019 CV 00157 

 at *2 (VI Super Ct Dec 9 2020)

(unpublished) (“[C]onsideration ‘requires a performance or a retum promise that has been

bargained for ”’)


1124    A contract breach occurs when one or multiple contracting parties fail to perform duties

established by the contract Creative Minds LLC v ReefBroadcastmg Inc , No ST 1 1 CV 13],

 at *8 (V 1 Super Ct Sept 24 2014) (unpublished) See RESTATEMENT

(SECOND) OF CONTRACTS § 235 (1981) (‘ When performance of a duty under a contract is due any

non performance is a breach ”), Key Bank Nat 1 Ass n v Components by John McCoy Inc , No

06 Civ 13164 (SC) 

 at *13 (S D N Y Nov 6 2008) (unpublished) ( [T]he

failure of a party to perform its obligations under a valid and binding contract constitutes a

breach ’) (citations omitted) To establish a breach of contract claim under Virgin Islands law, a

plaintiff must prove that a contract existed, that there was a duty created by that contract, that

such duty was breached, and that he suffered damages as a result ” Chapman v Cornwall, 58 V I

431 437 (VI 2013) See McGrath v Lzberty Mat Fzre Ins Co No 2 19 CV 36 JCM 2019WL

9100192, at *2 (D Nev May 13, 2019) ( To state a claim for breach of contract, a plaintiff must

allege (1) the existence of a valid contract (2) that plaintiff performed or was excused from

performance (3) that the defendant breached the contract; and (4) that the plaintiff sustained
Julian | Matthew                             2024 V] IS
5 Ct Civ No 2022 0023
Opinion of the Court
Page 12 of 22

damages”) (citations omitted); Flemmg Steel Co v Jacobs Engmeerzng Group Inc , 373

F Supp 3d 567, 582 (W D Pa 2019) (“In order to state a claim for breach of contract under

Pennsylvania law, Plaintiffmust show ‘( 1) the existence of a contract, including its essential terms,

(2) a breach of a duty imposed by the contract and (3) resultant damages ”’) (citations omitted)


1|25    Importantly, a contract breach can be material or minor Creatzve Minds, 

, at *6 A material breach is significant or essential if it deprives the injured party of the

benefit he or she reasonably expected to obtain from the contract and affects that party’s decision

making ability regarding two options     (1) whether to permit the breaching party to cure, or (2) to

forego his or her own reciprocal obligations under the contract 1d at *7, see also RESTATEMENT

(SECOND) OF CONTRACTS § 241 Material breaches excuse the non breaching party 3 performance

and allow for a myriad of remedies 1d A minor breach only provides for nominal damages Id

(citations omitted) See Unzted States ex rel Virgzma Beach Mech Servzces v SAMCO Const Co ,

 (E D Va 1999) ( When a party does not fully complete its contract the

non breaching party's remedies turn on whether that failure to perform constitutes a material or a

minor breach A minor breach may allow the aggrieved party to recover damages or a set off

against the breaching party, but it does not excuse that aggrieved party from performing ”); Frank

Lloyd Wright Foundatzon v Kroeter 

 l 18 1 133 (D Ariz 2010) ( [T]he victim of

a material or total breach is excused from further performance ’ under the contract, while “the

victim of a minor or partial breach must continue his own performance, while collecting damages

for whatever loss the minor breach has caused him ”) (citations omitted)


1|26    Notably, the purpose of contract damages ‘ is [to] give the injured party the benefit of the

bargain and to the extent possible put him in the position he would have been in bad the contract
Julten 1 Matthew                                    2024 V1 15
S Ct Civ No 2022 0023
Opinion of the Court
Page 13 of 22

been performed ” Tourism Indus , 

, at *2 Specifically, when a party breaches a

contract, the non breaching party is entitled to damages Key Bank, 

, at *13 See

Rivera v Sharp N0 2008 0020 

 at *15 (D V I June 1 2021)( It is hombook

law that when one party to a contract commits a material breach, the non breacher has the option

of either continuing the contract and suing for partial breach, or terminating the agreement in its

entirety ) (citations omitted) Island Block Corp v Jefferson Constr Overseas, 

 (3d Cir 1965) (finding under Virgin Islands law that [w]hi1e plaintiff‘s failure to make the

required shipments was a material breach which would have warranted cancellation of the contract,

defendant nevertheless continued to accept plaintiff‘s performance In these circumstances

defendant is not relieved of its contractual obligations; rather its remedy is in damages by way of

recoupment or counterclaim )(citations omitted)


1127     However, if both parties breach the contract, the court may preclude recovery for either

party or offset the recovery ofone party with the recovery of the other party because of their mutual

breach 6 See Westmghouse Electric Corp v Garret Corp                     

 158 (4th Cir 1979)

(“[U]nder        general contract law, courts have held that in some instances where both parties are

at fault (or in default) neither may recover             Whether this doctrine is described as failure of

consideration, failure to satisfy a condition precedent, or mutual breach of contract, it is clear that

in proper circumstances a court may refuse to allow recovery by either party to an agreement

because of their mutual fault, which in contract terms might be more properly described as mutual




6 [l]n the absence of provisions in the contract to the contrary where both parties thereto are in default or on a
breach thereof Wherein both have participated neither one may recover damages therefor from the other
Furthermore, where both parties are in equal fault, money or property advanced in furtherance of the contract cannot
be recovered On the other hand, in some circumstances where both parties have been guilty of breach of contract
each may be liable in damages to the other 173 C J S Contracts 9 758 (2022)
Julian 1 Matthew                             2024 V I 15
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default )(citations omitted)‘ compare Nguyen v Harris N0 ST 06 CV 253 

at *3 (V I Super Ct Mar 13, 2009) (unpublished) (explaining that when parties are found to have

breached a contract, damages are apportioned in accordance with the liability of each party)

(citations omitted) Finally, “[a] fimdamental rule of damages applicable to breach of contract

cases is that the party injured by the breach is limited in recovery to the loss actually suffered; he

is not entitled to be placed in a better position than he would have been if the contract had not been

broken     Hamilton v Bayer Healthcare Pharmaceuticals, N0              CIV 18 1240 C, 

 at *3 (W D Okla Sept 5 2019) (citations omitted)


1|28     Here, Julien and Matthew initially negotiated orally for Matthew to renovate Julien’s

kitchen in exchange for a $6,000 contract price However, following a preliminary assessment of

Julien’s residence, Matthew sent a formal acceptance via email ofJulien’s oral offer It is axiomatic

that ‘ [a]n offer is the manifestation of willingness to enter into a bargain, so made as to justify

another person in understanding that his assent to that bargain is invited and will conclude it ”

Amber Chemical Inc v Rezlly Industrzes Inc           No l 06 CV 06090 OWW SMS 

 at *4 (E D Cal Feb 14 2007) (unpublished) (citations omitted) In this case Julien s

pre contract negotiations with Matthew ripened into an offer because of her willingness to have

Matthew renovate her abode Consequently, Matthew’s email to Julien, which contained the scope

of the work to be performed as well as the contract price, represented his assent or acceptance of

Julien’s terms, which were memorialized in the email J A 3 See McDermott Intern               Inc v

Industrial Rtsklnsurers No Civ A 01 3027 

 at *5 (E D La Dec 9 2003)

(unpublished) (“A contract is an agreement between two parties whereby one party makes an offer

and the other party accepts that offer, thereby establishing a concurrence in understanding the
Juliet: t Matthew                            2024 V I 15
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Opinion of the Court
Page IS of 22


terms ”) (citations omitted) In terms of consideration, Julien promised to pay Matthew the $6,000

contract price and gave him a $2,000 deposit Therefore both Matthew and Julian assented t0 the

terms of their agreement which demonstrated that they intended to be bound by it Accordingly, a

valid contract existed between the parties


1129   However, at some juncture during the performance of the contract, Matthew made

numerous mistakes including not sealing the limestone tiles for the backsplash and damaging the

granite counter top These mistakes constituted a material breach of the parties‘ contract because

they involved work essential to the agreement between Matthew and Julien and they affected

Julien’s decision making, in terms of her choice as to whether to permit Matthew to cure the

mistakes, or to not satisfy her own obligations under the contract with Matthew At that time, Julien

could have terminated the contract or proceeded with the contract and sought damages Yet, J ulien

failed to pursue either option See Rivera v Sharp N0 2008 0020 

 at *10

(D V I June l, 2021) (‘ A party to a contract may waive a condition precedent to its performance,

or a breach of the contract's provisions, by conduct manifesting a continued recognition of the

contract's existence afier learning of the breach or failure of the condition, such as by continuing

to perform or accepting performance under the contract and receiving the benefit of it          [B]y

choosing to proceed following the nonoccurrence of a condition or a breach, the party who would

otherwise have been excused may broadly be said to have waived the failure of the condition or

the breach There are few principles of contract law better established, or more uniformly

acknowledged, than the rule that when a contract not fully performed on either side is continued

in spite of a known excuse, the right to rely on the known excuse is waived; in turn, the defense
Julien! Matthew                              

S Ct Civ No 2022 0023
Opinion of the Court
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based on the excuse is lost and the party who would otherwise have been excused is liable if it

subsequently fails to perform ’) (citations omitted)


1|30    Although Julien ultimately terminated the contract with Matthew, she only did so after

acknowledging Matthew’s numerous mistakes without penalty Moreover, Julien waited until

Matthew had completed the majority of the remodeling work before she chose to terminate the

contract with him and discharge him from the job Furthermore, after she terminated the contract

with Matthew, Julien refused to pay him the balance of the contract price despite Matthew’s

substantial job performance Under those circumstances, Julien kept the benefit of Matthew’s work

without paying him Therefore, Julien also materially breached the contract Accordingly, because

both parties breached the contract, the Magistrate Division did not err when it apportioned liability

between Julien and Matthew Similarly, the Appellate Division also did not err when it affirmed

the Magistrate Division’s March 10, 2020 amended judgment


113]    We now turn to the claims Julien asserts in her appellate brief namely the Magistrate

Division’s impermissible shifting of the burden of proof to her, the Magistrate Division’s failure

to allow her to call witnesses, and the Magistrate Division’s award of damages to Matthew for

Julien 8 failure to pay him for his electrical work To reiterate, we ordinarily only examine the

basis for 3 Superior Court Magistrate Division’s judgment when the Appellate Division has

adopted or affirmed the trial court 8 reasoning Because the Appellate Division expressly stated in

its March 22, 2022 order that it reviewed the trial record and because it ultimately affirmed the

Magistrate Division’s ruling, we will therefore review the Magistrate Division’s rationale to

address Julien s contentions However, because the Magistrate Division is not bound to apply rules

of evidence in a Small Claims case and the fact that Julien s arguments implicate certain
Julian t Matthew                                       2024 V l 15
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evidentiary rules, we will only briefly examine Julien’s contentions for the sake of completeness

See V I SMALL CLAIMS R 4(b)(5) 7


1132      On appeal, Julien asserts that the Magistrate Division impermissiny shifted the burden of

proof to her 3

1] 33    ‘ In the Virgin Islands, the burden of proof in civil cases is governed by title 5, section

740(5)9 of the Virgin Islands Code               Wilkinson v Wilkmson 70 V I 901 914 15 (V I 2019)

Essentially, 5 V l C § 740(5) states that civil cases in the Virgin Islands must be proven by a

preponderance of evidence standard Id See also The Village V 1 Partners In Recovery v Gov I

of the V I 39 V I 109 113 (V I 1998) (explaining that the plaintiff normally has the burden of

proof in civil cases), However, when a defendant in a breach of contract claim desires to offset

damages, the burden of proof shifis t0 the defendant Entergy Servzces Inc v Fed Energy

RegulatOIy Comm n No 17 1251 

 at *10 (D D C July 13 2021) See Cowen

Co v Houck Mfg Co 249 F 285 288 (2nd Cir 1918) ( During the progress of the trial it often

happens that a party gives evidence tending to establish his allegation, sufficient it may be to

establish it prima facie, and it is sometimes said the burden of proof is then shified All that is



7 “Conduct of the Ttial The court shall conduct the trial in such manner as to do substantial justice between the
parties according to the rules of substantive law, and shall not be bound by the statutes or rules governing practice,
procedure, pleadings, or evidence, except those statutes and rules relating to privileged communications and the
swearing of parties and witnesses All proceedings shall be recorded, either electronically or stenographically V I
SMALL CLAIMS R 4(b)(5)
3 In her appellate brief, Julien cites former Superior Court Rule 64 for the proposition that a Magistrate hearing a
small claims matter must conduct the proceeding in accordance with substantive law and the magistrate in her case
failed to do so because he incorrectly shifted the burden of proof to her Although we acknowledge that the purpose
of the Small Claims Division is to do substantial justice, we note that Superior Court Rule 64 is repealed and has no
bearing on the Magistrate Division 5 execution of a small claims case
9 The jury, subject to the control of the court in the cases specified in this title, are the judges of the effect and value
of evidence addressed to them, except when it is thereby declared to be conclusive They are however, to be
instructed by the court on all proper occasions that (5) 1n civil cases the affirmative of the issue shall be proved, and
when the evidence is contradictory the finding shall be according to the preponderance of evidence; that in criminal
cases guilt shall be established beyond reasonable doubt 5 V I C § 740(5)
Julien \ Matthew                               

S Ct Civ N0 2022 0023
Opinion of the Court
Page 18 of 22

meant by this is that there is a necessity of evidence to answer the prima facie case, or it will prevail

. . .”).


11 34       The term ‘burden of proof' incorporates two distinct burdens the burden of persuasion

and the burden of production        The burden of production is a party's duty to introduce ‘evidence

sufficient as a matter of law to enable a rational fact finder to find that particular proposition of

fact is true’ and to find in favor of the producing party ’ Chzlds v Gladstone, No 17CV408 JAH

(BLM) 

 at *2 (S D Cal Oct 1 2019) (unpublished) (citations omitted) See

Bruner v Ofiice ofPers Mgmt 

 (Fed Cir 1993) ( The burden of production

also called the burden of going forward, is initially upon the person with the burden of proof, and

generally requires the production of sufficient evidence to support a finding in favor of that person

       The burden of production then shifts to the other party, who must, in turn, produce enough

evidence to raise a question of material fact ’) (citations omitted) Finally, to satisfy the burden of

production, litigants may employ direct evidence like witness testimony or testimony from an

individual with direct knowledge of the situation, or they may utilize indirect evidence like

circumstantial evidence from which reasonable inferences can be drawn Burke v People, 60 V I

257 263 (V I 2013)


1135       Here, the court initially questioned Matthew about the case because he was the plaintiff

who had the burden of proof J A 46 48 In response, Matthew provided testimony about his issues

with Julien’s remodel contract Subsequently, the court proceeded to question Julien about

Matthew’s assertions and her independent contentions concerning the contract to renovate her

kitchen and dining room J A 48 50 In response, Julien provided the court with testimony and

demonstrative evidence, including invoices and canceled checks that verified she had paid multiple
Julten l Matthew                                     2024 V I 15
S Ct Civ No 2022 0023
Opinion of the Court
Page 19 of 22

workmen to correct Matthew’s numerous mistakes J A 50 70 Accordingly, because Matthew, as

plaintiff, provided evidence in the form of testimony before Julien attempted to refute Matthew’s

evidence with additional testimony and exhibits, we are unpersuaded that the Magistrate Division

impennissibly shified the burden of proof to Julien As previously stated, the purpose of the Small

Claims Division is to do substantial justice, which the court did when it first questioned Matthew

to compel production of sufficient evidence to substantiate his claim before it turned to Julien to

rebut Matthew’s contentions Therefore, we conclude that the Magistrate Division did not

impermissiny shift the burden of proof to Julien


1136     Next, Julien alleges that the Magistrate Division erred when it refused to allow her to call

witnesses Under Virgin Islands Evidence Rule 70] , lay witnesses may only testify about matters

rationally related to the witness s perception and helpfiil in understanding the witness’s testimony

or to ascertain a fact issue V I R EVID 701 However, Rule 701 precludes a lay witness’s

testimony about scientific, technical, or specialized matters outside the witness s scope of

knowledge [(1 Moreover, the ability of a lay witness to testify pursuant to Rule 701 is tempered

by Virgin Islands Evidence Rule 403 '0 Essentially, Rule 403 allows a court to refuse the admission

of evidence it deems to be unbeneficial, prejudicial, time consuming, or needlessly presenting

cumulative evidence Thus, a litigant 3 right to call witnesses is not unfettered and is premised on

a witness’s ability to aid the litigation as well as conserve important Judicial resources


1B7      Moreover, pursuant to V1 Small Claims Rule 4(b)(5), "[t]he court shall conduct the trial in

such manner as to do substantial justice between the parties according to the rules of substantive



'0 “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or
more of the following unfair prejudice; confusing the issues; misleading the jury; undue delay, wasting time; or
needlessly presenting cumulative evidence ” V I R EVID 403
Julian 1 Matthew                              2024 V I 15
S Ct Civ N0 2022 0023
Opinion of the Court
Page 20 of 22


law, and shall not be bound by the statutes or rules governing practice, procedure, pleadings, or

evidence, except those statutes and rules relating to privileged communications and the swearing

of parties and witnesses "


1138      Here, although the court opined that the testimony of Julien’s witnesses was unnecessary

because it would not add anything new to the trial record, we remind the Magistrate Division that

the right to call witnesses is an inherent aspect of our system of justice See McDermott v

Manhattan Eye Ear & Throat Hosp 203 N E 2d 469 472 73 (N Y 1964) (explaining that in

civil cases, it is a well established right to call any witness, even an adverse party, if his testimony

is relevant to the issues in the case) Thus, while the Magistrate was free to determine that the

testimony of Julien’s witnesses was irrelevant or cumulative, we believe that the best course of

conduct in this matter was for the Magistrate to allow Julien’s witnesses to testify before

concluding their testimony was inapplicable or cumulative evidence in the case


1139      More importantly, the purpose of the Small Claims Division is to do substantial justice

Previously, we noted that “substantial Justice contemplates more than the interests of the defendant

       [it] also contemplates the plaintiff‘s interests ” Spencer 12 Navarro, No 2007 69, 

 at *3 (V 1 Apr 8 2009) (unpublished) Additionally because the role of the judge in a

small claims action is to achieve substantial justice, he or she must do so even if it means that a

liberal reading of the facts or law would afford relief to a pro se small claims litigant which would

ordinarily not be available to a pro se or other litigant in the Superior Court’s Civil Division Dams

v Turner 

 1189 (D V1 2018) Therefore Superior Court magistrates should afford

litigants some latitude in presenting and explaining their case
Julten i Matthew                             2024 V I 15
S Ct Civ No 2022 0023
Opinion of the Court
Page 21 of 22


1|40    Here, the magistrate opined that there was no need for Julien to call witnesses despite

Julien s ability to call them to offer witness testimony to support her case J A 10| 103

Undeniably, the magistrate’s refusal to hear the testimony of Julien’s witnesses was an error that

potentially circumvented the purpose of the small claims division to render substantial justice for

all litigants Regardless, the magistrate provided a sufficient foundation for his small claims

decision Accordingly, there is no need to remand this matter merely on the issue of the ability of

litigants to call witnesses in a small claims case because we remind the magistrates 0f the Superior

Court of the need to allow litigants to offer witness testimony in support of their claims Any other

conclusion potentially thwarts, impedes, and obstructs the purpose of the division of small claims

to render substantial Justice between litigants


1|4l    Finally, J ulien argues that the Magistrate Division erred in awarding Matthew damages for

his deficient electrical work We will not belabor this point Functioning as fact finder, the

magistrate was in the best position to observe the parties and assess their credibility See Moore v

Walters 61 V I 502 508 (V l 2014)( Th[e] explicit determination of credibility by the magistrate

cannot be overturned if a rational person could agree with the assessment of the trial court, as is

the case here   (emphasis added» Rahhal v Clarke N0 SX 2021 SM 00027 

at *2 (V I Super Ct July 20, 2022) (‘ Because cases in the Magistrate Division are decided without

a jury, the magistrate court hears the testimony and considers the evidence before finding the facts

and applying the law And when the law is unsettled, the magistrate court must determine what

law should apply before finding what facts are relevant ) The court thoroughly questioned both

parties about each of their areas of contention Ultimately, the magistrate believed Matthew, ruled

in his favor on the issue of the inferior electrical work, and apportioned liability accordingly
Julian v Matthew                              2024 V I 15
S Ct Civ No 2022 0023
Opinion of the Conn
Page 22 of 22


Therefore, we find no error in the Magistrate Division’s damages award to Matthew for his

electrical work See Valermo v Manmng, 68 V I 276, 300 (V I 2018) ( ‘The Magistrate Division

is the trial court in all Magistrate Division cases ’)


                                         V       CONCLUSION

1|42   Therefore, we affirm the Superior Court Appellate Division’s affirmation of the Magistrate

Division’s March 10, 2020 amended judgment finding no error in the trial court 3 offset ofJulien’s

damages fiom Matthew’s damages because we recognize that the goal of the Superior Court Small

Claims Division is to do substantial justice, which we firmly believe the court accomplished here




Dated this 0%           day 0/2qu 2024
                                                   221nm cam“                 2

                                                         WE ARLIN8§ON SWAN
                                                         Associate Justice

ATTEST
VERONICA J HANDY ESQ
Clerk of the Court


          eputy Clerk

D t Ma{ch 21a, 2021