SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
STEPHANIE HODGE
PLAINTIFF, Civil No SX 2008 CV 201
v.
HOLDINGS NEPTUNE HOLDINGS
BOBECK REAL ESTATE COMPANY AND CITE AS 2022 VI SUPER 25
XYZ COMPANY
DEFENDANTS
Appearances
LeeJ Rohn, Esq
Lee J Rohn and Associates LLC
St Croix US Virgin Islands
For Plaintiff
Andrew C Simpson, Esq
Andrew C Simson PC
St Croix US Virginlslands
For Defendants and
Non Party Jams Bobeck
MEMORANDUM OPINION AND ORDER
WILLOCKS Presiding Judge
‘][ 1 THIS MATTER came before the Court on Plaintiff Stephanie Hodge s (hereinafter
Plaintiff) motion to appoint Janis Bobeck, Defendant Bobeck s widow as the personal
representative of Defendant H Duane Bobeck’s (hereinafter ‘Bobeck ) estate filed on October
27 202! On December 17, 2021 Janis Bobeck, a nonparty filed an opposition thereto On
December 20 2021 Plaintiff filed a reply thereto
BACKGROUND
$12 On April 14 2008 Plaintiff filed a complaint against Defendant Bobeck Defendant
Passport Holdings Defendant Neptune Holdings Defendant Bobeck Real Estate Company and
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Defendant XYZ Company (collectively, Defendants ) in connection with Plaintiff’ 3 employment
with Defendants The complaint has since been amended twice and the second amended complaint
deemed filed on July I l 2009, is the operative complaint The second amended complaint did not
set forth the specific names of each cause of action but based on the allegations therein it appears
that Plaintiff alleged the following causes of action Count I violation of Title VII known as the
Civil Rights Act ; Count II violation of the Virgin Islands statutes against discrimination and
harassment ; Count [II wrongful discharge ’ Count IV ‘ slander and defamation and as such
that they constitute defamation per se Count V “intentional infliction of emotional distress
Count VI misrepresentation Count VII breached their duty of good faith and fair
dealing and contractual duties and Count VIII an award of punitive damages ’ (SAC )
(II 3 On October 21 202! Janis Bobeck a nonparty filed a notice of death via Andrew C
Simpson Esq of Andrew C Simpson, P C 1 whereby she advised the Court that her husband
Defendant Bobeck passed away on September 23 2021 In her notice Janis Bobeck also advised
the Court that Defendant Bobeck died without an estate (Oct 21 2021 Notice)
‘II 4 On October 27 2021 Plaintiff filed this instant motion
‘ll 5 A status conference was scheduled on February 10 2022 but did not go forward 7
' On June 15, 2009 Sarah Crawford filed a complaint against Detendant Bobeck Detendant Janis Bobeck, Defendant
Passport Holdings Defendant Neptune Holdings and Defendant XYZ Company in Case No SX 2009 CV 292 Lee
Rohn Esq 0t Lee J Rohn and Associates LLC the counsel 0t record for Plaintitt in this matter is also counsel of
record for Sarah Crawford in Case No SK 2009 CV 292 Andrew C Simpson Esq of Andrew C Simson P C
counsel of record for Detendants in this matter is also counsel 0t record tor the defendants in Case No 5X 2009 CV
292
’ The February [0 2022 status conference did not go lorward in light 0t Plaintiff s pending motion As such the Court
will vacate nunc pro tune the February 10 2022 status conference
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Memorandum Opinion and Order 2022 VI SUPER 25
Page 3 0t l6
STANDARD OF REVIEW
(fl 6 If a claim has been filed and is still pending when the person dies the procedure for the
substitution of the decedent 5 personal representatives or successor requires a motion and is
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 ) 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 suits filed under Title 5 V I C
‘Titlt. 5 V I C § 78 provides
§ 78 9ubstitution at parties
No action shall abate by the death or disability of a party or by the transter of any interest therein it the cause
of action survives 0r continues In case of the death or disability ot a party the court may at any time within
two years thereafter on motion allow the action to be continued by or against his personal representatives
or successor in interest
Titles VIC §78
‘ Rule 25(a) provides in relevant part
Rule 25 Substitution 0t Parties
(a) Death
(1) Substttutton tfthe Claim Is Not E mngutslzed It a party dies and the claim is not extinguished the court
may order substitution of 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) Continuatton Among the Remammg Parties After a partys death if the right sought to be enforced
survives only to or against the remaining parties the action does not abate but proceeds in favor of or against
the remaining parties The death should be noted on the record
(3) Sen ice A motion to substitute together with a notice of hearing must be served on the parties as provided
In Rule 5 and on nonparttes as provided in Rule 4 A statement noting death must be served in the same
manner
VI R CW P 25(3)
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§ 76 and survival actions filed under Title 5 V I C § 77 V I R Clv P l7(e),S see also Raymond
v Assefa 69 VI 953 (VI 2018) 6
DISCUSSION
‘][ 7 In her motion, Plaintiff moved to appoint Janis Bobeck as the personal representative of
Defendant Bobeck s estate Plaintiff made the following assertions in support of her motion (i)
While Janis Bobeck represents that Mr Bobeck ‘died without an estate Mr Bobeck previously
testified as to his ownership in Bobeck Real Estate, and various companies (Motion p l) and
(ii) Plaintiff is entitled to proceed against Janis Bobeck as the Personal Representative of
[Defendant Bobeck s estate] obtain a verdict and collect that verdict from funds that may have
been alienated transferred after this suit was filed 7 (Id at p 2 )
‘ Rule l7(e) 0t Virgin Islands Rules 01 CIVII Procedure provides
Rule 17 Plaintill and Detendant Capacity Public Olficers
(e) Actions for Wrongful Death and Survival
In wrongful death suits filed under 5 V I C § 76 and in survival actions tiled under 5 V I C § 77 the action
may be prosecuted in the name ot a plaintitt identified in the complaint as acting as a personal representative
The named plaintitt shall serve as personal representative throughout the proceeding unless replaced by order
01 the court
VI R Cw P l7(e)
“ The Virgin Islands Supreme Court pointed out in Rmmmtd
Importantly the aLcompanying Advisory Committee Note emphasizes that the purpose 0| Rule l7(e) is to
clarity 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 speeitically Wllh wrongful death and survival actions under 5
V I C §76 and § 77 Tu avotd am unnecessan requuemen! to open an estate, and to permit switt
commencement of proceedings where required tor statute 0t 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 plaintitt will serve as personal representative
throughout the proceeding unless replaced by order of the court VI R Ctv P 17 ADVISORY
COMMITTEE NOTE (emphasis added)
69 V I at 958 59
Plaintift referenced In re Deceased Plaumfls 7% VI 165 ‘1 32 (VI Super Ct Apri126 2020)
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‘ll 8 In her opposition Janis Bobeck indicated that she “does not consent to be appointed
personal representative and argued that the Court ‘lacks jurisdiction to appoint a personal
representative for a deceased defendant—especially to appoint a representative who declines to
serve in such capacity ’ (Opp p 6 )Janis Bobeck made the following assertions in support of her
opposition (i) While [t]he Notice of Death indicated that the family believed that Mr Bobeck
had passed away without owning any assets[ u]pon further investigation however it appears that
Mr Bobeck owned some assets at the time of his death and also had certain obligations that must
be processed through Indiana 3 probate process (Id at p 2) (ii) ‘ The family has retained an
attorney in Fort Wayne Indiana to file an appropriate probate proceeding there [and] [t]he filing
of the proceeding is delayed as the family seeks to ascertain whether Mr Bobeck died testate or
intestate (Id ), (iii) “The causes of action asserted are either personal torts or would seemingly
fall into the general catch all basket of all other causes of action by one person against another
[and thus] it appears that all counts in the Plaintiff’s complaint survived Mr Bobeck 5 death
(Id at p 4), (iv) ‘There is no similar rule [to Rule 17(e) of the Virgin Islands Rules of Civil
Procedure] allowing the avoidance of opening an estate when a defendant has died (Id at p 5)
(v) [A]lthough 5 V I C § 78 and Rule 25(a)(l) of the Virgin Islands Rules of Civil Procedure
both state that the Court may order substitution of the proper party neither the statute nor the
rule authorizes the Court to determine who that personal representative shall be (Id at p 5), (vi)
[T]he applicable jurisdiction 5 rule for appointment of an administrator must be followed (Id )
(vii) To date they have not located a will but are canvassing Mr Bobeck 3 records and various
law firms with whom he dealt that might have a copy of a will (Id at pp 5 6) (viii) They have
retained counsel in Indiana who once the determination is made as to whether Mr Bobeck died
testate or intestate will prepare the necessary documents that will result in a court in Indiana
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appointing an administrator for Mr Bobeck s estate (Id at p 6) and (ix) Once the administrator
is appointed notice will be provided to plaintiff in compliance with Indiana law and plaintiff may
then file a motion in accordance with VI R Civ P 25 to substitute the administrator of Mr
Bobeck s estate as a party to this action ’ (Id )
(|[ 9 In her reply Plaintiff argued that Janis Bobeck is completely wrong (Reply p l )
Plaintiff made the following assertions in support of her reply (i) “Nowhere in the Section 78 or
Rule 25 does it say that a probate must be opened when the party that dies is the defendant (Id
at p 2) (ii) ‘ Janis Bobeck a defendant in this case and the widow of H Duane Bobeck is an heir
at law and is the perfect representative who will assuredly defend the claims against her husband
as she defends her own (Id) (iii) Nothing in the Virgin Islands code requires that a probate
proceeding be commenced before a personal representative may be appointed to defend an existing
lawsuit ’ (Id at p 3) and (iv) If this Court is powerless to appoint a personal representative
when a defendant dies absent a probate as Janis Bobeck suggest then Rule 25 (a)(l) would be
rendered meaningless [and] [tlhe Court would never be able to order substitution of a proper party
pursuant to Rule 25 absent a probate and in some cases a probate would never be opened 3 (Id )
‘1 l0 The Court notes three things at the outset First Plaintiff’s October 27 2021 motion was
timely filed within the two year deadline set forth in Section 78 and Rule 25, Second, Janis Bobeck
is not a defendant in this matter as claimed by Plaintiff in her reply,9 Third as of the date of this
memorandum opinion and order, no notice has been filed regarding the status of the administration
of Defendant Bobeck s estate so it is unclear whether a formal probate proceeding has been
initiated and whether an administrator or executor has been appointed
SPlaintiff referenced Augustin v Hess 011 Virgin Islands Corp 67 Vi 488 (VI Super Ct Aug 2‘4 2017)
9 See supra tootnote l
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(II I 1 Upon review of the file several issues have come to the Court 5 attention The Court will
address them in turn
1 Whether Plaintiff’s Claims Against Defendant Bobeck Survived After
Defendant Bobeck’s Death?
‘11 12 Not all claims survive after a person 5 death '0 In re Deceased Plamnfls, 73 V I 165 187
n 6 (V I Super Ct April 26 2020) e g Title 5 V I C § 37(a) (If a person entitled to bring an
" Arguably the phrase causes 01 action by one. person against another whether arising on contract or otherwise ’ in
Title 15 V I C 1‘} 601 could be interpreted to be a catch all provision so that all claims survive after a person s death
as claimed by Janis Bobeck However for the reasons that follow the Court declines to adopt such interpretation and
instead, concludes that the canons of statutory construction necessitates an interpretation that not all claims survive
alter a person 5 death
The Virgin Islands Supreme Court has instructed The first step when interpreting a statute is to determine whether
the language at issue has a plain and unambiguous meaning It the statutory language is unambiguous and the statutory
scheme is coherent and consistent no turther inquiry is needed ’ In re L 0 F 62 V I 655, 661 (V I 2015) (quoting In
re Rewolds 60 V l 130 334 (V I 2013)) Further [iln analyzing a statutory scheme we must give eflect to every
provision making sure to avoid interpreting any provision in a manner that would render it or another provision
wholly superfluous and without an independent meaning or tunction of its own
In re L 0 F 62 VI at 661 see In re Joseph 65 V I 2|7 230 (V I 2016) ( We emphasize that in interpreting a
statute we must do our best bearing in mind the fundamental canon of statutory construction that the words ot a
statute must be read in their context and with a view to their place in the overall statutory scheme Accordingly, this
Court must not confine itselt to examining a particular statutory provision in isolation Instead we must interpret the
statute as a symmetrical and coherent regulatory scheme and fit it possible all parts into an harmonious
whole (internal quotation marks and citations omitted) Finally, even where a statutory scheme is plain and
internally consistent, no statute should be read literally it such a reading is contrary to its objective [and] this Court
must wnsider whether applying the statutes literal language leads to absurd consequences or is otherwise
ineonsistent with the Legislatures intent Id (quoting GlIbert 1 People 52 VI 350 356 (VI 2009) (internal
quotation marks citation and alteration omitted)
Title 15 V I C §601 provides
Subject to the provisions of sections 76 and 77 of Title 5, causes of action by one person against another
whether arising on contract or otherwise survive to the personal representatives of the tormer and against
the personal representatives of the latter 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 01 action accrued
or after his death against his personal representatives
Title 15 VIC §60|
The Court tinds the phrase causes of action by one person against another whether arising on contract or otherwise
in Title 15 V IC § 601 lacks clearness and is subject to at least tw0 different interpretations and thus Title 15 V IC
§ 601 is not plain and unambiguous In re L 0 F 62 V I at 661 Here the phrase causes of action by one person
against another whether arising on contract or otherwise’ could be interpreted as a catch all provision so that all
claims survive after a person 5 death However upon closer inspection in the light of the established canons
of statutory interpretation it becomes clear that such a construction is impermissible as it renders the phrase [s]ubject
to the provisions of sections 76 and 77 of Title 5 directly betore the phrase causes 01 action by one person against
another whether arising on contract or otherwise in Title 15 V I C § 601 superfluous the phrase [w]hen the cause
of action survives ’ in the second sentence of Title 15 V I C § 60] superfluous the phrase “and the cause of action
survives in Title 5 V I C § 17(a) superfluous and the phrase if the cause of action survives or continues‘ in Title
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action dies before the expiration of the time limited for the commencement thereof and the cause
of action survives an action may be commenced by his personal representatives after the
expiration of the time and within one year from his death ) (emphasis added) e g Title 5 V I C
§ 78 ( No action shall abate by the death or disability of a party or by the transfer of any interest
therein if the cause of action survives or continues ’) (emphasis added) e 3 Title 15 V I C §
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 of action accrued or after his
death, against his personal representatives ) (emphasis added)
‘ll 13 In the Virgin Islands, personal injury claims survive after a person 5 death Title 5 V I C
§ 77 ( A thing 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 person
injured ) In her second amended complaint, Plaintiff alleged that [t]he sexual harassment and
retaliation and slander and defamation by Defendants have caused the Plaintiff physical and
psychological injuries (SAC ‘ll 55) Thus at this juncture as pled in the second amended
complaint the Court finds that the following claims against Defendant Bobeck survived Defendant
Bobeck 5 death Count I violation of Title VII known as the Civil Rights Act , Count II
violation of the Virgin Islands statutes against discrimination and harassment and Count IV
S V I C § 78 superfluous See In re L 0 F 62 V I at 66l On the other hand the phrase ‘eauses of action by one
person against another whether arising on contract or otherwise could be interpreted in a manner so that all parts of
Title l5 V I C § 60] can be read into a harmonious whole and that it can also be read in harmony with Title 5 V I C
§ 37(8) and Title 5 V I C § 78 to wit the phrase causes of action by one person against another whether arising
on contract or otherwuse could be read in conjunction with the phrase ‘[s]ubject t0 the provisions of sections 76 and
77 of Title 5 before it so that [s]ubject to the provisions oi sections 76 and I I of Title 5 causes of action by one
person against another whether arising on contract or otherwise means that not all claims survive after a person 5
death and that only claims subject to the prowisions of Title 5 V I C § 76 and Title 5 V I C § 77 survive alter a
person 5 death As such In accordance with the maxim 0t statutory interpretation the Court adopts this latter
interpretation
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“slander and defamation and as such that they constitute defamation per se See Title 5 V IC §
77 On the other hand Plaintiff did not allege in the second amended complaint that the remaining
claims” resulted in physical injury and therefore it is unclear whether these claims survived
Defendant Bobeck 5 death Currently there are no Virgin Islands laws or rules and no prior
precedent from the Virgin Islands Supreme Court concerning which claims, aside from personal
injury claims survive after a person 5 death Plaintiff did not address this issue in its brief As
such the Court will set a briefing schedule and give Plaintiff Defendant Passport Holdings
Defendant Neptune Holdings and Defendant Bobeck Real Estate Company an opportunity to
address this issue
2 Whether an Estate Must be Opened via a Formal Probate Proceeding
Before the Appointment of a Personal Representative When Rule 17(e)
does not Apply?
(ll [4 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, 67 V I at 514 ( 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. VI 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
" The remaining claims are as tollows Count III wrongful discharge’, Count V intentional infliction ol
emotional distress Count VI misrepresentation Count VII breached their duty of good faith and tair
dealing and contractual duties‘ and Count VIII an award of punitive damages However, the Court must note
that in Bertrand v Mum Granue & Marble Inc the Virgin Islands Supreme Court affirmed the Superior Court
3
ruling that a request for punitive damages is not an independent cause of action 63 VI 772, 784 n 6 (V I 2015)‘
see also Der Ween Hess 011V! Corp
60 VI 91 95 n 1 (VI Super Ct 2014)( Although labeled as a claim
for punitive damages in the complaint, punitive damages is not a separate cause 0t action but rather a demand for a
certain type otdamages )
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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 1 e 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 ’ )
‘l[ 15 As noted above at least some of Plaintiff’s claims against Defendant Bobeck survive
Defendant Bobeck 5 death However in this instance Rule 17(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 IC § 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 [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
" The Court finds the pertinent language of Rule 17(e) plain and unambiguous and thereby the Court will give eltect
to the plain words of the rule See Banks of NS 1 Dore
57 VI 105 ll? l4 (Super Ct Oct I9 2012)
(citing Corraspe \ People
53 VI 470 480 48l (V l 2010) ( The rules 0t this Court are applied using the same
standards which govern the construction 0t statutes and the primary objective of the trial court is to give eftect to
plain words utilized in the subjectrult. ) Peoplel Ritera 54Vl 116 I25 (Super Ct 2010)( The procedural rules
of courts are construed in accordance with the canons of statutory construction ) In 1e People 49 V I 297 106 (V I
2007)) t We believe the pertinent language is plain and unambiguous thereby dispensing with a resort to the canons
0t construction ”) [f 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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by order of the court ) (emphasis added); see also Raymond 69 V I 953 '3 Thus the Court must
determine whether an estate must be opened first via a formal probate proceeding for Defendant
Bobeck before the appointment of a personal representative to substitute in place of Defendant
Bobeck in this matter Currently there are no 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, 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 Bobeck 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
Augustin the court pointed out that Virgin Islands law does not define the phrase personal
representative at least not in the context of prosecuting or defending civil actions in court and
thus the court had concerns regarding the capacity of the personal representative 67 V I at 506
The Augustm court also pointed out that Title 5 V I C § 4901 and Title 15 V I C § 601 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 '4 Moreover the Augustin court had the following concerns regarding
'3 See supra tootnote 6
'4 The Augustin court stated
If the phrase personal representative does not include executor and administrator, meaning these terms
oi art are not synonymous then section 60] which directs that the executor or administrator must continue
the action after death directly conflicts with sections 78 of title 5 which directs that the personal
representative continues the action after death Compare l5 VIC § 601( When the cause of action
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the appointment of a personal representative without first opening an estate via formal probate
proceeding
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]
dissenting) (quoting Chase Natl Bank v Chicago Title & Trust Co [64 Misc 508 299
N Y S 926 941 (Sup Ct 1934)) accord In re WI” of Lamb 303 NC 452 279 S 52d
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 (1963) Brzssze v Cratg 232 N C 701 62
S E 2d 330 (1950) Steven 5 Executors v Smarts 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
survives as herein provided the executors or administrators may maintain an action thereon against the party
against whom the cause 01 action accrued or after his death against his personal representatives ) ulth 5
V I C § 78 ( In case of the death or disability of a party the court may allow the action to be continued
by his personal representatives 1 But if executors and administrators are simply two types, or species as
the Personal Representatives put it of personal representatives just as magistrates judges andjustices are
all types of judicial officers then there is no conflict A personal representative would include both an
executor and an administrator That would also mean that a personal representative must be either an executor
or an administrator
67 V] at 507 08
Nevertheless the issue 01 whether the terms executor ’ administrator and personal representative are
synonymous in the context of prosecuting or defending civil actions in court was not resolved in Augustin
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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 I C § 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 Clv 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
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 21
miscellaneous probate proceeding give notice to creditors? Virgin Islands law requires that
[elvery 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 5 response to the Court's
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 complied With the requirements ofprobate law concerning claims (Supp Br 7 8
(quoting 5 V [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
Hodge l Bobeck e! a!
sx 2008 CV 20!
Memorandum Opinion and Order 2022 VI SUPER 25
Page 14 of 16
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 Cf. VI R CIV P
25(a)( l) ( [T]he court may order substitution of the properparry (emphasis added» Two
other Superior Court judges have raised similar concerns See generally Brown v
Lorillard Inc ST 10 CV 692 2012 V 1 LEXIS 107 at *5 7 (Super Ct Mar 30
2012) ( 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
szgmficant reservations about allowmg the substitution to take place Among those
reservations are (I) it is not clear whether decedents 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» Englandv 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 5 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 partys 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 Burton 5 lawsuit but after the Buttons had petitioned to
settle Mr Burton 3 estate without administration Because the probate court already entered
its final adjudication and distributed Mr Burton 5 estate the Burtons 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 9| 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)
Hodget Bobeck er a1
SX 2008 CV 20]
Memorandum Opinion and Order 2022 VI SUPER 25
Pa e 15 of l6
‘][ [6 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(6) is not applicable in this matter As such the Court will set a briefing schedule and give
Plaintiff Defendant Passport Holdings Defendant Neptune Holdings Defendant Bobeck Real
Estate Company and nonparty Janis Bobeck an opportunity to address the Court 5 concerns '5 The
Court will reserve ruling on Plaintiff’s October 27 2021 motion to appoint Janis Bobeck as the
personal representative of Defendant Bobeck’s estate
CONCLUSION
Based on the foregoing it is hereby
ORDERED that the February 10 2022 status conference shall be and is hereby
VACATED NUNC PRO TUNC It is further
ORDERED that on or before June 30, 2022 Plaintiff SHALL file a supplemental brief
and Defendant Passport Holdings Defendant Neptune Holdings and Defendant Bobeck Real
Estate Company MAY each file a supplemental brief addressing the following issue
1 Whether the following claims survived Defendant Bobeck 5 death Count III
wrongful discharge Count V intentional infliction of emotional distress Count
VI misrepresentation Count VII ‘ breached their duty of good faith and fair
dealing and contractual duties 1"“
ORDERED that on or before June 30, 2022 Plaintiff SHALL file a supplemental brief
and Defendant Passport Holdings Defendant Neptune Holdings Defendant Bobeck Real Estate
'5 As noted above Janis Bobeck is not a party in this matter Thus, the Court did not give her the opportunity to file a
supplemental brief on the issue at whether Plaintitt 5 non personal injury claims surviwd Defendant Bobeck 5 death
However, since Plaintift moved in her October 27 2021 motion to appoint Janis Bobeck as the personal representative
0t Defendant Bobeck s estate, the Court will give Janis Bobeck the opportunity to file a supplemental brief on the
issues raised in connection with the appointment ot a personal representative
'6 Count VIII an award of punitive damages is not included here See supra footnote 1 l
Hodge t Bobeck er a!
SK 2008 CV 20]
Memorandum Opinion and Order 2022 V1 SUPER 25
Page 16 of 16
Company and nonparty Janis Bobeck MAY each file a supplemental brief addressing the
following issues
1 Whether an estate must be opened first via a formal probate proceeding for Defendant
Bobeck before the appointment of a personal representative to substitute in place of
Defendant Bobeck 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 0f 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 Bobeck was in fact the proper party or even a proper
party how could these disputes be prevented?
And it is further
ORDERED that the parties SHALL perform 21 Banks analysis when required and cite the
proper legal authority statute and/or rule in support of their respective supplemental briefs The
Court will reserve ruling on Plaintiff’s October 27 2021 motion to appoint Janis Bobeck as the
personal representative for Defendant Bobeck s estate 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
DONE and so ORDERED this [Oman of March 2022
ATTEST MW
Tamara Charles HAROLD W L WILLOC
Clerk of the Court Presiding Judge of the Superior Court
By W
ourt Cler Supervisor
Dated 3 / ’ 51 2