SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
MADELINE A BASSIL Case No ST 2021 CV 148
Plaintiff ACTION FOR TEMPORARY
RESTRAINING ORDER
V INJUNCTIVE RELIEF TRESPASS
DECLARATORY JUDGMENT
QUIET TITLE and DAMAGES FOR
JOHN KLEIN SLANDER OF TITLE and
Defendant INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS
2021 VI Super 88
MEMORANDUM OPINION AND ORDER
fill THIS MATTER is before the Court on the following
1 Plaintiff‘s Emergency Motion for a Temporary Restraining Order and Preliminary
Injunction filed April 26 2021
2 Defendant’s Opposition to Plaintiff’s Emergency Motion for a Temporary Restraining
Order and Preliminary Injunction, filed May 7, 2021;
3 Plaintiff‘s Reply to Defendant’s Opposition to Plaintiff’s Emergency Motion for a
Temporary Restraining Order and a Motion to Reconsider Denial of Temporary
Restraining Order, filed May 20, 2021;
4 Defendant 5 Opposition to Plaintiff’s Motion to Reconsider Denial of Temporary
Restraining Order, filed June 3 2021;
5 Defendant’s Answer and Counterclaim, filed June 4, 2021;’
6 Plaintiff’s Reply to Defendant 3 Opposition to Plaintiff‘s Motion to Reconsider Denial
of Temporary Restraining Order, filed June 21, 2021 and
7 Plaintiff’s Answer to Counterclaim, filed June 23, 2021
202] VI Super 88
Madelme A Basszl v John Klein
Case No ST 2021 CV 00148
Motion for Preliminary Injunction
Memorandum Opinion and Order
Page 2 of 13
Upon denying Plaintiff’s Motion for a Temporary Restraining Order, the Court determined it
would schedule an evidentiary hearing on Plaintiff’s application for a preliminary injunction on
July 27, 2021, and July 28, 2021 Having heard evidence and argument from both parties, the
Court grants Plaintiff‘s Motion for a Preliminary Injunction
I FACTUAL AND PROCEDRUAL BACKGROUND
12 Plaintiff Madeleine A Bassil (“Bassil”) is the owner of Parcel No 2D 12 Remainder
Estate Nazareth, St Thomas, U S Virgin Islands (‘ Parcel 2D 12”) Bassil and Terry Anderson
purchased Parcel 2D 12 in 2002 and owned it jointly until 2006 when the property was deeded
Bassil after the couple’s divorce ' Bassil has been the sole owner of Parcel 2D 12 since 2006 2
Bassil lives in New York and occasionally visits her St Thomas property 3
113 Defendant John Klein (“Klein”) is the owner of Parcel No 2D 11 Estate Nazareth St
Thomas, U S Virgin Islands (‘Parcel 2D 11”) and a full time resident of the Virgin Islands
Klein’s property directly abuts Bassil’s property to the south 4 Klein purchased Parcel 2D 11 in
2004 and alleges that at that time, a single trail or walking path started at his parcel and traversed
through Plaintiffs parcel to the beach 5 In 2005, Klein began construction on his current
residence on Parcel 2D 11 and constructed an additional walking path that started at a different
part of his parcel and joined with the prior path 6 Both path traverse through Bassil’s property
Klein alleges that throughout the construction of his current residence, he was regularly on site to
oversee the construction and to use the paths to access the public beach 7 He maintains that for the
last 16 years, he has consistently maintained improved, and used the paths to access the public
beach 8
114 Bassil alleges that there was no path at the time Klein began construction of his residence
in 2005, and that as of April 2015, she was unable to walk her property because the bush was so
dense 9 Anderson, Bassil’s ex husband, testified that there was no established walking path on the
property while he lived there and co owned it, but one could carefully “pick” their way through
the brush to access the beach, which he last did in the spring of 2009 ’0 Bassil maintains that she
was not aware of any paths on her property until January 21 2021, when her real estate agent and
friend, Lisa Curreri, informed her that bush, vegetation trails and steps had been cut through and
' P] 5 Comp] 2
2Pl sCompl 2 Trial Ex 10(admitted into evidence)
P] 5 Emergency Mot for TRO and Prelim Inj 1
4 PI 3 Compl 2
5 Def 3 Opp’n to Pl’s Emergency Mot for TRO and Prelim Inj 2
6 Def 5 Opp’n to Pl’s Emergency Mot for TRO and Prelim Inj 2
7 Def ’5 Opp’n to Pl’s Emergency Mot for TRO and Prelim Inj 3
8 Def 5 Opp n to P] 5 Emergency Mot for TRO and Prelim Inj 3
9 P] s Compl 5
'0 Anderson Test July 27 2021
202] VI Super 88
MadelmeA Basszl v John Klein
Case No ST 2021 CV 00148
Motion for Preliminary Injunction
Memorandum Opinion and Order
Page 3 of 13
across her parcel and over Parcel No 2D 13 to reach the Secret Harbor Beach “ Bassil confirmed
the existence of these paths through a survey of her property conducted by Brian Moseley &
Associates in January 2021 ‘2 It was also around this time, Bassil also became aware that Klein
had been listing his home to rent on AianB and advertising a private path to a gorgeous white
sand beach ” 13
115 On or about February 15, 2021, Klein was served with a Cease and Desist Letter from
Bassil’s attorney urging Klein to cease and desist all activity on Plaintiff’s parcel14 Klein’s
counsel responded that Klein is not required to cease and desist any activity on Plaintiff’s parcel
because he has acquired the rights to it by adverse possession ‘5 This is not the first property
dispute between Bassil and Klein, and it is not the first time Klein has claimed adverse possession
over Bassil’s property In 2008, when Klein was constructing his current home, his construction
activities encroached onto Bassil’s property Bassil testified that Klein extended his driveway and
built a wall on her property ‘6 Klein testified that dirt he was excavating fell onto Bassil’s
property 17 In email correspondence between Bassil and Klein from April 2008 through June
2008, the parties discussed an agreement in which Klein would purchase the disputed sliver of
land from Bassil However, during this exchange, Klein asserted that he owned the disputed
property by adverse possession ‘8 This claim was not litigated, and Bassil agreed to sell the piece
of land to Klein On February 9 2015 Klein offered to buy Bassil’s Parcel 2D 12, described as
“vacant waterfront land approximately 535 acres,” and Bassil rejected 19
116 Bassil filed a complaint regarding the present dispute on April 20, 2020, seeking Action
for Temporary Restraining Order, Injunctive Relief, Trespass, Declaratory Judgment, Quiet Title,
and Damages for Slander of Title and Intentional Infliction of Emotional Distress Bassil then
filed an Emergency Motion for a Temporary Restraining Order and Preliminary Injunction on
April 26, 2021 Klein filed an Opposition to Plaintiff’s Emergency Motion for a Temporary
Restraining Order and a Preliminary Injunction on May 7, 2021 The Court denied Plaintiff’s
Motion for a Temporary Restraining Order on May 14, 2021, and scheduled an evidentiary
hearing on Plaintiff‘s Motion for Preliminary Injunction On May 20, 2021 Bassil filed a reply to
Defendant’s Opposition to Plaintiff’s Emergency Motion for a Temporary Restraining Order and
a Preliminary Injunction and a Motion to Reconsider Denial of Temporary Restraining Order
Klein filed an Opposition to Plaintiff’s Motion to Reconsider Denial of Temporary Restraining
Order on June 3, 2021, and an Answer and Counterclaim on June 4 2021 Bassil filed a reply to
Defendant’s Opposition to Plaintiff’s Motion to Reconsider Denial of Temporary Restraining
1‘ Pl 3 Compl 3
‘2 P1 ’5 Comp] 3 Ex C and Trial Ex 2 M (admitted into evidence)
I‘Pl sCompl Ex E
'4 Pl sCompl Ex D
‘5 Pl 3 Compl 4
'6 Bassil Test July 27 2021
‘7 Klein Test July 27 2021
‘8 P] 5 Hr g Ex 18 (admitted into evidence July 27 2021)
‘9 P1 5 Hr g Ex 16 and 17 (admitted into evidence July 27 202])
202] VI Super 88
Madeline A Basszl v John K181}?
Case No ST 2021 CV 00148
Motion for Preliminary Injunction
Memorandum Opinion and Order
Page 4 of 13
Order on June 21, 2021, and an Answer to Counterclaim on June 23, 2021 The parties appeared
before the Court via Zoom for an evidentiary hearing on July 27 and 28, 2021 On July 30, 2021,
both parties filed supplemental post hearing briefs regarding the factors for determining
injunctive relief
II LEGAL STANDARD
A Motion for Preliminary Injunction
117 A preliminary injunction is considered an “extraordinary and drastic remedy” that is
“never awarded as of right, but only “upon a clear showing that the plaintiff is entitled to such
relief ”’20 The issuance of a preliminary injunction is governed by Rule 65 of the Virgin Islands
Rules of Civil Procedure 21 Before or after beginning a hearing on a motion for a preliminary
injunction, this rule allows for the Court to advance the trial on the merits and consolidate it with
the hearing 22 In considering whether to grant or deny a preliminary injunction, Virgin Islands
Courts must consider four factors, known as the Petrus factors
(1) whether the movant has shown a reasonable probability of success on the merits,
(2) whether the movant will be irreparany harmed by the denial of the relief;
(3) whether granting preliminary relief will result in even greater harm to the nonmoving
party' and
(4) whether granting preliminary relief will be in the public interest 23
The Supreme Court of the Virgin Islands has established that the soundest rule for applying this
four factor standard is to use a “sliding scale test” that balances the four factors 24 Courts are to
consider evidence demonstrated by the parties regarding all four factors, but a party moving for a
preliminary injunction “must demonstrate primarily that irreparable harm is likely without the
injunction ”25 Irreparable injury on its own, however, is not enough to support a claim for
equitable relief and there must also be a plausible claim on the merits 26
0 See Yusufv Hamed 59 V l 841 847 (V I 2013) (quoting Munafv Geren 553 U S 674 689 90 (2008))
2' See V I R CIV P 65 (providing in part that the court may issue a preliminary injunction only on notice to the
adverse party )
22 See V I R CIV P 65(a)(2) (leaving the decision to consolidate the hearings to the Court 5 discretion but ensuring
that the Court preserve any party’s right to a jury trial)
’3 See Yusuf, 59 V I at 847 (citing Petrus v Queen Charlotte Hotel Corp 56 V I 548 554 (V l 2012) (quoting Illes
v de Jongh 638 F 3d 169 172 (3d Cir 2011) and adopting the Third Circuit preliminary injunction standard)
24 See 3RC & Co v Boynes Trucking Sys 63 V l 544 553 (V l 2015)
25 See Id at 554 (providing that “a party seeking injunctive relief must demonstrate that the injunction is necessary to
avoid ‘certain and imminent harm for which a monetary award does not adequately compensate” ); see also Hansen
v Virgin Islands Ware) and Power Authority 55 V 1 309 314 (V 1 Super Ct 201 1) (providing that a showing of
irreparable injury “is a necessary prerequisite for a pre1iminary injunction”)
26 See 3RC& C0 63 V I at 554 (citing Marco St Crotx Inc v V] Hous Auth 62 V I 586 590 (V I 2015)
202] VI Super 88
Madeline A Basszl v John Klem
Case No ST 2021 CV 00148
Motion for Preliminary Injunction
Memorandum Opinion and Order
Page 5 of 13
1 Reasonable Probability of Success 0n the Merits
118 In order for a moving party to show a reasonable probability of success on the merits, the
party only needs to show “a reasonable chance, or probability, of winning ”27 The moving party
does not need to show that it will actually prevail on the merits at trial, or that its success is “more
likely than not ”28 It is appropriate and necessary for the Court to make findings of fact in
deciding a preliminary injunction and evaluating this factor, but a jury will ultimately determine
the factual issues presented in the case 29 The moving party’s chance of succeeding on the merits
is evaluated in combination with the moving party’s claim of injury 30 In some cases, where the
risk of irreparable harm to the moving patty is substantial, the showing of a likelihood of success
on the merits may be weaker 3‘ However, if the likelihood of success on the merits is very strong,
a showing of irreparany harm is less decisive 32
119 In Yusufv Hamed, the Supreme Court of the Virgin Islands found that the Superior Court
did not err in holding that the party moving for a preliminary injunction had established a
reasonable probability of success on the merits 33 The moving party put forth a partnership claim,
and the Superior Court correctly found that there was evidence showing the formation of an at
will partnership 34 Although the opposing party argued that the evidence only established
“competing inferences regarding the existence of a partnership agreement that must be resolved
by a jury,” the Superior Court did not err in finding that the moving party had a reasonable chance
of succeeding 0n the merits because their findings of fact did not bind the jury in determining the
merits 35
2 Irreparable Harm
1110 In the context of a preliminary injunction, Virgin Islands courts define irreparable injury
or harm as harm that is “certain and imminent for which a monetary award does not adequately
compensate ”36 The Supreme Court of the Virgin Islands has confirmed that irreparable harm is
the primary factor a moving party must demonstrate in order to succeed on a motion for a
27 See Yusuf, 59 V I at 849 (citing Singer Mgmt Consultants Inc v Mllgram 650 F 3d 223 229 (3d Cir 2011)
28 See Id
’9 See Id at 853
30 See 3RC & Co 63 V I at 555 (quoting Commonwealth v County ofSujj’olk 418 N E 2d 1234 1235 (Mass
1981
3' See))ld
‘2 See 1d at 556 (citing District ofColumbia v Greene 806 A 2d 216 223 (D C 2002))
13 See Yusuf, 59 V I at 853
34 See 1d at 848 (finding evidence of equal sharing of profits and losses joint management and joint contributions to
operating expenses)
35 See Id at 853
3" See 1d at 854 (quoting Wisdom Imp Sales Co v Laban Brewing Co 339 F 3d 101 1 14 (2d Cir 2003)) see also
3RC & Co , 63 V I at 554 (emphasizing that a party seeking injunctive relief needs to demonstrate a harm “without
an adequate legal remedy”)
202] VI Super 88
Madelme A Basszl v John K161)?
Case No ST 2021 CV 00148
Motion for Preliminary Injunction
Memorandum Opinion and Order
Page 6 of 13
preliminary injunction 37 However, irreparable harm alone is not enough, and the moving party
also needs to demonstrate some likelihood of success on the merits 38 A moving party will
successfully demonstrate irreparable harm if it can show that ‘ monetary damages are either
‘difflcult to ascertain or are inadequate ”39 A moving party will fail to demonstrate irreparable
harm if the evidence provides that the plaintiff’s loss can be determined by a simple mathematic
calculation 40
1111 In cases where parties have sought preliminary injunctions for businesses, the Supreme
Court of the Virgin Islands has determined that the right to control a business has “intrinsic value
that cannot be compensated by money damages, ’ even though the loss of or interference with a
party’s business implicates money damages 4' Similarly, in preliminary injunction cases involving
real property, Virgin Islands courts have acknowledged the ‘intangible benefits associated with
property ownership” and that monetary compensation is inadequate to remedy the harm of past
property deprivation 42 Courts in these cases have also recognized that the possible loss or
destruction of real property usually constitutes irreparable harm since property is always unique
under general principles of law and equity 43 However, the Supreme Court of the Virgin Islands
does not recognize a rule that presumes irreparable injury when a party is denled its use of a
property right 44 If a party is moving for a preliminary injunction based on the loss or deprivation
of a real property right, the party must demonstrate sufficient evidence of irreparable harm that
the Court can evaluate using the Petrus factors 45
3 Harm to the Nonmoving Party
1112 While weighing the preliminary injunction factors, the Court must determine whether the
nonmoving party will be irreparany harmed by the injunction 46 Even if the moving party
successfially demonstrates a substantial risk of irreparable harm if no injunction is granted, this
37 See 3RC & Co at 554
38 See 1d (citing Marco St Cram Inc v V] H0143 Auth 62 V1 586 590 (V1 2015))
‘9 See Gourmet Galle)y Crown Bay Inc v Crown Bay Marina L P 68 V l 584 597 (V l 2018) (citing Yusufi 59
VI at 854)
4° See Id
4' See Yusuf 59 V I at 854 see also Sam 3 Food Distributors Inc v NNA&0 LLC 73 V l 453 468 (VI 2020)
42 See Hansen v Gov t ofthe Virgin Islands 53 V I 58 91 (Terr Ct 1999) (finding that the defendants opposing a
preliminary injunction do not address the intangible benefits associated with property ownership such as ‘the
increased sense of pride well being and security attendant to the right to choose when and how to use, maintain and
cherish one’s property or to prohibit its unauthorized use”)
43 See Gladfelter v Fairleigh chkmson Umv 25 V I 91 99 (Terr Ct 1990) (recognizing that other authorities have
indicated that a preliminary injunction is appropriate where property is involved)
4“ See SBRMCOA LLC v Morehouse Real Estate luvs LLC 62 V1 168 201 (VI Super Ct 2015)
45 See 1d at 202 (determining that plaintiffs failed to present evidence that relocating a guard shack that blocked
access to their property will cause imminent and irreparable harm because plaintiffs still have an entry and exit point
to reach their properties)
4" See Yusufl 59 V I at 856 (noting that the Superior Court was required to examine “whether and to what extent the
nonmoving parties will suffer irreparable harm if the preliminary injunction is issued )
202] VI Super 88
Madeline A Basal v John Klein
Case No ST 2021 CV 00148
Motion for Preliminary Injunction
Memorandum Opinion and Order
Page 7 of 13
“‘must be balanced against any similar risk to the other party in the light of the chance of each
party to succeed on the merits ”’47 If the moving party makes a strong showing on the merits and
a weaker showing of irreparable harm, injunctlve relief may still be appropriate if the nonmoving
party’s likelihood of suffering irreparable harm when the injunction is granted is similarly 10w 48
In balancing the likelihood of harm to each party, the Court should aim to maintain the status quo,
which is defined as “the last, peaceable, noncontested status of the parties ”’49 Defendants
opposing a preliminary injunction will not suffer irreparable harm if granting the injunction
simply maintains the status quo 5°
4 Public Interest
{[13 In considering the public interest when evaluating a motion for a preliminary injunction,
courts “should seek to prevent the parties from halting ‘specific acts presumptively benefitting the
public until the merits [can] be reached and a determination made as to what justice
require[s] ”’51 Courts of equity should exercise their sound discretion and “pay particular regard
for the public consequences in employing the extraordinary remedy of injunction ”52 This factor
will typically favor the moving party if the party “demonstrates both a likelihood of success on
the merits and irreparable injury ”53 If a moving party fails to make a showing on these two
factors, a court need not make a finding on the public interest factor 54
III ANALYSIS
A The Court will grant Bassil’s motion for a preliminary injunction because she has
showed a reasonable likelihood of succeeding 0n the merits of her trespass claim and
that she will suffer irreparable harm if an injunction is not granted
1114 In evaluating Bassil’s motion for a preliminary injunction, the Court considered the
pleadings, evidence, and arguments presented by both parties and applied them to the Petrus
47 See 3RC & Co v Boynes Tl uckmg Sys 63 V l 544 555 (V l 2015) (quoting Commonwealth v County ofSuflolk
418 N E2d 1234 1235 (Mass 1981))
48 See Id (11556 (citing Yusufi 59 V I at 854)
49 See Yusufi 59 V I at 856 57 (finding that a preliminary injunction maintained the status quo by assuring that the
parties retained equal control over their business pending trial)
50 See SBRMCOA LLC v Morehouse Real Estate lnvs LLC 62 VI 168 202 (VI Super Ct 2015)
5' Yusuf, 59 V I at 858 (quoting Cont I Grp Inc v Amoco Chemicals Corp
614 F 2d 351 358 (3d Cir 1980))
52 See 1d see also Virgin Islands Tax: Assoczatzon v West Indian Co Ltd 65 V I 155, 177 (VI Super Ct 2016)
(denying an injunction as against the public interest when it would prevent a company from stimulating the tourism
economy in the Virgin Islands)
53 See 3RC & Co v Boynes Trucking Sys 63 V I 544 558 (V I 2015) (citing Yusuf 59 V I at 858 n 1 1)
54 See 1d at 560 (confirming that the Superior Court did not err in omitting a finding on the public interest factor
when denying a motion for a preliminary injunction because the moving party failed to make any showing on the
likelihood of success on the merits and irreparable harm)
2021 VI Super 88
Madeline A Basszl v John Klein
Case No ST 2021 CV 00148
Motion for Preliminary Injunction
Memorandum Opinion and Order
Page 8 of 13
factors outlined by the Supreme Court of the Virgin Islands in Yusuf v Hamed 55 Using the
Supreme Court’s requisite “sliding scale” test, this Court considered evidence regarding all four
factors and weighed each one against each other As proscribed by the Supreme Court, this Court
gave greater weight to the factors of likelihood of success on the merits and irreparable injury 56
Balancing the four factors, thls Court finds that Bassil demonstrated a reasonable probability of
success on the merits of her trespass claim, that she will suffer irreparable harm if the injunction
is not granted, that Klein will not suffer greater harm if the injunction is granted, and that an
injunction is in the public’s interest While the Court made findings of fact in determining the
reasonable probability of success on the merits, this Court did not consolidate the preliminary
injunction hearing with a trial on the merits as is allowed at the Court’s discretion per Rule 65 of
the Virgin Islands Rules of Civil Procedure 57 The merits of Bassil’s trespass claim and Klein’s
adverse possession claim have not been adjudicated at this time
1 Bassil demonstrated a reasonable probability of success on the merits of her
trespass claim
fil15 In order to demonstrate a reasonable probability of success on the merits, a moving party
does not need to show that they will actually succeed on the merits of their claim at trial A
moving party only needs to show a reasonable chance, or a probability of winning 58 Here, Bassil
has demonstrated a reasonable probability of succeeding on her trespass claim at trial The Court
is not persuaded that Klein 5 defense of adverse possession overcomes Bassil’s trespass claim to
the extent that she may not have a reasonable chance of succeeding at trial These findings,
however, are not binding on a jury, and these claims may be fully adjudicated at a trial on the
merits
i Trespass
1H6 The Virgin Islands Code outlines civil actions for nuisance, waste, and trespass only in
reference to injury to trees, timber or shmbs 59 Trespass of this nature allows for treble the
amount of damages allowed, unless the trespass was “casual or involuntary ”60 Although not
expressly defined in the Virgin Islands code, courts in the Virgin Islands recognize civil trespass
and have acknowledged that “all jurisdictions recognize a cause of action against one who
55 See Yusuf, 59 V I at 847 (citing Petrus v Queen Charlotte Hotel Corp 56 V I 548 554 (V I 2012) (quoting [lles
v de Jongh 638 F 3d 169 172 (3d Cir 201 1) (providing the four factors as whether the movant has shown (I) a
reasonable probability of success on the merits (2) irreparable ham (3) that the nonmoving party will not suffer
even greater harm and (4) granting the injunction is in the public interest)
55 See 3RC & Co, 63 V I at 554 (determining that a moving party must primarily demonstrate that irreparable harm is
likely without the injunction but that there must also be a plausible claim on the merits)
57SeeVI R Cw P 65(a)(2)
58 See Yusufi 59 V I at 850 (citing Singer Mgmt Consultants Inc v Mtlgram 650 F 3d 223 229 (3d Cir 201 I)
59 See 28 V I C § 336 (allowing for a plaintiff to receive damages if someone cuts down girdles, or otherwise injures
or carries off any tree timber or shrub from the plaintiff’s land)
60 See 1d
202] VI Supel 88
Madeline A Basszl v John Klein
Case No ST 2021 CV 00148
Motion for Preliminary Injunction
Memorandum Opinion and Order
Page 9 of 13
intentionally enters onto the property of another, intentionally places something on the property of
another without permission, or intentionally removes something from the property of another
without permission ”6‘ In Anduze v Leader, the Superior Court of the Virgin Islands performed a
Banks analysis to determine the soundest rule for trespass for the Virgin Islands
A defendant will be liable to a plaintiff for trespass if the defendant (I) intentionally
enters onto the plaintiff’s property without the plaintiff’s permission; (2) remains on
plaintiff‘s property without plaintiff‘s permission despite being obligated to leave; (3)
places something on the plaintiffs property without the plaintiffs permission, or (4)
removes something from the plaintiff s property without the plaintiff s permission 62
1117 In Alleyne v Dzageo USVI Inc , the Superior Court recognized intentional trespass and
negligent trespass as separate torts 63 The Court adopted the definition of intentional trespass from
the Restatement (Second) of Torts
One is subject to liability to another for trespass, irrespective of whether he thereby causes
harm to any legally protected interest of the other, if he intentionally (a) enters land in
possession of the other, or causes a thing or third person to do so or, (b) remains on the
land, or (0) fails to remove from the land a thing which he is under a duty to remove 64
1118 In this case, Bassil has demonstrated a reasonable probability of success on her claim of
trespass Bassil alleges that Klein has intentionally trespassed on her property by entering her
property without her permission and by cutting down and injuring trees, brush, and shrubbery By
cutting the brush to create a trail, Bassil asserts trespass that entitles her to treble damages
pursuant to § 336 of title 28 of the Virgin Islands Code Evidence presented by both parties
supports Bassil’s claim of trespass Bassil testified that she has never allowed Klein to enter her
property or cut trails through her brush Email correspondence between Bassil and Klein from
2008 show that she did not permit him to enter her property or place anything on her property at
that time She provided photographs and surveys from 2021 showing the paths Klein created
without her permission By his own admission, Klein has never sought permission from Bassil to
enter her property or cut brush on her property to create a trail Klein also testified to allowing and
encouraging others to use the trails on Bassil’s property, including his personal friends and his
AianB guests Klein maintains that he has not trespassed 0n Bassil’s property because the
6‘ See Anduzev Leader 63 VI 347 353 (VI Super Ct 2015)
62 See 1d at 353 354 (adopting a rule for intentional trespass similar to the trespass rule from the Restatement of Torts
but highlighting that the removal of an object from the property of another may also constitute a trespass)
63 See Alleyne v Dzageo USVI Inc 63 V I 384 417 (V 1 Super Ct 2015) (determining that the best rule for the
Virgin Islands is to recognize intentional trespass and negligent trespass as separate torts due to concerns about
foreclosing access to justice)
64 See 1d at 410 see also RESTATEMENT (SECOND) OF Toms § 158
202] VI Super 88
Madeline A Basszl v John Klein
Case No ST 2021 CV 00148
Motion for Preliminary Injunction
Memorandum Opinion and Order
Page 10 of 13
property is his by adverse possession 65 However, as in Yusuf v Hamed, Klein’s claim merely
creates a “competing inference” that can only be deterrnined by a jury at a trial on the merits
which has yet to be done The Court does not find Klein’s adverse possession claim to be so
strong that Bassil has no chance of succeeding on the merits of her trespass claim Bassil has
provided evidence that she could reasonably succeed on a trespass claim, and she therefore has
satisfied this preliminary injunction factor
2 Bassil demonstrated that she will suffer irreparable harm if an injunction is not
granted
1119 The primary factor that a moving party needs to show in order to successfully maintain a
preliminary injunction is irreparable harm This factor must also be shown in conjunction with a
reasonable probability of success on the merits 6" Irreparable harm must be imminent, and a claim
that can be easily calculated or remedied by money damages is not sufficient 67 The damage or
loss of a property right is not automatically presumed to constitute irreparable harm in the Virgin
Islands, but similarly to operating a business real property ownership includes “intangible
benefits” for which a monetary damage award is not always adequate
1120 In this case, Bassil is asserting damage to her property and loss of use and enjoyment of
her property resulting from Klein’s alleged trespass This harm is not only imminent but is
currently and continually happening Evidence of photographs and land surveys demonstrate trails
cut into Bassil’s property against her wishes and video surveillance on Bassil’s property shows
numerous people on her property using these trails without her permission While trespass is a
harm that can be remedied by a monetary award, calculating the exact harm in money damages
would be difficult to ascertain Klein testified that not only has he been using the trails on Bassil’s
property, but he has allowed and encouraged others to do so as well Of particular note is that he
advertises the use of a “private path to the beach” to his AianB guests Calculating a damages
award from each of these trespassing guests would be quite difficult, as it is unclear how many
guests may have used or continue to use this path Klein also testified that he does not currently
include Bassil in any liability waivers signed by his AianB guests, nor does he have insurance on
the portion of Bassil s land that his guests traverse to access the beach 68 This exposes Bass1l to
liabillty from every potential personal guest and AianB guest of Klein if they were to be injured
while using the path on her property Additionally, due to the present dispute caused by Klein’s
entrance onto her property and Klein’s claim of adverse possession, Bassil does not currently
have clear title to her property to be able to list it or sell it on the MLS market Correcting this
65 See 28 V 1 C § 11 (defining adverse possession in the Virgin Islands as the “uninterrupted, exclusive, actual,
physical adverse continuous, notorious possession of real property under claim or color of title for 15 years or more
shall be conclusively presumed to give title thereto except as against the govemment ‘)
(’6 See 3RC & Co v Boynes Trucking Sys 63 V I 544 554 (V 1 2015)
67 See Gourmet Gallery Crown Bay Inc v Crown Bay Marina L P 68 V I 584 597 (V1 2018) (citing Yusuf 59
V I at 854)
68 Klein Test July 27 2021
202] VI Super 88
Madeline A Basszl v John Klein
Case No ST 2021 CV 00148
Motion for Preliminary Injunction
Memorandum Opinion and Order
Page ll of 13
harm will require a potentially lengthy litigation process, which will involve time and effort that
may not be adequately resolved with a monetary award
${21 While the Court is not convinced by Bassfl’s argument that real property has the same
intrinsic value has operating a business, the Court acknowledges that real property ownership has
similar intangible benefits to operating a business, and other Virgin Islands courts have
recognized that the past deprivation of a right to real property can constitute an irreparable harm
Under general principles of law and equity, every piece of real property is unique, and property
ownership provides intangible benefits that cannot easily be remedied with monetary damages 69
Here, both Bassil and Klein have demonstrated that Bassil’s parcel is particularly unique As
evidenced by photographs and the testimony of real estate agents Bassil’s property is one of the
last undeveloped beach front properties near Secret Harbor beach More importantly, the parcel is
hers to choose how to maintain and use and to prohibit its unauthorized use, despite Klein’s
characterization of Bassil as a non resident, absentee property owner Klein’s interference with
Bassil’s property infringes on these intangible benefits of property ownership that belong to
Bassil Between the continuing damage to Bassil’s property, the potential liability Bassil is
exposed to by Klein’s activities on her property, and the past deprivation of her rights to use and
maintain her unique parcel as she sees fit Bassil has successfully demonstrated a risk of
irreparable harm for which a monetary award would be inadequate and that would warrant a
preliminary injunction
3 Bassnl demonstrated that Klein will not suffer greater harm if an injunction is
granted
1122 While Bassil has demonstrated a likelihood of succeeding on the merits of her trespass
claim and that she will suffer irreparable harm without a preliminary injunction, the Court must
also consider the potential for irreparable harm to Klein if an injunction is granted In balancing
the potential harm to each party, the Court aims to maintain the status quo, or “the last, peaceable,
noncontested status of the parties ”70
1123 Here, it is clear that Klein will not suffer an irreparable harm if an injunction is granted
The harm that Klein asserts is the loss of private beach access Even though Klein testified to
needing to regularly swim in saltwater for lung therapy the Court is not persuaded that he is
entitled to private beach access through someone else 5 property in order to access the beach for
this purpose An injunction would not deprive him of access to and from his property, and he can
still access the beach like the rest of the public beachgoers Additionally, the Court is not
persuaded by Klein’s arguments that there should be a heightened standard or heavier burden for
Bassil on this factor because she is looking to alter the status quo The status quo is defined by the
6" See Hansen v Gov tofthe Virgin Islands, 53 V I 58 91 (Terr Ct 1999) (acknowledging that an intangible benefit
of property ownership includes ‘the right to choose when and how to use maintain and cherish one’s property or to
prohibit its unauthorized use )
70See Yusufv Hamed 59 v1 841 856 (v1 2013)
202] VI Super 88
MadelmeA Basszl v John Klein
Case No ST 2021 CV 00148
Motion for Preliminary Injunction
Memorandum Opinion and Order
Page 12 of 13
Virgin Islands Supreme Court as “the last, peaceable, noncontested status of the parties” which in
this case would be in 2015 when Klein attempted to purchase Bassil’s parcel, and she declined At
this time, Klein acknowledged that the parcel belongs to Bassil, and she did not give him
permission to purchase, use, or access her property These circumstances are the status quo, not
Klein’s use of the trails on Bassil’s property to access the beach for his own private use Since
Klein will not suffer greater harm by an injunction, this factor weighs in favor of granting an
injunction
4 Bassil demonstrated that an injunction is in the public’s interest
{[24 In considering the public’s interest, courts evaluating motions for a preliminary injunction
should carefully regard consequences of an injunction on the public and should aim not to halt
any activ1ties that benefit the public 7' When a moving party successfully demonstrates
irreparable harm and a reasonable probability of success on the merits, the public interest
consideration typically weighs in the moving party’s favor 72 If a moving party fails to make a
showing on these two factors, however a court need not analyze the public interest factor 73
135 Here, having demonstrated a reasonable probability of success on the merits of her
trespass claim and irreparable harm without an injunction this factor weighs in Bassil’s favor
Additionally, granting an injunction in this case will have little to no consequence on the public
No public activities will be halted by this injunction and members of the public will not be
impacted by an injunction that prevents one resident from accessing the beach through his
neighbor’s private property Although the legislature allows for Virgin Islands citizens to assert a
claim to property through adverse possession, as Klein points out, the Court does not find that it is
in the public’s interest to encourage neighbors to encroach on each other’s property for this
purpose This will lead to disputes and litigation that will take up the Court’s time and resources
at the expense of the taxpaying public The Court agrees with Bassil that the public’s interest is
better served by discouraging trespass between neighbors Due to the lack of consequences this
injunction would have on the public, and the Court’s interest in discouraging trespass and disputes
between neighbors, the public’s interest favors granting an injunction
IV CONCLUSION
1126 Based on the foregoing analysis, the Court concludes that Bassil has successfully
demonstrated each of the four Petrus factors entitling her to a preliminary injunction A
preliminary injunction is a drastic remedy that this Court does not consider lightly As the moving
party, Bassil had the burden of presenting evidence on each factor, and she had to primarily show
that she would be irreparany harmed without an injunction and that she had a reasonable
probability of succeeding on the merits of her claims Using a sliding scale method, the Court
7‘ See Id at 558
72 See 3RC & C0 63 V1 at 558
73 See Id at 560
2021 VI Super 88
MadelmeA Basal v John Klein
Case No ST 2021 CV 00148
Motion for Preliminary Injunction
Memorandum Opinion and Order
Page 13 of 13
weighed these factors along with the potential harm to Klein that would be caused by an
injunction and the public’s interest in granting the injunction
1127 The Court finds that the evidence presented by Bassil at an evidentiary hearing on July 27
28, 2021, shows that she has a reasonable probability of succeeding on her claim of trespass
Klein’s defense of adverse possession was not clear or convincing enough to prevent Bassil’s
trespass claim from proceeding to a trial on the merits As to irreparable harm, the harm is
imminent because the damage to Bassil’s property has already occurred from Klein’s cutting of
trails on her property, and he continues to use and encourage others to use the trails on her
property The unknown number of trespassers on her property makes a damages award difficult to
ascertain and exposes her to vast potential liability Additionally, Klein’s encroachment on
Bassil’s property interferes with her rights to use and maintain her property as she sees fit The
evidence presented does not suggest that Klein would suffer even greater harm if an injunction
were granted because issuing an injunction would maintain the status quo regarding Bassil’s
property ownership, and the only harm Klein would suffer would be losing private beach access
to which he is not entitled Finally, the public will not be impacted by this injunction, and the
public’s interest is served by discouraging trespass between neighbors Having considered the
parties evidence and arguments and applying them to the Petrus factors, this Court finds in favor
of a preliminary injunction
1B8 Accordingly it is hereby
ORDERED that Plaintiff’s Motion for a Preliminary Injunction filed May 7, 2021 is
GRANTED and it is further
ORDERED that a copy of this Memorandum Opinion and Order shall be directed to
counsel of record
DATED hug H2 2021
HON M TEJO
Jud o e uperior Court of the Virgin Islands
ATTES’I
TAM? RA CHARLES
C19 o°the £‘qu / /
ByDonna Donovan
@M 0 91
Court Clerk Supervisor 2Q lg / 9‘0