For Publication 
 
IN THE SUPREME COURT OF THE VIRGIN ISLANDS 
 
 
 
On Appeal from the Superior Court of the Virgin Islands 
Division of St. Thomas-St. John 
Superior Court Judge: Hon. Renee Gumbs Carty 
 
Argued: December 11, 2018 
Filed: June 9, 2020 
 
          Cite as: 2020 VI 7 
 
BEFORE:  
RHYS S. HODGE, Chief Justice; MARIA M. CABRET, Associate Justice; and 
IVE ARLINGTON SWAN, Associate Justice. 
 
APPEARANCES: 
 
Carol Ann Rich, Esq. (argued) 
Malorie Winne Diaz, Esq. 
Dudley Rich LLP 
St. Thomas, U.S.V.I.   
Attorneys for Appellant, 
 
Kevin A. Rames, Esq. 
Law Office of K.A. Rames, P.C.  
St. Croix, U.S.V.I.  
Attorney for Appellee. 
 
OPINION OF THE COURT 
 
CABRET, Associate Justice. 
 
SAM’S FOOD DISTRIBUTORS, INC.,  
and SAM’S MANAGEMENT, INC., 
          Appellant/Defendant, 
) 
) 
) 
) 
) 
) 
)  
S. Ct. Civ. No. 2018-0048 
Re: Super. Ct. Civ. No. 181/2018 (STT) 
 
v. 
 
 
NNA&O, LLC,  
           Appellee/Plaintiff. 
) 
 
 
 
) 
 
Sam’s Food Distributors, Inc. et al. v. NNA&O, LLC 
 
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¶ 1 
Sam’s Food Distributors Inc. and Sam’s Management Inc. (“SDI” and “SMI,” 
respectively), appeal from the Superior Court’s June 22, 2018 findings of fact and conclusions of 
law and accompanying order  granting a permanent injunction (“injunction”) in favor of Appellee 
NNA&O, LLC, and against Appellants SMI and SDI and nonparty Hector Gonzalez. Appellants 
argue that the Superior Court abused its discretion in granting the permanent injunction, and further 
erred by effecting an unconstitutional taking of Appellants’ property, failing to consider unrebutted 
expert testimony, and improperly exercising jurisdiction over SDI and Hector Gonzalez. Because 
the terms of the Superior Court’s injunction are far broader than necessary to restrain the unlawful 
conduct complained of in this case, we vacate the Superior Court’s injunction and remand this 
matter for further proceedings consistent with this opinion.  
I. 
FACTUAL AND PROCEDURAL BACKGROUND 
¶ 2 
This appeal arises from a dispute between the parties concerning the scope of an easement 
over Lot 171, Estate Altona & Welgunst, St. Thomas, U.S. Virgin Islands. On January 25, 1980, 
Beth Paula Kimelman, then the owner of Lot 171, subdivided what was Lot 171 into Lots 171A 
and Remainder Lot 171. In a Warranty Deed executed that same date, Kimelman transferred Lot 
171A to Prime Foods and Supply Corporation (“Prime Foods”). Lot 171A encompasses the area 
of what was then, and is now, 171’s warehouse footprint, with property boundaries coextensive 
with the outer walls of the warehouse. Kimelman retained Lot 171 but conveyed an easement over 
Lot 171 to Prime Foods. This easement is expressly granted in the Warranty Deed conveying Lot 
171A to Prime Foods providing for ingress and egress over Lot 171, but it is not defined by specific 
metes and bounds. The easement is described as follows:  
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A non-exclusive easement over Parcel No. 171, Estate Altona and Welgunst, Nos. 
3B and 3C, Little Northside Quarter, St. Thomas, Virgin Islands as Shown on 
P.W.D. Drawing No. G9-2980-T80 
Said easement to be used for the purpose of ingress and egress to Parcel No. 171A. 
¶ 3 
In 1999, Prime Foods transferred its assets, including Lot 171A, to PWKH, Inc., which 
continued to use the Lot 171A warehouse to operate a wholesale foods business until filing for 
bankruptcy. While PWKH was in bankruptcy proceedings, SDI, a Puerto Rico based food 
distribution company, leased Lot 171A from PWKH. DWILL Management, LLC subsequently 
acquired Lot 171 and later conveyed it to SMI, a St. Thomas corporation that currently owns Lot 
171, which it in turn rents to Sam’s Supermarket. Sam’s Supermarket uses Lot 171 to store food 
in refrigerated containers. SMI, SDI, and Sam’s Supermarket are all commonly owned by Hector 
Gonzalez. In the course of purchasing Lot 171, to survey the property SMI hired Charles Hamilton, 
who concluded in his survey report that the owner of Lot 171A holds an easement for ingress and 
egress to Lot 171A over Lot 171.  
¶ 4 
Appellee NNA&O is a limited liability company formed on St. Thomas for purchasing 
warehouse space to store furniture. NNA&O bought Lot 171A at auction in January 2017. As 
owner of 171A, NNA&O holds an express easement over Lot 171, memorialized in the original 
bargain sale and deed conveying Lot 171A to Prime Foods. NNA&O’s predecessor in interest to 
Lot 171A, PWKH, previously entered into a lease agreement with SMI’s predecessor in interest, 
DWILL, for increased access to Lot 171 for permanent parking.  
¶ 5 
The present dispute between the parties began in March 2018 when NNA&O sent a 
demand letter to Appellants’ counsel requesting that Appellants cease and desist using NNA&O’s 
building to mount electrical conduit used to provide electricity to a neighboring building. 
Appellants responded through counsel, arguing that since the wall is the dividing line between the 
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properties, the conduit is mounted on Sam’s Food property and not on NNA&O’s property. 
Counsel’s response to NNA&O’s demand letter clarified Appellants’ position that while NNA&O 
held an easement strictly for ingress and egress—that is entering and exiting—to Lot 171A, any 
additional use of Lot 171 for parking, loading, and unloading would only be allowed pursuant to 
a written rental agreement between the parties. NNA&O subsequently filed a complaint in the 
Superior Court against SDI and SMI as well as a motion for preliminary and permanent injunction. 
The complaint and motion requested that the court preliminarily and permanently enjoin SMI 
from: (1) blocking NNA&O’s access to any of its eight entry doors at its commercial warehouse, 
(2) blocking its ingress, egress, loading, unloading or parking on Lot 171, and (3) mounting its 
electrical conduits on NNA&O’s warehouse.  
¶ 6 
The Superior Court held a hearing on the merits of NNA&O’s motion on May 11, 2018 
and May 17, 2018, and subsequently granted NNA&O’s motion for permanent injunction in its 
June 22, 2018 order and accompanying findings of fact and conclusions of law. Appellants timely 
filed their notice of appeal on July 20, 2018.  
II. 
JURISDICTION AND STANDARD OF REVIEW 
¶ 7 
“The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final 
decrees or final orders of the Superior Court.” V.I. CODE ANN. tit. 4, § 32(a). Because the Superior 
Court’s June 22, 2018 order granting NNA&O, LLC’s motion for permanent injunction is a final 
order under section 32(a), we have jurisdiction over the appeal. Moses v. Fawkes, 66 V.I. 454, 459 
(V.I. 2017) (explaining that an injunction that “effectively adjudicated the entire case on the merits, 
. . . is . . . appealable as a final judgment pursuant to title 4, section 32(a) of the Virgin Islands 
Code”).  
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¶ 8 
We review the Superior Court’s decision to grant or deny an injunction for abuse of 
discretion. Petrus v. Queen Charlotte Hotel Corp., 56 V.I. 548, 554 (V.I. 2012); see also 
Caribbean Healthways, Inc. v. James, 55 V.I. 691, 698 (V.I. 2011) (“The decision to grant or deny 
a permanent injunction is reviewed for abuse of discretion.”) (quoting In re Najawicz, 52 V.I. 311, 
328 (V.I. 2009)). “An abuse of discretion ‘arises only when the decision rests upon a clearly 
erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.’” 
Stevens v. People, 55 V.I. 550, 556 (V.I. 2011) (citing Schneider v. Fried, 320 F.3d 396, 404 (3d 
Cir. 2003)). Furthermore, we review the Superior Court’s factual findings of each injunction factor 
for clear error, and we exercise plenary review of its conclusions of law. Yusuf v. Hamed, 59 V.I. 
841, 848 (V.I. 2013) (explaining that “we review the Superior Court's factual findings regarding 
likelihood of irreparable harm, harm to the nonmoving party, and whether the injunction is in the 
public interest only for clear error.”). 
III. 
DISCUSSION 
¶ 9 
On appeal, Appellants SDI and SMI argue that the Superior Court erred by extending its 
injunction order to SDI, a Puerto Rican company, and to nonparty Hector Gonzalez, because the 
court lacked personal jurisdiction over them. Additionally, Appellants argue that the Superior 
Court abused its discretion in granting NNA&O’s motion for a preliminary and permanent 
injunction. Finally, Appellants contend that the Superior Court abused its discretion by failing to 
consider their expert’s unrebutted testimony. We consider each of these arguments in turn.1   
 
1 SMI also argues that the Superior Court’s order amounted to an unconstitutional taking of their property in violation 
of the Fifth Amendment to the Constitution of the United States. SMI, however, never raised this issue before the trial 
court.  See V.I. R. APP. P. 22(m). In any event, because we vacate the Superior Court’s injunction on other grounds 
and remand this case for the Superior Court redefine the scope of its injunction, we need not determine whether the 
court’s original injunction effected an unconstitutional taking of SMI’s property. 
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A. Personal Jurisdiction 
¶ 10 
As a threshold matter, Appellants argue that the Superior Court’s findings of fact and 
conclusions of law and accompanying order are void with respect to Hector Gonzalez—who is not 
a party to this matter2—and SDI— a Puerto Rico based corporation that has not conducted business 
in the U.S. Virgin Islands in years—because the court lacked personal jurisdiction. Appellee’s 
brief on appeal offers no responsive argument and is generally silent as to this issue.3   
¶ 11 
Because Hector Gonzalez is not named as a party in this lawsuit and was never served in 
his individual capacity, the injunction against him is invalid and is therefore void. See Ernest v. 
Morris, 64 V.I. 627, 639 (V.I. 2016) (finding that when the Superior Court never acquired personal 
jurisdiction over a party, the judgment as to him was not authorized); see also Additive Controls 
& Measurement Sys., Inc. v. Flowdata, Inc., 96 F.3d 1390, 1394 (Fed. Cir. 1996) (“[C]ourts of 
equity have long observed the general rule that a court may not enter an injunction against a person 
 
2 Because Gonzalez is not a party in the underlying matter and did not appeal from the Superior Court’s decision, 
Appellants would ordinarily lack the authority to assert legal arguments on his behalf on appeal. See Benjamin v. AIG 
Ins. Co., 56 V.I. 558, 564-65 (V.I. 2012) (recognizing the standing doctrine as a non-jurisdictional claims-processing 
rule). This Court, however, may exercise its discretion to notice any error on appeal that affects substantial rights. See 
V.I. R. APP. P. 22(m). Importantly, this Court has already held that “[a]n error may also affect substantial rights where 
it would bind a nonparty to the suit.” Marsh-Monsanto v. Clarenbach, 66 V.I. 366, 383 (V.I. 2017). Because this Court 
could exercise its discretion to sua sponte vacate the portion of the injunction directed to Gonzalez, Appellants are not 
precluded from bringing the error to our attention. 
3 We take this opportunity to reaffirm that “[t]he rules that require a litigant to brief and support his arguments, both 
here and before the Superior Court, are not mere formalistic requirements. They exist to . . . give[ ] opposing parties 
the due process they deserve on appeal,” which includes the “opportunity to respond” to arguments that they raise in 
support of their respective positions. Simpson v. Golden, 56 V.I. 272, 280-81 (V.I. 2012). Accordingly, when as here, 
an appellant “raises a debatable issue” in its opening brief, “the court, in its discretion, may find that an appellee's 
failure to . . . [respond] constitutes a confession of error” as to that issue, and the court may proceed to remedy that 
error. See, e.g., State ex rel. McDougall v. Superior Court, 850 P.2d 688, 690 (Ariz. Ct. App. 1993); State v. Greenlee 
County Justice Court, 756 P.2d 939, 940 (Ariz. Ct. App.1988). However, it is well established in the Virgin Islands, 
as it is elsewhere, that “the parties cannot stipulate to the law, especially in a situation . . . where the decision may 
impact other pending or future cases.” Matthew v. Herman, 56 V.I. 674, 682 (V.I. 2012). Given the significance of 
the issue of personal jurisdiction in this case, and its due process implications, we exercise our discretion to address it 
on the merits, notwithstanding any confession of error on appeal arising from the Appellee’s failure to do so. 
 
 
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who has not been made a party to the case before it.”) (citing Scott v. Donald, 165 U.S. 107, 117 
(1897) (“The decree is also objectionable because it enjoins persons not parties to the suit.”)). 
¶ 12 
Similarly, SDI—a Puerto Rican company that does not conduct business in the U.S. Virgin 
Islands—is not subject to the Superior Court’s jurisdiction and the order against it is void as well.  
Although SDI was served with a copy of the summons and complaint, SDI filed a motion to dismiss 
the complaint against it on May 9, 2018 arguing that the purported service was ineffective and 
asserting that SDI does not conduct any business in the Virgin Islands and neither operates nor 
stores any vehicles or equipment on Lot 171. SDI’s motion to dismiss was unopposed and Appellee 
does not contest SDI’s factual assertions. And although the Superior Court never ruled on the 
motion—which itself constituted error4—the court’s findings of fact and conclusions of law 
expressly found that SDI does not do business in the Virgin Islands. Because Appellee does not 
contest that SDI lacked the requisite minimal contacts with the Virgin Islands to support the 
Superior Court’s exercise of personal jurisdiction, and because the record is devoid of any evidence 
to support the existence of even minimal contacts with this forum, we conclude that the court erred 
in exercising jurisdiction over SDI. See Molloy v. Indep. Blue Cross, 56 V.I. 155, 181 (V.I. 2012) 
(requiring continuous and systematic contact with the forum or minimum contacts to establish 
personal jurisdiction) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 
416 (1984); see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980) (“[A] 
state court may exercise personal jurisdiction over a nonresident defendant only so long as there 
exist ‘minimum contacts’ between the defendant and the forum State.”) (citations omitted). 
 
4 See Garcia v. Garcia, 59 V.I. 758, 771 (V.I. 2013) (“[A] court can never exercise its discretion to simply ignore a 
challenge to its . . . jurisdiction.”); Joseph v. Daily News Publishing Co., 57 V.I. 566, 580 n.4 (V.I. 2012) (expressing 
concern with the failure to rule on a motion to dismiss for lack of service, given the jurisdictional significance of 
proper service). 
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Therefore, because the Superior Court never gained personal jurisdiction over nonparty Hector 
Gonzalez and Defendant SDI, the orders purportedly applying to them are void. Estate of Skepple 
v. Bank of Nova Scotia, 69 V.I. 700, 732 (V.I. 2018) (explaining that “[i]f the trial court never 
obtained personal jurisdiction over [a party], any default judgment is void and must be set aside as 
a matter of law”).5 
B. Permanent Injunction  
¶ 13 
When determining whether to grant a motion for preliminary and permanent injunction, 
the Superior Court must consider the following factors: 
(1) whether the movant has shown a reasonable probability of success on the merits; 
(2) whether the movant will be irreparably injured by denial of the relief; (3) 
whether granting preliminary relief will result in even greater harm to the 
nonmoving party; and (4) whether granting the preliminary relief will be in the 
public interest. 
3RC & Co. v. Boynes Trucking Sys., 63 V.I. 544, 550 (V.I. 2015) (citations omitted). We have 
adopted a sliding scale standard for weighing these factors, under which “the Superior Court must 
make findings on each of the four factors and determine whether—when the factors are considered 
together and weighed against one another—the moving party has made ‘a clear showing that [it] 
is entitled to [injunctive] relief.’” Id. at 557 (citing Yusuf, 59 V.I. at 847). Unlike a preliminary 
injunction, which requires only a showing of probability of success on the merits, to obtain a 
permanent injunction, the moving party must demonstrate actual success on the merits of the claim. 
Moses v. Fawkes, 66 V.I. 454, 461 (V.I. 2017). “[T]he party seeking an injunction [bears] the 
 
5 Although the Superior Court’s order and accompanying findings of fact and conclusions of law generally refers to 
both SMI and SDI collectively as “Sam’s,” because we conclude that the court lacked personal jurisdiction over SDI, 
the remainder of this opinion refers only to the Superior Court’s order as it pertains to SMI. 
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burden of proof as to all four factors.” Appleyard v. Gov. Juan F. Luis Hosp. & Med. Ctr., 61 V.I. 
578, 591 (V.I. 2014). 
1. Actual Success on the Merits   
¶ 14 
The Superior Court determined that NNA&O clearly demonstrated actual success on the 
merits of this case. Appellants do not dispute that NNA&O holds an express easement across Lot 
171 as described in the 1980 bargain and sale deed. Rather, they argue that the scope of the 
easement is limited strictly to ingress and egress—entering and exiting the property—and contend 
that the Superior Court erred in concluding that the easement also grants NNA&O the right to 
park, load, and unload vehicles.  
¶ 15 
Although this Court has only rarely had occasion to address the law of servitudes, certain 
basic principles are well established. “We start with the proposition that private persons, in the 
exercise of their constitutional right of freedom of contract, may ordinarily impose whatever 
restrictions upon the use of land which they convey to another that they desire to impose.” Pavel 
v. Estates of Judith's Fancy Owners' Ass'n, Inc., 2019 VI 23 ¶6 (quoting Grubel v. MacLaughlin, 
6 V.I. 490, 507 (D.V.I. 1968)). In Pavel, we explained that the language of a restrictive covenant 
is construed according to ordinary principles of contract interpretation. Id. at ¶7. “Primarily, the 
question is one of intention, subject to the further principle that restrictive covenants are strictly 
construed in favor of the free use of property.” Id. at ¶8 (citing 20 AM. JUR. 2D Covenants, 
Conditions, and Restrictions § 169 (footnotes omitted)). We do not hesitate to conclude that these 
same principles govern the construction of express easements. See 25 AM. JUR. 2D Easements and 
Licenses § 63 (“Easements are reviewed under the same principles that have been established for 
the interpretation of contracts.”); Phillip v. Marsh-Monsanto, 66 V.I. 612, 624-25 (V.I. 2017) (“To 
determine whether a contract is ambiguous, we resort to principles of contract interpretation, 
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keeping in mind that our primary purpose is to ascertain and give effect to the parties' objective 
intent.”).  As explained in American Jurisprudence: 
The focal point in interpreting an [express] easement is the language of the 
agreement or deed itself, seeking to discern what a reasonable person in the position 
of the parties would have meant at the time it was effectuated. In determining the 
character and extent of an easement, the ordinary import of the language will be 
accepted as indicative of the intention of the parties unless there is something in the 
situation of the property or the surrounding circumstances that calls for a different 
interpretation. When the purpose of an express easement is not clear, a court must 
ascertain the objectively manifested intention of the parties to the original 
conveyance in light of the circumstances in existence at the time the easement was 
made, as well as the physical condition of the premises, and the use of the easement 
and acts acquiesced to during the years shortly after the original grant. Where the 
instrument is ambiguous, the court may evaluate extrinsic evidence. 
25 AM. JUR. 2D Easements and Licenses § 63 (collecting cases). 
¶ 16 
In the present case, the express easement is described in the deed as: “A non-exclusive 
easement over Parcel No. 171, Estate Altona and Welgunst, Nos. 3B and 3C, Little Northside 
Quarter, St. Thomas, Virgin Islands as Shown on P.W.D. Drawing No. G9-2980-T80…. Said 
easement to be used for the purpose of ingress and egress to Parcel No. 171A.” Thus, applying the 
principles of construction outlined above, we must determine whether the parties to the 1980 
conveyance understood “the purpose of ingress and egress to Parcel No. 171A” to include the acts 
of parking, loading, and unloading as argued by NNA&O.  
¶ 17 
First, the record demonstrates that Lot 171A has, from the time of the original subdivision 
of Lot 171, consisted entirely of a commercial warehouse, with property boundaries coextensive 
with the outer walls of the warehouse that has existed on the property from the time of the initial 
conveyance. Additionally, all eight cargo bay doors granting access to the warehouse abut and 
open out into the common boundary between Lot 171A and Lot 171. Thus, based solely on the 
location of the warehouse and its cargo bay doors relative to Lot 171, we may reasonably infer that 
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the easement “for the purpose of ingress and egress to Parcel No. 171A” was, at a minimum, 
specifically intended to grant the easement holder a right of access to the eight cargo bay doors 
that would otherwise be inaccessible to the owner of Lot 171. In turn, access to the cargo bay doors 
of a commercial warehouse—generally used for the storage of commercial goods— is only 
meaningful if the right of access includes the incidental right to stop, load, and unload commercial 
vehicles carrying commercial goods for storage at the warehouse.6  
¶ 18 
Our interpretation of the right of “ingress and egress” in this context is consistent with the 
interpretation of similar provisions in various jurisdictions that have held that the right to ingress 
and egress includes the incidental right to actively load and unload. See, e.g., Ben Joseph Burkhart 
Tr. v. Cramer, No. 330609, 2017 Mich. App. LEXIS 946, at *15 (Mich. Ct. App. June 13, 2017) 
(unpublished) (“The trial court did not clearly err in finding that the express easement allowed 
Handicraft to actively load and unload in the right of way so long as it did not unreasonably 
interfere with the Trust's right to ingress and egress.”); Falk Corp. v. Ryan, No. 94-3034, 1995 
Wisc. App. LEXIS 1308, at *3 (Ct. App. Oct. 24, 1995) (unpublished) (“If not specifically 
restricted, ingress and egress includes the reasonable opportunity to stop vehicles to load or unload 
passengers or personal property.”); In re Shanor Elec. Supply, Inc. v. Fac Cont'l, LLC, 905 
N.Y.S.2d 383, 384 (N.Y. App. Div. 2010) (finding that use of an ingress and egress easement for 
loading and unloading of trucks is a reasonable use incidental to the purpose of the easement); 
 
6 Appellants argue that the history of prior use of the easement demonstrates that the original parties to the conveyance 
did not intend for the right of ingress and egress to include the incidental right to park, load, and unload goods because 
Prime Foods and PWKH, Inc., NNA&O’s predecessors in interest, purportedly entered into a lease agreement with 
DWILL Management, LLC, SMI’s predecessor in interest, under which Prime Foods and later PWKH paid DWILL 
to rent space in lot 171 for parking, loading, and unloading. However, the affidavits attesting to this arrangement 
convey the understanding of two employees who began working for Prime Foods in 1994, approximately fourteen 
years after the original conveyance creating the easement. Thus, this later use of the easement is of little relevance in 
ascertaining the intention of the parties to the original 1980 conveyance.  
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Feld v. Young Men's Hebrew Ass'n, 44 So. 2d 538, 540 (Miss. 1950) (explaining that right of way 
for ingress and egress includes “said purposes of ingress and egress, and not as a parking space for 
vehicles except such parking as may be reasonably necessary for the loading and unloading of 
goods, wares and merchandise transported to and from appellants' building”). 
¶ 19 
However, while these undisputed factual circumstances surrounding the conveyance 
clearly indicate that the easement for ingress and egress was intended to include the incidental 
right to stop, load, and unload, nothing in the record supports the further inference that the parties 
to the conveyance intended the easement to include an additional right to not merely stop, but to 
park vehicles on Lot 171 for reasons other than the active loading and unloading of commercial 
goods. Indeed, the great weight of authority from jurisdictions interpreting ingress and egress 
easement provisions under similar circumstances holds that parking is not included within the right 
of ingress and egress. For example, Florida courts have found that where an easement specifies 
that it is for ingress and egress “[t[he intent of the developer to only grant an access easement is 
equally clear.” Avery Dev. Corp. v. Vill. by Sea Condo. Apartments, 567 So. 2d 447, 448 (Fla. Dist. 
Ct. App. 1990). Similarly, the Court of Appeals of Indiana determined that “[t]he plain meaning 
of the terms ‘ingress’ and ‘egress’ does not include parking.” Kwolek v. Swickard, 944 N.E.2d 564, 
572 (Ind. Ct. App. 2011). See also Hall v. Altomari, 562 A.2d 574, 576 (Conn. App. Ct. 1989) 
(“Even when a right-of-way is granted in broad language, the owner of the dominant estate does 
not acquire an absolute right to park vehicles on the subject property.”); Franco v. Piccilo, 853 
N.Y.S.2d 789, 790 (N.Y. App. Div.) ("The right of  egress and ingress does not confer upon 
dominant tenants the right to park vehicles along the right of way."); Russo v. Stepp, 475 A.2d 331, 
332 (Conn. App. Ct. 1984) (“From the terms of the deed and from the surrounding circumstances 
it is plain that the defendant did not acquire a right to obstruct the driveway or to permit motor 
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vehicles to park in the driveway so as to interfere with its use by the plaintiffs.”); Cleveland v. 
Clifford, 698 N.E.2d 1045, 1048 (Ohio Ct. App. 1997) (“[W]e hereby find that the term ‘drive 
easement’ does not permit parking thereon.”). 
¶ 20 
Thus, the plain language of the express easement contained in the 1980 bargain and sale 
deed viewed in the context of the relevant factual circumstances surrounding the conveyance 
clearly demonstrates that the parties to the original conveyance intended for the ingress and egress 
easement to include the incidental right to stop, load and unload. Accordingly, the Superior Court 
did not err in concluding that NNA&O demonstrated actual success on the merits of its claim for 
a permanent injunction in this respect. However, the Superior Court erred in holding that the 
easement includes the further right to park vehicles on Lot 171 for reasons unconnected with 
stopping, loading, and unloading of commercial goods.7 
2. Likelihood of Irreparable Harm to NNA&O 
¶ 21 
The Superior Court also found that NNA&O proved that it would suffer irreparable harm 
if an injunction was not issued in this matter. “Irreparable harm is ‘certain and imminent harm for 
which a monetary award does not adequately compensate.’” Yusuf v. Hamed, 59 V.I. 841, 854 
(V.I. 2013) (citing Wisdom Imp. Sales Co. v. Labatt Brewing Co., 339 F.3d 101, 114 (2d Cir. 
2003)). Relying on our holding in Yusuf that “a party's right to control a business ‘has intrinsic 
 
7 In reaching its conclusion that “the apparent purpose of the easement was intended to provide parking, loading, and 
unloading access,” the Superior Court relied upon Public Works Drawing G9-2980-T80, depicting both lots, with the 
notation “parking loading & unloading” appearing directly above the words “Lot No. 171.” While the description of 
the easement in the bargain and sale deed does incorporate drawing T80 by reference, it is unclear whether the map is 
referenced for the purpose of describing or depicting the easement, or merely for the purpose of identifying the 
property burdened by the easement. Additionally, while the map does include the notation “parking loading & 
unloading,” there is no indication on the map itself that this language is intended to describe the scope of an easement. 
For these reasons, the purported description of the easement included on map T80 is unclear and ambiguous, and the 
Superior Court erred to the extent that it defined the scope of the express easement by reference to the language 
included in drawing T80, rather than by interpreting the language of the express easement itself according to the 
general principles of contract interpretation. See Brodhurst v. Frazier, 57 V.I. 365, 371-74 (V.I. 2012) (finding 
surveyor drawing of property referencing “joint use driveway” too ambiguous to interpret at summary judgment). 
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value’ that cannot be compensated by money damages,”  59 V.I. at 854, the Superior Court 
concluded that NNA&O would suffer irreparable harm if SMI was not enjoined from blocking 
NNA&O’s access to its eight cargo bay doors, because without such access, NNA&O would 
effectively be incapable of utilizing its warehouse for its reasonable, intended commercial use: the 
storage of furniture.  
¶ 22 
Appellants argue that NNA&O would not suffer irreparable harm because the warehouse 
may be accessed by an existing door facing the public street, and because “NNA&O could reopen 
one of the former roll down doors” accessible from the public streets. However, the record 
indicates that the existing door facing the public street is not a cargo bay door suitable for the 
loading and unloading of goods, but is an ordinary external building door providing access for 
pedestrian traffic. Additionally, there is no evidence in the record to indicate the existence of any 
“roll down” cargo bay doors accessible from the public street. Even if such access were possible, 
the grant of the easement itself indicates that the original parties to the conveyance considered 
such access to be insufficient for the owner of Lot 171A to make full reasonable, commercial use 
of its property. 
¶ 23 
Accordingly, we conclude that the Superior Court did not abuse its discretion in finding 
that NNA&O would suffer irreparable harm in the absence of an injunction. 
3. Likelihood of Greater Harm to SMI 
¶ 24 
Appellants argue that the Superior Court erred in concluding that the balancing of harms 
favored NNA&O because an injunction requiring SMI to remove the refrigerated containers would 
result in the cessation of operations of Sam’s Supermarket, SMI’s principal tenant, which relies on 
the use of the refrigerated containers for the storage of fresh food products.  
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¶ 25 
In weighing the harms to the nonmoving party, the trial court is required to determine 
whether and to what extent the nonmoving parties will suffer irreparable harm if the court enjoins 
them. Yusuf, 59 V.I. at 856. Here, the Superior Court examined the burden that would be imposed 
by enjoining SMI and determined that NNA&O would suffer significantly greater harm if it were 
not granted the injunction. The court found that SMI had alternative means of providing storage 
for Sam’s Supermarket’s cold food products without blocking NNA&O’s access to the warehouse, 
while NNA&O lacked similar alternatives to conduct their business without accessing Lot 171A 
via its easement over Lot 171. Additionally, the court reasoned that any potential harm to SMI 
caused by the removal or relocation of the refrigerated containers was the result of its own 
historical, “complacent” business practice, as SMI had begun parking refrigerated containers in 
front of the warehouse during the period that SDI leased Lot 171A, but had simply failed to remove 
those containers following the sale of Lot 171A to NNA&O. For these reasons, the court 
determined that NNA&O faced much greater harm if the situation remained unchanged and found 
that the balancing of harms favored NNA&O.  
¶ 26 
Our review of the Superior Court’s finding that the balance of harms favors NNA&O is 
limited to clear error, and we will “only reverse a factual determination as being clearly erroneous 
if it is completely devoid of minimum evidentiary support or bears no rational relationship to the 
supportive evidentiary data.” In re Estate of Small, 57 V.I. 416, 428 (V.I. 2012). Here, the Superior 
Court based its assessment of the relative harm to the parties largely upon its finding that SMI has 
alternative means of providing storage for Sam’s Supermarket’s fresh food products other than by 
means of refrigerated trailers permanently parked directly in front of Lot 171A. Although the court 
did not expound upon this finding, evidence in the record establishes that the Sam’s Supermarket 
building contains indoor refrigeration units of significant size. Additionally, as evidenced by the 
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Superior Court’s decision to allow SMI to continue parking three refrigerated containers on Lot 
171, the size and situation of the property itself indicates that SMI would be capable of parking at 
least some refrigerated containers on the property without blocking NNA&O’s access to its 
warehouse. Accordingly, because the court’s finding is rationally supported by evidence in the 
record, we conclude that the Superior Court did not abuse its discretion in finding that the 
balancing of harms favored issuance of an injunction restraining SMI from interfering with 
NNA&O’s use of its easement across Lot 171. 
4. Public Interest 
¶ 27 
Finally, the Superior Court found that granting NNA&O’s motion for injunctive relief was 
in the public’s interest because NNA&O had demonstrated actual success on the merits and 
irreparable harm, and because Appellants’ suggested alternative—forcing NNA&O to open cargo 
bay doors onto the public streets—would prevent residents in the surrounding neighborhood from 
accessing their properties. We have explained that “[i]n exercising their sound discretion, courts 
of equity should pay particular regard for the public consequences in employing the extraordinary 
remedy of injunction.” Yusuf, 59 V.I. at 857-58 (citing Winter v. NRDC, Inc., 555 U.S. 7, 24 (2008) 
(quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982))) (internal quotations omitted). 
We have further noted that the “[p]ublic interest can be defined a number of ways.” Yusuf, 59 V.I. 
at 858 (quoting Opticians Ass'n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 197 (3d Cir. 
1990)). The public interest factor “will typically favor the moving party ‘if [it] demonstrates both 
a likelihood of success on the merits and irreparable injury.’” Id. at 858 n.11 (quoting American 
Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 n.8 (3d Cir. 1994)).  
¶ 28 
On appeal, Appellants argue that the issuance of an injunction in this case is against the 
public interest because the injunction fails to sufficiently protect private property rights by 
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affording the easement holder “greater rights than the owner of record.” However, this argument 
amounts to nothing more than a rehashing of Appellants’ arguments with respect to NNA&O’s 
success on the merits of the claim, which we have already rejected for the reasons discussed above.  
¶ 29 
Additionally, Appellants argue that the injunction is against the public interest because it 
would drastically limit SMI’s use of its own property, and would “cause Sam’s Supermarket to 
close, depriving the Territory of a major food distribution service and causing harm to residents 
and visitors.” However, Appellants have failed to point to any evidence in the record to substantiate 
their bald claim that issuance of an injunction would leave Sam’s Supermarket with no recourse 
but to cease operations and close its doors. And, as we have previously observed in similar cases, 
a “lack of citation to legal or evidentiary support demonstrates that ‘the consequences predicted ... 
are speculative, hyperbolic, and almost entirely of the [parties'] own making.’” Yusuf, 59 V.I. at 
858 (citing NML Capital, Ltd. v. Republic of Argentina, 727 F.3d 230, 246 (2d Cir. 2013) (rejecting 
public interest arguments where the party “failed to present the [trial] court with any record 
evidence to support its assertions”)). 
¶ 30 
Accordingly, because Appellants have not demonstrated that the trial court’s finding 
regarding the public interest factor is “completely devoid of minimum evidentiary support or ... 
bears no rational relationship to the supportive evidentiary data,” we cannot conclude that the 
Superior Court abused its discretion in finding that the public interest would be served by issuing 
an injunction restraining SMI from interfering with NNA&O’s easement right to access its 
warehouse, and to stop, load, and unload commercial goods. 
¶ 31 
Because the Superior Court correctly found that NNA&O had demonstrated actual success 
on the merits, that NNA&O would suffer irreparable harm in the absence of an injunction, that the 
balance of harms to parties favored issuance of the injunction, and that entering an injunction 
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would serve the public interest, the court did not abuse its discretion in concluding that NNA&O 
is entitled to a permanent injunction restraining SMI from blocking NNA&O’s use of its express 
easement for ingress and egress to Lot 171A, including the incidental right to stop, load, and unload 
commercial goods. However, for the reasons discussed below, we conclude that the terms of the 
injunction order entered by the Superior Court are defective in both form and substance, and are 
overly broad and unnecessary to adequately protect the rights of the parties in this case. 
C. Scope of the Permanent Injunction 
¶ 32 
While a court of equity enjoys wide latitude in fashioning equitable remedies, “[a] court 
issuing an injunction must ensure that it is narrowly tailored ‘to fit the particular circumstances of 
the case.’” Caribbean Healthways, Inc. v. James, 55 V.I. 691, 700 (V.I. 2011) (quoting Brow v. 
Farrelly, 994 F.2d 1027, 1038, 28 V.I. 345 (3d Cir. 1993)). Indeed, an “injunction ‘cannot be 
broader than necessary to restrain the unlawful conduct.’” Id. Additionally, Virgin Islands Rule of 
Civil Procedure 65(d) governs the “contents and scope of every injunction and restraining order.” 
The rule provides that “[e]very order granting an injunction… must: (A) state the reasons why it 
issued; (B) state its terms specifically; and (C) describe in reasonable detail—and not by referring 
to the complaint or other document—the act or acts restrained or required.”  
¶ 33 
As an initial matter, the body of the Superior Court’s findings of fact and conclusions of 
law purports to enter an injunction “against Sam’s Management, Inc., Sam’s Food Distributors, 
Inc., and Hector Gonzalez,” while the attached order is confoundingly directed to “Sam’s 
warehouse,” which is not a legal entity involved in this matter. For the reasons discussed above in 
Section III(A) of this opinion, the Superior Court lacked personal jurisdiction over Sam’s Food 
Distributor’s, Inc. and Hector Gonzalez, and therefore the court erred to the extent that it directed 
the injunction to those parties. Substantively, in addition to enjoining “Sam’s warehouse” from 
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blocking NNA&O’s access to Lot 171A by means of the easement over Lot 171 and requiring 
“Sam’s” to remove all obstacles currently blocking access to the warehouse’s eight cargo bay 
doors, the Superior Court’s injunction further requires “Sam’s”  to clear Lot 171 of all personal 
property with the exception of three refrigerated trailers. The injunction also requires “Sam’s” to 
immediately terminate any leases with third parties on Lot 171 that would “infringe upon the 
easement rights” of NNA&O, and restrains “Sam’s” from entering into such leases with other 
parties in the future. Finally, the injunction order prohibits “Sam’s” from attempting to engage in 
any negotiations with NNA&O for leasing or renting any portion of Lot 171.  
¶ 34 
The terms of the Superior Court’s injunction—particularly the last three terms requiring 
the clearing of Lot 171 and prohibiting the leasing or renting of the property— are far broader than 
necessary to protect NNA&O’s right to utilize the easement over Lot 171 and are substantially 
broader in scope than the relief sought in the complaint. As discussed above, NNA&O holds an 
express easement over Lot 171 for ingress and egress to its commercial warehouse on Lot 171A, 
including the incidental right to stop, load, and unload commercial goods. Critically though, SMI 
remains the owner in fee simple of Lot 171 and retains the right to use its property in any manner 
it desires, so long as that use does not substantially interfere with NNA&O’s ability to utilize its 
easement.  Accordingly, SMI has the right to park and store whatever vehicles, equipment, or other 
objects it wishes on its own property, subject to the sole restriction that the placement of those 
objects must not prevent NNA&O from accessing its warehouse. The Superior Court offered no 
explanation either for its arbitrary determination that SMI could park no more than three 
refrigerated containers on its property without substantially impeding NNA&O’s ability to make 
reasonable use of its easement, or for its directive that those containers must be situated on the 
“most southern side of Parcel No. 171.” It is possible that SMI could conceive of some 
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configuration by which it might park more than three refrigerated containers on its property 
without blocking NNA&O’s access. For example, SMI could potentially elect to replace the large 
refrigerated containers currently in use with other, smaller containers that could be arranged 
differently to accommodate NNA&O’s right of access.  
¶ 35 
Additionally, as explained above, NNA&O’s easement for ingress and egress does not 
include the right to park vehicles on Lot 171 beyond the incidental right to temporarily stop or 
park commercial vehicles for the purpose of loading and unloading commercial goods. However, 
if NNA&O wishes to obtain the right to more permanently park vehicles on Lot 171, the parties 
are free to execute a contract extending this right to NNA&O under whatever terms they may deem 
appropriate. Similarly, as the owner of Lot 171, SMI is free to contract with third parties to rent or 
lease space for parking or storage on Lot 171, so long as the terms of that arrangement do not 
substantially impede NNA&O’s ability to make reasonable use of its easement. By categorically 
prohibiting SMI from entering into such lease agreements with either NNA&O or with third 
parties—a form of relief never requested by NNA&O—the Superior Court’s order unnecessarily 
and improperly infringes upon SMI’s property rights as the owner of Lot 171 as well as SMI’s 
freedom of contract. 
¶ 36 
In summary, the Superior Court did not abuse its discretion in concluding that a balancing 
of the relevant factors for consideration clearly weighed in favor of granting NNA&O’s motion 
for a permanent injunction restraining SMI from blocking NNA&O’s use of its express easement 
for ingress and egress to Lot 171A, including the incidental right to stop, load, and unload 
commercial goods. However, the court erred in crafting its injunction order to include terms that 
are far broader than necessary to restrain SMI’s unlawful conduct and that impermissibly restrict 
SMI’s ability to exercise its property rights as the owner in fee simple of Lot 171. Additionally, 
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the court erred in directing the injunction to parties over which the court lacks personal 
jurisdiction—SDI and Hector Gonzalez—and further erred in purportedly directing the injunction 
to “Sam’s warehouse,” which is not a legal entity involved in this matter. Accordingly, we vacate 
the Superior Court’s June 22, 2018 injunction, and remand this matter for the court to issue an 
injunction that is narrowly tailored to prevent the specific unlawful conduct at issue in this case as 
outlined in this opinion. 
D. Hamilton’s Unrebutted Expert Testimony 
¶ 37 
Appellants also argue that the Superior Court erred by failing to accord any weight to 
Hamilton’s unrebutted expert testimony. Specifically, they argue that the Superior Court 
improperly disregarded Hamilton’s testimony that NNA&O’s easement is solely for ingress and 
egress and does not include other rights such as the right to park, load, or unload vehicles. fBecause 
this purported error may potentially recur on remand, we exercise our discretion to consider 
Appellants’ claim notwithstanding our decision to vacate the injunction. Smith v. Turnbull, 54 V.I. 
369, 374-75 (V.I. 2010). 
¶ 38 
In a bench trial, such as the one in this case, the judge sits as fact finder. In this role, the 
judge must weigh the evidence introduced by the parties, including the testimony of their 
witnesses. Hendricks v. Central Reserve Life Ins. Co., 39 F.3d 507, 513 (4th Cir. 1994) 
("Evaluating the credibility of experts and the value of their opinions is [also] a function best 
committed to the [trial] courts, and one to which appellate courts must defer."). In this role, it is 
within the judge’s discretion whether to credit the expert testimony provided to the court. Malloy 
v. Reyes, 61 V.I. 163, 184 (V.I. 2014); Farrington v. People55 V.I. 644, 658 (V.I.  2011) (“It is 
well established that credibility determinations are within the province of the jury or a judge sitting 
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as the fact finder.”). “When the testimony of a witness is not believed, the trier of fact may simply 
disregard it.” Bose Corp. v. Consumers Union, 466 U.S. 485, 512 (1984).  
¶ 39 
Here, Hamilton testified to the legal meaning of ingress and egress. However, as discussed 
above, the legal meaning of these terms is properly determined as a matter of law according to 
general contract principles. Therefore, Hamilton’s testimony concerning the interpretation of these 
terms is irrelevant and any potential error the Superior Court committed by not considering his 
testimony is harmless. Antilles Sch., Inc. v. Lembach, 64 V.I. 400, 413 (V.I. 2016) (“No error or 
defect in any ruling or order or in anything done or omitted by the Superior Court . . . is ground 
for granting relief or reversal on appeal where its probable impact, in light of all of the evidence 
in the case, is sufficiently minor so as not to affect the substantial rights of the parties”) (quoting 
V.I. R. APP. P. 4(i)). Hodge v. Bluebeard's Castle, Inc., 62 V.I. 671, 696 (V.I. 2015) (“[T]his Court 
typically will not disturb an order under review if any legal errors were ultimately harmless.”) 
(citing V.I. R. APP. P. 4(i)).  
IV. 
CONCLUSION 
¶ 40 
Although the Superior Court did not abuse its discretion in concluding that NNA&O is 
entitled to a permanent injunction restraining SMI from interfering with NNA&O’s use of the 
express easement for ingress and egress over Lot 171, including the incidental right to stop, load, 
and unload commercial goods, the court did abuse its discretion in crafting its injunction order to 
include terms that are far broader than necessary to restrain SMI’s unlawful conduct and in 
directing its injunction order to non-parties and the non-existent legal entity “Sam’s warehouse.” 
Accordingly, we vacate the Superior Court’s June 22, 2018 injunction and remand this matter for 
further proceedings consistent with this opinion. 
 
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Dated this 9th day of June, 2020. 
 
BY THE COURT: 
 
 
 
 
 
 
 
 
/s/Maria M. Cabret_______ 
 
 
 
 
 
 
 
 
MARIA M. CABRET 
 
 
 
 
 
 
 
 
Associate Justice 
ATTEST:  
 
 
VERONICA J. HANDY, ESQ. 
Clerk of the Court