For Publication
IN THE SUPREME COURT OF THE VIRGIN ISLANDS
PATRICIA H. BABIJ, CINDY DEVLIN, ) S.Ct. Civ. No. 2019-0064
BRIAN DEVLIN, ) Re: Super. Ct. Civ. No. 168/2019 (STX)
Appellants/Plaintiffs, )
)
v )
)
BERNARD CUFFY. )
Appellee/Defendant )
)
On Appeal from the Superior Court of the Virgin Islands
Division of St. Croix
Superior Court Judge: Hon. Jomo Meade
Considered: April 13, 2021
Filed: March 4, 2025
Cite as: 2025 VI 7
BEFORE RHYS S. HODGE, Chief Justice; MARIA M. CABRET, Associate Justice; and
IVE ARLINGTON SWAN, Associate Justice
APPEARANCES
Yohanna Manning, Esq
Manning Legal Services, PC
St. Croix, U.S.V.1
Attorney for Appellants
Rhea R. Lawrence, Esq
Law Offices of Lee J. Rohn & Associates, LLC
St. Croix, U.S.V.I
Attorney for Appellee
OPINION OF THE COURT
CABRET, Associate Justice
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q! Patricia H. Babij, Cindy Devlin, and Brian Devlin,’ the Appellants in this action,
(collectively “Babij”) appeal from the August 16, 2019 Amended Memorandum Opinion of the
Superior Court, which denied their claim for injunctive relief and dismissed their claim for trespass
against Bernard Cuffy (“Cuffy”). For the reasons stated below, we affirm the decision of the
Superior Court
I FACTUAL AND PROCEDURAL BACKGROUND
42 This case concerns a dispute by competing residents over a purported right of way located
in the Windsor Forest Estates Subdivision of Estate Clairmont on St. Croix. The disputed road is
a thirty-foot purported right of way that runs in between Plot Nos. 5 and 7, through Plot Nos. 6, 8
37, and 12, and ends at Cuffy’s property, Plot No. 38. Office of the Lt. Governor (“OLG”) Drawing
No. 2161 below depicts the disputed area in purple
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In the case before the Superior Court, the Plaintiffs were Patricia Babij, Cindy Devlin, Brian Devlin, Austin B
McKenzie, Sr., Andrew Hooker, Karen Hooker, Charles S$. Adams, and Lynn Cameron Pontius. As reflected by the
caption of this appeal, the Appellants are limited to Patricia Babij, Cindy Devlin, and Brian Devlin
Babij, et al. v. Cuffy 2025 VI 7
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Opinion of the Court
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43 In August 2017, Cuffy saw an advertisement for Plot No. 38 of Clairmont Estates published
in the newspaper as available for purchase through a Marshal’s sale. Before bidding on the
property, Cuffy reviewed various maps and documents, including a copy of the warranty deed to
verify that there was a route to access the property. He confirmed that he could access the property
through a right of way as depicted on a certified copy of the cadastral map after visiting the Record
of Deeds office and contacting the cadastral office. Ultimately, he purchased the property to give
to his son as a wedding gift
44 When Cuffy physically visited the plot, he realized that the right of way was blocked by
thick foliage. In order to access his plot, Cuffy planned to clear the “overgrown road” that runs
through various properties, occupied by Patricia Babij, Brian and Cynthia Devlin, Austin B
McKenzie, Sr., Andrew and Karen Hooker, Charles S. Adams, and Lynn Cameron Pontius. Within
the area that Cuffy sought to clear is a pole of the Virgin Islands Water and Power Authority
(WAPA), underground WAPA lines, Viya telephone lines, a set of stairs, and a septic system used
by some of the area’s residents. In October 2018, Cuffy reached out to Cindy Devlin, one of the
named Appellants in this appeal, to inform her about his plans to clear the road. In response, Brian
Devlin texted Cuffy to invite him and his wife to meet the new neighbors for cocktails and to
“discuss the overgrown road that we all front.” Babij opposed Cuffy’s plan to clear the space and
use it as a roadway because it had never been used for that purpose since the inception of the
subdivision. At that meeting, Babij asked Cuffy to sign an agreement “‘to relinquish his rights to
the using of the road,” which Cuffy declined to sign. Babij offered to purchase Cuffy’s plot from
him to stop him from clearing the road, which Cuffy also declined. Babij told Cuffy that he was
going against the wishes of the homeowner’s association, although there was no such association
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45 After this disagreement with his neighbors, Cuffy applied for an Earth Change Permit to
the Department of Planning and Natural Resources (“DPNR”) in March of 2019. Cuffy testified
that DPNR approved the permit in late April but DPNR did not formally issue the Earth Change
Permit until May 17, 2019. After applying for the permit but before it was approved, Cuffy began
to clear the overgrown road with a machete and weedwhackers. Babij continued to oppose Cuffy’s
plan to clear the road to the point that police intervention was required on multiple occasions
46 On April 17, 2019, Babij filed a complaint in the Superior Court of the Virgin Islands,
Division of St. Croix against Cuffy, which contained a motion for temporary restraining order
(“TRO”) and/or preliminary injunction, a request for permanent injunction, and one count pleading
a claim for trespass. Concurrently, Babij filed an emergency motion for TRO and preliminary
injunction pursuant to Rule 65(b) of the Virgin Islands Rules of Civil Procedure. See V.I. R. Civ
P. 65(b). After receiving Babij’s motion for a TRO, the Superior Court issued an Order on April
26, 2019 requiring that Cuffy take no further action and scheduling a hearing for April 29, 2019
At that hearing, DPNR informed the Court that Cuffy filed an application for an Earth Change
Permit but that a permit “had not yet been issued.” As a result, the Superior Court denied the
requested TRO, dismissed DPNR from the suit after they were initially named as a defendant, and
“advised the parties to amicably resolve the matter.”
q7 On May 17, 2019, DPNR issued the Earth Change Permit to Cuffy for the purpose of
clearing land for “site access” and, consequently, Babij then filed another application for a TRO
The Superior Court heard Babij’s request for a TRO at a hearing held on June 3, 2019, where the
only appellant to testify, Brian Devlin, stated that the right of way had been abandoned and clearing
the road would harm mahogany trees and damage the utility instruments, located on the disputed
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roadway. The Superior Court ultimately granted Babij’s request for a TRO and scheduled the
matter for a full hearing on the merits on June 24, 2019
q8 The trial commenced on June 24, 2019. Babij called Marshal P. Walker, Jr., an expert in
land surveying, engineering, civil engineering design, and land and water boundary
determinations. Mr. Walker characterized the disputed land as a “shared private estate right of
way.” He clarified that seven residents own parcels that make up the entire right of way. Mr
Walker testified that, based on his professional opinion, the land within the right of way was too
steep to build a road. He testified that Cuffy had a one-seventh interest in the right of way and
should use it without driving
q@9 On July 1, 2019, one of the plaintiffs in the Superior Court proceeding, Austin B
McKenzie, Sr. testified. McKenzie owns and has resided on Plot No. 12 since 2010. He testified
that he was aware of the existence of the easement when he purchased his property in 2003 and
that he could have used the easement to access his property but opted to trade a section of his plot
with another owner to arrange an alternate path of access. After these two witnesses, Babij rested
their case before the Superior Court
410 In Cuffy’s case-in-chief, he called his own expert in land surveying and engineering,
Jeffrey Bateman. Based on his review of a series of recorded maps of the property and a survey of
the property that he conducted, Mr. Bateman testified that the disputed land existed as a roadway
dating back to 1967. The maps that he reviewed were OLG drawings 1407, 2210, 5410, and 5965
Mr. Bateman identified the WAPA pole, Viya lines, stairs, and the septic system as encroachments
on the right of way. Next, Cuffy called Leia LaPlace, the territorial planner with the division of
comprehensive and coastal zone planning at DPNR, who had reviewed Cuffy’s application for an
Earth Change Permit. She testified that her review of the OLG drawings 1407, 2161, and 5472
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showed an easement for access or a roadway running through Plots 5, 6, 7, 8, 12, and 37, leading
to Cuffy’s Plot 38. Cuffy also called Emmanuel Liburd, the Earth Change Land Clearing Officer
at DPNR. Mr. Liburd testified that once DPNR decides that an area is a right of way, then it can
issue a permit for the applicant to clear the area. Wayne D. Callwood, the public surveyor, also
testified as a witness for Cuffy. He testified definitively that the disputed land was a right of way
and not an easement based on OLG drawing No. 2161 delineating the property as a right of way
He continued that Cuffy “has a right to develop [the road] and access his property.” Cuffy also
called Norman Smith, the owner of TNN Heavy Equipment, LLC, who testified that he could clear
the road without damaging the existing encroachments and that the trees on the roadway are not
mahogany trees and should be removed. Finally, both Mr. and Mrs. Cuffy testified
411 OnAugust 16, 2019, the Superior Court issued its Amended Memorandum Opinion, which
denied Babij’s claim for injunctive relief and dismissed their claim for trespass on the basis that
Babij “failed to meet the evidentiary burden that would entitle them to injunctive relief.”? The
Superior Court reasoned that Babij failed to show a probability of success on the merits because
they did not prove that “the right of way was extinguished, relocated or otherwise changed.”
Furthermore, the Superior Court deemed that Babij did not demonstrate that the burden to remove
the encroachments of the right of way outweighed Cuffy’s potential injury if he could not access
his property. Therefore, Babij did not meet their burden to prove that they would suffer greater
harm if injunctive relief was not granted. Finally, the Superior Court ruled that Babij “provided no
2 Following the three-day trial on the merits, the Superior Court issued its memorandum opinion on July 29, 2019
The Court issued an errata order on August 14, 2019 to amend its memorandum opinion and correct an error. On
August 16, 2019, the Superior Court formally withdrew its memorandum opinion, dated July 29, 2019 and replaced it
with the amended memorandum opinion, dated August 16, 2019
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evidence that would tend to show that granting injunctive relief on their claim of private ownership
of the right of way, would better serve the public interest.” Babij timely filed their appeal to this
Court on August 26, 2019
II DISCUSSION
€12 Onappeal, Babij argues that (1) the Superior Court erred by not permitting them to exhaust
their administrative remedies before ruling on the case; (2) the Superior Court violated their
Seventh Amendment rights by consolidating the preliminary and permanent injunction hearings
and not preserving their claimed rights to a jury trial; (3) the Superior Court violated the Statute of
Frauds by failing to analyze relevant deeds in determining that an easement existed, instead relying
almost exclusively on the testimony of the Territorial Surveyor; and (4) the Superior Court decided
the case under the standards of the Restatement (Third) of Property: Servitudes § 2.13 without a
Banks analysis and without properly applying its standards. We address each argument in turn
A. Jurisdiction and Standard of Review
413 The Supreme Court has jurisdiction over “all appeals arising from final judgments, final
decrees or final orders of the Superior Court.” 4 V.LC. § 32(a). Also, we have jurisdiction over
“fijnterlocutory orders of the Superior Court of the Virgin Islands granting, continuing,
modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” 4
V.LC. § 33(b)(1). Because the Superior Court’s amended memorandum opinion, dated August 16,
2019, denied the Appellants’ request for injunctive relief, we may exercise jurisdiction over this
appeal. Furthermore, because the Superior Court adjudicated the case on the merits, the opinion is
appealable as a final judgment pursuant to title 4, section 32(c) of the Virgin Islands Code. See
Moses v. Fawkes, 66 V.1. 454, 459 (V.L. 2017) (concluding that the Superior Court committed no
error in adjudicating a claim and denying a motion for injunctive relief when the parties assented
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to a hearing on the merits). Although Babij posits in their brief that “the [Superior] Court did not
issue a separate final judgment pursuant to Rule 58 of the Virgin Islands Rules of Civil Procedure,
we have jurisdiction.°
414 We review the Superior Court’s decision to grant or deny an injunction for an abuse of
discretion. Petrus v. Queen Charlotte Hotel Corp., 56 V.1. 548, 554 (V.I. 2012). An abuse of
discretions exists when the decision of the Superior Court “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, 552 (V.I. 2011) (citation omitted). On appeal, this Court reviews the Superior Court’s
factual determinations concerning “[the] likelihood of irreparable harm, harm to the nonmoving
party, and whether the injunction is in the public interest only for clear error.” Yusuf'v. Hamed, 59
V.1. 841, 848 (V.L 2013). 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.” Jn re Estate of Small, 57 V.1. 416, 430 (V.I. 2012) (quoting Rainey
v, Herman, 55 V.1. 875, 880 (V.1. 2011))
B. Administrative Exhaustion
3 Rule 58(a) of the Virgin Islands Rules of Civil Procedure states that “[e]very judgment and amended judgment must
be set out in a separate document.” Although the Superior Court did not issue a separate final judgment, we conclude
that we do have jurisdiction over this appeal. As explained by the United States Supreme Court interpreting the
analogous separate judgment rule in federal court, “[tJhe rule should be interpreted to prevent [the] loss of the right to
appeal, not to facilitate loss.” Bankers Tr; Corp. v. Mallis, 435 U.S. 381, 386 (1978) (quoting 9 J. Moore, Federal
Practice | 110.08[2], p. 120 n. 7 (1970)). See also Diamond by Diamond v. McKenzie,
770 F.2d 225, 231 (D.C, Cir
1985) (applying Mailis and concluding that “the dismissal of [an] appeal would not be appropriate” when it was clear
that the intention of the lower court was to enter a final judgment); Outlaw v. Airtech Air Conditioning & Heating.
Inc.,
412 F.3d 156, 162-63 (D.C. Cir. 2005) (“Our dismissal of her appeal at most would only have temporarily
postponed our ability to reach the merits, because on remand the district court would simply enter the separate
document required by Rule 58, allowing Outlaw then to file a timely appeat.”). Because our Rule 58 is analogous to
Rule 58 of the Federal Rutes of Civil Procedure, ‘“‘we may look to decisions interpreting analogous federal rules as
persuasive authority when applying our own rules.” Smith v. Govt of the Vi, 67 V.1. 797, 802 n.3 (V.E. 2017)
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415 Babij asserts in their appellate brief that the Superior Court impeded their right to pursue
administrative redress before the Board of Land Use Appeals (““BLUA”) by proceeding with a trial
on the merits instead of permitting them to file an appeal to the BLUA. Cuffy responds that Babij
had thirty days to file an appeal with the BLUA after receiving notice of the Earth Change Permit
and because that deadline has passed without Babij filing an appeal, this issue is moot.4 We hold
that Superior Court did not inhibit Babij from exhausting their administrative remedies because
Babij made the concerted choice to file this action in the Superior Court and the Superior Court
never prevented Babij from filing an appeal with the BLUA
416 Section 295(a) of Title 29 of the Virgin Islands Code governs the procedure for appeals
before the BLUA. The BLUA “shall have the power to hear and decide appeals made against any
order, rule or regulation, action or decision made by the Commissioner of Planning and Natural
Resources and/or the Commissioner of Health in the enforcement or interpretation of the Building
Code.” 29 V.I.C. § 295(b)(1). Under 29 V.LC. § 295(a), a party that feels aggrieved by an action
of the DPNR “may appeal therefrom to the Board of Land Use Appeals by filing a written notice
of his appeal with the Board within thirty (30) days after receipt of the order or ruling complained
of.” The BLUA has thirty days to take action once an appeal has been filed under 29 V.I.C. §
295(b)(5), and may “reverse or affirm, wholly or in part, or may modify the order, requirement,
+ In response to Cuffy’s argument that Babij failed to file an appeal with the BLUA and that filing an appeal now
would be futile as the issue is moot, Babij argues that the doctrine of equitable tolling applies. The Superior Court
may equitably toll the statute of limitations If:
(1) the first action gave defendant timely notice of plaintiff's claims; (2) the lapse of time between
the first and second actions will not prejudice the defendant; and (3) the plaintiffs acted reasonably
and in good faith in prosecuting the first action, and exercised diligence in filing the second action
Jensen v. V.I. Water & Power Auth., 52 V.1. 435, 443 (V.L. 2009) (quoting Jsland Insteel Sys., Inc. v. Waters, 296 F.3d
200, 218 (3d Cir. 2002)). The equitable tolling factors are heavily reliant on the factual scenario at play and are
“generally committed to the discretion of the trial court.” /d. (quoting /s/and Insteel, 296 F.3d at 218 ). Babij fails to
develop any legal support for their conclusory assertion that the application of equitable tolling rests with the BLUA
and therefore this issue is waived on appeal. See V. I. R. APP. P. 22(m)
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decision, or determination appealed from, and may grant variances.” 29 V.LC. § 295(b)(3). Under
Section 295(b)(6), “[t]he decisions of the Board shall be subject to review by a court of competent
jurisdiction of the Virgin Islands provided an appeal is filed within 45 days of receipt of the
decision from the Board.”
417 In this case, Babij filed their complaint and emergency motion for a TRO and preliminary
injunction in the Superior Court on April 17, 2019. In their emergency motion, Babij stated that
“(plaintiffs are rushing to timely file an administrative appeal of DPNR’s issuance of the ECP
with the Board of Land Use Appeals and will do so imminently.” Babij asked the Superior
Court for emergency relief to “maintain the status quo” and stop Cuffy from starting any work on
the road since BLUA did not have the mechanism to “order a stay of enforcement of DPNR’s
issuance of the ECP.” At the hearing on June 3, 2019, on Babij’s second motion for a TRO, the
following exchange occurred
THE COURT: But - - so you’re now importuning the Court to step in before that process
that administrative process is completed. You’re asking the Court to invoke its equitable power,
and step in and somehow provide a remedy to your client because the administrative process
will take too long, and, in the meantime, there will be irreparable damage, is that what you’re
saying?
MR. ECKARD.: That’s exactly correct, Your Honor.
418 However, Babij never followed through by filing an appeal with the BLUA. While Babij
contends that the Superior Court usurped the BLUA’s authority and failed to permit them to file
an appeal, the record is devoid of any instance where Babij objected to the Superior Court’s
decision to proceed to a trial on the merits. In fact, as the quote above demonstrates, it is Babij
who sought the Superior Court’s intervention. Babij sought a judicial remedy for the situation and
the Superior Court was authorized to expeditiously adjudicate the case. Babij specifically invoked
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the jurisdiction of the Superior Court under Virgin Islands Rule of Civil Procedure 65(b). Under
that rule, the Superior Court was authorized to consolidate the hearing on a motion for a
preliminary injunction with a trial on the merits. See V. I. Civ. P. R. 65(a){2) (“Before or after
beginning a hearing on a motion for a preliminary injunction, the court may advance the trial on
the merits and consolidate it with the hearing.”). At the conclusion of the TRO hearing on June 3,
2019, the Superior Court stated: “I’m not going to wait until the Board of Land Use Appeals - - |
don’t know how long they’re going to take, but you came into court. Even though you have an
administrative remedy, the Court is going to deal [with the issues] on the merits.” The Superior
Court was fully authorized under our Rules of Civil Procedure to proceed exactly as it did, and
Babij did not object. The Superior Court never prevented Babij from filing their appeal
419 Throughout the course of this litigation, Babij was free to file an appeal with the BLUA
On May 17, 2019, DPNR issued the Earth Change Permit for the disputed property. Brian Devlin
testified that he received a copy of the permit on May 31, 2019. Starting on May 31, Babij had
thirty days to note an appeal to BLUA pursuant to 29 V.LC. § 295(a). See One St. Peter, LLC v.
Bd. of Land Use Appeals, 67 V.1. 920, 929 (V.I. 2017) (holding that the thirty-day appeal period
in 29 V.I.C. § 295(a) begins when a party is “chargeable with actual or constructive notice of that
order or ruling”). But the record does not show that Babij ever filed an appeal with BLUA. The
BLUA would have quickly handled Babij’s appeal from the ECP if they had filed it. See 29 V.LC
§ 295(b)(5) (“Action by the Board of appeals shall be taken within thirty (30) days of the receipt
of such appeals.”). Babij failed to promptly seek an administrative remedy. The Superior Court
never prevented Babij from filing an appeal to the BLUA
{20 Inessence, Babij attempts to rewrite history after they received an unfavorable result before
the Superior Court. They attempt to argue that the Superior Court restricted their ability to file an
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appeal to the BLUA. However, Babij made the concerted choice to file their case in the Superior
Court instead of immediately filing an appeal with the BLUA after they received notice of the
Earth Change Permit. Had Babij followed established procedure and first filed an appeal with
BLUA, they would have enjoyed the statutory right to appeal to a court of competent jurisdiction
if they received an unfavorable result. See 29 V.I.C. § 295(b)(6) (“The decisions of the Board shall
be subject to review by a court of competent jurisdiction of the Virgin Islands provided an appeal
is filed within 45 days of receipt of the decision from the Board.”). Babij cannot have it both ways
They must deal with the choices that they made before this case reached the courts. Because Babij
failed to file an appeal with the BLUA, and the Superior Court merely adjudicated the case before
it, we hold that the Superior Court did not err
C. Right to Jury Trial
421 Babij also argues that the Superior Court violated their Seventh Amendment? right to a trial
by jury by consolidating the preliminary and permanent injunction® hearings. Cuffy argues that
Babij was not entitled to a jury trial and, even if they were, they waived the right to a jury trial
We do not reach the substance of Babij’s argument because they waived their right by not asserting
* The Seventh Amendment provides that “[i]n Suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined
in any Court of the United States, than according to the rules of the common law.” U.S. Const. amend. VII
® In an action for a preliminary and permanent injunction, the Superior Court considers 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
Sam Food Distributors, Inc. v. NNA&O, LLC, 73 V.1. 453, 463 (V.L. 2020) (quoting 3RC & Co. v. Boynes Trucking
Sys., 63 V.I. 544, 550 (V.I. 2015)). “[T]he party seeking an injunction [bears] the burden of proof as to all four factors
Sam's Food Distributors, 73 V.1. at 463 (quoting Appleyard v. Gov. Juan F. Luis Hosp. & Med. Ctr,
61 V.I. 578, 591
(VI. 2014))
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their demand for a jury trial before the Superior Court. See V. I. R. App. P. 4(h) (“Only issues and
arguments fairly presented to the Superior Court may be presented for review on appeal provided
however, that when interests of justice so require, the Supreme Court may consider and determine
any question not so presented.”)
422 Through the Revised Organic Act, Congress expressly extended the Seventh Amendment
to the Virgin Islands. Antilles School, Inc. v. Lembach, 64 V.1. 400, 433 (V.I. 2016); see also
48
U.S.C. § 1561 (“The following provisions of and amendments to the Constitution of the United
States are hereby extended to the Virgin Islands. . . and shall have the same force and effect there
as in the United States or in any State of the United States.”)
Rule 65(a)(2) of the Virgin Islands Rules of Civil Procedure states
Consolidating the Hearing with the Trial on the Merits. Before or after
beginning a hearing on a motion for a preliminary injunction, the court may
advance the trial on the merits and consolidate it with the hearing. Even when
consolidation is not ordered evidence that is received on the motion and that would
be admissible at trial becomes part of the trial record and need not be repeated at
trial. But the court must preserve any party’s right to a jury trial
V.I.R. Civ. P. 65(a)(2)
423 Inthis case, Babij made a general demand for a jury trial by placing “Jury Trial Demanded
within the caption of their complaint. See V. I. R. Civ. P. 10(d) (“If a party demands a jury trial by
endorsing it on a pleading, a notation shall be placed on the front page of the pleading immediately
following the title, stating “Demand for Jury Trial” or an equivalent statement. This notation will
serve as a sufficient demand under Rule 38(b).”). “Although a proper demand for a jury cannot be
withdrawn without the consent of all the parties, it is a right that can be waived.” E.g. Casperone
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v. Landmark Oil & Gas Corp.,
819 F.2d 112, 116 (Sth Cir. 1987).’ “{A] party only needs to raise
an issue in time for the Superior Court to address it and take whatever action is necessary in the
first instance in order to fairly present the issue and preserve it for appeal.” Percival v. People, 62
V.I. 477, 486 (2015). We will disregard form and rely on substance to determine whether an issue
was fairly presented to the Superior Court and preserved for appeal. Ubiles v. People,
66 V.I. 572,
583 (V.I. 2017) (quoting State v. Balderama,
88 P.3d 845, 850 (N.M. 2004))
424 Rule 22(m) of the Virgin Islands Rules of Appellate Procedure provides that: “[i]ssues that
were (1) not raised or objected to before the Superior Court are deemed waived for purposes
of appeal, except that the Supreme Court, at its option, may notice an error not presented that
affects substantial rights.” We review for plain error if any of Babij’s substantial rights were
affected in an issue not raised before the Superior Court. Woodrup v. People, 63 V.1. 696, 720 (VI
2015); Galloway v. People, 57 V.1. 693, 709 n.8 (V.I. 2012). Under plain error review, (1) there
must be an error, (2) that is plain, (3) which affects substantial rights, and (4) that affects the
fairness, integrity, or public reputation of judicial proceedings. Cornelius v. Nova Scotia, 67 V.I
806, 816-17 (V.I. 2017). The standard for determining whether an issue was fairly presented to the
Superior Court is a “low threshold.” Ubiles,
66 V.I. at 584 (citing to Percival, 62 V.1. at 485;
Woodrup, 63 V.1. at 712). As we stated in Ubiles, the “fairly presented” standard “is not some
formalistic requirement whereby an issue is fairly presented simply by raising it any time prior to
entry ofa final judgment, and an issue must be presented in such a manner as to give the trial court
the opportunity to consider, review, and address the argument in order to ensure that an adequate
? The Fifth Circuit in Casperone interpreted Rule 39(a) of the Federal Rules of Civil Procedure, which is analogous to
our Rule 39{a). See Smith, 67 V.1. at 802 n.3 (“({W]e may look to decisions interpreting analogous federal rules as
persuasive authority when applying our own nules.”)
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record of both law and fact is established so that an appellate court may make an informed
decision.”
66 V.I. at 584 (citing Simpson v. Golden, 56 V.1. 272, 280-81 (V.I. 2012); United States
v. O'Neill,
116 F.3d 245, 247 (7th Cir. 1997)). See World Fresh Markets, LLC v. Henry, 71 V.1
1161, 1174 (V.I. 2019) (applying Rule 4(h) of the Virgin Islands Rules of Appellate Procedure
and holding that an appellant’s statutory argument was waived because it did not present the
argument to the Superior Court); Williams v. People, S. Ct. Civ. No. 2019-0068, Vii ;
2024 WL 3884175, at *5 (V.I. August 16, 2024) (holding that the failure to object to witness
testimony at trial did not preserve the issue for appellate review); Etienne v. Etienne, 56 V.1. 686,
691 (V.I. 2012) “Generally, we consider all arguments made for the first time on appeal as waived
unless the party offering the argument presents exceptional circumstances.”). See also Palmer v
Valdez,
560 F.3d 965, 969 (9th Cir. 2009) (“An individual may waive his or her right to a civil
jury trial and we have held that knowing participation in a bench trial without objection may be
sufficient to constitute a jury waiver.”); White v. McGinnis,
903 F.2d 699, 703 (9th Cir. 1990) (“A
party’s vigorous participation in a bench trial, without so much as a mention of a jury, cannot be
presumed the result of mere inadvertence, but can only be ascribed to knowledgeable
relinquishment of the prior jury demand. This is especially so where, as here, the...party was on
notice that the trial court was planning to adjudicate the dispositive issues of fact. Under these
circumstances, court judgments should have meaning and effect instead of being a futile exercise
that one of the parties will be able to overturn no matter what the result. The appellant chose to
argue his case fully before the [Superior Court] judge; it is not unjust to hold him to that
commitment.”); Winter vy. Minnesota Mut. Life Ins. Co.,
199 F.3d 399, 407 (7th Cir. 1999)
(“[W]hen a party does not reassert the right to a jury trial prior to a bench trial or factual hearing
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requests a bench trial, or knowingly participates in a bench trial . . . that party waives his nght to
trial by jury through inaction or inadvertence.”’)
425 We must determine whether Babij fairly presented their purported request for a jury trial to
the Superior Court. At the TRO hearing on June 3, 2019, counsel for Babij told the Superior Court
that “‘we’re here today appealing to the Court’s equity jurisdiction, because there is no remedy at
law for us.” It is well settled that a case in equity does not entitle a litigant to a jury trial. E.g
Newfound Mgmt. Co. v. Lewis,
131 F.3d 108, 115 (3rd Cir. 1997) (“Actions at law entitle the
parties to a jury, but equitable cases do not.”).° Aside from the caption in the complaint, Babij did
not clearly assert any request for a jury trial on the trespass’ claim — a claim that is indisputably
legal in nature, rather than equitable, and which was triable by jury at common law.'° The only
instance where Babij mentioned a jury trial was on June 24, 2019, at the end of the first day of the
hearing on the merits. The following exchange occurred
THE COURT: We should be finished by Monday. If we’re not - - the TRO has to
be completed within a certain time. You asked for a jury trial?
5 See also 3RC & Co., Inc. v. Boynes Trucking Sys., Inc., 63 V.1. 544, 553 (V.1. 2015) (“[I]njunctive reliefis an equitable
remedy.”); In re Najawicz, 52 V.1. 311, 334 n.16 (V.I. 2009); Atl. & C. Air Line Ry. Co. v. Victor Mfg. Co., 60 S.E. 675
676 (S.C. 1908) (“An action for injunction is always equitable....”); K-Mart Corp. v. Oriental Plaza, Inc.,
875 F.2d
907, 914 (Ist Cir. 1989) (“It is well established that ‘there is no right to a jury trial ... on a claim purely for injunctive
relief (unless a statute were to expressly so provide, which is not the case).’” ) (quoting Rodriguez v. Munoz,
808 F.2d
138, 142-43 (1st Cir. 1986))
* “TWie reaffirm and adopt as the soundest rule for the Virgin Islands, the rule first announced in Hodge, that ‘a plaintiff
claiming trespass has the burden of proving that the defendant intentionally (a) entered land in the possession of the
other, or caused a thing or third person to do so, or (b) remained on the land, or (c) failed to remove from the land a
thing which he was undera duty to remove.”” Klein v. Bassil, 78 V.1. 593, 610 (V.L. 2023) (quoting Hodge v. McGowan,
50 V.I. 296, 306 (V.I. 2008)); see also Restatement (Second) of Torts § 158 (1965). A plaintiff claiming trespass has
the burden to prove all of the elements. McGowan,
50 V.I. at 306
'® Originating in the mid-thirteenth century, the common law action of trespass recognizes and protects a broad
category of personal interests, including having possession of real property and the right to enjoy it free from
forcible interference. An infringement of that right would be remedied under a theory of trespass guare clausum
fregit. William W. Blume, American Civil Procedure§ 1-08, at 8-9 (1955). See also id. at § 1-04, pg. 5 (informing
that trespass is one of the forms of common law actions that were developed in “the old [English] courts of common
law [for] ordinary civil actions’)
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MR. ECKARD: No, Your Honor, but we also have another count in the complaint
for trespassing as well
THE COURT: You want a jury trial on a trespass claim?
MR. ECKARD: Your Honor, | - - if we don’t ask for it Your Honor, we’ve waived
it therefore we ask for it and deal with that later
This exchange is not sufficient to qualify as fairly presenting the issue to the Superior Court for its
consideration. The Superior Court asked Babij about their request for a jury trial, only to be met
with equivocation and ambiguity. Throughout the remaining duration of the proceedings, Babij did
not raise the jury trial issue again with the Superior Court and vigorously participated in the trial
on the merits. The issue of a claimed right to jury trial did not resurface until Babij asserted it on
appeal. Even then, Babij omitted the issue, even in their notice of appeal. We conclude that Babij
did not fairly present the jury trial issue to the Superior Court in order to preserve this issue for
appellate review.
426 But we must consider whether the issue of a jury trial was merely forfeited in this case or
actively waived. In doing so, we look to whether a party “was aware of the relinquished or
abandoned right” to determine if a claim has been forfeited or waived. Pickering v. People, 64 V.1
356, 365 (V.I. 2016) (quoting Gov't of the VI. v. Rosa, 399 F.3d 283, 291 (3rd Cir. 2015)), as
forfeiture is a distinct judicial determination from waiver and carries different consequences
Pickering, 64 V.I. at 364. “[W]hen a legal rule has been waived, an appeal based upon the
nonadherence to that legal principle is precluded. If, however, the correct application of the rule
merely was ‘forfeited,’ then an appellate court may nevertheless review for plain error.” Murrell
v. People, 54 V.1. 338, 361 (V.L 2010) (quoting Rosa,
399 F.3d at 290). If a party simply fails to
raise an issue or object, then this Court will typically consider that action as a forfeiture and review
for plain error. Pickering, 64 V.1. at 365 (citing to Williams v. People, 59 V.1. 1024, 1033 (V.I
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2013)). However, “active inducement, acquiescence, or other affirmative act demonstrates an
intentional waiver of an issue or right that this Court will not notice even under plain-error review.”
Id
427 Inthis case, Babij acquiesced to the Superior Court’s resolution of all of their claims. After
the Superior Court asked whether they sought a jury trial, their counsel responded first in the
negative and later stated “we ask for it and deal with that later,” and as we just indicated, Babij did
not revisit this issue until the Appellants’ brief. Babij proceeded with two more days of trial in the
Superior Court without further mentioning a jury trial. Babij actively participated in the bench
trial, including calling witnesses, entering evidence, and conducting cross-examination
Furthermore, Babij did not address their ambiguous potential request for a jury trial in closing
arguments. Because Babij did not adequately present the jury trial issue to the Superior Court, and
fully participated in the bench trial, the jury trial issue is waived
D. Statute of Frauds
428 Babij asserts that the Superior Court inappropriately relied on the testimony of the
Territorial Surveyor, Wayne Callwood, rather than the property deeds in determining whether a
right of way/easement existed in this case in violation of the Statute of Frauds. Babij claims that
the burden to establish an easement rested upon Cuffy, and __ that
he did not meet his burden. Cuffy argues that this issue is waived on appeal because Babij did not
raise the Statute of Frauds issue before the Superior Court!’ or, in the alternative, that Cuffy had a
'! Virgin Islands Rules of Appellate Procedure 4(h) states that “[o]nly issues and arguments fairly presented to the
Superior Court may be presented for review on appeal; provided, however that when the interests of justice so require,
the Supreme Court may consider and determine any question not so presented.” We believe that the interests of justice
warrant reviewing the Statute of Frauds issue, since it involves an important question of law that may recur in future
cases and in which the parties have fully briefed on the merits despite any alleged waiver. Therefore, notwithstanding
any potential waiver, this Court exercises our discretion to review the Statute of Frauds issue. See Harvey v.
Christopher, 55 V.1. 565, 572 (V.L. 2011) (ruling that this Court had the discretion to review an alimony issue when
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valid easement. We hold that the Superior Court did not violate the Statute of Frauds because it
found an implied easement through its review of the pertinent property maps and the testimony of
the witnesses
429 Black’s Law Dictionary defines an easement as “[a]n interest in land owned by another
person, consisting in the right to use or control the land, or an area above or below it, for a specific
limited purpose (such as to cross it for access to a public road). The land benefitting from an
easement is called the dominant estate; the land burdened by an easement is called the servient
estate.” BLACK’S LAW DICTIONARY 642 (12th ed. 2024). “An express easement is an easement
that is explicitly conveyed in accordance with the statutory rules for conveying property, 28 V.I.C
§ 124 (the recording statute) and 28 V.LC. § 241!* (the Statute of Frauds).” Streibich v
Underwood,
74 V.I. 488, 501 (V.I. 2021). Under the Statute of Frauds, finding an express
easement requires the court to analyze a deed, or other sufficient instrument in writing, which is
signed by the person creating, granting, assigning, transferring, surrendering, or declaring the
same, or by his lawful agent under written authority, and executed with such formalities as are
the parties’ briefs adequately discussed the issue and the appellant intended the Court to reach it); see also Singleton
v. Wulff,
428 U.S. 106, 121 (1976) (noting that there are circumstances where an appellate court may reach an issue
not ruled on by the trial court); /# re SyngentaAG MIR 162 Corn Litig.,
61 F.4th 1126, 1182 (10th Cir. 2023) (“Whether
issues should be deemed waived is a matter of discretion”); Freeman v. Pittsburg Glass Works, LLC,
709 F.3d 240,
249 (3d Cir. 2013) (“it is within our discretion to consider an issue that the parties did not raise below); Celestine v.
Dept of Family and Protective Servs., 321 $.W.3d 222, 223 (Tex. App.) (addressing waived issue ‘‘in the interests of
Justice and judicial economy”)
!2 28 V.LC. § 241, entitled “Creation or transfer of interest in real property” states
(a) Except for a lease for a term not exceeding one year, no estate or interest in real property, and no trust or
power over or concerning real property, or in any manner relating thereto, can be created, granted, assigned,
transferred, surrendered, or declared other than
(1) by operation of law; or
(2) by a deed of conveyance or other instrument in writing, signed by the person creating, granting,
assigning, transferring, surrendering, or declaring the same, or by his lawful agent under written
authority, and executed with such formalities as are required by law.
(b) This section does not
(1) affect the power of a testator in the disposition of his real property by will; or
(2) prevent a trust from arising or being extinguished by implication or operation of law.
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required by law. /d. at 502. In its findings, the Superior Court explicitly disclaimed any reliance
on a deed or other signed instrument in writing, stating: “[c]onsidering the maps and testimony of
the witnesses, it is evident that a right of way/easement was created in 1963.” The Superior Court
did not conclude that there was an express easement over the disputed roadway, therefore, the
Superior Court did not need to rely on the property deeds and the Statute of Frauds was not
triggered. See Streibich, 74 V.I. at 503-04 (reasoning that there was “no words conveying an
easement over the R.O.W. within the [] deeds, and so there is no express easement over the
R.O.W.”)
430 Although there was no express easement, the Superior Court could have determined that
there was an implied easement. An implied easement “exists when the grantor intended to a create
a servitude but neglected to do expressly.” Streibich, 74 V.1. at 504. “The most common type of
implied easement (also referred to as an easement by implication) is an easement that is implied
based on past use.” /d, Another type of implied easement is an easement “implied by an indication
on a map that is incorporated into the deed,” which the Superior Court found in this case. /d. Here,
OLG Drawing 2161 is referenced in deeds that Babij entered into evidence, including a warranty
deed from the original subdivider from February 1969 for plot number 38, Cuffy’s property, and
a warranty deed from January 1989 for the same plot. Additionally, OLG 2161 is referenced in
Cuffy’s deed and the deed of Austin McKenzie, Sr., who owns Plot 12. The testimony of witnesses
provided further support for the Superior Court to find an implied easement: Wayne Callwood
Emmanuel Liburd, and Leia La Place all testified that the relevant deeds ands maps confirmed the
existence of the right of way. Importantly, both Brian Devlin and Austin McKenzie, Sr. testified
that they were aware of the road that was originally planned for the subdivision. We hold that this
was sufficient evidence to create an inference of an implied easement because a reference to a right
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of way ona filed map is “extremely strong evidence of the intent to create an easement.” Streibich,
74 VI. at 507
431 Babij argues that Cuffy had the burden to establish the existence of an easement. See
Brodhurst v. Frazier, 57 V.1. 365, 374 (V.I. 2012) (Swan, J., dissenting) (“ “The person who asserts
an easement has the burden of proving the existence of the easement.’ Riffle v. Worthen,
939
S.W.2d 294, 298 (Ark. 1997).””). However, as we clarified in Streibich, for Babij to prevail on the
merits, once OLG 2161 created “an inference that the parties intended for there to be an easement,”
Babij would have had to demonstrate “evidence of a contrary intent, with the strength of the
evidence needed to rebut the inference of an easement varying based on the strength of the
evidence—particularly that the explicitness of the map—used to support the inference.” Streibich,
74 V.I. at 507 (quoting Broadhurst v. Frazier, 57 V.1. 365, 370 (V.I. 2012)). The Superior Court
found that Babij failed to meet their burden of showing “ta reasonable probability of success on the
merits.” We agree. Babij failed to demonstrate evidence rebutting the inference of an easement
Babij did not present evidence to the Superior Court that rebutted the demonstrated intent to create
an easement over the right of way. And despite mere allegations that the right of way was
abandoned, Babij failed to further develop this theory.'® To the contrary, there was both
documentary and testimonial evidence that the right of way was intended for all landowners to be
able to access their individual properties from the inception of the subdivision
'S Babij’s surveyor, Mr. Walker testified that the construction of the disputed access road was abandoned when the
subdivision first began because the land became too steep. Brian Devlin also testified that the access road has been
abandoned. However, Babij did not present any further evidence to the Superior Court that the road was abandoned
No evidence was introduced at trial to demonstrate that the easement was extinguished. Cuffy’s surveyor, Mr.
Bateman, testified that he did not see any maps that purported to extinguish or eliminate the road. Ms. La Place testified
that anew map would have to be recorded to extinguish the road but no such map was introduced at trial. Trial counsel
for Cuffy admitted that he was not arguing that the easement was extinguished. (“I'm not saying that the easement
was extinguished.”
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4732 Based on all of the evidence before it, the Superior Court did not err in finding that Babij
did not prove their claims by a preponderance of the evidence. The Superior Court inferred that
there was an easement based on the strong evidence of the map referring to the right of way and
Babij did not present adequate evidence to rebut that inference. Babij did not meet their burden of
proof. The Superior Court properly found that there was not an express easement and did not
violate the Statute of Frauds. Although the Superior Court did not have to definitively find the
existence of an implied easement to determine whether Babij met their burden of proof, the fact
that the Superior Court found an implied easement exists demonstrates that it did not abuse its
discretion by denying Babij’s requested injunctive relief, and that it did not err in dismissing the
claim for trespass
E. Restatement (Third) of Property: Servitudes § 2.13
433 Babij contends that the Superior Court erred by using the principles of the Restatement
(Third) of Property: Servitudes § 2.13'* without conducting a Banks analysis. We disagree because
we have previously considered § 2.13 of the Third Restatement of Property and have expressly
adopted § 2.13 as the best rule for the Virgin Islands. Est. Chocolate Hole Landowners’ Ass'n, Inc.
v. Cenni, 2024 V.I. 20, 21 (V.I. 2024); Streibich v. Underwood,
74 V.I. 488, 506 (V.I. 2021). In
Streibich, we did a full Banks analysis and adopted § 2.13 in the context of holding that an easement
'4 Section 2.13 of the Restatement (Third) of Property: Servitudes states
In a conveyance or contract to convey an estate in land, description of the land conveyed by
reference to a map or boundary may imply the creation of a servitude, if the grantor has the power
to create the servitude, and if a different intent is not expressed or implied by the circumstances
(1) A description of the land conveyed that refers to a plat or map showing streets, ways, parks, open
space, beaches, or other areas for common use of benefit. implies creation of a servitude restricting
use of the land shown on the map to the indicated uses
(2) A description of the land conveyed that uses a street, or other way, as a boundary implies that the
conveyance includes an easement to use the street or other way
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by implication existed in a land use dispute. 74 V.I. at 506, 511-12. In light of our ruling in Streibich
and Cenni, Babij’s argument that the Superior Court improperly used § 2.13 is misplaced. Thus,
we affirm the decision of the Superior Court as to this issue
Il. CONCLUSION
9434 The Superior Court did not foreclose Babij from exhausting their administrative remedies
The jury trial issue is waived on appeal because Babij acquiesced in a bench trial on the merits
Babij did not meet their burden of proof, and the Superior Court did not violate the Statute of
Frauds and correctly found an implied easement existed based on the reference to the nght of way
on the map. The Superior Court did not improperly rely on any provisions of the Restatement; we
adopted Restatement § 2.13 in Streibich. For these reasons, we affirm the decision of the Superior
Court in its August 16, 2019 amended memorandum opinion and order
Dated this 4th day of March, 2025
BY THE COURT
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C MARIA M{CABRET /
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VERONICA J. HANDY, ESQ
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