in the supreme court of the virgin islands of the … · n.a., 308 f.supp.2d 545, 568 (d.c.v.i....

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IN THE SUPREME COURT OF THE VIRGIN ISLANDS OF THE UNITED STATES JAHLEEJAH LOVE PEACE d/b/a ) NATURAL LIVITY KULCHA SHOP ) & JUICE BAR, ) ) Plaintiff/Appellant, ) S. Ct. Civ. No. 2019-0057 ) Super. Ct. ST- 15 - CV- 047 . ) ) BANCO POPULAR de PUERTO RICO ) ) Defendant/Appellee. ) _______________________________ ) APPEAL FROM THE SUPERIOR COURT OF THE VIRGIN ISLANDS APPELLANTS’ BRIEF June 15, 2020 Respectfully submitted, THE RUSSELL LAW FIRM, LLP By: /s/ Ronald E. Russell Ronald E. Russell, Esquire Counsel for Plaintiff/appellant P.O. Box 3259 Kingshill, VI 00851 Tel: (340) 692-00832 Fax: (844) 272-0308 Email: [email protected] 06/16/2020

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Page 1: IN THE SUPREME COURT OF THE VIRGIN ISLANDS OF THE … · N.A., 308 F.Supp.2d 545, 568 (D.C.V.I. 2004)(citing Restatement (Second) of Torts § 552). The evidence presented at trial

IN THE SUPREME COURT OF THE VIRGIN ISLANDS OF THE UNITED STATES

JAHLEEJAH LOVE PEACE d/b/a ) NATURAL LIVITY KULCHA SHOP ) & JUICE BAR, ) ) Plaintiff/Appellant, ) S. Ct. Civ. No. 2019-0057

) Super. Ct. ST- 15 - CV- 047 . ) ) BANCO POPULAR de PUERTO RICO ) ) Defendant/Appellee. ) _______________________________ )

APPEAL FROM THE SUPERIOR COURT OF THE VIRGIN ISLANDS

APPELLANTS’ BRIEF

June 15, 2020 Respectfully submitted,

THE RUSSELL LAW FIRM, LLP

By: /s/ Ronald E. Russell Ronald E. Russell, Esquire

Counsel for Plaintiff/appellant P.O. Box 3259 Kingshill, VI 00851 Tel: (340) 692-00832 Fax: (844) 272-0308 Email: [email protected]

06/16/2020

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S. Ct. Civ. No. 2019-0057

Appellant’s Brief

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TABLE OF CONTENTS

Table of Authorities……………………………………………. 3 Statement of Subject Matter Jurisdiction……………………. 5 Standard of Review…………………………………………… 5 Statement of Related Cases and Proceedings…………….. 5 Statement of Issues…………………………………………… 5 Statement of the Case……………………………………….. 6 Statement of Facts…………………………………………… 7 Issues

I. The Court Erred in Finding No Misrepresentation By the Bank.………………………………. 12

II. The Court Erred in finding that Appellant Failed

to Establish that the Bank Interfered With Appellant’s Business Relations……………… 17

Conclusion……………………………………………………… 20 Certificate of Bar Membership……………………………….. 22 Certificate of Word Count……………………………………. 22 Certificate of Service…………………………………………. 23

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TABLE OF AUTHORITIES Cases

Barnett Bank of West Florida v. Hooper, 498 So. 2d 923 (Supreme Ct. Fl. 1986)……………………………. 13

Capital Bank v. Mvb, 644 So. 2d 515 (Fla. 1994)…………………. 13

Charleswell v. Chase Manhattan Bank, N.A., 308 F.Supp.2d 545, 568 (D.C.V.I. 2004)…………………………….. 12

Donastorg v. Daily News Publishing Co., Inc., 2015 V.I. LEXIS 105, *127 (V.I. Super. Ct. 2015)…………………. 17 Financial Trust Co., Inc. v. Citibank, N.A., 268 F.Supp. 2d 561(D.C.V.I. 2003)………………………………… 13

Haines v. Liggett Group, Inc., 975 F.2d 81(3d Cir.1992)………….. 19

Inter Medical Supplies, Ltd. v. EBI Medical Systems, Inc., 181 F.3d 446 (1999)…………………………………………………. 18

Preiss v. R.D. Severe & Baker’s Inc., 1985 V.I. LEXIS 43, *8 (Terr.Ct. Aug. 16, 1985)…………………………………………….. 18

Richfield Bank & Trust Co v. Sjogren, 244 N.W.2d 648 (Minn. 1976)………………………………………. 13

Rivera-Moreno v. Government of the Virgin Islands, 61 V.I. 279 (V.I. 2014)………………………………………………………… 4 St. Croix Renaissance Group, LLLP v. St. Croix Alumina, LLC, 2011 LEXIS 58481 (D.C.V.I. May 31, 2011………………………. 18 St. Thomas–St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (V.I.2007)…………………………………………. 4

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V.I. Port Authority v, Callwood, 2014 V.I. LEXIS 11, *17-21 (Super. Ct. Feb. 28, 28 2014)………………………………………. 18 Watts v. Blake-Coleman, 2012 W.L. 1080323 (Super. Ct. 3/12/2012)………………………………………………. 13 STATUTES Title 4, V.I. Code section 32(a)…………………………………… 4 Restatement (Second) of Torts § 552………………………………. 12

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Appellant’s Brief

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STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

Title 4, section 32(a) of the Virgin Islands Code provides that “[t]he

Supreme Court shall have jurisdiction over all appeals arising from final

judgments, final decrees or final orders of the Superior Court, or as

otherwise provided by law.” Rivera-Moreno v. Government of the Virgin

Islands, 61 V.I. 279, 292-293 (V.I. 2014).

STATEMENT OF STANDARD OF REVIEW

The Supreme Court’s review of the trial court’s application of law is

de novo and findings of fact are reviewed for clear error. See St. Thomas–

St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (V.I.2007).

STATEMENT OF RELATED CASES AND PROCEEDINGS

There are no related cases and proceedings.

STATEMENT OF ISSUE(S) PRESENTED FOR REVIEW

I. Whether the trial judge erred in finding that there was no misrepresentation by the bank

II. Whether the Court Erred in Finding That Appellant Failed to Establish That the Bank interfered with Appellant’s Business Relations

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Appellant’s Brief

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STATEMENT OF THE CASE

Appellant filed the instant complaint on January 30, 2015, alleging

claims of negligent misrepresentation, fraud, and breach of contract against

Banco Popular. Appellee Bank moved for summary judgment on May 19,

2016, and Appellant filed its opposition on June 27, 2016. On December

13, 2016, the Court denied summary judgment on the claims of breach of

contract and misrepresentation.

A bench trial was held on March 22, 2018, after which the parties

submitted written closing arguments and proposed findings of fact and

conclusions of law to the Court. The Court entered judgment on May 29,

2019 in a Judgment and Order dated May 23, 2019. The Court made

findings of fact and drew conclusions of law against Jahleejah Love Peace

and Natural Livity Kulcha Shop and Juice Bar, LLC, on all counts of the

Complaint and entered judgment in the amount of S49,1 00.87, together

with post judgment and prejudgment interest.

Appellant filed this timely appeal on June 28, 2019.

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STATEMENT OF THE FACTS

This case arose out of the failure of Appellant’s thriving business

caused by the actions of Appellee Banco Popular de Puerto

Rico. Appellant was a humble up and coming business owner on St.

Thomas elling Afrocentric clothing, soaps, incense, oils, souvenirs, and

cultural items across from the small court on St. Thomas. Vol. II App.

126.

In 2004 plaintiff’s business grossed about $30,000.00 to

$40,000.00. Id. at 127. By 2010 plaintiff had established a permanent

location on Main Street St. Thomas (No. 9 Norre Gade). Id. at 129. Plaintiff

opened an ideal business account with the bank, with a checking account

and obtained a Visa Debit/Credit Card. Id. at 133 - 137. Plaintiff entered

into a 5-year lease with Stanley Parsons for the property at $2,500.00 per

month (No. 9 Norre Gade). Id. at 129. At her permanent location, plaintiff

had 5 to 7 employees in two (2) sections of her business: a restaurant and

deli selling food, specializing in vegan food and drink, and the Kulcha Shop

selling natural cosmetic and hair products, incense, clothing, books and

souvenirs. Id. at 130-131.

That was Appellant’s initial financing. Appellant also had a savings

and checking account with the bank. Vol. II App. 137. In 2010, When

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Plaintiff opened her businesses on main street in St. Thomas she

advertised in the Virgin Islands Daily News, on Facebook, Yelp, Twitter and

Trip Advisor; plaintiff had big tourist support. Id. at 131. By the end of 2010,

plaintiff was grossing more than $200,000.00 in sales. Id. at 131-

132. Appellant had contracts with vendors in New York for clothing and

merchandise, such as Steel Pulse Supplies and African World Books, and

contracts with Merchant’s Market for food and Produce. Id. at 141 & 142.

In 2012 and 2013 Appellant applied for financing to expand her

growing business. Id. at 142. Appellant and her accountant created a

business plan projecting a 300% increase in revenue based on the her

gross income and the proposed expansion to the business. Id. at

103. Both loans were denied.

Desperate to take advantage of the high volume sales caused by St.

Thomas Carnival, Appellant reached out to the bank. Vol. III App. 570,

572. She was advised by Bank employee Sterling Knight to apply for an

increase in her current credit card because it allowed credit up to

$50,000.00. Vol. III App. 619. Appellant followed his advice and applied

for an increase up to the $50,000.00 limit. That was in October 2013. Vol.

II App. 139, 154, 157; Exh. 25.

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When Appellant did not hear from the bank, and with carnival

approaching, she complained to the Consumer Center. Vol. II App.

196. Soon thereafter, she was called by the bank employee and informed

that her request for additional credit was approved. Vol. III App.

591. However, the credit increase did not show up on her card.

The bank finally called Appellant in early April and instructed her to

come into the bank to sign some documents. Vol. II App. 161, 178; 395-

396. Appellant was confused as to why she should sign documents for an

increase in her credit card limit and asked Sterling Knight about it. He

responded that this was “normal procedure”. Vol. II App. 172,

181. Unknown to Appellant, the Bank had instructed Knight to offer

Appellant a secured loan rather than an increase in her credit card

limit. Vol. II App. 398- 401. A visa revolving credit card is different from a

line of credit. Vol III App 595; Vol. III App 619, 620.

Sterling Knight had prepared all of the documents for the transaction

including a Corporate Resolution on behalf of her business and he directed

her to sign it. Vol. II App. 397, 416; Vol III 574-575, 576-577. Appellant

did not realize that the documents were for a secured line of credit rather

than an unsecured line of credit associated with her credit card. Vol. III

App. 583. The end result was that Appellant signed up for a secured

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business loan which placed a lien on her entire inventory. Vol II App.

400.

Additionally, Appellant was not told that a fee of $825.00 would be

assessed for the application. Vol II App. 171-172. She called the St

Thomas and Puerto Rico branches to inquire about the $825.00 fee. Vol II

App. 171, 176, 191, 230, 233; Vol. III App 583; Vol II App.175 - 176. She

was told then that no fee was necessary. Vol II p. 94, 113; Vol III App

583. Banco Popular’s corporate office contacted Monique Richards and

asked her to investigate why Appellant was charged a $825 fee for a credit

card limit increase. The fee was refunded to Appellant’s account after the

bank acknowledged that it had not been properly disclosed to

Appellant. Vol II App. 325, 359; Vol III App 584.

Unaware of the nature of the transaction, and still needing additional

financing, Appellant applied for a loan from the Economic Development

Authority [EDA]. Vol III App 636; Exh. 16. The EDA denied the loan and

the reason given was the lien placed by the Bank. Vol II App. 212. That

was Appellant’s first notice of the lien. Vol III App. 636. Appellant

immediately contacted the bank inquiring as to the origin of the lien. She

was told that the lien was legal. Eventually, the EDA approved the loan to

Appellant. Vol III App. 481 - 491. However, the funds disbursed by EDA

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were depleted by payments of outstanding debts totalling the amount of

the loan. Vol III App. 640; Vol II App. 209 - 210. Plaintiff was unable to

repay the EDA loan and defaulted on payment to her vendors. Vol III App.

643; Vol III App. 573.

Unable to survive the debt, Appellant was forced to close her

business in 2015. Vol II App. 214. Banco Popular is responsible for the

failure of Appellant’s business.

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I. THE TRIAL JUDGE ERRED IN FINDING NO MISREPRESENTATION ON THE PART OF THE BANK

Sterling Knight’s admission that he was ordered by Ian Smith to

change the nature of the transaction from an increase of a personal line of

credit which is unsecured, to a secured line of credit secured with a UCC

lien without informing Appellant is a clear case of misrepresentation. To

prevail on a claim for Misrepresentation in the Virgin Islands, Plaintiff must

allege and prove facts demonstrating (I) misrepresentation of fact, opinion,

intention or law; (2) knowledge by the maker of the misrepresentation that it

was false; (3) ignorance of the falsity by the person to whom it was made;

(4) an intention that the representations should be acted upon; and (5)

detrimental and justifiable reliance. Charleswell v. Chase Manhattan Bank,

N.A., 308 F.Supp.2d 545, 568 (D.C.V.I. 2004)(citing Restatement (Second)

of Torts § 552).

The evidence presented at trial clearly established a violation and the

Court erred in finding otherwise.

The Court erred in finding that Appellant failed to establish a

“misstatement” on the part of Appellee bank. The Court erred in ignoring

the overwhelming evidence that Appellant was not informed that her

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request for an increase in her credit card limit had been changed to a

secured line of credit.

When a bank knows, or has reason to know that a customer is

placing trust and confidence in the bank and is relying on the bank to

counsel and inform him, the bank is held liable if it fails to disclose a

material fact. Barnett Bank of West Florida v. Hooper, 498 So. 2d 923, 925

(Supreme Ct. Fl. 1986); Richfield Bank & Trust Co v. Sjogren, 244 N.W.2d

648, 650-51 (Minn. 1976); Capital Bank v. Mvb, 644 So. 2d 515 (Fla. 1994);

Financial Trust Co., Inc. v. Citibank, N.A., 268 F.Supp. 2d 561(D.C.V.I.

2003): Watts v. Blake-Coleman, 2012 W.L. 1080323 (Super. Ct.

3/12/2012).

Appellant had been a customer of the bank for at least eight years;

Appellant was the holder of a credit card issued by the bank; an employee

of the bank advised Appellant to request an increase in her credit limit after

she was denied a business loan; the loan the bank offered was different

from the one she requested; and Appellant was not informed of the

difference.

The testimony at trial was that Appellant had been banking with

defendant bank since the inception of her business in 2002. They knew

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her finances because she had a savings account, a checking account, a

credit card, and had applied for a loan from the bank in 2010 and 2012.

During the entire process the bank communicated with Appellant regarding

the inner workings of her business.

Appellant requested an increase in the credit limit on the unsecured

credit card issued by the bank after her loan applications were denied in

2010 and 2012. The bank employee admitted that an increase in a credit

card limit does not require collateral. It was Daren Brown, an employee of

the bank, who suggested that Appellant request an increase in her credit

card limit after the business loans were denied. Based on Brown’s advice,

Appellant applied for the credit card increase.

Sterling Knight, a bank employee at the time, testified that he was

directed by the bank to draft documents offering Appellant a business line

of credit. This facility differed from an increase in credit card limit in that it

had to be secured by Appellant’s inventory. However, Sterling Knight

confirmed that Appellant was not informed of the difference.

Appellant testified that she was directed to come to the bank to sign

documents. At the bank there was no discussion regarding the imposition

of the lien and Appellant was under the impression that she was simply

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receiving approval for an increase in her revolving credit limit. In fact

Appellant questioned why she was signing documents for an increase in

her credit card limit. Knight responded that the procedure was routine

although it was not.

Appellant trusted the bank to inform her of the difference and was

unaware that such a lien was included in the documents. Also, unknown to

her, the Bank charged her a fee of $800 which had to be refunded because

the Bank acknowledged that the fee had not been disclosed to Appellant.

The evidence established that the bank was familiar with Appellant’s

financial condition by virtue of doing her banking for several years including

managing her accounts and processing her loan applications and credit

card. The bank’s employee was the one who suggested Appellant apply

for an increase in her credit limit when she was denied a loan. Sterling

Knight called Appellant a few days before April 2, 2014 to let her know the

bank was going to approve the increase. Therefore, the bank had every

reason to inform Appellant as to the exact nature of the facility it was

offering and the effect it would have on her business.

Jose Escalera, Vice President and Manager of Commercial Credit

Center, testified that an increase in credit card limit does not require the

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imposition of a lien. He also testified that the bank was required to notify

Appellant and obtain her consent prior to imposing the UCC lien. Appellant

did not give her consent because she was not notified.

Appellant relied on the bank’s expertise and signed the loan

documents. Because the bank failed to make Appellant aware of this

material term prior to signing the loan documents, the bank’s failure to

disclose the material fact of the nature of the loan and the UCC lien

constituted misrepresentation of a material fact. The bank’s failure to

advise Appellant of the true nature of the loan constitutes a material

misstatement and the Court erred in finding otherwise.

The end result was that Appellant’s business was severely affected.

She was unable to secure much needed additional credit and financing that

she needed to continue her business. Eventually, her business failed. The

failure of Appellant's business caused Appellant $2,778,500.00 in

damages.

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II. THE TRIAL COURT ERRED IN FINDING THAT APPELLEE FAILED TO ESTABLISH THAT THE BANK’S ACTIONS INTERFERED WITH HER BUSINESS RELATIONS

The Court erred in finding no interference to Appellant’s business

relations caused by the bank’s actions. To prevail on a claim of

intentional interference with business relations Appellant needed to prove

1) the existence of a contract between the plaintiff and a third party; 2) that

the defendant knew of the contract; 3) that the defendant interfered with the

contract using improper means or with an improper motive; and 4) that the

plaintiff was damaged as a result. Donastorg v. Daily News Publishing Co.,

Inc., 2015 V.I. LEXIS 105, *127 (V.I. Super. Ct. 2015). A cause of action

for intentional interference with prospective business relations protects an

individual's right to develop networks and relationships and generally

conduct business without fear that their efforts will be unlawfully

undermined by competitors. Id. at *282.

First, the Court erroneously characterized Appellant’s argument as

referring to Appellant’s relationship with the EDA. The evidence at trial was

that bank knew that the Appellant was party to business contracts to

suppliers and vendors through Appellant’s submissions to the bank as part

of her applications. The bank improperly interfered with those relations by

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Appellant’s Brief

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imposing a lien on all of Appellant’s inventory which, the bank knew, would

prevent her from obtaining additional credit. The lien caused Appellant to

default on her existing loans and vendor payments. As a result, between

2014, when she requested relief from the lien because it was interfering

with her obtaining additional credit, and March of 2015 when she received

a loan from the EDA, Appellant’s business suffered severe financial loss.

During that time, Appellant incurred debts that equalled the amount of the

EDA loan, leaving no funds to invest in the business. As a result, Appellant

was unable to repay the EDA loan and was forced to close her business.

There is a direct link between the bank’s actions and the demise of

Appellant’s business. Damages under a claim of misrepresentation are

measured by out of pocket expenses, recision, or benefit of the bargain.

V.I. Port Authority v, Callwood, 2014 V.I. LEXIS 11, *17-21 (Super. Ct. Feb.

28, 28 2014); Preiss v. R.D. Severe & Baker’s Inc., 1985 V.I. LEXIS 43, *8

(Terr.Ct. Aug. 16, 1985); Inter Medical Supplies, Ltd. v. EBI Medical

Systems, Inc., 181 F.3d 446 (1999); St. Croix Renaissance Group, LLLP v.

St. Croix Alumina, LLC, 2011 LEXIS 58481 (D.C.V.I. May 31, 2011.

The failure of Appellant's business caused Appellant $2,778,500.00

in damages. The evidence presented at trial was as follows:

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Gross income in 2014 $191,000

Times rate of growth (3 yrs, 6 mos)$2,005,500

Amount owed to EDA $50,000

Total $2,778,500

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CONCLUSION

The Court’s errors require reversal of the Judgment entered in this

matter. The appellate court accepts the factual determination of the fact

finder unless that determination ‘either (1) is completely devoid of minimum

evidentiary support displaying some hue of credibility, or (2) bears no

rational relationship to the supportive evidentiary data.’ “ Haines v. Liggett

Group, Inc., 975 F.2d 81, 91–92 (3d Cir.1992) (citations omitted).

The Court erred in finding that there was no misstatement by the

bank. However, the evidence adduced at trial was that the bank changed

the credit facility offered to Appellant from an unsecured line of credit to a

secured line of credit without notifying Appellant. This was a material

omission. The difference was that a lien was placed on Appellant’s

inventory without her knowledge.

The lien hampered Appellant’s ability to secure financing for her

business. As a result, she was unable to pay her vendors and her

business failed.

The evidence was sufficient to prove misrepresentation and

interference with business relations and the Court erred in finding

otherwise.

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For all the reasons as more fully described in the foregoing analysis,

Appellant prays that this Court reverse the Opinion of the Superior Court

and remand the matter with instructions for the trial court to vacate the

Judgment, and award Appellant the damages proven at trial.

Date: June 15, 2020 Respectfully submitted,

/s/ Ronald E. Russell

Ronald E. Russell Esq. V.I. Bar No. 86 P.O. Box 3259 St. Croix, VI 00851 (340) 690 - 0832 (cell) (800) 772 - 0376 (fax)

[email protected]

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Appellant’s Brief

22

CERTIFICATE OF BAR MEMBERSHIP The undersigned hereby certifies and affirms pursuant to Rule 22(l) of

the Rules of the Supreme Court of the Virgin Islands that the undersigned

is a member in good standing of the United States Virgin Islands Bar and

the Bar of the Supreme Court of the Virgin Islands.

By: /s/ Ronald E. Russell

CERTIFICATE OF WORD COUNT The undersigned hereby certifies and affirms that the instant brief

does not exceed 7,800 words.

/s/ Ronald E. Russell, Esq.

06/16/2020

Page 23: IN THE SUPREME COURT OF THE VIRGIN ISLANDS OF THE … · N.A., 308 F.Supp.2d 545, 568 (D.C.V.I. 2004)(citing Restatement (Second) of Torts § 552). The evidence presented at trial

Jahleejah Love Peace v. BPPR

S. Ct. Civ. No. 2019-0057

Appellant’s Brief

23

CERTIFICATE OF SERVICE

I DO HEREBY CERTIFY that on June 15, 2020, I caused the

foregoing Appellant's Brief o to be delivered via the Supreme Court

Electronic Filing System (“VISCEFS”), which will deliver a copy of the same

to the following:

Veronica J. Handy Clerk of the Court Supreme Court of the Virgin Islands PO Box 590 Charlotte Amalie St. Thomas, US Virgin Islands 00804 Alex Muskovitz, Esq. Law House P.O. Box 756 St. Thomas, VI 00804 [email protected] By: /s/ Ronald E. Russell

06/16/2020