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FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX CHARLIE'S CONCRETE SERVICES, INC., Plaintiff, vs. NEVILLE ANTHONY and N.A.A. CONSTRUCTION, INC., Defendants. CASE NO. SX-06-CV-556 ACTION FOR DEBT ORDER For reasons stated in the accompanying Memorandum Opinion of even date and having fully been advised ofthe premises therein, it is hereby ORDERED that Defendants' Motion to Vacate Judgment is DENIED; it is further ORDERED that Defendants' Motion to Stay Writ ofExecution is DENIED; it is further ORDERED that Defendants' Motionto Prohibit Execution ofProperty in Accordancewith Title5 V.I.C. §479(a)(2) is GRANTED in part and DENIED in part; it is finally ORDERED that Defendant Neville Anthony shall submit to the Court for approval within fifteen (15) days a description, including make, model, and vehicle identification number, ofthe motor vehicle that he requests is to be exempted from execution on the judgment in this matter. DONE AND SO ORDERED this ^J day ofJuly, 2009. ATTEST: VENETIA H. VELAZQUEZ, ESQ. Clerk of the Court Court Clerk Supervisor Dated: nl^fo? darry^deXn doNohue, SR. Presiding Judge of the Superior Court FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX CHARLIE'S CONCRETE SERVICES, INC., Plaintiff, vs. NEVILLE ANTHONY and N.A.A. CONSTRUCTION, INC., Defendants. Renee D. Dowling, Esq. LAW OFFICES OF RENEE D. DOWLING P.O.Box 1047 Christiansted, St. Croix, U.S.V.I. 00821-1047 Attorneyfor Plaintiff Eszart A. Wynter, Esq. LAW OFFICES OF ESZART A. WYNTER, SR., P.C. #27 Estate Whim, P.O. Box 1847 Frederiksted, St. Croix, U.S.V.I. 00841-1847 Attorneyfor Defendants DONOHUE, SR., DARRYL DEAN, Presiding Judge: CASE NO. SX-06-CV-556 ACTION FOR DEBT MEMORANDUM OPINION (Filed: July jy ,2009) THIS MATTER isbeforetheCourton Defendants'Motionto VacateJudgment, Motionto Stay Writ of Execution, and Motion to Prohibit Execution of Property in Accordance with Title 5 V.I.C. § 479(a)(2). Plaintiffhas filed its respective Oppositions. I. FACTUAL and PROCEDURAL BACKGROUND The Complaint in this matter was filed on September 8, 2006. An Entry of Default was entered against both Defendants on October30, 2006. On November 21, 2006, ajudgment in the Charlie's Concrete Services, Inc. v. Anthony et. al. Case. No. SX-06-CV-556 MEMORANDUM OPINION amount of $10,407.50 plus costs, attorney's fees, and interest was awarded in favor of Plaintiff. A Praecipe was filed on December 29,2006, and a Writ ofExecution was filed on January 8,2007. No action appears to have been taken until October 28,2008, when Plaintifffiled a Verified Petition for Examination ofJudgment Debtor. The Court scheduled the examination ofjudgment debtor hearing for January 27, 2009. Plaintiff appeared with Counsel and Defendant Anthony appeared pro se representing himself and N.A.A. Construction, Inc., as its resident agent. After inquiry into Defendants' assets, Plaintiffs Counsel requested to proceed with filing a Writ of Execution. The Court granted the request at the hearing. A Praecipe and a Writ of Execution were then filed on January29, 2009. On March2,2009, a Notice of Appearance on behalfofDefendants was filed by EszartA. Wynter,Sr., Esq. Counsel forDefendantsalso fileda Motion to VacateJudgment to which PlaintifffiledanOpposition onMarch6,2009, alongwithaMotionto StrikeUnsignedPleading. On March 11, 2009, Defendants filed a Motion to Stay Writ of Execution to which Plaintiff filed an Opposition on March 17,2009. On March 20,2009, Defendants filed a Motion to Prohibit Execution ofProperty inAccordance with Title 5 V.I.C. §479(a)(2). Plaintiffs Opposition was filed onApril 21,2009. II. DISCUSSION and ANALYSIS Motion to Vacate Judgment Pursuant to Rule 50oftheSuperior Court Rules, for goodcause shown, theCourt may set asideanentryofdefault, judgmentbydefault, orjudgmentaftertrialorhearing; theseapplications are governed by Rules 59 to 61, inclusive, of the Federal Rulesof CivilProcedure. Super. Ct. R. 50. According to Rule 60(b)(1), relief from a final judgment may be granted on the basis of Charlie's Concrete Services, Inc. v. Anthony et. al. Case. No. SX-06-CV-556 MEMORANDUM OPINION "mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(l)(2007). "The purpose ofRule 60(b) 'is to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice must be done.' " A.P. v. Virgin Islands ex rel. C.C., 36 V.I. 158, 162 (D.V.I. 1997)(quotingBoughner v. Sec 'y ofHealth, Educ. & Welfare, 572 F.2d 976, 977 (3d Cir. 1978)). The decision to vacate a default judgment is left to the sound discretion ofthe trial court. Vessup v. Cochran, 38 V.I. 77, 79 (Terr. Ct. 1997). Defendants filed their Motion to Vacate Judgment pursuant to Fed. R. Civ. P. 60(b)(1). Defendants argue that at some point in 2006, Plaintiffand Defendant Anthony had a discussion in which Plaintiffassured Defendant Anthony that "he would ask his attorney not to proceed with the action for debt." Def.s' Mot. to Vacate Judgment, l.1 Defendants continue to argue that "this information did not reach to plaintiffs counsel and a motion for default was filed." Id. This is the extent ofDefendants' arguments. As an initial matter,the Court finds thatDefendants' Motion is untimely. Pursuantto Rule 60(c)(1), a motion filed under Rule 60(b)(1) must be made within a reasonable time and when madeunderRule 60(b)(1) it shallbe filed "no morethana yearafterthe entryof thejudgment...." Fed. R.Civ. P.60(c)(l)(2007). Defendants' Motion, filed under theauspices ofRule 60(b)(1), was filed morethantwoyears afterajudgmentwasentered against Defendants. Defendants provide no legally sufficient reason for the untimeliness; therefore, the Court cannot consider the merits of Defendants' arguments. Even if the Court had authority to consider Defendants' arguments, The conversation is alleged to have been between Carlton Stevens, owner of Charlie's Concrete Services, and Defendant Anthony. Charlie's Concrete Services, Inc. v. Anthonyet. al. Case. No. SX-06-CV-556 MEMORANDUM OPINION Defendants failed to point to any grounds under Rule 60(b)(1) that would warrant relief- they neither pointed to mistake nor inadvertence nor surprise nor excusable neglect. That being the case, this Court has no authority to hear Defendants' untimely motion and it must be denied. Motion to Stay Writ of Execution Defendants' Motion to StayWritofExecutionmustlikewisebe denied.Defendants appearto be seeking a stay pending a ruling on the Motion to Vacate Judgment or as Defendants terms it- until "the motions be [g]ranted."Def.s' Mot.to StayWrit, 2. As indicatedin the foregoingdiscussion,the Court has denied Defendant's Motion to Vacate Judgment and as a result, there remains no basis to address the Motion to Stay Writ of Execution. Consequently, Defendants' Motion to Stay Writ of Execution shall be denied as moot. Motion to Prohibit Execution of Property Defendants filed a Motion to Prohibit Execution ofProperty in Accordance with Title 5 V.I.C. § 479(a)(2). Section § 479(a)(2) of Title5 of the Virgin Islands Codeprovides, in pertinent part: (a) The following property shall be exempt from execution ifselected and reserved by the judgment debtor or his agent at the time of the levy, or as soon thereafter before sale thereof as the same shall be known to him, and not otherwise.... (2) The tools, implements, apparatus or library necessary to enable any artisan, mechanic or professional person to carry onthetrade, occupation orprofession by which such person habitually earns his living. V.I. Code Ann. tit. 5, § 479(a)(2) (1979). Defendant Anthony argues that he is involved in the construction business and is a shareholder of Defendant N.A.A. Construction, Inc. He requests that several items be excluded from execution on thejudgment in this matter. These items include 1)construction implements, Charlie's Concrete Services, Inc. v. Anthonyet. al. Case. No. SX-06-CV-556 MEMORANDUM OPINION 2) fivevehicles,and 3) office equipment and supplies.DefendantAnthonyofferslittlesupport for hiscontention thatthe itemsshouldbe excluded fromexecutionon thejudgment exceptforstating that the items are used in his business. While section 479(a)(2) protects against the execution ofthe debtor's assets used in his trade or to earn his living, the Court is mindful that this action has been broughtnot only againstN.A.A. Construction, Inc. but also DefendantAnthonyindividually. As a result, the assets of both Defendant Anthony and N.A.A. Construction, Inc. are subject to the judgment.Plaintiff,whilenotobjectingtotheexclusionoftheconstructionimplements, objectstothe exclusion ofthe vehicles and the office equipments and supplies. The Court will address eachinturn. Regarding the construction implements, having no objection from Plaintiff, the Court finds that these items are prohibited from execution on thejudgment pursuant to section479(a)(2), as such items are necessary to the operation ofDefendant Anthony's trade in the construction business. As to the office equipment and supplies,2 the Court finds that these items are also prohibited from execution on the judgment. As the proprietor of a construction business, these items are commonly known to be used in an office setting and are directly related to daily operations and management ofsuch abusiness and can be classified as tools ofone's trade.3 More importantly, the Courtrecognizes publicpolicynotions behind exemption statutes, such as 5 V.I.C. § 479, which generallymandatesomelevelofprotection to a debtorwho findshimselfunabletopayhisdebtsbut must still have some means to support himself, after payments are made to his creditors while not 2The office equipmentand supplies cited include pens and pencils, acomputer, laptops, file cabinets, printers, phones, fax machines,and a paper shredder. Def.s' Mot. to ProhibitExecutionofProperty..., 4. 3E.g., MatterofKnight, 75 B.R. 838,840 (S.D. Iowal987) (holding that acomputerqualifies as atool ofthe trade- "[t]heubiquity ofcomputers inthebusiness world attests totheirimportance totheeffective andefficientoperationof businesses..."). Charlie's ConcreteServices, Inc. v. Anthony et. al. Case. No. SX-06-CV-556 MEMORANDUM OPINION becoming aburden onthe community. SeegenerallyIn Re Giles, 340 B.R. 543,548 (E.D. Pa. 2006).4 For that reason, while the Court is cognizant that Defendant N.A.A. Construction's assets are subject to the judgment of this Court, this Court is not inclined to completely deprive Defendant Anthony ofthe means ofcontinuing his daily trade in the construction business, which he testified he has done since 1979. Thus, the Court finds that the office equipment and supplies are prohibited from execution on the judgment. As to the motor vehicles, 5 V.I.C. §479 does not specifically indicate whether a motor vehicle can be exempted under this section. Virgin Islands Courts have not addressed this issue.5 Other jurisdictionshaveenacted similarexemption statutes exempting tools, instruments, implements, or apparatus of an individual's trade that are necessary to the individual's trade, occupation, or profession. Seegenerally Del. CodeAnn.tit. 10§4902(b)(1995) (providing "each person residing inthis State shall have exempt thetools, implements andfixtures necessary forcarrying onhisor her trade or business...."); La. Rev. Stat. Ann. § 13:3881(2)(2006) (providing "[t]hatproperty necessary totheexercise ofatrade, calling, orprofession bywhich heearns hislivelihood" may be exempted). Themost notable difference when comparing 5V.I.C. §479tosimilar exemption statutes is that other exemption statutes have provided for the exemption of a motor vehicle or an amount of 4See also In re Cordova, 394 B.R. 389, 393 (E.D. Va. 2008) (interpreting Virginia's exemption statute and stating "[t]he evident purpose of the exemption is to...protect the basic tools and utensils in order to aid the debtor in continuing in hismeans of livelihood") (internal quotation marks omitted); In reShwnaker, 124 B.R. 820, 823 (D. Mont. 1991) (interpreting Montana's exemption statute and holding "[t]he statute reflects an intent to insure that the items necessary toallow a person tocontinue towork tosupport himselfaresecured tothat person exempt from seizure and sale") (internal quotation marks omitted). An exhaustive search of the case law within our jurisdiction indicates that the Virgin Islands Courts have not yet addressedthis issue. Therefore,it appears that this issueis one of first impression in the VirginIslands. Charlie's Concrete Services, Inc. v. Anthony et. al. Case. No. SX-06-CV-556 MEMORANDUM OPINION value towards a motor vehicle whereas 5 V.I.C. § 479 is silent in that respect. E.g., Val. Code Ann. § 34-26 (2001) (providing "[t]ools, books, instruments, implements, equipment, and machines, including motor vehicles, vessels, and aircraft, which are necessary for use in the course of the householder's occupation or trade not exceeding $10,000 in value..." shall be exempted); Cal. C.C.P. Code § 704.060(a) (1995) (providing"[t]ools, implements, instruments, materials, uniforms, furnishings, books, equipment, one commercial motor vehicle, one vessel, and other personal property are exempt...."); Colo. Rev. Stat. § 13-54-102 (2007)exempting ("(i) The stock in trade, supplies, fixtures, maps, machines, tools, electronics, equipment, books, and business materials of any debtor used and kept for the purpose of carrying on any gainful occupation in the aggregate value oftwenty thousand dollars; except that exempt property described in this paragraph (i) may not also be claimed as exempt pursuant to paragraph (j) ofthis subsection (1);" and "(j)(I) One or more motor vehicles or bicycles kept and used by any debtor in the aggregate value of five thousand dollars...)." While Third Circuit Courtsofgeneraljurisdiction havenotspecificallyinterpreted exemption statutes, Bankruptcy Courts sitting within the Third Circuit have interpreted whether a motor vehicle may be exempted as a tool of trade under the Bankruptcy Code's exemption statute.6 Hence, our guidance is found within the Third Circuit Bankruptcy Courts. Consequently, this Court turns to a two-part determination: first, whether, as a matter oflaw,a defendant may exempt a vehicle as a "tool, implement, apparatus, or library" under 5 V.I.C. § 479 6 11 U.S.C. § 522provides, inpertinent part: (d) The following property may be exempted under subsection (b)(2) of this section: (2) The debtor's interest, not to exceed $3,225 in value, in one motor vehicle. Charlies ConcreteServices, Inc. v. Anthony et. al. Case. No. SX-06-CV-556 MEMORANDUM OPINION PageS (a)(2); and second, ifa motor vehicle can be exempted, under § 479(a)(2), whether the motor vehicle is reasonably necessary to Defendant Anthony's work, trade, or occupation. Further, whether Defendant Anthony's five motor vehicles are necessary to his work as a contractor that would allow the Court to preclude the vehicles from execution on the judgment in this matter. In making the determination ofwhether or not a motor vehicle may be considered a tool of trade, Bankruptcy Courtssittingwithin the Third Circuithave decided that a motorvehiclemaybe considereda tool ofthe trade wherethe motor vehicleis reasonable necessaryto the debtor's tradeor business. See In Re Giles, 340 B.R. at 550. More specifically, "a motor vehicle is a tool ofthe trade onlyifit is necessary to, andis usedbythe debtorto carryon his trade."In ReRichard Dempsey, 39 B.R. 561, 562 (E.D. Pa. 1984) (internal quotation marks and citations omitted). See also In re Weinstein, 44 B.R. 987,989 (E.D.Pa. 1984). Therefore, thisCourtispersuadedbytheseCourts that adopt therulethata motorvehicle canbedeemed atooloftradewherethemotorvehicle "is used by and is necessary to a debtor for his or her work, trade, or occupation." In Re Giles, 340 B.R. at 550. Accordingly, an individual can successfully attempt to exempt a motor vehicle as a tool oftrade under 5V.I.C. §479(a)(2) iftheindividual candemonstrate thatthemotorvehicle isreasonably necessary to the individual's work, trade, or occupation. The secondpart of our analysis is whetherthe motor vehicle is reasonably necessary to the defendant'swork,trade,oroccupation, which"requires morethanashowingthatthedebtorneeds the vehicle to travelto and from hisorherplaceof employment." Id. Here,Defendant Anthonyis inthe construction business andhiswork caninvolve themovement ofheavytools, machinery, equipment, and other tools of his trade to and from worksites. To this end, it would be impracticable for a Charlie's ConcreteServices, Inc. v. Anthony et. al. Case. No. SX-06-CV-556 MEMORANDUM OPINION contractor,such as DefendantAnthony,not to havesomeformoftransportation totransporttheheavy toolsofhis trade.Furthermore,"[a] vehicle may be necessary to and used bythe debtorregardlessof whether or not it is specially outfitted for the debtor's trade." Id. While there is limited evidence or testimony as to Defendant Anthony's specific use ofhis motor vehicles, it can be inferred that the use of at leastonemotorvehicle suchas a van,truck, orothercommercial utilityvehiclecommonly used in the construction industry, is reasonably necessary for Defendant Anthony's trade as a contractor. Given the nature ofa contractor's work,the Court findsthat a van, truck, or other commercial utility vehicle commonly used in the construction industry, can be exempted as a tool oftrade under 5 V.I.C. § 479 (a)(2) under these facts. Nevertheless, Defendant Anthony argues that all of his five motor vehicles should be precluded from execution on the judgment in this matter. The Court disagrees. To allow Defendant Anthonyto exemptall his motorvehicles exceeds thescopeof reasonableness anddefiesthe public policy notions behind such statutes as 5 V.I.C. § 479. Moreover, Defendant Anthony has not provided the Court with an explanation of the use of these five motor vehicles or justification for excludingthese motor vehicles from execution on thejudgment. Defendant Anthony testifiedat the examination ofjudgment debtor hearing that N.A.A Construction, Inc. owns three motor vehicles: a 1989 ChevyC30 truck, a 1993 Chrysler Townand Countryvan, and a 1991 MazdaB-2200pickup truck. Therefore, Defendant Anthonymaychoose one ofthese three motor vehicles to be exempted from execution on the judgment so as to continue his daily trade ofconstruction work; he cannot, however,make ajustifiable or reasonableargumentthat all five motor vehicles are necessaryto the operationofhis trade as a contractor and should be exempted from execution on the judgment. To Charlie's Concrete Services, Inc. v. Anthonyet. al. Case. No. SX-06-CV-556 MEMORANDUM OPINION that end, Defendant Anthony's request to exempt all five motor vehicles shall be denied. III. CONCLUSION This Court finds Defendants' Motion to Vacate Judgment is untimely, pursuant to Rule 60(c)(1) ofthe Federal Rules ofCivil Procedure, and it is therefore denied. Similarly, Defendants' Motion to Stay Writ of Execution is denied as moot. Finally, Defendants' Motion to Prohibit ExecutionofProperty in Accordancewith Title 5 V.I.C. § 479(a)(2) is granted in part and deniedin part. Specifically, the Court finds that the construction implements and office equipment and supplies are necessary to Defendant Anthony's trade as a contractor and are excluded from execution on the judgment. Likewise, a motor vehicle-when it is reasonablynecessary to an individual's work, trade, or occupation - can be exempted pursuant to 5 V.I.C. § 479 unless this statute is otherwise amended by the Legislatureofthe VirginIslands.In this matter, Defendant Anthony may retainone ofthe threemotor vehiclesowned byN.A.A Construction,Inc;the remainingmotor vehicles,owned by Defendant Anthony and N.A.A. Construction, Inc., are subject to the judgment against these Defendants. An appropriate Order of even date follows. is 2^ DATED this day ofJuly, 2009. ATTEST: VENETIA H. VELAZQUEZ, ESQ. Clerk ofthe Court ^ By: ^Jh^-^u^^--^S^>s Court Clerk Supervisor Dated: -^^vflr^ DONOHUE, SR. Presiding Judge of the Superior Court